Filing # 22402342 E-Filed 01/09/2015 07:31:18 PM
IN THE SUPREME COURT OF FLORIDA
THE LEAGUE OF WOMEN VOTERS OF FLORIDA et al., Appellants, v. Case No.: SC14-1905 L.T. No.: 2012-CA-00412; KEN DETZNER, et al., 2012-CA-00490 Appellees.
ON APPEAL FROM THE CIRCUIT COURT, SECOND JUDICIAL CIRCUIT, IN AND FOR LEON COUNTY, FLORIDA, CERTIFIED BY THE DISTRICT COURT FOR IMMEDIATE RESOLUTION
APPENDIX TO MOTION FOR APPELLATE ATTORNEYS’ FEES
PERKINS COIE LLP THE MILLS FIRM, P.A. John M. Devaney John S. Mills Marc Erik Elias Andrew D. Manko 700 13th Street, NW, Suite 600 Courtney R. Brewer Washington, D.C. 20005 203 North Gadsden Street, Suite 1A Tallahassee, FL 32301
KING, BLACKWELL, ZEHNDER & MESSER CAPARELLO, P.A. WERMUTH, P.A. Mark Herron David B. King Robert J. Telfer III Thomas A. Zehnder 2618 Centennial Place Frederick S. Wermuth Tallahassee, FL 32308 Vincent Falcone III P.O. Box 1631
Orlando, FL 32802-1631 Counsel for Romo Appellants RECEIVED, 1/9/201507:33:48 PM,Clerk,Supreme Court GELBER SCHACHTER & GREENBERG, P.A. Adam Schachter Gerald E. Greenberg 1441 Brickell Avenue, Ste. 1420 Miami, Florida 33131-3426
Counsel for Coalition Appellants INDEX
Coalition Plaintiffs’ Motion for Attorneys’ Fees ...... App. 1 – 14
Romo Plaintiffs’ Motion for Determination of Availability of Attorneys’ Fees with Exhibits ...... App. 15 – 104
Legislative Defendants’ Motion for Attorneys’ Fees and Response to Plaintiffs’ Motions for Attorneys’ Fees with Exhibits ...... App. 105 – 485
Coalition Plaintiffs’ Reply in Support of Motion for Attorneys’ Fees and Response to Legislative Defendants’ Motion for Attorneys’ Fees with Exhibits ...... App. 486 – 522
Romo Plaintiffs’ Reply in Support of Motion for Determination of Availability of Attorneys’ Fees and Response in Opposition to Legislative Defendants’ Motion for Attorneys’ Fees ...... App. 523 – 530
Order Denying Parties’ Motions for Attorneys’ Fees (11/10/14)...... App. 531 – 532
Hearing Transcript on Motions for Attorneys’ Fees (10/09/14) ...... App. 533 – 603
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PERKINS COIE LLP Respectfully submitted,
John M. Devaney (pro hac pending) THE MILLS FIRM, P.A. [email protected] Marc Erik Elias (pro hac pending) /s/ John S. Mills [email protected] John S. Mills 700 13th Street, NW, Suite 600 Florida Bar No. 0107719 Washington, D.C. 20005 [email protected] Telephone: (202) 654-6200 Andrew D. Manko Facsimile: (202) 654-6211 Florida Bar No. 018853 [email protected] and Courtney Brewer Florida Bar No. 0890901 MESSER CAPARELLO, P.A. [email protected] [email protected] (secondary) 203 North Gadsden Street, Suite 1A Mark Herron Tallahassee, Florida 32301 Florida Bar No. 199737 Telephone: (850) 765-0897 [email protected] Facsimile: (850) 270-2474 Robert J. Telfer III Florida Bar No. 0128694 and [email protected] 2618 Centennial Place KING, BLACKWELL, ZEHNDER & Tallahassee, FL 32308 WERMUTH, P.A. Telephone: (850) 222-0720 Facsimile: (850) 558-0659 David B. King Florida Bar No.: 0093426 Counsel for Appellants Rene Romo, [email protected] Benjamin Weaver, William Everett Thomas A. Zehnder Warinner, Jessica Barrett, June Keener, Florida Bar No.: 0063274 Richard Quinn Boylan, and Bonita [email protected] Agan Frederick S. Wermuth Florida Bar No.: 0184111 [email protected] Vincent Falcone III Florida Bar No.: 0058553 [email protected] P.O. Box 1631 Orlando, FL 32802-1631 Telephone: (407) 422-2472 2
Facsimile: (407) 648-0161
Gerald E. Greenberg [email protected] Adam M. Schachter [email protected] Gelbert Schachter & Greenberg, P.A. 1441 Brickell Avenue, Suite 1420 Miami, FL 33131 Telephone: (305) 728-0950 Facsimile: (305) 728-0951
Counsel for Appellants The League of Women Voters of Florida, Common Cause, Brenda Ann Holt, Roland Sanchez-Medina Jr., J. Steele Olmstead, and Robert Allen Schaeffer
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by email to the following attorneys on January 9, 2014:
Michael B. DeSanctis Ronald G. Meyer Jessica Ring Amunson Lynn Hearn Paul Smith Meyer, Brooks, Demma Jenner & Block, Llp and Blohm, P.A. 1099 New York Avenue NW 131 North Gadsden Street Suite 900 Post Office Box 1547 Washington, DC 20001 Tallahassee, FL 32302 [email protected] [email protected] [email protected] [email protected] [email protected]
J. Gerald Hebert Counsel for Coalition Plaintiffs 191 Somervelle Street, #415 Alexandria, VA 22304 Blaine Winship [email protected] Office of the Attorney General of Florida 3
Gerald E. Greenberg The Capitol, Suite PL-01 Adam M. Schachter Tallahassee, FL 32399-1050 Gelbert Schachter & Greenberg, P.A. [email protected] 1441 Brickell Avenue, Suite 1420 Miami, FL 33131 Counsel for Attorney General Pam [email protected] Bondi [email protected] [email protected] J. Andrew Atkinson Ashley Davis Counsel for Coalition Plaintiffs Dep. of State, 500 S. Bronough Street Tallahassee, FL 32399 George T. Levesque [email protected] The Florida Senate, 422 The Capitol [email protected] Tallahassee, FL 32399-1300 [email protected] [email protected] [email protected] Counsel for Florida Secretary of State [email protected] Ken Detzner
Michael A. Carvin Charles T. Wells Louis K. Fisher George N. Meros, Jr. Jones Day Jason L. Unger 51 Louisiana Avenue N.W. Andy Bardos Washington, D.C. 20001 GrayRobinson, P.A. [email protected] 301 South Bronough Street, Suite 600 [email protected] Tallahassee, FL 32301 [email protected] Raoul G. Cantero [email protected] Jason N. Zakia [email protected] Jesse L. Green [email protected] White & Case LLP [email protected] 200 South Biscayne Blvd., Ste. 4900 [email protected] Miami, FL 33131 [email protected] [email protected] [email protected] Matthew J. Carson [email protected] General Counsel [email protected] Florida House of Representatives [email protected] 422 The Capitol Tallahassee, FL 32399-1300 Counsel for Fla. Senate & Senate Pres. [email protected]
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Abba Khanna Counsel for Fla. House and Speaker Kevin J. Hamilton Perkins Coie, LLP Allison J. Riggs, Pro Hac Vice 1201 Third Avenue, Suite 4800 Anita S. Earls Seattle, WA 98101-3099 Southern Coalition For Social Justice [email protected] 1415 W. Highway 54, Suite 101 [email protected] Durham, NC 27707 [email protected] [email protected] [email protected] [email protected] [email protected] Counsel for Romo Plaintiffs Victor L. Goode Dorcas R. Gilmore NAACP Martha A. Pardo 4805 Mt. Hope Drive LatinoJustice PRLDEF Baltimore, MD 21215-3297 523 West Colonial Drive [email protected] Orlando, FL 32804 [email protected] [email protected] Nancy Abudu Counsel for Amicus Curiae ACLU Foundation of Florida LatinoJustice PRLDEF, Florida New 4500 Biscayne Blvd., Ste. 340 Majority, and Mi Familia Vota Miami, FL 33137 [email protected]
Counsel for NAACP
/s/ John S. Mills Attorney
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Filing # 16967106 Electronically Filed 08/11/2014 05:31:40 PM
IN THE CIRCUIT COURT FOR THE SECOND JUDICIAL CIRCUIT IN AND FOR LEON COUNTY, FLORIDA
RENE ROMO, et al., ) ) Plaintiffs, ) ) v. ) CASE NO. 2012-CA-00412 ) KEN DETZNER and PAM BONDI, ) ) Defendants. ) ) ) THE LEAGUE OF WOMEN VOTERS ) OF FLORIDA, et al., ) ) Plaintiffs, ) ) v. ) CASE NO. 2012-CA-00490 ) KEN DETZNER, et al., ) ) Defendants. ) ) )
COALITION PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES
1 App. 1 Romo, et al. v. Detzner, et al., Case 2012-CA-00412 The League of Women Voters, et al v. Detzner, Case No. 2012-CA-00490
Coalition Plaintiffs respectfully request, pursuant to Florida Rule of Civil Procedure 1.525, that this Court award attorneys’ fees against Legislative Defendants. The grounds supporting this motion are set forth below.
I. INTRODUCTION
Coalition Plaintiffs brought this case to enforce the new Fair Districts Amendments and vindicate the public’s interest in fair elections and legislative representation. Every step of the way – from the initial filing of the complaint through discovery and trial and into the remedy phase – they have been fought tooth and nail not only by Legislative Defendants but also by paid political consultants who worked hand in hand with legislators to draw partisan, unconstitutional maps. While such litigation would have been extremely time consuming and costly under any circumstances, the situation here was dramatically exacerbated by the tactics of Legislative Defendants and the consultants, who did everything in their power to prolong the case and stonewall discovery, not only through the filing of countless motions and appeals but also through the outright destruction of evidence.
Needless to say, all of this has been extremely expensive. In typical cases, plaintiffs are forced to bear the expenses for their attorneys. This is, however, far from a typical case. Based on the uniquely strong public interest aspect of Coalition Plaintiffs’ claims and the uniquely egregious misconduct of those who stood in Coalition Plaintiffs’ way, there exist two separate, compelling grounds for this
Court to grant Coalition Plaintiffs their fees.
First, this is precisely the sort of case in which courts elsewhere have applied the private attorney general doctrine to allow payment of attorneys’ fees for parties who protect a vital societal interest.
Second, even if this were a less socially significant matter, the bad faith of Legislative
Defendants and the consultants who worked hand in hand with them merits an award of fees in favor
2 App. 2 Romo, et al. v. Detzner, et al., Case 2012-CA-00412 The League of Women Voters, et al v. Detzner, Case No. 2012-CA-00490 of the parties who were forced to incur such heavy expenses as a result.
II. BACKGROUND
In 2010, Florida voters passed a state constitutional amendment demanding that the Florida
Legislature apportion congressional districts without “the intent to favor or disfavor a political party or an incumbent.” Fla. Const. art. III § 20. Following the 2012 redistricting process, Coalition Plaintiffs and Romo Plaintiffs filed the first set of lawsuits under the new amendment, alleging that the
Legislature intentionally gerrymandered the congressional districts, discarding the constitutional mandate against this insidious practice.
After much stonewalling and delay by Legislative Defendants and their paid political consultant allies, this Court presided over a trial and issued a final judgment, under which Coalition
Plaintiffs prevailed. In its Final Judgment, this Court found that a conspiracy existed “to influence and manipulate the Legislature into a violation of its constitutional duty set forth in Article 3, Section 20 of the Florida Constitution.” (Final J. at 10). It found that Legislative Defendants “had, in fact, destroyed e-mails and other evidence of communication regarding the redistricting process.” (Id. at
12). It concluded that political consultants “at trial did their best to evade answering direct questions on the subject [of the conspiracy], often using semantic distinctions to avoid admitting what they had done.” (Id.). Critically, this plot would have been successful and remained forever concealed, this
Court wrote, “had it not been for the Plaintiffs’ determined efforts to uncover it in this case.” (Id. at
35).
III. STANDARD
“The determination of an award of attorney’s fees is within the sound discretion of the trial court . . . .” Schoenlank v. Schoenlank, 128 So. 3d 118, 121 (Fla. 3d DCA 2013).
IV. ARGUMENT
Under either the private attorney general doctrine or the bad faith exception to the American
3 App. 3 Romo, et al. v. Detzner, et al., Case 2012-CA-00412 The League of Women Voters, et al v. Detzner, Case No. 2012-CA-00490
Rule on attorneys’ fees, this Court should require that Legislative Defendants pay Coalition Plaintiffs’ attorneys’ fees.
A. THE COURT SHOULD AWARD FEES UNDER THE PRIVATE ATTORNEY GENERAL DOCTRINE.
In typical cases, Florida courts follow the “American Rule,” under which litigants pay their own attorneys’ fees. See Talbott v. Am. Isuzu Motors, Inc., 934 So. 2d 643, 650 (Fla. 2d DCA 2006).
Over the years, however, Florida courts have carved out exceptions to this rule. A court can award attorneys’ fees, for instance, when a contract provides for fees, when a statute awards fees, or when the losing party litigated in bad faith. See, e.g., Bitterman v. Bitterman, 714 So. 2d 356, 365 (Fla. 1998)
(bad faith); Royal Caribbean Cruises, Ltd. v. Cox, 137 So. 3d 1157, 1159 (Fla. 3d DCA 2014)
(contract); Gen. Motors Corp. v. Sanchez, 16 So. 3d 883, 884 (Fla. 3d DCA 2009) (statute). Florida courts have also made an exception – called the common fund doctrine – where one party’s litigation furthers the public good and creates a “separate fund” of money that benefits a class of persons who did not participate in the litigation. Bd. of Trs. of City Pension Fund for Firefighters & Police Officers v. Parker, 113 So. 3d 64, 68 (Fla. 2d DCA 2013).
Closely related to the common-fund doctrine, courts in several states have awarded fees under the private attorney general doctrine. This “is an equitable rule which permits courts in their discretion to award attorney’s fees to a party who has vindicated a right that (1) benefits a large number of people;
(2) requires private enforcement; and (3) is of societal importance.” Arnold v. Ariz. Dep’t of Health
Servs., 775 P.2d 521, 537 (Ariz. 1989). State courts from Alabama, Alaska, Arizona, California,
Hawaii, Idaho, Montana, and New Hampshire have adopted this or a similar view on public interest litigation. See Brown v. State, 565 So. 2d 585, 592 (Ala. 1990); Halloran v. State Div. of Elections,
115 P.3d 547, 554 n.29 (Alaska 2005); Arnold, 775 P.2d at 537; Serrano v. Priest, 569 P.2d 1303,
1315 (Cal. 1977); In re Water Use Permit Applications, 25 P.3d 802, 804 (Haw. 2001); Hellar v.
Cenarrusa, 682 P.2d 524, 531 (Idaho 1984); Montanans for the Responsible Use of the Sch. Trust v.
4 App. 4 Romo, et al. v. Detzner, et al., Case 2012-CA-00412 The League of Women Voters, et al v. Detzner, Case No. 2012-CA-00490
State ex rel. Bd. of Land Comm’rs, 989 P.2d 800, 812 (Mont. 1999); Claremont Sch. Dist. v. Governor,
761 A.2d 389, 394–95 (N.H. 1999); Guerrero v. Commonwealth Dep’t of Pub. Safety, No. 2012-30,
2013 WL 6997105, at *7 (N. Mar. I. Dec. 19, 2013); Stewart v. Utah Publ. Serv. Comm’n, 885 P.2d
759, 783 (Utah 1994). This court should apply the private attorney general exception here.
As the Court has recognized, Florida’s citizens passed an amendment to stop gerrymandering, to end political machinations that allow “the representatives to choose their voters instead of vice versa.” (Final J. at 3). The Florida Constitution thus “significantly decrease[s] the Legislature’s discretion in drawing district boundaries.” (Id.). But no agency, entity, or state actor has authority over the Florida Legislature, and, as this case has shown, trusting the watchmen to watch themselves is a mistake. As a result, only private parties, through the non-political judiciary, can protect the constitutional mandate against gerrymandering.
But the vigilance shown by Coalition Plaintiffs is not free: complex redistricting litigation requires extensive legal analysis and briefing, voluminous discovery, and detailed work with experts.
That costs money. It costs more money where, as here, defendants and their allied witnesses recalcitrantly oppose every inquiry and attempt to distract from the merits, such as by conducting extensive discovery and numerous motions directed to Plaintiffs’ alternative maps. Legislative
Defendants’ litigation strategy forced Coalition Plaintiffs to litigate this lawsuit’s propriety, the scope of discovery, the merits, and issues divorced entirely from the merits. Because of their strategy, this case required litigation before not only this court but also a special master, the First District, and the
Florida Supreme Court. For these efforts, Coalition Plaintiffs received no monetary compensation.
The public, however, has received a significant benefit. This litigation uncovered a scheme to subvert the Florida Constitution. As this Court found, the scheme “might have [been] successfully concealed . . . from the public had it not been for the Plaintiffs’ determined efforts to uncover it in this case.” (Final J. at 21–22). This benefit is real and shared by every citizen in the State of Florida.
5 App. 5 Romo, et al. v. Detzner, et al., Case 2012-CA-00412 The League of Women Voters, et al v. Detzner, Case No. 2012-CA-00490
Yet this benefit is precarious, for private litigants seeking to advance the public good cannot expend their limited resources litigating every issue every time the Legislature redraws a suspect map.
On the other hand, while a public interest plaintiff has no automatic fund for litigation that defends the public interest, the Legislative Defendants and their consultant allies have seemingly unlimited financial resources. Thus, without monetary consequences, the Legislative Defendants have every incentive to litigate every issue, however small and straightforward, in every case. Delay and prolonged litigation favors the Legislative Defendants, since elections have deadlines and memories have expiration dates, and disfavors the public good. This Court can cure this imbalance by shifting fees when private litigants prevail and thereby advance the public good in an Article III, section 20 action.1 It should do so here.
This case meets all of the requirements adopted by other states for application of the private attorney general doctrine.
To begin with, Coalition Plaintiffs’ victory enforced the Florida Constitution, not a statute, namely, Article III, section 20 of the Florida Constitution. See Serrano, 569 P.2d at 1315.
Next, this lawsuit concerned one of the most important of rights – the right to vote – and protected a constitutional amendment supported by the overwhelming majority of Florida voters. As the Florida Supreme Court put it, it is “difficult to imagine a more compelling, competing government interest than the interest represented by the challengers’ article III, section 20(a) claims.” League of
Women Voters of Fla. v. Fla. House of Representatives, 132 So. 3d 135, 147 (Fla. 2013) (internal quotation marks omitted); see also Final J. at 10 (recognizing that this case “is of the highest importance, going, as it does, to the very foundation of our representative democracy”).
1 Fee shifting also fixes the free rider problem here. After all, gerrymandering is a harm to all Floridians, since it skews voting power and erodes trust in democracy. See John Hart Ely, Confounded by Cromartie: Are Racial Stereotypes Now Acceptable Across the Board or Only When Used in Support of Partisan Gerrmanders?, 56 U. Miami L. Rev. 489, 503 (2002). Yet only a few pay the bill to stop that harm. That economic issue is resolved if the Legislature must pay the fees as a consequence of its own violation of the Florida Constitution.
6 App. 6 Romo, et al. v. Detzner, et al., Case 2012-CA-00412 The League of Women Voters, et al v. Detzner, Case No. 2012-CA-00490
What’s more, the right to vote and to stop gerrymandering affects every citizen in Florida.
Even if one looks solely at the two districts that this Court specifically invalidated, the victory requires redistricting of those districts and the surrounding districts. Each Florida district contains nearly
700,000 residents, and so the redistricting of two districts affects nearly 1.4 million persons, even excluding the changes that reach nearby districts. This litigation thus benefits the many.
Last, the Legislature will not police itself, as this lawsuit has exposed. And so only private citizens can and will strive to vindicate the constitutional mandates.
In fact, other courts have concluded that the private attorney general doctrine applies to voting cases. For instance, in Hickel v. Southeast Conference, Alaska’s supreme court awarded fees to a party who challenged, as unconstitutional under the state constitution, the redistricting plan of the state legislature. 868 P.2d 919, 923 (Alaska 1994); see also Hellar, 682 P.2d at 531 (awarding fees where private parties raised a reapportionment challenge under the Idaho Constitution). And courts have awarded fees to parties contesting state laws limiting primary voting, Halloran, 115 P.3d at 549; labeled a litigant a public interest litigant when it challenged a recall vote initiative, Municipality of
Anchorage v. Citizens for Representative Governance, 880 P.2d 1058, 1061–62 (Alaska 1994); and bestowed fees to a party that challenged, as unconstitutional, a ballot initiative, Utahns for Better
Dental-Health-Davis, Inc. v. Davis Cnty. Clerk, 175 P.3d 1036, 1037 (Utah 2007). Here, Coalition
Plaintiffs strived to improve the voting process, solidify the right to vote, and destroy gerrymandering, an insidious, undemocratic practice. In prevailing, Coalition Plaintiffs bestowed the public an important benefit. As in these other cases, Coalition Plaintiffs’ attorneys’ fees should be paid by their opponents.
7 App. 7 Romo, et al. v. Detzner, et al., Case 2012-CA-00412 The League of Women Voters, et al v. Detzner, Case No. 2012-CA-00490
B. COALITION PLAINTIFFS DESERVE ATTORNEYS’ FEES BECAUSE LEGISLATIVE DEFENDANTS LITIGATED IN BAD FAITH.
This Court should award attorneys’ fees even if it declines to adopt the private attorney general doctrine. It can do so under its inherent power to impose an award of fees against a bad-faith litigant.
See Patsy v. Patsy, 666 So. 2d 1045, 1047 (Fla. 4th DCA 1996); Select Builders of Fla., Inc. v. Wong,
367 So. 2d 1089, 1091 (Fla. 3d DCA 1979). The history of this litigation, the evidence submitted at trial, and this Court’s factual findings all show bad faith by the Legislature.
After resisting the Fair Districts Amendments at every opportunity, Legislative Defendants adopted a scorched-earth litigation strategy. They first objected to an expedited discovery and trial schedule that would have resolved this case in time for the 2012 election. Legislative Defendants and their operative colleagues then vigorously resisted discovery, asserting unfounded claims of legislative privilege, associational privilege, and trade secret protection, so that they could sufficiently delay the case to argue that the 2014 midterm election must go forward under an unconstitutional map. And, up until the very eve of trial, Legislative Defendants waged a determined battle of attrition and distraction focused on Plaintiffs’ alternative maps, conducting numerous depositions, seeking voluminous paper discovery, and asserting unfounded claims of unclean hands and fraud on the court in regard to an issue that ultimately had no bearing at trial.
At trial itself, witnesses who worked for and with Legislative Defendants to violate the Florida
Constitution knowingly offered inaccurate testimony to this Court, which is enough to award attorneys’ fees. See Lathe v. Fla. Select Citrus, Inc., 721 So. 2d 1247, 1247 (Fla. 5th DCA 1998).
Repeatedly, this Court found – and the evidence showed – that witnesses refused to answer questions, created semantic distortions to avoid questions, or gave incredible explanations for their suspect actions. For example, this Court found that the political consultants denied having any say in the redistricting process, but found that at trial they “did their best to evade answering direct questions on
8 App. 8 Romo, et al. v. Detzner, et al., Case 2012-CA-00412 The League of Women Voters, et al v. Detzner, Case No. 2012-CA-00490 the subject, often using semantic distinctions to avoid admitting what they had done.” (Final J. at 12).
And this Court concluded that, despite the political consultants’ consistent protestation to the contrary, the objective evidence showed that “these consultants were submitting maps to the legislature” and showed “extensive and organized” efforts by the political consultants to do so. (Id.).
Legislative Defendants’ witnesses too proclaimed ignorance, but this Court found that the political consultants “infiltrate[d] and influence[d]” the Legislature through “cooperation and collaboration” by someone in the Legislature. (Id. at 22). When Legislative Defendants’ witnesses sought to explain damaging e-mails that had been deleted, as Kirk Pepper and Speaker Cannon tried with the e-mails they exchanged with political consultant, this Court found their explanations “very unusual and illogical” or “a stretch.” (Id. at 29–30). This is plain from the evidence, which shows that political consultants met with legislative staff to discuss ways of shielding, through privilege, communications “among political consultants, legislators, and legislative staff members.” (Id. at 24).
In truth, the evidence considered by the Court establishes the Legislature’s full complicity with the conduct of their agents – the political operatives who are paid to preserve their reelection and political power. If the opposite were true, Legislative Defendants would never have permitted the involvement of their partisan agents in the first instance. They would not have been on e-mail exchanges in which advice regarding redistricting was solicited and provided; nor would they have been at meetings where partisan strategies were discussed.
Finally, a finding of bad faith is buttressed by Legislative Defendants’ frenzied destruction of evidence. (See id. at 12). This Court described Legislative Defendants’ destruction as “systematic[],” despite their knowledge that litigation was “a moral certainty.” (Id. at 23). That destroyed evidence, moreover, was key to Coalition Plaintiffs’ case. When coupled with the contorted answers given by
Legislative Defendants’ witnesses when confronted with damaging evidence, Legislative Defendants’ destruction of e-mails allows this Court to infer bad faith. Cf. Tramel v. Bass, 672 So. 2d 78, 84 (Fla.
9 App. 9 Romo, et al. v. Detzner, et al., Case 2012-CA-00412 The League of Women Voters, et al v. Detzner, Case No. 2012-CA-00490
1st DCA 1996) (noting that severe spoliation sanction can be issued where party acted in bad faith by intentionally destroying evidence). And, having found bad faith, this Court can – and should – award attorneys’ fees. See Bitterman, 714 So. 2d at 365; Patsy, 666 So. 2d at 1047; Sheldon Greene & Assocs. v. Williams Island Assocs., 592 So. 2d 307, 307 (Fla. 3d DCA 1991) (per curiam).
C. COALITION PLAINTIFFS WILL SUBMIT AFFIDAVITS AND SUPPORTING MATERIALS DOCUMENTING THE SPECIFIC AMOUNTS OF FEES REQUESTED AT THE APPROPRIATE TIME.
If the Court determines that Coalition Plaintiffs are entitled to attorneys’ fees, or at any other time requested, Coalition Plaintiffs will submit affidavits and supporting materials documenting the specific amounts of fees incurred. See McDaniel v. Edmonds, 990 So. 2d 9, 12 (Fla. 2d DCA 2008)
(“Rule 1.100(b) does not impose a requirement that motions for attorneys’ fees and costs be accompanied by affidavits setting forth the amount of fees and costs claimed.”); Lyons v. Lyons, 486
So. 2d 77, 78–79(Fla. 2d DCA 1986) (affirming court’s determination of entitlement to attorneys’ fees and reservation, for a later date, of amount of fees due).
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V. CONCLUSION
For the reasons set forth above, Coalition Plaintiffs respectfully request that the Court find that
Coalition Plaintiffs are entitled to an award of attorneys’ fees against Legislative Defendants and set an evidentiary hearing to determine the recoverable amount of such fees.
Dated: August 11, 2014 Respectfully Submitted,
/s/Gerald E. Greenberg Gerald E. Greenberg Florida Bar No. 0440094 Adam M. Schachter Florida Bar No. 647101 GELBER SCHACHTER & GREENBERG, P.A. 1441 Brickell Avenue, Suite 1420 Miami, Florida 33131 Telephone: (305) 728-0950 Facsimile: (305) 728-0951 [email protected] [email protected] [email protected]
and
David B. King Florida Bar No.: 0093426 Thomas A. Zehnder Florida Bar No.: 0063274 Frederick S. Wermuth Florida Bar No.: 0184111 Vincent Falcone III Florida Bar No.: 0058553 KING, BLACKWELL, ZEHNDER & WERMUTH, P.A. P.O. Box 1631 Orlando, FL 32802-1631 Telephone: (407) 422-2472 Facsimile: (407) 648-0161 [email protected] (Primary) [email protected] (Primary) [email protected] (Primary) [email protected] (Primary) [email protected] (Secondary) [email protected] (Secondary)
Counsel for the Coalition Plaintiffs
11 App. 11 Romo, et al. v. Detzner, et al., Case 2012-CA-00412 The League of Women Voters, et al v. Detzner, Case No. 2012-CA-00490
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this, the 11th day of August, 2014, a true and correct copy of the foregoing was sent by electronic mail to the counsel of record listed on the attached service list.
/s/Gerald E. Greenberg GERALD E. GREENBERG
SERVICE LIST
Ronald G. Meyer Michael B. DeSanctis Lynn Hearn Jessica Ring Amunson MEYER, BROOKS, DEMMA and BLOHM, P.A. Paul Smith 131 North Gadsden Street JENNER & BLOCK, LLP Post Office Box 1547 1099 New York Ave NW, Suite 900 Tallahassee, FL 32302 Washington, DC 20001 [email protected] [email protected] [email protected] [email protected] [email protected] J. Gerald Hebert 191 Somervelle Street, #415 Counsel for Coalition Plaintiffs Alexandria, VA 22304 [email protected]
Counsel for Coalition Plaintiffs
Blaine Winship J. Andrew Atkinson Allen Winsor Ashley Davis Office of the Attorney General of Florida General Counsel The Capitol, Suite PL-01 Florida Department of State Tallahassee, FL 32399-1050 R.A. Gray Building 500 S. Bronough Street [email protected] Tallahassee, FL 32399 [email protected] [email protected] Counsel for the Attorney General [email protected] [email protected]
Counsel for Florida Secretary of State
12 App. 12 George T. Levesque Charles T. Wells General Counsel George N. Meros, Jr. THE FLORIDA SENATE Jason L. Unger 404 South Monroe Street, Suite 409 Andy Bardos Tallahassee, Florida 32399 GrayRobinson, P.A. [email protected] P.O. Box 11189 (32302) [email protected] 301 South Bronough Street, Suite 600 [email protected] Tallahassee, Florida 32301 [email protected] Michael A. Carvin [email protected] Louis K. Fisher [email protected] JONES DAY [email protected] 51 Louisiana Avenue N.W. [email protected] Washington, D.C. 20001 [email protected] [email protected] [email protected] [email protected] Daniel Nordby Raoul G. Cantero General Counsel Jason N. Zakia Florida House of Representatives Jesse L. Green 422 The Capitol WHITE & CASE LLP Tallahassee, FL 32399-1300 Southeast Financial Center, Ste. 4900 [email protected] 200 South Biscayne Boulevard [email protected] Miami, FL 33131 [email protected] Miguel De Grandy [email protected] 800 Douglas Road [email protected] Coral Gables, FL 33134 [email protected] [email protected] [email protected] Counsel for Florida House of Representatives Counsel for the Florida Senate Stephen Hogge Jon L. Mills Florida Bar No. 718238 Elan Nehleber STEPHEN HOGGE ESQ., LLC BOIES, SCHILLER & FLEXNER, LLP 117 South Gadsden Street 100 S.E. 2nd Street, Suite Tallahassee, Florida 32301 2800 [email protected]
Miami, FL 33131-2144 Victor L. Goode [email protected] Dorcas R. Gilmore [email protected] NAACP [email protected] 4805 Mt. Hope Drive Baltimore, MD 21215-3297 Karen C. Dyer [email protected] BOIES, SCHILLER & FLEXNER, LLP [email protected] 121 South Orange Ave., Suite 840 Orlando, FL 32801 Counsel for Intervenor/Defendant, NAACP [email protected]
13 App. 13
John M. Devaney Harry O. Thomas Mark Erik Elias Christopher B. Lunny PERKINS COIE, LLP Radney, Thomas, Yon & Clark, PA 700 Thirteenth Street, NW, Suite 700 Washington, D.C. 20005 301 South Bronough St., Ste. 200 [email protected] Tallahassee, FL 32301-1722 [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected]
Abha Khanna Counsel for Intervenors/Defendants Negron, Kevin J. Hamilton Suarez, Rodriguez, Pinder, Mathiri, Mount, Ryan Spear Barnes, Butler, and Wise PERKINS COIE, LLP 1201 Third Avenue, Suite 4800 Daniel C. Brown, Esq. Seattle, Washington 98101-3099 Carlton Fields, P.A. [email protected] P.O. Drawer 190 [email protected] Tallahassee, FL 32302 [email protected] [email protected] [email protected] [email protected] Counsel for the Republican Party of Florida
Mark Herron, Esq. Robert J. Telfer III, Esq. Angelina Perez, Esq. Messer, Caparello & Self, P.A. Post Office Box 1876 Tallahassee, FL 32302-1876 [email protected] [email protected] [email protected] [email protected] [email protected] [email protected]
Counsel for Romo Plaintiffs
14 App. 14 Filing # 16964268 Electronically Filed 08/11/2014 04:53:49 PM
IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT IN AND FOR LEON COUNTY, FLORIDA
RENE ROMO, an individual; BENJAMIN WEAVER, an individual; et al.,
Plaintiffs, vs. CASE NO. 2012-CA-000412
KEN DETZNER, in his official capacity as Florida Secretary of State; PAMELA JO BONDI, in her official capacity as Attorney General; et al.,
Defendants.
______/
THE LEAGUE OF WOMEN VOTERS OF FLORIDA; THE NATIONAL COUNCIL OF LA RAZA; et al.,
Plaintiffs, CASE NO. 2012-CA-000490 vs.
KEN DETZNER, in his official capacity as Florida Secretary of State; THE FLORIDA SENATE; et al.,
Defendants.
______/
ROMO PLAINTIFFS’ MOTION FOR DETERMINATION OF AVAILABILITY OF ATTORNEYS’ FEES
App. 15 Pursuant to Florida Rule of Civil Procedure 1.525, the Romo Plaintiffs respectfully
request that this Court award them attorneys’ fees against the Legislative Defendants. As set
forth more fully below, Plaintiffs have acted as private attorneys general in enforcing the
requirements of Article III, Section 20 of the Florida Constitution. The Court should therefore
exercise its inherent equitable powers to award Plaintiffs their attorneys’ fees for vindicating this
important public right. Alternatively, the Romo Plaintiffs request that this Court award attorneys’ fees because of the Legislative Defendants’ inequitable, bad-faith conduct.
BACKGROUND
On July 10, 2014, this Court entered its Final Judgment in this case, thereby ending years
of highly contentious litigation between the parties over the constitutionality of Florida’s
congressional redistricting plan. As the Court is aware, in 2010, Florida voters passed a
constitutional amendment prohibiting the Legislature from apportioning congressional districts
with “the intent to favor or disfavor a political party or an incumbent.” FLA. CONST. art. III § 20.
Despite this reform, on February 9, 2012, the Legislature enacted a congressional plan that
heavily favored the Republican majority. Plaintiffs brought this suit to enforce Article III,
Section 20 and ensure the integrity of the redistricting process.
Now, almost two and a half years after Plaintiffs first filed their complaint, during which
the Legislature obstructed efforts to obtain relevant evidence at every turn, this Court has found
that various third-party political operatives “conspire[d] to manipulate and influence the
redistricting process,” and went “to great lengths to conceal from the public their plan and their
participation in it.” Final Judgment at 21. Moreover, these operatives managed “to infiltrate and
influence the Legislature” and “to obtain the necessary cooperation and collaboration to ensure
that their plan was realized[.]” Id. at 22. In so doing, “[t]hey managed to taint the redistricting
- 2 - App. 16 process and the resulting map with improper partisan intent.” Id.. “And they might have
successfully concealed their scheme and their actions from the public had it not been for the
Plaintiffs’ determined efforts to uncover it in this case.” Id. at 21–22.
The Legislative Defendants and their partisan allies destroyed documents bearing on the
Legislature’s intent, evidence that the Florida Supreme Court held to be “necessary to vindicate
the explicit state constitutional prohibition against unconstitutional partisan political
gerrymandering and improper discriminatory intent.” League of Women Voters of Florida v.
Florida House of Representatives, 132 So. 3d 135, 138 (Fla. 2013). They did so despite knowing that “[l]itigation over their plans was a ‘moral certainty’ . . . and intent would be a key issue in any challenge.” Final Judgment at 23. Moreover, they harassed Plaintiffs with meritless
charges that Plaintiffs had “unclean hands” and committed “fraud on the court” by proposing an
alternative map as part of an expedited facial review conducted early on in the litigation. These
tactics formed part of a litigation strategy designed to intimidate Plaintiffs and hide from the
public Legislative Defendants’ intentional efforts to draw the state’s congressional map in
violation of Article III, section 20 of the Florida Constitution.
ARGUMENT
I. THIS COURT SHOULD ADOPT THE “PRIVATE ATTORNEY GENERAL” DOCTRINE AND AWARD PLAINTIFFS THEIR ATTORNEYS’ FEES
Plaintiffs respectfully request that this Court enter an order determining that they are
entitled to attorneys’ fees under the “private attorney general” doctrine. First articulated by the
California Supreme Court in Serrano v. Priest, the private attorney general doctrine is an
equitable rule which permits courts in their discretion to award attorneys’ fees to a private party
based on: “(1) the strength or societal importance of the public policy vindicated by the
litigation, (2) the necessity for private enforcement and the magnitude of the resultant burden on
- 3 - App. 17 the plaintiff, (3) the number of people standing to benefit from the decision.” Serrano v. Priest,
569 P.2d 1303, 1314 (Cal. 1977). “The purpose of the doctrine is to promote vindication of important public rights.” Arnold v. Arizona Dep't of Health Servs., 775 P.2d 521, 537 (Ariz.
1989) (en band) (quotation omitted). As such, “[t]he Doctrine is normally utilized when the government, for some reason, fails to properly enforce interests which are significant to its citizens.” Montanans for Responsible Use of Sch. Trust v. State ex rel. Bd. of Land Comm'rs,
989 P.2d 800, 811 (Mont. 1999) (citation omitted).
Serrano involved a challenge to funding inequalities among California’s various school districts. 569 P.2d at 1304. After the plaintiffs successfully argued that these inequalities violated the equal-protection guarantees of the state constitution, they moved for attorneys’ fees against the state officials that had been defendants in the suit. Id. The California Supreme Court upheld an award of these fees under the private attorney general doctrine. Id. at 1317.
As the court in Serrano explained, the plaintiffs had vindicated interests that “were constitutional in stature,” thus satisfying the first prong of the test Id. at 1315. Second, the fact
that “the burden of enforcement is not always adequately carried” by public officials such as the
state attorney general “render[s] some sort of private action imperative.” Id. at 1313. Finally,
because the suit had brought about a more equitable system for financing California’s public
schools, “the benefits flowing from this adjudication are to be widely enjoyed among the citizens
of this state.” Id. at 1315. Consequently, the court held that “the trial court acted within the
proper limits of its inherent equitable powers when it concluded that reasonable attorneys fees
should be awarded to plaintiffs’ attorneys on the ‘private attorney general’ theory.” Id.
Since Serrano, other states have adopted the private attorney general rule. Deleon
Guerrero v. Commonwealth Dep't of Pub. Safety, 2012SCC0030CIV, 2013 WL 6997105, at *9
- 4 - App. 18 (N. Mar. I. Dec. 19, 2013) (awarding attorneys’ fees under private attorney general doctrine for challenge to non-meritocratic hiring practices at public safety department); Sierra Club v. Dep't of Transp. of State of Hawai'i, 202 P.3d 1226, 1266 (Haw. 2009) (awarding attorneys’ fees to environmental group that obtained an injunction requiring state officials to prepare an environmental assessment before implementing a ferry project); Halloran v. State, Div. of
Elections, 115 P.3d 547, 549 (Alaska 2005) (challenge to requirement that voters had to affiliate with a political party before voting on ballot initiatives); Claremont Sch. Dist. v. Governor, 761
A.2d 389, 394 (N.H. 1999) (constitutional challenge to funding of public schools); Montanans for Responsible Use of Sch. Trust,, 989 P.2d at 812 (constitutional challenge to use of property held in trust for public schools); Stewart v. Utah Pub. Serv. Comm'n, 885 P.2d 759, 783 (Utah
1994) (challenge to utility regulations); Brown v. State, 565 So. 2d 585, 592 (Ala. 1990)
(challenge to convictions based on improper verification of traffic tickets); Arnold, 775 P.2d at
537 (class action seeking to compel state and county governments to provide treatment for the mentally ill); Hellar v. Cenarrusa, 682 P.2d 524, 527 (Idaho 1984) (state-constitutional challenge to legislative districts).
While Florida courts do not appear to have addressed whether to adopt the private attorney general rule, they do exercise their equitable powers to award attorneys’ fees in some circumstances not expressly authorized by statute or agreement of the parties, such as the inequitable conduct of one of the parties. See, e.g., Bitterman v. Bitterman, 714 So. 2d 356, 365
(Fla. 1998) (“The inequitable conduct doctrine permits the award of attorney’s fees where one party has exhibited egregious conduct or acted in bad faith.”); Florida Patient's Comp. Fund v.
Rowe, 472 So. 2d 1145, 1148 (Fla.1985) (inequitable conduct).
- 5 - App. 19 Of particular importance here, Florida has adopted the “common fund” doctrine, which
“in its simplest terms, provides that when litigation contributes substantial benefits to persons not party to the litigation and a fund is established from which the benefits will be paid, the persons responsible for gaining the benefit should be entitled to costs and attorney's fees paid from the fund.” Truman J. Costello, P.A. v. City of Cape Coral, 693 So. 2d 48, 49 (Fla. 2d DCA 1997); see also Tenney v. City of Miami Beach, 11 So. 2d 188, 192-93 (Fla. 1942) (“[C]ourts of equity have the inherent power to decree payment of reasonable attorneys' fees in cases where the industry and resourcefulness of counsel largely produces or creates a fund for the use and benefit of others.”). The doctrine recognizes “that courts with equity jurisdiction have the right and the power to require those benefited to share in the costs of the litigation which benefited them.”
Truman J. Costello, 693 So. 2d at 50. Although the “common fund” doctrine concerns pecuniary benefits, its underlying logic applies with equal force to the private attorney general doctrine— individual plaintiffs should not have to bear the costs of safeguarding public rights enjoyed by every citizen. For this reason, the Romo Plaintiffs request that this Court adopt the private attorney general rule and apply it to this case.
As Serrano and its progeny make clear, there could hardly be a better case for awarding attorneys’ fees under the private attorney general doctrine than this litigation. First, this Court has already recognized the tremendous societal importance of this case. As this Court wrote in its Final Judgment Order, this case “is of the highest importance, going, as it does, to the very foundation of our representative democracy.” Final Judgment at 10. “Indeed . . . , it is difficult to imagine a more compelling, competing government interest than the interest represented by the challengers' article III, section 20(a), claims.” Id. (quoting League of Women Voters of
Florida, 132 So. 3d at 147).
- 6 - App. 20 Given the significance of the public interests at stake, redistricting litigation is a textbook
example of when attorneys’ fees should be awarded to private litigants. As the Supreme Court
of Idaho has explained, “there may well be no greater public policy in a constitutional
representative democracy than the policy of insuring that the citizens are properly represented
according to the Constitution.” Hellar, 682 P.2d at 531 (quotation omitted). Like the instant suit, Hellar involved a state-constitutional challenge to the districting plan for the Idaho legislature. “If the Legislature is unconstitutionally apportioned, a pall is cast over all legislation which the Legislature adopts.” Id. Consequently, “[i]t would be hard to imagine a case which would be more appropriate for an award of attorney’s fees under the Private Attorney General
Theory than the instant case . . . .” Hellar, 682 P.2d at 527 (quotation omitted)
As Hellar demonstrates, the public interests at stake in this suit could not be greater. Cf.
Montanans for Responsible Use of Sch. Trust, 989 P.2d at 812 (adopting private attorney general doctrine where plaintiff “has litigated important public policies that are grounded in Montana's
Constitution”); Sierra Club, 202 P.3d at 1265 (awarding fees where “this litigation is responsible for establishing the principle of procedural standing in environmental law in Hawai‘i and clarifying the importance of addressing the secondary impacts of a project in the environmental review process” pursuant to Hawaii law).
Second, were it not for this suit, Florida’s congressional redistricting plan would not have been challenged, and Plaintiffs incurred significant burdens in doing so.1 As this Court found,
the political operatives who perpetrated the plot subvert the redistricting process “might have
1 As discussed below in Section II, the Legislative Defendants pursued a vexatious litigation strategy by filing numerous meritless motions and discovery requests. Responding to these imposed exorbitant costs on Plaintiffs and delayed these proceedings. Without an award of attorneys’ fees here, few others will be able to amass the resources and energy to hold the Florida Legislature accountable in future redistricting cycles.
- 7 - App. 21 successfully concealed their scheme and their actions from the public had it not been for the
Plaintiffs’ determined efforts to uncover it in this case.” Final Judgment at 21–22. The
Legislature was a willing accomplice in this effort. Final Judgment at 22. When public officials
abrogate their duty to uphold the law, “[o]nly private citizens can be expected to guard the
guardians.” Claremont Sch. Dist., 761 A.2d at 394 (quotation omitted).
Thus, private enforcement by Plaintiffs was necessary. See, e.g., Deleon Guerrero, 2013
WL 6997105, at *9 (private enforcement necessary where government agency failed to address complaint about non-meritocratic hiring practices); Sierra Club, 202 P.3d at 1266 (private enforcement necessary where state Department of Transportation “wholly abandoned [its] duty” by misapplying state law); Stewart, 885 P.2d at 783 (private enforcement necessary where state agency “charged with the responsibility of representing consumer interests” did not appear and state “opposed the ratepayers on all issues”); Hellar, 682 P.2d at 531 (“If the Plaintiffs had not filed their cause of action, [Idaho’s redistricting plan] would not have been challenged.”);
Finally, Plaintiffs have vindicated the rights of every Florida citizen by ensuring that the state’s congressional districts meet the requirements of the state constitution. See, e.g., Hellar,
682 P.2d at 531 (“The apportionment of the Idaho Legislature affects every Idaho citizen.”). As
such, this suit is a paradigmatic case for awarding attorneys’ fees under the private attorney
general doctrine.
For example, in Claremont School District, the New Hampshire Supreme Court awarded
attorneys’ fees to plaintiffs who had brought a constitutional challenge to the system for funding
public schools. 761 A.2d at 394. As the court explained, plaintiffs who vindicate important
constitutional rights confer “a significant benefit upon the general public, and it is thus the
general public that would have had to pay the fees incurred if the general public had brought the
- 8 - App. 22 suit.” Id.. “Because the benefits of this litigation flow to all members of the public, the plaintiffs
should not have to bear the entire cost of this litigation.” Id. Thus, the court found it “an
appropriate, if not compelling, case in which to exercise [its] inherent equitable powers and
award reasonable attorney’s fees to the plaintiff[.]” Id.
In bringing this suit, Plaintiffs have vindicated rights that are, in the words of this Court,
of the “highest importance” to every Florida citizen. Final Judgment at 10. Because the benefits
of this suit will redound to the benefit of the entire state, Plaintiffs should not have to bear the
cost of the attorneys’ fees incurred in this litigation. See Sierra Club, 202 P.3d at 1266
(awarding fees where “[a]ll parties involved and society as a whole would have benefitted had
the public been allowed to participate in the review process” of a harbor ferry project);
Montanans for Responsible Use of Sch. Trust, 989 P.2d at 812 (awarding fees where “litigation
has clearly benefited a large class: all Montana citizens interested in Montana's public schools”);
Hellar, 682 P.2d at 531.
In sum, Plaintiffs have met every requirement for obtaining attorneys’ fees under the
private attorney general doctrine. The right to be represented according to the Constitution is
fundamental. Were it not for this suit, this right would have languished as a result of the
misconduct of the Legislative Defendants. Finally, the entire state of Florida will benefit from the effort expended by the Plaintiffs. Therefore, Plaintiffs respectfully request that this Court
exercise its inherent equitable powers and award Plaintiffs their attorneys’ fees under the private
attorney general doctrine.
II. IN THE ALTERNATIVE, THIS COURT SHOULD AWARD PLAINTIFFS THEIR ATTORNEYS’ FEES BECAUSE OF THE LEGISLATIVE DEFENDANTS’ INEQUITABLE CONDUCT
This Court may also award Plaintiffs their attorneys’ fees because of the Legislative
Defendants’ inequitable conduct, which the Florida Supreme Court has recognized as a non-
- 9 - App. 23 statutory ground for awarding fees. “The inequitable conduct doctrine permits the award of attorney’s fees where one party has exhibited egregious conduct or acted in bad faith.”
Bitterman v. Bitterman, 714 So. 2d 356, 365 (Fla. 1998). The doctrine applies to “cases where a party acts in bad faith, vexatiously, wantonly, or for oppressive reasons.” Id. (quotation omitted). It applies to misconduct by an attorney as well as by party. Moakley v. Smallwood,
826 So. 2d 221, 226 (Fla. 2002) (“We thus hold that a trial court possesses the inherent authority to impose attorneys' fees against an attorney for bad faith conduct.”). “Bad faith may be found not only in the actions that led to the lawsuit, but also in the conduct of the litigation.” Id.
(quotation omitted). The record here demonstrates a repeated pattern of bad-faith behavior by the Legislative Defendants justifying an award of attorneys’ fees against them.
First of all, and as this Court has already found, “the legislators and the political operatives systematically deleted almost all of their e-mails and documentation [,]” despite the fact that “[l]itigation over their plans was a ‘moral certainty.’” Final Judgment at 12. While this
Court declined to impose the most severe sanctions on this conduct, see Order on Pls.’ Mot. for
Sanctions Against Legislative Defs. for Spoliation of Evidence (May 2, 2014), the fact remains
that these documents would have been highly relevant to the issue of the Legislative Defendants’
intent, an essential element of Plaintiffs’ claim under Article III, Section 20(a) of the Florida
Constitution. The destruction of these documents hindered Plaintiffs in their ability to uncover
the scheme to subvert the Florida Constitution and impaired the integrity of the judicial process.
Second, the Legislative Defendants abused the process of this litigation by asserting
baseless claims and filing frivolous motions. In four separate filings, the Legislative Defendants
contended that Plaintiffs’ alternative map introduced in support of their March 26, 2012
summary judgment motion was drawn with constitutionally impermissible, partisan intent. See
- 10 - App. 24 Mot. for Leave to Amend Answers (May 22, 2013); Amended Answer and Affirmative Defenses
to Romo Pls.’ Second Amended Compl. (July 26, 2013); Opp. to Pls.’ Mots. for Partial Summ. J.
(Dec. 6, 2013); Legislative Defs.’ Mot. for Sanctions for Pls.’ Fraud on the Court (Apr. 1, 2014).
The Legislative Defendants also harassed Plaintiffs with discovery requests related to
Plaintiffs’ intent. In total, the Legislative Defendants served the Romo Plaintiffs with four
separate sets of interrogatories, three separate sets of requests for production, and one request for
admissions, virtually all of which related to the Romo Plaintiffs’ alleged “intent.”2 The
Legislative Defendants also engaged in extensive discovery of third party organizations, such as the Democratic Congressional Campaign Committee and the National Committee for an
Effective Congress, requesting not only documents but demanding depositions. See, e.g., Romo
Pls.’ Mot. to Quash DCCC Subpoena (Nov. 4, 2013). In all, thousands of pages of discovery were produced relating to Plaintiffs’ purported “intent,” despite this Court’s determination that
Plaintiffs’ associations and motivations were irrelevant. See June 20, 2013 Hr’g Tr. 55:19-56:14,
59:24-61:7. In the end, the Legislative Defendants attempted to introduce very little of this at trial, providing further proof that they engaged in this extensive and burdensome discovery not because it was helpful to the defense of their case, but rather to harass and discourage the voters and associated entities that dared to challenge their illegal map.
Throughout their efforts to distort this litigation into an inquiry into the Plaintiffs’
intentions and motivations, the Legislative Defendants misrepresented facts to this Court and
asserted claims lacking any good-faith legal basis. They contended that Plaintiffs
2 See Pls.’ Joint Responses and Objections to the Florida House of Representatives’ First Set of Interrogatories and First Request for Production (Ex. A); Pls.’ Joint Responses and Objections to the Florida House of Representatives First Request for Admissions, Second Set of Interrogatories, and Second Request for Production (Ex. B); Defs.’ Third Set of Interrogatories and Request for Production (Ex. C); and Defs.’ Fourth Set of Interrogatories (Ex. D).
- 11 - App. 25 “misrepresented the true partisan character of their [summary judgment] map” and “repeatedly
represented to this Court that the[ir] map[] w[as] neutral and partisan.” Legislative Defs.’ Mot.
for Sanctions at 2, 33. As explained in detail in Plaintiffs’ Opposition to Legislative Defendants’
Motion for Sanctions for Fraud on the Court, Legislative Defendants’ allegations regarding
Plaintiffs’ conduct and the history of this case were simply--and verifiably--false. See Pls.’ Opp.
to Mot. for Sanctions at 13–24 (Apr. 25, 2014).
Not only did Legislative Defendants’ multiple pleadings regarding Plaintiffs’ alleged
intent lack any factual basis, they lacked a good faith legal basis as well. See Daily Gazette Co.,
Inc. v. Canady, 175 W. Va. 249, 252, 332 S.E.2d 262, 265 (1985) (“[U]nfounded claims or
defenses asserted for vexatious, wanton, or oppressive purposes place an unconscionable burden
upon precious judicial resources already stretched to their limits in an increasingly litigious
society. In reality, to the extent that these claims or defenses increase delay or divert attention
from valid claims or defenses asserted in good faith, they serve to deny the very access to the
judicial system they would claim as justification for their immunity from sanction.”) (cited in
Moakley, 826 So. 2d at 226). Legislative Defendants had no good faith legal argument that
private plaintiffs could violate the Florida Constitution based on filings made in the course of a
litigation. See Winters v. City of Oklahoma City, 740 P.2d 724 (Okla. 1987) (holding that filing
of a claim based on a purported duty to public school students where counsel knew the city had
no power or authority to operate the public school system constituted bad faith action and
justified award of attorneys’ fees as sanction) (cited in Moakley, 826 So. 2d at 226). And they
certainly had no good faith argument that dismissal is appropriate in a case regarding the public interest in Florida voters’ constitutional rights. See Romo Pls.’ Mot. for Partial Summ. J. at 11-
13 (Nov. 4, 2013). Indeed, the fact that Legislative Defendants’ own warped logic regarding
- 12 - App. 26 Plaintiffs’ alleged “fraud on the court” would necessitate a finding of their own fraud on the court, Pls.’ Opp. to Mot. for Sanctions at 11-12, indicates that their legal theory was pursued in bad faith.3
In trying to litigate Plaintiffs’ intent with respect to their alternative congressional map, the Legislative Defendants’ derailed these proceedings with a pointless, but very expensive, red- herring designed to intimidate Plaintiffs, and any other private citizen who might oppose the
Legislature, from challenging the redistricting process. For this, the Legislative Defendants should bear the costs. See, e.g., Hoegh v. Estate of Johnson, 985 So. 2d 1185, 1186 (Fla. 5th
DCA 2008) (awarding attorneys’ fees where party filed frivolous appeal that “failed to raise any justiciable issue of law”); Lathe v. Florida Select Citrus, Inc., 721 So. 2d 1247, 1247 (Fla. 5th
DCA 1998) (awarding attorneys’ fees against an attorney who lied to the trial court after he failed to appear for a deposition); Patsy v. Patsy, 666 So. 2d 1045 (Fla. 4th DCA 1996)
(awarding attorneys’ fees and costs against an attorney for the bad faith filing of a motion to disqualify counsel where “trial court found that the motion had no factual basis, was filed solely to delay the proceedings, and was a sham”).
Finally, and perhaps most fundamentally, the Legislative Defendants necessitated this suit by intentionally subverting the Florida Constitution in an effort to secure their own partisan advantage. But for this misconduct, Plaintiffs would not have incurred the expense required to go to court and vindicate a fundamental constitutional right to which all of Florida is entitled.
The Legislative Defendants should bear the costs of their own misconduct, not Plaintiffs.
3 Legislative Defendants’ hypocrisy in arguing Plaintiffs’ “fraud on the court” is brought into relief all the more in light of the Court’s Final Judgment revealing that the plan Legislative Defendants have continually represented to the Court was constitutional, in fact, was not.
- 13 - App. 27 CONCLUSION
For the foregoing reasons, the Romo Plaintiffs respectfully request that this Court determine that attorneys’ fees may be awarded against the Legislative Defendants under either the private attorney general doctrine or because of Defendants’ inequitable, bad-faith conduct.
The Romo Plaintiffs will submit affidavits and other supporting materials documenting the specific amounts of fees they have incurred if and when the Court determines that attorneys’ fees are available. See Silver Springs Props., L.L.C. v. Era Murray Realties, Inc., 874 So. 2d 712,
714 (Fla. 4th DCA 2004) (“[T]there is no requirement in the rules that a supporting affidavit be filed or served with the motion for attorney’s fees.”).
Dated: August 11, 2014 By:___/s/_Mark Herron_____ Mark Herron Florida Bar No.: 199737 Email: [email protected] Robert J. Telfer III Florida Bar No.: 128694 Email: [email protected] MESSER CAPARELLO, P.A. 2618 Centennial Place Tallahassee, FL 32308 Telephone: (850) 222-0720 Facsimile: (850) 558-0659
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)
- 14 - App. 28 Elisabeth Frost (admitted pro hac vice) PERKINS COIE LLP 700 13th St., N.W., Suite 700 Washington, D.C. 20005-3960 Tel: (202) 654-6200 Fax: (202) 654-6211 Email: [email protected] Email: [email protected] Email: [email protected] Email: [email protected] Email: [email protected]
Attorneys for the Romo Plaintiffs
- 15 - App. 29 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by
Electronic Mail this 11 August 2014 to each of the following parties on the attached service list:
__/s/ Mark Herron_____ Mark Herron MESSER CAPARELLO, P.A. 2618 Centennial Place Tallahassee, FL 32308 Telephone: (850) 222-0720 Email: [email protected]
- 16 - App. 30 SERVICE LIST
Daniel E. Nordby, General Counsel Charles T. Wells Florida House of Representatives George N. Meros, Jr. 422 The Capitol Jason L. Unger 402 South Monroe Street Andy Bardos Tallahassee FL 32399-1300 GRAY ROBINSON, P.A. Primary Email: Post Office Box 11189 [email protected] Tallahassee, FL 32302 Secondary Email: Primary Email: [email protected] [email protected] [email protected] Secondary Email: [email protected] [email protected] Primary Email: [email protected] [email protected] Secondary Email: [email protected]
Michael A. Carvin J. Gerald Hebert Louis K. Fisher J. GERALD HEBERT, P.C. JONES DAY 191 Somervelle Street, Unit 415 51 Louisiana Avenue N.W. Alexandria, VA 22304 Washington, D.C. 20001 [email protected] [email protected] [email protected]
George T. Levesque, General Counsel Benjamin Stevenson The Florida Senate Am. Civil Liberties Union Found. of Fla. 404 South Monroe Street PO Box 12723 Tallahassee, FL 32399-1100 Pensacola, Florida 325912723 Primary Email: [email protected] [email protected] Secondary Email:[email protected] [email protected]
- 17 - App. 31 Victor L. Goode Jessica Ring Amunson Dorcas R. Gilmore Michael B. DeSanctis NAACP Kristen M. Rogers 4805 Mt. Hope Drive Paul M. Smith Baltimore, MD 21215-3297 JENNER & BLOCK LLP [email protected] 1099 New York Ave, N.W., Suite 900 [email protected] Washington, D.C. 20001 [email protected] [email protected] [email protected] [email protected]
Allison J. Riggs Blaine Winship, General Counsel Anita S. Earls Allen Winsor, Solicitor General SOUTHERN COALITION FOR SOCIAL OFFICE OF THE ATTORNEY GENERAL JUSTICE The Capitol, PL-01 1415 W. Highway 54, Suite 101 Tallahassee, FL 32399 Durham, NC 27707 [email protected] [email protected] [email protected] [email protected]
Gerald E. Greenberg Jon L. Mills (Miami Office) Adam M. Schachter Karen C. Dyer (Orlando Office GELBER SCHACHTER & GREENBERG, Elan M. Nehleber (Orlando Office_ P.A. BOIES, SCHILLER & FLEXNER, LLP 1441 Brickell Avenue, Suite 1420 100 SE 2nd Street, Ste. 2800 Miami, FL 33131 Miami, FL 11313-2144 Primary Emails: 121 S Orange Avenue, Suite 840 [email protected], Orlando, 32801-3233 [email protected] Primary Emails: Secondary Email: [email protected] [email protected] [email protected] [email protected]
Raoul G. Cantero Ashley Davis Jason N. Zakia Diane Wint Jesse L. Green J. Andrew Atkinson WHITE & CASE, LLP Florida Department of State Southeast Financial Center, Ste. 4900 R.A. Gray Building 200 South Biscayne Boulevard 500 S. Bronough Street Miami, FL 33131 Tallahassee, FL 32399 Primary Emails: Telephone: (850) 245-6536 [email protected] Cell: (850) 294-8018 [email protected] [email protected]; [email protected];
- 18 - App. 32 [email protected] [email protected];
D. Kent Safriet Daniel C. Brown Thomas R. Philpot CARLTON FIELDS JORDEN BURT, P.A. HOPPING, GREEN & SAMS, P.A. 215 S. Bronough St., Ste 500 P.O. Box 6526 Tallahassee, FL 32301 Tallahassee, FL 32314 Telephone: (850) 224-1585 Telephone: (850) 222-7500 Primary e-mails: Facsimile: (850) 224-8551 [email protected] [email protected] cthompson@ cfjblaw.com [email protected] [email protected]
David B. King Ronald G. Meyer Thomas A. Zehnder Lynn Hearn Frederick S. Wermuth MEYER, BROOKS, DEMMA & BLOHM KING, BLACKWELL, ZEHNDER & 131 North Gadsden Street WERMUTH, P.A. P.O. Box 1547 P.O. Box 1631 Tallahassee, FL 32302 Orlando, FL 32802-1631 [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected]
- 19 - App. 33 Exhibit A
App. 34 IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT, IN AND FOR LEON COUNTY, FLORIDA
RENE ROMO, an individual; BENJAMIN CASE NO. 2012-CA-00412 WEAVER, an individual; WILLIAM EVERETT W ARINNER, an individual; JESSICA BARRETT, an individual; JUNE KEENER, an individual; RICHARD QUINN 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 ofFlorida,
Defendants.
THE LEAGUE OF WOMEN VOTERS OF CASE NO. 2012-CA-00490 FLORIDA, et a/.
Plaintiffs, v.
KEN DETZNER, in his official capacity as Florida Secretary of State; THE FLORIDA SENATE; MICHAEL HARIDOPOLOS, in his official capacity as President of the Florida Senate; THE FLORIDA HOUSE OF REPRESENTATIVES; and DEAN CANNON, in his official capacity as Speaker of the Florida House of Representatives,
Defendants.
ROMO PLAINTIFFS' JOINT RESPONSES AND OBJECTIONS TO THE FLORIDA HOUSE OF REPRESENTATIVES' FIRST SET OF INTERROGATORIES AND FIRST REQUEST FOR PRODUCTION
72972-0003/LEGAL23S6S8S7.1 -1- App. 35 Pursuant to Florida Rules of Civil Procedure 1.280, 1.340, and 1.350, plaintiffs Rene
Romo, Benjamin Weaver, William Everett Warinner, Jessica Barrett, June Keener, Richard
Quinn Boylan, and Bonita Agan (the "Romo Plaintiffs") hereby provide the following responses and objections to the First Set of Interrogatories and First Request for Production propounded by the Florida House of Representatives (the "Florida House").
I. FIRST SET OF INTERROGATORIES A. PRELIMINARY STATEMENT
These responses are based on the Romo Plaintiffs' current state of knowledge, understanding, and belief with respect to the matters addressed in each individual interrogatory. The Romo Plaintiffs reserve the right to supplement, amend, or otherwise modify these responses in light of any additional facts revealed through subsequent inquiry or investigation.
Because the interrogatories propounded by the Florida House generally seek information that is common to all of the Romo Plaintiffs, the Romo Plaintiffs are responding jointly instead of providing individual responses that would be duplicative of each other. If an interrogatory seeks information specific to an individual plaintiff and is not otherwise objectionable, the Romo Plaintiffs provide such information. B. GENERAL OBJECTIONS
The following general objections apply to every paragraph of the Florida House's
First Set of Interrogatories: l. The Romo Plaintiffs object to each interrogatory to the extent it seeks information, documents, or materials not within the Romo Plaintiffs' custody or control.
2. The Romo Plaintiffs object to each interrogatory to the extent it seeks materials protected by the attorney-client privilege, the work-product doctrine, or any other privilege recognized by law. Any disclosure of privileged information is inadvertent, and the
Romo Plaintiffs reserve all rights to cure any such disclosure.
-2- 72972.00031LEOAL23 S6S8S7.1 App. 36 3. The Romo Plaintiffs object to each interrogatory to the extent it is overly broad, unduly burdensome, harassing, or duplicative.
4. The Romo Plaintiffs object to each interrogatory to the extent it calls for information that is neither relevant to the subject matter of the pending action nor reasonably calculated to lead to the discovery of admissible evidence in this action.
5. The Romo Plaintiffs object to each interrogatory and to each preliminary statement, instruction, and definition to the extent it imposes obligations beyond those required by the Florida Rules of Civil Procedure and orders entered by this Court.
6. The Romo Plaintiffs object to each interrogatory to the extent it is unreasonably cumulative or duplicative or asks for information obtainable from some other source that is more convenient, less burdensome, or less expensive.
7. The Romo Plaintiffs object to each interrogatory to the extent it seeks information already in the possession of, or otherwise available to, the Florida House.
8. The Romo Plaintiffs object to each interrogatory to the extent it is vague, ambiguous, or susceptible to multiple interpretations.
9. The Romo Plaintiffs reserve all objections as to the competence, relevance, materiality, admissibility, or privileged status of any information provided in response to these interrogatories. Each of these general objections is hereby specifically incorporated into each of the specific answers set forth below. In addition to the foregoing general objections, the Romo
Plaintiffs further object to the Florida House's First Set of Interrogatories as indicated below. C. SPECIFIC OBJECTIONS AND RESPONSES INTERROGATORY NO.1: Identify by name, job title, and work address every person who had any responsibility, formal or informal, for assisting, advising, or consulting with respect to the development of the proposed plan you submitted to the Court on March 26, 2012 and, for each such individual, please briefly describe the nature of those
-3- 72972-00031LEGAL23S658S7 .I App. 37 responsibilities. This request includes without limitation members of the Florida Democratic
Party and any staff members, consultants, experts, map drawers, and other individuals who assisted or advised you or others with respect to: (a) technical assistance; {b) map drawing
(including map drawing software); (c) proposed or draft maps; (d) goals, issues, or objectives to be achieved (or avoided); or (e) any other issue relating to the redistricting process.
ANSWER: The Romo Plaintiffs object to this interrogatory on the ground that it does not seek information relating to any non-privileged matter that is relevant to any party's claims or defenses in this matter. To the extent this interrogatory seeks the identities or opinions of non-testifying expert witnesses, the Romo Plaintiffs also object on the ground that such information is protected by the work-product doctrine and is not discoverable.
INTERROGATORY NO.2: Separately identify each district that you contend was drawn with (i) the intent to favor or disfavor a political party or incumbent, (ii) the intent or result of denying or abridging the equal opportunity of racial or language minorities to participate in the political process, or (iii) the intent or result of diminishing the ability of racial or language minorities to elect representatives of their choice and, with respect to each such district, state with specificity all facts that support your contention. To the extent you contend that your proposed alternative improves any district, please explain why in detail.
ANSWER: The Romo Plaintiffs object to this interrogatory on the ground that it seeks information that is already available to the Florida House. Specifically, the districts the
Romo Plaintiffs are challenging, along with the factual bases for those challenges, are clearly identified in the Ramo Plaintiffs' Second Amended Complaint. Those challenges are further described in detail in the Romo Plaintiffs' opening and reply briefs in support of their motion for summary judgment. The response below is not intended to alter or displace any statement of fact or contention of law set forth in those papers.
The Ramo Plaintiffs also object to this interrogatory on the ground that the phrase
"improves any district" is vague and susceptible to multiple interpretations. The Romo
-4- 72972-0003/LEGAL23S6S8S7.1 App. 38 Plaintiffs will respond with the understanding that this interrogatory seeks to identify the districts that the Romo Plaintiffs contend were drawn with "the intent to favor or disfavor a political party or incumbent," "the intent or result of denying or abridging the equal opportunity of racial or language minorities to participate in the political process," or "the intent or result of diminishing the ability of racial or language minorities to elect representatives of their choice" and, with respect to each of those districts (if applicable), an explanation of how the Romo Plaintiffs' proposed alternative districts cure the identified legal deficiencies.
Expressly reserving and without waiving those specific objections and the general objections in§ I.B above, the Romo Plaintiffs answer as follows:
Congressional District 5 was drawn with the intent to favor the Republican Party and an incumbent, as demonstrated by 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 of the district in relation to the incumbent's legal residence (including the fact that the incumbent's residence is captured in the top right corner of the District's northernmost appendage and the fact that the district line between
Congressional District 5 and its neighbor to the east stops just short of another incumbent's residence), and the large percentage of the incumbent's prior district (80.7%) that is contained in the district. Notably, the percentage of the incumbent's prior district contained in District 5 is far greater than the average for the 2012 Congressional Plan.
Congressional District 5 was drawn with the intent to deny or abridge the equal opportunity of racial and language minorities to participate in the political process and has the result of denying or abridging the equal opportunity of racial minorities to participate in the political process. Specifically, the district unnecessarily packs more blacks into the
District than is necessary to protect the minority group's ability to elect its preferred candidate, and it was drawn without a proper functional analysis of minority voting rights.
-5- 72972-00031LEGAL23565857 .1 App. 39 The Legislature could have drawn a far more compact district that, although it would have decreased the percentage of black population, would not have diminished the minority group's ability to elect its preferred candidates in Congressional District 5, and would not have stripped black voters from surrounding districts and thereby abridged their influence in those surrounding districts. Additionally, because Congressional District 5 was drawn without a proper functional analysis of minority voting rights, it was drawn with the intent to diminish the ability of racial and language minorities to elect representatives of their choice.
The equivalent district in the Romo Plaintiffs' proposed alternative map (District 3). would cure the legal deficiencies in Congressional District 5 by preserving black voters' ability to elect their candidates of choice, while complying with the tier-two principles in the process. The Romo Plaintiffs' proposed alternative map would make the least departure from
Florida's stated redistricting criteria needed to prevent retrogression.
The constitutional deficiencies of Congressional District 5 have ripple effects across the 2012 Congressional Plan, in particular in districts adjacent to Congressional District 5.
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, 10, 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 blacks in Congressional District 5 strips members of this minority group from surrounding
Congressional Districts 3, 4, 6, 7, 10, and 11, 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 of minority voting rights in District 5 holds true for the districts surrounding District 5 as well. Congressional District 13 was drawn with the intent to favor the Republican Party and an incumbent, as demonstrated by the Legislature's failure to utilize existing political and geographical subdivision boundaries where feasible, the packing of Democrats into
-6- 72972-00031LEOAL.23565857 .I App. 40 neighboring Congressional District 14, and the large percentage of the incumbent's prior district (83.5%) that is contained in the district. 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 ofLegislative
Apportionment I 176, 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 District 13 would have made that district too favorable for Democrats, and no longer a safe seat for the Republican incumbent.
Congressional District 13 was drawn with the intent to deny or abridge the equal opportunity of racial and language minorities to participate in the political process and has the result of denying or abridging the equal opportunity of racial or language minorities to participate in the political process. 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. The removal of minority voters from
Congressional District 13 without a proper functional analysis reflects the intent to diminish the ability of racial and language minorities to elect representatives of their choice, and the result is that minority voters will be unable to elect representatives of their choice in
Congressional District 13.
Congressional District 14 was drawn with the intent to favor the Republican Party, as demonstrated by, among other things, the failure to utilize existing political and geographical
subdivision boundaries where feasible and the packing of Democrats into the District.
Congressional District 14 also was drawn with the intent to deny or abridge the equal
opportunity of racial and language minorities to participate in the political process and has
the result of denying or abridging the equal opportunity of racial or language minorities to
participate in the political process. In addition to ignoring political and geographical
-7- 72972-00031LEGAL23S65857 .I App. 41 boundaries, the district packs minority voters into a single district without a proper functional analysis of minority voting rights. Additionally, the Legislature has provided no analysis of whether black and Hispanic voters in the area vote cohesively. Congressional District 14 also was drawn with the intent to diminish the ability of racial and language minorities to elect representatives of their choice. Specifically, it was drawn to remove minority voters from
Congressional District 13 and to pack them into Congressional District 14 without a proper functional analysis of minority voting rights.
The Ramo Plaintiffs' proposed alternative map creates a district entirely in
Hillsborough County, District 11, that a functional analysis shows will elect minority preferred candidates, as the minority-preferred candidates (Sink, Obama, Davis) would have won that district in every recent election, and by significant margins compared to each candidate's share of the statewide vote. In this plan, minority voters would have an opportunity to elect their candidates of choice in both District 10 and District 11.
INTERROGATORY NO. 3: Separately identify each district that you contend is either non-compact or does not, where feasible, utilize existing political and geographical boundaries and, with respect to each such district, state with specificity all facts that support your contention. To the extent you contend that your proposed alternative improves any district, please explain why in detail.
ANSWER: The Ramo Plaintiffs object to this interrogatory on the ground that it seeks information that is already available to the Florida House. Specifically, the districts the
Ramo Plaintiffs are challenging, along with the factual bases for those challenges, are clearly identified in the Ramo Plaintiffs' Second Amended Complaint. Those challenges are further described in detail in the Ramo Plaintiffs' opening and reply briefs in support of their motion for summary judgment. The response below is not intended to alter or displace any statement of fact or contention of law set forth in those papers.
-8- 72972-0003/LEGAU3S6S8S7.1 App. 42 The Romo Plaintiffs also object to this interrogatory on the ground that the phrase
"improves any district" is vague and susceptible to multiple interpretations. The Romo
Plaintiffs will respond to this interrogatory with the understanding that it seeks to identify the
districts that the Romo Plaintiffs contend are "non-compact" or do not "where feasible,
utilize existing political and geographical boundaries" and, with respect to each of those
districts (if applicable), an explanation of how the Romo Plaintiffs' proposed alternative
district cures the identified legal deficiencies.
Expressly reserving and without waiving those specific objections and the general
objections in § I.B above, the Romo Plaintiffs answer as follows:
Congressional District 5 is not compact, as demonstrated by a visual inspection of the
District and quantitative measures. 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 ofLegislative Apportionment 1176 (Fla. Sup. Court Mar. 9,
2012). The compactness score of District 5 also decreases 36% from its predecessor district
in the prior congressional map. The Florida Legislature itself does not assert that District 5 is
compact. The violation of the compactness standard is not justified by adherence to other constitutional requirements.
Congressional District 5 fails to utilize existing political and geographical boundaries where feasible, as the district unnecessarily cuts through eight counties. The northernmost scraps of District 5 are sprinkled through the middle of Duval County; the District proceeds to scrape the easternmost part of Clay County; it then makes a sharp left turn to cut across
Putnam County and extend into Alachua County, before making a hard right turn to grab the eastern portions of Marion and Lake Counties; and finally District 5 extends a crooked arm into Seminole County before shooting southward into Orange County. The district also divides up the major cities of Jacksonville and Gainesville before squeezing through
-9- 72972..0003/LEGAL23 565857 .I App. 43 population centers to grab portions of Orlando. It further divides the municipalities of
Apopka, Orange Park, and Sanford. The district follows a variety of boundaries-including
St. Johns River, Doctors Lake, various county lines, US-17, and Pine A venue. Furthermore, the district cuts voting tabulation districts, which will require county officials to redraw many precincts as a result, and by a wide margin.
The Romo Plaintiffs' District 3 is much more compact than the Legislature's enacted
District 5. Upon visual inspection, the Romo Plaintiffs' District 3 spans less surface area and, unlike District 5, contains no narrow tendrils that are barely connected to one another. In addition to being more visually compact, the compactness measurements of the Romo
Plaintiffs' District 3 are significantly better. Romo District 3 has a Reock score of0.26, nearly three times District 5's score of0.09. Furthermore, by keeping District 3 entirely in
North Florida, the Romo Plan allows for significant compactness gains in the Orlando area.
The Romo Plaintiffs' District 3 also better adheres to political and geographical boundaries. This proposed district includes seven counties, one fewer than the 2012
Congressional Plan. The borders of Romo District 3 are comprised entirely of county lines and voting tabulation districts. Moreover, unlike the enacted District 5, Romo District 3 does not extend awkwardly into Orange County; as a result, the Romo Plan's configuration ensures that Orange County is divided between only two districts, as opposed to five districts in the enacted map.
Congressional District 5's lack of compactness and failure to utilize existing political subdivision and geographical boundaries where feasible creates similar problems in surrounding Congressional Districts 3, 4, 6, 7, 10, and 11. For instance, due in part to District
5's meandering path, Orange County, which was divided among four congressional districts in the 2002 plan, is divided into five congressional districts in the enacted plan. In addition,
Congressional District 5's awkward shape forms a gash in the middle of District 4, slices up county and municipal boundaries in neighboring District 7, and cuts into the center of
-10- 72972-0003/LEGAL23S6S8S7 .I App. 44 Orlando, nearly severing the eastern part of Congressional District 10 from the rest of the
district. Congressional District 10 also 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.
Congressional District 13 fails to utilize existing political and geographical
boundaries where feasible, including the St. Petersburg municipal boundary and Tampa Bay.
For instance, the city of St. Petersburg contains just less than 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 between Congressional Districts 13 and 14, even though doing so required ignoring the obvious presence of Tampa Bay.
Congressional District 14 fails to utilize existing political and geographical boundaries where feasible, including Tampa Bay, the Pinellas and Hillsborough County
boundaries, and the St. Petersburg and Tampa municipal boundaries. District 14 stretches across Tampa Bay's huge expanse 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. This means that District 14, instead of being wholly contained in
Hillsborough County, also includes a small segment of Pinellas County, even though the counties' economic and cultural features are quite different.
The Ramo Plan, by contrast, keeps St. Petersburg whole. The Ramo Plan creates a
district entirely in Hillsborough County, District 11, that a functional analysis shows will
elect minority-preferred candidates, as the minority-preferred candidates (Sink, Obama,
Davis) would have won that district in every recent election, and by significant margins
compared to each candidate's share of the statewide vote.
INTERROGATORY NO. 4: Identify any experts you have retained, and describe
the subjects they will address.
-11- 72972..()0031LEGAL23565857.1 App. 45 ANSWER: The Romo Plaintiffs will respond to this interrogatory with the
understanding that it seeks "to identify each person whom the other party expects to call as
an expert witness at trial" and "the subject matter on which the expert is expected to
testify[.]" Fla. R. Civ. P. 1.280(b)(4)(a)(i). To the extent this interrogatory seeks the
identities or opinions of non-testifying expert witnesses, the Romo Plaintiffs object on the
ground that such information is protected by the work-product doctrine and is not
discoverable.
Expressly reserving and without waiving that specific objection and the general objections in § I.B above, the Romo Plaintiffs state as follows:
At this time, the Romo Plaintiffs have not identified any expert witnesses who are
expected to testify at trial. The Romo Plaintiffs will comply with all applicable rules and orders of this Court regarding disclosure of expert witnesses.
INTERROGATORY NO. 5: Identify each document or other exhibit that you may
offer at the trial of this case. ANSWER: Expressly reserving and without waiving the general objections in § I.B
above, the Romo Plaintiffs state as follows:
At this time, the Romo Plaintiffs have not identified any documents or other exhibits
they may offer at trial. The Romo Plaintiffs will comply with all applicable rules and orders
of this Court regarding disclosure of trial exhibits.
INTERROGATORY NO. 6: Identify each person whom you intend to call as a
witness at the trial of this case. ANSWER: Expressly reserving and without waiving the general objections in § I.B
above, the Romo Plaintiffs state as follows:
-12- 72972-0003/LEGAL23565857.1 App. 46 At this time, the Romo Plaintiffs have not identified any persons they intend to call as
witnesses at trial. The Romo Plaintiffs will comply with all applicable rules and orders of this
Court regarding disclosure of witnesses.
INTERROGATORY NO. 7: Identify by name, job title, and work or home address every person who participated in investigating, collecting, or preparing information or documents in response to these interrogatories and request for production of documents.
ANSWER: The Romo Plaintiffs object to this interrogatory to the extent it seeks
information protected by the attorney-client privilege or the work-product doctrine.
Expressly reserving and without waiving that specific objection and the general objections in § I.B above, the Romo Plaintiffs state as follows:
The individual Romo Plaintiffs and counsel for the Romo Plaintiffs participated in
investigating, collecting, or preparing information or documents in response to the Florida
House's First Set of Interrogatories and First Request for Production.
INTERROGATORY NO.8: Describe in detail your association with the Florida
Democratic Party or its agents or employees as it relates to this litigation, including (but not
limited to) any agreements you have with the Florida Democratic Party or its agents or
employees related to this litigation (whether related to fees, costs, or other matters), and any
information provided to you from the Florida Democratic Party or its agents or employees.
ANSWER: The Romo Plaintiffs object to this interrogatory on the ground that it does
not seek information relating to any non-privileged matter that is relevant to any party's
claims or defenses in this matter. The Romo Plaintiffs also object to this interrogatory on the ground that Florida courts have ruled that parties are not required to disclose the information
sought in this interrogatory because, among other things, requiring disclosure would violate
the right to organize and associate and improperly interfere with a party's ability to pursue
-13- 72972-0003/LEGAL235658S7 .I App. 47 litigation. The Romo Plaintiffs further object to this interrogatory on the ground that the phrases "your association," "any agreements you have," and "any information provided to you" are vague and susceptible to multiple interpretations.
INTERROGATORY NO.9: Identify each and every lawsuit to which you have been a party over the past ten years and describe the subject matter of each.
ANSWER: The Romo Plaintiffs object to this interrogatory on the ground that it does not seek information relating to any non-privileged matter that is relevant to any party's claims or defenses in this matter. The Romo Plaintiffs also object to this interrogatory on the ground that it is overly broad, unduly burdensome, and harassing.
INTERROGATORY NO. 10: List each home address you have had for the past five years and the time period during which you lived there.
ANSWER: The Romo Plaintiffs object to this interrogatory to the extent it does not seek information relating to any non-privileged matter that is relevant to any party's claims or defenses in this matter. The Romo Plaintiffs also object to this interrogatory to the extent it is overly broad, unduly burdensome, and harassing.
Expressly reserving and without waiving those specific objections and the general objections in§ 1.8 above, the Romo Plaintiffs state as follows:
The current home addresses for each of the Romo Plaintiffs are as follows:
Name: Rene Romo Home address: 626 Caroline Street Key West, FL
Name: Benjamin Weaver Home address: 1649 Stockton Street Jacksonville, FL
Name: William Everett Warinner Home address: 306 NE 5th A venue Gainesville, FL
-14- 72972-0003/LEGAL23 565857 .I App. 48 Name: Jessica Barrett Home address: 217 Palm A venue Auburndale, FL
Name: June Keener Home address: 9424 Via Segovia New Port Richey, FL
Name: Richard Quinn Boylan Home address: 2950 Alton Drive St. Pete Beach, FL
Name: Bonita Agan Home address: 251 Driftwood Road SE St. Petersburg, FL
INTERROGATORY NO. 11: Are you a registered voter? If so, on what date did you become a registered voter, and which elections have you voted in during the past five years?
ANSWER: The Romo Plaintiffs object to this interrogatory to the extent it does not seek information relating to any non-privileged matter that is relevant to any party's claims or defenses in this matter. The Romo Plaintiffs also object to this interrogatory to the extent it is overly broad, unduly burdensome, and harassing.
Expressly reserving and without waiving those specific objections and the general objections in § I.B above, the Romo Plaintiffs state as follows:
The dates on which each Romo Plaintiff registered to vote are as follows:
Name: Rene Romo Date: March 28, 2000 Name: Benjamin Weaver Date: July 15, 2005 Name: William Everett Warinner Date: August 3, 1963 Name: Jessica Barrett Date: November 8, 2001 Name: June Keener Date: October 10, 1988
-15- 72972.0003/LEGAL23565857.1 App. 49 Name: Richard Quinn Boylan Date: May 22,2004
Name: Bonita Agan Date: September 26, 1984
INTERROGATORY NO. 12: Explain how you became involved as a Plaintiff in
this case, including whether and by whom you were solicited to participate. As part of your
answer, explain and describe any agreements you have with anyone else regarding this
litigation, including (but not limited to) agreements regarding payment of fees and costs.
ANSWER: The Ramo Plaintiffs object to this interrogatory on the ground that it
does not seek information relating to any non-privileged matter that is relevant to any party's
claims or defenses in this matter. The Ramo Plaintiffs also object to this interrogatory on the
ground that Florida courts have ruled that parties are not required to disclose the information
sought in this interrogatory because, among other things, requiring disclosure would violate
the right to organize and associate and improperly interfere with a party's ability to pursue
litigation. The Ramo Plaintiffs further object to this interrogatory on the ground that it seeks
information protected by the attorney-client privilege and the work-product doctrine.
INTERROGATORY NO. 13: Identify each data set (including election data,
incumbency addresses, party registration, and related data) used in drawing the proposed map you have submitted to the Court.
ANSWER: The Ramo Plaintiffs object to this interrogatory on the ground that it does
not seek information relating to any non-privileged matter that is relevant to any party's claims or defenses in this matter. To the extent this interrogatory seeks the identities or
opinions of non-testifying expert witnesses, the Ramo Plaintiffs also object on the ground
that such information is protected by the work-product doctrine and is not discoverable. The
Ramo plaintiffs further object to this interrogatory on the ground that the terms "data set,"
"election data," "incumbency addresses," "party registration," "related data," and "used" are
-16- 72972-0003/LEGAL23S6S8S7 .I App. 50 vague and susceptible to multiple interpretations.
Expressly reserving and without waiving those specific objections and the general
objections in § I.B above, the Romo Plaintiffs state as follows:
The proposed map relies on the following publicly available 2010 Census data:
1. Excel Spreadsheet titled "Census Place.csv"
2. Excel Spreadsheet titled "County Subdivision.csv"
3. Excel Spreadsheet titled "County.csv"
4. Excel Spreadsheet titled "Voting District.csv"
5. Excel Spreadsheet titled "Census Block.csv"
Also referred to in drawing the proposed map was a compilation of incumbent
addresses, derived from publicly available data.
II. FIRST REQUEST FOR PRODUCTION A. PRELIMINARY STATEMENT
These responses are based on the Romo Plaintiffs' current state of knowledge,
understanding, and belief with respect to the matters addressed in each individual request.
The Romo Plaintiffs reserve the right to supplement, amend, or otherwise modify these
responses in light of any additional facts revealed through subsequent inquiry or
investigation.
Because the request for production propounded by the Florida House generally seeks
documents that are common to all of the Romo Plaintiffs, the Romo Plaintiffs are responding jointly instead of providing individual responses that would be duplicative of each other. If a
· request for production seeks documents specific to an individual plaintiff and is not
otherwise objectionable, the Romo Plaintiffs will provide such documents. When producing
any document, the Romo Plaintiffs will identify the individual plaintiff with which the
document is associated.
-17- 72972-00031LEGAL23S6S8S7. I App. 51 B. GENERAL OBJECTIONS
The following general objections apply to every paragraph of the Florida House of
Representatives' First Request for Production:
I. The Romo Plaintiffs object to each request for production to the extent it
seeks information, documents, or materials not within the Romo Plaintiffs' custody or control.
2. The Romo Plaintiffs object to each request for production to the extent it seeks materials protected by the attorney-client privilege, the work-product doctrine, or any other privilege recognized by law. Any disclosure of privileged information is inadvertent, and the Romo Plaintiffs reserve all rights to cure any such disclosure.
3. The Romo Plaintiffs object to each request for production to the extent it is overly broad, unduly burdensome, harassing, or duplicative.
4. The Romo Plaintiffs object to each request for production to the extent it calls for information which is neither relevant to the subject matter of the pending action nor reasonably calculated to lead to the discovery of admissible evidence in this action.
5. The Romo Plaintiffs object to each request for production and to each preliminary statement, instruction, and definition to the extent it imposes obligations beyond those required by the Florida Rules of Civil Procedure and orders entered by this Court.
6. The Romo Plaintiffs object to each request for production to the extent it is
unreasonably cumulative or duplicative or asks for information obtainable from some other source that is more convenient, less burdensome, or less expensive.
7. The Romo Plaintiffs object to each request for production to the extent it seeks documents already in the possession of, or otherwise available to, the Florida House. 8. The Romo Plaintiffs object to each request for production to the extent it is vague, ambiguous, or susceptible to multiple interpretations.
-18- 72972.(){)03/LEGAL23 565857.1 App. 52 9. The Romo Plaintiffs object to each request for production to the extent it is
unduly burdensome or expensive.
10. The Romo Plaintiffs reserve all objections as to the competence, relevance, materiality, admissibility, or privileged status of any documents provided in response to these requests.
Each of these general objections is hereby specifically incorporated into each of the specific answers set forth below. In addition to the foregoing general objections, the Romo
Plaintiffs further object to the Florida House's First Request for Production as indicated below. C. SPECIFIC OBJECTIONS AND RESPONSES
REQUEST FOR PRODUCTION NO. 1: Produce all documents between or among
Plaintiffs, the Florida Democratic Party and/or any of their employees, staff, agents, vendors, or consultants relating to redistricting, proposed maps (including portions of maps), or the redistricting process generally.
RESPONSE: The Romo Plaintiffs object to this request on the ground that it does not seek information relating to any non-privileged matter that is relevant to any party's claims or defenses in this matter. To the extent this request seeks the identities or opinions of non-testifying expert witnesses, the Romo Plaintiffs also object on the ground that such information is protected by the work-product doctrine and is not discoverable. The Romo
Plaintiffs further object to this request on the ground that Florida courts have ruled that parties are not required to disclose the documents sought in this request because, among other things, requiring disclosure would violate the right to organize and associate and improperly interfere with a party's ability to pursue litigation. The Romo Plaintiffs also object to this request on the ground that it is overly broad, unduly burdensome, and harassing.
-19- 72972.()003/LEGAL23S6SBS7 .I App. 53 Expressly reserving and without waiving those specific objections and the general
objections in§ II.B above, the Romo Plaintiffs will produce responsive documents within
their custody and control that are not privileged or otherwise protected from discovery.
REQUEST FOR PRODUCTION NO. 2: To the extent not already produced in
response to Request for Production No. I, please produce all written or recorded
communications by, between, or among any of the individuals identified in response to
Interrogatory No. I relating to redistricting, proposed maps (including portions of maps), or
the redistricting process generally.
RESPONSE: The Romo Plaintiffs object to this request on the ground that it does
not seek information relating to any non-privileged matter that is relevant to any party's
claims or defenses in this matter. To the extent this request seeks the identities or opinions of
non-testifying expert witnesses, the Romo Plaintiffs also object on the ground that such
information is protected by the work-product doctrine and is not discoverable. The Romo
Plaintiffs further object to this request on the ground that Florida courts have ruled that
parties are not required to disclose the documents sought in this request because, among other things, requiring disclosure would violate the right to organize and associate and
improperly interfere with a party's ability to pursue litigation. The Romo Plaintiffs also
object to this request on the ground that it is overly broad, unduly burdensome, and
harassing.
Expressly reserving and without waiving those specific objections and the general
objections in § II.B above, the Romo Plaintiffs will produce responsive documents within
their custody and control that are not privileged or otherwise protected from discovery.
REQUEST FOR PRODUCTION NO.3: To the extent not already produced in
response to Requests for Production Nos. I or 2, please produce all documents that relate to
-20- 72972..()0031LEGAL235658S7 .I App. 54 communications between or among your employees, staff, agents, vendors, or consultants and any of the following individuals relating to redistricting, official or alternative maps
(including portions of maps), or the redistricting process generally: (i) any incumbent member or candidate for the Florida Legislature or Congress; (ii) the Florida Democratic
Party or any of their employees, staff, agents, vendors, or consultants; (iii) the Democratic
National Committee or any of its employees, staff, agents, vendors, or consultants; or
(iv) any agent, employee, or volunteer of FairDistrictsFlorida, Inc., or FairDistricts Now, Inc.
RESPONSE: The Romo Plaintiffs object to this request on the ground that it does not seek information relating to any non-privileged matter that is relevant to any party's claims or defenses in this matter. To the extent this request seeks the identities or opinions of non-testifying expert witnesses, the Romo Plaintiffs also object on the ground that such information is protected by the work-product doctrine and is not discoverable. The Romo
Plaintiffs further object to this request on the ground that Florida courts have ruled that parties are not required to disclose the documents sought in this request because, among other things, requiring disclosure would violate the right to organize and associate and improperly interfere with a party's ability to pursue litigation. The Romo Plaintiffs also object to this request on the ground that it is overly broad, unduly burdensome, and harassing.
Expressly reserving and without waiving those specific objections and the general objections in § II.B above, the Romo Plaintiffs will produce responsive documents within their custody and control that are not privileged or otherwise protected from discovery.
REQUEST FOR PRODUCTION NO. 4: Produce all documents reflecting or relating to all work performed by any expert retained by you in connection with redistricting, including expert reports, draft reports, notes prepared by the expert, and maps prepared by the expert.
-21- 72972.0003/LEGAU3565857.I App. 55 RESPONSE: The Romo Plaintiffs will respond to this request with the understanding that it seeks documents "reflecting or relating to all work performed by any expert" who the Romo Plaintiffs "expect[] to call as an expert witness at trial." Fla. R. Civ. P.
1.280(b)(4)(a)(i). To the extent this request seeks documents reflecting or relating to work performed by non-testifying expert witnesses, the Romo Plaintiffs object on the ground that such information is protected by the work-product doctrine and is not discoverable.
Expressly reserving and without waiving those specific objections and the general objections in§ II.B above, the Romo Plaintiffs will produce responsive documents within their custody and control that are not privileged or otherwise protected from discovery.
REQUEST FOR PRODUCTION NO.5: Produce all documents identified in or related to your response to Interrogatory 13.
RESPONSE: Expressly reserving and without waiving those specific objections and the general objections in § II.B above, the Romo Plaintiffs will produce responsive documents within their custody and control that are not privileged or otherwise protected from discovery .
. Dated this 4th day of May, 2012.
Marc ias (admitted pro hac vice) Kevin J. Hamilton (admitted pro hac v ce) John Devaney (admitted pro hac vice) Abha Khanna (admitted pro hac vice) 700 13th St. N.W., Suite 600 Washington, D.C. 20005-3960 Tel: (202) 654-6200 Fax: (202) 654-6211 E-mail: [email protected] E-mail: [email protected] E-mail: [email protected] E-mail: [email protected]
-22- 72972-0003/LEGAL23565857.1 App. 56 Joseph W. Hatchett (Bar# 34486) 106 E. College Ave., Suite 1200 Tallahassee, FL 32301 Tel: (850) 224-9634 Fax: (850) 222-0103 E-mail: [email protected]
Jon L. Mills (Bar# 148286) Karen C. Dyer (Bar# 716324) 121 S. Orange Ave., Suite 840 Orlando, FL 32801-3233 Tel: (305) 539-8400 Fax: (305) 539-1307 E-mail: [email protected] E-mail: [email protected]
Counsel for Plaintiffs Rene Romo, Benjamin Weaver, Jessica Barrett, June Keener, Richard Quinn Boylan, William Everett Warinner, and Bonita Agan
-23- 72972-Q0031LEOAL23S6S8S7.1 App. 57 RENEROMO
STATE OF FLORIDA
COUNTY OF ffi~lY\ { ()-<._ Sworn to (or affirmed) nnd subscribed before me this 1L dny of ('I~ , 2012, by RENE \ R~(~Fiorldo) (Print, Type, or Stamp Commissioned Name ofNotnry Public)
Personally Known---- OR Produced Identification
Type ofldentification Produced __F_e- ___-::J:_· _[) ______
App. 58 CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by electronic mail and U.S. Mail to each of the following parties:
Counsel for tl1e Secretary ofState
Daniel E. Nordby, General Counsel Ashley E. Davis, Assistant General Counsel Florida Department of State R. A. Gray Building 500 South Bronough Street, Suite 100 Tallahassee, FL 32399-0250 [email protected] Ashley [email protected]
Counsel for tile Florida Senate
Michael A. Carvin Louis K. Fisher Jones Day 51 Louisiana A venue N. W. Washington, DC 20001 (202) 879-7643 [email protected] [email protected]
Andy Velosy 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]
-24- 72972-00031LEOAL23565857 .I App. 59 Counsel for Common Cause Florida, tlte National Council Of La Raza and tlte League Of Women Voters Of Florida, Inc.
Ronald Gustav Meyer Meyer, Brooks, Demma & Blohm P.O. Box 1547 Tallahassee, FL 32302 (850) 878-5212 [email protected]
Jessica Ring Amunson Michael B. DeSanctis Kristen M. Rogers Paul M. Smith Jenner & Block, LLP 1099 New York Ave, N.W., Suite 900 Washington, DC 20001 (202) 639-6000 [email protected] [email protected] [email protected] [email protected]
J. Gerald Hebert J. Gerald Hebert, P.C. 191 Somervelle Street, Unit 415 Alexandria, VA 22304 (703) 628-4673 [email protected]
Counsel for lite Honorable Pamela Jo Bondi
Blaine Winship General Counsel Office of the Attorney General The Capitol, PL-0 1 Tallahassee, FL 32399 (850) 414-3300 Blaine. [email protected]
Counsel for lite Florida House ofRepresentatives
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]
-25- 72972-0003/LEGAU3S6S8S7.1 App. 60 George T. Levesque General Counsel Florida House of Representatives 422 The Capital Tallahassee, FL 32399 (850) 488-0451 [email protected]
Charles Talley Wells Gray Robinson, P .A. 301 E. Pine Street, Suite 1400 Orlando, FL 32801 (407) 843-8880; Fax (850) 222-3494 Charles. [email protected]
George N. Meros, Jr. Jason L. Unger Allen C. Winsor Charles Bums Upton, II Gray Robinson, P.A. P.O. Box 11189 Tallahassee, FL 32302 (850) 577-9090; Fax (850) 577-3311 [email protected] jason. [email protected] allen. [email protected] [email protected]
Counsel for tlte Florida State Conference ofNAACP Brancl1es
Stephen Hogge 117 South Gadsden Street Tallahassee, FL 32301 [email protected]
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]
-26- 72972-COOJILEGAU3565857.1 App. 61 Victor L. Goode Dorcas R. Gilmore NAACP 4805 Mt. Hope Drive Baltimore, MD 21215-3297 [email protected] [email protected] Counsel for Bill Negron et al.
Harry 0. Thomas Christopher B. Lunny Radey Thomas Yon & Clark, P.A. 301 S. Bronough Street, Suite 200 Tallahassee, FL 323 01-1722 [email protected] [email protected]
Dated this 4th day of May, 2012.
-27- 72972.0003/LEGAU3S6S8S7 .I App. 62 Exhibit B
App. 63 IN THE CIRCUIT COURT FOR THE SECOND JUDICIAL CIRCUIT IN AND FOR LEON COUNTY, FLORIDA
RENE ROMO, an individual; BENJAMIN WEAVER, an individual; e/ a/,
Plaintiffs,
vs. CASE NO. 2012-CA-00412
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; eta/.,
Plaintiffs,
VS. CASE NO. 2012-CA-00490
KEN DETZNER, in his official capacity as Florida Secretary of State; THE FLORIDA SENATE, eta/.,
Defendants. ______!
ROMO PLAINTIFFS' JOINT RESPONSES AND OBJECTIONS TO THE FLORIDA HOUSE OF REPRESENTATIVES' FIRST REQUEST FOR ADMISSIONS, SECOND SET OF INTERROGATORIES, AND SECOND REQUEST FOR PRODUCTION
Pursuant to Florida Rules of Civil Procedure 1.280, 1.340, 1.350, and 1.370, plaintiffs
Rene Romo, Benjamin Weaver, William Everett Warinner, Jessica Barrett, June Keener,
Richard Quinn Boylan, and Bonita Agan (the "Romo Plaintiffs") hereby provide the following responses and objections to the First Request for Admissions, Second Set of
Interrogatories, and Second Request for Production propounded by Defendant the Florida
House of Representatives (the "Florida House").
-1- App. 64 I. FIRST REQUEST FOR ADMISSIONS
A. PRELIMINARY STATEMENT
These responses are based on the Romo Plaintiffs' current state of knowledge, understanding, and belief with respect to the matters addressed in each individual request for admission. The Romo Plaintiffs reserve the right to supplement, amend, or otherwise modify these responses in light of any additional facts revealed through subsequent inquiry or investigation.
Because the requests for admission propounded by the Florida House generally seek information that is common to all of the Romo Plaintiffs, the Romo Plaintiffs are responding jointly instead of providing individual responses that would be duplicative of each other. If a request for admission seeks information specific to an individual plaintiff and is not otherwise objectionable, the Romo Plaintiffs provide such information.
B. GENERAL OBJECTIONS
The following general objections apply to every paragraph of the Florida House's
First Request for Admissions:
I. The Romo Plaintiffs object to each request for admission to the extent it seeks information not within their knowledge or not ascertainable based on a reasonable inquiry.
2. The Romo Plaintiffs object to each request for admission to the extent it seeks materials protected by the attorney-client privilege, the work-product doctrine, or any other privilege recognized by law. Any disclosure of privileged information is inadvertent, and the
Romo Plaintiffs reserve all rights to cure any such disclosure.
3. The Romo PlaintiiTs object to each request for admission to the extent it is overly broad, unduly burdensome, harassing, or duplicative.
4. The Romo Plaintiffs object to each request for admission to the extent it calls for information that is neither relevant to the subject matter of the pending action nor reasonably calculated to lead to the discovery of admissible evidence in this action.
-2- App. 65 5. The Romo Plaintiffs object to each request for admission to the extent it seeks
information beyond that which the Florida House is permitted to seek under the Florida Rules of Civil Procedure and orders entered by this Court.
6. The Romo Plaintiffs object to each request for admission to the extent it is vague, ambiguous, or susceptible to multiple interpretations.
7. The Romo Plaintiffs reserve all objections as to the competence, relevance, materiality, admissibility, or privileged status of any information provided in response to these interrogatories.
C. Sl'ECIFIC OBJECTIONS AND RESPONSES
REQUEST FOR ADMISSION NO. 1: Please admit that the map you submitted to the Court was prepared by the National Committee for an Effective Congress (NCEC).
ANSWER: The Romo Plainti!Ts object to this request on the ground that it docs not seek information relating to any non-privileged matter that is relevant to any party's claims or defenses in this matter. The issue in this litigation is whether the Legislature's enacted map complies with the Florida Constitution, Article III, Section 20. The identities of individuals who prepared the map that the Romo Plaintiffs submitted with their summary judgment briefing is not reasonably calculated to lead to the discovery of admissible evidence. The Romo Plaintiffs also object to this request on the ground that Florida cow1s have ruled that parties are not required to disclose information where requiring disclosure would violate the right to organize and associate and improperly interfere with a party's ability to pursue litigation. The Romo Plaintiffs further object to this request on the ground that the phrase "prepared by" is vague and susceptible to multiple interpretations.
REQUEST FOR ADMISSION NO. 2: Please admit that the map you submitted to the Court was prepared by the Florida Democratic Party or its agent or contractor (NCEC).
ANSWER: The Romo Plaintiffs object to this request on the ground that it does not
-3- App. 66 seek information relating to any non-privileged matter that is relevant to any party's claims or defenses in this matter; the issue in this litigation is whether the Legislature's enacted map complies with the Florida Constitution, Article III, Section 20. The identities of individuals who prepared the map that the Romo Plaintiffs submitted with their summary judgment briefing is not reasonably calculated to lead to the discovery of admissible evidence. The
Romo Plaintiffs also object to this request on the ground that Florida courts have ruled that parties are not required to disclose information where requiring disclosure would violate the right to organize and associate and improperly interfere with a party's ability to pursue litigation. The Romo Plaintiffs further object to this request on the ground that the phrase
"prepared by" is vague and susceptible to multiple interpretations.
REQUEST FOR ADMISSION NO.3: Please admit that your attorneys are being paid or will be paid in whole or in part by the Florida Democratic Party or its agent, including any committee or tax-exempt organization at1iliated with or under the control of the Florida Democratic Party.
ANSWER: The Romo Plaintitl's object to this request on the ground that it does not seek information relating to any non-privileged matter that is relevant to any party's claims or defenses in this matter. The Romo Plaintiffs also object to this request on the ground that
Florida courts have ruled that parties arc not required to disclose the information sought in this request because, among other things, requiring disclosure would violate the right to organize and associate and improperly interfere with a party's ability to pursue litigation.
The Romo Plaintiffs further object to this request on the ground that the phrases "affiliated with" and "under the control of" are vague and susceptible to multiple interpretations.
REQUEST FOR ADMISSION NO.4: Please admit that you do not challenge any district not specifically identified in your Answers to the First Set oflnterrogatories
-4- App. 67 propounded to you by the Florida House of Representatives (i.e., you challenge no districts other than Districts 3, 4, 5, 6, 7, I 0, II, 13 and 14).
ANSWER: Denied. The Romo Plaintiffs are challenging the lawfulness of the congressional map in its entirety. With respect to individual districts, the Romo Plaintiffs are challenging, at a minimum, the districts identified in their answers to the House's First Set of
Interrogatories. However, discovery in this matter is ongoing, and the Romo Plaintiffs' reserve their right to challenge other districts based on additional facts they may obtain in discovery. Accordingly, the information presently known to or readily obtainable by the
Romo PlaintitTs is insufficient to enable them to admit this request at this juncture.
REQUEST FOR ADMISSION NO.5: Please admit that the basis and grounds for your challenge to the districts specifically identified in your Answers to the First Set of
Interrogatories propounded to you by the Florida House ofReprescntatives (i.e., Districts 3,
4, 5, 6, 7, 10, II, 13 and 14) are solely limited to those grounds stated in your Motion for
Summary Judgment.
ANSWER: Denied. Discovery in this matter is ongoing, and the Romo Plaintiffs may discover additional evidence related to the Florida Legislature's violation of the Florida
Constitution, Article III, Section 20. Accordingly, the information presently known to or readily obtainable by the Romo Plaintiffs is insufficient to enable them to admit this request at this juncture.
II. SECOND SET OF INTERROGATORIES
A. PRELIMINARY STATEMENT
These responses are based on the Romo Plaintiffs' current state of knowledge, understanding, and belief with respect to the matters addressed in each individual intenogatory. The Romo Plaintiffs reserve the right to supplement, amend, or otherwise modify these responses in light of any additional facts revealed through subsequent inquiry
-5- App. 68 or investigation.
Because the interrogatories propounded by the Florida House generally seek
information that is common to all of the Ramo Plaintiffs, the Ramo Plaintiffs are responding jointly instead of providing individual responses that would be duplicative of each other. If an interrogatory seeks information specific to an individual plaintiff and is not otherwise objectionable, the Ramo Plaintiffs provide such information.
B. GENERAL OBJECTIONS
The following general objections apply to every paragraph of the Florida House's
Second Set oflnterrogatories:
I. The Ramo Plaint ills object to each interrogatory to the extent it seeks information, documents, or materials not within the Ramo Plaintiffs' custody or control.
2. The Ramo Plaintiffs object to each interrogatory to the extent it seeks materials protected by the attorney-client privilege, the work-product doctrine, or any other privilege recognized by law. Any disclosure of privileged information is inadvertent, and the
Ramo Plaintiffs reserve all rights to cure any such disclosure.
3. The Ramo Plaintiffs object to each interrogatory to the extent it is overly broad, unduly burdensome, harassing, or duplicative.
4. The Ramo Plaintitrs object to each interrogatory to the extent it calls for information that is neither relevant to the subject matter of the pending action nor reasonably calculated to lead to the discovery of admissible evidence in this action.
5. The Ramo Plaintiffs object to each interrogatory and to each preliminary statement, instruction, and definition to the extent it imposes obligations beyond those required by the Florida Rules of Civil Procedure and orders entered by this Court.
6. The Ramo Plaintiffs object to each interrogatory to the extent it is unreasonably cumulative or duplicative or asks for information obtainable from some other source that is more convenient, less burdensome, or less expensive.
-6- App. 69 7. The Romo Plaintiffs object to each interrogatory to the extent it seeks
information already in the possession of, or otherwise available to, the Florida House.
8. The Romo Plaintiffs object to each interrogatory to the extent it is vague,
ambiguous, or susceptible to multiple interpretations.
9. The Romo Plaintiffs object to each interrogatory to the extent that the Romo
Plaintiffs have already answered interrogatories which were identical or substantially similar
in the Romo Plaintiffs' Joint Responses and Objections to the Florida House of
Representatives' First Set oflnterrogatories and First Request for Production previously
served on Defendants on May 5, 2012 (the "First Responses").
I 0. The Romo Plaintiffs reserve all objections as to the competence, relevance,
materiality, admissibility, or privileged status of any information provided in response to
these interrogatories.
Each of these general objections is hereby specifically incorporated into each of the
specific answers set forth below. In addition to the foregoing general objections, the Romo
Plaintifl's further object to the Florida House's Second Set of Interrogatories as indicated
below.
C. SPECIFIC OBJECTIONS AND RESPONSES
INTERROGATORY NO. l: Identify all partial and complete draft congressional maps you or your representatives drafted or reviewed, and any analyses of them.
ANSWER: The Romo Plaintiffs object to this interrogatory because it does not seek information relating to any non-privileged matter that is relevant to any party's claims or de tenses in this matter. The issue in this litigation is whether the map prepared and enacted by the Florida Legislature complies with the Florida Constitution, Article Ill, Section 20.
The Romo Plaintiffs further object to this interrogatory on the ground that the phrase "your representatives" is vague and susceptible to multiple interpretations. To the extent that this intenogatory seeks to identify "all partial and complete draft congressional maps" prepared
-7- App. 70 by the Florida Legislature and reviewed by the Romo Plaintitls or their "representatives," and any analyses thereof, the Romo Plaintifts object on the grounds that it seeks information protected by the attorney-client privilege or the work-product doctrine.
INTERROGATORY NO.2: If you denied Request for Admission No.4 of the
House's First Request for Admissions served concurrently with these interrogatories, please list each other district you challenge and specify in detail the basis for your challenge to each district:
ANSWER: The Romo Plaintitls object to this interrogatory for the reasons stated in response to Request for Admission No. 4. Specifically, discovery in this matter is ongoing and Defendants have sought a protective order in response to several of the Romo Plaintit1s' discovery requests. Additional evidence related to the Florida Legislature's violation of the
Florida Constitution, Article III, Section 20, may be discovered. Accordingly, the information presently known to or readily obtainable by the Romo Plaintifts is insufTicient to enable them to respond to this interrogatory at this juncture.
INTEIU~OGATORY NO.3: If you denied Request for Admission No.5 of the
House's First Request for Admissions served concurrently with these interrogatories, please specify in detail, by district, all bases and grounds for your challenge to each district identified in your Answers to the First Set of Interrogatories propounded to you by the
Florida House of Representatives and each district identified in your Answer to Interrogatory
No.2 above.
ANSWER: The Romo Plaintiffs object to this interrogatory for the reasons stated in response to Request for Admission No. 5. Specifically, discovery in this matter is ongoing and Defendants have sought a protective order in response to several of the Ramo Plaintifts' discovery requests. Additional evidence related to the Florida Legislature's violation of the
Florida Constitution, Article Ill, Section 20, may be discovered. Accordingly, the
-8- App. 71 information presently known to or readily obtainable by the Ramo Plaintiffs is insufficient to
enable them to respond to this interrogatory at this juncture.
INTERROGATORY NO.4: Identify all districts in the Ramo Map that you
contend are compact for purposes of Article III, Section 20(b) of the Florida Constitution.
ANSWER: The Ramo Plaintiffs object to this interrogatory because it does not seek
information relating to any non-privileged matter that is relevant to any party's claims or
defenses in this matter. The issue in this litigation is whether the map prepared and enacted
by the Florida Legislature complies with the Florida Constitution, Article Ill, Section 20.
Expressly reserving and without waiving those specific objections and general
objections in Section Il.B above, as well as those objections set forth in the Ramo Plaintiffs'
First Responses, the Ramo Plaintiffs answer that, in response to Intel1'ogatory No. 3 in the
Florida House's First Set oflnterrogatories, the Ramo Plaintiffs identified the districts on the
Legislature's map that the Ramo Plaintiffs contend "are 'non-compact' or do not 'where
feasible, utilize existing political and geographical boundaries' and, with respect to each of
those districts (if applicable), an explanation of how the Ramo Plaintiffs' proposed alternative district cures the identified legal deficiencies." Ramo Plaintiffs' First Responses 9.
INTERROGATORY NO.5: Identify all districts in the Romo Map that you contend utilize existing political and geographical boundaries, where feasible.
ANSWER: The Ramo Plaintiffs object to this interrogatory because it does not seek information relating to any non-privileged matter that is relevant to any party's claims or defenses in this matter. The issue in this litigation is whether the map prepared and enacted by the Florida Legislature complies with the Florida Constitution, Article III, Section 20.
Expressly reserving and without waiving those specific objections and general objections in Section ll.B above, as well as those objections set forth in the Ramo Plainti!Ts'
-9- App. 72 First Responses, the Romo Plainti!Ts answer that, in response to Interrogatory No. 3 in the
Florida House's First Set oflnterrogatories, the Romo Plaintiffs identified the districts on the
Legislature's map that the Romo Plaintiffs contend "are 'non-compact' or do not 'where feasible, utilize existing political and geographical boundaries' and, with respect to each of those districts (if applicable), an explanation of how the Romo Plaintiffs' proposed alternative district cures the identified legal deficiencies." Romo Plaintiffs' First Responses 9.
III. SECOND REQUEST FOR J>RODUCTION A. PRELIMINARY STATEMENT
These responses are based on the Romo Plaintiffs' current slate of knowledge, understanding, and belief with respect to the matters addressed in each individual request.
The Romo Plaintiffs reserve the right to supplement, amend, or otherwise modify these responses in light of any additional facts revealed through subsequent inquiry or investigation.
Because the request for production propounded by the Florida House generally seeks documents that are common to all of the Romo Plainti!Ts, the Romo Plaintiffs are responding jointly instead of providing individual responses that would be duplicative of each other. If a request for production seeks documents specific to an individual plainti!T and is not otherwise objectionable, the Romo Plaintiffs will provide such documents. When producing any document, the Romo Plaintiffs will identify the individual plainti!Twith which the document is associated.
B. GENERAL OBJECTIONS
The following general objections apply to every paragraph of the Florida House of
Representatives' Second Request for Production:
-I 0- App. 73 I. The Romo Plaintiffs object to each request for production to the extent it
seeks information, documents, or materials not within the Romo Plaintiffs' custody or control.
2. The Romo PlaintilTs object to each request for production to the extent it seeks materials protected by the attorney-client privilege, the work-product doctrine, or any other privilege recognized by law. Any disclosure of privileged information is inadvertent, and the Romo Plaintiffs reserve all rights to cure any such disclosure.
3. The Romo Plaintiffs object to each request for production to the extent it is overly broad, unduly burdensome, harassing, or duplicative.
4. The Romo Plaintifts object to each request for production to the extent it calls for information which is neither relevant to the subject matter of the pending action nor reasonably calculated to lead to the discovery of admissible evidence in this action.
5. The Romo Plaintiffs object to each request for production and to each preliminary statement, instruction, and definition to the extent it imposes obligations beyond those required by the Florida Rules of Civil Procedure and orders entered by this Court.
6. The Romo Plaintiffs object to each request for production to the extent it is unreasonably cumulative or duplicative or asks for information obtainable from some other source that is more convenient, less burdensome, or less expensive.
7. The Romo Plaintiffs object to each request tor production to the extent it seeks documents already in the possession of, or otherwise available to, the Florida House.
8. The Romo Plaintiffs object to each request for production to the extent it is vague, ambiguous, or susceptible to multiple interpretations.
-11-
App. 74 9. The Romo Plaintiffs object to each request for production to the extent it is
unduly burdensome or expensive.
I 0. The Romo Plaintiffs object to each request for production to the extent that the Romo Plaintiffs have already responded to requests which were identical or substantially similar in the Romo Plaintiffs' First Responses.
II. The Romo Plaintiffs reserve all objections as to the competence, relevance, materiality, admissibility, or privileged status of any documents provided in response to these requests.
Each of these general objections is hereby specifically incorporated into each of the specific answers set f011h below. In addition to the foregoing general objections, the Romo
Plainti!Ts further object to the Florida House's Second Request for Production as indicated below.
C. SPECIFIC OBJECTIONS AND RESPONSES
REQUEST FOR PRODUCTION NO.1: Produce all partial and complete draft maps you or your representatives drafted or reviewed, and any analyses of them.
RESPONSE: The Romo Plaintiffs object to this request because it does not seek information relating to any non-privileged matter that is relevant to any party's claims or defenses in this matter. The issue in this litigation is whether the map prepared and enacted by the Florida Legislature complies with the Florida Constitution, Article III, Section 20.
The Romo Plaintiffs fm1her object to this request on the ground that the phrase "your representatives" is vague and susceptible to multiple interpretations. To the extent that this request seeks to identify "all partial and complete draft maps" prepared by the Florida
Legislature reviewed by the Romo Plaintiffs or their "representatives," and any analyses thereof, the Romo Plaintiffs object on the grounds that it seeks information protected by the
-12-
App. 75 attorney-client privilege or the work-product doctrine. Additionally, the Romo Plaintiffs object that any draft maps they may have produced, in addition to being protected from discovery on the grounds cited above, -..voulcl also be protected under Fla. R. Civ. P.
1.280(b)(4)(B).
·immy E-mail: [email protected] Secondal')' E-mail: [email protected] Akerman Senterfitt JOHN DEVANEY (admitted pro hac vice) I 06 East Co ll ege Avenue Primary E-mail: Suite 1200 J Dcvaney@Perki nscoie.com Tallahassee, Florida 3230 I Secondary E-mail: Telephone: (850) 224-9634 S Yarborough@perki nscoie.com Telecopier: (850) 222-0 I 03 ELISABETH C. FROST (admitted pro hac vice) THOMAS A. RANGE Primary E-mail: Primary E-mail: [email protected] [email protected] Secondary E-mai I: Secondm·}' E-mail: [email protected] [email protected] Akerman Senterfitt PERKINS COTE LLP I 06 East Co ll ege J\ venue 700 13th St. , N. W. , Suite 600 Suite 1200 Washington, D.C. 20005-3960 Tallahassee, Florida 3230 I Tel: (202) 654-6200 Telephone: (850) 224-9634 Fax: (202) 654-62 11 Telecopier: (8 50) 222-0 I 03 KEVIN .1. HAMILTON (admitted pro hac vice) Primary E-mail: K I Iami! [email protected] Secondary E-mail: N Puree! l@perki nscoie.com
ABIlA KHA NNA (admitted pro hac vice) Primwy E-mail: [email protected] Secondan' E-mail: [email protected]
NOAH PURCELL (admitted pro hac vice) Primary E-mai l:
-13-
App. 76 N Purcell@perk inscoie.com Secondary E-mai I: [email protected]
PERKINS COIE LLP 120 I Third Ave, Suite 4900 Seattle, Washington 98101-3099 Tel: (206) 359-8000 Fax: (206) 359-9000
Altomeysjor Romo PlaintijJ's
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true,fft corr furnished by Electronic Mail this '28da),..._' o:.:...:l:__..' ~4"-~,L---L.. parties on the attached service list. tlseph
-14-
App. 77 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 ItA. Gray Building Allen Winsor 500 S. Bronaugh Street, Suite I 00 Charles B. Upton II Tallahassee FL 32399 GRAY ROBINSON, P.A. Primwy Email: Post Office Box 11189 [email protected] Tallahassee, FL 32302 Secondwy Email: Primary Email: [email protected] [email protected] S lacey. small @dos.m xll o ri da. com [email protected] Primwy Email: CB. U [llon@gray-robi nson.com [email protected] Secondary Email: SecondWJ' Email: [email protected] [email protected] [email protected] S lacey. sma II @dos.m y_tl o rid a. com Primwy Email: jason. [email protected] allen. [email protected] SecondWJ' Email: [email protected] [email protected] 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 33134 Washington, D.C. 20001 mad@degrandy_law.com [email protected] lkfisher@ionesda v. com 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 Primmy Email: [email protected] george.levesgue@my_tloridahouse.gov SecondWJ' Email: [email protected] velma. cartcrialm v llo ri daho use. !:!OV
-15- App. 78 Peter M. Dunbar Ronald G. Meyer Cynthia Skelton Tunnicliff Lynn Hearn PENNINGTON, MOORE, WILKINSON, MEYER, BROOKS, DEMMA & BLOHM BELL & DUNBAR, P.A. 131 North Gadsden Street 215 South Monroe Street, 2d Floor P.O. Box 1547 Tallahassee, FL 3230 I Tallahassee, FL 32302 [email protected] [email protected] [email protected] [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 3230 I Christopher Deal [email protected] JENNER & BLOCK LLP 1099 New York Ave, N.W., Suite 900 Washington, D.C. 20001 [email protected] [email protected] [email protected] QSlll [email protected] cdealriV.ienner.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 [email protected] Tampa, FL 33606 cbur;·@burrandsm it hI a w. com Bruce V. Spiva, Esq. Allison J. Riggs THE SPIV A LAW FIRM PLLC Anita S. Earls 1776 Massachusetts Avenue, N.W. SOUTHERN COALITION FOR SOCIAL Suite 601 JUSTICE Washington, D.C. 20036 1415 W. Highway 54, Suite I 01 [email protected] Durham, NC 27707 [email protected] ani talillsoutherncoal it ion. org Timothy D. Osterhaus, Deputy Solicitor Victor L. Goode General Dorcas R. Gilmore Blaine Winship, General Counsel NAACP OFFICE OF THE ATTORNEY GENERAL 4805 Mt. Hope Drive The Capitol, PL-0 I Baltimore, MD 21215-3297 Tallahassee, FL 32399 [email protected] [email protected] [email protected] B Iaine. wi nsh inlillm vfloridal erral. com
Gerald E. Greenberg Harry 0. Thomas Adam M. Schachter Christopher B. Lunny GELBER SCHACHTER & GREENBERG, RADLEY THOMAS YON & CLARK, P.A. P.A. 30 I S. Bronaugh Street, Suite 200 1441 Brickell A venue, Suite 1420 Tallahassee, FL 32301-1722 Miami, FL 33131 Primwy Email: Primary Emai/s: hthomaslillradev law. com
-16- App. 79 [email protected], Secondmy Email: [email protected] [email protected] [email protected] Primm)' Email: [email protected] [email protected] Secondwy Email: SecondmJ' Email: [email protected] [email protected]
Jon L. Mills George N. Meros, Jr. Karen C. Dyer Jason L. Unger Elan M. Nehleber Allen C. Winsor 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 Primmy Emails: Primm)' Emails: [email protected] [email protected] [email protected] [email protected] [email protected] Allen. [email protected] [email protected]
-17-
App. 80 Exhibit C
App. 81 IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT IN AND FOR LEON COUNTY, FLORIDA
RENE ROMO, et al.,
Plaintiffs, v. Case No. 2012-CA-000412
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, et al.,
Plaintiffs, v. Case No. 2012-CA-000490
KEN DETZNER, in his official capacity as Florida Secretary of State, et al.,
Defendants. ______/
THE FLORIDA HOUSE OF REPRESENTATIVES’ THIRD SET OF INTERROGATORIES AND THIRD REQUEST FOR PRODUCTION TO ROMO PLAINTIFFS
Pursuant to Florida Rule of Civil Procedure 1.350, the Florida House of Representatives requests that Plaintiffs, Rene Romo, Benjamin Weaver, William Everett Warinner, Jessica Barrett,
June Keener, Richard Quinn Boylan, and Bonita Agan, provide written answers in response to the following interrogatories and produce, and permit inspection or copying of the following documents within thirty (30) days of service (or such shorter time frame as the Court may fix by court order), at GrayRobinson, P.A., 301 South Bronough Street, Suite 600, Tallahassee, Florida.
\255036\8 - # 330717 v1 App. 82 INSTRUCTIONS
A. In answering these interrogatories and requests for production, each Plaintiff should respond separately. Additionally, you are required to furnish all information and documents available to you (other than privileged or protected documents), including information and documents in the possession of your agents, representatives, attorneys, investigators, investigators of your attorneys, and any other person or persons acting on your behalf.
B. In answering these interrogatories and these requests for production, the following instructions and definitions apply:
1. “Alternative Maps” means Romo Map A and Romo Map B, attached as
Exhibits 2 and 3 to the Expert Report of Stephen Ansolabehere, dated February 14, 2013.
2. “Concerning” means, without limitation, embodying, mentioning, or relating to, regarding, or respecting, directly or indirectly, the subject matter identified in a particular request for production.
3. “Document” shall be construed in its broadest sense under the Florida
Rules of Civil Procedure, and includes any original, reproduction, or copy of any kind of written or documentary material, or drafts thereof, including, but not limited to, correspondence, memoranda, intra-office communications, e-mails, notes, journals, calendars, day-timers, appointment books, diaries, contract documents, publications, calculations, estimates, vouchers, minutes of meetings, invoices, reports, studies, computer files (including information stored on disk drives, computer tapes, or diskettes), photographs, negatives, slides, video or audio tapes, telegrams, notes of telephone conversations, and notes of any oral communications.
C. If a document called for by a request for production is known to have existed, but cannot be located now, please identify the document and state:
1. Whether the document has been in your possession, custody, or control;
\255036\8 - # 330717 v1 2 App. 83 2. When and where the document was known to be in your possession, custody, or control; and
3. In whose possession, custody, or control such document may be found or, as applicable, whether the document has been destroyed or has otherwise ceased to exist.
D. If any privilege or protection is claimed as to any document called for by these requests for production, identify the type of privilege or protection claimed, and identify and describe all documents to which the privilege or protection is claimed with specificity sufficient to enable Defendant to assess the applicability of the privilege or protection and determine whether the issue of production should be brought before the Court. If you claim any such privilege or protection, you should nevertheless answer or respond to the request for production to the extent that it calls for documents as to which you do not claim a privilege or protection.
E. After each document request, state whether all documents responsive to that request are being produced and indicate on each produced document (or in some other convenient manner) the number of the document request or requests to which it is responsive.
F. These interrogatories and requests for production of documents require supplemental responses if you learn your initial responses are incomplete.
\255036\8 - # 330717 v1 3 App. 84 INTERROGATORIES
INTERROGATORY NO. 1: Identify by name, job title, and employer or affiliation every person who had any responsibility, formal or informal, for assisting, advising, or consulting with respect to the preparation or development of the Alternative Maps, and, for each such person, describe the nature of those responsibilities. This request includes without limitation all members of the Florida Democratic Party; NCEC Services, Inc.; the Democratic
National Committee; the Democratic Congressional Campaign Committee; and the National
Democratic Redistricting Trust (and any staff members, consultants, experts, map drawers, attorneys, and other representatives of the foregoing) who assisted or advised you or others with respect to (i) technical assistance; (ii) map drawing (including map drawing software); (iii) preliminary drafts and alterations; (iv) goals or objectives to be achieved or avoided; or (v) any other matter relating to the Alternative Maps.
INTERROGATORY NO. 2: Explain in detail why the Democratic Congressional
Campaign Committee and National Democratic Redistricting Trust participated in the creation, review, or approval of the map offered in support of your motion for summary judgment, how their participation was arranged or initiated, their role with respect to the map, and the purpose or objectives of their participation.
INTERROGATORY NO. 3: Identify all individuals who reviewed or examined the
Alternative Maps prior to their disclosure on February 15, 2013 (including the individual Romo
Plaintiffs; representatives of the Florida Democratic Party, the Democratic National Committee, the Democratic Congressional Campaign Committee, or the National Democratic Redistricting
Trust; elected officials and their aides; and LOWV Plaintiffs or any person on their behalf), and
\255036\8 - # 330717 v1 4 App. 85 state each individual’s role with respect to the Alternative Maps and the purpose or objectives of
their participation.
INTERROGATORY NO. 4: State in detail the circumstances that led to the Romo
Plaintiffs’ retention of Jowei Chen and Jonathan Rodden as expert witnesses in this matter (e.g., who initiated their introduction, and whether Chen and Rodden at any point disclosed their prior discussions with the House regarding their potential retention by the House in this matter).
\255036\8 - # 330717 v1 5 App. 86 ______RENE ROMO
STATE OF FLORIDA
COUNTY OF ______
Sworn to (or affirmed) and subscribed before me this ___ day of ______, 2013, by
RENE ROMO.
______(Signature of Notary Public - State of Florida)
(Print, Type, or Stamp Commissioned Name of Notary Public)
Personally Known ______OR Produced Identification______
Type of Identification Produced ______
\255036\8 - # 330717 v1 6 App. 87 ______BENJAMIN WEAVER
STATE OF FLORIDA
COUNTY OF ______
Sworn to (or affirmed) and subscribed before me this ___ day of ______, 2013, by
BENJAMIN WEAVER.
______
(Signature of Notary Public - State of Florida)
(Print, Type, or Stamp Commissioned Name of Notary Public)
Personally Known ______OR Produced Identification______
Type of Identification Produced ______
\255036\8 - # 330717 v1 7 App. 88 ______WILLIAM EVERETT WARINNER
STATE OF FLORIDA
COUNTY OF ______
Sworn to (or affirmed) and subscribed before me this ___ day of ______, 2013, by
WILLIAM EVERETT WARINNER.
______(Signature of Notary Public - State of Florida)
(Print, Type, or Stamp Commissioned Name of Notary Public)
Personally Known ______OR Produced Identification______
Type of Identification Produced ______
\255036\8 - # 330717 v1 8 App. 89 ______JESSICA BARRETT
STATE OF FLORIDA
COUNTY OF ______
Sworn to (or affirmed) and subscribed before me this ___ day of ______, 2013, by
JESSICA BARRETT.
______(Signature of Notary Public - State of Florida)
(Print, Type, or Stamp Commissioned Name of Notary Public)
Personally Known ______OR Produced Identification______
Type of Identification Produced ______
\255036\8 - # 330717 v1 9 App. 90 ______JUNE KEENER
STATE OF FLORIDA
COUNTY OF ______
Sworn to (or affirmed) and subscribed before me this ___ day of ______, 2013, by
JUNE KEENER.
______(Signature of Notary Public - State of Florida)
(Print, Type, or Stamp Commissioned Name of Notary Public)
Personally Known ______OR Produced Identification______
Type of Identification Produced ______
\255036\8 - # 330717 v1 10 App. 91 ______RICHARD QUINN BOYLAN
STATE OF FLORIDA
COUNTY OF ______
Sworn to (or affirmed) and subscribed before me this ___ day of ______, 2013, by
RICHARD QUINN BOYLAN.
______(Signature of Notary Public - State of Florida)
(Print, Type, or Stamp Commissioned Name of Notary Public)
Personally Known ______OR Produced Identification______
Type of Identification Produced ______
\255036\8 - # 330717 v1 11 App. 92 ______BONITA AGAN
STATE OF FLORIDA
COUNTY OF ______
Sworn to (or affirmed) and subscribed before me this ___ day of ______, 2013, by
BONITA AGAN.
______(Signature of Notary Public - State of Florida)
(Print, Type, or Stamp Commissioned Name of Notary Public)
Personally Known ______OR Produced Identification______
Type of Identification Produced ______
\255036\8 - # 330717 v1 12 App. 93 REQUEST FOR PRODUCTION
REQUEST FOR PRODUCTION NO. 1: Produce all written or recorded communications concerning the Alternative Maps. This request includes, but is not limited to, communications sent or received by:
(i) Any plaintiff in this case;
(ii) NCEC Services, Inc.;
(iii) The Florida Democratic Party;
(iv) The Democratic Congressional Campaign Committee;
(v) The National Democratic Redistricting Trust;
(vi) The Democratic National Committee;
(vii) FairDistrictsFlorida, Inc., or FairDistricts Now, Inc.;
(viii) Any member or candidate for the Florida Legislature or Congress;
(ix) Any person identified in response to Interrogatory No. 1; or
(x) Any employee, staff member, agent, attorney, consultant, or representative
of any of the foregoing.
REQUEST FOR PRODUCTION NO. 2: To the extent not produced in response to Request for Production No. 1, produce all documents concerning the Alternative Maps, including, but not limited to, all studies, analyses, descriptions, or critiques of the Alternative
Maps, and all documents related to the process by which the Alternative Maps were prepared.
REQUEST FOR PRODUCTION NO. 3: Produce all communications and other documents sent or provided to, or received from, any expert disclosed by you on February 15,
2013, or any person on behalf of such expert, since the commencement of this litigation.
\255036\8 - # 330717 v1 13 App. 94 Exhibit D
App. 95 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. CASE NO. 2012-CA-00412
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; et al.,
Plaintiffs, vs. CASE NO. 2012-CA-00490
KEN DETZNER, in his official capacity as Florida Secretary of State; THE FLORIDA SENATE; et al.,
Defendants/
THE FLORIDA HOUSE OF REPRESENTATIVES’ FOURTH SET OF INTERROGATORIES ON ROMO PLAINTIFFS
Pursuant to Florida Rules of Civil Procedure 1.280 and 1.340, the Florida House of
Representatives requests that Plaintiffs, Rene Romo, Benjamin Weaver, William Everett
Warinner, Jessica Barrett, June Keener, Richard Quinn Boylan, and Bonita Agan, within 30 days after service, furnish written responses to the following interrogatories at GrayRobinson, P.A.,
301 South Bronough Street, Suite 600, Tallahassee, Florida.
App. 96 INTERROGATORIES
Interrogatory 1:
Please identify each district that you contend is invalid. With respect to each district, identify (i) the specific provisions of state or federal law that you contend the district violates; and (ii) the facts that support each such contention.
Answer:
App. 97 RENE ROMO
STATE OF FLORIDA
COUNTY OF
Sworn to (or affirmed) and subscribed before me this ___ day of ______, 2014, by
RENE ROMO.
(Signature of Notary Public - State of Florida)
(Print, Type, or Stamp Commissioned Name of Notary Public)
Personally Known ______OR Produced Identification ______
Type of Identification Produced______
App. 98 BENJAMIN WEAVER
STATE OF FLORIDA
COUNTY OF
Sworn to (or affirmed) and subscribed before me this ___ day of ______, 2014, by
BENJAMIN WEAVER.
(Signature of Notary Public - State of Florida)
(Print, Type, or Stamp Commissioned Name of Notary Public)
Personally Known ______OR Produced Identification ______
Type of Identification Produced______
App. 99 WILLIAM EVERETT WARINNER
STATE OF FLORIDA
COUNTY OF
Sworn to (or affirmed) and subscribed before me this ___ day of ______, 2014, by
WILLIAM EVERETT WARINNER.
(Signature of Notary Public - State of Florida)
(Print, Type, or Stamp Commissioned Name of Notary Public)
Personally Known ______OR Produced Identification ______
Type of Identification Produced______
App. 100 JESSICA BARRETT
STATE OF FLORIDA
COUNTY OF
Sworn to (or affirmed) and subscribed before me this ___ day of ______, 2014, by
JESSICA BARRETT.
(Signature of Notary Public - State of Florida)
(Print, Type, or Stamp Commissioned Name of Notary Public)
Personally Known ______OR Produced Identification ______
Type of Identification Produced______
App. 101 JUNE KEENER
STATE OF FLORIDA
COUNTY OF
Sworn to (or affirmed) and subscribed before me this ___ day of ______, 2014, by
JUNE KEENER.
(Signature of Notary Public - State of Florida)
(Print, Type, or Stamp Commissioned Name of Notary Public)
Personally Known ______OR Produced Identification ______
Type of Identification Produced______
App. 102 RICHARD QUINN BOYLAN
STATE OF FLORIDA
COUNTY OF ______
Sworn to (or affirmed) and subscribed before me this ___ day of ______, 2014, by
RICHARD QUINN BOYLAN.
(Signature of Notary Public - State of Florida)
(Print, Type, or Stamp Commissioned Name of Notary Public)
Personally Known ______OR Produced Identification ______
Type of Identification Produced______
App. 103 BONITA AGAN
STATE OF FLORIDA
COUNTY OF ______
Sworn to (or affirmed) and subscribed before me this ___ day of______, 2014, by
BONITA AGAN.
(Signature of Notary Public - State of Florida)
(Print, Type, or Stamp Commissioned Name of Notary Public)
Personally Known ______OR Produced Identification ______
Type of Identification Produced ______
App. 104 Filing # 19032883 Electronically Filed 10/06/2014 12:19:24 PM
IN THE CIRCUIT COURT FOR THE SECOND JUDICIAL CIRCUIT IN AND FOR LEON COUNTY, FLORIDA
RENE ROMO, an individual, et al.,
Plaintiffs, vs. Case No. 2012-CA-000412
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, INC., et al.,
Plaintiffs, vs. Case No. 2012-CA-000490
KEN DETZNER, in his official capacity as Florida Secretary of State, et al.,
Defendants. ______/
THE LEGISLATIVE PARTIES’ MOTION FOR ATTORNEY’S FEES AND RESPONSE TO PLAINTIFFS’ MOTIONS FOR ATTORNEY’S FEES
Pursuant to Section 57.105(1) and (4), Florida Statutes, Defendants, the Florida House of
Representatives; Will Weatherford, in his official capacity as Speaker of the Florida House of
Representatives; the Florida Senate; and Don Gaetz, in his official capacity as President of the
Florida Senate, respectfully move to recover attorney’s fees incurred in opposition to Plaintiffs’ legally and factually unsupported claim for attorney’s fees, and respond in opposition to the
Romo Plaintiffs’ Motion for Determination of Availability of Attorney’s Fees and the Coalition
Plaintiffs Motion for Attorney’s Fees, both dated August 11, 2014.
\255036\8 - # 509433 v1 App. 105 INTRODUCTION
Plaintiffs’ claim for attorney’s fees is utterly devoid of a legal basis or factual support, and the Legislative Parties are entitled to recover attorney’s fees incurred as a consequence.
First, unless entitlement to fees arises during the litigation, a plaintiff must plead a claim for attorney’s fees in its complaint. Plaintiffs have not pled a claim for attorney’s fees. Thus, the “private attorney general doctrine” cannot, with any color, be asserted now.
Second, the “private attorney general doctrine” has never been recognized by a Florida court and is not part of the law of Florida. And, because Florida courts have for 75 years been firmly committed to the principle that fees cannot be awarded without a statutory or contractual basis, Plaintiffs’ argument for an modification of existing law is not attended with a “reasonable expectation of success,” as is necessary to avoid liability under Section 57.105.
Third, Plaintiffs’ assertion that the Legislative Parties litigated this case in bad faith and engaged in extreme litigation misconduct is fanciful and unsupported by the material facts necessary to establish the claim.
Fourth, in light of Plaintiffs’ appeal and their insistence that this litigation cured none of the purported constitutional deficiencies of Florida’s congressional districts, there is no legal or factual support for the assertion that Plaintiffs are prevailing parties.
Because Plaintiffs’ claim for attorney’s fees is not supported by the material facts or the application of existing law to the material facts, and is not an argument for the extension of existing law with a reasonable expectation of success, see § 57.105, Fla. Stat. (2014), the
Legislative Parties are entitled to recover attorney’s fees incurred in opposition to that claim.
\255036\8 - # 509433 v1 2 App. 106 ARGUMENT
A party that prevails on any claim is entitled to recover attorney’s fees if the party that
brought the claim “knew or should have known” that its claim (i) was not supported by the
material facts necessary to establish the claim, or (ii) would not be supported by the application
of existing law to the facts. § 57.105(1), Fla. Stat. (2014). If these criteria are satisfied, an award
of attorney’s fees is mandatory. Albritton v. Ferrera, 913 So. 2d 5, 8-9 (Fla. 1st DCA 2005).
Each claim must be examined separately. The statutory phrase “prevailing party” does
not “mean the party who ultimately wins the case, but . . . the party who defeats ‘any claim or
defense,’” Bridgestone/Firestone, Inc. v. Herron, 828 So. 2d 414, 418 (Fla. 1st DCA 2002),
including a claim for attorney’s fees, see Lago v. Kame By Design, LLC, 120 So. 3d 73, 74 (Fla.
4th DCA 2013). Thus, Section 57.105(1) “does not require that the entire action be frivolous.”
Albritton, 913 So. 2d at 8 (quoting Mullins v. Kennelly, 847 So. 2d 1151, 1154 (Fla. 5th DCA
2003)). “Fees are appropriate . . . when the party or the party’s attorney pursued a claim that is
without factual or legal merit.” Long v. AvMed, Inc., 14 So. 3d 1264, 1265 (Fla. 1st DCA 2009).
Section 57.105 does not require a “finding of frivolousness”—only a “finding that the claim lacked a basis in material facts or then-existing law.” Martin Cnty. Conservation Alliance
v. Martin Cnty., 73 So. 3d 856, 858 (Fla. 1st DCA 2011). “The test is simply whether the party
or his counsel knew or should have known . . . that the claims were not grounded in fact, or were
not warranted by existing law . . . .” Long, 14 So. 3d at 1264 (internal marks omitted). A claim that is unsupported by existing law, but which reflects a “good faith argument for the extension, modification, or reversal of existing law or the establishment of new law” warrants a fee award if the argument does not have a “reasonable expectation of success.” § 57.105(3), Fla. Stat. (2014).
\255036\8 - # 509433 v1 3 App. 107 I. PLAINTIFFS’ CLAIM FOR ATTORNEY’S FEES UNDER THE “PRIVATE ATTORNEY GENERAL DOCTRINE” IS WITHOUT LEGAL SUPPORT.
For two independent reasons, Plaintiffs’ claim for attorney’s fees under the “private attorney general doctrine” is unsupported. First, a claim for fees must be pled, and Plaintiffs did not plead their claim. Second, Florida courts have never recognized the “private attorney general doctrine,” and its recognition is extremely improbable. In Florida, it has long been settled that courts cannot award fees without statutory or contractual authorization. The “private attorney general doctrine” is precisely the sort of nebulous basis for fees that Florida has refused to adopt.
A. Because Plaintiffs Did Not Plead It, Their Claim for Fees Under the “Private Attorney General Doctrine” Is Without Legal Support.
In Florida, a claim for attorney’s fees must be pled. Stockman v. Downs, 573 So. 2d 835,
837 (Fla. 1991). A plaintiff’s failure to plead a claim for fees in its complaint “constitutes a waiver.” Green v. Sun Harbor Homeowners’ Ass’n, Inc., 730 So. 2d 1261, 1263 (Fla. 1998).
The fundamental concern of the Stockman rule is one of notice. Pleading notifies the opposing parties of the claims alleged and prevents “unfair surprise.” Stockman, 573 So. 2d at
837. Raising a claim for fees after “judgment fails to serve either of these objectives.” Id.
“The Stockman rule continues to be applied strictly.” Walker v. Cash Register Auto Ins. of Leon Cnty., Inc., 946 So. 2d 66, 72 (Fla. 1st DCA 2006). The First DCA has repeatedly denied fee claims that were not raised in a pleading. See Preusler & Assocs., Inc. v. Scott, 127
So. 3d 681, 682 (Fla. 1st DCA 2013); Watson v. Watson, 124 So. 3d 340, 343–44 (Fla. 1st DCA
2013); Robbins v. McGrath, 955 So. 2d 633, 634 (Fla. 1st DCA 2007); Walker, 946 So. 2d at 72.
Plaintiffs did not plead a claim for attorney’s fees. The Romo Plaintiffs initially pled a claim for attorney’s fees, see Exh. A, but the Legislative Parties moved to strike the claim, see
\255036\8 - # 509433 v1 4 App. 108 Exh. B, and the Court granted the motion, see Exh. C.1 The Romo Plaintiffs never moved thereafter to amend their complaint to allege any entitlement to attorney’s fees. The Coalition
Plaintiffs never pled a claim for attorney’s fees in their complaint. See Exh. D.
The Stockman rule is plain and inescapable. Plaintiffs’ failure to plead their claim for attorney’s fees constitutes a waiver of those claims. Plaintiffs’ claim, therefore, is unsupported by existing law, and the Legislative Parties are entitled to fees on Plaintiffs’ meritless fee claim.
Neither of the exceptions to Stockman applies. First, the Stockman rule does not apply where a party “has notice that an opponent claims entitlement to attorney’s fees, and by its conduct recognizes or acquiesces to that claim or otherwise fails to object to the failure to plead entitlement.” Stockman, 573 So. 2d at 838. Here, Plaintiffs gave no notice of their claim, nor did the Legislative Parties recognize or acquiesce in the claims or fail to object to the failure to plead entitlement. The exception, therefore, does not apply. See Watson, 124 So. 3d at 343–44
(finding that a fee claim was waived where the claim was not discussed or litigated at the final
hearing and was first raised in a motion for fees eleven days after issuance of the final judgment).
Stockman is also inapplicable where entitlement arises from an event that occurred during
the litigation. Advanced Chiropractic & Rehabilitation Ctr., Corp. v. United Auto. Ins. Co., 140
So. 3d 529, 536 (Fla. 2014) (emphasis omitted). Thus, fee claims under Section 57.105 and
claims that arise from offers of judgment are exempt from the pleading requirement. Walker,
946 So. 2d at 72. Plaintiffs’ assertion of the “private attorney general doctrine” is not predicated
on an event that occurred during the litigation. It existed—if at all—from the outset.2
1 In opposition to the Legislative Parties’ motion to strike, the Romo Plaintiffs identified Section 57.105 as the “exclusive basis for their claim for attorney’s fees.” Exh. C. Plaintiffs never mentioned the “private attorney general doctrine” in any pleading until filing their post- judgment motions for attorney’s fees. 2 The Legislative Parties do not contend that the Stockman rule applies to Plaintiffs’ claim
\255036\8 - # 509433 v1 5 App. 109 There is no legal basis for Plaintiffs’ unpled claims for attorney’s fees. There is no
colorable argument either that Stockman is bad law, or that an exception to Stockman excuses
Plaintiffs’ failure to plead their claims. The Legislative Parties are therefore entitled to fees.
B. Because Florida Does Not Recognize the “Private Attorney General Doctrine,” and Because Plaintiffs’ Argument Is Not Attended by a Reasonable Expectation of Success, Plaintiffs’ Claim for Fees Under the “Private Attorney General Doctrine” Is Without Legal Support.
Plaintiffs’ assertion of the “private attorney general doctrine” is legally unsupported for a second, independent reason. No court in this State has ever awarded fees on the basis of a purported “private attorney general doctrine.” And in Florida, it is a long-established axiom that attorney’s fees are not recoverable absent a statutory or contractual basis. Given the steady adherence of Florida courts to the requirement of a statutory or contractual basis, Plaintiffs do not make a good-faith argument with a reasonable expectation of success.
No Florida court has ever recognized the “private attorney general doctrine.” Thus,
Plaintiffs’ claim for fees is not supported by the application of existing law to the material facts.
§ 57.105(1)(b), Fla. Stat. (2014). To avoid sanctions under Section 57.105(1), Plaintiffs must argue that their assertion of the “private attorney general doctrine” is “a good faith argument for the extension, modification, or reversal of existing law or the establishment of new law, as it applied to the material facts, with a reasonable expectation of success.” § 57.105(3)(a), Fla. Stat.
(2014) (emphasis added). Plaintiffs’ argument runs so directly against the grain of settled,
entrenched, and long-standing law that Plaintiffs cannot by any stretch assert a “reasonable
expectation of success.”
under the inequitable-conduct doctrine. Misconduct in litigation arises, by definition, during the litigation and cannot be pled at the outset. The “private attorney general doctrine,” by contrast, might have been pled—and was therefore required to have been pled—in Plaintiffs’ complaints.
\255036\8 - # 509433 v1 6 App. 110 In Florida, few principles of law are more deeply rooted than that a court may not award
attorney’s fees unless authorized by statute or contract. This principle was “well settled” in
1939, see Main v. Benjamin Foster Co., 192 So. 602, 604 (Fla. 1939), and was equally “well-
settled” in 2009, see Trytek v. Gale Indus., Inc., 3 So. 3d 1194, 1198 (Fla. 2009). The Florida
Supreme Court has declared several times that it is “committed” to the principle that fees are unrecoverable without statutory or contractual support, see Conner v. State Road Dep’t of Fla.,
66 So. 2d 257, 260 (Fla. 1953); Dorner v. Red Top Cab & Baggage Co., 37 So. 2d 160, 161 (Fla.
1948); Ex Parte Graham, 186 So. 202, 203 (Fla. 1939), and has repeatedly reaffirmed that principle over the decades, see, e.g., Price v. Tyler, 890 So. 2d 246, 250 (Fla. 2004); Bane v.
Bane, 775 So. 2d 938, 940 (Fla. 2000); Bell v. U.S.B. Acquisition Co., Inc., 734 So. 2d 403, 406
(Fla. 1999); Dade Cnty. v. Pena, 664 So. 2d 959, 960 (Fla. 1995); State Farm Fire & Cas. Co. v.
Palma, 629 So. 2d 830, 832 (Fla. 1993); P.A.G. v. A.F., 602 So. 2d 1259, 1260 (Fla. 1992);
Bidon v. Dep’t of Prof’l Regulation, 596 So. 2d 450, 452 (Fla. 1992); Fla. Patient’s Comp. Fund
v. Rowe, 472 So. 2d 1145, 1148 (Fla. 1985); Stone v. Jeffres, 208 So. 2d 827, 828-29 (Fla. 1968);
Codomo v. Emanuel, 91 So. 2d 653, 655 (Fla. 1956); Shavers v. Duval Cnty., 73 So. 2d 684, 686
(Fla. 1954); Phoenix Indem. Co. v. Union Fin. Co., 54 So. 2d 188, 190 (Fla. 1951); Brite v.
Orange Belt Sec. Co., 182 So. 892, 895 (Fla. 1938); Webb v. Scott, 176 So. 442, 446 (Fla. 1937).
In light of the State’s 75-year commitment to the principle that attorney’s fees cannot be
recovered unless authorized by statute or contract, Plaintiffs’ assertion of an equitable doctrine
in support of their claim is not a good-faith argument with a “reasonable expectation of success.”
The sole exception that Florida courts have recognized in all that time is the inequitable-conduct
doctrine, which is not founded on mere equitable principles, but on the “inherent authority” of
courts to control their own proceedings and sanction extreme litigation misconduct. See Moakley
\255036\8 - # 509433 v1 7 App. 111 v. Smallwood, 826 So. 2d 221, 224 (Fla. 2002); Cox v. Great Am. Ins. Co., 88 So. 3d 1048, 1050
(Fla. 4th DCA 2012).3 Plaintiffs cite the common-fund doctrine as an additional exception, but they misunderstand the doctrine. That doctrine merely permits attorneys to be paid from a fund created to benefit a group. Bd. of Trs. of City Pension Fund for Firefighters & Police Officers in
City of Tampa v. Parker, 113 So. 3d 64, 68 (Fla. 2d DCA 2013). It is not a fee-shifting device:
The common fund doctrine is not contrary to the American Rule. Rather than fee- shifting, which is contrary to the American Rule, the common fund doctrine authorizes fee-sharing: fees are shared between the litigants and the fund’s beneficiaries (of which the litigants are a part), but fees are not shifted between parties adverse to one another.
Id. (emphases in original).
Plaintiffs’ argument for an extension or modification of existing law has no reasonable expectation of success. No Florida court has ever recognized a purely equitable exception to the
American rule. “Attorney’s fees cannot be awarded as a matter of equity.” Bauer v. DILIB, Inc.,
16 So. 3d 318, 320 (Fla. 4th DCA 2009) (quoting Attorney’s Title Ins. Fund, Inc. v. Landa-
Posada, 984 So. 2d 641, 643 (Fla. 3d DCA 2008)).
The eager encouragement that Plaintiffs give this Court to be the first to award fees on equitable grounds has an all-too-familiar ring. Only recently, Plaintiffs confidently encouraged this Court to postpone the general election and order special elections, and assured the Court over and over that their scheme was lawful and feasible. But when this Court asked Plaintiffs to support the feasibility of their demands with evidence, Plaintiffs suddenly went silent and quietly abandoned their election-postponement scheme. Plaintiffs were content to lead the Court into obvious peril, and the State into disaster and embarrassment. The rest of Plaintiffs’ advice to this
3 The inherent authority of courts to assess attorney’s fees as a sanction has been recognized since 1920, see Moakley v. Smallwood, 826 So. 2d 221, 224 (Fla. 2002) (citing U.S. Sav. Bank v. Pittman, 86 So. 567, 572 (Fla. 1920)), and has peaceably coexisted with the maxim that attorney’s fees cannot otherwise be imposed without statutory or contractual authorization.
\255036\8 - # 509433 v1 8 App. 112 Court—to oust members of Congress from their seats, to ignore federal protections for military
voters, to prevent the enactment of laws by the State’s law-making body, to prescribe the internal
procedures of the legislative branch, and to impose a map without due process—was no more
sound.
Plaintiffs continue to entice this Court to adopt and assume responsibility for extreme and
untenable positions that lack any sound legal basis. The Court should again reject their bad
advice. Indeed, it must do more. Under Section 57.105(1), the Legislative Parties are entitled to
recover attorney’s fees with respect to Plaintiffs’ legally and factually unsupported claim for
fees.
II. PLAINTIFFS’ CLAIM FOR ATTORNEY’S FEES UNDER THE INEQUITABLE-CONDUCT DOCTRINE IS WITHOUT FACTUAL SUPPORT.
Plaintiffs’ last contention is the most whimsical of all. It is not only frivolous; it borders
on the outrageous. Plaintiffs ask the Court to declare that the Legislative Parties litigated this
case in extreme bad faith and engaged in egregious litigation misconduct, and thus to award
attorney’s fees under the inequitable-conduct doctrine. While Plaintiffs might feel constrained to
advance these arguments to fuel their public-relations campaign, or to appease their principals at
the Democratic Party, such ungrounded allegations have no place in court, where ethical and
professional standards restrict the field of argument. Because Plaintiffs’ claim is unsupported by
the facts, the Legislative Parties are entitled to fees.
To Plaintiffs, all opposition is bad-faith opposition. Throughout this litigation, Plaintiffs have sought to place their adversaries on a moral low ground and to portray them as bad actors with secret, evil motivations. Plaintiffs even attempted to besmirch non-partisan election officials who dutifully told the truth in opposition to Plaintiffs’ election-postponement scheme.
Plaintiffs have met all opposition with a round of personal attacks, aspersions, and denigration.
\255036\8 - # 509433 v1 9 App. 113 Plaintiffs’ assertion of the inequitable-conduct doctrine is best understood in this context.
To Plaintiffs, the real offense is that the Legislative Parties “fought tooth and nail” and “stood in
[their] way.” Coalition Pls.’ Mot. for Attorney’s Fees, at 2. In their eyes, vigorous opposition is
misconduct. With the threat of fees, Plaintiffs seek to intimidate the defense and discourage
zealous advocacy. The imposition of fees would encourage defendants in future litigation to
knuckle under and present a half-hearted defense, as Plaintiffs wished. But the Legislature is
entitled to zealous representation, and the zealous defense of unpopular causes is not bad faith.
Plaintiffs’ assertion of the inequitable-conduct doctrine is noteworthy in three respects:
First, throughout their motions, Plaintiffs attribute to the Legislative Parties the litigation
conduct of the political consultants. Plaintiffs treat the consultants and Legislative Parties as
interchangable alter egos, and seek to hold the Legislative Parties liable for the consultants’ alleged misconduct.
The consultants and the Legislative Parties are not the same parties, despite Plaintiffs’ efforts to confound them. Throughout the litigation, the Legislative Parties took no position with respect to the discovery disputes between Plaintiffs and the consultants, only weighing in to correct Plaintiffs’ grossly inaccurate accounts of the Legislative Parties’ actions or positions.
The Legislative Parties are not responsible for the litigation conduct of the consultants.
In Florida, inequitable conduct cannot be imputed. Even the inequitable conduct of an expert cannot be imputed to a party or its counsel, absent bad faith by one or the other. State
Farm Mut. Auto. Ins. Co. v. Swindoll, 54 So. 3d 548, 552 (Fla. 3d DCA 2011) (“As regards the
imposition of sanctions against a party or its counsel for the misconduct of an expert, however,
we find no rule of imputation that can justify such an award without some bad faith or egregious
\255036\8 - # 509433 v1 10 App. 114 conduct on the part of the party or counsel as well.”). A fortiori, neither principle nor precedent
supports the imposition of fees on parties as a sanction for the alleged misdeeds of non-parties.
Second, Plaintiffs’ allegations consist chiefly of imprecise rhetorical generalities—not
concrete facts susceptible of proof or refutation. Plaintiffs assert the Legislative Parties filed
“countless motions and appeals,” Coalition Pls.’ Mot. for Attorney’s Fees, at 2, engaged in
“stonewalling and delay,” id. at 3, “recalcitrantly oppose[d] every inquiry and attempt[ed] to
distract from the merits,” id. at 5, “litigate[d] every issue,” id. at 8, pursued a “scorched-earth
litigation strategy,” id., waged a “battle of attrition and distraction,” id., “obstructed efforts to
obtain relevant evidence at every turn,” Romo Pls.’ Mot. to Determine Availability of Attorney’s
Fees, at 2, adopted a “vexatious litigation strategy” and filed “numerous meritless motions and
discovery requests,” id. at 7 n.1, engaged in a “repeated pattern of bad faith behavior,” id. at 10,
and asserted “baseless claims” and filed “frivolous motions,” id. But in the midst of their angry
diatribe, Plaintiffs seldom pause to catch their breath and delineate the facts beneath their claims.
Clichés and generalities are insufficient to support an award of fees under the inequitable-
conduct doctrine. Rather, “a finding of bad faith conduct must be predicated on a high degree of
specificity in the factual findings.” Moakley v. Smallwood, 826 So. 2d 221, 227 (Fla. 2002).
A high degree of specificity is essential because generalities are often difficult to verify, or are inaccurate or exaggerated. For example, Plaintiffs assert that the Legislative Parties took
“countless” appeals. The Legislative Parties took one.4 Plaintiffs assert that the Legislative
Parties opposed discovery “at every turn.” But Plaintiffs filed only one motion to compel against
4 The Legislative Parties’ one appeal was not strictly an appeal. It was an original action to seek review by certiorari of this Court’s ruling with respect to legislative privilege. In asserting that the Legislative Parties took “countless” appeals, Plaintiffs presumably make the mistake of attributing to the Legislative Parties the appeals taken by the political consultants. Moreover, in that one appeal, the First DCA agreed with the Legislative Parties.
\255036\8 - # 509433 v1 11 App. 115 the Legislative Parties throughout the entire litigation, see Romo Pls.’ Mot. to Compel Materials
Withheld by Legislative Defs.’ on Grounds of Attorney-Client Privilege and Attorney Work
Product (Oct. 29, 2012), and this Court sustained many, if not most, of the Legislative Parties’ assertions of the attorney-client and work-product privileges. In truth, the Legislative Parties readily produced tens of thousands of documents and, in deposition, never asserted the legislative privilege (as was their right) with respect to the protected thoughts and impressions of legislators and staff. Plaintiffs’ sweeping statements take enormous liberties with the truth.
Third, when Plaintiffs speak in concrete terms, their allegations take a comedic turn: the conduct that Plaintiffs brand as bad-faith misconduct was conduct that the courts—including this
Court—routinely sustained. For example, Plaintiffs cite as an example of bad-faith misconduct the Legislative Parties’ opposition to an expedited trial in the Spring of 2012. See Coalition Pls.’
Mot. for Attorney’s Fees, at 8. But this Court expressly agreed with the Legislative Parties and refused to deny due process and hold the expedited trial that Plaintiffs sought. To Plaintiffs, however, all opposition—even opposition that the Court sustains—is bad-faith opposition.
Similarly, Plaintiffs claim that the Legislative Parties’ assertion of legislative privilege indicates bad faith. Id. Here, too, the courts sustained the Legislative Parties’ position. Indeed, every court affirmed the existence of a legislative privilege and rejected Plaintiffs’ contrary position. The question was the scope of the privilege: the First DCA adopted the Legislative
Parties’ “bad-faith” position in its entirety, see Fla. House of Representatives v. Romo, 113 So.
3d 117 (Fla. 1st DCA 2013), while the Supreme Court affirmed in part and reversed in part, see
League of Women Voters of Fla. v. Fla. House of Representatives, 132 So. 3d 135 (Fla. 2013).
Thus, the First DCA, and to some extent this Court and the Supreme Court, must, in Plaintiffs’ view, be conspirators as well (together with the political consultants, the Secretary of State, and
\255036\8 - # 509433 v1 12 App. 116 the Supervisors of Elections).5 And because the Legislative Parties did not waive the legislative privilege, as well as their due-process rights, their opposition constitutes bad-faith opposition.
Plaintiffs mention the Legislative Parties’ discovery into the alternative maps as a third example of bad faith. But, again, Plaintiffs forget that two courts repeatedly countenanced this discovery. On January 17, 2013, this Court granted the Legislative Parties’ motion to compel discovery directed to alternative maps that Plaintiffs had presented or intended to present. See
Exh. E. The Court denied the Romo Plaintiffs’ motion for reconsideration and thus affirmed its order on February 7, 2013. See Exh. F. Five days later, the Superior Court for the District of
Columbia denied a motion to quash a subpoena for deposition duces tecum directed to the Romo
Plaintiffs’ map-drawer. See Exh. G. On March 13, 2013, this Court sanctioned the Coalition
Plaintiffs for their refusal, contrary to this Court’s orders, to produce documents concerning their alternative map. See Exh. H. On June 27, 2013, when the shadowy organization that controls the Coalition Plaintiffs moved for a protective order, the Court, while narrowing the Legislative
Parties’ document requests, refused to limit deposition questions and ordered the production of all non-privileged documents concerning any alternative map previously presented to the Court.
See Exh. I. On August 6, 2013, this Court granted the Legislative Parties’ motion for leave to amend their answers to plead, as an affirmative defense, Plaintiffs’ unclean hands with respect to the alternative maps offered to the Court at the summary-judgment stage. See Exh. J.6 On April
5 The conspiracy is exceptionally broad. According to Plaintiffs, the Legislative Parties asserted “unfounded” claims of associational privilege and trade-secret protection. See Coalition Pls.’ Mot. for Attorney’s Fees, at 8. Of course, the Legislative Parties did not assert any claims of associational privilege or trade-secret protection. Even more amusing, Plaintiffs forget that the Special Master upheld these assertions of the political consultants—as did this Court in substantial part. Thus, Plaintiffs implicate Justice Harding (as well as the Superior Court for the District of Columbia, see infra), as another abettor of the Legislative Parties’ (imputed) bad-faith misconduct. 6 The Court later granted summary judgment with respect to that affirmative defense. See
\255036\8 - # 509433 v1 13 App. 117 14, 2014, the D.C. Superior Court denied the Democratic Congressional Campaign Committee’s motion to quash a subpoena for deposition duces tecum. See Exh. K. And on May 9, 2014, this
Court denied the Romo Plaintiffs’ motion in limine to exclude from trial evidence concerning the intent of its map-drawers. See Exh. L at 154:2–159:15. Consequently, excerpts of five depositions directed to Plaintiffs’ alternative maps were admitted at trial without objection by
Plaintiffs. Most recently, at the remedial hearing held on August 20, 2014, this Court ruled that evidence directed to the improper partisan intent of Plaintiffs’ alternative maps was relevant.
See Exh. M at 46:25–47:1 (“THE COURT: I mean, I’m okay with the relevancy of it . . . .”).
Far from sanctioning the Legislative Parties for bad faith, this Court and the Superior
Court repeatedly permitted the discovery and sustained the relevance of the information sought by the Legislative Parties. If the discovery sought was inappropriate, Plaintiffs had every right and every opportunity to seek a protective order under Florida Rule of Civil Procedure 1.280(c).
But eight court orders in the Legislative Parties’ favor weakens Plaintiffs’ claim of misconduct.
Indeed, discovery directed to the alternative maps was not only appropriate, but essential.
Without it, the Court would never have known that Plaintiffs’ alternative District 5 was drawn by a Democratic political consulting firm, financed by the National Democratic Redistricting Trust, and even coordinated with the Democratic Congressional Campaign Committee and Democratic members of Congress. Plaintiffs would never have disclosed these facts. The Court might well have been misled into adopting a district drawn by political consultants and partisan operatives.7
Order Granting Pls.’ Mot. for Partial Summ. J. on Legislative Defendants’ Seventh Affirmative Defense (Jan. 11, 2014). In its order, the Court noted that while fraud on the court is not an affirmative defense, it could “justify a sanction of dismissal” and “would provide the basis for a range of possible sanctions, to be determined by the Court, based upon a balancing of several factors.” Id. at 2. 7 Plaintiffs contend that Professor Ansolabehere sketched a first draft of the district, and that his participation cleanses the district of partisan intent. But the truest test is to reverse roles.
\255036\8 - # 509433 v1 14 App. 118 Plaintiffs have stated again and again that the Legislative Parties misrepresent the facts
found in discovery, but repetition does not make a statement true. Plaintiffs have identified not a
single misstatement with respect to their alternative maps—not even in their responses to the
Legislative Parties’ Motion for Sanctions for Fraud on the Court. Instead, Plaintiffs rest their
case on indignant denials, see, e.g., Romo Pls.’ Mot. to Determine Availability of Attorney’s
Fees, at 12 (“Legislative Defendants’ allegations regarding Plaintiffs’ conduct and the history of
this case were simply—and verifiably—false.”),8 without any attempt to correct the record. The
Legislative Parties’ assertions are founded directly on the testimony of Plaintiffs’ own witnesses.
Plaintiffs’ suggestion that the Legislative Parties offered little of this evidence at trial is both incorrect and immaterial. Id. at 11. The Legislative Parties introduced excerpts of five depositions, and much more of the evidence was presented in a dispositive motion before trial.9
See Legislative Parties’ Mot. for Sanctions for Fraud on the Court (Apr. 1, 2014). Plaintiffs are well aware that parties frequently offer only a small proportion of the evidence obtained in discovery. After all, Plaintiffs themselves introduced only a comparatively small number of the tens of thousands of documents readily produced in discovery by the Legislative Parties.
Last, Plaintiffs argue that the Legislative Parties’ disposal of records indicates bad faith and warrants an award of fees. Plaintiffs have already sought sanctions that included a request for fees on this ground, see Pls.’ Joint Mot. for Sanctions (Mar. 28, 2014), and the Court denied
If professional committee staff of the Legislature had prepared the rough draft of a district and communicated their rough ideas to political consultants and partisan operatives, entrusting them with the execution, it is more than probable that Plaintiffs would have found reason to complain. 8 Plaintiffs seem to suppose that if the Legislative Parties’ statements are “simply” false, then no proof of their falsity is required. If such proof existed, Plaintiffs would have presented it. 9 The denial of a motion does not support a finding of inequitable conduct. See Nedd v. Gary, 35 So. 3d 1028, 1030 (Fla. 4th DCA 2010) (“While the motion may not have had ‘a great deal of success,’ that finding is insufficient to justify an award of fees under the inequitable conduct doctrine.”).
\255036\8 - # 509433 v1 15 App. 119 that request, see Order on Pls.’ Joint Mot. for Sanctions (May 2, 2014). The argument fares no
better now. In its Final Judgment, the Court recognized that there “was no legal duty on the part
of the Legislature to preserve these records” and merely “wonder[ed] why they didn’t.” Final J.
at 23. Indeed, the Constitution authorizes the Legislature to adopt its own record-retention
policies, see Fla. Const. art. I, § 24(c), and the evidence established that legislators and staff
maintained records in accordance with the Legislature’s long-established and even-handed
record-retention policies. There was zero evidence of a “frenzied” or selective destruction of
evidence—a claim that reveals Plaintiffs’ unfortunate penchant for telling lurid and dramatic
stories at the expense of the truth. See Coalition Pls.’ Mot. for Attorney’s Fees, at 9.
The inequitable-conduct doctrine supports the imposition of sanctions where a litigant
“has exhibited egregious conduct or acted in bad faith.” Bittman v. Bittman, 714 So. 2d 356, 365
(Fla. 1998). This “rarely applicable” doctrine is “reserved for those extreme cases where a party
acts in bad faith, vexatiously, wantonly, or for oppressive reasons.” Id. (internal marks omitted).
It penalizes “extreme bad faith,” Sexton v. Ferguson, 79 So. 3d 51, 55 (Fla. 4th DCA 2011), and
“extreme litigation misconduct,” Nedd v. Gary, 35 So. 3d 1028, 1030 (Fla. 4th DCA 2010).
Plaintiffs’ claim for attorney’s fees under the inequitable-conduct doctrine is fanciful.
It is certainly not supported by the material facts necessary to establish the claim. § 57.105(1),
Fla. Stat. (2014). Not even close. Plaintiffs attempt to transform the Legislative Parties’ zealous and vigorous defense into bad-faith misconduct—and to punish those who “fought tooth and nail” and “stood in [their] way.” See Coalition Pls.’ Mot. for Attorney’s Fees, at 2. If their frivolous claim is successful, Plaintiffs and the partisan operatives who control them will all the more effectively bully defendants and misuse the courts to impose partisan districts on the State.
\255036\8 - # 509433 v1 16 App. 120 It should come as no surprise that the Legislative Parties zealously opposed Plaintiffs’ efforts to misuse the Constitution and strip the Florida Legislature of its constitutional authority to establish congressional districts. Plaintiffs first attempted to try this case without due process and, through this Court, to impose on the State of Florida alternative districts drawn by partisan operatives and political consultants. When the Court later found two deficiencies in the enacted plan, Plaintiffs threw caution to the wind and attempted to hijack the redistricting process, to prevent the Legislature from exercising its constitutional prerogatives, and to impose alternative districts drawn by partisan operatives and political consultants. The Legislature appropriately opposed these political games. Because the material facts do not support Plaintiffs’ assertion of bad-faith misconduct, the Legislative Parties are entitled to fees with respect to Plaintiffs’ claim.
III. GIVEN PLAINTIFFS’ APPEAL AND THEIR INSISTENCE THAT THIS LITIGATION CURED NONE OF THE CONGRESSIONAL DISTRICTS’ ALLEGED DEFICIENCIES, THE ASSERTION THAT PLAINTIFFS PREVAILED IS WITHOUT LEGAL OR FACTUAL SUPPORT.
Last, even if the Court could award attorney’s fees on an equitable theory or determine that the Legislative Parties litigated in extreme bad faith, Plaintiffs would not be entitled to fees.
While celebrating victory in public, Plaintiffs have appealed this Court’s final determination with respect to every district and insist that this litigation has not cured a single constitutional deficiency in Florida’s redistricting plan. Plaintiffs cannot, therefore, be prevailing parties.
The prevailing party is the party that prevailed on “the significant issues in the litigation.”
Conway v. Conway, 111 So. 3d 925, 928 (Fla. 1st DCA 2013) (quoting Moritz v. Hoyt Enters.,
Inc., 604 So. 2d 807, 810 (Fla. 1992)).10 In a multi-count action, where the claims are distinct
10 Where both parties won and lost on significant issues, a trial court may determine that neither party has prevailed and thus refuse to award attorney’s fees. Trytek v. Gale Indus., Inc., 3 So. 3d 1194, 1203 (Fla. 2009); accord Schoenlank v. Schoenlank, 128 So. 3d 118, 122 (Fla. 3d DCA 2013) (“Each party prevailed, and lost, on significant issues as to the support modification and the equitable distribution payments respectively, and each party prevailed and lost on significant issues as to the litigation in its entirety. Accordingly, the trial court did not abuse its
\255036\8 - # 509433 v1 17 App. 121 and would support independent actions, and are not merely alternative theories of liability for the same wrong, each claim is analyzed separately. River Bridge Corp. v. Am. Somax Ventures, 76
So. 3d 986, 989 (Fla. 4th DCA 2011) (citing Folta v. Bolton, 493 So. 2d 440, 442 (Fla. 1986)).
The determination of which party prevailed is made “at the conclusion of the entire case.”
Fixel Enters., Inc. v. Theis, 507 So. 2d 697, 699 (Fla. 1st DCA 1987). Thus, in assessing a claim for attorney’s fees, a court must consider the “result obtained at the close of the case.” GMPF
Framing, LLC v. Vills. at Lake Lily Assocs., LLC, 100 So. 3d 243, 245 (Fla. 5th DCA 2012).
Plaintiffs are not prevailing parties. Plaintiffs first asked the Court to invalidate the entire redistricting plan, compelling the Legislature to redraw every district, but the Court rejected the
“whole-plan” challenge. See Final J. at 8–9. The Court then ruled in favor of the Legislative
Parties and against Plaintiffs with respect to eight of ten challenged districts—declaring Districts
5 and 10 invalid and rejecting Plaintiffs’ challenges to Districts 13, 14, 15, 21, 22, 25, 26, and 27.
The Legislature adopted a remedial plan, but Plaintiffs insisted that nothing had changed.
According to Plaintiffs, the remedial plan cured none of the alleged constitutional deficiencies, and merely placed a phony “patch” on the infirmities that Plaintiffs had (supposedly) all along identified. Plaintiffs asked this Court to mandate a radical reconfiguration of District 5, but the
Court upheld the remedial plan. At the conclusion of the entire case, Plaintiffs believed that nothing had been accomplished and that none of the alleged deficiencies had been corrected.
discretion by finding that both parties prevailed and that neither was entitled to an award of attorney’s fees.”); Cont’l Cas. Co. v. A.W. Baylor Versapanel-Plastering, Inc., 97 So. 3d 937, 940 (Fla. 5th DCA 2012) (“When there is a determination that neither side prevailed, the tribunal may decline to award fees even where there is a judgment entered in favor of one party.”); M.A. Hajianpour, M.D., P.A. v. Khosrow Maleki, P.A., 975 So. 2d 1288, 1290 (Fla. 4th DCA 2008) (“As such, it appears that the parties battled to a draw. It is not an abuse of discretion to decline to award attorney’s fees when a court determines that neither party prevailed.”).
\255036\8 - # 509433 v1 18 App. 122 Plaintiffs appealed. In fact, Plaintiffs appealed this Court’s determination with respect to every district, including Districts 5 and 10. Plaintiffs advised the First DCA that their appeal challenges both “the trial court’s ultimate ruling that the constitutional violations were cured by the Legislature’s remedial plan enacted in special session” and “the trial court’s initial ruling that several other congressional districts were not directly unconstitutional.” See Exh. N at 2.
It is the loser in litigation that appeals—not the winner. Plaintiffs cannot claim to have prevailed and at the same time appeal every issue and insist that the deficiencies in Florida’s districts have not been corrected. There is no legal or factual support for Plaintiffs’ paradoxical embrace of opposite positions. The results obtained at the conclusion of the case demonstrate that Plaintiffs did not prevail.
CONCLUSION
Plaintiffs’ claim for attorney’s fees is not support by the material facts or the application of existing law to the material facts, and is not an argument for the extension of existing law with a reasonable expectation of success. The Legislative Parties are therefore entitled under Section
57.105(1) to recover attorney’s fees incurred in opposition to Plaintiffs’ claim for attorney’s fees.
\255036\8 - # 509433 v1 19 App. 123 CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing was sent by electronic mail on
September 12, 2014, to the individuals identified on the Service List that follows.
/s/ Raoul G. Cantero /s/ George N. Meros, Jr. Raoul G. Cantero (FBN 552356) Charles T. Wells (FBN 086265) Jason N. Zakia (FBN 698121) George N. Meros Jr. (FBN 263321) Jesse L. Green (FBN 95591) Jason L. Unger (FBN 0991562) WHITE & CASE LLP Andy Bardos (FBN 822671) Southeast Financial Center GRAYROBINSON, P.A. 200 South Biscayne Boulevard Suite 4900 Post Office Box 11189 Miami, Florida 33131-2352 Tallahassee, Florida 32302 Telephone: 305 371-2700 Telephone: 850 577-9090 [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] George Levesque (FBN 555541) [email protected] General Counsel THE FLORIDA SENATE Matthew J. Carson (FBN 827711) 305 Senate Office Building General Counsel 404 South Monroe Street THE FLORIDA HOUSE OF REPRESENTATIVES Tallahassee, Florida 32399-1100 422 The Capitol [email protected] Tallahassee, Florida 32399-1300 [email protected] Telephone: (850) 717-5500 [email protected] [email protected]
Attorneys for the Florida Senate and Attorneys for the Florida House of President Gaetz Representatives and Speaker Weatherford
\255036\8 - # 509433 v1 20 App. 124 SERVICE LIST
Mark Herron John M. Devaney Robert Telfer Mark Erik Elias Messer Caparello & Self P.A. Elisabeth C. Frost Post Office Box 1876 Perkins Coie LLP Tallahassee Florida 32302-1876 700 Thirteenth Street NW Ste. 700 Telephone: 850-222-0720 Washington DC 20005 [email protected] Telephone: 202 654-6200 [email protected] Fax: 202 654-6211 [email protected] [email protected] [email protected] [email protected] [email protected] [email protected]
Ashley Davis Abha Khanna Assistant General Counsel Kevin J. Hamilton Florida Department Of State Ryan Spear R.A. Gray Building Perkins Coie LLP 500 S. Bronough Street 1201 Third Avenue Ste. 4800 Tallahassee FL 32399 Seattle WA 98101-3099 Telephone: 850 245-6536 Telephone: 206 359-8000 [email protected] Fax : 206 359-9000 [email protected] [email protected] [email protected] [email protected] [email protected] [email protected]
Harry O. Thomas Jon L. Mills Christopher B. Lunny Elan Nehleber Radey Thomas Yon & Clark PA Boies Schiller & Flexner LLP 301 South Bronough Street Ste. Ste. 200 100 SE 2nd Street Ste. 2800 Tallahassee Florida 32301-1722 Miami FL 33131-2144 Telephone: 850 425-6654 Telephone: 305 539-8400 Fax: 850 425-6694 [email protected] [email protected] [email protected] [email protected]
\255036\8 - # 509433 v1 21 App. 125 Blaine H. Winship Michael A. Carvin Office Of Attorney General Louis K. Fisher Capitol Pl-01 Jones Day Tallahassee FL 32399-1050 51 Louisiana Avenue N.W. Telephone: 850 414-3300 Washington DC 20001 [email protected] Telephone: 202 879-7643 Fax: 202 626-1700 [email protected] [email protected]
Allison J. Riggs David B. King Anita S. Earls Thomas A. Zehnder Southern Coalition For Social Justice Frederick S. Wermuth 1415 West Highway 54 Ste. 101 Vincent Falcone III Durham NC 27707 King Blackwell Zehnder & Wermuth P.A. Telephone: 919 323-3380 Post Office Box 1631 Fax: 919 323-3942 Orlando Florida 32802-1631 [email protected] Telephone 407 422-2472 [email protected] Fax 407 648-0161 [email protected] [email protected] [email protected] [email protected] [email protected] [email protected]
Charles G. Burr Stephen Hogge Burr & Smith LLP Stephen Hogge Esq. LLC Grand Central Place 117 South Gadsden Street 442 West Kennedy Blvd. Ste. 300 Tallahassee FL 32301 Tampa FL 33606 Telephone: 850 459-3029 Telephone: 813 253-2010 [email protected] [email protected]
Victor L. Goode Karen C. Dyer Dorcas R. Gilmore Boies Schiller & Flexner LLP NAACP 121 South Orange Avenue Ste. 840 4805 Mt. Hope Drive Orlando FL 32801 Baltimore MD 21215-3297 Telephone: 407 425-7118 Telephone: 410 580-5790 Fax: 407 425-7047 [email protected] [email protected] [email protected]
\255036\8 - # 509433 v1 22 App. 126 Gerald E. Greenberg J. Gerald Hebert Adam M. Schachter 191 Somervelle Street #405 Gelber Schachter & Greenberg P.A. Alexandria VA 22304 1441 Brickell Avenue Suite 1420 Telephone: 703 628-4673 Miami FL 33131 [email protected] Telephone: 305 728-0950 [email protected] [email protected] [email protected]
Ronald Meyer Jessica Ring Amunson Lynn Hearn Paul Smith Meyer Brooks Demma and Blohm P.A. Michael B. DeSanctis 131 North Gadsden Street Christopher Deal Post Office Box 1547 32302 Jenner & Block LLP Tallahassee FL 32301 1099 New York Avenue N.W. Ste. 900 Telephone: 850 878-5212 Washington DC 20001-4412 [email protected] Telephone: 202 639-6023 [email protected] [email protected] [email protected] [email protected] [email protected]
D. Kent Safriet Daniel C. Brown Thomas R. Philpot Carlton Fields Jorden Burt P.A. Hopping Green & Sams P.A. 215 S. Monroe Street Suite 500 Post Office Box 6526 Post Office Drawer 190 Tallahassee Florida 32314 Tallahassee Florida 32302-0190 Telephone 850 222-7500 Telephone 850 224-1585 Facsimile 850 224-8551 Facsimile 850 222-0398 [email protected] [email protected] [email protected] [email protected] [email protected]
David P. Healy Jerry Wilson 2846-B Remington Green Circle Post Office Box 971 Tallahassee Florida 32308 Redan Georgia 30074 Telephone 850 222-5400 Phone 404-431-6262 Facsimile 850 222-7339 [email protected] [email protected]
\255036\8 - # 509433 v1 23 App. 127 Exhibit A
App. 128 App. 129 App. 130 App. 131 App. 132 App. 133 App. 134 App. 135 App. 136 App. 137 App. 138 App. 139 App. 140 App. 141 App. 142 App. 143 App. 144 App. 145 App. 146 Exhibit B
App. 147 App. 148 App. 149 App. 150 App. 151 App. 152 Exhibit C
App. 153 App. 154 App. 155 Exhibit D
App. 156 IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT IN AND FOR LEON COUNTY, FLORIDA
RENE ROMO, et al., CASE NO. 2012-CA-00412
Plaintiffs,
hEN DETZNER and PAM BONDI,
Defendants.
THE LEAGUE OF WOMEN VOTERS OF CASE NO. 2012-CA-00490 FLORIDA, et al.
Plaintiffs,
v
KEN DETZNER, et al.,
Defendants.
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
App. 157 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
(Ha.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
App. 158 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 of the 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
App. 159 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 FairDistricts
Amendments and will be affected by the Legislature's Congressional Plan.
8. Plaintiff LEAGUE OF WOMEN VOTERS OF FLORIDA is 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. Plaintiff NATIONAL COUNCIL OF LA RAZA, foimerly 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 App. 160 redistricting process. A substantial number of its members will be hamied 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 SENATE is responsible for drawing reapportionment
5 App. 161 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 with 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 of the 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 App. 162 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, 2011. On that same day, the House released seven separate congressional
redistricting plans.
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, Chaimian 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 Cormuittee 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
App. 163 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 SPUBC0170 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, H000C9047. Moreover, the
Coalition informed the Committee of various ways in which H000C9047 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, H000C9047, 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,
H00C9047.
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
App. 164 "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
9 App. 165 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 follner 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
10 App. 166 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
11 App. 167 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
statistics 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 pertain' 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 C9047 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
12
App. 168 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 10), 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.
13 App. 169 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.
14
App. 170 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 of 0.43.
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
15
App. 171 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 show 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 with 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 Central Florida.
61. The Coalition's alternative district — District 3 — 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
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 drawn 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.
16
App. 172 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.
17
App. 173 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 10's non-compactness is due to the Legislature's unconstitutional minority packing in District 5. District 10 was drawn to exclude Democratic, African-American
18 App. 174 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 10'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 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.
19
App. 175 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 perfouned 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 10 becomes far more compact. The Coalition's District 10 has a Reock score of 0.57 and an Area/Convex Hull
20
App. 176 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 1 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 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.
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
21
App. 177 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
22
App. 178 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 perfonnance. 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 S 0 00C9014 (which was derived from S 00 0C9002) 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
101. 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.
23
App. 179 103. 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
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, 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
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, and 17 were drawn with the intent to diminish and/or the effect of diminishing the ability of
24
App. 180 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
a. Plaintiffs reallege the facts set forth in paragraphs 1 through 103, above.
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).
COUNT V
a. Plaintiffs reallege the facts set forth in paragraphs 1 through 103, above.
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 III, 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 enjoining 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
25
App. 181 Congressional Plan, including enjoining 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 of this action, as authorized by Fla. Stat. § 86.081 (2011).
g. Grant such other and further relief as it seems is proper and just.
26
App. 182 Respectfully submitted this 3rd day of April, 2012,
Ronald G. Meyer [email protected] Florida Bar No. 0148248 MEYER, BROOKS, DEMMA AND BLOHM P.A. 131 North Gadsden Street Post Office Box 1547 Tallahassee, Florida 32302 Telephone: 850-878-5212 Facsimile: 850-656-6750
Paul M. Smith* psmith@j enner. corn Michael B. DeSanctis* mdesanetis@j enner. corn 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 hebert@voterlaw. corn Pro Hac Vice 191 Somervelle Street, #415 Alexandria, VA 22304 Telephone: 703-628-4673
Counsel for The Coalition
27
App. 183 CERTIFICATE OF SERVICE
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-01, The Capitol Tallahassee, Florida 32399-0400 Telephone: (850) 414-3300 Facsimile: (850) 488-4872 [email protected]
Attorney for the Attorney General
Ashley E. Davis Daniel E. Nordby FLORIDA DEPARTMENT OF STATE 500 South Bronough Street, Suite 100 Tallahassee, Florida 32399 Telephone: (850) 245-6536 Facsimile: (850) 245-6127 [email protected] [email protected]
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 [email protected]
28
App. 184 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] pete@penningtonlaw. corn
Attorneys for the Florida Senate
Charles T. Wells George N. Meros, Jr. Jason L. Unger Allen C. Winsor Charles B. Upton II GRAYROBINSON, P.A. Post Office Box 11189 Tallahassee, Florida 32302 Telephone: (850) 577-9090 Facsimile: (850) 577-3311 [email protected] [email protected] [email protected] [email protected] [email protected]
George T. Levesque General Counsel FLORIDA HOUSE OF REPRESENTATIVES 422 The Capitol Tallahassee, Florida 32399-1300 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
RONALDk EYER
29
App. 185 Exhibit E
App. 186 App. 187 App. 188 App. 189 Exhibit F
App. 190 IN THE CIRCUIT COURT FOR THE SECOND JUDICIAL CIRCUIT IN AND FOR LEON COUNTY, FLORIDA
RENE RQMO, an indi',idual; BENJAMIN WEAVER, an individual; et. al,
Plaintiffs, VS. CASE NO. 2012-CA-00412
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. CASE NO. 2012-CA-00490
KEN DETZNER, in his official capacity as Florida. Secretary of State; THE FLORIDA SENATE; et al.,
Defendants.
ORDER ON MOTION FOR CLARIFICATION OR RECONSIDERATION
This case is before me on Plaintiffs Motion for Clarification or, in the Alternative,
Reconsideration of the January 17, 2013 Order Granting in Part and Denying in Part the Florida
House of Representatives' Motion to Compel Discovery Related to Alternative Maps. To the extent Plaintiffs are unsure that the discovery allowed includes discovery related to any alternative maps used in this case by Plaintiffs to support their claim, the plain language of the order says that it does. To the extent Plaintiffs seek a reconsideration of that ruling, they have
1
App. 191 presented.no new ar ent or authority. Accordingly, the Motion is denied. r1.4-11 DONE AND 0 ERED in Chambers at Tallahassee, Leon County, Florida, this day of February, 2013.
TERR P. E IS, Circuit Judge
Copies to: All Counsel of Record
App. 192 Exhibit G
App. 193 SUPERIOR COURT OF THE DISTRICT OF COLUMBIA CIVIL DIVISION
RENE ROMO, et al. : : v. : Case No. 2012 CA 009234 : KEN DETZNER, et al. :
ORDER
The Court denies the motion of NCEC Services, Inc. (“NCEC”) to quash a subpoena obtained from the Court by the Florida House of Representatives (“House”)
I. BACKGROUND
The House obtained this subpoena in connection with a case pending in a Florida Circuit
Court involving a challenge to a congressional redistricting plan that Florida adopted in February
2012. The case is Rene Romo, et al. v. Ken Detzner, et al., Case No. 2012-CA-00412. The
Romo Plaintiffs contend that the plan violates the Florida Constitution because the legislature adopted it with the intent to favor or disfavor a political party or incumbent. The Florida House and Senate, along with the Secretary of State, are the defendants.
NCEC is a political consulting firm based in Washington, D.C. NCEC provided consulting services relating to the Florida redistricting. Among other things, NCEC was retained by both the Romo Plaintiffs and the Florida Democratic Party to serve as a non-testifying consulting expert.
NCEC prepared an alternative redistricting map that the Romo Plaintiffs submitted to the
Circuit Court as an alternative to the map adopted by Florida. No NCEC officer or employee testified in the Romo case in support of the plan. However, Stephen Ansolabehere, as a witness for the Romo Plaintiffs, testified that the NCEC map was a constitutional alternative to Florida’s
1
App. 194 map, and Mr. Ansolabehere worked with NCEC in connection with his testimony before the
Circuit Court.
The Romo Plaintiffs informed the defendants that they do not intend at trial to rely on the
NCEC map or to call an NCEC representative as a witness. NCEC Motion at 8 & 10 n.3; Romo
Plaintiffs’ Motion at 4 (Ex. A to House Notice of Supplemental Authority).
The House obtained the subpoena directing NCEC to designate a representative to appear for a deposition in Washington, D.C. on January 7, 2013. By agreement, the deposition was postponed until March. NCEC Motion at 5. The subpoena identified topics for the deposition relating to congressional redistricting in Florida and the preparation of congressional redistricting maps for Florida. The House also subpoenaed various categories of documents, including documents relating to congressional and state legislative redistricting and documents relating to any redistricting map.
II. DISCUSSION
The Florida Circuit Court has issued discovery rulings directly relevant to NCEC’s arguments against the documents and information requested in the subpoena. On January 17,
2013, the Circuit Court found that:
for any alternative map the Plaintiffs have or intend to present, either in part or whole, as evidence in this case, Defendants are entitled to the discovery requested, including documents and information relating to the process by which alternative maps were prepared, identities of individuals who prepared them, and activities and communications concerning alternative maps.
Order Resolving Discovery Motions at 2-3 ¶ 3 (Ex. F to House Opp.). Invoking the principle under Florida law that “discovery of a non-testifying expert may only be had upon a showing of exceptional circumstances,” the Romo Plaintiffs sought clarification or reconsideration of this
Order because they were concerned that it permitted discovery into NCEC’s protected work
2
App. 195 product. See Motion at 5-9, 11 (Ex. A to House Notice of Supplemental Authority). On
February 7, 2013, the Circuit Court denied that motion, stating, “To the extent Plaintiffs are unsure that the discovery allowed includes discovery related to any alternative maps used in this case by Plaintiffs to support their claim, the plain language of the order says that it does.” Order on Motion for Clarification or Reconsideration at 1 (Ex. B to House Notice of Supplemental
Authority).
The Circuit Court has therefore rejected the basic argument advanced by NCEC – that its documents are protected by the work product doctrine and that the House has not demonstrated that exceptional circumstances justify this discovery. NCEC is effectively seeking to relitigate the Circuit Court’s ruling. The work product doctrine is intended primarily to protect the party that engages the non-testifying expert, not the non-testifying expert, and the real party in interest in this dispute is the Romo Plaintiffs. As an expert retained by the Romo Plaintiffs, NCEC is the
Romo Plaintiffs’ agent, and the same law firm that represents the Romo Plaintiffs represents
NCEC. Moreover, like Rule 34(a) of the Superior Court Rules of Civil Procedure, Rule 1.350(a) of the Florida Rules of Civil Procedure permits one party to obtain documents “that are in the possession, custody, or control of the party to whom the request is directed,” and many of the documents that the House has subpoenaed from NCEC appear to be in the control of NCEC’s principal, and therefore subject to discovery through the Romo Plaintiffs – not just directly from
NCEC.
The parties did not cite, and the Court could not find in its limited research, any cases addressing whether this Court is legally bound to follow the discovery rulings of the Florida
Circuit Court in these circumstances. Even if this Court were not legally bound, it would exercise its discretion to follow those rulings unless NCEC could persuade the Court that those
3
App. 196 rulings were clearly erroneous or that some other exceptional circumstances warranted
reconsideration. The Romo Plaintiffs made the same work product arguments to the Florida
Circuit Court that NCEC makes to this Court, and with its familiarity with the issues developed over the course of the underlying case (including the preliminary injunction hearing), the Circuit
Court is in the best position to evaluate arguments about the scope of discovery, including the
House’s need for this discovery. “A court with jurisdiction over a discovery dispute for an action pending in a different district generally has limited exposure to and understanding of the primary action,” and it “should hence be cautious in determining relevance of evidence, and in case of doubt should err on the side of permissive discovery.” Flanagan v. Wyndham Int’l Inc.,
231 F.R.D. 98, 103 (D.D.C. 2005) (citations omitted). The same principle counsels deference to discovery rulings of the forum court, at least absent a compelling showing that NCEC has not made.
The Florida Circuit Court’s rulings do not address two of NCEC’s arguments. The first is that compliance with the subpoena imposes an undue burden on NCEC, which is a third party, albeit an agent of a party. See NCEC Motion at 11-13. NCEC’s claims of burden are general and unsubstantiated, and NCEC has not shown that the burden is undue in light of the relevance that the Florida Circuit Court found the requested discovery has. Moreover, NCEC may have a right to compensation for its time from the Romo Plaintiffs and/or from the defendants under
Rule 26(b)(4)(C) of this Court or Rule 1.280(b)(4)(C) of the Florida Rules of Civil Procedure.
Second, NCEC argues that the subpoena covers trade secrets or confidential business information, particularly databases that NCEC used to develop the map. See NCEC Motion at
14-15. It is not clear to the Court that the discovery authorized by the Florida Circuit Court
covers these databases or other confidential business information, and to the extent it does, the
4
App. 197 solution is not to quash the subpoena but for NCEC to negotiate a reasonable protective order –
under Superior Court Rule 26(c) or Florida Rule 1.280(c). If the Florida Circuit Court has
already entered a protective order under Florida Rule 1.280(c), that order could be amended to
cover discovery from NCEC.
A substantial portion of the documents and information requested in the House subpoena
are clearly within the scope of the discovery authorized by the Florida Circuit Court, but some may be outside that scope. The Circuit Court authorized discovery of information relating to
“any [NCEC] map the Plaintiffs have or intend to present” to support their claim (Order
Resolving Discovery Motions at 2-3 ¶ 3), and it is not clear, for example, that documents relating
to redistricting of state legislative districts in Florida (see Addendum to Subpoena (Ex. A of
NCEC Motion)) fall within that limited scope. The parties have not briefed whether the House
has subpoenaed documents or information beyond the scope of the Florida Circuit Court’s
discovery orders, and the Court expects the parties to work together to resolve any disputes
regarding the scope of the House’s requests for documents or information. To the extent that the
Romo Plaintiffs or NCEC contends that any of the House’s requests violate the Florida Circuit
Court’s discovery rulings, they may raise that objection before the Circuit Court. It is
appropriate for the forum court to resolve any disputes regarding the scope of its discovery
rulings, and this Court will defer not only to the rulings of the Circuit Court authorizing
discovery relating to the NCEC map but also to its rulings limiting that discovery. The Romo
Plaintiffs have standing to seek a protective order from the Circuit Court to the extent the
defendants demand unjustified or overbroad discovery from the plaintiffs’ non-testifying expert,
just as NCEC (which is represented by the same lawyers) has the right to raise any objections
there as well as in this Court.
5
App. 198 III. CONCLUSION
For these reasons, the Court denies NCEC’s motion to quash.
______Anthony C. Epstein Judge Signed In Chambers
Date: February 22, 2013
Copies to:
John M. Devaney PERKINS COIE LLP 700 Thirteenth Street, N.E. Suite 600 Washington, DC 20005 Counsel for NCEC
William S. Consovoy Brendan J. Morrissey WILEY REIN LLP Washington, DC 20006 Counsel for the House
Docketed on February 22, 2013
6
App. 199 Exhibit H
App. 200 App. 201 App. 202 Exhibit I
App. 203 App. 204 App. 205 Exhibit J
App. 206 App. 207 App. 208 Exhibit K
App. 209 SUPERIOR COURT OF THE DISTRICT OF COLUMBIA CIVIL DIVISION RENE ROMO, * * Plaintiff, * Civil Case No. 2013 CA 006884 2 * Calendar II v. * Judge John M. Mott * KEN DETZNER, * * Defendant. *
ORDER
This court granted the Florida House of Representatives Petition for Subpoena that it filed in this court. The subpoena relates to litigation taking place in Florida, which concerns redistricting. Subsequently, this matter came before the court on Non-Party
[Democratic Congressional Campaign Committee’s] (the “DCCC’s”) Motion to Quash
Subpoena for Videoconference Deposition Duces Tecum or, In the Alternative, For a
Protective Order, the Florida House of Representatives’ (“the House’s”) opposition,
DCCC’s reply, and the various supplements thereto. The DCCC moves to quash the subpoena on the grounds that it: (1) violates the Florida’s Circuit Court’s discovery rulings; (2) violates the Superior Court Rules of Civil Procedure; and that (3) the requested discovery is unreasonably cumulative, duplicative, and obtainable from other sources. The House argues that the request does not violate any discovery rulings or this court’s rules, and that the discovery is not cumulative.
In the alternative, DCCC moves for a protective Order. The House argues that
DCCC is not entitled to a protective order under this court’s rules. For the reasons stated below, the court denies DCCC’s motion, but limits discovery pursuant to the Florida
Circuit Court’s rulings.
App. 210 Background
The House obtained the disputed subpoena in connection with a case pending before the Florida Circuit Court involving a challenge to a congressional redistricting plan that Florida adopted in February 2012. The DCCC maintains its headquarters in
Washington, D.C. The Florida case was consolidated with another Florida case involving substantively similar issues. The plaintiffs in the related case are a group that is supported by an organization called FairDistricts Now, Inc. (“FairDistricts”). The DCCC allegedly also supports the plaintiffs. The defendants are Ken Detzner, Florida’s
Secretary of State, and the Florida House and Senate. The plaintiffs allege that the redistricting plan violates the Florida Constitution’s ban on gerrymandering because the legislature adopted it with the intent to favor or disfavor a political party or incumbent.
The House denies these claims.
The House alleges that the DCCC, a partisan organization, participated in the creation of two redistricting maps that the plaintiffs intend to introduce at trial. The
House also alleges that DCCC is actively involved with directing and managing the litigation. Regardless of the level of DCCC’s involvement in this case, it is undisputed that DCCC held a meeting on February 13, 2013, at its Washington, D.C. headquarters that was attended by—from what the court can discern— the parties to the litigation, including FairDistrict, members of Congress, and other interested attendees. The parties dispute what occurred at the meeting and whether both maps were presented, and for what purpose.
Pursuant to the instant litigation, the House subpoenaed an appropriate representative of the DCCC to discuss topics relating to the “preparation, review, and
2
App. 211 approval of alternative redistricting maps by NCEC Services, Inc. … including the preparation of one or more redistricting maps [presented] to members of Congress” at the
February 13, 2013 meeting. The House also subpoenaed an appropriate representative to discuss all communications between the DCCC and FairDistricts, and all meetings between FairDistricts and the DCCC. In addition, the House subpoenaed various categories of documents, including documents relating to the February 13, 2013 meeting and all communications between the DCCC and FairDistricts concerning redistricting in
Florida.
Analysis
Pursuant to Rule 28, this court may entertain motions to quash subpoenas related to actions pending in other jurisdictions of the United States “as if the action were pending in this Court.” The Florida Circuit Court, however, has issued discovery rulings directly relevant and binding to the subpoena and the instant motion. On January 17,
2013, the Circuit Court found that:
for any alternative map the Plaintiffs have or intend to present, either in part or whole, as evidence in this case, Defendants are entitled to discovery requested, including documents and information relating to the process by which alternative maps were prepared, identities of individuals who prepared them, and activities and communications concerning alternative maps.
See The House’s Opp’n Ex. C; see also Romo v. Detzner, No. 2012-CA-9234 (D.C.
Super. Ct. Feb. 22, 2013) (order by Judge Epstein upholding the Florida Circuit Court’s discovery rulings). The Florida Circuit Court also held, however, that “what [the DCCC] may be politically wanting to accomplish by the litigation or by challenging or by the whole participation in the process of the map-drawing and then contesting it later, … is
3
App. 212 not relevant, not discoverable.” Pl.’s Ex. E. The court emphasized that it was only concerned with communications “directly affect[ing] the drawing of the map[s] ….” Id.
The court will not disturb the Florida Circuit Court’s rulings. This court allows parties to obtain “discovery regarding any matter … that is relevant to the claim or defense of any party ….” Super. Ct. Civ. R. 26(b)(1). This permissive discovery rule also allows for discovery, though not admissible at trial, that is “calculated to lead to the discovery of admissible evidence.” Roberts-Douglas v. Meares, 624 A.2d 405, 415 (D.C.
1992). When a Superior Court Rule of Civil Procedure and the corresponding Federal
Rule of Civil Procedure are substantively identical, this court “may look to federal court decisions in interpreting the federal rule as persuasive authority in interpreting the local rule.” Williams v. United States, 878 A.2d 477, 482 (D.C. 2005) (citations omitted). “A court with jurisdiction over a discovery dispute for an action pending in a different district generally has limited exposure to and understanding of the primary action,” and it
“should hence be cautious in determining relevance of evidence, and in case of doubt should err on the side of permissive discovery.” Flanagan v. Wyndham Int’l Inc., 231
F.R.D. 98, 103 (D.D.C. 2005) (citations omitted) (interpreting Federal Rules 26, 30, and
45, which are substantively identical to Superior Court Rules 26, 30, and 45). Judge
Epstein, in an Order denying a similar, separate Motion to Quash filed by NCEC
Services, relied upon this same analysis. See Romo, et al. v. Detzner, et al., No. 12-CA-
9234 (D.C. Super. Ct. Feb. 22, 2013). Accordingly, this court will defer to the discovery rulings of the forum court.
Based on these rulings discussed above, some of the documents and information the House requested in its subpoena may fall within the scope of the Florida Circuit
4
App. 213 Court’s discovery ruling, and some may undeniably fall outside of that scope. This court, of course, will defer to any further clarifications on the scope of discovery that the
Florida Circuit Court issues between now and the end of discovery.
Rule 30, which limits depositions to a maximum of ten without leave of the court, applies to the instant motion. From what the court can discern, the House has only taken three depositions in the District. For that reason, the court will not quash the subpoena on this ground. While parties are normally supposed to seek leave of the court before requesting a subpoena, this case originated as a Petition for Subpoena, and the court finds that a prior request would have been impossible, as a case would not have been pending.
The House took the appropriate avenue to request its subpoena, which this court issued.
The DCCC also contends that the requested discovery is cumulative, duplicative, and obtainable elsewhere. The court rejects this argument. Simply put, the House has a right to depose and request discovery from the DCCC, so long as the requested discovery is within the scope of the Florida Circuit Court’s ruling. Moreover, this court allows a broad range of discovery requests. Consequently, the court finds that the request is not cumulative, duplicative, or obtainable elsewhere.
In the alternative, DCCC seeks a protective order. While DCCC may receive a protective order under certain circumstances, see Super. Ct. Civ. R. 26, the court finds that those conditions do not exist in this case. The limited videoconference deposition and document requests will not overly burden the DCCC, and at least some evidence is possibly within the Florida Circuit Court’s rulings. As for the DCCC’s concerns about impermissible questions and evidence, the court trusts that the House will not exceed the scope of this Order. Moreover, discovery is often broader than what is allowed in
5
App. 214 evidence, and the parties can object to any impermissible evidence before and during trial. The DCCC may also raise objections during the deposition pursuant to Rule 30(d).
Therefore, it is this 14th day of April, 2014, hereby
ORDERED that the DCCC’s motion is DENIED; and it is further
ORDERED that the House shall limit its discovery request as outlined above.
______The Honorable John M. Mott Associate Judge (Signed in Chambers)
COPIES TO: John Devaney Brendan J. Morrissey Via CaseFileXPress
6
App. 215 Exhibit L
App. 216 1
IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT, IN AND FOR LEON COUNTY, FLORIDA
RENE ROMO, et al.
Plaintiffs, vs. CASE NO: 2012-CA-412
KEN DETZNER and PAM BONDI,
Defendants.
THE LEAGUE OF WOMEN VOTERS OF FLORIDA, et al.
Plaintiffs, vs. CASE NO: 2012-CA-490
KEN DETZNER, et al.
Defendants. /
IN RE: Pending Motions
BEFORE: HONORABLE TERRY P. LEWIS
DATE: May 9, 2014
TIME: Commenced at 9:00 a.m. Adjourned at 2:30 p.m.
PLACE: Leon County Courthouse Tallahassee, Florida
REPORTED BY: SARAH B. GILROY, RPR, CRR [email protected] Notary Public in and for the State of Florida at Large
ACCURATE STENOTYPE REPORTERS, INC. App. 217 2
1 APPEARANCES:
2 REPRESENTING THE ROMO PLAINTIFFS: ELIZABETH C. FROST, ESQUIRE - Telephonic 3 ABHA KHANNA, ESQUIRE - Telephonic Perkins Coie, LLP 4 700 Thirteenth Street, NW, Suite 700 Washington,D.C., 20005 5 and MARK HERRON, ESQUIRE 6 Messer, Caparello & Self Post Office Box 1876 7 Tallahassee, Florida 32302
8 REPRESENTING THE COALITION PLAINTIFFS: DAVID B. KING, ESQUIRE 9 THOMAS A. ZEHNDER, ESQUIRE VINCE FALCONE, ESQUIRE - Telephonic 10 TEA SISIC, ESQUIRE - Telephonic King, Blackwell, Zehnder & Wermuth 11 25 East Pine Street Orlando, Florida 32301 12 REPRESENTING THE FLORIDA HOUSE: 13 GEORGE N. MEROS, JR., ESQUIRE ANDY BARDOS, ESQUIRE 14 GrayRobinson 301 South Bronough Street, Suite 600 15 Tallahassee, Florida
16 REPRESENTING THE FLORIDA SENATE: JASON ZAKIA, ESQUIRE 17 JESSE L. GREEN, ESQUIRE - Telephonic White & Case 18 Southeast Financial Center 200 South Biscayne Boulevard, Suite 4900 19 Miami, Florida 33131
20 REPRESENTING THE NONPARTIES: 21 D. KENT SAFRIET, ESQUIRE THOMAS PHILPOT, ESQUIRE 22 Hopping, Green & Sams 119 North Monroe Street 23 Tallahassee, Florida 32301
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ACCURATE STENOTYPE REPORTERS, INC. App. 218 3
1 ALSO PRESENT: DAVID P. HEALY, ESQUIRE - Telephonic 2 ASHLEY DAVIS, ESQUIRE - Telephonic ELLEN FRIEDEN - Telephonic 3 JERRY WILSON, ESQUIRE GARY FINEOUT 4
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ACCURATE STENOTYPE REPORTERS, INC. App. 219 4
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ACCURATE STENOTYPE REPORTERS, INC. App. 220 5
09:04 1 THE COURT: Welcome. Have a seat. Okay. So
09:04 2 do I understand that y'all are also scheduled
09:04 3 Monday sometime?
09:04 4 MR. ZEHNDER: Your Honor, that's correct.I
09:04 5 think at least there is a motion filed by the
09:04 6 legislative parties to strike certain of the Romo
09:04 7 plaintiffs' experts. And, Judge, before we begin,
09:04 8 I think some folks are going to call in by
09:04 9 telephone, but I'm not sure exactly how that's
09:04 10 logistically happening.
09:04 11 THE COURT:I don't see a telephone up here.
09:04 12 MR. ZEHNDER: There was one circulated I think
09:04 13 by your firm; is that right, on the hearing notice?
09:05 14 For example, the Romo plaintiffs are going to
09:05 15 appear by phone. You will recall Mr. Devaney had
09:05 16 the conflict with today's date.
09:05 17 I guess we need to figure out what's happening
09:05 18 with that, Judge.
09:05 19 THE COURT:I don't see a phone up here.I
09:05 20 don't know how they're going to participate.
09:05 21 MR. ZEHNDER:I just received an e-mail from
09:05 22 Abha Khanna, with the Perkins, Coie firm, saying
09:05 23 that she's called in, and the line is silent. So
09:05 24 they're trying. And I have the number that they
09:05 25 have; they forwarded to me this morning. But we --
ACCURATE STENOTYPE REPORTERS, INC. App. 221 6
09:05 1 the Coalition plaintiffs didn't set it up.
09:05 2 MR. MEROS:I can tell you what the number is
09:05 3 or give it to the Court.
09:05 4 THE COURT: Having the number isn't going to
09:05 5 do you a lot of good, guys. Having the number
09:05 6 isn't going to do you a lot of good without a
09:05 7 phone.
09:05 8 (Discussion off the record).
09:06 9 THE COURT: What's the time reserved on
09:06 10 Monday?
09:06 11 MR. ZEHNDER: Judge, not our motion. How much
09:06 12 time did you guys reserve for Monday?
09:06 13 MR. MEROS:I think it was 30 minutes.
09:06 14 THE COURT: Is that all?
09:06 15 MR. MEROS: I'm sorry.I don't -- I will have
09:06 16 to check.I don't know.
09:06 17 THE COURT: Well,I didn't ask Laura, but I
09:06 18 thought she told me that you have them today and
09:06 19 Monday afternoon or something.
09:06 20 MR. MEROS:I think -- there is only one
09:06 21 motion up. But I will -- we will double-check and
09:06 22 let you know.
09:06 23 THE COURT: Well,I know you have a lot to
09:06 24 cover, and I hate to waste any more time.I can
09:06 25 give you most of the day.I can go to lunch, and I
ACCURATE STENOTYPE REPORTERS, INC. App. 222 7
09:06 1 can come back and give you a couple hours in the
09:06 2 afternoon. But then I've got to go. Whatever time
09:06 3 you've got on Monday I can give you.
09:06 4 But do we need to wait until we can locate a
09:06 5 phone?
09:06 6 (Discussion off the record).
09:07 7 MR. ZEHNDER: Your Honor, may I approach?
09:07 8 There is an updated list of the various pending
09:07 9 motions.
09:07 10 THE COURT: Different than what you had --
09:07 11 MR. ZEHNDER: It supplements the joint
09:07 12 pretrial statements. Some of these motions are
09:07 13 going to be argued today, and some we will have to
09:07 14 figure out when we can argue them, based on your
09:07 15 schedule, obviously.
09:08 16 (Discussion off the record).
09:12 17 THE COURT: This is Judge Lewis. Can you hear
09:12 18 me?
09:13 19 (Inaudible).
09:13 20 THE COURT: Can you say that slower?
09:13 21 MS. FROST: Elizabeth Frost for the Romo
09:13 22 plaintiffs from Perkins Couie.
09:13 23 MS. KHANNA: This is Abha Khanna,A-B-H-A;
09:14 24 last name is K-H-A-N-N-A, also for the Romo
09:14 25 plaintiffs.
ACCURATE STENOTYPE REPORTERS, INC. App. 223 8
09:14 1 THE COURT: Do we have anybody else on the
09:14 2 phone? Were we expecting anybody else?
09:14 3 MR. ZEHNDER: All I was aware of, Your Honor,
09:14 4 were the Romo plaintiffs.
09:14 5 THE COURT: All right. Ms. Khanna, Ms. Frost,
09:14 6 will y'all be participating, speaking during this?
09:14 7 MS. KHANNA:I may be. Of course Tom in the
09:14 8 room will take the lead, but I may be following up.
09:14 9 THE COURT: Okay. If you do, just repeat your
09:14 10 name so the court reporter will know who is
09:14 11 talking; that's all.
09:14 12 MS. KHANNA:I will do so. Thanks.
09:14 13 THE COURT: Okay. So first thing I think we
09:14 14 need to do is have a reality check here. And that
09:14 15 is I saw your pretrial statement. First of all,
09:14 16 your math is off. If you take the time that you've
09:14 17 allocated, it's going to be more than three weeks.
09:14 18 And the second thing is, you don't have three
09:14 19 weeks.
09:14 20 You said this was a two-week trial. And I
09:15 21 said, if you go a little bit over, it's a trial
09:15 22 week for me the next week;I can go a little bit
09:15 23 over. But I can't go the entire week. My JA
09:15 24 scheduled stuff;I moved my trials around. So we
09:15 25 need to figure out how to streamline this thing.
ACCURATE STENOTYPE REPORTERS, INC. App. 224 9
09:15 1 So you may have to cut out something or take less
09:15 2 time in your arguing.
09:15 3 I don't need a lengthy opening statement. As
09:15 4 a matter of fact, maybe you can do an opening
09:15 5 statement -- weren't you going to do trial briefs?
09:15 6 MR. ZEHNDER: Yes, Your Honor, due today.
09:15 7 THE COURT: Here is what we think the law is
09:15 8 and the facts and why we want you to rule the way
09:15 9 we want you to rule. That is one area maybe you
09:15 10 can cut down.
09:15 11 Here is the problem. Even if I could go to
09:15 12 there,I've got to get you a decision out
09:15 13 sometime -- before I go into --I don't know if you
09:15 14 know, but we're rotating around. July 1, I'm going
09:16 15 into criminal. And I have absolutely no time in
09:16 16 June.
09:16 17 After we get through -- if we went that whole
09:16 18 three weeks, that would be absolutely tops, because
09:16 19 I'm gone for two of those weeks on judicial
09:16 20 education, and everything else is stacked up. And
09:16 21 criminal is -- you know, I'm in there.I don't
09:16 22 know how much time I'm going to have.
09:16 23 What I'm saying, if we got into that third
09:16 24 week, and y'all weren't done,I don't know when you
09:16 25 will ever get done. You would have to start over
ACCURATE STENOTYPE REPORTERS, INC. App. 225 10
09:16 1 with another judge, and you do not want to do that,
09:16 2 I don't think.
09:16 3 Can we put our heads together and think about
09:16 4 what it is you can streamline in the presentation
09:16 5 so it won't take the length that you estimate now?
09:16 6 MR. ZEHNDER: We will do that, Your Honor.
09:16 7 THE COURT: What do you think? What can we
09:16 8 do?
09:16 9 MR. KING: Your Honor, it seems to me like, if
09:16 10 we can streamline some of the presentation of the
09:17 11 evidence as far as objections about documents, that
09:17 12 will speed things along. We will look at our
09:17 13 witness list --I mean, we go first. And we will
09:17 14 look at our witness list and try to figure out how
09:17 15 we can streamline it.
09:17 16 But there are a lot of documents that we need
09:17 17 to talk about with the Court.
09:17 18 THE COURT: It may be -- before we get into
09:17 19 that for a second,I have my clerk here.
09:17 20 Somebody else join on the phone?
09:17 21 MS. DAVIS: Ashley Davis with the secretary of
09:17 22 state.
09:17 23 THE COURT: Okay. Ms. Davis, we got you here.
09:17 24 We just got started.
09:17 25 The clerk, there were some questions about
ACCURATE STENOTYPE REPORTERS, INC. App. 226 11
09:17 1 exhibits and things. And let's go ahead and take
09:17 2 care of that, let my clerk leave, if we can.
09:17 3 MR. MEROS: Your Honor, you might be talking
09:17 4 about the question of exhibits by CD, electronic
09:17 5 exhibits, rather than paper?
09:17 6 THE COURT: Uh-huh.
09:18 7 MR. MEROS: We certainly spoke with the
09:18 8 clerk's office about whether that was permissible
09:18 9 to have CDs and electronic versions of the
09:18 10 documents, because they are so voluminous. It's my
09:18 11 understanding -- is it okay with the Court and with
09:18 12 the clerk's office?I don't know what the
09:18 13 plaintiffs intend to do or not.
09:18 14 THE COURT: Well,I have the clerk's
09:18 15 representative here. And my understanding was it's
09:18 16 okay on CD.
09:18 17 THE CLERK: CD, but not on flash drive.
09:18 18 THE COURT: If you want to do a CD, that's
09:18 19 okay.
09:18 20 MR. KING: My question, Your Honor, from the
09:18 21 Coalition plaintiffs is, how do you want the
09:18 22 evidence? In other words,I would anticipate that
09:18 23 we would be using a screen. We would have the
09:18 24 electronic evidence up, if you need it. But I
09:18 25 would assume that we would be showing the witness a
ACCURATE STENOTYPE REPORTERS, INC. App. 227 12
09:18 1 hard copy, and we would have a hard copy for you.
09:18 2 Is that the way you would want it?
09:18 3 THE COURT: Well, I'm of mixed mind. I'm
09:19 4 conscious that that's a lot of paper.I don't want
09:19 5 to unnecessarily have everybody have the cost and
09:19 6 also kill the trees and all that stuff.I can --I
09:19 7 can usually -- if you give it to me,I can take the
09:19 8 thumb drive myself, flash drive, or CD, doesn't
09:19 9 matter to me. If there is something that's really
09:19 10 important, you might want to give me a hard copy,
09:19 11 because it's easier, especially if a lot of maps
09:19 12 and things, hard to maneuver. But I'm okay with
09:19 13 electronic as well.
09:19 14 MR. KING: Your Honor, could we talk about the
09:19 15 map situation just a moment?
09:19 16 THE COURT: Okay.
09:19 17 MR. KING:I think it might be useful.
09:19 18 THE COURT: Is there anything else we need to
09:19 19 talk with the clerk about? CDs is the only
09:19 20 question?
09:19 21 MR. MEROS: No, Your Honor.
09:19 22 THE COURT: You're free to stay or go.
09:19 23 THE CLERK: Thank you, Judge.
09:19 24 MR. KING: Your Honor, one thing while the
09:19 25 clerk is here, just to be sure we understand. In
ACCURATE STENOTYPE REPORTERS, INC. App. 228 13
09:19 1 other words, we have a lot of exhibits that there
09:19 2 is agreement on; in other words they don't object
09:20 3 to our exhibit.
09:20 4 It seems to me like that before the trial we
09:20 5 ought to get those marked up so that we don't have
09:20 6 to mess with that once we get into the trial. That
09:20 7 could all be marked beforehand; is that okay with
09:20 8 the Court?
09:20 9 THE COURT: Absolutely.I encourage it.
09:20 10 MR. MEROS: If I may just -- it's a good thing
09:20 11 to elaborate on and talk out, because we certainly
09:20 12 are hoping we can have a joint set of exhibits that
09:20 13 are many of the iterations of the map. At the
09:20 14 same -- and there will certainly be some things by
09:20 15 hard copy, perhaps some transcript of proceedings
09:20 16 that we may or may not want.
09:20 17 But at the same time we want the Court to know
09:20 18 we have been working with the court technology
09:20 19 folks about having a monitor at the witness stand,
09:20 20 having improved monitors here, so that all the
09:20 21 things that MyDistrictBuilder and other things can
09:21 22 be imaged.
09:21 23 And so one of the questions is, okay, there
09:21 24 will be some hard copy maps. But all of it is
09:21 25 contained in the -- in this electronic version.
ACCURATE STENOTYPE REPORTERS, INC. App. 229 14
09:21 1 How would one -- or how does the Court want us to
09:21 2 mark that sort of exhibit? Because frankly, Your
09:21 3 Honor, this is such a strange case, because Exhibit
09:21 4 1 and Exhibit 2 are millions of data points and
09:21 5 millions of pieces of geography, which we all have
09:21 6 used. And all of these are just kind of subsets or
09:21 7 demonstrative aids of pieces of that.
09:21 8 We have kind of struggled with the notion as
09:21 9 to what is really Exhibit A, Exhibit B, Exhibit C
09:21 10 in that context.
09:21 11 THE COURT: That's why you get paid a lot of
09:21 12 money. You have to figure that out.I don't know.
09:21 13 It seems to me that you just mark it like you
09:21 14 would -- if it was in hard copy, a lot of paper,
09:22 15 you would say, this is legislative defendant's
09:22 16 number 1 or composite exhibit No. 1, and A,B,C,
09:22 17 D, however you do it, to the extent you need to
09:22 18 identify a subpart of that.
09:22 19 But if it's a lot of -- just a lot of
09:22 20 information together, it's like having a bunch of
09:22 21 photographs, Exhibit A that has 7 photographs.
09:22 22 MR. MEROS: We will work it out.
09:22 23 THE COURT: I'm flexible. You can give it to
09:22 24 me hard copy, electronic -- if you're going to
09:22 25 display things,I will see it. And later if I want
ACCURATE STENOTYPE REPORTERS, INC. App. 230 15
09:22 1 to look at it again, if I want to look at it,I can
09:22 2 pull it back up.
09:22 3 If you think it's more effective to give me a
09:22 4 hard copy, I'm certainly open to that too. Just
09:22 5 want to save you the trouble and expense of it.
09:22 6 MR. KING: Your Honor, I'm just going to show
09:22 7 him -- show the convention of the way we have named
09:23 8 these maps. You've seen them in the deposition.
09:23 9 Your Honor, we are awash in maps in this case.
09:23 10 There are 70 House draft maps. There are 33 Senate
09:23 11 draft maps. And Mr. Reichelderfer had 133 maps in
09:23 12 his possession, 80 of which are Congressional maps.
09:23 13 And so what we have proposed, and the way we
09:23 14 have done it in depositions -- in other words is,
09:23 15 we have put a naming convention at the top of the
09:23 16 page for these maps to show if it's a map produced
09:23 17 by Reichelderfer, we have got RD. If it's a map
09:23 18 produced by the House, we have got HD.
09:23 19 And the same for the Senate, so that we can
09:23 20 tell these things apart as we're dealing with them.
09:23 21 And so we will have the date and the place it came
09:23 22 from, and then the rest of the title is the
09:24 23 information that was on the file.
09:24 24 THE COURT: Sounds logical to me.
09:24 25 MR. KING: That's what we're going to do to
ACCURATE STENOTYPE REPORTERS, INC. App. 231 16
09:24 1 try to keep up with all of these maps. So we would
09:24 2 be putting in -- and understand, Your Honor, the
09:24 3 point Mr. Meros makes is that, we put in a picture
09:24 4 of a map, and the statistics on the second page
09:24 5 that go with it, that show the breakdown of the
09:24 6 population. But as he points out, there are
09:24 7 boundaries -- the technical composition of that map
09:24 8 takes hundreds of pages.
09:24 9 And we don't think you need to be involved
09:24 10 with that, or we don't need to be involved with
09:24 11 that in the process of this trial.
09:24 12 THE COURT: Okay.
09:24 13 MR. KING: But that would be in the electronic
09:24 14 version of that particular map.
09:24 15 THE COURT: Oh,I see what you're saying. The
09:24 16 actual official -- the court exhibit would have all
09:24 17 of that in there, but for purposes of showing it to
09:25 18 me, it wouldn't be in there.
09:25 19 MR. KING: If you pull this map up on
09:25 20 MyDistrictBuilder, all of these maps can be pulled
09:25 21 up on MyDistrictBuilder, and they will spill out
09:25 22 the facts that go with them.
09:25 23 MR. MEROS: Your Honor, the only -- there is a
09:25 24 caveat to that; and that is, to the extent that
09:25 25 they have made a naming convention that asserts
ACCURATE STENOTYPE REPORTERS, INC. App. 232 17
09:25 1 something whether this person's or that person's,
09:25 2 that could be a problem if there is a contest about
09:25 3 that.I mean, they could just put a file name and
09:25 4 when it -- by whom it was produced or whatever.
09:25 5 But I can't say that we can state for certain
09:25 6 that their convention properly represents or
09:25 7 misrepresents what actually is the document and who
09:25 8 received it when.
09:25 9 THE COURT: Well,I would assume they would
09:25 10 have to establish a foundation for that title.
09:25 11 MR. MEROS: Again, I'm not sure that there is
09:25 12 a problem with that. But I don't want to --I
09:26 13 don't want to automatically agree that each of
09:26 14 those conventions --
09:26 15 THE COURT: Can you get together with them and
09:26 16 say,I agree with this;I don't agree, so these
09:26 17 know they have to go further?
09:26 18 MR. KING: Right, Your Honor. This is
09:26 19 something that ought to be worked out before trial.
09:26 20 They know the list of maps that they've produced.
09:26 21 They know the list of maps the Senate produced.
09:26 22 And we all know the list of maps that
09:26 23 Mr. Reichelderfer produced.
09:26 24 And,I might add, that two -- some of those
09:26 25 maps will be adding the metadata. And we have
ACCURATE STENOTYPE REPORTERS, INC. App. 233 18
09:26 1 provided them the metadata, because it establishes
09:26 2 when the map was last modified, and that's
09:26 3 important in this case.
09:26 4 And we shouldn't have to fuss about that at
09:26 5 the trial. We're providing it to them. If they
09:26 6 think we have got the metadata wrong, then they
09:26 7 ought to let us know beforehand so we can agree on
09:26 8 it and not have you involved in that mess.
09:26 9 THE COURT:I believe that's why I was
09:26 10 suggesting that he get with you. And to the extent
09:27 11 there is some disagreement, you will know, and you
09:27 12 will be able to address it.
09:27 13 And my clerk is welcome to stay.I understood
09:27 14 you had other things you needed to do.
09:27 15 THE CLERK: Well, if you need me --
09:27 16 THE COURT: No. But is there something else
09:27 17 you wanted to tag on?
09:27 18 (Discussion off the record).
09:27 19 THE COURT: So your exhibits are 1, 2, 3, et
09:27 20 cetera, with subparts?
09:27 21 MR. ZEHNDER: Just to clarify, what we would
09:27 22 propose is, we will provide the clerk with CDs of
09:27 23 our proposed exhibits; they would do the same. If
09:27 24 we have joint pre-marked exhibits, obviously those
09:27 25 would be on there.
ACCURATE STENOTYPE REPORTERS, INC. App. 234 19
09:27 1 And then as we proceed through the trial for
09:27 2 exhibits that each of us use that weren't part of
09:27 3 the pre-marked set, we would add those to a CD to
09:27 4 provide for you. So you would have a complete set
09:27 5 of all the trial exhibits that have been marked.
09:27 6 THE CLERK: That's fine. Will there be a
09:27 7 printed copy of what's on the CD? That's really
09:28 8 what I need.
09:28 9 THE COURT: Index?
09:28 10 MR. ZEHNDER: Absolutely. We can provide an
09:28 11 index. Each day we will figure out where we are,
09:28 12 what trial exhibits got marked, and everybody is on
09:28 13 the same page.
09:28 14 THE COURT: That way she can mark what comes
09:28 15 in, what doesn't. And if you want to get a time,I
09:28 16 guess -- well, would they just contact you directly
09:28 17 or somebody else?
09:28 18 THE CLERK: Normally my boss, Dana.
09:28 19 THE COURT: Get with Dana Cook.
09:28 20 THE CLERK: Cook.
09:28 21 THE COURT: Dana Cook is the clerk who you
09:28 22 want to get with ahead of time, get everything
09:28 23 pre-marked, so they know what's in. You can stand
09:28 24 up and say, Judge, by agreement, exhibit so-and-so,
09:28 25 all of these exhibits are now in evidence.
ACCURATE STENOTYPE REPORTERS, INC. App. 235 20
09:28 1 MR. ZEHNDER: Thank you, Your Honor. We will
09:28 2 do that.
09:28 3 Judge, if we could, we have an issue with the
09:28 4 nonparties that we thought we would try to address
09:28 5 right at the beginning, and they can go back to
09:28 6 work.
09:28 7 THE COURT: Okay. Like I said,I was told my
09:28 8 clerk had other things to do, and I want to make
09:28 9 sure if she needs to go, she can. Anything else
09:29 10 with the clerk?
09:29 11 You're welcome to stay as long as you want.
09:29 12 THE CLERK: Okay. But I don't have anything
09:29 13 to do. If I'm not needed --
09:29 14 THE COURT:I don't want to say you're not
09:29 15 needed. It may be very interesting.
09:29 16 MR. ZEHNDER: Your Honor, one point of order.
09:29 17 This issue may impact the clerk, because, as I
09:29 18 understand it, they're going to ask that the
09:29 19 documents that we would like to use that they just
09:29 20 produced to us pursuant to the court order that
09:29 21 were confidential, they want them under seal. And,
09:29 22 you know,I don't know exactly how that works with
09:29 23 the clerk.
09:29 24 I know that there are rules specifically on
09:29 25 what can be sealed and what can't. So those are
ACCURATE STENOTYPE REPORTERS, INC. App. 236 21
09:29 1 logistical issues that we wanted to try to talk
09:29 2 through this morning.
09:29 3 THE COURT: Well, regardless of what the
09:29 4 clerk's rules are,I think anything that's -- that
09:29 5 is introduced as evidence in the trial that's
09:29 6 considered by me is going to have to be public. So
09:29 7 I will have to resolve that issue if you intend to
09:29 8 use it.
09:29 9 What I ruled earlier was, it's subject to
09:29 10 confidentiality, and you can't disclose it unless
09:30 11 you plan to use it somehow. And then I will have
09:30 12 to --I've already ruled it's there. So the only
09:30 13 thing is if the nonparty -- nonparties wanted to
09:30 14 appeal, then obviously it would be an issue. If
09:30 15 they're not going to appeal, it's going to be there
09:30 16 for use.
09:30 17 MR. ZEHNDER: And that was our understanding.
09:30 18 Once we get to trial, if the documents come into
09:30 19 evidence, they're in evidence. We're not going to
09:30 20 clear out the courtroom every time we want to try
09:30 21 to use one of those documents.
09:30 22 The other problem is we haven't been able to
09:30 23 give them to the legislative defendants yet or the
09:30 24 Romo plaintiffs, for that matter.I think they
09:30 25 would like to see them, since they're on our
ACCURATE STENOTYPE REPORTERS, INC. App. 237 22
09:30 1 exhibit list, and we would like the Court's
09:30 2 permission to provide them, and they can continue
09:30 3 to keep them confidential until they get to the
09:30 4 trial.
09:30 5 MR. PHILPOT: Your Honor, briefly? In order
09:30 6 to provide them to the Legislature, there are
09:30 7 obviously public records implications with that.
09:30 8 That is part of the reason why the nonparties would
09:30 9 be seeking Your Honor's ruling to seal those
09:30 10 records before producing them to the other parties
09:31 11 in the case, particularly the legislative parties.
09:31 12 THE COURT:I will give you a ruling these
09:31 13 will not be public records. They're not given to
09:31 14 the Legislature as a public record; they're given
09:31 15 as part of litigation. But they're going to be
09:31 16 public. They're going to be my public record as a
09:31 17 court.
09:31 18 So once introduced, no way to get around that.
09:31 19 If a member of the news media, for example, wants
09:31 20 to see it, they're going to get to see it.
09:31 21 MR. PHILPOT: Your Honor, with that said, what
09:31 22 the plaintiffs use in the case, may be exhibits,
09:31 23 would Your Honor be willing to entertain a return
09:31 24 of the documents that you've already ruled are
09:31 25 privileged to the extent they're not used in the
ACCURATE STENOTYPE REPORTERS, INC. App. 238 23
09:31 1 trial?
09:31 2 THE COURT: Oh, absolutely.
09:31 3 MR. PHILPOT: So we could get an order for the
09:31 4 Coalition plaintiffs and all the parties to return
09:31 5 the privileged documents to Data Targeting
09:31 6 following the trial to the extent they're not used
09:31 7 in evidence?
09:31 8 THE COURT: Absolutely.I would think that
09:31 9 would be part of the confidentiality agreement or
09:31 10 order, that if not used in trial, they're still
09:31 11 confidential, doesn't get to any other person.
09:31 12 MR. ZEHNDER: That's fine with us on behalf of
09:32 13 the Coalition plaintiffs. In the meantime it's
09:32 14 okay, then, if we provide a set of the documents on
09:32 15 the exhibit list to the other parties in the case,
09:32 16 to their lawyers?
09:32 17 THE COURT: Yeah. Although, like I said, they
09:32 18 have --I don't know if it's appeal rights, but
09:32 19 rights for review if you want to. And if they want
09:32 20 to,I-- it would be over if the documents are
09:32 21 disclosed. See what I'm saying?
09:32 22 So I don't know; can you make any
09:32 23 representations whether the nonparties intend to
09:32 24 seek review of my order?
09:32 25 MR. PHILPOT: Your Honor, with your ruling
ACCURATE STENOTYPE REPORTERS, INC. App. 239 24
09:32 1 today that they will not be sealed for purposes of
09:32 2 evidence, we would need to revisit that with our
09:32 3 client to see if they have an interest in further
09:32 4 appeal.
09:32 5 THE COURT: Can you give me a time? The trial
09:32 6 starts --
09:32 7 MR. ZEHNDER:A week from Monday.
09:32 8 THE COURT: So we're kind of running tight to
09:32 9 give notice to the other side what those documents
09:32 10 are. Let me ask you this. Whether you do or
09:32 11 don't, would you agree, it gives you a little more
09:33 12 of a time that they can disclose to the legislative
09:33 13 defendant parties with the same confidentiality
09:33 14 requirement not to disclose it to somebody else, so
09:33 15 they can at least see what it is they plan to use?
09:33 16 MR. PHILPOT: Your Honor, to be specific on
09:33 17 that point, you ordered on May 2nd for us to
09:33 18 produce about 539 pages for purposes of this trial.
09:33 19 And the plaintiffs have reviewed those and
09:33 20 designated on their exhibit list about 87 of those
09:33 21 pages that may be an exhibit.
09:33 22 Our recommendation on behalf of the nonparties
09:33 23 would be that only the 87 pages that have been
09:33 24 identified as exhibits be disclosed to the
09:33 25 legislative parties.
ACCURATE STENOTYPE REPORTERS, INC. App. 240 25
09:33 1 THE COURT: Sure. If that's all they plan to
09:33 2 use, no reason to share with anybody else.
09:33 3 MR. ZEHNDER: Yeah, we identified I think 49
09:33 4 exhibits.I don't know if dates count. But those
09:33 5 are the ones we would provide to the legislative
09:33 6 defendants, to the NAACP, and to the Romo
09:33 7 plaintiffs, so that they can all prepare for the
09:33 8 trial.
09:33 9 MR. PHILPOT: So long as it's subject to the
09:33 10 confidentiality order, Your Honor, as we discussed,
09:33 11 we have no problem providing them to the
09:33 12 legislative parties in preparation for trial, those
09:34 13 87 pages.
09:34 14 THE COURT: Can you give me a date by which
09:34 15 they will know whether or not you plan to seek
09:34 16 review of that order?
09:34 17 MR. PHILPOT: We will make contact with the
09:34 18 client today and make every effort to make that
09:34 19 determination, at least by Monday.
09:34 20 MR. SAFRIET: Is there another hearing in this
09:34 21 case on Monday?
09:34 22 THE COURT: Sure is.
09:34 23 MR. SAFRIET: We will show up at the hearing
09:34 24 and notify the Court.
09:34 25 MR. ZEHNDER: Judge,I don't mean to beat a
ACCURATE STENOTYPE REPORTERS, INC. App. 241 26
09:34 1 dead horse.I just want to make sure we can also
09:34 2 provide them to the NAACP and Romo plaintiffs.
09:34 3 THE COURT: Subject to the same condition.
09:34 4 Somebody raising their hand in the back?
09:34 5 MR. FINEOUT: Your Honor,I hate to interfere
09:34 6 in the process. Gary Fineout from the Associated
09:34 7 Press. I'm trying to understand the intent of what
09:34 8 you just cited here and whether or not we, as a
09:34 9 news organization and other organizations, need to
09:34 10 get involved. I'm trying to understand, if I
09:34 11 understood what you just said, is that you are
09:34 12 going to allow them to hand over documents
09:35 13 confidentially to the legislative defendants; did I
09:35 14 understand that correctly?
09:35 15 THE COURT: Yeah.
09:35 16 MR. FINEOUT: All right.
09:35 17 THE COURT: To the parties -- all the parties
09:35 18 get to see what they plan to introduce, but it's
09:35 19 subject to --I entered an order earlier requiring
09:35 20 them to give those over to the plaintiff subject to
09:35 21 a confidentiality. Obviously if they use it in
09:35 22 their case, it becomes public. If they don't, then
09:35 23 it still remains confidential.
09:35 24 MR. FINEOUT: Thank you, sir.
09:35 25 MR. ZEHNDER: Thank you, Your Honor.
ACCURATE STENOTYPE REPORTERS, INC. App. 242 27
09:35 1 MR. SAFRIET: Thank you, Your Honor.
09:35 2 MR. PHILPOT: Thank you, Your Honor.
09:35 3 THE COURT: So back to -- how are we going to
09:35 4 cut down on the time it might take?
09:35 5 MR. MEROS: Well, Your Honor,I think next
09:35 6 week we're going to spend a lot of time trying to
09:35 7 get virtually no objections to the evidence, so
09:35 8 that we can do that seamlessly.A lot of it
09:36 9 electronic.
09:36 10 We are willing -- they're calling a number of
09:36 11 our witnesses in their direct. And we are -- we
09:36 12 have agreed and are willing to take them for our
09:36 13 testimony as well and not limit it to the scope of
09:36 14 the direct. And so that hopefully should limit
09:36 15 things.
09:36 16 THE COURT:I guess we could -- are you okay
09:36 17 with the idea of not having oral openings and
09:36 18 giving just your written trial briefs?
09:36 19 MR. MEROS:I think -- well, let us -- let us
09:36 20 think on that. We will tell you either later today
09:36 21 or Monday.I mean, this is --I don't know.
09:36 22 It's -- this is a case of enough complexity to
09:36 23 warrant some road map. But we will be providing
09:37 24 you a very detailed memorandum, trial brief today.
09:37 25 So let us think on that.
ACCURATE STENOTYPE REPORTERS, INC. App. 243 28
09:37 1 Oh, and forgive me. One thing that I think
09:37 2 could save practically a day is not having closing
09:37 3 argument, having -- because we -- any way you look
09:37 4 at it, we would ask the Court to accept proposed
09:37 5 findings of fact and conclusions of law because of
09:37 6 the length and the complexity of the case.
09:37 7 THE COURT:Y'all okay with that on the
09:37 8 plaintiffs' side?
09:37 9 MR. KING: Your Honor,I think we need to
09:37 10 bring this to a conclusion, the trial. And we
09:37 11 can't be in a situation -- at least I don't think
09:37 12 the Court wants to be in a position where we finish
09:37 13 the trial, and then there is some lengthy delay
09:37 14 while we provide written final arguments or finding
09:37 15 of facts.
09:37 16 We can try to get those ready. But I think we
09:37 17 ought to try to bring the matter to conclusion at
09:37 18 the conclusion of the trial.
09:37 19 THE COURT: Well,I do too. But I -- I'm
09:38 20 going to take it under advisement. No way I can
09:38 21 rule from the bench after that long of a trial.
09:38 22 As long as it doesn't take more than a few
09:38 23 days, that's okay, because it's going to take that
09:38 24 long for me to kind of get my thoughts together
09:38 25 anyway.
ACCURATE STENOTYPE REPORTERS, INC. App. 244 29
09:38 1 I always find that helpful anyway. Even if
09:38 2 you made an oral argument,I would like you to give
09:38 3 me something, doesn't have to be real lengthy.
09:38 4 That helps to cut and paste and get an order out
09:38 5 quicker.
09:38 6 Let's go back to the very beginning, and let's
09:38 7 look at -- anybody got a copy of the constitutional
09:38 8 amendment that we're going to be dealing with, the
09:38 9 requirements of drawing the map?I've got some
09:38 10 books back here probably.
09:38 11 I didn't see it in any of the pretrial
09:38 12 statements, maybe. But I know, because the
09:38 13 legislative defendants have --
09:38 14 MR. MEROS: Judge, we have it on the laptop if
09:39 15 you want it.
09:39 16 THE COURT: Well,I guess I could.I don't
09:39 17 want to take somebody's laptop.I can probably
09:39 18 find it in here.
09:39 19 MR. MEROS: Your Honor, here you go. Exhibit
09:39 20 A, George Levesque's computer.
09:39 21 THE COURT: You don't mind if I check out a
09:39 22 couple other things; do you (laughter)?
09:39 23 Okay. So this says no apportionment plan or
09:39 24 individual district shall be drawn with the intent
09:39 25 to favor or disfavor a political party or
ACCURATE STENOTYPE REPORTERS, INC. App. 245 30
09:39 1 incumbent. That's the first thing. And I know
09:39 2 that's going to be an issue; right?
09:39 3 MR. KING: Yes.
09:39 4 THE COURT: One of the motions that was filed
09:39 5 was, well, what does that mean when it says
09:40 6 no apportionment shall be drawn with the intent.
09:40 7 Whose intent are we talking about? The motion over
09:40 8 here says we're talking about the legislative
09:40 9 intent, the body, which, if that's true, if I go by
09:40 10 my understanding of traditional case law, that
09:40 11 would be a fairly narrow inquiry. And I didn't see
09:40 12 a response from the -- from the plaintiffs.
09:40 13 MR. ZEHNDER: Actually, Your Honor, we did
09:40 14 respond. Things are moving pretty quickly, and I
09:40 15 have a bench copy if you would like it.
09:40 16 THE COURT:I just didn't get it myself.
09:40 17 MR. ZEHNDER: May I approach, Your Honor?
09:40 18 THE COURT: Yes, sir.
09:40 19 MR. ZEHNDER: Judge, obviously it's our
09:40 20 position that the intent that's at issue in the
09:40 21 case is going to be evidenced by the individual
09:40 22 legislators and staffers who were actually involved
09:40 23 in the drawing process. And that keys not only
09:41 24 after the language of the amendment itself, but,
09:41 25 that the Court is focused on, but in the Supreme
ACCURATE STENOTYPE REPORTERS, INC. App. 246 31
09:41 1 Court's decision on legislative privilege, they
09:41 2 talk about that exactly, which is that the way we
09:41 3 find out about evidence of intent is, you talk to
09:41 4 the legislators and staffers who were involved.
09:41 5 And that's what we focused our discovery on.
09:41 6 THE COURT: More basically, my question is, is
09:41 7 it the Legislature's intent? What if the -- it
09:41 8 doesn't say shall -- no apportionment plan shall be
09:41 9 adopted, passed, et cetera. It says, no
09:41 10 apportionment plan or individual district shall be
09:41 11 drawn with the intent.
09:41 12 What if no member of the Legislature drew this
09:41 13 map? We contracted out to Mr. Smith over here. He
09:41 14 drew the map. We took it, looked at it. We think
09:41 15 this looks good, fair to us, let's adopt it. Okay.
09:41 16 Everybody vote. We agree.
09:41 17 Now, nobody in this group over here in the
09:42 18 Legislature had any intent contrary to this. They
09:42 19 thought it looked good. But the person that
09:42 20 actually drew the map didn't, or vice versa.
09:42 21 Somebody drew the map over here, gave it to the
09:42 22 Legislature. The Legislature adopted it and said,
09:42 23 oh, yeah, like it, because this is going to favor
09:42 24 our incumbents or political party.
09:42 25 Whose intent am I looking at?
ACCURATE STENOTYPE REPORTERS, INC. App. 247 32
09:42 1 MR. ZEHNDER: Well, Your Honor, fortunately
09:42 2 that didn't happen in this case. We know who drew
09:42 3 the maps or were involved in drawing the maps.
09:42 4 THE COURT: Who drew the maps -- the map that
09:42 5 is --
09:42 6 MR. ZEHNDER: There was a lead map drawer on
09:42 7 behalf of the House named Alex Kelly. And he had
09:42 8 an assistant, Jason Poreda. On the Senate side,
09:42 9 John Guthrie. We're going to put on evidence that
09:42 10 the operatives were involved in that drawing and
09:42 11 sharing ideas and providing feedback.
09:42 12 We also will show through the evidence there
09:42 13 was a small core group of legislative leaders who
09:42 14 were involved. And even though there were
09:43 15 committees with lots of members on them, those
09:43 16 folks really weren't involved at all. And we have
09:43 17 evidence about that.
09:43 18 THE COURT: So if let's say -- and I'm not
09:43 19 saying this is true; I'm just throwing out
09:43 20 examples.
09:43 21 If we have evidence that Alex Kelly had intent
09:43 22 to favor an incumbent or political party, and he
09:43 23 was involved, let's say significantly involved, in
09:43 24 the drafting of the maps that were eventually
09:43 25 adopted -- or the map, whatever -- would that
ACCURATE STENOTYPE REPORTERS, INC. App. 248 33
09:43 1 support a finding of a violation of this provision?
09:43 2 MR. ZEHNDER:I believe it would, Your Honor.
09:43 3 And we take instruction from, again, the Supreme
09:43 4 Court's decision on legislative privilege, where
09:43 5 they said on page 150: The communications with
09:43 6 individual legislators or legislative staff
09:43 7 members, if part of the broader process of
09:43 8 developing portions of the map, could directly
09:43 9 relate to whether the plan as a whole or any
09:43 10 specific districts were drawn with unconstitutional
09:44 11 intent.
09:44 12 So our view of the issue was, we will focus on
09:44 13 the folks who we find out were actually involved
09:44 14 and see what their intention was, and the
09:44 15 Legislature then will get attributed that intent,
09:44 16 because they designated those folks to draw these
09:44 17 maps. And that's the focus.
09:44 18 THE COURT: Okay. So you're looking to those
09:44 19 people who were involved in the actual drafting or
09:44 20 drawing of maps --
09:44 21 MR. ZEHNDER: Yes, the core group of folks and
09:44 22 the decision-makers who gave them, you know,
09:44 23 instruction about what to do when they negotiated
09:44 24 the final map, and then the secret process that the
09:44 25 Court talked about in its opinion, and that the
ACCURATE STENOTYPE REPORTERS, INC. App. 249 34
09:44 1 evidence supports, is also part of that case. And
09:44 2 you put it all together to come up with the
09:44 3 evidence of intent, which is whether the map or the
09:44 4 districts were drawn in violation of the
09:44 5 Constitution.
09:44 6 THE COURT: Okay. So is it -- the
09:44 7 fundamental, is it the intent of the people
09:44 8 involved, the smaller group, the legislative body,
09:44 9 for example, the leaders or the committee members
09:45 10 or whatever, or is it the intent of the body of the
09:45 11 whole to be proven by the intent of that smaller
09:45 12 group?
09:45 13 MR. ZEHNDER: Well, Your Honor,I would say
09:45 14 that the way we prove the intent of the body of the
09:45 15 whole is through the people who actually made the
09:45 16 decisions and were involved in the process. That's
09:45 17 what makes this situation different than the normal
09:45 18 constitutional challenge to a piece of legislation,
09:45 19 where you look at the language or the legislative
09:45 20 history and try to figure out what the intent is.
09:45 21 Here the court told us how to do this, you
09:45 22 know, go and talk to the people who were involved,
09:45 23 depose them, get their communications, find out
09:45 24 what really happened, and that will be the evidence
09:45 25 of the intent.
ACCURATE STENOTYPE REPORTERS, INC. App. 250 35
09:45 1 THE COURT:I know the language you're talking
09:45 2 about. That doesn't necessarily answer that
09:45 3 question, though, because you would do that anyway
09:45 4 if you were seeking out the legislative intent of
09:45 5 the body -- of the constitutional challenge or
09:45 6 anything else. You talk to who are the people
09:45 7 involved; what did they say at the time they passed
09:46 8 the legislation.
09:46 9 Those are all the different things -- I'm just
09:46 10 posing the question because it's never come up
09:46 11 before. This may be the first time it's ever been
09:46 12 argued, because it's the first time it's been
09:46 13 challenged, is, what are we talking about? What
09:46 14 were people talking about when they passed that?
09:46 15 MR. ZEHNDER:I agree, Your Honor. This is a
09:46 16 unique situation. And it is a question of first
09:46 17 impression in many respects. And the case law that
09:46 18 they're relying on about how you normally do this
09:46 19 and the intent of an individual legislator isn't
09:46 20 dispositive and things like that. It's different
09:46 21 than what we have got here, where the process is
09:46 22 really the key.
09:46 23 In apportionment 1 the court talked about the
09:46 24 map-drawing process being the heart of the case.
09:46 25 So what we have done, taking guidance from the
ACCURATE STENOTYPE REPORTERS, INC. App. 251 36
09:46 1 Supreme Court, is focused on finding out who was
09:46 2 involved and what they did, what their
09:46 3 communications were. And that's our evidence of
09:46 4 the intent of improper drawing of the map as a
09:46 5 whole and of individual districts.
09:47 6 So that's where we are, Judge.I know, you
09:47 7 know, this is a difficult legal issue for the Court
09:47 8 and one that the parties have briefed in the
09:47 9 current status.I think Mr. Zakia was going to
09:47 10 suggest that we wait for the Court to consider this
09:47 11 after you've heard the evidence. That may help
09:47 12 inform how this intent analysis will shake out.
09:47 13 THE COURT: Is that what you were going to
09:47 14 say?
09:47 15 MR. ZAKIA:I would like to respond if I
09:47 16 could. Yes. However, since Your Honor raised it
09:47 17 as an issue of concern, and Mr. Zehnder set forth
09:47 18 his position,I would like an opportunity to
09:47 19 respond.I think Your Honor put your thumb right
09:47 20 on the issue.
09:47 21 And whether you decide it now or decide it
09:47 22 after you hear the evidence will be up for Your
09:47 23 Honor.I think it is important to draw a
09:47 24 distinction between whose intent we're talking
09:47 25 about and how you prove that intent.
ACCURATE STENOTYPE REPORTERS, INC. App. 252 37
09:47 1 Everything he said about the legislative
09:47 2 privilege case -- which I understand; the Supreme
09:47 3 Court disagreed with some of our arguments about
09:47 4 how you would prove legislative intent and allow
09:48 5 depositions that we objected to.I get that. This
09:48 6 is a different issue. The hypothetical that Your
09:48 7 Honor posed is a telling one.
09:48 8 If you had -- first of all,I just have to say
09:48 9 this so that everyone is clear: We will prove at
09:48 10 trial -- or they will fail to prove, and we will
09:48 11 illustrate to Your Honor that they have failed to
09:48 12 prove the existence of any shadow process. There
09:48 13 was no shadow process; there was no improper intent
09:48 14 by any of these people.
09:48 15 But the theoretical question that Your Honor
09:48 16 answers is still relevant. If you had,
09:48 17 counterfactually and hypothetically, some staff
09:48 18 member that drew something with some improper
09:48 19 intent, and no one in the Legislature knew anything
09:48 20 about it, think about the implications of a finding
09:48 21 that this act of the Legislature is
09:48 22 unconstitutional, despite the absence of any
09:48 23 improper intent by any member.
09:48 24 So it has to be the intent of the body as a
09:48 25 whole. And we may have a fight with the plaintiffs
ACCURATE STENOTYPE REPORTERS, INC. App. 253 38
09:48 1 about how you prove that and what inferences the
09:48 2 court can draw; if you have nine legislators that
09:48 3 allegedly knew something, which of course, again,
09:49 4 the facts will show there were none.
09:49 5 But if -- whether you can infer some intent,
09:49 6 everyone else look the other way, those are all
09:49 7 issues of proof that Your Honor can wade through as
09:49 8 finder of fact.
09:49 9 But the legal issue, we would submit, is that
09:49 10 it must be the intent of the legislative body,
09:49 11 because a staff member or individual legislator or
09:49 12 anyone other than the legislative body is not
09:49 13 empowered to do anything with force of law.
09:49 14 And so -- and there is nothing in the Supreme
09:49 15 Court's opinion regarding legislative privilege
09:49 16 that contradicts that. It's just talking about how
09:49 17 you prove the intent of the legislative body,
09:49 18 whether there was this -- if there was a shadow
09:49 19 process, that may be relevant.
09:49 20 Okay. The Supreme Court found it may be
09:49 21 relevant didn't mean that one individual or two
09:49 22 people, be they staff or members, without any
09:49 23 involvement by the legislative -- any of the other
09:49 24 legislators, is sufficient to establish a violation
09:49 25 of the Constitution. It spoke to a totally
ACCURATE STENOTYPE REPORTERS, INC. App. 254 39
09:49 1 different issue.
09:49 2 So I think that distinction between how you
09:50 3 prove it and what it is is very important. Since
09:50 4 Your Honor raised it,I did want to address that
09:50 5 issue.
09:50 6 MS. FROST: Your Honor, this is Elizabeth
09:50 7 Frost for the Romo plaintiffs. Can we be heard on
09:50 8 this for just a moment?
09:50 9 THE COURT: Yes, ma'am.
09:50 10 MS. FROST:I apologize that you didn't
09:50 11 receive our response. And I know you would, but I
09:50 12 would request that you take a look at it. It lays
09:50 13 out some of these issues and addresses some of the
09:50 14 questions you're asking.
09:50 15 But just briefly,I think that, while this may
09:50 16 have been a matter of first impression,I do think
09:50 17 that there is language in the Florida Supreme
09:50 18 Court's ruling on legislative privilege that is
09:50 19 pretty clear on this issue. For example, they say
09:50 20 that we emphasized that this case is wholly unlike
09:50 21 the traditional lawsuit challenging a statutory
09:50 22 enactment where the testimony of an individual
09:50 23 legislator is not relevant to intent.
09:50 24 So I think there is --I think there is some
09:50 25 really helpful language there to help you, to guide
ACCURATE STENOTYPE REPORTERS, INC. App. 255 40
09:51 1 you in this. The other thing I would point out in
09:51 2 our response is that it's actually -- this idea --
09:51 3 first of all, this isn't a case where -- to the
09:51 4 extent that individual legislators who were -- who
09:51 5 influenced the process may claim to have been
09:51 6 ignorant of why certain lines were drawn,I think
09:51 7 you will see that, to some degree, we may be
09:51 8 looking at a bit of a willful blindness situation.
09:51 9 And I think the Florida Supreme Court would
09:51 10 not agree that the Legislature can avoid a finding
09:51 11 that they violated the amendment simply by, you
09:51 12 know, turning a blind eye and letting their
09:51 13 staffers essentially blatantly violate the
09:51 14 amendments.
09:51 15 The other thing is that there is actually a
09:51 16 series of cases that are discussed in our brief
09:51 17 that are Congressional redistricting cases. And in
09:52 18 those cases you will see that courts have actually
09:52 19 routinely relied on the intent of individual
09:52 20 legislators, and in one case actually staffers,
09:52 21 that were involved in drawing the map where there
09:52 22 wasn't evidence that the legislators were
09:52 23 necessarily aware of those staffers' particular
09:52 24 intent.
09:52 25 So I would just ask you to take a close look
ACCURATE STENOTYPE REPORTERS, INC. App. 256 41
09:52 1 at those cases as well, because I think they're
09:52 2 very informative.
09:52 3 THE COURT:I just got your response now. But
09:52 4 let me ask you that same question, then. Is it
09:52 5 your position that if the evidence suggested that,
09:52 6 let's say Alex Kelly --I don't want to pick on
09:52 7 Mr. Kelly.
09:52 8 MR. MEROS: Go right ahead.
09:52 9 THE COURT: He's not here?
09:52 10 MR. MEROS: He will be.
09:52 11 THE COURT: Okay. Mr. Kelly, unbeknownst to
09:52 12 anybody else involved in the Legislature, any
09:52 13 official members of the Legislature, let's say he
09:53 14 communicated regularly with political operatives in
09:53 15 a conspiracy with them without telling his bosses,
09:53 16 drew a map intentionally to favor incumbents and/or
09:53 17 political party. Nobody in the Legislature knew
09:53 18 it. They looked at it, didn't see anything wrong
09:53 19 with it, passed it.
09:53 20 Would you say that would constitute a
09:53 21 violation of the Constitution?
09:53 22 MS. FROST: First of all,I think I would be
09:53 23 somewhat skeptical with the idea of a staffer --
09:53 24 THE COURT: No, no, no. You don't get to be
09:53 25 skeptical. This is my hypothetical, so no
ACCURATE STENOTYPE REPORTERS, INC. App. 257 42
09:53 1 skeptical.
09:53 2 MS. FROST: You know,I think -- the answer to
09:53 3 that is, frankly, it depends on all of the
09:53 4 circumstances, because I think --I think that
09:53 5 agency law is instructive in this area. So if they
09:53 6 just completely abdicate all of their
09:53 7 responsibility to a staffer to engage in any sort
09:53 8 of oversight --
09:53 9 THE COURT: No, no, don't get off that way.
09:53 10 In my hypothetical they didn't -- they didn't do
09:54 11 that. There was good oversight. They gave
09:54 12 specific instructions to Mr. Kelly, don't be doing
09:54 13 anything you're not supposed to do. Draw this as
09:54 14 fairly as you can. Don't favor incumbents,
09:54 15 political parties. That's what we want from you.
09:54 16 But he didn't like that, and he went off by himself
09:54 17 and created this map.
09:54 18 MS. FROST:I think we would have a different
09:54 19 case than what we have here. Yeah, you would have
09:54 20 a different issue.
09:54 21 THE COURT: Okay. So would you agree, then,
09:54 22 with their side -- if both parties agree,I don't
09:54 23 have to worry with it -- that what I'm looking at
09:54 24 is the Legislature's intent, but that it can be
09:54 25 established by evidence of people who were involved
ACCURATE STENOTYPE REPORTERS, INC. App. 258 43
09:54 1 in the process of putting these maps together?
09:54 2 MS. FROST: Yeah,I would agree with that.
09:54 3 And those people could, and I think we will show,
09:54 4 will include not only legislators and staffers, but
09:54 5 also political operatives outside the Legislature.
09:55 6 THE COURT: Okay. So then it becomes -- let
09:55 7 me see if the other plaintiffs -- plaintiffs'
09:55 8 counsel are here; they nodded their heads?
09:55 9 MR. ZEHNDER: Yes, Your Honor. That's the
09:55 10 track we're on.
09:55 11 THE COURT: So y'all agree on that.
09:55 12 MR. ZAKIA: Yes, sir.
09:55 13 THE COURT: You disagree on whether the
09:55 14 evidence will prove that. And it will still be an
09:55 15 issue,I guess, as to what extent -- how much
09:55 16 involvement is what Ms. Frost was talking about.
09:55 17 Well, if you did it completely by a rogue person,
09:55 18 that's different than if a few other people knew
09:55 19 it, then a few other people knew it, different than
09:55 20 a few other people knew it, how large is this
09:55 21 group, so to speak, it would make a difference. It
09:55 22 would seem logically would make a difference.I
09:55 23 guess we will cross that bridge when we get to it.
09:55 24 MR. MEROS: Your Honor, did your screen go
09:55 25 black because it timed out?
ACCURATE STENOTYPE REPORTERS, INC. App. 259 44
09:55 1 THE COURT: Yes, it did. As a matter of fact,
09:55 2 I can probably --I've got a paper copy of the
09:55 3 statute;I can probably give it back to you. He
09:56 4 was looking up the FSU logo stuff.I saw that.
09:56 5 Okay. So which article are we looking at?
09:56 6 MR. KING: Article 20. Article III, section
09:56 7 20.
09:56 8 MR. ZEHNDER: Section 20(a).
09:56 9 THE COURT: Okay. So to me that's going to be
09:56 10 the little tricky part of this trial, because it is
09:56 11 looking at something that's not objective; it's
09:56 12 subjective.
09:56 13 You never want to let somebody not have their
09:56 14 own strategy of it. But can plaintiffs tell me,
09:56 15 here is what we plan to show you, kind of a mini
09:57 16 opening statement?
09:57 17 MR. KING: Yes, sir.
09:57 18 THE COURT: All right.
09:57 19 MR. KING: Does that mean I get to deliver it
09:57 20 today instead of next Monday morning?
09:57 21 THE COURT:I said a mini.
09:57 22 MR. KING:I understand.
09:57 23 THE COURT: Here is our theory, Judge. Here
09:57 24 is how we think we're going to show this
09:57 25 unconstitutional intent.
ACCURATE STENOTYPE REPORTERS, INC. App. 260 45
09:57 1 MR. KING: Yes, sir. Your Honor, we're going
09:57 2 to establish that there were two processes involved
09:57 3 in this case. There was a process up in the
09:57 4 sunshine, where things were supposedly open and
09:57 5 transparent. And everything was being done out in
09:57 6 the open, and this was the most transparent process
09:57 7 that occurred in America. That's what some of the
09:57 8 legislators said about the process.
09:57 9 At the very same time, there was a separate
09:57 10 process, a shadow process, that started almost
09:57 11 before the ink dried on the constitutional
09:58 12 amendment, it started in December and January, when
09:58 13 representatives of the Legislature, first
09:58 14 Mr. Kelly, who we have just been talking about,
09:58 15 sorry to pound on him. But he and a representative
09:58 16 of the Senate met at the Republican Party of
09:58 17 Florida with a bunch of the political operatives,
09:58 18 Mr. Reichelderfer, Mr. Bainter, and Mr. Ginsberg
09:58 19 was on the telephone from Washington, and Mr. Rich
09:58 20 Heffley, and Mr. Meros and Mr. Bardos.
09:58 21 And they all talked about how they could get
09:58 22 around the amendments rather than -- they say
09:58 23 they're embracing the amendments. Publicly that's
09:58 24 what they stay. But in private, the question was,
09:58 25 is there a way we can come up with a privilege for
ACCURATE STENOTYPE REPORTERS, INC. App. 261 46
09:58 1 the consultants that would allow them to continue
09:58 2 to provide information to legislators and staffers
09:59 3 without anybody knowing what they were doing or
09:59 4 saying? That's what Mr. Reichelderfer is going to
09:59 5 testify. He's going to testify that they attempted
09:59 6 to determine if there was a privilege. And then in
09:59 7 January 2011, there was a meeting, again, at the
09:59 8 offices of GrayRobinson, in the conference room
09:59 9 where we took most of the depositions in this case.
09:59 10 And there we had Senator Gaetz, the chairman
09:59 11 of the Senate committee on reapportionment. We had
09:59 12 representative Will Weatherford, the chairman of
09:59 13 the House redistricting committee. Mr. Kelly,
09:59 14 again, Mr. Guthrie from the House, and the
09:59 15 political operatives.
09:59 16 And they met and discussed how they were going
09:59 17 to approach this process and found out to their
09:59 18 chagrin, evidently after the lawyers had researched
10:00 19 it to some extent, that there was not going to be
10:00 20 any privilege. So they were going to have to do it
10:00 21 differently.
10:00 22 And so then they proceeded ahead in the public
10:00 23 process. There were the public hearings in the
10:00 24 summer, open, in the sunshine. Everybody was
10:00 25 proceeding in the public. In the shadows, though,
ACCURATE STENOTYPE REPORTERS, INC. App. 262 47
10:00 1 the Republican Party was paying Mr. Heffley social
10:00 2 security 10,000 a month to superintend the process
10:00 3 of the political operatives and how they affected
10:00 4 the process. They paid him social security 10,000
10:00 5 a month from July of 2011 until July 2013. When he
10:00 6 gave his deposition he was still being paid.
10:00 7 And then we get into the mapmaking process.
10:00 8 And in the mapmaking process, that's the part that
10:00 9 really gets interesting, because we have open
10:00 10 meetings of the Legislature. We have these
10:00 11 legislators saying they're carefully considering
10:00 12 this, they want to do what the people indicated.
10:01 13 They want to follow the representations of what
10:01 14 people said in public hearings and so on.
10:01 15 On the other hand, we have got
10:01 16 Mr. Reichelderfer working -- now, here is the deal.
10:01 17 Starting on November the 11th, and this is the
10:01 18 period the House had drawn about 20 minutes before
10:01 19 November the 1st. They saved no maps between
10:01 20 November the 1st and November the 19th.
10:01 21 The maps became public in the Senate on
10:01 22 November the 28th. And December the 6th in the
10:01 23 House. The House released seven maps on December
10:01 24 6th. The House released one map on November the
10:01 25 28th, as far as the Congressional maps. They were
ACCURATE STENOTYPE REPORTERS, INC. App. 263 48
10:01 1 releasing House and Senate maps as well. We're
10:01 2 focused on the Congressional maps in this
10:01 3 situation.
10:01 4 On November 7th we find that Mr. Reichelderfer
10:02 5 has in his possession the very first map that has
10:02 6 the composition of districts 1 and 2 in the
10:02 7 Panhandle and District 15 in the Brevard County
10:02 8 area, that actually end up on the final map
10:02 9 adopted, 9047, that was adopted on February the
10:02 10 9th, finally, by the Senate after the House had
10:02 11 adopted it on February the 3rd.
10:02 12 The House -- Mr. Reichelderfer has maps --
10:02 13 draft maps done by the House that the House doesn't
10:02 14 have. Those maps were destroyed. Either the House
10:02 15 destroyed them -- the House -- there is no trace of
10:02 16 how those maps got to Mr. Reichelderfer. The map
10:02 17 in -- on November the 11th -- and it's very
10:02 18 similar --
10:02 19 THE COURT: What does he say?
10:03 20 MR. KING:-- to maps -- well he can't
10:03 21 remember. He just can't remember how he got that
10:03 22 map.
10:03 23 THE COURT: Does he remember having
10:03 24 communications, have people say, we want your
10:03 25 input? We want you to help us draw a map in a way
ACCURATE STENOTYPE REPORTERS, INC. App. 264 49
10:03 1 that will favor incumbents, et cetera, et cetera?
10:03 2 MR. KING: We will be able to establish, Your
10:03 3 Honor, Mr. Reichelderfer was -- Dean Cannon, the
10:03 4 Speaker of the House's inner circle. He was Dean
10:03 5 Cannon's guy, corresponding to Mr. Holder, the
10:03 6 vice-chair of the committee.
10:03 7 And Mr. Cannon and Mr. Reichelderfer and a
10:03 8 fellow named Kirk Pepper, were very close. Kirk
10:03 9 Pepper was Mr. Cannon's deputy chief of staff. And
10:03 10 there is a remarkable series of e-mails on the
10:03 11 weekend of November the 26th and the 27th before
10:03 12 the Senate map was first released, where Mr. Cannon
10:03 13 is reported saying in an e-mail that, if the map
10:04 14 meets -- the map to be released meets Rich --
10:04 15 that's Rich Heffley -- and your concerns, then we
10:04 16 will be fine.
10:04 17 But back to the map --
10:04 18 THE COURT: What does he say about those?
10:04 19 MR. KING: Mr. Cannon, of course, has a
10:04 20 different interpretation of that. We took his
10:04 21 deposition.
10:04 22 THE COURT: No,I mean --
10:04 23 MR. KING: Mr. Reichelderfer says, he just has
10:04 24 a hard time remembering exactly what occurs, but he
10:04 25 had that conversation. He knows it occurred. When
ACCURATE STENOTYPE REPORTERS, INC. App. 265 50
10:04 1 we asked him about these other maps he has, he
10:04 2 just -- he's just not sure about how he got --
10:04 3 there are two groups of maps that Mr. Reichelderfer
10:04 4 has.
10:04 5 And it's important to know the difference.
10:04 6 There is this first group of House maps that he has
10:04 7 that appear to be -- and the House won't admit
10:04 8 they're their maps. We have to have an issue
10:04 9 proving, and we will prove that these maps in
10:04 10 Mr. Reichelderfer's possession were in fact House
10:04 11 maps. And of course what Mr. Reichelderfer --
10:05 12 every time he gets a House map, you will find that
10:05 13 Congressional District 5 is one of the most
10:05 14 important districts that we're going to be talking
10:05 15 about. When Mr. Reichelderfer gets those maps, he
10:05 16 immediately starts modifying himself and pushing
10:05 17 the minority population of Congressional District 5
10:05 18 above 50 percent.
10:05 19 It was not a majority minority district. It
10:05 20 wasn't in the benchmark plan in 2002. It's not in
10:05 21 the map that Mr. Reichelderfer saw from the House.
10:05 22 But their goal, the strategy of these political
10:05 23 operatives and the Republican majority is minority
10:05 24 protection. And the guise of minority protection
10:05 25 put as many democrats into these districts as they
ACCURATE STENOTYPE REPORTERS, INC. App. 266 51
10:05 1 can.
10:05 2 So the testimony is going to be on these maps,
10:05 3 you will see from the maps, every time
10:05 4 Mr. Reichelderfer gets a House map, he pushes it up
10:06 5 to over 50 percent in CD 5. That change affects
10:06 6 the composition, the political composition of the
10:06 7 four key districts in Central Florida. That's
10:06 8 District 5, District 7, District 9, and District
10:06 9 10.
10:06 10 When he -- Mr. Reichelderfer got the first map
10:06 11 from the House, those districts all leaned
10:06 12 Democratic. Mr. Reichelderfer starts doing his
10:06 13 modifications to those maps, and immediately two
10:06 14 Democratic, two Republican. And that's ultimately
10:06 15 the way they turn out.
10:06 16 So we have got Mr. Reichelderfer getting these
10:06 17 maps that we can't trace. And then there is a
10:06 18 separate set of Mr.-- of maps that
10:06 19 Mr. Reichelderfer gets before the public does,
10:06 20 before they are announced to the public on November
10:06 21 23rd Mr. Pepper starts sending -- through a Dropbox
10:06 22 maps. He sends the seven maps, the analogs of the
10:07 23 seven maps that will ultimately be relessed on
10:07 24 December 6th.
10:07 25 THE COURT: What do they say about those?
ACCURATE STENOTYPE REPORTERS, INC. App. 267 52
10:07 1 MR. KING: They admit they got them. They
10:07 2 were delivered. The work product -- the
10:07 3 confidential work product of the House
10:07 4 redistricting committee was in the hands of the
10:07 5 political operatives to share and to consider and
10:07 6 to advise back long before they were released to
10:07 7 the public.
10:07 8 And, again, there is a remarkable series of
10:07 9 e-mails between Mr. Reichelderfer and Mr. Pepper on
10:07 10 the 27th of November. This is Thanksgiving
10:07 11 weekend, Sunday night before the map is released --
10:07 12 the first Senate map is released on Monday morning
10:07 13 at noon.
10:07 14 Mr. Reichelderfer receives that afternoon from
10:07 15 Mr. Pepper a copy of the Senate map -- or at least
10:08 16 a map that is very close to the one that is
10:08 17 released the next morning. So Mr. Pepper asked him
10:08 18 about it. Mr. Pepper asked him, what are you --
10:08 19 sends it to him. And Mr. Reichelderfer gets it and
10:08 20 looks at it. And he says, well, this looks a
10:08 21 little messed up in Mr. Webster's district. That's
10:08 22 District 10. That's one of the key districts.
10:08 23 And Mr. Pepper -- there is going to be some
10:08 24 interesting credibility issues in this case.
10:08 25 Because nobody in the Legislature is going to admit
ACCURATE STENOTYPE REPORTERS, INC. App. 268 53
10:08 1 to what they're doing. Mr. Pepper says -- he sends
10:08 2 an e-mail back that we have this one snapshot of
10:08 3 what occurs. Mr. Pepper sends an e-mail back, and
10:08 4 he said -- and he says, performance or geography?
10:08 5 Now, let me just point out here that they
10:08 6 adamantly say -- Mr. Pepper says, oh, oh,I
10:08 7 shouldn't have done this.I shouldn't have been
10:08 8 sending these maps to Mr. Reichelderfer. But I
10:08 9 wasn't interested in any feedback.I wasn't
10:09 10 interested in what he thought about these maps,
10:09 11 because of course that would be a very bad thing.
10:09 12 That would violate all the supposed open and
10:09 13 transparent provisions that the Legislature had
10:09 14 taken.
10:09 15 So there is no answer to that. And we asked
10:09 16 Mr. Pepper, well, what do you mean when you say
10:09 17 performance or geography? Weren't you seeking
10:09 18 feedback? And Mr. Pepper says, oh, no. What that
10:09 19 means is, that's what I'm telling
10:09 20 Mr. Reichelderfer, don't tell me anything about
10:09 21 this. That's what that means. That's some kind of
10:09 22 Republican code for, don't answer this question.
10:09 23 Well, that's not going to be very credible.
10:09 24 And you're going to hear that.
10:09 25 So -- but the interesting thing here is, that
ACCURATE STENOTYPE REPORTERS, INC. App. 269 54
10:09 1 these maps continued -- these maps continue to come
10:09 2 from Mr. Pepper. That's where we can prove the
10:09 3 provenance of the maps in Mr. Reichelderfer's
10:09 4 hands, because they come through his Dropbox. He
10:10 5 says, his statement, his view is, we just told --I
10:10 6 shouldn't have done it. But I gave it to
10:10 7 Mr. Reichelderfer, because this is his -- the way
10:10 8 he makes his living. And he was so frustrated
10:10 9 because they weren't going to be able to
10:10 10 participate, the political operatives weren't going
10:10 11 to be able to participate like they did in 2002.
10:10 12 So I sent him a few maps to show him the way the
10:10 13 landscape was trending here as far as these maps
10:10 14 are concerned.
10:10 15 Of course, that's going to be belied by the
10:10 16 fact Mr. Reichelderfer got maps -- had maps the
10:10 17 Legislature doesn't have, had maps from the very
10:10 18 start of the process until the day before the
10:10 19 process. These maps continued to come. In fact,
10:10 20 Mr. Reichelderfer had been pushing all along for 50
10:10 21 percent plus in District 5, because it was going to
10:10 22 make a significant difference to these other
10:10 23 central Florida districts.
10:11 24 And wouldn't you know it? The testimony is
10:11 25 going to be that there was a secret meeting, again,
ACCURATE STENOTYPE REPORTERS, INC. App. 270 55
10:11 1 a meeting just between President Gaetz -- Senator
10:11 2 Gaetz from the Senate, and Guthrie, and
10:11 3 Mr. Weatherford and Mr. Keyy to resolve the
10:11 4 differences in the two bills that had been passed,
10:11 5 and Mr. Cannon told them they could go to 50
10:11 6 percent on CD 5.
10:11 7 And at that meeting, again, not in the public,
10:11 8 nobody has any record of that meeting. We don't
10:11 9 have the facts to -- except people's memories of
10:11 10 what happened at that meeting. But at that meeting
10:11 11 on January 23rd or 24th, before the final bill, the
10:11 12 enacted bill was released on Wednesday -- on
10:11 13 January the 25th, at that meeting, decisions were
10:11 14 made in the guise of minority protection to push
10:12 15 District 5 over 50 percent, to change District 9's
10:12 16 minority composition to increase that, to increase
10:12 17 the minority population both African-American and
10:12 18 Hispanic in District 14; that's the district over
10:12 19 in Hillsborough County. And those decisions were
10:12 20 made without any -- those were race-based decisions
10:12 21 made without any compelling state interest or any
10:12 22 narrow tailoring. They were made simply to affect
10:12 23 the results on the map, the political performance
10:12 24 of that map.
10:12 25 And then, it's extraordinarily interesting
ACCURATE STENOTYPE REPORTERS, INC. App. 271 56
10:12 1 that there is another map on the 24th of January,
10:12 2 the day before the enacted map was released on
10:12 3 January 25th, Mr. Reichelderfer receives from
10:12 4 Mr. Pepper a map -- a Senate map, 9014 R 1 A -- I
10:13 5 could be slightly off on that, but close to that.
10:13 6 That map, again, is a map never produced by these
10:13 7 folks over here. We know it came from the House.
10:13 8 The House had done it. And that was a map that was
10:13 9 the closest of any of all of the maps, to the map
10:13 10 that was enacted the next day. And these folks
10:13 11 don't have it in their possession. Only
10:13 12 Mr. Reichelderfer had it.
10:13 13 So Mr. Reichelderfer ends up with about eight
10:13 14 or nine maps whose provenance is the House or the
10:13 15 Senate, and only he has it; they don't have it.
10:13 16 That goes into the spoliation issue obviously. And
10:13 17 they don't know how he got it, because there is no
10:13 18 trace as to how he got it. And then of course he
10:13 19 has the other maps that we do have and are able to
10:14 20 trace and follow in.
10:14 21 So on the one hand they produced thousands and
10:14 22 thousands of documents. We have probably got
10:14 23 hundreds of pages on how you can get to Wesley
10:14 24 Chapel for the public hearing there and where you
10:14 25 park your car and how you handle eating if you're a
ACCURATE STENOTYPE REPORTERS, INC. App. 272 57
10:14 1 legislator for that public hearing.
10:14 2 And evidently those things are of archival
10:14 3 importance, because they saved them. But we don't
10:14 4 have draft maps that reflect how we got -- we don't
10:14 5 have some of the draft maps, because they're in the
10:14 6 hands of the political operatives. This is a very
10:14 7 truncated presentation and would have been a lot
10:14 8 smoother a week from now.
10:14 9 THE COURT: Doing fine, just getting an
10:14 10 idea --
10:14 11 MR. KING: That's kind of where we're going
10:14 12 with our cases. We're going to be presenting the
10:15 13 political operatives. We're going to put on
10:15 14 Mr. Reichelderfer. We're going to put on
10:15 15 Mr. Heffley, Mr. Terraferma, obviously Kirk Pepper
10:15 16 is going on very early, probably the first two
10:15 17 witnesses will be Mr. Reichelderfer to establish
10:15 18 the field as far as the maps, because we have got
10:15 19 the House maps. They agreed to the House maps --
10:15 20 the House draft maps coming into evidence. They
10:15 21 agreed to the Senate draft maps coming into
10:15 22 evidence. They don't want Mr. Reichelderfer's maps
10:15 23 coming into evidence. They're currently objecting
10:15 24 to those.
10:15 25 So we're going to have to talk about
ACCURATE STENOTYPE REPORTERS, INC. App. 273 58
10:15 1 Mr. Reichelderfer's maps with him and let him show
10:15 2 you what he had and what he was doing. And we are
10:15 3 prepared to establish Mr. Kelly,I might add,
10:15 4 looked at these maps that we showed
10:15 5 Mr. Reichelderfer that we got from
10:15 6 Mr. Reichelderfer, and Mr. Kelly said, well,I
10:15 7 won't accept that those are my maps.
10:15 8 Well we will be prepared to prove that they're
10:15 9 his maps -- they're either his maps or
10:16 10 Mr. Reichelderfer drew the maps for the
10:16 11 Legislature. That's -- that's where we're going to
10:16 12 be in this situation. Either way, very bad for
10:16 13 them, very bad for the idea that they didn't intend
10:16 14 to do exactly what they did, which was to develop a
10:16 15 map that was highly unfair and improper because of
10:16 16 the slant in favor of the Republican Party.
10:16 17 THE COURT: Okay.
10:16 18 MR. MEROS: May I, Your Honor?
10:16 19 THE COURT: Do you think I wanted an opening
10:16 20 statement from the defendant?I just wanted to
10:16 21 see -- because I already heard y'all didn't do
10:16 22 anything; right?
10:16 23 MR. MEROS: Well, you know me, Your Honor,I
10:16 24 just cannot help but talk sometimes.
10:16 25 THE COURT: Go ahead.
ACCURATE STENOTYPE REPORTERS, INC. App. 274 59
10:16 1 MR. MEROS: Fascinating story, but the thing
10:16 2 is it's a story. It will not be supported by the
10:16 3 facts.
10:16 4 Dean Cannon, Speaker of the House, will come
10:16 5 in here and testify under oath to this court that
10:16 6 not a single line was drawn at anyone's request,
10:17 7 behest, suggestion, influence, other than the
10:17 8 discussions of Alex Kelly, Jason Poreda, John
10:17 9 Guthrie on the Senate side, and an overview by the
10:17 10 speaker's office. And two directions; number one,
10:17 11 directions to the political consultants from
10:17 12 January of 2011, five months before the census data
10:17 13 even was out and usable, these two secret meetings
10:17 14 at our office. What the testimony will show is
10:17 15 that the political consultants wanted to play a
10:17 16 role. They very much hoped they could play a role.
10:17 17 In the past, before these amendments, they could
10:17 18 play a role. They did play a role.
10:17 19 But the speaker was perfectly okay with the
10:17 20 fact that they requested a meeting of us to say,
10:17 21 okay, these things have passed. Now what do we do?
10:17 22 Can we participate? Can we not? How can one
10:17 23 comply with these --
10:17 24 MR. KING: Excuse me, Your Honor.I don't
10:18 25 mean to object, but I've got to, because I think
ACCURATE STENOTYPE REPORTERS, INC. App. 275 60
10:18 1 it's very important here that because Mr. Meros
10:18 2 attended these meetings, that he's not testifying
10:18 3 as a witness, but he's testifying based on the
10:18 4 record.
10:18 5 I think that's going to be important
10:18 6 throughout the trial, because Mr. Meros was
10:18 7 involved in a lot of this stuff. And he shouldn't
10:18 8 be able to testify -- he shouldn't be able to argue
10:18 9 and give testimony at the same time.
10:18 10 MR. MEROS: All of this will be facts, Your
10:18 11 Honor. It's nothing --
10:18 12 THE COURT:I assume he's not testifying.
10:18 13 He's telling me what he thinks the evidence will
10:18 14 show.
10:18 15 MR. MEROS: Right.
10:18 16 THE COURT: Hopefully very mini showing.
10:18 17 MR. MEROS: I'm sorry?
10:18 18 THE COURT:A very mini showing.
10:18 19 MR. MEROS: Yes. And by January, after a
10:18 20 second meeting, the political consultants were told
10:18 21 no, you don't have a role in the drawing of the
10:18 22 maps.
10:18 23 THE COURT: Who told them that?
10:18 24 MR. MEROS: Dean Cannon, the Senate president,
10:18 25 Will Weatherford, they were all told they were not
ACCURATE STENOTYPE REPORTERS, INC. App. 276 61
10:19 1 going to play a role. And Marc Reichelderfer, who
10:19 2 will testify under oath,I never, ever gave a map
10:19 3 to anyone in the Legislature or a line and said,
10:19 4 please incorporate this, or this should be
10:19 5 incorporated. He said, he testified already and
10:19 6 will testify again that at the -- January of 2011,
10:19 7 that's when the conversations stopped.
10:19 8 The political consultants were frustrated and
10:19 9 upset that they played no role, and they could play
10:19 10 no role in the process.
10:19 11 The process and the map drawing was the
10:19 12 speaker, the Senate President, Chair Will
10:19 13 Weatherford, John Guthrie, Alex Kelly, and Jason
10:19 14 Poreda. Politics did not get into the
10:19 15 redistricting suite in the map drawing process.
10:19 16 Everyone will testify under oath to that.
10:19 17 Now let me talk a minute about -- well also,
10:19 18 the proof will be in the pudding here. The proof
10:20 19 is in the map and the proof will be in the
10:20 20 testimony that everything that was said here is
10:20 21 just not the case. There was -- we had one leaker,
10:20 22 just like Washington,D.C. has, one leaker that
10:20 23 gave the opportunity for the plaintiffs to misstate
10:20 24 and to -- and to suggest inferences that are not
10:20 25 true. And that's Kirk Pepper.
ACCURATE STENOTYPE REPORTERS, INC. App. 277 62
10:20 1 And no one is going to apologize for the fact
10:20 2 that Kirk Pepper made a terrible mistake and
10:20 3 breached the duty he owed to the speaker by giving
10:20 4 maps to Mr. Reichelderfer before the public
10:20 5 received them.
10:20 6 That happened, the speaker is furious about
10:20 7 it. No one is going to excuse that. But the good
10:20 8 news is, that that never resulted in any
10:20 9 communication back to the speaker's office or to
10:20 10 the map drawers about how to draw the maps. Shame
10:20 11 on Mr. Reichelderfer -- Mr. Pepper for doing that.
10:21 12 Shame on Mr. Reichelderfer for accepting those.
10:21 13 But he did. No excuses. But the map that was
10:21 14 enacted by the Legislature was drawn by people who
10:21 15 were completely untainted by any of those
10:21 16 communications. Let there be political chatter.
10:21 17 And there is no question that the political folks,
10:21 18 despite the fact that they were left out of the
10:21 19 process, wanted to try to participate, tried to
10:21 20 figure out how to participate. The problem for
10:21 21 them is, couldn't, and they didn't.
10:21 22 And that's what the law -- that's what the
10:21 23 facts are going to show. Mr. Reichelderfer said
10:21 24 very clearly,I was frustrated.I didn't like the
10:21 25 maps as they were drawn, and I wish I could have
ACCURATE STENOTYPE REPORTERS, INC. App. 278 63
10:21 1 been able to do something about it. But happily,
10:21 2 he couldn't.
10:21 3 Now, one thing you don't hear much about in
10:21 4 the facts asserted is, okay, how did this -- how
10:21 5 did this manifest itself in the map that was
10:21 6 enacted? How -- how did this political chatter
10:22 7 result in a single line being drawn different? And
10:22 8 the facts are going to show totally to the
10:22 9 contrary. Dean Cannon and Senate President Gaetz
10:22 10 and Will Weatherford are loyal, lifelong
10:22 11 Republicans. In any other situation they would do
10:22 12 anything they possibly can to elect Republicans.
10:22 13 Well, the court will see what they did in this
10:22 14 map and whether or not it's consistent with the
10:22 15 notion that they drew a Republican map or a map to
10:22 16 favor Republicans. Allen West, a nationally
10:22 17 prominent Republican Congressman from stout Florida
10:22 18 was drawn completely out of his district and lost.
10:22 19 Republican gone.
10:22 20 The fact that the Legislature drew the lines
10:22 21 the way they did generated national publicity,
10:22 22 radio talk show hosts criticizing Will Weatherford
10:23 23 and Dean Cannon and the Legislature for the
10:23 24 temerity to do that. Cliff Stearns a longtime
10:23 25 Republican incumbent was forced into a district
ACCURATE STENOTYPE REPORTERS, INC. App. 279 64
10:23 1 with another Congressman. He lost. He's gone.
10:23 2 Another Republican gone by these Republicans who so
10:23 3 much want to protect their incumbents.
10:23 4 David Rivera in South Florida loses. This
10:23 5 Central Florida area where it was so important to
10:23 6 help someone; John Mica, longtime incumbent, and
10:23 7 Sandy Adams, a colleague of Dean Cannon from the
10:23 8 Florida House of Representatives, who then served
10:23 9 two years in Congress, was paired, and they had to
10:23 10 fight a brutal primary battle in which Sandy Adams
10:23 11 lost.
10:23 12 Dan Webster, who supposedly was being helped
10:23 13 here went from a district -- is drawn out of his
10:24 14 district, lives in CD 5, Corrine Brown's district,
10:24 15 despite the fact that the Legislature could have
10:24 16 moved the line to put him in there, and went from a
10:24 17 district that -- in which he won by 17 percent in
10:24 18 the prior election, to a district where he won by
10:24 19 approximately 3 percent.
10:24 20 And in drawing this new, so favorable
10:24 21 district, they drew only 40 percent of his prior
10:24 22 constituents into this new district. So 60 percent
10:24 23 of his constituents now are totally new to him and
10:24 24 vice versa.
10:24 25 So the notion -- again, the proof is in the
ACCURATE STENOTYPE REPORTERS, INC. App. 280 65
10:24 1 pudding. There was considerable pain inflicted by
10:24 2 these very same loyal Republicans. Now, how did
10:24 3 they go about doing this? The testimony will show
10:24 4 that the Coalition and League said to the
10:24 5 Department of Justice exactly what the Florida
10:25 6 Supreme Court said, and that is, it's virtually
10:25 7 impossible to have a -- an improper political
10:25 8 intent if you draw lines compliant with site and
10:25 9 county boundaries and as compactly as possible and
10:25 10 follow the minority protections and -- which is the
10:25 11 Tier 1 requirement. That's just what the
10:25 12 Legislature set out to do.
10:25 13 And on behalf of the House, what Dean Cannon
10:25 14 did was hire talented staff, Jason and Alex Kelly
10:25 15 will come in here and show you just how difficult
10:25 16 it is to draw these maps, all of the
10:25 17 considerations. And he gave them great discretion.
10:25 18 He said,I won't flyspeck these maps.I want the
10:25 19 maps to be compliant. Anytime there are changes in
10:25 20 the map,I want them to be better. No going
10:25 21 backwards. And to the extent there is criticism
10:25 22 and public testimony that's consistent with the
10:25 23 standards, put it in there.
10:25 24 So what did they do?-- and also, give the
10:26 25 people options so we can see how one might do this
ACCURATE STENOTYPE REPORTERS, INC. App. 281 66
10:26 1 and be subject to criticism. And so Alex Kelly
10:26 2 came back and produced seven alternative maps.
10:26 3 Goes to the speaker's office and says, speaker,
10:26 4 here are what I believe to be reasonable
10:26 5 alternatives and different approaches.
10:26 6 The issue of compactness and site and county
10:26 7 splits can be traded off. There is any number of
10:26 8 different trade offs. Dean Cannon said, that's
10:26 9 fine, if you think this is the way to do it, he
10:26 10 looked at them, did not fly spec them.I think
10:26 11 there is one district not among the districts we're
10:26 12 speaking about where Speaker Cannon said, well this
10:26 13 line looks funny; see if you can smooth that out,
10:26 14 which he did.
10:26 15 Then what happened? The Legislature put their
10:26 16 money with their mouth is, took seven alternative
10:26 17 maps, workshopped it in the public, workshopped and
10:27 18 discussed in great detail, and you will have these
10:27 19 transcripts, about this alternative does this, this
10:27 20 alternative does that, subjecting themselves to
10:27 21 great scrutiny.
10:27 22 And there were no -- no criticisms, no
10:27 23 comments from anyone about, oh, this is political,
10:27 24 this is political, change this, because if there
10:27 25 had been, there would have been efforts to correct
ACCURATE STENOTYPE REPORTERS, INC. App. 282 67
10:27 1 it. Those seven maps were distilled down to three
10:27 2 by the subcommittee.
10:27 3 And in so doing, what they did was to continue
10:27 4 to improve the metrics of the map. And they picked
10:27 5 the three maps from the seven that had the lowest
10:27 6 county and site splits, that had the most
10:27 7 compactness, that by any measure was more
10:27 8 compliant.
10:27 9 They then went to the main committee and
10:27 10 form -- basically agreed on a map that they
10:27 11 believed was the best map for the House. And that
10:28 12 map, again, better in compliance, every step of the
10:28 13 way. Instead of a funny line here, a funny line
10:28 14 there, better, better, better.
10:28 15 No critique until the last minute by the
10:28 16 League in a map that they have now abandoned and in
10:28 17 a map which the Democrats uniformly voted against.
10:28 18 Now, Mr. King talks about a secret meeting.
10:28 19 What happened then was what the Legislature does
10:28 20 with every bill of significance, and that is, they
10:28 21 got together and tried to figure out the
10:28 22 differences in the maps so they could pass a bill.
10:28 23 That's what legislators do.
10:28 24 And there is no suggestion they violated the
10:28 25 public records law or anything like that. They got
ACCURATE STENOTYPE REPORTERS, INC. App. 283 68
10:28 1 together. So Chair Gaetz, Alex Kelly, Will
10:28 2 Weatherford to some extent, John Guthrie got
10:28 3 together and said, okay, how can we marry these
10:29 4 maps? On the House side, the House was concerned
10:29 5 with what to do about these new standards with
10:29 6 regard to minority protections, because one thing,
10:29 7 Your Honor, the other side will try to act as if
10:29 8 the minority protections are a Tier 2 standard
10:29 9 rather than a Tier 1 standard. Excuse me. They
10:29 10 are a Tier 1 standard. That's what the people
10:29 11 stead.
10:29 12 So how do you comply with the minority
10:29 13 protections and -- under Section 2 of the extract,
10:29 14 Section 5 of the extract, and now a new state
10:29 15 position that has not been interpreted? How do you
10:29 16 do it? No easy answers. From the House
10:29 17 perspective, what they wanted to do was to try to
10:29 18 preserve minority protections while, if possible,
10:29 19 improving Tier 2 metrics; in other words, can we
10:29 20 split fewer cities, can we split fewer counties in
10:29 21 doing that. And Alex Kelly is very much a stickler
10:29 22 on that, as he will testify.
10:29 23 So in the map versions of CD 5, which is the
10:30 24 Corrine Brown district, which is very much central
10:30 25 to this case, his iterations of CD 5 were at
ACCURATE STENOTYPE REPORTERS, INC. App. 284 69
10:30 1 approximately 48.5 percent African-American voting
10:30 2 age population. He did that, and in so doing, he
10:30 3 kept Seminole County whole, and he took out of the
10:30 4 prior CD 5, I don't know whether it's 10 or 15,000,
10:30 5 but some number of African-Americans who had been
10:30 6 in Corrine Brown's district for at least ten years,
10:30 7 if not 20 years.
10:30 8 And so he was not at 50 percent -- and I will
10:30 9 explain to you why 50 percent is very important.
10:30 10 On the Senate side they drew that district at
10:30 11 approximately 50 percent. And they did so for a
10:30 12 reason. And now -- now I will explain that.
10:30 13 Under Section 2 of the Voting Rights Act,
10:30 14 which is one reason why these trial briefs are so
10:31 15 important, Section 2 asks you to consider whether a
10:31 16 minority population's vote has been diluted by
10:31 17 virtue of a number of things; one, do
10:31 18 African-Americans vote cohesively; do they tend to
10:31 19 vote for the same candidate; two, does the white
10:31 20 population in that area tend to vote as a block to
10:31 21 defeat an African-American candidate?
10:31 22 And if those two elements are present, and you
10:31 23 have a population of African-Americans that can
10:31 24 constitute 50 percent or more of a district, then
10:31 25 under Section 2 it could be a federal requirement
ACCURATE STENOTYPE REPORTERS, INC. App. 285 70
10:31 1 that you do so, subject to multiple additional
10:31 2 elements of proof. There is a very simplified way
10:31 3 to do it.
10:31 4 For a long time it was unclear whether that 50
10:32 5 percent standard really was 50 percent or would you
10:32 6 have to do it if it was 46 percent or 45 percent.
10:32 7 In 2009 the Supreme Court answered that question
10:32 8 and said in the Strickland case that Section 2
10:32 9 protects a population only if it can be comprised
10:32 10 of at least 50 percent black voting age population.
10:32 11 So what that means in this context is, if you take
10:32 12 out the African-American population in Seminole
10:32 13 County from that district, and you go from 50
10:32 14 percent to 48.5 percent, could it be that that
10:32 15 population or others in CD 5, could say you diluted
10:32 16 my vote, because there is racial polarization.
10:32 17 You could get a reasonably compact population
10:32 18 of 50 percent and reasonable compactness here is a
10:33 19 different standard under the racial protections
10:33 20 rather than it is visual compactness. And you will
10:33 21 see that in the brief. And so they could say, you
10:33 22 diluted my vote, because whites vote against me;
10:33 23 blacks vote cohesively.
10:33 24 But you made it 48.5 percent and not 50
10:33 25 percent, and, therefore,I don't have Section 2
ACCURATE STENOTYPE REPORTERS, INC. App. 286 71
10:33 1 protections, and so you violated that.
10:33 2 So the House and the Senate go into
10:33 3 negotiations with their map. And on CD 5, the
10:33 4 Senate wanted a 50 percent figure and wanted that
10:33 5 in order to minimize the possible litigation
10:33 6 problems. We -- we, at that point knew that, if
10:33 7 you can go to 50 percent there can be Section 2
10:33 8 protection. If you don't go to 50 percent, you
10:33 9 can't.
10:33 10 And so they -- they looked and tried to figure
10:34 11 how to do it, at that point very appropriately, the
10:34 12 legislators backed off and said, okay, Mr. Guthrie
10:34 13 and Mr. Kelly and Mr. Poreda, go back and see what
10:34 14 you can do.
10:34 15 What they did was remarkable. Again, we're
10:34 16 not -- haven't heard a single thing about metrics
10:34 17 or compliance with these standards. But what they
10:34 18 did was, they went back and were able to draft a
10:34 19 map that had 50 percent African-American population
10:34 20 in this CD 5, returning this population from
10:34 21 Seminole County into the district in which they
10:34 22 formerly were; and at the same time they reduced
10:34 23 county split by a county, even though they had to
10:34 24 split Seminole, they found two more counties that
10:34 25 they could keep whole, and they found 12 more
ACCURATE STENOTYPE REPORTERS, INC. App. 287 72
10:34 1 cities than either map had had to keep whole.
10:34 2 And so the iteration from 7 to 3, to 1, to an
10:34 3 enacted map was better, better, better, better the
10:35 4 entire way, with a mean compactness score for all
10:35 5 of the districts better than anyone -- any map that
10:35 6 has been produced or that this court will see.
10:35 7 That's what the Legislature did. That's what
10:35 8 motivated the Legislature to do. And keep in mind
10:35 9 two things, Your Honor, and I discussed this in
10:35 10 summary judgment. The Legislature was sued in 2002
10:35 11 for not making CD 5 with sufficient
10:35 12 African-American population. What's a reasonable
10:35 13 Legislature to do? Was it to minimize risk by
10:35 14 bringing it to 50 percent, or to not and risk
10:35 15 litigation? That and the process and the
10:35 16 improvement of the metrics take away any notion
10:35 17 that Kirk Pepper and my -- Marc Reichelderfer's
10:35 18 unjustified chatter back and forth with these maps
10:36 19 shows the reason it was really done.
10:36 20 And the notion that the House did not have
10:36 21 maps from November 1 to November 19th or they
10:36 22 weren't available is just a clear misunderstanding,
10:36 23 which we will prove at trial.
10:36 24 This was the very time when maps were being
10:36 25 drawn, alternatives were being drawn, efforts were
ACCURATE STENOTYPE REPORTERS, INC. App. 288 73
10:36 1 made to try to turn this and turn that. These maps
10:36 2 were in process and were changing all of the time.
10:36 3 And it wasn't a suggestion -- and Mr. Kelly and
10:36 4 Mr. Poreda will be able to testify technically
10:36 5 about this. But they would -- they would not
10:36 6 necessarily save every piece of what they were
10:36 7 doing. They were working on these maps as it came
10:36 8 together. And so those maps were there. But the
10:36 9 various pieces of it back and forth were not
10:37 10 always -- always marked. So the notion that there
10:37 11 is somehow this gap is just not true. And we will
10:37 12 be able to prove that.
10:37 13 So that's fairly long-winded. But that's what
10:37 14 we would -- that's what we will prove.
10:37 15 THE COURT: All right. So let's take a break,
10:37 16 then. Come back in about ten minutes maybe.
10:37 17 (Short recess).
10:54 18 MR. MEROS: Your Honor, if I may,I wanted to
10:54 19 introduce you to Jerry Wilson, who is co-counsel
10:54 20 with Allison Riggs to the NAACP. And I neglected
10:54 21 to offer or point him out to see if he wanted to do
10:54 22 an opening statement. That's obviously up to Your
10:54 23 Honor. They are an intervenor.
10:54 24 THE COURT: With no disrespect to Mr. Wilson,
10:54 25 I was trying to get a general idea to help me
ACCURATE STENOTYPE REPORTERS, INC. App. 289 74
10:54 1 figure out how we might make things go a little
10:54 2 smoother. But if you want to take a few minutes
10:54 3 and tell me your side of it, I'm happy to hear it.
10:54 4 MR. WILSON: Thank you, Your Honor. The NAACP
10:54 5 has a history, the Florida state conference of
10:54 6 NAACP branches has a history of involvement in the
10:54 7 redistricting process in the state of Florida.
10:55 8 Congressional District 3 was created in the 1990
10:55 9 round of redistricting as a district that would
10:55 10 allow for African-American voters to elect a
10:55 11 candidate of their choice to Congress.
10:55 12 CD 5, with Congressional District 5 as it is
10:55 13 now drawn, continues that tradition. And the NAACP
10:55 14 supported the constitutional amendments and
10:55 15 supported that district and wanted to be maintained
10:55 16 as a district in which there is opportunity for
10:55 17 African-American voters to elect the candidate of
10:55 18 their choice to Congress.
10:55 19 THE COURT: Is that your main focus?
10:55 20 MR. WILSON: Yes, it is. We feel that the
10:55 21 amendments to the Constitution should be
10:55 22 interpreted in such a way that it furthers minority
10:56 23 voting rights in this state.
10:56 24 We will call a couple of witnesses. One of
10:56 25 them is Dr. Paulson, who will talk about the
ACCURATE STENOTYPE REPORTERS, INC. App. 290 75
10:56 1 history of discrimination in voting as it relates
10:56 2 to Florida. The other one is Dr. Richard Engstrom,
10:56 3 who has looked at all of the plans that have been
10:56 4 proposed in this case, especially from the
10:56 5 plaintiffs. And we can talk about his conclusions
10:56 6 concerning what those plans actually do in terms of
10:56 7 diminishing or causing some retrogression in terms
10:56 8 of minority voting, especially in north Central
10:56 9 Florida.
10:56 10 We have a number of lay witnesses that we
10:56 11 would bring to support the notion that there is
10:56 12 still racially polarized voting in the state of
10:56 13 Florida, and to show that there are still struggles
10:57 14 to maintain a fair electorate in that part of the
10:57 15 state.
10:57 16 So our primary focus will be on Congressional
10:57 17 District No. 5.
10:57 18 THE COURT: If we're streamlining,I can tell
10:57 19 you,I probably won't need that first witness in
10:57 20 terms of the history of racial discrimination. But
10:57 21 it sounds like the other witness is an expert
10:57 22 witness who might be helpful.
10:57 23 MR. WILSON: Yes.
10:57 24 THE COURT: Okay. Thank you.
10:57 25 So to me that first part is the more sticky
ACCURATE STENOTYPE REPORTERS, INC. App. 291 76
10:57 1 one, the intent portion of the constitutional
10:57 2 amendment. So I see where we're going on that.
10:57 3 The other one, I'm making an assumption -- you all
10:57 4 can correct me -- but that's mostly going to be
10:57 5 expert witnesses who are going to be looking at the
10:57 6 effects of the maps; do they comply with the
10:57 7 criteria in the Constitution? Am I right?
10:57 8 MR. MEROS: Well, a substantial number of the
10:58 9 plaintiffs' witnesses are going to be legislators
10:58 10 and staff. We have -- we have four experts between
10:58 11 the House and Senate.
10:58 12 THE COURT: But most of those witnesses are
10:58 13 going to be geared towards the intent part; right?
10:58 14 MR. MEROS: Yes, sir.
10:58 15 THE COURT: So if I'm looking at another
10:58 16 portion of this claim is that, for example, if I
10:58 17 have in front of me --I do, but just by memory, as
10:58 18 Mr. Wilson was going to say, you don't draw a map
10:58 19 to decrease the influence of minority voters;
10:58 20 right? That's one of the criteria in there, and
10:58 21 then we have got compactness and all that stuff.
10:58 22 But I assume I'm going to hear from experts
10:58 23 who say, on this side, this is -- like you
10:58 24 represented, this is great.I mean, this complies
10:58 25 with all these things, does everything you want to
ACCURATE STENOTYPE REPORTERS, INC. App. 292 77
10:58 1 do. The NAACP is happy with it.
10:58 2 You're going to bring in some witnesses that
10:58 3 say, no, no, no. The map itself shows it favors
10:59 4 either incumbents or another party, and here is
10:59 5 why, and here is what you could do better; am I
10:59 6 right?
10:59 7 MR. KING: Yes, Your Honor.
10:59 8 THE COURT: Okay.
10:59 9 MR. KING: Your Honor, can you tell us -- we
10:59 10 know that we have nine days in the first and second
10:59 11 week. I'm not exactly sure what we have in the
10:59 12 third week, if we have anything --
10:59 13 THE COURT: Yeah, Laura --I know Laura marked
10:59 14 off a couple of days in the next week.I feel
10:59 15 there is spillover on there.
10:59 16 MR. KING: Does that mean we can count on like
10:59 17 11 days of trial?
10:59 18 THE COURT: Yes.I will say you can count on
10:59 19 11 days.
10:59 20 MR. KING: And what we will do, Your Honor, we
10:59 21 will commit in from the plaintiffs' side -- now I
10:59 22 think you've already taken care of the morning, the
10:59 23 first morning, because that's opening statements.
10:59 24 And if you want to do away with that, and you
10:59 25 will accept what we have just now done, we will put
ACCURATE STENOTYPE REPORTERS, INC. App. 293 78
10:59 1 a witness on the witness stand at 9:00 Monday
10:59 2 morning May the 19th. Is that what you want us to
11:00 3 do, sir?
11:00 4 MR. MEROS: And we're happy to waive opening
11:00 5 and closing.
11:00 6 MR. KING: I'm not so sure about closing at
11:00 7 this point. But if the Court -- if that's all
11:00 8 right with the Court, then we will have a witness
11:00 9 ready to go 9:00 on May 19th.
11:00 10 THE COURT: Okay.
11:00 11 MR. KING: Your Honor, I'm going back in light
11:00 12 of what you said, even with 11 days of trial,I
11:00 13 have grave reservations about -- certainly the way
11:00 14 we thought we were going to proceed wouldn't have
11:00 15 worked. So we have to go back and look at our
11:00 16 witness list and make some hard decisions.
11:00 17 And we will commit to do that on the
11:00 18 plaintiffs' side. But there are other issues like,
11:00 19 for example, they keep listing on their stuff
11:00 20 testimony about our withdrawn alternative map.I
11:01 21 mean, surely that won't come in at the trial.
11:01 22 We've already eliminated the hooks. The
11:01 23 defense is gone. The fraud on the Court is gone.
11:01 24 But they still want to keep putting evidence --
11:01 25 they want to offer primary evidence --
ACCURATE STENOTYPE REPORTERS, INC. App. 294 79
11:01 1 THE COURT: From your standpoint, though, you
11:01 2 don't plan to; do you?
11:01 3 MR. KING: No, sir.
11:01 4 THE COURT: So I wouldn't worry about that.
11:01 5 If it comes up, you can object.I will rule on
11:01 6 that.
11:01 7 MR. MEROS: There is a motion noticed for
11:01 8 Monday on that. Obviously we're not replowing that
11:01 9 ground.
11:01 10 THE COURT: Also in terms of streamlining
11:01 11 it -- and I don't -- I wouldn't want to appear to
11:01 12 be cutting you off. Since it's a jury trial, don't
11:01 13 take it as a show of disrespect, while we proceed,
11:01 14 I may say,I don't think I need to hear that -- for
11:01 15 example to, you may have -- if you have your CVs of
11:01 16 your experts, and I can look at it real quickly,I
11:01 17 don't need to listen to a long thing about how
11:02 18 qualified your experts are, for example.
11:02 19 But feel free if I say,I don't think I need
11:02 20 that; well, Judge,I think it's important to get it
11:02 21 in for the record; fine,I will try to you guide
11:02 22 along the way. It's hard to tell you right now --
11:02 23 MR. MEROS: Your Honor,I hope you beat on us
11:02 24 to get out of here in 11 days.I don't have that
11:02 25 many more days. And 11 days of trial is plenty.
ACCURATE STENOTYPE REPORTERS, INC. App. 295 80
11:02 1 MR. KING: Your Honor, it's possible -- we
11:02 2 videoed most of these depositions. There are a few
11:02 3 witnesses --I can think of several witnesses that
11:02 4 we had intended to call simply because it seemed
11:02 5 like it would be easier to call them and get their
11:02 6 short testimony done easier than it would be
11:03 7 cutting up a deposition or something like that, a
11:03 8 video or something.
11:03 9 But would you be interested in taking a couple
11:03 10 of witnesses by video so that you can watch them at
11:03 11 your pleasure and not in the courtroom or --?
11:03 12 THE COURT: No.
11:03 13 MR. KING: Okay.
11:03 14 THE COURT: All that means is I will have to
11:03 15 stay late and do those. It's going to be hard
11:03 16 enough for me to keep up with other stuff I have to
11:03 17 do while we're doing this.
11:03 18 By the way, schedule-wise, usually I go from
11:03 19 9:00 to noon and 1:30 to 5:00.I don't mind
11:03 20 staying late sometimes. But figure that's kind of
11:03 21 general when you talk about how long I take, a
11:03 22 couple of breaks in the morning or in the
11:03 23 afternoon.
11:03 24 What else can we talk about today?
11:03 25 MR. MEROS: Your Honor, there are going to be
ACCURATE STENOTYPE REPORTERS, INC. App. 296 81
11:03 1 at least a couple of witness issues that people may
11:03 2 need to be taken out of turn.I know that Speaker
11:03 3 Cannon has a vacation right in the middle of that
11:04 4 period of time. And so we're going to try to work
11:04 5 with these folks, especially now that happily,
11:04 6 hopefully we will try to get this --
11:04 7 THE COURT: Is he going to be a plaintiffs'
11:04 8 witness?
11:04 9 MR. MEROS: Yes, he is going to be a
11:04 10 plaintiffs' witness and our witness at the same
11:04 11 time.
11:04 12 THE COURT:I hope both sides will be
11:04 13 accommodating to the extent they can. If there is
11:04 14 a problem, what I would suggest is take a quick
11:04 15 deposition in perpetuation of testimony and present
11:04 16 it if he can't be here when you need him to be
11:04 17 here.
11:04 18 Otherwise I would hope both sides would
11:04 19 accommodate him.
11:04 20 MR. WILSON: Dr. Paulson has to leave on May
11:04 21 30th; his vacation starts. And he will be gone for
11:04 22 a long time after that. We would like to take him
11:04 23 out of turn if we can arrange it.
11:04 24 THE COURT: Same thing. My suggestion, if you
11:04 25 can't agree on something, is that you perpetuate
ACCURATE STENOTYPE REPORTERS, INC. App. 297 82
11:04 1 the testimony, present it by video. It's going to
11:04 2 be the same thing, you know; it just won't be live.
11:05 3 But if you can, certainly do it.
11:05 4 Okay. What else you want to talk about? I'm
11:05 5 ready.
11:05 6 MR. WINSHIP: Your Honor, Blaine Winship with
11:05 7 the attorney general. The attorney general is just
11:05 8 a nominal party in this case. We are --
11:05 9 THE COURT:A very important --
11:05 10 MR. WINSHIP:-- in the Romo, not in the
11:05 11 League of Women Voters case. We have taken no
11:05 12 discovery, no discovery from us, no exhibits, no
11:05 13 witnesses. Not going to be doing anything to make
11:05 14 this trial last any longer.
11:05 15 THE COURT: Thank you.
11:05 16 MR. WINSHIP: The only thing I ask of you is
11:05 17 if it would be all right with you have leave not to
11:05 18 be required to be in attendance during the entirety
11:05 19 of the trial.
11:05 20 THE COURT: Yes, sir.
11:05 21 MR. WINSHIP: Thank you.
11:05 22 MR. ZEHNDER: Your Honor,I know there are a
11:05 23 couple of motions that the parties intend to argue
11:05 24 today. But just another maybe housekeeping matter,
11:05 25 so we can cross it off the list. On page 13 of the
ACCURATE STENOTYPE REPORTERS, INC. App. 298 83
11:05 1 parties' amended joint pretrial statement, there is
11:05 2 a typographical error that we wanted to point out
11:06 3 to the Court. We talked to the other side about
11:06 4 it.
11:06 5 This is the section that has to do with
11:06 6 factual issues to be determined;I think it's
11:06 7 number 10. It references CD 25 as being part of a
11:06 8 challenge. We forgot to put in CD 15 as well in
11:06 9 there. So your copy should reflect CD 15 is also
11:06 10 part of the challenge.
11:06 11 THE COURT: So what motion you want to hear
11:06 12 now?
11:06 13 MR. KING: Your Honor, could we proceed with
11:06 14 the motion to reconsider the burden of proof?
11:06 15 THE COURT: Yeah,I haven't even seen that
11:06 16 motion.I saw that listed on the motions to be
11:06 17 heard. But I haven't seen it. What am I
11:06 18 reconsidering?
11:06 19 MR. KING: The question of whether or not the
11:06 20 burden of proof the plaintiffs must meet is beyond
11:06 21 a reasonable doubt.
11:06 22 THE COURT: Well that's a good thing. Have I
11:06 23 already decided it?
11:06 24 MR. KING: In the summary judgment motion,
11:06 25 Your Honor, there was a discussion of that. And
ACCURATE STENOTYPE REPORTERS, INC. App. 299 84
11:06 1 you entered an order and indicated in that order
11:06 2 when you denied the motion for summary judgment
11:06 3 that you considered the appropriate burden was
11:07 4 beyond a reasonable doubt.
11:07 5 THE COURT:I don't even remember it. If I
11:07 6 did,I did. And I'm happy to reconsider it.
11:07 7 Because I was going to ask y'all,I had not even
11:07 8 remembered doing that. What is the burden of
11:07 9 proof? That was my question.
11:07 10 So apparently I've already heard it and
11:07 11 decided it was beyond a reasonable doubt.I had
11:07 12 seen that language in some memos back and forth, at
11:07 13 least on their side. What's the -- well,I guess
11:07 14 I'm at a disadvantage if I had what I had before.
11:07 15 MR. KING: Would you rather have the papers
11:07 16 before we argue it, Your Honor?
11:07 17 THE COURT: Go ahead and tell me, and that's
11:07 18 okay.I can look at whatever the law is that
11:07 19 you're going to cite.I will take it under
11:07 20 advisement. Did I put anything in my order?
11:07 21 MR. KING: Yes, sir, you did. You made
11:07 22 statements in the order about it, and those are
11:08 23 significant, because they were affected -- we would
11:08 24 submit they were affected by the decision that
11:08 25 occurred afterwards, the League of Women Voters vs.
ACCURATE STENOTYPE REPORTERS, INC. App. 300 85
11:08 1 the House of Representatives informs some of the
11:08 2 things that the Court made its decision on back in
11:08 3 April of 2012 on that issue.
11:08 4 So we would suggest there are two basic
11:08 5 reasons that the Court ought to reconsider that and
11:08 6 take a different approach and follow the
11:08 7 preponderance of the evidence and strict scrutiny
11:08 8 as to minority issues.
11:08 9 THE COURT: What was my reasoning as to --
11:08 10 MR. KING: Your reasoning was that there was
11:08 11 no express constitutional mandate for this statute
11:08 12 and that, consequently, the statute was basically
11:08 13 an ordinary statute just like any legislative
11:08 14 pronouncement. And so, consequently, in an
11:08 15 ordinary legislative statement, you have to look at
11:09 16 it as beyond the reasonable doubt. That's the
11:09 17 approach that the courts take.
11:09 18 And so what we would suggest to the Court,
11:09 19 that the same standards apply to the legislative
11:09 20 plus the Congressional plans than legislative
11:09 21 plans. The fundamental importance to the voter is
11:09 22 exactly the same.
11:09 23 And in League of Women Voters, they point out
11:09 24 that the Supreme Court points out that, substantive
11:09 25 standards governing the Legislature's discretion in
ACCURATE STENOTYPE REPORTERS, INC. App. 301 86
11:09 1 redistricting are identical in the two provisions.
11:09 2 And they are.
11:09 3 Now the Court pointed out in your order that
11:09 4 the Congressional redistricting plan is established
11:09 5 by the Legislature, separate and apart from an
11:09 6 express constitutional mandate. So the beyond a
11:10 7 reasonable doubt standard applies.
11:10 8 But we would simply suggest that the U.S.
11:10 9 Constitution requires the Legislature to do
11:10 10 Congressional redistricting. The Johnson case
11:10 11 points that out: The Florida Legislature is
11:10 12 required to redistrict its Congressional districts
11:10 13 after every decennial --
11:10 14 THE COURT: Can I ask you something? Because
11:10 15 it's not the first time there has been a challenge
11:10 16 to a Congressional map; right?
11:10 17 MR. KING: And in Congressional maps the
11:10 18 Supreme Court pointed out --
11:10 19 THE COURT: Mr. King, let me -- this is not
11:10 20 the first time there has been a challenge to a
11:10 21 Congressional map; right?
11:10 22 MR. KING: No, sir.
11:10 23 THE COURT: Aren't there other cases that talk
11:10 24 about what the burden of proof is?
11:10 25 MR. KING: There are other cases. In Martinez
ACCURATE STENOTYPE REPORTERS, INC. App. 302 87
11:10 1 vs. Bush in 2002 it was preponderance of the
11:10 2 evidence.
11:10 3 THE COURT: Okay. Let me stop you for a
11:10 4 second. Why -- if it's been that way -- why, if
11:11 5 it's been that way in the past, why would it be
11:11 6 different now?
11:11 7 MR. ZAKIA: Your Honor, the cases he's citing
11:11 8 are federal cases, that Florida has a beyond a
11:11 9 reasonable doubt standard for the determination of
11:11 10 whether a statute or act of the Legislature is
11:11 11 constitutional or unconstitutional.
11:11 12 THE COURT: What about if you challenge an act
11:11 13 of Congress? What does Congress have? What's the
11:11 14 law --
11:11 15 MR. ZAKIA:I think that claim --I don't know
11:11 16 that there is a Florida standard about the
11:11 17 challenging of a federal statute.I do know that
11:11 18 the VRA cases that he's citing with respect to
11:11 19 prior challenges that have occured in prior cycles
11:11 20 is an entirely different exercise.
11:11 21 I think Mr. King has not given enough credence
11:11 22 to the robustness of Your Honor's original opinion.
11:11 23 That comes from the -- because Your Honor did a
11:11 24 great job.I just think if -- because you don't
11:11 25 have the papers in front of you,I think it is
ACCURATE STENOTYPE REPORTERS, INC. App. 303 88
11:11 1 important to consider what the analysis was. And
11:11 2 the analysis --
11:11 3 THE COURT:I will go through it. I'm going
11:11 4 to look at it all again.
11:12 5 MR. ZAKIA: Yes, sir. The federal cases he's
11:12 6 citing for the burden of proof is different issues
11:12 7 not applicable here.
11:12 8 THE COURT: So what is the burden of proof if
11:12 9 you challenge an act of Congress as being
11:12 10 unconstitutional?
11:12 11 MR. ZAKIA: I'm sorry, Your Honor,I don't
11:12 12 know the federal standard as I sit here today as to
11:12 13 what it would be challenging an act of Congress.
11:12 14 THE COURT: Okay. But the cases --I just
11:12 15 asked him --I have to look at them. But you
11:12 16 disagree that the cases in which you challenge --
11:12 17 in Florida; he's talking about in Florida, Martinez
11:12 18 versus --
11:12 19 MR. KING: Bush, 2002.
11:12 20 MR. ZAKIA: Those are federal claims, Your
11:12 21 Honor.
11:12 22 MR. KING: But they were federal claims
11:12 23 relating to the redistricting of -- that's the
11:12 24 matter that Mr. Meros cited in his argument.
11:12 25 THE COURT: But if they're federal claims,
ACCURATE STENOTYPE REPORTERS, INC. App. 304 89
11:12 1 isn't it still drawn by the state Legislature even
11:12 2 if it's a federal claim?
11:12 3 MR. ZAKIA:I want to make sure I understood
11:12 4 your question correctly, Your Honor.I apologize.
11:12 5 I thought you were asking me what the standard was
11:13 6 to strike down an act of the United States
11:13 7 Congress, not to -- it's different to talk about
11:13 8 whether the claims at issue in the cases he cites
11:13 9 involve state redistricting of Congressional maps.
11:13 10 THE COURT: That was my follow-up question.I
11:13 11 wanted to go right over to this side, because it
11:13 12 occurs to me this can't be the first time that a
11:13 13 Congressional map has been challenged in state
11:13 14 court. But if he -- sounded like a state court
11:13 15 decision. You say it's federal.
11:13 16 MR. ZAKIA: Federal statutory claims which
11:13 17 have their own burden of proof, separate and apart
11:13 18 from the burden of proof that Your Honor applied,
11:13 19 found applicable in this case.I will be happy to
11:13 20 speak --
11:13 21 THE COURT: So that follow-up question would
11:13 22 be relevant, because I'm seeing the distinction,
11:13 23 which apparently I made, in terms of challenging --
11:13 24 the Florida Legislature passes something,I presume
11:13 25 it to be constitutional.
ACCURATE STENOTYPE REPORTERS, INC. App. 305 90
11:13 1 MR. ZAKIA: Yes, and unless and until it's
11:13 2 proved unconstitutional beyond a reasonable doubt.
11:14 3 THE COURT: So the question is, if this was in
11:14 4 federal court, do we have that same distinction for
11:14 5 an act of Congress? Is an act of Congress deemed
11:14 6 to be constitutional, and the burden of proof
11:14 7 beyond a reasonable doubt; if so, we have a federal
11:14 8 case that treats Congressional redistricting
11:14 9 different, which makes a difference to me.
11:14 10 But you don't know?
11:14 11 MR. ZAKIA:I do not know the answer for an
11:14 12 act of Congress. We can find that answer and
11:14 13 provide it to you.I apologize.
11:14 14 THE COURT: That's all right.I will find out
11:14 15 too. Okay. Yes, sir.
11:14 16 MR. KING:I think it's important to note,
11:14 17 Your Honor, in apportionment 1 the decision the
11:14 18 Supreme Court rendered in 2012, they indicated that
11:14 19 the Constitution interposed a higher standard on
11:14 20 the Legislature for formulating the state's
11:14 21 apportionment plans, the new requirements
11:14 22 dramatically altered the landscape.
11:14 23 And then they went on to reject the
11:14 24 contentions of the attorney general and the House
11:14 25 that the challenger must prove facial invalidity
ACCURATE STENOTYPE REPORTERS, INC. App. 306 91
11:14 1 beyond a reasonable doubt. And they pointed to a
11:15 2 footnote that's very important, footnote five in
11:15 3 that decision.
11:15 4 And it says, quote, there is a difference
11:15 5 between the court's role in reviewing a legislative
11:15 6 apportionment plan to determine compliance with the
11:15 7 constitutionally mandated criteria and the court's
11:15 8 role in interpreting statutes. This court has
11:15 9 stated its responsibility in construing statutes
11:15 10 differently.
11:15 11 There is no question that in League of Women
11:15 12 Voters, the court nine times pointed out -- now in
11:15 13 League of Women Voters, the Supreme Court is just
11:15 14 talking about the Congressional act, because that's
11:15 15 all that's involved in that -- in the case, their
11:15 16 decision.
11:15 17 They're talking about article III, section 20,
11:15 18 which is the Congressional act. And they said that
11:15 19 there was a constitutional mandate nine times.
11:15 20 They said: The court's obligation to ensure the
11:15 21 explicit Constitutional mandate is effectively
11:16 22 enforced. Legislative privilege is outweighed by
11:16 23 compelling interest of effectuating the explicit
11:16 24 constitutional mandate regarding redistricting.
11:16 25 This case involves nothing less than the public's
ACCURATE STENOTYPE REPORTERS, INC. App. 307 92
11:16 1 interest ensuring compliance with the
11:16 2 constitutional mandate in a process this court has
11:16 3 described as the very bedrock of democracy.
11:16 4 So then we come down to the issue, the court
11:16 5 found, well, this 2012 Congressional bill is just
11:16 6 like any other bill, and it's got to be reviewed
11:16 7 under the same standard. And that's what they say.
11:16 8 They say this is just an ordinary legislative act.
11:16 9 And with an ordinary legislative act, you do the
11:16 10 kind of review you do, which is basically assume
11:16 11 the Legislature did it right. You look at the
11:16 12 legislative history; you don't make any facts about
11:16 13 it; and you make a decision based on the beyond a
11:16 14 reasonable doubt standard.
11:16 15 If there is anything clear that comes out of
11:17 16 League of Women Voters, which this Court did not
11:17 17 have in front of you when you made that decision,
11:17 18 it was not -- it was that this is not an ordinary
11:17 19 case. As they say at page -- bottom of page 149,
11:17 20 top of page 50, quote, Supreme Court speaking:
11:17 21 Additionally, the compelling competing
11:17 22 constitutional interests in this case is completely
11:17 23 unlike any competing interest implicated in a
11:17 24 traditional lawsuit challenging a statutory
11:17 25 enactment, where a court looks to determine
ACCURATE STENOTYPE REPORTERS, INC. App. 308 93
11:17 1 legislative intent through statutory construction.
11:17 2 They go on to say, second time: In this
11:17 3 context, however, the intent standard in the
11:17 4 specific constitutional mandate article III,
11:17 5 section 28(a), is entirely different than a
11:17 6 traditional lawsuit that seeks to determine
11:17 7 legislative intent through statutory construction.
11:17 8 That sentence actually gets constitutional
11:17 9 mandate and not a traditional lawsuit into the same
11:17 10 sentence.
11:17 11 Then the third time they say: So we emphasize
11:18 12 that this case is wholly unlike the traditional
11:18 13 lawsuit challenging a statutory enactment where the
11:18 14 testimony of an individual legislator is not
11:18 15 relevant to intent in statutory construction, and
11:18 16 there are few, if any, compelling competing
11:18 17 interests weighing against application of the
11:18 18 privilege.
11:18 19 They say it a fourth time: This case is
11:18 20 unlike any other civil case involving the
11:18 21 legislative privilege in contrast to traditional
11:18 22 civil cases. This case involves an issue of first
11:18 23 impression involving an explicit state
11:18 24 constitutional prohibition against partisan
11:18 25 political gerrymandering and improper
ACCURATE STENOTYPE REPORTERS, INC. App. 309 94
11:18 1 discriminatory intent.
11:18 2 So they say, no, Your Honor, this case is
11:18 3 different. This case is just like State vs.
11:18 4 McDonald, a statute regarding traffic citations.
11:18 5 This case is just like the Crist case, establishing
11:18 6 regional offices of the criminal conflict and civil
11:18 7 regional council. This is like Public Defender vs.
11:19 8 the State of Florida, which dealt with the statute
11:19 9 prohibiting withdrawal of public defenders for lack
11:19 10 of funding. This case is like State vs. Catalano,
11:19 11 noise control statute.
11:19 12 I would suggest to you the Supreme Court says
11:19 13 it's not like those cases. It's totally different.
11:19 14 The process is different.
11:19 15 And as the Supreme Court points out, in
11:19 16 distinguishing this case from those kind of cases:
11:19 17 This is not the usual delivery of process case in
11:19 18 which a private party challenges governmental
11:19 19 action.
11:19 20 They say: Instead, the decision-making
11:19 21 process itself is the case.
11:19 22 That's what the Supreme Court said in League
11:19 23 of Women Voters. They say, well, but in -- in
11:19 24 apportionment, when the court decided that we
11:19 25 wouldn't apply beyond a reasonable doubt, that was
ACCURATE STENOTYPE REPORTERS, INC. App. 310 95
11:20 1 this 30-day facial review.
11:20 2 And I would suggest to you that that would
11:20 3 even be -- if the whole concept here is deference
11:20 4 to the Legislature, in that situation where the
11:20 5 Supreme Court could only rule on the basis of
11:20 6 objective information, not testimony, as they point
11:20 7 out, not even affidavits; they just looked at it
11:20 8 totally on a facial basis. That would have been a
11:20 9 reason to apply beyond a reasonable doubt in that
11:20 10 situation. That would be giving greater deference
11:20 11 to the Legislature, and they didn't do it.
11:20 12 Where you have an opportunity to look at the
11:20 13 evidence developed over two years, in this case
11:20 14 through deposition testimony, and you hear the
11:20 15 witnesses, that's even more appropriate for
11:20 16 preponderance of the evidence.
11:20 17 The second reason, Your Honor. And I will try
11:20 18 to be brief, but this is important. And that's
11:20 19 this issue of strict scrutiny.
11:21 20 Even if this were an ordinary statute, and
11:21 21 it's not, ordinary statutes that implicate
11:21 22 fundamental rights or that deal with race-based
11:21 23 classifications must be looked at from the
11:21 24 standpoint of strict scrutiny. And what that
11:21 25 simply means is, that means that you look at the
ACCURATE STENOTYPE REPORTERS, INC. App. 311 96
11:21 1 statute -- if it's based -- if it implicates
11:21 2 fundamental rights, if it deals with race-based
11:21 3 classifications, you apply strict scrutiny.
11:21 4 If we prove by a preponderance of evidence
11:21 5 that's what occurred, if we prove by the
11:21 6 preponderance of evidence that when they raise the
11:21 7 percentage of black population in District 5, that
11:21 8 that was purely a racial decision, and the evidence
11:21 9 is going to show that it was, it was a race-based
11:21 10 classification, then the court applies strict
11:21 11 scrutiny.
11:21 12 And strict scrutiny assumes that they have got
11:21 13 to show a basis for that, show a compelling
11:21 14 governmental interest. And they've got to show
11:21 15 that they only met that governmental interest;
11:22 16 they've got to use narrow tailoring to do it.
11:22 17 As far as a fundamental right is concerned,
11:22 18 the fair and impartial election process would be a
11:22 19 fundamental right, the right to -- as apportionment
11:22 20 1 said, the right to elect representatives, and the
11:22 21 process by which we do so is the very bedrock of
11:22 22 our democracy. But even more importantly, a number
11:22 23 of the decisions that the Legislature made here
11:22 24 were race-based decisions.
11:22 25 And, Your Honor, they know about this. They
ACCURATE STENOTYPE REPORTERS, INC. App. 312 97
11:22 1 understand this law. It's in every bill -- you're
11:22 2 going to see the bill analysis that they did on
11:22 3 every one of these bills. And in every one of
11:22 4 these bills -- they did a package for the
11:22 5 Legislature.
11:22 6 And they talk about the law in that package.
11:22 7 They say: The equal protection clause limits the
11:23 8 influence of race in redistricting. If race is the
11:23 9 predominant factor in redistricting such that
11:23 10 traditional race-neutral redistricting principles
11:23 11 subordinate the considerations of race, the
11:23 12 redistricting plan will be subject to strict
11:23 13 scrutiny. To satisfy strict scrutiny the use of
11:23 14 race as a predominant factor must be narrowly
11:23 15 tailored to achieve a compelling interest.
11:23 16 They cite the trilogy of Supreme Court cases
11:23 17 between 1993 and 1996; Shaw vs. Reno, Shaw vs. Hunt
11:23 18 that come out of North Carolina. And they talk
11:23 19 about very similar districts to District 5 in this
11:23 20 case.
11:23 21 And they point out that, where the
11:23 22 redistricting legislation is bizarre on its face,
11:23 23 that it's unexplainable for grounds other than
11:23 24 race, it demands the same close scrutiny that we
11:23 25 give other state laws that classify citizens by
ACCURATE STENOTYPE REPORTERS, INC. App. 313 98
11:23 1 race.
11:23 2 And they say: The Fourteenth Amendment
11:23 3 requires state legislation that expressly
11:24 4 distinguishes among citizens because of their race
11:24 5 to be narrowly tailored to further a compelling
11:24 6 governmental interest. And they point out in the
11:24 7 second time; it went back down to the trial court
11:24 8 in North Carolina; they found strict scrutiny.
11:24 9 They applied strict scrutiny, said it met
11:24 10 strict scrutiny, back up to the Supreme Court in
11:24 11 Shaw vs. Hunt. And they say: We now hold the
11:24 12 North Carolina does violate the equal protection
11:24 13 clause because the state's reapportionment scheme
11:24 14 is not narrowly tailored to serve a compelling
11:24 15 state interest.
11:24 16 In Johnson, the third of that trilogy of cases
11:24 17 back in 1995, Johnson vs.-- Miller vs. Johnson, a
11:24 18 Georgia case, they said: Georgia's Congressional
11:24 19 redistricting plan cannot be upheld unless it
11:24 20 satisfies strict scrutiny, our most rigorous and
11:24 21 exacting standard of constitutional review. And
11:25 22 they said: Under strict scrutiny, a state must
11:25 23 have convincing evidence that remedial action,
11:25 24 based on race, is necessary because -- before
11:25 25 implementing affirmative action.
ACCURATE STENOTYPE REPORTERS, INC. App. 314 99
11:25 1 So that principle is alive and well in this
11:25 2 case because there are decisions, as I've already
11:25 3 indicated, you're going to have some important
11:25 4 decisions that relate to the decisions he talked
11:25 5 about that were made.
11:25 6 He said, Your Honor, he said, when we made
11:25 7 that decision about CD 5, when we made the
11:25 8 decisions about CD 9 and CD 14, it's because we had
11:25 9 to make that to protect our concerns about the
11:25 10 Voting Rights Act. Section 2 of the Voting Rights
11:25 11 Act would require us to do that.
11:26 12 So you're going to have -- that's the
11:26 13 compelling interest. Is there a compelling
11:26 14 interest to comply with Section 2 of the Voting
11:26 15 Rights Act to justify that race-based
11:26 16 classification.
11:26 17 Of course, they never mention it. There isn't
11:26 18 a piece of paper that said they had a fear of
11:26 19 complying with section II regarding Congressional
11:26 20 District 5 when there is not any paper, when that
11:26 21 was a decision that was made at the very last
11:26 22 second, all of a sudden using the playbook that
11:26 23 they had been using since 1992 about improving
11:26 24 political performance by claiming that it's
11:26 25 minority protection. They're going to have to
ACCURATE STENOTYPE REPORTERS, INC. App. 315 100
11:26 1 justify that.
11:26 2 And they have to justify it under strict
11:26 3 scrutiny. And that simply doesn't work with any
11:26 4 consideration of beyond a reasonable doubt.
11:26 5 So those are the two reasons, Your Honor, why
11:27 6 I think we ought to reconsider.
11:27 7 MS. KHANNA: This is Abha Khanna for the Romo
11:27 8 plaintiffs. May I be heard as well?
11:27 9 THE COURT: Yes, ma'am, go ahead.
11:27 10 MS. KHANNA:I wanted to follow up on a few of
11:27 11 the things Mr. King has already mentioned. First I
11:27 12 also want to clarify the way that this issue came
11:27 13 up the first time when Your Honor first made his
11:27 14 ruling, the --I think if you recall, the plaintiff
11:27 15 was instructed to file dispositive motions in
11:27 16 accordance with a facial review in March of 2012,
11:27 17 which they did.
11:27 18 And in response to those motions, the
11:27 19 legislative defendants filed an 80-page response
11:27 20 brief, two pages of which were devoted to arguing
11:27 21 that the standard of -- the burden of proof should
11:27 22 be beyond a reasonable doubt as it is in any other
11:27 23 ordinary statute.
11:27 24 Plaintiffs then responded in their reply
11:27 25 brief, and Your Honor issued his ruling about the
ACCURATE STENOTYPE REPORTERS, INC. App. 316 101
11:27 1 burden of proof in part of the summary judgment
11:27 2 order denying plaintiffs' (inaudible) challenge.
11:28 3 As Mr. King mentioned, since that time the Florida
11:28 4 Supreme Court has issued several opinions, and the
11:28 5 ones specifically about Congressional redistricting
11:28 6 and the extent to which that the expanded judicial
11:28 7 review that the Florida Supreme Court talked about
11:28 8 with respect to legislative plans applies equally
11:28 9 to Congressional plans.
11:28 10 One other issue. The one other point that
11:28 11 this Court relied upon in deciding that a different
11:28 12 standard -- a different burden of proof would apply
11:28 13 to Congressional plans versus legislative plans was
11:28 14 the fact that the procedural mechanism of review is
11:28 15 different. Whereas the Florida Supreme Court has
11:28 16 this mandatory review procedure that gives it 30
11:28 17 days basically to do just a facial challenge, that
11:28 18 same -- those same constraints don't apply to the
11:28 19 Congressional map and doesn't apply in this court.
11:29 20 We would submit, as Mr. King already
11:29 21 explained, if anything, the differences in the
11:29 22 procedural mechanism caution in favor of a more
11:29 23 meaningful review of the -- at this stage. The
11:29 24 implication of the beyond a reasonable doubt
11:29 25 standard applied in Congressional districting and
ACCURATE STENOTYPE REPORTERS, INC. App. 317 102
11:29 1 not legislative districting is that the great the
11:29 2 constraint upon the judiciary, somehow the more
11:29 3 meaningful review. And the fewer constraints on
11:29 4 the judiciary, somehow the less meaningful review.
11:29 5 We submit that's backwards.
11:29 6 We would submit that's backwards. We submit
11:29 7 the time and the fact-finding constraints imposed
11:29 8 upon the Florida Supreme Court, you would think
11:29 9 that that court would impose a more deferential
11:29 10 standard to legislative choices than would a court
11:29 11 that has two years of detailed information and
11:29 12 fact-finding and an 11-day trial.
11:29 13 Mr. King also mentioned that, even if -- even
11:29 14 if this were just an ordinary statute, which of
11:29 15 course we argue it is not, based on the Supreme
11:30 16 Court's most recent ruling which specified that
11:30 17 it's in fact not anything like the traditional
11:30 18 lawsuit.
11:30 19 But even if this was an ordinary statute,
11:30 20 Florida law, ordinary statutes that implicate
11:30 21 fundamental rights are analyzed under strict
11:30 22 scrutiny. And there is no question that article
11:30 23 III, section 20 embodies a fundamental right.
11:30 24 Even before this amendment to the Florida
11:30 25 Constitution was passed, Florida courts
ACCURATE STENOTYPE REPORTERS, INC. App. 318 103
11:30 1 consistently recognized the fundamental right to
11:30 2 vote and to have a fair and impartial election
11:30 3 process. There is no question that the present
11:30 4 challenge implicates the fundamental right to vote.
11:30 5 And moreover, Florida case law defines a
11:30 6 fundamental right as one that has its source, and
11:30 7 it explicitly guaranteed a (inaudible)
11:30 8 Constitution. That fundamental right is now
11:30 9 specifically enshrined in the Florida Constitution.
11:30 10 And the Florida Supreme Court repeatedly
11:30 11 emphasized that Florida voters' fundamental
11:30 12 democratic right to elect representatives of their
11:31 13 choice is at play. In fact the right to elect
11:31 14 representatives and the process by which we do so
11:31 15 has been described as the very bedrock of our
11:31 16 democracy by our Florida Supreme Court.
11:31 17 The Florida Supreme Court has repeatedly
11:31 18 referred to this, quote, fundamental, quote,
11:31 19 paramount right, that comprises the, quote, very
11:31 20 bedrock of our democracy and warrants the most
11:31 21 compelling interest. It can hardly be contended
11:31 22 that this Court should now ignore those fundamental
11:31 23 rights, that either somehow these are not
11:31 24 fundamental rights that are enshrined in the
11:31 25 Florida Constitution.
ACCURATE STENOTYPE REPORTERS, INC. App. 319 104
11:31 1 One final point, Your Honor. The most recent
11:31 2 League of Women Voters opinion from the Florida
11:31 3 Supreme Court clarified that the Florida voters
11:31 4 wanted, quote, more judicial scrutiny and not less
11:31 5 of both legislative and Congressional plans. And
11:31 6 in our view there is no less judicial scrutiny that
11:32 7 beyond the reasonable doubt standard would afford.
11:32 8 And in fact, we believe that's exactly why the
11:32 9 Florida Supreme Court directly rejected that
11:32 10 standard when looking at legislative
11:32 11 reapportionment and would do so when it comes to
11:32 12 Congressional redistricting as well.
11:32 13 Counsel has already mentioned the Martinez v.
11:32 14 Bush case. And that was a federal case challenging
11:32 15 a state redistricting statute, the state
11:32 16 Congressional redistricting statute.
11:32 17 And in that case the court applied
11:32 18 preponderance of the evidence under federal law to
11:32 19 look at whether or not there was unlawful intent.
11:32 20 But despite the fact that article III, section 20
11:32 21 puts the question of improper intent directly at
11:32 22 issue, reasonable doubt here would provide less
11:32 23 judicial scrutiny than this prior redistricting
11:32 24 challenge in the federal context, also alleged
11:32 25 improper even intent. Otherwise, application of
ACCURATE STENOTYPE REPORTERS, INC. App. 320 105
11:32 1 the beyond a reasonable doubt standard would mean
11:33 2 that it would be harder for plaintiffs to challenge
11:33 3 Congressional plans under the Florida Constitution
11:33 4 than it is under long established federal law,
11:33 5 which means that the Fair Districts amendments
11:33 6 ultimately had very little effect (inaudible)
11:33 7 redistricting.
11:33 8 The Florida Constitution was amended
11:33 9 specifically to guarantee new rights and new
11:33 10 procedures and -- so that under Florida law
11:33 11 plaintiffs could challenge the plan.
11:33 12 And if Florida law provides really no greater
11:33 13 protection, in fact far less protection than
11:33 14 federal law, then what do the Fair Districts
11:33 15 amendments really do? We submit that cannot be
11:33 16 what the Florida Supreme Court meant when it called
11:33 17 for more judicial scrutiny of Florida redistricting
11:33 18 plans and not less.
11:33 19 There is no less judicial scrutiny of
11:33 20 redistricting plans that are afforded by beyond a
11:33 21 reasonable doubt standard, which is the most
11:33 22 deferential standard of review. And we would
11:33 23 therefore ask Your Honor to reconsider in light of
11:33 24 all of the case law, including the most recent case
11:33 25 law.
ACCURATE STENOTYPE REPORTERS, INC. App. 321 106
11:34 1 THE COURT: Okay. Thank you.
11:34 2 MR. ZAKIA: Good afternoon, Your Honor. Jason
11:34 3 Zakia for the Senate.
11:34 4 THE COURT: Still morning. But --
11:34 5 MR. ZAKIA: My fault. Seems like afternoon.
11:34 6 I think it makes sense to take a couple of
11:34 7 minutes and just explain how this issue was teed up
11:34 8 and how Your Honor dealt with it the first time,
11:34 9 because I think it does clarify a bunch of issues
11:34 10 that the plaintiffs have,I think, mixed together.
11:34 11 First of all, this cannot be limited to
11:34 12 summary judgment. As Your Honor is well aware,
11:34 13 summary judgment doesn't require burden of proof to
11:34 14 determine whether there are contested facts or not
11:34 15 contested facts.
11:34 16 So when Your Honor set forth what the burden
11:34 17 of proof was going to be, it was with respect to
11:34 18 the ultimate trial in this case. That's all that
11:34 19 the burden of proof could have applied to.
11:34 20 And I think that's why they recognized it's
11:34 21 not a question of interpretation; they're asking
11:34 22 Your Honor to reverse your prior decision. Why did
11:35 23 you reach the decision you did? You have to look
11:35 24 at apportionment 1.
11:35 25 It is uncontested -- Mr. King just listed six
ACCURATE STENOTYPE REPORTERS, INC. App. 322 107
11:35 1 or seven cases -- that the standard of review for
11:35 2 challenging the constitutionality of a Florida
11:35 3 statute is beyond a reasonable doubt. That is an
11:35 4 issue dealt with in apportionment 1.
11:35 5 And the Florida Supreme Court discussed what
11:35 6 standard of review and what burden of proof it
11:35 7 would have in that original proceeding. And why is
11:35 8 that important? Because the court in
11:35 9 reapportionment 1, while still recognizing that the
11:35 10 act came cloaked with the presumption of
11:35 11 correctness in constitutionality, looked at how
11:35 12 legislative redistricting, which was at issue in
11:35 13 apportionment 1, how the Legislature's drawing of
11:35 14 state House and state Senate maps was to be treated
11:35 15 under the Constitution, and the Constitution treats
11:35 16 them very specially and very differently than
11:36 17 Congressional maps.
11:36 18 And what the court said is: While recognizing
11:36 19 that the typical standard would be beyond a
11:36 20 reasonable doubt, the Supreme Court in
11:36 21 apportionment 1 recognized that the proceeding that
11:36 22 they were engaged with was different than you would
11:36 23 typically see, because the Constitution mandated
11:36 24 that the Supreme Court, prior to the effectiveness
11:36 25 of these maps, approved them, very different than
ACCURATE STENOTYPE REPORTERS, INC. App. 323 108
11:36 1 any other legislative act.
11:36 2 Also important here is the procedure for
11:36 3 legislative redistricting passed by both houses of
11:36 4 the Legislature does not go to the governor for
11:36 5 approval or veto. It goes directly to the Supreme
11:36 6 Court for approval or not in a 30-day period in
11:36 7 which they are charged with conducting this review.
11:36 8 The court talked about each of those issues
11:36 9 and talked about how in the context of the court
11:36 10 not -- not really fulfilling a traditional judicial
11:36 11 function, but more of being part of actually the
11:36 12 legislative enactment of the maps, because the
11:37 13 Constitution put the Supreme Court instead of the
11:37 14 governor as the final review before effectiveness,
11:37 15 the court said this is a very unique situation.
11:37 16 And so given that we only have 30 days, given
11:37 17 that we are charged, separate and apart from any
11:37 18 complaints, under the Constitution with regard to
11:37 19 legislative maps, the Supreme Court is charged to
11:37 20 inquire whether those are proper or not proper,
11:37 21 even if no one were to object. So the Supreme
11:37 22 Court is playing a very different role in the
11:37 23 context of that legislative review.
11:37 24 And so what the Supreme Court said in
11:37 25 reapportionment 1, still recognizing the
ACCURATE STENOTYPE REPORTERS, INC. App. 324 109
11:37 1 presumption of correctness, no burden shifting. In
11:37 2 apportionment 1 the Supreme Court never said that
11:37 3 the Legislature has to come in and prove there was
11:37 4 no improper intent. There was still a presumption
11:37 5 of correctness. And we cite in our papers many
11:37 6 instances, including instances where there were
11:37 7 racial issues where the Supreme Court rejected
11:37 8 challenges to state House and state Senate maps,
11:37 9 because the complainants failed to meet their
11:37 10 burden of proof with regard to establishing
11:38 11 invalidity of those districts.
11:38 12 But the Court did, without specifying whether
11:38 13 it was preponderance of the evidence or clear and
11:38 14 convincing -- there are a couple of different
11:38 15 standards between beyond a reasonable doubt and
11:38 16 preponderance of the evidence, the Court did say,
11:38 17 we are going to apply a lower standard than beyond
11:38 18 a reasonable doubt. But it emphasized the unique
11:38 19 nature of that Supreme Court review.
11:38 20 So what Your Honor did when that exact same
11:38 21 argument happened two years ago was to examine the
11:38 22 differences between Congressional redistricting and
11:38 23 legislative redistricting under the constitutional
11:38 24 provisions and ask yourself, should you apply the
11:38 25 recognized standard of burden of proof to the
ACCURATE STENOTYPE REPORTERS, INC. App. 325 110
11:38 1 challenge of a legislative act.
11:38 2 And when we talk about ordinary act, it's not
11:38 3 that it was not important. The ordinariness
11:38 4 doesn't turn on the importance of the act, it's the
11:38 5 procedure on which it was adopted. And the
11:38 6 legislative maps are a procedure that is,I
11:38 7 believe, unique in our law, and which, again, it's
11:39 8 a concurrent resolution of the Legislature, goes
11:39 9 directly to the Supreme Court, not approved for
11:39 10 veto or signature of the governor.
11:39 11 And you looked at the procedure for this
11:39 12 Court's review of Congressional maps. And the
11:39 13 Court quite correctly indicated this is an entirely
11:39 14 different process.
11:39 15 First, the governor is required to sign or
11:39 16 veto a resolution of the Legislature in adopting
11:39 17 the Congressional maps, thus making it a
11:39 18 legislative process just like any other law, not
11:39 19 this special procedure that goes directly to the
11:39 20 Supreme Court.
11:39 21 Second, this is not an original proceeding
11:39 22 before the Supreme Court in which a court is duty
11:39 23 bound by the Constitution to review separate and
11:39 24 apart from any legal challenge. This is a -- may
11:39 25 be an important case. But the procedure and the
ACCURATE STENOTYPE REPORTERS, INC. App. 326 111
11:39 1 process is the same as it would be in any other
11:39 2 case where you have plaintiffs; they file a law
11:39 3 substitute, and it is that dispute which triggers
11:39 4 Your Honor's duty to adjudicate.
11:39 5 It is not a special constitutional mandate
11:40 6 that Your Honor must sign off on these maps before
11:40 7 they go into law as was the case in apportionment
11:40 8 1.
11:40 9 And so considering the differences between
11:40 10 these processes, Your Honor correctly found that it
11:40 11 would be improper for you to adopt a lesser
11:40 12 standard of proof, be that preponderance of the
11:40 13 evidence or clear and convincing, as the Supreme
11:40 14 Court did in connection with its original
11:40 15 jurisdiction case, because this was an entirely
11:40 16 different case, and you should follow the law with
11:40 17 regard to the challenge to legislative acts, which
11:40 18 is in place for all other cases.
11:40 19 I would like to speak about the League of
11:40 20 Women Voters case, because both of the plaintiffs
11:40 21 have pointed to that and said, well, Your Honor, at
11:40 22 the time that you dealt with this burden of proof
11:40 23 issue, you didn't have the benefit of the
11:40 24 legislative privilege decision. And they quote
11:40 25 different parts of the decision. It's an important
ACCURATE STENOTYPE REPORTERS, INC. App. 327 112
11:40 1 case. You need to, you know, scrutinize the
11:40 2 Legislature.
11:40 3 When we talk about scrutiny, we need to make
11:41 4 sure that our terms are straight. There are --
11:41 5 many places where the Supreme Court talks about the
11:41 6 standards under Amendments 5 and 6 as being the
11:41 7 same.
11:41 8 There what the court is talking about, be it
11:41 9 in the advisory opinion before it went on the
11:41 10 ballot issues which they cite or be it in
11:41 11 apportionment 1, they're talking about the
11:41 12 substantive things that are made illegal by the
11:41 13 amendments.
11:41 14 So they track each other with regard to what
11:41 15 the substance of the amendments say with regard to
11:41 16 new things that weren't illegal in Florida before
11:41 17 that now are going to be illegal.
11:41 18 So when they talk about more scrutiny or
11:41 19 broadening or limiting the discretion of the
11:41 20 Legislature, what the courts are talking about is
11:41 21 the fact that there are some things, for example,
11:41 22 one, drawing a map with the intent to favor or
11:41 23 disfavor a political party didn't used to be a
11:41 24 violation of the Constitution, now it is.
11:41 25 Those cases and those courts said nothing
ACCURATE STENOTYPE REPORTERS, INC. App. 328 113
11:41 1 about the burden of proof to be applied except for
11:41 2 the discussion in apportionment 1 in which the
11:41 3 court could have said, I'm throwing out this burden
11:42 4 of proof, because this relates to redistricting, or
11:42 5 this relates to fundamental rights, or this relates
11:42 6 to the ability of citizens to vote.
11:42 7 That's not what the court did. They went
11:42 8 through a reasoned analysis as to why given, given
11:42 9 the procedural Constitutional mechanism in place
11:42 10 for the review of that particular proceeding, a
11:42 11 lower burden of proof was going to be appropriate.
11:42 12 The legislative privilege case doesn't say
11:42 13 anything about burden of proof. The issue of
11:42 14 burden of proof was not raised. The issue of
11:42 15 burden of proof was not discussed by the court.
11:42 16 Again, we kind of had this discussion this
11:42 17 morning; we can't conflate the different concepts.
11:42 18 Yes,I do acknowledge that in the League of
11:42 19 Women Voters case, the Supreme Court did say that
11:42 20 you can take testimony from certain legislators and
11:42 21 legislative staffs, and that may be relevant. And
11:42 22 that was a different decision than had been the law
11:42 23 before.
11:42 24 And so in that way, that was different. And
11:42 25 so you were able to take additional discovery that
ACCURATE STENOTYPE REPORTERS, INC. App. 329 114
11:42 1 you historically wouldn't have been able to take.
11:42 2 That has nothing to do with the burden of proof.
11:43 3 And they can pull out as many quotes as they
11:43 4 want about how important or how special or how
11:43 5 unique. In the context of the legislative
11:43 6 privilege decision, there is no way the Supreme
11:43 7 Court could have possibly thought that it was
11:43 8 passing in any way on what the burden of proof
11:43 9 would be with regard to the application, in this
11:43 10 court's review, of these statutes. It dealt with
11:43 11 an entirely different issue.
11:43 12 Finally, Your Honor,I would like to address
11:43 13 the argument of fundamental rights, which we heard
11:43 14 at some length, and the fact,I believe both
11:43 15 plaintiffs argue that there are cases which they
11:43 16 cite in their brief that deal with the issue of
11:43 17 voting being a fundamental right. And those cases
11:43 18 do say that.
11:43 19 But I think, Your Honor, when you look at
11:43 20 those cases, we need to look at not just what the
11:43 21 courts do -- what they say, but what they do. The
11:43 22 two cases cited in the joint motion for
11:43 23 reconsideration are the Cobb vs. Thurman case,
11:43 24 which is a First DCA case from 2006; and the
11:43 25 Goldsmith vs. McDonald case, a Fourth DCA from
ACCURATE STENOTYPE REPORTERS, INC. App. 330 115
11:44 1 2010.
11:44 2 Now these were a little different. You
11:44 3 weren't dealing with the challenge of an act of the
11:44 4 Legislature. They were dealing with challenges to
11:44 5 election officials. And they did say that voting
11:44 6 is a fundamental right, and this is very important.
11:44 7 But what did those courts say? What standard did
11:44 8 they apply?
11:44 9 They both made very clear that, despite this
11:44 10 discussion of fundamental rights, both of them
11:44 11 expressly said -- Your Honor can see it when you
11:44 12 read the case -- both of them said that, in the
11:44 13 context of elections, you give great deference --
11:44 14 in this case it was to executive branch officials
11:44 15 that were administering the election, not the
11:44 16 Legislature. But neither of them said that you
11:44 17 don't continue to give the presumption of propriety
11:44 18 to the action of the governmental official.
11:44 19 To the contrary, they both said that you give
11:44 20 great deference to the action of the, in this case,
11:44 21 elections official. So none of them stand for the
11:44 22 proposition that, because something involves
11:44 23 elections -- and elections is even different than
11:44 24 redistricting. And no Florida court has held that
11:44 25 some special scrutiny applies to redistricting
ACCURATE STENOTYPE REPORTERS, INC. App. 331 116
11:45 1 cases under Florida law.
11:45 2 Supreme Court could have easily said that in
11:45 3 it's 200-something page opinion in apportionment 1
11:45 4 or in its opinion in apportionment 2.
11:45 5 In these cases they say it proved the opposite
11:45 6 of the position they take, and they talked about
11:45 7 the deference given to the officials administering
11:45 8 these elections laws. Your Honor was absolutely
11:45 9 correct in applying the standard burden of proof to
11:45 10 the challenge of this legislative action.
11:45 11 And, again, when we talk about the term
11:45 12 "ordinary," we don't mean this case isn't
11:45 13 important, that the case is routine. It means that
11:45 14 the legislative process and the enactment of this
11:45 15 act, which is the subject of challenge followed
11:45 16 both houses of Congress, signed by the governor; no
11:45 17 special court review, no special Supreme Court
11:45 18 involvement; a typical standard legislative
11:45 19 enactment, which was different in apportionment 1,
11:46 20 which was special, constitutionally-mandated
11:46 21 Supreme Court review, which led the Supreme Court
11:46 22 to determine that in that unique circumstance it
11:46 23 would apply the lower burden of proof.
11:46 24 And, again, even in that circumstance it still
11:46 25 recognized the correctness -- the presumption of
ACCURATE STENOTYPE REPORTERS, INC. App. 332 117
11:46 1 correctness in constitutionality. So even though
11:46 2 it re -- it certainly didn't reduce it to the level
11:46 3 of strict scrutiny, which are all federal cases
11:46 4 challenging under the equal protection clause of
11:46 5 the federal Constitution, which are different
11:46 6 claims under federal law, which plaintiffs would,
11:46 7 if they thought they had such claims, or they think
11:46 8 they have such claims, are equally able to assert
11:46 9 in the proper form and in the proper way.
11:46 10 Burden of proof tracks the claims that are at
11:46 11 issue. This is not an equal protection claim.
11:46 12 We're not in federal court. This is not a Voting
11:46 13 Rights Act case.
11:46 14 So citing to the burdens of proof cited in
11:46 15 those cases under federal law completely misses the
11:46 16 point with regard to what Your Honor should apply
11:46 17 in applying Florida law as you correctly did and
11:46 18 determined in 2012.
11:46 19 Unless you have any questions, that's what I
11:47 20 had to say.
11:47 21 Thank you, Your Honor.
11:47 22 MR. MEROS: Very briefly, Your Honor? Just to
11:47 23 follow up one thing that Mr. Zakia just said.
11:47 24 Mr. King's argument suggests there is a cause of
11:47 25 action in this case relating to an alleged
ACCURATE STENOTYPE REPORTERS, INC. App. 333 118
11:47 1 violation of the federal equal protection clause or
11:47 2 state equal protection clause, because there is
11:47 3 race-based redistricting. And because of that, you
11:47 4 can get to strict scrutiny.
11:47 5 That is not the case. There is no cause of
11:47 6 action. In fact, the Romo plaintiffs have filed
11:47 7 that claim in federal court, which will be heard by
11:47 8 a three-judge district court comprised of Judge
11:47 9 Tjoflat --I forget the others -- but that's
11:47 10 pending. That's not this case.
11:47 11 If in fact Mr. King were to file that, that
11:47 12 would be removed -- the case would be removed to
11:48 13 federal court to be heard with the Warinner case.
11:48 14 So this notion that somehow your review in this
11:48 15 case is based on strict scrutiny is flat wrong, and
11:48 16 that would be decided by a federal court if he were
11:48 17 to choose to bring it.
11:48 18 So that's all I want to stay.
11:48 19 MR. HERRON: Your Honor,I want to correct one
11:48 20 thing Mr. Meros said. It wasn't the Romo
11:48 21 plaintiffs that filed the lawsuit; it was the
11:48 22 Warinner plaintiffs.
11:48 23 MR. MEROS: One of them. My mistake.
11:48 24 THE COURT: Anything else from plaintiffs?
11:48 25 MR. KING: May I respond?
ACCURATE STENOTYPE REPORTERS, INC. App. 334 119
11:48 1 THE COURT: Yes.I said anything else from
11:48 2 plaintiffs.
11:48 3 MR. KING: Yes, Your Honor. Let me talk about
11:48 4 it in reverse order, the strict scrutiny aspect of
11:48 5 it, because Mr. Meros and I have a disagreement
11:48 6 about how that works.
11:48 7 And I think the Supreme Court is on my side on
11:48 8 that, so I would like to see if I can establish
11:49 9 that.
11:49 10 They make a decision. If that decision is
11:49 11 race based, then the court has to look at that
11:49 12 decision and see if that is an appropriate
11:49 13 decision, and the standard you follow is strict
11:49 14 scrutiny. Now, is that just me saying that? Is
11:49 15 that some federal case?
11:49 16 No. We haven't filed a Section II claim. But
11:49 17 the Supreme Court of Florida, in apportionment 1
11:49 18 said, they talked about this, because they faced
11:49 19 exactly the same situation with this -- the analog
11:49 20 district to District 5 in this case, in the Senate
11:49 21 case was District 6.
11:49 22 And District 6 was an elongated district that
11:49 23 had -- had a large African-American population in
11:49 24 it, and it violated all the compactness rules. And
11:49 25 the Supreme Court looked at that, and they said --
ACCURATE STENOTYPE REPORTERS, INC. App. 335 120
11:49 1 and it's important, because voting rights section 5
11:50 2 and section 2 are arguably covered by the minority
11:50 3 protection provisions in the Florida Constitution
11:50 4 now in the Fair Districts amendments. And they
11:50 5 deal with that.
11:50 6 And the argument was made that the Legislature
11:50 7 in the Senate map was racially gerrymandering for
11:50 8 political purposes. And the court said to that --
11:50 9 that the United States Supreme Court is cautioned,
11:50 10 we do not read any of our other section 5 cases to
11:50 11 give covered jurisdictions carte blanche to engage
11:50 12 in racial gerrymandering in the name of
11:50 13 nonretrogression.
11:50 14 A reapportionment plan would not be narrowly
11:50 15 tailored to the goal of avoiding retrogression if
11:50 16 the state went beyond what was reasonably necessary
11:50 17 to avoid retrogression, and they cite the Shaw
11:50 18 case, which was the same case I cited to Your Honor
11:50 19 in my opening.
11:51 20 And they go on to say, this is especially true
11:51 21 in light of the United States Supreme Court's
11:51 22 admonition. And they talk about the danger in
11:51 23 racial classification.
11:51 24 They do a lengthy quote. And they say that
11:51 25 racial gerrymandering, even for remedial purposes,
ACCURATE STENOTYPE REPORTERS, INC. App. 336 121
11:51 1 may balkanize us into competing racial factions
11:51 2 that threaten to carry us further from the goal of
11:51 3 a political system in which race no longer matters,
11:51 4 a goal that the Fourteenth and Fifteenth amendments
11:51 5 embody, and to which the nation continues to
11:51 6 aspire. It is for these reasons that race-based
11:51 7 districting by our state legislatures demands close
11:51 8 judicial scrutiny.
11:51 9 Now that's in the Supreme Court's decision.
11:51 10 And Justice Canady, on -- although they did not
11:51 11 say,I will concede to the Court; you can see when
11:51 12 you read it -- they don't concede that they're
11:51 13 applying strict scrutiny to the Senate map.
11:52 14 But Justice Canaday, in the minority, says
11:52 15 there is no question that's what they're doing.
11:52 16 And they did. And they struck down that district,
11:52 17 because there was no reasonable justification,
11:52 18 because the Senate did not even do a functional
11:52 19 analysis when they did their map.
11:52 20 And of course it's the Senate in this case
11:52 21 that came to that secret meeting on January the
11:52 22 24th, and said, you've got to make these racial
11:52 23 decisions. You've got to increase the
11:52 24 African-American population in District 5; you've
11:52 25 got to increase the Hispanic population in District
ACCURATE STENOTYPE REPORTERS, INC. App. 337 122
11:52 1 9; and you've got to increase the African-American
11:52 2 and Hispanic population in District 14.
11:52 3 So those are clearly -- and they don't make
11:52 4 any attempt to suggest it wasn't done just because
11:52 5 of a race-based decision. So those are issues
11:53 6 that, according to our Florida Supreme Court,I
11:53 7 would submit to the Court, require judicial
11:53 8 scrutiny, and they really -- and strict scrutiny,
11:53 9 which is inconsistent with any concept of beyond a
11:53 10 reasonable doubt.
11:53 11 As far as the other argument about whether or
11:53 12 not this is an ordinary statute, whether this is
11:53 13 the same as a normal constitutional enactment that
11:53 14 is entitled such great deference, they had to rely
11:53 15 on that language about deference from the decision
11:53 16 where the Supreme Court says, we're not going to
11:53 17 apply beyond a reasonable doubt.
11:53 18 And the Supreme Court, what they want to say
11:53 19 is, well, there must be three different categories
11:53 20 of cases. There is the normal legislative case;
11:53 21 there is this Congressional case; and there is the
11:53 22 Supreme -- and there is the situation in the House
11:53 23 and the Senate that's considered in apportionment
11:54 24 1.
11:54 25 That's not the case. The Legislature --I
ACCURATE STENOTYPE REPORTERS, INC. App. 338 123
11:54 1 mean the Supreme Court in League of Women Voters
11:54 2 vs. Florida House of Representatives made it very
11:54 3 clear that this is not the kind of statute that you
11:54 4 look at like the normal statute, and you give great
11:54 5 deference to the statute, because you get involved
11:54 6 in the process by which the statute is constructed,
11:54 7 and you have the opportunity to hear the testimony
11:54 8 about that.
11:54 9 And they say that's different. The Supreme
11:54 10 Court says that's different from those other cases.
11:54 11 And for that reason, beyond a reasonable doubt
11:54 12 is not the appropriate standard, Your Honor.
11:54 13 THE COURT: Ms. Frost, did you want to add
11:54 14 anything?
11:54 15 MS. FROST: Your Honor, thank you.
11:54 16 THE COURT: All right. Well, it is an
11:54 17 important issue, and I'm glad --I don't know why
11:54 18 I'm not getting your stuff.I didn't get the
11:54 19 response here. And I know -- that's only after I
11:54 20 get them. So --
11:55 21 MS. KHANNA: Your Honor, I'm sorry. This is
11:55 22 Abha Khanna for the Romo plaintiffs. May I please
11:55 23 respond as well?
11:55 24 THE COURT: Oh, yeah, I'm sorry.I didn't
11:55 25 know you spoke before. Go ahead.
ACCURATE STENOTYPE REPORTERS, INC. App. 339 124
11:55 1 MS. KHANNA:I did a supplement to Mr. King's
11:55 2 initial argument.I would like to have a few
11:55 3 points refined as well.
11:55 4 THE COURT: Go ahead.
11:55 5 MS. KHANNA: As I understand it, Mr. Zakia
11:55 6 mentioned that the standard of review in this case
11:55 7 should be the same whether or not it was raised on
11:55 8 summary judgment or in trial. And -- and I would
11:55 9 submit, as I understand, that we would agree; the
11:55 10 procedural posture of a case does not determine the
11:55 11 substantive standard of review.
11:55 12 And yet that is -- that's the only real
11:55 13 distinction between this case and the legislative
11:55 14 apportionment case. The procedural posture of that
11:55 15 case is different than the procedural posture of
11:55 16 this case.
11:55 17 But that does not determine the substantive
11:56 18 standard of review, in the same way that, just as
11:56 19 the procedural posture of a summary judgment
11:56 20 hearing is different than the procedural posture of
11:56 21 a trial, the substantive standard of review should
11:56 22 be the same.
11:56 23 Mr. Zakia mentioned that the Constitution
11:56 24 treats legislative and Congressional plans
11:56 25 differently, and that this is somehow basis for
ACCURATE STENOTYPE REPORTERS, INC. App. 340 125
11:56 1 different substantive standards of review. But the
11:56 2 Supreme Court, in apportionment 1, explained that
11:56 3 the expanded judicial review is, quote, by virtue
11:56 4 of the additional Constitutional requirement, end
11:56 5 quote.
11:56 6 Standard judicial review, which the Supreme
11:56 7 Court applied, was not -- did not turn on the fact
11:56 8 that there was a different procedural mechanism
11:56 9 that had been in place for decades. It turned on
11:56 10 the fact these are new amendments, and Amendment 6
11:56 11 is identical to Amendment 5 in that respect.
11:56 12 With the issue of fundamental right, Mr. Zakia
11:56 13 argued that those cases talk about deference to
11:57 14 election administrators. And I would argue that
11:57 15 the deference to election administrators in issues
11:57 16 of elections administration does not equate to
11:57 17 discretion to trample upon fundamental rights of
11:57 18 Florida voters from enacting statutes pursuant to
11:57 19 constitutional mandates.
11:57 20 He also made no reference to Florida law's
11:57 21 definition of fundamental right, which defines the
11:57 22 fundamental right as one that has as its source and
11:57 23 is explicitly guaranteed by the Florida
11:57 24 Constitution. Amendment 6 is now explicitly
11:57 25 guaranteed and has its source in the Florida
ACCURATE STENOTYPE REPORTERS, INC. App. 341 126
11:57 1 Constitution, article III, section 20, giving
11:57 2 Florida voters a fundamental democratic right to
11:57 3 elect a candidate of their choice in fairly drawn
11:57 4 districts.
11:57 5 Finally, Mr. Zakia argued that this is not a
11:57 6 federal case, and this is not federal law
11:57 7 (inaudible) different here. According to that
11:57 8 argument, Florida law, under the Florida
11:57 9 Constitution, which the voters have specifically
11:58 10 amended to curb legislative abuses in
11:58 11 redistricting, should somehow be more deferential
11:58 12 than long established federal law.
11:58 13 And we would submit that Florida voters and
11:58 14 the Florida Supreme Court would disagree.
11:58 15 Thank you, Your Honor.
11:58 16 THE COURT: Okay. Well, like I said, it is an
11:58 17 important issue.I didn't even realize it was on
11:58 18 the motion for reconsideration is why I was going
11:58 19 to bring it up.I will reconsider it.I don't
11:58 20 know if I will change my mind or not, but I will
11:58 21 certainly look at that.
11:58 22 Can you get me what you were looking at that I
11:58 23 don't have?
11:58 24 MR. ZAKIA: Yes, Your Honor.
11:58 25 MR. HERRON: And I, in communication with
ACCURATE STENOTYPE REPORTERS, INC. App. 342 127
11:58 1 Ms. Khanna, will have the stuff to your office this
11:58 2 afternoon.
11:58 3 THE COURT: So let's take a break. We still
11:58 4 have some more stuff to do. So see you back at
11:58 5 1:30 or so, and we will continue.
11:58 6 (Lunch recess).
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ACCURATE STENOTYPE REPORTERS, INC. App. 343 128
13:35 1 THE COURT: Have a seat. Okay. Back to work.
13:35 2 MR. ZEHNDER: Your Honor,I guess we need to
13:35 3 figure out how to get those folks back on the
13:35 4 phone. I'm not sure I'm savvy enough to do that.
13:35 5 THE COURT: Bailiff says he has IT coming.
13:35 6 MR. MEROS: Your Honor, if I can just
13:35 7 approach,I will make sure they have the right
13:35 8 number.
13:37 9 (Discussion off the record).
13:37 10 THE COURT: While we're waiting,I will tell
13:37 11 you I don't have some of these motions.I do have
13:37 12 the motion in limine to exclude the plaintiffs'
13:37 13 expert testimony.I don't think I have the -- let
13:37 14 me see if I do or not.I don't think I have any
13:37 15 others.
13:37 16 MR. ZEHNDER: Your Honor, if I could approach,
13:37 17 I have a bench copy of our joint response to the
13:37 18 motion in limine that I think we're going to argue
13:37 19 today on the legislative defendants' request to
13:37 20 exclude their opposition of the Fair Districts
13:37 21 amendments evidence.
13:37 22 MR. MEROS: Are you saying, Your Honor, you
13:37 23 don't have that motion?
13:37 24 THE COURT: To exclude testimony of Chen and
13:38 25 Rodden.I think I got a response to that from
ACCURATE STENOTYPE REPORTERS, INC. App. 344 129
13:38 1 y'all.
13:38 2 MR. ZEHNDER: It would be --
13:38 3 MR. MEROS: The legislative parties have a
13:38 4 motion in limine regarding testimony concerning the
13:38 5 Legislature's prior opposition to Amendment 6.
13:38 6 THE COURT: It also says legislative parties'
13:38 7 objection to nonparty subpoenas.
13:38 8 MR. MEROS: Right. That's another one.
13:38 9 THE COURT:I don't have that.
13:38 10 MR. HERRON:I delivered that to your office
13:38 11 this morning when you said you didn't have it.
13:38 12 It's in your box right now if you want it.I can
13:38 13 get it for you. Theirs as well as mine.
13:38 14 THE COURT: Just saying, if I'm going to hear
13:38 15 it,I don't have it.
13:38 16 MR. ZEHNDER: That's our opposition to the
13:38 17 Legislature's motion in limine to exclude evidence
13:38 18 about their opposition to the Fair Districts
13:38 19 amendment in the past.
13:38 20 THE COURT:I did see that at some point.
13:38 21 MR. MEROS: Your Honor, if I may approach,I
13:39 22 can give you a copy of the actual motion itself.
13:39 23 THE COURT: And I don't have the Coalition
13:39 24 plaintiffs' motion to exclude trial testimony,
13:39 25 exhibits of certain witnesses, either. Fair
ACCURATE STENOTYPE REPORTERS, INC. App. 345 130
13:39 1 Districts.
13:39 2 (Discussion off the record):
13:42 3 MS. KHANNA: Your Honor, this is Abha Khanna
13:42 4 for the Romo plaintiffs.
13:42 5 THE COURT: Judge Lewis on the line here.
13:42 6 Anybody else on?
13:42 7 MS. DAVIS: Ashley Davis.
13:42 8 MS. SISIC: This is Tea Sisic, King,
13:42 9 Blackwell, Zehnder & Wermuth on behalf of the
13:42 10 Coalition plaintiffs.
13:42 11 THE COURT:I didn't get that name.
13:42 12 MS. SISIC: Tea Sisic.
13:42 13 MR. ZEHNDER:T-E-A, Tea, Sisic,S-I-S-I-C.
13:43 14 THE COURT: Did Ms. Frost not come back?
13:43 15 MS. KHANNA:I think it's just me, Ms. Khanna,
13:43 16 for the Romo plaintiffs on the line right now.
13:43 17 THE COURT: So what would you like to do next?
13:43 18 MR. MEROS: Your Honor,I guess despite the
13:43 19 fact you don't have some of these pleadings, I'm
13:43 20 willing to argue a motion in limine regarding prior
13:43 21 opposition. We also have one relating to
13:43 22 objections to a subpoena. So those are, as I
13:43 23 understand it, the two outstanding that have been
13:43 24 noticed.
13:43 25 THE COURT: Okay. I'm familiar with the
ACCURATE STENOTYPE REPORTERS, INC. App. 346 131
13:43 1 opposition to the Fair Districts amendments.
13:43 2 MR. MEROS: Your Honor,I will be very brief
13:43 3 on this, because it is directly in the Florida
13:43 4 Supreme Court decision. But there is no secret
13:43 5 that the Legislature had concerns and objections to
13:44 6 the standards and opposed them.
13:44 7 THE COURT: Read me that language from the
13:44 8 opinion.I remember reading that motion,I guess
13:44 9 at some point or another.
13:44 10 MR. MEROS: 83 So.2d 3rd 597 at page 643 the
13:44 11 court said, and I quote, the Coalition next takes
13:44 12 issue with the fact that the Legislature
13:44 13 attempted -- quote, attempted every possible legal
13:44 14 maneuver to keep the Fair Districts amendments from
13:44 15 becoming law, close quote, and then attempted to
13:44 16 invalidate the Congressional amendment in federal
13:44 17 court.
13:44 18 However, evidence that the Legislature
13:44 19 resisted efforts to make the new constitutional
13:44 20 standards enforceable law does not equate to
13:44 21 evidence that the Legislature would then
13:44 22 intentionally disregard that law once it was in
13:44 23 effect.
13:44 24 It didn't reject the probative -- the weight
13:44 25 of the evidence. It said specifically, it is not
ACCURATE STENOTYPE REPORTERS, INC. App. 347 132
13:44 1 evidence as to what the Legislature would do --
13:44 2 THE COURT: That's not how I read that, what
13:45 3 you just read to me. It doesn't equate to it.
13:45 4 Apparently they considered it, because they
13:45 5 addressed it.
13:45 6 MR. MEROS: No, they rejected it out of hand.
13:45 7 THE COURT: Well, these rejected the argument.
13:45 8 In other words, to me that's not, we're not going
13:45 9 to consider this evidence. In other words, don't
13:45 10 present this to us.
13:45 11 MR. MEROS: Right.
13:45 12 THE COURT: Because it's completely
13:45 13 irrelevant. What they're saying is,I hear your
13:45 14 argument that all this stuff -- that doesn't equate
13:45 15 to proof that they would not follow the law.
13:45 16 MR. MEROS: Yes, sir. So what we're saying,
13:45 17 and the Coalition folks would like to again make
13:45 18 much of the fact that there was opposition to
13:45 19 somehow prove that we violated the law. We believe
13:45 20 that to be clearly irrelevant, contrary to what the
13:45 21 Supreme Court said, and not appropriate testimony.
13:45 22 And it's particularly, under the circumstances of
13:45 23 trying to get this thing tried on the merits and on
13:45 24 the real basis.
13:45 25 THE COURT: Well,I would disagree with you
ACCURATE STENOTYPE REPORTERS, INC. App. 348 133
13:46 1 that it's not relevant. The weight to be given is
13:46 2 a different story. I'm certainly willing to take
13:46 3 judicial notice, because I've heard this quite a
13:46 4 bit.
13:46 5 So I know that the legislative defendants
13:46 6 opposed it and all sorts of stuff, if you all want
13:46 7 to shorten that. And they can make whatever
13:46 8 arguments. Because that obviously would suggest a
13:46 9 motive; that doesn't mean that they would. But
13:46 10 that's why it would be relevant.
13:46 11 So --
13:46 12 MR. MEROS: Okay.
13:46 13 THE COURT: Can we -- can we agree that we can
13:46 14 shorten that part?I understand why you want to
13:46 15 argue it, but I don't think I need to hear all of
13:46 16 the steps that go through it. That's like you did
13:46 17 this, and you did that. Okay.
13:46 18 MR. ZEHNDER: Your Honor, we will figure out
13:46 19 how to give a truncated presentation of the
13:46 20 opposition, based on what the Court has -- is
13:46 21 telling me.
13:46 22 THE COURT:I will take judicial notice of it.
13:46 23 You set it out, you know, what they did in these
13:46 24 papers, and I will take judicial notice of it --
13:46 25 MR. MEROS: Your Honor, that's fine. But to
ACCURATE STENOTYPE REPORTERS, INC. App. 349 134
13:46 1 the extent that you -- that the Court deems it to
13:47 2 be relevant, then we will certainly have testimony
13:47 3 as to the true motive behind the opposition, which,
13:47 4 you know, we don't think is relevant.
13:47 5 THE COURT: Well, you're opened up for a lot
13:47 6 of cross-examination exactly what they did to try
13:47 7 to counter their motivation.I don't -- the point
13:47 8 of fact is that they did; right?
13:47 9 MR. MEROS: Right. But the question is -- the
13:47 10 question is, if the Court deems it relevant to
13:47 11 suggest that a motive now would be to violate those
13:47 12 standards, there certainly is testimony that we are
13:47 13 ready to produce to show that the motive is
13:47 14 entirely to the contrary.
13:47 15 THE COURT: Well, if you want to get with
13:47 16 counsel, they may agree that's what your clients
13:47 17 would say. You don't have to present that either.
13:47 18 I'm going to assume they're going to take the
13:47 19 position that, it's got nothing to do with our
13:47 20 willingness to follow the law. There are a lot of
13:47 21 reasons why we would oppose it.
13:47 22 But on the face of it it's relevant.
13:48 23 MR. MEROS: Okay. That's that motion, Your
13:48 24 Honor.
13:48 25 THE COURT: Okay.
ACCURATE STENOTYPE REPORTERS, INC. App. 350 135
13:48 1 MR. MEROS: The -- the second motion is the
13:48 2 legislative parties' objection to a -- to subpoenas
13:48 3 seeking telephone records from Speaker Cannon and
13:48 4 Mr. Kirk Pepper that was filed recently.
13:48 5 And this goes back to the -- the acknowledged
13:48 6 fact, Your Honor, that the speaker and Kirk Pepper
13:48 7 worked together in the speaker's office. They
13:48 8 speak frequently; the fact that Mr. Reichelderfer
13:48 9 has been a consultant for Mr. Cannon on political
13:48 10 matters and speak frequently, and this follows a
13:48 11 year and a half after the Coalition plaintiffs and
13:48 12 the Romo plaintiffs had Mr. Reichelderfer's
13:49 13 discovery, which I believe was in November of 2010.
13:49 14 And now they are seeking telephone records
13:49 15 showing all of the -- all of the calls that the
13:49 16 speaker has had, Mr. Kirk Pepper has had in a
13:49 17 matter relating to whatever, to simply try to show
13:49 18 that there were communications between the parties.
13:49 19 Number one, there is no question there were
13:49 20 communications between the parties. But this is
13:49 21 clear overbroad and has very significant privacy
13:49 22 applications, if not First Amendment implications.
13:49 23 This would also show -- this would not show
13:49 24 the contents of the conversations, but this would
13:49 25 show many other people and numbers with whom these
ACCURATE STENOTYPE REPORTERS, INC. App. 351 136
13:49 1 folks communicated, many completely unrelated to
13:49 2 that. And that would be out in the open.
13:49 3 Obviously with whom you associate in other -- in
13:49 4 other matters is an intensely private issue.
13:50 5 I would also suggest, Your Honor, that there
13:50 6 is a -- there is a real associational First
13:50 7 Amendment problem when you are seeking that broad
13:50 8 of information from -- from people who are -- who
13:50 9 are in the political world, who are, in many
13:50 10 respects, advancing political interests and totally
13:50 11 unrelating to redistricting, including the agenda
13:50 12 of the Speaker of the House in other matters,
13:50 13 legislatively, and his political consultant for his
13:50 14 personal, you know, political needs as a speaker.
13:50 15 And all of this could have been addressed a
13:50 16 year ago. And to do so now, when it is
13:50 17 acknowledged that there are communications, is both
13:50 18 overbroad and clearly excessive in terms of privacy
13:50 19 interests and the need for the information.
13:51 20 THE COURT: Who are the subpoenas going to?
13:51 21 MR. MEROS: To Dean Pepper -- Dean Pepper.
13:51 22 Dean Cannon and Kirk Pepper.
13:51 23 THE COURT: And Reichelderfer -- how do you
13:51 24 pronounce it?
13:51 25 MR. MEROS: No, sir. We are arguing this on
ACCURATE STENOTYPE REPORTERS, INC. App. 352 137
13:51 1 behalf of Dean Cannon and Kirk Pepper.
13:51 2 THE COURT: And the subpoenas seek -- read to
13:51 3 me what it says.
13:51 4 MR. MEROS: Okay. This is the one to Kirk
13:51 5 Pepper, produce the following records for each
13:51 6 wireless and wire line telephone account: Service
13:51 7 provider for account; telephone number and billing
13:51 8 account number for account; name associated with
13:51 9 account; address associated with account; length of
13:51 10 service for account; local and long-distance
13:51 11 connection records for account, including, but not
13:52 12 limited to, addressing information and/or telephone
13:52 13 numbers for incoming and outgoing telephone calls
13:52 14 and text messages; dates and times of telephone
13:52 15 calls and text messages; and duration of telephone
13:52 16 calls.
13:52 17 And then it even goes on to say, the means and
13:52 18 source of payment for account, including any credit
13:52 19 card or bank account number.
13:52 20 So you can see it's exceedingly broad --
13:52 21 THE COURT: Let me ask you this. Why would
13:52 22 you care?
13:52 23 MR. MEROS: Why would I care? Because we also
13:52 24 represent the speaker and Mr. Pepper for purposes
13:52 25 of deposition and for purposes of arguing this, and
ACCURATE STENOTYPE REPORTERS, INC. App. 353 138
13:52 1 also --
13:52 2 THE COURT: It wasn't brought by Mr. Cannon or
13:52 3 by Mr. Pepper; it was brought by y'all -- by the
13:52 4 legislative defendants.
13:52 5 MR. MEROS: Right. But under the rule we have
13:52 6 the right to an objection. There is no question
13:52 7 under Florida -- the rule --
13:52 8 THE COURT: Why would you care? It's not
13:52 9 overbroad in terms of the legislative defendants.
13:53 10 MR. MEROS: Well, it's exceedingly overbroad
13:53 11 in terms of the need for the case. It is
13:53 12 acknowledged that they have communicated, the
13:53 13 number of their communications. And, again, for
13:53 14 purposes of the Legislature, it is important to
13:53 15 understand that the presiding officer -- and Dean
13:53 16 Cannon, by the way, is -- is a party, essentially,
13:53 17 as Speaker of the House at the period of time when
13:53 18 this map was enacted.
13:53 19 And for communications of the Speaker of the
13:53 20 House to be investigated that could be totally
13:53 21 unrelated to this and could be related either to
13:53 22 personal information or to business of the
13:53 23 Legislature, totally apart from the redistricting,
13:53 24 is very much an institutional matter.
13:53 25 THE COURT: Are they seeking to get text
ACCURATE STENOTYPE REPORTERS, INC. App. 354 139
13:53 1 messages?
13:53 2 MR. MEROS: Yes. They're -- they are -- the
13:53 3 next to the last bullet point asks for everything.
13:53 4 THE COURT: Okay.
13:53 5 MR. MEROS:I will be happy to give you
13:53 6 this -- this request --
13:54 7 THE COURT: Yeah.I was just trying to see
13:54 8 what the scope is. Let me ask the plaintiffs, why
13:54 9 are you waiting until now to try to get these
13:54 10 things?I would think you would be trying to get
13:54 11 this a long time ago.
13:54 12 MR. HERRON: If I could?
13:54 13 THE COURT: Uh-huh.
13:54 14 MR. HERRON: The subpoenas were issued on the
13:54 15 14th of March. And the subpoenas followed,I
13:54 16 believe, some of the additional discovery in this
13:54 17 case. When Kirk Pepper says he doesn't know
13:54 18 anything about, never made these phone calls, never
13:54 19 had any phone calls. You heard here today that
13:54 20 Kirk Pepper is described by the defendants as a
13:54 21 rogue, and what he did here was not authorized.
13:54 22 So in terms of getting the other side the
13:54 23 other people's -- whether they made these calls or
13:54 24 not; they said they did not; we're not trusting,
13:54 25 but we would like to verify. We would like to
ACCURATE STENOTYPE REPORTERS, INC. App. 355 140
13:54 1 verify whether there were conversations between
13:54 2 Reichelderfer and Pepper, Reichelderfer and Dean
13:55 3 Cannon.
13:55 4 Mr. Reichelderfer's counsel is not here today.
13:55 5 We didn't set that one. But we are seeking really
13:55 6 to determine the frequency -- whether calls were
13:55 7 made, the frequency and the timing of the calls,
13:55 8 perhaps for the purposes of refreshing the
13:55 9 recollection while they're here at trial, perhaps
13:55 10 for the purposes of impeachment. But we are not
13:55 11 seeking any content --
13:55 12 THE COURT: That's why I asked, were you
13:55 13 asking for the text messages?
13:55 14 MR. HERRON:I didn't understand -- it's the
13:55 15 next to the last bullet point.I didn't understand
13:55 16 the next to the last bullet point as requesting
13:55 17 content. It's more in terms of the frequency, the
13:55 18 timing, you know, to let the Court determine
13:55 19 whether, in fact, these dots are there, whether
13:55 20 conversations associated with the presentation of
13:55 21 the plan are relevant.
13:55 22 So that's our purpose here. And the reason we
13:55 23 waited was we wanted to get the information from
13:56 24 the other players as to whether they had these
13:56 25 conversations.
ACCURATE STENOTYPE REPORTERS, INC. App. 356 141
13:56 1 THE COURT:I don't see anything wrong. But
13:56 2 it seems perfectly discoverable to me if there is a
13:56 3 concern about -- and I can see that, say, well,I
13:56 4 made a call to, you know, somebody, personal phone
13:56 5 call,I don't want them knowing that I talked with
13:56 6 this person,I think I would redact that. And if
13:56 7 they don't think you redact it properly, you're
13:56 8 only interested in people that you can name that
13:56 9 are associated with this process; right?
13:56 10 MR. HERRON: Yeah.I don't care if he called
13:56 11 his law partner or anything like that;I really
13:56 12 don't. But, again, in terms of this thing,
13:56 13 particularly Reichelderfer, Pepper, and the
13:56 14 speaker.
13:56 15 MR. MEROS: Well, Your Honor, we would be
13:56 16 happy to redact any other -- any other
13:56 17 communications like that and to provide whatever
13:56 18 records exist regarding those three.
13:56 19 THE COURT: And my interpretation --
13:56 20 MR. MEROS: Now, understand, Your Honor --
13:56 21 here is one of the problems. You know, people --
13:57 22 people have many different roles in this city with
13:57 23 clients. And Mr. Reichelderfer and others have
13:57 24 private clients who lobby and who have interests
13:57 25 before the Legislature.
ACCURATE STENOTYPE REPORTERS, INC. App. 357 142
13:57 1 And so there could be any number of
13:57 2 communications -- and all you have to do is go on
13:57 3 the Lobby Tools and see the list of clients that
13:57 4 Mr. Reichelderfer or others have. And
13:57 5 conversations could be had relating to another
13:57 6 client or --
13:57 7 THE COURT: Of course. But -- and they're not
13:57 8 going to know.
13:57 9 MR. MEROS: Okay. That's fine. We will do
13:57 10 the redaction. Is this yours, or did I take that?
13:57 11 MR. HERRON:I don't know. With respect to
13:57 12 the numbers that they're going to redact,I think
13:57 13 the universe perhaps needs to be expanded to the
13:57 14 various political operatives that have been
13:57 15 mentioned in this case.
13:58 16 THE COURT: Just give them a list, then?
13:58 17 MR. HERRON: We will give them a list.
13:58 18 THE COURT: These are people -- and they ought
13:58 19 to know whose number they're calling. If they
13:58 20 don't know, they ought to check and find out. But
13:58 21 yeah, any numbers they don't want you to know about
13:58 22 that's got nothing to do with any of the people --
13:58 23 and you could give them a list of the people that
13:58 24 are alleged to have been somehow connected to
13:58 25 this --
ACCURATE STENOTYPE REPORTERS, INC. App. 358 143
13:58 1 MR. HERRON:I think the usual suspects are
13:58 2 well known.
13:58 3 THE COURT: Usual suspects, okay. Okey-doke.
13:58 4 I guess, by when can we do this?
13:58 5 MR. MEROS:I just do not know, Your Honor.
13:58 6 We will be back on Monday.
13:58 7 THE COURT: Obviously they need it very
13:58 8 quickly.
13:58 9 MR. MEROS: Sure.
13:58 10 MR. KING: Your Honor, just so you know, we
13:58 11 don't plan to come back on Monday. The motion, the
13:58 12 main motion is not a Coalition plaintiffs' motion.
13:59 13 We will be on the phone Monday. That's not
13:59 14 wonderful. But I hope the Court understands.
13:59 15 THE COURT: Not a problem.
13:59 16 MR. KING: Right.
13:59 17 THE COURT:I thought you liked being here,
13:59 18 but -- okay. What else do you have for me?
13:59 19 MR. MEROS:I don't think there is any other
13:59 20 noticed motions.
13:59 21 MR. ZEHNDER: There aren't any other noticed
13:59 22 motions, Your Honor. We just had a couple of other
13:59 23 issues.
13:59 24 We're still thinking about how we can shorten
13:59 25 this trial, and one of the things that occurred to
ACCURATE STENOTYPE REPORTERS, INC. App. 359 144
13:59 1 us was, expert testimony, and particularly expert
13:59 2 reports. Typically the reports don't come into
13:59 3 evidence, and we understand that. But if the
13:59 4 parties would agree that they do, that could
13:59 5 shorten the questioning of the experts. We
13:59 6 wouldn't have to cover everything that's in the
13:59 7 report.
13:59 8 THE COURT: Mr. Expert, did you do a report?
13:59 9 Does that fully set forth your opinion in this
13:59 10 case? Yes, it does. You offer it as an exhibit?
14:00 11 You could still cross examine, all that.
14:00 12 MR. MEROS: Your Honor, with greatest respect,
14:00 13 that is absolutely hearsay. On the House side we
14:00 14 object to that.
14:00 15 THE COURT: Then that's going to be a problem,
14:00 16 because it is hearsay. That would be a way to
14:00 17 shorten.
14:00 18 MR. ZEHNDER: We're trying.
14:00 19 THE COURT: Okay.
14:00 20 MR. ZEHNDER:A couple of other housekeeping
14:00 21 issues, Your Honor. In terms of breakout rooms, we
14:00 22 had heard that maybe there was a jury assembly
14:00 23 rooms we could use, these rooms in the front. We
14:00 24 weren't sure there was somebody we could contact to
14:00 25 try to arrange for that.
ACCURATE STENOTYPE REPORTERS, INC. App. 360 145
14:00 1 THE COURT: When you say breakout rooms?
14:00 2 MR. ZEHNDER: Sort of like during breaks in a
14:00 3 trial, is there a place where we could have a
14:00 4 little war room, and they could have one too, on
14:00 5 the premises, either --I don't know if it's the
14:00 6 jury assembly room.
14:00 7 THE COURT: You could ask the court
14:00 8 administrator. Usually when they are in trial,
14:00 9 they don't have a separate room for people. They
14:01 10 hang out like everybody else in the hallway, out
14:01 11 there with the witnesses and everything.
14:01 12 But,I mean,I have no problem if they have
14:01 13 someplace -- but I don't think you will be in the
14:01 14 jury assembly room, because that's where the juries
14:01 15 come, and they come regularly.
14:01 16 MR. ZEHNDER: Sure.
14:01 17 Another issue, Your Honor, in terms of
14:01 18 electronic presentation, we talked a little bit
14:01 19 about some of that. We're going to have Ms. Price
14:01 20 helping us, you know, put the exhibits up. And we
14:01 21 were wondering if it's possible that she could sit
14:01 22 up here with us at counsel table.
14:01 23 THE COURT: Not a problem.
14:01 24 MR. ZEHNDER: Great. That will work.
14:01 25 Anything else, guys?
ACCURATE STENOTYPE REPORTERS, INC. App. 361 146
14:01 1 MR. KING: Two points I would like to make,
14:01 2 Your Honor. One is I assume that we will be able
14:01 3 to put our boxes in here and leave them during the
14:01 4 trial so we can have our exhibits here so we don't
14:01 5 have to truck them back and forth every night.
14:01 6 THE COURT: Yep.
14:01 7 MR. KING: All right. And second thing is,I
14:01 8 just want to try to clear up something between us
14:01 9 and the other side. They want to use
14:02 10 MyDistrictBuilder. MyDistrictBuilder has a lot of
14:02 11 stuff in it that we have absolutely no problem
14:02 12 with.
14:02 13 But the problem is, it's like a big vat of
14:02 14 information, if you will, and there is a notice
14:02 15 aspect to that. In other words, they want to be
14:02 16 able to dip down into that and pull it up and
14:02 17 discuss it, and I don't really have a problem with
14:02 18 the accuracy of the information in there.
14:02 19 But as a notice issue, we need to know what
14:02 20 they are going to pull up out of MyDistrictBuilder
14:02 21 on the screen. So that's my concern.
14:02 22 THE COURT: Okay.
14:02 23 MR. MEROS: Your Honor,I couple of things
14:02 24 about that. Number one, MyDistrictBuilder and
14:02 25 these things are clearly admissible. It's
ACCURATE STENOTYPE REPORTERS, INC. App. 362 147
14:02 1 evidence.
14:02 2 And we don't know -- this isn't our case --
14:02 3 and first of all, we have given them huge amounts
14:03 4 of spreadsheet data about what is comprised, what
14:03 5 MyDistrictBuilder is comprised of. So all they
14:03 6 have to do is look at that.
14:03 7 Now, to say that we would be limited to
14:03 8 subsets of information at a given point in time
14:03 9 depends upon the evidence and what happens. What
14:03 10 are they going to be saying about this area or that
14:03 11 area?
14:03 12 And all of this information is equally
14:03 13 accessible to anyone in this courtroom or to any
14:03 14 member of the public. And so it's like -- if we
14:03 15 had an exhibit this big, and we wanted to use just
14:03 16 portions of it, we would have to tell Mr. King that
14:03 17 we intend to use this portion and this portion of
14:03 18 this exhibit before we do so, this -- we can't
14:03 19 determine that.
14:03 20 We have given them a huge amount of that
14:03 21 information. We will continue to tell them and
14:03 22 include subsets of information that we intend to
14:03 23 use.
14:03 24 But we can't -- we can't be limited depending
14:04 25 upon what happens at trial to what is the body of
ACCURATE STENOTYPE REPORTERS, INC. App. 363 148
14:04 1 information that everybody has.
14:04 2 THE COURT: Does the plaintiff plan to use
14:04 3 something like that?
14:04 4 MR. KING: We will use maps, which we have
14:04 5 listed -- we very scrupulously listed in our
14:04 6 exhibit list. They've listed things not nearly as
14:04 7 specifically in their exhibit list.
14:04 8 And the problem is,I don't -- I'm not
14:04 9 concerned about the accuracy of the information in
14:04 10 there. The information in there is whatever it is.
14:04 11 But as he describes what he's doing, if he has an
14:04 12 exhibit like this, and he wants to use some of it,
14:04 13 at least I have that exhibit.
14:04 14 This is some vast electronic trove of
14:04 15 information that none of us I don't think knows
14:04 16 exactly the stuff in there. And they shouldn't be
14:04 17 able to just at will pull out stuff that we don't
14:04 18 have any idea that they're going to pull out and
14:04 19 use, because the whole purpose of giving each other
14:05 20 exhibit lists and witness lists is to give notice
14:05 21 as to what we're going to rely on it.
14:05 22 THE COURT: Educate me on My Florida. How
14:05 23 does it work and how it will be used at trial?
14:05 24 MR. MEROS: Your Honor,I will come up here.
14:05 25 MyDistrictBuilder --
ACCURATE STENOTYPE REPORTERS, INC. App. 364 149
14:05 1 THE COURT: Did I call it My Florida?
14:05 2 MR. MEROS: There are -- there are a number of
14:05 3 databases that are not only admissible, but
14:05 4 critical here. One is the U.S. census data. And
14:05 5 everything -- everything the U.S. census data
14:05 6 publishes; the secretary of state, division of
14:05 7 elections election results from I believe 2006
14:05 8 through 2012.
14:05 9 MyDistrictBuilder was the software and
14:05 10 database created by the Florida House in order to
14:05 11 permit the public and anyone else in the
14:05 12 Legislature to draw maps, to assess maps and their
14:06 13 statistics in any number of different ways, such as
14:06 14 election results in given areas, voting age
14:06 15 population, compactness measures, compliance with
14:06 16 city and county splits, socioeconomic data for
14:06 17 every area.
14:06 18 And so that is the -- and the Senate --
14:06 19 THE COURT: It's a software program?
14:06 20 MR. MEROS: Yes. Yes. And it has -- it has
14:06 21 this data. It is -- it also has a number of -- it
14:06 22 has,I think, the vast majority of transcripts from
14:06 23 public hearings -- there were 26 public hearings
14:06 24 around the state,I believe 26 -- and transcripts
14:06 25 of those proceedings, and all of which, everyone in
ACCURATE STENOTYPE REPORTERS, INC. App. 365 150
14:06 1 the public could access and did.
14:06 2 And they could access this. It's a web-based
14:06 3 product, so everyone could do it, to draw their own
14:06 4 maps and to submit them, or to draw maps just for
14:07 5 the fun of it. The Senate had the same thing.
14:07 6 It's just MyDistrictBuilder and DistrictBuilder.
14:07 7 So those are the two databases that the Legislature
14:07 8 and many people used in drawing maps or assessing
14:07 9 maps.
14:07 10 And then --
14:07 11 THE COURT: Well, would you just -- would the
14:07 12 exhibit be something I would download on my
14:07 13 computer?
14:07 14 MR. MEROS: Well, I'm so bad -- basically you
14:07 15 could access MyDistrictBuilder right now and get
14:07 16 into the information.I can't tell you how --I
14:07 17 can't tell you how to do it. But one can do it.
14:07 18 THE COURT: I'm just -- here in the technical
14:07 19 age it's hard to get my mind around it. But in
14:07 20 terms of we now offer, Your Honor, Exhibit No.
14:07 21 So-and-so DistrictBuilder.
14:07 22 MR. MEROS: Well, therein lies the difference
14:07 23 in this -- in this sort of case. They are
14:07 24 databases under, you know, under the rules and --
14:08 25 both for judicial notice and also evidentiary rules
ACCURATE STENOTYPE REPORTERS, INC. App. 366 151
14:08 1 that are exceptions to hearsay. And what they are,
14:08 2 they are just a huge amount of information, whether
14:08 3 it's where the lines are, the geography, who
14:08 4 voted --
14:08 5 THE COURT: As you said, the census
14:08 6 statistics, whatever,U.S. census?
14:08 7 MR. MEROS:U.S. census. All of this is based
14:08 8 on the 2010 U.S. census.
14:08 9 THE COURT: Seems more like judicial notice
14:08 10 than exhibit to me.
14:08 11 MR. MEROS: Right.
14:08 12 THE COURT:I would like the court to take
14:08 13 judicial notice of the census, blah, blah, blah.
14:08 14 Same thing here, take judicial notice of --
14:08 15 MR. MEROS: We will file that motion by the
14:08 16 end of the day.
14:08 17 THE COURT: Mr. King's concern is,I have no
14:08 18 problem with judicial notice of it;I just need to
14:08 19 know what part of this vast array of information
14:08 20 you plan to use, and I would suggest, you're right,
14:08 21 you can't always anticipate. But if you know, then
14:08 22 tell him.
14:08 23 MR. MEROS: Absolutely. We have no problem
14:09 24 with that. We have already given him a vast amount
14:09 25 of that information on things that we know that
ACCURATE STENOTYPE REPORTERS, INC. App. 367 152
14:09 1 we're going to use this, this, and that.
14:09 2 To the extent that there are additional
14:09 3 things, we will let them know. But we don't want
14:09 4 to be limited to some portion of the data and not
14:09 5 other portions of the data, provided that we would
14:09 6 give them some notice. That's fine.
14:09 7 MR. KING: And in response to that, Your
14:09 8 Honor, we will continue to meet and confer. My
14:09 9 colleague points out to me that we have got some
14:09 10 more meetings scheduled to try to facilitate this
14:09 11 information.
14:09 12 I just think it's important for the Court to
14:09 13 know that there is a tangible output of this. In
14:09 14 other words, he talks about the census data.
14:09 15 What's important about the census data is that when
14:09 16 you put a particular map in there, it comes out
14:09 17 with a population of each district by whites,
14:09 18 African-Americans, Hispanic, non-Hispanic, blacks,
14:09 19 and a bunch of other information.
14:10 20 And that's important to everybody. We don't
14:10 21 argue about the authenticity of that information.
14:10 22 But at the same time these tangible outputs are
14:10 23 going to be,I would assume, going to be evidence
14:10 24 in the case; we expect to use them as evidence in
14:10 25 the case.
ACCURATE STENOTYPE REPORTERS, INC. App. 368 153
14:10 1 And, consequently, they shouldn't be able to
14:10 2 just invade this big database and pull something
14:10 3 out that they haven't given us notice of. That's
14:10 4 all I'm saying.
14:10 5 THE COURT: Well I think whatever form
14:10 6 something is in, if it's an exhibit or judicial
14:10 7 notice, it would be expected to advise the other
14:10 8 side, this is -- this is what we plan to use. This
14:10 9 is what it will say.
14:10 10 He says he has given you what he knows he's
14:10 11 going to give you so far and will give you anything
14:10 12 else that comes up. That's my understanding.
14:10 13 MR. MEROS: Yes, sir.
14:10 14 THE COURT: Okay. What do you say -- other
14:10 15 things are not scheduled today. I'm happy to hear
14:11 16 it if you all are able to do it, because I'm afraid
14:11 17 of the time crunch you may find yourself in,
14:11 18 because I know I'm pretty busy next week.
14:11 19 MR. MEROS: Your Honor, and I was able to
14:11 20 confirm we have 30 minutes scheduled at 3:30 on
14:11 21 Monday.
14:11 22 THE COURT: Okay.
14:11 23 MR. MEROS: That would certainly be taken up
14:11 24 by the motion in limine.
14:11 25 THE COURT: So is there anything else that I
ACCURATE STENOTYPE REPORTERS, INC. App. 369 154
14:11 1 could do today?
14:11 2 MR. ZEHNDER: Well,I guess we're still trying
14:11 3 to find out if they are going to oppose the motion
14:11 4 in limine that we filed, the Coalition plaintiffs,
14:11 5 to exclude the evidence that -- and the deposition
14:11 6 testimony, the exhibits that they took about our
14:11 7 alternative map that's no longer in the case, no
14:11 8 longer filed in the court, no longer unclean hands.
14:11 9 We don't see any disputed fact that that would
14:11 10 come in on.
14:11 11 THE COURT: Let's ask him.
14:11 12 MR. MEROS: We have told them, and we are
14:11 13 paring down deposition designations. We are not
14:11 14 going to reargue those maps.
14:12 15 There is a motion out there that has been
14:12 16 filed by the other side that we need to argue at
14:12 17 some time to suggest that we cannot probe into the
14:12 18 maps -- the existing maps that the Romo folks are
14:12 19 going to produce as alternative maps that show the
14:12 20 invalidity of our maps and to show whether or not
14:12 21 there is improper intent there.
14:12 22 THE COURT: Certainly you should be able to --
14:12 23 without knowing all the details, my thought is, as
14:12 24 I've suggested before, if the person who drew those
14:12 25 earlier maps is a witness, that would be a good
ACCURATE STENOTYPE REPORTERS, INC. App. 370 155
14:12 1 basis to cross-examine. Well, you presented this
14:12 2 before, and this wasn't drawn properly, if that
14:12 3 would be the theory.
14:12 4 But if the witnesses have changed, and if that
14:12 5 person is no longer an expert witness,I don't know
14:12 6 what relevance it would be to ask that person about
14:12 7 a map that somebody else drew.
14:12 8 Now, if one of the plaintiffs who happened to
14:13 9 have been involved in that takes a stand and starts
14:13 10 talking, that might be fair impeachment too. It's
14:13 11 a logical, does that tend to prove or disprove,
14:13 12 usually it wouldn't if nobody connected with that
14:13 13 map is trying to convince me of something, because
14:13 14 it wouldn't be probative to go to a bias or issue
14:13 15 to anybody else,I don't think.
14:13 16 So whether y'all agree or not, that's kind of
14:13 17 how I look at it, so --
14:13 18 MS. KHANNA: Your Honor, this is Abha Khanna
14:13 19 on the phone for the Romo plaintiffs, if I may be
14:13 20 heard.
14:13 21 THE COURT: Yes, ma'am.
14:13 22 MS. KHANNA:I understood what Your Honor just
14:13 23 said, if somebody who actually drew a map is put
14:13 24 forward by plaintiffs, that person can be
14:13 25 cross-examined about any other map that he or she
ACCURATE STENOTYPE REPORTERS, INC. App. 371 156
14:13 1 may have drawn previously; is that correct? I'm
14:13 2 sorry, any other map that he or she has drawn or
14:13 3 submitted in this case; is that correct?
14:13 4 THE COURT:I think the inquiry had to do with
14:14 5 a particular map -- or maybe two;I don't know --
14:14 6 that was presented earlier in a motion for summary
14:14 7 judgment, which apparently was withdrawn. But I
14:14 8 don't know who drew it.I don't know who is
14:14 9 associated with having it drawn or presenting it.
14:14 10 So I don't know if that person is going to
14:14 11 testify or not. If they have another map they've
14:14 12 drawn, that seems to be a legitimate area for
14:14 13 cross-examination.
14:14 14 You know,I don't know at this point.
14:14 15 MR. MEROS: Your Honor, if I may just to be
14:14 16 clear what we're talking about here, and I don't
14:14 17 think Ms. Khanna would disagree with me here. The
14:14 18 Romo plaintiffs -- the Coalition plaintiffs have
14:14 19 withdrawn all maps. They're not giving you an
14:14 20 alternative map.
14:14 21 The Romo plaintiffs have two alternative maps.
14:14 22 They have withdrawn their earlier one, they have
14:14 23 two new ones called Romo A and B. These were drawn
14:14 24 by the same map drawer that drew the map that was
14:14 25 previously abandoned.
ACCURATE STENOTYPE REPORTERS, INC. App. 372 157
14:14 1 THE COURT: Okay.
14:14 2 MR. MEROS: Romo A and B will be presented as
14:15 3 exemplars which this Court should utilize as
14:15 4 evidence as to the invalidity of our map and our
14:15 5 mal-intent --
14:15 6 THE COURT: Under that circumstance, it's fair
14:15 7 game, then.
14:15 8 MR. MEROS:I would suggest, Your Honor, that
14:15 9 means also if the plaintiffs are using those maps
14:15 10 as exemplar, just because they don't call that map
14:15 11 drawer does not mean that all of a sudden it's not
14:15 12 appropriate or probative to determine and to have
14:15 13 evidence as to whether there was improper intent in
14:15 14 those maps.
14:15 15 They are offering those maps to you as
14:15 16 evidence, as probative evidence --
14:15 17 THE COURT: How are they going to get the maps
14:15 18 in if you don't have a foundation?
14:15 19 MS. KHANNA: Your Honor, if I may be heard?
14:15 20 THE COURT: Yes.
14:15 21 MS. KHANNA: Romo plaintiffs have no intention
14:15 22 of offering any witnesses -- any map drawers who
14:15 23 has previously drawn the summary judgment map as
14:15 24 (inaudible) in this case.
14:15 25 THE COURT: He said you're going to present
ACCURATE STENOTYPE REPORTERS, INC. App. 373 158
14:15 1 some maps that are drawn by some person that drew
14:15 2 the earlier map that was used in summary judgment.
14:16 3 My question to him was, how are you going to get
14:16 4 the maps in without somebody saying,I drew this
14:16 5 map?
14:16 6 MS. KHANNA: We will have expert testimony
14:16 7 about somebody -- somebody who was involved in the
14:16 8 drawing of the new maps who was not involved in the
14:16 9 drawing of the old maps.
14:16 10 THE COURT: Well,I think -- it's not going to
14:16 11 be real weighty, because the maps are either going
14:16 12 to be good or not good. But it's still a relevant
14:16 13 area for the defendants to inquire in of anybody
14:16 14 that testifies to the points on these maps: Do you
14:16 15 know who drew these maps? And, you know, just like
14:16 16 if you wanted to question who drew the maps that
14:16 17 were ultimately passed by the Legislature say, hey,
14:16 18 yeah, this map wasn't any good. He drew the next
14:16 19 one.
14:16 20 So I don't know how much weight it will give,
14:16 21 but it's certainly an area that he's going to be
14:16 22 allowed to question.
14:16 23 MS. KHANNA: Your Honor,I would also ask that
14:16 24 you review the --I understand what your statement
14:17 25 was, and if you could also review the briefing
ACCURATE STENOTYPE REPORTERS, INC. App. 374 159
14:17 1 provided by the Romo plaintiffs yesterday regarding
14:17 2 our affirmative motion in limine on this issue, it
14:17 3 further talks about the fact that any such
14:17 4 impeachment of information under the Florida rules
14:17 5 would have to be extremely limited. And, again, it
14:17 6 goes to streamlining the case.I think the
14:17 7 argument is set forth in our motion as well.
14:17 8 THE COURT:I think I made it pretty clear in
14:17 9 previous hearings that I don't consider this to be
14:17 10 a feature that needs a lot of attention. But I
14:17 11 will have to rule in the context. If they start
14:17 12 asking questions, you think they've gone too far,
14:17 13 object, and I will rule at that time.
14:17 14 But I won't exclude that area of inquiry this
14:17 15 morning. Anything else I can do?
14:17 16 MR. ZEHNDER:I think that's it, Your Honor.
14:17 17 THE COURT: Well, if I can give you more time,
14:18 18 I will. Just check with my boss, who is the
14:18 19 gatekeeper in that respect.
14:18 20 MR. MEROS: Thanks for your time, as always,
14:18 21 Your Honor.
14:18 22 MR. KING: Thank you, Your Honor.
14:18 23 MR. MEROS:I will do a proposed order on what
14:18 24 we just talked about --I will do it on all of
14:18 25 them.
ACCURATE STENOTYPE REPORTERS, INC. App. 375 160
14:18 1 MR. ZEHNDER: Thank you, George.
2 (Proceedings adjourned).
3 (The proceedings were adjourned at 2:20 p.m.)
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ACCURATE STENOTYPE REPORTERS, INC. App. 376 161
1 CERTIFICATE OF REPORTER
2 STATE OF FLORIDA ) COUNTY OF LEON ) 3
4 I, SARAH B. GILROY, Registered Professional Reporter,
5 and Notary Public, do hereby certify that the foregoing
6 proceedings were taken before me at the time and place
7 therein designated; and that the foregoing pages
8 numbered 1 through 160 are a true and correct record of
9 the aforesaid proceedings.
10
11 I further certify that I am not a relative, employee,
12 attorney or counsel of any parties, nor am I a relative
13 or employee of any of the parties' attorney or counsel
14 connected with the action, nor am I financially
15 interested in the action.
16 DATED this day of May, 2014.
17
18
19
20 SARAH B. GILROY, RPR, CRR 21 [email protected] 850-878-2221 22
23
24
25
ACCURATE STENOTYPE REPORTERS, INC. App. 377 Exhibit M
App. 378 3 1 IN DEX OF W ITNESSES 2 IN THE CIRCUIT COURT OF THE SECOND JUDICIAL STEPHEN A NSOLABEHERE CIRCUIT, IN AND FOR 3 D irect E xam in atio n by Mr. D evaney 1 4 LEON COUNTY, FLORIDA C ross Exam in atio n by Mr. K in g 2 5 RENO ROMO, et al. 4 C ross Exam in atio n by Mr. M eros 4 1 Plaintiffs, vs. CASE NO: 2012-CA-412 C ross Exam in atio n by Mr. Z akia 7 1 5 C ross Exam in atio n by Ms. R ig gs 7 4 KEN DETZNER and PAM BONDI, Defendants. R edirect E xam in atio n by Mr. K in g 7 9 / 6 THE LEAGUE OF WOMEN VOTERS PERRY THURSTON OF FLORIDA, et al. Plaintiffs, 7 D irect E xam in atio n by Mr. D evaney 8 0 vs. CASE NO: 2012-CA-490 C ross Exam in atio n by Mr. M eros 9 0
KEN DETZNER, et al. 8 C ross Exam in atio n by Mr. Z akia 1 01 Defendants. R edirect E xam in atio n by Mr. D evaney 1 06 / 9 JO HN GUTHRIE IN RE: Pending Motions 10 D irect E xam in atio n by Mr. M eros 1 07 BEFORE: Honorable Terry P. Lewis
DATE: August 20, 2014 11 CERTIFICATE OF R EPORTER 1 35 TIME: Commenced at 9:11 a.m. Adjourned at 12:10 p.m. 12
PLACE: Leon County Courthouse Tallahassee, Florida 13 14 REPORTED BY: SARAH B. GILROY, RPR, CRR 15 [email protected] 16 17 18 19 ACCURATE STENOTYPE REPORTERS, INC. 20 2894 Remington Green Lane 21 Tallahassee, FL 32301 850.878.2221 22 23 24 25 ACCURATE STENOTYPE REPORTERS, INC.
2 1 APPEARANCES: 4 1 THE COURT: T hank you. Thank you. H ave a 2 REPRESENTING T HE P LAINTIFFS: D AVID B. K IN G, E SQUIRE 2 seat. 3 d king@ kbzwlaw.com THOMAS A. Z EHNDER, E SQUIRE 3 Anybody know w ho is appearin g by phone? 4 tzehnder@kbzwlaw .com K in g, B la ckwell, Z ehnder & W ermuth 4 MR. H ERRON: Y our H onor, w hen we sent out th e 5 2 5 East Pin e Street O rlando, Flo rida 32301 5 in form atio n yesterday, n obody in dicated they would. 6 and 6 But I ju st, you know -- it w as availa ble if th ey 7 JOHN DEVANEY, E SQUIRE 7 were a ttending. B ut n obody contacted back and said 8 jd evaney@ perkinscoie .com P erkins C oie, LLP 8 they would appear by phone. 9 7 00 Thirteenth Street, N W, S uite 7 00 W ashington, D .C ., 2 0005 9 THE COURT: W e will go ahead and hang up, 10 REPRESENTING T HE F LORIDA HOUSE: 10 then, because it's a fte r 9:00. I figure if a nybody 11 G EORGE N. M EROS, JR., E SQUIRE 11 was going to a ppear, th ey would. g eorge.meros@ gray-robinson.com 12 A NDY B ARDOS, E SQUIRE 12 Okay. I set this h earin g after my last order a [email protected] 13 G rayRobinson 13 so if th ere were any objectio ns to th e map th at th e 3 01 South Bronough Street, S uite 6 00 14 Talla hassee, Flo rida 14 Legislature was going to propose, I w ould hear
15 REPRESENTING F LORIDA SENATE: 15 those. A nd also I asked the Secretary o f S tate, in JASON ZAKIA, E SQUIRE 16 jzakia@ whitecase.com 16 colla boratio n with th e Supervisor o f E le ctio ns, to W hite & C ase, LLP 17 S outheast Fin ancia l Center 17 com e up with a schedule, a s best they could, for an 2 00 South Biscayne Boulevard, S uite 4 900 18 M ia mi, Flo rida 33131 18 electio n if w e were going to adopt a m ap fo r this
19 REPRESENTING T HE S ECRETARY O F STATE: 19 com in g up 2014 session. A SHLEY DAVIS, E SQUIRE 20 So I did read the subm is sion by the 20 A shle y.Davis@ dos.myflorid a.com J. A NDREW ATKINSON, E SQUIRE 21 Legislature. I read the objectio n by th e 21 ja ndrew .a tkin son@ dos.myflorid a.com R .A . G ray Build in g 22 plaintiffs. I read th e objectio ns by the 22 5 00 South Bronough Street Talla hassee, Flo rida 32301 23 in tervenor, a t least to th e schedule. 23 REPRESENTING T HE S UPERVISORS OF E LECTIONS: 24 And so I'm p repared to h ear anything else y ou 24 R ONALD A. LABASKY, E SQUIRE rlabasky@ bplawfirm .n et 25 want to g iv e me th is m orning. 25 2 25 South Adam s Street, S uite 2 50 Talla hassee, Flo rida 32301 ACCURATE STENOTYPE REPORTERS, INC. ACCURATE STENOTYPE REPORTERS, INC.
1 of 52 sheets Page 1 to 4 of 134 App.09/05/2014 379 12:21:34 PM 5 7 1 MR. MEROS: Your Honor, may I at least present 1 well -- if I may approach, I would like to give the 2 the map? 2 Court a hard copy of this as well. 3 THE COURT: Sure. 3 THE COURT: I think I may already have it. 4 MR. MEROS: Thank you, Your Honor. May it 4 Didn't you provide it in the submission? 5 please the Court, George Meros on behalf of the 5 MR. MEROS: I don't think I provided this side 6 Florida House of Representatives. I want to 6 by side. Let me -- 7 introduce the two chairs of the House and Senate 7 THE COURT: Okay. 8 committees who are here: Chair Galvano -- Senator 8 MR. MEROS: And so, Your Honor, the middle map 9 Galvano and Chair Corcoran. Also here is Jason 9 you see is 9047, the map that was the enacted map 10 Poreda and Mr. Guthrie, who participated in the map 10 and the map that was before the Court. On the left 11 drawing. They are available if the Court should 11 is 9043, the map that the House produced and had as 12 have any questions. 12 it went into negotiations with the Senate. And 13 On page 2 of your order, Your Honor, on August 13 9057 is the newly-enacted remedial map on the 14 1, you said that the Legislature -- and I quote -- 14 right. 15 the Legislature should redraw the map. Unless and 15 And, of course, you will see in the middle 16 until it becomes obvious that it cannot or will not 16 map, Your Honor, the two appendages that caused the 17 do so, I will not consider other options. 17 Court concern, the one in District 10 that goes 18 It is not necessary or appropriate for me to 18 south of and east of District 5, and a little bit 19 give specific directions on how to do so, nor to 19 north of that, the appendage that goes from 20 dictate what process may follow. The Legislature's 20 District 5 into Seminole County that the Court had 21 only obligation is to produce a 21 concerns with. 22 constitutionally-compliant map. 22 And so then on your right you will see what 23 Your Honor, I am pleased and very proud to say 23 the Legislature did in response to those two 24 that the Legislature very promptly did precisely 24 concerns. And let me -- in doing so, let me also 25 what this Court asked it to do. Within a few hours 25 note that, on page 5 of Your Honor's judgment, the ACCURATE STENOTYPE REPORTERS, INC. ACCURATE STENOTYPE REPORTERS, INC.
6 8 1 of this Court's order on Friday, August 1st, the 1 Court rejected the notion that other parts of the 2 Legislature already announced to its members that 2 map need be withdrawn. 3 there would be a special session and gave specific 3 And I quote, portions of the map not affected 4 instructions on what to do with documents, how this 4 by those individual districts, 5 and 10, do not 5 would proceed. 5 need to be changed in a redrawn map. Therefore, I 6 Within a few days thereafter, a map was drawn. 6 have focused on the portions of the map that I find 7 There was a joint committee describing what this 7 are in need of corrective action in order to bring 8 Court ordered and the substance of the order. 8 the entire plan into compliance with the 9 There were Senate and House committees scheduled 9 Constitution. 10 for five or six hours to discuss the maps -- the 10 And the Court thereafter noted on page 31, and 11 map -- and to entertain alternatives and to 11 I quote: I note, however, that my concerns with 12 entertain any public testimony that was 12 Districts 5 and 10 involve changes to the House's 13 contemplated. 13 map in deference to the Senate. And on page 41, 14 Thereafter, both houses heard the bill with 14 the Court said: Districts 5 and 10 will -- will 15 hours of debate and questions. And within a day 15 need to be withdrawn, as will any other districts 16 thereafter, the Legislature passed the map. 16 affected thereby. 17 This -- this map does exactly what the Court asked, 17 All additional challenges to the plan are 18 and also, in doing so, the Legislature made a 18 rejected. 19 concerted effort to identify any concerns that the 19 Now, going to 9057, Your Honor, you see first 20 Court had, perhaps in passing, noted in its final 20 that both appendages are gone. But then the 21 judgment and to try to deal with it. 21 Legislature did more. The Legislature understood 22 And, of course, as the Court recalls, the two 22 and took into account the Court's statement that 23 areas of concern and the two areas where the Court 23 District 5 is not a model of Tier 2 compliance, 24 required that there be new maps or new districts 24 understandably so, because it is drawn in 25 drawn -- and I don't know if the Court can see 25 substantial part so as not to diminish the ACCURATE STENOTYPE REPORTERS, INC. ACCURATE STENOTYPE REPORTERS, INC.
09/05/2014 12:21:34 PM Page 5 to 8 of 134 App. 380 2 of 52 sheets 9 11 1 opportunity to elect a minority candidate of 1 to improve District 5 and the surrounding areas. 2 choice, as required by Tier 1 of the Constitution. 2 Now I would, Your Honor, like to talk a little 3 But what was -- what the -- what the staff was 3 bit about a north-south configuration of District 4 able to do collaboratively was remarkable, and that 4 5, because that is -- that is certainly a point 5 is, they were able to make this district 5 of -- of contention or a point of attack by the 6 substantially more compact than its predecessor in 6 plaintiffs. And it's very important to understand, 7 9047 or 9043. And what you will see is that they 7 Your Honor, the actual history and the reality of 8 were able to have the eastern border of District 5 8 why CD-5 is a north-south configuration. 9 be the St. Johns River all the way from Seminole 9 And perhaps most importantly, let's go to what 10 County to Duval County; and in doing so, it makes 10 happened last week in the legislative session. 11 the district much more visually compact. 11 Representative Perry Thurston, African-American, 12 Numerically or statistically, this has a Reock 12 Democrat minority leader in the House; Senator 13 score of .13 as opposed to the Reock score in 9043 13 Darren Soto in the Senate submitted an alternative 14 and 9047, .09, and higher than the maps that were 14 map that had a north-south configuration of CD-5 15 before the Court submitted by the plaintiffs. 15 running from Orange County to Duval. 16 The Court will also see that it is a shorter 16 Every senator, Democratic senator, voted for 17 district than it was before. And by using the 17 either that iteration of a north-south 18 river, District 6 on the eastern side of that is 18 configuration or the Legislature's iteration of a 19 substantially more compact. You see it no longer 19 north-south configuration. 20 has a jutting portion of District 6 from Putnam -- 20 The plaintiff submitted maps to the 21 into Putnam and then to the Alachua County line, I 21 Legislature; not a single legislator was willing to 22 think, and by a number of measures makes this 22 sponsor a bill to submit an east-west configuration 23 substantially more compact. Either District 6 was 23 of CD-5. 24 relatively compact, but this much more so. 24 There are assertions that CD-5 was drawn with 25 The Court will also see that with regard to 25 a Republican partisan intent in the beginning. ACCURATE STENOTYPE REPORTERS, INC. ACCURATE STENOTYPE REPORTERS, INC.
10 12 1 District 9, that district becomes more numerically 1 Absolutely not so. The real history of CD-5 really 2 compact and visually compact than 9047. The Court 2 begins in 1996 when the predecessors -- 3 noted that compactness, in its view, was a more 3 MR. KING: Excuse me, Your Honor, I object. 4 rigid or strict standard than compliance with city 4 He said he wanted to present the map. We didn't 5 and county boundaries. 5 have any objection to that, but it seems to me like 6 The House, to some extent, viewed those as 6 now it's appropriate for us to present our 7 tradeoffs, which is one reason why we focused on 7 objections, and he can respond to those objections. 8 trying to keep Osceola County whole. 8 MR. MEROS: Your Honor, he's going to be -- 9 But, again, in compliance with what this Court 9 we're talking about whether we complied with the 10 ruled and what this Court said, we split Osceola 10 Court order. He's going to be asserting that a 11 County, but in doing so, made it a more compact 11 north-south configuration does not comply with this 12 district. 12 Court's order. We believe that it does. 13 And you will see that District 10 in the 13 THE COURT: I think he's suggesting that it's 14 newly-created map is much like District 10 in 9043, 14 better for you to respond once he makes that 15 but somewhat less jagged in number -- in a number 15 argument instead of anticipating it. And I do have 16 of the areas on the eastern side of that district. 16 a limited amount of time. I've got this morning to 17 And of course, many of those jagged edges are 17 do it. And I really want to hear their objections, 18 simply required by reaching zero or 1 percent equal 18 and then you can respond to that. 19 population. Congressional maps, unfortunately, 19 MR. MEROS: Certainly. 20 have to be jagged in some instances to have equal 20 THE COURT: Thank you for that presentation. 21 population. 21 MR. KING: Your Honor, we would like to call a 22 And so this Court identified two problems. We 22 couple of witnesses, if that's all right. 23 addressed them completely and precisely as the 23 THE COURT: Sure. 24 Court ordered. And in doing so, we -- we; I say 24 MR. DEVANEY: Your Honor, Romo Plaintiffs call 25 the staff -- made a remarkable, successful effort 25 Dr. Stephen Ansolabehere. ACCURATE STENOTYPE REPORTERS, INC. ACCURATE STENOTYPE REPORTERS, INC.
3 of 52 sheets Page 9 to 12 of 134 App.09/05/2014 381 12:21:34 PM 13 15 1 MR. MEROS: Your Honor, obviously we would 1 case, is it correct that you, among other districts, 2 object to any factual witness testimony regarding 2 discussed District 5 and District 10? 3 whether or not our map legally complies with this 3 A I did. 4 Court's order. It has nothing whatsoever to do 4 Q And in your testimony, did you express 5 with alternatives. 5 concerns about how the 2012 map, 9043, treated 6 The alternative and the comparison point is 6 Districts 5 and 10 and how they were drawn? 7 whether or not our -- the legislative map complies 7 A 9043 or 9047? 8 with this Court's order, period. That's a legal 8 Q I'm sorry, 9047. 9 issue, not a factual, map-drawing issue. 9 A Yes, 9047, yeah. 10 I quoted from the Court's order on the 1st 10 Q And did you also do an overall evaluation of 11 that said the Legislature should draw the map. 11 9047? 12 Unless and until it is unable to do so or unwilling 12 A Yes, I did. 13 to do so, I will consider -- I will not consider 13 Q Now, in preparing for your testimony today, 14 any other options. 14 what analysis have you done? What materials have you 15 This is exactly the sort of thing, Your Honor, 15 looked at? 16 that they are trying to present to you as if this 16 A I took the files corresponding to 904 -- 57 17 is a comparison between plaintiffs' map and the 17 off of the state's districting website, KMZ files, 18 Legislature's map. It is not. 18 uploaded them into MyDistrictBuilder, analyzed the map 19 This hearing is for the sole purpose of 19 using the data provided there. I also looked at the 20 determining whether our map complies with what this 20 compactness measures that I could construct from our 21 Court ordered. The testimony of an expert, whether 21 GIS, which is a general mapmaking software. 22 lawyer or map-drawer or otherwise, is completely 22 Q When you analyzed -- 23 irrelevant to this. We very much object to it. 23 MR. MEROS: Your Honor, forgive me. Let me 24 THE COURT: All right. Well, I will note your 24 note an objection. None of this has been 25 objection, but I will overrule it, and I will hear 25 disclosed, and we, again, object. We have no ACCURATE STENOTYPE REPORTERS, INC. ACCURATE STENOTYPE REPORTERS, INC.
14 16 1 from the witness. 1 notice, no opportunity to depose Dr. Ansolabehere. 2 MR. DEVANEY: Thank you, Your Honor. 2 This is completely new stuff that should be for 3 Thereupon, 3 another day, if ever. 4 STEPHEN ANSOLABEHERE 4 MR. DEVANEY: Your -- 5 was called as a witness, having been first duly sworn, 5 THE COURT: Still noted, but overruled. 6 was examined and testified as follows: 6 MR. DEVANEY: Thank you, Your Honor. 7 DIRECT EXAMINATION 7 BY MR. DEVANEY: 8 BY MR. DEVANEY: 8 Q When you analyzed and testified regarding 9 Q Good morning, Dr. Ansolabehere. 9 9047, did you address the partisan effects of that map 10 A Good morning. 10 in your testimony? 11 Q Could you please remind the Court of where 11 A I did. 12 you're employed and what your experience is with 12 Q And was that one of your criticisms of 9047? 13 voting rights and map-drawing issues. 13 A It was. 14 A I'm a professor of government at Harvard 14 Q What, if you recall, was the breakdown in 15 University, and I have served as an expert witness in 15 Congressional seats between Republicans and Democrats 16 numerous court cases concerning voting rights issues 16 in 9047? 17 around the country over the past three years. 17 A I used several key elections, the 2008 and 18 And I teach election -- elections and 18 2012 presidential election, the 2010 governor 19 electoral politics at Harvard University. In that 19 election, an average of multiple elections. And 20 context we do a fair amount of analysis of maps and 20 across all those, 17 of the seats were Republican or 21 redistricting processing and so forth. I've published 21 Republican leaning, and 10 of the seats were Democrat 22 extensively on this topic, including two books related 22 or Democrat leaning. 23 to this problem -- or this issue and dozens of 23 Q And when you analyzed the revised plan the 24 articles. 24 Legislature passed last week, 9057, did you also 25 Q And in your testimony in the trial of this 25 conduct a partisan political performance analysis? ACCURATE STENOTYPE REPORTERS, INC. ACCURATE STENOTYPE REPORTERS, INC.
09/05/2014 12:21:34 PM Page 13 to 16 of 134 App. 382 4 of 52 sheets 17 19 1 A Yes. Using the same metrics I did with 9047, 1 A It addressed some of the concerns, not all of 2 I concluded that 10 of the seats were Democratic or 2 them. 3 Democratic leaning, and 17 were Republican or 3 Q What concerns remain unaddressed? 4 Republican leaning. 4 A The northern part of the district is still 5 Q So the same split as in 9047? 5 highly bizarrely shaped, and the stretch along Highway 6 A Correct. 6 17, St. Johns River north, was untouched. It fixed 7 Q Now, when you analyzed the 2012 map, 9047, 7 the problem of the sort of odd appendages down in 8 looking at Congressional District 5, what concerns did 8 Seminole and Orange, and it widened the district in 9 you have about how that district was drawn? 9 the middle, which made it have a higher compactness 10 A My main concerns was highly noncompact, and it 10 score than originally configured. 11 had geographic features that were unusual, just 11 Q And was -- did the redraw affect your 12 visually, such as, you know, going down the St. Johns 12 conclusion about the ability to create another 13 River along -- and stretching along Highway 17, the 13 minority opportunity district in Central Florida? 14 appendages in the Orange and Seminole County areas and 14 A No. 15 so forth, so that both the statistical or numerical 15 Q Why not? 16 measures of compactness made it a fairly noncompact 16 A The -- the district -- the part of the 17 district. And kind of looking at it, it looked 17 district that extends into Orange County has a very 18 strangely shaped, unusually shaped for many 18 substantial African-American population. And taking 19 Congressional districts. 19 that piece of it and adding it to District 10 or the 20 And in addition, it appeared, upon closer 20 western -- eastern part of District 10 could create, 21 examination of where the district is placed, that it 21 in that configuration, could create another minority 22 was interfering with the potential, creating another 22 opportunity district. 23 minority opportunity district in the Orange County 23 On the other aspect of the geography is that 24 area. 24 the district still cuts a lot of county boundaries. 25 Q You've reviewed the Court's ruling in this 25 It cuts seven county boundaries as it's presently ACCURATE STENOTYPE REPORTERS, INC. ACCURATE STENOTYPE REPORTERS, INC.
18 20 1 case as it relates to Congressional District 5; is 1 configured. It reduced by one the number of counties 2 that correct? 2 that were split from eight to seven. 3 A I have. 3 Q Now, if you had had the opportunity to redraw 4 Q And what is your understanding of the Court's 4 Congressional District 5 in reaction to the Court's 5 concerns about Congressional District 5? 5 decision in this case, how would you, as an expert map 6 MR. MEROS: Objection, Your Honor, it calls 6 drawer and voting rights expert, have redrawn it? 7 for a legal conclusion. He wants -- he wants him 7 A I would have started another approach to draw 8 to tell you what you're thinking. 8 the district along the northern part of the state. 9 MR. DEVANEY: Your Honor? 9 And that districting structure, the plan that was 10 THE COURT: Yes? 10 drawn in Romo A, for example, demonstrated that you 11 MR. DEVANEY: I'm just trying to establish the 11 could create a minority opportunity district along the 12 foundation for a follow-up question I'm going to 12 northern part of the state. 13 ask about the Legislature's implementation of your 13 I think we -- that plan cut four counties, 14 decision. 14 boundaries, so you could reduce the number of county 15 THE COURT: That's okay. We will see if he's 15 boundary splits. Compactness score is about the same, 16 correct or not. 16 about 12 to 13 in the 9057 version of District 5. 17 BY MR. DEVANEY: 17 Q And do you know, is that version you just 18 Q Well, let me ask you this, Dr. Ansolabehere: 18 described the version that's included in the Coalition 19 You've analyzed the redrawn version of Congressional 19 Plaintiffs' proposed remedial maps and in the Romo 20 District 5; correct? 20 Plaintiffs' proposed remedial maps? 21 A Correct. 21 A It is. 22 Q And let me ask you first, do you believe that 22 Q Have you analyzed whether the black voting age 23 the redraw addresses the concern that you had when you 23 population in that version of District 5 is sufficient 24 testified at trial about how Congressional District 5 24 to give African-Americans the opportunity to elect 25 was drawn in Plan 9047? 25 candidates of their choice? ACCURATE STENOTYPE REPORTERS, INC. ACCURATE STENOTYPE REPORTERS, INC.
5 of 52 sheets Page 17 to 20 of 134 App.09/05/2014 383 12:21:34 PM 21 23 1 A It is. It's not a majority, but neither is 1 MR. ZAKIA: Your Honor, Jason Zakia for the 2 the new version of District 5 in 9057. But it's 2 Florida Senate. I would object at this point to 3 sufficiently high to give minority voters that 3 the extent the witness is testifying about these 4 opportunity. 4 exemplar maps which should never be offered into 5 It's also sufficiently high within the 5 evidence. There is no foundation for this 6 Democratic -- black registration is sufficiently high 6 testimony, as those maps have never been admitted. 7 within the Democratic primary in District 5. They 7 I understand they're different than the maps that 8 would be a controlling interest in the primary. 57 8 were admitted at trial. 9 percent is the minority registration in the Coalition 9 THE COURT: I would overrule your objection. 10 map -- is the black registration in the Coalition map 10 I was looking -- because there was a reference to 11 among Democrats. 11 the proposed alternative map, I'm looking for it in 12 Q And what data did you rely upon, including 12 here. 13 election results, to reach that conclusion? 13 Can you identify where it would be in your 14 A I relied on data from MyDistrictBuilder. 14 submission? 15 Q And do you recall which elections you looked 15 MR. DEVANEY: Your Honor, it's in both the -- 16 at? 16 well, the brief that we filed on Monday has an 17 A I looked at the primary election -- I looked 17 exhibit that contains the Coalition Plaintiffs' 18 at the registration figures for 2012 and 2010 of the 18 proposed maps and the Romo Plaintiffs' proposed 19 Democratic party registrants, and overall I looked at 19 map, and I'm blanking on what exhibit number that 20 the BVAP numbers from the census, and I looked at 20 is. 21 primary turnout numbers from 2010 and 2012 -- 2010; 21 MR. ZEHNDER: Exhibit A. 22 2012 was not up. 22 MR. DEVANEY: Exhibit A? It's Exhibit A in 23 Q Turning to Congressional District 10, when you 23 our submission, Your Honor. 24 provided your testimony in the trial in this case, 24 THE COURT: Composite Exhibit A? 25 what concerns did you have about how the Legislature 25 MR. DEVANEY: Yes. ACCURATE STENOTYPE REPORTERS, INC. ACCURATE STENOTYPE REPORTERS, INC.
22 24 1 had drawn Congressional District 10 in Plan 9047? 1 THE COURT: There is more than one map here? 2 A In 9047 Congressional District 10 was a 2 MR. DEVANEY: Yes, there is. 3 district that was a Republican-leaning district. It 3 THE COURT: Do you know which map he's 4 was a district where a candidate had run -- a 4 referring to? 5 candidate, Val Demings, had come close to winning the 5 MR. DEVANEY: Uh -- 6 seat. It was a 52-48 race. 6 THE COURT: I've got a map A, and there is a 7 So it seemed like -- Val Demings is an 7 map that doesn't have anything on it. Mostly it 8 African-American candidate and was preferred by 8 looks like it's a lot of statistics. But you can 9 African-American voters in that area. It seemed like 9 look at my copy if you want to. 10 a district where you could create a minority district. 10 MR. KING: Your Honor, I'm about to put these 11 And so my concern was that the construction of 11 maps to the witness. Would you like me just to go 12 District 5 was sort of interfering with creating such 12 ahead and give you a copy right now? 13 a district in that area. 13 THE COURT: Yeah, if you -- if you would. 14 Q Now, given your criticisms of 9047 and the 14 MR. DEVANEY: And, Your Honor -- 15 Court's decision in this case, if given the 15 THE COURT: Have you got a copy for opposing 16 opportunity, how would you have redrawn Congressional 16 counsel? 17 District 10? 17 MR. KING: Yes, sir. 18 A I would have taken that sort of southern nub 18 MR. DEVANEY: I am done with my questions of 19 of 5 that's in Orange County, appended it to the part 19 Dr. Ansolabehere. Mr. King is going to take over 20 of 10 that's in Orange County, and constructed a 20 at this point. 21 district in that area and -- depends on how it's 21 MR. KING: I will just do it in order, Your 22 configured. But there is a potential to create a 22 Honor. 23 district in which there is sufficient minority voting 23 THE COURT: Okay. 24 strength that they could elect their preferred 24 MR. DEVANEY: Thank you, Dr. Ansolabehere. 25 candidates. 25 THE WITNESS: Thank you. ACCURATE STENOTYPE REPORTERS, INC. ACCURATE STENOTYPE REPORTERS, INC.
09/05/2014 12:21:34 PM Page 21 to 24 of 134 App. 384 6 of 52 sheets 25 27 1 CROSS EXAMINATION 1 the same district that he drew, District 5. 2 BY MR. KING: 2 THE COURT: Just lay a foundation. 3 Q Good morning, Dr. Ansolabehere. 3 BY MR. KING: 4 A Good morning. 4 Q Is it correct, sir, that District 5 in these 5 Q You indicated that you had reviewed three 5 three maps is the district that you drew in the 6 other remedial maps; is that correct, sir? 6 east-west configuration? 7 A Correct. 7 A It is the district map from Romo A for 5. 8 Q All right, sir. I show you Coalition 8 Q Now -- 9 Plaintiffs' Remedial Map A. Here is a copy for you, 9 MR. MEROS: Your Honor, I continue to object 10 Your Honor. And I show you, sir, Coalition 10 for the same reason; I would like to voir dire the 11 Plaintiffs' Remedial Map B. And then I show you a 11 witness a minute about -- for his foundation. 12 copy of the Romo remedial map. 12 THE COURT: Well, right now I just sustained 13 Now are those the three remedial maps that you 13 the objection, because he just said it's Romo map. 14 have reviewed, sir? 14 I don't know what -- what participation he had in 15 A Correct. 15 that. So I will sustain the objection at this 16 Q And in each of those maps, is it correct that 16 point. But y'all -- I think you need to voir dire 17 the configuration of proposed District 5 in those maps 17 at this point. 18 is the same? 18 BY MR. KING: 19 A It is. 19 Q All right. Did you direct the configuration 20 Q And is that the same as the east-west 20 of Exhibit 5 in the -- of District 5 in the Romo maps? 21 configuration that you originally testified about in 21 A I did. I developed a rough version of this 22 the original Romo map in the trial? 22 district, and then Eric Hawkins at NCEC sort of 23 A It is. 23 cleaned it up. That was the district that we 24 Q And so you have examined that map and compared 24 presented in Romo A. 25 it to proposed District 5 -- or you examined that 25 Q And in both of the Coalition Plaintiffs' maps, ACCURATE STENOTYPE REPORTERS, INC. ACCURATE STENOTYPE REPORTERS, INC.
26 28 1 district and compared it to proposed District 5 in 1 B -- A and B, is that configuration exactly the same? 2 9057; is that correct, sir? 2 A It is. 3 A Correct. 3 Q All right. So did you, sir, do a functional 4 Q And have you looked at it from the standpoint 4 analysis of the proposed District 5 in the three 5 of compactness? 5 remedial maps? 6 A I have. 6 A Yes, I did. 7 Q All right. 7 Q And that functional analysis was based on the 8 MR. KING: I also, Your Honor, have a 8 fact that the black voting age population in that 9 demonstrative exhibit I would like to show the 9 proposed district was 45.11; is that right? 10 Court, which compares 9057 and Coalition 10 A Correct. 11 Plaintiffs' remedial map. 11 MR. ZAKIA: Your Honor, I'm sorry. The 12 MR. ZAKIA: Your Honor, I'm sorry. Does 12 witness testified that he drew some other earlier 13 Mr. King intend to offer the remedial maps into 13 version of the map that we're now testifying about. 14 evidence? 14 If they want to put the testimony on about the 15 MR. KING: I do. 15 earlier version that Dr. Ansolabehere drew, that's 16 MR. ZAKIA: Okay. We would object to that 16 fine. But if he's going to testify about work of a 17 with the lack of foundation. If the witness wants 17 person who is not in court, we object to that. 18 to testify as to -- if he drew these maps and can 18 THE COURT: Overruled. 19 lay that foundation, that's fine, but I think 19 BY MR. KING: 20 Mr. King should be forced to put on that 20 Q And so how did you go about doing a functional 21 foundational testimony before we hear any more 21 analysis to determine if the proposed District 5 and 22 about the maps themselves. 22 the three remedial maps was an ability-to-elect 23 THE COURT: That's a good point. 23 district? 24 MR. KING: The -- well, the district that 24 A Based on my earlier analyses and my earlier 25 we're talking about, the proposed remedial map, is 25 reports, I used the polling data and ecological ACCURATE STENOTYPE REPORTERS, INC. ACCURATE STENOTYPE REPORTERS, INC.
7 of 52 sheets Page 25 to 28 of 134 App.09/05/2014 385 12:21:34 PM 29 31 1 regressions performed to assess who were the preferred 1 Well, the Polsby-Popper is somewhat similar in 2 candidates of African-Americans in this area, in North 2 concept to the Reock. It takes the perimeter of the 3 Florida. And then I looked at the election outcomes 3 district, the entire perimeter, and calculates the 4 for key races to determine whether or not those 4 area of a circle with that perimeter. 5 candidates were winning safely in those elections. 5 And it measures the area of the district 6 And indeed it's the case that those candidates were 6 relative to the area of a circle with that perimeter. 7 winning well above 60 percent of the vote in every 7 So it's another concept. And they pick up -- these 8 election I studied. 8 different compactness measures pick up slightly 9 Q And did you -- did you look at the demographic 9 different things. 10 data, the election result data, the turnout data, 10 They tend to be highly correlated. And when 11 including for the primary and the registration data? 11 there's a difference, they flag there's something 12 A Yes. I went through all of that. 12 unusual about the configuration. That's what's 13 Q And what did you conclude about the ability to 13 reflected I think in the Convex Hull, capturing the 14 elect an African-American candidate in that proposed 14 fact that there is this kind of big gap through Clay, 15 District 5, the east-west configuration? 15 and it snakes around. 16 A CD-5 is a district in which African-Americans 16 Q Now, you will recall visually the Court found 17 will have the ability to elect their preferred 17 that District 5 in 9047 was a bizarrely-shaped 18 candidates. 18 district, one that linked two separate urban groups of 19 Q Has there -- then in comparison to district -- 19 African-Americans in the Jacksonville-Duval area and 20 the District 5 in the enacted map and the District 5 20 the Orlando-Orange County area, through this district 21 in the proposed 9057, is there any diminishment -- is 21 that ran as small as a highway bridge and swooped over 22 there diminishment or retrogression of the 22 to Alachua and then down to Orlando. 23 African-American candidate's ability to elect in your 23 Do you recall that -- 24 proposed -- in the proposed District 5 in these three 24 A Yes. 25 remedial maps? 25 Q -- testimony? I mean that language in the ACCURATE STENOTYPE REPORTERS, INC. ACCURATE STENOTYPE REPORTERS, INC.
30 32 1 A Both the 9057 and the Romo A version of CD-5 1 decision? 2 are ability-to-elect districts for African-Americans. 2 Is this still a bizarrely-shaped district, 3 Q And did you also compare the compactness 3 sir? 4 between District 5 in 9057 and District 5 in the 4 A Yes. Especially in the north those geographic 5 Coalition Remedial Map B? 5 features weren't changed. 6 A Yes, I did. 6 Q From what you observed, did the Legislature -- 7 Q And do you see that the Reock score is about 7 other than removing an appendage and broadening the 8 the same for both; is that right, .127, .119; is that 8 district in the Putnam County area, did the 9 right? 9 Legislature do anything to change this 10 A Right. It's slightly higher in 9057 by eight 10 bizarrely-shaped district? 11 thousandths of a point. 11 A What you just said, removing the appendages in 12 Q All right. But what about the Convex Hull 12 the south and widening the district in Putnam are the 13 metric? 13 main changes in the district. Otherwise the district 14 A So the other two metrics, the Convex Hull and 14 is substantially the same. 15 the Polsby-Popper, the Convex Hull takes a district, 15 Q All right. Now, with the change -- with the 16 an area, and then makes a convex shape around it and 16 Coalition remedial map, it affects some nine other -- 17 then measures the area of that shape relative to the 17 a total of nine districts; correct? 18 area of the district. And looking at Convex Hull, the 18 A Correct. 19 9057 version of CD-5 is noticeably less compact than 19 Q And District 2 is a larger district than it 20 the remedial -- the Romo A version. 20 was in -- than it is in 9057; right? 21 The reason is that 9057, look at the shape, 21 A Correct. 22 you can measure the Convex Hull where the shape pulls 22 Q And it's less compact, and it's longer; 23 out, but largely because of the configuration of the 23 correct? 24 north and the fact that the district snakes around 24 A Correct. 25 more in the north. 25 Q And why is that, sir? ACCURATE STENOTYPE REPORTERS, INC. ACCURATE STENOTYPE REPORTERS, INC.
09/05/2014 12:21:34 PM Page 29 to 32 of 134 App. 386 8 of 52 sheets 33 35 1 A The compactness of District 2 and the Romo 1 trying to get to it. 2 map, and as I evaluated in the Coalition A and B maps, 2 MR. ZAKIA: Thank you, Your Honor. 3 is due -- largely due to the geography of the 3 MR. KING: This is the first witness I've had 4 Panhandle and the fact that you can't do much with the 4 in this case that I could possibly lead, Your 5 shape of the state at that point. So it's not like 5 Honor. So I appreciate that. 6 you're drawing a district in the center of the state 6 BY MR. KING: 7 where there is room to play. 7 Q If you will look also at Exhibit 3 -- I mean 8 You're -- you're going -- your compactness 8 at District 3 there, is that district more compact 9 measure is going to be affected by the coastline. And 9 visually than District 3 in the 9057? 10 also these -- the populations of counties are 10 A Yes, it is. 11 sufficiently sparse up in the Panhandle, that in order 11 Q And on the metrics, on Reock, Convex Hull, 12 to maintain an equal population district, it has to 12 Polsby-Popper, under those metrics is it more compact, 13 extend inward. 13 sir? 14 CD-1 was maintained identically, so it didn't 14 A Yes, on each of the metrics. 15 alter the district population there. And the reason 15 Q And what about District 6; is it more compact 16 that the District 2 has to move far inland or far to 16 than the legislative version in 9057? 17 the east is because the population that it captured in 17 A Yes, it is. 18 Leon County was a substantial population. So in order 18 Q And is District 7 more compact, visually and 19 to compensate for the loss of population in Leon 19 also with the metric compactness scores? 20 County, District 2 just has to move that far east. 20 A Yeah. 21 And it really has to do with the sparse 21 Q And is District 9 -- does it look more compact 22 population of those counties compared with Leon. 22 to you? 23 Q All right. So with that approach, District 2 23 A District 9 is very similar. So when you look 24 is less compact; no question about that; right? 24 at the two districts, they look very similar. It's 25 A Yes, right. 25 when you look at the scores you see an improvement. ACCURATE STENOTYPE REPORTERS, INC. ACCURATE STENOTYPE REPORTERS, INC.
34 36 1 Q Than 9057? 1 Q And if you look at the scores, you find on all 2 A Correct. 2 three of the metrics it's more compact; is that 3 Q But look at every one of the other affected 3 correct, sir? 4 districts. Would it be correct that each of those 4 A Correct. 5 other districts on the metrics are more compact? 5 Q And then District 10 is also more compact on 6 A That's correct. Every one of the other 6 the metrics and visually? 7 districts affected is more compact. 7 A Correct. 8 Q So we're talking about District 4; that's a 8 Q And how about District 11? 9 more compact district under all measures; is that 9 A District 11 is more compact as well. 10 correct, sir, all metrics? 10 Q And is it not only from a visual standpoint, 11 A Correct. 11 but from the metrics as well; is that right? 12 Q And it also -- is it visually more compact, 12 A Correct. 13 sir? 13 Q So, those are benefits from that process; is 14 A Yes. 14 that correct, sir, from the -- from putting District 5 15 Q Because it doesn't contain that portion of 15 in the east-west configuration? 16 Baker County; correct? 16 A Yeah. Putting District 5 in an east-west 17 A Correct. 17 configuration on the north of the state, keeping those 18 MR. ZAKIA: Your Honor, I'm sorry. I 18 counties more whole, allows you to -- more freedom to 19 understand a certain amount of leading is okay; 19 have a map which has more compact districts in the 20 there's no jury here. But I object to the leading 20 center of the state. 21 nature of the testimony, at least where Mr. King is 21 Q And then, sir, what occurs to District 10? We 22 putting his nonfoundational issues -- where he's 22 pointed out there that the primary turnout in 2010 23 putting his argument right in his questions. 23 does -- what does that create as far as a minority 24 THE COURT: It is leading, but I'm going to 24 opportunity in District 10? 25 let him lead because of the limited amount of time, 25 A So in my earlier reports I found that blacks ACCURATE STENOTYPE REPORTERS, INC. ACCURATE STENOTYPE REPORTERS, INC.
9 of 52 sheets Page 33 to 36 of 134 App.09/05/2014 387 12:21:34 PM 37 39 1 and Hispanics vote cohesively together in general 1 Q So there would have been two African-American 2 elections in the center of the state, in the Orange 2 representatives in the Congress of the United States 3 County area -- in Seminole County area. Blacks plus 3 since 2010 if that had been the configuration; 4 Hispanics would be the majority of the primary turnout 4 correct? 5 in this CD. 5 A '10 or '12. 6 So they would -- and blacks would be the 6 Q Since 2010? 7 dominant group. They would be the single largest 7 A Yeah. 8 group of all primary voters, also all registrants in 8 Q All right -- I guess 2012. You're right. 9 CD-10. So they would be kind of the main force in the 9 So one other question I failed to ask you. 10 primary electorate dynamics. 10 Let me show you a document that was used in one of the 11 And then in the general elections, looking 11 committee meetings in the Legislature. This document, 12 again at those key races I studied before, the black 12 sir, is supposedly a comparison of the 2002 benchmark 13 preferred candidate would win in every one of the 13 district and the horizontal district, which is -- I'm 14 elections I studied. I think the vote average was 14 assuming to be the representation of the east-west 15 somewhere around 58 percent for the black-preferred 15 District 5 -- and it shows certain data points that 16 candidates. 16 are compared. 17 Q So does that mean that the African-American 17 Have you had a chance to look at that at my 18 candidate would have the ability to be elected in 18 request -- 19 Central Florida in a district that would deal with the 19 A Yes. 20 urban core of African-Americans in the Orlando area? 20 Q -- previously? 21 A So, yeah, this would -- CD-10 under the 21 Having examined those data points, which were 22 Coalition map and under the Romo maps are all 22 used to support an idea that if the horizontal 23 districts in which the African-Americans would have 23 District 5 was enacted, that there would be a 24 the ability to elect in the Orlando area, and Orlando 24 diminishment or a retrogression of the 25 would be the core of that district. 25 African-American voters' ability to elect, do you draw ACCURATE STENOTYPE REPORTERS, INC. ACCURATE STENOTYPE REPORTERS, INC.
38 40 1 Q Are you aware of the election in District 10 1 that conclusion from this information, sir? 2 in 2012, who ran and what the outcome of that election 2 A No. The ability to elect is the same in both 3 was, sir? 3 of these districts, both versions of these districts. 4 A The Webster election? 4 These are districts that an African-American preferred 5 Q Yes. 5 candidate would -- would win in. 6 A Yes. 6 There is no diminishment, because diminishment 7 Q And who was the opponent? 7 or retrogression of the clarification of the district 8 A The Demings-Webster election? 8 in which they can win or can't win, if it's just 9 Q Yes. 9 percentages, then you get into this kind of slippery, 10 A Yes. 10 odd slope of potentially packing African-Americans, 11 Q All right. And Val Demings, was she an 11 so ... 12 African-American? 12 Q Does the configuration of 9057 in the -- 13 A Yes, she was. 13 District 5 in 9057, does that promote minority 14 Q All right. And what did she lose by in that 14 representation in Florida, or does it constrain 15 election? 15 minority representation? 16 A A little under 4 percent, like 3.8 or 16 A So to the extent that -- 17 something like that. 17 MR. MEROS: Objection, Your Honor. This goes 18 Q Okay. And what would have been the result in 18 way beyond anything relating to this case, and to 19 that election if we had had a -- a District 10 19 his expertise, frankly. 20 configured as in the three remedial maps? 20 THE COURT: Overruled. 21 A Under District 10, if Val Demings was running 21 THE WITNESS: Could you re-ask the question? 22 in this election, projecting based on the party 22 BY MR. KING: 23 registration and the election returns for other 23 Q Does the configuration of District 5 in 9057, 24 offices, Demings would have won the contest with 24 does that promote minority protection or constrain 25 Webster in CD-10. 25 minority protection in Florida? ACCURATE STENOTYPE REPORTERS, INC. ACCURATE STENOTYPE REPORTERS, INC.
09/05/2014 12:21:34 PM Page 37 to 40 of 134 App. 38810 of 52 sheets 41 43 1 A So CD-5 under 9057 is a minority opportunity 1 I -- so that was the question I was put to: Did you 2 district, so it creates such an opportunity. But to 2 have a hand in drawing CD-5. I drew a rough draft, 3 the extent that it interferes with the creation of a 3 and I suggested to Eric that there was a district to 4 potential minority opportunity district in the center 4 be drawn here. And he drew the final version. 5 of the state, it interferes with it or constrains it. 5 Q You didn't testify about a rough draft; you 6 MR. KING: Thank you, sir. That's all my 6 said you drew CD-5, and that's not true; is it? 7 questions. 7 A I did not draw the final version of CD-5. 8 Oh, I would offer these exhibits into evidence 8 Q Eric Hawkins did; right? 9 if that's how we're going to -- 9 A Correct. 10 THE COURT: Still object? 10 Q Okay. Now, did you know, Dr. Ansolabehere, 11 MR. ZAKIA: Yes, Your Honor. 11 that Eric Hawkins works for NCEC Services and that, 12 MR. MEROS: Yes. 12 according to its website, NCEC is a 13 THE COURT: I'll -- I'll admit them over 13 Washington D.C.-based Democratic political consulting 14 objection. 14 firm with more than 60 years of experience working to 15 MR. KING: Thank you. 15 elect Democrats to all levels of government? 16 THE COURT: Cross-exam? 16 A I did know that Eric worked at NCEC. I 17 MR. MEROS: Yes. 17 thought their client base was broader than Democrats, 18 CROSS EXAMINATION 18 but I do know now -- 19 BY MR. MEROS: 19 Q Did you know -- did you know that they had 60 20 Q Good morning, Dr. Ansolabehere. 20 years of experience in working to elect Democrats to 21 A Good morning. 21 all levels of government? 22 Q How are you? 22 A I did know that Eleanor Roosevelt helped found 23 A Good. 23 them, but I didn't know how long they had been in 24 Q Doctor, you've testified earlier in this case 24 operation, but I knew it must be a long time. 25 under oath, both in deposition and at trial; correct? 25 Q Did you know that the National Democratic ACCURATE STENOTYPE REPORTERS, INC. ACCURATE STENOTYPE REPORTERS, INC.
42 44 1 A Correct. 1 Redistricting Trust paid NCEC to draw Romo Map A? 2 Q And you testified under oath; did you not, 2 A I did not know that the National Redistricting 3 that you did not draw CD-5, that you told Eric Hawkins 3 Trust paid NCEC. 4 that you wanted an east-west configuration, that you 4 Q Did you know that the trust was formed in 2009 5 were not a map drawer, but that Eric Hawkins should 5 to fund, direct, and control the Democratic Party's 6 draw an east-west configuration, and you commented on 6 redistricting efforts in states across the country, 7 that; isn't that a fact? 7 including the litigation in Florida? 8 A Correct. 8 A I don't know anything about the history of the 9 Q Okay. 9 Democratic redistricting process. 10 A I drew a rough draft of that district and said 10 Q Did you know that the executive director and 11 this is a district that you could -- let's see if you 11 trustees of the National Democratic Redistricting 12 can configure a minority district here. 12 Trust were all formerly partisan operatives at the 13 Q You testified under oath in this case; did you 13 Democratic Congressional Campaign Committee? 14 not, Dr. Ansolabehere, that you did not draw that 14 A I didn't know that. 15 district -- 15 Q Did you ever ask? When you -- when you 16 A I didn't draw the district. 16 started this process, and you had someone drawing a 17 Q Excuse me. Let me finish; okay? 17 map, did you ever say, let me know, is there any 18 A I'm sorry. 18 partisan intent here? Is there any partisan directive 19 Q That you directed Eric Hawkins to try an 19 here? I'm supposed to be an objective witness. 20 east-west configuration, and he drew the map; didn't 20 Did you ever try to determine whether this was 21 you? 21 done with Democratic motivation? 22 A Correct. 22 A No. 23 Q You testified earlier, you suggested that you 23 Q Did you know that the NCEC and the trust 24 were the map drawer. That's not true; is it? 24 provided drafts of Romo Map A to the DCC at two 25 A I -- I drew a rough version of CD-5, and then 25 meetings at DCC headquarters in Washington D.C.? ACCURATE STENOTYPE REPORTERS, INC. ACCURATE STENOTYPE REPORTERS, INC.
11 of 52 sheets Page 41 to 44 of 134 App.09/05/2014 389 12:21:34 PM 45 47 1 A I did know that -- I did learn at some point 1 relevancy of it, but foundation-wise, do you plan 2 in this process that they were presented to -- but I 2 to lay a foundation for it? 3 don't remember when. 3 MR. MEROS: Absolutely. We have deposition 4 Q Why in the world, when we are about amendments 4 testimony. We will get it to you by the end of the 5 where there is not supposed to be partisan intent, why 5 day. 6 in the world, if you knew that, you didn't ask, might 6 THE COURT: Do you disagree? I wasn't at the 7 I be a part of drawing maps that have a Democratic 7 depositions. Do you disagree with the 8 partisan intent? 8 representation that there are depositions taken in 9 A I was just asked to evaluate the maps and to 9 the case that will establish the questions -- he is 10 give my comments on the maps and to help them develop 10 asking questions, did you know, did you know, as if 11 maps that I thought were legal. 11 they were established. 12 The map that I had an input into was Romo A. 12 MR. DEVANEY: Yeah, you know, there certainly 13 And that was what I suggested as an approach to the 13 were multiple depositions taken. My memory of the 14 map. 14 testimony is not consistent with what's being 15 And, you know, beyond that, I didn't -- I 15 suggested by the questions. You know, some of it 16 wasn't part of the process. 16 is, but some of it is not. 17 Q You just didn't ask? It didn't matter to you? 17 That's my concern. 18 A No. 18 THE COURT: I will overrule the objection 19 Q Did you know that at both of the meetings at 19 subject to showing relevancy based upon some 20 DCC headquarters, that political operatives discussed 20 additional evidence. 21 the political performance of the districts and the 21 MR. MEROS: And, Your Honor, Mr. Bardos 22 effect of those districts on Democratic incumbents? 22 reminds me that most, if not all, of this 23 A Didn't know that. 23 deposition testimony was admitted at trial. But we 24 Q That doesn't cause you any concern, I guess? 24 will provide the Court with all of it anyway to 25 A No. I don't know what was -- 25 make sure that the foundation is totally laid. ACCURATE STENOTYPE REPORTERS, INC. ACCURATE STENOTYPE REPORTERS, INC.
46 48 1 Q Did you know that the DCCC conducted its own 1 BY MR. MEROS: 2 political performance analysis on the maps which you 2 Q And did you know, Dr. Ansolabehere, that NCEC 3 played a role in? 3 presented the map at DCC headquarters to all 4 MR. DEVANEY: Your Honor, I'm going to object. 4 Democratic members of Florida's Congressional 5 There is a lack of foundation for these questions. 5 delegation except the three African-American members 6 If he's got some trial testimony he wants to quote 6 of that delegation? 7 and ask him about, these are statements that 7 A I did not know that. 8 Mr. Meros is -- they're coming from him, not coming 8 Q Did you know that Nancy Pelosi and Steve 9 from the record in this case. 9 Israel, the DCC chairmen, attended, together with DNC 10 If he wants to ask questions based on the 10 Chair Debbie Wasserman-Schultz and operatives of the 11 record rather than suggesting facts that aren't 11 DCC and the trust? 12 necessarily accurate, that's -- 12 A I did not know that. 13 THE COURT: Are you going to present some 13 Q And did you know that the purpose of the 14 evidence? 14 meeting was to obtain the support of Democratic 15 MR. MEROS: Your Honor, this comes explicitly 15 members of Congress? 16 from the deposition testimony in this case. We 16 A I didn't know that. 17 have all of it. It was to be offered at trial, but 17 Q It just doesn't matter to you? 18 the Court said, at trial, it's only the intent of 18 A No. Given my recommendations about how this 19 the Legislature that matters. We are now in an 19 map ought to be drawn, and the map that was shown to 20 entirely different situation. 20 me simply complied with my instructions, so ... 21 They are coming here suggesting that 21 Q And do you know who paid you? 22 Dr. Ansolabehere and the maps that the Democrats 22 A I was paid through Mr. Devaney's office, 23 drew are the exemplar to show what this Court 23 through Perkins Coie. 24 should do with the new map. 24 Q And did you know that it was the DCCC that 25 THE COURT: I mean, I'm okay with the 25 actually paid for your services? ACCURATE STENOTYPE REPORTERS, INC. ACCURATE STENOTYPE REPORTERS, INC.
09/05/2014 12:21:34 PM Page 45 to 48 of 134 App. 39012 of 52 sheets 49 51 1 MR. DEVANEY: Objection, Your Honor. This is 1 Q Why not? Why wouldn't it be important to you 2 completely wrong, making statements that are not 2 to know facts on the ground, not from Boston, but 3 supported. 3 Jacksonville, Orlando, or Tallahassee, about what's 4 THE COURT: Like I said, subject to it being 4 really happening in this state, an intensely local 5 tied in with additional evidence, I will overrule. 5 appraisal like Gingles says; why didn't you try to 6 A I didn't know who raised the money for -- I 6 educate yourself on these things? 7 didn't know if it was coming out of Perkins 7 A I was asked -- I did what I was asked to do. 8 personally. All I knew is the Romo clients, and they 8 I was hired to do an evaluation of these maps based on 9 had raised the money. 9 the electoral returns and the measures of compactness 10 BY MR. MEROS: 10 and so forth. I -- you know, it was up to others 11 Q Now, Dr. Ansolabehere, you talked a little bit 11 involved in the case, if they wanted to do that sort 12 about a minority opportunity district in Central 12 of assessment, to perform that. 13 Florida. 13 Q And looking at the Coalition Remedial Map B on 14 A Correct. 14 the right, do you see District 3? 15 Q Do you recall that? 15 A Yes. 16 A Yeah. 16 Q Okay. And you see that what your east-west 17 Q Do you recall that in this trial the 17 configuration does is blow up CD-5, the enacted CD-5, 18 Legislature wanted to draw a map in District 9 that 18 and knocks out the population that connects Orange 19 had an Hispanic population high enough to become a 19 County to Duval and disperses 17,000 African-Americans 20 performing Hispanic district in the relatively near 20 who formerly were in CD-5 into districts that will 21 future? 21 elect either a white Democrat or a white Republican; 22 Do you recall that? 22 isn't that correct? 23 A In the -- my recollection was that the 23 A Correct. And then in CDs 10 and other 5, it 24 district was -- are you saying that there is a 24 includes other African-American communities into the 25 projection? I remember that there was a testimony or 25 ability-to-elect districts. ACCURATE STENOTYPE REPORTERS, INC. ACCURATE STENOTYPE REPORTERS, INC.
50 52 1 a statement that -- about the growth of the 1 Q Right. And did you know that the Amendment 6 2 population. 2 says that no district shall be drawn to diminish the 3 Is that what your question is? 3 opportunity of the minority community to elect its 4 Q Well, did you realize -- did you ever look at 4 candidate of choice? No district. Are you aware of 5 District 9 and look at the Hispanic population and see 5 that? 6 whether that might be an opportunity district? 6 A Yes. 7 A Yeah. District 9, according -- as the state 7 Q And based our map, 17,000 African-Americans in 8 Legislature had configured, it was an opportunity 8 District 5 will no longer be able to elect their 9 district in my assessment. 9 candidate of choice; correct? 10 Q And do you recall that in the final judgment 10 A Correct. 11 the judge said that an opportunity district does not 11 Q And that's okay with you? 12 have Tier 1 protections. There is no constitutional 12 A Because elsewhere in the map there is 13 protection and no constitutional obligation to draw 13 opportunities to elect that were created. 14 such a district; correct? 14 Q Despite the fact that the amendment, as a 15 A That's correct. 15 matter of law, says no district shall diminish; 16 Q Okay. And let's talk about your east-west 16 correct? 17 CD-5. 17 A Correct. It's up to the Court to judge what 18 Again, do you have any idea why it is that not 18 that language means. In the federal -- you know, when 19 a single legislator proposed that to this Legislature? 19 language like that is litigated at the federal level, 20 A I don't know. 20 which is all I had to go on for -- for guidance, as 21 Q Did -- did you ever ask any legislator to do 21 well as the Supreme Court's interpretation in the 22 that? Do you know whether anyone asked a legislator 22 state legislative maps here, the -- there are 23 to do that? 23 tradeoffs allowed at that level. 24 A I never spoke with any legislator in the state 24 So -- again, it's up to the Court to make a 25 of Florida about this. 25 judgment about what that language exactly means. ACCURATE STENOTYPE REPORTERS, INC. ACCURATE STENOTYPE REPORTERS, INC.
13 of 52 sheets Page 49 to 52 of 134 App.09/05/2014 391 12:21:34 PM 53 55 1 Q Okay. So let's talk about your -- your 1 A Correct. 2 District 5 a minute, running from Chattahoochee to 2 Q Its perimeter is 75 percent longer; correct? 3 Duval County. 3 A I don't know what the percentage difference is 4 A Uh-huh. 4 in perimeter. 5 Q First of all, you have testified before under 5 Q And its perimeter, in fact, if -- if put point 6 oath in this case that your CD-5, just like the other 6 to point on a line, would go from Tallahassee to 7 CD-5, as a matter of metrics, neither are compact; 7 Toronto, 1100 miles. 8 correct? Neither is compact; correct? 8 A Okay. I don't know. 9 A Correct. What -- we would hope for a higher 9 Q Okay. And did you also know that its area is 10 compactness standard than either one of these. 10 30 percent greater than the remedial map? 11 Q Right. But nevertheless you drew it. And you 11 A Yes. That was reflected in the scores. 12 drew a noncompact district that wanders from Duval 12 Q And did you also know that that area is 13 County to Chattahoochee, over 200 miles; correct? 13 greater than the state of Maryland? 14 A Correct. 14 A I didn't know that. 15 Q Okay. And what you do there -- and I would 15 Q But you're okay with that district? That's a 16 imagine you know this -- is that you simply took two 16 good district? 17 pieces of black population from Leon County and 17 A There -- in terms of the compactness scores, 18 Gadsden and Duval County and put them together? 18 the Reock score, the red flag for Reock is usually .2, 19 A Right. And there is black population between 19 around .2. So it's above that. This would not -- if 20 as well. So it picks up along the way. 20 you gave me the Coalition map Reock score, for 21 Q That is by far the predominant area of black 21 example, it doesn't, in isolation, raise any red 22 population? 22 flags. That was the district I was looking at. 23 A Correct, highest concentrations. 23 There are other districts that are extremely 24 Q Right. So you combined far-flung communities 24 large. The size of a district is largely a function 25 for over 200 miles -- now, were you aware that the 25 of the degree of population of the area being covered. ACCURATE STENOTYPE REPORTERS, INC. ACCURATE STENOTYPE REPORTERS, INC.
54 56 1 plaintiffs and others have protested CD-5 by virtue of 1 So like District 23 in Texas is the largest 2 the fact that it's 140 miles long? 2 district that's not a state. And it's bigger than 3 A Yeah. Length is -- but I heard in this 3 probably about half the states in the United States. 4 courtroom concerns about length. 4 Q But we're talking about Florida. 5 Q Right. But this one you're proposing to the 5 A Correct. I'm just saying the size of the 6 Court that the Court should blow up a performing 6 district is due to population size. 7 district and disperse 17,000 African-Americans, but 7 Q Right. And -- and here in the remedial map, 8 then to have an alternative district that's 200-plus 8 those are large districts, but they're compact 9 miles long? 9 districts, because we didn't create a monstrosity in 10 A Correct. 10 order to take -- to get a minority district there, 11 Q Okay. And you're also proposing that, instead 11 that you say will perform, and then blow up CD-5; 12 of two compact districts -- or three in Districts 1, 12 right? 13 District 2, and District 3, you were proposing a 13 A The tradeoff is whether you go south-north and 14 District 2 that is highly noncompact by virtue of what 14 create sort of the complexities and messiness in 15 you did with the CD-5; correct? 15 Central Florida, or you go east-west and create more 16 A Correct, District 2 is less compact. 16 compact districts in the center of the state. 17 Q And in doing so, compared to the remedial 17 Q And your tradeoff takes 17,000 18 CD-2, the Reock score in your District 2 is lower, .31 18 African-Americans and puts them into districts that 19 versus .46; correct? 19 will elect white Democrats; isn't that the case? 20 A Correct. 20 A The ones in District 3, the Putnam area, yes. 21 Q And its Convex Hull score is lower, .63 versus 21 Q Let's look at a blow-up of your CD-5 a minute. 22 .78? 22 See if I can orient myself here. 23 A Correct. 23 MR. MEROS: This doesn't come out very well. 24 Q It's 39 percent longer, 232 miles versus 167 24 Do we have some for counsel? 25 miles? 25 Your Honor, if I may approach and give you a ACCURATE STENOTYPE REPORTERS, INC. ACCURATE STENOTYPE REPORTERS, INC.
09/05/2014 12:21:34 PM Page 53 to 56 of 134 App. 39214 of 52 sheets 57 59 1 hard copy of these as well. 1 Your Honor, might we have a break so I can -- 2 THE COURT: Sure. 2 THE COURT: Sure. Let's take about ten 3 BY MR. MEROS: 3 minutes. 4 Q Can you see that all right, Doctor? 4 MR. MEROS: -- organize things? 5 A I can, thanks. 5 THE COURT: How are we doing time-wise? We've 6 Q And, Dr. Ansolabehere, you talked about CD-5 6 got this witness. Is the Senate going to do any 7 and how it meandered and picked up black population. 7 cross-examination? 8 Well, look at what you do in Leon County. Are you 8 MR. ZAKIA: Very brief, Your Honor. 9 aware that -- the dark area here is part of your 9 THE COURT: Okay. 10 District 5. And so what you do is, you come around, 10 MS. RIGGS: And the NAACP as well. 11 and you pick up black population there. You omit the 11 THE COURT: Are you going to have some 12 stadium. You omit the courthouse. You omit the 12 questions? 13 northeast part of Tallahassee. And then you wrap 13 MS. RIGGS: Just a few. 14 around and have a thumb out there along Apalachee 14 THE COURT: Does the plaintiff have additional 15 Parkway, picking up black population. 15 evidence? 16 And then you go up and have a finger there to 16 MR. DEVANEY: Your Honor, we may have one 17 pick up black population; correct? 17 additional witness who would be brief. 18 A Uh-huh. That's correct. 18 THE COURT: And who would that be, on what 19 Q That's exactly what you have to do to combine 19 side? 20 minority populations at times; correct? 20 MR. DEVANEY: It would be Representative 21 A Correct. There are other factors that are 21 Thurston. 22 affecting the shape. For example, you have to have 22 THE COURT: Is there going to be any testimony 23 exact population equality. And that often leads to, 23 regarding a schedule? 24 especially around urban areas with dense populations, 24 Okay. All right. Let's take ten minutes, 25 a lot of odd shape in really localized areas. 25 then. ACCURATE STENOTYPE REPORTERS, INC. ACCURATE STENOTYPE REPORTERS, INC.
58 60 1 Q Is it your testimony here, Dr. Ansolabehere, 1 (Short recess.) 2 that the reason this looks so crazy is to get to equal 2 THE BAILIFF: All rise. Come to order. Court 3 population? 3 is back in session. 4 A Part of it. 4 THE COURT: Thank you very much. 5 Q Really? 5 Yes, sir. 6 A Part of it is equal population; part of it is 6 MR. MEROS: Your Honor, if I may, I would like 7 population densities; part of it is minority 7 to put one document on the ELMO, if I can get it 8 populations. 8 back from counsel. 9 Q And a big part of it is finding a minority 9 MR. KING: You've only got one? 10 population that would then run 200 miles or 150 miles 10 MR. MEROS: Unfortunately, that's all we got. 11 from Leon County to Duval County? 11 BY MR. MEROS: 12 A That's what I just said, part -- 12 Q Doctor, I'm going to -- 13 Q And then -- 13 MR. MEROS: Here you go, Mari-Jo. Let me -- 14 A -- of it is minority. 14 BY MR. MEROS: 15 Q I'm sorry. Forgive me. Are you finished? 15 Q I'm going to put on the ELMO a document -- I 16 A Yeah. I said part of it is minority. 16 wish I had a copy of it. I apologize, but I do not. 17 Q Okay. And then you run along the north 17 I believe these to be the comparative 18 Florida border, which has more armadillos than people 18 compactness scores between 9057, League of Women 19 in most of the way to Duval County, and pick up the 19 Voters 1, 2, and Romo. 20 very same black population that north-south CD-5 does; 20 Do you see that? 21 correct? 21 A An average? Is that what it is? Do you know 22 A Correct. I don't know what the armadillo 22 what it is? Because it's not district by district. 23 population of those counties is. 23 Q Yes. 24 MR. MEROS: I think I do as a matter of fact. 24 A Okay. 25 Most of them are in my yard. 25 Q Correct. Correct. Do you see that? ACCURATE STENOTYPE REPORTERS, INC. ACCURATE STENOTYPE REPORTERS, INC.
15 of 52 sheets Page 57 to 60 of 134 App.09/05/2014 393 12:21:34 PM 61 63 1 A Yeah. Okay. 1 Q But my question is, Doctor, a higher Reock 2 Q Okay. And what that reveals with regard to 2 score is better than a lower Reock score; correct? 3 all districts -- 3 A 100th of a point is not necessarily a 4 MR. DEVANEY: Your Honor, objection. Lack of 4 different score. 5 foundation. 5 Q And in all of these measurements they are 6 MR. MEROS: Your Honor, it's MyDistrictBuilder 6 very, very close to all of the alternatives; correct? 7 documentation. We will be happy to provide it. I 7 A All of those numbers are close to each other. 8 mean, it's in MyDistrictBuilder. 8 Q Yeah. And so your -- your suggestion that 9 And they can contest the accuracy of it if 9 there are highly noncompact districts, when you look 10 they want. But it's all -- it's all part of the 10 at the average of those, they are a wash; are they 11 same record that the Court had -- although 11 not, with regard to compactness? 12 obviously the Court didn't have 9057 and -- 12 A There are different ways to compare the 13 THE COURT: Do you have some witness who can 13 compactness of the map. An average is one way. It's 14 say, I got this -- these are taken from 14 not necessarily the most informative, given the way 15 MyDistrictBuilder? 15 these indicators are constructed. 16 MR. MEROS: I believe we do. 16 Q And why didn't you talk about the number of 17 THE COURT: Okay. Well, subject to tying it 17 city and county splits in the alternatives? 18 up, then -- 18 A I didn't have a chance to look at the city 19 MR. MEROS: Sure. 19 splits. I did look at the county splits. 20 THE COURT: -- I will overrule the objection. 20 Q And in fact, in a number of these 21 But assuming that to be the case. Okay. 21 alternatives, there were more city and county splits 22 BY MR. MEROS: 22 than in 9057; correct? 23 Q Yes. And if you see here with regard to all 23 A Some were higher; some were lower. 24 districts in -- in 9057 versus the three alternatives, 24 Q Well, tell us which ones were higher. 25 the Reock score on 9057 is higher than Romo and the 25 A I don't recall offhand. ACCURATE STENOTYPE REPORTERS, INC. ACCURATE STENOTYPE REPORTERS, INC.
62 64 1 same in League of Women Voters 1 and 2; correct? 1 Q Well, why would you -- why would that not be 2 A The average, yeah. 2 important to know when you have compactness measures 3 Q Yes, the average. 3 that are essentially the same and some alternatives 4 A Yeah. 4 where the -- greater city and county splits? 5 Q Yes. And with regard to Convex Hull, the 5 A So the one -- I did not look closely at the 6 average for 9057 is .73; Romo is .73; League of Women 6 Coalition maps, because I saw those very recently. 7 Voters 1 is .74; and League of Women Voters 2 is .75? 7 The Romo map, my recall -- recollection was that it 8 Do you see that? 8 reduced the number of some of the splits and not in 9 A Yes. 9 the others. But it's been a while. 10 Q And you would agree; would you not, that those 10 Q But you didn't -- you didn't think to testify 11 are very close? 11 about that and whether that has an impact on whether 12 A Those averages look very close. 12 or not another map should be adopted? 13 Q Right. And the averages with regard to 13 A No. I think that -- again, I would have to 14 Polsby-Popper, are again, very close with the enacted 14 look at my -- look at the statistics. And they're not 15 map at .32, and the other is .32, but 1.31. 15 in front of me to do a specific comparison on that. 16 Do you see that? 16 Q Okay. Now you talked about diminishment and 17 A Correct. 17 your view of what diminishment means; do you recall 18 Q And then, let's go to the 10 affected 18 that testimony? 19 districts by 9057. And you see the Reock score is 19 A Yes. 20 .46, which is better than two of the three 20 Q Okay. And let me -- I take it you've reviewed 21 alternatives; right? 21 numerous times the Florida Supreme Court decision that 22 A You mean higher, so .45? 22 interpreted Amendment 6? 23 Q Better is higher; right? 23 A Yeah. 24 A Well, again, you can use an average. But it's 24 Q Okay. And let me turn you to a page that -- 25 not as informative as going district by district -- 25 MR. MEROS: Your Honor, it's in Southern ACCURATE STENOTYPE REPORTERS, INC. ACCURATE STENOTYPE REPORTERS, INC.
09/05/2014 12:21:34 PM Page 61 to 64 of 134 App. 39416 of 52 sheets 65 67 1 Reporter, 83 So.3d, page 624 and 625. 1 third safest district in this state. District 5, 2 BY MR. MEROS: 2 under the 9057, I believe, is the third safest 3 Q Let me quote from this, and I quote: 3 district in the state. 4 Disagreeing with the United States Supreme Court's 4 So there are different ways in which one might 5 interpretation, Congress overruled Ashcroft, 5 consider this and evaluate this. We're still early in 6 concluding that tradeoffs that would allow the 6 the process of understanding what these criteria are. 7 minority community's own choice of preferred 7 So I'm relying a lot on my experience and my 8 candidates to be trumped by political deals struck by 8 understanding of what diminishment means, not only in 9 the state legislators purporting to give influence to 9 this context, but generally in the federal context as 10 the minority community, while removing that 10 well. That's what informs my judgments. 11 community's ability to elect candidates, were 11 Q Well, then, how about the Florida Supreme 12 inconsistent with the original and current purpose of 12 Court informing your judgment here -- 13 Section 5. 13 A It does. 14 As Congress explained, the new Section 5 was 14 Q -- Doctor? And tell the Court what it -- what 15 intended to be specifically focused on whether the 15 is diminishment? Is it a single number at which there 16 electoral power of the minority community was more, 16 is an ability to elect or not? Or is it a sliding 17 less, or just as able to elect a preferred candidate 17 scale? Is it a matter of whether the minority 18 of choice after a voting change as before. 18 strength is lessened in a district? 19 Do you remember that? 19 A So let me give you an example. If it was 100 20 A Correct, yeah. 20 percent black district, 100 percent vote for the black 21 Q Right. More, less, or just as able. The 21 population, and you reduce that to 75 percent, in my 22 Supreme Court has authoritatively construed 22 judgment, based on how a district like that would 23 Amendment 6 to be the sort of judgemental decision 23 perform, it's still a performing district. 24 along a line as to when it is the minority community's 24 If it was a 60 percent -- that was a 25 25 opportunity to elect has been lessened; isn't that the 25 percent reduction. If it was a 60 percent black ACCURATE STENOTYPE REPORTERS, INC. ACCURATE STENOTYPE REPORTERS, INC.
66 68 1 case? 1 district, and you reduced it down to 50 percent, well, 2 A Correct. 2 that's less of a reduction in percentage. So 3 Q Okay. And the Court went on to say that: We 3 percentage reduction is not necessarily informative. 4 conclude that under Florida's provision, a slight 4 But now you've taken a district that was 5 change in percentage of the minority group's 5 pretty safely Democratic or pretty safely black or 6 population in a given district does not necessarily 6 pretty safely Hispanic and reduced it down to a 7 have a cognizable effect on a minority group's ability 7 competitive district. That would, in my judgment, be 8 to elect its preferred candidate of choice. 8 a reduction. 9 Do you remember that? 9 Q Okay. And so when the Supreme Court says that 10 A Correct. 10 the issue is whether you're more or less or just as 11 Q Now what you're doing is trying to craft a 11 able to elect, you can reduce the minority voting 12 definition of diminishment that is not part of the 12 strength by 25 percent, and in your view, that's not 13 Florida Constitution; isn't that correct? 13 diminishment; correct? 14 A I don't know what you mean by that. 14 A It depends on the context, depends what the -- 15 Q Well, you're -- what you're doing is, you are 15 what other -- what the baseline level vote was and 16 using a diminishment standard where you can take the 16 what the other opportunities are in the district and 17 opportunity of the minority population down to, say, 17 what the other, you know, what the configuration of 18 50 percent, a tossup, and if it's at 50 percent, then 18 the population is. 19 that's not diminishment in your view; correct? 19 Q Were you aware that the -- the chair of 20 A Diminishment would be how you classify a 20 FairDistricts and one of the counsel for League of 21 district. If it was a 50-50 district, that's not a 21 Women Voters testified to the Legislature before 22 clear minority ability district, necessarily. So, you 22 Amendment 6 was passed in substantial part about the 23 know, that's the question. 23 minority protections in the district -- I mean, in the 24 So this is District 5, under CD -- under -- 24 amendment? 25 under the Coalition map, for example, is I think the 25 A I'm not aware of that. ACCURATE STENOTYPE REPORTERS, INC. ACCURATE STENOTYPE REPORTERS, INC.
17 of 52 sheets Page 65 to 68 of 134 App.09/05/2014 395 12:21:34 PM 69 71 1 Q Okay. Well, let me quote from this to see if 1 that constitutes diminishment? 2 this is consistent or inconsistent with your view of 2 A I have my criteria for measuring diminishment, 3 diminishment. And the -- on page 18 -- 3 and that's what I'm using to measure diminishment. I 4 MR. MEROS: And, Your Honor, this is in the 4 don't see diminishment in any of these proposals 5 record -- 5 before us. 6 BY MR. MEROS: 6 MR. MEROS: Thank you. 7 Q There is a question -- Ms. Frieden says, 7 MR. ZAKIA: I will be very brief, Your Honor. 8 quote, will these amendments interfere with the rights 8 CROSS EXAMINATION 9 of minority voters, and will minority voters be worse 9 BY MR. ZAKIA: 10 off when the amendments are in the Constitution? The 10 Q Dr. Ansolabehere, good morning. 11 answer to this question is an emphatic no. These 11 A Hi. 12 amendments will not in any way reduce the rights of 12 Q My name is Jason Zakia. I'm one of the 13 minority voters. And, in fact, they will add a 13 lawyers for the Senate. I have just a very few 14 guarantee to the Florida Constitution that the ability 14 questions. I want to make sure I understand a couple 15 of minority voters to elect representatives of their 15 of points that you made on your previous examination. 16 choice will not be diminished. 16 First of all, you do agree with me, sir, that 17 When these amendments are embedded in the 17 the CD-5 in the 9057 map, as recently enacted by the 18 Florida Constitution, protection from discrimination 18 Legislature and signed by the governor, did not 19 in redistricting will become a lasting commitment to 19 diminish the ability of African-American voters to 20 the people of Florida. Because of this, leaders of 20 elect their candidate of choice; right? 21 minority communities support FairDistricts Amendments. 21 A Correct, CD-5's ability to elect. 22 I am pleased to announce that the Florida State 22 Q Okay. I also want to make sure; you listed 23 Conference of NAACP branches, after studying the 23 today for the Court a number of criticisms that you 24 benefits of these amendments, has unanimously approved 24 have of the north-south configuration that was adopted 25 and endorsed Amendment 6. 25 in 9057 and had been adopted in 9047? ACCURATE STENOTYPE REPORTERS, INC. ACCURATE STENOTYPE REPORTERS, INC.
70 72 1 Just look at the language. The language says, 1 A Correct. 2 districts shall not be drawn with the intent or result 2 Q Okay. And am I correct, sir, that the 3 of denying or abridging the equal opportunity of 3 criticisms you identified here today with regard to 4 racial and language minorities to participate in the 4 9057 were all included within the same criticisms that 5 political process or to elect or to diminish their 5 you made at trial with regard to the north-south 6 ability to elect representatives of their choice. 6 configuration of 9047? 7 The last phrase prohibits a drawing of any 7 A Correct, and some also that were noted at 8 district or plan that will reduce -- that will reduce 8 trial by others about the -- I didn't talk about 9 minorities' opportunity to elect minority 9 Highway 17 explicitly, for example, things like that. 10 representatives, plain and simple. 10 Q Right. But the -- the opinions that you 11 Do you agree, or are you -- first of all, are 11 offered with regard to the benefits of an east-west 12 you aware that the framers of the Constitution said 12 configuration versus a north-south configuration is 13 that this will provide greater protections than 13 the same as the benefits that you identified in your 14 provided under federal law, which you say is your area 14 trial testimony? 15 of expertise? 15 A Correct. 16 MR. KING: Object to the form of the question, 16 Q Okay. And so the Court had all of that 17 Your Honor. Move to strike the long quote, because 17 information and all of your opinions with regard to 18 then he says, he asks another question. 18 that issue before it -- prior to rendering its final 19 THE COURT: Sustained. 19 judgment in this case; correct? 20 MR. MEROS: I'm sorry? 20 A I believe that's the case, yeah. 21 THE COURT: I will sustain that objection. 21 Q Okay. And the -- indeed the district, the 22 BY MR. MEROS: 22 east-west district that we looked at today, was the 23 Q Is it your interpretation of the amendments 23 same east-west district that you testified about at 24 that if you reduce the ability of minorities to elect 24 trial? 25 a representative of their choice in a district, that 25 A Correct. ACCURATE STENOTYPE REPORTERS, INC. ACCURATE STENOTYPE REPORTERS, INC.
09/05/2014 12:21:34 PM Page 69 to 72 of 134 App. 39618 of 52 sheets 73 75 1 Q And the Court had the opportunity to consider 1 A Again, I don't remember what exact number it 2 that prior to rendering its final judgment in this 2 was. 3 case? 3 Q But you wouldn't contest that white voters 4 A Correct. 4 constituted 52.68 percent of the electorate, while 5 Q One last question, sir. Are you aware that 5 black voters only constituted 41.99 percent? 6 the Legislature convened in special session earlier 6 A Of the people that voted in that election, 7 this month to enact what ultimately became 9057? 7 rather than the electorate, yeah. 8 A I did know that they had a special session, 8 Q Right. In the 2010 general elections? 9 yeah. 9 A Right. 10 Q And did the Legislature -- are you aware that 10 Q You testified earlier today that you relied on 11 the Legislature allowed for public testimony with 11 polling data and ecological regressions performed 12 regard to that process? 12 using that polling data; is that correct? 13 A I didn't know that. I didn't know what the 13 A No. The polling data was separate. That's 14 process was. 14 the exit poll data conducted nationally for the state, 15 Q Did you make any effort to determine whether 15 in the state of Florida. And then the ecological 16 or not you would be able to speak to the Legislature 16 regression is separate -- 17 in the committee process prior to its adoption of a 17 Q Okay. And you -- 18 remedial plan? 18 A -- based on election returns and census data. 19 A I was actually at a different trial. There 19 Q Okay. You relied on that exit polling data to 20 was no way I could have been there. 20 inform your diminishment analysis? 21 Q Okay. And do you know whether anybody on 21 A To inform -- the question that those data are 22 behalf of League of Women -- well, am I correct that 22 relevant, as far as which candidates are the preferred 23 nobody on behalf of League of Women Voters presented 23 candidates and minorities. And once you know that, 24 your east-west configuration in public testimony prior 24 then you can study the -- how those candidates did in 25 to -- before the Legislature in their committee 25 the reconstituted election or in the specific election ACCURATE STENOTYPE REPORTERS, INC. ACCURATE STENOTYPE REPORTERS, INC.
74 76 1 meetings? 1 that took place. 2 A I didn't have a chance to review what happened 2 Q Am I right that the exit polling data that you 3 at the special session. 3 used is divided into three regions in the state? 4 Q You don't know one way or the other? 4 A Correct. 5 A No. 5 Q And the north region encompasses Congressional 6 MR. ZAKIA: Thank you, Your Honor. No further 6 districts that would have included old Congressional 7 questions. 7 District 3? 8 CROSS EXAMINATION 8 A Yes. 9 BY MS. RIGGS: 9 Q And old Congressional District 3 stretched 10 Q Good morning. Allison Riggs on behalf of the 10 down to Orange County; correct? 11 Florida NAACP. 11 A Correct. 12 Good morning, Dr. Ansolabehere. 12 Q You testified -- 13 A Hi. 13 A But the -- it was -- so the exit polls are in 14 Q You testified earlier that you studied turnout 14 precincts. There are not sufficient numbers of 15 in CD-5 as drawn by the plaintiffs in this action for 15 precincts. You can't take the exit poll and actually 16 this remedial process; is that correct? 16 reconstitute the exit poll into a district. So what 17 A Correct. 17 you do is take the exit poll precincts that were from 18 Q And so you were aware that in the 2008 general 18 three in the center of the state from three in the 19 election, white voters outnumbered black voters and 19 north of the state. You can take and divide that 20 reconstituted election results for the presidential 20 piece of it. 21 election? 21 Q But if you're -- if you're making conclusions 22 A I believe that's the case. 22 about preferred candidates from that data, you would 23 Q And you're aware that in the 2010 elections, 23 have white voters in Orange County and white voters in 24 the general elections, white voters outnumbered black 24 Madison County in that data set? 25 voters by over 10 percentage points; correct? 25 A Right. But the Madison County voters are ACCURATE STENOTYPE REPORTERS, INC. ACCURATE STENOTYPE REPORTERS, INC.
19 of 52 sheets Page 73 to 76 of 134 App.09/05/2014 397 12:21:34 PM 77 79 1 treated as North Florida. And the Orange County 1 THE COURT: Anybody else on this side? Are we 2 voters are treated as Central Florida. The exit poll 2 all done? Redirect? 3 data, as set, tells you which precincts the polling 3 MR. KING: Just a short. 4 was done in, survey was done in, so you can assign 4 REDIRECT EXAMINATION 5 those to a Central Florida area and a North Florida 5 BY MR. KING: 6 area. 6 Q You were asked about the fact that, under the 7 You can also cut it district by district. But 7 Coalition remedial map, some 17,000 African-American 8 they're not a large -- a really large sample for the 8 citizens would end up in District 3, which probably 9 district-by-district analysis. 9 would be a -- not a minority opportunity district; 10 Q So you didn't use the Congressional districts 10 correct? 11 by which the regions were assigned? 11 A Correct. 12 A I did. I did it both ways. I did district 12 Q But at the same token -- by the same token, 13 level, region level. The analysis in my report 13 under the Legislature's map, a number of 14 reflected regional level. 14 African-Americans in Seminole County are no longer in 15 Q Congressional District 3 was in the northern 15 a African-American ability-to-elect district; correct? 16 region? 16 A Correct. 17 A Yeah. Mostly. 17 Q And in addition, we have given 18 Q You testified at the previous trial that when 18 African-Americans in Gadsden, Leon, Jefferson, 19 you were directing the drawing of an east-west 19 Madison, Baker the opportunity to elect an 20 Congressional district, that you never consulted with 20 African-American candidate of choice under that map; 21 residents living in North Florida; is that correct? 21 correct? 22 A Correct. 22 A Correct. 23 Q And you never read public testimony 23 Q Plus, as you testified, in 2010 -- or 2012, 24 transcripts from the public hearings in 2011; is that 24 had that map been in place, there would have been two 25 correct? 25 African-Americans elected as representatives to the ACCURATE STENOTYPE REPORTERS, INC. ACCURATE STENOTYPE REPORTERS, INC.
78 80 1 A Correct. 1 United States Congress; correct? 2 Q And based on your discussions just now with 2 A Correct. 3 Mr. Zakia, I assume it's safe to assume that you 3 MR. KING: Thank you, sir. 4 didn't read the public testimony offered during the 4 THE COURT: No questions? You can step down. 5 special session this year? 5 Thank you. 6 A Correct. 6 THE WITNESS: Thank you. 7 Q So you're not aware of what residents who 7 THE COURT: You have another -- another 8 would be affected by your directions felt about the 8 witness, you say? 9 matter? 9 MR. DEVANEY: Yes, Your Honor. We call 10 A Correct. 10 Representative Perry Thurston. 11 Q And you never performed any studies looking at 11 THE COURT: All right. 12 commonalities that Jacksonville and Tallahassee might 12 Thereupon, 13 share when it comes to socioeconomics or 13 PERRY THURSTON 14 infrastructure; did you? 14 was called as a witness, having been first duly sworn, 15 A No. 15 was examined and testified as follows: 16 Q And you didn't do any studies specifically on 16 DIRECT EXAMINATION 17 the infrastructure of socioeconomic challenges that 17 BY MR. DEVANEY: 18 black voters in Hamilton or Madison counties, for 18 Q Good morning, Representative Thurston. 19 example, might be facing? 19 A Good morning. 20 A No, no. 20 Q Could you please just tell us your position 21 Q And how those might relate -- relate to the 21 with the Legislature? 22 challenges facing black voters in Duval County, for 22 A My name is Perry Thurston. I'm state 23 example? 23 representative for House District 94. And I'm the 24 A No. 24 Democratic leader in the House. 25 MS. RIGGS: Thank you. 25 Q And how long have you been in the House? ACCURATE STENOTYPE REPORTERS, INC. ACCURATE STENOTYPE REPORTERS, INC.
09/05/2014 12:21:34 PM Page 77 to 80 of 134 App. 39820 of 52 sheets 81 83 1 A For the last seven and a half years -- seven 1 public statements that were put forth during the 2 and three quarter years. 2 legislative session. 3 Q All right. Could you give the Court just a 3 THE COURT: I don't know. I mean, it's a 4 general sense of what your responsibilities are as the 4 statement outside of court that's offered for the 5 Democratic House leader? 5 truth of the matter asserted, that would be 6 THE WITNESS: Herding cats, Judge; that's what 6 hearsay. 7 I do. 7 MR. DEVANEY: Okay. 8 No, I'm the leader. And it's my obligation to 8 BY MR. DEVANEY: 9 make sure we advocate on behalf of the people that 9 Q Let me ask it this way, Representative 10 we represent from across the state and make sure we 10 Thurston: Were you ever invited to participate in any 11 keep the legislative focus on what our desires are. 11 private meetings with members of the Republican 12 And notwithstanding the fact that we're the 12 Legislature with respect to the redraw of this map? 13 minority party, we consider ourself the loyal 13 A No, I was not. 14 opposition. And we represent a substantial portion 14 Q And are you aware of any other Democrats who 15 of the residents here in the state of Florida. 15 were invited to participate in any such meetings? 16 BY MR. DEVANEY: 16 A No. No. I'm not aware, and to the best of my 17 Q All right. At some point in the last few 17 knowledge, none were invited. 18 weeks you learned the Legislature was going to have a 18 Q And -- and Representative Thurston, has any 19 special session for redistricting; is that correct? 19 Republican acknowledged to you that such meetings took 20 A That's correct. 20 place, either in floor debate or anywhere else? 21 Q How did you learn about that? 21 A Absolute -- 22 A Well, I would received a phone call from 22 MR. MEROS: Hearsay. 23 Speaker Weatherford that indicated that there was a 23 MR. DEVANEY: Admission by a party opponent. 24 decision that was going to be made whether there was 24 THE COURT: Well, admission -- statement by a 25 going to be an appeal, and if there was not a decision 25 party opponent would have to be an admission. ACCURATE STENOTYPE REPORTERS, INC. ACCURATE STENOTYPE REPORTERS, INC.
82 84 1 to appeal, that there would be a special session that 1 MR. DEVANEY: Statement by a party opponent? 2 would be convening that Thursday. 2 THE COURT: Right. That could be anybody, I 3 Q And in that conversation did Speaker 3 guess, from the Legislature. 4 Weatherford mention anything to you about conducting 4 Overruled. 5 nonpublic meetings with members of the House? 5 A Absolutely. During the testimony at the 6 A No. 6 hearing, I specifically asked the question about 7 Q And did you later learn that, in fact, the 7 whether there were meetings, when did the meetings 8 Republican leadership had conducted some nonpublic 8 occur. And certainly they answered them, initially 9 meetings before the committee meetings took place? 9 saying that Representative Corcoran and Representative 10 A Well, we learned that, in more details, during 10 Galvano had meetings. 11 the committee meeting that was held on that Friday and 11 And then in follow-up questions, it was 12 certainly on the floor when we asked questions about 12 brought to point that there were attorneys that were 13 what had occurred on that following Monday. But we 13 present at those meetings as well. 14 did receive a memo, I guess it was around the 5th, 14 BY MR. DEVANEY: 15 from Representative Corcoran saying that the staff 15 Q And were you invited to any of those meetings? 16 from the Senate and the House was going to be getting 16 A I was certainly not invited. 17 together for some purpose. 17 Q Do you know if a map came out of those 18 Q And during the floor discussions, what did you 18 meetings? 19 learn about private meetings among Republican 19 A Yes. A map did come out of the meetings. 20 legislators having been held that prior week? 20 Q How do you know that? 21 A Well, we learned that -- 21 A Because it was represented to us that this is 22 MR. MEROS: Objection; hearsay. 22 how this map that we're here to deal with today was 23 THE COURT: Sounds like hearsay. Do you have 23 formulated, based on those meetings and subsequent 24 an exception? 24 meetings that were had. 25 MR. DEVANEY: Well, Your Honor, these are 25 Q As the House minority leader, did you have ACCURATE STENOTYPE REPORTERS, INC. ACCURATE STENOTYPE REPORTERS, INC.
21 of 52 sheets Page 81 to 84 of 134 App.09/05/2014 399 12:21:34 PM 85 87 1 concerns that there had been private, nonpublic 1 presented. 2 meetings among Republican legislators before the map 2 So from the time of that memo on August 5th 3 was issued to the committee? 3 until the -- the Friday hearing, if there was going to 4 A Well, absolutely. We voiced those concerns -- 4 be an amendment, clearly we could put some -- at 5 I voiced those concerns, as well as many of my 5 the -- and that was the committee meeting. But when 6 members, simply asking, with the history of how we got 6 the hearing was held on that Monday, we could 7 to this point of requiring a special session, that 7 certainly have submitted something at that time too. 8 we -- wouldn't it have been a good idea for all of us 8 But realistically, I think that if it was 9 to sit down at the table initially to address the 9 going to have any type of consideration being 10 issues and have a -- have an input from 10 evaluated, it would have been up to that Friday, from 11 representatives all over the state in terms of what we 11 the August 5th date to the Friday date. 12 thought would be the best way to proceed. 12 Q Okay. And what resources did you have 13 Q Did that happen? 13 available to you for creating a map? 14 A That did not happen. 14 A Well, we certainly didn't have the resources 15 Q Given this Court's decision with respect to 15 of the Legislature and the unlimited resources of the 16 the enacted map from 2012, 9047, did that decision 16 Legislature, based on the ruling and the requirements. 17 cause you greater concern about nonpublic meetings 17 It was pretty much you had to do it with your staff. 18 being held? 18 And the amendment that was presented by 19 A Well, that's just putting it mildly. It 19 Senator Soto, it was just him and his aide that 20 caused us extreme concern to the effect that, in the 20 prepared the amendment. And I certainly think that 21 committee meeting we specifically requested that 21 that was limiting, to say the least. 22 anyone that was going to give any testimony regarding 22 You know, I know that this map that we have is 23 how this map was conducted, that we want -- drawn how 23 drawn by Senator Galvano and Representative Corcoran. 24 this map was configurated, we wanted them to be placed 24 I have all due respect for their abilities, but 25 under oath so that we can know that what they were 25 certainly, given the fact that they had to do it with ACCURATE STENOTYPE REPORTERS, INC. ACCURATE STENOTYPE REPORTERS, INC.
86 88 1 saying was the absolute truth and that we were not 1 just them and their aide, I'm sure it would have 2 being given one story, and there was something else 2 been -- would probably have the same shortfalls of 3 that had actually occurred. 3 Senator Soto's map. 4 So that's why we made the motion that any 4 Q And did you have access to the House staff map 5 witness that would testify be actually placed under 5 drawers? 6 oath. 6 A No, we did not. The legal team, nor the 7 Q And what happened with that motion? 7 staff, nor the unlimited resources. 8 A It failed on party lines, but we weren't 8 Q Did any map drawer from the House during this 9 surprised. 9 process reach out to you and ask you about the map 10 Q Okay. By party lines, you mean the Democrats 10 they were preparing? 11 voted in favor, and the Republicans voted against it? 11 A Never. But I would say that, afterwards, 12 A That's correct. 12 after the map -- Senator Soto's map and the amendment 13 Q Now, at some -- move back and ask you, how 13 was presented, at that point there was certainly some 14 much time did you have or any of your Democratic 14 resources used to critique that map that was 15 colleagues have, to prepare an amendment to the map 15 presented. But certainly nothing in terms of 16 that had been released to the committee? 16 assisting in the preparation. 17 A Well, I would say, you know, since the memo 17 Q And as I understand it, Representative Soto's 18 that was placed out -- I'm pretty sure it was August 18 map is one that you sponsored as an amendment to the 19 5th, and I could be wrong about that -- kind of 19 map that had been proposed and was ultimately enacted; 20 outlined the details of what would be required of 20 is that correct? 21 anybody who submitted a map and how it should be done 21 A That's correct. And that was in the committee 22 and the fact that it should be on a DVD, the fact that 22 meeting that Friday. 23 you should be able to indicate everybody who had any 23 Q And that map had a north-south configuration 24 input in the map and the analysis that would have to 24 of Congressional District 5; is that correct? 25 be conducted as to any amendment that would be 25 A It did. ACCURATE STENOTYPE REPORTERS, INC. ACCURATE STENOTYPE REPORTERS, INC.
09/05/2014 12:21:34 PM Page 85 to 88 of 134 App. 40022 of 52 sheets 89 91 1 Q Okay. And did that map, though, create a 1 A I didn't draft a map. 2 second minority opportunity district? 2 Q Let me go back to the question. Did you -- is 3 A I believe that it created two additional 3 it your testimony that you sought assistance from the 4 opportunity seats. You know, I presented the 4 staff with regard to anything relating to a map, but 5 political and geographical information regarding the 5 they refused? 6 maps. And Senator Soto was actually present at the 6 A No. 7 committee meeting, and he presented all the 7 Q Okay. And is it your testimony that -- or did 8 technicalities about the map. And it was his opinion 8 you ever go by the redistricting suite and try to 9 that it created two access seats, in addition to the 9 speak with staff to give you any assistance that you 10 CD-5. 10 might need? 11 Q And what happened to the amendment that you 11 A No. 12 proposed that was Representative Soto's map? 12 Q Why not? 13 A It failed, again, on party lines. 13 A Well, if you take the testimony of 14 Q Now, Representative Thurston, there has been 14 Representative Corcoran, and when you're talking about 15 discussion, as you've heard, of an east-west 15 assistance, be mindful of the fact that I did not 16 configuration of Congressional District 5. 16 submit an amendment. I presented it in the House, and 17 Do you have any personal opposition to that 17 it was drafted in the Senate. 18 configuration of District 5? 18 What was -- what we were informed of is that 19 A I have no opposition to that. I don't favor 19 this is a map -- a bill, rather, like any other bill. 20 east-west or north-south. I have members who reside 20 And what we're going to do is, we're going to 21 across the state from Jacksonville to South Miami. 21 formulate the bill. Then you would have an 22 And quite frankly, all we wanted to do was have an 22 opportunity to propose amendment. 23 opportunity to address all the alternatives and to 23 And I think that goes to the heart of what the 24 explore that. 24 problem is. This is not a bill like any other bill. 25 I'm sure that I have members from the central 25 If we were -- if we had not gotten to the process of a ACCURATE STENOTYPE REPORTERS, INC. ACCURATE STENOTYPE REPORTERS, INC.
90 92 1 part of the state that -- or who are part of our 1 special session, where we had to address this issue 2 caucus who would like to consider that, and we have 2 because of what happened during the actual 3 members who are fine with the north-south 3 redistricting process, then it could be considered a 4 configuration. I have no position on either one. 4 bill like any other bill. But because of the reason 5 I just wanted to make sure that all of our 5 why we found ourselves in a special session, we were 6 members had an opportunity to address it and express 6 of the opinion that we should be offered an 7 their concern. 7 opportunity to be at the table. 8 Q And did they have that opportunity? 8 Q The House staff, with regard to redistricting 9 A They did not. 9 or any other bill, is available to every member of the 10 MR. DEVANEY: Thank you. That's all I have. 10 Legislature -- every member of the House for 11 THE COURT: Mr. King, did you have any 11 assistance in any way; correct? 12 questions? 12 A No. 13 MR. KING: No questions, Your Honor. 13 Q And so is it your testimony here under oath 14 THE COURT: How about on this side? No? 14 today that the House redistricting staff was not 15 MR. MEROS: Yes, sir. 15 available to you upon request? 16 CROSS EXAMINATION 16 A You said like any other bill, they're 17 BY MR. MEROS: 17 available to -- for us. I think that when you look at 18 Q Hello, Representative. How are you? 18 the reality of the situation, even in committee bills 19 A Great. Good morning. 19 that's presented, the committees do not all 20 Q I guess it's still morning. 20 participate in the process. 21 MR. MEROS: Mari-Jo, if you would center that. 21 You may be making a point that, well, they're 22 BY MR. MEROS: 22 available to you. But that's just not accurate. If 23 Q Representative, is it your testimony here that 23 you look at the process, the way it works, even when 24 you sought assistance from House or Senate staff, but 24 you sit on a committee, Counsel, you're not involved 25 that assistance was refused? 25 with that process. ACCURATE STENOTYPE REPORTERS, INC. ACCURATE STENOTYPE REPORTERS, INC.
23 of 52 sheets Page 89 to 92 of 134 App.09/05/2014 401 12:21:34 PM 93 95 1 There are always committee bills that come 1 A I'm -- I'm the leader of the House. And I'm 2 out; the members sit on the committee; we have had no 2 telling you right now, it never got to me. 3 input on it. And that's why we use that as our 3 Q Okay. And did you -- did you ask Chair 4 opportunity to ask questions, to be informed. 4 Corcoran or Senator Galvano to somehow be involved in 5 A lot of times we don't disagree with what's 5 the drawing of the map? 6 being done. But because we have not been involved in 6 A No. 7 the process, that's where the question come in. 7 Q Did you ask Will Weatherford to be in a room 8 Now, you can take an argument and say, well, 8 when the map was drawn? 9 you all should have used your opportunity and actually 9 A We asked Will Weatherford to give us more 10 come over and came and found us and wherever we were 10 participation and more members on the committee -- 11 meeting at. 11 Q Okay. But the question was: Did you ask him 12 But we're on the committees as well. We were 12 to be in the room and to be a part of the map-drawing 13 to -- put on a select committee the actual people, and 13 process? 14 we said, here are our five people. Unlike Dean 14 A No. 15 Cannon, who denied us the right to be on the 15 Q Okay. Now, let me ask you this: This map 16 committee, this leadership did allow us to be on the 16 here is a map that was submitted by you and Senator 17 committee. 17 Soto in the House committee; correct? 18 But when you're on a committee, and there are 18 A I submitted that map in the House committee. 19 meetings of the committee, you would expect that you 19 Q Right. Okay. Did you have -- did you ask 20 would be invited to any meetings. 20 Republican members of the Legislature to collaborate 21 Q Let me go back to my question, Representative. 21 with -- with you in creating this map? 22 Did you ever go to the redistricting suite, ever, 22 A The map was created when it was presented to 23 during this process? 23 me. 24 A No. 24 Q Okay. Well, do you know whether -- so I take 25 Q Did you ever ask Jason Poreda or Jeff Takacs 25 it you didn't ask anyone -- any Republicans to be a ACCURATE STENOTYPE REPORTERS, INC. ACCURATE STENOTYPE REPORTERS, INC.
94 96 1 or Jeff Silver for any assistance with regard to what 1 part of this process of drawing a map or submitting 2 you might have wanted to do? 2 the map; right? 3 A Counsel, I don't even know who those guys are. 3 A Senator Soto and his aide put this map 4 Q Well, the question is, did you go to any 4 together, and it was presented to us and asked to 5 member of the staff and seek assistance in any way? 5 submit it in the meeting. 6 A We went to Speaker Weatherford. We asked to 6 Q Right. And did you -- did you say we really 7 have more people placed -- 7 need to have Republicans to -- to be a part of this 8 Q Excuse me. The question was: Did you go to 8 process? 9 any staff? 9 A We were told that the Republicans would review 10 A No, we did not. 10 the map that was submitted and put it under the same 11 Q Did anyone in the House staff or -- tell you 11 scrutiny as the other map. 12 that those staff members were not available to you or 12 Q Did you ask any Republican member to be a part 13 any other member of the House of Representatives for 13 of this process of submitting that map? 14 assistance, at your request, in this process? 14 A No, because the map was already drawn, such as 15 A No. And they never have. 15 your map was already drawn. 16 Q And you were aware; were you not, that Kathy 16 Q And do you know whether Senator Soto asked any 17 Mears, the chief of staff for Will Weatherford, 17 Republicans to be a part of drawing that map? 18 contacted the minority office and specifically offered 18 A That I don't know. 19 the help of staff and counsel if the minority office 19 Q All right. And did you hold public meetings 20 wanted to participate in map drawing? 20 when you met with Senator Soto about submitting this 21 A Never. 21 map for -- which -- and -- for passage by the 22 Q You're not aware of that? 22 Legislature? 23 A I'm not aware of that. 23 A Prior to submitting this map, I met with 24 Q So if, in fact, she testified to that, it just 24 Senator Soto for ten minutes. 25 didn't get to your level; is that right? 25 Q Okay. Very simple question: Did you notice a ACCURATE STENOTYPE REPORTERS, INC. ACCURATE STENOTYPE REPORTERS, INC.
09/05/2014 12:21:34 PM Page 93 to 96 of 134 App. 40224 of 52 sheets 97 99 1 public meeting when you discussed this map with 1 Q And you asked your members on the committee to 2 Senator Soto or anyone -- anyone else? 2 vote for that map; correct? 3 A No. He stopped by the office and asked me 3 A No, I did not. They voted for it because they 4 would I submit it, and I told him I would. 4 thought it was an alternative that was being 5 Q So that was a secret meeting; wasn't it? 5 presented, and that the previous map has just been 6 A I guess you can classify it as a secret 6 given to us, and they wanted an alternative. 7 meeting in the lines of other secret meetings that we 7 And quite frankly, several of the members 8 talked about. 8 indicated, well, we want to give the judge an 9 Q And did -- did Senator Soto notice a public 9 alternative. We read the opinion; he's asked for 10 meeting? 10 alternatives. So, you know, let's give him an 11 A I would have no idea. 11 alternative. Senator Soto and his aide, on their own, 12 Q All right. And when bills are being drafted 12 created an alternative. 13 and presented, they are not noticed publicly when 13 So that's what we voted for, and that's why 14 there are discussions and questions about how to craft 14 we -- after it was scrutinized by the Legislature, we 15 particular legislation; is there? 15 supported it. 16 A Most of the times when I'm doing a bill, it's 16 Q Is it your testimony that you did not debate 17 with my staff and maybe a constituent who has an idea. 17 and ask for the support of members of the committee 18 But I don't think that there is any notice of it. 18 for passage of this? 19 Q Right. 19 A I debated for the amendment. 20 A Again, that's like you said, in normal bills, 20 Q Right. Okay. 21 in regular bills. And if you're classifying this as 21 A When you say asked for support, there are 22 normal and regular, I would certainly have to disagree 22 times when we say, well, we want everybody to lock 23 with you on that. 23 down and support this map; that really wasn't what we 24 Q But your map in this important redistricting 24 were saying. We were saying, this is an alternative. 25 process was the subject of secret meetings that were 25 Let's present this to the judge so he will have more ACCURATE STENOTYPE REPORTERS, INC. ACCURATE STENOTYPE REPORTERS, INC.
98 100 1 not noticed publicly; correct? 1 than just one map to choose from that we had nothing 2 A Those are your words. 2 to do with. 3 Q Is it correct or is it not? 3 So, yes, we -- we talked about it. We -- I 4 A We met to talk about it. I don't think it was 4 argued on behalf of it. But, no, it's not like I said 5 secret. He just came by and asked me would I submit 5 to my members, I want all of you; let's stick 6 it, and I told him I would. 6 together. That's called a caucus position. We didn't 7 Q Now, in looking at this map, you advocated, 7 take any caucus position. 8 and you argued extensively in the committee for a CD-5 8 And one of the things, we never took a caucus 9 that goes from Orange County to Duval County; correct? 9 position on any issues here. 10 A I wouldn't say that I advocated and argued 10 Q You asked for their vote; right? 11 extensively. I would say that the meeting lasted -- 11 A I asked for their favorable consideration. 12 the actual presentation of this map was no more than 12 Q Okay. Now, you were there also; were you not, 13 60 minutes total with regards to the presentation, the 13 when Senator Soto testified to the committee that 14 cross-examination. And I would say that there was 14 there was an intent in drawing this map to make 15 absolutely little, if any, public testimony on it. 15 districts more competitive for Democrats; do you 16 The amount of notice that was given for this was not 16 remember that? 17 sufficient for the public to actually be there. 17 A I remember him saying that a result of the map 18 So, yeah, the map was presented, and, yes, we 18 would lead to at least two more competitive seats. 19 did argue for what you -- what you've indicated. But 19 I don't think that he said anywhere there was 20 I wouldn't say that that was an extensive argument -- 20 an intent to do that. 21 Q You asked -- 21 Q Well, I guess the transcript will reflect 22 A -- for something as important as this. 22 whatever it reflects. But if, in fact, you drew that, 23 Q You asked that the committee adopt your map 23 or if Senator Soto drew the map to make it more 24 for passage by the Legislature; correct? 24 competitive for Democrats in certain seats, that's a 25 A That's correct. 25 flat violation of Tier 1 Amendment 6; is it not? ACCURATE STENOTYPE REPORTERS, INC. ACCURATE STENOTYPE REPORTERS, INC.
25 of 52 sheets Page 97 to 100 of 134 App.09/05/2014 403 12:21:34 PM 101 103 1 A I think you indicated that when you came up to 1 There were four Republicans and three Democrats on a 2 question -- answer questions after he presented the 2 seven-member committee; did you know that? 3 map. But, again, I think that what he was saying was, 3 A Yes. 4 I'm drawing a different alternative. And that 4 Q And are you aware that the ultimate map, 9057, 5 alternative happens to create not only a CD-5 that's 5 was reported out of the Senate committee with all 6 competitive, but two other seats that's competitive, 6 seven members, including all three Democrats, voting 7 not that that was his intent. 7 in favor of it? 8 MR. MEROS: Okay. That's all I have. Thanks. 8 A The ultimate vote? 9 THE COURT: Any more cross on this side? 9 Q In the Senate committee, seven members, four 10 CROSS EXAMINATION 10 Republicans, three Democrats, the ultimate map, 9057, 11 BY MR. ZAKIA: 11 which was ultimately passed was reported out of that 12 Q Morning, Representative. 12 committee unanimously; correct, sir? 13 A Good morning. 13 A The Senate operates a little more different 14 Q This map up here, 9040, is the map that you 14 than the House -- 15 introduced as an amendment in the House committee? 15 Q That very well may be. 16 A Yes, sir. 16 A -- and -- and I would assure you that those 17 Q And that's why it has your name on it right 17 members who voted for it to move it in the Senate 18 here? 18 voted against it on the floor. But you're -- 19 A That's my name. 19 Q Is it your testimony -- 20 Q Okay. And you voted for it in the committee? 20 A -- absolutely right. 21 A I voted for it. 21 Q -- here that all three of the members that 22 Q Okay. How many Democrats on the committee 22 voted -- all three of the Democrats that voted for it 23 voted for it; all of them? 23 in the Senate committee voted against it on the floor; 24 A I believe so. But I'm not sure. But I 24 is that your testimony, sir? 25 believe they all voted for it. 25 A I said some of the members. I don't know ACCURATE STENOTYPE REPORTERS, INC. ACCURATE STENOTYPE REPORTERS, INC.
102 104 1 Q And am I correct, sir, that you wouldn't have 1 which ones voted which way. But I can assure you that 2 introduced a map to the committee, and you wouldn't 2 all the members who voted for it in committee did not 3 have voted for a map in committee unless you felt that 3 vote for it in the ultimate determination on the floor 4 it was a legal map? 4 of the Senate. 5 A That's correct. 5 Q Let's start with my question, though, sir, 6 Q Okay. And this district, CD-5, in your map, 6 which is very simple. 7 begins in Jacksonville and runs to Orlando; correct? 7 Are you aware that of the seven members, which 8 A That's correct. 8 included three Democrats, on the Senate committee, all 9 Q Add that's the only alternative -- the only 9 seven of those members voted in favor of that bill 10 amendment that was offered by you in the House 10 when it came out of that committee; yes? 11 committee? 11 A I believe so. 12 A Yes. 12 Q Okay. And when it ultimately passed on the 13 Q Now, this -- with regard to 9057, the ultimate 13 floor of the House, there were Democrats that voted in 14 map enacted by the Legislature, it was subject to 14 favor of the final map; correct? 15 review both in House committee and the Senate 15 A Where? On the Senate? 16 committee; correct? 16 Q In both sides. Weren't there House members, 17 A Is that the map -- 17 Democratic House members, that voted in favor of the 18 Q There was a subcommittee on apportionment? 18 final bill, 9057? 19 A Is that the final product that we're here for 19 A Yes. There were Democrats who voted for the 20 today? 20 House bill on the floor of the House who are probably 21 Q Yes, sir. 21 some of our strongest and most loyal Democrats in the 22 A Yes, sir. 22 Florida House. 23 Q Are you aware that, upon consideration in the 23 And I think that that is a reflection of why 24 Senate -- well, let me ask you this: Are you aware 24 this is not your typical bill. And this is not a 25 that the Senate committee had a bipartisan makeup? 25 regular bill. I think that's a reflection of the ACCURATE STENOTYPE REPORTERS, INC. ACCURATE STENOTYPE REPORTERS, INC.
09/05/2014 12:21:34 PM Page 101 to 104 of 134 App. 40426 of 52 sheets 105 107 1 personal nature of the redistricting process and why 1 THE COURT: Yes, sir. 2 it should be held to greater scrutiny. 2 MR. MEROS: -- Your Honor? 3 Q So if I understand your testimony correctly, 3 Thereupon, 4 some of the most loyal Democratic members of the House 4 JOHN GUTHRIE 5 Democratic caucus voted in favor of the Legislature -- 5 was called as a witness, having been first duly sworn, 6 the ultimate enacted bill, 9057, on the floor of the 6 was examined and testified as follows: 7 House of Representatives, sir? 7 DIRECT EXAMINATION 8 A Some of my best members, some that I can count 8 BY MR. MEROS: 9 on most and only the ones from Jacksonville. 9 Q Mr. Guthrie, just one -- one question. 10 Q Okay. And it also received Democratic votes 10 Looking at this document which we have 11 in the Senate; correct? 11 discussed earlier about the Reock, Convex Hull, and 12 A I believe the Jacksonville member voted for it 12 Polsby-Popper scores for 9057 and three alternatives, 13 in the Senate as well. 13 have you had occasion to check and determine whether 14 Q Do you know how many members of the Senate 14 these compactness scores on this sheet are accurate 15 Democratic caucus voted in favor of the bill? 15 and accurately reflect the statistical measurements 16 A In the Senate? 16 for these four plans? 17 Q Yes, sir. 17 A Yes. I independently calculated all of these 18 A No, I do not. 18 averages, and the numbers that I derived match 19 MR. ZAKIA: Thank you. Your Honor, no further 19 exactly. 20 questions. 20 Q Okay. 21 MS. RIGGS: Nothing, Your Honor. 21 MR. MEROS: That's all I have. 22 THE COURT: All right. 22 THE COURT: No other questions? Any cross? 23 Redirect? 23 MR. KING: No. No questions. 24 MR. DEVANEY: Briefly. 24 THE COURT: Thank you. I'm sure you're 25 THE COURT: Yeah. 25 exhausted. ACCURATE STENOTYPE REPORTERS, INC. ACCURATE STENOTYPE REPORTERS, INC.
106 108 1 REDIRECT EXAMINATION 1 Anything else evidentiary-wise on this side? 2 BY MR. DEVANEY: 2 MR. MEROS: Your Honor, there may be -- there 3 Q Representative Thurston, counsel for the House 3 may be one more witness that we're trying to -- to 4 asked you whether you requested of Speaker Weatherford 4 get, but we don't know, so we would like to just 5 that you be involved in the map-drawing process; do 5 hold that for the moment. And it would be brief 6 you recall being asked that? 6 testimony, but we're not exactly sure yet whether 7 A I recall him asking. 7 we will offer that. 8 Q And you said no. And my question for you is, 8 THE COURT: Okay. Well, I mean, if you don't 9 when he called you to tell there is going to be this 9 have any more evidence, I'm ready to go to 10 special session, did he tell you there was going to be 10 argument. 11 a private, nonpublic map-drawing session? 11 MR. MEROS: You're not going to hear from the 12 A Absolutely not. 12 supervisors first or -- 13 Q So -- 13 THE COURT: Well, I was looking at that side 14 A And if he had, I would have requested to be 14 asking. 15 there. 15 MR. ATKINSON: Your Honor, you're hearing 16 MR. DEVANEY: Thank you. 16 argument on the schedule at this time? 17 THE COURT: Anything else on this side? 17 THE COURT: Yeah, on -- on both -- both 18 All right. Thank you, sir. 18 issues. That's why I asked if there was going to 19 THE WITNESS: Thank you. 19 be any evidence presented as to a schedule. I was 20 (Witness excused.) 20 told no, but I'm happy to hear any evidence anybody 21 THE COURT: Do you have any other evidence to 21 wants to present. 22 present? No additional evidence? How about on 22 MR. LABASKY: Your Honor, we -- we put in our 23 this side? Do you have evidence? 23 schedule. I think it speaks for ourself. We would 24 MR. MEROS: We do, Your Honor. 24 be happy to discuss it in argument if necessary. 25 If I may approach the witness -- 25 But if the plaintiffs don't have any evidence to ACCURATE STENOTYPE REPORTERS, INC. ACCURATE STENOTYPE REPORTERS, INC.
27 of 52 sheets Page 105 to 108 of 134 App.09/05/2014 405 12:21:34 PM 109 111 1 the contrary, we will just wait for argument. 1 because we're trying to interpret your decision. 2 THE COURT: Okay. 2 And we interpret your decision that you concluded 3 MR. MEROS: Your Honor, if we could have five 3 that District 5 was a bizarrely-shaped district 4 minutes to determine whether we have one more 4 that had and played a significant role in the plan 5 witness. 5 of the Legislature to protect the Republican Party, 6 THE COURT: Okay. 6 protect the Central Florida districts by using and 7 MR. MEROS: Also, excuse me, I think I said 7 continuing that bizarrely-shaped district. 8 before, but we certainly offer either of the chairs 8 Our conclusion is that it did not solve the 9 or staff for Your Honor if he has any questions. 9 problem to simply patch the appendage in Seminole 10 THE COURT: I will let the lawyers do their 10 County and to bulk the district up a bit in Putnam 11 work. And I will just stand at ease. We don't 11 County. That did not solve -- the district remains 12 have to take a formal recess -- 12 essentially the same. 13 MR. KING: Your Honor, is it correct that 13 They simply resorted to going back to 9043. 14 we're done at 12:00? We've got 30 minutes? 14 9043 was the most Republican-leaning of the 15 THE COURT: That's what I scheduled, yeah. 15 alternative maps in the House, until finally they 16 MR. KING: Could we just go ahead with the 16 did 9047. 17 argument -- if they've got more -- I don't know who 17 And so they continue to achieve their result, 18 their witness is, but we're wasting valuable time 18 which is with 9057, they protect District 10. They 19 it seems like. 19 protect that as a Republican district, a district 20 THE COURT: He probably wants to be able to 20 that, under the benchmark plan, was 52 percent 21 hear your argument. So let's take a couple of 21 Democrat leaning, 48 percent Republican. Through 22 minutes and see if he can figure that out, and 22 the machinations in the Legislature in the first 23 we'll come back. 23 go-around, they turned that around to 52-48 the 24 (Short recess.) 24 other way. 25 MR. MEROS: Your Honor, we're not going to 25 And now, even with the change of the ACCURATE STENOTYPE REPORTERS, INC. ACCURATE STENOTYPE REPORTERS, INC.
110 112 1 call anybody. 1 appendage, they still manage to protect it, because 2 THE COURT: Ready for argument, then? 2 they keep the relic district alive, District 5, 3 MR. KING: Your Honor, we have got 25 minutes. 3 which is a vestige of a time when we did not have 4 How do you want to divide -- divide it? 4 constitutional standards. 5 THE COURT: Five for you, 20 for them? 5 And so by -- so it's no secret that, when they 6 MR. KING: No, sir. We've got 25 minutes -- 6 went into the process, they went into the process 7 THE COURT: Equal amount. 7 with the intent of retaining exactly everything 8 If you go a little over, I won't be so upset 8 they could in that district, with the exceptions of 9 about it. Whatever you think you need, within 9 the things that they simply couldn't possibly get 10 reason. 10 around, which was the problem with Seminole County 11 MR. KING: Your Honor, on behalf of the 11 and the problem with the appendage in 10. 12 Coalition Plaintiffs, it is our position that the 12 And then they do it in a way that's -- you 13 amendment -- the map 9057 continues the 13 know, they didn't learn anything, it seems, from 14 unconstitutional District 5. They have not made 14 the process of the trial. They go ahead and 15 any effort to change the heart of the Court's 15 produce a map outside of the public view. They 16 findings about District 5. 16 produce a bill. No one else is involved, until all 17 We're not saying that the plans we offer are 17 of a sudden this bill springs forth. 18 better plans, although we think they are, but we're 18 And when it springs forth, it's fully 19 saying that the map -- it's not a matter of 19 developed as what we see as 9057, and it -- it's 20 choosing from the plans, but those plans were 20 through the -- the House and the Senate in a couple 21 offered to establish that there were other ways the 21 of days. 22 Legislature could have proceeded. They failed to 22 That's not the process that I think the Court 23 do that. 23 was calling for. 24 They adopted an unconstitutional plan. And, 24 As far as 9057, District 5, from a visual 25 Your Honor, largely we're reading the tea leaves, 25 standpoint, it still remains bizarrely noncompact, ACCURATE STENOTYPE REPORTERS, INC. ACCURATE STENOTYPE REPORTERS, INC.
09/05/2014 12:21:34 PM Page 109 to 112 of 134 App. 40628 of 52 sheets 113 115 1 from looking at it. As far as the metrics are 1 representation by that approach. And that's what 2 concerned, the Reock scores are approximately the 2 we established through the alternative maps. 3 same with the proposed alternative, the east-west. 3 We show where there would be more 4 But the Convex Hull of the east-west configuration 4 African-American representation in this state, but 5 is .7, whereas the Convex Hull on the -- on the 5 for hanging to the vestige of this improper 6 Legislature's version is .4, so a significant 6 district. And I think the Supreme Court's 7 difference in compactness as far as the metrics are 7 treatment of District 6 in the Senate is an 8 concerned. 8 important example, because there the Reock scores 9 They continue to retain almost all the prior 9 are -- were less -- or were greater than the Reock 10 population of the prior incumbent's district in 10 scores for District 5 in 9057. There the Reock 11 this configuration. And, of course, we also, I 11 score was 12, and the Convex was 43, whereas it's 12 think, have established for the Court the impact on 12 41. -- 41.7 in 9057 and 1.27 under the Reock. 13 the surrounding districts, because what we have 13 The Supreme Court found that district 14 established, is that if you do that in a different 14 unconstitutional. Visually it looked better than 15 way, it has a significant positive impact on the 15 District 5 in this case. Check -- you can check me 16 surrounding districts, the nine districts that are 16 on that, in the decision, but I think you'll -- 17 impacted. 17 you'll see, in that case they retained 70 percent 18 One, District 2, they make much of District 2; 18 of the core. 19 they're entitled to do that; it makes it a longer, 19 District 5 retains more than that. And it's 20 bigger district because of the sparse population in 20 also interesting to note, just on -- I'm varying 21 that area. But the result is that eight of the 21 into diminishment just a second on my discussion of 22 other -- the eight other districts all score better 22 District 6, because there the benchmark for 23 on the metrics. 23 District 6 was 46.9 black VAP. The Coalition 24 There are 27 of three metrics on each of the 24 alternative map was 42.4 percent; that's 4 and a 25 nine districts, 27 -- 20 of the 27 metrics are 25 half percent down. ACCURATE STENOTYPE REPORTERS, INC. ACCURATE STENOTYPE REPORTERS, INC.
114 116 1 better, more compact on the alternatives plans. It 1 The Supreme Court said that continued to be an 2 shows that it could be done in a more -- more 2 ability-to-elect district under that configuration. 3 compact and appropriate way. 3 And that was one of the bases for the decision to 4 We showed the map. The map of course, all you 4 find that district unconstitutional. 5 had to do is look at Coalition Plaintiffs' B -- the 5 Here the -- in our alternative map, the 6 map, and you see a much more compact looking map 6 east-west configuration, it goes to 45.11 black 7 than you do with the Legislature's map, because you 7 voting age population. That's a little over 4 and 8 have that bizarre district out of there. 8 a half percent, from 49.9. But it's the same 9 Sure, it's long, but it is certainly much more 9 comparable situation. 10 uniform. You don't have anything like the 10 And we have established, I think, very 11 situation where you squeeze District 5 down to the 11 adequately, Your Honor, that that continues to be 12 size of a highway bridge. 12 an ability-to-elect district. We have established 13 And that's why that's been considered in this 13 that through the testimony of Dr. Ansolabehere. 14 country one of the most noncompact districts in the 14 And that also is based on the testimony of 15 nation. And it continues to be under their 15 their fellow, Alex Kelly, from the prior trial, 16 approach. 16 because Mr. Kelly testified, as you will recall, 17 And, of course, even more importantly, what we 17 Your Honor, when he looked at the configuration 18 have is this effort to use nonretrogression as a 18 that he had done of the east-west and found a 45 19 weapon in redistricting. They attempt to say that 19 percent black voting age population, he said, 20 they have to have it this way, because they have to 20 quote: I concluded that the east-west 21 protect the minority rights. 21 configuration requires something around, I believe, 22 And that is a hollow claim, when what they 22 45 percent to maintain a similar minority voting 23 do -- what they're really protecting is their 23 strength as existed in the benchmark of the north 24 Republican interests. And they are preventing -- 24 and south district. The African-American community 25 they are constraining more African-American 25 in the east to west configuration represents a ACCURATE STENOTYPE REPORTERS, INC. ACCURATE STENOTYPE REPORTERS, INC.
29 of 52 sheets Page 113 to 116 of 134 App.09/05/2014 407 12:21:34 PM 117 119 1 greater proportion of your voting strength in 1 Court perceived to be defects in the map. That's 2 elections for whatever reason. 2 just what we did. The Court gave a very compressed 3 In other words, he found that there was even a 3 period of time to do so. We did it in that time. 4 better turnout in that area by African-Americans, 4 We conformed to every word of this Court's 5 which improved the situation. So we have, I think, 5 order, which is the only thing before this Court. 6 a very clear record that the alternative approach 6 We are entitled to an order that says that we 7 that the Legislature could have taken would have 7 confirm -- conform to the order of this Court. 8 resulted not only in an ability-to-elect district 8 Because we have very little time, I'm going to 9 in an east-west configuration, but would have 9 focus only on this issue of CD-5 and why CD-5 is 10 allowed another opportunity district with an 10 here in the first place and why it -- why it 11 ability to elect in Central Florida. 11 continues. 12 So -- 12 CD-5 was generated not for Republicans or 13 MR. MEROS: Your Honor, it's now almost ten 13 Democrats, but to remedy rampant racial 14 of. I would request that we have equal time. 14 discrimination in voting in Northeast Florida, 15 MR. KING: Okay. So I will -- I'll -- I'll 15 which prevented any congressman, black congressman, 16 bring it to a close, Your Honor. 16 to be elected since reconstruction. 17 But the point I would simply make is, they 17 That discrimination has not stopped. Today, 18 never tried. They never considered any other 18 and this Court heard testimony from Whitfield 19 alternative, because the intent that we established 19 Jenkins of Marion County and Evelyn Fox from 20 in the last trial is alive and well in the Florida 20 Alachua County, both of whom testified under oath, 21 Legislature. 21 unrebutted testimony, that in neither of those 22 And it caused them to look at only the effort 22 counties has there ever been an African-American 23 to try to do the least they could possibly do with 23 elected to a county-wide election; no county 24 this redistricting 9057. I think -- I hope the 24 commissioner in Marion County since reconstruction; 25 Court concluded that they had to do more and that 25 no constitutional officer in Alachua County since ACCURATE STENOTYPE REPORTERS, INC. ACCURATE STENOTYPE REPORTERS, INC.
118 120 1 what they've done is unconstitutional, Your Honor. 1 reconstruction; one city council member in Marion 2 MR. DEVANEY: I will be less than a minute. 2 County. 3 Your Honor, on behalf of the Romo Plaintiffs, 3 The very areas that plaintiffs would yank out 4 Mr. King has articulated the argument that I would 4 of CD-5 are ones where there is block voting. 5 make, so I'll -- I'll simply adopt his argument. 5 There is racially polarized voting that -- that 6 But there is one point I want to emphasize. 6 prohibits African-Americans to elect 7 Obviously, before the Court is the weighty 7 representatives of their choice. 8 issue of what map to use for the upcoming November 8 The voters were told in 2010 that Tier 1 says 9 2014 election. 9 that in no district shall you be able to diminish 10 And I just want to emphasize that the Court 10 the opportunity to elect a candidate of choice. 11 certainly ought not to order use of 9057, the 11 The supporters of this amendment said, diminish 12 recently-enacted map. It was not adopted as part 12 means diminish. It means to lessen. We are giving 13 of an open map-drawing process. It doesn't respond 13 permanent protections greater than federal law to 14 and argue to the Court's concerns identified in 14 those minority populations. And that's why the 15 your opinion. It's not constitutional. And by its 15 NAACP supports us. 16 terms, the Legislature said it shall not apply in 16 Your Honor, you don't see today the NAACP 17 2014. 17 supporting an effort to reword and to create an 18 So as Your Honor thinks about this weighty 18 entirely different standard for diminishment than 19 issue, I would just like to emphasize that 9057 is 19 the people of Florida voted on. That is wrong. 20 not a realistic option. Thank you. 20 And it is not what the Supreme Court has said. 21 MR. MEROS: May it please the Court? Thank 21 Diminish means diminishment. It is a Tier 1 22 you, as always, for your generous time and 22 standard. 23 consideration. 23 I would suggest that this amendment would 24 Your Honor, very clearly and specifically told 24 never have passed had they not had this as Tier 1 25 the Legislature what it must do to remedy what this 25 standards. ACCURATE STENOTYPE REPORTERS, INC. ACCURATE STENOTYPE REPORTERS, INC.
09/05/2014 12:21:34 PM Page 117 to 120 of 134 App. 40830 of 52 sheets 121 123 1 Now, in 1990 the federal courts had to come in 1 district was anything other than a requirement to 2 and say, enough is enough. We are going to combine 2 comply with federal law and now Florida law. 3 minority populations who, by virtue of residential 3 And -- and the very minority representative, 4 discrimination and job discrimination, could never 4 Perry Thurston, is here adopting a north-south 5 elect representatives of their choice. In 1996 5 configuration of that district that is very much 6 that remedy was proven too much because it was too 6 like ours. That is what the law requires, and, 7 much of a noncompact district. 7 Your Honor, that's -- and for all of the reasons, 8 In 1996, a three-judge court remedied that 8 the Court should find that our map conforms to the 9 problem by ordering the Legislature to draw an 9 order of the Court. 10 alternative district. That Legislature, Your 10 MR. ZAKIA: Still good morning, Your Honor. I 11 Honor, was not a Republican Legislature. That 11 will try and rival Mr. Devaney for brevity. 12 Legislature was one where Republicans had a 12 A couple of points. We find ourselves in a 13 majority in the Senate, I believe. Democrats had a 13 very unusual circumstance. It's the reverse that 14 majority in the House. 14 we normally see. Here we have a Legislature 15 That map was voted -- and this is all public 15 attempting to divine the intent of the Court. 16 record, of course -- that map that is the origin of 16 As Your Honor is very familiar, you do it the 17 CD-5 received all but three affirmative votes in a 17 other way around all the time. And just as when 18 20 -- in a 120-member House of Representatives and 18 Your Honor is trying to divine the intent of a 19 a unanimous vote in the Florida Senate. 19 statute, we legislators have to go by what the 20 That map was signed into law by Lawton Chiles, 20 Court said in its final judgment. 21 Democrat. That was a bipartisan effort to remedy 21 And so to us in this special session and 22 the violations that have occurred. Now, what has 22 adopting this remedial map, we were guided by what 23 happened since then? 23 the Court said in its order. And I think that 24 Again, because of that discrimination, the 24 that's very instructive. 25 voters put into place these standards which the 25 I can't go through everything now, but we hear ACCURATE STENOTYPE REPORTERS, INC. ACCURATE STENOTYPE REPORTERS, INC.
122 124 1 Florida Supreme Court has authoritatively 1 from the plaintiffs today something different than 2 interpreted. The plaintiffs want to totally recast 2 what the Court required in its order and 3 that and try to have a situation where you can go 3 inconsistent with a lot of what we heard at the 4 from a -- a near certainty to be able to elect your 4 trial; and that is, that the fault is this 5 candidate, down to a tossup. That's not what 5 north-south configuration; this is the linchpin of 6 diminishment means. 6 some Republican gerrymander. That's Mr. King's 7 And what happens then? It's just like we're 7 argument. 8 back in 1990. And what happens then is, you 8 The reason I asked Dr. Ansolabehere the 9 disburse African-American residents who want to 9 question of whether the criticisms of the 10 elect a candidate of choice, just like Whitfield 10 north-south configuration that he offered today are 11 Jenkins, just like Evelyn Fox who testified today, 11 the same as the ones he offered at trial, and they 12 and disburses them in districts where they can't do 12 were, is because you haven't had the opportunity to 13 that. 13 consider all of that. And Your Honor's order 14 It's back to the days, just like in their 14 nowhere criticizes the north-south configuration. 15 county commission, where, because of white block 15 There were things about District 5 in 9047 16 voting and racial polarization, they don't have a 16 that Your Honor criticized, and as Mr. Meros 17 voice. And it's the Democratic effort, the 17 explained, we fixed them. But nowhere did it say 18 national Democratic effort, to say, it's okay. You 18 that the east-west configuration was required in 19 may not be able to elect a black, but you will get 19 order to make it constitutional. 20 a white Democrat to support you. And that's wrong. 20 To the contrary, Your Honor cited 21 And that's not what these standards say. 21 Dr. Ansolabehere in your order at paragraph 35, and 22 It takes us to a dark day that was remedied. 22 it wasn't comparing Dr. Ansolabehere's map, Romo A, 23 There is continued discrimination, and there is a 23 to 9047, it was comparing 9043, the House version 24 law in place that says that you shall not diminish. 24 of the district that still went from Jacksonville 25 I urge the Court not to accept the notion that that 25 to Orlando, to the ultimate enacted version, 9047. ACCURATE STENOTYPE REPORTERS, INC. ACCURATE STENOTYPE REPORTERS, INC.
31 of 52 sheets Page 121 to 124 of 134 App.09/05/2014 409 12:21:34 PM 125 127 1 And I -- we remember Mr. King with his 1 true, because unless people live on boats on the 2 eloquence standing up here and pointing at the 2 other side, or we just include more water, 3 board and hammering the point that there were 3 that's -- that's why that -- that small point 4 changes made to the House version 9043 that didn't 4 narrows to the width of a highway, because it is a 5 need to be made. And when Your Honor issued your 5 bridge. 6 ruling -- I think it's very telling at page 18 of 6 I hate to, Your Honor, but I agree with 7 Your Honor's final judgment, plaintiffs have shown 7 Mr. Devaney. The Legislature has -- Mr. Devaney 8 that a more Tier 2-compliant district could have 8 says that 9047 cannot be the map under which the 9 been drawn that would not have been retrogressive. 9 general election in November 2014 is conducted. 10 So Your Honor sets up the problem as to why 10 And we agree. The effective date of the law makes 11 you were striking down our District 5 in 9047. 11 that clear. 12 Now what is Your Honor talking about when you 12 Our position has been, and continues to be, 13 talk about this comparison? Not some Gadsden to 13 that it is impossible to conduct an election in 14 Jacksonville district in Romo A, no, sir. The 14 November 2014 under any map other than the 15 plans for -- the very next sentence, the plans 15 previously-enacted map which Your Honor struck 16 proposed by the House of Representatives prior to 16 down. So we agree 9047 should not be put in place 17 conference committee plan 9047 being adopted were 17 for the November election. 18 all more compact and split fewer counties. 18 And indeed, one of the things that I will end 19 And Your Honor says they're not the model of 19 with is, we have sat through this whole hearing. 20 Tier 2 compliance, but that's the comparison that 20 The supervisors filed their schedule. They set 21 the order drew. So when the Legislature goes back 21 forth in their brief the reasons for the schedule. 22 and tries to address Your Honor's concerns -- and I 22 The Secretary of State, I believe, adopted -- came 23 think Your Honor quite frankly indicated in your 23 up with the same schedule. The plaintiffs, in 24 order, you fix the problems; you don't start over 24 their papers, said we were going to seek some new 25 with a new map. That would invite endless 25 schedule, which I still, to this day, have not ACCURATE STENOTYPE REPORTERS, INC. ACCURATE STENOTYPE REPORTERS, INC.
126 128 1 litigation. 1 seen. And there has been no alternative offered. 2 So when we tried to address these problems, 2 So, Your Honor, we would submit that the only 3 what did we do? We didn't simply take 9043 and 3 alternative with regard to the scheduling is that 4 paste it into the map, but we did use that as a 4 the election must occur as precedent allows under 5 guide, because that was -- the plaintiffs hammered 5 the maps that Your Honor struck down, the 6 on it, as to why we didn't need to change 9043, the 6 previously enacted map of November 2014. The 7 north-south configuration. 7 effective date of our law, 9057, contemplates that 8 Your Honor pointed out in the order many times 8 and allows for that, and that's how we think the 9 how, in your view, 9047 compared unfavorably to 9 Court, respectfully we submit, should proceed. 10 9043, a north-south configuration. When the 10 Thank you. 11 Democrats offered their amendment in the special 11 THE COURT: Thank you. 12 session, it had a north-south configuration. 12 MS. RIGGS: May it please the Court. Earlier 13 Nowhere was there any indication from which 13 today Mr. King suggested that the minority voting 14 the Legislature could have reasonably gleaned from 14 protections behind 9057 were a hollow claim. And 15 Your Honor's judgment that we were required to 15 we reject that notion. My client, the NAACP, is 16 adopt a whole new east-west configuration. That is 16 not a pawn in political gamesmanship. In fact, 17 nowhere set forth here, Your Honor, because we 17 they've been active participants in this process 18 believe Your Honor is correct, that it's not 18 since 2011. 19 necessary to do that. And so we believe that we 19 The special session allowed for substantial 20 fairly and fully remedied the problem. 20 public input. My clients sent letters to every 21 A couple other points, we hear about this 21 member of the Senate reapportionment committee and 22 narrowed to the point of one highway. It's a 22 the House committee outlining their position on a 23 bridge. Your Honor, people are on both sides of 23 north-south configuration for the district, the 24 the bridge on both sides, where it gets wider. 24 reasons for it, the history behind it, and their 25 When it gets to the bridge, it's narrow; that's 25 continuing desire for it. ACCURATE STENOTYPE REPORTERS, INC. ACCURATE STENOTYPE REPORTERS, INC.
09/05/2014 12:21:34 PM Page 125 to 128 of 134 App. 41032 of 52 sheets 129 131 1 The NAACP sent four representatives up to 1 election would be warranted, but we don't believe 2 Tallahassee to testify about that. One of those 2 that this one is such a case. 3 witnesses, Dale Landry, the fourth vice-president 3 We're already talking about changing 4 of the Florida NAACP, lives in Tallahassee and 4 districts, changing a district that black voters 5 testified why an east-west configuration was deeply 5 have relied upon. Special elections are low 6 problematic. 6 turnout elections. 7 Ultimately, the amendments can't be 7 And what limited academic studies exist on 8 interpreted to render completely irrelevant the 8 special elections indicate that where we have seen 9 input from affected voters. And that's what the 9 some in -- in municipal elections, it can change 10 NAACP has been saying since the very beginning. 10 the outcome, and it can affect minority 11 We supported these amendments because of the 11 representation. So on that issue, the NAACP urges 12 minority voting protections, and we've said all 12 the Court not to order a special election. Thank 13 along, this is how they should be implemented and 13 you. 14 applied, and here is what we think, as affected 14 THE COURT: Rebuttal? 15 voters. And plaintiffs would -- would render 15 MR. KING: Just a brief one. 16 irrelevant all of that commentary. 16 THE COURT: Okay. 17 The -- the decision to keep the district north 17 MR. KING: Your decision on page 18 also says, 18 south was a valid policy judgment supported by 18 which Mr. Zakia didn't go into, was Congressional 19 public testimony. And it is not an 19 District 5 does not adhere to the Tier 2 standards 20 unconstitutional decision. We have submitted in 20 in Article III, Section 20. It is visually not 21 briefing explanations about why the north-south 21 compact, bizarrely shaped, and does not follow 22 configuration is so important. 22 traditional political boundaries as it winds from 23 Abandoning that configuration ignores the 23 Jacksonville to Orlando. At one point it narrows 24 history and the community that's developed behind 24 to the width of just Highway 17. 25 that configuration of the district. Reconfiguring 25 The point is, I think the Court is not ACCURATE STENOTYPE REPORTERS, INC. ACCURATE STENOTYPE REPORTERS, INC.
130 132 1 the district out to the west would strand thousands 1 foreclosing with that language the ultimate 2 and thousands of voters, so making worse the 2 decision on District 5. It's our position, Your 3 situation that already exists. There are thousands 3 Honor, that if you proceed and bless District 5 the 4 of voters in Seminole County who are now stranded. 4 way they've drawn it in 9047 -- 9057, then that's 5 Shifting the entire district, making it 5 the district we're going to have into perpetuity, 6 represent an entirely different electorate in the 6 because the next time around, the argument is going 7 state would make that situation worse. 7 to be made, well, that was litigated back in 2014, 8 We do believe that the east-west configuration 8 and it was upheld. 9 would diminish the ability of African-American 9 And the fact of the matter is, Your Honor, 10 voters to elect their candidates of choice. This 10 that is not a compact district. And the 11 isn't a game of limbo, how low can you go with the 11 Legislature did not approach this with the 12 black voting age population in order to distribute 12 responsibility they had, which was to do narrow 13 black voters into a Democratic district. That's 13 tailoring, to try to decide a balance between 14 the gamewmanship -- gamesmanship that the NAACP is 14 compactness and honoring the Tier 1 standards of 15 looking to avoid here. 15 minority protection. 16 And, you know, there is just no -- on the 16 And that's why it's not a question of how low 17 record there is no justification for a district out 17 you can go; we're not playing a game of limbo. 18 west replacing the district that goes down to the 18 It's not down to a tossup in east-west 5. The 19 south. The kinds of detailed factors that support 19 black voting performance at the primary was 57 20 a decision to create a minority voting remedy are 20 percent, in the primary. 21 ones that, on the present record, support a 21 There is no question of diminishment. We have 22 north-south configuration. 22 presented the testimony of Dr. Ansolabehere. We 23 Finally, the NAACP is opposed to the 23 have presented the prior trial testimony of their 24 conduction -- the conducting of a special election. 24 witness, Alex Kelly, and they offer nothing but 25 There are certainly circumstances where a special 25 argument. ACCURATE STENOTYPE REPORTERS, INC. ACCURATE STENOTYPE REPORTERS, INC.
33 of 52 sheets Page 129 to 132 of 134 App.09/05/2014 411 12:21:34 PM 133 1 Your Honor, I submit that we've established 2 that District 5 is unconstitutional and that the 3 effort of repairing that situation gives the 4 Legislature the opportunity not only to have one 5 African-American representative, but to have two 6 from Central Florida. And that's not minority 7 protection on their part. 8 Thank you, Your Honor. 9 THE COURT: Mr. Devaney? 10 MR. DEVANEY: No, thank you, Your Honor. 11 THE COURT: Thank you for your arguments, your 12 presentation. I'm aware of the time sensitive 13 nature of this case. And I will do my best to get 14 something out to you as quickly as I can. 15 So thank you very much. We will be adjourned. 16 (The proceedings were adjourned at 12:10 p.m.) 17 18 19 20 21 22 23 24 25 ACCURATE STENOTYPE REPORTERS, INC.
134 1 CERTIFICATE OF REPORTER
2 STATE OF FLORIDA ) COUNTY OF LEON ) 3
4 I, SARAH B. GILROY, Registered Professional Reporter, 5 and Notary Public, do hereby certify that the foregoing 6 proceedings were taken before me at the time and place 7 therein designated; and that the foregoing pages 8 numbered 1 through 133 are a true and correct record of 9 the aforesaid proceedings. 10 11 I further certify that I am not a relative, employee, 12 attorney or counsel of any parties, nor am I a relative 13 or employee of any of the parties' attorney or counsel 14 connected with the action, nor am I financially 15 interested in the action. 16 DATED this day of September, 2014. 17 18 19
20 SARAH B. GILROY, RPR, CRR 21 [email protected] 850-878-2221 22
23 24 25 ACCURATE STENOTYPE REPORTERS, INC.
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' 2 41 [2] - 8:13, 115:12 115:22, 115:23 103:4, 103:10, 41.7 [1] - 115:12 60 [6] - 29:7, 43:14, 104:18, 105:6, 41.99 [1] - 75:5 43:19, 67:24, 67:25, 107:12, 110:13, '10 [1] - 39:5 2 [20] - 5:13, 8:23, 42.4 [1] - 115:24 98:13 111:18, 112:19, '12 [1] - 39:5 32:19, 33:1, 33:16, 43 [1] - 115:11 624 [1] - 65:1 112:24, 115:10, 33:20, 33:23, 54:13, 45 [3] - 62:22, 625 [1] - 65:1 115:12, 117:24, 0 54:14, 54:16, 54:18, 116:18, 116:22 63 [1] - 54:21 118:11, 118:19, 55:18, 55:19, 60:19, 45.11 [2] - 28:9, 128:7, 128:14, 132:4 62:1, 62:7, 113:18, 116:6 7 94 [1] - 80:23 09 [1] - 9:14 125:20, 131:19 46 [2] - 54:19, 62:20 9:00 [1] - 4:10 2-compliant [1] - 46.9 [1] - 115:23 1 125:8 7 [2] - 35:18, 113:5 48 [1] - 111:21 A 20 [4] - 110:5, 70 [1] - 115:17 49.9 [1] - 116:8 113:25, 121:18, 73 [2] - 62:6 1 [13] - 5:14, 9:2, 74 [1] - 62:7 abandoning [1] - 10:18, 50:12, 54:12, 131:20 5 129:23 60:19, 62:1, 62:7, 200 [3] - 53:13, 75 [3] - 55:2, 62:7, abilities [1] - 87:24 100:25, 120:8, 53:25, 58:10 67:21 ability [26] - 19:12, 120:21, 120:24, 200-plus [1] - 54:8 5 [74] - 7:18, 7:20, 78 [1] - 54:22 28:22, 29:13, 29:17, 132:14 2002 [1] - 39:12 7:25, 8:4, 8:12, 8:14, [2] 29:23, 30:2, 37:18, 1.27 [1] - 115:12 2008 - 16:17, 8:23, 9:8, 11:1, 11:4, 8 15:2, 15:6, 17:8, 18:1, 37:24, 39:25, 40:2, 1.31 [1] - 62:15 74:18 2009 [1] - 44:4 18:5, 18:20, 18:24, 51:25, 65:11, 66:7, 10 [28] - 7:17, 8:4, 83 [1] - 65:1 66:22, 67:16, 69:14, 8:12, 8:14, 10:13, 2010 [11] - 16:18, 20:4, 20:16, 20:23, 70:6, 70:24, 71:19, 10:14, 15:2, 15:6, 21:18, 21:21, 36:22, 21:2, 21:7, 22:12, 9 71:21, 79:15, 116:2, 16:21, 17:2, 19:19, 39:3, 39:6, 74:23, 22:19, 25:17, 25:25, 116:12, 117:8, 19:20, 21:23, 22:1, 75:8, 79:23, 120:8 26:1, 27:1, 27:4, 27:7, 27:20, 28:4, 28:21, 117:11, 130:9 22:2, 22:17, 22:20, 2011 [2] - 77:24, 9 [6] - 10:1, 35:21, ability-to-elect [7] - 36:5, 36:21, 36:24, 128:18 29:15, 29:20, 29:24, 35:23, 49:18, 50:5, 28:22, 30:2, 51:25, 38:1, 38:19, 38:21, 2012 [10] - 15:5, 30:4, 31:17, 36:14, 50:7 36:16, 39:15, 39:23, 79:15, 116:2, 116:12, 51:23, 62:18, 74:25, 16:18, 17:7, 21:18, 904 [1] - 15:16 40:13, 40:23, 51:23, 117:8 111:18, 112:11 21:21, 21:22, 38:2, 9040 [1] - 101:14 52:8, 53:2, 57:10, able [13] - 9:4, 9:5, 100 [2] - 67:19, 67:20 39:8, 79:23, 85:16 9043 [13] - 7:11, 9:7, 65:13, 65:14, 66:24, 9:8, 52:8, 65:17, 100th [1] - 63:3 2014 [7] - 4:19, 9:13, 10:14, 15:5, 67:1, 88:24, 89:16, 65:21, 68:11, 73:16, 11 [2] - 36:8, 36:9 118:9, 118:17, 127:9, 15:7, 111:13, 111:14, 89:18, 110:14, 86:23, 109:20, 120:9, 1100 [1] - 55:7 127:14, 128:6, 132:7 124:23, 125:4, 126:3, 122:4, 122:19 [1] 110:16, 111:3, 112:2, 119 [1] - 30:8 23 - 56:1 126:6, 126:10 abridging [1] - 70:3 232 [1] - 54:24 112:24, 114:11, 12 [2] - 20:16, 115:11 9047 [32] - 7:9, 9:7, absolute [2] - 83:21, 25 [4] - 67:24, 68:12, 115:10, 115:15, 120-member [1] - 9:14, 10:2, 15:7, 15:8, 115:19, 124:15, 86:1 121:18 110:3, 110:6 15:9, 15:11, 16:9, absolutely [7] - 12:1, 27 [3] - 113:24, 125:11, 131:19, 127 [1] - 30:8 16:12, 16:16, 17:1, 113:25 132:2, 132:3, 132:18, 47:3, 84:5, 85:4, 12:00 [1] - 109:14 17:5, 17:7, 18:25, 133:2 98:15, 103:20, 106:12 12:10 [1] - 133:16 22:1, 22:2, 22:14, 50 [3] - 66:18, 68:1 academic [1] - 131:7 13 [2] - 9:13, 20:16 3 31:17, 71:25, 72:6, 50-50 [1] - 66:21 accept [1] - 122:25 140 [1] - 54:2 85:16, 111:16, 52 [1] - 111:20 access [2] - 88:4, 150 [1] - 58:10 124:15, 124:23, 3 [10] - 35:7, 35:8, 52-48 [2] - 22:6, 89:9 167 [1] - 54:24 124:25, 125:11, 35:9, 51:14, 54:13, according [2] - 111:23 125:17, 126:9, 127:8, 17 [6] - 16:20, 17:3, 56:20, 76:7, 76:9, 52.68 [1] - 75:4 43:12, 50:7 17:13, 19:6, 72:9, 127:16, 132:4 77:15, 79:8 57 [3] - 15:16, 21:8, account [1] - 8:22 131:24 9057 [51] - 7:13, 3.8 [1] - 38:16 accuracy [1] - 61:9 132:19 8:19, 16:24, 20:16, 17,000 [5] - 51:19, 30 [2] - 55:10, 109:14 58 [1] - 37:15 21:2, 26:2, 26:10, accurate [3] - 46:12, 52:7, 54:7, 56:17, 31 [2] - 8:10, 54:18 5th [4] - 82:14, 29:21, 30:1, 30:4, 92:22, 107:14 79:7 32 [2] - 62:15 86:19, 87:2, 87:11 30:10, 30:19, 30:21, accurately [1] - 18 [3] - 69:3, 125:6, 35 [1] - 124:21 107:15 131:17 32:20, 34:1, 35:9, 39 [1] - 54:24 6 35:16, 40:12, 40:13, achieve [1] - 111:17 1990 [2] - 121:1, 40:23, 41:1, 60:18, acknowledged [1] - 122:8 4 61:12, 61:24, 61:25, 83:19 1996 [3] - 12:2, 6 [13] - 9:18, 9:20, 62:6, 62:19, 63:22, action [2] - 8:7, 121:5, 121:8 9:23, 35:15, 52:1, 67:2, 71:17, 71:25, 74:15 1st [2] - 6:1, 13:10 4 [5] - 34:8, 38:16, 64:22, 65:23, 68:22, 72:4, 73:7, 102:13, active [1] - 128:17 113:6, 115:24, 116:7 69:25, 100:25, 115:7, ACCURATE STENOTYPE REPORTERS, INC.
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actual [4] - 11:7, 79:25, 114:25, 115:4, 63:21, 64:3, 89:23, ANSOLABEHERE 109:1, 109:17, 92:2, 93:13, 98:12 116:24, 117:4, 99:10, 107:12, 114:1 [1] - 14:4 109:21, 110:2, 118:4, add [2] - 69:13, 119:22, 120:6, 122:9, Amendment [6] - Ansolabehere's [1] - 118:5, 124:7, 132:6, 102:9 130:9, 133:5 52:1, 64:22, 65:23, 124:22 132:25 adding [1] - 19:19 African-American 68:22, 69:25, 100:25 answer [2] - 69:11, arguments [1] - addition [3] - 17:20, [24] - 11:11, 19:18, amendment [19] - 101:2 133:11 79:17, 89:9 22:8, 22:9, 29:14, 52:14, 68:24, 86:15, answered [1] - 84:8 armadillo [1] - 58:22 additional [7] - 8:17, 29:23, 37:17, 38:12, 86:25, 87:4, 87:18, anticipating [1] - armadillos [1] - 47:20, 49:5, 59:14, 39:1, 39:25, 40:4, 87:20, 88:12, 88:18, 12:15 58:18 59:17, 89:3, 106:22 48:5, 51:24, 71:19, 89:11, 91:16, 91:22, anyway [1] - 47:24 Article [1] - 131:20 address [7] - 16:9, 79:7, 79:15, 79:20, 99:19, 101:15, Apalachee [1] - articles [1] - 14:24 85:9, 89:23, 90:6, 114:25, 115:4, 102:10, 110:13, 57:14 articulated [1] - 92:1, 125:22, 126:2 116:24, 119:22, 120:11, 120:23, apologize [1] - 60:16 118:4 addressed [2] - 122:9, 130:9, 133:5 126:11 appeal [2] - 81:25, Ashcroft [1] - 65:5 10:23, 19:1 African-Americans Amendments [1] - 82:1 aspect [1] - 19:23 addresses [1] - [17] - 20:24, 29:2, 69:21 appear [2] - 4:8, 4:11 asserted [1] - 83:5 18:23 29:16, 30:2, 31:19, amendments [9] - appeared [1] - 17:20 asserting [1] - 12:10 adequately [1] - 37:20, 37:23, 40:10, 45:4, 69:8, 69:10, appearing [1] - 4:3 assertions [1] - 51:19, 52:7, 54:7, 116:11 69:12, 69:17, 69:24, appendage [5] - 11:24 adhere [1] - 131:19 56:18, 79:14, 79:18, 70:23, 129:7, 129:11 7:19, 32:7, 111:9, assess [1] - 29:1 79:25, 117:4, 120:6 adjourned [2] - American [24] - 112:1, 112:11 assessment [2] - afterwards [1] - 133:15, 133:16 11:11, 19:18, 22:8, appendages [5] - 50:9, 51:12 88:11 Admission [1] - 22:9, 29:14, 29:23, 7:16, 8:20, 17:14, assign [1] - 77:4 age [5] - 20:22, 28:8, 83:23 37:17, 38:12, 39:1, 19:7, 32:11 assigned [1] - 77:11 116:7, 116:19, 130:12 39:25, 40:4, 48:5, admission [2] - appended [1] - 22:19 assistance [9] - agree [6] - 62:10, 51:24, 71:19, 79:7, 83:24, 83:25 applied [1] - 129:14 90:24, 90:25, 91:3, 70:11, 71:16, 127:6, 79:15, 79:20, 114:25, admit [1] - 41:13 apply [1] - 118:16 91:9, 91:15, 92:11, 127:10, 127:16 115:4, 116:24, admitted [3] - 23:6, apportionment [1] - 94:1, 94:5, 94:14 ahead [4] - 4:9, 119:22, 122:9, 130:9, 23:8, 47:23 102:18 assisting [1] - 88:16 24:12, 109:16, 112:14 133:5 adopt [4] - 4:18, appraisal [1] - 51:5 assume [2] - 78:3 aide [4] - 87:19, 88:1, Americans [17] - 98:23, 118:5, 126:16 appreciate [1] - 35:5 assuming [2] - 96:3, 99:11 20:24, 29:2, 29:16, adopted [7] - 64:12, approach [10] - 7:1, 39:14, 61:21 Alachua [4] - 9:21, 30:2, 31:19, 37:20, 71:24, 71:25, 110:24, 20:7, 33:23, 45:13, assure [2] - 103:16, 37:23, 40:10, 51:19, 118:12, 125:17, 31:22, 119:20, 119:25 56:25, 106:25, 104:1 Alex [2] - 116:15, 52:7, 54:7, 56:18, 127:22 114:16, 115:1, 117:6, ATKINSON [1] - 79:14, 79:18, 79:25, adopting [2] - 123:4, 132:24 132:11 108:15 alive [2] - 112:2, 117:4, 120:6 123:22 appropriate [3] - attack [1] - 11:5 117:20 amount [6] - 12:16, adoption [1] - 73:17 5:18, 12:6, 114:3 attempt [1] - 114:19 Allison [1] - 74:10 14:20, 34:19, 34:25, advocate [1] - 81:9 approved [1] - 69:24 attempting [1] - allow [2] - 65:6, 98:16, 110:7 advocated [2] - 98:7, area [29] - 17:24, 123:15 93:16 analyses [1] - 28:24 98:10 22:9, 22:13, 22:21, attended [1] - 48:9 allowed [4] - 52:23, analysis [11] - 14:20, affect [2] - 19:11, 29:2, 30:16, 30:17, attending [1] - 4:7 73:11, 117:10, 128:19 15:14, 16:25, 28:4, 131:10 30:18, 31:4, 31:5, attorneys [1] - 84:12 allows [3] - 36:18, 28:7, 28:21, 46:2, affected [9] - 8:3, 31:6, 31:19, 31:20, August [5] - 5:13, 128:4, 128:8 75:20, 77:9, 77:13, 8:16, 33:9, 34:3, 34:7, 32:8, 37:3, 37:20, 6:1, 86:18, 87:2, almost [2] - 113:9, 86:24 62:18, 78:8, 129:9, 37:24, 53:21, 55:9, 87:11 117:13 analyzed [7] - 15:18, 129:14 55:12, 55:25, 56:20, authoritatively [2] - alter [1] - 33:15 15:22, 16:8, 16:23, affecting [1] - 57:22 57:9, 70:14, 77:5, 65:22, 122:1 alternative [23] - 17:7, 18:19, 20:22 affects [1] - 32:16 77:6, 113:21, 117:4 available [8] - 4:6, 11:13, 13:6, 23:11, announce [1] - 69:22 African [41] - 11:11, areas [8] - 6:23, 5:11, 87:13, 92:9, announced [1] - 6:2 19:18, 20:24, 22:8, 54:8, 99:4, 99:6, 99:9, 10:16, 11:1, 17:14, 92:15, 92:17, 92:22, Ansolabehere [22] - 22:9, 29:2, 29:14, 99:11, 99:12, 99:24, 57:24, 57:25, 120:3 94:12 101:4, 101:5, 102:9, 12:25, 14:9, 16:1, 29:16, 29:23, 30:2, argue [2] - 98:19, average [9] - 16:19, 111:15, 113:3, 115:2, 18:18, 24:19, 24:24, 31:19, 37:17, 37:20, 118:14 37:14, 60:21, 62:2, 115:24, 116:5, 117:6, 25:3, 28:15, 41:20, 37:23, 38:12, 39:1, argued [3] - 98:8, 62:3, 62:6, 62:24, 117:19, 121:10, 42:14, 43:10, 46:22, 39:25, 40:4, 40:10, 98:10, 100:4 63:10, 63:13 128:1, 128:3 48:2, 49:11, 57:6, 48:5, 51:19, 51:24, argument [16] - averages [3] - 62:12, alternatives [12] - 58:1, 71:10, 74:12, 52:7, 54:7, 56:18, 12:15, 34:23, 93:8, 62:13, 107:18 6:11, 13:5, 61:24, 116:13, 124:8, 71:19, 79:7, 79:14, 98:20, 108:10, avoid [1] - 130:15 62:21, 63:6, 63:17, 124:21, 132:22 79:15, 79:18, 79:20, 108:16, 108:24, aware [22] - 38:1, ACCURATE STENOTYPE REPORTERS, INC.
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52:4, 53:25, 57:9, bill [21] - 6:14, 11:22, bridge [6] - 31:21, 46:9, 46:16, 47:9, 8:17, 78:17, 78:22 68:19, 68:25, 70:12, 91:19, 91:21, 91:24, 114:12, 126:23, 51:11, 53:6, 56:19, chance [3] - 39:17, 73:5, 73:10, 74:18, 92:4, 92:9, 92:16, 126:24, 126:25, 127:5 61:21, 66:1, 72:19, 63:18, 74:2 74:23, 78:7, 83:14, 97:16, 104:9, 104:18, brief [7] - 23:16, 72:20, 73:3, 74:22, change [8] - 32:9, 83:16, 94:16, 94:22, 104:20, 104:24, 59:8, 59:17, 71:7, 115:15, 115:17, 32:15, 65:18, 66:5, 94:23, 102:23, 104:25, 105:6, 108:5, 127:21, 131:15 131:2, 133:13 110:15, 111:25, 102:24, 103:4, 104:7, 105:15, 112:16, briefing [1] - 129:21 cases [1] - 14:16 126:6, 131:9 133:12 112:17 briefly [1] - 105:24 cats [1] - 81:6 changed [2] - 8:5, bills [5] - 92:18, 93:1, bring [2] - 8:7, caucus [6] - 90:2, 32:5 B 97:12, 97:20, 97:21 117:16 100:6, 100:7, 100:8, changes [3] - 8:12, bipartisan [2] - broadening [1] - 105:5, 105:15 32:13, 125:4 102:25, 121:21 32:7 caused [3] - 7:16, changing [2] - 131:3, BAILIFF [1] - 60:2 bit [4] - 7:18, 11:3, broader [1] - 43:17 85:20, 117:22 131:4 Baker [2] - 34:16, 49:11, 111:10 brought [1] - 84:12 CD [2] - 37:5, 66:24 Chattahoochee [2] - 79:19 bizarre [1] - 114:8 bulk [1] - 111:10 CD-1 [1] - 33:14 53:2, 53:13 balance [1] - 132:13 bizarrely [8] - 19:5, BVAP [1] - 21:20 CD-10 [3] - 37:9, check [3] - 107:13, Bardos [1] - 47:21 31:17, 32:2, 32:10, BY [31] - 14:8, 16:7, 37:21, 38:25 115:15 base [1] - 43:17 111:3, 111:7, 112:25, 18:17, 25:2, 27:3, CD-2 [1] - 54:18 chief [1] - 94:17 based [13] - 28:7, 131:21 27:18, 28:19, 35:6, CD-5 [37] - 11:8, Chiles [1] - 121:20 28:24, 38:22, 46:10, bizarrely-shaped [5] 40:22, 41:19, 48:1, 11:14, 11:23, 11:24, choice [17] - 9:2, 47:19, 51:8, 52:7, - 31:17, 32:2, 32:10, 49:10, 57:3, 60:11, 12:1, 29:16, 30:1, 20:25, 52:4, 52:9, 67:22, 75:18, 78:2, 111:3, 111:7 60:14, 61:22, 65:2, 30:19, 41:1, 42:3, 65:7, 65:18, 66:8, 84:23, 87:16, 116:14 black [32] - 20:22, 69:6, 70:22, 71:9, 42:25, 43:2, 43:6, 69:16, 70:6, 70:25, baseline [1] - 68:15 21:6, 21:10, 28:8, 74:9, 79:5, 80:17, 43:7, 50:17, 51:17, 71:20, 79:20, 120:7, bases [1] - 116:3 37:12, 37:15, 53:17, 81:16, 83:8, 84:14, 51:20, 53:6, 53:7, 120:10, 121:5, became [1] - 73:7 53:19, 53:21, 57:7, 90:17, 90:22, 101:11, 54:1, 54:15, 56:11, 122:10, 130:10 become [2] - 49:19, 57:11, 57:15, 57:17, 106:2, 107:8 56:21, 57:6, 58:20, choose [1] - 100:1 69:19 58:20, 67:20, 67:25, 71:17, 74:15, 89:10, choosing [1] - becomes [2] - 5:16, 68:5, 74:19, 74:24, C 98:8, 101:5, 102:6, 110:20 10:1 75:5, 78:18, 78:22, 119:9, 119:12, 120:4, circle [2] - 31:4, 31:6 beginning [2] - 115:23, 116:6, 121:17 circumstance [1] - 11:25, 129:10 calculated [1] - 116:19, 119:15, CD-5's [1] - 71:21 123:13 begins [2] - 12:2, 107:17 122:19, 130:12, CDs [1] - 51:23 circumstances [1] - 102:7 calculates [1] - 31:3 130:13, 131:4, 132:19 census [2] - 21:20, 130:25 behalf [8] - 5:5, Campaign [1] - black-preferred [1] - 75:18 cited [1] - 124:20 73:22, 73:23, 74:10, 44:13 37:15 center [7] - 33:6, citizens [1] - 79:8 81:9, 100:4, 110:11, candidate [17] - 9:1, blacks [3] - 36:25, 36:20, 37:2, 41:4, city [6] - 10:4, 63:17, 118:3 22:4, 22:5, 22:8, 37:3, 37:6 56:16, 76:18, 90:21 63:18, 63:21, 64:4, behind [3] - 128:14, 29:14, 37:13, 37:18, blanking [1] - 23:19 central [1] - 89:25 120:1 128:24, 129:24 40:5, 52:4, 52:9, bless [1] - 132:3 Central [9] - 19:13, claim [2] - 114:22, benchmark [4] - 65:17, 66:8, 71:20, block [2] - 120:4, 37:19, 49:12, 56:15, 128:14 39:12, 111:20, 79:20, 120:10, 122:5, 122:15 77:2, 77:5, 111:6, clarification [1] - 115:22, 116:23 122:10 blow [4] - 51:17, 117:11, 133:6 40:7 benefits [4] - 36:13, candidate's [1] - 54:6, 56:11, 56:21 certain [3] - 34:19, classify [2] - 66:20, 69:24, 72:11, 72:13 29:23 blow-up [1] - 56:21 39:15, 100:24 97:6 best [5] - 4:17, candidates [14] - board [1] - 125:3 certainly [17] - 11:4, classifying [1] - 83:16, 85:12, 105:8, 20:25, 22:25, 29:2, boats [1] - 127:1 12:19, 47:12, 82:12, 97:21 133:13 29:5, 29:6, 29:18, books [1] - 14:22 84:8, 84:16, 87:7, Clay [1] - 31:14 better [9] - 12:14, 37:16, 65:8, 65:11, border [2] - 9:8, 87:14, 87:20, 87:25, cleaned [1] - 27:23 62:20, 62:23, 63:2, 75:22, 75:23, 75:24, 58:18 88:13, 88:15, 97:22, clear [3] - 66:22, 110:18, 113:22, 76:22, 130:10 Boston [1] - 51:2 109:8, 114:9, 118:11, 117:6, 127:11 114:1, 115:14, 117:4 Cannon [1] - 93:15 boundaries [5] - 130:25 clearly [2] - 87:4, between [6] - 13:17, cannot [2] - 5:16, 10:5, 19:24, 19:25, certainty [1] - 122:4 118:24 16:15, 30:4, 53:19, 127:8 20:14, 131:22 chair [2] - 5:8, 68:19 client [2] - 43:17, 60:18, 132:13 captured [1] - 33:17 boundary [1] - 20:15 Chair [3] - 5:9, 48:10, 128:15 beyond [2] - 40:18, capturing [1] - 31:13 branches [1] - 69:23 95:3 clients [2] - 49:8, 45:15 case [26] - 15:1, break [1] - 59:1 chairmen [1] - 48:9 128:20 big [2] - 31:14, 58:9 18:1, 20:5, 21:24, breakdown [1] - chairs [2] - 5:7, close [7] - 22:5, bigger [2] - 56:2, 22:15, 29:6, 35:4, 16:14 109:8 62:11, 62:12, 62:14, 113:20 40:18, 41:24, 42:13, brevity [1] - 123:11 challenges [3] - 63:6, 63:7, 117:16 ACCURATE STENOTYPE REPORTERS, INC.
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closely [1] - 64:5 committees [4] - 5:8, 125:20 25:21, 27:6, 27:19, 69:14, 69:18, 70:12 closer [1] - 17:20 6:9, 92:19, 93:12 compliant [1] - 5:22 28:1, 29:15, 30:23, constitutional [6] - Coalition [20] - commonalities [1] - complied [2] - 12:9, 31:12, 36:15, 36:17, 50:12, 50:13, 112:4, 20:18, 21:9, 21:10, 78:12 48:20 39:3, 40:12, 40:23, 118:15, 119:25, 23:17, 25:8, 25:10, communities [3] - complies [3] - 13:3, 42:4, 42:6, 42:20, 124:19 26:10, 27:25, 30:5, 51:24, 53:24, 69:21 13:7, 13:20 51:17, 68:17, 71:24, constitutionally [1] - 32:16, 33:2, 37:22, community [5] - comply [2] - 12:11, 72:6, 72:12, 73:24, 5:22 51:13, 55:20, 64:6, 52:3, 65:10, 65:16, 123:2 88:23, 89:16, 89:18, constitutionally- 66:25, 79:7, 110:12, 116:24, 129:24 Composite [1] - 90:4, 113:4, 113:11, compliant [1] - 5:22 114:5, 115:23 community's [3] - 23:24 116:2, 116:6, 116:17, constrain [2] - 40:14, coastline [1] - 33:9 65:7, 65:11, 65:24 compressed [1] - 116:21, 116:25, 40:24 cognizable [1] - 66:7 compact [36] - 9:6, 119:2 117:9, 123:5, 124:5, constraining [1] - cohesively [1] - 37:1 9:11, 9:19, 9:23, 9:24, concentrations [1] - 124:10, 124:14, 114:25 Coie [1] - 48:23 10:2, 10:11, 30:19, 53:23 124:18, 126:7, constrains [1] - 41:5 collaborate [1] - 32:22, 33:24, 34:5, concept [2] - 31:2, 126:10, 126:12, construct [1] - 15:20 95:20 34:7, 34:9, 34:12, 31:7 126:16, 128:23, constructed [2] - collaboration [1] - 35:8, 35:12, 35:15, concern [9] - 6:23, 129:5, 129:22, 22:20, 63:15 4:16 35:18, 35:21, 36:2, 7:17, 18:23, 22:11, 129:23, 129:25, construction [1] - collaboratively [1] - 36:5, 36:9, 36:19, 45:24, 47:17, 85:17, 130:8, 130:22 22:11 [1] 9:4 53:7, 53:8, 54:12, 85:20, 90:7 configure - 42:12 construed [1] - colleagues [1] - 54:16, 56:8, 56:16, concerned [2] - configured [5] - 65:22 86:15 114:1, 114:3, 114:6, 113:2, 113:8 19:10, 20:1, 22:22, consulted [1] - 77:20 combine [2] - 57:19, 125:18, 131:21, concerning [1] - 38:20, 50:8 consulting [1] - 121:2 132:10 14:16 confirm [1] - 119:7 43:13 [1] combined [1] - 53:24 compactness [21] - concerns [17] - 6:19, conform - 119:7 contacted [2] - 4:7, coming [5] - 4:19, 10:3, 15:20, 17:16, 7:21, 7:24, 8:11, 15:5, conformed [1] - 94:18 46:8, 46:21, 49:7 19:9, 20:15, 26:5, 17:8, 17:10, 18:5, 119:4 contain [1] - 34:15 [1] commentary [1] - 30:3, 31:8, 33:1, 33:8, 19:1, 19:3, 21:25, conforms - 123:8 contains [1] - 23:17 [5] 129:16 35:19, 51:9, 53:10, 54:4, 85:1, 85:4, 85:5, Congress - 39:2, contemplated [1] - commented [1] - 55:17, 60:18, 63:11, 118:14, 125:22 48:15, 65:5, 65:14, 6:13 42:6 63:13, 64:2, 107:14, concerted [1] - 6:19 80:1 contemplates [1] - comments [1] - 113:7, 132:14 conclude [2] - 29:13, Congressional [24] - 128:7 comparable [1] - 10:19, 16:15, 17:8, 45:10 66:4 contention [1] - 11:5 116:9 17:19, 18:1, 18:5, commission [1] - concluded [4] - 17:2, contest [3] - 38:24, 122:15 comparative [1] - 111:2, 116:20, 117:25 18:19, 18:24, 20:4, 61:9, 75:3 60:17 21:23, 22:1, 22:2, commissioner [1] - concluding [1] - 65:6 context [4] - 14:20, 22:16, 44:13, 48:4, 119:24 compare [2] - 30:3, conclusion [5] - 67:9, 68:14 63:12 76:5, 76:6, 76:9, commitment [1] - 18:7, 19:12, 21:13, continue [3] - 27:9, 77:10, 77:15, 77:20, 69:19 compared [6] - 40:1, 111:8 111:17, 113:9 25:24, 26:1, 33:22, 88:24, 89:16, 131:18 committee [49] - 6:7, conclusions [1] - continued [2] - congressman [2] - 39:11, 73:17, 73:25, 39:16, 54:17, 126:9 76:21 116:1, 122:23 compares [1] - 26:10 119:15 82:9, 82:11, 85:3, conduct [2] - 16:25, continues [5] - connects [1] - 51:18 85:21, 86:16, 87:5, comparing [2] - 127:13 110:13, 114:15, consider [8] - 5:17, 88:21, 89:7, 92:18, 124:22, 124:23 conducted [6] - 46:1, 116:11, 119:11, 92:24, 93:1, 93:2, comparison [7] - 75:14, 82:8, 85:23, 13:13, 67:5, 73:1, 127:12 13:6, 13:17, 29:19, 81:13, 90:2, 124:13 93:13, 93:16, 93:17, 86:25, 127:9 continuing [2] - consideration [4] - 93:18, 93:19, 95:10, 39:12, 64:15, 125:13, conducting [2] - 111:7, 128:25 125:20 87:9, 100:11, 102:23, 95:17, 95:18, 98:8, 82:4, 130:24 contrary [2] - 109:1, 118:23 98:23, 99:1, 99:17, compensate [1] - conduction [1] - 124:20 33:19 considered [3] - 100:13, 101:15, 130:24 control [1] - 44:5 competitive [6] - 92:3, 114:13, 117:18 101:20, 101:22, Conference [1] - controlling [1] - 21:8 68:7, 100:15, 100:18, consistent [2] - 102:2, 102:3, 102:11, 69:23 convened [1] - 73:6 100:24, 101:6 47:14, 69:2 102:15, 102:16, conference [1] - convening [1] - 82:2 completely [5] - constituent [1] - 102:25, 103:2, 103:5, 125:17 conversation [1] - 10:23, 13:22, 16:2, 97:17 103:9, 103:12, configurated [1] - 82:3 103:23, 104:2, 104:8, 49:2, 129:8 constituted [2] - 85:24 Convex [13] - 30:12, complexities [1] - 75:4, 75:5 104:10, 125:17, configuration [59] - 30:14, 30:15, 30:18, 56:14 constitutes [1] - 71:1 128:21, 128:22 11:3, 11:8, 11:14, 30:22, 31:13, 35:11, compliance [5] - 8:8, Constitution [7] - Committee [1] - 11:18, 11:19, 11:22, 54:21, 62:5, 107:11, 8:9, 9:2, 66:13, 69:10, 44:13 8:23, 10:4, 10:9, 12:11, 19:21, 25:17, 113:4, 113:5, 115:11 ACCURATE STENOTYPE REPORTERS, INC.
09/05/2014 12:21:34 PM Page 4 to 4 of 18 App. 41638 of 52 sheets 5
convex [1] - 30:16 15:16 83:3, 83:24, 84:2, 89:1, 101:5, 120:17, deal [3] - 6:21, 37:19, copy [8] - 7:2, 24:9, council [1] - 120:1 90:11, 90:14, 101:9, 130:20 84:22 24:12, 24:15, 25:9, Counsel [1] - 92:24 105:22, 105:25, created [6] - 10:14, deals [1] - 65:8 25:12, 57:1, 60:16 counsel [7] - 24:16, 106:17, 106:21, 52:13, 89:3, 89:9, Dean [1] - 93:14 Corcoran [6] - 5:9, 56:24, 60:8, 68:20, 107:1, 107:22, 95:22, 99:12 debate [3] - 6:15, 82:15, 84:9, 87:23, 94:3, 94:19, 106:3 107:24, 108:8, creates [1] - 41:2 83:20, 99:16 91:14, 95:4 count [1] - 105:8 108:13, 108:17, creating [4] - 17:22, debated [1] - 99:19 core [3] - 37:20, counties [9] - 20:1, 109:2, 109:6, 109:10, 22:12, 87:13, 95:21 Debbie [1] - 48:10 37:25, 115:18 20:13, 33:10, 33:22, 109:15, 109:20, creation [1] - 41:3 decide [1] - 132:13 correct [134] - 15:1, 36:18, 58:23, 78:18, 110:2, 110:5, 110:7, criteria [2] - 67:6, decision [19] - 18:14, 17:6, 18:2, 18:16, 119:22, 125:18 128:11, 131:14, 71:2 20:5, 22:15, 32:1, 18:20, 18:21, 25:6, country [3] - 14:17, 131:16, 133:9, 133:11 criticisms [6] - 64:21, 65:23, 81:24, 25:7, 25:15, 25:16, 44:6, 114:14 court [5] - 14:16, 16:12, 22:14, 71:23, 81:25, 85:15, 85:16, 26:2, 26:3, 27:4, county [11] - 10:5, 28:17, 60:2, 83:4, 72:3, 72:4, 124:9 111:1, 111:2, 115:16, 28:10, 32:17, 32:18, 19:24, 19:25, 20:14, 121:8 criticized [1] - 116:3, 129:17, 32:21, 32:23, 32:24, 63:17, 63:19, 63:21, Court [74] - 5:5, 5:11, 124:16 129:20, 130:20, 34:2, 34:4, 34:6, 64:4, 119:23, 122:15 5:25, 6:8, 6:17, 6:20, criticizes [1] - 131:17, 132:2 34:10, 34:11, 34:16, County [46] - 7:20, 6:22, 6:23, 6:25, 7:2, 124:14 deeply [1] - 129:5 34:17, 36:3, 36:4, 9:10, 9:21, 10:8, 7:10, 7:17, 7:20, 8:1, critique [1] - 88:14 defects [1] - 119:1 36:7, 36:12, 36:14, 10:11, 11:15, 17:14, 8:10, 8:14, 9:15, 9:16, CROSS [6] - 25:1, deference [1] - 8:13 39:4, 41:25, 42:1, 17:23, 19:17, 22:19, 9:25, 10:2, 10:9, 41:18, 71:8, 74:8, definition [1] - 66:12 10:10, 10:22, 10:24, 42:8, 42:22, 43:9, 22:20, 31:20, 32:8, 90:16, 101:10 degree [1] - 55:25 12:10, 13:21, 14:11, 49:14, 50:14, 50:15, 33:18, 33:20, 34:16, cross [5] - 41:16, delegation [2] - 48:5, 51:22, 51:23, 52:9, 37:3, 51:19, 53:3, 26:10, 31:16, 46:18, 59:7, 98:14, 101:9, 48:6 46:23, 47:24, 52:17, 52:10, 52:16, 52:17, 53:13, 53:17, 53:18, 107:22 Demings [6] - 22:5, 52:24, 54:6, 61:11, 53:8, 53:9, 53:13, 57:8, 58:11, 58:19, cross-exam [1] - 22:7, 38:8, 38:11, 53:14, 53:23, 54:10, 76:10, 76:23, 76:24, 61:12, 64:21, 65:22, 41:16 38:21, 38:24 66:3, 67:12, 67:14, 54:15, 54:16, 54:19, 76:25, 77:1, 78:22, cross-examination Demings-Webster 54:20, 54:23, 55:1, 68:9, 71:23, 72:16, 79:14, 98:9, 111:10, [2] - 59:7, 98:14 [1] - 38:8 55:2, 56:5, 57:17, 73:1, 81:3, 112:22, 111:11, 112:10, current [1] - 65:12 Democrat [7] - 57:18, 57:20, 57:21, 113:12, 115:13, 119:19, 119:20, cut [2] - 20:13, 77:7 11:12, 16:21, 16:22, 58:21, 58:22, 60:25, 116:1, 117:25, 118:7, 119:24, 119:25, cuts [2] - 19:24, 51:21, 111:21, 118:10, 118:21, 62:1, 62:17, 63:2, 120:2, 130:4 19:25 121:21, 122:20 63:6, 63:22, 65:20, 119:1, 119:2, 119:5, county-wide [1] - Democratic [29] - 119:7, 119:18, 66:2, 66:10, 66:13, 119:23 11:16, 17:2, 17:3, 120:20, 122:1, D 66:19, 68:13, 71:21, couple [6] - 12:22, 21:6, 21:7, 21:19, 122:25, 123:8, 123:9, 72:1, 72:2, 72:7, 71:14, 109:21, 43:13, 43:25, 44:5, 123:15, 123:20, 72:15, 72:19, 72:25, 112:20, 123:12, D.C [1] - 44:25 44:9, 44:11, 44:13, 123:23, 124:2, 128:9, 73:4, 73:22, 74:16, 126:21 D.C.-based [1] - 44:21, 45:7, 45:22, 128:12, 131:12, 74:17, 74:25, 75:12, course [7] - 6:22, 43:13 48:4, 48:14, 68:5, 131:25 76:4, 76:10, 76:11, 7:15, 10:17, 113:11, Dale [1] - 129:3 80:24, 81:5, 86:14, Court's [17] - 6:1, 77:21, 77:22, 77:25, 114:4, 114:17, 121:16 dark [2] - 57:9, 104:17, 105:4, 105:5, 8:22, 12:12, 13:4, 78:1, 78:6, 78:10, COURT [82] - 4:1, 122:22 105:10, 105:15, 13:8, 13:10, 17:25, 79:10, 79:11, 79:15, 4:9, 5:3, 7:3, 7:7, Darren [1] - 11:13 122:17, 122:18, 18:4, 20:4, 22:15, 79:16, 79:21, 79:22, 12:13, 12:20, 12:23, data [21] - 15:19, 130:13 80:1, 80:2, 81:19, 52:21, 65:4, 85:15, 13:24, 16:5, 18:10, 21:12, 21:14, 28:25, Democrats [23] - 81:20, 86:12, 88:20, 110:15, 115:6, 18:15, 23:9, 23:24, 29:10, 29:11, 39:15, 16:15, 21:11, 43:15, 88:21, 88:24, 92:11, 118:14, 119:4 24:1, 24:3, 24:6, 39:21, 75:11, 75:12, 43:17, 43:20, 46:22, 95:17, 98:1, 98:3, courthouse [1] - 24:13, 24:15, 24:23, 75:13, 75:14, 75:18, 56:19, 83:14, 86:10, 98:9, 98:24, 98:25, 57:12 26:23, 27:2, 27:12, 75:19, 75:21, 76:2, 100:15, 100:24, 99:2, 102:1, 102:5, courtroom [1] - 54:4 28:18, 34:24, 40:20, 76:22, 76:24, 77:3 101:22, 103:1, 103:6, 102:7, 102:8, 102:16, courts [1] - 121:1 41:10, 41:13, 41:16, date [4] - 87:11, 103:10, 103:22, 103:12, 104:14, 46:13, 46:25, 47:6, covered [1] - 55:25 127:10, 128:7 104:8, 104:13, 105:11, 109:13, 47:18, 49:4, 57:2, craft [2] - 66:11, days [3] - 6:6, 104:19, 104:21, 126:18 59:2, 59:5, 59:9, 97:14 112:21, 122:14 119:13, 121:13, corrective [1] - 8:7 59:11, 59:14, 59:18, crazy [1] - 58:2 DCC [6] - 44:24, 126:11 correctly [1] - 105:3 [14] 59:22, 60:4, 61:13, create - 19:12, 44:25, 45:20, 48:3, demographic [1] - correlated [1] - 61:17, 61:20, 70:19, 19:20, 19:21, 20:11, 48:9, 48:11 29:9 31:10 70:21, 79:1, 80:4, 22:10, 22:22, 36:23, DCCC [2] - 46:1, demonstrated [1] - corresponding [1] - 80:7, 80:11, 82:23, 56:9, 56:14, 56:15, 48:24 20:10 ACCURATE STENOTYPE REPORTERS, INC.
39 of 52 sheets Page 5 to 5 of 18 App.09/05/2014 417 12:21:34 PM 6
demonstrative [1] - 71:19, 120:9, 120:11, 22:2, 22:12, 22:17, 62:25, 66:6, 66:21, dominant [1] - 37:7 26:9 120:12, 120:21, 25:17, 25:25, 26:1, 66:22, 67:1, 67:3, done [12] - 15:14, denied [1] - 93:15 122:24, 130:9 27:1, 27:4, 27:20, 67:18, 67:20, 67:22, 24:18, 44:21, 77:4, dense [1] - 57:24 diminished [1] - 28:4, 28:21, 29:15, 67:23, 68:1, 68:4, 79:2, 86:21, 93:6, densities [1] - 58:7 69:16 29:20, 29:24, 30:4, 68:7, 68:16, 68:23, 109:14, 114:2, denying [1] - 70:3 diminishment [25] - 31:17, 32:19, 33:1, 70:8, 70:25, 72:21, 116:18, 118:1 depose [1] - 16:1 29:21, 29:22, 39:24, 33:16, 33:20, 33:23, 72:22, 72:23, 76:16, down [18] - 17:12, deposition [4] - 40:6, 64:16, 64:17, 34:8, 35:8, 35:9, 77:7, 77:9, 77:12, 19:7, 31:22, 66:17, 41:25, 46:16, 47:3, 66:12, 66:16, 66:19, 35:15, 35:18, 35:21, 77:20, 79:9, 79:15, 68:1, 68:6, 76:10, 47:23 66:20, 67:8, 67:15, 35:23, 36:5, 36:8, 89:2, 102:6, 111:3, 80:4, 85:9, 99:23, depositions [3] - 68:13, 69:3, 71:1, 36:14, 36:16, 36:21, 111:7, 111:10, 114:11, 115:25, 47:7, 47:8, 47:13 71:2, 71:3, 71:4, 36:24, 38:1, 38:19, 111:11, 111:19, 122:5, 125:11, derived [1] - 107:18 75:20, 115:21, 38:21, 39:15, 39:23, 112:2, 112:8, 113:10, 127:16, 128:5, described [1] - 20:18 120:18, 120:21, 40:13, 40:23, 49:18, 113:20, 114:8, 115:6, 130:18, 132:18 50:5, 50:7, 51:14, 115:13, 116:2, 116:4, describing [1] - 6:7 122:6, 132:21 dozens [1] - 14:23 52:8, 53:2, 54:13, 116:12, 116:24, desire [1] - 128:25 dire [2] - 27:10, Dr [23] - 12:25, 14:9, 54:14, 54:16, 54:18, 117:8, 117:10, 120:9, desires [1] - 81:11 27:16 16:1, 18:18, 24:19, [3] 56:1, 56:20, 57:10, 121:7, 121:10, 123:1, despite [1] - 52:14 DIRECT - 14:7, 24:24, 25:3, 28:15, 80:16, 107:7 66:24, 67:1, 76:7, 123:5, 124:24, 125:8, detailed [1] - 130:19 41:20, 42:14, 43:10, direct [2] - 27:19, 76:9, 77:15, 79:8, 125:14, 128:23, 46:22, 48:2, 49:11, details [2] - 82:10, 80:23, 88:24, 89:16, 129:17, 129:25, 86:20 44:5 57:6, 58:1, 71:10, directed [1] - 42:19 89:18, 110:14, 130:1, 130:5, 130:13, 74:12, 116:13, 124:8, determination [1] - 110:16, 111:3, 130:17, 130:18, 104:3 directing [1] - 77:19 124:21, 124:22, [2] 111:18, 112:2, 131:4, 132:5, 132:10 132:22 determine [6] - directions - 5:19, 112:24, 113:18, district-by-district 28:21, 29:4, 44:20, 78:8 draft [4] - 42:10, 114:11, 115:7, [1] - 77:9 73:15, 107:13, 109:4 directive [1] - 44:18 43:2, 43:5, 91:1 115:10, 115:15, districting [2] - drafted [2] - 91:17, determining [1] - director [1] - 44:10 115:19, 115:22, 15:17, 20:9 13:20 disagree [4] - 47:6, 97:12 115:23, 124:15, districts [44] - 6:24, drafts [1] - 44:24 Devaney [4] - 47:7, 93:5, 97:22 125:11, 131:19, 8:4, 8:14, 8:15, 15:1, 123:11, 127:7, 133:9 disagreeing [1] - draw [12] - 13:11, 132:2, 132:3, 133:2 17:19, 30:2, 32:17, 20:7, 39:25, 42:3, DEVANEY [38] - 65:4 district [164] - 9:5, 34:4, 34:5, 34:7, 12:24, 14:2, 14:8, disburse [1] - 122:9 42:6, 42:14, 42:16, 9:11, 9:17, 10:1, 35:24, 36:19, 37:23, 16:4, 16:6, 16:7, 18:9, disburses [1] - 43:7, 44:1, 49:18, 10:12, 10:16, 17:9, 40:3, 40:4, 45:21, 18:11, 18:17, 23:15, 122:12 50:13, 121:9 17:17, 17:21, 17:23, 45:22, 51:20, 51:25, 23:22, 23:25, 24:2, disclosed [1] - 15:25 drawer [5] - 13:22, 19:4, 19:8, 19:13, 54:12, 55:23, 56:8, 24:5, 24:14, 24:18, discrimination [7] - 20:6, 42:5, 42:24, 19:16, 19:17, 19:22, 56:9, 56:16, 56:18, 24:24, 46:4, 47:12, 69:18, 119:14, 88:8 19:24, 20:8, 20:11, 61:3, 61:24, 62:19, 49:1, 59:16, 59:20, 119:17, 121:4, drawers [1] - 88:5 22:3, 22:4, 22:10, 63:9, 70:2, 76:6, 61:4, 80:9, 80:17, 121:24, 122:23 drawing [19] - 5:11, 22:13, 22:21, 22:23, 77:10, 100:15, 111:6, 81:16, 82:25, 83:7, discuss [2] - 6:10, 13:9, 14:13, 33:6, 26:1, 26:24, 27:1, 113:13, 113:16, 83:8, 83:23, 84:1, 108:24 43:2, 44:16, 45:7, 27:5, 27:7, 27:22, 113:22, 113:25, 84:14, 90:10, 105:24, discussed [4] - 15:2, 70:7, 77:19, 94:20, 27:23, 28:9, 28:23, 114:14, 122:12, 131:4 106:2, 106:16, 118:2, 45:20, 97:1, 107:11 95:5, 95:12, 96:1, 29:16, 29:19, 30:15, Districts [3] - 8:12, 133:10 discussion [2] - 96:17, 100:14, 101:4, 30:18, 30:24, 31:3, 15:6, 54:12 Devaney's [1] - 89:15, 115:21 106:5, 106:11, 118:13 31:5, 31:18, 31:20, divide [3] - 76:19, 48:22 discussions [3] - drawn [21] - 6:6, 32:2, 32:8, 32:10, 110:4 develop [1] - 45:10 78:2, 82:18, 97:14 6:25, 8:24, 11:24, 32:12, 32:13, 32:19, divided [1] - 76:3 15:6, 17:9, 18:25, developed [3] - disperse [1] - 54:7 33:6, 33:12, 33:15, divine [2] - 123:15, 27:21, 112:19, 129:24 disperses [1] - 51:19 20:10, 22:1, 43:4, 34:9, 35:8, 36:9, 123:18 48:19, 52:2, 70:2, dictate [1] - 5:20 distribute [1] - 37:19, 37:25, 39:13, DNC [1] - 48:9 74:15, 85:23, 87:23, difference [3] - 130:12 40:7, 41:2, 41:4, Doctor [5] - 41:24, 95:8, 96:14, 96:15, 31:11, 55:3, 113:7 District [117] - 7:17, 42:10, 42:11, 42:12, 57:4, 60:12, 63:1, 125:9, 132:4 different [14] - 23:7, 7:18, 7:20, 8:23, 9:8, 42:15, 42:16, 43:3, 67:14 31:8, 31:9, 46:20, 9:18, 9:20, 9:23, 10:1, drew [17] - 26:18, 49:12, 49:20, 49:24, document [5] - 63:4, 63:12, 67:4, 10:13, 10:14, 11:1, 27:1, 27:5, 28:12, 50:6, 50:9, 50:11, 39:10, 39:11, 60:7, 73:19, 101:4, 103:13, 11:3, 15:2, 17:8, 18:1, 28:15, 42:10, 42:20, 50:14, 52:2, 52:4, 60:15, 107:10 113:14, 120:18, 18:5, 18:20, 18:24, 42:25, 43:2, 43:4, 52:15, 53:12, 54:7, documentation [1] - 124:1, 130:6 19:19, 19:20, 20:4, 43:6, 46:23, 53:11, 54:8, 55:15, 55:16, 61:7 53:12, 100:22, diminish [11] - 8:25, 20:16, 20:23, 21:2, 55:22, 55:24, 56:2, documents [1] - 6:4 100:23, 125:21 52:2, 52:15, 70:5, 21:7, 21:23, 22:1, 56:6, 56:10, 60:22, ACCURATE STENOTYPE REPORTERS, INC.
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due [4] - 33:3, 56:6, 114:18, 117:22, embedded [1] - 108:25 explained [2] - 87:24 120:17, 121:21, 69:17 evidentiary [1] - 65:14, 124:17 duly [3] - 14:5, 122:17, 122:18, 133:3 emphasize [3] - 108:1 explanations [1] - 80:14, 107:5 efforts [1] - 44:6 118:6, 118:10, 118:19 evidentiary-wise [1] 129:21 during [8] - 78:4, eight [4] - 20:2, emphatic [1] - 69:11 - 108:1 explicitly [2] - 46:15, 82:10, 82:18, 83:1, 30:10, 113:21, 113:22 employed [1] - 14:12 exact [2] - 57:23, 72:9 84:5, 88:8, 92:2, either [7] - 9:23, enact [1] - 73:7 75:1 explore [1] - 89:24 93:23 11:17, 51:21, 53:10, enacted [15] - 7:9, exactly [8] - 6:17, express [2] - 15:4, Duval [11] - 9:10, 83:20, 90:4, 109:8 7:13, 29:20, 39:23, 13:15, 28:1, 52:25, 90:6 11:15, 31:19, 51:19, Eleanor [1] - 43:22 51:17, 62:14, 71:17, 57:19, 107:19, 108:6, extend [1] - 33:13 53:3, 53:12, 53:18, elect [45] - 9:1, 85:16, 88:19, 102:14, 112:7 extends [1] - 19:17 58:11, 58:19, 78:22, 20:24, 22:24, 28:22, 105:6, 118:12, exam [1] - 41:16 extensive [1] - 98:20 98:9 29:14, 29:17, 29:23, 124:25, 127:15, 128:6 examination [4] - extensively [3] - DVD [1] - 86:22 30:2, 37:24, 39:25, encompasses [1] - 17:21, 59:7, 71:15, 14:22, 98:8, 98:11 dynamics [1] - 37:10 40:2, 43:15, 43:20, 76:5 98:14 extent [4] - 10:6, 51:21, 51:25, 52:3, end [3] - 47:4, 79:8, EXAMINATION [11] - 23:3, 40:16, 41:3 E 52:8, 52:13, 56:19, 127:18 14:7, 25:1, 41:18, extreme [1] - 85:20 65:11, 65:17, 65:25, endless [1] - 125:25 71:8, 74:8, 79:4, extremely [1] - 55:23 66:8, 67:16, 68:11, endorsed [1] - 69:25 80:16, 90:16, 101:10, early [1] - 67:5 69:15, 70:5, 70:6, entertain [2] - 6:11, 106:1, 107:7 ease [1] - 109:11 F 70:9, 70:24, 71:20, 6:12 examined [6] - 14:6, east [35] - 7:18, 71:21, 79:15, 79:19, entire [3] - 8:8, 31:3, 25:24, 25:25, 39:21, 11:22, 25:20, 27:6, 116:2, 116:12, 117:8, 130:5 80:15, 107:6 facing [2] - 78:19, 29:15, 33:17, 33:20, 78:22 117:11, 120:6, entirely [3] - 46:20, example [9] - 20:10, 36:15, 36:16, 39:14, 120:10, 121:5, 122:4, 120:18, 130:6 55:21, 57:22, 66:25, fact [22] - 28:8, 42:4, 42:6, 42:20, 30:24, 31:14, 33:4, 122:10, 122:19, entitled [2] - 113:19, 67:19, 72:9, 78:19, 50:16, 51:16, 56:15, 130:10 119:6 78:23, 115:8 42:7, 52:14, 54:2, 72:11, 72:22, 72:23, 55:5, 58:24, 63:20, elected [4] - 37:18, equal [8] - 10:18, except [1] - 48:5 73:24, 77:19, 89:15, 79:25, 119:16, 119:23 10:20, 33:12, 58:2, exception [1] - 82:24 69:13, 79:6, 81:12, 89:20, 113:3, 113:4, 82:7, 86:22, 87:25, election [33] - 4:18, 58:6, 70:3, 110:7, exceptions [1] - 116:6, 116:18, 14:18, 16:18, 16:19, 117:14 112:8 91:15, 94:24, 100:22, 116:20, 116:25, 128:16, 132:9 21:13, 21:17, 29:3, equality [1] - 57:23 excuse [4] - 12:3, 117:9, 124:18, factors [2] - 57:21, 29:8, 29:10, 38:1, Eric [8] - 27:22, 42:3, 42:17, 94:8, 109:7 126:16, 129:5, 130:8, 130:19 38:2, 38:4, 38:8, 42:5, 42:19, 43:3, excused [1] - 106:20 132:18 facts [2] - 46:11, 38:15, 38:19, 38:22, 43:8, 43:11, 43:16 executive [1] - 44:10 east-west [31] - 51:2 38:23, 74:19, 74:20, especially [2] - 32:4, exemplar [2] - 23:4, 11:22, 25:20, 27:6, 74:21, 75:6, 75:18, 57:24 46:23 factual [2] - 13:2, 29:15, 36:15, 36:16, 75:25, 118:9, 119:23, 13:9 essentially [2] - exhausted [1] - 39:14, 42:4, 42:6, 127:9, 127:13, 64:3, 111:12 107:25 failed [4] - 39:9, 42:20, 50:16, 51:16, 127:17, 128:4, 86:8, 89:13, 110:22 establish [3] - 18:11, exhibit [3] - 23:17, 56:15, 72:11, 72:22, 130:24, 131:1, 131:12 47:9, 110:21 23:19, 26:9 fair [1] - 14:20 72:23, 73:24, 77:19, elections [16] - FairDistricts [2] - Exhibit [6] - 23:21, 89:15, 89:20, 113:3, established [8] - 14:18, 16:17, 16:19, 23:22, 23:24, 27:20, 68:20, 69:21 113:4, 116:6, 116:18, 47:11, 113:12, 21:15, 29:5, 37:2, 113:14, 115:2, 35:7 fairly [2] - 17:16, 116:20, 117:9, 37:11, 37:14, 74:23, exhibits [1] - 41:8 126:20 124:18, 126:16, 116:10, 116:12, 74:24, 75:8, 117:2, familiar [1] - 123:16 129:5, 130:8, 132:18 117:19, 133:1 exist [1] - 131:7 131:5, 131:6, 131:8, far [10] - 33:16, evaluate [2] - 45:9, existed [1] - 116:23 eastern [4] - 9:8, 131:9 33:20, 36:23, 53:21, 67:5 exists [1] - 130:3 9:18, 10:16, 19:20 Elections [1] - 4:16 53:24, 75:22, 112:24, evaluated [2] - 33:2, exit [8] - 75:14, ecological [3] - electoral [3] - 14:19, 113:1, 113:7 28:25, 75:11, 75:15 87:10 75:19, 76:2, 76:13, 51:9, 65:16 far-flung [1] - 53:24 evaluation [2] - 76:15, 76:16, 76:17, edges [1] - 10:17 electorate [4] - 15:10, 51:8 77:2 fault [1] - 124:4 educate [1] - 51:6 37:10, 75:4, 75:7, [8] Evelyn [2] - 119:19, expect [1] - 93:19 favor - 86:11, effect [3] - 45:22, 130:6 89:19, 103:7, 104:9, 122:11 experience [4] - 66:7, 85:20 ELMO [2] - 60:7, 104:14, 104:17, evidence [14] - 23:5, 14:12, 43:14, 43:20, effective [2] - 60:15 26:14, 41:8, 46:14, 67:7 105:5, 105:15 127:10, 128:7 eloquence [1] - favorable [1] - 47:20, 49:5, 59:15, expert [4] - 13:21, effects [1] - 16:9 125:2 106:21, 106:22, 14:15, 20:5, 20:6 100:11 effort [11] - 6:19, elsewhere [1] - features [2] - 17:11, 106:23, 108:9, expertise [2] - 40:19, 10:25, 73:15, 110:15, 52:12 108:19, 108:20, 70:15 32:5 ACCURATE STENOTYPE REPORTERS, INC.
41 of 52 sheets Page 7 to 7 of 18 App.09/05/2014 419 12:21:34 PM 8
federal [7] - 52:18, 133:6 functional [3] - 28:3, 66:7 94:19 52:19, 67:9, 70:14, Florida's [2] - 48:4, 28:7, 28:20 groups [1] - 31:18 helped [1] - 43:22 120:13, 121:1, 123:2 66:4 fund [1] - 44:5 growth [1] - 50:1 herding [1] - 81:6 fellow [1] - 116:15 flung [1] - 53:24 future [1] - 49:21 guarantee [1] - 69:14 HERRON [1] - 4:4 felt [2] - 78:8, 102:3 focus [2] - 81:11, guess [7] - 39:8, hi [2] - 71:11, 74:13 few [5] - 5:25, 6:6, 119:9 G 45:24, 82:14, 84:3, high [4] - 21:3, 21:5, 59:13, 71:13, 81:17 focused [3] - 8:6, 90:20, 97:6, 100:21 21:6, 49:19 fewer [1] - 125:18 10:7, 65:15 guidance [1] - 52:20 higher [10] - 9:14, Gadsden [3] - 53:18, figure [2] - 4:10, follow [4] - 5:20, guide [1] - 126:5 19:9, 30:10, 53:9, 79:18, 125:13 109:22 18:12, 84:11, 131:21 guided [1] - 123:22 61:25, 62:22, 62:23, Galvano [5] - 5:8, figures [1] - 21:18 follow-up [2] - 18:12, GUTHRIE [1] - 107:4 63:1, 63:23, 63:24 5:9, 84:10, 87:23, filed [2] - 23:16, 84:11 Guthrie [1] - 5:10 highest [1] - 53:23 95:4 127:20 following [1] - 82:13 guthrie [1] - 107:9 highly [5] - 17:10, game [2] - 130:11, files [2] - 15:16, follows [3] - 14:6, guys [1] - 94:3 19:5, 31:10, 54:14, 132:17 15:17 80:15, 107:6 63:9 gamesmanship [2] - final [11] - 6:20, 43:4, force [1] - 37:9 highway [4] - 31:21, 128:16, 130:14 H 43:7, 50:10, 72:18, forced [1] - 26:20 114:12, 126:22, 127:4 gamewmanship [1] - 73:2, 102:19, 104:14, foreclosing [1] - Highway [4] - 17:13, 130:14 104:18, 123:20, 125:7 132:1 half [4] - 56:3, 81:1, 19:5, 72:9, 131:24 gap [1] - 31:14 115:25, 116:8 finally [2] - 111:15, forgive [2] - 15:23, hired [1] - 51:8 general [8] - 15:21, [1] 130:23 58:15 Hamilton - 78:18 Hispanic [4] - 49:19, 37:1, 37:11, 74:18, hammered [1] - findings [1] - 110:16 form [1] - 70:16 49:20, 50:5, 68:6 74:24, 75:8, 81:4, 126:5 fine [3] - 26:19, formal [1] - 109:12 Hispanics [2] - 37:1, 127:9 hammering [1] - 28:16, 90:3 formed [1] - 44:4 37:4 generally [1] - 67:9 125:3 finger [1] - 57:16 formerly [2] - 44:12, history [6] - 11:7, generated [1] - hand [1] - 43:2 finish [1] - 42:17 51:20 12:1, 44:8, 85:6, 119:12 hang [1] - 4:9 finished [1] - 58:15 formulate [1] - 91:21 128:24, 129:24 generous [1] - hanging [1] - 115:5 firm [1] - 43:14 formulated [1] - hold [2] - 96:19, 118:22 happy [3] - 61:7, first [12] - 8:19, 14:5, 84:23 108:5 geographic [2] - 108:20, 108:24 18:22, 35:3, 53:5, forth [8] - 14:21, hollow [2] - 114:22, 17:11, 32:4 70:11, 71:16, 80:14, 17:15, 51:10, 83:1, hard [2] - 7:2, 57:1 128:14 geographical [1] - 107:5, 108:12, 112:17, 112:18, Harvard [2] - 14:14, Honor [104] - 4:4, 89:5 111:22, 119:10 126:17, 127:21 14:19 5:1, 5:4, 5:13, 5:23, geography [2] - five [4] - 6:10, 93:14, foundation [11] - hate [1] - 127:6 7:8, 7:16, 8:19, 11:2, 19:23, 33:3 109:3, 110:5 18:12, 23:5, 26:17, Hawkins [6] - 27:22, 11:7, 12:3, 12:8, George [1] - 5:5 fix [1] - 125:24 26:19, 27:2, 27:11, 42:3, 42:5, 42:19, 12:21, 12:24, 13:1, gerrymander [1] - fixed [2] - 19:6, 46:5, 47:1, 47:2, 43:8, 43:11 13:15, 14:2, 15:23, 124:6 124:17 47:25, 61:5 headquarters [3] - 16:6, 18:6, 18:9, 23:1, Gingles [1] - 51:5 flag [2] - 31:11, foundation-wise [1] 44:25, 45:20, 48:3 23:15, 23:23, 24:10, GIS [1] - 15:21 55:18 - 47:1 hear [10] - 4:14, 4:24, 24:14, 24:22, 25:10, given [11] - 22:14, flags [1] - 55:22 foundational [1] - 12:17, 13:25, 26:21, 26:8, 26:12, 27:9, 22:15, 48:18, 63:14, flat [1] - 100:25 26:21 108:11, 108:20, 28:11, 34:18, 35:2, 66:6, 79:17, 85:15, 109:21, 123:25, floor [9] - 82:12, four [5] - 20:13, 35:5, 40:17, 41:11, 86:2, 87:25, 98:16, 82:18, 83:20, 103:18, 103:1, 103:9, 107:16, 126:21 46:4, 46:15, 47:21, 99:6 103:23, 104:3, 129:1 heard [5] - 6:14, 49:1, 56:25, 59:1, gleaned [1] - 126:14 104:13, 104:20, 105:6 fourth [1] - 129:3 54:3, 89:15, 119:18, 59:8, 59:16, 60:6, go-around [1] - 124:3 Florida [39] - 5:6, Fox [2] - 119:19, 61:4, 61:6, 64:25, 111:23 19:13, 23:2, 29:3, 122:11 hearing [7] - 4:12, 69:4, 70:17, 71:7, government [3] - 37:19, 40:14, 40:25, framers [1] - 70:12 13:19, 84:6, 87:3, 74:6, 80:9, 82:25, 14:14, 43:15, 43:21 87:6, 108:15, 127:19 44:7, 49:13, 50:25, frankly [4] - 40:19, 90:13, 105:19, governor [2] - 16:18, 56:4, 56:15, 58:18, 89:22, 99:7, 125:23 hearings [1] - 77:24 105:21, 106:24, 71:18 [4] 64:21, 66:13, 67:11, freedom [1] - 36:18 hearsay - 82:22, 107:2, 108:2, 108:15, great [1] - 90:19 82:23, 83:6, 83:22 108:22, 109:3, 109:9, 69:14, 69:18, 69:20, Friday [6] - 6:1, greater [9] - 55:10, 69:22, 74:11, 75:15, 82:11, 87:3, 87:10, heart [2] - 91:23, 109:13, 109:25, 55:13, 64:4, 70:13, 77:1, 77:2, 77:5, 87:11, 88:22 110:15 110:3, 110:11, 85:17, 105:2, 115:9, held [5] - 82:11, 110:25, 116:11, 77:21, 81:15, 104:22, Frieden [1] - 69:7 117:1, 120:13 82:20, 85:18, 87:6, 116:17, 117:13, 111:6, 117:11, front [1] - 64:15 ground [1] - 51:2 105:2 117:16, 118:1, 118:3, 117:20, 119:14, fully [2] - 112:18, group [2] - 37:7, 37:8 118:18, 118:24, 120:19, 121:19, 126:20 hello [1] - 90:18 group's [2] - 66:5, help [2] - 45:10, 120:16, 121:11, 122:1, 123:2, 129:4, function [1] - 55:24 ACCURATE STENOTYPE REPORTERS, INC.
09/05/2014 12:21:34 PM Page 8 to 8 of 18 App. 42042 of 52 sheets 9
123:7, 123:10, III [1] - 131:20 78:14, 78:17 14:16, 34:22, 85:10, kinds [1] - 130:19 123:16, 123:18, imagine [1] - 53:16 inland [1] - 33:16 100:9, 108:18 King [1] - 24:19 124:16, 124:20, impact [3] - 64:11, input [6] - 45:12, iteration [2] - 11:17, KING [32] - 12:3, 125:5, 125:10, 113:12, 113:15 85:10, 86:24, 93:3, 11:18 12:21, 24:10, 24:17, 125:12, 125:19, impacted [1] - 128:20, 129:9 24:21, 25:2, 26:8, 125:23, 126:8, 113:17 instances [1] - 10:20 J 26:15, 26:24, 27:3, 126:17, 126:18, implementation [1] - instead [2] - 12:15, 27:18, 28:19, 35:3, 126:23, 127:6, 18:13 54:11 35:6, 40:22, 41:6, Jacksonville [10] - 127:15, 128:2, 128:5, implemented [1] - instructions [2] - 41:15, 60:9, 70:16, 31:19, 51:3, 78:12, 132:3, 132:9, 133:1, 129:13 6:4, 48:20 79:3, 79:5, 80:3, 89:21, 102:7, 105:9, 133:8, 133:10 important [7] - 11:6, instructive [1] - 90:13, 107:23, 105:12, 124:24, Honor's [5] - 7:25, 51:1, 64:2, 97:24, 123:24 109:13, 109:16, 125:14, 131:23 124:13, 125:7, 98:22, 115:8, 129:22 intend [1] - 26:13 110:3, 110:6, 110:11, Jacksonville-Duval 125:22, 126:15 importantly [2] - intended [1] - 65:15 117:15, 131:15, [1] - 31:19 honoring [1] - 11:9, 114:17 intensely [1] - 51:4 131:17 jagged [3] - 10:15, 132:14 impossible [1] - intent [13] - 11:25, king [7] - 26:13, 10:17, 10:20 hope [2] - 53:9, 127:13 44:18, 45:5, 45:8, 26:20, 34:21, 90:11, Jason [4] - 5:9, 23:1, 117:24 improper [1] - 115:5 46:18, 70:2, 100:14, 118:4, 125:1, 128:13 71:12, 93:25 horizontal [2] - improve [1] - 11:1 100:20, 101:7, 112:7, king's [1] - 124:6 Jeff [2] - 93:25, 94:1 39:13, 39:22 improved [1] - 117:5 117:19, 123:15, KMZ [1] - 15:17 Jefferson [1] - 79:18 hours [3] - 5:25, improvement [1] - 123:18 knocks [1] - 51:18 Jenkins [2] - 119:19, 6:10, 6:15 35:25 interest [1] - 21:8 knowledge [1] - 122:11 House [46] - 5:6, 5:7, include [1] - 127:2 interesting [1] - 83:17 Jo [2] - 60:13, 90:21 6:9, 7:11, 10:6, 11:12, included [4] - 20:18, 115:20 job [1] - 121:4 80:23, 80:24, 80:25, 72:4, 76:6, 104:8 interests [1] - 114:24 L JOHN [1] - 107:4 81:5, 82:5, 82:16, includes [1] - 51:24 interfere [1] - 69:8 84:25, 88:4, 88:8, Johns [3] - 9:9, including [5] - 14:22, interferes [2] - 41:3, 17:12, 19:6 LABASKY [1] - 90:24, 91:16, 92:8, 21:12, 29:11, 44:7, 41:5 joint [1] - 6:7 108:22 92:10, 92:14, 94:11, 103:6 interfering [2] - 94:13, 95:1, 95:17, judge [5] - 50:11, lack [3] - 26:17, 46:5, inconsistent [3] - 17:22, 22:12 95:18, 101:15, 52:17, 99:8, 99:25, 61:4 65:12, 69:2, 124:3 interpret [2] - 111:1, 102:10, 102:15, 121:8 laid [1] - 47:25 incumbent's [1] - 111:2 103:14, 104:13, Judge [1] - 81:6 Landry [1] - 129:3 113:10 interpretation [3] - 104:16, 104:17, judgemental [1] - language [8] - 31:25, incumbents [1] - 52:21, 65:5, 70:23 104:20, 104:22, 65:23 52:18, 52:19, 52:25, 45:22 interpreted [3] - 105:4, 105:7, 106:3, judgment [13] - 6:21, 70:1, 70:4, 132:1 indeed [3] - 29:6, 64:22, 122:2, 129:8 111:15, 112:20, 7:25, 50:10, 52:25, large [4] - 55:24, 72:21, 127:18 intervenor [1] - 4:23 121:14, 121:18, 67:12, 67:22, 68:7, 56:8, 77:8 independently [1] - introduce [1] - 5:7 124:23, 125:4, 72:19, 73:2, 123:20, largely [4] - 30:23, 107:17 introduced [2] - 125:16, 128:22 125:7, 126:15, 129:18 33:3, 55:24, 110:25 indicate [2] - 86:23, 101:15, 102:2 House's [1] - 8:12 judgments [1] - larger [1] - 32:19 131:8 invite [1] - 125:25 houses [1] - 6:14 67:10 largest [2] - 37:7, indicated [7] - 4:5, invited [6] - 83:10, Hull [12] - 30:12, jury [1] - 34:20 56:1 25:5, 81:23, 98:19, 83:15, 83:17, 84:15, 30:14, 30:15, 30:18, justification [1] - last [8] - 4:12, 11:10, 99:8, 101:1, 125:23 84:16, 93:20 30:22, 31:13, 35:11, 130:17 16:24, 70:7, 73:5, indication [1] - involve [1] - 8:12 54:21, 62:5, 107:11, jutting [1] - 9:20 81:1, 81:17, 117:20 126:13 involved [6] - 51:11, 113:4, 113:5 lasted [1] - 98:11 indicators [1] - 63:15 92:24, 93:6, 95:4, lasting [1] - 69:19 individual [1] - 8:4 106:5, 112:16 K law [10] - 52:15, I influence [1] - 65:9 inward [1] - 33:13 70:14, 120:13, inform [2] - 75:20, irrelevant [3] - 13:23, Kathy [1] - 94:16 121:20, 122:24, 75:21 129:8, 129:16 idea [5] - 39:22, keep [4] - 10:8, 123:2, 123:6, 127:10, information [4] - 4:5, isolation [1] - 55:21 50:18, 85:8, 97:11, 81:11, 112:2, 129:17 128:7 97:17 40:1, 72:17, 89:5 Israel [1] - 48:9 keeping [1] - 36:17 Lawton [1] - 121:20 identically [1] - informative [3] - issue [10] - 13:9, Kelly [3] - 116:15, lawyer [1] - 13:22 33:14 62:25, 63:14, 68:3 14:23, 68:10, 72:18, 116:16, 132:24 lawyers [2] - 71:13, informed [2] - 91:18, 92:1, 118:8, 118:19, identified [4] - 10:22, key [3] - 16:17, 29:4, 109:10 72:3, 72:13, 118:14 93:4 119:9, 131:11 37:12 lay [3] - 26:19, 27:2, informing [1] - 67:12 issued [2] - 85:3, identify [2] - 6:19, kind [5] - 17:17, 47:2 23:13 informs [1] - 67:10 125:5 31:14, 37:9, 40:9, lead [3] - 34:25, 35:4, ignores [1] - 129:23 infrastructure [2] - issues [6] - 14:13, 86:19 ACCURATE STENOTYPE REPORTERS, INC.
43 of 52 sheets Page 9 to 9 of 18 App.09/05/2014 421 12:21:34 PM 10
100:18 127:7, 132:11, 133:4 looking [15] - 17:8, 85:2, 85:16, 85:23, Mari [2] - 60:13, leader [6] - 11:12, Legislature's [7] - 17:17, 23:10, 23:11, 85:24, 86:15, 86:21, 90:21 80:24, 81:5, 81:8, 5:20, 11:18, 13:18, 30:18, 37:11, 51:13, 86:24, 87:13, 87:22, Mari-Jo [2] - 60:13, 84:25, 95:1 18:13, 79:13, 113:6, 55:22, 78:11, 98:7, 88:3, 88:4, 88:8, 88:9, 90:21 leaders [1] - 69:20 114:7 107:10, 108:13, 88:12, 88:14, 88:18, Marion [3] - 119:19, leadership [2] - 82:8, length [2] - 54:3, 113:1, 114:6, 130:15 88:19, 88:23, 89:1, 119:24, 120:1 93:16 54:4 looks [2] - 24:8, 58:2 89:8, 89:12, 91:1, Maryland [1] - 55:13 leading [3] - 34:19, Leon [7] - 33:18, lose [1] - 38:14 91:4, 91:19, 94:20, match [1] - 107:18 34:20, 34:24 33:19, 33:22, 53:17, loss [1] - 33:19 95:5, 95:8, 95:12, materials [1] - 15:14 leads [1] - 57:23 57:8, 58:11, 79:18 low [3] - 130:11, 95:15, 95:16, 95:18, matter [10] - 45:17, League [7] - 60:18, less [11] - 10:15, 131:5, 132:16 95:21, 95:22, 96:1, 48:17, 52:15, 53:7, 62:1, 62:6, 62:7, 30:19, 32:22, 33:24, lower [4] - 54:18, 96:2, 96:3, 96:10, 58:24, 67:17, 78:9, 68:20, 73:22, 73:23 54:16, 65:17, 65:21, 54:21, 63:2, 63:23 96:11, 96:13, 96:14, 83:5, 110:19, 132:9 leaning [7] - 16:21, 68:2, 68:10, 115:9, loyal [3] - 81:13, 96:15, 96:17, 96:21, matters [1] - 46:19 16:22, 17:3, 17:4, 118:2 104:21, 105:4 96:23, 97:1, 97:24, mean [11] - 31:25, 22:3, 111:14, 111:21 lessen [1] - 120:12 98:7, 98:12, 98:18, 35:7, 37:17, 46:25, learn [5] - 45:1, lessened [2] - 65:25, M 98:23, 99:2, 99:5, 61:8, 62:22, 66:14, 81:21, 82:7, 82:19, 67:18 99:23, 100:1, 100:14, 68:23, 83:3, 86:10, 112:13 letters [1] - 128:20 100:17, 100:23, 108:8 machinations [1] - learned [3] - 81:18, level [7] - 52:19, 101:3, 101:14, 102:2, meandered [1] - 57:7 111:22 102:3, 102:4, 102:6, 82:10, 82:21 52:23, 68:15, 77:13, means [8] - 52:18, Madison [4] - 76:24, least [6] - 4:23, 5:1, 77:14, 94:25 102:14, 102:17, 52:25, 64:17, 67:8, 76:25, 78:18, 79:19 34:21, 87:21, 100:18, levels [2] - 43:15, 103:4, 103:10, 120:12, 120:21, 122:6 main [3] - 17:10, 104:14, 106:5, 117:23 43:21 Mears [1] - 94:17 32:13, 37:9 106:11, 110:13, leaves [1] - 110:25 limbo [2] - 130:11, measure [3] - 30:22, maintain [2] - 33:12, 110:19, 112:15, left [1] - 7:10 132:17 33:9, 71:3 116:22 114:4, 114:6, 114:7, legal [5] - 13:8, 18:7, limited [3] - 12:16, measurements [2] - maintained [1] - 115:24, 116:5, 118:8, 45:11, 88:6, 102:4 34:25, 131:7 63:5, 107:15 33:14 118:12, 118:13, legally [1] - 13:3 limiting [1] - 87:21 measures [9] - 9:22, majority [4] - 21:1, 119:1, 121:15, legislation [1] - linchpin [1] - 124:5 15:20, 17:16, 30:17, 37:4, 121:13, 121:14 121:16, 121:20, 97:15 line [3] - 9:21, 55:6, 31:5, 31:8, 34:9, 51:9, makeup [1] - 102:25 123:8, 123:22, legislative [6] - 65:24 64:2 manage [1] - 112:1 124:22, 125:25, 11:10, 13:7, 35:16, lines [4] - 86:8, measuring [1] - 71:2 map [188] - 4:13, 126:4, 127:8, 127:14, 52:22, 81:11, 83:2 86:10, 89:13, 97:7 meeting [13] - 48:14, 4:18, 5:2, 5:10, 5:15, 127:15, 128:6 legislator [5] - 11:21, linked [1] - 31:18 82:11, 85:21, 87:5, 5:22, 6:6, 6:11, 6:16, Map [6] - 25:9, 25:11, 50:19, 50:21, 50:22, listed [1] - 71:22 88:22, 89:7, 93:11, 6:17, 7:8, 7:9, 7:10, 30:5, 44:1, 44:24, 50:24 litigated [2] - 52:19, 96:5, 97:1, 97:5, 97:7, 7:11, 7:13, 7:16, 8:2, 51:13 legislators [4] - 65:9, 132:7 97:10, 98:11 8:3, 8:5, 8:6, 8:13, map-drawer [1] - 82:20, 85:2, 123:19 litigation [2] - 44:7, meetings [27] - 10:14, 11:14, 12:4, 13:22 Legislature [59] - 126:1 39:11, 44:25, 45:19, 13:3, 13:7, 13:9, map-drawing [6] - 4:14, 4:21, 5:14, 5:15, live [1] - 127:1 74:1, 82:5, 82:9, 13:11, 13:17, 13:18, 13:9, 14:13, 95:12, 5:24, 6:2, 6:16, 6:18, lives [1] - 129:4 82:19, 83:11, 83:15, 13:20, 13:22, 14:13, 106:5, 106:11, 118:13 7:23, 8:21, 11:21, living [1] - 77:21 83:19, 84:7, 84:10, 15:5, 15:18, 16:9, mapmaking [1] - 13:11, 16:24, 21:25, local [1] - 51:4 84:13, 84:15, 84:18, 17:7, 20:5, 21:10, 15:21 32:6, 32:9, 39:11, localized [1] - 57:25 84:19, 84:23, 84:24, 23:11, 23:19, 24:1, maps [42] - 6:10, 46:19, 49:18, 50:8, lock [1] - 99:22 85:2, 85:17, 93:19, 24:3, 24:6, 24:7, 6:24, 9:14, 10:19, 50:19, 68:21, 71:18, look [27] - 24:9, 29:9, 93:20, 96:19, 97:7, 25:12, 25:22, 25:24, 11:20, 14:20, 20:19, 73:6, 73:10, 73:11, 30:21, 34:3, 35:7, 97:25 26:11, 26:25, 27:7, 20:20, 23:4, 23:6, 73:16, 73:25, 80:21, 35:21, 35:23, 35:24, member [9] - 92:9, 27:13, 28:13, 29:20, 23:7, 23:18, 24:11, 81:18, 83:12, 84:3, 35:25, 36:1, 39:17, 92:10, 94:5, 94:13, 32:16, 33:2, 36:19, 25:6, 25:13, 25:16, 87:15, 87:16, 92:10, 50:4, 50:5, 56:21, 96:12, 103:2, 105:12, 37:22, 42:5, 42:20, 25:17, 26:13, 26:18, 95:20, 96:22, 98:24, 57:8, 62:12, 63:9, 120:1, 128:21 42:24, 44:17, 45:12, 26:22, 27:5, 27:20, 99:14, 102:14, 105:5, 63:18, 63:19, 64:5, members [32] - 6:2, 45:14, 46:24, 48:3, 27:25, 28:5, 28:22, 110:22, 111:5, 64:14, 70:1, 92:17, 48:4, 48:5, 48:15, 48:19, 49:18, 52:7, 29:25, 33:2, 37:22, 111:22, 117:7, 92:23, 114:5, 117:22 82:5, 83:11, 85:6, 52:12, 55:10, 55:20, 38:20, 45:7, 45:9, 117:21, 118:16, looked [13] - 15:15, 89:20, 89:25, 90:3, 56:7, 62:15, 63:13, 45:10, 45:11, 46:2, 118:25, 121:9, 90:6, 93:2, 94:12, 15:19, 17:17, 21:15, 64:7, 64:12, 66:25, 46:22, 51:8, 52:22, 121:10, 121:11, 21:17, 21:19, 21:20, 95:10, 95:20, 99:1, 71:17, 79:7, 79:13, 64:6, 89:6, 111:15, 121:12, 123:14, 26:4, 29:3, 72:22, 99:7, 99:17, 100:5, 79:20, 79:24, 83:12, 115:2, 128:5 125:21, 126:14, 103:6, 103:9, 103:17, 115:14, 116:17 84:17, 84:19, 84:22, ACCURATE STENOTYPE REPORTERS, INC.
09/05/2014 12:21:34 PM Page 10 to 10 of 18 App. 42244 of 52 sheets 11
103:21, 103:25, 11:12, 17:23, 19:13, 12:24, 13:1, 14:2, N next [2] - 125:15, 104:2, 104:7, 104:9, 19:21, 20:11, 21:3, 14:8, 15:23, 16:4, 132:6 104:16, 104:17, 21:9, 22:10, 22:23, 16:6, 16:7, 18:6, 18:9, nine [4] - 32:16, 105:4, 105:8, 105:14 36:23, 40:13, 40:15, 18:11, 18:17, 23:1, NAACP [12] - 59:10, 32:17, 113:16, 113:25 memo [3] - 82:14, 40:24, 40:25, 41:1, 23:15, 23:21, 23:22, 69:23, 74:11, 120:15, nobody [3] - 4:5, 4:7, 86:17, 87:2 41:4, 42:12, 49:12, 23:25, 24:2, 24:5, 120:16, 128:15, 73:23 memory [1] - 47:13 52:3, 56:10, 57:20, 24:10, 24:14, 24:17, 129:1, 129:4, 129:10, noncompact [8] - mention [1] - 82:4 58:7, 58:9, 58:14, 24:18, 24:21, 24:24, 130:14, 130:23, 17:10, 17:16, 53:12, MEROS [57] - 5:1, 58:16, 65:7, 65:10, 25:2, 26:8, 26:12, 131:11 54:14, 63:9, 112:25, 5:4, 7:5, 7:8, 12:8, 65:16, 65:24, 66:5, 26:15, 26:16, 26:24, name [4] - 71:12, 114:14, 121:7 12:19, 13:1, 15:23, 66:7, 66:17, 66:22, 27:3, 27:9, 27:18, 80:22, 101:17, 101:19 none [2] - 15:24, 18:6, 27:9, 40:17, 67:17, 68:11, 68:23, 28:11, 28:19, 34:18, Nancy [1] - 48:8 83:17 41:12, 41:17, 41:19, 69:9, 69:13, 69:15, 35:2, 35:3, 35:6, narrow [2] - 126:25, nonfoundational [1] 46:15, 47:3, 47:21, 69:21, 70:9, 79:9, 40:17, 40:22, 41:6, 132:12 - 34:22 48:1, 49:10, 56:23, 81:13, 84:25, 89:2, 41:11, 41:12, 41:15, narrowed [1] - nonpublic [5] - 82:5, 57:3, 58:24, 59:4, 94:18, 94:19, 114:21, 41:17, 41:19, 46:4, 126:22 82:8, 85:1, 85:17, 60:6, 60:10, 60:11, 116:22, 120:14, 46:15, 47:3, 47:12, narrows [2] - 127:4, 106:11 60:13, 60:14, 61:6, 121:3, 123:3, 128:13, 47:21, 48:1, 49:1, 131:23 nonretrogression 61:16, 61:19, 61:22, 129:12, 130:20, 49:10, 56:23, 57:3, nation [1] - 114:15 [1] - 114:18 64:25, 65:2, 69:4, 131:10, 132:15, 133:6 58:24, 59:4, 59:8, national [1] - 122:18 normal [2] - 97:20, 69:6, 70:20, 70:22, minute [4] - 27:11, 59:16, 59:20, 60:6, National [3] - 43:25, 97:22 71:6, 82:22, 83:22, 53:2, 56:21, 118:2 60:9, 60:10, 60:11, 44:2, 44:11 normally [1] - 123:14 90:15, 90:17, 90:21, minutes [9] - 59:3, 60:13, 60:14, 61:4, nationally [1] - 75:14 north [35] - 7:19, 90:22, 101:8, 106:24, 59:24, 96:24, 98:13, 61:6, 61:16, 61:19, nature [3] - 34:21, 11:3, 11:8, 11:14, 107:2, 107:8, 107:21, 109:4, 109:14, 61:22, 64:25, 65:2, 105:1, 133:13 11:17, 11:19, 12:11, 108:2, 108:11, 109:3, 109:22, 110:3, 110:6 69:4, 69:6, 70:16, NCEC [8] - 27:22, 19:6, 30:24, 30:25, 109:7, 109:25, model [2] - 8:23, 70:20, 70:22, 71:6, 43:11, 43:12, 43:16, 32:4, 36:17, 56:13, 117:13, 118:21 125:19 71:7, 71:9, 74:6, 79:3, 44:1, 44:3, 44:23, 58:17, 58:20, 71:24, Meros [3] - 5:5, 46:8, moment [1] - 108:5 79:5, 80:3, 80:9, 48:2 72:5, 72:12, 76:5, 124:16 Monday [3] - 23:16, 80:17, 81:16, 82:22, near [2] - 49:20, 76:19, 88:23, 89:20, messiness [1] - 82:13, 87:6 82:25, 83:7, 83:8, 122:4 90:3, 116:23, 123:4, 56:14 money [2] - 49:6, 83:22, 83:23, 84:1, necessarily [6] - 124:5, 124:10, met [3] - 96:20, 49:9 84:14, 90:10, 90:13, 46:12, 63:3, 63:14, 124:14, 126:7, 96:23, 98:4 monstrosity [1] - 90:15, 90:17, 90:21, 66:6, 66:22, 68:3 126:10, 126:12, metric [2] - 30:13, 56:9 90:22, 101:8, 101:11, necessary [3] - 5:18, 128:23, 129:17, 35:19 month [1] - 73:7 105:19, 105:24, 108:24, 126:19 129:21, 130:22 106:2, 106:16, metrics [16] - 17:1, morning [18] - 4:25, need [10] - 8:2, 8:5, North [4] - 29:2, 30:14, 34:5, 34:10, 12:16, 14:9, 14:10, 106:24, 107:2, 107:8, 8:7, 8:15, 27:16, 77:1, 77:5, 77:21 107:21, 107:23, 35:11, 35:12, 35:14, 25:3, 25:4, 41:20, 91:10, 96:7, 110:9, north-south [23] - 36:2, 36:6, 36:11, 41:21, 71:10, 74:10, 108:2, 108:11, 125:5, 126:6 11:3, 11:8, 11:14, 108:15, 108:22, 53:7, 113:1, 113:7, 74:12, 80:18, 80:19, negotiations [1] - 11:17, 11:19, 12:11, 113:23, 113:24, 90:19, 90:20, 101:12, 109:3, 109:7, 109:13, 7:12 58:20, 71:24, 72:5, 109:16, 109:25, 113:25 101:13, 123:10 never [15] - 23:4, 72:12, 88:23, 89:20, 110:3, 110:6, 110:11, Miami [1] - 89:21 most [11] - 11:9, 23:6, 50:24, 77:20, 90:3, 123:4, 124:5, 117:13, 117:15, middle [3] - 7:8, 47:22, 58:19, 58:25, 77:23, 78:11, 88:11, 124:10, 124:14, 7:15, 19:9 63:14, 97:16, 104:21, 118:2, 118:21, 94:15, 94:21, 95:2, 126:7, 126:10, 123:10, 131:15, might [9] - 45:6, 105:4, 105:9, 111:14, 100:8, 117:18, 126:12, 128:23, 50:6, 59:1, 67:4, 114:14 131:17, 133:10 120:24, 121:4 129:21, 130:22 MS [6] - 59:10, 78:12, 78:19, 78:21, mostly [2] - 24:7, nevertheless [1] - Northeast [1] - 91:10, 94:2 77:17 59:13, 74:9, 78:25, 53:11 119:14 105:21, 128:12 mildly [1] - 85:19 motion [2] - 86:4, new [9] - 6:24, 16:2, northeast [1] - 57:13 multiple [2] - 16:19, miles [9] - 53:13, 86:7 21:2, 46:24, 65:14, northern [4] - 19:4, 47:13 53:25, 54:2, 54:9, motivation [1] - 125:25, 126:16, 20:8, 20:12, 77:15 municipal [1] - 131:9 54:24, 54:25, 55:7, 44:21 127:24 note [5] - 7:25, 8:11, must [3] - 43:24, 58:10 move [5] - 33:16, newly [2] - 7:13, 13:24, 15:24, 115:20 118:25, 128:4 mindful [1] - 91:15 33:20, 70:17, 86:13, 10:14 noted [5] - 6:20, MyDistrictBuilder minorities [3] - 70:4, 103:17 newly-created [1] - 8:10, 10:3, 16:5, 72:7 [5] - 15:18, 21:14, 70:24, 75:23 MR [145] - 4:4, 5:1, 10:14 nothing [5] - 13:4, 61:6, 61:8, 61:15 minorities' [1] - 70:9 5:4, 7:5, 7:8, 12:3, newly-enacted [1] - 88:15, 100:1, 105:21, minority [60] - 9:1, 12:8, 12:19, 12:21, 7:13 132:24 ACCURATE STENOTYPE REPORTERS, INC.
45 of 52 sheets Page 11 to 11 of 18 App.09/05/2014 423 12:21:34 PM 12
notice [5] - 16:1, occasion [1] - 52:13, 68:16 13:22, 32:13 5:10 96:25, 97:9, 97:18, 107:13 opportunity [39] - ought [2] - 48:19, participation [2] - 98:16 occur [2] - 84:8, 9:1, 16:1, 17:23, 118:11 27:14, 95:10 noticeably [1] - 128:4 19:13, 19:22, 20:3, ourself [2] - 81:13, particular [1] - 97:15 30:19 occurred [3] - 82:13, 20:11, 20:24, 21:4, 108:23 partisan [8] - 11:25, noticed [2] - 97:13, 86:3, 121:22 22:16, 36:24, 41:1, ourselves [2] - 92:5, 16:9, 16:25, 44:12, 98:1 occurs [1] - 36:21 41:2, 41:4, 49:12, 123:12 44:18, 45:5, 45:8 notion [3] - 8:1, odd [3] - 19:7, 40:10, 50:6, 50:8, 50:11, outcome [2] - 38:2, parts [1] - 8:1 122:25, 128:15 57:25 52:3, 65:25, 66:17, 131:10 party [9] - 21:19, notwithstanding [1] offer [6] - 26:13, 70:3, 70:9, 73:1, 79:9, outcomes [1] - 29:3 38:22, 81:13, 83:23, - 81:12 41:8, 108:7, 109:8, 79:19, 89:2, 89:4, outlined [1] - 86:20 83:25, 84:1, 86:8, November [5] - 110:17, 132:24 89:23, 90:6, 90:8, outlining [1] - 128:22 86:10, 89:13 118:8, 127:9, 127:14, offered [13] - 23:4, 91:22, 92:7, 93:4, outnumbered [2] - Party [1] - 111:5 127:17, 128:6 46:17, 72:11, 78:4, 93:9, 117:10, 120:10, 74:19, 74:24 Party's [1] - 44:5 nowhere [4] - 83:4, 92:6, 94:18, 124:12, 133:4 outside [2] - 83:4, passage [3] - 96:21, 124:14, 124:17, 102:10, 110:21, opposed [2] - 9:13, 112:15 98:24, 99:18 126:13, 126:17 124:10, 124:11, 130:23 overall [2] - 15:10, passed [6] - 6:16, nub [1] - 22:18 126:11, 128:1 opposing [1] - 24:15 21:19 16:24, 68:22, 103:11, number [13] - 9:22, offhand [1] - 63:25 opposition [3] - overrule [5] - 13:25, 104:12, 120:24 10:15, 20:1, 20:14, office [4] - 48:22, 81:14, 89:17, 89:19 23:9, 47:18, 49:5, passing [1] - 6:20 23:19, 63:16, 63:20, 94:18, 94:19, 97:3 option [1] - 118:20 61:20 past [1] - 14:17 64:8, 67:15, 71:23, officer [1] - 119:25 options [2] - 5:17, overruled [5] - 16:5, paste [1] - 126:4 75:1, 79:13 offices [1] - 38:24 13:14 28:18, 40:20, 65:5, patch [1] - 111:9 numbers [5] - 21:20, often [1] - 57:23 Orange [14] - 11:15, 84:4 pawn [1] - 128:16 21:21, 63:7, 76:14, old [2] - 76:6, 76:9 17:14, 17:23, 19:8, own [3] - 46:1, 65:7, Pelosi [1] - 48:8 107:18 omit [3] - 57:11, 19:17, 22:19, 22:20, 99:11 people [10] - 58:18, numerical [1] - 17:15 57:12 31:20, 37:2, 51:18, 69:20, 75:6, 81:9, numerically [2] - once [2] - 12:14, 76:10, 76:23, 77:1, P 93:13, 93:14, 94:7, 9:12, 10:1 75:23 98:9 120:19, 126:23, 127:1 numerous [2] - one [46] - 7:17, 10:7, order [30] - 4:12, perceived [1] - 119:1 p.m [1] - 133:16 14:16, 64:21 16:12, 20:1, 24:1, 5:13, 6:1, 6:8, 8:7, percent [29] - 10:18, packing [1] - 40:10 31:18, 34:3, 34:6, 12:10, 12:12, 13:4, 21:9, 29:7, 37:15, page [9] - 5:13, 7:25, O 37:13, 39:9, 39:10, 13:8, 13:10, 24:21, 38:16, 54:24, 55:2, 8:10, 8:13, 64:24, 53:10, 54:5, 59:16, 33:11, 33:18, 56:10, 55:10, 66:18, 67:20, 65:1, 69:3, 125:6, 60:7, 60:9, 63:13, 60:2, 118:11, 119:5, 67:21, 67:24, 67:25, oath [8] - 41:25, 131:17 64:5, 67:4, 68:20, 119:6, 119:7, 123:9, 68:1, 68:12, 75:4, 42:2, 42:13, 53:6, 71:12, 73:5, 74:4, 123:23, 124:2, paid [5] - 44:1, 44:3, 75:5, 111:20, 111:21, 85:25, 86:6, 92:13, 86:2, 88:18, 90:4, 124:13, 124:19, 48:21, 48:22, 48:25 115:17, 115:24, 119:20 100:1, 100:8, 107:9, 124:21, 125:21, Panhandle [2] - 33:4, 115:25, 116:8, object [12] - 12:3, 108:3, 109:4, 112:16, 125:24, 126:8, 33:11 116:19, 116:22, 13:2, 13:23, 15:25, 113:18, 114:14, 130:12, 131:12 papers [1] - 127:24 132:20 23:2, 26:16, 27:9, [3] paragraph [1] - 116:3, 118:6, 120:1, ordered - 6:8, percentage [5] - 28:17, 34:20, 41:10, 121:12, 126:22, 10:24, 13:21 124:21 55:3, 66:5, 68:2, 68:3, 46:4, 70:16 127:18, 129:2, 131:2, ordering [1] - 121:9 Parkway [1] - 57:15 74:25 objection [16] - 4:21, [30] 131:15, 131:23, 133:4 organize [1] - 59:4 part - 8:25, 19:4, percentages [1] - 12:5, 13:25, 15:24, ones [7] - 56:20, orient [1] - 56:22 19:16, 19:20, 20:8, 40:9 18:6, 23:9, 27:13, 63:24, 104:1, 105:9, origin [1] - 121:16 20:12, 22:19, 45:7, perform [3] - 51:12, 27:15, 40:17, 41:14, 120:4, 124:11, 130:21 original [2] - 25:22, 45:16, 57:9, 57:13, 56:11, 67:23 47:18, 49:1, 61:4, 58:4, 58:6, 58:7, 58:9, open [1] - 118:13 65:12 performance [4] - 61:20, 70:21, 82:22 operates [1] - 103:13 originally [2] - 19:10, 58:12, 58:16, 61:10, 16:25, 45:21, 46:2, objections [5] - 4:13, operation [1] - 43:24 25:21 66:12, 68:22, 90:1, 132:19 4:22, 12:7, 12:17 95:12, 96:1, 96:7, operatives [3] - Orlando [9] - 31:20, performed [3] - 29:1, objective [1] - 44:19 44:12, 45:20, 48:10 31:22, 37:20, 37:24, 96:12, 96:17, 118:12, 75:11, 78:11 obligation [3] - 5:21, 133:7 opinion [4] - 89:8, 51:3, 102:7, 124:25, performing [3] - 50:13, 81:8 92:6, 99:9, 118:15 131:23 participants [1] - 49:20, 54:6, 67:23 observed [1] - 32:6 128:17 opinions [2] - 72:10, Orlando-Orange [1] perhaps [2] - 6:20, obtain [1] - 48:14 72:17 - 31:20 participate [5] - 70:4, 11:9 obvious [1] - 5:16 83:10, 83:15, 92:20, opponent [4] - 38:7, Osceola [2] - 10:8, perimeter [7] - 31:2, obviously [3] - 13:1, 94:20 83:23, 83:25, 84:1 10:10 31:3, 31:4, 31:6, 55:2, 61:12, 118:7 participated [1] - opportunities [2] - otherwise [2] - 55:4, 55:5 ACCURATE STENOTYPE REPORTERS, INC.
09/05/2014 12:21:34 PM Page 12 to 12 of 18 App. 42446 of 52 sheets 13
period [2] - 13:8, playing [1] - 132:17 33:10, 57:20, 57:24, presently [1] - 19:25 38:22 119:3 pleased [2] - 5:23, 58:8, 120:14, 121:3 president [1] - 129:3 projection [1] - Perkins [2] - 48:23, 69:22 Poreda [2] - 5:10, presidential [2] - 49:25 49:7 plus [2] - 37:3, 79:23 93:25 16:18, 74:20 promote [2] - 40:13, permanent [1] - point [26] - 11:4, portion [3] - 9:20, pretty [5] - 68:5, 40:24 120:13 11:5, 13:6, 23:2, 34:15, 81:14 68:6, 86:18, 87:17 promptly [1] - 5:24 perpetuity [1] - 24:20, 26:23, 27:16, portions [2] - 8:3, prevented [1] - proportion [1] - 132:5 27:17, 30:11, 33:5, 8:6 119:15 117:1 PERRY [1] - 80:13 45:1, 55:5, 55:6, 63:3, position [9] - 80:20, preventing [1] - proposals [1] - 71:4 Perry [4] - 11:11, 81:17, 84:12, 85:7, 90:4, 100:6, 100:7, 114:24 propose [2] - 4:14, 80:10, 80:22, 123:4 88:13, 92:21, 117:17, 100:9, 110:12, previous [3] - 71:15, 91:22 person [1] - 28:17 118:6, 125:3, 126:22, 127:12, 128:22, 132:2 77:18, 99:5 proposed [21] - personal [2] - 89:17, 127:3, 131:23, 131:25 positive [1] - 113:15 previously [3] - 20:19, 20:20, 23:11, 105:1 pointed [2] - 36:22, possibly [3] - 35:4, 39:20, 127:15, 128:6 23:18, 25:17, 25:25, personally [1] - 49:8 126:8 112:9, 117:23 previously-enacted 26:1, 26:25, 28:4, phone [3] - 4:3, 4:8, pointing [1] - 125:2 potential [3] - 17:22, [1] - 127:15 28:9, 28:21, 29:14, 81:22 points [6] - 39:15, 22:22, 41:4 primary [11] - 21:7, 29:21, 29:24, 50:19, phrase [1] - 70:7 39:21, 71:15, 74:25, potentially [1] - 21:8, 21:17, 21:21, 88:19, 89:12, 113:3, pick [5] - 31:7, 31:8, 123:12, 126:21 40:10 29:11, 36:22, 37:4, 125:16 57:11, 57:17, 58:19 polarization [1] - power [1] - 65:16 37:8, 37:10, 132:19, proposing [3] - 54:5, picked [1] - 57:7 122:16 precedent [1] - 128:4 132:20 54:11, 54:13 picking [1] - 57:15 polarized [1] - 120:5 precincts [4] - 76:14, private [4] - 82:19, protect [6] - 111:5, picks [1] - 53:20 policy [1] - 129:18 76:15, 76:17, 77:3 83:11, 85:1, 106:11 111:6, 111:18, piece [2] - 19:19, political [10] - 16:25, precisely [2] - 5:24, problem [9] - 14:23, 111:19, 112:1, 114:21 76:20 43:13, 45:20, 45:21, 10:23 19:7, 91:24, 111:9, protecting [1] - pieces [1] - 53:17 46:2, 65:8, 70:5, 89:5, predecessor [1] - 112:10, 112:11, 114:23 place [8] - 76:1, 128:16, 131:22 9:6 121:9, 125:10, 126:20 protection [6] - 79:24, 82:9, 83:20, politics [1] - 14:19 predecessors [1] - problematic [1] - 40:24, 40:25, 50:13, 119:10, 121:25, poll [5] - 75:14, 12:2 129:6 69:18, 132:15, 133:7 122:24, 127:16 76:15, 76:16, 76:17, predominant [1] - problems [3] - 10:22, protections [6] - placed [5] - 17:21, 77:2 53:21 125:24, 126:2 50:12, 68:23, 70:13, 85:24, 86:5, 86:18, polling [7] - 28:25, preferred [12] - 22:8, proceed [4] - 6:5, 120:13, 128:14, 94:7 75:11, 75:12, 75:13, 22:24, 29:1, 29:17, 85:12, 128:9, 132:3 129:12 plain [1] - 70:10 75:19, 76:2, 77:3 37:13, 37:15, 40:4, proceeded [1] - protested [1] - 54:1 plaintiff [2] - 11:20, polls [1] - 76:13 65:7, 65:17, 66:8, 110:22 proud [1] - 5:23 59:14 Polsby [5] - 30:15, 75:22, 76:22 proceedings [1] - proven [1] - 121:6 plaintiffs [13] - 4:22, 31:1, 35:12, 62:14, preparation [1] - 133:16 provide [4] - 7:4, 9:15, 11:6, 54:1, 107:12 88:16 process [34] - 5:20, 47:24, 61:7, 70:13 74:15, 108:25, 120:3, Polsby-Popper [5] - prepare [1] - 86:15 36:13, 44:9, 44:16, provided [5] - 7:5, 122:2, 124:1, 125:7, 30:15, 31:1, 35:12, prepared [2] - 4:24, 45:2, 45:16, 67:6, 15:19, 21:24, 44:24, 126:5, 127:23, 129:15 62:14, 107:12 87:20 70:5, 73:12, 73:14, 70:14 Plaintiffs [3] - 12:24, Popper [5] - 30:15, preparing [2] - 73:17, 74:16, 88:9, provision [1] - 66:4 110:12, 118:3 31:1, 35:12, 62:14, 15:13, 88:10 91:25, 92:3, 92:20, public [16] - 6:12, Plaintiffs' [9] - 20:19, 107:12 present [11] - 5:1, 92:23, 92:25, 93:7, 73:11, 73:24, 77:23, 20:20, 23:17, 23:18, population [40] - 12:4, 12:6, 13:16, 93:23, 94:14, 95:13, 77:24, 78:4, 83:1, 25:9, 25:11, 26:11, 10:19, 10:21, 19:18, 46:13, 84:13, 89:6, 96:1, 96:8, 96:13, 96:19, 97:1, 97:9, 27:25, 114:5 20:23, 28:8, 33:12, 99:25, 106:22, 97:25, 105:1, 106:5, 98:15, 98:17, 112:15, plaintiffs' [1] - 13:17 33:15, 33:17, 33:18, 108:21, 130:21 112:6, 112:14, 121:15, 128:20, plan [12] - 8:8, 8:17, 33:19, 33:22, 49:19, presentation [4] - 112:22, 118:13, 129:19 16:23, 20:9, 20:13, 50:2, 50:5, 51:18, 12:20, 98:12, 98:13, 128:17 publicly [2] - 97:13, 47:1, 70:8, 73:18, 53:17, 53:19, 53:22, 133:12 processing [1] - 98:1 110:24, 111:4, 55:25, 56:6, 57:7, presented [21] - 14:21 published [1] - 14:21 111:20, 125:17 57:11, 57:15, 57:17, 27:24, 45:2, 48:3, produce [3] - 5:21, pulls [1] - 30:22 Plan [2] - 18:25, 22:1 57:23, 58:3, 58:6, 73:23, 87:1, 87:18, 112:15, 112:16 purporting [1] - 65:9 plans [8] - 107:16, 58:7, 58:10, 58:20, 88:13, 88:15, 89:4, produced [1] - 7:11 purpose [4] - 13:19, 110:17, 110:18, 58:23, 66:6, 66:17, 89:7, 91:16, 92:19, product [1] - 102:19 48:13, 65:12, 82:17 110:20, 114:1, 125:15 67:21, 68:18, 113:10, 95:22, 96:4, 97:13, professor [1] - 14:14 put [16] - 24:10, play [1] - 33:7 113:20, 116:7, 98:18, 99:5, 101:2, prohibits [2] - 70:7, 26:20, 28:14, 43:1, 116:19, 130:12 played [2] - 46:3, 108:19, 132:22, 120:6 53:18, 55:5, 60:7, 111:4 populations [6] - 132:23 projecting [1] - 60:15, 83:1, 87:4, ACCURATE STENOTYPE REPORTERS, INC.
47 of 52 sheets Page 13 to 13 of 18 App.09/05/2014 425 12:21:34 PM 14
93:13, 96:3, 96:10, 110:2 Redistricting [3] - relative [2] - 30:17, 36:25 108:22, 121:25, real [1] - 12:1 44:1, 44:2, 44:11 31:6 represent [3] - 127:16 realistic [1] - 118:20 redraw [5] - 5:15, relatively [2] - 9:24, 81:10, 81:14, 130:6 Putnam [6] - 9:20, realistically [1] - 18:23, 19:11, 20:3, 49:20 representation [7] - 9:21, 32:8, 32:12, 87:8 83:12 released [1] - 86:16 39:14, 40:14, 40:15, 56:20, 111:10 reality [2] - 11:7, redrawn [4] - 8:5, relevancy [2] - 47:1, 47:8, 115:1, 115:4, puts [1] - 56:18 92:18 18:19, 20:6, 22:16 47:19 131:11 putting [5] - 34:22, realize [1] - 50:4 reduce [7] - 20:14, relevant [1] - 75:22 representative [7] - 34:23, 36:14, 36:16, really [10] - 12:1, 67:21, 68:11, 69:12, relic [1] - 112:2 11:11, 70:25, 80:23, 85:19 12:17, 33:21, 51:4, 70:8, 70:24 relied [4] - 21:14, 90:23, 106:3, 123:3, 57:25, 58:5, 77:8, reduced [4] - 20:1, 75:10, 75:19, 131:5 133:5 Q 96:6, 99:23, 114:23 64:8, 68:1, 68:6 rely [1] - 21:12 Representative [16] - reapportionment [1] reduction [4] - relying [1] - 67:7 59:20, 80:10, 80:18, - 128:21 67:25, 68:2, 68:3, remain [1] - 19:3 82:15, 83:9, 83:18, quarter [1] - 81:2 reason [9] - 10:7, 68:8 remains [2] - 111:11, 84:9, 87:23, 88:17, questions [25] - 27:10, 30:21, 33:15, reference [1] - 23:10 112:25 89:12, 89:14, 90:18, 5:12, 6:15, 24:18, 58:2, 92:4, 110:10, referring [1] - 24:4 remarkable [2] - 9:4, 91:14, 93:21, 101:12 34:23, 41:7, 46:5, 117:2, 124:8 reflect [2] - 100:21, 10:25 representatives [9] - 46:10, 47:9, 47:10, reasonably [1] - 107:15 Remedial [4] - 25:9, 39:2, 69:15, 70:6, 47:15, 59:12, 71:14, 126:14 reflected [3] - 31:13, 25:11, 30:5, 51:13 70:10, 79:25, 85:11, 74:7, 80:4, 82:12, reasons [3] - 123:7, 55:11, 77:14 remedial [22] - 7:13, 120:7, 121:5, 129:1 84:11, 90:12, 90:13, 127:21, 128:24 reflection [2] - 20:19, 20:20, 25:6, Representatives [5] 93:4, 97:14, 101:2, rebuttal [1] - 131:14 104:23, 104:25 25:12, 25:13, 26:11, - 5:6, 94:13, 105:7, 105:20, 107:22, recast [1] - 122:2 reflects [1] - 100:22 26:13, 26:25, 28:5, 121:18, 125:16 107:23, 109:9 receive [1] - 82:14 refused [2] - 90:25, 28:22, 29:25, 30:20, represented [1] - quickly [1] - 133:14 received [3] - 81:22, 91:5 32:16, 38:20, 54:17, 84:21 quite [3] - 89:22, 105:10, 121:17 regard [16] - 9:25, 55:10, 56:7, 73:18, represents [1] - 99:7, 125:23 recently [3] - 64:6, 61:2, 61:23, 62:5, 74:16, 79:7, 123:22 116:25 quote [10] - 5:14, 71:17, 118:12 62:13, 63:11, 72:3, remedied [3] - 121:8, Republican [21] - 8:3, 8:11, 46:6, 65:3, recently-enacted [1] 72:5, 72:11, 72:17, 122:22, 126:20 11:25, 16:20, 16:21, 69:1, 69:8, 70:17, - 118:12 73:12, 91:4, 92:8, remedy [5] - 118:25, 17:3, 17:4, 22:3, 116:20 recess [3] - 60:1, 94:1, 102:13, 128:3 119:13, 121:6, 51:21, 82:8, 82:19, quoted [1] - 13:10 109:12, 109:24 regarding [5] - 13:2, 121:21, 130:20 83:11, 83:19, 85:2, recollection [2] - 16:8, 59:23, 85:22, remember [8] - 45:3, 95:20, 96:12, 111:5, R 49:23, 64:7 89:5 49:25, 65:19, 66:9, 111:14, 111:19, recommendations regards [1] - 98:13 75:1, 100:16, 100:17, 111:21, 114:24, 121:11, 124:6 race [1] - 22:6 [1] - 48:18 region [3] - 76:5, 125:1 Republican-leaning races [2] - 29:4, reconfiguring [1] - 77:13, 77:16 remind [1] - 14:11 [2] - 22:3, 111:14 37:12 129:25 regional [1] - 77:14 reminds [1] - 47:22 Republicans [10] - racial [3] - 70:4, reconstitute [1] - regions [2] - 76:3, removing [3] - 32:7, 119:13, 122:16 76:16 77:11 32:11, 65:10 16:15, 86:11, 95:25, 96:7, 96:9, 96:17, racially [1] - 120:5 reconstituted [2] - registrants [2] - render [2] - 129:8, 103:1, 103:10, raise [1] - 55:21 74:20, 75:25 21:19, 37:8 129:15 119:12, 121:12 raised [2] - 49:6, reconstruction [3] - registration [6] - rendering [2] - request [4] - 39:18, 49:9 119:16, 119:24, 120:1 21:6, 21:9, 21:10, 72:18, 73:2 92:15, 94:14, 117:14 rampant [1] - 119:13 record [8] - 46:9, 21:18, 29:11, 38:23 Reock [19] - 9:12, requested [3] - ran [2] - 31:21, 38:2 46:11, 61:11, 69:5, regression [1] - 9:13, 30:7, 31:2, 85:21, 106:4, 106:14 rather [3] - 46:11, 117:6, 121:16, 75:16 35:11, 54:18, 55:18, required [7] - 6:24, 75:7, 91:19 130:17, 130:21 regressions [2] - 55:20, 61:25, 62:19, 9:2, 10:18, 86:20, re [1] - 40:21 red [2] - 55:18, 55:21 29:1, 75:11 63:1, 63:2, 107:11, 124:2, 124:18, 126:15 re-ask [1] - 40:21 redirect [2] - 79:2, regular [3] - 97:21, 113:2, 115:8, 115:9, requirement [1] - reach [2] - 21:13, 105:23 97:22, 104:25 115:10, 115:12 123:1 88:9 REDIRECT [2] - reject [1] - 128:15 repairing [1] - 133:3 requirements [1] - reaching [1] - 10:18 79:4, 106:1 rejected [2] - 8:1, replacing [1] - 87:16 reaction [1] - 20:4 redistricting [14] - 8:18 130:18 requires [2] - 116:21, read [6] - 4:20, 4:21, 14:21, 44:6, 44:9, relate [2] - 78:21 report [1] - 77:13 123:6 4:22, 77:23, 78:4, 69:19, 81:19, 91:8, related [1] - 14:22 reported [2] - 103:5, requiring [1] - 85:7 99:9 92:3, 92:8, 92:14, relates [1] - 18:1 103:11 reside [1] - 89:20 reading [1] - 110:25 93:22, 97:24, 105:1, relating [2] - 40:18, Reporter [1] - 65:1 residential [1] - ready [2] - 108:9, 114:19, 117:24 91:4 reports [2] - 28:25, ACCURATE STENOTYPE REPORTERS, INC.
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121:3 30:1, 30:20, 33:1, 89:4, 89:9, 100:18, served [1] - 14:15 similar [4] - 31:1, residents [4] - 77:21, 37:22, 44:1, 44:24, 100:24, 101:6 Services [1] - 43:11 35:23, 35:24, 116:22 78:7, 81:15, 122:9 45:12, 49:8, 60:19, second [2] - 89:2, services [1] - 48:25 simple [3] - 70:10, resorted [1] - 111:13 61:25, 62:6, 64:7, 115:21 session [19] - 4:19, 96:25, 104:6 resources [5] - 118:3, 124:22, 125:14 secret [6] - 97:5, 6:3, 11:10, 60:3, 73:6, simply [10] - 10:18, 87:12, 87:14, 87:15, room [3] - 33:7, 95:7, 97:6, 97:7, 97:25, 73:8, 74:3, 78:5, 48:20, 53:16, 85:6, 88:7, 88:14 95:12 98:5, 112:5 81:19, 82:1, 83:2, 111:9, 111:13, 112:9, respect [3] - 83:12, Roosevelt [1] - 43:22 Secretary [2] - 4:15, 85:7, 92:1, 92:5, 117:17, 118:5, 126:3 85:15, 87:24 rough [5] - 27:21, 127:22 106:10, 106:11, single [4] - 11:21, respectfully [1] - 42:10, 42:25, 43:2, Section [3] - 65:13, 123:21, 126:12, 37:7, 50:19, 67:15 128:9 43:5 65:14, 131:20 128:19 sit [3] - 85:9, 92:24, respond [4] - 12:7, ruled [1] - 10:10 see [33] - 6:25, 7:9, set [5] - 4:12, 76:24, 93:2 12:14, 12:18, 118:13 ruling [3] - 17:25, 7:15, 7:22, 8:19, 9:7, 77:3, 126:17, 127:20 situation [9] - 46:20, response [1] - 7:23 87:16, 125:6 9:16, 9:19, 9:25, sets [1] - 125:10 92:18, 114:11, 116:9, responsibilities [1] - run [3] - 22:4, 58:10, 10:13, 18:15, 30:7, seven [9] - 19:25, 117:5, 122:3, 130:3, 81:4 58:17 35:25, 42:11, 50:5, 20:2, 81:1, 103:2, 130:7, 133:3 responsibility [1] - running [3] - 11:15, 51:14, 51:16, 56:22, 103:6, 103:9, 104:7, six [1] - 6:10 132:12 38:21, 53:2 57:4, 60:20, 60:25, 104:9 size [4] - 55:24, 56:5, result [6] - 29:10, runs [1] - 102:7 61:23, 62:8, 62:16, seven-member [1] - 56:6, 114:12 38:18, 70:2, 100:17, 62:19, 69:1, 71:4, 103:2 sliding [1] - 67:16 111:17, 113:21 S 109:22, 112:19, several [2] - 16:17, slight [1] - 66:4 resulted [1] - 117:8 114:6, 115:17, 99:7 slightly [2] - 30:10, results [2] - 21:13, 120:16, 123:14 shall [6] - 52:2, 31:8 safe [1] - 78:3 74:20 seek [2] - 94:5, 52:15, 70:2, 118:16, slippery [1] - 40:9 safely [4] - 29:5, retain [1] - 113:9 127:24 120:9, 122:24 slope [1] - 40:10 68:5, 68:6 retained [1] - 115:17 select [1] - 93:13 shape [7] - 30:16, small [2] - 31:21, safest [2] - 67:1, retaining [1] - 112:7 Seminole [9] - 7:20, 30:17, 30:21, 30:22, 127:3 67:2 retains [1] - 115:19 9:9, 17:14, 19:8, 37:3, 33:5, 57:22, 57:25 snakes [2] - 30:24, sample [1] - 77:8 retrogression [3] - 79:14, 111:9, 112:10, shaped [9] - 17:18, 31:15 sat [1] - 127:19 29:22, 39:24, 40:7 130:4 19:5, 31:17, 32:2, So.3d [1] - 65:1 saw [1] - 64:6 retrogressive [1] - Senate [31] - 5:7, 32:10, 111:3, 111:7, socioeconomic [1] - scale [1] - 67:17 125:9 6:9, 7:12, 8:13, 11:13, 131:21 78:17 schedule [10] - 4:17, returns [3] - 38:23, 23:2, 59:6, 71:13, share [1] - 78:13 socioeconomics [1] 4:23, 59:23, 108:16, 51:9, 75:18 82:16, 90:24, 91:17, sheet [1] - 107:14 - 78:13 108:19, 108:23, 102:15, 102:24, reveals [1] - 61:2 shifting [1] - 130:5 software [1] - 15:21 127:20, 127:21, 102:25, 103:5, 103:9, reverse [1] - 123:13 short [3] - 60:1, 79:3, sole [1] - 13:19 127:23, 127:25 103:13, 103:17, review [3] - 74:2, 109:24 solve [2] - 111:8, scheduled [2] - 6:9, 96:9, 102:15 103:23, 104:4, 104:8, shorter [1] - 9:16 111:11 109:15 104:15, 105:11, reviewed [4] - 17:25, shortfalls [1] - 88:2 someone [1] - 44:16 scheduling [1] - 105:13, 105:14, 25:5, 25:14, 64:20 show [7] - 25:8, somewhat [2] - 128:3 105:16, 112:20, revised [1] - 16:23 25:10, 25:11, 26:9, 10:15, 31:1 Schultz [1] - 48:10 115:7, 121:13, reword [1] - 120:17 39:10, 46:23, 115:3 somewhere [1] - score [16] - 9:13, 121:19, 128:21 RIGGS [6] - 59:10, showed [1] - 114:4 37:15 19:10, 20:15, 30:7, Senator [18] - 5:8, 59:13, 74:9, 78:25, showing [1] - 47:19 sorry [7] - 15:8, 54:18, 54:21, 55:18, 11:12, 87:19, 87:23, 105:21, 128:12 shown [2] - 48:19, 26:12, 28:11, 34:18, 55:20, 61:25, 62:19, 88:3, 88:12, 89:6, Riggs [1] - 74:10 125:7 42:18, 58:15, 70:20 63:2, 63:4, 113:22, 95:4, 95:16, 96:3, rights [6] - 14:13, shows [2] - 39:15, sort [8] - 13:15, 19:7, 115:11 96:16, 96:20, 96:24, 14:16, 20:6, 69:8, 114:2 22:12, 22:18, 27:22, scores [11] - 35:19, 97:2, 97:9, 99:11, 69:12, 114:21 side [13] - 7:5, 7:6, 51:11, 56:14, 65:23 35:25, 36:1, 55:11, 100:13, 100:23 rigid [1] - 10:4 9:18, 10:16, 59:19, Soto [13] - 11:13, 55:17, 60:18, 107:12, senator [2] - 11:16 rise [1] - 60:2 79:1, 90:14, 101:9, 87:19, 89:6, 95:17, 107:14, 113:2, 115:8, sense [1] - 81:4 rival [1] - 123:11 106:17, 106:23, 96:3, 96:16, 96:20, 115:10 sensitive [1] - River [3] - 9:9, 17:13, 108:1, 108:13, 127:2 96:24, 97:2, 97:9, scrutinized [1] - 133:12 19:6 sides [3] - 104:16, 99:11, 100:13, 100:23 99:14 sent [3] - 4:4, river [1] - 9:18 126:23, 126:24 Soto's [4] - 88:3, scrutiny [2] - 96:11, 128:20, 129:1 role [2] - 46:3, 111:4 signed [2] - 71:18, 88:12, 88:17, 89:12 105:2 sentence [1] - Romo [25] - 12:24, 121:20 sought [2] - 90:24, seat [2] - 4:2, 22:6 125:15 20:10, 20:19, 23:18, significant [3] - 91:3 seats [9] - 16:15, separate [3] - 31:18, 25:12, 25:22, 27:7, 111:4, 113:6, 113:15 sounds [1] - 82:23 16:20, 16:21, 17:2, 75:13, 75:16 27:13, 27:20, 27:24, Silver [1] - 94:1 south [29] - 7:18, ACCURATE STENOTYPE REPORTERS, INC.
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11:3, 11:8, 11:14, 112:4, 120:25, stretch [1] - 19:5 suggestion [1] - 63:8 28:12, 41:24, 42:2, 11:17, 11:19, 12:11, 121:25, 122:21, stretched [1] - 76:9 suite [2] - 91:8, 42:13, 42:23, 53:5, 32:12, 56:13, 58:20, 131:19, 132:14 stretching [1] - 93:22 68:21, 72:23, 74:14, 71:24, 72:5, 72:12, standing [1] - 125:2 17:13 Supervisor [1] - 4:16 75:10, 76:12, 77:18, 88:23, 89:20, 90:3, standpoint [3] - strict [1] - 10:4 supervisors [2] - 79:23, 80:15, 94:24, 116:24, 123:4, 124:5, 26:4, 36:10, 112:25 strike [1] - 70:17 108:12, 127:20 100:13, 107:6, 124:10, 124:14, start [2] - 104:5, striking [1] - 125:11 support [9] - 39:22, 116:16, 119:20, 126:7, 126:10, 125:24 strongest [1] - 48:14, 69:21, 99:17, 122:11, 129:5 126:12, 128:23, started [2] - 20:7, 104:21 99:21, 99:23, 122:20, testify [6] - 26:18, 129:18, 129:21, 44:16 struck [3] - 65:8, 130:19, 130:21 28:16, 43:5, 64:10, 130:19, 130:22 State [3] - 4:15, 127:15, 128:5 supported [4] - 49:3, 86:5, 129:2 South [1] - 89:21 69:22, 127:22 structure [1] - 20:9 99:15, 129:11, 129:18 testifying [2] - 23:3, south-north [1] - state [31] - 20:8, studied [4] - 29:8, supporters [1] - 28:13 56:13 20:12, 33:5, 33:6, 37:12, 37:14, 74:14 120:11 testimony [47] - Southern [1] - 64:25 36:17, 36:20, 37:2, studies [3] - 78:11, supporting [1] - 6:12, 13:2, 13:21, southern [1] - 22:18 41:5, 50:7, 50:24, 78:16, 131:7 120:17 14:25, 15:4, 15:13, sparse [3] - 33:11, 51:4, 52:22, 55:13, study [1] - 75:24 supports [1] - 16:10, 21:24, 23:6, 33:21, 113:20 56:2, 56:16, 65:9, studying [1] - 69:23 120:15 26:21, 28:14, 31:25, 34:21, 46:6, 46:16, Speaker [4] - 81:23, 67:1, 67:3, 75:14, stuff [1] - 16:2 supposed [2] - 47:4, 47:14, 47:23, 82:3, 94:6, 106:4 75:15, 76:3, 76:18, subcommittee [1] - 44:19, 45:5 speaks [1] - 108:23 76:19, 80:22, 81:10, 102:18 supposedly [1] - 49:25, 58:1, 59:22, 64:18, 72:14, 73:11, special [19] - 6:3, 81:15, 85:11, 89:21, subject [5] - 47:19, 39:12 73:24, 77:23, 78:4, 73:6, 73:8, 74:3, 78:5, 90:1, 115:4, 130:7 49:4, 61:17, 97:25, Supreme [11] - 81:19, 82:1, 85:7, state's [1] - 15:17 102:14 52:21, 64:21, 65:4, 84:5, 85:22, 90:23, 91:3, 91:7, 91:13, 92:1, 92:5, 106:10, statement [5] - 8:22, submission [4] - 65:22, 67:11, 68:9, 92:13, 98:15, 99:16, 123:21, 126:11, 50:1, 83:4, 83:24, 4:20, 7:4, 23:14, 115:6, 115:13, 116:1, 103:19, 103:24, 128:19, 130:24, 84:1 23:23 120:20, 122:1 105:3, 108:6, 116:13, 130:25, 131:5, 131:8, statements [3] - submit [8] - 11:22, surprised [1] - 86:9 116:14, 119:18, 131:12 46:7, 49:2, 83:1 91:16, 96:5, 97:4, surrounding [3] - 119:21, 129:19, specific [4] - 5:19, States [4] - 39:2, 98:5, 128:2, 128:9, 11:1, 113:13, 113:16 132:22, 132:23 6:3, 64:15, 75:25 56:3, 65:4, 80:1 133:1 survey [1] - 77:4 Texas [1] - 56:1 specifically [6] - states [2] - 44:6, submitted [9] - 9:15, sustain [2] - 27:15, THE [88] - 4:1, 4:9, 65:15, 78:16, 84:6, 56:3 11:13, 11:20, 86:21, 70:21 5:3, 7:3, 7:7, 12:13, 85:21, 94:18, 118:24 statistical [2] - 87:7, 95:16, 95:18, sustained [2] - 12:20, 12:23, 13:24, split [4] - 10:10, 17:15, 107:15 96:10, 129:20 27:12, 70:19 16:5, 18:10, 18:15, 17:5, 20:2, 125:18 statistically [1] - submitting [4] - swooped [1] - 31:21 23:9, 23:24, 24:1, splits [7] - 20:15, 9:12 96:1, 96:13, 96:20, sworn [3] - 14:5, 24:3, 24:6, 24:13, 63:17, 63:19, 63:21, statistics [2] - 24:8, 96:23 80:14, 107:5 24:15, 24:23, 24:25, 64:4, 64:8 64:14 subsequent [1] - 26:23, 27:2, 27:12, sponsor [1] - 11:22 statute [1] - 123:19 84:23 T 28:18, 34:24, 40:20, sponsored [1] - step [1] - 80:4 substance [1] - 6:8 40:21, 41:10, 41:13, 88:18 Stephen [1] - 12:25 substantial [6] - table [2] - 85:9, 92:7 41:16, 46:13, 46:25, springs [2] - 112:17, STEPHEN [1] - 14:4 8:25, 19:18, 33:18, tailoring [1] - 132:13 47:6, 47:18, 49:4, 112:18 Steve [1] - 48:8 68:22, 81:14, 128:19 Takacs [1] - 93:25 57:2, 59:2, 59:5, 59:9, squeeze [1] - 114:11 stick [1] - 100:5 substantially [4] - Tallahassee [6] - 59:11, 59:14, 59:18, St [3] - 9:9, 17:12, still [13] - 16:5, 19:4, 9:6, 9:19, 9:23, 32:14 51:3, 55:6, 57:13, 59:22, 60:2, 60:4, 19:6 19:24, 32:2, 41:10, successful [1] - 78:12, 129:2, 129:4 61:13, 61:17, 61:20, stadium [1] - 57:12 67:5, 67:23, 90:20, 10:25 tea [1] - 110:25 70:19, 70:21, 79:1, staff [19] - 9:3, 10:25, 112:1, 112:25, sudden [1] - 112:17 teach [1] - 14:18 80:4, 80:6, 80:7, 82:15, 87:17, 88:4, 123:10, 124:24, sufficient [4] - 20:23, 80:11, 81:6, 82:23, 88:7, 90:24, 91:4, 127:25 22:23, 76:14, 98:17 team [1] - 88:6 83:3, 83:24, 84:2, 91:9, 92:8, 92:14, stopped [2] - 97:3, technicalities [1] - sufficiently [4] - 90:11, 90:14, 101:9, 94:5, 94:9, 94:11, 119:17 89:8 21:3, 21:5, 21:6, 105:22, 105:25, 94:12, 94:17, 94:19, story [1] - 86:2 ten [4] - 59:2, 59:24, 33:11 106:17, 106:19, 97:17, 109:9 strand [1] - 130:1 96:24, 117:13 suggest [1] - 120:23 106:21, 107:1, stand [1] - 109:11 stranded [1] - 130:4 tend [1] - 31:10 suggested [5] - 107:22, 107:24, standard [5] - 10:4, strangely [1] - 17:18 terms [4] - 55:17, 42:23, 43:3, 45:13, 108:8, 108:13, 53:10, 66:16, 120:18, strength [5] - 22:24, 85:11, 88:15, 118:16 47:15, 128:13 108:17, 109:2, 109:6, 120:22 67:18, 68:12, 116:23, testified [25] - 14:6, suggesting [3] - 109:10, 109:15, standards [6] - 117:1 12:13, 46:11, 46:21 16:8, 18:24, 25:21, ACCURATE STENOTYPE REPORTERS, INC.
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109:20, 110:2, 110:5, 15:16, 53:16, 76:1, 10:22, 14:22, 30:14, 88:7 violations [1] - 110:7, 128:11, 82:9, 83:19, 100:8 31:18, 35:24, 39:1, unrebutted [1] - 121:22 131:14, 131:16, topic [1] - 14:22 44:24, 53:16, 54:12, 119:21 virtue [3] - 54:1, 133:9, 133:11 Toronto [1] - 55:7 62:20, 79:24, 89:3, untouched [1] - 19:6 54:14, 121:3 themselves [1] - tossup [3] - 66:18, 89:9, 100:18, 101:6, unusual [3] - 17:11, visual [2] - 36:10, 26:22 122:5, 132:18 133:5 31:12, 123:13 112:24 thereafter [4] - 6:6, total [2] - 32:17, tying [1] - 61:17 unusually [1] - 17:18 visually [10] - 9:11, 6:14, 6:16, 8:10 98:13 type [1] - 87:9 unwilling [1] - 13:12 10:2, 17:12, 31:16, thereby [1] - 8:16 totally [2] - 47:25, typical [1] - 104:24 up [34] - 4:9, 4:17, 34:12, 35:9, 35:18, therefore [1] - 8:5 122:2 4:19, 18:12, 21:22, 36:6, 115:14, 131:20 Thereupon [3] - tradeoff [2] - 56:13, U 27:23, 31:7, 31:8, voice [1] - 122:17 14:3, 80:12, 107:3 56:17 33:11, 51:10, 51:17, voiced [2] - 85:4, they've [4] - 109:17, tradeoffs [3] - 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115:23 76:25, 77:2, 78:18, 79:6, 79:13, 79:20, [1] 80:18, 80:22, 83:10, trumped [1] - 65:8 varying - 115:20 78:22, 120:8, 121:25, 85:25, 86:5, 92:13, version [20] - 18:19, 83:18, 89:14, 106:3, Trust [3] - 44:1, 44:3, 129:9, 129:15, 130:2, 96:10, 111:20, 123:4 44:12 20:16, 20:17, 20:18, 130:4, 130:10, 114:15, 115:12, 20:23, 21:2, 27:21, THURSTON [1] - trust [3] - 44:4, 130:13, 131:4 116:2, 119:20, 127:8, 80:13 44:23, 48:11 28:13, 28:15, 30:1, Voters [6] - 60:19, 127:14, 128:4 30:19, 30:20, 35:16, tied [1] - 49:5 trustees [1] - 44:11 62:1, 62:7, 68:21, understandably [1] - 42:25, 43:4, 43:7, Tier [11] - 8:23, 9:2, truth [2] - 83:5, 86:1 73:23 8:24 113:6, 124:23, [1] 50:12, 100:25, 120:8, try [9] - 6:21, 42:19, voters' - 39:25 understood [1] - 124:25, 125:4 120:21, 120:24, 44:20, 51:5, 91:8, votes [2] - 105:10, 8:21 versions [1] - 40:3 125:8, 125:20, 117:23, 122:3, 121:17 unfavorably [1] - 131:19, 132:14 123:11, 132:13 versus [5] - 54:19, voting [22] - 14:13, 126:9 54:21, 54:24, 61:24, time-wise [1] - 59:5 trying [8] - 10:8, 14:16, 20:6, 20:22, unfortunately [2] - 72:12 today [14] - 15:13, 13:16, 18:11, 35:1, 22:23, 28:8, 65:18, 10:19, 60:10 71:23, 72:3, 72:22, 66:11, 108:3, 111:1, vestige [2] - 112:3, 68:11, 103:6, 116:7, uniform [1] - 114:10 75:10, 84:22, 92:14, 123:18 115:5 116:19, 116:22, United [4] - 39:2, vice [1] - 129:3 102:20, 119:17, turn [1] - 64:24 117:1, 119:14, 120:4, 56:3, 65:4, 80:1 vice-president [1] - 120:5, 122:16, 120:16, 122:11, turned [1] - 111:23 University [2] - 129:3 128:13, 129:12, 124:1, 124:10, 128:13 turning [1] - 21:23 14:15, 14:19 view [7] - 10:3, 130:12, 130:20, together [6] - 37:1, turnout [7] - 21:21, unless [4] - 5:15, 64:17, 66:19, 68:12, 48:9, 53:18, 82:17, 29:10, 36:22, 37:4, 132:19 13:12, 102:3, 127:1 69:2, 112:15, 126:9 96:4, 100:6 74:14, 117:4, 131:6 unlike [1] - 93:14 viewed [1] - 10:6 token [2] - 79:12 two [21] - 5:7, 6:22, unlimited [2] - 87:15, violation [1] - 100:25 took [7] - 8:22, 6:23, 7:16, 7:23, ACCURATE STENOTYPE REPORTERS, INC.
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W 36:18, 126:16, 127:19 Z wide [1] - 119:23 widened [1] - 19:8 wait [1] - 109:1 widening [1] - 32:12 ZAKIA [14] - 23:1, wanders [1] - 53:12 wider [1] - 126:24 26:12, 26:16, 28:11, wants [7] - 18:7, width [2] - 127:4, 34:18, 35:2, 41:11, 26:17, 46:6, 46:10, 131:24 59:8, 71:7, 71:9, 74:6, 108:21, 109:20 willing [1] - 11:21 101:11, 105:19, 123:10 warranted [1] - win [4] - 37:13, 40:5, 131:1 40:8 Zakia [4] - 23:1, 71:12, 78:3, 131:18 wash [1] - 63:10 winds [1] - 131:22 ZEHNDER [1] - Washington [2] - winning [3] - 22:5, 43:13, 44:25 29:5, 29:7 23:21 zero [1] - 10:18 Wasserman [1] - wise [3] - 47:1, 59:5, 48:10 108:1 Wasserman- wish [1] - 60:16 Schultz [1] - 48:10 withdrawn [2] - 8:2, wasting [1] - 109:18 8:15 water [1] - 127:2 witness [24] - 13:2, ways [4] - 63:12, 14:1, 14:5, 14:15, 67:4, 77:12, 110:21 23:3, 24:11, 26:17, weapon [1] - 114:19 27:11, 28:12, 35:3, Weatherford [7] - 44:19, 59:6, 59:17, 81:23, 82:4, 94:6, 61:13, 80:8, 80:14, 94:17, 95:7, 95:9, 86:5, 106:20, 106:25, 106:4 107:5, 108:3, 109:5, website [2] - 15:17, 109:18, 132:24 43:12 WITNESS [5] - Webster [3] - 38:4, 24:25, 40:21, 80:6, 38:8, 38:25 81:6, 106:19 week [3] - 11:10, witnesses [2] - 16:24, 82:20 12:22, 129:3 weeks [1] - 81:18 Women [7] - 60:18, weighty [2] - 118:7, 62:1, 62:6, 62:7, 118:18 68:21, 73:22, 73:23 west [34] - 11:22, won [1] - 38:24 25:20, 27:6, 29:15, word [1] - 119:4 36:15, 36:16, 39:14, words [2] - 98:2, 42:4, 42:6, 42:20, 117:3 50:16, 51:16, 56:15, works [2] - 43:11, 72:11, 72:22, 72:23, 92:23 73:24, 77:19, 89:15, world [2] - 45:4, 45:6 89:20, 113:3, 113:4, worse [3] - 69:9, 116:6, 116:18, 130:2, 130:7 116:20, 116:25, wrap [1] - 57:13 117:9, 124:18, 126:16, 129:5, 130:1, Y 130:8, 130:18, 132:18 western [1] - 19:20 whatsoever [1] - y'all [1] - 27:16 13:4 yank [1] - 120:3 whereas [2] - 113:5, yard [1] - 58:25 115:11 year [1] - 78:5 white [10] - 51:21, years [5] - 14:17, 56:19, 74:19, 74:24, 43:14, 43:20, 81:1, 75:3, 76:23, 122:15, 81:2 122:20 yesterday [1] - 4:5 Whitfield [2] - yourself [1] - 51:6 119:18, 122:10 whole [4] - 10:8, ACCURATE STENOTYPE REPORTERS, INC.
09/05/2014 12:21:34 PM Page 18 to 18 of 18 App. 43052 of 52 sheets Exhibit N
App. 431 IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA
THE LEAGUE OF WOMEN VOTERS OF FLORIDA, et al., Appellants, v. Case No.: 1D14-3953 L.T. Nos.: 2012-CA-00412, KEN DETZNER, et al., 2012-CA-00490 Appellees.
APPELLANTS’ SUGGESTION FOR CERTIFICATION Appellants The League of Women Voters of Florida, Common Cause,
Brenda Ann Holt, J. Steele Olmstead, Robert Allen Schaeffer, and Roland
Sanchez-Medina, Jr. (collectively, the “Coalition Plaintiffs”) and Appellants Rene
Romo, Benjamin Weaver, William Everett Warinner, Jessica Barrett, June Keener,
Richard Quinn Boylan, and Bonita Again (collectively, the “Romo Plaintiffs,” and together with the Coalition Plaintiffs, the “Plaintiffs”) respectfully suggest that the final judgment(s) under review by this Court should be certified for immediate review by the supreme court and state:
1. Florida Rule of Appellate Procedure 9.125(a) authorizes this Court to certify that a judgment requires immediate resolution by the supreme court because the issues are of great public importance. This is the procedure required to invoke the Florida Supreme Court’s constitutional authority to review such decisions pursuant to article V, section 3(b)(5) of the Florida Constitution.
2. In this case, the Plaintiffs have appealed the final judgment(s) of the
App. 432 trial court that declared that the Legislature’s 2012 congressional redistricting plan violated article III, section 20 of the Florida Constitution and approved the subsequent redistricting plan enacted by the Legislature in special session as the proper remedy for that constitutional violation.1 The Legislature has already conceded that the two districts directly invalidated by the trial court were unconstitutional. In this appeal, the Plaintiffs are challenging (1) the trial court’s initial ruling that several other congressional districts were not directly unconstitutional and (2) the trial court’s ultimate ruling that the constitutional violations were cured by the Legislature’s remedial plan enacted in special session.
Thus, this appeal will directly impact the congressional districts on the 2016 ballot.
1 These rulings were contained in two separate orders. The first order, labeled and treated by the trial court as a “final judgment,” was entered July 10, 2014. (Exhibit A.) The Coalition Plaintiffs submit that this was not in fact a final judgment because it only ruled on the merits of their claim and did not address the remedy they requested in their complaint. E.g., Casino, Inc. v. Kugeares, 354 So. 2d 936, 937-38 (Fla. 2d DCA 1978). To the extent they are incorrect and this was a partial or preliminary final judgment, it was rendered on August 1, 2014, when the trial court denied the Legislature’s motion to amend that judgment. The Coalition Plaintiffs’ August 29, 2014, notice of appeal was therefore timely and effective to appeal that judgment if final. The second order was rendered on August 22, 2014, and was the final ruling on the requested remedy. (Exhibit B.) It is therefore either the only final judgment in this case or a final judgment entered after a prior final judgment. E.g., Clearwater Fed. Sav. & Loan Ass’n v. Sampson, 336 So. 2d 78, 79-80 (Fla. 1976); Philip J. Padovano, Fla. Appellate Practice § 24:15 n.13, and accompanying text (2014 ed.). The Coalition Plaintiffs’ August 29, 2014, notice of appeal was therefore timely and effective to appeal that judgment regardless of whether the July 10 order was also a final judgment. 2
App. 433 3. This Court has already recognized in an en banc ruling that the redistricting issues involved in this case are of such great public importance and urgency as to require pass-through certification of a third-party discovery dispute.
Non-Parties v. League of Women Voters of Fla., No. 1D14-2163, 2014 WL
2770013, at *1 (Fla. 1st DCA June 19, 2014) (en banc). The Florida Supreme
Court has also made clear that the subject of this litigation is of the utmost importance. See League of Women Voters of Fla. v. Data Targeting, Inc., 140
So. 3d 510, 511, 514 (Fla. 2014) (granting extraordinary writ to stay this Court’s prior ruling in that appeal due to “the importance and statewide significance of this case” and noting this Court could ultimately certify its decision in that appeal for supreme court review in part due to “the statewide importance of this litigation”); id. at 515 (Lewis, J., concurring) (concluding an erroneous decision that the 2012 redistricting plan was constitutional would “jeopardize[] the stability and integrity of our governmental structure” and that “[t]he issue is one that impacts the statewide operation of Florida government and is, therefore, one of paramount importance”).
4. The dispositive issue in the Non-Parties appeal was solely whether non-party political operatives have a First Amendment privilege and/or trade secret rights to keep secret certain evidence they produced in this case. This appeal, in contrast, is to review the very merits of the constitutional challenge and is therefore
3
App. 434 of exponentially greater and more direct importance and urgency. See Non-Parties,
2014 WL 2770013, at *2 (Wetherell, J., dissenting) (opining that the discovery dispute was not of great public importance even though it “arise[s] in an important, high-profile case”); id. at *4 (Marstiller, J., dissenting) (opining that while the ultimate decision on the merits in this case – i.e., the decision now under review in this appeal – could justify pass-through review, the discovery issue itself did not).
5. Although it is now too late to impact the 2014 congressional elections, which are currently under way to elect representatives to districts the trial court found and the Legislature conceded were unconstitutional, this appeal still requires immediate resolution by the supreme court that cannot wait for briefing, argument, and decision by this Court first. The issues being raised in this appeal are extremely complex and, in many instances, of first impression. Not only do they involve a long evidentiary record, they also implicate statistical analyses this Court has never before undertaken. But the supreme court is familiar with them from its role in evaluating the facial validity of the state house and senate redistricting plans. See, e.g., In re Senate Joint Resolution of Legislative Apportionment 1176,
83 So. 3d 597 (Fla. 2012) (reviewing and invalidating original state senate plan).
6. To require expedited briefing from the parties and to issue an expedited decision on the merits would place tremendous burdens on the parties and the Court on issues so important as to require the most thorough briefing and
4
App. 435 analysis. And even if this Court were to issue a relatively quick opinion, the supreme court will require substantial time to complete its inevitable review.
Moreover, if the Plaintiffs prevail in this appeal, a remand for substantial further proceedings – whether that be a judicially imposed or supervised redistricting process or a de novo legislative redistricting process – will require additional time and may well result in the losing parties seeking further appellate review. Thus, while the primaries for the 2016 elections are just under two years away, immediate supreme court review is still crucial to ensure that this state does not have to again have elections based on unconstitutional districts.2
WHEREFORE, the Plaintiffs respectfully request the Court certify the trial court’s order(s) for immediate resolution by the Florida Supreme Court.
2 The procedural history of this case proves this point. The Coalition Plaintiffs filed their lawsuit in February 2012 less than two weeks after the Legislature enacted the 2012 congressional redistricting plan. Despite the Coalition Plaintiffs’ best efforts to push this case to a conclusion in time for the 2014 election, that turned out to be impossible due to the expedited appellate proceedings that had to be resolved before trial and the time it took the parties to try and the trial court to issue its expeditious decisions. See, e.g., Fla. House of Reps. v. Romo, 113 So. 3d 117 (Fla. 1st DCA) (certiorari proceeding regarding claims of legislative privilege in this case filed Oct. 31, 2012, and resolved by this Court on expedited review on May 22, 2013), quashed 132 So. 3d 135 (Fla. 2013) (completing expedited review on Dec. 13, 2013). Further, to assure orderly implementation of a constitutional redistricting plan for the 2016 general election, these proceedings must be resolved with enough lead time for election scheduling purposes – perhaps as much as five months (147 days), if the Court credits submissions of the Supervisors of Elections and the Secretary of State. (See Sec. of State’s Proposed Election Schedule, filed Aug. 15, 2014; Response of Fla. State Ass’n of Supervisors of Elections, Inc., filed Aug. 15, 2014). 5
App. 436 Rule 9.125(e)(3) Certificate The undersigned attorneys express a belief, based on a reasoned and studied professional judgment, that this appeal requires immediate resolution by the supreme court and is both of great public importance and will have a great effect on the administration of justice throughout the state.
MESSER CAPARELLO, P.A. THE MILLS FIRM, P.A.
/s/ Mark Herron /s/ John S. Mills Mark Herron John S. Mills Florida Bar No. 199737 Florida Bar No. 0107719 Email: [email protected] [email protected] Robert J. Telfer III Andrew D. Manko Florida Bar No. 0128694 Florida Bar No. 018853 Email: [email protected] [email protected] 2618 Centennial Place Courtney Brewer Tallahassee, FL 32308 Florida Bar No. 0890901 Telephone: (850) 222-0720 [email protected] Facsimile: (850) 558-0659 [email protected] (secondary) 203 North Gadsden Street, Suite 1A Counsel for Respondents Rene Romo, Tallahassee, Florida 32301 Benjamin Weaver, William Everett (850) 765-0897 Warinner, Jessica Barrett, June Keener, (850) 270-2474 facsimile Richard Quinn Boylan, and Bonita Agan and
KING, BLACKWELL, ZEHNDER & WERMUTH, P.A.
David B. King Florida Bar No.: 0093426 [email protected] Thomas A. Zehnder Florida Bar No.: 0063274 [email protected] Frederick S. Wermuth 6
App. 437 Florida Bar No.: 0184111 [email protected] Vincent Falcone III Florida Bar No.: 0058553 [email protected] P.O. Box 1631 Orlando, FL 32802-1631 Telephone: (407) 422-2472 Facsimile: (407) 648-0161
Counsel for The League of Women Voters of Florida, Common Cause, Brenda Ann Holt, Roland Sanchez- Medina Jr., J. Steele Olmstead, and Robert Allen Schaeffer
7
App. 438 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by email to the following attorneys on September 8, 2014:
George T. Levesque Blaine Winship The Florida Senate, 422 The Capitol Atty. Gen., The Capitol, Suite PL-0 1 Tallahassee, Florida 32399-1300 Tallahassee, FL 32399-1050 [email protected] [email protected] [email protected] [email protected] Counsel for the Attorney General
Michael A. Carvin J. Andrew Atkinson Louis K. Fisher Ashley Davis Jones Day Dep. of State, 500 S. Bronough Street 51 Louisiana Avenue N.W. Tallahassee, FL 32399 Washington, D.C. 20001 [email protected] [email protected] [email protected] [email protected] [email protected] Counsel for Florida Secretary of State Raoul G. Cantero Jason N. Zakia Mathew J. Carson Jesse L. Green General Counsel White & Case LLP Florida House of Representatives 200 South Biscayne Blvd., Ste. 4900 422 The Capitol Miami, FL 33131 Tallahassee, FL 32399-1300 [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] Charles T. Wells [email protected] George N. Meros, Jr. Counsel for Fla. Senate & Senate Pres. Jason L. Unger Andy Bardos Gray Robinson, P.A. Karen C. Dyer 301 South Bronough Street, Suite 600 Boies, Schiller & Flexner, LLP Tallahassee, Florida 32301 121 South Orange Ave., Suite 840 [email protected] Orlando, FL 32801 [email protected] [email protected] [email protected] [email protected] 8
App. 439 Abba Khanna [email protected] Kevin J. Hamilton [email protected] Perkins Coie, LLP [email protected] 1201 Third Avenue, Suite 4800 Seattle, Washington 98101-3099 Counsel for Fla. House and Speaker [email protected] [email protected] Allison J. Riggs, Pro Hac Vice [email protected] Anita S. Earls [email protected] Southern Coalition For Social Justice [email protected] 1415 W. Highway 54, Suite 101 [email protected] Durham, NC 27707 [email protected] Mark Herron [email protected] Robert J. Telfer III Angelina Perez Victor Goode Messer, Caparello & Self, P.A. Dorcas R. Gilmore Post Office Box 1876 NAACP Tallahassee, FL 32302-1876 4805 Mt. Hope Drive [email protected] Baltimore, MD 21215-3297 [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] Benjamin James Stevenson [email protected] ACLU of Florida Foundation Post Office Box 12723 Counsel for Respondents Rene Romo, Pensacola, Florida 32591 Benjamin Weaver, William Everett [email protected] Warinner, Jessica Barrett, June Keener, Richard Quinn Boylan, and Bonita Counsel for NAACP Agan
/s/ John S. Mills Attorney
9
App. 440 IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT IN AND FOR LEON COUNTY, FLORIDA
RENE ROMO, et al, CASE NO: 2012-CA-412
Plaintiffs, vs.
KEN DETZNER and PAM BONDI,
Defendants. ------~/ THE LEAGUE OF WOMEN VOTERS CASE NO: 2012-CA-490 OF FLORIDA, et al,
Plaintiffs, vs.
KEN DETZNER, et al,
Defendants. ------~/ FINAL JUDGMENT
This case is before me following a lengthy bench trial. Plaintiffs claim that the congressional redistricting plan adopted by the Legislature violates Article III, Section 20 of the
Florida Constitution. For the reasons set forth below, I agree, fmding that districts 5 and 10 were drawn in contravention of the constitutional mandates of Article Ill, Section 20, thus making the redistricting map unconstitutional as drawn.
INTRODUCilON
President George Washington, in his farewell address of 1796, warned the new nation of the dangers of political parties.
"However combinations or associations of the above description may now and then answer popular ends, they are likely in the course of time and things, to become potent engines, by which cunning, ambitious, and unprincipled men will be enabled to subvert the power of the
I
Exhibit A App. 441 people and to usurp for themselves the reins of govenunent, destroying afterwards the very engines which have lifted them to unjust dominion ....Without looking forward to an extremity of this kind (which nevertheless ought not to be entirely out of sight), the common and continual mischiefs of the spirit of party are sufficient to make it the interest and duty of a wise people to discourage and restrain it."
His countrymen did not heed Washington's warning and quickly divided themselves into opposing political factions. Though the names have changed over the years, the two major political parties have been battling each other for control over our nation's government ever since. To many, it seems that Washington's fears have been realized. Certain in the rightness of their cause, of the superiority of their ideas and their members, they consider those in the opposing camp to be not only wrong, but a threat to the very foundations of our country. Any idea of the other party is to be opposed fervently. They must win elections and gain or remain in power because, to the partisans, their party's interest is synonymous with the country' s interest.
In short, winning is everything.
One of the ways in which political parties seek to gain or maintain an advantage over the other is through the redistricting process. Every ten years, based on new census data, congressional seats are reapportioned among the states based upon shifting population figures.
To many citizens this process is of mild interest, but to the political parties it is a high stakes proposition, a zero sum game in which one party wins and the other loses - for years to come.
Subtle shifts in a district boundary line can make the difference between a district that is "safe" for a political party or one that is "competitive" between the two. It can make a big difference in the ability to recruit candidates for particular districts, the amount of time, energy and resources
2
App. 442 necessary to give a party's candidate a real chance of success, and ultimately, whether the party can maintain a majority of seats in congress.
Historically, the political party in control ofthe state legislature has been able to draw the new districts in a manner that protects their party and its incumbents. Voter populations are shifted and clustered based upon how they are likely to vote. The result has often been maps with districts that have unusual boundaries and bizarre shapes, as if some abstract artist had been given free rein. This practice has come to be called political gerrymandering and has been criticized as allowing, in effect, the representatives to choose their voters instead of vice versa.
In 2010, the voters of Florida passed two amendments to the Florida Constitution, commonly referred to as the Fair Districts Amendments, aimed at eliminating such political gerrymandering. These amendments are now codified in the Constitution as Article III Section
20, pertaining to congressional redistricting and Article Ill Section 21 , pertaining to state legislative redistricting. These amendments significantly decrease the Legislature's discretion in drawing district boundaries. Specifically forbidden is the drawing of a redistricting plan with the intent to favor or disfavor a political party or incumbent. Section 20 reads as follows:
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 l(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.
3
App. 443 (c)The order in which the standards within subsections l(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.
Art. I£1, § 20, Fla. Const.
Subsection (a) contains tier-one requirements which must be followed. In addition to prohibiting intent to favor or disfavor a political party or incumbent, this subsection contains two distinct protections for racial and language minorities. The first, which prohibits districts which are 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 similar to Section II to of the
Voting Rights Act. Commonly referred to as the "vote dilution" provision, this section requires majority minority districts where certain preconditions are met. The second minority protection prohibits a plan or district from "diminish[ing] their ability to elect representatives of their choice." Commonly referred to as "retrogression," this clause tracks Section 5 of the Voting
Rights Act and prohibits backsliding in the ability of minority groups to elected candidates of their choice. 1
Subsection (b) contains provisions requiring compactness and the following of political and geographic boundaries, where feasible? These traditional redistricting principles, tier-two requirements, must be followed unless doing so would conflict with tier-one requirements.
More than one witness during trial explained their opposition to the passage of these amendments by opining that "you can't take politics out of politics" or that the amendments
would be "impossible to implement." Perhaps, but they are now a part of our organic law and I
am bound to interpret and apply them as best I can in order to give effect to will of the voters as
so expressed. See Re: Senate Joint Resolution ofLegislative Apportionment 1176, 83 So. 3d
1 The contiguity requirement is not at issue in this case. ~ The equal population requirement is not at issue in this case.
4
App. 444 597, 597 (Fla. 2012).3 Any act oflegislation that is in conflict with the organic law of the constitution is not a valid law. This is a fundamental principle of our political and legal system.
This is a case of first impression interpreting Article III Section 20, dealing with congressional re-districting. The Florida Supreme Court, however, has interpreted the analogue provision in Article III Section 21, which applies to state legislative plans. See
Apportionment I, 83 So. 3d 597. This lengthy and comprehensive opinion interprets key terms and explains how the various criteria are to be analyzed in reviewing a redistricting plan for constitutionality. It therefore provides me with a detailed road map for reviewing the congressional plan challenged by Plaintiffs.
STANDARD OF REVIEW
A law passed by the legislature is entitled to a presumption of constitutionality.
The burden to show otherwise is on those who challenge the law, and that burden is generally said to be beyond a reasonable doubt. This is, in fact, the standard I applied when considering motions for summary judgment earlier in this case. The Plaintiffs ask that I reconsider this decision in light of the Florida Supreme Court's holding to the contrary in Apportionment I, and its subsequent language in League of Women Voters of
Fla. v. Fla. House ofRepresentatives, 132 So. 3d 135 (Fla. 2013).
In Apportionment I, the Florida Supreme Court specifically rejected the argument that those who challenge redistricting plans must prove facial invalidity beyond a reasonable doubt. It stated that the plans still come to the Court ..with an initial presumption of validity" .. . and that the review of the plans would be done "with deference to the role of the Legislature in apportionment. .. " but stated that its
3 Hereaft.er Apportionment I.
5
App. 445 constitutionally required independent review brought with it a lesser degree of deference than would be appropriate with other legislation.!d. at 606-607.
The question is whether this different standard of review is a consequence of the nature of the act reviewed (a redistricting plan), the nature of the new criteria required by the Fair District Amendments (the expanded scope of review}, or the specific constitutional mandate that the State House and Senate plans be reviewed by the Florida
Supreme Court irrespective of a specific challenge (the procedural process of obtaining review). It was this latter factor, the constitutional requirement of an independent review,
which I felt distinguished this case from Apportionment I and thus required the traditional
standard of review. Upon reflection, however, I'm not convinced that the different
procedural process requires a different standard of review.
It is true that the constitutional mandate for review by the Florida Supreme Court
is unique. But should the procedural manner in which a plan is brought before the court
for review make a difference in the standard applied in that review? The other two factors
noted by the Supreme Court in Apportionment /, the nature of the legislation and the
criteria to be applied, are the same in this case. The rights protected are just the same and
just as important when redistricting occurs for Congress as it is when it occurs for the
State House and Senate. Should the voters be entitled to less constitutional protection
when the redistricting is for the former rather than the latter? Should actions on the part
of the legislature in the redistricting process be deemed in violation of the constitution in
one instance but not the other?
6
App. 446 I think not, and now conclude that it is the nature of the legislation and the nature of what is reviewed that requires a different standard of review. In Apportionment/, the
Florida Supreme Court observed:
We conclude that the beyond a reasonable doubt standard is ill-suited for an original proceeding before this Court in which we are constitutionally obligated to enter a declaratory judgment on the validity of the legislative plans. Unlike a legislative act promulgated separate and apart from an express constitutional mandate, the Legislature 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.
Apportionment), 83 So. 3d 597 at 607-608;
There is a difference between the Court's role in reviewing a legislative apportionment plan to determine compliance with constitutionally mandated criteria and the Court's role in interpreting statutes; this Court has stated its responsibility in construing statutes differently. For example, in Tyne v. Time Warner Entertainment, 901 So. 2d 802, 810 (Fla. 2006), in upholding a statute as constitutional, the Court stated that it had "an obligation to give a statute a constitutional construction where such a construction is possible." This Court has stated that it is "committed to the fundamental principle that it has the duty if reasonably possible, and consistent with constitutional rights, to resolve doubts as to the validity of a statute in favor of its constitutional validity and to construe a statute, if reasonabl[y] possible, in such a manner as to support its constitutionality -- to adopt a reasonable interpretation of a statute which removes it farthest from constitutional infirmity."
Apportionment/, 83 So. 3d at 607, n. 5 (quoting Corn v. State, 332 So. 2d 4, 8
(Fla. 1976)).
As this language suggests, the reason for the different standard is because apportionment plans cannot be interpreted. The lines are where they are. It is not a question of searching for a reasonable interpretation of a statute which would
7
App. 447 make it constitutional. Rather, the inquiry is into the process, the end result, and the motive behind the legislation.
I will therefore, in this case, apply the standard of review articulated in
Apportionment /, deferring to the Legislature's decision to draw a district in a certain way, so long as that decision does not violate the constitutional requirements, with an understanding of my limited role in this process and the important role of the Legislature. My duty "is not to select the best plan., but to determine whether Plaintiffs have proved the plan invalid. Apportionment I. 83
So. 3d 597 at 608.4
CHALLENGE TO PLAN AS A WHOLE VERUS A CHALLENGE
TO INDIVIDUAL DISTRICTS
Plaintiffs distinguish between their challenge to the redistricting plan as a whole, as being drawn with the intent generally to favor the Republican Party, and their challenge to several individual districts, as being specifically drawn with such intent. I find this to be a false dichotomy, a distinction without difference. The redistricting plan is the result of a single act of legislation. If one or more districts do not meet constitutional muster, then the entire act is unconstitutional. The districts are part of an integrated indivisible whole. So in that sense, if there is a problem with a part of the map, there is a problem with the entire plan. 5
4 As a practical matter, it may make little difference as most of the material facts are not in dispute. Rather, the parties differ as to what inferences and legal conclusions may be properly drawn from those facts. Nor do I interpret Apportionment I as significantly reducing the burden on the Plaintiffs to demonstrate the lack of compliance with constitutional requirements. It remains a high burden.
5 This is consistent with the approach taken by the Court in Apportionment I. The Court invalidated the entire Senate plan but gave specific instructions as to which districts required corrective action. I d. at 684-686.
8
App. 448 That does not mean, however, that portions of the map not affected by those individual districts found to be improperly drawn would need to be changed in a redrawn map, even if a general intent to favor or disfavor a political party or incumbents was proven. What would be the point if the other districts are otherwise in compliance? Such a remedy would go far beyond correcting the effect of such noncompliance, but rather would require a useless act that would encourage continued litigation. Therefore, I have focused on those portions of the map that I find are in need of corrective action in order to bring the entire plan into compliance with the constitution.
EVIDENCE RECEIVED UNDER SEAL OR IN CLOSED PROCEEDINGS
A portion of the trial was closed to the public and certain exhibits entered under seal, pursuant to an order of the Florida Supreme Court. Whether this evidence will ever be made public awaits determination by that court of the correctness of my ruling that the associational I privilege of the non·parties from whom the evidence was obtained should yield to the interest in disclosure.6 For purposes of such review, I will briefly explain how I weighed and balanced the appropriate factors and why I tipped the scales in favor of disclosure. Rather than file a partially redacted order, any reference to such evidence here will be general in nature so as not to reveal the specific information contained in the exhibits and testimony.
As noted in my previous Orders, I found that the non·parties, the political consultants, had cognizable First Amendment Rights in the documents and testimony sought by the Plaintiffs in this case. 7 The privilege is not absolute, however, and I had to weigh and balance the competing interests to determine whether that privilege should yield in favor of disclosure.
6 The 1111 DCA has withdrawn its order reversing my ruling and passed the matter to the Supreme Court. Members of the original panel have set forth in their dissents their reasons for the initial reversal order which I hope to address here.
7 I did not find that a trade secret privilege applied.
9
App. 449 Specifically, I considered the factors set forth in Perry v. Schwarzenegger, 591 F. 3rd 1147 (9th
Circ. 201 0) and determined that the privilege should yield. In the interest of time, I did not elaborate in detail my reasons for that conclusion, announced in open court. I thought it important that the parties know what could and could not be used at trial and that the non-parties have time to obtain a stay if further review was deemed appropriate by the appellate court. The reasons I decided that the associational privilege should yield are as follows:
The case before me of is of the highest importance, going, as it does, to the very foundation of our representative democracy. "Indeed, as [this Court] succinctly stated, it is
"difficult to imagine a more compelling, competing government interest" than the interest represented by the challengers' article III, section 20(a), claims." League of Women Voters, 132
So. 3d 135, 147.
The required disclosure was narrowly tailored and limited. Out of approximately 1800 pages of documents, I required the disclosure of less than a third of those. The disclosure was only to the Plaintiffs' attorneys with instructions that they not disclose it to third parties other than staff or retained experts, including to their own clients. I felt that the Plaintiffs' attorneys were in the best position to determine which of these documents were most probative of their claims. As it turned out, they actually offered as evidence only a very small portion of those
documents as exhibits.
The documents for which the political consultants claimed privilege evidenced a
conspiracy to influence and manipulate the Legislature into a violation of its constitutional duty
set forth in Article 3, Section 20 of the Florida Constitution. That was, at least, a reasonable
conclusion to be drawn from this and other evidence made available to me in the case to that
point. As such, I viewed any chilling effect the release of these documents might have on such
10
App. 450 behavior in the future to be not such a bad thing, and the danger to the legitimate exercise of First
Amendment rights rather slight.
Some of the communications, and a good deal of the map work product of the non-party political consultants, were transmitted to persons outside of their group, and made very public by submission to the legislature. If this did not constitute an outright waiver of the privilege as to these items, it lessened the strength of a legitimate claim to its protection.
Unlike the politically hot button issue of homosexual marriage, present in Perry, the underlying subject matter here was redistricting. Although political partisans are no doubt deeply interested in the process, the redistricting process does not address controversial issues of social and moral values that divide the population. It does not arouse the type of intense passions that might justify a real fear of physical danger or mass public reprisals against the members if the information was made public.
The evidence was highly relevant and not available from other sources. When I considered this factor, I tried my best to look at it from the perspective of the judge rather than the ultimate fact finder, the two roles I play in a non jury trial. One ofthe principal theories of the Plaintiffs in this case was that legislative staff and leaders collaborated with these political consultants to produce a redistricting map that violated the constitution by favoring the
Republican Party and its incumbents.
While it is true that the documents claimed as privileged contain no glaring "smoking gun" in terms of direct communications between the consultants and specific staff or legislators, that does not mean they are not highly relevant. Under their theory of the case, it was essential for the Plaintiffs to first prove that there was a secretive shadow process of map drawing by the
11
App. 451 political consultants which found its way into the enacted congressional map before they could
prove the second prong •• the connection of this process to the Legislature.
Nor was this evidence available from other sources. Yes, the Plaintiffs engaged in
extensive discovery and obtained e·mails and other documentation which they argued was
compelling evidence in support of their claim. But the Plaintiffs' advocacy on this point should
not be confused with the reality of what they actually had - which were bits and pieces of
information which they sought to weave into a narrative consistent with their theory. The
legislature had, in fact, destroyed e-mails and other evidence of communication regarding the
redistricting process and so had many of the non·party political consultants.
Throughout the discovery process, these political consultants maintained that they were
told by legislative leaders that they could not "have a seat at the table" in the drawing of the
redistricting maps, and that they abided by that admonition. They denied having any input in the
Legislative map drawing efforts or otherwise trying to influence how the maps were drawn. They
denied that they submitted maps in the public submission process for redistricting. Any map
drawing on their part was described as a hobby, something for personal use only, an exercise
done to see what could be done on a map and to anticipate what the Legislature might produce.
What this additional evidence gave the Plaintiffs was the ability to confront these denials,
to lay bear not only the fact that some of these consultants were submitting maps to the
legislature, but to show how extensive and organized that effort was, and what lengths they went
to in order to conceal what they were doing. Notably, even in the face of this evidence, the non·
party witnesses at trial did their best to evade answering direct questions on the subject, often
using semantic distinctions to avoid admitting what they had done.
12
App. 452 At the time I considered the issue~ the Plaintiffs did have some evidence that suggested otherwise but, considering the high burden on them to prove their case, I couldn't say that it would have been enough, or that this additional evidence wouldn't be crucial to the case. After all, I had not heard all of the evidence nor had the opportunity to view it in context. Now that I have, I can say that the evidence filed under seal was very helpful to me in evaluating whether
Plaintiffs had proved that first prong of their theory.
Moroever, as noted above, without sufficient proof of this secret, organized campaign to subvert the supposedly open and transparent redistricting process, the question of whether the
Plaintiffs could sufficiently tie the Legislature to that effort becomes moot. To conclude that this evidence was not highly relevant to this central issue of legislative intent would have been to pre judge the case and determine ahead of time that the Plaintiffs would not be able to prove that connection. This I was not prepared to do.
For all of these reasons, I tipped the scales in favor of the First Amendment privileges of the non-parties yielding to the need and interest of disclosure in this particular case.
DETERMING LEGISLATIVE INTENT GENERALLY
One of Plaintiffs' claims is that the entire redistricting process was infected by improper intent. Specifically, they argue that, despite the Legislature's assertion that its redistricting process was open, transparent and non-partisan, a secret, highly partisan map drawing campaign was being conducted in the shadows that was intended to, and did, favor the Republican Party and its incumbents.
The first question in evaluating this claim is to ask, whose intent? The language in
Section 20 prohibits a map being "drawn" to favor or disfavor a political party or an incumbent, not "adopted" or "enacted." Yet, the challenge is to an act passed by the Legislature, a collective
13
App. 453 body. When I asked the attorneys at the beginning of trial about this issue, I posed the hypothetical of a staff member charged with actually drawing the map, who did so with the intent to favor a political party, but hid this intent from other staff and members of the
Legislature. Both sides agreed that it is the Legislature's intent that is at issue, not the staff member. Plaintiffs' attorneys conceded that, without more, this would be insufficient to show improper intent as contemplated by Article III, Section 20 -- though they assert that the evidence indeed shows more.
There are some real problems in trying to make such a determination of legislative intent in this case. First, when we speak oflegislative intent generally, we are concerned with trying to ascertain the meaning of language used in the enacted law. The goal is to interpret the language so as to give it the effect intended. In such a situation, we look to such things as the common meaning of the words used, legislative history, staff reports, statement of legislative intent in the enactment clause, transcripts of committee hearings, and statements made on the floor of the
House and Senate. Some legal scholars suggest that one can never determine legislative intent from such sources, or indeed at al1.8
This problem is exacerbated in a case like the one before me. Here, we are looking at something entirely different. See, e.g., League of Women Voters ofF/a. v. Fla. House of
9 Representatives , 132 So. 3d 135, 150 (Fla. 2013) ("In this context, however, the ·intent' standard in the specific constitutional mandate of article III section 20(a), is entirely different
1 "Anyway, it is utterly impossible to discern what the Members of Congress intended except to the extent that intent is manifested in the only remnant of'history' that bears the unanimous endorsement of the majority in each House: the text of the enrolled bill that became law." Graham County Soil & Water Conservation Disl. v. United States ex. rei. Wilson, 559 US 280, 302 (2010) (Scalia, J .• concurring).
9 Apportionment IV
14
App. 454 than a traditional lawsuit that seeks to determine legislative intent through statutory
construction."). It is not the meaning of the words used in the legislation that must be
interpreted. We can see clearly where the lines are drawn on the map. Rather, the question is
what was the motive in drawing these lines.
In this inquiry, it is extremely unlikely that the bill's sponsor would stand up on the floor
of the House or Senate and advise his or her colleagues that the intent of the legislation is to
favor the Republican Party. Nor would you expect such comments at committee meetings, or
anywhere else in public for that matter. Even if a legislator expressed such intent on the floor,
can we asswne that all of his or her colleagues were convinced and so motivated in their votes?
Do we look to evidence of improper intent of the leaders? If so, how many other
legislators, if any, would need to be "in on it" in order to find it sufficient proof of the body's
intent? What if legislative leaders and staff knew that partisan groups or individuals were
drawing maps with intent to favor a political party and submitting them to the Legislature
through third persons in order to conceal the identity of the map drawer, but they didn't inform
legislative members of this? On the flip side, if leaders took reasonable precautions to insulate
the staff map drawers from partisan influence, should we conclude that the Legislature therefore
had no improper partisan intent in adopting the map? How does that inform us as to what was
motivating the members of the legislature?
Certainly, the actions and statements of legislators and staff, especially those directly
involved in the map drawing process would be relevant on the issue of intent. As the Florida
Supreme Court has explained,
the communications of individual legislators or legislative staff members, if part of a broader process to develop portions of the map, could directly relate to whether the plan as a whole or any specific districts were drawn with unconstitutional intent.... [I]f evidence exists to demonstrate that
15
App. 455 there was an entirely different, separate process that was undertaken contrary to the transparent [redistricting] effort in an attempt to favor a political party or an incumbent in violation of the Florida Constitution, clearly that would be important evidence in support of the claim that the Legislature thwarted the constitutional mandate. Apportionment W, 132 So. 3d at 149-150. See also, e.g., Easley v. Cromartie, 532 U.S. 234, 254
(200 1) (finding "some support" for district court's conclusion that racial considerations
predominated in drawing of district boundaries in email sent from legislative staff member to
two senators); Texas v. United States, 887 F. Supp. 2d 133, 165 (D.D.C. 2012) (noting that an
"email sent between staff members on the eve of the Senate Redistricting Committee's markup
of the proposed plan" fueled the court's "skepticism about the legislative process that created" a
challenged district).
It is very difficult, however, to know when such evidence establishes not just individual
intent or motive, but the intent or motive of the collective body. It seems that the more reliable
focus in such an inquiry would be on what was actually produced by the Legislature, the enacted
map. Specifically, an analysis of the extent to which the plan does or does not comply with tier
two requirements is a good place to start. Can one draw a map that meets tier-two requirements
but nonetheless favors a political party or an incumbent? Sure, but it is more difficult.
Furthermore, a failure to comply with tier-two requirements not only supports an
inference of improper intent, it is an independent ground for finding a map unconstitutional. See
Apportionment I, 83 So. 3d 597 640-641. Additional direct and circumstantial evidence of intent
may serve to strengthen or weaken this inference of improper intent. Therefore, I first examine
the map for apparent failure to comply with tier-two requirements of compactness and utilization
of political and geographical boundaries where feasible, then consider any additional evidence
that supports the inference that such districts are also in violation of tier-one requirements.
16
App. 456 SPECIFICALLY CHALLENGED DISTRICTS
The tier-two standards at issue in this case are compactness and the requirement that districts follow geographic and political boundaries where feasible. Because Florida and many of its counties are cities are not perfectly square or round, there is often tension between these two requirements.
An evaluation as to compactness "begins by looking at the shape of a district."
Apportionment /, 83 So. 3d 597, 634 (internal quotation marks and citation omitted). A district
"should not have an unusual shape, a bizarre design, or an unnecessary appendage unless it is necessary to comply with some other requirement." /d.; see also /d. at 636 (emphasizing that
"non-compact and 'bizarrely shaped districts' require close examination"). Districts "containing
... fmger-like extensions, narrow and bizarrely shaped tentacles, and hook-like shapes ... are constitutionally suspect and often indicative of racial and partisan gerrymandering." ld at 638
(internal quotation marks and alteration omitted). Thus, for example, the Florida Supreme Court struck down several Florida Senate districts in the Initial 2012 Senate Plan in part because those districts had ''visually bizarre and unusual shapes." /d.
The compactness review should also utilize "quantitative geometric measures of compactness" derived from "commonly used redistricting software." /d. at 635. For example, the Florida Supreme Court has relied on the Reock method and the Area/Convex Hull method to
assess compactness of voting districts. See Id. The Reock method "measures the ratio between
the area of the district and the area of the smallest circle that can fit around the district." /d. The
Area/Convex Hull method "measures the ratio between the area of the district and the area of the
minimum convex bounding polygon that can enclose the district." Apportionment I, 83 So. 3d
597, 635.
17
App. 457 Tier-two mandates also direct the Legislature to draw districts utilizing existing political and geographical boundaries where feasible. Political boundaries include "cities and counties,"
/d.at 637, while geographical boundaries include "rivers, railways, interstates and state roads,"
/d at 638. This requirement is more flexible than the compactness requirement. But ''the choice of boundaries" is not "left entirely to the discretion of the Legislature," Id at 63 7, and it may not use any bowuiary (e.g. , a "creek or minor road") that suits its purposes, ld. at 638. In addition, although no priority of importance is given to either, the requirement to use existing boWldaries contains the modifier, "where feasible."
A. Congressional District S
Congressional District 5 does not adhere to the tier-two standards in Article III Section
20. It is visually not compact, bizarrely shaped, and does not follow traditional political boundaries as it winds from Jacksonville to Orlando. At one point, District 5 narrows to the width of Highway 17. The district has a Reock score of only 0.09. Enacted District 5 has majority black voting age population (BV AP), but the benchmark districting was only a plurality
BVAP district. The Defendants' argwnent that the vote dilution provision of Article III Section
20 and Section 2 of the Voting Rights Act required a majority BVAP district and that this configuration was necessary to achieve that end, is not supported by the evidence.
Plaintiffs have shown that a more tier-two compliant district could have been drawn that would not have been retrogressive. The plans proposed by the House of Representatives prior to conference committee plan 9047 being adopted were all more compact and split fewer counties.
While not model tier-two compliant districts, these iterations did avoid the narrow appendage jutting from the body of the district into Seminole County. Such appendages are particularly
suspect of prohibited intent to benefit a political party or incwnbent. Furthennore, the House's
18
App. 458 various iterations achieved a BVAP of between 47 and 48 percent. The House's chief map drawer, Alex Kelly, testified that he performed a functional analysis on these iterations, and that this level of minority population would not have been retrogressive. Indeed, this is higher than the BVAP of benchmark district when it was enacted.
The vote dilution provisions in Article III, Section 20 and in the Voting Rights Act do not require the creation of a majority-minority district wherever possible, but only where certain conditions-conditions first announced in Thornburg v. Gingles, 478 U.S. 30, 50-51
(1986}-are satisfied. Fi.rs4 three preconditions must be present: (i) the minority population is
sufficiently large and geographically compact to be a majority of the voting-age population; (ii)
the minority population is politically cohesive; and (iii) the majority population votes
sufficiently as a bloc to enable it usually to defeat the candidates preferred by minorities.
Apportionment/, 83 So. 3d at 622 (citing Gingles, 478 U.S. at 50-51).
The Legislature made no effort during the redistricting process to determine if the
Gingles preconditions existed for this district, nor does the evidence introduced at trial
demonstrate that they exist now. The minority population is not sufficiently large and
geographically compact to constitute a majority of the voting age population. To achieve a
BV AP over 50%, the district connects two far flung urban populations in a winding district
which picks up rural black population centers along the way. The Gingles compactness inquiry
certainly is focused on more than just district lines. See League of United Latin Am. Citizens v.
Perry, 548 U.S. 399, 433 (2006). But it also doesn't ignore such lines. See /d District 5 is
simply not compact for the purpose of the Gingles analysis.
Nor does the evidence prove the third precondition. There is no dispute that there is
racially polarized voting in Northeast Florida. However, Defendants have not shown that this
19
App. 459 polarization is legally significant. Because "the extent of bloc voting necessary to demonstrate that a minority's ability to elect its preferred representatives is impaired varies according to several factual circumstances, the degree of bloc voting which constitutes the threshold of legal significance will vary from district to district." Thornburg v. Gingles, 478 U.S. at 50. The evidence is Wldisputed that the benchmark district. which was never majority-minority, elected
an African-American to Congress during its entire existence. Additionally, analysis by Dr.
Brunell, an expert retained by the House, suggested that there would be a 50/50 ability to elect a
minority candidate of choice with a BVAP as low as 43.6 %. Thus, the evidence does not
establish that the majority population votes sufficiently as a bloc to enable it usually to defeat
the candidates preferred by minorities.
I also find that the decision to increase the district to majority BVAP , which was
accomplished in large part by creating the finger-like appendage jutting into District 7 and
Seminole County, was done with the intent of benefiting the Republican Party. I reach this
conclusion based in part on the inference that the Florida Supreme Court suggested could be
drawn from oddly shaped appendages that had no legal justification. See Apportionment I, 83 So.
3d at 618 ( ..W]here the shape of a district in relation to the demographics is so highly irregular
and without justification that it cannot be rationally Wlderstood as anything other than an effort
to favor or disfavor a political party, improper intent may be inferred"). This inference is also
buttressed by the evidence of improper intent in the redistricting process generally, and as
specifically related to the drawing of District 5, the most significant of which I will outline now.
1. In General
Plaintiffs' theory of the case regarding improper intent is that Republican leadership in
the House and the Senate, their key staff members, and a small group of Republican political
20
App. 460 consultants conspired to avoid the effective application of the Fair District Amendments to the redistricting process and thereby successfully fashioned a congressional map that favors the
Republican Party and its incumbents. The strategy they carne up with, according to the Plaintiffs, was to present to the public a redistricting process that was transparent and open to the public, and free from partisan influences, but to hide from the public another secretive process. In this secretive process, the political consultants would make suggestions and submit their own partisan maps to the Legislature through that public process, but conceal their actions by using proxies, third persons who would be viewed as "concerned citizens," to speak at public forums from scripts written by the consultants and to submit proposed maps in their names to the
Legislature, which were drawn by the consultants.
What is clear to me from the evidence, as described in more detail below, is that this group of Republican political consultants or operatives10did in fact conspire to manipulate and influence the redistricting process. They accomplished this by writing scripts for and organizing groups of people to attend the public hearings to advocate for adoption of certain components or characteristics in the maps, and by submitting maps and partial maps through the public process, all with the intention of obtaining enacted maps for the State House and Senate and for Congress that would favor the Republican Party.
They made a mockery of the Legislature's proclaimed transparent and open process of redistricting by doing all of this in the shadow of that process, utilizing the access it gave them to
the decision makers, but going to great lengths to conceal from the public their plan and their
participation in it. They were successful in their efforts to influence the redistricting process and
the congressional plan under review here. And they might have successfully concealed their
10 Although one of this group took umbrage at the tenn operative. another self-described himself as such. I wilt use the terms interchangeably to refer to the same group.
21
App. 461 scheme and their actions from the public had it not been for the Plaintiffs' determined efforts to uncover it in this case.
The closer question is whether the Legislature in general, or the leadership and staff principally involved in drawing the maps, knowingly joined in this plan, or were duped by the operatives in the same way as the general public. The Defendants argue that if such a conspiracy existed, there is no proofthat anyone in the Legislature was a part of it. If portions ofthe operatives' maps found their way into the enacted maps, they say, it was not because leadership or staff were told or knew they came from this group, but rather because the staff, unaware of their origins, saw the proposals as improving the draft maps they were working on.
The most compelling evidence in support of this contention of the Defendants is the testimony of the staff members who did the bulk of the actual map drawing for the Legislature. 1 had the ability to judge the demeanor of Alex Kelly, John Guthrie and Jason Poreda at trial and found each to be frank, straightforward and credible. I conclude that they were not a part of the conspiracy, nor directly aware of it, and that significant efforts were made by them and their bosses to insulate them from direct partisan influence. I accept that their motivation in drawing draft maps for consideration of the Legislature was to produce a final map which would comply with all the requirements of the Fair District Amendments, as their superiors had directed them.
That being said, the circumstantial evidence introduced at trial convinces me that the political operatives managed to find other avenues, other ways to infiltrate and influence the
Legislature, to obtain the necessary cooperation and collaboration to ensure that their plan was realized, at least in part. They managed to taint the redistricting process and the resulting map with improper partisan intent. There is just too much circumstantial evidence of it, too many coincidences, for me to conclude otherwise.
22
App. 462 a. Destrudion of Records
The Legislative Defendants argue that despite the extensive discovery conducted by the
Plaintiffs, there is a paucity of documentary evidence that ties the activities of the operatives with a single legislator so as to prove improper legislative intent. I note, however, that the Legislators and the political operatives systematically deleted almost all of their e-mails and other documentation relating to redistricting. There was no legal duty on the part of the Legislature to preserve these records, but you have to wonder why they didn't. Litigation over their plans was
"a moral certainty... as their lawyers put it earlier in this case, and intent would be a key issue in any challenge.
b. Early Meetings of Legislative Leaders and Staff with Political Consultants
In December of 2010 and January of 2011, Legislative leaders, staff members and attorneys met with a group of Republican political consultants to discuss the upcoming 2012 redistricting process. The attendees for one or both included Senator Gaetz, Representative
Weatherford, legislative staff members Alex Kelly, Chris Clark and John Guthrie, counsel for the
House and Senate, Richard Heffley, Marc Reichelderfer, Patrick Bainter, Benjamin Ginsberg,
Joel Springer, Andrew Palmer, and Frank Terraferma.
Clark was the chief legislative aide for Gaetz during the 2012 Redistricting Process and
Guthrie was the Senate staff member in charge of map drawing. Heffiey was a political consultant who has worked with a number of Republican legislators and candidates, including
Gaetz. He was, at the time, under contract with The Republican Party of Florida (RPOF) to provide unspecified services relating to redistricting. Reichelderfer was a political consultant who had worked with a number of Republican legislators and candidates, including Speaker
Dean Cannon. Bainter was a political consultant who had worked with a number of Republican
23
App. 463 legislators and candidates, including Representative Daniel Webster. Bainter was the owner of
Data Targeting, Inc. ("Data Targeting"), a political consulting and polling firm located in
Gainesville, Florida. Ginsberg was an attorney based in Washington, D.C., recognized in the area of redistricting and had represented the National Republican Party in redistricting matters.
He also either was or came to be counsel for Heffley, Reichelderfer and Terraferma. Springer
was employed by the RPOF as director of Senate campaigns. Palmer was employed by the RPOF
as director of House campaigns. Terraferma was a political consultant who worked with a
number of Republican legislators and candidates, including Weatherford.
The meetings were not open to the public, and there is no written record of what was
discussed at either meeting. No one who testified at trial about them seemed to be able to
remember much about what was discussed, though all seemed to agree that the political
consultants were told that they would not have a "seat at the table" in the redistricting process.
No one clearly articulated what that meant exactly, but there was testimony that they were told
that they could still participate in redistricting through the public process "just like any other
citizen." One witness testified that the participants discussed whether a privilege could be
identified to prevent disclosure of redistricting-related communications among political
consultants, legislators, and legislative staff members, and concluded that no privilege would
apply.
Reichelderfer prepared a memorandum following the December, 2010 meeting that
included the following notations: "What is our best operational theory of the language in
[Amendments] 5 and 6 related to retrogression of minority districts?"; "Central FL Hispanic
seats? Pros and Cons"; "Evolution of maps - Should they start less compliant and evolve through
the process - or - should the first map be as near as compliant as possible and change very little?
24
App. 464 Or other recommendations?"; "Communications with outside non-lawyers - how can we make that work?"
There is nothing necessarily sinister about such meetings. Most of the attendees were friends or professional colleagues and perhaps it could be considered a courtesy extended. But it doesn't look good if you are promoting openness, transparency and neutrality in the redistricting process. There was really no reason to convene two meetings just to tell active political partisans of the Republican Party that they would not "have a seat at the table." A letter or e-mail would suffice, or some general public announcement as to what the protocol would be going forward.
And there are a few curious things about these meetings and their connection to subsequent events that are troubling. First, this was a highly partisan group and all the political consultants were very interested in the redistricting process. It is inconceivable to me that, if as testified to, they were advised that they could participate in the public process "just like any other citizen," they would not have done so. How could these political consultants, who were intensely interested in the process, whose jobs or livelihoods were tied into protecting their clients' and their party's interests with respect to redistricting, not take the opportunity to submit proposed maps through the public portal, to attend at least some of the public hearings and speak out?
The reality, and the irony, is that there would be absolutely nothing wrong about the attendees at those meetings submitting proposed maps or partial maps. The difference is, if done in the open, then those reviewing the submissions could take into account the source in evaluating whether it was neutral or whether it might tend to favor or disfavor a political party or
an incumbent. One of the political consultants lamented that if he had submitted maps in his own name, he would probably have come under attack, accused of trying to favor his party or its
25
App. 465 incumbents. Well, of course his submission might be closely scrutinized, in the same way that a proposed map submitted by the Florida Democratic Party might be taken with a grain of salt.
That's how it should be if one is concerned about improper partisan intent influencing the drawing of the map.
Regardless, given the circumstances, it's hard to imagine that the legislative leaders and staffers would not have expected active participation in the public redistricting process by those political consultants at the meetings. And when the process was under way and maps were being submitted by members of the public, and public hearings were being held, and these political consultants were not in attendance, and none of the maps coming from the public had any of their names on them, I would think that the staff and legislative leaders would find it extremely strange, that they might even ask why not But they didn't.
One of the things that the Defendants tout as showing that there was no improper partisan intent in the drafting of the maps is to point to the fact that as things progressed, each succeeding map that was drawn was an improvement over the one before it in terms of compactness, leaving cities and counties intact and following geographical boundaries. Coincidentally, though, that corresponds with a strategy suggested from Reichelderfer's notes, i.e., start with less compliant maps and work toward a more compliant map.
The Defendants also tout the opportunity for the public to have input by submitting proposed maps or partial maps, and by attending public hearings which were held throughout the state. And, the Defendants point out, all of this was open, transparent and on the record.
Although that sounds like a good idea - who can argue that openness and transparency are not
good things when it comes to government - it provided the means by which partisan maps,
secretly drawn and submitted by political operatives, could be incorporated into the enacted map
26
App. 466 with no one in the general public the wiser. Staff members were encouraged to consider maps submitted by the public and if they contained concepts or configurations that made the draft map
"better," to incorporate them.
Paid political operatives aside, when you think about it, anybody who would go to all the trouble of drawing a map and presenting it to the legislature for consideration is probably more likely to be motivated by personal or party politics than by an altruistic desire to draw the most constitutionally compliant map possible, free of any partisan intent. And if so, relying upon publicly submitted maps may not be the best way to protect against partisan influence.
If you choose, however, to accept and perhaps rely upon publicly submitted maps, it seems to me that you should have a way to address the possible, nay probable, partisan intent of the drafters of at least some ofthose maps. The Legislatw'e' s answer was apparently to ignore it.
Both the Senate and the House leadership instructed their staff not to consider the potential political performance of any district drawn (except in the House as to districts involving tier one minority issues), nor were they to concern themselves with the origins or the author of any publicly submitted map.
This seems on its face a neutral approach, and I appreciate the dilemma that arises: If I start evaluating a proposed map for political performance because of suspicion that it is the result of improper panisan intent, and make ..corrections," haven't I now altered the map with the intent to favor or disfavor a political party? While I appreciate this concern, I don't know that it is a satisfactory answer to say that, as long as the improper intent behind a submitted map did not originate with me, and I am not expressly told about it, I don't have to worry about it. Turning a blind eye to the probability of improper intent in these maps is not the same as neutrality.
27
App. 467 Perhaps it would be best to have it out on the table for all to see and evaluate.
Considering political performance is not the same as intending to favor or disfavor a political party or incumbent, and an open process would assist in evaluating which was in play in a particular situation. And in truth, every single legislator or senator could very easily detennine on their own the potential political performance of any district on a proposed map and vote on it accordingly. Any interested citizen could access such information and advise their representative of his or her concerns or feelings about a particular district. You might insulate the staffers from political consultants and partisan influences but you can't insulate the entire
Legislature.
c. Continued Involvement of the Political Consultants in the Redistricting Process
On June 1, 2011, Senator Gaetz sent an email to legislators providing information about upcoming public hearings about the redistricting process. The metadata for the email reveals that a "blind copy" of it was sent to Heffley and Terrafenna. At trial, Senator Gaetz had no explanation for why this was done, pointing out only that the information in the e-mail was public infonnation and that he wasn't sure someone else in his office had not sent it out under his name. Again, there would be absolutely nothing wrong with sending this information to Heffley and Terraferma, but why secretly send a blind copy? And if Senator Gaetz did not send it out, someone in his office was keeping these operatives in the loop.
Two of the consultants, Reichelderfer and Hefley, were directly involved in the redistricting process, acting as go betweens for leadership of the two chambers regarding the redistricting process. This was purportedly because of a lack of a good working relationship between the Speaker of the House and the President of the Senate. Yet, by all accounts, the actual staff members of each chamber who were working on the maps got along well with each
28
App. 468 other, as did the chairmen of the redistricting committees. Regardless, in their insider roles,
Hefley and Reichelderer did not have to speak directly to staff map drawers, or even leadership, to infect and manipulate the map drawing and adoption process.
As noted above, the House and Senate destroyed most e-mails and other records of communications concerning the redistricting process, as did the political consultants. What was recovered, however, allowed the Plaintiffs to show that Kirk Pepper, Deputy Chief of Staff to then Speaker Dean Cannon, was regularly sending to Reichelderfer copies of various draft maps of the Legislature well before they were disclosed to the public.
The Defendants acknowledge that this was improper, but say it is not evidence of improper intent on the part of the Legislature because: I) It was done without permission from his boss; 2) It was not done for the purpose of influencing the actual drafting of the maps; 3)
Pepper had no map drawing responsibilities and gave no directions on how the maps should be drawn; and 4) He was simply trying to give his friend, Reichelderfer, a heads up on what to
expect so that he could get ahead of his competition and better advise his clients.
Pepper and Reichelderfer apparently did communicate about the political performance of
the maps, however, as evidenced by a series of e-mails between the two. For example, on
November 27, 2011, right after receiving an early unpublished copy of the Senate's first draft
congressional map from Pepper, Reichelderfer advised Pepper that the district of Representative
Daniel Webster was "a bit messed up," and Pepper responded by inquiring "performance or
geography?" Mr. Pepper testified that, though it may seem that they were discussing political
performance, his reply to his friend was actually a signal reminding him that they should not
discuss such things. Perhaps, but that is a very unusual and illogical interpretation.
29
App. 469 In an email exchange with Reichelderfer, Representative Cannon commented that "we are in fine shape" as long as "the Senate accommodates the concerns that you [Reichelderfer] and Rich [Heffley] identified in the map that they put out tomorrow." The Defendants explained this exchange by saying that the concerns referred to was the general concern by the House that the Senate map would be so far different than the House map that it would make reconciliation of the two maps difficult. Again, perhaps, but this seems a stretch given the language used.
In October of2011, Frank Terraferma e-mailed Chairman Weatherford reporting that
Pepper was at the Republican Party of Florida huddled on a computer with Rich Hefley and working on "congressional redistricting ifl had to guess." Now, it's certainly possible that
Terrafenna was mistaken or simply speculating without any basis, as was suggested at trial, but one has to wonder why he would make this assumption if Pepper really had nothing to do with the redistricting process. Maybe not officialJy, but as noted above, he was heavily involved in helping his friend, Reichelderfer with inside information. From November 2011 until January
2012, Pepper transmitted at least 24 draft maps to Reichelderfer. In most cases, Pepper provided the draft maps to Reichelderfer before their release to the public. In many cases, Pepper provided Reichelderfer with draft maps that were never released to the public.
Reichelderfer made a number of modifications to these and other maps that he received from Pepper. Some of those revisions combine a District 5 with a Black V AP of over 500/o and a
Hispanic V AP of District 9 over 40%. (Compare CP Ex. 885 with CP Ex. I 050}. As a result of such changes, the performance of Districts 5, 7, 9, and 10 went from being four Democratic perfonning or leaning seats in early maps such as HOOOC900 1 to two Democratic and two
Republican performing seats in the enacted map, HOOOC904 7 based on the results of the 2008
30
App. 470 presidential election. 11 Ind~ many of the maps and partial maps the consultants focused on seemed to be in the Central Florida area, which coincidentally were the areas in the enacted map
I have found to be problematic.
d. Prior Finding of Partisan Intent in State Senate Plan
The Florida Supreme Court found improper partisan intent present in the State Senate
Map. The same process and the same people were involved in drafting the congressional map. It seems unlikely that the same taint would not affect that map as well. Thete is a difference in that the fonner was drawn without any input from the House and the latter the result of a collaborative effort. I note, however, that my concerns with Districts 5 and 10 involve changes to the House's map in deference to the Senate. The problems that I find in Districts 5 and 10 were
not present, at least to the same degree, in the House version.
2. Evidence of Partisan Intent SpecificaUy Related to District 5
The decision to change District 5 to make it a majority BVAP was made at a non-public
meeting attended by Alex Kelly and John Guthrie, the chief map drawers for the House and
Senate respectively, and Will Weatherford and Don Gaetz, chainnen of the redistricting
committees in their respective chambers. They had been given direction before the meeting from
their respective chamber leaders, Speaker of the House Dean Cannon and Senate President, Mike
Haridopolis. Notably, Alex Kelly testified that Speaker Cannon told him that the Senate would
likely request to push District 5 over 500/o BVAP and that they should be prepared to accede to
that request. Speaker Weatherford 12 testified that the House only went along with this request
because the Senate made a "compelling" argument for it, but he could not remember the
substance of the argument. The reason given at trial for this change was that the District was
11 Demographic, election, and compactness data are derived from Joint Exhibit 1, unless otherwise stated. 12 Then Chairman Weatherford
31
App. 471 very close to 50% BVAP and that it seemed prudent to avoid a possible VRA suit by bumping it up enough to create a majority-minority district. That justification is not compelling, without some showing that it was legally necessary to create a majority-minority district.
The changes also increased the Republican performance of neighboring District 7.13 In the version of District 7 House Plan 9043, Alex Sink (D) would have received 48.5% ofthe two- party vote in the 2010 gubernatorial election, Barack Obama (D) would have received 50.5% of the two-party vote in the 2008 presidential election, and Jim Davis (D) would have received
39.7% of the two-party vote in the 2006 gubernatorial election. In the enacted version ofDistrict
7, Alex Sink (D) would have received 47.5% of the two-party vote in the 2010 gubernatorial election, Barack Obama (D) would have received 49.6% of the two-party vote in the 2008 presidential election, and Jim Davis (D) would have received 39.0% of the two-party vote in the
2006 gubernatorial election. The change resulted in a decrease in registered Democrats in
District 7 from 36.00/o to 35.0% based on 2010 general election data.
Based on the above, I find that Plaintiffs have proved that District 5 unnecessarily subjugates tier-two principals of compactness. They have also proved portions of District 5 were drawn to benefit the Republican Party, in violation of tier-one. Accordingly, District 5 is invalid and must be redrawn. Any surrounding districts affect by such a change must likewise be redrawn.
Congressional District 10
District 10 is overall fairly compact. It has a Reock Score of .39 and a Convex Hull
Score of .73. However, there is an odd-shaped appendage which wraps under and around
District 5, running between District 5 and 9. Such appendages render a district not compact
13 The i.n<:reased Republican performance is admittedly marginal, particularly when comparing enacted CD 7 with me analogue district in Senate map 9014. However, close political races are almost always won or lost on the margins.
32
App. 472 pursuant to tier-two standards and should be avoided unless necessary to comply with tier-one requirements. See Apportionment I, 83 So. 3d at 634 (.. Compact districts should not have an unusual shape. a bizarre design. or an unnecessary appendage unless it is necessary to comply with some other requirement"). Plaintiffs have shown that the district could be drawn in a more compact fashion, avoiding this appendage. Plaintiffs adduced multiple iterations emanating from the House redistricting suite which did not contain this appendage and were otherwise more compact. Indeed these iterations were more compact in Central Florida generally, as the chart below will show.
Defendants contend that this appendage, and the configuration of Central Florida
generally, is necessary to achieve tier-one minority protection in both Districts 5 and 9. Because
the appendage is highly populated and white majority, they argue that placing its population in
either of those districts would have impermissibly lowered the minority V AP. I cannot agree.
While the creation of a Hispanic influence district in CD 9 may be a legitimate goal, there
is no evidence before me to suggest that it was entitled to tier-one protection. There was no
Hispanic opportunity district in Central Florida under the benchmark plan. There was no
evidence that a district without the appendage would lead to retrogression elsewhere. Indeed
33
App. 473 House plan 9043 had a non-retrogressive BVAP of 48.03% in CD 5 and a HVAP of 39.59% in
CD 9. 14 Nor is District 9 entitled to vote-dilution protection. There was no evidence to suggest that a Hispanic majority district could be created in Central Florida. Defendants cannot justify deviation from a tier-two constitutional requirement because of a desire to create a Hispanic influence district.
I also find that District 10 was drawn to benefit the Republican Party and the incumbent. l reach this conclusion based in part on the inference that the Florida Supreme Court suggested could be drawn from oddly shaped appendages that had no legal justification. See Apportionment
I, 83 So. 3d at 618. This inference is also buttressed by the general evidence of improper intent outlined above in my analysis of District 5 and the following evidence related specifically to the drawing of District 10.
The appendage benefited the incumbent Representative Webster by returning to District
10 territory that was part of his benchmark District 8 and improved the Republican performance of District 10 in two out of the three elections relied upon by the Florida Supreme Court in
Apportionment I. 1n the version of District 10 in HOOOC9043, Alex Sink (D) would have taken
44.9% of the two-party vote in the 2010 gubernatorial election, Barack Obama (D) would have received 48.0% of the two-party vote in the 2008 presidential election, and Jim Davis (D) would have received 39.00/o of the two-party vote in the 2006 gubernatorial election. 1n the enacted version of District 10, Alex Sink (D) would have received 45.6% of the two-party vote in the
2010 gubernatorial eJection, Barack Obama (D) would have received 47.6% of the two-party vote in the 2008 presidential election, and Jim Davis (D) would have received 38.9% of the two-
14 It is true that CD 9 in plan 9043 did not keep Osceola County whole. The goal of keeping cities and counties whole is laudable and required where "feasible." Compactness on the other hand has no such modifier in its constitutional prescription, "suggesting that in balancing this criterion with compactness. more flexibility is pennitted." /d. at 636.
34
App. 474 party vote in the 2006 gubernatorial election. In addition, the change lowered the number of registered Democrats in District 10 from 37.2% in HOOOC9043 to 36.8% in HOOOC9047 based on 20 10 general election data.
Dr. Ansolabehere also testified that the changes between House plan 9043 and adopted plan 9047 altered the boundaries of that district primarily by moving 80,000 voting age people out of District 10 into District 9, while moving 71,000 voting age people out of District 9 to
District l 0. Dr. Ansolabehere testified that these changes were not necessary to make District 9 a minority-performing district, because without them District 9 was already a minority perfonning district, and the populations that were shifted were majority white populations. As a result of this appendage, the decrease in Democratic registration in District I 0 and corresponding increase in Democratic registration in the already comfortably Democratic District 9 were of significant Republican benefit for a competitive district such as District 10.
Plaintiffs have proved that District 10 unnecessarily subjugates tier-two principles of compactness. They have also proved portions of District 10 were drawn to benefit the
Republican Party, in violation of tier-one. Accordingly, District 10 is invalid and must be redrawn, as must the surrounding districts affected by such change.
Districts 13 & 14
Plaintiffs claim that Districts 13 and 14 are unconstitutional because they violate the tier two standard, requiring that, where feasible, districts should utilize existing political and geographic boundaries. Plaintiffs point to District 14, which reaches across Tampa Bay to take in a portion of South St. Petersburg, splitting the city of St. Petersburg and Pinellas County.
Plaintiffs suggest that this configuration is not justified by any tier-one consideration. They
35
App. 475 suggest that it is indicative of improper intent to benefit the Republican Party and the incwnbent, the late Republican Congressman Bill Young.
The benchmark predecessor to District 14 (District 11 in 2002) had a BYAP population of26.78% and a HV AP of25.84%. As adopted, Congressional District 14 has a BVAP of
25.63% and a HY AP of25.61%. Romo Plaintiffs proposed maps A and B have a BYAP of
21.73% and a HYAP of26.91%
Plaintiffs have not proved tier-two deviations. While the Romo Plaintiffs' proposed map does increase the compactness of District 13, it causes District 14 to become less compact under both Reock and Convex Hull measurements. On a regional level, the Romo proposed map causes every district which touched District 13 and 14 to become less compact than the adopted plan, 9047. As the chart below shows. the Romo maps would decrease the compactness in five of the six districts, while increasing the compactness in only one. The legislature was not required to make this tradeoff in compactness to avoid splitting Pinellas County.
Nor have Plaintiffs proved that the decision to include portions of Pinellas County in
District 14 was the result of partisan mal-intent to benefit the Republican Party. Unlike Districts
5 and 10, there are no flagrant tier-two deviations from which I can infer unlawful intent. The
36
App. 476 decision to have District 14 invade Pinellas County was made early in the process by the professional staff, as most if not all of the iterations emanating from both houses broke into
Pinellas County. Thus, unlike changes made to District 5 by the leaders during conference committee, this decision was made by the Staff whom I have found were insulated from the political consultants. I simply cannot conclude, on partisan effect alone, that the decision to incorporate portions of South St. Petersburg into District 14 was done with the intent to benefit the Republican Party or the incumbant member of Congress.
Districts 21 & 22
Plaintiffs contend that Districts 21 and 22 are invalid. They point to testimony from Alex
Kelly along with redistricting iterations emanating from the House redistricting suite. They suggest it was possible to draw Districts 21 and 22 stacked on top of each other north to south rather than in the adopted configuration with the districts running parallel to each other down the coast. This configuration could have avoided county and city splits. Plaintiffs contend that failure to adopt this configuration was an unnecessary deviation from tier-two requirements and evidenced an intent to benefit the incumbents in that area.
Plaintiffs have not met their burden of proving unnecessary deviation from tier-two requirements. The iteration Plaintiffs point to might be more compliant with tier-two in a vacuum, but they have not shown that it could be achieved without violating tier-one requirements for minority protection in neighboring District 20.15 Alex Kelly did testify that this configuration could be accomplished without retrogression. However, the inquiry does not end there because the benchmark district was a majority black district. CP 905, which was discussed extensively at trial, does not attain majority BVAP status in District 20. There was no testimony at trial about District 20 and whether it met the Gingles preconditions such that it was protected u The Romo Plaintiffs' proposed map adopts the same general configuration as the Legislature's enacted map.
37
App. 477 under the vote dilution provisions of Section 2 of the VRA. Because District 20 was a majority black district in the benchmark, I am reluctant to invalidate the Legislature's plan absent a showing that more tier-two compliant districts could be drawn while not violating either tier-one requirement regarding racial minority protection. See Apportionment /, 83 So. 3d 597, 641 ("If an alternative plan can achieve the same constitutional objectives that prevent vote dilution and retrogression ... without subordinating one standard to another demonstrates that it was not necessary for the Legislature to subordinate a standard in its plan").
Plaintiffs did produce a couple of draft iterations that achieved majority black status for
District 20.16 However, after visually examining these districts I don't find sufficient tier-two improvements to justify invalidating the Legislature's product.17 These districts have a more irregular boundary in Hendry County, compared to the enacted plan. Additionally, the stacked configuration of Districts 21 and 22 causes both districts to be deeply invaded by tentacles reaching from District 20. In enacted plan 9047, District 21 has no such appendage invading it and is quite visually compact. Furthennore, these iterations cause District 23 to become more visually non-compact, creating two distinct areas, joined by a narrower section.
Plaintiffs have not met their burden of showing unnecessary deviation from tier-two requirements given the various tradeoffs required to draw compact districts in the region as a whole. Nor have they shown that improper intent led to the adoption of Districts 21 and 22. My
"duty 'is not to select the best plan, but rather to decide whether the one adopted by the legislature is valid.'" Apportionment I, 83 So. 3d at 608 (quoting In reApportionment Law-
1992,591 So. 2d at 285).
1 ' CP 909; CP913. 11 Plaintiffs did not provide compactness scores for these districts, so my analysis is limited to the ocular test.
38
App. 478 Districts 2S, 26, & 27
Plaintiffs contend that these districts are invalid because the Legislature unnecessarily
split Hendry County between two districts and unnecessarily split the city of Homestead They also contend that the configuration was done to benefit the Republican Party.
Plaintiffs have not proved invalidity. A regional view of South Florida shows that any
tier-two differences between the enacted map and Romo Plaintiffs' maps are de minimis. Indeed
the enacted plan splits the same number of counties, while splitting one less city. Were I to
invalidate the enacted plan based on the objective tier-two evidence before me, I would be
selecting a plan l found subjectively better rather than determining if Plaintiffs have proved the
enacted plan invalid. Id. Nor do I find based on the totality of the evidence that this
configuration was based on unlawful partisan intent. Moreover, I credit the testimony of
Professor Moreno that Romo A & B could have a retrogressive effect on the Hispanic majority
districts in South Florida.
CD20 0.48 0.74 0.49 CD21 0.28 0.60 0.28 0.62 CD22 0.18 0.61 0.22 0.53 CD23 0.27 0.57 0.28 0.56 CD24 0.38 0.73 0.37 0.76 CD25 0.40 0.73 0.42 0.65 CD26 0.18 0.46 0.1 7 0.49 CD27 0.46 0.81 0.59 0.84 0.35 0.67 0.36 0.66 The South Florida Regional Compactness Chart contains compactness scores for all districts included in Palm Beach, Broward, Miami-Dade, and Monroe Counties.
39
App. 479 SouJit Florida Rexional County and CJ!y SpUt Clrart CONGRESSIONAL PLAN ROMOA&B Split Counties 5 5 Counties Splits 19 18 Split Cities 18 19 City Solits 45 42 This table uses the same 9 districts included in the South Florida Regional Compactness Table. "
CONCLUSION
As I fmd the Legislature's remaining affirmative defenses to be without merit, I find the
Congressional Redistricting plan adopted by the Legislature to be constitutionally invalid.
1 '-rbe specifie counties and cities split are as follows:
Congressional Plan Split Counties by Djsaict Romo A &. B Split Couptjes By District Bro~-20,21,22,23,24,25 Bro~d-20,21,22,23,24 Collier- 19,25 Collier- 19, 25 Hendcy- 20, 25 Miami-Dade· 23, 24, 25, 26, 27 Miami-Dade- 23, 24, 25, 26, 27 Palm Beach· 18, 20, 21, 22 Palm Beach· 18, 20, 21,22 St. Lucie- 8, 18
Conmssional Plan Split Cities by District Romo A & B Split Citjes by District Boynton Beach- 20, 22 Coconut Creek- 20,21 Deerfield Beach- 20, 21, 22 Deerfield Beach- 20, 21, 22 Fort Lauderdale- 20, 22. 23 Fort Lauderdale- 20, 22, 23 Hialeah- 25, 27 Hallandale Beach- 23, 24 Homestead. 26, 27 Hollywood- 23,24 Lake Worth- 20, 22 Marg~~te· 20, 21 Lantana-20,22 Miami- 24, 27 Margate- 20, 21 Miramar- 20, 24 Miami- 24, 27 North Miami- 23, 24 Miramar- 24, 25 Oakland Parle- 20,22 Oakland Park- 20, 22 Pembroke Pines- 23,24 Pembroke Pines- 23, 24, 25 Plantation- 20,22 Plantation- 20, 22, 23 Pompano Beach- 20,21.22 Pompano Beach- 20, 21,22 Port St. Lucie- 8, 18 Riviera Beach- 18, 20, 22 Riviera Beach- 18, 20 Royal Palm Beach- 18, 20, 21 North Miami Beac:b- 23, 24 Sunrise- 20, 22, 23 Sunrise- 20, 22, 23 West Palm Beach· 18, 20, 22 Tamarac- 20, 21 West Palm Beach- 18, 20
40
App. 480 Specifically, Districts 5 and 10 were drawn in contravention of Article Ill Section 20 ofthe
Florida Constitution. They will need to be withdrawn, as will any other districts affected thereby.
All additional challenges to the plan are rejected. Jurisdiction is reserved to consider any pending or post-judgment motions, and to enter such further orders as may be necessary to effectuate this judgment or to otherwise fashion an appropriate equitable remedy.
DONE AND ORDERED in Chambers at Tallahassee, Leon County, Florida, this((__'(""' day of July, 2014.
Copies to:
All Counsel of Record
41
App. 481 IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT IN AND FOR LEON COUNTY, FLORIDA
RENE ROMO, et al, CASE NO: 2012-CA-412
Plaintiffs, vs.
KEN DETZNER and PAM BONDI,
Defendants. ______. / THE LEAGUE OF WOMEN VOTERS CASE NO: 2012-CA-490 OF FLORIDA, et al,
Plaintiffs, vs.
KEN DETZNER, et al,
Defendants. ------~' ORDER APPROVING REMEDIAL REDISTRICTING PLAN
THIS CASE is before me following submission of a remedial redistricting plan, passed
by the Legislature during special session. Having considered the remedial plan, Plaintitr s
opposition to the remedial plan, the argument of counsel, and the testimony offered both at trial
and at the remedial hearing, I find the following:
In the Final Judgment entered on July 10, 2014, I declared the redistricting plan enacted
by the Legislature in 2012 constitutionally invalid pursuant to Article Ill, Section 20 of the
Florida Constitution. I specifically invalidated Districts 5 and 10 finding that they unnecessarily
deviated from tier-two traditional redistricting principles and that they were the product of tier-
one-prohibited intent to benefit a political party or incumbent. While I found the plan invalid in
its entirety, I concluded that the entire map did not need to be redrawn. Thus, only Districts 5
1 App.Exhibit 482 B and 10, along with "any other districts affected thereby" were required to be changed during the remedial special session. Final Judgment at 41.
Plaintiffs contend that the remedial plan is still unconstitutional and does not conform to the dictates of the Final Judgment. They contend that changes made by the Legislature in the remedial special session were superficial and did not cure the fundamental flaws I found present in plan 9047. I disagree and find that the remedial plan adequately addresses the constitutional deficiencies I found in the Final Judgment.
At the heart of Plaintiffs argument is a contention that a North-South configuration of
District 5 is anachronistic and unconstitutional under the new standards outlined in Article III,
Section 20. 1 They have three exemplar maps, which have a black opportunity district rwming in
an East-West configuration across North Florida from Jacksonville to Chattahoochee, picking up
portions of Tallahassee along the way.
Plaintiffs argue that their exemplar District 5, which has a black voting age population
(BVAP) of 45.12%, would not be retrogressive and is more compact and splits fewer counties
than District 5 in the remedial plan. 2 They also contend that this East-West configuration allows
District I 0 to become a minority influence district with BVAPs in the various exemplars ranging
from roughly 25% to 27%.
In terms of traditional redistricting principles, tier two requirements, the East-West
configuration is somewhat more compliant. Plaintiffs exemplar District 5 has a Reock score of
.119 and Convex Hull score of .768 (1 is best in both scores). It splits 4 counties. On the other
1 To be sure Plaintiffs stop short of arguing that any North-South configuration would be unconstitutional, though that would be a reasonable inference from their argument. Regardless, none of their exemplar maps, either at trial or in this phase, are North-South oriented. Moreover, the trial testimony was clear that the only way to get anywhere close to 45 % BVAP in North Florida was a Jacksonville to Orlando district or a Jacksonville to Tallahassee district.
2 Because of the way I am deciding the overall issue, I need not reach the question of whether the exemplar district would or would not be retrogressive_ I do point out that the diminution from the benchmark of 4.8% would be higher than any approved by the Supreme Court in Apportionment I.
2 App. 483 hand, remedial District 5 has Reock score of .127 and a convex hull score of .417. It splits 7 counties. Plaintiffs suggest that this is the end of the inquiry and that they have shown that
Remedial District 5 is still invalid.
The Legislature is not required, however, to produce a map that the Plaintiffs, or I, or anyone else might prefer. The Legislature is only required to produce a map that meets the requirements of the Constitution. My "duty 'is not to select the best plan, but rather to decide whether the one adopted by the legislature is valid.'" Apportionment I, 83 So. 3d at 608 (quoting
In reApportionment Law-1992, 597 So. 2d at 285).
There are legitimate non-partisan policy reasons for preferring a North-South
configuration for this district over an East-West configuration, and the Plaintiffs have not offered
convincing evidence that an East-West configuration is necessary in order to comply with tier
one and tier-two requirements of Article III, Section 20.
While District 5 in the remedial map is not a model of compactness, it is much improved.
It sufficiently addresses the concerns I identified in the Final Judgment. The widening of the
district causes it to be less serpentine and visually more compact. It is also numerically more
compact. The remedial map removed the appendage into Seminole County and addressed the
concerns I had that it over-packed minorities into the district for partisan purposes.
Likewise, District 10 in the remedial map is in compliance with the Final Judgment. The
appendage that was drawn with the intent to benefit the incumbent is gone. The district is
otherwise compliant with tier-two criteria.
In their Motion to Alter or Amend the Judgment, the Defendants asked that I clarify that
the 2014 election cycle would go forward under the now stricken map. I denied their motion
3 App. 484 without prejudice and directed the Secretary of State, along with the Supervisors of Elections, to come up with a possible schedule for a special election under a remedial map.
Perhaps I was not as clear in my order as I should have been. What I was looking for was a proposed schedule with specific dates that would allow for a special election prior to the end of
2014, along with any legal or logistical hurdles to holding such an election. This would have
given me a clearer picture of whether it was prudent to attempt a remedy for this election cycle.
An election in 2015 is not a viable option. Plaintiffs asserted in their written objections that an
earlier timetable was legally and logistically doable. However, they have offered absolutely no
evidence to support this claim or to contradict what the Secretary and the Supervisors have
presented. Accordingly, based on the evidentiary record before me, I conclude that a special
election under the remedial map is not an appropriate remedy under the circumstances. The
20 14 elections will have to be held under the map as enacted in 2012.
It is therefore Ordered and Adjudged as follows:
1) The remedial map plan 9057 is hereby approved and declared to be in confonnance
with Article III, Section 20 of the Florida Constitution;
2) The 2014 congressional elections shall proceed under the map originally adopted in
2012;and
3) I reserve jurisdiction to enforce this order and the tenns of the Final Judgment.
DONE AND ORDERED this ct~ day August, 2014.
11 ~ TERRYP. ~esto : All Counsel of Record
4 App. 485 Filing # 19103713 Electronically Filed 10/07/2014 03:00:29 PM
IN THE CIRCUIT COURT FOR THE SECOND JUDICIAL CIRCUIT, IN AND FOR LEON COUNTY, FLORIDA
RENE ROMO, ET AL. CASE NO.: 2012-CA-00412 PLAINTIFFS, VS.
KEN DETZNER AND PAM BONDI,
DEFENDANTS.
THE LEAGUE OF WOMEN VOTERS OF FLORIDA, ET AL., CASE NO.: 2012-CA-00490
PLAINTIFFS, VS.
KEN DETZNER, ET AL.,
DEFENDANTS.
COALITION PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR ATTORNEYS’ FEES AND RESPONSE IN OPPOSITION TO LEGISLATIVE DEFENDANTS’ MOTION FOR ATTORNEYS’ FEES
I. INTRODUCTION
Legislative Defendants respond to Coalition Plaintiffs’ Motion for Attorneys’ Fees (the
“Motion”) with an array of invective, distortions, and attempts at revisionist history. They claim that every single aspect of the Motion is not simply wrong, but sanctionable. For Legislative
Defendants, even the simple argument that Plaintiffs prevailed at a trial that resulted in invalidation of the 2012 Congressional Plan demands sanctions. It is unfortunate, but not surprising, that Legislative Defendants would go to such lengths to deter their challengers from raising good faith arguments, rather than simply meet those arguments on the merits.
For the reasons stated below and in the Motion, this Court should award attorneys’ fees to
Coalition Plaintiffs under either the private attorney general doctrine or the bad faith litigation exception. Even if this Court determines that Coalition Plaintiffs are not entitled to recover their
App. 486 CASE NO.: 2012-CA-00412 CASE NO.: 2012-CA-00490 fees, it should deny Legislative Defendants’ motion for sanctions, which fails to satisfy both the procedural and substantive requirements of Section 57.105, Florida Statutes.
II. ARGUMENT
A. THIS COURT SHOULD RECOGNIZE THE PRIVATE ATTORNEY GENERAL DOCTRINE
Legislative Defendants argue that “[n]o court in this State has ever awarded fees on the basis of a purported ‘private attorney general doctrine’” and that Florida generally follows the
American Rule. (LD Mot. & Resp. at 6). They offer no discussion of the merits of the private attorney general doctrine and do not distinguish – or even address – the numerous cases from other states that adopted the private attorney general doctrine despite following the American
Rule. Instead, Legislative Defendants hope that this Court will accept a page-long string citation of Florida cases reciting the American Rule in place of actual argument. (See id. at 7).
The American Rule is not a talisman that parties may invoke without further analysis to ward off any claim of fees not based on statute or contract. Nor is it impervious to change without regard to the circumstances of particular cases. To the contrary, the American Rule is a creature of common law that can – and often does – yield to competing concerns. Florida, for example, allows for awards of fees without a contract or statute in cases involving bad faith litigation conduct, creation of a common fund, litigation caused by the wrongful act of the defendant, and partnership accountings. See Moakley v. Smallwood, 826 So. 2d 221, 223-24 (Fla.
2002) (bad faith); Bd. of Trustees of City Pension Fund for Firefighters & Police Officers in
Tampa v. Parker, 113 So. 3d 64, 68 (Fla. 2d DCA 2013) (common fund); Martha A. Gottfried,
2 App. 487 CASE NO.: 2012-CA-00412 CASE NO.: 2012-CA-00490
Inc. v. Amster, 511 So. 2d 595, 598 (Fla. 4th DCA 1987) (wrongful act); Larmoyeux v.
Montgomery, 963 So. 2d 813, 818-22 (Fla. 4th DCA 2007) (partnership accounting).1
Parties opposing the private attorney general doctrine in other states, like Legislative
Defendants here, offered the American Rule as their principal objection. In each such case, deciding “[w]hether to adopt the private attorney general doctrine involve[d] a policy choice between encouraging public interest litigation and preserving the ‘American Rule’ of each party bearing its own attorney’s fees absent a statute or contract directing otherwise.” Arnold v. Ariz.
Dep’t of Health Servs., 775 P.2d 521, 537 (Ariz. 1989). After applying this balance, many courts found that the American Rule – however “deeply rooted” – should yield to other public policy considerations. See, e.g., Stewart v. Utah Pub. Serv. Comm’n, 885 P.2d 759, 782 (Utah 1994)
(adopting private attorney general doctrine even though “[t]he general rule in Utah, and the traditional American rule, subject to certain exceptions, is that attorney fees cannot be recovered by a prevailing party unless a statute or contract authorizes such an award”); Montanans for
Responsible Use of Sch. Trust v. State ex rel. Bd. of Land Comm'rs, 989 P.2d 800, 811-12 (Mont.
1999) (recognizing private attorney general doctrine despite both parties’ agreement that
“Montana has followed the American rule”); Deleon Guerrero v. Commonwealth Dep’t of Pub.
Safety, 2013 WL 6997105, at *4 (N.M.I. Dec. 19, 2013) (rejecting argument that “stare decisis prevents us from adopting the private-attorney-general exception because the American Rule has long been recognized in the Commonwealth and this Court’s case law has not formally adopted
1 Legislative Defendants claim that Coalition Plaintiffs “misunderstand the [common fund] doctrine” by describing it as an exception to the American Rule. (LP Mot. & Resp. at 8). Yet that is exactly how Florida courts have characterized it. See Hilton Oil Transp. v. Oil Transp. Co., 659 So. 2d 1141, 1153 (Fla. 3d DCA 1995) (describing common fund doctrine, bad faith exception, and private attorney general doctrine as “[e]xceptions to the general ‘American Rule’”). Several states recognizing the private attorney general doctrine likewise point to the common fund doctrine as evidence of the erosion of the American Rule. See infra p. 4.
3 App. 488 CASE NO.: 2012-CA-00412 CASE NO.: 2012-CA-00490 the exception”). In fact, several such cases relied on other exceptions to the American Rule already accepted in Florida as examples of the erosion of the American Rule. See Arnold, 775
P.2d at 537 (common fund doctrine); Stewart, 885 P.2d at 782 (bad faith exception and common fund doctrine); Montanans, 989 P.2d at 811 (bad faith exception and common fund doctrine).
Courts generally consider three factors in awarding fees under the private attorney general doctrine: (1) “the strength or societal importance of the public policy vindicated by the litigation,” (2) “the necessity for private enforcement and the magnitude of the resultant burden on the plaintiff,” and (3) “the number of people standing to benefit from the decision.” Serrano v. Priest, 569 P.2d 1303, 1314 (Cal. 1977). Legislative Defendants do not even attempt to claim that these factors are not present here, presumably because they know that any such argument would be entirely frivolous. Indeed, several courts have found that redistricting cases involve precisely the circumstances for which the private attorney general doctrine is intended. See, e.g.,
Hellar v. Cenarrusa, 682 P.2d 524, 531 (Idaho 1984) (applying private attorney general doctrine in redistricting case); Hickel v. Se. Conference, 868 P.2d 919, 923-27 (Alaska 1994) (same).
The strength and social importance of the public policy vindicated by this case could not be greater, going to the core of our representative democracy. Both this Court and the Florida
Supreme Court have repeatedly stated as much. See League of Women Voters of Fla. v. Fla.
House of Representatives, 132 So. 3d 135, 151 (Fla. 2013) (“Apportionment IV”) (recognizing that this case “involves nothing less than the public’s interest in ensuring compliance with a constitutional mandate in a process [the Florida Supreme Court] has described as the very bedrock of our democracy”) (internal quotes omitted); id. at 147 (holding that “as [this Court] succinctly stated, it is difficult to imagine a more compelling, competing government interest” to overcome legislative privilege “than the interest represented by [Plaintiffs’] article III, section
4 App. 489 CASE NO.: 2012-CA-00412 CASE NO.: 2012-CA-00490
20(a) claims”) (internal quotes omitted); Final J. at 10 (noting that this case “is of the highest importance, going, as it does, to the very foundation of our representative democracy”).
Throughout the course of this litigation, the Attorney General and other government agencies made no effort to investigate the 2012 Redistricting Process or to enforce Article III,
Section 20, even after significant evidence of misconduct emerged in discovery. Instead, at the pretrial conference, the Attorney General characterized itself as a “nominal party” and asked for leave not to attend trial. (Ex. 1 at 82:6-21). As a result, private enforcement became necessary, and the resultant burden on the Plaintiffs was immense, given the vigorous opposition and obstruction they faced from Legislative Defendants and their co-conspirators.
Finally, a large number of people benefitted from this case. Legislative Defendants’ remedial plan redrew seven districts encompassing over 4.5 million Floridians. Although that number is large enough, the reach of this case extended indirectly to all of Florida’s voters, who overwhelmingly demanded constitutional constraints in the reapportionment process.
This Court acknowledged that evidence of constitutional impropriety came to light only from Plaintiffs’ “determined efforts to uncover it in this case.” (7/10/14 Final J. at 22). If fee reimbursement were denied, the result would be to deter future private litigants from engaging in similar efforts to uncover official wrongdoing where the Attorney General and other public investigative agencies have taken no action. In these circumstances, the American Rule should yield in favor of the competing policy of encouraging public interest litigation.
B. THE STOCKMAN RULE DOES NOT APPLY TO FEES AWARDED UNDER THE PRIVATE ATTORNEY GENERAL DOCTRINE
Legislative Defendants argue that Coalition Plaintiffs cannot invoke the private attorney general doctrine because they did not plead entitlement to fees. For this proposition, Legislative
Defendants rely on Stockman v. Downs, 573 So. 2d 835 (Fla. 1991). The pleading requirement
5 App. 490 CASE NO.: 2012-CA-00412 CASE NO.: 2012-CA-00490 set forth in Stockman does not apply for at least two reasons. First, Stockman held that, with certain exceptions, a party must plead fees sought “pursuant to statute or contract.” Id. at 838; see also id. at 837 (“[W]e hold that a claim for attorney’s fees, whether based on statute or contract, must be pled.”) (emphasis added). Neither Stockman nor any decision following it appears to have addressed the situation in which fees are sought pursuant to a common law doctrine such as the common fund doctrine or the private attorney general doctrine.2
Second, the Stockman rule only requires pleading “where the entitlement to fees and costs existed from the outset based upon a contract or statute which was the subject of the underlying claim or defense.” Cooper v. Marriott Int’l, Inc., 16 So. 3d 156, 159 (Fla. 4th DCA 2009)
(emphasis in original). If “the entitlement to fees and costs arose during the suit based upon some event which is supplemental to the underlying action,” fees need not be pleaded. Id.
(emphasis in original). Florida courts have applied this exception in various circumstances where activities during the litigation itself affected entitlement to fees. See, e.g., id. at 160
(finding pleading not required where party sought fees because outcome of court proceeding was not more favorable than prior arbitration); Ocean Bank v. Caribbean Towers Condo. Ass'n, Inc.,
121 So. 3d 1087, 1090 (Fla. 3d DCA 2013) (holding that fees need not be pleaded in dispute over liability for condominium assessments after foreclosure sale); Ganz v. HZJ, Inc., 605 So. 2d
871, 872 (Fla. 1992) (holding that fees under Section 57.105 need not be pleaded).
The private attorney general doctrine falls within this exception because it requires consideration of “the necessity for private enforcement and the magnitude of the resultant burden on the plaintiff.” Serrano, 569 P.2d at 1314; see also Hellar, 682 P.2d at 531 (same); Deleon,
2 Parties must also plead fees sought as an element of their damages pursuant to the wrongful act doctrine. Such pleading is required, however, because the requested fees are special damages that must be specifically alleged in accordance with Rule 1.120(g), Florida Rules of Civil Procedure. See Robbins v. McGrath, 955 So. 2d 633, 634 (Fla. 1st DCA 2007).
6 App. 491 CASE NO.: 2012-CA-00412 CASE NO.: 2012-CA-00490
2013 WL 6997105, at *8 (same). Coalition Plaintiffs and this Court could not evaluate either factor until after litigation commenced. During the litigation, the Attorney General or another public agency could have investigated and prosecuted the Legislature’s constitutional violations and lessened Plaintiffs’ burden in that regard. Even after significant evidence of misconduct came to light, the Attorney General did not adopt an enforcement role and instead asked for permission not to attend trial. It was, of course, impossible for Coalition Plaintiffs to know that public entities would assume no investigative or enforcement role at the time of filing, and this
Court likewise could not be in a position to evaluate the respective roles of Plaintiffs, the
Attorney General, and other public entities until after the conclusion of litigation.
Similarly, the magnitude of the burden of enforcement cannot be determined without reviewing the history of the litigation. It was not clear from the outset, for example, that
Plaintiffs would face a scorched-earth strategy from Legislative Defendants and their partisan operative co-conspirators involving numerous appeals, assertions of legislative and associational privileges, repeated efforts to obstruct and mislead, and attempts to smear Plaintiffs and distract from merits of the case through claims of unclean hands and fraud on the court. Nor was it apparent that Plaintiffs would have to piece together their case in the face of a systematic destruction of redistricting-related records. In that sense, the private attorney general doctrine is akin to the bad faith litigation exception – which Legislative Defendants agree need not be pleaded. (See LD Mot. & Resp. at 5-6 n.2). Just as bad faith tactics cannot be evaluated until they occur in a lawsuit, courts cannot determine whether private enforcement was necessary and imposed a sufficient burden until after the dust has cleared in litigation. Thus, the Stockman pleading rule does not apply to claims for fees under the private attorney general doctrine.
7 App. 492 CASE NO.: 2012-CA-00412 CASE NO.: 2012-CA-00490
C. COALITION PLAINTIFFS ARE ENTITLED TO FEES BASED ON THE BAD FAITH EXCEPTION
Notwithstanding the American Rule, “attorney’s fees can be awarded in situations where one party has acted vexatiously or in bad faith.” Moakley, 826 So. 2d at 224. Such fees may be based on bad faith conduct either “in the actions that led to the lawsuit” or “in the conduct of the litigation.” Bitterman v. Bitterman, 714 So. 2d 356, 365 (Fla. 1998) (citation omitted). As examples of bad faith litigation conduct, the Florida Supreme Court in Bitterman cited cases in which the opposing party engaged in “recalcitrance” and adopted a “callous attitude” in litigation, and “plaintiffs of small means” were subjected to “discriminatory and oppressive conduct by a powerful labor organization.” Id. (citing Vaughan v. Atkinson, 369 U.S. 527, 530-
31 (1962), and Rolax v. Atlantic Coast Line R.R. Co., 186 F.2d 473, 481 (4th Cir. 1951)).
Legislative Defendants respond to Coalition Plaintiffs’ claim for fees under the bad faith exception (also referred to as the inequitable conduct doctrine) by offering brazen misrepresentations, distorting Coalition Plaintiffs’ position, and engaging in transparent hyperbole. They first proclaim that Coalition Plaintiffs raise certain arguments “to appease their principals at the Democratic Party.” (LD Mot. & Resp. at 9). As Coalition Plaintiffs have repeatedly made clear, the Democratic Party is not their “principal,” nor does it in any way direct their activities. It is, however, a fitting reflection of the history of this litigation that, even while accusing Coalition Plaintiffs of unsupported claims, Legislative Defendants make a statement unsupported by a shred of evidence to distract from the actual issues before this Court.
Legislative Defendants then assert that their litigation conduct reflects mere good faith opposition to Coalition Plaintiffs’ claims. To advance this argument, they attempt to dissociate themselves from the partisan operatives and criticize Coalition Plaintiffs for treating the operatives as the “interchangeable alter egos” of the Legislature. (Id. at 10). Although these
8 App. 493 CASE NO.: 2012-CA-00412 CASE NO.: 2012-CA-00490 efforts to distance themselves from the partisan operatives are highly questionable,3 the bad faith conduct at issue ultimately resides with Legislative Defendants themselves. After vigorously contesting the FairDistricts Amendments at the ballot box and in litigation, Legislative
Defendants undertook a redistricting process infused with partisan intent and undermined the very public process that they trumpeted as a model of government in the sunshine. They communicated with partisan operatives using personal email accounts, DropBoxes, and surreptitiously delivered thumb drives. And then they systematically deleted their redistricting- related records. After attempting to eliminate evidence of their partisan efforts, Legislative
Defendants falsely represented to the Florida Supreme Court and this Court that the public process was indicative of their non-partisan intent – when, in fact, the opposite was true.
The course of this litigation was dominated by discovery battles, unfounded charges of unclean hands and fraud on the court, and difficult and costly efforts to piece together what actually happened in the redistricting process in the face of document purges and secret meetings. Using the essentially unlimited taxpayer resources at their disposal, Legislative
Defendants drove up the costs of litigation and distracted from the merits to deter Plaintiffs and future challengers and thereby avoid constitutional constraints in redistricting. These actions, taken both before and during litigation, represent precisely the sort of bad faith tactics that justify an award of attorneys’ fees under the inequitable conduct doctrine.
Legislative Defendants cast Coalition Plaintiffs’ request for fees as an “angry diatribe,”
(LD Mot. & Resp. at 11); charge Coalition Plaintiffs with an “unfortunate penchant for telling
3 This Court found that “the political operatives . . . cooperat[ed] and collaborat[ed]” with Legislative Defendants “to ensure that their plan was realized, at least in part.” (Final J. at 22). Although Legislative Defendants helpfully point out that they formally “took no position” during the discovery disputes with the partisan operatives, (LD Mot. & Resp. at 10), it strains credibility to suggest that the Republican legislative leadership had no input whatsoever in discovery battles fought by their collaborators and funded by the Republican Party of Florida.
9 App. 494 CASE NO.: 2012-CA-00412 CASE NO.: 2012-CA-00490 lurid and dramatic stories at the expense of the truth,” (id. at 16); and claim that Coalition
Plaintiffs fail to provide specific instances of bad faith conduct, (id. at 11-12). To borrow a phrase from Legislative Defendants, suggestions that Coalition Plaintiffs are part of a lunatic fringe have “an all-too-familiar ring.” (Id. at 8). Before trial, Legislative Defendants assured this Court that Plaintiffs’ theory of the case is a “[f]ascinating story, but the thing is it’s a story,” that “will not be supported by the facts.” (Ex. 1 at 59:1-3). Yet this Court ultimately invalidated the 2012 Congressional Plan based, in part, on the conspiracy that Plaintiffs set out to prove.
Coalition Plaintiffs’ Motion identifies several specific instances of bad faith litigation conduct, including Legislative Defendants’ intentional deletion of redistricting-related records and unfounded claims of unclean hands and fraud on the court. To address their spoliation of evidence, Legislative Defendants attempt to revise history, contending that “[t]here was zero evidence of a ‘frenzied’ or selective destruction of evidence.” (LD Mot. & Resp. at 16). As this
Court is aware, virtually all of the evidence of the conspiracy with partisan operatives came from third parties because Legislative Defendants destroyed precisely the documents that undermined their claims of an apolitical, open, and transparent process. It seems unlikely that Legislative
Defendants, by pure chance, deleted incriminating evidence when they regarded litigation to be a moral certainty, while leaving documents lauding the public process untouched.
In asserting unclean hands and fraud on the court, Legislative Defendants argued that
Coalition Plaintiffs concocted a fraudulent scheme to conceal the methodology behind their ultimately withdrawn alternative map and then to mislead this Court into adopting their map in the initial summary judgment proceedings before discovery could occur. The record, however, reflects that Coalition Plaintiffs repeatedly disclosed their methodology, requested expedited discovery, and never urged adoption of their initial remedial map to the exclusion of other options. (See CP Resp. to LD Mot. for Sanctions for Fraud on the Court). Coalition Plaintiffs
10 App. 495 CASE NO.: 2012-CA-00412 CASE NO.: 2012-CA-00490 and this Court were nevertheless required to devote time and resources to addressing Legislative
Defendants’ unfounded accusations shortly before trial. Despite Legislative Defendants assurances of good faith, their conduct before and during litigation and persistent efforts to defend an apolitical process that they knew did not exist require an award of fees.
D. PLAINTIFFS PREVAILED AT TRIAL
Legislative Defendants argue that Plaintiffs are not the prevailing parties because they did not succeed on every individual district challenge, did not obtain the precise remedy requested, and ultimately took an appeal. A party is the “prevailing party” when it “prevail[s] on the significant issues in the litigation.” Moritz v. Hoyt Enters., Inc., 604 So. 2d 807, 810 (Fla. 1992).
This standard requires more than merely balancing successful district challenges against unsuccessful district challenges. To use damages cases as an analogy, a party may “prevail” for fee purposes even when it receives significantly lower damages than requested. See, e.g.,
Hingson v. MMI of Fla., Inc., 8 So. 3d 398, 400-02 (Fla. 2d DCA 2009) (finding that employee prevailed despite seeking several hundred thousand dollars and obtaining only $31,000); Cmty.
Design Corp. v. Antonell, 459 So. 2d 343, 346 (Fla. 3d DCA 1984) (holding that fees may be awarded under prevailing party standard “when there is an affirmative judgment rendered, even if it is for less than the amount claimed and recovery is not had on all counts”). A prevailing party determination, therefore, does not involve merely counting dollars or successful district challenges. The reviewing court must instead decide “which party has in fact prevailed on the significant issues tried before the court.” Moritz, 604 So. 2d at 810.
Plaintiffs’ central contention in this case was that Legislative Defendants drew the 2012
Congressional Plan with improper intent in violation of Article III, Section 20. To prove their case, Plaintiffs dedicated the majority of their presentation at trial to Legislative Defendants’ conspiracy with partisan operatives and to challenges to Districts 5 and 10, which were particular
11 App. 496 CASE NO.: 2012-CA-00412 CASE NO.: 2012-CA-00490 focuses of the operatives. This Court ultimately found a conspiracy that caused the 2012
Congressional Plan to be infused with partisan intent, (Final J. at 10, 21-22); rejected Legislative
Defendants’ affirmative defenses, (id. at 40); invalidated the 2012 Congressional Plan, (id. at 40-
41); and identified particular defects in Districts 5 and 10, (id. at 18-35). This Court determined that Legislative Defendants – despite their vehement arguments to the contrary – “cooperat[ed] and collaborat[ed]” with partisan operatives, who “made a mockery of the Legislature’s proclaimed transparent and open process of redistricting” and “managed to taint the redistricting process and the resulting map with improper partisan intent.” (Id. at 21-22). As for Districts 5 and 10, this Court found improper intent to benefit the Republican Party and incumbents, coupled with unjustified deviations from tier-two criteria. (Id. at 32, 34-35). These conclusions hardly reflect a trial at which Legislative Defendants, rather than Plaintiffs, prevailed. Because
Plaintiffs successfully proved Legislative Defendants’ overall improper intent and invalidated the most litigated districts, they prevailed on the significant issues, regardless of whether other individual district challenges did not succeed.4
Legislative Defendants point out that a prevailing party determination should be made on the respective counts of a multi-count complaint if “each claim is separate and distinct and would
4 Legislative Defendants’ “district count” is self-serving and illogical. Legislative Defendants count Districts 5 and 10 as the only two “wins” for Plaintiffs, even though seven districts were affected by their redrawing. Yet they claim Districts 13, 14, 15, 21, 22, 25, 26, and 27 as eight separate “losses,” even though several of these districts were part of Plaintiffs’ claims only because defects in other districts impacted them. An example of what Legislative Defendants are able to accomplish through this alchemy is to exclude District 7 (affected by District 5) and District 9 (affected by District 10) from the “win” column for Plaintiffs, while inflating the “loss” column through the inclusion of District 13 (affected by District 14) and District 26 (affected by District 27). It is also difficult to understand how two purported “losses” on Districts 21 and 22, which consumed only a small part of the litigation, could somehow neutralize the two “wins” on Districts 5 and 10. Issues of this sort do not trouble Legislative Defendants when they declare victory by a concocted margin of 8 to 2.
12 App. 497 CASE NO.: 2012-CA-00412 CASE NO.: 2012-CA-00490 support an independent action, as opposed to being an alternative theory of liability for the same wrong.” Folta v. Bolton, 493 So. 2d 440, 442 (Fla. 1986). A redistricting challenge cannot, however, be neatly divided into “separate and distinct” claims. As this Court recognized:
The redistricting plan is the result of a single act of legislation. If one or more districts do not meet constitutional muster, then the entire act is unconstitutional. The districts are part of an integrated indivisible whole. So in that sense, if there is a problem with a part of the map, there is a problem with the entire plan.
(Final J. at 8). Because district challenges are not independent claims, but part of an interrelated challenge to the constitutionality of the map, the Folta principle does not apply.
Legislative Defendants then assert that Plaintiffs did not prevail because this Court approved the remedial plan enacted in special session. This argument is akin to claiming that a party “wins” a case by satisfying an unfavorable judgment. Merely purporting to correct constitutional violations does not somehow transform Legislative Defendants into prevailing parties. In similar circumstances, the Alaska Supreme Court held that the challengers of a reapportionment plan could recover their attorneys’ fees without any reduction for unsuccessful arguments during the remedial phase. See Hickel, 868 P.2d at 926-27. The court reasoned:
Plaintiffs’ work on remand and post-remand was related to their work in having the Governor’s plan held unconstitutional. They were understandably reluctant to bow out at the remedy stage and leave the preparation of a remedial plan to the State. In fact, both the superior court and this court recognized the propriety of plaintiffs’ ongoing participation in the superior court’s development of an interim plan [by permitting competing interim plans and objections to be submitted]. . . . Therefore, the trial court did not err as matter of law in declining to separate the stages of the litigation, since they came before the final judgment and were significantly related.
Id. The remedial phase of this case was similarly intertwined with the finding of unconstitutionality, and this Court offered Plaintiffs an opportunity to raise objections to the remedial plan before entering its final judgment on remedy. (See Order on Defs. Mot. to Amend
13 App. 498 CASE NO.: 2012-CA-00412 CASE NO.: 2012-CA-00490
Judgment at 5-6). The mere fact that the Court did not adopt one of Plaintiffs’ competing remedial plans in no way deprives them of their prevailing party status.
Finally, Legislative Defendants argue that Plaintiffs’ appeal strips them of their prevailing party status based on the following platitude: “It is the loser in litigation that appeals – not the winner.” (LD Mot. & Resp. at 19). A party, of course, has the right to appeal any unfavorable ruling, even if it succeeded in every other aspect of the case. There is no basis in law or logic for requiring a prevailing party to abandon its appeal rights before seeking fees.
As with most of Legislative Defendants’ positions, their prevailing party argument is calculated to intimidate and deter future challenges to redistricting plans. If plaintiffs could recover their litigation expenses only when they prevail on all or the majority of their district challenges and then forego the right to appeal any unsuccessful arguments, they would be deterred from pursuing claims directed to districts that are arguably unconstitutional for fear of losing entitlement to fees. The result would be less scrutiny of redistricting plans –the opposite of what the FairDistricts Amendments are meant to accomplish. See Apportionment IV, 132 So.
3d at 148 (“[I]n enacting these constraints on the Legislature’s reapportionment of congressional and state legislative districts, the framers and voters clearly desired more judicial scrutiny of the apportionment plans, not less.”) (internal quotes omitted). Despite Legislative Defendants’ best efforts to revise history and discourage scrutiny, Plaintiffs prevailed on the significant issues tried in this case and, therefore, are the prevailing parties for fee purposes.
E. RESPONSE TO LEGISLATIVE DEFENDANTS’ MOTION FOR SANCTIONS
Coalition Plaintiffs are entitled to recover their attorneys’ fees based on either the private attorney general doctrine or the bad faith litigation exception for the foregoing reasons and the reasons stated in the Motion. But, even if this Court denies fees, there is certainly no basis for sanctions because Legislative Defendants have not demonstrated that Coalition Plaintiffs knew
14 App. 499 CASE NO.: 2012-CA-00412 CASE NO.: 2012-CA-00490 or should have known that their request for attorneys’ fees lacks a reasonable basis in fact or law, nor have they complied with the “safe harbor” requirement of Section 57.105(4).
(1) Legislative Defendants Have Not Established Entitlement to Sanctions Pursuant to Section 57.105
Sanctions under Section 57.105 may be imposed only when:
[T]he court finds that the losing party or the losing party’s attorney knew or should have known that a claim or defense . . . (a) Was not supported by the material facts necessary to establish the claim or defense; or (b) Would not be supported by the application of then-existing law to those material facts.
FLA. STAT. § 57.105(1). Notwithstanding this standard, courts cannot award sanctions when “the claim or defense was initially presented to the court as a good faith argument for the extension, modification, or reversal of existing law or the establishment of new law, as it applied to the material facts, with a reasonable expectation of success.” FLA. STAT. § 57.105(3)(a).
The First District has cautioned that Section 57.105 “must be applied carefully to ensure that it serves the purpose for which it was intended, which was to deter frivolous pleadings.”
Wendy’s of Ne. Fla., Inc. v. Vandergriff, 865 So. 2d 520, 523 (Fla. 1st DCA 2003). Merely presenting a losing argument does not justify imposition of sanctions, as long as the position was not “completely lacking in merit.” Id. at 524. Because “Florida favors access to the courts,”
Section 57.105 “provide[s] a remedy only where the plaintiff’s complaint is completely untenable.” Bowen v. Brewer, 936 So. 2d 757, 763 (Fla. 2d DCA 2006) (citation omitted). If a less stringent standard were applied, “the point of the statute would be subverted and, in the end,
[Section 57.105] might even have the reverse effect of making civil litigation more expensive.”
Bridgestone/Firestone, Inc. v. Herron, 828 So. 2d 414, 419 (Fla. 1st DCA 2002). Worst yet,
“unrestrained assessment of fees” might lead to an “unconstitutional infringement of our citizens’
15 App. 500 CASE NO.: 2012-CA-00412 CASE NO.: 2012-CA-00490 right of access to the courts, as guaranteed by article I, section 21, of the Florida Constitution.”
Connelly v. Old Bridge Village Co-Op, Inc., 915 So. 2d 652, 656 (Fla. 2d DCA 2005).
Courts must take care not to endorse attempts to invoke Section 57.105 as an
“overaggressive tactic to threaten” an opponent “into withdrawing a good faith argument.” State
Farm Mut. Auto. Ins. Co. v. Mid-Florida Imaging, 21 Fla. L. Weekly Supp. 865a (Fla. 9th Cir. Ct.
Dec. 11, 2013) (attached as Ex. 2). Requests for fees that are “colorable” – even if they require
“the establishment of new law or the expansion of existing law” – do not warrant sanctions. Id.
In State Farm, an appellate panel of the Ninth Judicial Circuit went so far as to sanction a party for seeking sanctions against an unsuccessful fee movant because Section 57.105 “should not be construed to discourage a party from pursuing a colorable claim for . . . fees.” Id.
Legislative Defendants adopt a scattershot approach to their request for sanctions, contending that every single aspect of the Motion warrants sanctions. First, they insist that
Coalition Plaintiffs’ request for fees under the private attorney general doctrine has no
“reasonable expectation of success” because “[n]o court in this State has ever awarded fees on the basis of a purported ‘private attorney general doctrine’” and the American Rule is “well settled” in Florida. (LD Resp. & Mot. at 6-7). By this logic, no party could ever breathe the words “private attorney general doctrine” in motion papers without risking sanctions, and no
Florida court would ever be able to pass upon the question. This type of effort to chill and deter advocacy for the expansion of law is, of course, exactly what Section 57.105 was not meant to accomplish. Coalition Plaintiffs readily acknowledge that Florida generally follows the
American Rule, with notable exceptions. That does not mean that they cannot argue for this
Court to adopt a doctrine recognized in other states following the American Rule – and which no
16 App. 501 CASE NO.: 2012-CA-00412 CASE NO.: 2012-CA-00490
Florida court has yet rejected.5 In each state that adopted the private attorney general doctrine, there was necessarily a “first” case that carved new ground. And, in many of those decisions, the courts specifically addressed the American Rule and found that it, as a judicially created doctrine, must yield to competing interests where the plaintiff acts as a private attorney general. See, e.g.,
Stewart, 885 P.2d at 782; Montanans, 989 P.2d at 811-12; Deleon, 2013 WL 6997105, at *4.
Legislative Defendants cannot contort Section 57.105 into a weapon that deprives Coalition
Plaintiffs of the ability to argue that the American Rule should similarly yield in Florida.
Just as Florida courts have not yet passed upon the substantive contours of the private attorney general doctrine, the same is true of the applicable pleading requirements. Absent guidance in that regard, Coalition Plaintiffs can reasonably argue that pleading entitlement to fees is not required because the Stockman pleading rule is limited to fee requests “pursuant to statute or contract,” Stockman, 573 So. 2d at 838, and does not extend to cases in which the right to fees arises based on events occurring during the litigation, Cooper, 16 So. 3d at 159.
Finally, Legislative Defendants have identified no sanctionable conduct in regard to
Coalition Plaintiffs’ request for fees under the inequitable conduct doctrine and claim that they are the prevailing parties in this case. Legislative Defendants offer only unsubstantiated invective and revisionist history to claim that their conduct was pure and that they somehow prevailed in this case despite invalidation of the 2012 Congressional Plan. Accordingly, this
Court should deny Legislative Defendants’ request for sanctions under Section 57.105.
5 At least one Florida court has identified the private attorney general doctrine as an exception to the American Rule, but did not apply the doctrine on the facts of the case before it. See Hilton Oil, 659 So. 2d at 1153-54 (declining to apply doctrine where “the benefit of the arbitration award was conferred solely upon Hilton Oil by the arbitrators and not some identifiable class”).
17 App. 502 CASE NO.: 2012-CA-00412 CASE NO.: 2012-CA-00490
(2) Legislative Defendants Have Failed to Satisfy the Safe Harbor Requirement Because They Did Not Properly Serve Their Motion
Section 57.105(4) provides: “A motion by a party seeking sanctions under this section must be served but may not be filed with or presented to the court unless, within 21 days after service of the motion, the challenged . . . claim . . . is not withdrawn or appropriately corrected.”
If the moving party fails to properly serve the motion for sanctions and await expiration of the
“safe harbor” period, the court cannot impose sanctions. See, e.g., City of N. Miami Beach v.
Berrio, 64 So. 3d 713, 714-15 (Fla. 3d DCA 2011); Davidson v. Ramirez, 970 So. 2d 855, 856-
57 (Fla. 3d DCA 2007). The requirement of prior service, like the remainder of Section 57.105,
“must be strictly construed.” Matte v. Caplan, 140 So. 3d 686, 689 (Fla. 4th DCA 2014).
Legislative Defendants served their motion for sanctions on counsel for Coalition
Plaintiffs by e-mail. (See Ex. 3). A party may effect service by sending an e-mail “to all addresses designated by the attorney or party with either (a) a copy of the document in PDF format attached or (b) a link to the document on a website maintained by a clerk.” FLA. R. JUD.
ADMIN. 2.516(b)(1)(E). Rule 2.516 imposes the following requirements for e-mail service:
(i) All documents served by e-mail must be sent by an e-mail message containing a subject line beginning with the words “SERVICE OF COURT DOCUMENT” in all capital letters, followed by the case number of the proceeding in which the documents are being served.
(ii) The body of the e-mail must identify the court in which the proceeding is pending, the case number, the name of the initial party on each side, the title of each document served with that e-mail, and the name and telephone number of the person required to serve the document.
(iii) Any document served by e-mail may be signed by any of the “/s/”, “/s”, or “s/” formats.
(iv) Any e-mail which, together with its attached documents, exceeds five megabytes (5MB) in size, must be divided and sent as separate e-mails, no one of which may exceed 5MB in size and each of which must be sequentially numbered in the subject line.
18 App. 503 CASE NO.: 2012-CA-00412 CASE NO.: 2012-CA-00490
Id.
Because Legislative Defendants elected to serve their motion for sanctions by e-mail, they must “strictly” – not merely “substantially” – comply with the requirements of Rule 2.516.
Matte, 140 So. 3d at 690. In Matte, the movant attempted to serve a motion for sanctions by e- mail, but failed to comply with several of the requirements of Rule 2.516. Id. at 689.
Specifically, the attached motion was “in Word format instead of a PDF or link”; “the subject line failed to state ‘SERVICE OF COURT DOCUMENT’ and contained a number that does not correlate with the circuit court case number”; and the body of the email “failed to contain any of the required information listed in [Rule 2.516(b)(1)(E)(ii)].” Id. Even though the other party in fact received the motion, the Matte court denied sanctions and, in doing so, rejected any notion that “actual notice” or “substantial compliance” could cure the service defects:
Appellant argues that because the appellee had actual notice of the motion and its contents, he substantially complied with the statute. In Anchor [Towing, Inc. v. Fla. Dep’t of Transp., 10 So. 3d 670 (Fla. 3d DCA 2009)], however, the letter received by the plaintiff put the plaintiff on actual notice of the issues and the fact that a motion would be filed seeking section 57.105 attorney’s fees, yet the Third District still held that strict compliance with the statute was necessary. We conclude that actual notice does not allow a party to evade strict compliance with the rule.
Litigants should not be left guessing at what a court will deem is “substantial compliance” with the rules and statutes for the imposition of attorney’s fees as a sanction. Just as is the case with Rule 1.442 regarding proposals for settlement, a bright line rule requiring service in conformity with the mandatory provisions of the rule provides certainty to both parties as to whether attorney’s fees may be assessed if the court finds that the action or defense is frivolous. We hold that strict compliance with Florida Rule of Judicial Administration 2.516 regarding e- mail service of pleadings is required before a court may assess attorney’s fees pursuant to section 57.105, Florida Statutes.
Id. at 690.
Legislative Defendants’ service email violates several requirements of Rule 2.516. The subject line of the e-mail does not capitalize “SERVICE OF COURT DOCUMENT,” nor does it
19 App. 504 CASE NO.: 2012-CA-00412 CASE NO.: 2012-CA-00490 include the case number. The attached motion is 13 MB in size – almost three times the allowable limit – and is not divided into “separate e-mails . . . sequentially numbered in the subject line.” FLA. R. JUD. ADMIN. 2.516(b)(1)(E)(iv). Although Legislative Defendants will no doubt attempt to dismiss these service defects as mere trifles, it is no defense that the violations are purportedly insubstantial or did not deprive Coalition Plaintiffs of actual notice.6 Because
Legislative Defendants have not strictly complied with Rule 2.516, they cannot obtain sanctions under Rule 2.516 even apart from the substantive deficiencies in their motion.
III. CONCLUSION
This Court should award attorneys’ fees to Coalition Plaintiffs under either the private attorney general doctrine or the bad faith exception. Even if this Court does not award such fees, it should not countenance Legislative Defendants’ efforts to force withdrawal of good faith arguments through a motion for sanctions that is both procedurally and substantively deficient.
Accordingly, and for all of the reasons stated herein and in the Motion, this Court should
(1) award Coalition Plaintiffs their reasonable attorneys’ fees; (2) deny Legislative Defendants’ request for sanctions; and (3) grant such other and further relief as is just and proper.
6 The Matte court emphasized that the e-service requirements are not simply stylistic guidelines. The requirement of “capitalized notification” in the subject line, for example, “is critical to assure that the recipient opens the e-mail and reviews the document promptly,” considering that “anyone with an e-mail account knows that users frequently receive many e-mails about many different topics.” Matte, 140 So. 3d at 689-90. The file size limit is likewise necessary to avoid disputes over whether the recipient’s server refused delivery because of file size.
20 App. 505 CASE NO.: 2012-CA-00412 CASE NO.: 2012-CA-00490
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on October 7, 2014 I filed the foregoing using the State of
Florida ePortal Filing System. I further certify that a copy of the foregoing has been served via email on all counsel of record listed on the Service List below.
/s/ David B. King David B. King Florida Bar No.: 0093426 Thomas A. Zehnder Florida Bar No.: 0063274 Frederick S. Wermuth Florida Bar No.: 0184111 Vincent Falcone III Florida Bar No.: 0058553 KING, BLACKWELL, ZEHNDER & WERMUTH, P.A. P.O. Box 1631 Orlando, FL 32802-1631 Telephone: (407) 422-2472 Facsimile: (407) 648-0161 [email protected] (Primary) [email protected] (Primary) [email protected] (Primary) [email protected] (Primary) [email protected] (Secondary) [email protected] (Secondary)
and
Gerald E. Greenberg Florida Bar No.: 0440094 [email protected] Adam M. Schachter Florida Bar No.: 647101 [email protected] GELBER SCHACHTER & GREENBERG, P.A. 1441 Brickell Avenue, Suite 1420 Miami, FL 33131 Telephone: (305) 728-0950 Facsimile: (305) 728-0951
Counsel for the Coalition Plaintiffs
21 App. 506 CASE NO.: 2012-CA-00412 CASE NO.: 2012-CA-00490
SERVICE LIST
Gerald E. Greenberg Michael B. DeSanctis Adam M. Schachter Jessica Ring Amunson GELBER SCHACHTER & GREENBERG, P.A. Paul Smith 1441 Brickell Avenue, Suite 1420 JENNER & BLOCK, LLP Miami, Florida 33131 1099 New York Ave NW, Suite 900 [email protected] Washington, DC 20001 [email protected] [email protected] [email protected] [email protected] [email protected] Ronald G. Meyer Lynn Hearn J. Gerald Hebert MEYER, BROOKS, DEMMA and BLOHM, 191 Somervelle Street, #415 P.A. Alexandria, VA 22304 131 North Gadsden Street [email protected] Post Office Box 1547 Tallahassee, FL 32302 Counsel for Coalition Plaintiffs [email protected] [email protected]
Counsel for Coalition Plaintiffs
Blaine Winship J. Andrew Atkinson Timothy D. Osterhaus Ashley Davis Office of the Attorney General of Florida General Counsel The Capitol, Suite PL-01 Florida Department of State Tallahassee, FL 32399-1050 R.A. Gray Building [email protected] 500 S. Bronough Street
Counsel for the Attorney General Tallahassee, FL 32399 [email protected] [email protected] [email protected]
Counsel for Florida Secretary of State
George T. Levesque Charles T. Wells General Counsel George N. Meros, Jr. THE FLORIDA SENATE Jason L. Unger 404 South Monroe Street, Suite 409 Andy Bardos Tallahassee, Florida 32399 GRAYROBINSON, P.A. [email protected] P.O. Box 11189 (32302) [email protected] 301 South Bronough Street, Suite 600 [email protected] Tallahassee, Florida 32301 [email protected] Michael A. Carvin [email protected] Louis K. Fisher
22 App. 507 CASE NO.: 2012-CA-00412 CASE NO.: 2012-CA-00490
JONES DAY [email protected] 51 Louisiana Avenue N.W. [email protected] Washington, D.C. 20001 [email protected] [email protected] [email protected] [email protected] [email protected] Raoul G. Cantero Jason N. Zakia Matthew J. Carson Jesse L. Green General Counsel WHITE & CASE LLP Florida House of Representatives Southeast Financial Center, Ste. 4900 422 The Capitol 200 South Biscayne Boulevard Tallahassee, FL 32399-1300 Miami, FL 33131 [email protected] Telephone: (305) 371-2700 Facsimile: (305) 358-5744 Counsel for Florida House of [email protected] Representatives [email protected] [email protected] [email protected] [email protected]
Counsel for the Florida Senate
John M. Devaney Allison J. Riggs, Admitted Pro Hac Vice Mark Erik Elias Anita S. Earls PERKINS COIE, LLP Benjamin Stevenson 700 Thirteenth Street, NW, Suite 700 SOUTHERN COALITION FOR SOCIAL Washington, D.C. 20005 JUSTICE [email protected] 1415 W. Highway 54, Suite 101 [email protected] Durham, NC 27707 [email protected] [email protected] [email protected] [email protected] [email protected] Abha Khanna Kevin J. Hamilton Victor L. Goode PERKINS COIE, LLP Dorcas R. Gilmore 1201 Third Avenue, Suite 4800 NAACP Seattle, Washington 98101-3099 4805 Mt. Hope Drive [email protected] Baltimore, MD 21215-3297 [email protected] [email protected] [email protected] [email protected]
Mark Herron, Esq. Counsel for Intervenor/Defendant, NAACP Robert J. Telfer III, Esq. Angelina Perez, Esq. Messer, Caparello & Self, P.A. Post Office Box 1876
23 App. 508 CASE NO.: 2012-CA-00412 CASE NO.: 2012-CA-00490
Tallahassee, FL 32302-1876 [email protected] [email protected] [email protected] [email protected] [email protected] [email protected]
Counsel for Romo Plaintiffs
24 App. 509 Filing # 19103713 Electronically Filed 10/07/2014 03:00:29 PM
CASE NO.: 2012-CA-000412/2012-CA-000490
EXHIBIT 1 EXCERPTS TO PRETRIAL CONFERENCE TRANSCRIPT
TO COALITION PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR ATTORNEYS’ FEES AND RESPONSE IN OPPOSITION TO LEGISLATIVE DEFENDANTS’ MOTION FOR ATTORNEYS’ FEES
App. 510 1
IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT, IN AND FOR LEON COUNTY, FLORIDA
RENE ROMO, et al.
Plaintiffs, vs. CASE NO: 2012-CA-412
KEN DETZNER and PAM BONDI,
Defendants.
THE LEAGUE OF WOMEN VOTERS OF FLORIDA, et al.
Plaintiffs, vs. CASE NO: 2012-CA-490
KEN DETZNER, et al.
Defendants. /
IN RE: Pending Motions
BEFORE: HONORABLE TERRY P. LEWIS
DATE: May 9, 2014
TIME: Commenced at 9:00 a.m. Adjourned at 2:30 p.m.
PLACE: Leon County Courthouse Tallahassee, Florida
REPORTED BY: SARAH B. GILROY, RPR, CRR [email protected] Notary Public in and for the State of Florida at Large
ACCURATE STENOTYPE REPORTERS, INC. App. 511 59
10:16 1 MR. MEROS: Fascinating story, but the thing
10:16 2 is it's a story. It will not be supported by the
10:16 3 facts.
10:16 4 Dean Cannon, Speaker of the House, will come
10:16 5 in here and testify under oath to this court that
10:16 6 not a single line was drawn at anyone's request,
10:17 7 behest, suggestion, influence, other than the
10:17 8 discussions of Alex Kelly, Jason Poreda, John
10:17 9 Guthrie on the Senate side, and an overview by the
10:17 10 speaker's office. And two directions; number one,
10:17 11 directions to the political consultants from
10:17 12 January of 2011, five months before the census data
10:17 13 even was out and usable, these two secret meetings
10:17 14 at our office. What the testimony will show is
10:17 15 that the political consultants wanted to play a
10:17 16 role. They very much hoped they could play a role.
10:17 17 In the past, before these amendments, they could
10:17 18 play a role. They did play a role.
10:17 19 But the speaker was perfectly okay with the
10:17 20 fact that they requested a meeting of us to say,
10:17 21 okay, these things have passed. Now what do we do?
10:17 22 Can we participate? Can we not? How can one
10:17 23 comply with these --
10:17 24 MR. KING: Excuse me, Your Honor.I don't
10:18 25 mean to object, but I've got to, because I think
ACCURATE STENOTYPE REPORTERS, INC. App. 512 82
11:04 1 the testimony, present it by video. It's going to
11:04 2 be the same thing, you know; it just won't be live.
11:05 3 But if you can, certainly do it.
11:05 4 Okay. What else you want to talk about? I'm
11:05 5 ready.
11:05 6 MR. WINSHIP: Your Honor, Blaine Winship with
11:05 7 the attorney general. The attorney general is just
11:05 8 a nominal party in this case. We are --
11:05 9 THE COURT:A very important --
11:05 10 MR. WINSHIP:-- in the Romo, not in the
11:05 11 League of Women Voters case. We have taken no
11:05 12 discovery, no discovery from us, no exhibits, no
11:05 13 witnesses. Not going to be doing anything to make
11:05 14 this trial last any longer.
11:05 15 THE COURT: Thank you.
11:05 16 MR. WINSHIP: The only thing I ask of you is
11:05 17 if it would be all right with you have leave not to
11:05 18 be required to be in attendance during the entirety
11:05 19 of the trial.
11:05 20 THE COURT: Yes, sir.
11:05 21 MR. WINSHIP: Thank you.
11:05 22 MR. ZEHNDER: Your Honor,I know there are a
11:05 23 couple of motions that the parties intend to argue
11:05 24 today. But just another maybe housekeeping matter,
11:05 25 so we can cross it off the list. On page 13 of the
ACCURATE STENOTYPE REPORTERS, INC. App. 513 Filing # 19103713 Electronically Filed 10/07/2014 03:00:29 PM
CASE NO.: 2012-CA-000412/2012-CA-000490
EXHIBIT 2 STATE FARM MUTUAL AUTOMOBILE INSURANCE CO. V. MID FLORIDA IMAGING
TO COALITION PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR ATTORNEYS’ FEES AND RESPONSE IN OPPOSITION TO LEGISLATIVE DEFENDANTS’ MOTION FOR ATTORNEYS’ FEES
App. 514 21 Fla. L. Weekly Supp. 865a
Online Reference: FLWSUPP 2109CARM
Top of Form
Insurance -- Attorney's fees -- Appellate -- Justiciable issues -- Claim or defense not supported by material facts or applicable law -- Where medical provider presented colorable argument for extension of existing law, and insurer and its counsel knew or should have known that provider's conduct did not warrant motion for sanctions and attorney's fees under section 57.105, insurer's motion for sanctions is denied and provider is awarded appellate attorney's fees for its defense against insurer's motion
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, vs. MID FLORIDA IMAGING a/a/o ANGEL CARMONA, Appellee. Circuit Court, 9th Judicial Circuit (Appellate) in and for Osceola County. Case No. 2010-AP-02. County Case No. 2004-SC-1807. December 11, 2013. Appeal of Osceola County Court Amended Final Judgment Awarding Attorneys' Fees and Costs Ronald A. Legendre, County Judge. Counsel: Betsy E Gallagher, for Appellant. Kevin B Weiss, for Appellee.
(Before DAWSON, HIGBEE, POLODNA, JJ.)
FINAL ORDER DENYING APPELLANT'S MOTION FOR SANCTIONS PURSUANT TO FLA. STAT. SECTION 57.105 AND GRANTING APPELLEE'S MOTION FOR SANCTIONS PURSUANT TO FLORIDA STATUTES SECTION 57.105
(DAWSON, Judge.) On July 26, 2013, this Court issued a decision affirming the trial court's Final Judgment Awarding Fees and Costs. On August 21, 2013, the Court entered an Order Granting Appellee's Motion to Tax Appellate Attorney Fees and Costs. On September 9, 2013, Appellant filed Appellant's Motion For Rehearing of Order Granting Appellee's Motion to Tax Attorney's Fees and Costs arguing that this Court erred in awarding appellate attorney's fees. On September 13, 2013, Appellee filed Appellee's Response to Appellant's Motion for Rehearing of Order Granting Appellee's Motion to Tax Attorney's Fees and Costs. On October 1, 2013, the Court entered an Order Granting Appellant's Motion for Rehearing of Order Granting Appellee's Motion to Tax Attorney's Fees and Costs and Order Denying Appellee's Motion to Tax Attorney's Fees and Costs. On October 2, 2013, Appellant filed Appellant's Motion for Appellate Attorney's Fees Pursuant to § 57.105, Fla. Stat. On October 10, 2013, Appellee filed Appellee's Response to Appellant's Motion for Sanctions Pursuant to § 57.105, Fla. Stat. . Then on October 28, 2013, Appellee filed Appellee's Motion for Sanctions Pursuant to Florida Statutes 57.105, Regarding Appellant's Motion for Sanctions Pursuant to Fla. Stat. Section 57.105. Finally, on November 12, 2013, Appellant filed Response to Appellee's Motion for Sanctions Pursuant to Florida
App. 515 Statutes 57.105, Regarding Appellant's Motion for Sanctions Pursuant to Fla. Stat. Section 57.105. This Order addresses Appellant's October 2, 2013, 57.105 Motion and Appellee's October 28, 2013, 57.105 Motion. The Court reviewed both Motions, both Responses, is fully advised in the premises, and finds as follows:
A. Florida Statute § 57.105 states, in the pertinent part: a. (1) Upon the court's initiative or motion of any party, the court shall award a reasonable attorney's fee, including prejudgment interest, to be paid to the prevailing party in equal amounts by the losing party and the losing party's attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party's attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial: i. (a) Was not supported by the material facts necessary to establish the claim or defense; or ii. (b) Would not be supported by the application of then-existing law to those material facts. b. (2) At any time in any civil proceeding or action in which the moving party proves by a preponderance of the evidence that any action taken by the opposing party, including, but not limited to, the filing of any pleading or part thereof, the assertion of or response to any discovery demand, the assertion of any claim or defense, or the response to any request by any other party, was taken primarily for the purpose of unreasonable delay, the court shall award damages to the moving party for its reasonable expenses incurred in obtaining the order, which may include attorney's fees, and other loss resulting from the improper delay. c. (3) Notwithstanding subsections (1) and (2), monetary sanctions may not be awarded: i. (a) Under paragraph (1)(b) if the court determines that the claim or defense was initially presented to the court as a good faith argument for the extension, modification, or reversal of existing law or the establishment of new law, as it applied to the material facts, with a reasonable expectation of success. ii. (b) Under paragraph (1)(a) or paragraph (1)(b) against the losing party's attorney if he or she has acted in good faith, based on the representations of his or her client as to the existence of those material facts.
B. An appellate court has authority to impose sanctions under Florida Statute § 57.105 for conduct occurring in the appellate court. Boca Burger, Inc. v. Forum, 912 So. 2d 561, 573 (Fla. 2005) [30 Fla. L. Weekly S539a]; Charlton v. Black Diamond Properties, 17 So. 3d 790 (Fla. 5th DCA 2009) [34 Fla. L. Weekly D1656a]. If a court awards fees pursuant to the statute, it must make an express finding that the claim was frivolous and, where the trial court imposes liability for the fee award against counsel, an express finding that the attorney was not acting in good faith based upon the representations of his client. See, e.g., Valdes v. Lovaas, 784 So. 2d 474,
App. 516 475 (Fla. 3d DCA 2001) [26 Fla. L. Weekly D724b]; Weatherby Assocs., Inc. v. Ballack, 783 So. 2d 1138, 1143 (Fla. 4th DCA 2001) [26 Fla. L. Weekly D873a]; Ferdie v. Isaacson, 8 So. 3d 1246, 1250 (Fla. 4th DCA 2009) [34 Fla. L. Weekly D898a].
C. In Appellant's Motion for Appellate Attorney's Fees Pursuant to § 57.105, Fla. Stat. Appellant seeks attorney's fees because Appellee's April 15, 2011 Motion to Tax Appellate Attorney Fees and Costs is meritless and Appellee failed to “voluntarily confess that the August 26, 2013 Order is erroneous or to concede to the Motion for Rehearing on Order Granting Appellee's Motion to Tax Appellate Attorney's Fees and Costs.” Appellant's Motion for Appellate Attorney's Fees Pursuant to § 57.105, Fla. Stat., pg. 7.
D. In Appellant's Motion For Rehearing of Order Granting Appellee's Motion to Tax Attorney's Fees and Costs and Appellant's Motion for Appellate Attorney's Fees Pursuant to § 57.105, Fla. Stat., Appellant argues that a Court cannot award attorney's fees for time spent litigating the amount of an award of attorney's fee. This Court agrees that the Florida Supreme Court held in State Farm Fire & Casualty Co. v. Palma that the Court cannot award attorney's fees for time spent litigating the amount of an award of attorney's fee or the entitlement to a multiplier. State Farm Fire & Casualty Co. v. Palma, 629 So.2d 830 (Fla. 1993). In Appellee's Response to Appellant's Motion for Rehearing of Order Granting Appellee's Motion to Tax Attorney's Fees and Costs Appellee also agrees “that an insurer is not required to pay attorney's fees for the time spent litigating entitlement to a multiplier.” Appellee's Response to Appellant's Motion for Rehearing of Order Granting Appellee's Motion to Tax Attorney's Fees and Costs, pg. 3. However, Appellee argued that attorney's fees may be awarded when the insurer denies entitlement to specific hours and hourly rates. Id. Appellee argued that the issue on appeal was entitlement to attorney's fees because Appellant denied entitlement to certain hourly rates and denied entitlement to 63.1 hours because the hours were incurred in another case. Id. at 3-4.
E. While the Court vacated the Order Granting Appellee's Motion to Tax Appellate Attorney Fees and Costs and issued a new Order Denying Appellee's Motion to Tax Attorney's Fees and Costs, the Court did not find that Appellee's Motion was meritless or frivolous. The Court granted a rehearing because the Court overlooked Appellant's Response to Appellee's Motion for Attorney's Fees filed on May 23, 2011. Order Granting Appellant's Motion for Rehearing or Order Granting Appellee's Motion to Tax Attorney's Fees and Costs and Order Denying Appellee's Motion to Tax Attorney's Fees and Costs, pg. 2. The Court found that “Appellant contested the amount of fees, specifically the hourly rates, the amount of hours, and the application of a lodestar multiplier. Appellant did not contest Appellee's entitlement to fees.” Id. pg. 4. The Court did not elaborate on this finding.
F. Appellee's argument that Appellant contested entitlement to fees is a compelling argument, particularly the argument that entitlement was at issue when Appellant argued that Appellee sought hours for work conducted in the Fluharty case. Appellant's Fluharty argument did not an attempt to cut hours for clerical work, Appellant wanted to cut hours because Appellant
App. 517 contended Appellee already received payment for the hours claimed, in another case. This is a unique factual situation. This Court can see how another Court might interpret these facts to raise an issue of entitlement. The fact that this Court did not find that an issue of entitlement existed, does not mean that Appellee's argument is meritless or frivolous.
G. The Ninth Judicial Circuit in a previous appellate opinion Mauricio Chiropractic West v. MGA Insurance Co. Inc. found that “Mauricio Chiropractic is entitled to an award of attorney's fees that it incurred for litigating the issue of its failure to file a written motion for attorney's fees and costs.” Mauricio Chiropractic West v. MGA Insurance Co. Inc., 20 Fla. L. Weekly Supp. 761a (August 2, 2012). This was an entitlement issue because MGA Insurance sought a complete denial of recovery and was not contesting the amount of fees. Id. This Court considered whether Appellant sought a complete denial of recovery when it argued that the hours were earned in the Fluharty case.
H. Appellee presented a meritorious argument in the April 15, 2011 Motion to Tax Appellate Attorney Fees and Costs and in the September 13, 2013 Response to Appellant's Motion for Rehearing of Order Granting Appellee's Motion to Tax Attorney's Fees and Costs. The Court agrees with Appellee that the law remains unclear whether the complete denial of Appellee's specified time entries qualifies as an entitlement issue rather than an amount issue. The Court agrees with Appellee that this analysis depends on the specific facts of each case. Appellee's legal argument clearly sought to further expand and refine State Farm Fire & Casualty Co. v. Palma, 629 So.2d 830 (Fla. 1993). Asking this Court to award appellate fees against the Appellee for presenting a good faith interpretation of Palma only serves to intimidate attorneys from challenging existing law. Appellee had a reasonable expectation of success. Florida Statute § 57.105 is not designed to prevent attorneys from arguing for the establishment of new law or the expansion of existing law. Sanctions against Appellee are not appropriate.
I. The Court takes issue with Appellant's overaggressive tactic to threaten Appellee. Entitlement to attorney's fees is hotly contested in insurance cases and is a factual issue determined on a case by case basis. The Court agrees with Appellee that Appellant used Florida Statute § 57.105 to intimidate Appellee into withdrawing a good faith argument. Furthermore, Appellee conceded that attorney's fees were not available for litigating the amount of fees and entitlement to a multiplier. Although this Court granted rehearing and vacated the order granting appellate fees to Appellee, it did not do so lightly, without close examination and deliberation. The Court never made a finding that Appellee's position was frivolous or meritless when it vacated the Order Granting Appellee's Motion to Tax Appellate Attorney Fees and Costs.
J. Appellant and Appellant's Counsel knew or should have known that the issue before the Court was a justiciable issue and one that is debated in Florida courts. Appellant presented an improper argument in a baseless attempt to deceive this Court or otherwise engage in delay tactics. This is the behavior that the Florida Legislature sought to avoid in enacting Florida Statute § 57.105. This Court finds that Appellant's Counsel knew or should have known that its claim for appellate
App. 518 fees under Florida Statute § 57.105 was not made in good faith when it filed its Motion for Appellate Attorney's Fee Pursuant to Section 57.105, Fla. Stat.
K. Florida Statute § 57.105 should not be utilized to prevent attorneys from arguing for the establishment of new law or the expansion of existing law. The statute should be applied with restraint “to ensure that it serves the purpose for which it was intended.” Bridgestone/Firestone, Inc. v. Herron, 828 So. 2d 414, 419 (Fla. 1st DCA 2002) [27 Fla. L. Weekly D2173a]. The purpose of § 57.105 “is to discourage baseless claims . . . [and] not to cast a chilling effect on use of the courts.” Stevenson v. Rutherford, 440 So. 2d 28, 29 (Fla. 4th DCA 1983). In this context, § 57.105 should not be construed to discourage a party from pursuing a colorable claim for appellate fees. Appellee and Appellee's Counsel presented a colorable argument and Appellant and Appellant's Counsel knew or should have known that Appellee's conduct did not warrant a motion for sanctions and fees under § 57.105.
Accordingly it is hereby, ORDERED and ADJUDGED that Appellant's Motion for Appellate Attorney's Fees Pursuant to § 57.105, Fla. Stat. is DENIED and Appellee's Motion for Sanctions Pursuant to Florida Statutes 57.105, Regarding Appellant's Motion for Sanctions Pursuant to Fla. Stat. Section 57.105 is GRANTED. The amount of appellate attorney fees to which Appellee is entitled, is to be determined by the trial court upon REMAND.
* * *
App. 519 Filing # 19103713 Electronically Filed 10/07/2014 03:00:29 PM
CASE NO.: 2012-CA-000412/2012-CA-000490
EXHIBIT 3 9/12/14 SERVICE EMAIL RE: LEGISLATIVE DEFENDANTS’ MOTION FOR ATTORNEY’S FEES AND RESPONSE TO PLAINTIFFS’ MOTIONS FOR ATTORNEY’S FEES
TO COALITION PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR ATTORNEYS’ FEES AND RESPONSE IN OPPOSITION TO LEGISLATIVE DEFENDANTS’ MOTION FOR ATTORNEYS’ FEES
App. 520 From: Charlene Roberts
** SERVICE OF COURT DOCUMENT **
COURT Leon County Circuit Court, Second Judicial Circuit CASE NO. Circuit Court Case No. 2012-CA-00412 and 2012-CA-000490 CASE STYLE Romo v. Detzner and League of Women Voters v. Detzner
DOCUMENT The Legislative Parties’ Motion for Attorney’s Fees and Response to Plaintiffs’ Motions for BEING Attorney’s Fees SERVED SENDER Charlene Roberts on behalf of George N. Meros, Jr. and Andy Bardos Telephone (850) 577-9090
Charlene Roberts Legal Secretary GrayRobinson, P.A. 301 South Bronough Street, Suite 600 P.O. Box 11189 (32302-3189) Tallahassee, FL 32301 Main: 850-577-9090 | Fax: 850-577-3311 Email: [email protected] GRAY | ROBINSON ATTORNEYS AT LAW
1 App. 521
App. 522 Filing # 19103880 Electronically Filed 10/07/2014 03:01:45 PM
IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT IN AND FOR LEON COUNTY, FLORIDA
RENE ROMO, an individual; BENJAMIN WEAVER, an individual; et al.,
Plaintiffs, vs. CASE NO. 2012-CA-000412
KEN DETZNER, in his official capacity as Florida Secretary of State; PAMELA JO BONDI, in her official capacity as Attorney General; et al.,
Defendants.
______/
THE LEAGUE OF WOMEN VOTERS OF FLORIDA; THE NATIONAL COUNCIL OF LA RAZA; et al.,
Plaintiffs, CASE NO. 2012-CA-000490 vs.
KEN DETZNER, in his official capacity as Florida Secretary of State; THE FLORIDA SENATE; et al.,
Defendants.
______/
ROMO PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR DETERMINATION OF AVAILABILITY OF ATTORNEYS’ FEES AND RESPONSE IN OPPOSITION TO LEGISLATIVE DEFENDANTS’ MOTION FOR ATTORNEYS’ FEES
App. 523 The Romo Plaintiffs hereby submit their reply in support of their Motion for
Determination of Availability of Attorneys’ Fees and Opposition to the Legislative Defendants’
Motion for Attorneys’ Fees. The Romo Plaintiffs hereby adopt and incorporate by reference the
arguments made in the Coalition Plaintiffs’ Reply in Support of Motion for Attorneys’ Fees and
Response in Opposition to Legislative Defendants’ Motion for Attorney’s Fees (“Coalition
Plaintiffs’ Reply”). The Romo Plaintiffs write separately to address two distinct points regarding
their claim.
First, Legislative Defendants argue that Romo Plaintiffs cannot invoke the private
attorney general doctrine because they did not plead entitlement to fees, relying upon Stockman
v. Downs, 573 So. 2d 835 (Fla. 1991). Romo Plaintiffs contend that the pleading requirement
established in Stockman does not apply for the reasons set forth in the Coalition Plaintiffs’ Reply.
Moreover, “[t]he fundamental concern” underlying the Stockman rule is “to notify the opposing
party of the claims alleged and prevent unfair surprise.” Id. at 837. Romo Plaintiffs pled a claim
for attorneys’ fees in their original complaint filed on February 9, 2012. While the Court
ultimately granted Legislative Defendants’ motion to strike this claim because the basis
identified by Romo Plaintiffs—Section 57.105, Florida Statutes—was not proper at the pleadings
stage, Legislative Defendants have been on notice since at least the Court’s August 9, 2012 order
that the Romo Plaintiffs could renew their request for fees. See Caufield v. Cantele, 837 So. 2d
371, 377-78 (Fla. 2002) (“[M]erely pleading a claim for attorney’s fees is sufficient to notify the
opposing party and allow it to consider the claim in a decision on whether to proceed.”). For this
additional reason, Romo Plaintiffs’ motion for attorneys’ fees satisfies the rationale for the
Stockman rule.
- 2 - App. 524 Second, while Legislative Defendants pretend that Plaintiffs’ bad faith allegations
“consist chiefly of imprecise rhetorical generalities,” Leg. Defs.’ Mot. & Resp. at 11, they fail to respond to Romo Plaintiffs’ citation to their Opposition to Legislative Defendants’ Motion for
Sanctions for Fraud on the Court, which lays out very specifically the ways in which Legislative
Defendants’ representations to the Court were “simply—and verifiably—false.” Romo Pls.’
Mot. for Determination of Availability of Attorneys’ Fees (Aug. 11, 2014) at 12. In short, based on the record evidence, it is clear that Legislative Defendants’ multiple pleadings regarding
“fraud on the court” and “unclean hands” had “no factual basis” and were “a sham.” Patsy v.
Patsy, 666 So. 2d 1045, 1046 (Fla. 4th DCA 1996). See Romo Pls.’ Opposition to Leg. Parties’
Mot. for Sanctions for Fraud on the Court (Apr. 25, 2014) at 13-24. For this reason, as well as the reasons set forth in Coalition Plaintiffs’ Reply, Romo Plaintiffs are entitled to fees under the bad faith exception.
CONCLUSION
For the foregoing reasons, the Romo Plaintiffs respectfully request that this Court deny the Legislative Defendants’ request for fees. Moreover, for the reasons stated in the Plaintiffs’ motions for attorneys’ fees and the Coalition Plaintiffs’ Reply in Support of the Plaintiffs’ motions for attorneys’ fees, the Romo Plaintiffs’ request that this Court determine that attorneys’ fees may be awarded against the Legislative Defendants under either the “private attorney general doctrine” or because of Defendants’ inequitable, bad-faith conduct.
- 3 - App. 525 Dated: October 7, 2014 By:___/s/_Mark Herron_____ Mark Herron Florida Bar No.: 199737 Email: [email protected] Robert J. Telfer III Florida Bar No.: 128694 Email: [email protected] MESSER CAPARELLO, P.A. 2618 Centennial Place Tallahassee, FL 32308 Telephone: (850) 222-0720 Facsimile: (850) 558-0659
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) Elisabeth Frost (admitted pro hac vice) PERKINS COIE LLP 700 13th St., N.W., Suite 700 Washington, D.C. 20005-3960 Tel: (202) 654-6200 Fax: (202) 654-6211 Email: [email protected] Email: [email protected] Email: [email protected] Email: [email protected] Email: [email protected]
Attorneys for the Romo Plaintiffs
- 4 - App. 526 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by
Electronic Mail this 7 October 2014 to each of the following parties on the attached service list:
__/s/ Mark Herron_____ Mark Herron MESSER CAPARELLO, P.A. 2618 Centennial Place Tallahassee, FL 32308 Telephone: (850) 222-0720 Email: [email protected]
- 5 - App. 527 SERVICE LIST
Daniel E. Nordby, General Counsel Charles T. Wells Florida House of Representatives George N. Meros, Jr. 422 The Capitol Jason L. Unger 402 South Monroe Street Andy Bardos Tallahassee FL 32399-1300 GRAY ROBINSON, P.A. Primary Email: Post Office Box 11189 [email protected] Tallahassee, FL 32302 Primary Email: [email protected] [email protected] Secondary Email: [email protected] [email protected] Primary Email: [email protected] [email protected] Secondary Email: [email protected]
Michael A. Carvin J. Gerald Hebert Louis K. Fisher J. GERALD HEBERT, P.C. JONES DAY 191 Somervelle Street, Unit 415 51 Louisiana Avenue N.W. Alexandria, VA 22304 Washington, D.C. 20001 [email protected] [email protected] [email protected]
George T. Levesque, General Counsel Benjamin Stevenson The Florida Senate Am. Civil Liberties Union Found. of Fla. 404 South Monroe Street PO Box 12723 Tallahassee, FL 32399-1100 Pensacola, Florida 325912723 Primary Email: [email protected] [email protected] Secondary Email:[email protected] [email protected]
- 6 - App. 528 Victor L. Goode Jessica Ring Amunson Dorcas R. Gilmore Michael B. DeSanctis NAACP Kristen M. Rogers 4805 Mt. Hope Drive Paul M. Smith Baltimore, MD 21215-3297 JENNER & BLOCK LLP [email protected] 1099 New York Ave, N.W., Suite 900 [email protected] Washington, D.C. 20001 [email protected] [email protected] [email protected] [email protected]
Allison J. Riggs Blaine Winship, General Counsel Anita S. Earls Allen Winsor, Solicitor General SOUTHERN COALITION FOR SOCIAL OFFICE OF THE ATTORNEY GENERAL JUSTICE The Capitol, PL-01 1415 W. Highway 54, Suite 101 Tallahassee, FL 32399 Durham, NC 27707 [email protected] [email protected] [email protected] [email protected]
Gerald E. Greenberg Jon L. Mills (Miami Office) Adam M. Schachter Karen C. Dyer (Orlando Office GELBER SCHACHTER & GREENBERG, Elan M. Nehleber (Orlando Office_ P.A. BOIES, SCHILLER & FLEXNER, LLP 1441 Brickell Avenue, Suite 1420 100 SE 2nd Street, Ste. 2800 Miami, FL 33131 Miami, FL 11313-2144 Primary Emails: 121 S Orange Avenue, Suite 840 [email protected], Orlando, 32801-3233 [email protected] Primary Emails: Secondary Email: [email protected] [email protected] [email protected] [email protected]
Raoul G. Cantero Ashley Davis Jason N. Zakia Diane Wint Jesse L. Green J. Andrew Atkinson WHITE & CASE, LLP Florida Department of State Southeast Financial Center, Ste. 4900 R.A. Gray Building 200 South Biscayne Boulevard 500 S. Bronough Street Miami, FL 33131 Tallahassee, FL 32399 Primary Emails: Telephone: (850) 245-6536 [email protected] Cell: (850) 294-8018 [email protected] [email protected]; [email protected];
- 7 - App. 529 [email protected] [email protected];
D. Kent Safriet Daniel C. Brown Thomas R. Philpot CARLTON FIELDS JORDEN BURT, P.A. HOPPING, GREEN & SAMS, P.A. 215 S. Bronough St., Ste 500 P.O. Box 6526 Tallahassee, FL 32301 Tallahassee, FL 32314 Telephone: (850) 224-1585 Telephone: (850) 222-7500 Primary e-mails: Facsimile: (850) 224-8551 [email protected] [email protected] cthompson@ cfjblaw.com [email protected] [email protected] [email protected]
David B. King Ronald G. Meyer Thomas A. Zehnder Lynn Hearn Frederick S. Wermuth MEYER, BROOKS, DEMMA & BLOHM KING, BLACKWELL, ZEHNDER & 131 North Gadsden Street WERMUTH, P.A. P.O. Box 1547 P.O. Box 1631 Tallahassee, FL 32302 Orlando, FL 32802-1631 [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected]
- 8 - App. 530 IN THE CIRCUIT COURT FORTHE SECOND JUDICIAL CIRCUIT' IN AND FOR LEON COUNTY, FLORIDA
ReNe Rovo, ET AL. CnsE No. : 2012-c ¡-00412 PLAINTIFFS,
vs.
KeN DerarER AND Pnv Bottot,
DermonNrs.
THe Lsncue or V/oveN VorERs op FLoRlpl, Cnse No.: 2012-cn-00490 ET AL.,
PLAINT¡FFs,
VS
KeN DerzNER, ET AL.,
DEFENDANTS.
ORDER DENYING PARTIES' MOTIONS FOR ATTORNEYS' FEDS
THIS MATTER, having come on for hearing on October 9,2014 on Coalition Plaintiffs'
Motion for Attorneys' Fees, the Romo Plaintiffs' Motion for Determination of Availability of
Attomeys' Fees, and the Legislative Paties' Motion for Attomey's Fees and Response to
Plaintiffs' Motions for Attorney's Fees, and the Court, having reviewed the parties' filings and the file, heard oral argument, and otherwise being fully advised in the premises, hereby:
ORI}ERS AND ADJUDGES:
The Court finds that Plaintiffs are the prevailing parties in this action. However,
Coalition Plaintiffs' Motion for Attorneys' Fees, the Romo Plaintiffs' Motion for Determination of Availability of Attomeys' Fees, and the Legislative Parties' Motion for Attorney's Fees and
Response to Plaintiffs' Motions for Attorney's Fees are hereby DENIED for the feasons starcd at the hearing.
App. 531 Cnss No. : 2012-c ¡-00412 Cnse No.: 2012-cn-00490
ITONE AND ORDERED this l0 day ofNovember,2014.
Teny P. Circuit
ùri.r to atl counsel of record
2
App. 532 In The Matter Of: Rene Romo v Ken Detzner
Hearing October 09, 2014
Accurate Stenotype Reporters 2894-A Remington Green Lane Tallahassee, Florida
Original File 10094romohearing.txt Min-U-Script® with Word Index
App. 533 IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT, IN AND FOR LEON COUNTY, FLORIDA
RENE ROMO, et al., Plaintiffs, vs. CASE NO. 2012-CA-00412 KEN DETZNER and PAM BONDI, Defendants. ______
THE LEAGUE OF WOMEN VOTERS OF FLORIDA, et al., Plaintiffs, vs. CASE NO. 2012-CA-00490 KEN DETZNER, et al., Defendants. ______
IN RE: Motion Hearing on Attorneys' Fees/Costs
BEFORE: HONORABLE TERRY LEWIS Circuit Court Judge
DATE: October 9, 2014
TIME: Commenced at 9:08 a.m. Adjourned at 11:35 a.m.
LOCATION: Leon County Courthouse Tallahassee, Florida
REPORTED BY: SANDRA L. NARGIZ Certified Realtime Reporter Certificate of Merit Holder [email protected]
ACCURATE STENOTYPE REPORTERS, INC. Tallahassee, FL 32301 850.878.2221
App. 534 2
APPEARANCES:
REPRESENTING COALITION PLAINTIFFS:
DAVID B. KING, ESQUIRE [email protected] THOMAS A. ZEHNDER, ESQUIRE [email protected] KING BLACKWELL ZEHNDER WERMUTH 25 East Pine Street Orlando, FL 32801 407.422.2472
REPRESENTING ROMO PLAINTIFFS: (by phone) JOHN DEVANEY, ESQUIRE [email protected] PERKINS COIE 700 Thirteenth Street, N.W. Washington, D.C. 20005-3960 202.654.6200
REPRESENTING FLORIDA SENATE: RAOUL G. CANTERO, ESQUIRE [email protected] WHITE & CASE 200 S. Biscayne Blvd., #4900 Miami, FL 33131 305.995.5290
REPRESENTING HOUSE OF REPRESENTATIVES: ANDY BARDOS, ESQUIRE [email protected] GEORGE N. MEROS, JR., ESQUIRE [email protected] GRAY ROBINSON 301 S. Bronough Street, #600 Tallahassee, FL 32301 850.222.7717
REPRESENTING THE ATTORNEY GENERAL: (by phone) BLAINE WINSHIP, ESQUIRE [email protected] OFFICE OF THE ATTORNEY GENERAL The Capitol, Suite PL-01 Tallahassee, FL 32399
App. 535 3
1
2 INDEX
3 PROCEEDINGS 3 4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24 CERTIFICATE OF REPORTER 70
25
App. 536 4
1 PROCEEDINGS
2 THE COURT: I understand we have some folks on
3 the phone. Hello?
4 MR. MORGAN: Hello, this is Bruce Morgan.
5 THE COURT: Hello, this is Judge Lewis.
6 MR. MORGAN: Hi, Judge Lewis, how are you?
7 THE COURT: I am fine. Who else do we have on
8 the phone? Just you?
9 MR. DEVANEY: Good morning, John DeVaney for
10 Romo plaintiffs by phone today.
11 MR. FALCONE: Good morning, Your Honor, Vince
12 Falcone for Coalition plaintiffs.
13 MR. WINSHIP: Good morning, Your Honor, Blaine
14 Winship for the Attorney General and for Risk
15 Management.
16 THE COURT: Nobody else? All right. If you
17 can't hear, let us know. I am going to be sitting
18 back down, but they have a speaker back behind me,
19 so I think everybody can hear you. Is anybody
20 going to be speaking on the motions that are on the
21 phone?
22 MR. DEVANEY: Your Honor, this is John
23 Devaney, I do expect to say a few words.
24 THE COURT: Okay. All right.
25 MR. WINSHIP: Your Honor, Blaine Winship, I
App. 537 5
1 would expect one or two words about risk management
2 and the requirements under Section 284.30 of the
3 Florida Statutes, not having been met.
4 THE COURT: Okay. I will let you elaborate on
5 it later when we get to it. So I guess I am ready
6 to hear from anybody that wants to talk about it.
7 MR. KING: Your Honor, David King on behalf of
8 the Coalition plaintiffs.
9 The first motion we would like to consider,
10 Your Honor, is a motion for attorneys' fees, and
11 that's a motion for attorneys' fees on behalf of
12 both the Coalition plaintiffs and Romo plaintiffs.
13 And, Your Honor, in this discussion I would
14 like to discuss with you why fees would be
15 justified both under the Private Attorney General
16 Doctrine and also under the Bad Faith Conduct
17 Doctrine.
18 I'd also show that the Stockman rule doesn't
19 apply in this case.
20 Since the legislature has claimed victory,
21 I've got to talk about who is the prevailing party
22 in the case. And also, because the legislature
23 filed a motion for sanctions to try to keep us from
24 bringing this claim for attorneys' fees, I've got
25 to talk about 57.105, because they say that we
App. 538 6
1 should be sanctioned simply for bringing this claim
2 for attorneys' fees.
3 So to begin with, the Private Attorney General
4 Doctrine, this is a very important concept for this
5 case, Your Honor, because it's our position that
6 plaintiffs, who successfully prosecuted a
7 meritorious case like this, with a great benefit
8 for all the citizens of Florida, should be awarded
9 their attorneys' fees; and that's the principle
10 involved in the Private Attorney General Doctrine.
11 It's best exemplified in the Serrano versus
12 Priest case, a California decision in 1977, and
13 there the Court summarizes what the elements of
14 this doctrine are.
15 They say there are three basic factors to be
16 considered in awarding fees on this theory. These
17 are, in general, the strength or societal
18 importance of the public policy vindicated by the
19 litigation; two, the necessity for private
20 enforcement and the magnitude of the resultant
21 burden on the plaintiff; and, three, the number of
22 people standing to benefit from the decision.
23 In this case, it started in the trial court.
24 The trial judge awarded fees to the plaintiff, but
25 as he found that the public policies advanced in
App. 539 7
1 the litigation was not one grounded in statute, but
2 grounded in the state constitution, just I might
3 add like our case.
4 Thus, the trial court concluded, as a matter
5 of law, if as a result of the efforts of
6 plaintiffs' attorneys, rights created are protected
7 by the state constitution, are protected to the
8 benefit of a large number of people, plaintiffs'
9 attorneys are entitled to reasonable attorneys'
10 fees from the defendants under the Private Attorney
11 General Equitable Doctrine.
12 It's also been followed in other cases in
13 Idaho. In a legislative apportionment case, the
14 Idaho Supreme Court in 1984 dealt with a
15 legislative apportionment case, and they listed the
16 same three requirements of the rule that the
17 California court pointed out.
18 They said as far as, one, the strength of
19 societal importance, the plaintiff is correct in
20 stating that there may well be no greater public
21 policy in a constitutional representative democracy
22 than the policy of ensuring that citizens are
23 properly represented according to the constitution.
24 If the legislature is unconstitutionally
25 apportioned, a pall is cast over all legislation
App. 540 8
1 which the legislature adopts; talks about the
2 necessity for private enforcement. It says that if
3 the plaintiffs hadn't filed their cause of action,
4 HB830 would not have been challenged. And the
5 number of people standing to benefit said the
6 apportionment of the Idaho legislature affects
7 every Idaho citizen.
8 Then it also pointed out that the defendants
9 argued, just like they do in this case, that
10 attorneys' fees may not be awarded in the absence
11 of a statute awarding attorneys' fees. They say
12 they follow the American rule, and that would
13 violate the American rule.
14 And the Idaho court said, we continue to
15 adhere to the so-called American rule. And then
16 they make an exception for the Private Attorney
17 General Doctrine.
18 In Utah they did the same thing in an
19 unconstitutional rate case, and they pointed out
20 there the traditional argument and that Utah
21 generally followed the American rule, but that
22 there were exceptions to the American rule. And
23 they pointed out that there was an exception in
24 Utah for bad faith litigation. And there was
25 exception for the common fund. And then they
App. 541 9
1 considered the Private Attorney General Doctrine.
2 And they found that in this case, the
3 plaintiffs had successfully vindicated an important
4 public policy. And they said it is significant
5 that the Committee of Consumer Services, which by
6 statute is charged with responsibility of
7 representing consumer interests, made no appearance
8 at all in this appeal, and that the commission and
9 Division of Public Utilities have opposed the rate
10 payers on all issues.
11 They make an exception for the Private
12 Attorney General Doctrine.
13 Your Honor, I don't think I've got to spend
14 much time on the elements because they all fit the
15 facts of this case.
16 This Court and Supreme Court have both
17 indicated the strength of societal importance of
18 the public policy vindicated by sustaining the
19 constitutional requirements of Section -- of
20 Article 3, Section 20. As the Court said, the case
21 before me is of the highest importance.
22 The necessity for private enforcement and the
23 magnitude of the burden are on the plaintiff in
24 this case. In this case the Attorney General here
25 in Florida has enormous resources that could have
App. 542 10
1 been brought to bear on these issues. They were a
2 party, been in this case since the start. They
3 knew what was being established, and they took no
4 action at all.
5 Thus, the entire burden of prosecuting this
6 case has fallen on the plaintiffs. And I don't
7 think it's hyperbole to say it took a Herculean
8 effort to pry the facts out of the legislature and
9 the political operatives.
10 And the Court pointed out to us that it was
11 going to take a very high burden to meet this case.
12 You didn't say that we had to prove beyond a
13 reasonable doubt, but you indicated that the
14 legislature started with a significant inference
15 that they had done the right thing.
16 And we met that burden over determined
17 opposition, I might add.
18 And it was a problem, a significant problem
19 with great complexity, establishing a conspiracy to
20 influence and manipulate the legislature into a
21 violation of its constitutional duty, and we
22 accomplished that.
23 And that burden fell on the plaintiffs.
24 And then the number of people standing to
25 benefit from the decision, just the number of
App. 543 11
1 people from the districts that were changed. Over
2 4 million people are in districts that were changed
3 as a result of the statute that was enacted to try
4 to remedy the problems the Court found in declaring
5 the statute unconstitutional.
6 But it affects all the citizens of Florida
7 indirectly to have any part of the map to be
8 constitutional -- unconstitutional -- because, as
9 the Court pointed out, the map is an indivisible
10 whole.
11 So, what do they say, and why do they say we
12 are to be sanctioned for even mentioning the
13 concept of the Private Attorney General Doctrine?
14 Well, they say there is no Florida decision
15 that's ever permitted the Private Attorney General
16 Doctrine. But there is no Florida decision that's
17 ever denied this doctrine. It's never been raised,
18 except there is one inference and one case to it,
19 but they didn't have the facts involved in that
20 case.
21 Here we have the facts that support it, and
22 they don't contest it.
23 THE COURT: Back up a second. What's that one
24 case that talks --
25 MR. KING: Your Honor, I am sorry, the name is
App. 544 12
1 cited in our papers, but it doesn't make any
2 resolution of the Private Attorney General
3 Doctrine.
4 THE COURT: How does it come up? In what
5 context?
6 MR. KING: It was just raised in the context
7 of a decision as a possible equitable exception to
8 the American rule. But it wasn't adopted, but it
9 wasn't rejected.
10 And so what we do know, however, is that the
11 American rule pertains to contract or statute, but
12 there have been a number of exceptions to the
13 American rule.
14 Bad faith is an exception. Creation of a
15 common fund is an exception.
16 They say that we don't understand common fund,
17 but courts refer to it as an exception to the
18 American rule both in Florida and in other states.
19 Litigation caused with the wrongful act of the
20 defendant, that's an exception, and partnership
21 accounts.
22 So many courts have found exceptions, and in
23 other states they have found that the Private
24 Attorney General Doctrine is an appropriate
25 exception.
App. 545 13
1 It's never come up in Florida, Your Honor, in
2 an appropriate case. This is that case.
3 The Court knows that it took determined
4 efforts by the plaintiffs to uncover the evidence
5 of the constitutional impropriety. We had to deal
6 with destroyed evidence. We had to deal with
7 recalcitrant witnesses. All of that evidence came
8 from hostile witnesses. There was no ability to
9 depose the legislators until we finished the trip
10 to the Supreme Court. Every imaginable hurdle was
11 placed in our path, and we had determined, capable
12 opposition every step of the way.
13 So when the state's Attorney General won't
14 protect our constitution, and private citizens do,
15 and they are successful, the state ought to pay
16 their fees.
17 We ought to encourage the presentation of
18 meritorious constitutional claims which affect and
19 benefit large numbers of Floridians. It's a good
20 thing to promote the vindication of the
21 constitution, of public rights, when our government
22 won't protect us and actually works against us.
23 The successful litigant ought to be
24 incentivized to expose bad conduct on the part of
25 our government.
App. 546 14
1 That's what happened in this case, and that's
2 why adopting the Private Attorney General Doctrine
3 is so very important.
4 Now, the legislature says: But there was no
5 plea for attorneys' fees at the commencement of the
6 case. And under the Stockman rule, Stockman rule
7 says no plea/no fee.
8 But that's clearly, by its own terms, limited
9 to fees sought pursuant to contract or statute. It
10 doesn't address a situation where fees are sought
11 pursuant to a common law doctrine like common fund
12 or like the Private Attorney General Doctrine.
13 And the second reason that it's very
14 significant is it's emphasized in Cooper versus
15 Marriott Homes. That's a Fourth District Court in
16 2009.
17 They point out, quote, Our Supreme Court and
18 this court have enforced Stockman's no pleading/no
19 fees rules in situations where entitlement to fees
20 and costs existed from the outset -- and, in fact,
21 they italicize "from the outset" -- based upon a
22 contract or statute which was the subject of the
23 underlying claim or defense.
24 So at the start of this case, there was no
25 basis under the Attorney General Doctrine or under
App. 547 15
1 the Bad Faith Doctrine.
2 And incidentally, they don't even argue that
3 we had to plead for fees under bad faith, but they
4 suggest we would for the Private Attorney General
5 Doctrine.
6 And I would suggest to you that the Private
7 Attorney General Doctrine is very similar to the
8 bad faith situation in that it's things that occur
9 after the filing of the suit.
10 Because in the Private Attorney General
11 Doctrine, factor two requires consideration of the
12 necessity of private enforcement. And, of course,
13 the Attorney General was a party to this case. At
14 any time the Attorney General could have stepped in
15 and investigated, prosecuted this case. The
16 Attorney General would -- it would seem that
17 violations of the constitution would have a high
18 priority as far as the Attorney General is
19 concerned.
20 And, of course, the facts weren't clear at the
21 start of this case. The facts began to evolve, and
22 as those facts came in, as the evidence started
23 establishing that there was a basis to believe that
24 there had been a constitutional violation, that the
25 political operatives and the legislators had been
App. 548 16
1 involved in improper conduct which resulted in a
2 partisan intent, you would have thought at some
3 point there the Attorney General would have gotten
4 involved. And they never did.
5 In fact, if the Court remembers, at the
6 pretrial conference, they didn't even want to stay
7 for the pretrial conference.
8 So at the conclusion of this case, the Court
9 is in a position to evaluate the roles of the
10 Attorney General, the role of the plaintiff and
11 other public bodies after the litigation. And it
12 is clear at this time that there was a necessity
13 for private enforcement because the public bodies
14 who could have done this weren't interested.
15 Nobody would have done this but the plaintiffs
16 in this case.
17 And no one could know the burdens or the
18 magnitude of the burden that the plaintiff would
19 experience in the handling of this case until the
20 conclusion of the case.
21 No one could have known that the plaintiffs
22 were going to face this scorched earth strategy of
23 the legislature and the political operatives.
24 Nobody would have known that the records would
25 have been gone, the records that would help
App. 549 17
1 establish -- you would have thought that those --
2 as the Court pondered in the decision, you would
3 have thought those documents would have been
4 available. And it's interesting that most of them
5 were that helped the legislature, but the ones that
6 showed the relationship between the political
7 operatives, those were gone.
8 And, of course, the maps, I mean, good, Lord,
9 we got 80 draft maps from the House, we got 33 from
10 the Senate.
11 Mr. Reichelderfer, the political operative,
12 had over a hundred. And we had well over a hundred
13 public maps. And we didn't get the legislature's
14 maps until the spring before the -- in January
15 before the trial in May.
16 And we had to put those maps together, and
17 yet, amazingly, once you pored over those maps,
18 what you found was that Reichelderfer had the
19 legislature's maps that the legislature didn't
20 have. And by the same token, we found the
21 correlation between the political operatives' maps
22 and the public maps that weren't known until that
23 time.
24 So it took a huge effort on the part of the
25 plaintiffs to put this case together, and that
App. 550 18
1 could only be evaluated after the case. Nobody
2 could have known that at the start of the case.
3 So as a consequence, I submit to the Court
4 that the failure to plea attorneys' fees at the
5 start of the case is not determinative under
6 Stockman, Stockman, because this Private Attorney
7 General Doctrine arises in the course of the case.
8 And so that shouldn't have any impact on it.
9 As far as the second area, the bad faith, is
10 concerned, Your Honor, the Bitterman case, the
11 Supreme Court decision in Bitterman in 1998, tells
12 us about the bad faith conduct in the litigation
13 approach. They tell us that bad faith may be
14 found -- and that involved a probate case -- bad
15 faith may be found not only in the actions that led
16 to the lawsuit, but also in the conduct of the
17 litigation.
18 And that's very significant in the context of
19 this case. They awarded attorneys' fees based on
20 respondent's recalcitrant and callous attitude.
21 They said -- they pointed out a case holding
22 attorneys' fees were justified and caused
23 plaintiffs a small means and have been subjected to
24 discriminatory and oppressive conduct by a powerful
25 labor organization.
App. 551 19
1 So, then, of course, Moakley is the other
2 Seminole case in this area. That, of course, was a
3 case where fees were allowed where they allowed a
4 lawyer to have to go to a deposition 50 miles away
5 when they knew that there wasn't any basis or
6 reason for him to be subpoenaed.
7 So in our case, the legislature says, well,
8 don't mistake us for the political operatives; we
9 are not the same. Maybe those political operatives
10 did some bad things, but they are not the alterego
11 of the legislature. You can't -- you've got to
12 disassociate them from us.
13 But, of course, the Court found in this
14 decision that the political operatives cooperated
15 and collaborated with the legislature as to
16 ensure -- so to ensure their partisan plan was
17 realized at least in part.
18 So, they can't avoid their conspiracy with the
19 political operatives.
20 And so if you look at the situation, well,
21 what are we talking about? We are talking about
22 prelitigation conduct and litigation conduct. From
23 the very start, the legislature opposed these
24 amendments.
25 They said, when they were finally passed, that
App. 552 20
1 they would follow them, but that was not accurate
2 because we know the evidence in this case showed
3 that they intentionally sat down on a course to
4 avoid those amendments with the result a partisan
5 intent to help the Republican party in the
6 redistricting process. The evidence established
7 their conspiracy, destruction of documents.
8 Now, they say there is zero evidence of
9 selective destruction, but how can you say that
10 when the evidence is there, the documents are there
11 that helped them; but there aren't any of the
12 documents that we were able to dredge up from all
13 those different ways from the political operatives
14 and such that showed the context and involvement of
15 the political operatives?
16 Your Honor, you were right, you nailed this in
17 your order when you said we had to pull stuff from
18 a lot of different places. We found shreds of
19 evidence here and shreds of evidence there. But it
20 did ultimately result in a coherent whole, and it
21 established the failure of their alleged
22 transparency.
23 You know, one of the things that we would say
24 about their bad faith was they're recalcitrantly
25 defending an indefensible position. In other
App. 553 21
1 words, they represented to this court and to the
2 Supreme Court of Florida that the public process
3 was transparent, and that the public process was
4 part of the evidence that showed their nonpartisan
5 intent. And yet, what we established in this case
6 was that underneath that the public process was
7 part of their way to get around the constitution
8 and to act in an impermissible way.
9 They attacked the plaintiffs with a contrived
10 fraud claim that resulted in a fraud on the court
11 hearing. They alleged that we failed to disclose
12 how our maps were established.
13 At the same time the evidence showed that the
14 maps were -- that it was clearly established in
15 pleadings filed in the Supreme Court and in this
16 court that we offered an alternative map that was
17 balanced, that was intended to be balanced.
18 They said we tried to rush to get the Court to
19 enter that map into the law of the State of
20 Florida, when, of course, we established that we
21 asked for discovery that they were inaccurate in
22 those allegations, and then 10 times in their
23 papers they said that we urged the Court to adopt
24 this illegal map, when, in fact, the evidence
25 showed that we simply laid out the alternatives.
App. 554 22
1 Their alleged fraud claim was totally
2 contrived, and it slowed the litigation and
3 consumed a lot of time and effort in the defense of
4 the case.
5 And then, of course, there was the inaccurate
6 testimony that plagued us and the Court throughout
7 the trial, the inaccurate testimony from the
8 political operatives and the legislature where they
9 attempted to cover up, to cover up what they had
10 done. And so often the coverup is as bad as the
11 actual transgression. And they did that and the
12 Court noted it and found them and caught them.
13 So those are all reasons to award the
14 plaintiffs fees based on bad faith as well.
15 Now, I hesitate to spend much time on this,
16 Your Honor, but I guess I've got to because the
17 plaintiffs claim victory -- I mean, the defendants
18 claim victory; they say they won the case. And so
19 what are we talking about attorneys' fees for?
20 They say we're to be sanctioned for suggesting
21 that we are the prevailing party in the case.
22 Makes you think about that decision from
23 Orange County, that State Farm case that we cited,
24 where actually somebody filed 57.105 and the other
25 side filed 57.105 for filing 57.105, and the judges
App. 555 23
1 granted the second motion and denied the first.
2 Well, I don't think that's the way you proceed
3 in this case. But I think it's an outrageous
4 suggestion that we weren't the prevailing party in
5 this case.
6 I mean, we start off with the first sentence
7 in your order: Plaintiffs claim Congressional
8 redistricting plan adopted by the legislature
9 violates Article 3, Section 20 of the Florida
10 constitution for the reasons set forth below. I
11 agree finding Districts 5 and 10 were drawn in
12 contribution of the constitutional mandates of
13 Article 3, Section 20, thus making the
14 redistricting map unconstitutional as drawn. And
15 you say it's the whole map. The problem with the
16 part of the map is a problem with the entire plan,
17 and the entire plan was found unconstitutional.
18 So the Court found a conspiracy that caused
19 the map to be infused with partisan intent. That
20 sounds like a victory for the plaintiff.
21 They rejected the legislature's affirmative
22 defenses. That would seem like a victory for the
23 plaintiff.
24 They invalidated the 2012 congressional plan.
25 That would seem like an amazing victory for the
App. 556 24
1 plaintiff.
2 You identified particular defects in District
3 5 and District 10, which we argued -- probably
4 80 percent of the trial was spent talking about
5 those issues revolving around District 5 and 10,
6 and you agreed with us and found those to be
7 defects in the plan, victory for the plaintiff.
8 You entered a judgment in our favor. That is
9 also telling for the prevailing party.
10 You required the legislature to present a
11 remedial map. That would seem to be a victory for
12 the plaintiff which required the legislature to
13 hold a special session and do a remedial map which
14 they enacted; yet another victory for the
15 plaintiff.
16 As the Court knows, the Moritz case says a
17 party is the prevailing party when it prevails on
18 the significant issues in the litigation. I
19 submit, Your Honor, that it is beyond question that
20 the plaintiffs in this case prevailed on the
21 significant issues in the litigation?
22 What do they say? They say, well, you didn't
23 succeed on every single district challenge. And,
24 of course, the analog to that is in a negligence
25 case damages, you may not collect on all of your
App. 557 25
1 elements of damage, but you've won a victory.
2 And when -- and it's just amazing to me that
3 they don't seem to understand the import of holding
4 a statute passed by the legislature
5 unconstitutional, because the legislature had
6 impermissible intent to favor the Republican party
7 in preparing and drawing and enacting that map.
8 That is a decision of great consequence, one
9 that I am sure this Court spent a great deal of
10 time considering very carefully. And the evidence
11 supported it, and that, of course, causes the
12 plaintiffs to be the prevailing party in this case.
13 They say we didn't obtain the price -- precise
14 remedy we sought. And we certainly argue that the
15 remedy, the final map, after they went back and did
16 another map, that the final map ought to be --
17 ought to have more done to it to satisfy.
18 We accept that, but that doesn't mean that
19 because we won the case, they had to go back and
20 redraw a map, that they're satisfying the judgment
21 in a sense, turns them into winners. That's not
22 the way it works.
23 And just because we thought the remedy might
24 be more fulsome does not mean that the legislature
25 became a winner in that situation.
App. 558 26
1 The changes that were made to District 5 and
2 to District 10, removing the appendage from 10,
3 removing the incursion into Seminole County,
4 keeping that district from going over 50 percent
5 black VAP for no reason, those were significant
6 important decisions.
7 And then, finally, their last argument is the
8 most confounding, I suppose. They say, well, the
9 plaintiffs filed an appeal. And, you know, losers
10 appeal. Well, you know, there is some folks over
11 there that know something about appeals sitting at
12 that table.
13 And I think they certainly know that many
14 times winners appeal. Winners appeal who would
15 like more relief than they were provided in the
16 trial court. That does not turn you into a loser,
17 as they well know.
18 So the prevailing party in this case was the
19 plaintiffs. We are entitled both to attorneys'
20 fees, and ultimately that will be an issue in the
21 cost motion as well because we are entitled to
22 costs as well.
23 I hesitate to spend much time on the 57.105
24 because it seems so clear to me that on the merits
25 we have already established that we had the right
App. 559 27
1 to bring this motion for attorneys' fees; that is,
2 it is an appropriate attempt to move the law to a
3 place where the law ought to be on the issue of
4 attorneys' fees as far as the Private Attorney
5 General Doctrine is concerned.
6 It is appropriate for us to argue that we were
7 prevailing parties in this case. It's outrageous
8 to suggest that we shouldn't.
9 I would simply remind the Court of the Wendy's
10 case, a First DCA decision in 2004. They said that
11 there are no guidelines for determining what is
12 frivolous, but they say that there are some things
13 that they consider. And they mention four.
14 These include where a case is found to be
15 completely without merit in law and cannot be
16 supported by reasonable argument for the extension,
17 modification or reversal of existing law.
18 I submit that we have provided the Court with
19 a reasonable argument for the extension of existing
20 law as far as the Private Attorney General Doctrine
21 is concerned.
22 The other factor is to be contradicted by
23 overwhelming evidence -- not in this situation; in
24 fact, they don't even argue that the Private
25 Attorney General Doctrine isn't supported by the
App. 560 28
1 facts of this case, they make no reference to that
2 in their pleading -- as having been undertaken
3 primarily to delay and prolong the resolution of
4 the litigation, that's not an issue in this case.
5 As asserting material factual statements that
6 are false, that's not an issue in this case.
7 So I submit that on the merits, Your Honor, we
8 have made a very strong argument and that this
9 sanction idea should not even be considered.
10 Finally, I have to make all my arguments, and
11 so I have to point out, from a technical
12 standpoint, their argument, their argument
13 procedurally fails because they are required to
14 give -- they gave notice by E-service. They didn't
15 follow the requirements of Rule 2.516 from the
16 standpoint of having to capitalize service of court
17 document in the subject line and putting the case
18 number and also dividing the attachments into five
19 meg attachments.
20 Court may say: Well, that sounds pretty picky
21 and didn't you get it?
22 And, yes, Your Honor, I got it and we had
23 actual notice. But I simply refer to the case of
24 Matte versus Caplan, which is a Fourth DCA case,
25 June 11, 2014, and they simply say that failure to
App. 561 29
1 follow the precise requirements of the
2 Administrative Rule 2.516 on a claim for fees
3 disqualifies the claim, that there must be strict
4 compliance, not substantial.
5 But most of the time we can get by with
6 substantial compliance. But this decision says
7 that there must be strict requirement and actual
8 notice makes no difference.
9 They say, quote, Just as the case with Rule
10 1.442 regarding proposals for settlement, a blank
11 line requiring service in conformity with mandatory
12 provisions of the rule provide certainly to both
13 parties as to whether attorneys' fees may be
14 assessed if the Court finds the action or the
15 defense is frivolous.
16 We hold that strict compliance with Florida
17 Rule of Judicial Administration 2.516 regarding
18 e-mail service of pleadings is required before a
19 Court may assess attorneys' fees.
20 So, Your Honor, for all those reasons, we
21 submit to the Court that, one, the Court should
22 award attorneys' fees to the plaintiff in this
23 case, should find entitlement for attorneys' fees,
24 and come back later at an another hearing hopefully
25 to determine the amount. And also, Your Honor,
App. 562 30
1 that you should deny their motion for sanctions.
2 Your Honor, the cite for the case you referred
3 to is Hilton Oil, 659 So. 2d, 1141, page 3, and 17
4 of the reply in footnotes. That's where we
5 referred.
6 THE COURT: You got it right there? You got
7 the case?
8 MR. KING: I do. We have it in our hand.
9 THE COURT: You have to pull it up right
10 there?
11 MR. ZEHNDER: No, sir. My colleague texted me
12 the cite.
13 THE COURT: Okay.
14 MR. CANTERO: Your Honor, we can get it to you
15 on the iPad if you want.
16 THE COURT: I am just curious because I didn't
17 know there was any case that even talked about
18 that. Mr. Devaney, did you want to add something
19 here?
20 MR. DEVANEY: Your Honor, I will keep it
21 brief.
22 I will adopt Mr. King's arguments and make two
23 points that are unique to the Romo plaintiffs.
24 The first point is that Your Honor ruled
25 plaintiffs did in our initial complaint plea for
App. 563 31
1 attorneys' fees, and Your Honor eventually, a
2 couple of months after we filed our complaint,
3 struck that plea on the grounds that it was a
4 premature request for fees under Section 57.105.
5 But we certainly did put the defendants on notice
6 at that point in time that we were seeking fees.
7 As Mr. King articulated, the right to a fee by
8 the Private Attorney General Doctrine can arise
9 during the course of the case. And for all the
10 reasons that Mr. King articulated, we believe that
11 right did arise. And I just wanted to emphasize to
12 Your Honor that we also had put the plaintiffs -- I
13 am sorry -- the defendants on notice that we would
14 be seeking fees.
15 And the second point that is unique to the
16 Romo plaintiffs is that the legislature makes
17 extensive argument that the plaintiffs, Coalition
18 plaintiffs, Romo plaintiffs, were not prevailing
19 parties.
20 In the Romo plaintiffs' complaint, we
21 challenged four districts, and we actually
22 prevailed on two of them. So we won on 50 percent
23 of the districts that we challenged, of course, in
24 addition to Your Honor's ruling that the plan
25 itself was unconstitutional.
App. 564 32
1 But I just wanted to point out those two
2 unique facts for the Romo plaintiffs.
3 And beyond that, Your Honor, as I said before,
4 we adopt the arguments that Mr. King presented and
5 that are also presented in our briefs on this
6 issue. Thank you.
7 THE COURT: Okay. I think everybody else was
8 on the defendants' side. So there, if there's
9 nothing else on the plaintiffs, I will go to this
10 side. Okay.
11 MR. CANTERO: This is Raoul. Thank you, Your
12 Honor. Raoul Cantero on behalf of the Florida
13 Senate.
14 To take the arguments in order, first,
15 Stockman is clear that it requires a party, a
16 plaintiff or a defendant who claims attorneys'
17 fees, to assert that in the pleading. And in this
18 case it would have been in the complaint.
19 That rule has been strictly construed. The
20 First DCA, in the Walker case 2006, say that that
21 is a rule that is strictly applied.
22 As to the Private Attorney General Doctrine,
23 they certainly knew at the beginning of the case
24 that they were acting as Private Attorneys General.
25 They complain that the Attorney General did
App. 565 33
1 not prosecute the case. Well, they knew that from
2 the beginning. In fact, they sued the Attorney
3 General; he was a defendant -- she was a defendant
4 in the case. So they knew from the beginning of
5 the case that they were acting as a Private
6 Attorney General. This was not a case of the facts
7 becoming apparent during the case. They knew they
8 were bringing the case.
9 So the law is clear.
10 They say that Stockman is limited to statutory
11 or contractual attorneys' fees. Well, there is a
12 reason why Stockman is so limited. It's because
13 the Supreme Court says that's the only ways you can
14 get fees in the first place. So if that's the only
15 way you get fees, that's why it says you have to
16 show what contractual provision you base it on or
17 what statute/provision you base it on because those
18 are the only bases for obtaining fees.
19 On the merits of the -- of that argument, Your
20 Honor, they acknowledge that Florida has never
21 adopted the Private Attorney General Doctrine.
22 They cite cases from Alaska, from California. They
23 cite no Florida case that has adopted it.
24 Certainly in the 150 years of existence of our
25 state, the opportunities have arisen for courts to
App. 566 34
1 have adopted that doctrine. They have not. They
2 have been very strict about applying the American
3 rule and saying if there is no statute, if there is
4 no contractual provision, each party bears its own
5 costs.
6 This is certainly not one of those cases where
7 plaintiffs have to have -- act as Private Attorneys
8 General and obtain fees under that doctrine.
9 As you very well said in your final judgment,
10 political parties are always fighting over power.
11 There will always be somebody funding litigation to
12 contest these districts every 10 years. I don't
13 think there has been a decade in our state since at
14 least the 1960s where -- and even farther back than
15 that -- where somebody hasn't contested
16 redistricting.
17 So that's proof positive that you don't need
18 to have a prevailing party provision in order to
19 encourage people to bring redistricting lawsuits.
20 They happen at least every 10 years. In the 1960s
21 it happened several times during that decade.
22 This is not like a consumer protection kind of
23 case where the amounts may be small, the stakes may
24 be small, but the state wants to encourage people
25 to file lawsuits. The stakes are huge, and there
App. 567 35
1 is always people and entities willing to fund that
2 litigation.
3 Your Honor, as far as the inequitable conduct
4 doctrine, I would like to hand up to the Court a
5 copy of the Moakley case. This is a Florida
6 Supreme Court case from 2002. And, Your Honor, a
7 couple of things about this doctrine.
8 First, it is not a basis for obtaining fees
9 for the entire case. This is a limited doctrine in
10 which, when there were acts of bad faith undertaken
11 during the litigation and where no other rule or
12 statutory provision applies, then the courts have
13 the inherent power to award fees for bad faith
14 conduct.
15 In this case, what happened was the attorney
16 issued a subpoena that should not have been issued.
17 And the Court said the trial court merely found
18 there was no reasonable explanation for issuance of
19 the subpoena, and the trial court issued fees in
20 the amount of $1,125.
21 And even in that instance, the Court reversed
22 the award of fees because the Court had not made
23 specific factual findings of misconduct.
24 So the first thing to remember about this is,
25 number one, it has to be based on litigation
App. 568 36
1 misconduct, not conduct that occurred before
2 litigation.
3 So when they argue about the destruction of
4 documents, first, you found that there was no legal
5 requirement to maintain e-mails, you just wondered
6 why they didn't. But even that conduct is
7 prelitigation conduct. It's nothing that occurred
8 during the litigation.
9 Secondly, it has to be -- there cannot be
10 another statute or rule that applies. Here, they
11 argue that we did certain things regarding
12 litigation; for example, that we sought the
13 alternative maps and sought discovery on why -- who
14 drafted the alternative maps, what their intent was
15 behind those alternative maps.
16 Well, they could have sought a protective
17 order. They could have asked for fees under 1.280
18 for any conduct. They could have asked for fees
19 under 57.105 for any misconduct. But, in fact,
20 this court ordered that discovery. This court said
21 it was relevant and, therefore, there can be no
22 finding of bad faith for whatever we did regarding
23 those maps.
24 And, in fact, in the remedial phase, when they
25 brought -- when they asked the Court to adopt their
App. 569 37
1 remedial plan, we brought to the Court's attention
2 what had happened and what we had discovered during
3 the discovery, and asked the Court to determine
4 that they would not look at their maps because they
5 had already shown that they were based on partisan
6 intent on their side and, therefore, could not have
7 been a neutral map.
8 They also claim, as far as litigation
9 misconduct, if you read the motion, we took several
10 appeals.
11 Your Honor, we took one appeal. We appealed
12 and it wasn't technically an appeal, but I will
13 accept, for purposes of argument, that it was an
14 appeal, it was a petition for cert to the First DCA
15 based on the legislative privilege.
16 The First DCA agreed with our position. And
17 then it went to the Florida Supreme Court and the
18 Court said there is a legislative privilege even
19 though they argued that there was no legislative
20 privilege in Florida. That's what they argued.
21 The Florida Supreme Court disagreed with their
22 argument and said, yes, there is, but it is a
23 qualified privilege, not an absolute privilege and,
24 therefore, you have -- if you have -- you have a
25 privilege based on subjective impressions but not
App. 570 38
1 objective facts.
2 Well, Your Honor, I think in a subsequent
3 hearing after the Supreme Court argument, you
4 suspected that there was going to be a lot of
5 litigation about whether a question or deposition
6 question involved subjective impressions or
7 objective facts.
8 Never once did we come to the Court, never
9 once did we object at a deposition saying, no, that
10 involves subjective impressions, we are not going
11 to answer that. Never once did we come to the
12 Court because we couldn't organize or schedule
13 depositions of legislators and legislative staff.
14 All was done behind the scenes without you having
15 to get involved.
16 How is that bad faith conduct, taking an
17 appeal, having it decided in our favor on one court
18 and then complying with the directive of the
19 Florida Supreme Court?
20 What other bad faith conduct do they claim?
21 And whatever -- I think that's about it that they
22 claim as far as litigation conduct. There were
23 eight orders that ordered production of the
24 alternative maps. Therefore, there can't be any
25 litigation misconduct when we -- when the Court
App. 571 39
1 noted that we were entitled to those maps and to
2 that kind of discovery.
3 Then even if, Your Honor, you find there was
4 some litigation misconduct, then the attorneys'
5 fees has to be very specific to whatever misconduct
6 and the reaction to the misconduct. Under this
7 provision, the inherent power of the court, they
8 are not entitled to all of their litigation
9 expenses. They are entitled to specific expenses
10 in reaction to whatever bad faith.
11 And this Court would have to make a finding --
12 based on Moakley -- it would have to make a finding
13 of what specific acts of bad faith --
14 (Discussion off record as there was another
15 party on the telephone line that disrupted the
16 hearing.)
17 MR. CANTERO: I would like to quote from the
18 Moakley opinion on page 6. The Court said:
19 Accordingly, we conclude that the Court's exercise
20 of the inherent authority to assess attorneys' fees
21 against an attorney must be based on an expressed
22 finding of bad faith conduct and must be supported
23 by detailed factual findings describing the
24 specific acts of bad faith conduct that resulted in
25 the unnecessary incurrence of attorneys' fees.
App. 572 40
1 Thus, a finding of bad faith conduct must be
2 predicated on a high degree of specificity in the
3 factual findings.
4 In addition, the amount of the award of
5 attorneys' fees must be directly related to the
6 attorneys' fees and costs that the opposing party
7 has incurred as a result of the specific bad faith
8 conduct of the attorney.
9 Moreover, such sanctions are appropriate only
10 after notice and opportunity to be heard, including
11 the opportunity to present witness and other
12 evidence.
13 Finally, if a specific statute or rule
14 applies, the Court should rely on the applicable
15 rule or statute rather than on inherent authority.
16 They have not identified any bad faith conduct
17 on the part of the legislative parties or their
18 attorneys in this case that would justify an award
19 of sanctions under your inherent authority.
20 To the extent that they claim that some
21 nonparties may have engaged in bad faith, Your
22 Honor, you saw us in court, Your Honor. We were
23 not the nonparties. We did not object for the
24 nonparties; we did not appeal for the nonparties.
25 They had their own appeals going. There is still
App. 573 41
1 an appeal by nonparties pending in the Florida
2 Supreme Court. We were not involved in that
3 appeal.
4 So there is absolutely no evidence to suggest
5 that we are joined in the hip with nonparties that
6 were engaged in litigation in this suit.
7 To the extent that they have a problem with
8 the litigation tactics or any positions that the
9 nonparties took, that's an issue that they have
10 with the nonparties, not with us. And the
11 attorneys' fees they could seek, they should have
12 sought them already, if they haven't; and if they
13 do, they should seek them against them and based on
14 either Rule 1.280 or 57.105 or some other
15 provision.
16 As far as their prevailing parties, Your
17 Honor, I would like to hand up a couple of things
18 to the Court.
19 First is the amended joint pretrial statement,
20 and I believe that is dated May 9th.
21 And secondly is the plaintiffs' -- I only have
22 one copy of that, Your Honor, but if I can hand up
23 to the Court the amended joint pretrial statement.
24 Your Honor, this is dated May 9, I believe.
25 And if you look at pages -- before I even get to
App. 574 42
1 that, we issued interrogatories to the parties, to
2 the Romo plaintiffs specifically, and on April 9th
3 of 2014, they responded, first, objecting to our
4 interrogatories which asked them what specific
5 districts are you contesting in this case. They
6 objected to answering that because they said the
7 Court ordered a simultaneous pretrial briefing, so
8 you are not entitled to know our position until the
9 pretrial briefing.
10 But then they said, expressly reserving and
11 without waiving the specific objections and the
12 general objections above, the Romo plaintiffs
13 contend that the entire Congressional plan enacted
14 by the Florida Legislature is invalid.
15 Additionally, numerous specific districts,
16 including but not limited to Congressional
17 Districts 5, 7, 8, 9, 10, 13, 14 and 17, are
18 invalid. That's eight specific districts.
19 Then in the document that you have, if you
20 look at pages 13 to 14, these are the statement of
21 facts, factual issues to be litigated at trial.
22 And, again, this is a joint pretrial statement that
23 all the parties have to file before Your Honor, and
24 I believe it was filed May 9.
25 On page 13 of 14, it goes through statement of
App. 575 43
1 issues, numbers 5 through 11, and it goes through
2 Congressional Districts 5, 13, 14, 6, 7, 9 and 10,
3 20, 21 and 22, 25, 22, 23, 24, 26 and 27.
4 That's 16 separate districts that they
5 contested. And then how did we get to the 10 that
6 you determined in your order that you reviewed in
7 your order? We get that from their -- the
8 plaintiffs' joint pretrial memorandum also dated
9 May 9th, and in that memorandum -- I am just
10 looking at the table of contents right now -- it
11 says, number 2, the districts surrounding District
12 5 -- well, first it says District 5 is
13 unconstitutional.
14 The districts surrounding District 5 must be
15 redrawn.
16 District 10 is unconstitutional.
17 Districts 13 and 14 are unconstitutional.
18 Districts 21 and 22 are unconstitutional.
19 District 26 and 27 are unconstitutional.
20 District 15 and 25 are unconstitutional.
21 Then you may recall at trial there was a point
22 where I said, Your Honor, we need to know precisely
23 what specific districts they are contesting because
24 I have Mr. Guthrie on the stand and we are going to
25 respond specifically to each of the specific
App. 576 44
1 districts they are contesting. But in order to do
2 that, I need a stipulation that was in plaintiffs'
3 pretrial memorandum is actually the districts that
4 they are contesting.
5 And we got that stipulation at that time with
6 the caveat, of course, that to the extent that
7 there may be a district that you declare
8 unconstitutional and it may require the fixing of
9 an adjacent district.
10 But basically we are talking about 10
11 different districts that they thought were
12 unconstitutional, which is, Your Honor, precisely
13 why you addressed 10 separate districts in your
14 order. You went through them district by district,
15 point by point. And of the 10 districts, you found
16 two were unconstitutional: District 5, basically
17 because of the incursion into Seminole County.
18 That was the fault that you found with District 5.
19 And in District 10, there was another little
20 lip that you found was unconstitutional. That was
21 the extent of the invalidation of the congressional
22 districts.
23 Then we remedied those districts, Your Honor,
24 and you found that our remedy -- first they argued
25 to you that you should accept their alternative
App. 577 45
1 map. They brought alternative maps in to you that
2 had District 5 going east/west instead of north/
3 south.
4 You rejected the proposition that the
5 plaintiffs or the Court or anybody but the
6 legislature should redraw the maps. We did that.
7 You asked us to do that; we did it. We did it
8 timely, and we came back to you.
9 They claimed that, again, it was
10 unconstitutional, that we hadn't remedied the
11 problem. Again, they gave you alternative maps
12 going east to west, and you said that our remedy
13 was fine and validated the new maps.
14 And as I had told you when we were here in
15 July, Your Honor, I said we have no intent to
16 appeal your order; we are going to do what you say
17 and remedy the maps, but I can't speak for them and
18 they may appeal.
19 And if they appeal, then all bets are off; we
20 may cross appeal. That's exactly what happened.
21 They appealed your order, and now we have cross
22 appealed.
23 So I don't know how they can say that they are
24 the prevailing party certainly on the major issues
25 of the case when they went from 16 districts that
App. 578 46
1 they are contesting to 10 districts and you found
2 two districts were invalid and you specifically
3 approved all the other districts.
4 Your Honor, let me see if I have any other
5 comments.
6 By the way, Your Honor, they have appealed
7 your order as to every district as to the districts
8 you found invalid but we remedied; and as to the
9 districts you found were valid, they appealed that
10 as well.
11 And your Honor, as to the 57.105 motion that
12 we filed, quite frankly, Your Honor, I believe, to
13 argue that we engaged in inequitable conduct during
14 the litigation of this case is a frivolous
15 argument. They may have a better argument for the
16 extension or modification of law on the Private
17 Attorney General Doctrine even though it's never
18 been adopted in the state.
19 You may say, well, you can always argue
20 whether it should be adopted; that's not really
21 frivolous to argue that. We believe that arguing
22 that our conduct was in bad faith in this case when
23 all we did was fairly and aggressively litigate the
24 case without you ever imposing sanctions once on us
25 is itself in bad faith and itself should be
App. 579 47
1 sanctioned. Thank you.
2 MR MEROS: Your Honor, George Meros on behalf
3 of the House.
4 The House adopts the argument of Mr. Cantero
5 on behalf of the Senate. And I would ask for one
6 housekeeping issue.
7 We are now at 10 after 11:00. We have not yet
8 heard the motions to tax costs. I would ask the
9 Court to have a hard stop at noon and to allocate
10 time however the Court believes. I have a business
11 appointment at 12:30 that is longstanding, and I
12 would very much like to meet that if I could. And
13 I will be happy to accommodate any limitations --
14 THE COURT: I will accommodate your need to
15 get somewhere else because I do, too. That would
16 help that you didn't add anything else. I believe
17 the Attorney General wanted to make an argument as
18 well. Am I right?
19 MR. WINSHIP: Yes, Your Honor. Thank you.
20 Blaine Winship for the Attorney General. Your
21 Honor, I just wanted to find out, risk management
22 was just served with this motion of the Coalition
23 plaintiffs on October 1st. So this is a brand-new
24 issue for risk management. And they have asked me
25 to address the Court with regard to the plaintiffs'
App. 580 48
1 failure to comply with the requirements of
2 Section 284.30, to make Your Honor aware of that
3 failure. And I would note that the pertinent part
4 to that statute states, quote, A party to a suit in
5 any court, to be entitled to have his or her
6 attorneys' fees paid by the state or any of its
7 agencies, must serve a copy of the pleading
8 claiming the fees on the Department of Financial
9 Services; and thereafter, the Department shall be
10 entitled to participate with the agency in the
11 defense of the suit and any appeal thereof with
12 respect to such fees, unquote.
13 The point clearly sets forth what the
14 requirements are. I should note that the Romo
15 plaintiffs actually did include -- I think they
16 noted to Your Honor this morning a request for fees
17 early on in this litigation. There was no service
18 by them on the Department of Financial Services or
19 the Division of Risk Management.
20 The Coalition plaintiffs in their motion claim
21 at page 2 of their motion that they had been
22 fighting, I think they said tooth and nail, every
23 step of the case. But again, no service on Risk
24 Management until October 1st.
25 This is a 2012 case, Your Honor. We are
App. 581 49
1 talking about service on October 1st of 2014.
2 Both of the plaintiffs' groups advanced a
3 conduct of the Private Attorneys General, and we
4 would note, as was also pointed out earlier today,
5 Your Honor, that from the outset the Attorney
6 General was made a defendant here by the Romo
7 plaintiffs. They viewed themselves as Private
8 Attorneys General and thereby entitled to fees. It
9 was incumbent upon them to provide notice to the
10 Department of Financial Services. They didn't do
11 that.
12 I would lastly note that with regard to
13 57.105, this is a general provision applicable to
14 parties regardless of whether they are state
15 agencies or the state itself. And so fees that are
16 sought are sought not necessarily against a state
17 or state agency under 57.105.
18 My point being that that is a generally
19 applicable statute. We don't believe it overrides
20 the requirement for Section 284.30, and I would
21 note that those are apparently strictly construed
22 requirements. They are considered to be conditions
23 precedent.
24 And, Your Honor, I have several cases I could
25 cite to you in which actually the First DCA holds
App. 582 50
1 plaintiffs' for fees feet to the fire with regard
2 to 284.30. I will mention one of them, for
3 example, is Hale versus Department of Revenue,
4 found at 973 So. 2d, 518. That is a First DCA
5 opinion from 2007.
6 And most of all, Your Honor, I simply wanted
7 to raise that point. I don't think the point has
8 been raised, but the Division of Risk Management
9 wants to be sure the Court is aware of the
10 strictures of Section 284.30.
11 MR. CANTERO: We would adopt those arguments
12 as well --
13 THE COURT: Okay.
14 MR. CANTERO: -- for the Senate and the House.
15 THE COURT: Was there anybody else on the
16 phone that wanted to make argument or comment? If
17 not, let me go back to the plaintiffs and see if --
18 since it's -- both of you have motions, but it
19 started with your motion, so I will give you last
20 word on entitlement.
21 MR. KING: Your Honor, let me start by
22 responding to your question about the Hilton Oil
23 Transport case. That was a case where the Florida
24 court pointed out sort of in a recitation of
25 exceptions to the American rule, they say another
App. 583 51
1 exception to the American rule is the Private
2 Attorney General Doctrine: Under this doctrine
3 Congress has made specific and explicit provisions
4 for allowance of attorneys' fees under selected
5 statutes, granting and protecting various federal
6 rights. And it goes on to say perhaps the most
7 often relied upon exception is the common fund, and
8 it says the common fund rule is an exception to the
9 American rule.
10 And then it goes on to say: We conclude that
11 the imposition of attorneys' fees against OTC in
12 the case sub judice cannot be supported under any
13 of the forementioned theories; that there was
14 neither a contractual or statutory basis for the
15 award of attorneys' fees in Hilton Oil's favor is
16 without dispute. The bad faith litigation and
17 Private Attorney General exceptions were never
18 raised and are clearly inapplicable in this case.
19 So that's basically what the Florida courts
20 have said about the Private Attorney General
21 Doctrine.
22 But in contradiction to what they say, the
23 courts have never been faced -- he says in 150
24 years certainly it must have happened. But the
25 fact of the matter is the courts in Florida have
App. 584 52
1 never been faced with the opportunity in an
2 appropriate case to consider the application of the
3 Private Attorney General Doctrine. This is that
4 case. This is that appropriate case.
5 Again, they don't contest that this case meets
6 the three elements of that rule, of the factors
7 that support the Private Attorney General Doctrine.
8 I don't think they can really argue that it's not a
9 good thing to vindicate, to incentivize people to
10 vindicate a public right in the nature that
11 occurred in this case.
12 All he could say was that maybe it might be
13 funded by a political party, maybe somebody will
14 fund it. But that did not work in any of the
15 states that have considered it. That rationale did
16 not move anybody and it shouldn't move this court.
17 It's appropriate when their bad conduct has
18 been exposed by the only people that were willing
19 to do it. They ought to be held responsible for
20 that, and the way to do it is under the Private
21 Attorney General Doctrine.
22 As far as the failure to plead it, again, all
23 he talked about there was the American rule and
24 Stockton -- Stockman, which requires pleading in
25 the complaint of claims for contract or tort, but
App. 585 53
1 he doesn't refer to Cooper, which pointed out it
2 had to be there at the onset, and he doesn't talk
3 about the exceptions. Obviously there are at least
4 four areas where courts have held exceptions to the
5 American rule and allowed you to proceed without
6 having a contract or tort.
7 And as far as the failure to plead it, he
8 ignored the burden on the plaintiff establishing
9 when that occurs, that the fact that you can only
10 consider that at the conclusion of the case.
11 That's the only appropriate time to understand the
12 magnitude of the burden on the plaintiff.
13 And also as far as the necessity of private
14 enforcement, sure, we sued the Attorney General,
15 wanted him to be aware of what was going on, or her
16 to be aware of what was going on. They were in the
17 case, and they had the opportunity at any time to
18 pick up the torch and carry it forward, but the
19 political reality of that is that just didn't
20 occur.
21 But the time to assess that is at the time we
22 filed this claim for attorneys' fees at the end of
23 the case when the Court could see exactly what
24 occurred. So the basis for bringing the Private
25 Attorney General Doctrine was not present at the
App. 586 54
1 start of the case. And for that reason, Stockman
2 doesn't apply.
3 As far as inequitable conduct is concerned,
4 just two things I want to mention there. They said
5 that it only involves actions in litigation, any,
6 quote, Moakley for that. Moakley involved actions
7 in a litigation involving a turtle, but Moakley
8 says -- they quote on the -- at the start of the
9 decision bad faith may be found not only in the
10 actions that led to the lawsuit, but also in the
11 conduct of litigation. That's also -- that exact
12 quote is contained in Bitterman, which is the case
13 that came before Moakley.
14 Bitterman in 1998, Moakley in 2002. And
15 Bitterman allowed fees for the entire conduct of
16 the litigation without the limiting language that
17 was in Moakley because Bitterman involved a party.
18 The claim was being made against the party;
19 whereas, Moakley involved an individual lawyer.
20 So we would submit that clearly, the breadth
21 of the activities from the start by the
22 coconspirators, the political operatives and the
23 legislature resulted in the inequitable conduct
24 that ran through this case from the start to the
25 finish.
App. 587 55
1 As far as the prevailing party is concerned,
2 all they want to talk about is the districts. They
3 don't want to talk about the first 36 pages of your
4 decision. And I would submit to the Court that the
5 significant, the most significant issue in the case
6 was whether or not the legislature acted in an
7 unconstitutional way.
8 You found that they did. Most of the time we
9 spent in the trial was establishing they did. It
10 turned out, with the evidence that we had with the
11 documents that weren't destroyed, we were able to
12 make the best case for 5 and 10 and the districts
13 that surrounded those and were affected by those.
14 They had to redraw seven districts in all in their
15 remedial map.
16 But the analog to that is the arguments that
17 they never responded to, which was in the
18 negligence case. We cited one case where the
19 plaintiffs sought $200,000, they got 31,000. They
20 were the prevailing party. That's the way it works
21 when you win the major issue in the case.
22 As far as the remedial map is concerned, they
23 still don't tell us how it is, when the legislature
24 goes back to fix the constitutional infirmity that
25 the Court has found, how, when they do a remedial
App. 588 56
1 map, all of a sudden that turns them into a winner
2 in the case. It just doesn't work.
3 So I would submit to the Court that the
4 plaintiffs are the prevailing party and are
5 entitled to attorneys' fees as the prevailing
6 party.
7 And as far as the Department of Financial
8 Services is concerned, under 284.30, they were
9 served on October 1st. They haven't appeared; they
10 haven't done anything. We submit that nobody has
11 filed any pleadings on behalf of the Department of
12 Financial Services that in any way affect this
13 hearing.
14 So we would submit, Your Honor, that we are
15 entitled to recover attorneys' fees.
16 THE COURT: Okay. Before we get to the costs,
17 I am prepared to rule on the motion relative to the
18 entitlement of attorneys' fees on both sides. Let
19 me tell you what I think.
20 I don't think the plaintiffs are entitled to
21 attorneys' fees. I don't find any basis for
22 awarding fees based on litigation misconduct. I do
23 find there are some procedural deficiencies, and I
24 also -- although I think you make a good argument
25 in terms of equity and policy, public policy
App. 589 57
1 relative to whether there should be an Attorney
2 General, Private Attorney General concept, I think
3 it's not for me to override the general rule that
4 says you don't get it unless it's either statutory
5 or contractual remedy.
6 If there is to be an exception to that rule of
7 law, which I have to follow, it needs to be made by
8 the legislature or by the Appellate Court. So you
9 preserved that argument, maybe the appellate courts
10 will agree with you and send it back to do that if
11 they disagree with the procedural deficiencies and
12 my determination on that.
13 As to the attorneys' fees on the other side
14 for bringing that, I don't think the defendants are
15 entitled to it. Even though I don't buy the
16 argument at this point, I can't say that it's a
17 frivolous argument on either side sufficiently to
18 award attorneys' fees under 57.105, so I will deny
19 fees on both sides.
20 I do find that the plaintiffs are the
21 prevailing party in this case because the
22 significant issue was found in favor of the
23 plaintiffs. So that means that I would be taxing
24 costs in favor of the plaintiffs, and the question
25 would be what tax -- what costs and what amount?
App. 590 58
1 And as always, the attorneys have done a great
2 job of briefing the issues and presenting it. If
3 it's agreeable, let me just tell you my thoughts on
4 the costs and see if that would give any guidance
5 without waiving any right to argue that I am wrong
6 and missed something.
7 But I think both sides agree I have some
8 discretion relative to costs; there is no absolute
9 entitlement. Some have suggested that you should
10 by the nature of the action that I have.
11 So here's what I think in terms of costs. The
12 plaintiffs should receive their filing fees,
13 obviously whatever costs to file the case, any
14 costs for the service of process, any fees for
15 service of witness subpoenas, either for deposition
16 or trial, witness fees or mileage for lay
17 witnesses, any deposition or trial per diem, court
18 reporter fee for any deposition, hearing, trial,
19 the costs of transcribing depositions plus one
20 copy, but not any expedited charges for doing it
21 real quickly or additional copies, or transcripts
22 of trial or hearings. In other words per diem for
23 trial and hearing but not transcripts of any trial
24 or hearing. I think the transcripts of the trial
25 would be an appellate charge, if you can get there.
App. 591 59
1 Videographer costs, in addition to the
2 transcript, if there was a video deposition
3 presented at trial -- I don't recall whether there
4 was or wasn't, but otherwise not; reasonable expert
5 witness fees for depositions or for trial or for
6 reasonable time to prepare for the same, including
7 travel time as reasonably necessary for that, but
8 not time spent by the expert counseling or
9 consulting with counsel or the preparation of
10 written reports.
11 The reasonable costs of preparing exhibits
12 that were used at trial or demonstrative aid, there
13 was a bunch of exhibits. In conjunction with that,
14 it's kind of discretionary but I thought it was
15 quite helpful; the technology that was used, I am
16 not familiar with it but it seemed to make things
17 go smoother and quicker. I don't remember what you
18 call it, but there was a specific software program
19 that was used. And you don't put a cost of that in
20 there, you just say that cost, so I think in
21 general that was pretty reasonable.
22 No recovery for the electronic discovery
23 expenses. I think the plaintiffs should recover
24 their reasonable charge for the Special Master
25 Charge, even though the legislative defendants
App. 592 60
1 weren't involved in that at all, those are
2 reasonable expenses they had to occur to get
3 necessary discovery that helped them in the case.
4 And it was pursuant to a court order, so I think
5 that's fair.
6 There was a request for interest. I don't
7 think you are entitled to interest, like
8 prejudgment interest on costs. Maybe so, I leave
9 that open. Certainly once the order has been
10 entered, you can get interest on that amount.
11 Those are my general thoughts on that, and
12 they weren't broken down enough so I could come up
13 with a cost.
14 Yes.
15 MR MEROS: If I may suggest, if we could get
16 your ideas transcribed and then provide just short
17 briefing on that, whether we disagree with any or
18 all, I think it would be much more helpful than
19 trying to argue what you have identified at this
20 point.
21 THE COURT: I was hoping by doing that you all
22 could get together, still without waiving your
23 rights or your objections, come up with an amount
24 and say we agree this is it.
25 The issue would be, what's a reasonable cost
App. 593 61
1 of some expert? Do that, there may be disagreement
2 about that; maybe you can agree.
3 MR. ZEHNDER: It seems to me the court has
4 given us good guidance where you are heading on the
5 issues. We ought to be able to come together and
6 try to work them out as best we can. We are not
7 disputing about what the numbers are, it's just a
8 matter of figuring out how they fit with what the
9 court said.
10 One clarification I just want to make: Is the
11 court then denying their motion to tax costs
12 against plaintiffs?
13 THE COURT: Yes, there is only one prevailing
14 party for purposes of costs, that would be the
15 plaintiffs.
16 MR MEROS: I think we can certainly get
17 together and come closer. There may be some things
18 we may want to brief to some extent the issue of
19 our costs, but I think it would be best if we could
20 get together, try to agree on some things.
21 There was a motion by the plaintiffs, because
22 we raised the point, that there had to be testimony
23 with regard to reasonableness of expert, some
24 expert fees. I think perhaps we could bridge that
25 gap. We may seek additional proceedings on that,
App. 594 62
1 may not. But if we could have some time to work on
2 those and then come back to the court with some
3 response, we would appreciate that.
4 THE COURT: That would be my suggestion if you
5 all could do that.
6 MR. ZEHNDER: We'll endeavor to do that. I
7 just didn't understand Mr. Mero's comment about
8 further briefing on their costs.
9 THE COURT: They still want to argue I should
10 reconsider what I suggested. I am certainly
11 willing to listen to that but, like I said, I don't
12 think -- I know there is some argument in your
13 response, in your motion, that it's an equitable
14 action, I could shift it all around like that.
15 To the extent that I am limiting their costs,
16 I am doing that in terms of awarding costs; I am
17 also using some equitable discretion to not give
18 the plaintiffs all their costs but what I think is
19 reasonable. But you are welcomed, like I said,
20 this is without any prejudice to either side to
21 argue that I should do something different than
22 that.
23 But those are the general categories and a
24 little bit of the rationale of why I am suggesting
25 those would be the legitimate costs to tax.
App. 595 63
1 MR. CANTERO: I have a couple of questions or
2 clarification on your ruling.
3 As far as you said transcribing, costs of
4 transcribing depositions, are those all depositions
5 or only those used at trial or for witnesses who
6 testified at trial?
7 THE COURT: Those are all depositions. And I
8 could have gone through and looked at each one
9 separately. But I thought instead of doing that, I
10 will just say instead of all additional copies, all
11 the other additional costs, I said it would be
12 easier to say all the depositions; if you took a
13 deposition, you get the cost of the per diem, the
14 cost of transcribing and one copy.
15 MR. CANTERO: Thank you. Then as far as the
16 software program, that's called TrialDirector. We
17 use that as well, and I know we didn't purchase it
18 simply for the purpose of this case. So would they
19 have to show that they bought that just for this
20 case, they didn't have it already and just used it
21 in this case?
22 THE COURT: Well, what I would expect on that,
23 like I said, there was no indication of how much
24 they were asking for that. All I am saying is that
25 I found it, as the trier of fact, to be helpful in
App. 596 64
1 terms of presentation of the case and it's a
2 legitimate cost. I don't know how they do it.
3 Sometimes people ask for costs, for example,
4 research costs using Lexisnexis or WestLaw, that
5 costs them a certain amount of time; I've had that,
6 and said: Well, you know, it maybe saved time or
7 something like that.
8 There is real bright line test. But maybe if
9 you prorate, you say: Well, this was a cost-saving
10 device, it would have cost us this; yeah, the fact
11 that you can now use it for additional cases is
12 something to consider.
13 MR. CANTERO: I am saying we already had that.
14 If they already had that -- because as litigation
15 counsel, in the normal course they use a program
16 like that; it's like saying that they want the cost
17 of their photocopying machine because they make
18 copies for trial, and they already had this as kind
19 overhead expense, then I would argue they are not
20 entitled to the cost of that program just because
21 they happened to use it in this case.
22 THE COURT: Like I say, I leave it open for
23 you all to either agree or disagree and maybe come
24 up with a figure you can live with. If not, I will
25 resolve it.
App. 597 65
1 I am just saying that I found it useful, and
2 that's one of those categories why, if I have
3 discretion, I will say: Okay. Let me give you a
4 reasonable amount of costs for that.
5 MR. ZEHNDER: Last point of clarification.
6 You mentioned reasonable costs of trial exhibit
7 copies and demonstratives. I want to make sure I
8 understand that.
9 The Court knows we obviously had electronic
10 versions of all our trial exhibits. We also had
11 paper copies over in the corner and we
12 periodically -- in fact a lot -- used those copies
13 in the case with the witness; and, in fact,
14 Mr. Terraferma would only look at hard copies and
15 we had them.
16 The case law says that photocopies of trial
17 exhibits are recoverable. So I guess what I am
18 asking the Court is: Are you thinking there should
19 be some discount of what we actually spent or is
20 the court awarding that cost? It's about $17,000,
21 Your Honor, large color maps and --
22 THE COURT: I think what I was saying was the
23 reasonable costs of preparing, copying and
24 preparing whatever exhibits and demonstrative aides
25 that were used. I don't know, I leave that open as
App. 598 66
1 to whether that was used. I didn't know about
2 anything I didn't see, whether that fits in that
3 category or not. But obviously if you intend to
4 use it at trial, you may have different formats to
5 use it; and if that's reasonable, then it's
6 reasonable.
7 I can say particular ones, because I don't
8 know about all of them. That's a category you may
9 have to get an agreement on or not. If you don't
10 agree, I will resolve it. I think you should be
11 reimbursed for reasonable costs of having to
12 prepare whatever exhibits that you needed for
13 trial.
14 MR. ZEHNDER: Thank you.
15 MR MEROS: That certainly is an issue we might
16 have a difference on. We might be able to agree
17 but we certainly don't agree at this point.
18 THE COURT: Okay.
19 MR. DEVANEY: If I could ask maybe -- I am on
20 the phone and I didn't fully hear the category of
21 expert costs that you said are likely recoverable.
22 Could I ask you to repeat that?
23 THE COURT: What I said about experts,
24 whatever are their reasonable expert witness fees
25 for deposition or trial or reasonable time to
App. 599 67
1 prepare for, either one of those. And also
2 reasonable travel time, if they had to travel to
3 get to trial or deposition.
4 I excluded from that, because I know you had
5 one expert that didn't testify at trial; you had to
6 do a deposition, fine. But I excluded the time
7 that was spent consulting with counsel or preparing
8 written reports, because I know you specifically
9 asked for written reports, but I was excluding
10 that. Just the time that they testified or had to
11 prepare to testify either for deposition or trial
12 or travel to it, that's what I am looking for in
13 that category.
14 MR. DEVANEY: Thank you, Your Honor.
15 THE COURT: Anything else?
16 MR MEROS: No, sir.
17 THE COURT: Okay. Well, maybe somebody -- we
18 can wait on an order, if you want to wait, or you
19 can do an order on the entitlement to the fees and
20 costs and wait on the amount of costs. How would
21 you like to proceed?
22 MR. ZEHNDER: We could prepare an order and
23 circulate it to the other side and see if we can
24 get that worked out. Seems to me we ought to be
25 able to get an order in your hands, and we'll try
App. 600 68
1 to come up with an agreement on an amount and, to
2 the extent we can, great; if we can't, we'll come
3 back and ask for a ruling.
4 MR MEROS: I think it would be best to have
5 one on fees only at this point. And once we have
6 spoken and submitted something to the Court; I
7 think it would be like having the cart before the
8 horse.
9 THE COURT: That's what I am suggesting; have
10 an order of my ruling today and then come back
11 later.
12 MR. KING: It would seem to me like if we had
13 an order to say entitled to fees, plaintiffs'
14 motion for costs is granted but for the amount to
15 be decided, and defendants' motion for fees -- for
16 costs denied.
17 MR MEROS: The specifics as to whether the
18 motions for costs are granted or not granted has to
19 be much more specific than that, depending upon
20 what we agreed to or not.
21 You talked about specific items and to parse
22 those out, to say granted is inaccurate. It's
23 granted in part and denied in part.
24 So that's why, say the motion for fees is
25 denied, and taxation of costs will come later.
App. 601 69
1 THE COURT: Doesn't matter. What I have said
2 is on the record. I think the hangup there is they
3 want to argue that they should get some of their
4 costs, which I am not inclined to do, but I haven't
5 given them the opportunity to fully argue it.
6 So same thing, I haven't said you can't get
7 what you want, everything that you want, so I am
8 leaving that open. The only thing I have said is I
9 find you to be the prevailing party. Put that in
10 the order.
11 MR. ZEHNDER: Thank you, Your Honor.
12 THE COURT: Okay. Thank you.
13 (Proceedings concluded at 11:37 a.m.)
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App. 602 70
1 CERTIFICATE OF REPORTER
2 STATE OF FLORIDA )
3 COUNTY OF LEON )
4 I, SANDRA L. NARGIZ, Registered Professional
5 Reporter, certify that the foregoing proceedings were
6 taken before me at the time and place therein
7 designated; that my shorthand notes were thereafter
8 translated under my supervision; and the foregoing pages
9 numbered 1 through 70 are a true and correct record of
10 the aforesaid proceedings.
11 I further certify that I am not a relative,
12 employee, attorney or counsel of any of the parties, nor
13 am I a relative or employee of any of the parties'
14 attorney or counsel connected with the action, nor am I
15 financially interested in the action.
16 DATED this 12th day of December, 2014.
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20 SANDRA L. NARGIZ, RMR, CRR Notary Public 21 1-800-934-9090 850-878-2221 22 [email protected]
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App. 603