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In the Supreme Court of Florida IN THE SUPREME COURT OF FLORIDA GLENDA E. HOOD, Secretary ) of State of the State of Florida, ) ) Petitioner, ) Case No. SC 03-128 ) vs. ) Fourth District ) Case Nos. 4D02-2353 & 4Do2-2401 REP. CORRINE BROWN, et al., ) ) Respondents ) ) ON PETITION TO REVIEW A DECISION OF THE DISTRICT COURT OF APPEAL, FOURTH DISTRICT AMENDED INITIAL BRIEF ON JURISDICTION OF PETITIONER SECRETARY OF STATE GLENDA E. HOOD STEEL HECTOR & DAVIS LLP Counsel for Secretary of State JOSEPH P. KLOCK, JR., FBN 156678 GABRIEL E. NIETO, P.A., FBN 147559 JUAN CARLOS ANTORCHA, FBN 523305 200 South Biscayne Boulevard Miami, Florida 33131-2398 Ph: (305) 577-2855 Fax: (305) 577-7001 TABLE OF CONTENTS Page TABLE OF CONTENTS ................................................................................... ii TABLE OF AUTHORITIES ............................................................................. iii LIST OF ABBREVIATIONS USED IN THIS BRIEF .......................................... v INTRODUCTION ............................................................................................. 1 STATEMENT OF THE CASE ........................................................................... 2 SUMMARY OF THE ARGUMENT ................................................................... 4 ARGUMENT .................................................................................................... 5 I. THE DECISION BELOW EXPRESSLY CONSTRUED PROVISIONS IN BOTH THE FEDERAL AND STATE CONSTITUTIONS .................................................................................... 5 II. THE DECISION BELOW HAS FAR REACHING IMPLICATIONS ON FEDERAL REAPPORTIONMENT AND FUNDAMENTAL ISSUES OF COMITY THAT REQUIRE REVIEW BY THE STATE’S HIGHEST COURT .................................................................................. 10 CONCLUSION ............................................................................................... 10 CERTIFICATE OF SERVICE .......................................................................... 12 CERTIFICATE OF TYPE SIZE AND STYLE .................................................. 13 SERVICE LIST ............................................................................................... 14 TABLE OF AUTHORITIES Cases Brown v. Butterworth, Case Nos. 4D02-2353 and 4D02-2401, Slip. Op. (Fla. 4th DCA 2002). ...................................................................................... 3 Bush v. Gore, 531 U.S. __ (2000) ................................................................... 9 Cook v. Gralike, 531 U.S. 510 (2001) ........................................................... 6, 7, 9 Diaz-Balart v. Harris, Case No. 4:02cv 109-RH ........................................................... 1 Florida Senate v. Forman, 27 Fla. L. Weekly S733 (Fla. 2002) ............................................ 5 Hawke v. Smith, 253 U.S. 221 (1920) .................................................................. 9 Howlett v. Rose, 496 U.S. 356 (1990) .................................................................. 3 Lesser v. Garnett, 258 U.S. 130 (1922) .................................................................. 9 Martinez v. Bush, Case No. 02-20244 CIV-JORDAN ............................................. 1 Maurer v. Florida, Case No. 02-10028 CIV-JORDAN ............................................. 1 McPherson v. Blacker, 146 U.S. 1 (1892) ..................................................................... 8 U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995) ........................................................... 6, 7, 9 iii United States v. Classic, 313 U.S. 299 (1941) .................................................................. 7 White v. Weiser, 412 U.S. 783 (1973) (quoting Reynolds v. Sims, 377 U.S. 533, 586 (1964)) ................................................................................. 4, 7 Ex parte Yarborough, 110 U.S. 274 (1884) .................................................................. 7 Statutes U.S. Const. Art. I, §§ 1 & 2. ....................................................... 6, iv iv LIST OF ABBREVIATIONS USED IN THIS BRIEF App. The Appendix to this Brief Elections Clause U.S. Const. Art. I, § 4, cl. 1. Plaintiffs Respondents, plaintiffs below, Rep. Carrie Meek, Rep. Alcee Hastings, and Sallie Stephens. Redistricting Plan House Bill 1997; Florida’s plan for reapportionment of federal Congressional District’s based upon the 2000 Decennial Census, and enacted by the Legislature and signed into law by the Governor on March 27, 2002 Secretary Petitioner, Glenda E. Hood, Secretary of State for the State of Florida. i INTRODUCTION At issue is one of several legal challenges brought against Florida’s plan for reapportioning federal Congressional districts in light of the 2000 decennial census (the “Redistricting Plan”).1 While all other such challenges were appropriately filed in federal court and sought relief under federal law, this case purports to challenge the federal Redistricting Plan in state court and solely under state law, and therein lies the crux of the issue. In the decision below the Fourth District expressly construed the state and federal constitutions as allowing such a claim, notwithstanding the federal nature of the Legislature’s exercise of its delegated power over Congressional elections. The decision below thus invites Florida courts to intrude into matters that are purely federal in nature. In creating this new right of action, the Fourth District decision ultimately creates a direct collision between our state constitution and the conduct of federal elections. In essence, the Fourth District has created a “reverse supremacy” principle, giving the circuit court newfound state-law power over federal Congressional officers. This turns the very concept of federalism on its head. 1 This case is but one of a series of parallel and nearly identical challenges brought by closely aligned partisan interests. The others were resolved by a multi- district federal panel that took up three consolidated cases. Martinez v. Bush, Case No. 02-20244 CIV-JORDAN/Garber (S.D. Fla.), Diaz-Balart v. Harris, Case No. 4:02cv 109-RH/wcs (N.D. Fla.) and Maurer v. Florida, Case No. 02-10028 CIV- JORDAN/Brown (S.D. Fla.) (collectively “Martinez”). 1 To say the least, that decision cries out for review by this Court. The decision below expressly construes various provisions of the constitutions of Florida and the United States. This Court therefore has discretionary jurisdiction under Article V § 3(b)(3) of the Constitution of Florida, and should act to fully consider the important matters of federalism and state and federal constitutional law that are at issue. STATEMENT OF THE CASE The Redistricting Plan was enacted by the Legislature, pursuant to the powers directly delegated to it by the Constitution of the United States. While the protections and limitations of federal law clearly govern the exercise of such powers, Plaintiffs took the novel tack of purporting to bring their claims below in state court, and solely under state law. Id. This was done to avoid removal and consolidation with the federal proceeding.2 Based on the federal nature of the Redistricting Plan, it was argued below that there is no jurisdiction in the state courts and, alternatively, even if such jurisdiction existed, Plaintiffs failed to plead a cause of action, as the Legislature’s 2 The Plaintiffs filed an earlier state court action raising the same allegations employed in the case at bar, but under federal law. See Brown v. State, Case No. 02001556. When that case was removed to federal court and was set to be consolidated before the multi-district panel, Plaintiffs voluntarily withdrew the action. They then refiled raising the very same allegations as before, but this time purporting to seek relief solely under state law. The desire to forum shop and bypass federal removal was obvious. 2 exercise of federal powers is not governed by state law. The trial court dismissed based upon its determination that it had no jurisdiction over federal elections. Plaintiffs appealed to the Fourth District, arguing that the circuit court had subject matter jurisdiction over their claims and that state law applied. The Fourth District agreed and reversed, finding that the state constitution grants the circuit court power over federal elections.3 Brown v. Butterworth, Case Nos. 4D02-2353 and 4D02-2401, Slip. Op. (Fla. 4th DCA 2002), App. at 3-4. The Fourth District at several turns expressly construed both the state and federal constitutions, repeatedly invoking article III, section 16 of the Florida Constitution and the Equal Protection clauses of both the United States and Florida Constitutions, in determining that the case should go forward. See App., at 3-5. But in all of this the Fourth District paid little heed to the federal nature of the delegated powers at issue. Instead the district court relied primarily on little more than that the state constitution provides no express bar to challenging reapportionment in circuit court, and glossing over the restrictions in federal law, 3 On appeal to the Fourth District, the Secretary again argued that Plaintiffs had failed to plead a cause of action as there is no substantive state law that governs the Redistricting Plan. This argument was rejected, apparently due to the Fourth District’s mistaken impression that Plaintiffs had raised concurrent federal claims under the Voting Rights Act and other federal law. At several places the decision below cites cases such
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