IN THE SUPREME COURT OF FLORIDA

CASE NO. SC02-194

IN RE: 2002 JOINT RESOLUTION OF APPORTIONMENT

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COMMENTS OF THE HONORABLE T.K. WETHERELL, RALPH HABEN, AND JOHN THRASHER, FORMER SPEAKERS OF THE FLORIDA HOUSE OF REPRESENTATIVES, IN SUPPORT OF THE 2002 JOINT RESOLUTION OF APPORTIONMENT AND IN OPPOSITION TO ATTORNEY GENERAL’S BRIEF REGARDING DECLARATORY JUDGMENT IN THE FLORIDA SUPREME COURT

I. PRELIMINARY STATEMENT

This brief is filed on behalf of three former Speakers of the House of Representatives, including the Speakers who presided over the 1980 and 1990 Florida redistricting cycles. All have an abiding institutional interest in preservation of the constitutional integrity of the Legislature’s primary role in creation of state legislative plans of apportionment.

These Speakers oppose the submission of the Attorney General because it contravenes the

Separation of Powers Doctrine and this Court’s redistricting precedents.

The Attorney General’s position, if accepted, would diminish the Legislature’s authority to make the difficult policy choices necessary in crafting plans of apportionment. It would also strip away the presumption of validity to which every legal enactment is entitled.

II. INTRODUCTION

The Attorney General cannot find any constitutional or statutory defect in the Legislature’s plan of apportionment. Yet, he asks this Court to claim the power to intrude upon the Legislature’s right to apportion itself and force adoption of extra-constitutional standards, and further, to require implementation of these extra-constitutional standards in the plan of apportionment. The Attorney General cites no constitutional authority or Florida precedent to support this argument. No such support exists.

No legal standard in Florida or in the United States, new or old, permits this Court to assume powers of reapportionment review beyond those expressly conferred by the Florida Constitution.

Contrary to the Attorney General’s suggestion, no computer software has changed the immutable fact that the power to redistrict resides in the Florida Legislature, subject only to the limited right of the

Court to determine whether the reapportionment plan expressly conflicts with the Florida or Federal

Constitutions. Neither the Federal nor Florida Constitutions require the Legislature to adopt redistricting standards other then those imposed by those organic documents.

The obligation of each coordinate branch to enforce zealously the Separation of Powers

Doctrine is not dependent on whether the Legislature is controlled by Republicans or Democrats. This

Court must reject - summarily and unequivocally - this assault on the separation of powers. Any other action would erode the respect and confidence that each coordinate branch has for the other, and would invite encroachment and destructive conflict among the branches in the future.

III. ARGUMENT

A. The Attorney General’s position would strip away the constitutionally – required presumption of validity of legislative action.

The Attorney General’s position unconstitutionally discards the presumptive validity of legislative action. The Attorney General’s brief at page three states:

In the absence of standards underpinning these plans, we suggest that it is simply impossible for the Court to determine validity. If the issues raised herein are not successfully rebutted by other interested parties, we suggest that the Court deny the petition for declaratory judgement, allow the legislature to determine the objective standards to guide reapportionment, make plan adjustments necessary to implement the standards, and return the plans to this Court for further review.

2 Were this Court to accept the Attorney General’s suggestion, it would strip away the presumption of validity attendant to every legislative enactment. This Court cannot do so if it is to follow its own precedent. With specific regard to legislative apportionment plans, this Court has observed:

[N]o duly enacted statute should be judicially declared to be inoperative on the ground that it violates organic law, unless it clearly appears beyond all reasonable doubt that, under any rational view that may be taken of the statue, it is in positive conflict with some identified or designated provision of constitutional law . . . . the Courts have no veto power, and do not assume to regulate state policy; but they recognize and enforce a policy of the law as expressed in valid enactments, and decline to enforce statutes only when to do so would violate organic law.

In Re Apportionment Law Appearing as Senate Joint Resolution Number 1305, 263 So. 2d 797,

806 (Fla. 1972) (citing City of Jacksonville v. Bowden, 67 Fla. 181, 64 So. 769 (1914)).

This Court further stated that:

Hence, this Court, in accordance with the doctrine of separation of powers, will not seek to substitute its judgment for that of another coordinate branch of the government, but will only measure acts done with the yardstick of the Constitution. The propriety and wisdom of legislation are exclusively matters for legislative determination . . . :

Statutes are the creations of legislators; and since legislators are [men and women], their creations are subject to the same critical analysis concerning wisdom, policy, fairness, justice, and expediency as other human acts. In directing attacks on laws assailed as unconstitutional, attempts are often made to stress these frailties as reasons why the Court’s should nullify the legislative pronouncement. These attacks uniformly fail.

Id. at 806 (Fla. 1972) (quoting 16 Am.Jur.2d, Constitutional Law, § 157, p. 365).

No technology, no “new legal standard” has changed this fundamental, unyielding presumption of legislative validity. The Attorney General’s assertion flatly contradicts this constitutional imperative.

3 B. The imposition of “objective standards” is beyond this Court’s authority and would alter the Constitution’s intent to grant to the Legislature the power to balance the competing interests involved in redistricting.

The Attorney General’s argument has a superficial allure – he suggests that the requirement of standards is merely an adjunct to the Court’s obligation to determine the validity of the redistricting plan.

The argument, however, is fundamentally erroneous and attempts to entice the Court to assume substantive powers over redistricting not permitted by the Constitution. The Florida Constitution reserved to the Legislature, acting as the People’s representatives, the power to balance the competing and often contradictory considerations involved in redistricting. The People decided not to confer that power upon an unelected judiciary, but instead limited the judiciary’s role to determining whether the plan conforms with express constitutional requirements. The electorate conferred all other redistricting power upon their representatives, whom they elect and over whom they exercise the right to oust if they make unwise decisions.

Anyone who has taken the care to read the public testimony or legislative debates from this or previous redistricting cycles must recognize that the considerations and standards involved in redistricting are competing, often contradictory, and require balancing and compromise. In redistricting there are not two sides to a debate, but scores of differing views on virtually every policy decision and the drawing of every line. For instance, “compactness” can mean one thing when a district is viewed vertically on a map, but quite another when one drives in an actual district. “Communities of interests” can be social, economic, geographic, industrial, urban, agricultural, age-specific, or some combination.

“Preservation of political subdivisions” can mean the preservation of municipal lines and the violation of county lines, or vice versa. For these reasons, the United States Supreme Court cautioned against judicial intervention into this area:

4 Inviting attack on minor departures from some supposed norm would too much embroil the judiciary in second-guessing what has consistently been referred to as a political task for the legislature, a task that should not be monitored too closely unless the express or tacit goal is to effect its removal from legislative halls. We decline to take a major step toward that end, which would be so much at odds with our history and experience.

Davis v. Bandemer, 478 U.S. 109, 134 (1986) (emphasis added).

Indeed, there is no such thing as conformance with “objective redistricting standards.” Every line change represents a policy decision that includes contradictory and competing views of each of these “standards.” Again, the Court in Bandemer confirms the quintessentially political nature of these decisions:

The key concept to grasp is that there are no neutral lines for legislative districts . . . every line drawn aligns partisans and interest blocs in a particular way different from the alignment that would result from putting the line in some other place.

Id. at 129.

The Florida Constitution could have required express consideration of these standards or judicial review of them, but it does not. That decision is not accidental. In fact, there have been at least three efforts since 1972 to place express reapportionment standards into the Florida Constitution. See e.g., 1978 Constitution Revision Commission Proposed Revisions (available at Fla. Dep’t of State, Div. of Archives, ser. 1422, carton 1, Tallahassee, Fla.) (specifically, proposal to amend Article III, Section

16 of the Florida Constitution); In re Constitutionality of Senate Joint Resolution 2G, 597 So. 2d

276, 286 (Fla. 1992) (Overton, J., concurring) (suggesting the Legislature reexamine putting proposed constitutional revisions to Article III, Section 16 on the ballot); 1998 Constitution Revision Commission

Records, Proposal Nos. 172 and 162 (available at Fla. Dep’t of State, Div. of Archives, ser. 1768, carton 1, Tallahassee, Fla.). Those efforts have failed. The People of Florida, through their legislature

5 and Constitutional Revision Commissions, have made the conscious choice to leave the balancing of these competing interests to their representatives – not to an unelected judiciary.

The Attorney General’s assertion that “new technology” supports extra-constitutional standards is as fallacious as it is unconstitutional. In fact, it supports precisely the opposite view. The real difference between the state of the art technology available today and the state of the art technology available during the 1992 cycle (apart, of course, from improvements in graphics and processing speed) has been the pervasive availability of 2002 technology to Florida’s citizens. During this cycle, the

Legislature spent millions making that technology available on the Internet and in public libraries and, for

$20, Floridians could purchase software that allows for the drawing of maps with which to persuade legislators. No such ready public access was available in 1992. Thus, contrary to the Attorney

General’s assertion, new technology in 2002 has made redistricting a much more publicly accessible process, which in turn has made Florida legislators much more accountable to the People for their policy choices. That is how the political process is supposed to work, and it dispels the very basis of the Attorney General’s argument.

Under Florida’s constitutional system, what the organic law does not forbid, the Legislature may do. Cunningham v. Davis, 123 Fla. 41, 166 So. 289 (1936), reh den 122 Fla. 700, 166 So.

574 (1936). Stated another way:

[M]atters of . . . state policy are to be settled in the caldron of the people’s representative government, the Legislature, by such representatives as the people choose to elect, upon whatever they may have represented to the people that their standards are. If the electorate finds it has been misled in such standards, or wishes to change them, the polls will open again.

Ryan v. Ryan, 277 So. 2d 266, 274 (Fla. 1973).

Because Florida citizens have left the balancing of redistricting principals to their legislative representatives, and because the Legislature’s right to effectuate the People’s will is plenary absent 6 express constitutional limitation, the Supreme Court has no authority to assume the power to review or regulate the balancing of those interests.

The Attorney General’s argument represents a direct and invidious intrusion into the power of the People. It must be rejected.

C. The Court cannot regulate the legislative power to redistrict any more than the Legislature can regulate powers conferred upon the judiciary.

The Florida Supreme Court has been aggressive in rejecting any effort by the Legislature to impose limits upon or regulate powers reserved to the Judiciary by the Constitution. Allen v.

Butterworth, 756 So. 2d 52 (Fla. 2000) (“whatever power is conferred upon the Court by the

Constitution cannot be enlarged or abridged by the legislature”) (citing Brinson v. Tharin, 99 Fla. 696,

702, 127 So. 2d 313, 316 (1930) (stating that power to issue common law writ of certiorari was vested in the Court by the Constitution and could not be extended, limited, or regulated by statute)).

Accord State ex rel Buckwalter v. City of Lakeland, 112 Fla. 200, 209, 150 So. 508, 512 (1933);

Palmer v. Johnson, 97 Fla. 479, 481,121 So. 2d 466, 466-67 (1929). Similarly, this Court has no authority to review or determine the internal workings of the Legislature. Only the final legislative product is subject to judicial review. The Florida Senate v. Florida Public Employees Council 79,

AFSCME, 784 So. 2d 404, 408 (Fla. 2001); Moffitt v. Willis, 459 So. 2d 1018, 1021 (Fla. 1984).

If the Legislature cannot regulate or delineate the general power of the Court to issue common law writs of certiorari, then this Court cannot regulate or delineate the right of the Legislature to balance the competing interests in redistricting — except to the extent that the plan violates express provisions of the Florida or Federal Constitutions.

D. Now, as in 1972, this Court’s only role in redistricting is to determine whether the legislative plan conflicts with express provisions in the Florida or United States Constitutions.

7 The Attorney General’s suggestion that this Court’s review of apportionment plans has subtly increased in scope is wrong. The scope of this Court’s review, which has remained the same for thirty years, was plainly articulated in 1972:

We emphasize that legislative reapportionment is primarily a matter for legislative consideration and determination. Judicial relief becomes appropriate when a legislature fails to reapportion according to federal and state constitutional requisites. If these requisites are met, we must refrain, at this time, from injecting our personal views into the proposed reapportionment plan. Even though we may disagree with the legislative policy in certain areas, the fundamental doctrine of separation of powers and the constitutional provisions relating to reapportionment require that we act with judicial restraint so as not to usurp the primary responsibility for apportionment, which rests with the legislature.

In Re Reapportionment Law Appearing as Senate Joint Resolution Number 1305, 263 So. 2d

797, 799-800 (Fla. 1972).

In addition, no provision in the Florida Constitution imposes any redistricting standard more stringent than those imposed by the United Constitution:

There are no provisions in the Florida Constitution relating to apportionment of the Legislature more stringent than those of the United States Constitution. To say that the present apportionment meets the requirements of the United States Constitution, but is invalid under the state Constitution, is tantamount to imposing our will upon Legislative policy by limiting the clear provisions of our constitution.

8 Id at 807-808.

This Court confirmed the limitations on its review in 1982. See In re Apportionment Law

Appearing as Senate Joint Resolution 1E, 414 So. 2d 1040 (Fla. 1982). The Court evaluated whether the plan met the “one man, one vote” requirements of the equal protection clause of the

Fourteenth Amendment to the United States Constitution and whether the plan fulfilled its constitutional requirement to treat minority citizens fairly. The Court also reviewed the Florida Constitutional requirement of contiguity. In addition, and fully consistent with its mission to determine the plan’s compliance with express provisions of the Florida Constitution, the Court analyzed whether Article III of the Florida Constitution required all Senators to run for re-election in 1982.

Despite the Attorney General’s assertion to the contrary, the Supreme Court’s 1992 review was similarly limited to the plan’s facial compliance with the Florida and Federal Constitutions. In Re

Senate Joint Resolution 2G, 597 So. 2d 276 (Fla. 1992). That decision first determined whether the plan complied with the equal protection standard of one person, one vote. It next addressed the

Florida Constitutional requirements that legislative districts be “either contiguous, overlapping, or identical territory.” Id. at 279. The Court then analyzed whether the plan’s treatment of minority citizens complied with the Federal Constitution. Because of the Supremacy Clause of the United States

Constitution, and because the Federal Voting Rights Act “was passed to implement the Federal

Constitution,” the Court also conducted a limited review of the plan to determine its superficial compliance with Section 2 of the Voting Rights Act. Id. at 282. Notably, however, the Court stated that the requirements of the Florida Constitution restricted that review to consideration of unrefuted statistical data accompanying the 1990 plan of apportionment. Id. at 281-282.

9 Nothing in the 1992 decision suggests that the Court “expanded” its review of redistricting plans. To the contrary, the Court continued to limit its review to the express obligations of the Florida and Federal Constitutions.

IV. CONCLUSION

The Attorney General’s argument represents a serious intrusion into legislative power.

Redistricting is a legislative prerogative because the People wanted it that way, and because the

Legislature is best-suited to weigh and balance the competing interests involved. If the legislative action is standardless, or if “the electorate finds it has been misled by such standards . . . the polls will open again.” Ryan v. Ryan, 277 So. 2d 266, 274 (Fla. 1973).

RESPECTFULLY SUBMITTED on this 16th day of April, 2002.

CERTIFICATE OF SERVICE

THE UNDERSIGNED HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Mail to the parties on the attached service list, this 16th day of April, 2002. ______T.K. Wetherell Speaker of the Florida House of Representatives (1991-1992) Post Office Box 37 Lamont, Florida 32336 ______John E. Thrasher Speaker of the Florida House of Representatives (1998-2000) 1303 Oaklanding Lane Orange Park, Florida 32003 ______Ralph Haben Speaker of the Florida House of Representatives (1981-1982) 1435 East Piedmont Drive Suite 110 Tallahassee, Florida 32308 SERVICE LIST

COUNSEL FOR THE CITY OF TEMPLE TERRACE

Theodore C. Taub Jaime Austrich Kimberly A. Benner Shumaker, Loop & Kendrick, LLP 101 East Kennedy Boulevard Suite 2880 Tampa, Florida 33602

COUNSEL FOR THE CITY OF BONITA SPRINGS, LEE COUNTY, FLORIDA, AND PAUL PASS, WAYNE EDSALL, JAY G. AREND, ROBERT WAGNER, JOHN WARFIELD, DAVID PIPER, BEN NELSON, INDIVIDUALLY AND AS MEMBERS OF THE BONITA SPRINGS CITY COUNCIL

Audrey E. Vance City Attorney 9220 Bonita Beach Road Suite 111 Bonita Springs, Florida 34135

COUNSEL FOR MARION COUNTY, FLORIDA AND THE CITY OF OCALA, FLORIDA

Stephen H. Grimes Susan L. Kelsey Holland & Knight LLP Post Office Drawer 810 Tallahassee, Florida 32310 COUNSEL FOR THE STATE OF FLORIDA

Hon. Robert A. Butterworth Paul F. Hancock George L. Waas Office of the Attorney General The Capitol, Plaza Level Tallahassee, Florida 32399-1050

COUNSEL FOR LEE COUNTY, FLORIDA, BOB JANES, DOUGLAS R. ST. CERNY, RAY JUDAH, ANDREW W. COY AND JOHN E. ALBION, INDIVIDUALLY AND AS MEMBERS OF THE LEE COUNTY BOARD OF COUNTY COMMISSIONERS

Gregory T. Stewart Harry F. Chiles Carrie Mendrick Roane Nabors, Giblin & Nickerson, P.A. 1500 Mahan Drive, Suite 200 Tallahassee, Florida 32308

James G. Yaeger County Attorney Lee County Attorney’s Office Post Office Box 398 Fort Myers, Florida 33902 COUNSEL FOR JOHN MCKAY, PRESIDENT OF THE FLORIDA SENATE

Barry Richard Greenberg Traurig 101 E. College Avenue Tallahassee, Florida 32301

James A. Scott Edward J. Pozzuoli Alexis M. Yarbrough Tripp Scott, P.A. 110 Southeast 6th Street, 15th Floor Fort Lauderdale, Florida 33301

COUNSEL FOR TOM FEENEY, SPEAKER OF THE FLORIDA HOUSE OF REPRESENTATIVES

Miguel De Grandy Stephen M. Cody Miguel De Grandy, P.A. The Miami Center 201 South Biscayne Boulevard Miami, Florida 33186

Joseph W. Hatchett J. Thomas Cardwell Richard A. Perez Robert J. Telfer, III Akerman, Senterfitt & Eidson, P.A. Post Office Box 10555 Tallahassee, Florida 32302-2555

George N. Meros, Jr. Jason L. Unger Gray, Harris & Robinson, P.A. Post Office Box 11189 Tallahassee, Florida 32302-3189