IN THE SUPREME COURT OF FLORIDA CASE NO. SC02-194 IN RE: 2002 JOINT RESOLUTION OF APPORTIONMENT __________________________________/ 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