APPENDIX TO PETITION FOR WRIT OF CERTIORARI TO THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT

Transcription

1 IN THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, STATE OF FLORIDA OCTOBER 31, 2012 THE FLORIDA HOUSE OF REPRESENTATIVES, et al., Petitioners, Case No. vs. L.T. Case Nos CA CA RENE ROMO, et al., Respondents. / APPENDIX TO PETITION FOR WRIT OF CERTIORARI TO THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT Raoul G. Cantero Florida Bar No Jason N. Zakia Florida Bar No Jesse L. Green Florida Bar No White & Case LLP Southeast Financial Center 200 South Biscayne Boulevard, Suite 4900 Miami, Florida Telephone: Facsimile: rcantero@whitecase.com jzakia@whitecase.com jgreen@whitecase.com Charles T. Wells Florida Bar No George N. Meros, Jr. Florida Bar No Jason L. Unger Florida Bar No Allen Winsor Florida Bar No GrayRobinson, P.A. Post Office Box Tallahassee, Florida Telephone: Facsimile: Charles.Wells@gray-robinson.com George.Meros@gray-robinson.com Jason.Unger@gray-robinson.com Allen.Winsor@gray-robinson.com MIAMI (2K)

2 Florida House of Representatives, et al. v. Romo, et al. Appendix to Petition for Writ of Certiorari Leah L. Marino Florida Bar No Deputy General Counsel The Florida Senate Ste. 409, The Capitol 404 South Monroe Street Tallahassee, FL Telephone: Facsimile: Attorneys for the Florida Senate and President Mike Haridopolos Miguel De Grandy Florida Bar No Douglas Road, Suite 850 Coral Gables, Florida Telephone: Facsimile: mad@degrandylaw.com George T. Levesque Florida Bar No General Counsel, Fla. House of Rep. 422 The Capitol Tallahassee, Florida Telephone: George.Levesque@myfloridahouse.gov Attorneys for the Florida House of Representatives and Speaker Dean Cannon 2 MIAMI (2K)

3 Florida House of Representatives, et al. v. Romo, et al. Appendix to Petition for Writ of Certiorari TABLE OF CONTENTS Tab Document Pages 1. Order Granting in Part and Denying in Part Motion for Protective Order dated Oct. 3, Romo Plaintiffs Second Amended Complaint dated April 3, Coalition Plaintiffs First Amended Complaint for Declaratory and Injunctive Relief dated April 3, 2012 A. 1 A. 10 A. 11 A. 28 A. 29 A Notice of Taking Depositions dated July 11, 2012 A. 58 A Legislative Defendants Motion for Protective Order Based on Legislative Privilege dated July 12, Legislative Defendants Notice of Supplemental Authority in Support of Their Motion for Protective Order Based on Legislative Privilege dated August 15, Romo Plaintiffs Opposition to Legislative Defendants Motion for Protective Order Based on Legislative Privilege dated August 28, Coalition Plaintiffs Opposition to Legislative Defendants Motion for Protective Order Based on Legislative Privilege dated August 28, Romo Plaintiffs Notice of Supplemental Authority in Support of Their Opposition to Legislative Defendants Motion for Protective Order Based on Legislative Privilege dated August 30, 2012 A. 63 A. 87 A. 88 A. 101 A. 102 A. 150 A. 151 A. 172 A. 173 A MIAMI (2K)

4 Florida House of Representatives, et al. v. Romo, et al. Appendix to Petition for Writ of Certiorari 10. Legislative Defendants Consolidated Reply in Support of Motion for Protective Order Based on Legislative Privilege dated August 31, Legislative Defendants Supplemental Memorandum Regarding Legislative Privilege dated September 10, Romo Plaintiffs Supplemental Brief Relating to Legislative Defendants Motion for Protective Order Based on Legislative Privilege dated September 10, Coalition Plaintiffs Adoption of Romo Plaintiffs Supplemental Brief Relating to Legislative Defendants Motion for Protective Order Based on Legislative Privilege dated September 10, 2012 A. 179 A. 198 A. 199 A. 219 A. 220 A. 240 A. 241 A MIAMI (2K)

5 Florida House of Representatives, et al. v. Romo, et al. Appendix to Petition for Writ of Certiorari CERTIFICATE OF SERVICE I certify that on October 31, 2012, a copy of this appendix was served by mail and to all counsel on the attached service list. /s/ Raoul G. Cantero Raoul G. Cantero MIAMI (2K) 5

6 Florida House of Representatives, et al. v. Romo, et al. Appendix to Petition for Writ of Certiorari SERVICE LIST Joseph W. Hatchett Thomas A. Range Akerman Senterfitt 106 E. College Avenue, Ste Tallahassee, FL Telephone: (850) Fax: (850) Abha Khanna Kevin J. Hamilton Noah G. Purcell Perkins Coie, LLP 1201 Third Avenue, Ste Seattle, WA Telephone: (206) Fax : (206) AKhanna@perkinscoie.com KHamilton@perkinscoie.com npurcell@perkinscoie.com Jon L. Mills Elan Nehleber Boies, Schiller & Flexner LLP 100 SE 2nd Street, Ste Miami, FL Telephone: (305) Fax: (305) jmills@bsfllp.com enehleber@bsfllp.com John M. Devaney Mark Erik Elias Elisabeth C. Frost Perkins Coie, LLP 700 Thirteenth Street, NW, Ste. 700 Washington, DC Telephone: (202) Fax: (202) JDevaney@perkinscoie.com MElias@perkinscoie.com efrost@perkinscoie.com Karen C. Dyer Boies, Schiller & Flexner LLP 121 South Orange Avenue, Ste. 840 Orlando, FL Telephone: (407) Fax: (407) kdyer@bsfllp.com Attorneys for Respondents Rene Romo, Benjamin Weaver, William Everett Warinner, Jessica Barrett, June Keener, Richard Quinn Boylan and Bonita Agan MIAMI (2K) 6

7 Florida House of Representatives, et al. v. Romo, et al. Appendix to Petition for Writ of Certiorari Gerald E. Greenberg Adam M. Schachter Gelber Schachter & Greenberg, P.A Brickell Avenue, Suite 1420 Miami, FL Telephone: (305) Fax: (305) Jessica Ring Amunson Paul Smith Michael B. DeSanctis Kristen M. Rogers Christopher Deal Jenner & Block LLP 1099 New York Ave, N.W., Ste. 900 Washington, DC Telephone: (202) Fax: (202) Bruce V. Spiva The Spiva Law Firm, PLLC 1776 Massachusetts Ave., N.W. Suite. 601 Washington, DC Telephone: (202) Fax: (202) Ronald Meyer Lynn Hearn Meyer, Brooks, Demma and Blohm, P.A. 131 North Gadsden Street Post Office Box 1547 (32302) Tallahassee, FL Telephone: (850) Fax: (850) J. Gerald Hebert 191 Somervelle Street, #405 Alexandria, VA Telephone: (703) Attorneys for Respondents The League of Women Voters of Florida, The National Council of La Raza, Common Cause Florida; Robert Allen Schaeffer, Brenda Ann Holt, Roland Sanchez-Medina, Jr., and John Steele Olmstead MIAMI (2K) 7

8 Florida House of Representatives, et al. v. Romo, et al. Daniel E. Nordby General Counsel Ashley Davis Assistant General Counsel Florida Department Of State R.A. Gray Building 500 S. Bronough Street Tallahassee, FL Telephone: (850) Attorneys for Respondent Ken Detzner, in his Official Capacity as Florida Secretary of State Appendix to Petition for Writ of Certiorari Harry O. Thomas Christopher B. Lunny Radey, Thomas, Yon & Clark, PA 301 South Bronough Street Suite 200 Tallahassee, Florida Telephone: (850) Fax: (850) Attorneys for Bill Negron, Anthony Suarez, Luis Rodriguez, Father Nelson Pinder; N.Y. Nathiri; Mayor Bruce B. Mount, Pastor Willie Barnes, Mable Butler, and Judith A. Wise Timothy D. Osterhaus Deputy Solicitor General Blaine H. Winship Office Of Attorney General Capitol, Pl-01 Tallahassee, FL Telephone: (850) Fax: (850) Attorneys for Pam Bondi, in her capacity as Florida Attorney General MIAMI (2K) 8

9 Florida House of Representatives, et al. v. Romo, et al. Charles G. Burr Burr & Smith, LLP Grand Central Place 442 West Kennedy Blvd., Ste. 300 Tampa, FL Telephone: (813) Fax: (813) Victor L. Goode Dorcas R. Gilmore NAACP 4805 Mt. Hope Drive Baltimore, MD Telephone: (410) Fax: (410) Appendix to Petition for Writ of Certiorari Stephen Hogge Stephen Hogge, LLC 117 South Gadsden Street Tallahassee, FL Telephone: (850) Allison J. Riggs Anita S. Earls Southern Coalition For Social Justice 1415 West Highway 54, Ste. 101 Durham, NC Telephone: (919) Fax: (919) Attorneys for the Florida State Conference of NAACP Branches Michael A. Carvin Louis K. Fisher Jones Day 51 Louisiana Avenue, N.W. Washington, DC Telephone: (202) Fax: Cynthia Skelton Tunnicliff Peter M. Dunbar Pennington, Moore, Wilkinson, Bell & Dunbar, P.A. 215 South Monroe Street, 2nd Floor Tallahassee, FL Telephone: (850) Fax: (850) Attorneys for the Florida Senate and President Mike Haridopolos MIAMI (2K) 9

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11 IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT IN AND FOR LEON COUNTY, FLORIDA RENE ROMO, et al, CASE NO: 2012-CA-412 vs. Plaintiffs, KEN DETZNER and PAM BONDI, Defendants I THE LEAGUE OF WOMEN VOTERS OF FLORIDA, et al, CASE NO: 2012-CA-490 vs. Plaintiffs, KEN DETZNER, et al, Defendants ~/ ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR PROTECTIVE ORDER This case is before me on motions for protective order filed by the legislative defendants. They assert that legislative privilege protects them and their staff from having to sit for depositions or otherwise provide information relating to their legislative duties, including the production of certain documents. The plaintiffs agree that legislative privilege exists in Florida but do not agree that it affords the defendants protection from the discovery sought. For the reasons set forth below, I conclude that the motion should be granted in part and denied in part. The case of Florida House of Representatives v. Expedia, Inc., 85 So. 3d 517 (Fla. 1st DCA 20 12), is the most recent authority on the subject of legislative privilege. In that case, the court confirmed that legislative privilege does exist in the State of Florida, both A. 1

12 because it existed at common law, and because the privilege is an essential implied component of the separation of powers doctrine implicit in constitutional government. The court held that the privilege was broad in scope and applied to both legislators and their staff. The court also held, however, that the privilege is not absolute and must be balanced against other compelling government interests. The legislative defendants argue that, per Expedia, only in criminal cases might a compelling government interest trump legislative privilege. However, the court in Expedia did not so hold. Had the panel wished to limit the instances in which the governmental interest might override the legislative privilege to criminal cases, it certainly could have said so. Indeed, the case before it was a civil case, so it would have been logical for the court to note that, regardless of the application of the privilege and any exceptions thereto in criminal cases, the case before it was civil and there could be no compelling government interest to balance against the privilege. Instead, the court engaged in a balancing test and found the competing governmental interest wanting. In Expedia, the governmental interest was extremely minimal. One side in a civil case wanted to establish that it had not provided certain information and documents to a legislator. They wished to depose the legislator and ask him from whom he had received a certain document which he later passed along to other legislators. The court noted that the other side of the lawsuit had offered to stipulate that its counsel was the person who had provided the document and information to the legislator. Onbalance, the court said, the governmental interest in clearing up this issue in a civil case was not sufficient to override legislative privilege. 2 A. 2

13 Thus, it is clear that the Expedia court contemplated instances in civil cases in which, on balance, the legislative privilege must give way to a compelling government interest in the information sought. The court in Expedia did not, however, elaborate on how this balancing test was to be conducted and there are no other Florida cases on point. I must, thus, look to other jurisdictions for guidance, mindful ofthe particular constitutional provisions, statutes and case law of Florida that might suggest a different result. The parties have cited cases from other jurisdictions which offer some options, and some guidance. Ofthe cases cited, I find Committee for a Fair and Balanced Map v. Illinois State Bd of Elections, 2011 WL (N.D. Ill 2011 ), 1 to be illustrative of a practical and reasoned approach consistent with principles of Florida constitutional case law. The CFBJvf court was presiding over a redistricting challenge brought under the Voting Rights Act and United States Constitution. The issues being explored in the litigation were similar in nature to those in the instant case. The court concluded that the Illinois Legislature enjoyed a qualified legislative privilege. It analyzed the following factors in determining when the privilege should yield: "(i) the relevance of the evidence sought to be protected; (ii) the availability of other evidence; (iii) the seriousness of the litigation and the issues involved; (iv) the role of the government in the litigation; and (v) the possibility offuture timidity by government employees who will be forced to recognize that their secrets are violable." ld at 7. After applying the test the court found that information regarding the motives, t I will refer to this case as CFBM 3 A. 3

14 objectives, or procedures was privileged. However, the privilege yielded as to information regarding consultants and objective data relied upon by lawmakers. A question inherent in this balancing exercise, and not answered in Expedia, is whether the applicability of the legislative privilege is an ali-or-nothing proposition. In other words, do I look at the governmental interest involved, weigh it against legislative privilege, and determine whether it should apply at all? It would, of course, be much easier and cleaner to do so, but both the privilege and the governmental interest would be better served, in most cases, by carefully considering and differentiating between the legislative functions most in need of protection and those least in need of the protection offered by the privilege. Some of the public policies or reasons behind recognizing a legislative privilege are, at their essence, practical in nature. Legislators could not properly do their job if they had to sit for depositions every time someone thought they had information that was relevant to a particular court case or administrative proceeding. We also recognize the importance of legislators being able to develop policy without fear that every iteration leading up to the ultimate policy choice can be second guessed with 20/20 hindsight, or that their communications will be taken out of context, requiring them to try to defend their decisions. There is a reason the old saying about making sausages and laws is an old saymg. And the legislature is not alone in this. The same applies for the workings of the executive and judicial branches of government. Inherent in the constitutional separation of powers is the concept that no branch should interfere with the essential core functions of the others, so that each may properly perform those functions. Each should be able to 4 A. 4

15 work through various issues and problems in their own mind, and discuss with their colleagues various options, without the chilling effect of third parties, who perhaps wish to be critical, being able to inquire into the thought processes and the confidential communications that are inherent in the process. Considering the public policy and practical reasons for such a privilege, it naturally follows that there are some categories of information and communications that are most in need ofthe protection offered by the privilege and some that are less in need of such protection. The thought processes of a legislator or the communications between legislators, or between legislators and their staff fall into the first category and the second category would include routine transmittal communications between legislators, between legislators and their staff, and communications with outside consultants or constituents. Though not completely descriptive, these two categories may be distinguished by calling the first "subjective" information and the second, "objective" information. Similarly, the public policy behind the privilege is also better served by drawing a distinction between discovery aimed at oral examination of a legislator by deposition, at a particular place and time, and discovery which requires the production of documents. In general, the latter will be less onerous and less likely to take a legislator away from his or her legislative duties. The former is more intrusive and more difficult to apply on a caseby-case basis because one does not know what questions will be asked at a deposition. In applying this balancing test to the case at bar, I find it difficult to imagine a more compelling, competing government interest than that represented by the plaintiffs' claim. It is based upon a specific constitutional direction to the Legislature, as to what it can and cannot do with respect to drafting legislative reapportionment plans. It seeks to 5 A. 5

16 protect the essential right of our citizens to have a fair opportunity to select those who will represent them. In this particular case, the motive or intent of legislators in drafting the reapportionment plan is one of the specific criteria to be considered when determining the constitutional validity ofthe plan. The information sought is certainly relevant and probative of intent. Frankly, if the compelling government interest in this case does not justify some relaxing ofthe legislative privilege, then there's probably no other civil case which would. I thus find that the legislative privilege must bend somewhat to allow inquiry into certain areas. The scales tip in favor of the Plaintiffs here, though not completely. Although the motive and intent of legislators in drafting the legislative redistricting plan is of crucial importance in this case, it must be balanced against the public policy behind the application of legislative privilege. Specifically, the subjective thought processes of legislators and the confidential communication between them and between legislators and their staff should remain protected by the privilege. Of course, to the extent that these subjective thoughts and ideas were shared with third persons who are not within the legislative branch, i.e., not legislators or staff, or contracted consultants, those third persons are not protected by nor bound by legislative privilege. Those persons can be compelled to provide information relevant to the case at bar. All other "objective" information or communications should not be protected by the privilege. This allows the plaintiffs access to important and probative information, while still accommodating the strong policy in favor of the separation of powers doctrine, which is implicit in the legislative privilege. What is subjective versus objective material 6 A. 6

17 may be difficult to determine in some instances but this demarcation should give some guidance. This demarcation or distinction applies to documents sought by plaintiffs as well, with the proviso that any documents that qualify as public records pursuant to section , Fla. Stat. and do not fall under a specific exemption, are discoverable by Plaintiffs notwithstanding a claim of legislative privilege. A related issue in this respect is whether drafts of redistricting plans and supporting documents, which the defendants say are specifically exempted under the public records law, should be discoverable by plaintiffs. Florida has a long and rich tradition of open government and the case law in this area suggests that questions about the interpretation of the Public Records Act should be resolved in favor of access by the public. Any specific exemptions are therefore to be strictly construed. Noting the legislative history of the exemption under which the defendants seek protection, I conclude that their very broad interpretation of the exemption is not supported by the language of the statute nor the case law in this area. The plaintiffs' interpretation might be a little too narrow, as they suggest that once any plan has been passed, any documents that might have been exempted from the act, are no longer so. It is difficult for me to know where to draw the line between the plan that was actually proposed and adopted by the legislature and any other draft of a plan. The plaintiffs' argument is that the entire process is designed to create a plan, not several plans. Without having precise knowledge of how plans are proposed, discussed, and developed, it is difficult for me to evaluate that assertion. The only way I know how to do 7 A. 7

18 so is to have any disputed documents presented to me in camera, with explanatory testimony as to their nature and how they compare or contrast with the plan ultimately adopted. Two other issues remain: 1. May the legislative privilege be waived if a legislator speaks about the legislation in public, or to others who are not a part of the legislative branch? 2. Is there any adverse inference to be drawn in this case from the invocation of legislative privilege? After reviewing the memoranda submitted by the parties on these additional issues, I'm convinced that the privilege is not waived by speaking in public or to nonlegislative persons about the legislation. To the extent, of course, that they have done so, there is no legislative privilege involved as to those statements. Although the legislator cannot be required to submit to further inquiry into the subject area, his statements can't be "taken back" by invoking legislative privilege. I am also convinced that it would be counterproductive to the public policy reasons behind the privilege to allow an adverse inference to be drawn from its invocation. In that sense, it is analogous to the invocation of the Fifth Amendment privilege in a criminal case, which by law, carries no adverse inference. Hence the jury instruction to the jury that they are not to infer guilt or otherwise hold it against a defendant who chooses not to be a witness in his case. Of course, if at trial in a criminal case the State presents strong evidence of a defendant's guilt, and the defendant chooses not to contest that evidence by testifying or otherwise, a jury may very well be convinced beyond a reasonable doubt of his guilt. Similarly, in the case at bar, if the plaintiffs present compelling evidence of improper 8 A. 8

19 motive or intent in the drafting of the legislative plan under challenge, and the legislative defendants choose not to present any contrary evidence, it may put them at a disadvantage. And, once the legislative defendants invoke the privilege and deprive the plaintiffs of the discovery necessary for them to properly prepare their claim, it may be difficult to overcome the prejudice inherent in a last moment decision to waive the privilege and testify at trial. There are also practical and public perception reasons why a legislator may wish to waive the privilege. Some constituents may not understand why he or she refuses to answer questions or provide information relevant to the issues. While there may be no legal adverse inference, the court of public opinion is not bound by the rules of evidence or the rule of law. In this respect, legislators perhaps face a damned if you do and damned if you don't dilemma. Finally, I note that the legislative privilege is to be invoked by the individual legislator and his or her staff. Each individual legislator is free to invoke the privilege or waive it as he or she sees fit. The Speaker of the House and the President of the Senate cannot dictate to an individual legislator how they should respond if asked to give information related to this case. Thus, this ruling only applies to the Speaker, the President, and those legislative staff directly under their supervision. It is hoped, of course, that this order will give guidance to those individual legislators who are considering whether to invoke legislative privilege. Accordingly, it is ORDERED AND ADJUDGED that Defendant's Motion is GRANTED in part and DENIED in part as follows: 9 A. 9

20 1. The legislative defendants and their staff, and any individual legislators or staff members who assert legislative privilege shall not be deposed regarding their "subjective" thoughts or impressions or regarding the thoughts or impressions shared with them by staff or other legislators. 2. Plaintiffs may depose legislators or staff, notwithstanding an assertion of legislative privilege, regarding "objective" information or communication which does not encroach into the thoughts or impressions enumerated above. 3. Defendants shall produce all documents requested which do not contain "subjective" information as described above. The parties are directed to schedule an in camera review as to any disputed documents. DONE AND ORDERED this at:!::.. day of October, Copies to: Counsel of Record 10 A. 10

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22 IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT, ln AND FOR LEON COUNTY, FLORIDA RENE ROMO, an individual; BENJAMIN V/EAVER, an individual; WILLIAM EVERETT WARINNER, an individual; JESSICA BARRETT, an individual; JUNE KEENER, an individual; RICHARD QUIN"N BOYLAN, an individual; and BONITA AGAN, an individual, CASE NO CA 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 offiorida, Defendants. --~... / ":, _,,-.. THE LEAGUE OF WOMEN VOTERS OF FLORIDA, et al. CASE NO CA Plaintiffs, v. KE\l DETZJ\:ER, in his official capacity as Florida Secretary of State; THE FLORIDA SB<ATE; MICHAEL HARIDOPOLOS, in his official capacity as President ofthe Florida Senate; THE FLORIDA HOUSE OF REPRESENT A lives; and DEA~ CAN:.JO]'.;, in his onicial capacity as Speaker ofthe Florida House of Representatives, Defendants ROMO PLAINTIFFS' SECOND AMENDED COMPLAINT : ~ l \ 72' /LEGAl 2323CJ.J2l l A. 11

23 INTRODUCTION 1. Plaintiffs bring this action to challenge the constitutionality of Florida's congressional reapportionment plan, Committee Substitute for Senate Bill 1174 (''2012 Congressional Plan"), and the constitutionality of individual districts in the 2012 Congressional Plan. 2. Article III, Section 20 of the Florida Constitution provides the standards for reapportionment of Florida's congressional districts. Unfortunately, in conducting the 2012 congressional reapportionment process, the Florida Legislature violated these constitutional requirements. Plaintiffs bring this action to ensure that Florida's congressional districts and reapportionment plan abide by the fair, neutral, and constitutionally-mandated requirements of Article Ill, Section 20. PARTIES 3. Plaintiffs Rene Romo, Benjamin Weaver, Jessica Barrett, June Keener, Richard Quinn Boylan, William Everett Warinner, and Bonita Agan are citizens of the United States and residents and qualified voters in the State offlorida. 4. Plaintiff Rene Romo resides at 626 Caroline Street in Key West, Florida. Under the 2012 Congressional Plan, she resides in Congressional District Plaintiff Benjamin Weaver resides at 1649 Stockton Street in Jacksonville, Florida. Under the 2012 Congressional Plan, he resides in Congressional District Plaintiff \Villiam Everett Warinner resides at 306 NE 5th A venue in Gainesville, Florida. Cnder the 2012 Congressional Plan, he resides in Congressional District 5. ( ,1) _EGAI I A. 12

24 7. Plaintiff Jessica Barrett resides at 217 Palm A venue in Auburndale, Florida. Under the 2012 Congressional Plan, she resides in Congressional District Plaintiff June Keener resides at 9424 Via Segovia in New Port Richey, Florida. Under the 2012 Congressional Plan, she resides in Congressional District Plaintiff Richard Quinn Boylan resides at 2950 Alton Drive in St. Pete Beach, Florida. Under the20 12 Congressional Plan, he resides in Congressional District 13. I 0. Plaintiff Bonita Agan resides at 251 Driftwood Road SE in St. Petersburg, Florida. Under the 2012 Congressional Plan, she resides in Congressional District Defendant Ken Detzner is the Secretary of State for the State of Florida. In his official capacity, Defendant Detzner is the chief elections officer for the State of Florida and is charged with administering Florida election laws. 12. Defendant Pam Bondi is the Attorney General of the State of Florida. ln her official capacity, Defendant Bondi is the chief legal officer of the State of Florida. JURISDICTION AND VENUE 13. This Court has jurisdiction over this action pursuant to Article V, Section 5(b) of the Florida Constitution, and has authority to grant declaratory and injunctive relief pursuant to Fla. Stat and (3) respectively. 14. Venue is proper in Leon County pursuant to Fla. Stat FACTUAL ALLEGATIONS 15. On November 2, 2010, Florida voters overwhelmingly voted to amend Florida's Constitution to include a provision requiring that fair and neutral standards be used when drawing congressional district lines : -3-7::' /LEGAL A. 13

25 16. The congressional reapportionment provision, designated "Amendment 6'' on the ballot and now contained in Article III, Section 20 of the Florida Constitution, provides: into law. SECTION 20. 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 (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. (c) The order in which the standards within subsections (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. 17. On February 9, 2012, the Florida Legislature passed the 2012 Congressional Plan. 18. On February 16,2012, Governor Rick Scott signed the 2012 Congressional Plan 19. The 2012 Congressional Plan violates multiple aspects of Article III. Section 20 of the Florida Constitution and deprives Plaintiffs ofrights guaranteed them by the Florida Constitution. a. The 2012 Congressional Plan was drawn with the intent to favor the Republican Party and incumbents, as indicated by, among other things, objective indicators of improper intent, including, but not limited to, a failure to comply with the principles of compactness and respect for political and geographical subdivision {2~009907:1} boundaries, relevant voter registration and elections data, incumbents' addresses, -4-72'-l /LEGAL I A. 14

26 demographics, the maneuvering of district lines in order to avoid pitting incumbents against one another, the drawing of new districts so as to retain large percentages of incumbents' former districts, and the fact that the Plan produces a wider disparity in favor of the Republican Party and to the disadvantage of the Democratic Party than the 2002 congressional plan. b. The 2012 Congressional Plan was drawn with the intent to deny or abridge the equal opportunity of racial and language minorities to participate in the political process and the result of denying or abridging the equal opportunity of racial and language minorities to participate in the political process. In particular, the Plan presents a pattern of packing more minorities into districts than is necessary to protect the minority group's ability to elect its preferred candidate. The Plan also was drawn without a proper functional analysis of minority voting rights. c. The 2012 Congressional Plan was drawn with the intent to diminish the ability of racial and language minorities to elect representatives of their choice, as indicated by, among other things, the fact that the Plan was drawn without a proper functional analysis of minority voting rights. d. The 2012 Congressional Plan contains districts that are not compact. In particular, a visual inspection of the Plan reveals a number of districts that are clearly less compact than other districts, with visually bizarre and unusual shapes and districts that score low on quantitative measures of compactness, and the Florida Legislature applied an incorrect definition of compactness when drawing district lines. The Plan's violation of the compactness standard is not justified by adherence to other constitutional requirements. {2~009907, I) -5-72~ /LEGAL I A. 15

27 i 2-J00990 i _I l e. The 2012 Congressional Plan fails to utilize existing political and geographical boundaries, including municipal county, and water boundaries. \Vhere feasible. 20. Congressional District 5 under the 2012 Congressional Plan violates multiple aspects of Article Ill, Section 20 of the Florida Constitution and deprives Plaintiffs of rights guaranteed them by the Florida Constitution. a. Congressional District 5 was drawn w ith the intent to favor the Republican Party and an incumbent, as demonstrated by, among other things, 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 ofthe district in relation to the incumbent's legal residence, and the large percentage of the incumbent's prior district (80.7%) that is contained in the District. b. Congressional District 5 was drawn \Vith the intent to deny or abridge the equal opportunity of racial and language minorities to participate in the political process and the result of denying or abridging the equal opportunity of racial minorities to participate in the political process, as it unnecessarily packs more African Americans into the District than is necessary to protect the minority group's ability to elect its preferred candidate and was drawn without a proper functional analysis of minority voting rights. The Legislature could have drawn a far more compact district that, although it \vould have decreased the percentage of African American population, would not have diminished the minority group's ability to elect its preferred candidates ~ /LEG/\L I A. 16

28 c. Congressional District 5 was drawn with the intent to diminish the ability of racial and language minorities to elect representatives of their choice, as, among other things, it was drawn without a proper functional analysis of minority voting rights. d. Congressional District 5 is not compact, as demonstrated by, among other things, a visual inspection of the District and quantitative measures, and creates compactness violations in surrounding districts. For instance, 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 of Legislative Apportionment 1176 (Fla. Sup. Court Mar. 9, 20 12). Although Congressional District 5's predecessor district was notoriously noncompact, the compactness of District 5 decreases 36% from the prior congressional map. The violation of the compactness standard is not justified by adherence to other constitutional requirements. e. Congressional District 5 fails to utilize existing political and geographical boundaries where feasible, including but not limited to the Seminole, Orange, and Lake County boundaries. The district also unnecessarily cuts through the Apopka, Orange Park, Orlando, and Sanford municipal boundaries, and creates violations with respect to the utilization of political and geographical boundaries in surrounding districts. 21. The constitutional deficiencies of Congressional District 5 have ripple effects across the 2012 Congressional Plan, in particular in districts adjacent to Congressional District 5. {2~009907~ I j -7-72lJ /LEGAL I A. 17

29 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. 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 African Americans in Congressional District 5 strips members of this minority group from surrounding Congressional Districts 3, 4, 6, 7, and II, 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 ofminority voting rights in Congressional District 5 holds true for the districts surrounding Congressional District 5 as well. Moreover, Congressional District 5 'slack of compactness and failure to utilize existing political and geographical subdivision boundaries where feasible creates similar problems in surrounding Congressional Districts 3, 4, 6, 7, and Il. As a result ofthe constitutional violations reflected in Congressional District 5, Congressional District 5 and the districts surrounding it need to be redrawn. 22. Congressional District 10 under the 2012 Congressional Plan violates multiple aspects of Article III, Section 20 of the Florida Constitution and deprives Plaintiffs of rights guaranteed them by the Florida Constitution. a. Congressional District 10 was dravm with the intent to favor the Republican Party and an incumbent, as demonstrated by, among other things, the packing of Democrats into Congressional District 5, which strips Democrats from neighboring Congressional District 10 to the benefit of the Republican Party and the incumbent, and the failure to abide by the compactness standard and to utilize existing political and geographical subdivision boundaries \Vhere feasible. (: : I) -8-7::' /LEGAL A. 18

30 b. Congressional District 10 was drawn with the intent to deny or abridge the equal opportunity of racial and language minorities to participate in the political process and the result of denying or abridging the equal opportunity of racial minorities to participate in the political process, as it is affected by the unnecessary packing of African-American voters into neighboring Congressional District 5, which strips members of this minority group from Congressional District 10, and was drawn without a proper functional analysis of minority voting rights. c. Congressional District 10 was drawn \Vith the intent to diminish the ability of racial and language minorities to elect representatives of their choice, as, among other things, it was drawn w ithout a proper functional analysis of minority voting rights. d. Congressional District 10 is not compact, as demonstrated by, among other things, a visual inspection of the District. The violation of the compactness standard is not justified by adherence to other constitutional requirements. e. Congressional District 10 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. 23. Congressional District 13 under the 2012 Congressional Plan violates multiple aspects of Article III, Section 20 of the Florida Constitution and deprives Plaintiffs of rights guaranteed them by the Florida Constitution. a. Congressional District 13 was drawn with the intent to favor the Republican Party and an incumbent, as demonstrated by, among other things, its failure to utilize existing political and geographical subdivision boundaries where feasible, the ::: : ll -9-7~ /LEGAL l I A. 19

31 packing of Democrats into neighboring Congressional District l4. and the large percentage of the incumbent's prior district (83.5~'o) that is contained in the District. b. Congressional District 13 \Vas dra\vn vvith the intent to deny or abridge the equal opportunity of racial and language minorities to participate in the political process and the result of denying or abridging the equal opportunity of racial or language minorities to participate in the political process, as 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. c. Congressional District 13 was drav m \vith the intent to diminish the ability of racial and language minorities to elect representatives of their choice. as 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. d. Congressional District 13 fails to utilize existing political and geographical boundaries where feasible. including but not limited to the St. Petersburg municipal boundary and Tampa Bay. For instance, the city of St. Petersburg contains just under 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 benveen Congressional Districts 13 and 14, even though doing so required ignoring the obvious presence of Tampa Bay /LEGAL A. 20

32 e. 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 of'legislative Apportionment 1176, 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 Congressional District 13 would have made that district too favorable for Democrats, and no longer a safe seat for the Republican incumbent, who retained nearly 85% of his prior district in the enacted plan. 24. Congressional District 14 under the 2012 Congressional Plan violates multiple aspects of Article IlL Section 20 ofthe Florida Constitution and deprives PlaintitTs of rights guaranteed them by the Florida Constitution. a. Congressional District 14 was drawn with the intent to favor the Republican Party, as demonstrated by, among other things, its failure to utilize existing political and geographical subdivision boundaries where feasible and the packing of Democrats into the District. b. Congressional District 14 was drawn with the intent to deny or abridge the equal opportunity of racial and language minorities to participate in the political process and the result of denying or abridging the equal opportunity of racial or language minorities to participate in the political process, as it ignores political and geographical boundaries to pack minority voters into a single district without a [ : I} /LEGAL I A. 21

33 proper functional analysis of minority voting rights, such as whether African American and Hispanic voters in the area vote cohesively. c. Congressional District 14 was drawn with the intent to diminish the ability of racial and language minorities to elect representatives of their choice, as, among other things, it was drawn to remove minority voters from Congressional District 13 and pack them into Congressional District 14 without a proper functional analysis of minority voting rights. d. Congressional District 14 fails to utilize existing political and geographical boundaries where feasible, including but not limited to Tampa Bay, the Pinellas and Hillsborough County boundaries, and the St. Petersburg and Tampa municipal boundaries. For instance, District 14 stretches across Tampa Bay 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. 25. On information and belief, absent an injunction from this Court, Defendants intend to and \viii conduct primary and general elections for the United States House of Representatives on the basis of the congressional districts set forth in the 2012 Congressional Plan. 26. Plaintiffs intend to and will vote in the state primary and general elections to be held in 2012 and thereafter for candidates for the United States House of Representatives. If those elections are conducted by Defendants on the basis of an unconstitutional reapportionment plan and unconstitutional congressional districts, Plaintiffs and all other similarly situated individuals will be further deprived of rights guaranteed by the Florida Constitution. {:? :1] J/LEGAL A. 22

34 COUNT 1 (Violation of Article III, Section 20 of the Florida Constitution) 27. Plaintiffs restate and incorporate by reference the allegations of paragraphs 1 through 26 above as though fully set forth herein. 28. The 2012 Congressional Plan was drawn with the intent to favor a political party and certain incumbents, was drawn with the intent to deny or abridge-and the result of denying and abridging-the equal opportunity of racial and language minorities to participate in the political process and the intent to diminish their ability to elect representatives of their choice, contains non-compact districts, and fails to utilize existing political and geographical boundaries where feasible. As a result, the 2012 Congressional Plan as a whole violates Article III, Section 20 of the Florida Constitution. The 2012 Congressional Plan as a whole deprives Plaintiffs and all other citizens of Florida of the rights guaranteed them by the Florida Constitution. 29. The 2012 Congressional Plan contains districts, including but not limited to districts in which Plaintiffs reside, that \Vere drawn with the intent to favor a political party and certain incumbents, were drawn with the intent to deny or abridge-and the result of denying and abridging-the equal opportunity of racial and language minorities to participate in the political process and the intent to diminish their ability to elect representatives of their choice, are noncompact, and fail to utilize existing political and geographical boundaries where feasible, all in violation of Article III, Section 20 of the Florida Constitution. These districts deprive Plaintiffs and all similarly situated citizens of Florida of the rights guaranteed them by the Florida Constitution. PRAYER FOR RELIEF \VHEREFORE, PlaintitTs request that this Court: (: ; I ) ~ /LEGAI I A. 23

35 I. Declare, pursuant to Fla. Stat , that the 2012 Congressional Plan deprives PlaintifTs and all citizens of Florida of their rights under Article IIL Section 20 of the Florida Constitution, and that the 2012 Congressional Plan is unconstitutional, unlawful, null, and void: or. in the alternative, declare that Congressional Districts 5, 10, 13, 14, and the districts surrounding Congressional District 5 under the 2012 Congressional Plan deprive Plaintiffs and other residents of these districts of their rights under Article III, Section 20 of the Florida Constitution, and that these districts are unconstitutional, unlawful, null, and void; 2. Issue a permanent injunction and judgment, pursuant to Fla.Stat (3 ), barring Defendants from calling, holding, supervising, or certifying any further elections under the 2012 Congressional Plan; or, in the alternative, enjoin Defendants from calling, holding, supervising, or certifying any further elections using Congressional Districts 5, 10, 13, 14, and the districts surrounding Congressional District 5 under the 2012 Congressional Plan; 3. Hold hearings, consider briefing and evidence, and otherwise take actions necessary to determine and order valid plans for new congressional districts for the State of Florida: and 4. Grant such other or further relief as the Court deems to be appropriate, including but not limited to an award of Plaintiffs' attorneys' fees and reasonable costs. (2-l009907:1) -14-7~ /LEGAL I I A. 24

36 Dated: April 3, 2012 I, I 'Joseph W. Hatchett (FL Bar #34486) (, A_KERMAN SENTERFITT 106 E. College Ave., Suite 1200 Tallahassee, Florida Tel: (850) Fax: (850) joseph.hatchetva;akerman. com 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) PERKINS COlE LLP th St., N.W., Suite 600 Washington, D.C Phone: (202) Fax: (202) MElias@perkinscoie.com KHamilton@perkinscoie.com JDevaney@perkinscoie.com AKhanna@perkinscoie.com Jon L. Mills (Bar# ) Karen C. Dyer (Bar # ) Elan M. Nehleber (Bar# 79041) BOIES, SCHILLER & FLEXNER LLP 121 S. Orange Ave., Suite 840 Orlando, Florida Telephone: (305) Facsimile: (305) jmills@bsfllp.com kdyer@bsfllp.com enehleber@bsfllp.com ( ) JILEGAL I A. 25

37 CERTIFICATE OF MAJLING I DO CERTIFY that a copy of ROMO PLAINTIFFS' SECOND AMENDED COMPLAINT has been furnished by and United States mail to each of the following parties: Counsel for the Secretary of State Daniel E. Nordby, General Counsel Ashley E. Davis, Assistant General Counsel Florida Department of State R. A. Gray Building 500 South Bronaugh Street, Suite 100 Tallahassee, FL Dani e I.N ord vra~dos. m vflorida.com Ashley.Davis@dos.mvtlorida.com Counsel for the Florida Senate Michael A. Carvin Louis K. Fisher Jones Day 51 Louisiana Avenue N.W. Washington, DC (202) macarvin~a)jonesdav.com lktishen'(i;jonesdav.com Andy V elosy Bardos The Florida Senate 404 S. Monroe Street, Suite 409 Tallahassee, FL (850) bardos.andy@flsenate.gov Cynthia Skelton Tunnicliff Peter M. Dunbar Pennington. Moore, et. al. 215 South Monroe Street Second Floor Tallahassee, FL (850) cynthia@.penningtonlaw.com pete@menningtonlaw.com ' LEG/\L232J A. 26

38 Counsel for Common Cause Florida, the National Council Of La Raza and tire League Of Women Voters Of Florida, Inc. Ronald Gustav Meyer Meyer, Brooks, Demma & Blohm P.O. Box 1547 Tallahassee, FL (850) I 2 rmeyer(w,meyerbrookslaw.com Jessica Ring Amunson Michael B. DeSanctis Kristen M. Rogers Paul M. Smith Jenner & Block, LLP 1099New York Ave, N.W., Suite 900 Washington, DC (202) j amunson,' i1jenner.com mdesam;.ti srci:jenner.com kro~zers(a 1 jenner.com psmith(a;jenner.com J. Gerald Hebert J. Gerald Hebert, P.C. 191 Somervelle Street, Unit 415 Alexandria, VA (703) hebert(zi:;votela\v.com Counsel for the Honorable Pamela Jo Bondi Baine Winship General Counsel Office of the Attorney General The Capitol, PL-01 Tal:ahas5ee, FL (850) Blaine. Winship(@.mvfloridalegal.com ; ; I J :'.{)003/LEGAL A. 27

39 Counsel for the Florida House Of Representatives Miguel A. De Grandy Miguel De Grandy, P.A. 800 S. Douglas Road, Suite 850 Coral Gables, FL (305) ; Fax (305) George T. Levesque General Counsel Florida House of Representatives 422 The Capital Tallahassee, FL (850) george.levesque(q!,mytloridahouse.gov Charles Talley Wells Gray Robinson, P.A. 301 E. Pine Street, Suite 1400 Orlando, FL (407) ; Fax (850) Charles. Wells(cl.;gray-robinson.com George N. Meros, Jr. Jason L. Unger Allen C. Winsor Charles Burns Upton, II Gray Robinson, P.A. P.O. Box Tallahassee, FL (850) ; Fax (850) binson.com allen. winsor(cv,gray-robinson.com this 3 rd day of March, { ;1) -18-7:~ /LEGAL I A. 28

40 TAB 3

41 IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT IN AND FOR LEON COUNTY, FLORIDA RENE ROMO, et al., CASE NO CA Plaintitis, V. KEN DETZNER and PAM BONDI, Defendants. THE LEAGUE OF WOMEN VOTERS OF FLORIDA, eta!. CASE NO CA 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 A. 29

42 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, (Fla.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 A. 30

43 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 ofthe 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 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 A. 31

44 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 (2011) and Article V, Section 5(b) of the Florida Constitution. Venue is proper pursuant to Fla. Stat (2011). Plaintiffs' action for declaratory and injunctive relief is authorized by Fla. Stat (2011) as well as Fla. Stat (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 Fair Districts Amendments and will be affected by the Legislature's Congressional Plan. 8. Plaintiff LEAGUE OF WOMEN VOTERS OF FLORIDA ts 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. PlaintiffNATIONAL COUNCIL OF LA RAZA, formerly 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 A. 32

45 redistricting process. A substantial number of its members will be harmed 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 SENA IE is responsible for drawing reapportionment 5 A. 33

46 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 \Vith 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 ofthe 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 A. 34

47 21. In drawing their proposed Congressional redistricting plan, neither the Senate nor the House complied with Article III, Section 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, 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, Chairman 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 Committee 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 A. 35

48 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 SPUBCO 1 70 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, HOOOC9047. Moreover, the Coalition informed the Committee of vanous ways in which HOOOC904 7 violated the requirements of Article III, Section 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, HOOOC904 7, 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, HOOC 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 , at *53 (Fla. Mar. 9, 2012) (hereinafter 8 A. 36

49 "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 A. 37

50 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 former 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 A. 38

51 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 A. 39

52 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 statistks 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 perform 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 C904 7 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 A. 40

53 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 A. 41

54 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 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 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 A. 42

55 a. District 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 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 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 A. 43

56 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 shov,; 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 v.ith 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 CJ:ntral Florida. 61. The Coalition's alternative district - District 3 - achieves all of Florida's constitutional criteria v.. i thout subordinating one standard to another and demonstrates that it v,:as not necessary for the Legislature to subordinate a standard in its plan b. Districts 3, 4, 6, 9, 11, 12, 15, and 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 dravvn 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 A. 44

57 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 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 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 A. 45

58 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 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 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 A. 46

59 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 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 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 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 A. 47

60 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 performed 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 1 0 becomes far more compact. The Coalition's District 10 has a Reock score of 0.57 and an Area/Convex Hull 20 A. 48

61 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 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 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 I or federal law justification. This noncompactness 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 A. 49

62 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 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 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 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 A. 50

63 ~-- 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 performance. 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 SOOOC9014 (which was derived from SOOOC9002) 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 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 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 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 A. 51

64 103. 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 A. 52

65 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 ). COUNTV 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 Ill, 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 (2011) as well as Fla. Stat (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 enjommg 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 A. 53

66 Congressional Plan, including enjommg 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 ofthis action, as authorized by Fla. Stat (2011). g. Grant such other and further relief as it seems is proper and just. 26 A. 54

67 Respectfully submitted this 3rd day of April, 2012, Rotfl.M?! Florida Bar No MEYER, BROOKS, DEMMA AND BLOHMP.A. 131 North Gadsden Street Post Office Box Tallahassee, Florida Telephone: Facsimile: Paul M. Smith* psmith@jenner.com Michael B. DeSanctis* mdesanctis@jenner.com Jessica Ring Amunson* jamunson@jenner.com Kristen M. Rogers* krogers@jeooer.com *Pro Hac Vice JENNER & BLOCK, LLP 1099 New York Ave NW, Suite 900 Washington, DC Telephone: Facsimile: J. Gerald Hebert hebert@voterlaw.com Pro Hac Vice 191 Somervelle Street, #415 Alexandria, VA Telephone: Counsel for The Coalition 27 A. 55

68 CERTIFICATE OF SERVICE I certify that a true and correct copy of this submission was furnished by and by overnight mail to the following parties on this 3rd day of April, 2012: Blaine Winship OFFICE OF THE ATTORNEY GENERAL PL-0 1, The Capitol Tallahassee, Florida Telephone: (850) Facsimile: (850) blaine. wins hi p@myfloridalegal.com Attorney for the Attorney General Ashley E. Davis Daniel E. Nordby FLORIDA DEPARTMENT OF STATE 500 South Bronaugh Street, Suite 100 Tallahassee, Florida Telephone: (850) Facsimile: (850) Ashley.Davis@DOS.myflorida.com Daniel.N ordby@dos.myflorida.com Attorneys for Florida Secretary of State Andy Bardos Special Counsel to the President THE FLORIDA SENATE 404 South Monroe Street, Suite 409 Tallahassee, Florida Telephone: (850) bardos.andy@flsenate.gov Michael A. Carvin JONES DAY 51 Louisiana Avenue N.W. Washington, D.C macarvin@jonesday.com 28 A. 56

69 Cynthia Skelton Tunnicliff Peter M. Dunbar PENNINGTON, MOORE, ET. AL. 215 South Monroe Street, Second Fl. Tallahassee, FL Telephone: (850) Attorneys for the Florida Senate Charles T. Wells George N. Meros, Jr. Jason L. Unger Allen C. Winsor Charles B. Upton II GRA YROBINSON, P.A. Post Office Box Tallahassee, Florida Telephone: (850) Facsimile: (850) Charles. Allen. George T. Levesque General Counsel FLORIDA HOUSE OF REPRESENTATIVES 422 The Capitol Tallahassee, Florida Telephone: (850) George.Levesque@myfloridahouse.gov Miguel De Grandy 800 Douglas Road, Suite 850 Coral Gables, Florida Telephone: (305) Facsimile: (305) mad@degrandylaw.com Attorneys for the Florida House of Representatives RO~ 29 A. 57

70 TAB 4

71 IN THE CIRCUIT court of THE second JUDICIAL circuif I L E D IN AND FOR LEON COUNTY, FLORIDA, 12 JUL I 'f PM 4 : 2 3 RENE ROMO, an individual; BENJAMIN ) WEAVER, an individual; eta!., ) ) Plaintiffs, ) ) v. ) ) KENNETH W. DETZNER, in his official ) capacity as Florida Secretary of State; ) PAMELA JO BONDI, in her capacity as ) Attorney General, ) ) Defendants. ) CASE NO.: 2012-CA BOB INZEr\ CLERK CIRCUIT COURT r,eo'i roihity, FLORIDA THE LEAGUE OF WOMEN VOTERS OF FLORIDA, et a!., V. Plaintiffs, KENNETH W. DETZNER, in his official ) capacity as Florida Secretary of State; THE ) FLORIDA SENATE; eta!., ) Defendants. ) ) ) ) ) ) ) ) ) CASE NO.: 2012-CA NOTICE OF TAKING DEPOSITIONS TO: ALL COUNSEL OF RECORD (SEE SERVICE LIST) PLEASE TAKE NOTICE that counsel for the Coalition Plaintiffs will take the depositions of the following individuals at the times noted below. These depositions will be held at Meyer, Brooks, Demma and Blolun, P.A., 131 North Gadsden St., Tallahassee, FL before a Court Reporter authorized by law to take depositions. A. 58

72 Senator Andy Gardiner Jay Ferrin Administrative Assistant Senate Reapportionment Committee J. Alex Kelly Staff Director House Redistricting Committee August 27, 9:30a.m. August 28, 9:30a.m. August 29, 9:30a.m. These depositions are being taken for the purpose of discovery or any other purpose for which they may be used under applicable laws and rules of the State of Florida. DATED this f ;:Ji day ofjuly, bmitted, ;\_ BRUCE V. SPIVA The Spiva Law Firm PLLC bspiva@spivafirm.com Admitted Pro Hac Vice 1776 Massachusetts Ave., N.W. Suite 601 Washington, D.C Telephone: Facsimile: J. Gerald Hebert hebert@voterlaw.com Admitted Pro Hac Vice 191 Somervelle Street, #415 Alexandria, VA Telephone: MEYER Florida Bar No rmeyer@meyerbrookslaw.com Meyer, Brooks, Demma and Blohm, P.A. 131 North Gadsden Street Post Office Box 1547 (32302) Tallahassee, FL (850) Telephone (850) facsimile Michael B. DeSanctis mdesanctis@jenner.com Paul M. Smith psmith@jenner.com Jessica Ring Amunson jamunson@jenner.com Kristen M. Rogers krogers@jenner.com Jenner & Block, LLP All above counsel admitted Pro Hac Vice 1099 New York Ave NW, Suite 900 Washington, DC Telephone: Facsimile: ATTORNEYS FOR COALITION PLAINTIFFS 2 A. 59

73 CERTIFICATE OF SERVICE I certify that a copy hereof has been furnished on this J}5ay of July, 2012 by and U.S. mail to: Joseph W. Hatchett Akerman Senterfitt I 06 E. College A venue, Suite 1200 Tallahassee, FL 3230 I Jon L. Mills Karen Dyer Elan Nehleber Boies, Schiller & Flexner, LLP 121 S. Orange Avenue, Suite 840 Orlando, FL Marc Elias Kevin J. Hamilton John M. Devaney AbhaKhanna Perkins Coie, LLP 700 Thirteenth Street, NW, Suite 600 Washington, D.C Attorneys for Rene Ramo, Benjamin Weaver, William Everett Warinner, Jessica Barrett, June Keener, Richard Quinn Boylan (Ramo Plaintiffs) Blaine Winship Ashley E. Davis OFFICE OF THE ATTORNEY GENERAL Daniel E. Nordby PL-01, The Capitol FLORIDA DEPARTMENT OF STATE Tallahassee, Florida South Bronough Street, Suite 100 blaine.winship@myfloridalegal.com Tallahassee, Florida Ashley.Davis@DOS.myflorida.com Attorney for the Attorney General Daniel.Nordby@DOS.myflorida.com Attorneys for Florida Secretary of State 3 A. 60

74 Leah Marino Deputy General Counsel THE FLORIDA SENATE 404 South Monroe Street, Suite 409 Tallahassee, Florida gov Michael A. Carvin JONES DAY 51 Louisiana Avenue N.W. Washington, D.C Cynthia Skelton Tunnicliff Peter M. Dunbar PENNINGTON, MOORE, ET. AL. 215 South Monroe Street, Second Fl. Tallahassee, FL Attorneys for the Florida Senate Charles T. Wells George N. Meros, Jr. Jason L. Unger Allen C. Winsor Charles B. Upton II GRA YROBINSON, P.A. Post Office Box Tallahassee, Florida Charles. Allen. George T. Levesque General Counsel FLORIDA HOUSE OF REPRESENTATIVES 422 The Capitol Tallahassee, Florida Miguel De Grandy 800 Douglas Road, Suite 850 Coral Gables, Florida Attorneys for the Florida House of Representatives 4 A. 61

75 Harry 0. Thomas Christopher B. Lunny Radey Thomas Yon & Clark, P.A. 301 S. Bronough Street, Suite 200 Tallahassee, Florida Attorneys for Intervenors/Defendants Negron, Suarez, Rodriguez, Pinder, Mathiri, Mount, Barnes, Butler, and Wise Stephen Hogge 117 South Gadsden Street Tallahassee, Florida 3230 I stephen@stephenhoggeesq.com Charles G. Burr Burr & Smith, LLP Grand Central Place 442 W. Kennedy Blvd., Suite 300 Tampa, Florida cburr@burrandsmithlaw.com Allison J. Riggs Anita S. Earls Southern Coalition for Social Justice 1415 W. Highway 54, Suite 101 Durham, North Carolina Allison@southerncoalition.org Anita@southerncoalition.org Victor L. Goode Dorcas R. Gilmore NAACP 4805 Mt. Hope Drive Baltimore, Maryland dgilmore@naacpnet.org vgoode@naacpnet.org Attorni!Jls for lntervenor!de,endant, NAACP RootlJJ:::.. / 5 A. 62

76 TAB 5

77 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, vs. Plaintiffs, CASE NO CA 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 CA KEN DETZNER, in his official capacity as Florida Secretary of State; THE FLORIDA SENATE; et al., Defendants ~/ LEGISLATIVE DEFENDANTS' MOTION FOR PROTECTIVE ORDER BASED ON LEGISLATIVE PRIVILEGE The Hon. Dean Cannon, in his official capacity as the Speaker ofthe Florida House of Representatives, the Florida House of Representatives, the Hon. Mike Haridopolos, in his official capacity as President of the Florida Senate, and the Florida Senate ("Legislative Defendants") respectfully submit this motion for protective order based on legislative privilege. Discovery is underway in this case and set to close December 28, Trial begins February 11, Although discovery is in its early stages, it is clear that Plaintiffs' discovery \255036\8 - # v4 A. 63

78 will implicate important issues oflegislative privilege. Specifically, Plaintiffs have indicated that they will seek (i) deposition testimony oflegislators and legislative staff and (ii) discovery of legislatively drawn draft redistricting plans that were never filed as bills. Cf (2)(e), Fla. Stat. (exempting from public disclosure a "draft... of a reapportionment plan or redistricting plan and an amendment thereto [and a ]ny supporting documents associated with such plan or amendment until a bill implementing the plan, or the amendment, is filed"). On July 11, 2012, the LOWV Plaintiffs filed notices of depositions directed to one legislator (Senate Majority Leader Andy Gardiner) and two legislative staff members (Jay Ferrin, Administrative Assistant to the Senate Reapportionment Committee, and J. Alex Kelly, Staff Director of the House Redistricting Committee). While the LOWV Plaintiffs have agreed to defer the depositions until this Motion is resolved, they have indicated that this is only the beginning. The Ramo Plaintiffs have also indicated that they will seek deposition testimony from members or staff of the Legislature. Because of the litigation schedule already in place, the depositions that Plaintiffs have already noticed, and the need to advance this important issue in sufficient time to permit appellate review (if necessary), the Legislative Defendants now seek entry of an order regarding legislative privilege. This Court's ruling on this critical issue will promote efficiency with remaining discovery issues and provide the parties a roadmap for further discovery. Based on legislative privilege, this Court should enter an order declaring that (i) no legislators or legislative staff may be deposed, and (ii) unfiled legislative draft maps and supporting documents are not discoverable. 1 1 By raising these specific issues now, the Legislative Defendants do not waive any other privileges or objections. \255036\8- # v4 2 A. 64

79 I. STATE LAW PROVIDES FOR A LEGISLATIVE PRIVILEGE. In unmistakable terms, the First DCA recently held that state legislators are entitled to a testimonial privilege. In Florida House of Representatives v. Expedia, 85 So. 3d 517 (Fla. 1st DCA 2012), litigants sought testimony of a Representative and his aide relating to their work in the legislative process. The Court concluded that legislative privilege precluded the discovery for two independent reasons: First, a legislative privilege long existed at common law, which was incorporated by statute into Florida law. And second, the Florida Constitution's strict separation of powers protects against judicial intrusion into the legislative function. A. Florida Law Provides a Legislative Privilege By Expressly Incorporating Common Law. As the First DCA recognized, Section 2.01, Florida Statutes, incorporates into Florida law "[t]he common law and statute laws of England which are of a general and not a local nature... provided said statutes and common law [are] not inconsistent with the Constitution and laws ofthe United States and the acts of the Legislature ofthis state." Therefore, "iflegislative privileges and immunities existed under the common law, they continue to exist." Expedia, 85 So. 3d at 523. The Court had little trouble finding that these privileges existed at common law. It began by observing that "[t]he principle oflegislative immunity was so well established in English and American law that it was incorporated into the United States Constitution." Id. at 522. Article I, section 6, of the United States Constitution, known as the "Speech or Debate Clause," affords federal legislators a testimonial privilege, providing that "they shall not be questioned in any other Place." In Tenney v. Brandhove, 341 U.S. 367 (1951), which the DCA described as "the leading case," the United States Supreme Court explored the privilege's rich and uninterrupted history, which "has taproots in the Parliamentary struggles of the Sixteenth and Seventeenth \255036\8- # v4 3 A. 65

80 Centuries": As Parliament achieved increasing independence from the Crown, its statement of the privilege grew stronger. In 1523, Sir Thomas More could make only a tentative claim. In 1668, after a long and bitter struggle, Parliament finally laid the ghost of Charles I, who had prosecuted Sir John Elliot and others for "seditious" speeches in Parliament. In 1689, the Bill of Rights declared in unequivocal language: "That the Freedom of Speech, and Debates or Proceedings in Parliament, ought not to be impeached or questioned in any Court or Place out of Parliament." Freedom of speech and action in the legislature was taken as a matter of course by those who severed the Colonies from the Crown and founded our Nation. It was deemed so essential for representatives of the people that it was written into the Articles of Confederation and later into the Constitution U.S. at 372. Although the Florida Constitution does not include an express analogue to the Federal Constitution's Speech or Debate Clause, the First DCA nonetheless found Tenney and its progeny significant: "These decisions illustrate that the Speech or Debate Clause is based on legislative privileges and immunities that are firmly rooted in the common law." Expedia, 85 So. 3d at 522. Additionally, the First DCA noted that although the federal Speech or Debate Clause applies only to federal legislators, the Supreme Court in Tenney "applied the underlying common law principles" to grant state legislators immunity. Id. The principles underlying the Speech or Debate Clause and those underlying the common law privilege are the same. "In order to enable and encourage a representative of the public to discharge his public trust with firmness and success, it is indispensably necessary, that he should enjoy the fullest liberty of speech, and that he should be protected from the resentment of every one, however powerful, to whom the exercise of that liberty may occasion offense." Tenney, 341 U.S. at 3 73 (quoting II Works of James Wilson (Andrews ed. 1896) 3 8). In short, legislative privilege was necessary "to protect the integrity of the legislative process by insuring the independence of individual legislators." United States v. Brewster, 408 U.S. 501, 507 (1972); \255036\8 - # v4 4 A. 66

81 accord United States v. Johnson, 383 U.S. 169, 181 (1966) (privilege existed "to prevent intimidation by the executive and accountability before a possibly hostile judiciary"); Expedia, 85 So. 3d at 524 (recognizing that"[ o ]ne purpose of common law legislative immunity was to protect the independence of the legislature"); cf also id. at 522 ("The principles that give rise to the need to immunize legislators are the same as those that justify immunity for members of other branches of government."). The paramount interest in protecting the integrity of the legislative process is plainly at stake here. Plaintiffs, who were political opponents of the challenged legislation, now seek to depose the legislators who voted contrary to Plaintiffs' political wishes. Our democracy depends on the freedom of legislators to make independent, uncoerced decisions, without intimidation or threat of deposition by political opponents. The First DCA emphasized that "[t]he power vested in the legislature under the Florida Constitution would be severely compromised iflegislators were required to appear in court to explain why they voted a particular way or to describe their process of gathering information on a bill." Jd. at 524. To address these very issues, a legislative privilege emerged and has long been firmly established by common law. And through Section 2.01, Florida Statutes, that deep-rooted common law is the law of Florida. See id. at But even putting this common law aside, Florida's strict separation-of-powers principles independently support the same privilege. B. The Florida Constitution's Strict Separation of Powers Independently Provides a Legislative Privilege. "As an independent ground" for its decision finding legislative privilege, the First DCA concluded "that legislative privilege exists by virtue of the separation-of-powers provision of the Florida Constitution." Jd. at 524. The separation-of-powers issue is closely related to the common law because, in addition to "protect[ing] the independence of the legislature," another \255036\8- # v4 5 A. 67

82 purpose of the common law was actually "to 'reinforce the separation of powers' between the branches of government." I d. (quoting Fowler-Nash v. Democratic Caucus of Pa. House of Representatives, 469 F.3d 328, 331 (3d Cir. 2006)). Florida's separation-of-powers doctrine, though, extends beyond common law, which is why the First DCA found it an entirely independent ground for establishing the privilege. The Florida Constitution provides that "[t]he powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein." Art. II, 3, Fla. Canst. "The importance of this provision cannot be overstated," Expedia, 85 So. 3d at 524, and, indeed, the Florida Supreme Court has described the separation of powers as "the cornerstone of American democracy," Bush v. Schiavo, 885 So. 2d 321, 329 (Fla. 2004); accord State v. Cotton, 769 So. 2d 345, 353 (Fla. 2000) ("This Court... has traditionally applied a strict separation of powers doctrine..."). This "cornerstone" provision prevents one branch of state government from intruding on powers vested in another, and "[ o ]ur state government could not maintain the proper 'separation' required by Article II, section 3 if the judicial branch could compel an inquiry into these aspects of the legislative process." Expedia, 85 So. 3d at 524. For these reasons, and as the First DCA plainly found, Florida law affords a legislative privilege, which this Court must enforce. Because Florida law is clear, the Court need look no further. Nonetheless, it is noteworthy that principles of federal law are also implicated in this case, and federal common law provides an equally strong legislative privilege. II. FEDERAL COMMON LAW PROVIDES FOR A LEGISLATIVE PRIVILEGE. Even though a state court would not ordinarily apply (or be bound by) federal common law, where "uniquely federal interests are so committed by the Constitution and laws of the \255036\8- # v4 6 A. 68

83 United States to federal control that state law is pre-empted and replaced, where necessary, by... federal common law." Boyle v. United Technologies Corp., 487 U.S. 500, 504 (1988); see also United States v. Standard Oil Co. of Cal., 332 U.S. 301, 310 (1947) (whether federal common law applies "necessarily is dependent upon a variety of considerations always relevant to the nature of the specific governmental interests and to the effects upon them of applying state law [including] considerations of federal supremacy in the performance of federal functions..."). This is plainly one such area with unique federal interests. In enacting a congressional redistricting plan, the Florida Legislature is exercising a federal power expressly delegated to it by the federal Elections Clause, Article I, Section 4 of the United States Constitution. It is undisputed that state legislatures have no inherent authority to regulate federal elections, see Cook v. Gralike, 531 U.S. 510, 522 (2001), and it is likewise undisputed that congressional redistricting constitutes regulation of federal elections, see, e.g., Branch v. Smith, 538 U.S. 254, 266 (2003). Thus, when the Florida Legislature enacted the plan at issue, it was operating "only within the exclusive delegation of power under the Elections Clause." Cook, 531 U.S. at 523. Likewise, when Florida's citizens vote for congressional representatives under the enacted plan, they are not (as Plaintiffs suggest) vindicating any state right, they are "act[ing] in a federal capacity and exercis[ing] a federal right." US. Term Limits, Inc. v. Thornton, 514 U.S. 779, 842 (1995) (Kennedy, J., concurring); accord id. ("The federal character of congressional elections flows from the political reality that our National Government is republican in form and that national citizenship has privileges and immunities protected from state abridgment by the force of the Constitution itself."). The privilege recognized by the federal common law is essentially the same as the privilege recognized by states. In fact, many states import federal common-law immunity into \255036\8 - # v4 7 A. 69

84 state law, and as explained above, the First DCA in Expedia relied on federal decisions. See also, e.g., Camacho v. Samaniego, 954 S.W.2d 811, 823 (Tex. App. 1997) ("Because the jurisprudence of legislative immunity is not well developed in Texas, we will rely on federal authorities to assess the applicability of this form of immunity to the case before us."); Brown v. City of Bordentown, 791 A.2d 1007, 1010 (N.J. Super. Ct. App. Div. 2002) (adopting federal common-law legislative immunity in state-law action); Dublin v. State, 742 N.E.2d 232, (Ohio Ct. App. 2000) (evaluating federal cases to define legislative immunity). Because important federal interests are at stake, and because state courts frequently look to federal law on the issue of legislative privilege, a recent decision from Judge Hinkle is particularly instructive here. In the State of Florida's federal lawsuit for Section 5 preclearance of certain provisions in a recently enacted election law, Florida v. United States, Case No. 1:11- cv (D.D.C.), numerous interest groups intervened to oppose the State of Florida's preclearance request. Among those were some Plaintiffs here, including the National Council of La Raza and the League of Women Voters of Florida. Those parties sought testimony and documents from Florida legislators, and, in an ancillary discovery proceeding, moved the United States District Court for the Northern District of Florida for an order compelling the discovery. See Florida v. United States, Ancillary Case No. 4:12-mc-3-RH (N.D. Fla.). After extensive argument from counsel for La Raza and the League of Women Voters and others, Judge Hinkle denied the motion and upheld the legislative privilege. 2 Applying federal law, Judge Hinkle recognized the existence of the legislative privilege. 2 Judge Hinkle ruled from the bench on February 3, Although he indicated he will enter a written order, he has not yet done so. On the record, he noted that if movants sought an appeal, they could file a notice and he would immediately file an appealable final written order. Movants filed no such notice, took no appeal, and discovery has now closed in the Washington, D.C., case. Judge Hinkle explained the basis ofhis order at length, and this Motion will cite to that portion of the hearing transcript, which is attached as Exhibit A. \255036\8- # v4 8 A. 70

85 (Tr. at 91.) In reaching his decision, he indicated that Florida state law impacted his analysis of a federal privilege, and he had "no doubt that, if the issue were presented to the Florida Supreme Court of whether a legislator has a privilege against testify-being compelled to testify about the legislator's motivation, the Florida Supreme Court would say there is such a privilege." (Jd. at 95.) 3 Judge Hinkle next noted the LOWV and La Raza's inability "to identify a single case" "where a court had compelled a state legislator to give a deposition over objection when the legislator was not going to testify voluntarily in the case." (Jd. at 97.) He went on to recognize, "[i]n fairness, there's no case quite like this sustaining the privilege either," which he attributed "[p ]artly because in practice people recognize, without even thinking about it, that there is the privilege." (Jd.) 4 In addition to Judge Hinkle's recent order in an elections case, the federal challenge to Florida's last redistricting addressed the same privilege issue. In Martinez v. Bush, Case No (S.D. Fla. 2002) (three-judge court), Plaintiffs sought depositions of several legislators and staff. The Court granted protective orders, finding that: A state legislator cannot, under the circumstances of this case, be compelled to testify concerning his or her reasons for actions taken as part of the legislative process (which includes not only the casting of votes but the processes leading to the formulation and the consideration oflegislation). (Id. doc. 201 at 1-2) (Exhibit B to this Motion). For the same reasons that Judge Hinkle denied LOWV and La Raza's request to depose Florida legislators in the Section 5 case and the three-judge Martinez Court denied challengers' request to depose Florida legislators in the 2002 case, this Court should deny Plaintiffs' request 3 Judge Hinkle's bench ruling did not mention the First DCA's decision in Expedia, which had not yet issued. 4 Judge Hinkle, like the First DCA, recognized "the chilling effect that compelled testimony would impose on a legislator" along with the "interest that underlies the constitutional principle of separation of powers." (!d. at ) \255036\8 - # v4 9 A. 71

86 to depose Florida legislators in this case. (Additionally, unlike Florida's federal district courts, this Court is bound by the First DCA's Expedia decision and other Florida law.) III. THE PRlVILEGE APPLIES EQUALLY TO LEGISLATORS AND LEGISLATIVE STAFF. The privilege is not limited to the legislators themselves. The DCA had "little doubt that the privilege may be asserted by legislative staff members as well." Expedia, 85 So. 3d at 525. Otherwise, "[t]he reason for affording a legislative privilege could be subverted entirely."!d.; see also Gravel v. United States, 408 U.S. 606, , 629 (1972) (applying privilege to both legislator and aides and assistants, "the day-to-day work of [whom] is so critical to [a legislator's] performance that they must be treated as the latter's alter egos"); Martinez, doc. 201 at 2 ("Similarly, a legislator's staff cannot, under the circumstances of this case, be compelled to testify concerning communications with the legislator on the same topics."). The same is true whether the staff member is a legislator's personal aide or committee staff. See, e.g., Eastland v. US. Servicemen's Fund, 421 U.S. 491, 507 (1975); Doe v. McMillan, 412 U.S. 306, (1973); see also Fla. Legislature v. Sauls, Case No. 80,834 (Fla. Feb ) (unpublished writ of prohibition directing that the "Circuit Judge in and for Leon County, Florida, desist from compelling testimony from Ms. Wendy Westling, a legislative assistant of the Florida Legislature") (attached as Exhibit C). Even an independent contractor retained by a redistricting commission is entitled to the same protection as commission members, when he performs tasks on their behalf. Ariz. Indep. Redist. Comm 'n v. Fields, 75 P.3d 1088 (Ariz. Ct. App. 2003). Therefore, just as this Court must prohibit legislator depositions, it must prohibit depositions of legislative staff and aides. IV. NOTHING UNIQUE ABOUT AMENDMENT SIX OR REDISTRlCTING COMPELS A DIFFERENT RESULT. Faced with clear authority establishing legislative privilege in Florida, Plaintiffs are likely \8 - # v4 10 A. 72

87 to argue that a redistricting challenge-or specifically an Amendment Six case-is somehow different. It is not. First, the principles on which the privilege is based are just as applicable to redistricting challenges as to challenges to any other legislative action. Therefore, numerous other courts have applied the privilege in redistricting cases. For example, in Holmes v. Farmer, 475 A.2d 976 (R.I. 1984), the Rhode Island Supreme Court found the privilege "ensures the separation of powers" and "allows the free flow of debate among legislators and the maximization of an effective and open exchange of ideas." Id. at 982. That it was a redistricting case changed nothing: The excluded testimony of the legislators concerned the actions and motivations of the legislators and the General Assembly in proposing and passing the reapportionment plan. Inquiry by the court into the actions or motivations of the legislators in proposing, passing, or voting upon a particular piece of legislation... falls clearly within the most basic elements oflegislative privilege. Id. at 984. Likewise, in In re Perry, 60 S.W.3d 857 (Tex. 2001), the Texas Supreme Court upheld privilege in a redistricting challenge, finding that a legislative redistricting board, "in apportioning legislative districts pursuant to constitutional mandate, were acting in a legislative capacity and are cloaked, as are their aides, with legislative immunity." Id. at 858. And in The Arizona Independent Redistricting Commission v. Fields, 75 P.3d 1088 (Ariz. Ct. App. 2003), the Court applied the privilege to an independent redistricting commission specially established by the Arizona Constitution. Even though voters in that state removed redistricting from the Legislature altogether, that constitutional sea change did not alter the legislative privilege. Next, Amendment Six's enactment cannot undermine Florida's legislative privilege. The Amendment's text says nothing about altering legislative privilege-or altering the Florida Constitution's strict separation-of-powers provision. Had Amendment Six done so-had it changed the separation of powers and longstanding principles by vesting this Court with \255036\8 - # v4 11 A. 73

88 authority to compel legislator depositions-the Florida Supreme Court would not have allowed its submission to the voters. A citizen initiative amendment "shall embrace but one subject and matter directly connected therewith." Art. XI, 3, Fla. Const. The Florida Supreme Court requires "strict compliance with the single-subject rule," which is violated "when a proposal substantially alters or performs the functions of multiple branches." Advisory Opinion to Attorney General re Standards For Establishing Legislative Dists., 2 So. 3d 175, (Fla. 2009) (plurality) (citations and quotations omitted). In finding Amendment Six consistent with the single-subject rule, the Florida Supreme Court held that it "address[ es] a single function of a single branch of government-establishing additional guidelines for the Legislature to apply when it redistricts... congressional boundaries." Id. at 181. It found nothing about altering privilege. Moreover, the ballot summary accompanying the Amendment said nothing of privilege, judicial authority to compel legislator testimony, or separation of powers, id., and a constitutional amendment must be "accurately represented on the ballot; otherwise, voter approval would be a nullity," Armstrong v. Harris, 773 So. 2d 7, 12 (Fla. 2000). Although a ballot summary must disclose the proposed amendment's effect on existing provisions of the Constitution, see, e.g., Fla. Dep 't of State v. Fla. State Conference of NAACP Branches, 43 So. 3d 662, 669 (Fla. 2010); Advisory Opinion to the Att'y Gen. re Tax Limitation, 644 So. 2d 486, 494 (Fla. 1994), Amendment Six's ballot summary did not disclose any change to the Constitution's separation-of-powers provision, see Art. II, 3, Fla. Const. Any suggestion that Amendment Six demands a more lenient privilege standard finds no support in law. If anything, the fact that Amendment Six (and therefore federal redistricting) is involved demands an even higher standard to overcome privilege because of the important federal interests involved. To the extent Plaintiffs argue that the analysis is different because of Amendment Six's \255036\8- # v4 12 A. 74

89 focus on legislative purpose or intent, that argument fails too. Amendment Six's "intent" or "purpose" inquiry is hardly unique. Indeed, the Florida Supreme Court recognized that part of Amendment Six "reflects the statement codified in Section 5 of the VRA prohibiting apportionment plans that have 'the purpose of or will have the effect of diminishing the ability of any citizens... on account of race or color... to elect their preferred candidates of choice.'" In re Senate Joint Resolution of Legislative Apportionment 1176, 83 So. 3d 597, 620 (Fla. 2012) (quoting VRA Section 5, 42 U.S.C. 1973c(b) (2006)) (emphasis added). 5 Judge Hinkle squarely rejected Plaintiffs' argument that Section 5 litigation-with its identical "purpose" prong-was sufficiently special to overcome the privilege. (Tr. at 99) ("I'm certain that Voting Rights Act cases are especially important, but they are not uniquely important."). Additionally, purpose and intent were plainly at issue with the multiple federal claims rejected in the Martinez case in 2002, which included claims based on Equal Protection and Section 2 ofthe VRA. See Parks v. City of Warner Robins, 43 F.3d 609, 616 (11th Cir. 1995) ("[P]roof of discriminatory intent or purpose is a necessary prerequisite to any Equal Protection Clause claim."); In re Senate Joint Resolution, 83 So. 3d at 619 (Amendment's imperative "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,' is essentially a restatement of Section 2 of the Voting Rights Act") (citing 42 U.S.C. 1973(b) (2006)) (emphasis added). There is simply nothing about Amendment Six that makes it more important or unique when compared to the federal Voting Rights Act or the Equal Protection Clause of the United States Constitution. Finally, Plaintiffs' misplaced allegations of improper purpose cannot overcome the 5 The Florida Supreme Court was interpreting Amendment Five-not Amendment Sixbut the relevant language is identical. \255036\8 - # v4 13 A. 75

90 privilege. As the United States Supreme Court said in Tenney, "[t]he claim of an unworthy purpose does not destroy the privilege." 341 U.S. at 377. If Plaintiffs could subject legislators to deposition merely by alleging they legislated for improper purposes, "[t]he privilege would be of little value."!d. A court order compelling testimony to explore charges of improper legislative purpose would offend the separation of powers and undermine legislative function just as much as allowing the testimony to explore legislative motives otherwise. Moreover, even iflegislators acted improperly, the privilege is not to protect them individually-it is to protect the overall legislative function: "Legislators are immune from deterrents to the uninhibited discharge of their legislative duty, not for their private indulgence but for the public good." Tenney, 341 U.S. at 377; accord Girardeau v. State, 403 So. 2d 513, (Fla. 1st DCA 1981) (quoting Tenney); Coffin v. Coffin, 4 Mass. 1, 27 (1808) (privilege is not to protect legislators' individual interests, "but to support the rights of the people, by enabling their representatives to execute the functions of their office without fear"). V. LEGISLATIVE DOCUMENTS RELATED TO LEGISLATIVE COMMUNICATIONS THAT ARE NOT PUBLIC RECORDS ARE ENTITLED TO PROTECTION. Next, the legislative privilege is not limited to oral testimony because"[ d]ocumentary evidence can certainly be as revealing as oral communications." Brown & Williamson Tobacco Corp. v. Williams, 62 F.3d 408, 420 (D.C. Cir. 1995). Therefore, the legislative privilege reaches legislative documents that are not public records under Florida law. Indeed, numerous courts have recognized that the legislative privilege extends beyond oral testimony and reaches document production, see, e.g., Simpson v. City of Hampton, Va., 166 F.R.D. 16, (E.D. Va. 1996) (denying motion to compel discovery of "personal notes and files, as they are protected by testimonial legislative privilege."); 2BD Assocs. Ltd. P 'ship v. County Comm 'rs for Queen Anne's County, 896 F. Supp. 528 (D. Md. 1995) (finding that documents relevant to the \255036\8 - # v4 14 A. 76

91 challenged ordinance were protected by legislative immunity); Brown & Williamson Tobacco Corp., 62 F.3d at 420, 421 (holding documentary evidence can be as revealing as oral communications and thus documents in the hands of congressional members are discoverable "only if the circumstances by which they come can be thought to fall outside 'legislative acts' or the legitimate legislative sphere"); United Transp. Union v. Springfield Terminal Ry. Co., 132 F.R.D. 4, 7 (D. Me. 1990) (permitting discovery of internal legislative communications would cause a "significant entrenchment on legislative independence"), including in the redistricting context, see, e.g., Ariz. Indep. Redist. Comm 'n v. Fields, 75 P.3d 1088, 1099 (Ariz. Ct. App. 2003) (redistricting case finding not only testimonial privilege but also that "to the extent the legislative privilege protects against inquiry about a legislative act or communications about that act, the privilege also shields from disclosure documentation reflecting those acts or communications"). Nonetheless, Plaintiffs in this case have requested certain legislative materials that areor relate to-draft maps that were never filed as bills or amendments. Although the Florida Constitution grants public access to many government records, it expressly authorizes the Legislature to exempt certain materials. Art. I, 24, Fla. Const. Pursuant to this express authority, the Legislature exempted "[a] draft, and a request for a draft, of a reapportionment plan or redistricting plan and an amendment thereto [and a]ny supporting documents associated with such plan or amendment until a bill implementing the plan, or the amendment, is filed." (2)(e), Fla. Stat.; see also Fla. H. Rep. R (incorporating , Fla. Stat. by rule as applied to public records exceptions); Fla. Sen. R (8) (exempting from public records same documents). Access to public records that are not exempt from public disclosure does not offend \255036\8 - # v4 15 A. 77

92 Florida's separation of powers because the Florida Constitution expressly provides such public access. To the extent the Constitution grants access to legislative records, it derogates from the common law legislative privilege and must be read to coexist with the separation-of-powers provision. But with records exempt from disclosure, the public has no such constitutional right of access, and the legislative privilege continues to apply without impairment. Even if the public had access to exempt documents, it would not be through this Court. Chapter 119 affords public access to executive documents and authorizes judicial relief if the executive fails to provide them. See generally Ch. 119, Fla. Stat. But Chapter 119 does not provide access to legislative documents. See Locke v. Hawkes, 595 So. 2d 32, 36 (Fla. 1992). Instead, public access to legislative documents is governed by legislative rule. See Art. I, 24( c), Fla. Const. And by rule, the House provides for appeals of public records decisions to the Speaker of the House-not to the courts. See Fla. H. Rep. R ("Any person who is denied access to a legislative record and who believes that he or she is wrongfully being denied such access may appeal to the Speaker the decision to deny access."). Overriding these mechanisms and ordering production of materials the Legislature has exempted from public view (pursuant to the Legislature's express constitutional authority to do so) would violate separation of powers. And for the same reasons that compelling legislator testimony would implicate legislative privilege, compelling production of exempt records in these circumstances would as well. This is particularly true with draft maps, which directly reflect the legislative balancing and tradeoffs protected by legislative privilege. If opponents could use non-public drafts to second-guess the Legislature's enacted product (as Plaintiffs surely would here), the Legislature would be deterred from making continual improvements to early drafts-precisely the type oflegislative chill the privilege exists to prevent. \255036\8 - # v4 16 A. 78

93 The balancing of the many Amendment Six criteria is inherently legislative, which is why the United States Supreme Court found that judicial oversight of redistricting should be resisted: And what is to happen to the [court's] plan if a resourceful mind hits upon a plan better than the [court's] by a fraction of a percentage point? Involvements like this must end at some point, but that point constantly recedes if those who litigate need only produce a plan that is marginally "better".... The point is, that such involvements should never begin. We have repeatedly recognized that state reapportionment is the task of local legislatures or of those organs of state government selected to perform it. Gaffoey v. Cummings, 412 U.S. 735, (1973). The Florida Supreme Court recognized the same thing, noting that "endeavoring to be respectful to the critically important role of the Legislature, the Court has previously acknowledged that its duty is not to select the best plan, but rather to decide whether the one adopted by the legislature is valid." In re Senate Joint Resolution, 83 So. 3d at 608. Granting Plaintiffs access to these deliberative documents, which are not public records, would chill legislators and violate separation of powers. The Court should not permit it. VI. INTENT OF ANY INDIVIDUAL LEGISLATOR OR STAFF MEMBER IS OF NO PROBATIVE VALUE. Last, overcoming legislative privilege and separation of powers would be particularly inappropriate here, where the discovery sought is of little probative value, if any. Decades ago, the Florida Supreme Court was asked to consider "affidavits of members of the Senate as to what they intended to accomplish by the act brought in question." Sec. Feed & Seed Co. v. Lee, 189 So. 869, 870 (Fla. 1939). The Court properly rejected the invitation, concluding that "[t]he law appears settled that such testimony is of doubtful verity if at all admissible to show what was intended by the Act." Id. Similarly, the Court rejected a legislator's sworn testimony in McLellan v. State Farm Mut. Auto Ins. Co., 366 So. 2d 811, 813 (Fla. 4th DCA 1979), overruled on other grounds by S.C. Ins. Co. v. Kokay, 398 So. 2d 1355 (Fla. 1981), because "such proof is \255036\8- # v4 17 A. 79

94 generally not accepted as admissible evidence to demonstrate legislative intent." Accord State v. Patterson, 694 So. 2d 55, 58 n.3 (Fla. 5th DCA 1997) ("[T]estimonyprovided by former Representative Glickman did not shed meaningful light on the legislature's intent....");fields v. Zinman, 394 So. 2d 1133, 1135 (Fla. 4th DCA 1981) ("Our doubts are not assuaged by affidavits of members of the legislature as to what their subjective intent was since there is no indication that this intent was expressed to other members ofthe legislature."). 6 Deposing individual legislators or staff members or introducing privileged legislative documents would not reveal the intent of the legislature as a body-the only intent at issue. "Proving the motivation behind official action is often a problematic undertaking," Hunter v. Underwood, 471 U.S. 222,228 (1985), and "is often an unsatisfactory venture," Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm 'n, 461 U.S. 190, 216 (1983). "What 6 Florida courts certainly are not outliers in this regard. See, e.g., Cave City Nursing Home, Inc. v. Ark. Dep 't of Human Servs., 89 S.W.3d 884, 890 (Ark. 2002) ("[T]he testimony of the legislators with respect to their intent in introducing legislation is clearly inadmissible."); Nadler v. Schwarzenegger, 137 Cal. App. 4th 1327, 1336, 41 Cal. Rptr. 3d 92, 98 (Cal. Ct. App. 2006) ("In this state, evidence that relates to the mental processes of individual legislators is irrelevant to the judicial task. Consequently, such evidence is not the proper subject of discovery requests.") (marks omitted); Jackson v. Delk, 361 S.E.2d 370, 372 (Ga. 1987) ("[I]n a judicial proceeding, the testimony of a legislator, with respect to the legislative intent underlying the enactment of a particular piece of legislation, is inadmissible."); Plymouth County Bus Transp., Inc. v. Greater New Bedford Reg'! Vocational Technical High Sch. Comm., 417 N.E.2d 481,486 n.15 (Mass. App. Ct. 1981) ("It is established that post-enactment testimony of an individual legislator is inadmissible to show the Legislature's intent in enacting a statute.... ");State ex rel. Lute v. Mo. Bd. of Probation & Parole, 218 S.W.3d 431, 436 n.5 (Mo. 2007) ("[A]ffidavits of legislators are not admissible to discern legislative intent because an affidavit from a legislator only reflects the intent of one legislator out of 197 that voted on a particular bill."); Styers v. Phillips, 178 S.E.2d 583, 590 (N.C. 1971) ("The intention of the legislature cannot be shown by the testimony of a member."); United Tel. Emps. PAC v. Sec 'y of State, 906 P.2d 306 (Or. Ct. App. 1995) ("Subsequent statements by legislators are not probative of the intent of statutes already in effect.") (marks omitted); City of Yakima v. Int'l Ass 'n of Fire Fighters, AFL-CIO, Local469, Yakima Fire Fighters Ass 'n v. Int'l Ass 'n of Fire Fighters, AFL-CIO, 818 P.2d 1076, 1087 (Wash. 1991) ("The affiant's statements regarding legislative intent are inadmissible, it being well settled that the legislature's intent in passing a particular bill cannot be shown by the affidavit of a legislator."). \255036\8 - # v4 18 A. 80

95 motivates one legislator to vote for a statute is not necessarily what motivates scores of others to enact it."!d. Therefore, the United States Supreme Court refused to "give probative weight" to legislator testimony "because such statements represent only the personal views of this legislator," and "post hoc observations by a single member of Congress carry little if any weight." Bread Political Action Comm. v. Fed. Election Comm 'n, 455 U.S. 577, 582 n.3 (1982) (marks omitted); accord Tinsley Media, LLC v. Pickens County, Ga., 203 Fed. Appx. 268, 273 (11th Cir. 2006) ("The County cites no case in which this Court has upheld the admission of an affidavit of a legislator as evidence of legislative intent. Our own review of the case law reveals that the vast majority of courts reject the use of post hoc testimony as a means of determining legislative intent."); Covalt v. Carey Canada Inc., 860 F.2d 1434, 1438 (7th Cir. 1988) ("Subsequent writings may be nothing but wishful thinking, and unless they are uttered as part of the process of enacting a later law (and therefore show assumptions on which Congress as a whole acted at least once) they are of no account."); Am. Constitutional Party v. Munro, 650 F.2d 184, 188 (9th Cir. 1981) ("As a member of the Conference Committee which drafted the legislation, Representative Nelson's statement might be entitled to some weight if it had been made contemporaneously with the passage of the legislation. Coming one year later, it is entitled to no weight and cannot be relied on as indicative of legislative motivation or intent."). Thus, legislative motive is most appropriately ascertained from objective evidence, such as the enactment itself and the legislative record. See Flemming v. Nestor, 363 U.S. 603, 617 (1960) ("Judicial inquiries into Congressional motives are at best a hazardous matter, and when that inquiry seeks to go behind objective manifestations it becomes a dubious affair indeed."); Tamiami Trail Tours v. City oftampa, 31 So. 2d 468, (Fla. 1947) ("[W]e should, if possible, determine from the legislative record what was the legislative intent."). This \255036\8 - # v4 19 A. 81

96 familiar principle applies to redistricting plans no less than to other legislative enactments. During the preclearance process, the Department of Justice determined compliance with the "discriminatory purpose" provision of Section 5 without a single deposition, see 42 U.S.C. 1973c, and, in its review of state legislative redistricting plans, the Florida Supreme Court looked to "objective indicators of intent," In re Senate Joint Resolution, 83 So. 3d at The Court began its review with the plan itself, explaining that "the extent to which the Legislature complies with the sum of Florida's traditional redistricting principles serves as an objective indicator of the impermissible legislative purpose proscribed under tier one." Id. at 639; see id. at 618 ("At the outset, objective indicators of intent to favor or disfavor a political party can be discerned from the Legislature's level of compliance with our own constitution's tier-two requirements, which set forth traditional redistricting principles."); id. at 672 ("Further, the failure to comply with the tier-two standards, in the absence of any constitutionally valid justification, objectively indicates intent to favor an incumbent."). The United States Supreme Court considers the same objective evidence under the Equal Protection Clause to determine whether race was the "predominant motive" in the enactment of a redistricting plan. See, e.g., Miller v. Johnson, 515 U.S. 900, 919 (1995) (concluding that "a legislature's compliance with traditional districting principles such as compactness, contiguity, and respect for political subdivisions may well suffice to refute a claim of racial gerrymandering") (marks omitted). This is not to say that Plaintiffs are limited to the enactment itself. In discerning legislative intent, courts have traditionally looked to the history of the enactment, and 7 In Village of Arlington Heights v. Metropolitan Housing Development Co., 429 U.S. 252 (1977), the United States Supreme Court discussed the sources from which a court might divine racially discriminatory intent under the Equal Protection Clause. The Court severely restricted the use of legislator testimony, limiting it to "extraordinary instances," and noting that "even then such testimony will frequently be barred by privilege." 429 U.S. at 268. \255036\8 - # v4 20 A. 82

97 specifically to the legislative record. In this case, the legislative record is ample. The recent redistricting process was beyond comparison the most open and transparent in the history of the state. Over the course of two years, the Legislature compiled and publicized a vast legislative record, which included recordings and transcripts of scores of committee meetings and public hearings, as well as extensive floor debate. Plaintiffs have long had access to much of this record, and tens of thousands of pages of documents have been or will be produced in discovery. This production includes all records provided to the Department of Justice, on which it based its "intent" evaluation. Staff analyses and other legislative staff materials have also been made public, cf Ellsworth v. Ins. Co. ofn Am., 508 So. 2d 395, 398 (Fla. 1st DCA 1987) ("[C]ourts may consider legislative staff summaries in construing statutes."), and countless press accounts (also available to Plaintiffs) underscore the intense public scrutiny to which the legislative process and the enacted plans were subjected. Further, the Legislature introduced and published numerous redistricting alternatives, which legislative committees publicly evaluated, and which remain publicly accessible. The enacted map and alternatives were debated at length, and those debates are already available to Plaintiffs. Cf Amos v. Moseley, 77 So. 619 (Fla. 1917) (taking judicial notice oflegislative journals in considering constitutionality oflaw). Additionally, members of the public submitted no fewer than eighty-six congressional map proposals to the Legislature through the House and Senate public websites, all of which the Legislature immediately made public. The Legislature considered these along with nearly twenty other public maps that it drew. These and other materials that compose the record of proceedings in the Legislature have been or will be produced, and they are plainly more probative than the privileged testimony and materials Plaintiffs seek. Reliance on this record-as distinguished from the post-enactment \255036\8- # v4 21 A. 83

98 testimony of select legislators or documents exempted by law from public inspection-not only respects the Legislature's position as a coordinate branch, it is consistent with the usual method by which courts determine the legislative intent of any statute. As in other cases, the Court here must base its analysis of legislative intent on objective indicators in the legislative record. This Court should therefore uphold the privilege and deny the requested discovery. \255036\8 - # v4 22 A. 84

99 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing was sent by electronic mail on July 12, 2012, to the persons listed on the attached Service List. Deputy General Counsel The Florida Senate Suite 409, The Capitol 404 South Monroe Street Tallahassee, FL (850) Facsimile (850) marino.leah@flsenate.gov Attorney for the Florida Senate ~~BN086265) George N. Meros, Jr. (FBN ) Jason L. Unger (FBN ) Allen Winsor (FBN ) Charles B. Upton II (FBN ) GRA YROBINSON, P.A. Post Office Box Tallahassee, Florida (850) Facsimile (850) Charles.Wells@gray-robinson.com George.Meros@gray-robinson.com Jason. Unger@gray-robinson.com Allen.Winsor@gray-robinson.com CB.Upton@gray-robinson.com Miguel De Grandy (FBN ) 800 Douglas Road, Suite 850 Coral Gables, Florida (305) Facsimile (305) mad@degrandylaw.com George T. Levesque (FBN ) General Counsel Florida House of Representatives 422 The Capitol Tallahassee, Florida (850) George.Levesque@myfloridahouse.gov Attorneys for the Florida House of Representatives \255036\8 - # v4 23 A. 85

100 SERVICE LIST Joseph W. Hatchett AKERMAN SENTERFITT 106 E. College Ave., Suite 1200 Tallahassee, FL Telephone (850) Facsimile: (850) Jon L. Mills Elan N ehleber BOIES, SCHILLER & FLEXNER LLP 100 SE 2nd Street, Suite 2800 Miami, FL Telephone: (305) Facsimile: (305) jmills@bsfllp.com enehleber@bsfllp.com AbhaKhanna Kevin J. Hamilton Marc Elias Perkins Coie, LLP 1201 Third Avenue, Suite 4800 Seattle, Washington (206) ; Fax (206) AKhanna@perkinscoie.com KHamilton@perkinscoie.com melias@perkinscoie. com Jessica Ring Amunson Paul Smith Michael B. DeSanctis Kristen M. Rogers Christopher Deal Jenner & Block LLP 1099 New York Avenue, N.W., Suite 900 Washington, DC Tel (202) Fax (202) JAmunson@jenner.com psmith@jenner.com mdesanctis@jenner.com krogers@jenner.com Cdeal@jenner.com Karen C. Dyer BOIES, SCHILLER & FLEXNER LLP 121 South Orange Avenue, Suite 840 Orlando, FL Telephone: ( 407) Facsimile: ( 407) kdyer@bsfllp.com John M. Devaney Mark Erik Elias Perkins Coie, LLP 700 Thirteenth Street, NW, Suite 700 Washington, DC (202) ; Fax (202) JDevaney@perkinscoie.com MElias@perkinscoie.com Timothy D. Osterhaus Deputy Solicitor General Blaine H. Winship Office of Attorney General Capitol, Pl-01 Tallahassee, Florida Attorney General of Florida Timothy. Osterhaus@myfloridalegal.com Blaine.winship@myfloridalegal.com Ronald Meyer Lynn Hearn Meyer, Brooks, Demma and Blohm, P.A. 131 North Gadsden Street Post Office Box 1547 (32302) Tallahassee, Florida rmeyer@meyerbookslaw.com Lhearn@meyerbrookslaw.com \255036\8- # v4 24 A. 86

101 J. Gerald Hebert 191 Somervelle Street, #405 Alexandria, VA Harry 0. Thomas Christopher B. Lunny Radey, Thomas, Yon & Clark, P A 301 South Bronaugh Street Suite 200 Tallahassee, Florida Charles G. Burr Burr & Smith, LLP Grand Central Place 442 West Kennedy Blvd., Suite 300 Tampa, Florida Daniel E. Nordby General Counsel Ashley Davis Assistant General Counsel Florida Department of State R.A. Gray Building 500 S. Bronaugh Street Tallahassee, Florida (cell) Daniel.nordby@dos.myflorida.com adavis@dos.state.fl.us Victor L. Goode Dorcas R. Gilmore NAACP 4805 Mt. Hope Drive Baltimore, MD Stephen Hogge Stephen Hogge, Esq., LLC 117 South Gadsden Street Tallahassee, Florida Allison J. Riggs Southern Coalition for Social Justice 1415 West Highway 54, Suite 101 Durham, NC Michael A. Carvin Jones Day 51 Louisiana Avenue N.W. Washington, D.C (202) macarvin@jonesday.com Peter M. Dunbar Cynthia S. Tunnicliff Pennington, Moore, Wilkinson, Bell & Dunbar, P.A. 215 South Monroe Street, Second Floor Tallahassee, Florida (850) pete@penningtonlaw.com cynthia@penningtonlaw. com \255036\8 - # v4 25 A. 87

102 TAB 6

103 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, vs. Plaintiffs, CASE NO CA 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; et al., Plaintiffs, vs. CASE NO CA KEN DETZNER, in his official capacity as Florida Secretary of State; THE FLORIDA SENATE; et al., Defendants ~/ LEGISLATIVE DEFENDANTS' NOTICE OF SUPPLEMENTAL AUTHORITY IN SUPPORT OF THEIR MOTION FOR PROTECTIVE ORDER BASED ON LEGISLATIVE PRIVILEGE The Hon. Dean Cannon, in his official capacity as Speaker of the Florida House of Representatives, the Florida House of Representatives, the Hon. Mike Haridopolos, in his official capacity as President of the Florida Senate, and the Florida Senate (collectively, the "Legislative Defendants"), hereby call to the Court's attention the Order Denying the Motion to Compel State Legislators and Staff Members to Appear for Depositions, entered by United States District Judge Robert L. Hinkle in State of Florida v. United States of America, et al., Case No. 4:12mc3- \255036\8 - # v2 A. 88

104 RH/CAS (N.D. Fla. Aug. 10, 2012), which is pertinent to the Court's consideration of the Legislative Defendants' Motion for Protective Order based on Legislative Privilege. In their Motion, the Legislative Defendants discussed Judge Hinkle's oral ruling, but noted that no written order had yet issued. A copy of the decision is attached to this notice. \255036\8 -# v2 2 A. 89

105 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing was sent by electronic mail on this/ S ~ day of August, 2012, to those on the attached Service List., Leah L: Marino (FBN ) Deputy General Counsel The Florida Senate Ste. 409, The Capitol 404 South Monroe Street Tallahassee, FL Telephone: (850) Fax: (850) marino.leah@flsenate. gov Attorney for the Florida Senate Charles T. Wells (FBN ) George N. Meros, Jr. (FBN ) Jason L. Unger (FBN ) Allen Winsor (FBN ) Charles B. Upton II (FBN ) GRAYROBINSON, P.A. Post Office Box Tallahassee, FL Telephone: (850) Fax: (850) Charles.Wells(mgray-robinson.com George.Meros@gray-robinson.com Jason.Unger(W,gray-robinson.com Allen.Winsor(a1gray-robinson.com CB.Upton@gray-robinson.com Secondary addresses: croberts@gray-robinson.com tbarreiroccllgray-robinson.com mwilkinson@gray-robinson.com Miguel De Grandy (FBN ) 800 Douglas Road, Ste. 850 Coral Gables, FL Telephone: (305) Fax: (305) mad@degrandylaw.com George T. Levesque (FBN ) General Counsel Florida House of Representatives 422 The Capitol Tallahassee, FL Telephone: (850) George.Levesque@myfloridahouse.gov Attorneys for the Florida House of Representatives \255036\8 -# v2 3 A. 90

106 SERVICE LIST Joseph W. Hatchett Akerman Senterfitt 106 E. College Avenue, Ste Tallahassee, FL Telephone: (850) Fax: (850) Karen C. Dyer Boies, Schiller & Flexner LLP 121 South Orange A venue, Ste. 840 Orlando, FL Telephone: (407) Fax: (407) kdyer@bsfllp.com Jon L. Mills Elan N ehleber Boies, Schiller & Flexner LLP 100 SE 2nd Street, Ste Miami, FL Telephone: (305) Fax: (305) jmills@bsfllp.com enehleber@bsfllp.com AbhaKhanna Kevin J. Hamilton Marc Elias Perkins Coie, LLP 1201 Third Avenue, Ste Seattle, WA Telephone: (206) Fax : (206) AKham1a@perkinscoie.com KHamilton@perkinscoie.com melias@perkinscoie. com Timothy D. Osterhaus Deputy Solicitor General Blaine H. Winship Office Of Attorney General Capitol, Pl-01 Tallahassee, FL Telephone: (850) Fax: (850) Timothy.Osterhaus@myfloridalegal.com Blaine. winship@myfloridalegal.com John M. Devaney Mark Erik Elias Perkins Coie, LLP 700 Thirteenth Street, NW, Ste. 700 Washington, DC Telephone: (202) Fax: (202) JDevaney@perkinscoie.com MElias@perkinscoie.com Ronald Meyer Lynn Hearn Meyer, Brooks, Demma and Blohm, P.A. 131 North Gadsden Street Post Office Box 1547 (32302) Tallahassee, FL Telephone: (850) Fax: (850) rmeyer@meyerbookslaw.com Lheam@meyerbrookslaw.com Daniel E. Nordby General Counsel Ashley Davis Assistant General Counsel Florida Department Of State R.A. Gray Building 500 S. Bronaugh Street Tallahassee, FL Telephone: (850) Cell: (850) Daniel.nordby@dos.myflorida.com adavisf@dos.state.fl.us \255036\8 - # v2 4 A. 91

107 J. Gerald Hebert 191 Somervelle Street, #405 Alexandria, VA Telephone: (703) Bruce V. Spiva The Spiva Law Firm, PLLC 1776 Massachusetts Avenue, N.W., Ste. 601 Washington, DC Telephone: (202) Fax: (202) vafim1. corn www. spivafirm.com Jessica Ring Amunson Paul Smith Michael B. DeSanctis Kristen M. Rogers Christopher Deal Jenner & Block LLP 1099 New York Avenue, N.W., Ste. 900 Washington, DC Telephone: (202) Fax: (202) enner.com Stephen Hogge Stephen Hogge, Esq., LLC 117 South Gadsden Street Tallahassee, FL Telephone: (850) Cynthia Skelton Tunnicliff Peter M. Dunbar Pennington, Moore, Wilkinson, Bell & Dunbar, P.A. 215 South Monroe Street, 2nd Floor Tallahassee, FL Telephone: (850) Fax: (850) Harry 0. Thomas Christopher B. Lunny Radey, Thomas, Yon & Clark, P A 301 South Bronaugh Street, Ste. Ste. 200 Tallahassee, Florida Telephone: (850) Fax: (850) hthomas@radeylaw.com clunny@radeylaw.com Michael A. Carvin Louis K. Fisher Jones Day 51 Louisiana Avenue N.W. Washington, DC Telephone: (202) Fax: macarvin@jonesday.com lkfisher@j onesday. com Charles G. Burr Burr & Smith, LLP Grand Central Place 442 West Kennedy Blvd., Ste. 300 Tampa, FL Telephone: (813) Fax: (813) cburr@burrandsmithlaw.com \255036\8 -#331316v2 5 A. 92

108 Victor L. Goode Dorcas R. Gilmore NAACP 4805 Mt. Hope Drive Baltimore, MD Telephone: (410) Fax: (410) Allison J. Riggs Anita S. Earls Southern Coalition For Social Justice 1415 West Highway 54, Ste. 101 Durham, NC Telephone: (919) Fax: (919) \255036\8 -#331316v2 6 A. 93

109 Case 4:12~mc RH-CAS Document 31 Filed 08/10/12 Page 1 of 8 Page 1 of8 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA TALLAHASSEE DIVISION STATE OF FLORIDA, Plaintiff, v. CASE NO. 4:12mc3-RH/CAS UNITED STATES OF AMERICA et al., Defendant ~/ ORDER DENYING THE MOTION TO COMPEL STATE LEGISLATORS AND STAFF MEMBERS TO APPEAR FOR DEPOSITIONS The issue in this proceeding is whether Florida state legislators have a privilege not to testify on matters at the core of their legislative functions. This order holds that they do have such a privilege and that it extends also to their staff members. This proceeding is ancillary to a case pending in the United States District Court for the District of Columbia. The plaintiff in that case-the State of Florida-seeks preclearance of recent legislation, as required by section 5 of the Voting Rights Act of Parties who intervened in that case in opposition to Case No. 4:12mc3-RH/CAS A. 94

110 Case 4:12-mc RH-CAS Document 31 Filed 08/10/12 Page 2 of 8 Page 2 of8 preclearance-referred to in this order as intervenors even though they are original parties here-have served subpoenas in this district under which specific members of the Florida Legislature and staff members would be required to sit for depositions. The defendant in that case-the United States-supports the effort to take the depositions. The state, legislators, and staff members have taken identical positions in opposition to the depositions; for convenience, this order often refers to them collectively as "the state." The state notified the intervenors of its objection to the depositions. To avoid delay, the intervenors promptly filed a motion in this district to compel the legislators and staff members to appear. The proposed depositions would take place in this district, making this the proper forum for the motion to compel. With commendable professionalism, the parties promptly briefed and submitted the issues, so that a ruling could be made without delay. The ruling was announced at some length on the record of the hearing and is summarized here. An issue in a preclearance case is legislative purpose. The testimony of legislators may be relevant on that issue. See Fed. R. Evid. 401 (defining relevance broadly to include evidence that has "any tendency to make a fact" "of consequence" "more or less probable than it would be without the evidence"). A single legislator's testimony on the legislator's own purpose, or a single legislator's opinion testimony about other legislators' purpose, may not say much Case No. 4:12rnc3-RH/CAS A. 95

111 Case 4:12-mc RH-CAS Document 31 Filed 08/10/12 Page 3 of 8 Page 3 of8 about the actual overall legislative purpose, but the testimony may say enough to move the needle at least a little, and relevance requires nothing more. Similarly, a legislator's or staff member's testimony about the progress of a bill through the legislature, or about similar matters, may be relevant. The conclusion that such testimony may be relevant is consistent with the routine practice of the Department of Justice, when considering a request for administrative preclearance under the Voting Rights Act, to seek out the views of legislators. It thus is not surprising that states seeking judicial preclearance routinely offer the testimony oflegislators, and courts routinely admit it. A legislator who agrees to testify of course may be deposed; by voluntarily testifying, the legislator waives any legislative privilege on the subjects that will be addressed in the testimony. The state does not assert otherwise. But here the state has chosen not to introduce the testimony of any legislator. The proposed depositions thus cannot be justified as discovery of the other side's evidence. And the legislators have not waived any privilege by agreeing to testify. Whether the legislators and staff members have a privilege not to give the proposed deposition testimony is an issue of federal common law "as interpreted by United States courts in the light of reason and experience." Fed. R. Evid The parties have cited no case-under the Voting Rights Act or in any other context-in which a state legislator who has not agreed to testify at a trial has been Case No. 4:12mc3-RH/CAS A. 96

112 Case 4:12-mc RH-CAS Document 31 Filed 08/10/12 Page 4 of 8 Page4 of8 compelled to sit for a deposition addressing legislative functions. Nor have they cited any Voting Rights Act case in which a legislator has successfully invoked legislative privilege. The situation apparently has never come up, perhaps because states usually choose to offer legislative testimony, and perhaps because when states do not offer legislative testimony, opponents usually do not seek to take depositions of this kind. The issue of legislative privilege in this context is one of first impression. But legislative purpose is an issue in many other cases, not just those arising under the Voting Rights Act. Indeed, in many equal-protection cases, legislative purpose is an issue that precisely mirrors the issue in a Voting Rights Act case. In equal-protection cases, as in Voting Rights Act cases, the critical question often is whether the legislature acted with a discriminatory purpose. See, e.g., Washington v. Davis, 426 U.S. 229 (1976). The relevance of a legislator's testimony on the issue of discriminatory purpose and the legislator's privilege not to testify thus are identical in equal-protection and Voting Rights Act cases. The Supreme Court has addressed these matters in language squarely applicable here: The legislative or adm.:hlistrative history [of the legislative action] may be highly relevant, especially where there are contemporaneous statements by members of the decisionrnaking body, minutes of its meetings, or reports. In some extraordinary instances the members might be called to the stand at trial to testify Case No. 4: 12mc3-RH/CAS A. 97

113 Case 4:12~mc~00003~RH~CAS Document 31 Filed 08/10/12 Page 5 of 8 Page 5 of8 concerning the purpose of the official action, although even then such testimony frequently will be barred by privilege. Vi!!. of Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252,268 (1977) (citing Tenney v. Brandhove, 341 U.S. 367 (1951), and United States v. Nixon, 418 U.S. 683 (1974)) (emphasis added). The Court added: This Court has recognized, ever since Fletcher v. Peck, 6 Cranch 87, ,3 L.Ed. 162 (1810), that judicial inquiries into legislative or executive motivation represent a substantial intrusion into the workings of other branches of government. Placing a decisionmaker on the stand is therefore "usually to be avoided." Arlington Heights, 429 U.S. at 268 n.l8 (quoting Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 420 (1971)). Arlington Heights accurately sets out the law on this subject. The considerations that support the result include the burden that being compelled to testify would in1pose on state legislators, the chilling effect the prospect of having to testify might impose on legislators when considering proposed legislation and discussing it with staff members, and perhaps most importantly, the respect due a coordinate branch of government. Legislators ought not call unwilling judges to testify at legislative hearings about the reasons for specific judicial decisions, and courts ought not compel unwilling legislators to testify about the reasons for specific legislative votes. Nothing in the Voting Rights Act suggests that Congress intended to override this long-recognized legislative privilege. Case No. 4:12mc3-RH/CAS A. 98

114 Case 4:12-mc RH-CAS Document 31 Filed 08/10/12 Page 6 of 8 Page 6 of8 To be sure, a state legislator's privilege is qualified, not absolute; a state legislator's privilege is not coterminous with the privilege of a member of Congress under the Constitution's Speech and Debate Clause. Thus, for example, in United States v. Gillock, 445 U.S. 360 (1980), the Supreme Court held that a state legislator had no legislative privilege in a federal criminal prosecution for bribery. The court distinguished Tenney v. Brandhove, 341 U.S. 367 (1951)-one of the cases relied on in Arlington Heights for the proposition that a state legislator's testimony on legislative purpose often is privileged-on the ground that it was a civil case. But even if the state legislative privilege is qualified in civil as well as criminal cases, there is no reason not to recognize the privilege here. Voting Rights Act cases are important, but so are equal-protection challenges to many other state laws, and there is nothing unique about the issues of legislative purpose and privilege in Voting Rights Act cases. The intervenors say Florida does not recognize a legislative privilege for its own legislators and that a federal court thus also should not recognize a privilege. As set out above, the question of legislative privilege in a Voting Rights Act case is a question of federal law. Even so, if a state indeed did not recognize a privilege for its own legislators, the case for recognizing a federal privilege would be weaker. This makes no difference here, because Florida does recognize a state legislative privilege. This is confirmed by a decision rendered in the interim Case No. 4:12mc3-RH/CAS A. 99

115 Case 4:12-mc RH-CAS Document 31 Filed 08/10/12 Page 7 of 8 Page 7 of8 between the ruling announced oti the record in this case and the issuance of this written order. See Fla. House of Representatives v. Expedia, Inc., 85 So. 3d 517 (Fla. 1st DCA 2012). If faced with the issue, the Florida Supreme Court almost surely would agree. So the legislators have a federal legislative privilege-at least qualified, if not absolute-not to testify in this civil case about the reasons for their votes. The privilege is broad enough to cover all the topics that the intervenors propose to ask them and to cover their personal notes of the deliberative process. The privilege also extends to staff members at least to the extent that the proposed testimony would intrude on the legislators' own deliberative process and their ability to communicate with staff members on the merits of proposed legislation. See, e.g., Gravel v.united States, 408 U.S. 606, 618 (1972) (holding "that the Speech or Debate Clause applies not only to a Member but also to his aides insofar as the conduct of the latter would be a protected legislative act if performed by the Member himself'). Case No. 4:12mc3-RH/CAS A. 100

116 Case 4:12-mc RH-CAS Document 31 Filed 08/10/12 Page 8 of 8 Page 8 of8 issues, For these reasons and those set out on the record of the hearing on these IT IS ORDERED: The motion to compel legislators and staff members to appear for depositions, ECF No. 1, is DENIED. The clerk must close the file. SO ORDERED on August 10,2012. s/robert L. Hinlde United States District Judge Case No. 4:12mo3-RH/CAS A. 101

117 TAB 7

118 IN THE CIRCUIT COURT FOR THE SECOND JUDICIAL CIRCUIT IN AND FOR LEON COUNTY, FLOIUDA RENE ROMO, an individual; BENJAMIN WEAVER, an individual; et al., Plaintiffs, vs. CASE NO CA 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; et al., vs. Plaintiffs, KEN DETZNER, in his official capacity as Florida Secretary of State; THE FLORIDA SENATE, et al., Defendants ~/ ROMO PLAINTIFFS' OPPOSITION TO LEGISLATIVE DEFENDANTS' MOTION FOR PROTECTIVE ORDER BASED ON LEGISLATIVE PRIVILEGE A. 102

119 TABLE OF CONTENTS Page BACKGROUND... 1 ARGUMENT... 2 I. FLORIDA LAW FORECLOSES DEFENDANTS' CLAIMS OF A LEGISLATIVE PRIVILEGE IN THIS CASE... 3 A. Whether a legislative privilege applies is a question of Florida law... 3 B. The common law legislative privilege recognized by the First District in Expedia does not apply to cases brought pursuant to Amendment C. The Florida Constitution's separation of powers provision does not create an applicable privilege D. The federal cases relied upon by Defendants are inapplicable II. FLORIDA'S SUNSHINE AMENDMENT REQUIRES DEFENDANTS TO PRODUCE THE DOCUMENTS THEY HAVE WITHHELD FROM DISCOVERY A. The Sunshine Amendment imposes broad public access requirements on the Florida Legislature B. The documents Plaintiffs have requested are public records and are not exempt from public access I. The documents Plaintitis have requested are public records There are no common law exceptions to the Sunshine Amendment's requirements The documents requested are not exempted by Florida Statutes, Section (d) This Court has the power to order Defendants to produce the requested documents III. EVEN IF DEFENDANTS COULD CLAIM SOME FORM OF LEGISLATIVE PRIVILEGE, IT DOES NOT SUPPORT THEIR MOTION FOR A PROTECTIVE ORDER i- A. 103

120 TABLE OF CONTENTS (continued) Page A. The compelling constitutional interest in knowing the Legislature's intent outweighs any interest advanced by the legislative privilege B. Even if the legislative privilege applied, it would not support the broad protective order that Defendants are seeking CONCLUSION ii- A. 104

121 TABLE OF AUTHORITIES Page Cases Advisory Op. to Aft y Gen. re Standards for Establishing Legislative Dist. Boundaries, 2 So. 3d 175 (Fla. 2009) Baldus v. Brennan, No. 11-CV-562, 2011 WL (E.D. Wise. Dec. 8, 2011)... 33, 35,36 Bent v. State, 46 So. 3d 1047 (Fla. App. 4 Dist. 2010) Boyle v. United Technologies Corp., 487 u.s. 500 (1988)... 6 Branch v. Smith, 538 U.S. 254 (2003)... 6 Brown v. Bullerworth, 831 So. 2d 683 (Fla. App. 4 Dist. 2002)... II Brown v. Sec J' of Stale, 668 FJd 1271 (lith Cir. 2012)... 2, 5 Cano v. Davis, 193 F. Supp. 2d 1177 (C.D. Cal. 2002) T.MH v. D.MT., 79 So. 3d 787 (Fla. App. 5 Dist. 2011) Chiles v. Phelps, 714 So. 2d 453 (Fla. 1998) City of Pompano Beach v. Swerdlow Lightspeed Mgmt. Co., 942 So. 2d 455 (Fla. App. 4 Dist. 2006) Comm. for a Fair & Balanced lvfap v. Ill. Stale Ed. of Elections, No. II C 5065,2011 WL (N.D. Ill. Oct. 12, 2011)... 4, 35, 36,37 Cook v. Gralike, 531 u.s. 510 (2001)... 5 Coi'IJ' v. Meggs, 498 So. 2d 508 (Fla. App. I Dist. 1986) i- A. 105

122 TABLE OF AUTHORITIES (continued) Page Donato v. Am. Tel. & Tel. Co., 767 So. 2d 1146 (Fla. 2000) Douglas v. Webber, 128 So. 613 (Fla. 1930) '7a. Ass 'n of Rehabilitation Facilities, Inc. v. Fla. Dep 'I of Health & Rehabilitative Servs., 164 F.R.D. 257 (N.D. Fla. 1995)... 4, 10, 32,37 Fla. Dep't ofstate v. Fla. State Con.f of NAACP Branches, 43 So. 3d 662 (Fla. 2010)... 1 Florida House of Representatives v. Erpedia, Inc., 85 So. 3d 517 (Fla. App. 1 Dist. 2012)... passim Florida v. United States, No. 4:12-MC-3 (N.D. Fla. Aug. 10, 2012) Girardeau v. State, 403 So. 2d 513 (Fla. App. 1 Dist. 1981) Horne v. Flores, 557 U.S. 433 (2009)... 3 In reapportionment Law Senate Joint Resolution No. I 305, 1972 Regular Session, 263 So. 2d 797 (Fla. 1972) In re Grand JWJ', 821 F.2d 946 (3d Cir. 1987), cerl. denied, 484 U.S (1988)... 4 In re Senate Joint Resolution of Legislative Apportionment 1176 ("In re Legislative Apportionment1176"), 83 So. 3d 597 (Fla. 2012)... passim In re Subpoena Duces Tecum Served on Office of Comptroller of Currency, 145 F.3d 1422 (D.C. Cir. 1998)... 10, 16, 17,33 Lake Count1y Estates, Inc. v. Tahoe Reg 'I Planning Agency, 440 u.s. 391 (1979)... 4 Lightbourne v. McCollum, 969 So. 2d 326 (Fla. 2007)... 19, 25, 26, 28 -ii- A. 106

123 TABLE OF AUTHORITIES (continued) Page Locke v. Hawkes, No , 1991 WL (Fla. Nov. 7, 1991), vacated and superseded by 595 So. 2d 32 (Fla. 1992) \fartinez v. Bush, 234 F. Supp. 2d 1275 (S.D. Fla. 2002)... 15, 16 1\fartinez v. Bush, No CIV (S.D. Fla. July 15, 2002)... 14, 15 Matthews v. 1vicCain, 170 So. 323 (Fla. 1936)... 6, 9 Media Gen. Operation, Inc. v. Feeney, 849 So. 2d 3 (Fla. App. 1 Dist. 2003)... 23, 24, 30 Moffitt v. Willis, 459 So. 2d I 018 (Fla ) Nat 'I Collegiate Athletic Ass 'n v. Associated Press, 18 So. 3d 1201 (Fla. App. I Dist. 2009) Rhea v. Dis/. Bd. o.ftrustees of Santa Fe College, -So. 3d-, No. 1Dl1-3049, 2012 WL (Fla. App. 1 Dist. July 19, 2012)... 19, 22,23 Roberts v. Brown, 43 So. 3d 673 (Fla ) State v. City of Clearwater, 863 So. 2d 149 (Fla ) Stone v. Wall, 734 So. 2d I 038 (Fla. 1999)... 6, 7 Tenney v. Brandhove, 341 u.s. 367 ( 1951)... "... ".. "... ""... ""."."... ""... ""... """""... 4 Times Pub/ 'g Co. v. City of Clearwater, 830 So. 2d 844 (Fla. App. 2 Dist. 2002) Trammel v. United States, 445 U.S. 40 ( 1980) iii- A. 107

124 TABLE OF AUTHORITIES (continued) Page U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995)... 5 United States v. Gillock, 445 u.s. 360 (1980)... 4, 31 United States v. Irvin, 127 F.R.D. 169 (C.D. Cal. 1989)... 16,33 United States v. Standard Oil Co., 332 U.S. 301 (1947)... 6 Wait v. Florida Power & Light Co., 372 So. 2d 420 (Fla. 1979)... 20, 21, 24,25 Waller v. First Sav. & Trust Co., 138 So. 780 (Fla. 1931)... 7 Statutes 42 U.S.C. 1973c u.s.c U.S.C Fla. Stat passim Fla. Stat Fla. Stat (2) Fla. Stat , 9 Other Authorities Fla. H. Rep. R Patricia A. Gleason & Joslyn Wilson, 1/w Florida Constitution's Open Government Amendments: Article L Section 24 and Article IlL Section 4(e)- Let the Sunshine In!, 18NOVA L. REV. 973,974 (1994)... 18, 27,28 Rules Fed. R. Evid iv- A. 108

125 TABLE OF AUTHORITIES (continued) Page Constitutional Provisions Fla. Const. art. I, 24(a)... 13, 19, 21,22 Fla. Const. art. I, 24( c) Fla. Con st. art. III, Fla. Const. art. III, 20(a)... I, 9 Fla. Const. art. V, S(b) v- A. 109

126 The Romo PlaintifTs respectfully submit this brief in opposition to the Legislative Defendants' ("Defendants") motion for a protective order based on legislative privilege. For the reasons that follow, no legislative privilege applies in this case, but even if Defendants could lay claim to such a privilege, it would not support their overbroad and premature motion. BACKGROUND In 2010, the voters approved Amendment 6 to the Florida Constitution by an overwhelming majority, imposing "stringent new standards" on the Florida Legislature in conducting congressional reapportionment. lnre Senate Joint Resolution of Legislative Apportionment 1176 ("lnre Legislative Apportionment 1176"), 83 So. 3d 597, (Fla. 2012). Now incorporated into the Constitution as Article III, Section 20, Amendment 6 makes political gerrymandering constitutionally impermissible, prohibiting the Legislature from drawing any congressional apportio11111ent plan or individual district "with the intent to favor or disfavor a political party or an incumbent." Fla. Cons!. art. III, 20(a). As the Florida Supreme Court recently held, "there is no acceptable level of improper intent." Inre Legislative Apportionment 1176, 83 So. 3d at 617 (emphasis added). The Legislature actively opposed this reform. Prior to its approval, the Legislature attempted to submit to the voters a different amendment meant to neutralize Amendment 6. That proposal was removed from the ballot by the Florida Supreme Court. Fla. Dep't of State v. Fla. State Conf a,( NAACP Branches, 43 So. 3d 662,662 (Fla ). After Amendment 6 was approved, several elected officials (including Defendant Florida House of Representatives) challenged the provision in federal court. I A. 110

127 That challenge was rejected by the Eleventh Circuit Court of Appeals earlier this year. Brown v. Sec J' of State, 668 FJd 1271 (lith Cir. 2012). The Defendants' motion for a protective order continues this effort to thwmt the will of Florida's voters and protect partisan and incumbent advantage. Despite the plain text of Amendment 6, which prohibits any intent to favor or disfavor a political party or incumbent, Defendants seek a blanket court order that would largely bar Plaintiffs from discovering facts relating to the Legislature's intent underlying the 2012 Congressional reapportionment plan (the "2012 Plan"). The order Defendants seek would prohibit Plaintiffs from deposing the legislators and legislative staff that prepared the 2012 Plan and would shield from public review any and all "unfiled legislative draft maps," as well as documentary evidence that "relate[s] to" these materials. Defs.' Mot. 2, 15. Defendants' request is contrary to Florida law, including the Constitutional provision that puts the Legislature's intent directly at issue, and should be rejected. ARGUMENT On the basis of legislative privilege, Defendants seek a protective order broadly forbidding Plaintiffs from taking the depositions of any legislators or legislative staff and prohibiting any discovery of draft maps or documentary evidence that "relate[ s] to" maps prepared during the redistricting process. See Defs.' Mot. 2, 15. Defendants claim that these materials are exempt from disclosure pursuant to a common law legislative privilege and statutory law. In Section I of this Brief, Plaintiffs address Defendants' broad claim of legislative privilege as it applies to both the document requests and depositions. In Section II, Plaintiffs address the arguments that Defendants make specifically with regard to Plaintiffs' document requests. 2 A. 111

128 As to Plaintiffs' requests for documentary discovery, Defendants' privilege logs (Exhibits A and B) demonstrate that Defendants are already withholding multiple documents based on legislative privilege that could bear directly on the Legislature's intent in creating the 2012 Plan. See, e.g., Exhibit A (House Privilege Log) at 2-3 (withholding communications between legislators as to requests for amendments to the plan); Exhibit B (Senate Privilege Log) at (withholding communications regarding drafts of reapportionment plan). In addition, Defendants have stated that they are still collecting many other documents relating to the redistricting process that they also may withhold from discovery based on legislative privilege. With only four months of discovery remaining in this case, Plaintiffs have a compelling need for a prompt ruling on Defendants' attempt to stymie document and deposition discovery through their baseless assertion of privilege. I. FLORIDA LAW FORECLOSES DEFENDANTS' CLAIMS OF A LEGISLATIVE PRIVILEGE IN THIS CASE Defendants' claim that legislative privilege forbids discovery into the intent of the makers of the 2012 Plan must be rejected because recognition of such a privilege in this litigation would be inconsistent with the Florida Constitution and thwart the intent of the voters in enacting Amendment 6. This litigation seeks to enforce Amendment 6's intent provision and other requirements, and Defendants may not avoid either testimonial or document discovery based on a claim oflegislative privilege. A. Whethet a legislative privilege applies is a question of Florida law Whether Defendants can claim a legislative privilege in a challenge brought in Florida State court to enforce a Florida State constitutional provision is plainly a question of Florida law. See, e.g., Horne v. Flores, 557 U.S. 433, 471 (2009) (holding 3 A. 112

129 interpretation of provision of State constitution "is a question of state law, to be determined by state authorities"). Although Defendants stop shoti of explicitly arguing that federal law governs, they strongly imply that it might. See Defs.' Mot That implication is false. 1 First, even if this Court were bound to apply the Federal Rules of Evidence (which it clearly is not), those Rules explicitly provide that, "in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of 1 Even in a case arising out of federal law, Defendants' motion would fail. The Speech and Debate Clause of the U.S. Constitution does not apply to state legislators. Lake Country Estates, Inc. v. Tahoe Reg'/ Planning Agency, 440 U.S. 391,404 (1979); Fla. Ass 'n of Rehabilitation Facilities, Inc. v. Fla. Dep 't of Health & Rehabilitative Servs., 164 F.R.D. 257,262, (N.D. Fla. 1995). In Tenneyv. Brandhove, 341 U.S. 367 (1951 ), the Supreme Court held only that, "by the enactment of 42 U.S. C and 1985, Congress did not intend to override the absolute immunity... ji om suit" that state legislators enjoyed at common law. Fla. Ass'n of Rehabilitation Facilities, 164 F.R.D. at 262 (emphasis added). See also Tenney, 341 U.S. at ("We have only considered the scope of the privilege as applied to the facts of the present case... [and w]e conclude only that here the individual defendants and the legislative committee were acting in a field where legislators traditionally have power to act, and that the statute... does not create civil liability for such conduct."). Because Tenney addressed only legislative immunity and did not consider legislative privilege, for several years the federal courts were divided as to whether the decision could also be read to announce a general legislative privilege for state legislators in federal litigation. That question was settled in United States v. Gillock, 445 U.S. 360, 374 (1980), which rejected the argument that federal common law immunity from suit gives rise to a general evidentiary privilege. See id. (holding no legislative privilege for state legislator in federal criminal prosecution based on balancing of interests). See also In re Grand JWJ', 821 F.2d 946, (3d Cir. 1987), cert. denied, 484 U.S. I 025 ( 1988); Comm. for a Fair & Balanced Map v. 1/1. State Bd of Elections, No. 11 C 5065, 2011 WL , at *6 (N.D. Il1. Oct. 12, 2011) (quoting Manzi v. DiCarlo, 982 F. Supp. 125, 129 (E.D.N. Y. 1997)). Thus, to the extent that some form of federal common law legislative privilege may exist in certain cases arising under federal law, it is plainly qualified, as discussed further in Section III of this Brief. Finally, it is important to note that the legislative immunity recognized in Tenney does not apply to claims under state law. Lake Count1y Estates, 440 U.S. at 405 (applying Tenney in 1983 action and holding "[w]hatever potential damages liability regional legislators may face as a matter of state law,... petitioners' federal claims do not encompass the recovery of damages from the members... acting in a legislative capacity"). 4 A. 113

130 decision." Fed. R. Evid Plaintiffs seek to enforce a provision in the Florida Constitution. State law therefore plainly supplies the rule of decision and determines whether the privilege applies. Second, Defendants' suggestion that em action to enforce Amendment 6 implicates "uniquely federal interests... so committed by the Constitution and laws of the United States to federal control" that Federal law pre-empts and replaces state privilege law, Defs.' Mot. 6-7, is manifestly inconsistent with the Eleventh Circuit's decision in Brown v. Secretmy of State earlier this year. There, the defendants similarly argued that, because congressional redistricting is an area of strong federal interests, Amendment 6 was contrary to federal law and therefore invalid. The Brown defendants relied on the very cases that Defendants now urge support the application of federal law to their claims ofprivilege~us. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995), and Cook v. Gralike, 531 U.S. 510 (2001). See Defs.' Mot. 7. But the Eleventh Circuit rejected the defendants' attempts to analogize to these cases, correctly finding that the restrictions set forth in Amendment 6 are "profoundly different and easily distinguishable from the provisions outlawed" in either US. Term Limits or Cook. Brown, 668 F.3d at Defendants fail to explain why this Court should come to a different conclusion. If federal law does not preempt the substantive standards in Amendment 6, why would it preempt Florida's rules of evidence in an action brought to enforce Amendment 6? Defendants further fail to explain how US. Term Limits or Cook~both of which involved state constitutional provisions that were invalidated under federal law--can be read to require state privilege law be supplanted with federal common law in an action to 5 A. 114

131 enforce a state constitutional provision that has been upheld. These cases simply do not stand for such a radical proposition? As in any other case brought in Florida's courts pursuant to Florida law, federal law is relevant to the question of privilege only to the extent that (I) Florida law does not answer the question presented, and (2) the Court finds the federal courts' reasoning persuasive and applicable to the facts before it. See Cony v. Meggs, 498 So. 2d 508, 510 (Fla. App. I Dist. 1986) (noting that "Florida courts frequently refer to federal decisions as persuasive in interpretation of Florida's Evidence Code" but that such reference is "of limited assistance" where there are significant differences in the relevant State and Federal law). As explained below, there is no applicable privilege under Florida law. To the contrary, Amendment 6 and state statutes foreclose such an argument. B. The common law legislative privilege recognized by the First District in Expedia does not apply to cases brought pursuant to Amendment 6 Section2.01, Florida Statutes, recognizes and incorporates the common law, but only insofar as it is "not inconsistent with the Constitution and laws of the United States and the acts of the Legislature of this state." Fla. Stat ("Section 2.01") (emphasis added). Accordingly, when considering whether the common law applies, Florida courts ask first whether any statutory or constitutional law precludes its application. See Stone v. Wall, 734 So. 2d I 038, 1044 (Fla. 1999). Any inconsistency renders the common law inapplicable and ends the inquiry. See, e.g., Matthews v. McCain, 170 So. 323, 327 (Fla. 1936) ("The Constitution and statutes of Florida must of course control, and take 2 None of the other cases that Defendants rely upon are remotely applicable. Neither Boyle v. United Technologies Corp., 487 U.S. 500 (1988), nor United States v. Standard Oil Co., 332 U.S. 301 (1947), is a redistricting case. Branch v. Smith, 538 U.S. 254 (2003), concerned the propriety of a congressional redistricting plan adopted by a federal district court and did not opine on choice oflaw issues. 6 A. 115

132 precedence over the common law when there are any inconsistencies between them."); Waller v. First Sav. & Trust Co., 138 So. 780 (Fla. 1931) (rejecting common law rule as inconsistent with Florida Constitution's Declaration of Rights). Even where the common law is fully consistent with statutory or constitutional law, Florida courts do not apply it as a matter of course. Instead, they consider "whether there are any contrary policy considerations that would preclude" its application. Stone, 734 So. 2d at As the Florida Supreme Court has repeatedly recognized, "the common law 'must keep pace with changes in our society"' and '"may be altered... when change is demanded by public necessity or required to vindicate fundamental rights."'!d. at I (quoting United States v. Dempsey, 635 So. 2d 961, 964 (Fla. 1994)). Application of a common law legislative privilege that would prohibit the depositions of legislators and others involved in the redistricting process and forbid meaningful documentary discovery in this case would be directly inconsistent with the Florida Constitution. This conclusion is evident from the plain language of Amendment 6, which makes the intent of the drafters of the congressional plan one of the central issues in this litigation. It is fmther compelled by one of the "fundamental tenet[s] of constitutional construction," which requires that courts "construe a constitutional provision in a manner consistent with the intent of the framers and the voters and... interpret its terms in their most usual and obvious meaning." In re Legislative Apportionment 1176,83 So. 3d at 631. Accordingly, "[c]onstitutional provisions 'must never be construed in such a mam1er as to make it possible for the will of the people to be frustrated or denied."'!d. (quoting Lewis v. Leon Cnty., 73 So. 3d 151, (Fla. 7 A. 116

133 2011)) (emphasis added). Permitting Defendants to avoid deposition and document discovery would clearly jeopardize the will of the people by erecting a serious obstacle to discovering the full Legislative intent underlying a reapportionment plan. Both this Court and the Florida Supreme Court have held that statistical analysis alone will rarely be sufficient to demonstrate that the Legislature acted with improper intent in drafting a redistricting or reapportionment plan. See Order Denying Pis.' Summ. J. Mot 8-9 ("There are simply too many other factors at play for me to find unlawful intent based merely on the projected partisan breakdown of the congressional plan.") (citing In re Legislative Apportionment 1176, 83 So. 3d at ). Thus, in order to ensure meaningful enforcement of Amendment 6, Plaintiffs must be permitted to obtain the discovery that they seek. The First District's decision in Florida House of Representatives v. Expedia, Inc., 85 So. 3d 517 (Fla. App. I Dist. 2012), is not to the contrary. In that case, Expedia's counsel sought to depose a legislator and his aide to discover how certain confidential documents that were disclosed to opposing counsel under a protective order came to be public knowledge.!d. at Evidently, opposing counsel had disclosed these materials to the legislator, who in turn made them available to other legislators and the press.!d. at 520. Neither the substantive claims in the underlying case nor the discovery that was sought had anything to do with redistricting or provisions in the Florida Constitution. Nor were the representative or his aide parties to the underlying action. Accordingly, the intent of the legislator and the aide could not possibly have been relevant to any of the claims brought by the plaintiffs. The First District's conclusion that the legislator and his aide were entitled to claim a common law testimonial legislative 8 A. 117

134 privilege to avoid the noticed depositions was the first Florida decision to recognize any such privilege. Critical to the Court's decision was its determination that, "we know of no law abrogating the common law on this point."!d. at 523. But in this litigation, that is plainly not the case. Amendment 6 clearly obviates any claim to a legislative privilege to protect against discovery of the intent of the drafters of the redistricting plan. Fla. Cons!. art. III, 20(a). 3 Defendants' argument that "Amendment Six's enactment cannot undermine Florida's legislative privilege" because "[t]he Amendment's text says nothing about altering legislative privilege" misunderstands the relationship between the common law and statutory or constitutional law in Florida. Defs.' Mot. II. Defendants presume that the common law is equivalent to laws expressly enacted by the Legislature or the people. But it is not. The common law applies only insofar as it is "not inconsistent with" statutory and constitutional law. Fla. Stat. 2.0 I (emphasis added). There is therefore no requirement that, in order to "overrule" the common law, a statute or constitutional provision must do so explicitly. Instead, it has long been the rule that "when there are any inconsistencies" between the common law and the Constitution or statutes of Florida, the latter "of course" controls. }.Iatthews, 170 So. at 327 (emphasis added). Amendment 6 imposes new requirements on the Legislature that "dramatically alter the landscape with respect to redistricting by prohibiting practices that have been acceptable in the past, such as crafting a plan or district with [any] intent to favor a political party or an incumbent." In re Legislative Apportionment 1176,83 So. 3d at 607. See also id. at 617 ("[T]here is no acceptable level of improper intent.") (emphasis 3 Expedia did not involve any requests for documentary discovery. As such, it did not require consideration of the Sunshine Amendment discussed in Section II of this Brief. 9 A. 118

135 added). As a result, the discovery that Plaintiffs seek is not evidence oflegislative intent in an abstract or general sense, it is evidence of the ve1y conduct that Amendment 6 explicitly prohibits. Application of a common law legislative privilege to prohibit discovery of the precise act that a constitutional provision explicitly makes impermissible would be plainly inconsistent with that provision. Thus, under well-established and long standing Florida precedent, which requires that the common law yield when it is inconsistent with statutory or constitutional law, Amendment 6 invalidates any claim of legislative privilege in this case. 4 C. The Florida Constitution's separation of powers provision does not create an applicable privilege Defendants' argument that the Florida Constitution's separation of powers provision independently entitles them to avoid discovery in this litigation must also be rejected. See Defs.' Mot As an initial matter, if the separation of powers provision independently created an absolute legislative privilege, there would be no reason to look to the common law in the first instance as the source of any legislative privilege. But that inconsistency aside, permitting Plaintiffs to obtain the discovery they seek to enforce Amendment 6 does not violate the separation of powers. Amendment 6 "imposes a higher standard on the Legislature when formulating the state's apportionment plans [and congressional redistricting plans]," including "prohibiting practices that have been acceptable in the past, such as crafting a plan or district with the intent to favor a political party or an incumbent." In re Legislative Apportionment 1176, 4 See also In re Subpoena Duces Tecum Served on Office of Comptroller of Currency, 145 F.3d 1422, 1424 (D.C. Cir. 1998) (holding deliberative process privilege not applicable when plaintiffs cause of action "turns on the government's intent"); Fla. Ass 'n of Rehabilitation Facilities, 164 F.R.D. at 268 (noting "privilege may not be applicable" where "the subject matter of th[ e] case, as defined by... law, is in part the legislative process itself'). 10 A. 119

136 83 So. 3d at 607 (emphasis added). The judiciary retains the power to determine whether the Legislature has conducted itself as the law requires. See Brown v. Butterworth, 831 So. 2d 683, 689 (Fla. App. 4 Dist. 2002) (holding the circuit courts of Florida have jurisdiction to hear legal challenges to congressional redistricting plans). Indeed, as the Florida Supreme Court has recognized, the Legislature's new obligations under Amendment 6 "requir[ e] a commensurately more expanded judicial analysis oflegislative compliance." In re Legislative Apportionment 1176, 83 So. 3d at 607. There is no basis for Defendants' argument that the Florida Constitution's general separation of powers provision acts to shield from discovery evidence directly relevant to the Legislature's compliance with legitimate constitutional strictures that govern its conduct in the redistricting process. 5 Defendants' insistence that the redistricting plan is just like any other legislative enactment has been rejected by the Florida Supreme Court: "Unlike a legislative act promulgated separate and apart from an express constitutional mandate, the Legislature 5 Defendants' argument that the Florida Supreme Court would not have allowed Amendment 6 to be submitted to the voters if it would have permitted depositions and discovery into the intent of the makers of the apportionment plans is squarely at odds with the Florida Supreme Court's explicit conclusion that these changes to the Florida Constitution require a commensurate expansion of judicial review to ensure meaningful enforcement of the will of the voters. See Defs.' Mot ; In re Legislative Apportionment 1176, 83 So. 3d at 607. And Defendants' related argument that Amendment 6 could not displace a common law privilege without violating the singlesubject rule is similarly without merit. "A proposed amendment is not invalid merely because it affects more than one branch of government or may interact with other provisions of the Florida Constitution." Advismy Op. to Att :v Gen. re Standards for Establishing Legislative Dis/. Boundaries, 2 So. 3d 175, (Fla. 2009). Nor does the fact that an amendment would require a '"branch of government... to comply with a provision of the Florida Constitution... necessarily constitute the usurpation of the branch's function within the meaning of the single-subject rule."'!d. at 181 (quoting Advismy Op. to Att 'y Gen. re Protect People, E;,pecially Youth, fi'om Addiction, Disease, & Other Health Hazards of Using Tobacco, 926 So. 2d 1186, 1192 (Fla. 2006)). II A. 120

137 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."!d. at As of2010, those instructions forbid the Legislature from making apportionment plans with any intent to favor an incumbent or political party. Granting the Defendants' motion and prohibiting discovery as to the intent of the plan's drafters would render those instructions unenforceable and meaningless. A finding that the general separation of powers provision imposes a blanket and general legislative privilege that prohibits Plaintiffs from obtaining testimonial or documentary discovery regarding the very intent that Amendment 6 prohibits would also be contrary to the canons of constitutional construction applied by Florida courts. "Every word of the Florida Constitution should be given its intended meaning and effect," In re Apportionment Law Senate Joint Resolution No. 1305, 1972 Regular Session, 263 So. 2d 797, 807 (Fla. 1972), and "[c]onstitutional provisions 'must never be construed in such a manner as to make it possible for the will of the people to be frustrated or denied,"' In re Legislative Apportionment1176, 83 So. 3d at 631 (quoting Lewis, 73 So. 3d at ). But interpreting the Constitution to bar this crucial means of inquiry into legislative intent-intent put squarely at issue by Amendment 6-would utterly defeat the Amendment's purpose. Moreover, in constitutional interpretation, specific provisions control over general provisions. See Roberts v. Brown, 43 So. 3d 673, 680 (Fla. 2010). And while Amendment 6 expressly places legislative intent at issue, the general separation of powers provision does not explicitly forbid discovery into legislative intent. Nor does the mere existence of a separation of powers provision give rise to a legislative privilege. In fact, as the First District has recognized, many state constitutions 12 A. 121

138 contain both a general separation of powers provision and a specific provision establishing a legislative privilege. If the former always implicitly gave rise to the latter, then the legislative privilege provision would be superfluous. Girardeau v. State, 403 So. 2d 513,515 n.3 (Fla. App. 1 Dist. 1981) ("The State's brief informs us that thirty-nine states have a separation of powers clause in their State Constitutions, yet many of those also have explicit legislative privilege clauses, so that apparently as to states having both it was not considered that the 'separation of powers' clause implied the existence of a speech or debate clause."). Furthermore, Defendants' argument that Amendment 6 cannot implicitly limit the legislative privilege that Defendants claim cannot be reconciled with Defendants' admission, elsewhere in their brief, that Article I, Section 24(a) of the Florida Constitution "derogates" the same privilege. See Defs.' Mot. 16. In order to reconcile their argument that the Florida Constitution's separation of powers provision gives rise to an implicit legislative privilege, with the default rule of public access to legislative records set forth in Article I, Section 24(a) (the "Sunshine Amendment," discussed further in Section II), Defendants concede that the Sunshine Amendment "derogates from the common law legislative privilege."!d. But, like Amendment 6, the Sunshine Amendment says nothing about altering any common law legislative privilege or altering the separation-of-powers provision. Fla. Const. art. I, 24(a). There is no rational basis for Defendants to concede, on the one hand, that the Sunshine Amendment alters the legislative privilege, but to insist that Amendment 6 cannot possibly do the same. Put simply, applying a legislative privilege in this case would not only render Amendment 6 's "intent" requirement meaningless, it would fi ustrate and deny the will of 13 A. 122

139 the people, who enacted the Amendment for the very purpose of eliminating any intent to favor incumbents or a particular political party in redistricting. And it would do so in the name of the separation of powers clause, a general clause that has not been found to give rise to a blanket and absolute legislative privilege. See, e.g., Expedia, 85 So. 3d at 525 ("The court will always have to make a preliminary inquiry to determine whether the information [sought] is within the scope of the privilege and whether the need for privacy is outweighed by a more important governmental interest."). D. The federal cases relied upon by Defendants are inapplicable Neither U.S. District Judge Hinkle's unpublished opinion in Florida v. United States, No. 4:12-MC-3 (N.D. Fla. Aug. 10, 2012) ("J. Hinkle Aug. 10, 2012 Order"), nor the unpublished memorandum opinion in Martinez v. Bush, No CIV (S.D. Fla. July 15, 2002) ("Martinez July 15, 2002 Order"), are applicable to or instructive under the circumstances of this litigation. The case before Judge Hinkle was brought pursuant to Section 5 of the Voting Rights Act ("VRA"), 42 U.S.C. 1973c, and the question of privilege was one offederal law. See Hr'g Tr. 91: See also J. Hinkle Aug. I 0, 2012 Order 1-2. Judge Hinkle did not purport to interpret Amendment 6 or analyze questions oflegislative privilege under Florida law. 6 These fundamental differences alone make the decision inapplicable here. But Defendants' reliance on Judge Hinkle's opinion for the proposition that Amendment 6's prohibition on partisan or incumbent intent is not "sufficiently special to 6 At most, Judge Hinkle noted in dicta that he believed that, if the issue were presented to the Florida Supreme Court, it "almost surely" would find that some form of legislative privilege exists. J. Hinkle Aug. 10,2012 Order 6-7. Not only is Judge Hinkle's belief in this regard not authoritative, when he announced his decision he was careful to couch it with a substantial caveat: "Now, whether [the Florida Supreme Court] would say [the privilege] is absolute or it's qualified, and the circumstances under which the court would recognize it, I'm much less confident of any predictions of that." Hr' g Tr. 95: A. 123

140 overcome the privilege" that Defendants assert, Defs.' Mot. 13, is also unsound for another reason. Judge Hinkle's conclusion that a federal legislative privilege was applicable in the VRA case before him was based on his analogy to the application of the privilege in federal equal protection cases. See Hr' g Tr. 92:22-94: 14; J. Hinkle Aug. I 0, 2012 Order 4, 6. The Florida Supreme Court, however, has foreclosed this analogy in relation to Amendment 6. See In re Legislative Apportionment 1176, 83 So. 3d at 617 ("In contrast to the federal equal protection standard applied to political genymandering, the Florida Constitution prohibits drawing a plan or district with the intent to favor or disfavor a political party or incumbent; there is no acceptable level of improper intent."). Because Judge Hinkle's opinion rests on reasoning that has been rejected by the Florida Supreme Court in this context, it cannot carry even persuasive import with this Court in this litigation. For the same reasons, the unpublished opinion that Defendants cite from the Martinez v. Bush litigation is neither applicable nor persuasive under the circumstances here. That case considered a federal challenge to a Florida redistricting plan adopted in 2002-eight years before Amendment 6's enactment. See Martinez v. Bush, 234 F. Supp. 2d 1275, 1278 (S.D. Fla. 2002). The plaintiffs alleged solely federal claims. See id. at The decision explicitly did not interpret or apply Florida law. Martinez July 15,2002 Order 5 ("We do not need to look to state law to determine whether Florida grants legislative immunity here because testimonial privilege is a matter of federal law with regard to the federal claims in this case."). Furthermore, the court's decision not to permit the plaintiffs to take depositions "under the circumstances," rested heavily on its conclusion that the motivations of a "handful of members" was not probative of the 15 A. 124

141 federal claims that the plaintiffs alleged.!d. at 4, 5. But as the Florida Supreme Court has recognized, the plain text of Amendment 6 renders any improper intent by the makers of the 2012 Plan impermissible. In re Legislative Apportionment 1176,83 So. 3d at 617. Finally, the Martinez court noted that, in that case, "there was no dispute that the party in power normally seeks to maximize its political strength through the redistricting process." Martinez July 15, 2002 Order 5 n.2. That is no longer constitutionally permissible in Florida, following the enactment of Amendment 6. 7 Nor are the decisions upon which Defendants rely representative of a universally accepted rule of decision in federal courts. For example, in United States v. Irvin, 127 F.R.D. 169, (C.D. Cal. 1989), the court found that a county board that prepared a redistricting plan could not claim a deliberative process privilege in a VRA action. Among the factors relevant to the court's decision was that the plaintiffs allegations "place in issue the [board]'s deliberations themselves."!d. at 174. The D.C. Circuit has similarly found that the deliberative process privilege is not applicable "when a plaintiffs cause of action turns on the government's intent." In re Subpoena Duces Tecum, 145 F.3d at The comi explained that, [T]he [privilege] is absent in these cases because if either the Constitution or a statute makes the nature of governmental officials' deliberations the issue, the privilege is a nonsequitur. The central purpose of the privilege is to foster government decisionmaking by protecting it from the chill of 7 To the extent that Defendants rely on the Mar/inez order to support their claim that federal courts recognize a broad, blanket legislative privilege for state legislators, that reliance is also misplaced. The Martinez court explicitly recognized that some comis have found that no federal common law legislative privilege protects state legislators; at most, state legislators may be able to claim a deliberative process privilege, which is "qualified" and "may be overcome by showing a sufficient need for the information or by making a prima facie showing of misconduct." 16 A. 125

142 potential disclosure. If Congress creates a cause of action that deliberatively exposes government decisionmaking to the light, the privilege's raison d'etre evaporates. I d. (citation omitted). The same is true here, where the voters have, through Amendment 6, created a cause of action that makes the Legislature's intent in preparing the 2012 Plan the issue in a claim of partisan gerrymandering. Under these circumstances, no privilege applies. II. FLOIUDA'S SUNSHINE AMENDMENT REQUIRES DEFENDANTS TO PRODUCE THE DOCUMENTS THEY HAVE WITHHELD FROM DISCOVERY Defendants' attempt to withhold documents based on legislative privilege should be rejected for two additional reasons. First, under governing Florida Supreme Court precedent interpreting the Florida Constitution, there is no latitude for creating a common law legislative privilege exception to Plaintiffs' fundamental constitutional right of access to records received or generated by the Legislature in connection with its official business. Second, Defendants read the redistricting exception for access to public records far too broadly. A. The Sunshine Amendment imposes broad public access requirements on the Florida Legislature Defendants' motion all but ignores the Florida Constitution's Sunshine Amendment, relegating it to a passing mention. See Defs.' Mot But the Amendment requires more than mere lip service; indeed, together with the Florida statutes that implement it, the Sunshine Amendment establishes that---even before the enactment of Amendment 6-Plaintiffs possess a fundamental constitutional right to obtain virtually all documents relating to the Legislature's redistricting process and activities. The claim of legislative privilege that Defendants invoke does not 17 A. 126

143 overcome this constitutional right. Moreover, while Section 24(c) of the Sunshine Amendment allows the Legislature to enact narrowly tailored exceptions to the public right of access, no exception to this right applies to the documents Plaintiffs seek. Florida has a long tradition of open government. See Patricia A. Gleason & Joslyn Wilson, The Florida Constitution's Open Government Amendments: Article I, Section 24 and Article III, Section 4(e)-Letthe Sunshine Inl, 18 NovA L. REV. 973, 974 (1994). But until the Sunshine Amendment was enacted in 1992, the public's "rights of access were primarily secured by statutory enactments," making them "subject to the discretion of the Legislature" in "continual threat of being weakened or dismantled by future legislatures."!d. In the late 1980s, "increased public awareness, coupled with a growing dissatisfaction that key legislative decisions were being made by the legislative leadership behind closed doors," spurred a movement to amend the Florida Constitution to require that the Legislature conduct its business in open meetings.!d. at 976. An open meetings amendment was proposed and "overwhelmingly approved by the voters" in 1990.!d. at 977. The very next year, the related issue of public access to records was pushed to the forcfl ont by a Florida Supreme Court decision holding that the Public Records Law did not apply to the courts or the Legislature. Locke v. Hawkes, Nos , 76803, 1991 WL (Fla. Nov. 7, 1991), vacated and superseded by 595 So. 2d 32 (Fla. 1992). The Sunshine Amendment was put on the general election ballot in November Gleason & Wilson, supra, at 979. Like the related open meetings amendment, it was overwhelmingly approved by the voters.!d. 18 A. 127

144 By its terms, the Sunshine Amendment guarantees "[e]very person... the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf." Fla. Const. art. I, 24(a). Pursuant to this provision, Florida citizens have "a fundamental constitutional right" of access to the records of Florida's public institutions. Rhea v. Dis/. Ed. of Trustees of Santa Fe College,- So. 3d-, No. IDII-3049, 2012 WL , at *3 (Fla. App. I Dist. July 19, 2012) (citing Fla. Const. art. I, 24(a)). This constitutional right specifically extends to "the legislative... branch[] of government and each agency or department created thereunder." Fla. Const. ati. I, 24(a). The rights created by the Sunshine Amendment are enforced and implemented through the Public Records Act, Fla. Stat I, for documents under the control of a public agency. The purpose of this Act '"is to open public records to allow Florida's citizens to discover the actions of their government."' Bent v. State, 46 So. 3d 1047, I 049 (Fla. App. 4 Dist. 20 I 0) (quoting Christy v. Palm Beach Cnty. Sheriff's Office, 698 So. 2d 1365, 1366 (Fla. App. 4 Dist. 1997)). Given the strong public policy in favor of disclosing public records, the Florida Supreme Comi has ruled that the Public Records Act must "be construed liberally in favor of openness, [with] all exemptions from disclosure [] constmed narrowly and limited in their designated purpose." Light bourne v. McCollum, 969 So. 2d 326, (Fla. 2007) (internal quotation marks and citation omitted). 8 8 Cases interpreting and applying the term "public record" in the agency context are equally applicable in the legislative context. State v. City of Clearwater, 863 So. 2d 149, 153 (Fla. 2003) (holding precedent regarding public access to records of the judicial branch applicable to case involving public access to records of agencies because the deiinition of 'judicial record" "is viliually identical to the legislative definition of 'public 19 A. 128

145 These same principles are embodied in Florida Statutes, Section , which implements the Sunshine Amendment for documents under the control of the Florida Legislature. That provision provides that "[i]t is the policy of the Legislature that eve1y person has the right to inspect and copy records of the Senate and the House of Representatives received in connection with the official business of the Legislature as provided for by the constitution of this state." Fla. Stat (1). Exceptions to this policy are permitted only if "specific public necessity justifies that public records be exempt from such inspection and copying."!d. And the nanow exceptions to public access that are permitted are lawful only if the legislature has followed the express procedure provided in Article I, Section 24(c) of the Florida Constitution, which requires that the exception be passed by a two-thirds vote of each chamber, state "with specificity the public necessity justifying the exemption and... be no broader than necessary to accomplish the stated purpose of the law." Fla. Canst. art. I, 24(c). The Sunshine Amendment and statutes implementing it do not leave any room for courts to excuse the Legislature from providing public access to documents based on common law privileges or policy considerations. The only exceptions a court may apply are those expressly established by statute. Thus, in Wait v. Florida Power & Light Co., 372 So. 2d 420, 424 (Fla. 1979), the Florida Supreme Court rejected a public utility commission's attempt to avoid disclosing public documents based on attorney-client privilege and the attorney work product doctrine, holding that "[i]fthe common law privileges are to be included as exemptions, it is up to the legislature, and not this Comi, to amend the [Public Records Act]." records' contained in section (1 )") (internal quotation marks and citation omitted). 20 A. 129

146 B. The documents Plaintiffs have requested arc public records and are not exempt from public access The documents and other materials Plaintiffs are seeking are clearly "public records" under the Sunshine Amendment and are not within any of the statutory exceptions to public access. These materials are described in the Romo Plaintiffs' First Request for Production of Documents (Exhibit C) and fall into the following categories: (I) Written or recorded communications between or among members, employees, and consultants of the House Redistricting Committee relating to redistricting, proposed redistricting maps, and the redistricting process; (2) Written or recorded communications relating to the subjects listed immediately above between or among (i) members, employees, and consultants of the House Redistricting Committee, and (ii) members of the Senate Redistricting Committee, map drawers for the House or Senate Redistricting Committee, incumbent members of the Florida delegation to the U.S. Congress, the Florida Governor, the Florida Attorney general, and the Florida Republican Party, or the Florida Republican National Committee; (3) Meeting agendas, announcements, minutes, recordings, and notes prepared by any member, employee, or consultant of the House Redistricting Committee relating in any way to redistricting or the redistricting process; and (4) Documents reflecting or relating to work performed by any expert retained by the House Redistricting Committee in connection with redistricting in 2011 or Under the language of Article I, Section 24(a), the Legislature must produce every document encompassed by these categories that (I) is a "public record," meaning any record "made or received in connection with the official business of any public body, officer, or employee of the state"; and (2) is not within a statutory exception to the Sunshine Amendment's requirements of public access. All of the documents that Plaintiffs seek meet these criteria. Under the Florida Supreme Court's holding in Wait, Defendants cannot withhold these documents on the basis oflegislative privilege. 372 So. 2d at A. 130

147 1. The documents Plaintiffs have requested are public records The documents Plaintiffs seek clearly relate to the Legislature's "official business." Article III, Section 16, of the Florida Constitution gives the Legislature responsibility for drawing the state's congressional districts. Accordingly, any document or other material created or received by the Legislature in the redistricting process is a public record under the Sunshine Amendment because it was "made or received in connection with the official business of[ a] public body, officer, or employee of the state." Fla. Cons!. mi. I, 24(a). Similarly, any materials in the Legislature's custody generated in the redistricting process are public records under Florida Statutes, Section , because they were "received in connection with the official business of the Legislature as provided for by the constitution of this state." Fla. Stat (I). Plaintiffs' document requests seek only materials made or received in connection with redistricting or the redistricting process. Because that is the case, all the materials Plaintiffs seek relate directly to "the official business" of the Legislature and members, employees, and consultants of the Legislature. The materials are therefore indisputably within the definition of "public records," as that term is used in the Sunshine Amendment and Florida Statutes, Section The Florida Supreme Court's interpretation of"public records" further confirms this conclusion. The Court has construed public records "to encompass all materials made or received by an agency, in connection with official business, which are used to 'perpetuate, communicate or formalize knowledge of some type."' Rhea, 2012 WL , at *3 (quoting Shevin v. Byron, Harless, Schaffer, Reid & Assocs., 379 So. 2d 633, 640 (Fla. 1980)). Written and recorded communications relating to the redistricting process, minutes of redistricting meetings, and work product from experts and 22 A. 131

148 consultants relating to redistricting are all materials used to "perpetuate, communicate or formalize knowledge of some type" and thus are within the Florida Supreme Court's construction of"public record." Defendants' obligation to provide access to these materials does not depend in any way on the physical format in which the materials exist: the "public records law is not limited to paper documents... it applies, as well, to documents that exist only in digital form." Nat'! Collegiate Athletic Ass'n v. Associated Press, 18 So. 3d 1201, 1207 (Fla. App. I Dis!. 2009). This principle matches the broad description of public records in Florida Statutes, Section ( 4), which includes "documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, or other material, regardless of physical form or characteristics." Consistent with this broad definition, Florida courts have regularly found that s are public records. See, e.g., Rhea, 2012 WL , at *3. See also Times Pub! 'g Co. v. City ofc!ea111'ater, 830 So. 2d 844, 847 (Fla. App. 2 Dist. 2002) ("Information stored on a computer is as much a public record as written documents in official files... Although digital in nature, there is little to distinguish... from... letters delivered to government workers via a government post office box and stored in a government-owned desk."). Phone records are also public records within the meaning of Section See Media Gen. Operation, h1c. v. Feeney, 849 So. 2d 3, 6 (Fla. App. I Dist. 2003) (holding cellular phone records of staff employees of the Florida House of Representatives for calls made in connection with the House's official business must be turned over in response to a public records request). 9 9 In Feeney, the House of Representatives agreed that the phone records generally were responsive to the records request, but resisted turning over unredacted records, arguing that the disclosure of the telephone numbers that the staffers called could result in 23 A. 132

149 2. There are no common law exceptions to the Sunshine Amendment's requirements Because the documents Plaintiffs seek are public records, Defendants cannot avoid producing them unless they demonstrate that the legislative privilege is expressly included in the statutory exceptions to the Sunshine Amendment. But Defendants cam10t make this showing: the exceptions set forth in Florida Statutes, Section (2), do not mention a legislative privilege and, as described, the Florida Supreme Court has already held that a common law privilege cmmot be implied into the exceptions. Wait, 372 So. 2d at 424. Florida Statutes, Section (2), lists nine narrow exceptions to the constitutional obligation to provide public access under the Sunshine Amendment. These exceptions address very specific types of documents, such as formal complaints about members of the Legislature, records prepared for use in executive sessions of the Senate, requests for advisory opinions on the application of the Legislature's ethical rules, and documents that could threaten a person's health and safety if released. None of the exceptions mentions or refers to a legislative privilege. The Florida Supreme Court's ruling in Wait confirms that there are no common law exceptions to the Sunshine Amendment. In that case, the Florida Power and Light Company requested records from the New Smyrna Beach Utilities Commission relating to its operations and maintenance of an electrical system. In resisting the request based on the attorney-client privilege and the attorney work product doctrine, New Smyrna argued that these "confidential privileges... [were], at the time the Public Records Act was enacted,... a part of the common law" and are therefore "common law privilege[].. unreasonable consequences to the persons called. The court found this argument unpersuasive and ordered the House to produce the umedacted records. Id. 24 A. 133

150 . exemptions 'provided by law."' 372 So. 2d at (citing Fla. Stat (2)(a)). The court squarely rejected this argument, holding that the Public Records Act does not contain any exemptions for common law privileges and that those privileges cannot be implied into the statute. Id. at 424. The court also rejected New Smyrna's argument that "public policy considerations compel recognition of these litigation-related privileges as exemptions to the act," stating that this "argument should be addressed to the legislature," not to the comi.!d. While Wait involved application of Florida Statutes, Section (2), its holding applies with equal force to Florida Statutes, Section (2). Both statutory provisions set forth exceptions to disclosure under the Sunshine Amendment and, at the time Wait was decided Section (2), like Section (2) today, did not list any common law privileges. Given this omission and the Florida Supreme Court's admonition that "all exemptions from disclosure [must] be construed narrowly and limited in their designated purpose," Lightbourne, 969 So. 2d at (internal quotation marks and citation omitted), it is not possible to conclude that the legislative privilege grants an exception to the constitutional right of access created by the Sunshine Amendment. Defendants' attempt to assert this privilege in response to Plaintiffs' document requests must be rejected. 3. The documents requested are not exempted by Florida Statutes, Section l(d) As previously noted, Section of the Fla. Stat. implements the Sunshine Amendment as it applies to public records requests from the Florida Legislature. See Fla. Stat (I). It sets forth nine narrow exceptions to the Legislature's constitutional obligation to provide public access to "all documents, papers, letters, maps, books, tapes, 25 A. 134

151 photographs, films, sound recordings, or other material, regardless of physical form or characteristics, made or received... in connection with the transaction of official business by the legislative branch."!d ( 4). Among them is an exception "from inspection and copying" for: A draft, and a request for a draft, of a reapportionment plan or redistricting plan and an amendment thereto. Any supporting documents associated with such plan or amendment until a bill implementing the plan, or the amendment, is filed.!d (2)(e). Defendants rely upon this exception to argue that the public has no constitutional right of access to any "legislative materials that are--or relate to--draft maps that were never filed as bills or amendments." Defs.' Mot. 15 (emphasis added). Defendants' argument must fail for several reasons. By its plain terms, Section only exempts (I) drafts of redistricting plans, (2) requests for drafts, or (3) -until a bill is.filed- a plan's "supporting documents." Thus, a record must fall into one of these three narrow categories to be covered by the exemption. See Lightbourne, 969 So. 2d at ("[A]ll exemptions from disclosure [must] be construed nan owly and limited in their designated purpose.") (internal quotation marks and citation omitted). Any and all other records made or received by the Legislature or by legislative staff in relation to the redistricting process-including any documents related to the enacted plan-are not exempt from disclosure. Moreover, each of the categories of documents addressed by Section (1) must also be construed narrowly and in accordance with their common and ordinary meaning. See id.; Donato v. Am. Tel. & Tel. Co., 767 So. 2d 1146, 1154 (Fla. 2000). Dei(mdants argue that the exception covers all "legislative materials that are--or relate to-draft maps that were never filed as bills or amendments." Defs.' Mot. 15 (emphasis 26 A. 135

152 added). But that is not what the statute says. The statute restricts access only to drafts, requests for drafts, and - until a bill is filed - "supporting documents." The term "supporting documents" is not defined in Section , but neither the general rule requiring that exceptions be construed narrowly, nor the legislative history of this exception specifically, suppmis Defendants' impermissibly broad construction of the term. In particular, Defendants' definition would equate "supporting documents" with "working papers" of the Legislature and its staff-an exception that was among the original exemptions to the Sunshine Amendment vetoed by the Governor. Gleason & Wilson, supra, at (discussing evolution of early exceptions to the Sunshine Amendment). Shortly after the Sunshine Amendment was enacted, the Senate proposed a bill that would have excepted both (1) "Requests for, and drafts of, bills, amendments, reapportionments plans, and redistricting plans, including supporting documentation," with no temporal limitation; and (2) "Working papers of employees, officers or members, relating to their official or legislative oversight responsibilities." FLA. S. JOURNAL, 1993 REG. SESS. 615 (amendment 1, 2(g), (h)). Before that bill was approved, the House amended the "working papers" exception to apply to "[w]orking papers of employees, officers, or members relating to their legislative responsibilities." FLA. H.R. JouRNAL, 1993 REo. SESS. 1515, 1516 (House amendment to Senate amendment 1, 2( c)). As noted above, Governor Chiles vetoed the bill. In doing so, he "wrote that he was concerned about the breadth of the exemptions for working papers and legislative drafts." Gleason & Wilson, supra, at 998. He stated that "these provisions... served to frustrate the will of the people as expressed in the passage of the [Sunshine Amendment]," "impede[] 'public understanding of influences on, and the purpose of, 27 A. 136

153 legislation, and diminish[] the ability of Floridians to hold their lawmakers accountable."'!d. (quoting Lucy Morgan, Records Secret Bill Is to Become Law, St. Petersburg Times, May 12, 1993, at B3). The Legislature held a special session and revised the exceptions bill "in an attempt to address the Governor's concerns." Id. Among the revisions that became law- and remain law today- was the omission of a broad "working papers" exception and the revision to the redistricting exception to make "supporting documents" public once a bill implementing a plan is filed.!d. at Defendants, however, would have this Comt read the te1m "supp01ting documents" so broadly that it is indistinguishable from the concept of working papers. But the Florida Supreme Court has mandated that such exceptions be read narrowly. Lightboume, 969 So. 2d at As such, "supporting documents" should be deemed to encompass only those materials that clearly and directly support a specific plan. Communications about the making of that plan should fall outside of the narrow sphere of documents subject to the exception. In addition to requiring disclosure of"[a]ny supporting documents associated" with the 2012 Plan now that a bill implementing the plan has been filed, Section (I) is also best read to require access to draft maps once a final version resulting from the drafting process is filed. In accordance with the Florida Supreme Court's direction that exemptions must be construed narrowly, any and all drafts of plans created during the 2012 congressional redistricting process (which began in 2011) should be deemed by this Court to be drafts of the 2012 Plan. Defendants' apparent attempt to characterize drafts of the 2012 Plan that were not ultimately approved reads the exception too broadly and in contrast to the common and ordinary meaning of the statutory 28 A. 137

154 language. By definition, a "draft" of a plan is a preliminary version of a plan, not necessarily bearing resemblance to the plan ultimately enacted. Plaintiffs do not seek materials related to drafts of plans from years past; they only seek materials related to this most recent re d tstnctmg... process. 10 Finally, for the reasons discussed in Section I of this Brief, if the only possible reading of the exception encompasses the materials that Plaintiffs seek in order to discover the intent of the makers of the 2012 Plan, Section (2)(e) is constitutionally invalid following the passage of Amendment This Court has the power to order Defendants to produce the requested documents Defendants' argument in the alternative that, "[ e ]ven if the public had access to exempt documents," Plaintiffs must "appeal" Defendants' decision to deny them access to these public records "to the Speaker of the House-not to the courts," Defs.' Mot. 16, is without merit. First, the House Rule that Defendants cite applies, at most, to documents received or created by the House of Representatives; Defendants cite no parallel rule in the Senate, whose Rules of Procedure do not appear to provide for any in-house appeals process. Second, the Speaker of the House is a party to this action. The House Rules do not state the mechanism by which a public records appeal must be taken or provide the 10 The terms "drafts" and "requests for drafts" must also be construed narrowly to include only any actual drafts or specific requests for preparation of the same. Thus, to the extent that a draft or request for drat! also includes some other communication related to the redistricting process-for example, if an incumbent Senator requested that a new draft of the plan be prepared so as not to threaten his or her seat-the exception in Section (2)( e) would not absolve the Legislature of its constitutional obligation to provide copies of these records in redacted form, subject to in camera review by the Court. That Defendants interpret these terms impermissively broadly is evidenced by their privilege logs. See, e.g., Exhibit Bat (asserting as protected by the legislative privilege several s "regarding a draft bill"). 29 A. 138

155 means by which the Speaker must convey his ruling on that appeal. Thus, his position in litigation should be construed as an assertion of his position that Plaintiffs' request for these materials was not "wrongfully... denied." Fla. H. Rep. R Third, under longstanding law, this Court plainly has the authority to determine whether the Speaker's refusal to produce these materials violates the Florida Constitution. See Douglas v. Webber, 128 So. 613, 615 (Fla. 1930) (holding that "in adjudicating rights in a justiciable case," Florida courts "may determine, in so far as the rights being adjudicated are involved, whether a power that has been exercised by the legislative department, as it affects the particular case... was exerted in the manner required by the Constitution"). And, where documents are wrongfully withheld, this Couti has the power to order the House to produce them. See Feeney, 849 So. 2d. at 6 (ordering House of Representatives to produce cellular phone records of staff employees in response to a public records request). See also Chiles v. Phelps, 714 So. 2d 453, 456 (Fla. 1998) (holding Florida courts can hear proceedings quo warranto to enforce the public's "right to have the legislature and its leaders exercise their powers in a constitutional manner"); Fla. Const. art. V, 5(b) (circuit courts have power to issue writs quo warranto ). 11 Finally, this issue comes before the Court on Defendants' motion for a protective order. Thus, Defendants have put in issue the legality of their refusal to produce these 11 The Florida Supreme Court has long distinguished between review of purely internal legislative rules-which are nonjusticiable-and legislative action which is either subject to constitutional restraints, or "which reaches out to effect some action or result outside of the legislature itself and therefore beyond their intemal procedures"-which is subject to judicial review and intervention Moffitt v. Willis, 459 So. 2d 1018, I (Fla. 1984). The House's refusal to produce these documents is both a refusal to comply with a constitutional duty and an action which reaches outside of the Legislature itself, to affect the public at large. 30 A. 139

156 documents. Under such circumstances, a conclusion that the Court is without power to determine whether these materials must be produced would be nonsensical. III. EVEN IF DEFENDANTS COULD CLAIM SOME FORM OF LEGISLATIVE PRIVILEGE, IT DOES NOT SUPPORT THEIR MOTION FOR A PROTECTIVE ORDER For the reasons set forth above, both the Florida Constitution and state statutes foreclose Defendants' claim of privilege. Their motion for a protective order should therefore be denied. But even were this Court to find Defendants' claim to a common law or implicit legislative privilege under these circumstances persuasive, their motion for a protective order is both overbroad and premature. Defendants seek nothing less than a blanket order prohibiting all testimonial and a significant amount of documentary discovery as to the intent of the drafters of the 2012 Plan, regardless of who is deposed or what they are asked. Not only would such an order render Amendment 6's prohibition on political gerrymandering essentially meaningless, it is not supported by either the decision in E~pedia-the only decision fl'dm the Florida courts to recognize a legislative privilege thus far-or case law interpreting the federal common law in this area. A. The compelling constitutional interest in knowing the Legislature's intent outweighs any interest advanced by the legislative privilege Even in the limited circumstances in which it has been recognized, the legislative privilege is not absolute and must give way to more important interests. As the court stated in E>.pedia, "[t]he court will always have to make a preliminary inquiry to determine whether the information [sought] is within the scope of the privilege and whether the need for privacy is outweighed by a more important governmental interest." &pedia, 85 So. 3d at 525 (emphasis added). See also United States v. Gillock, 445 U.S. 360, 374 (1980) (holding no evidentiary privilege for state legislator charged in federal 31 A. 140

157 criminal case based on balancing of interests); Trammel v. United States, 445 U.S. 40,50 (1980) (holding that evidentiary privileges must be "strictly construed" and applied "only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth") (internal quotation marks and citation omitted); Ji'la. Ass 'n of Rehabilitation Facilities, Inc. v. Fla. Dep 't of Health & Rehabilitative Servs., 164 F.R.D. 257, (N.D. Fla. 1995) (noting several factors courts must consider in determining whether a legislative privilege is applicable in any given case). Through enactment of Amendment 6, Florida's voters have done the balancing test for the court by establishing a compelling governmental interest in eliminating political gerrymandering- an interest that outweighs any interest legislators might have in hiding their intent in drafting the 2012 Plan. The Amendment outlaws any reapportionment plan drawn with the intent to favor a particular party or incumbent. The voters have thus declared that there is a compelling interest in knowing the Legislature's intent when it drafted a reapportionment plan and specifically whether the Legislature acted with a motive that the Florida Constitution forbids. Because knowledge of that intent goes to the heart of a constitutional right, the governmental interest at stake is of the highest order. Cj Tlv!H v. D.M T, 79 So. 3d 787, 799 (Fla. App. 5 Dist. 2011) (holding that "the Legislature's undeniably important role" in shaping policy "does not relieve the courts from the solemn duty to ensure the protection of constitutional rights"). In contrast to the compelling constitutional interest at stake, the alleged privacy interest that Defendants invoke carries little weight in this context. As Defendants' acknowledge, legislative privilege does not exist "to protect legislators' individual 32 A. 141

158 interests, 'but to support the rights of the people, by enabling their representatives to execute the functions of their office without fear."' Defs.' Mot. 14 (quoting Coffin v. Co_ffin, 4 Mass. I, 27 (1808)). In this case, the people have necessarily determined through the enactment of Amendment 6 that the procedural protection afforded by the legislative privilege must yield to the peoples' substantive right to congressional districts drawn without any intent to favor a particular party or incumbent. Indeed, if the procedural protection were to prevail, the peoples' substantive right to a reapportionment plan devoid of any favoritism would be effectively gutted. That is because the most effective way to learn of the Legislature's intent in drawing a reapportionment plan is to obtain information concerning the objectives and methods relied upon by the legislators, map drawers, legislative staff: and others who created the plan. Without this type of direct evidence, Amendment 6 could become an empty right. Under these circumstances, any legislative privilege must yield, as comts have found in analogous situations. See United States v. Irvin, 127 F.R.D. 169, (C.D. Cal. 1989) (finding federal common law deliberative process privilege overridden in VRA case that placed legislative deliberations themselves at issue). See also In re Subpoena Duces Tecum, 145 F.3d at 1424 ("[T]he [privilege] is absent in these cases because if either the Constitution or a statute makes the nature of governmental oilicials' deliberations I he issue, the privilege is a nonsequitur."); Baldus v. Brennan, Nos. 11-CV-562, 11-CV-101 1, 2011 WL , at *2 (E. D. Wise. Dec. 8, 2011) ("[G]iven the serious nature of the issues in this case and the government's role in crafting the challenged redistricting plans,... legislative privilege simply does not apply..."). 33 A. 142

159 To demonstrate the peril of allowing legislative privilege to trump Plaintiffs' interest in learning about the intent underlying the congressional reapportionment plan, consider a hypothetical in which a member of the House Redistricting Committee instructs a House employee with responsibility for drafting a reapportionment plan to draw a particular district in a way that would ensure the re-election of an incumbent congressman. Upon receiving an from the member, the employee deliberately creates district boundaries that ensure victory for the incumbent, and that district becomes part of the plan the Legislature eventually passes. Although the reapportionment plan would obviously violate Amendment 6's prohibition against favoring incumbents, under Defendants' theory of legislative privilege, the citizens of Florida could never learn that the Legislature acted illegally. The House member would be protected from disclosing his unlawful purpose, the House employee would be insulated from revealing the improper instruction he received, and the offending from the member to the employee would never see the light of day. The practical effect, of course, would be to efiectively read the improper "intent" language out of Amendment 6 and to give the Legislature continued license to engage in precisely the type of political favoritism and gerrymandering that Amendment 6 was designed to eliminate. The hypothetical also highlights the important difference between this case and the cases cited by Defendants in which courts found that testimony from legislators is not reliable evidence of the meaning of a piece of legislation. See Defs.' Mot Unlike in those cases, Plaintiffs here are seeking information about the legislative process itself and whether the Legislature acted unconstitutionally. The intent of the legislators in 34 A. 143

160 drafting the 2012 Plan is the central question at issue. Thus, unlike the cases Defendants cite, the discovery is not sought to support a claim about the interpretation of legislation. Defendants' assertion that the discovery Plaintiffs seek is irrelevant and "of no probative value," Defs. Mot. 17, hardly merits a response. Evidence of the intent of the drafters of the 2012 Plan is plainly relevant, as confirmed by the Florida Supreme Court's statement that "there is no acceptable level of improper intent." In re Legislative Apportionment 1176, 83 So. 3d at 617 (emphasis added). In fact, even the decision by Judge Hinkle (upon which Defendants elsewhere heavily rely) found testimony from legislators about their intent and motivation "obviously" relevant. See Hr' g Tr. 91:1-11. See also J. Hinkle Order 2-3. Judge Hinkle's conclusion in this regard was consistent with the prevailing judicial opinion about the relevance of legislative intent in redistricting cases. See, e.g., Baldus, 2011 WL , at *I; Comm.for Ci Fair & Balanced Map v. Ill. State Bd. of Elections, No. II C 5065, 2011 WL , *3 (N.D. Ill. Oct. 12, 20 II). As one federal judge noted in a redistricting case alleging discriminatory intent, "[i]t would be odd were it otherwise... [as m ]otive is often most easily discovered by examining the unguarded acts and statements of those who would otherwise attempt to conceal evidence of... intent." Cano v. Davis, 193 F. Supp. 2d 1177, 1182 (C.D. Cal. 2002) (Reinhardt, J., concurring in patt). See also id. at 1181 ("[T]he statements oflegislators involved in the process, especially leaders and committee chairmen, as well as the authors of the legislation involved, may in some instances be the best available evidence as to legislative motive.") (citing Vi//. of Arlington Heights v. Metro. Housing Dev. C01p., 429 U.S. 252, 267 (1977)). 35 A. 144

161 B. Even if the legislative privilege applied, it would not support the broad protective order that Defendants arc seeldng Even where courts have found that the legislative interest in privacy outweighs the governmental interest in the litigation, the privilege does not serve as a blanket protection for all communications by legislators and their aides equally. Instead, claims of privilege must be evaluated in a specific factual context, as the privilege could apply in some circumstances but not in others. Defendants' motion is flawed because it seeks a broad pronouncement that legislative privilege applies, without linking the claim of protection to specific documents or to specific subjects and questions addressed to witnesses. While Defendants' motion should be denied in its entirety, at a minimum, the Court should deny the motion on the ground that it lacks the factual context needed to assess the claim of legislative privilege. For example, the identities of experts and/or consultants retained to assist in drafting the 2012 Plan should not be privileged. Comm. for a Fair & Balanced Map, 2011 WL , at *10. The same is true of any objective facts upon which the legislators or their staff relied in drawing the plan. I d. This would include, for example, any data on partisan affiliation in proposed districts that legislators may have considered, as well as any data on incumbent addresses that legislators may have considered. In addition, any privilege enjoyed by legislators or their staff is waived with regard to their communications with external consultants and experts, and Plaintiffs should be permitted to ask about such communications. See id.; see also Baldus, 2011 WL , at *2 36 A. 145

162 (finding legislature "waived its legislative privilege [in redistricting case] to the extent that it relied on... outside experts for consulting services"). 12 In sum, the legislative privilege comes with multiple exceptions and may be waived. Thus, even if Defendants could show that the privilege applies- which they cannot- their motion for a blanket protective order is not justified, and a motion for a narrower protective order would be premature. Instead of receiving blanket, undifferentiated protection from discovery, Defendants should be required to attend the depositions noticed by Plaintiffs and to answer Plaintiffs' questions. Any claim of privilege should be made specifically in response to a particular question, so that Plaintiffs can test the claim of privilege and bring a motion to compel, if necessary. See, e.g., City of Pompano Beach v. Swerdlow Lightspeed Mgmt. Co., 942 So. 2d 455, (Fla. App. 4 Dist. 2006) (dismissing petition challenging court order requiring city commissioners to appear for deposition as "premature" where respondents had not yet formulated their deposition questions); Fla. Ass'n of Rehabilitation Facilities, 164 F.R.D. at 260 ("The witnesses here have not appeared at their depositions and asserted their privilege in the context of specific questions... [therefore] the question of the operation of a privilege in a specific setting is not ripe."). Similarly, any documents withheld on the basis oflegislative privilege must be disclosed on a privilege log and potentially made available to the Court for in camera review. 12 These external consultants may include but are not limited to lobbyists and members of party committees or campaign committees, in addition to any outside consultants specifically consulted for assistance with preparing the plan. Comm. for a Fair & Balanced Map, 2011 WL , at * A. 146

163 CONCLUSION For the foregoing reasons, the Court should deny Defendants' motion for a rimwy joseph.hatchett@akerman.com SecondaJJ' martha.parramore@akerman.com Akerman Senterfitt 106 East College Avenue, Suite 1200 Tallahassee, Florida Telephone: (850) Telecopier: (850) I 03 THOMAS A. RANGE PrimWJ' tom.range@akerman.com Secondary martha.parramore@akerman.com Akem1an Senterfitt I 06 East College Avenue, Suite 1200 Tallahassee, Florida 3230 I Telephone: (850) Telecopicr: (850) I 03 JOHN DEVANEY (admitted pro hac vice) Primal)' JDevaney@perkinscoie.com SecondWJ' S Yarboro ugh@perkinsco i e. com PERKINS COlE, LLP h St., N.W., Suite 600 Washington, D.C Telephone: (202) Telecopier: (202) KEVIN J. HAMILTON (admitted pro hac vice) Primal)' KHamilton@perkinscoie.com Secondwy NPurcell@perkinscoie.com ABI-lA KHANNA (admitted pro hac vice) PrimWJ' AKhanna@perkinscoie. com Secondw)' RKelly@perkinscoie.com PERKINS COlE, LLP 1201 Third Ave, Suite 4900 Seattle, W A I Telephone: (206) Telecopier: (206) Attorneys for Romo Plaintiffs 38 A. 147

164 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by Electronic Mail this 28th day of the attached service list: 1gust to each of the following parties on /.? 1 39 A. 148

165 Daniel E. Nordby, General Counsel Ashley Davis, Assistant General Counsel Florida Department of State R.A. Gray Building 500 S. Bronaugh Street, Suite I 00 Tallahassee FL daniel.nordbv@dos.myflorida.com adavis@dos.state.fl.us Michael A. Carvin Louis K. Fisher JONES DAY 51 Louisiana Avenue N.W. Washington, D.C macarvin@jonesday.com lkfisher@jonesday.com Leah L. Marino, Deputy General Counsel THE FLORIDA SENATE Suite 409, The Capitol 404 South Monroe Street Tallahassee, FL marino.lcah@flsenate. gov Peter M. Dunbar Cynthia Skelton Tunnicliff PENNINGTON, MOORE, WILKINSON, BELL & DUNBAR, P.A. 215 South Monroe Street, 2d Floor Tallahassee, FL pete@penningtonlaw.com cynthia@penningtonlaw.com Charles T. Wells George N. Meros, Jr. Jason L. Unger Allen Winsor Charles B. Upton II GRAY ROBINSON, P.A. Post Office Box Tallahassee, FL charles. we lls@gra y-ro bi nson.com SERVICE LIST george.meros@gray-robinson.com jason.unger@gray-robinson.com allen.winsor@gray-robinson.com CB.Upton@gray-robinson.com Charlene.roberts@gray-robinson.com mwilkinson@gray-robinson.com teresa.barreiro@gray-robinson.com Miguel A. De Grandy MIGUEL DE GRANDY, P.A. 800 Douglas Road, Suite 850 Coral Gables, FL mad@degrandylaw.com George T. Levesque, General Counsel FLORIDA HOUSE OF REPRESENTATIVES 422 The Capitol Tallahassee, FL george.levesgue@myfloridahouse.gov Ronald G. Meyer Lynn Hearn MEYER, BROOKS, DEMMA & BLOHM 131 North Gadsden Street P.O. Box 1547 Tallahassee, FL nneyer@meyerbrookslaw.com lhearn@meyerbrookslaw.com Jessica Ring Amunson Michael B. DeSanctis Kristen M. Rogers Paul M. Smith Christopher Deal JENNER & BLOCK LLP 1099 New York Ave, N.W., Suite 900 Washington, D.C jamunson@jenner.com mdesanctis@jenner.com krogers@jenner.com psmi th@j enner. com cdeal@jenner.com 40 A. 149

166 J. Gerald Hebert J. GERALD liebert, P.C. 191 Somervelle Street, Unit 415 Alexandria, VA Bruce V. Spiva, Esq. THE SPIV A LAW FIRM PLLC 1776 Massachusetts Avenue, N.W. Suite 601 Washington, D.C bspiva@spivafirm.com Timothy D. Osterhaus, Deputy Solicitor General Blaine Winship, General Counsel OFFICE OF THE ATTORNEY GENERAL The Capitol, PL-0 I Tallahassee, FL Timothy.osterhaus@myfloridalegal.com Blainc.winship@myfloridalegal.com Stephen Hogge STEPHEN HOGGE, ESQ., LLC 117 South Gadsden Street Tallahassee, FL Stephen@stephenhoggeesg.com Charles G. Burr BURR & SMITH, LLP Grand Central Place 442 W. Kennedy Blvd., Suite 300 Tampa, FL cburr@burrandsmithlaw.com Allison J. Riggs Anita S. Earls SOUTHERN COALITION FOR SOCIAL JUSTICE 1415 W. Highway 54, Suite 101 Durham, NC Allison@southerncoalition.org anita@southerncoalition.org Victor L. Goode Dorcas R. Gilmore NAACP 4805 Mt. Hope Drive Baltimore, MD vgoode@naacpnet.org dgilmore@naacpnet.org Harry 0. Thomas Christopher B. Lunny RADLEY THOMAS YON & CLARK, P.A. 301 S. Bronough Street, Suite 200 Tallahassee, FL hthomas@radeylaw.com clunny@radeylaw.com 41 A. 150

167 TAB 8

168 IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT IN AND FOR LEON COUNTY, FLORIDA, - n RENE ROMO, an individual; BENJAMIN WEAVER, an individual; et al., v. Plaintiffs, KENNETH W. DETZNER, in his official capacity as Florida Secretary of State; PAMELA JO BONDI, in her capacity as Attorney General, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ~""'~r Or-; "Y-AJ n:::::.c" 0 (""l C~(!1 :x::.-;o -K'l:;; -<C:-. -f'. --n-lrr. -n-r. oo'" CASE NO.: 2012-CA-0~ 1>... ~, c: (i) ~ en -o :::!t -f."' cj1 -.J,...,n -l- rn ~ 0 TIIE LEAGUE OF WOMEN VOTERS OF FLORIDA, et al., v. Plaintiffs, KENNETH W. DETZNER, in his official capacity as Florida Secretary of State; THE FLORIDA SENATE; et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO.: 2012-CA COALITION PLAINTIFFS' OPPOSITION TO LEGISLATIVE DEFENDANTS' MOTION FOR PROTECTIVE ORDER BASED ON LEGISLATIVE PRIVILEGE INTRODUCTION The ftrst line of the Florida Constitution states that "all political power is inherent in the people." FLA. CoNST. Art. 1, 1. In reaction to decades of blatant partisan gerrymandering and incumbent protection by the Florida Legislature, the Florida voters in November 2010 passed the "Fair Districts Amendments" to the Florida Constitution, which explicitly prohibit the state A. 151

169 Legislature from drawing apportionment plans or districts "with the intent to favor or disfavor a political party or incumbent." FLA. CONST. Art. 3, 20, 21. In this case, Plaintiffs seek vindication of their rights under the Fair Districts Amendments, and specifically Amendment 6, ''to elect representatives in a fair manner so that each person's vote com1ts equally and so that all citizens receive 'fair and effective representation.'" In re Senate Joint Resolution of Legislative Apportionment 1176 ("In re Legislative Apportionmenf'), 83 So. 3d 597, 600 (Fla 2012). Granting the Legislative Defendants' motion for a broad protective order that would enable them to conceal from Plaintiffs and the public the most direct evidence of their intent during the redistricting process would frustrate the will of the people clearly expressed in the Fair Districts Amendments. It is also unjustified under existing law. 1 Further, both this Court and the Florida Supreme Court have stated that looking only at the face of the congressional map and the written legislative history of its passage is likely insufficient to determine the Legislature's intent. Thus, if the Legislative Defendants are permitted to shield from discovery all non-public documents and testimony regarding their intent in enacting a congressional map with such demonstrable partisan effects, they may succeed in preventing Plaintiffs from obtaining the very type of evidence this Court and the Supreme Court have said is necessary to determine whether the Legislature's actions violated the Fair Districts Amendments. This would effectively render the Amendments unenforceable. The League of Women Voters of Florida, the National Council of La Raza, Common Cause Florida, and four individual registered Florida voters (the "Coalition Plaintiffs") respectfully submit this brief in opposition to the Legislative Defendants' Motion for Protective 1 Moreover, to the extent such a privilege even arguably applies in this case, it may have been waived to the extent the Legislature used outside consultants to prepare the congressional map. 2 A. 152

170 Order Based on Legislative Privilege (''Defendants' Motion"). In addition to these and other arguments set forth below, the Coalition Plaintiffs adopt and incorporate herein the arguments advanced by the Plaintiffs in Romo eta!. v. Detzner et al. in their Opposition to Defendants' Motion. Defendants' motion should be denied. BACKGROUND I. THE FAIR DISTRICTS AMENDMENTS CHANGED THE LEGAL LANDSCAPE BY MAKING INTENTIONAL PARTISAN GERRYMANDERING AND INTENTIONAL INCUMBENT PROTECTION UNCONSTITUTIONAL IN FLORIDA On November 2, 2010, Florida voters took the historic step of amending their state Constitution to restrict the discretion of the Florida Legislature in the redistricting process. The Fair Districts Amendments imposed new restraints on the Legislature designed to ensure that voters will choose their representatives, rather than having the representatives choose their voters. By an overwhelming margin, Florida citizens amended their state Constitution by adopting two provisions that provide standards the Legislature must abide by when drawing state legislative and congressional districts. The purpose of the Fair Districts Amendments is to prevent partisan gerrymandering and incumbency protection, and to protect the traditional redistricting principles of equal population, compactness, contiguity, and respect for political and geographic boundaries. 2 In supporting the Fair Districts Amendments, the voters were responding to a long history of political gerrymandering in Florida. See Motion of Plaintiffs The League of Women Voters of Florida, et al., For Summary Judgment on the Facial Unconstitutionality of the Legislature's Congressional Redistricting Plan Or, Alternatively, For Preliminary Injunctive Relief and 2 Amendment 5 and 6 adopted identical standards. Amendment 5 governs legislative redistricting, whereas Amendment 6, at issue in this case, governs congressional redistricting. 3 A. 153

171 Memorandum of Law in Support at 3-4 (hereinafter, "Coalition Summary Judgment Brief'). Indeed, in the 2002 redistricting cycle, the Legislature "stipulated... at trial" that in drawing the last congressional map, ''the intent of the Florida legislature, comprised of a majority of Republicans, was to draw the congressional districts in a way that advantages Republican incumbents and potential candidates." Martinez v. Bush, 234 F. Supp. 2d 1275, , 1340 (S.D. Fla 2002) (the "legislature's overriding goal with respect to congressional reapportionment was to adopt a plan that would... maximize the number of districts likely to perform for Republicans''). The Fair Districts Amendments made such partisan and incumbent gerrymandering unconstitutional under the Florida Constitution. In passing the amendments, the voters emphatically expressed their desire to rid the state redistricting process of rampant and acknowledged partisan and incumbent favoritism. They sought to eliminate back-room dealing and to ensure that Florida's voting districts are drawn to benefit the people, not the self-serving interests of politicians. The Fair District Amendments completely changed the legal landscape for redistricting in Florida and impose a substantial limitation on legislators' discretion in drawing reapportionment plans and voting districts. This restriction is unprecedented for Florida's state legislators; there is no other provision of Florida law that imposes a similar prohibition on them. In order to eliminate the partisan and incumbent favoritism that has pervaded the redistricting process in Florida, the Amendments focus squarely on the intent of the legislators in drawing apportionment plans and districts. As the Florida Supreme Court has recognized, these new legal obligations "requir[ e J a commensurately more expanded judicial analysis oflegislative compliance." In re Legislative Apportionment, 83 So. 3d at 607. The Court has a "constitutional obligation to conduct... the heightened review contemplated and expressed by the citizens of Florida who voted to add this 4 A. 154

172 amendment to our constitution." ld at 687 (Lewis, J. concurring). Assessing compliance with the Constitution now requires an inquiry into the intent of the legislators and the decision making process that resulted in the challenged congressional plan. In the words of the Florida Supreme Court, under the new Amendments ''there is no acceptable level of improper intent." Jdat617. II. THE LEGISLATIVE DEFENDANTS' MOTION FOR A PROTECTIVE ORDER Defendants seek a blanket protective order that would prevent Plaintiffs from asking state legislators or any of their staff members about what transpired during the redistricting process and from gaining access to any draft maps - or any supporting documents - that might evidence the intent of the legislators. 3 Thls request for a protective order is the latest in a series of efforts by state legislators to frustrate the people's desire to limit the Legislature's discretion during the redistricting processflrst by attempting to prevent the passage of the Fair District Amendments in their current form 4 3 It is clear that much of the redistricting process took place behind closed doors, and that if Plaintiffs are unable to ask about such non-public discussions, the most direct evidence of legislators' intent will be shielded from view. For instance, as part of the Senate redistricting process, there were meetings between legislative staff and, in some instances, the leadership of the redistricting committees and individual Senators to discuss their individual districts. Fla. S. Comm. on Reapportionment, Transcript of proceeding at (Dec. 6, 2011) (Tallahassee, Fla.) (Statements of Sens. Rich and Gaetz and Staff Director of the Senate Reapportionment Committee John Guthrie). There are no transcripts of these individual meetings, and thus, no public record of whether any legislators made statements in those meetings that betray an intent to favor an incumbent or party. 4 The Florida Supreme Court removed the legislators' alternative proposal from the ballot. Fla. Dept. of State v. Fla. State Conf of NAACP Branches, 43 So. 3d 662,662 (Fla. 2010). The Court noted that the Legislature's proposal was misleading: "While purporting to create and impose standards upon the Legislature in redistricting, the amendment actually eliminates actual standards and replaces them with discretionary considerations." ld 5 A. 155

173 and then, after it passed, by challenging the Amendments in federal court. 5 Through the current motion, the Legislative Defendants attempt to shield from Plaintiffs, the public, and the Court the best and most direct evidence of intentional partisan gerrymandering and incumbent favoritismthe very behavior Florida voters amended their Constitution to eliminate. ARGUMENT I. APPLYING LEGISLATIVE PRIVILEGE TO PREVENT PLAINTIFFS FROM OBTAINING THE REQUESTED DISCOVERY WOULD CONFLICf Wlffi THE PURPOSES OF THE FAIR DISTRICTS AMEND:MENTS AND THWART THE WILL OF THE PEOPLE Granting Defendants' motion would impose a substantial barrier to the Court's ability to assess compliance with Amendment 6 and Plaintiffs' efforts to uncover evidence of the Legislature's intent in adopting the congressional map- a map the Coalition Plaintiffs have shown bears all the outward hallmarks of unconstitutional incumbent favoritism and partisan gerrymandering. 6 As discussed below, despite the Legislative Defendants' contentions, Florida law does not support application oflegislative privilege to allow Defendants to avoid the discovery Plaintiffs seek. To the contrary, applying the privilege here would be inconsistent with the Florida Constitution and would thwart the will of the people as expressed in Amendment 6, which puts the intent of the legislators involved in drawing the challenged map squarely at issue. "Constitutional provisions must never be construed in such a manner as to make it possible for the will of the people to be frustrated or denied." In re Legislative Apportionment, 83 So. 3d at 631 (quoting Lewis v. Leon Cnty., 73 So. 3d 151, (Fla. 5 The legislators unsuccessfully challenged the amendment in Brown v. SecyofState, 668 F.3d 1271 (11th Cir. 2012). 6 See Coalition Summary Judgment Brief at A. 156

174 2011)). ''Every word of the Florida Constitution should be given its intended meaning and effect." In reapportionment Law, etc.j 263 So. 2d 797, 807 (Fla. 1972). The Legislative Defendants' assertion oflegislative privilege in this matter is yet another attempt to eviscerate the Fair Districts Amendments by shielding from discovery the most direct, and possibly the only, source of evidence of improper legislative intent; the testimony and documents of the legislators and staff who drew and enacted the map, and even potentially thirdparty consultants. 7 Indeed, allowing the use of the privilege here would provide legislators - particularly those acting with prohibited intent- a clear path to circumvent the Constitution and a free pass to do so. It will mean that the very behavior that the people of Florida, through their Constitution, have forbidden, i.e., backroom deals favoring or disfavoring a party or an incumbent, may be conducted with impunity so long as legislators and their staff are careful enough not to reveal their intent on the public record. This was clearly not the people's will in enacting the Fair Districts Amendments -which the Florida Supreme Court has held permit "no 7 Defendants have refused even to identify outside consultants who were involved in the redistricting process. In response to the Coalition Plaintiffs' Interrogatories and Document production requests requesting the identify of outside consultants or organizations and production of documents pertaining to communications with them, the Legislative Defendants do not deny that they used outside consultants, but decline even to provide their identities, claiming that information is protected from discovery. See Florida Senate's Resp. and Objections to LOWV Pls' First Req. for Interrogs, Responses to lnterrogs. 1, 2, Exhibit 1 hereto; Florida House of Representatives' Resp. and Objections to LOWV Pls' First Interrogs and Req. for Produc. Of Docs.: Responses to Req. for Prod. 7, 13 and Response to Interrog. 1, Exhibit 2 hereto. Not only does this prevent Plaintiffs from seeking information from those sources, it precludes an assessment of whether the privilege has been waived. Even if this court were to find that legislative privilege does potentially apply, the privilege has likely been waived. As noted by one Court, it is "all but disingenuous" for the state legislature to claim legislative privilege in a proceeding determining the constitutionality of the Legislature's actions, when the Legislature "clearly did not concern itself with maintaining that privilege when it hired outside consultants to help develop its plans." Baldus v. Members of the Wis. Gov't Accountability Bd., 2011 U.S. Dist. LEXIS , *7 (E.D. Wis. Dec. 8, 2011) (citation omitted). 7 A. 157

175 acceptable level of improper intent." In re Legislative Apportionment, 83 So. 3d at 617 (emphasis added). Neither the Florida Constitution nor any Florida statute provides for a legislative privilege for Florida state legislators. As discussed below, one court has recently recognized a limited common law legislative privilege for Florida state legislators. This limited common law privilege should not be permitted to override a constitutional provision expressing the will of the people. D. THE LIMITED COMMON LAW PRIVILEGE RECENTLY RECOGNIZED FOR FLORIDA STATE LEGISLATORS DOES NOT JUSTIFY NONDISCLOSURE IN THIS CASE Under Florida law, the legislative privilege is quite limited and does not shield production of documents and testimony where, as here, the Florida Constitution requires inquiry into legislative intent. The Legislative Defendants rely heavily on the one case that has directly addressed the question of whether there is a legislative privilege for Florida state legislators, Florida House of Representatives v. Expedia, 85 So. 3d 517 (Fla. Dist. Ct. App. 1st Dist. 2012). This reliance is misplaced. Expedia supports disclosure in this case. In Expedia, the First District Court of Appeal found that, despite the fact that neither Florida's Constitution nor Florida's statutes provide for such a privilege, Florida state legislators may assert a limited legislative privilege based on common law. However, the Expedia court made clear that the legislative privilege it was recognizing for the first time under Florida law "is not absolute." Expedia, 85 So. 3d at 525 (emphasis added). The court emphasized tha~ "[a] court will always have to make a preliminary inquiry to determine whether the information is within the scope of the privilege and whether the need for privacy is outweighed by a more important governmental interest." /d at 525 (emphasis added). In this matter, it could not be 8 A. 158

176 clearer that the enforcement of the voters' constitutional right to fair districts far outweighs whatever minimal interest, if any, the Legislature has in shielding its deliberations over the very public business of redistricting from disclosure. "The obligations set forth in the Florida Constitution [by the Fair Districts Amendments] 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."' In re Legislative Apportionment, 83 So. 3d at 600. In Expedia, the dispute that gave rise to the court's application oflegislative privilege was peripheral to the case, and the Court noted that Expedia claimed to need the subpoenaed documents to refute a potential argument that Expedia had waived a privilege, which the opposing party had not even raised. In that context, the court determined that "no [important governmental] interest has been demonstrated in the present case.'' Expedia, 85 So. 3d at 525. This case is at the opposite end of the spectrum from Expedia. Plaintiffs seek the most direct and potentially the only available evidence that the Florida Legislature violated the state's Constitution in order to make out their core claims in this action. Here, the important governmental interest at stake clearly outweighs the legislators' claimed need for privacy. Plaintiffs seek to vindicate the people's constitutional right to a fair and unbiased reapportionment plan that will give them a true opportunity to elect the political representatives of their choice, as opposed to the candidates favored by the powers-that-be in the current Legislature. The discovery sought by Plaintiffs would be highly probative, since improper legislative intent would establish a violation of Amendment 6, and the testimony and 9 A. 159

177 documents requested will likely be the best available evidence of the legislators' intent. 8 It is unlikely that revealing information about the legislators' intent will be available to Plaintiff's through other means. 9 Further, obtaining this evidence is vital to Plaintiffs' case, as both this Court and the Florida Supreme Court have stated that the partisan results of the Legislature's actionsevidenced by the map itself-are likely insufficient to prove the legislators' intent. See Order Denying Pls.' Summary Judgment Mot at 8-9 ("There are simply too many other factors at play... to find unlawful intent based merely on the projected partisan breakdown of the congressional plan.") (citing In re Legislative Apportionment 83 So. 3d at ). See also In 8 "[M]otive is often most easily discovered by examining the unguarded acts and statements of those who would otherwise attempt to conceal evidence of... intent." Cano v. Davis, 193 F. Supp. 2d 1177, 1182 (C.D. Cal. 2002) (Reinhardt, J., concurring in part). "The statements of legislators involved in the process, especially leaders and committee chairmen, as well as the authors of the legislation involved, may in some instances by the best available evidence as to legislative motive." Id. Moreover, as noted below, this Court and the Supreme Court have already rejected the very argument Defendants are making here - that the face of the statute and other objective indicia of legislative intent are sufficient to determine whether the Legislature has complied with the Amendments. See Order Denying Pls.' Summary Judgment Mot at 8-9; In Re Joint Resolution of Legislative Apportionment 2-B, 89 So. 3d 872, 897 (Fla. 2012). 9 Defendants suggest in their brief that "legislative motive is most appropriately ascertained from objective evidence, such as the enactment itself and the legislative record," Defs Mot. p. 19. They point out that there is a substantial legislative record available to Plaintiffs in publicly available sources and through documents being produced. Id at 21. However, during the redistricting process that led to the congressional map, all of the legislators were aware of the proscriptions of Amendment 6. Legislators were unlikely to make damning statements in public, and indeed during the public hearings on redistricting, the Chairman of the Senate Reapportionment Committee, Don Gaetz, wrote a letter to his Senate colleagues stating that leaders of both chambers had agreed lawmakers "will not be recognized for comments or discussion or even for questions" at the hearings. Bill Kaczor, "Redistricting Group Calls Fla Hearings 'Charade'" Real Clear Politics, June 14,2011, /ap/politics/20 11/Jun/14/redistricting_group _calls_ fla_hearings_charade _.html; see also Aaron Deslatte, "Florida Legislators Gird for Redistricting Battles," Orlando Sentinel, June 19, 2011, /articles.orlandosentinel.com/ /news/os-redistricting-battle-begins _1_ incumbents-or-political-parties-legislative-districts-congressional-districts (reporting that "Florida House and Senate leaders have already instructed their members to zip their lips during public hearings this summer."). 10 A. 160

178 Re Joint Resolution of Legislative Apportionment 2-B, 89 So. 3d 872, 897 (Fla. 2012) ("Restricted to only a facial review of the Legislature's intent, there will be times when this Court may seriously question the drawing of certain lines or the partisan balance of the plan but nevertheless uphold it because impermissible intent has not been proven based on the limited nature of the record before us"). Thus, if the Legislative Defendants are permitted to shield from discovery documents and testimony regarding their intent in enacting a congressional map with such demonstrable partisan effects, they may succeed in preventing any meaningful inquiry into whether their actions violated the Fair Districts Amendments, effectively rendering the Amendments unenforceable. However far the limited legislative privilege announced in Expedia extends, it should not extend that far. On the other side of the balance required by Expedia, there is no apparent legitimate need for legislators and their staff to withhold documents and information concerning their reasons for drawing the congressional map the way they did. Apart from general assertions about the need of legislators to be free from the supposedly chilling effects of disclosure of their redistricting work prior to announcing and enacting the final product, see, e.g., Defs Mot at 14, 16-17, the Legislative Defendants make no serious case concerning the need for privacy with regard to their redistricting deliberations. That is not surprising. Redistricting is public business that plays a "crucial role... with respect to the right of citizens to elect representatives." In re Legislative Reapportionment, 83 So. 3d at 600. "Indeed, the right to elect representatives - and the process by which we do so - is the very bedrock of our democracy.'' Id The Fair Districts Amendments reflect the people's will that the Legislature redistrict in an open and fair manner, which is free of the partisan and incumbent-protecting taint so prevalent in past cycles. See id at 599 ("With the recent addition 11 A. 161

179 of [Amendment 6] to article III of the Florida Constitution. the Legislature is governed by a different and more comprehensive constitutional measurement than before - the limitations on legislative authority in apportionment decisions have increased and the constitutional yardstick has more measurements"). As the court opined in Baldus v. Members of the Wis. Gov't Accountability Bd., 843 F. Supp. 2d 955, 959 (E.D. Wis. 2012), "the truth here-regardless of whether the Court ultimately finds the redistricting plan unconstitutional - is extremely important to the public, whose political rights stand significantly affected by the efforts of the Legislature. On the other hand, no public good suffers by the denial of privilege in this case." There is no legitimate reason for relevant information about the Legislature's intent in drawing the congressional map to be shielded from public view; it must be disclosed so that Florida citizens may see and the Court may determine whether the Legislature faithfully complied with the requirements of the Florida Constitution. Applying the Expedia court's balancing test to the facts of this case weighs heavily in favor of allowing the discovery Plaintiffs' seek. This Court should not expand the legislative privilege to enable Defendants to avoid this discovery. ID. DECISIONS FROM MANY OTHER COURTS SUPPORT PLAINTIFFS' POSITION THAT THE LEGISLATIVE P~EGE IS A QUALIFIED PRIVILEGE AND DOES NOT APPLY HERE A. Legislative Privilege Does not Permit Legislators to Avoid Disclosure where, as Here, the Plaintiffs' Interest in Obtaining the Discovery Sought Outweighs the Legislators' Interest in Confidentiality. As in Expedia, other courts, including the United States Supreme Court, have recognized that to the extent a legislative privilege exists, it is a qualified privilege that must yield in certain circumstances, and the need for requested testimony or documents may outweigh any arguable 12 A. 162

180 harm to the legislative process caused by requiring legislators to provide them. For instance, in US. v. Gillock, 445 U.S. 360 (1980), the Supreme Court found that the privilege did not apply to state or local legislators in federal criminal prosecutions. Gillock, 445 U.S. 360 at 373 ("[W]e believe that recognition of an evidentiary privilege for state legislators for their legislative acts would impair the legitimate interest of the Federal Government in enforcing its criminal statutes with only speculative benefit to the state legislative process."); Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252 (1977) (stating that in extraordinary instances members of a legislative body might be called to testify at trial in civil case concerning the purpose of official action); see also Girardeau v. State, 403 So. 2d 513, 514 (Fla. Dist. Ct. App. 1st Dist. 1981) (legislative privilege based only on "generalized interest in confidentiality'' does not permit legislator to avoid testifying before grand jury). 10 In Baldus v. Members of the Wis. Gov't Accountability Bd., 2011 U.S. Dist. LEXIS (E.D. Wis. Dec. 8, 2011), a three judge panel of the U.S. District Court for the Eastern District of Wisconsin considered motions to quash subpoenas issued to a legislative aide to the Wisconsin State Senate Majority Leader and a lawyer employed by a finn the legislature had hired as a consulting expert to provide legal advice related to the development of a state redistricting plan. The Court found that legislative privilege would not apply, since legislative privilege is "a qualified privilege that can be overcome by a showing of need." Id. at In general, privileges are to be strictly construed since ''testimonial exclusionary rules and privileges contravene the fundamental principle that 'the public... has a right to every man's evidence"' Trammel v. United States, 445 U.S. 40, 50 (1980), quoting United States v. Bryan, 339 U.S. 323, 331 (1950). They must be construed narrowly because "[p]rivileges impede the search for the truth." Pierce County v. Guillen, 537 U.S. 129, (2003), citing Baldrige v. Shapiro, 455 U.S. 345, 360 (1982). The Supreme Court has made clear that it does not apply an evidentiary privilege unless it "promotes sufficiently important interests to outweigh the need for probative evidence." Trammel, 445 U.S. at A. 163

181 After determining that the requested deposition testimony and documents pertaining to the legislative body's intent were both relevant and important as direct evidence, the court ordered that the depositions should proceed and the documents be produced. The Court opined that while allowing the plaintiffs access to the requested discovery "may have some minimal 'chilling effect' on the legislature," it was outweighed by the "highly relevant and potentially unique nature of the evidence." I d. at 8. In a subsequent opinion, the court characterized the Defendants' efforts to avoid disclosure as an apparent "desperate attempt to hide from both the Court and the public the true nature of exactly what transpired in the redistricting process." Baldus v. Members of the Wis. Gov't Accountability Bd., 843 F. Supp. 2d 955,958 (E.D. Wis. 2012). "[T]he Legislature bas taken action that affects the voting rights of Wisconsin's citizens and now attempts to cloak the record of that action behind a charade masking as privilege." Id. See also Florida Assoc. of Rehabilitation Facilities v. Fl. Dep 't of Health & Rehabilitative Serv., 164 F.R.D. 257,268 (N.D. Fla. 1995) ("even if a privilege as to particular questions is to be recognized, it may be overcome by a showing of need"); United States v. Irvin, 127 F.R.D. 169, 174 (C.D. Cal. 1989) ("[The Voting Rights Act] requires vigorous and searching federal enforcement.... [T]he Supervisors' deliberative process privilege must yield in this instance to the need for disclosure.... This Court is not convinced that the occasional instance in which disclosure may be ordered in a civil context will add measurably to the inhibitions already attending legislative deliberations''). Similarly, in Manzi v. DiCarlo, 982 F. Supp. 125 (E.D.N.Y. 1997), an employment termination case, the court ordered the production of certain documents concerning allocations of funds to a state senator because "the discovery and trial needs of plaintiff in enforcing her rights under federal law clearly outweigh the State Defendants' need for confidentiality." Manzi, 982 F. 14 A. 164

182 Supp. at As argued above, the negligible privacy interests of individual legislators in shielding their discussions concerning the very public business of enactment of the Florida congressional map must give way to the public's right to know whether their representatives have faithfully fulfilled their duties under the Florida Constitution -particularly when that determination turns on the intent of the legislators - and to challenge an unconstitutional map effectively. B. Legislative Privilege Does Not Permit Legislators to Avoid Disclosure Where, as Here, the Legislative Process Itself is at Issue in the Case. When the subject of the legal claims at issue is the legislative process itself, legislative privilege does not apply. See, e.g., East End Ventures eta/. v. Village of Sag Harbor, 2011 U.S. Dist. LEXIS , *12-13 (E.D.N.Y. Dec. 19, 2011) ("Because the subject matter on which Plaintiffs seek testimony is one of the central issues in this case, the legislative privilege is inapplicable.") (citations omitted). See also Children First Found, Inc. v. Martinez, No ,2007 U.S. Dist. LEXIS 90723, *26-27 (N.D.N.Y. Dec. 10, 2007) (holding that the deliberative process privilege only protects the government's deliberative process from inquiry if u In balancing a party's need for the evidence against the legislature's interest in protecting it from disclosure, some courts have applied a five factor test including "(i) the relevance of the evidence sought to be protected; (ii) the availability of other evidence; (iii) the 'seriousness' of the litigation and the issues involved; (iv) the role of the government in the litigation; and (v) the possibility of future timidity by government employees who will be forced to recognize that their secrets are violable." See, e.g., Rodriguez v. Pataki, 293 F. Supp. 2d 302,304 (S.D.N.Y. 2003). As discussed above, the information Plaintiffs seek is (i) clearly highly relevant, and (ii) unlikely to be available through other sources. With respect to the seriousness of the litigation (iii), Plaintiffs allege violation of a constitutional provision and raise serious questions about the legitimacy of the Florida state Legislature's redistricting process and the viability of the challenged map. Regarding the role of the government (iv), state legislators were directly involved in the allegedly unlawful conduct. With respect to factor (v), while the need to encourage frank and open discussions among the legislators is not unimportant, in this case where a constitutional provision explicitly limits the motivations upon which legislators may take certain action- the privacy interest must take a back seat to the people's right to enforce the Constitution. 15 A. 165

183 it is collateral to the litigation); Fl. Ass'n of Rehab. Fac., Inc., 164 F.R.D. at 268 ("[EJven if the information sought is privileged, the privilege may not be applicable in this case. Plaintiffs have made a persuasive argument that the subject matter of this case... is in part the legislative process itself."). "The privilege was fashioned in cases where the governmental decision making process is collateral to the plaintiff's suit." In re Subpoena Duces Tecum Served on the Office of the Controller of the Currency, 145 F.3d 1422, 1424 (D.C. Cir. 1998). But "[i]f either the Constitution or a statute makes the nature of governmental officials' deliberations the issue, the privilege is a nonsequitur." Id (emphasis in original); see also Jones v. City of College Park, 237 F.R.D. 517, 521 (N.D. Ga. 2006) (finding that the deliberative process privilege which protects against disclosure of governmental deliberations "is simply inapplicable [where] government intent is at the heart of the issue"). This is because where the government information protected by the privilege -legislators' deliberative process-is the basis for a constitutional or statutory cause of action, "the privilege's raison d'etre evaporates." In re: Subpoena Duces Tecum, 145 F.3d at 1424 (D.C. Cir. 1998). 12 In short, if the plaintiff's cause of action is directed at the government's intent, as here, "it makes no sense to permit the government to use the privilege as a shield., Id The intent of the Legislature in enacting the redistricting plan is the primary issue to be assessed in evaluating Plaintiffs' claims; an inquiry into the Legislature's intent is required to determine whether or not there has been a violation of the Florida Constitution. Creating districts with improper intent is a direct violation of the Florida Constitution, and it is this alleged 12 While some courts have made this finding in the context of discussing application of the "deliberative process" privilege as opposed to "legislative" privilege, the distinction is not significant for purposes of this argument. See East End Ventures 2011 U.S. Dist. LEXIS at *7 [citation format]( discussing the interchangeability of the two privileges). 16 A. 166

184 unlawful conduct that is being challenged in this action. Assessing the legislature's intent includes considerations such as how the challenged map- and the districts within it-came about, what factors were taken into account in drafting the map, and what the legislators' motivations were when doing so. The legislative process - and specifically the legislators' decision making process - are the focus of the assessment. As Defendants recognize in their brief, the purpose of the legislative privilege is ultimately to benefit the people, not to protect legislators individually. Defs Mot. at 14. Legislative privilege does not exist "to protect legislators' individual interests, 'but to support the rights of the people, by enabling their representatives to execute the functions of their office without fear."' Id at 14 (quoting Coffin v. Coffin, 4 Mass. 1, 27 (1808)). As one court put it, Government documents are protected from discovery so that the public will benefit from more effective government; when the public's interest in effective government would be furthered by disclosure, the justification for the privilege is attenuated. Thus, [when the information] sought may shed light on alleged government malfeasance, the privilege is denied. In re Franklin Nat'l Bank Sec. Litig., 478 F. Supp. 577, 582 (E.D.N.Y. 1979). Amendment 6 imposes specific limitations on how the legislative decision making process takes place, and the defendants should not be permitted to use legislative privilege as a shield to conceal any such potentially illegal conduct. For all of these reasons, the plaintiffs' need for the discovery requested clearly outweighs the Legislature's alleged privacy interests. Amendment 6 explicitly limits the freedom of legislators to draw apportionment plans and districts in a manner that advances whatever intentions they may have. Enabling more effective government and furthering the public interest 17 A. 167

185 -the rationales for the privilege in the first place - are better served in this case by disclosure than by allowing the legislative process to remain cloaked in secrecy. CONCLUSION Preventing the Plaintiffs in this action from obtaining information about the legislators' process in drawing the challenged map beyond what is available in the public record provides the Legislature a clear path to violating the will of the people as expressed in Amendment 6. If the Court grants the Legislative Defendants' motion for a protective order, it would be expanding the scope of the legislative privilege and frustrating the will of the people of Florida by imposing a significant and unnecessary barrier to enforcement of Amendment 6. For the reasons stated herein, and those stated in the Romo Plaintiffs' brief, the Court should deny Defendants' motion. RONALD. YER Florida Bar No rmeyer@meyerbrookslaw.com Meyer, Brooks, Demma and Blohm, P.A. 131 North Gadsden Street Post Office Box 1547 (32302) Tallahassee, FL (850) Telephone (850) facsimile (850) facsimile The Spiva Law Firm PLLC Bruce V. Spiva bspiva@spivafmn.com Admitted Pro Hac Vice 1776 Massachusetts Ave., N.W. Suite 601 Washington, D.C Telephone: Facsimile: A. 168

186 Jenner & Block, LLP Michael B. DeSanctis Admitted Pro Hac Vice Paul M. Smith Admitted Pro Hac Vice Jessica Ring Amunson Admitted Pro Hac Vice Kristen M. Rogers Admitted Pro Hac Vice 1099 New York Ave NW, Suite 900 Washington, DC Telephone: Facsimile: J. Gerald Hebert Admitted Pro Hac Vice 191 Somervelle Street, #405 Alexandria, VA Telephone: ATTORNEYS FOR COALITION PLAINTIFFS CERTIFICATE OF SERVICE I ~fy that the foregoing was furnished by electronic mail to the following parties on this~ day of August, 2012: Blaine Winship Timothy D. Osterhaus OFFICE OF THE AITORNEY GENERAL PL-01, The Capitol Tallahassee, Florida Blaine. Winsbip@myfloridalegal.com Timothy. Osterhause@myfloridalegal.com Attorney for the Attorney General Ashley E. Davis Daniel E. Nordby FLORIDA DEPARTMENT OF STATE 500 South Bronaugh Street, Suite 100 Tallahassee, Florida Ashley.Davis@DOS.myflorida.com Daniel.Nordby@DOS.myflorida.com Betty.Money@DOS.MyFlorida.com Stacey.Small@DOS.MyFlorida.com Attorneys for Florida Secretary of State 19 A. 169

187 AndyBardos Special Counsel to the President THE FLORIDA SENATE 404 South Monroe Street, Suite 409 Tallahassee, Florida Michael A. Carvin JONES DAY 51 Louisiana Avenue N.W. Washington, D.C Cynthia Skelton Tunnicliff Peter M. Dunbar PENNINGTON, MOORE, ET. AL. 215 South Monroe Street, Second Fl. Tallahassee, FL Attorneys for the Florida Senate Charles T. Wells George N. Meros, Jr. Jason L. Unger Allen C. Winsor Charles B. Upton IT GRA YROBINSON, P.A. Post Office Box Tallahassee, Florida Charles. Jason. Allen. George T. Levesque General Counsel FLORIDA HOUSE OF REPRESENTATIVES 422 The Capitol Tallahassee, Florida Miguel De Grandy 800 Douglas Road, Suite 850 Coral Gables, Florida Attorneys for the Florida House of Representatives 20 A. 170

188 Joseph W. Hatchett Thomas A. Range Martha Akerman Senterfitt 106 E. College Avenue, Suite 1200 Tallahassee, FL JonL. Mills Karen Dyer Elan Nehleber Boies, Schiller & Flexner, LLP 121 S. Orange Avenue, Suite 840 Orlando, FL Marc Elias Kevin J. Hamilton John M. Devaney SY Abba Khanna Perkins Cole, LLP 700 Thirteenth Street, NW, Suite 600 Washington, D.C Attorneys for Rene Romo, Benjamin Weaver, William Everett Warinner, Jessica Barrett, June Keener, Richard Quinn Boylan (Plaintiffi) 21 A. 171

189 Harry 0. Thomas Christopher B. Lunny Radey Thomas Yon & Clark, P.A. 301 S. Bronough Street, Suite 200 Tallahassee, Florida Attorneys for Intervenors/Defendants Negron, Suarez, Rodriguez, Pinder, Mathiri, Mount, Barnes, Butler, and Wise Stephen Hogge 117 South Gadsden Street Tallahassee, Florida Charles G. Burr Burr & Smith, LLP Grand Central Place 442 W. Kennedy Blvd., Suite 300 Tampa, Florida Allison J. Riggs Anita S. Earls Southern Coalition for Social Justice 1415 W. Highway 54, Suite 101 Durham, North Carolina Victor L. Goode Dorcas R Gilmore NAACP 4805 Mt. Hope Drive Baltimore, Maryland dgilmore@naacpnet.org vgoode@naacpnet.org Attorneys for Intervenor/Defendant, NAACP Ro~ 22 A. 172

190 TAB 9

191 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 CA 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; et al., vs. Plaintiffs, KEN DETZNER, in his official capacity as Florida Secretary of State; THE FLORIDA SENATE, et al., Defendants ~/ ROMO PLAINTIFFS' NOTICE OF SUPI'LEMENTAL AUTHORITY IN SUPPORT OF THEIR OPPOSITION TO LEGISLATIVE DEFENDANTS' MOTION FOR PROTECTIVE ORDER BASED ON LEGISLATIVE PRIVILEGE The Romo Plaintiffs respectfully submit this notice of supplemental authority in support of their brief in opposition to the Legislative Defendants' ("Defendants") motion for a protective order based on legislative privilege. The decision attached hereto as Exhibit A was issued by a three-judge panel of the D.C. District Comt in Texas v. United States, Case No (D.D.C. Aug. 28, 2012), in which the plaintiffs challenged the I A. 173

192 Texas Legislature's recent redistricting and reapportionment plans under Section 5 of the Voting Rights Act of 1965 ("VRA"), 42 U.S.C Plaintiffs call to the Court's attention to the D.C. District Court's findings that the plans were drawn with discriminatory intent based on documentary discovery, including s among legislators and staff regarding draft plans, and testimony from the legislators themselves.,x. A at 32-33,48-49, ~~~:ltr rimary Joseph.hatchett@akerman.com SecondWJ' Martha.parramore@akerman.com AKERMAN SENTERFITT I 06 E. College Ave., Suite 1200 Tallahassee, Florida 3230 I Tel: (850) Fax: (850) THOMAS A. RANGE Primmy Tom.range@akerman.com SecondWJ' Martha.parramore@akerman.com AKERMAN SENTERFITT I 06 E. College Ave., Suite 1200 Tallahassee, Florida 3230 I Tel: (850) Fax: (850) I 03 MARC ELIAS (admitted pro hac vice) Primmy MElias@Perkinscoie.com Secondwy EFrost@Perkinscoie.com JOHN DEVANEY (admitted pro hac vice) PrimWJ' JDevaney@Perkinscoie.com Secondmy SYarborough@perkinscoie.com PERKINS COlE LLP th St., N.W., Suite 600 Washington, D.C Tel: (202) Fax: (202) KEVIN J. HAMILTON (admitted pro hac vice) Primmy KHamilton@Perkinscoie.com Secondmy NPurcell@perkinscoie.com ABHA KHANNA (admitted pro hac vice) Primary AKhanna@Perkinscoie.com SecondmJ' RKelly@perkinscoie.com 2 A. 174

193 PERKINS COlE LLP 1201 Third Ave, Suite 4900 Tel: (206) Fax: (206) Attorneys for the Ramo Plaintiffs 3 A. 175

194 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by Electronic Mail this 30th day the attached service list: 4 A. 176

195 SERVICE LIST Daniel E. Nordby, General Counsel Ashley Davis, Assistant General Counsel Florida Department of State R.A. Gray Building 500 S. Bronough Street, Suite I 00 Tallahassee FL Primary daniel.nordby@dos.myflorida.com Secondmy Betty.money@dos.111 yfl orida.com Stacey.small@dos.myflorida.com PrimWJ' ashley.davis@dos.state.fl.us Secondmy Betty.money@dos.myflorida.com Staccy.small@dos.myflorida.com Michael A. Carvin Louis K. Fisher JONES DAY 51 Louisiana A venue N. W. Washington, D.C macarvin@jonesday.com lkfisher@jonesday.com Leah L. Marino, Deputy General Counsel THE FLORIDA SENATE Suite 409, The Capitol 404 South Monroe Street Tallahassee, FL marino.leah@flsenate.gov Peter M. Dunbar Cynthia Skelton Tunnicliff PENNINGTON, MOORE, WILKINSON, BELL & DUNBAR, P.A. 215 South Monroe Street, 2d Floor Tallahassee, FL 3230 I pete@penningtonlaw.com cynthia@penningtonlaw.com Charles T. Wells George N. Meros, Jr. Jason L. Unger Allen Winsor Charles B. Upton II GRAY ROBINSON, P.A. Post Office Box Tallahassee, FL Primary charles.wells@gray-robinson.com george.meros@gray-robinson.com CB.Upton@gray-robinson.com SecondaJJ' Charlene.robe11s@gray-robinson.com mwilkinson@gray-robinson.com Primwy jason.ungcr@gray-robinson.com allen.winsor@gray-robinson.com Secondmy teresa. barreiro@gray-robinson.com allenwinsor@yahoo.com Miguel A. De Grandy MIGUEL DE GRANDY, P.A. 800 Douglas Road, Suite 850 Coral Gables, FL mad@degrandylaw.com George T. Levesque, General Counsel FLORIDA I-lOUSE OF REPRESENTATIVES 4 22 The Capitol Tallahassee, FL Primmy george.levesgue@myfloridahouse.gov SecondmJ' Glevesgue4@comcast.net Velma.carter@myfloridahouse. gov Ronald G. Meyer Lynn Hearn MEYER, BROOKS, DEMMA & BLOHM 131 North Gadsden Street 5 A. 177

196 P.O. Box 1547 Tallahassee, FL Jessica Ring Amunson Michael B. DeSanctis Kristen M. Rogers Paul M. Smith Christopher Deal JENNER & BLOCK LLP 1099 New York Ave, N.W., Suite 900 Washington, D.C J. Gerald Hebert J. GERALD HEBERT, P.C. 191 Somervclle Street, Unit 415 Alexandria, VA Bruce V. Spiva, Esq. THE SPIV A LAW FIRM PLLC 1776 Massachusetts Avenue, N. W. Suite 601 Washington, D.C bspiva@spivafirm.com Timothy D. Osterhaus, Deputy Solicitor General Blaine Winship, General Counsel OFFICE OF THE ATTORNEY GENERAL The Capitol, PL-0 I Tallahassee, FL Timothy.osterhaus@myfloridalegal.com Blaine. winship@myfloridalegal.com Stephen Hogge STEPHEN HOGGE, ESQ., LLC 117 South Gadsden Street Tallahassee, FL 3230 I Stephen@stephenhoggeesq.com Charles G. Burr BURR & SMITH, LLP Grand Central Place 442 W. Kennedy Blvd., Suite 300 Tampa, FL cburr@burrandsmithlaw.com Allison J. Riggs Anita S. Earls SOUTHERN COALITION FOR SOCIAL JUSTICE 1415 W. Highway 54, Suite 101 Durham, NC Allison@southerncoalition.org anita@southerncoalition.org Victor L. Goode Dorcas R. Gilmore NAACP 4805 Mt. Hope Drive Baltimore, MD vgoode@naacpnet.org dgilmore@naacpnet.org Harry 0. Thomas Christopher B. Lunny RADLEY THOMAS YON & CLARK, P.A. 30 I S. Bronaugh Street, Suite 200 Tallahassee, FL PrimWJ' hthomas@radeylaw.com SecondmJ' jday@radeylaw.com Primmy clunny@radeylaw.com Secondmy cdemco@radeylaw.com 6 A. 178

197 TAB 10

198 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, v. Case No CA 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; et al., Plaintiffs, v. Case No CA KEN DETZNER, in his official capacity as Florida Secretary of State; THE FLORIDA SENATE; et al., Defendants. / LEGISLATIVE DEFENDANTS CONSOLIDATED REPLY IN SUPPORT OF MOTION FOR PROTECTIVE ORDER BASED ON LEGISLATIVE PRIVILEGE The Legislative Defendants respectfully submit this consolidated reply in support of their Motion for Protective Order Based on Legislative Privilege, dated July 12, 2012, and in response to the Plaintiffs responses, dated August 28, Five months ago, the First DCA held that the power vested in the legislature under the Florida Constitution would be severely compromised if legislators were required to appear in \255036\8 - # v2 A. 179

199 court to explain why they voted a particular way. Fla. House of Representatives v. Expedia, 85 So. 3d 517, 524 (Fla. 1st DCA 2012). The Court minced no words: Our state government could not maintain the proper separation required by Article II, section 3 if the judicial branch could compel an inquiry into these aspects of the legislative process. Id. Accordingly, the Court instructed the trial court to quash subpoenas directed to a legislator and his legislative aide. Plaintiffs make valiant efforts to avoid this controlling decision. They describe their claims as unique and transcendent in importance, and they disparage the legislative privilege as a common law relic that serves no legitimate purpose. As discussed below, however, Plaintiffs claims under Amendment Six are no different from other important claims that have yielded to the privilege a privilege inherent in the constitutional separation of powers, the cornerstone of American democracy. Id. at 524 (quoting Bush v. Schiavo, 885 So. 2d 321, 329 (Fla. 2004)). Plaintiffs theory of this case is fundamentally wrong. Plaintiffs suppose that, because Amendment Six knows no acceptable level of improper intent, In re Senate Joint Resolution of Legislative Apportionment 1176, 83 So. 3d 597, 617 (Fla. 2012), Plaintiffs should be permitted to depose legislator after legislator until one confesses an improper intent. But while no level of improper intent is acceptable, it remains the intent of the Legislature as a collective body that the Court must ascertain, and the intent of an individual member is not the intent of the Legislature. PLAINTIFFS CANNOT AVOID EXPEDIA Plaintiffs are not correct that, without compelled testimony, the intent standard of Amendment Six would be meaningless and unenforceable. Other, equally important provisions with intent elements have yielded to the legislative privilege. The United States Supreme Court did not render the Equal Protection Clause meaningless and unenforceable when it held that, although a plaintiff must prove racially discriminatory intent, legislator testimony would be \255036\8 - # v2 2 A. 180

200 considered only in extraordinary instances, and that even then such testimony frequently will be barred by privilege. See Vill. of Arlington Heights v. Metro. Housing Corp., 429 U.S. 252, 268 (1977). Nor did Judge Hinkle render Section 5 of the Voting Rights Act meaningless and unenforceable when, in a published opinion, he found that, despite the discriminatory purpose element of Section 5, the legislative privilege protects legislators and staff from deposition. See State v. United States, --- F. Supp. 2d ----, 2012 WL (N.D. Fla. Aug. 10, 2012). As recently as March, Plaintiffs successfully argued, without any depositions or other discovery, that the Legislature s initial plan for Senate districts violated Amendment Six s intent standard. See In re Senate Joint Resolution of Legislative Apportionment 1176, 83 So. 3d 597. In that case, Plaintiffs argued that the intent standard does not and cannot require a personal confession from a majority of the Legislature.... Such admissions would obviously suffice, but intent can be shown in many other ways. Br. of Fla. Democratic Party in Opp n to J. Res. of Apportionment, at 10, In re Senate Joint Resolution of Legislative Apportionment 1176, 83 So. 3d 597 (Fla. 2012) (No. SC12-1) (emphasis added), and that, [t]hough the Court s inquiry is much expanded, the method of its analysis remains the same.... [T]he Court should look to the plans themselves, to the legislative history, and to the statistics about those plans, Reply Br. of the League of Women Voters of Fla., et al., in Opp n to the Legislature s J. Res. of Legis. Apportionment, at 4 In re Senate Joint Resolution of Legislative Apportionment 1176, 83 So. 3d 597 (Fla. 2012) (No. SC12-1). Plaintiffs did not then suggest that it was impossible to show improper intent without discovery, or that Amendment Five (Amendment Six s counterpart) is meaningless in relation to state legislative districts, which the Florida Supreme Court reviews in a thirty-day appellate proceeding without legislator testimony. See Art. III, 16(c), Fla. Const. \255036\8 - # v2 3 A. 181

201 The Florida Supreme Court has outlined the objective indicators of impermissible intent. In In re Senate Joint Resolution of Legislative Apportionment 1176, the Court explained that 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. 83 So. 3d at 617. One piece of evidence in isolation may not indicate intent, but a review of all of the evidence together may lead... to the conclusion that the plan was drawn for a prohibited purpose. Id. Of particular importance, the Legislature s level of compliance with [the] constitution s tier-two requirements, which set forth traditional redistricting principles, is indicative of intent. Id. at 618. A disregard for these principles can serve as indicia of improper intent. Id. With respect to incumbents, the inquiry... focuses on the shape of the district in relation to the incumbent s legal residence, as well as other objective evidence of intent, including such factors 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 former district. Id. at The United States Supreme Court has also outlined the objective factors that establish improper intent under the Equal Protection Clause, and courts have applied the same factors to redistricting plans under Section 5 of the Voting Rights Act. In Arlington Heights, the Court prescribed a sensitive inquiry into such circumstantial and direct evidence of intent as may be available, including (i) the actual impact of the enactment; (ii) its historical background; (iii) the sequence of events that preceded the enactment; (iv) procedural or substantive departures from the usual sequence of events; and (v) contemporaneous statements of legislators, minutes of its meetings, and other phases of legislative history. See 429 U.S. at \255036\8 - # v2 4 A. 182

202 Earlier this week, a federal district court followed the well-worn path outlined in Arlington Heights and found a discriminatory purpose beneath Texas new redistricting plans. 1 See Texas v. United States, --- F. Supp. 2d ----, 2012 WL (D.D.C. Aug. 28, 2012). And the same analysis supported Judge Hinkle s recent decision to sustain the legislative privilege. In that case, the League of Women Voters of Florida and the National Council of La Raza (both Plaintiffs here), made precisely the same arguments as in this case. They argued that because legislative purpose and motive are directly at issue..., any qualified legislative privilege... must yield. Defendant-Intervenors Reply in Supp. of Mot. to Compel, at 15, State v. United States, 2012 WL (No. 4:12-mc-3-RH-WCS). 2 They insisted that the testimony of the 1 Plaintiffs filed this decision as supplemental authority, but it does not aid their argument. Earlier in the Texas case, the Court declined to rule on legislative privilege because Texas agreed to provide documents under seal. See Mem. Op. on Privilege Claims, No. 1:11-cv RMC-TBG-BAH (Jan. 2, 2012). The Court expressed skepticism that a privilege applied because Texas cited no authority for a legislative privilege under Texas law. Id. at 17 ( Texas cannot claim a privilege here that its own courts do not recognize. ). Of course, Florida courts do recognize the legislative privilege. 2 At the hearing, counsel for the League of Women Voters of Florida and the National Council of La Raza argued that Section 5 is different and therefore supplants the privilege: MR. O CONNOR: Section 5 is different, your Honor, because Section 5 was specifically enacted by Congress in an attempt to reverse years and years of discriminatory actions by certain covered jurisdictions. THE COURT: That s different from the Equal Protection Clause how? MR. O CONNOR: It s different because it places the burden on the covered jurisdiction to demonstrate there is no discriminatory purpose and focuses on the legislative motive in enacting the law. THE COURT: But motive is exactly what the Equal Protection Clause focuses on, too, right? MR. O CONNOR: Yes. THE COURT: And that s my point. Fair enough. If the burden is on the state in a Section 5 case, the burden is certainly on the challenger to a law in an equal protection case. But, for example, the case I have pending right now that I need to go back and write a decision on, I ve got one where the assertion is the legislature adopted a law, and it s intentionally discriminatory in violation of the \255036\8 - # v2 5 A. 183

203 legislators and the legislative staff... is not only relevant, it is essential. Id. at 7. Nevertheless, Judge Hinkle correctly upheld the privilege. (See Mot. for Protective Order, Exh. A, at ) The sponsor of Amendment Six also proposed an objective method to determine legislative intent. In a paid political advertisement, the amendment sponsor explained that: The public, the press and non-governmental organizations will have the opportunity to publicly comment before and after the Legislature draws the initial maps and will be able to notify the Legislature of any failure to comply with the standards before the maps are finalized.... Then the legislature will have two choices: either ignore the deficiencies or correct them. If the Legislature corrects them, then the constitutional provisions will have worked. If the Legislature ignores the deficiencies, then there is evidence on the record that the Legislature was on notice of the defects and nevertheless it drew the district(s) with intent to favor a party or incumbent. Any deficiencies in the districting that are not corrected after public debate can be challenged in court and the courts will be able to enforce the constitutional standards. (Exh. A.) The sponsor, therefore, did not propose legislator depositions, but public comment and participation. And Plaintiffs had ample opportunity to participate in the redistricting process. The Legislature conducted twenty-seven public hearings 3 and, from September 19, 2011, to January 27, 2012, seventeen meetings of the Senate Committee on Reapportionment, the House Redistricting Committee, and the House s Congressional Redistricting Subcommittee. During Equal Protection Clause. I m looking at the purpose of the legislature. Why is the testimony of a legislator any more relevant in your case than in my case? (See Mot. for Protective Order, Exh. A, at ) 3 The LOWV Plaintiffs suggest that legislators were under orders to maintain silence during the redistricting process, but stubborn facts collide with this narrative. (LOWV Resp. at 10 n.9.) While legislators were urged to permit members of the public to speak first during the public hearings, legislators frequently spoke after public comment had concluded. And, after all public hearings had been conducted, the Legislature held seventeen committee meetings. The transcripts of these proceedings exceed 1,800 pages (even exclusive of floor proceedings), and were submitted to the United States Department of Justice to assist its evaluation of legislative purpose under the Voting Rights Act. See \255036\8 - # v2 6 A. 184

204 these meetings, legislators proposed and debated numerous redistricting alternatives, providing every opportunity for statements that reveal intent, and the redistricting plan ultimately approved by the Legislature was superior to the initial proposals by all relevant measures. At the same time, Plaintiffs refused repeated invitations to offer concrete and constructive suggestions. On the last Friday before the regular legislative session, the LOWV Plaintiffs finally submitted a proposed redistricting map, but then refused to present and defend their map before a legislative committee. Plaintiffs did not meaningfully participate in the legislative process as contemplated by the amendment sponsor, and now ask the Court to impose their alternatives. The statements of the amendment sponsor also refute the contention that, unless the legislative privilege is ignored, the will of the people will be frustrated. There is no evidence that, in adopting Amendment Six, the people intended to empower Plaintiffs to use the power of the Judiciary to place the Legislature on trial and compel its members and their staff perhaps in endless parade to testify about legislative activities. The only reliable evidence of the will of the people is the text of Amendment Six, and the text of Amendment Six does not abrogate the legislative privilege. The people also adopted the separation-of-powers clause, which reflects their will no less than Amendment Six. Indeed, if Amendment Six had altered the separation of powers, its ballot summary would either have disclosed this effect, or been fatally defective. See Graham v. Haridopolos, 75 So. 3d 315, 320 (Fla. 1st DCA 2011) (construing a constitutional amendment in a manner that avoids an undisclosed effect on existing sections of the constitution, because the failure to disclose an effect on existing provisions is misleading). In its review of the ballot summaries of Amendments Five and Six, the Supreme Court held that the amendments do not alter the functions of the judiciary. They merely change the standard of \255036\8 - # v2 7 A. 185

205 review to be applied when... a redistricting plan is challenged. Advisory Opinion to Att y Gen. re Standards for Establishing Legislative Dist. Boundaries, 2 So. 3d 175, 183 (Fla. 2009). Plaintiffs suggest that specific provisions control over general provisions, and that Amendment Six therefore controls the separation-of-powers provision. (Resp. at 12.) This rule of interpretation, however, does not apply unless the two provisions are in irreconcilable conflict. See, e.g., Knowles v. Beverly Enters.-Fla., Inc., 898 So. 2d 1, 9 (Fla. 2004). The two provisions do not conflict at all. Like claims under the Equal Protection Clause and the Voting Rights Act, claims under Amendment Six can be satisfied as in the case of the original Senate plan with objective evidence. Moreover, Amendment Six is anything but specific about invalidating the constitutional separation of powers. Indeed, it says nothing about it. Despite this fleeting recognition that the legislative privilege is inherent in the constitutional separation of powers, see Art. II, 3, Fla. Const., Plaintiffs time and time again characterize the privilege as a mere common law privilege. Of course, it is not. It is both a constitutional privilege and a statutory privilege, incorporated by Section 2.01, Florida Statutes. Expedia, 85 So. 3d at And it is certainly not true that discovery privileges do not apply where the rights to be enforced proceed from a higher source of law. Otherwise, the statutory attorney-client privilege would yield whenever constitutional rights were at issue. See , Fla. Stat. (2012). The legislative privilege is not the weak third cousin of discovery privileges; on the contrary, no privilege has deeper or more solid foundations than the legislative privilege. Plaintiffs argue that compelled legislator testimony does not offend the separation of powers because the judiciary retains the power to determine whether the Legislature has conducted itself as the law requires. (Romo Resp. at ) But the very purpose of the separation-of-powers provision is to restrain the various branches of government including the \255036\8 - # v2 8 A. 186

206 judiciary from encroachment upon the other branches. As the Expedia Court and Judge Hinkle recognized, the judiciary is no less bound to respect the legislative sphere than the Legislature is bound to respect the independence of the judiciary. For this reason, the Florida Supreme Court has explained that [i]t is the final product of the legislature that is subject to review by the court, not the internal procedures. Fla. Senate v. Fla. Pub. Employees Council 79, AFSCME, 784 So. 2d 404, 408 (Fla. 2001) (quoting Moffitt v. Willis, 459 So. 2d 1018, 1021 (Fla.1984)); accord Envtl. Confederation of Southwest Fla., Inc. v. State, 886 So. 2d 1013, 1021 (Fla. 2004). While the Supreme Court stated that Amendment Six requires an expanded judicial analysis, In re Senate Joint Resolution of Legislative Apportionment 1176, 83 So. 3d at 607, it clearly meant that Amendment Six imposes new and more demanding standards not that in redistricting cases courts may now discard the separation of powers and the established rules of evidence. Further, the Court made this observation in the light of its constitutional obligation to review state legislative districts, but congressional plans come before this Court in the same manner as other legislation. See Order Denying Mots. for Summ. J., at 5 (Apr. 30, 2012) ( This Court has no specific duty under the Florida Constitution to review congressional redistricting.... As a consequence, I must review it under the standards applicable to any other constitutional challenge to legislation. Specifically, the legislation is presumed to be constitutional and the burden is on the Plaintiffs to show beyond a reasonable doubt that it is not. ). AMENDMENT SIX S IMPORTANCE DOES NOT DISPLACE THE LEGISLATIVE PRIVILEGE Plaintiffs next ask the Court to create an exception to the legislative privilege on the ground that Amendment Six is more important than other claims adjudicated by this Court. But as Judge Hinkle recognized, even the federal Voting Rights Act, which was enacted to combat race discrimination and enforce the Civil War Amendments to the United States Constitution, is \255036\8 - # v2 9 A. 187

207 not so unique as to displace the legislative privilege. State v. United States, 2012 WL , at *2 ( Voting Rights Act cases are important, but so are equal-protection challenges to many other state laws, and there is nothing unique about the issues of legislative purpose and privilege in Voting Rights Act cases. ); cf. Vill. of Arlington Heights, 429 U.S. at 268 (recognizing the legislative privilege in race-discrimination cases under the Equal Protection Clause). Just as the importance of particular judicial decisions does not warrant legislative interrogation of judges, the importance of legislative decisions does not warrant judicial interrogation of legislators. Cf. State v. United States, 2012 WL , at *3 ( Legislators ought not call unwilling judges to testify at legislative hearings about the reasons for specific judicial decisions, and courts ought not compel unwilling legislators to testify about the reasons for specific legislative votes. ). Amendment Six is far from the only constitutional mandate that requires consideration of legislative intent or purpose. Equal Protection Clause claims require proof of discriminatory intent, Washington v. Davis, 426 U.S. 229, 248 (1976), and Establishment Clause claims require proof of secular legislative purpose, Lemon v. Kurtzman, 403 U.S. 602, 612 (1971). Dormant Commerce Clause claims require proof of discriminatory effect or discriminatory purpose, Minnesota v. Clover Leaf Creamer Co., 449 U.S. 456, 471 n.15 (1981), and the Free Speech Clause prohibits legislation enacted with a purpose to suppress speech, Sorrell v. IMS Health Inc., 131 S. Ct. 2653, 2664 (2011). Yet the privilege does not disappear where a plaintiff must prove illicit intent. Vill. of Arlington Heights, 429 U.S. at 268; City of Las Vegas v. Foley, 747 F.2d 1294, 1298 (9th Cir. 1984) ( Even where a plaintiff must prove invidious purpose or intent,... the Court has indicated [in Arlington Heights] that only in extraordinary circumstances might members of the legislature be called to testify, and even in these circumstances the testimony may be barred by privilege. ); Orange v. County of Suffolk, 855 F. Supp. 620, 623 (E.D.N.Y. \255036\8 - # v2 10 A. 188

208 1994) (same). As Plaintiffs noted, Judge Hinkle found that legislator testimony may have been relevant to Voting Rights Act claims (Romo Resp. at 35), but nevertheless upheld the privilege. The cases Plaintiffs cite to support the position that the privilege vanishes when legislative intent is at issue are unhelpful. In re Subpoena Duces Tecum Served on Office of Comptroller of Currency, 145 F.3d 1422 (D.C. Cir. 1998), concerned an executive deliberativeprocess privilege the target was the FDIC, not state legislators. The unpublished decision in East End Ventures, LLC v. Incorporated Village of Sag Harbor, No , 2011 WL (E.D.N.Y. Dec. 19, 2011), likewise did not involve state legislators; it involved town trustees. In United States v. Irvin, 127 F.R.D. 169 (C.D. Cal. 1989), the issue was local officials not state legislators and the plaintiffs disclaimed any intention of discovering the Supervisors wholly uncommunicated motivations. 127 F.R.D. at 170 n.1 (emphasis in original). Further, the parties agreed that, other than withheld communications, there is little evidence concerning the events immediately preceding the Board s adoption of the final redistricting plan. Id. at 173. In this case, the record is substantial. In Florida Association of Rehabilitation Facilities, Inc. v. State of Florida, Department of Health and Rehabilitative Services, 164 F.R.D. 257, 268 (N.D. Fla. 1995), Magistrate Judge Sherrill s tentative opinion (which preceded Expedia) recognized the likelihood of a legislative privilege in Florida. And in Manzi v. DiCarlo, 982 F. Supp. 125, (E.D.N.Y. 1997), the employment-termination case, the legislative records sought by the plaintiff were not related to the passage of legislation, but were administrative documents removed... from regular legislative proceedings. The legislature, moreover, had agreed to release the documents subject to a confidentiality agreement. Plaintiffs cases simply are not persuasive, especially in opposition to clear precedent that the legislative privilege does not disappear where legislative intent is in question. See Vill. \255036\8 - # v2 11 A. 189

209 of Arlington Heights, 429 U.S. at 268; State v. United States, 2012 WL , at *2-3; City of Las Vegas, 747 F.2d at 1298; Orange, 855 F. Supp. at 623. Plaintiffs depend on Baldus v. Brennan, No. 11-CV-562, 2011 WL (E.D. Wis. Dec. 8, 2011), an unpublished federal trial court decision that cannot be reconciled with Expedia, Arlington Heights, or Judge Hinkle s recent decision. Unlike Baldus, Expedia does not suggest that need can overcome the privilege. And Baldus fades in comparison with Judge Hinkle s more recent, well-reasoned, published decision, which considers the legislative privilege under Florida law and federal law, as well as the chilling effect on Florida legislators. 4 If this were not enough, the analysis of legislative privilege in Baldus consists of one paragraph, and cites one case a case in which the Court granted a protective order as to documents containing the motives, objectives, plans, reports and/or procedures created, formulated or used to draw new districts. Baldus, 2011 WL , at *2 (quoting Comm. for a Fair & Balanced Map v. Ill. State Bd. of Elections, No. 11-C-5065, 2011 WL , at *11 (N.D. Ill. Oct. 12, 2011)). 5 4 The LOWV Plaintiffs ignore Judge Hinkle s ruling altogether, and the Romo Plaintiffs dismiss as non-authoritative dicta his conclusion (even before Expedia) that the Florida Supreme Court would recognize a legislative privilege. But Judge Hinkle s conclusion was not dicta. He maintained that it would surely affect his federal-privilege analysis if state law did not recognize the privilege. (Mot. for Protective Order, Exh. A, at 95.) 5 Apart from their reliance on Baldus, the Romo Plaintiffs even deny that the federal courts have recognized a legislative privilege (Romo Resp. at 4 n.1) an argument that Judge Hinkle flatly rejected (see Mot. for Protective Order, Exh. A, at 94 ( The assertion that there is not a legislative privilege is just four-square at odds with what the United States Supreme Court said in Arlington Heights. )), and which is refuted by federal cases. Jeff D. v. Otter, 643 F.3d 278, (9th Cir. 2011); Schlitz v. Virginia, 854 F.2d 43, (4th Cir. 1988); City of Las Vegas v. Foley, 747 F.2d 1294, 1298 (9th Cir. 1984); Johnson v. Metro. Gov t of Nashville & Davidson County, No. 3: , 2009 WL , at *4 (M.D. Tenn. Mar. 26, 2009); Cunningham v. Chapel Hill, ISD, 438 F. Supp. 2d 718, (E.D. Tex. 2006); Kay v. City of Rancho Palos Verdes, No , 2003 WL , at *9-10 (C.D. Cal. Oct. 10, 2003); Bannum, Inc. v. City of Beaumont, Texas, 236 F. Supp. 2d 633, 634 (E.D. Tex. 2002); Knights of Columbus v. Town of Lexington, 138 F. Supp. 2d 136, (D. Mass. 2001); M. Sec. & Invs., Inc. v. Miami-Dade County, No. 00-CV-1951, 2001 WL , at *2 (S.D. Fla. Aug. 14, 2001); Sizeler Hammond Square Ltd. v. City of Hammond, No , 1999 WL , at \255036\8 - # v2 12 A. 190

210 Plaintiffs reliance on Baldus and other federal cases is peculiar, given their insistence that only Florida law is relevant. And Florida law clearly supports the privilege, as Judge Hinkle and Expedia make clear. PLAINTIFFS CANNOT ASSERT A GOVERNMENTAL INTEREST THAT OUTWEIGHS THE LEGISLATIVE PRIVILEGE The LOWV Plaintiffs observe that the legislative privilege is qualified and can be outweighed by a more important governmental interest. Expedia, 85 So. 3d at 525. The only cases cited in Expedia as examples of a more important governmental interest were Girardeau v. State, 403 So. 2d 513 (Fla. 1st DCA 1981), and United States v. Nixon, 418 U.S. 683 (1974), both of which concerned criminal prosecutions. In Girardeau, the Court held that a legislator may not refuse to answer questions before a grand jury because the privilege cannot override or defeat the pressing need of the criminal justice system, of which the grand jury is an integral part, for the evidence of a crime alleged to have been committed in the state. 403 So. 2d at 517. In Nixon, the Supreme Court held that allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts. 418 U.S. at Any attempt to claim the same governmental interest in a civil action brought by private parties is novel and must be rejected. The interests of these Plaintiffs cannot compete with the strict separation of powers *1-2 (E.D. La. Aug. 12, 1999); Miles-Un-Ltd., Inc. v. Town of New Shoreham, R.I., 917 F. Supp. 91, (D.N.H. 1996); Orange v. County of Suffolk, 855 F. Supp. 620, (E.D.N.Y. 1994); Marylanders for Fair Representation, Inc. v. Schaefer, 144 F.R.D. 292, (D. Md. 1992); Searingtown Corp. v. Inc. Vill. of N. Hills, 575 F. Supp. 1295, (E.D.N.Y. 1981). 6 Relying on Nixon, the United States Supreme Court explained the important distinction between civil and criminal cases in regard to the Court s sensitivity to interference with the functioning of state legislators. United States v. Gillock, 445 U.S. 360, 372 (1980). [T]he cases in this Court which have recognized an immunity from civil suit for state officials have presumed the existence of federal criminal liability as a restraining factor on the conduct of state officials. Id. \255036\8 - # v2 13 A. 191

211 doctrine explicitly enshrined in Article II, Section 3 of the Constitution. See Schiavo, 885 So. 2d at 329. The importance of this provision cannot be overstated. Expedia, 85 So. 3d at 524. THE PUBLIC RECORDS ACT DOES NOT SUPPORT PLAINTIFFS DEMANDS FOR DISCOVERY The Romo Plaintiffs discussion of the Public Records Act misses the mark for one simple reason: the Legislative Defendants assert privilege only with respect to records that are exempted by statute from public inspection. The Legislative Defendants have not asserted the legislative privilege with respect to documents that are not exempt under the Public Records Act. Section (2)(e), Florida Statutes, exempts from disclosure a draft... of a reapportionment plan or redistricting plan and any supporting documents associated with such plan... until a bill implementing the plan... is filed. While the Romo Plaintiffs suggest that supporting documents should be limited to documents that advocate for the draft, this reading is plainly unreasonable. This provision, like the provision that protects drafts of legislative bills, see (2)(c), Fla. Stat. (2012), is designed to allow legislators the necessary freedom, for the benefit of the public, to explore new ideas and new policies without inhibition. This freedom to experiment with new and perhaps imperfect or rudimentary concepts concepts that might in time develop into serious proposals worthy of public discussion is of the utmost importance to public policy. In redistricting, if the exemption is to serve its purpose, all documents that further or advance the progress and development of new policies (and not merely advocacy pieces) must be considered supporting documents. Thus, it would make little sense to protect a draft map if an communication that contains a verbal description of the draft map is not also protected. \255036\8 - # v2 14 A. 192

212 If legislators are restrained from such communication, new ideas would not be proposed or would die in their early stages. The exemption and privilege guard against this chilling effect. 7 Moreover, even if Plaintiffs reading of the exemption were reasonable (and it is not), this Court must defer to the Legislature s reasonable interpretation, because the exemption is the Legislature s to enforce. See, e.g., Escambia County v. Trans Pac, Inc., 584 So. 2d 603, 605 (Fla. 1st DCA 1991). * * * The legislative privilege claims a venerable heritage and serves enduring purposes. There is no question that hostile depositions of legislators, followed by partisan criticism, will discourage participation in the redistricting process. Legislators will have every reason to refuse committee chairmanships and committee appointments, and even refuse to express their opinions and preferences in redistricting. In addition, talented individuals will not easily be persuaded to serve as professional staff to redistricting committees. The potential chilling effect is real. Judge Hinkle explained: Now, the conclusion that there is a legislative privilege makes sense. Frankly, I think the existence of a privilege is honored as a matter of course.... The reason for the privilege partly derives from the burden it would impose on a legislator, partly it derives from the chilling effect that compelled testimony would impose on a legislator.... But the bigger factor in the legislative privilege comes from the same interest that underlies the constitutional principle of separation of powers, the interest that is sometimes referred to as comity, the interest that underlies some of the federalism decisions. The interest is in part a recognition of the role of the two institutions the legislature on the one hand and the courts on the other in our system of government. And so partly the privilege recognizes the respect due to the office of a legislator. Partly the privilege is an adherence to the limited role of a court in our constitutional system. 7 Plaintiffs discussion of legislative history is not illuminating. The fact that the Legislature once intended to exempt all working papers that related to any legislative business yields no inference about the nature of the targeted exemption for supporting documents in the redistricting context. \255036\8 - # v2 15 A. 193

213 (Mot. for Protective Order, Exh. A, at ) Plaintiffs produce no civil case in which a legislator of this State has been compelled over an objection to furnish evidence of the internal operations of the Legislature. This Court should follow binding precedent and refuse Plaintiffs attempts to place the Legislature and all of its members and staff on trial in Plaintiffs openended search for any nefarious intent. The Court should deny the requested discovery. \255036\8 - # v2 16 A. 194

214 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing was sent by electronic mail on August 31, 2012, to the persons listed on the attached Service List. /s/ Leah Marino (by AW with permission) Leah L. Marino (FBN ) Deputy General Counsel The Florida Senate Suite 409, The Capitol 404 South Monroe Street Tallahassee, FL (850) Facsimile (850) marino.leah@flsenate.gov Attorney for the Florida Senate /s/ Allen Winsor Charles T. Wells (FBN ) George N. Meros, Jr. (FBN ) Jason L. Unger (FBN ) Allen Winsor (FBN ) Charles B. Upton II (FBN ) GRAYROBINSON, P.A. Post Office Box Tallahassee, Florida (850) Facsimile (850) Charles.Wells@gray-robinson.com George.Meros@gray-robinson.com Jason.Unger@gray-robinson.com Allen.Winsor@gray-robinson.com CB.Upton@gray-robinson.com Miguel De Grandy (FBN ) 800 Douglas Road, Suite 850 Coral Gables, Florida (305) Facsimile (305) mad@degrandylaw.com George T. Levesque (FBN ) General Counsel Florida House of Representatives 422 The Capitol Tallahassee, Florida (850) George.Levesque@myfloridahouse.gov Attorneys for the Florida House of Representatives \255036\8 - # v2 17 A. 195

215 SERVICE LIST Joseph W. Hatchett Akerman Senterfitt 106 E. College Avenue, Ste Tallahassee, FL Telephone: (850) Fax: (850) Jon L. Mills Elan Nehleber Boies, Schiller & Flexner LLP 100 SE 2nd Street, Ste Miami, FL Telephone: (305) Fax: (305) Abha Khanna Kevin J. Hamilton Marc Elias Perkins Coie, LLP 1201 Third Avenue, Ste Seattle, WA Telephone: (206) Fax: (206) Timothy D. Osterhaus Deputy Solicitor General Blaine H. Winship Office Of Attorney General Capitol, Pl-01 Tallahassee, FL Telephone: (850) Fax: (850) Karen C. Dyer Boies, Schiller & Flexner LLP 121 South Orange Avenue, Ste. 840 Orlando, FL Telephone: (407) Fax: (407) John M. Devaney Mark Erik Elias Perkins Coie, LLP 700 Thirteenth Street, NW, Ste. 700 Washington, DC Telephone: (202) Fax: (202) Ronald Meyer Lynn Hearn Meyer, Brooks, Demma and Blohm, P.A. 131 North Gadsden Street Post Office Box 1547 (32302) Tallahassee, FL Telephone: (850) Fax: (850) Daniel E. Nordby General Counsel Ashley Davis Assistant General Counsel Florida Department Of State R.A. Gray Building 500 S. Bronough Street Tallahassee, FL Telephone: (850) Cell: (850) \255036\8 - # v2 18 A. 196

216 Michael A. Carvin Louis K. Fisher Jones Day 51 Louisiana Avenue N.W. Washington, DC Telephone: (202) Fax: Bruce V. Spiva The Spiva Law Firm, PLLC 1776 Massachusetts Avenue, N.W., Ste. 601 Washington, DC Telephone: (202) Fax: (202) Jessica Ring Amunson Paul Smith Michael B. DeSanctis Kristen M. Rogers Christopher Deal Jenner & Block LLP 1099 New York Avenue, N.W., Ste. 900 Washington, DC Telephone: (202) Fax: (202) Stephen Hogge Stephen Hogge, Esq., LLC 117 South Gadsden Street Tallahassee, FL Telephone: (850) Cynthia S. Tunnicliff Peter M. Dunbar Pennington, Moore, Wilkinson, Bell & Dunbar, P.A. 215 South Monroe Street, 2nd Floor Tallahassee, FL Telephone: (850) Fax: (850) Harry O. Thomas Christopher B. Lunny Radey, Thomas, Yon & Clark, PA 301 South Bronough Street, Ste. Ste. 200 Tallahassee, Florida Telephone: (850) Fax: (850) Charles G. Burr Burr & Smith, LLP Grand Central Place 442 West Kennedy Blvd., Ste. 300 Tampa, FL Telephone: (813) Fax: (813) J. Gerald Hebert 191 Somervelle Street, #405 Alexandria, VA Telephone: (703) \255036\8 - # v2 19 A. 197

217 Victor L. Goode Dorcas R. Gilmore NAACP 4805 Mt. Hope Drive Baltimore, MD Telephone: (410) Fax: (410) Allison J. Riggs Anita S. Earls Southern Coalition For Social Justice 1415 West Highway 54, Ste. 101 Durham, NC Telephone: (919) Fax: (919) \255036\8 - # v2 20 A. 198

218 TAB 11

219 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, v. Plaintiffs, Case No CA 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, THE NATIONAL COUNCIL OF LA RAZA, et al., Plaintiffs, v. Case No CA KEN DETZNER, in his official capacity as Florida Secretary of State; THE FLORIDA SENATE; et al., Defendants ~/ LEGISLATIVE DEFENDANTS' SUPPLEMENTAL MEMORANDUM REGARDING LEGISLATIVE PRIVILEGE The Legislative Defendants respectfully submit this memorandum pursuant to the request of this Court at its hearing of the Legislative Defendants' Motion for Protective Order Based on Legislative Privilege on September 5, # vl A. 199

220 I. THE ASSERTION OF LEGISLATIVE PRIVILEGE DOES NOT WARRANT AN ADVERSE INFERENCE. First, this Court inquired whether the assertion of legislative privilege warrants an inference adverse to the Legislature. It does not. After Judge Hinkle held that the legislative privilege prohibits compelled legislator testimony on the question of "discriminatory purpose" under Section 5 of the federal Voting Rights Act, see State v. United States,--- F. Supp. 2d ----, 2012 WL (N.D. Fla. Aug. 10, 2012), the United States Department of Justice argued that the Court "should draw an adverse inference against the State because Florida deliberately chose not to put forward any legislator [deposition] testimony, and actively opposed the United States' and Intervenors' efforts to compel" such testimony, Florida v. United States,--- F. Supp. 2d ----, 2012 WL , at *44 n.65 (D.D.C. Aug. 16, 2012). The Court disagreed: Although there have certainly been section 5 cases in which legislators have testified during the litigation, drawing an adverse inference from the absence of such testimony would run contrary to the instruction of [Village of Arlington Heights v. Metropolitan Housing Corp., 429 U.S. 252 (1977)]. There, after stressing the relevance of legislators' contemporaneous statements, the Court said: "In some extraordinary instances the members might be called to the stand at trial to testify concerning the purpose of the official action, although even then such testimony frequently will be barred by privilege." 429 U.S. at 268. "This Court has recognized," it continued, "that judicial inquiries into legislative or executive motivation represent a substantial intrusion into the workings of other branches of government. Placing a decisiorimaker on the stand is therefore usually to be avoided."!d. at n. 18 (internal quotation marks omitted); see also UAW v. NLRB, 459 F.2d 1329, 1338 (D.C.Cir.l972) (holding that where a "judge plays a role in suppression of the evidence, the force of [any adverse] inference is dissipated").!d. Thus, in a recent case and related context, the Court declined to draw an adverse inference from the refusal of four Florida legislators to testify about the "purpose" of an enactment. Whether the assertion of a particular privilege warrants an adverse inference depends on the policies and purposes served by the privilege. The Fifth Amendment privilege against self-incrimination was designed to protect individuals from criminal liability, and protects all individuals who have "reasonable cause to apprehend danger from a direct answer." Ohio v. # vl 2 A. 200

221 Reiner, 532 U.S. 17,21 (2001) (quotingho.ffinan v. United States, 341 U.S. 479,486 (1951)); see also U.S. Const. Amend. V ("No person... shall be compelled in any criminal case to be a witness against himself." (emphasis added)). Thus, adverse inferences from assertions of the Fifth Amendment are barred in criminal cases, but not in civil cases. See Baxter v. Palmigiano, 425 U.S. 308, (1976). In civil suits, "an adverse inference to be drawn from the exercise of the [Fifth Amendment] privilege does not implicate the policy considerations underlying the privilege."!d. at 335 (Brennan, J., concurring in part and dissenting in part). By contrast, courts have held that assertion of the attorney-client privilege does not warrant an adverse inference. In Nabisco, Inc. v. PF Brands, Inc., 191 F.3d 208, 226 (2d Cir. 1999), abrogated on other grounds, Moseley v. V Secret Catalogue, Inc., 537 U.S. 418 (2003), the Court found "no precedent supporting such an inference based on the invocation of the attorney-client privilege." The "privilege is designed to encourage persons to seek legal advice, and lawyers to give candid advice, all without adverse effect." 191 F.3d at 226. If its assertion were to support an adverse inference, "persons would be discouraged from seeking opinions, or lawyers would be discouraged from giving honest opinions. Such a penalty for invocation of the privilege would have seriously harmful consequences."!d.; accord Knorr-Bremse Systeme Fuer Nutzfahrzeuge GmbHv. Dana Corp., 383 F.3d 1337, (Fed. Cir. 2004) (en bane); Parker v. Prudential Ins. Co. of Am., 900 F.2d 772, 774 (4th Cir. 1990); In re Terazosin Hydrochloride Antitrust Litig., 335 F. Supp. 2d 1336, 1365 (S.D. Fla. 2004). As another Court explained: The policy behind the Fifth Amendment privilege, by its own terms, relates to criminal law. The concern is that allowing a negative inference in a criminal action would allow the government to load up on a defendant or tilt the scales too far against a defendant. These policies have no application in civil law. The attorney-client privilege, to the contrary, applies both to criminal and civil law, it being a policy enacted to allow effective legal representation in any context. Thus, the Supreme Court's pronouncements in Baxter have no applicability to the attorney-client privilege. # vi 3 A. 201

222 THK Am., Inc. v. NSK, Ltd., 917 F. Supp. 563, 567 (N.D. Ill. 1996). The same principles apply in this case. The legislative privilege exists to protect the public interest in representative government. Unlike the privilege against self-incrimination, the legislative privilege does not presuppose that legislators have "reasonable cause to apprehend danger from a direct answer," Reiner, 532 U.S. at 21, and was not designed to avoid furnishing "the government with incriminating evidence from the speaker's own mouth," Grunewald v. United States, 353 U.S. 391, (1957). Instead, the privilege promotes comity among the coequal branches of government and secures the Legislature from intimidation and interference. An adverse inference would require legislators to choose between hostile inferences and hostile interrogation, and weaken the strict separation of powers envisioned by the Supreme Court. See, e.g., Whiley v. Scott, 79 So. 3d 702, 708 (Fla. 2011) ("In applying the separation of powers doctrine, the Court has done so strictly..."); Fla. House of Representatives v. Crist, 999 So. 2d 601, 611 (Fla. 2008) ("[W]e have 'traditionally applied a strict separation of powers doctrine.' (quoting Bush v. Schiavo, 885 So. 2d 321, 329 (Fla.2004))). It is inconceivable that Article II, Section 3, Florida Constitution, requires lawmakers to purchase their independence at the price of inferences hostile to their motivations and the validity of their enactments. Cf Doe v. Glanzer, 232 F.3d 1258, 1265 (9th Cir. 2000) ("[U]nder certain circumstances, within the civil framework, because of the constitutional nature of the right implicated, an adverse inference from an assertion of one's privilege not to reveal information is too high a price to pay."). It is not true, as Plaintiffs assert, that legislators who avoid wrongdoing have no reason to assert the privilege. It is the nature of politics to subject even the lawful conduct of wellintentioned legislators to cynical and sometimes severe and dishonest criticism. Of this, the # vi 4 A. 202

223 recent redistricting process was a prime example. And when legislators are hailed into court to answer for their votes, the chilling effect on the legislative process will be real and pronounced. In light of the policies and purposes served by the legislative privilege, an adverse inference is inappropriate. Like the Court in Florida, this Court should conclude that "judicial inquiries into legislative or executive motivation represent a substantial intrusion into the workings of other branches of government." 2012 WL , at *44 n.65 (quoting Vill. of Arlington Heights, 429 U.S. at 268 n.18). It should refuse to erode the separation of powers through adverse inferences from the assertion of a time-honored and constitutional privilege. II. LEGISLATIVE PRIVILEGE IS NOT WAIVED IN THE ABSENCE OF AN EXPLICIT AND UNEQUIVOCAL RENUNCIATION. Next, the Court requested the views of the parties regarding waiver of the legislative privilege. Like all privileges, the legislative privilege can be waived. But because the legislative privilege is an essential preservative ofthe constitutional separation of powers, waiver requires more than intentional relinquishment: it requires an "explicit and unequivocal renunciation." In United States v. Helstoski, 442 U.S. 477 (1979), the Supreme Court considered whether a member of Congress can waive legislative immunity against criminal prosecution for legislative acts. The Court explained that the purpose ofthe Speech and Debate Clause ofthe United States Constitution "was to preserve the constitutional structure of separate, coequal, and independent branches of government," and that therefore the "ordinary rules for determining the appropriate standard for waiver do not apply." 442 U.S. at 491. The Court articulated a higher standard: only an "explicit and unequivocal renunciation" can waive the Clause's protections. Courts have applied the same high standard to the evidentiary aspect of the legislative privilege. In 2BD Associates Limited Partnership v. County Commissioners for Queen Anne's County, 896 F. Supp. 528, 535 (D. Md. 1995), the Court held that county commissioners who # vl 5 A. 203

224 had voluntary answered certain deposition questions had not explicitly and unequivocally renounced the legislative privilege and may therefore assert the privilege with respect to other questions. 1 Similarly, in Greenberg v. Collier, 482 F. Supp. 200, (E.D. Va. 1979), where the plaintiffs sought to depose a legislator to determine the "true purpose" of certain legislation, the Court found no "explicit and unequivocal renunciation" of the privilege, even though the legislator had submitted an affidavit regarding the history of the legislation. Accord Wilkinson v. O'Neil, No. 81-0lOOA, 1983 WL (D. Guam App. Div. Apr. 6, 1983) (holding that the voluntary submission of an affidavit by a senator was not an "explicit and unequivocal" waiver and that the courts "must safeguard the legislature's freedom to engage in the creative and broadranging legislative activity which lies at the heart of representative democratic government."). In State v. Township of Lyndhurst, 650 A.2d 840 (N.J. Super. Ct. Ch. Div. 1994), the Court concluded that legislators' voluntary participation in a criminal investigation, voluntary 1 Judge Hinkle, who had read 2BD Associates Limited Partnership, explained the high standard for waiver as follows: If we were talking about attorney-client privilege or spousal privilege or priestpenitent privilege, and somebody went down to the comer store or to the nextdoor neighbors, or even worse, on national television and said, "Here's what I talked about with my lawyer, priest, spouse," we would say, "Well, the privilege has been waived with respect to that conversation," because that privilege is part and parcel of the interest in protecting the confidentiality of those communications. The legislative privilege, it seems to me... is different. We're not talking about... communication that is privileged because the communication was confidential. We're talking about the thoughts of a legislator that are privileged because the person is a legislator, and because making somebody sit down and answer questions in the judicial branch may not adequately respect the legislative branch. So the legislator stands up on the floor and says, "I think we should raise taxes, lower taxes, build more roads, build fewer roads." If all we cared about was confidential communications, we'd say, "Well, the legislator said it on the floor." But that's not what we care about. So we don't ask that legislator, "Why did you vote to build more roads?" (Mot. for Protective Order, Exh. A at 76-77, 82.) # vl 6 A. 204

225 submission of affidavits regarding legislative functions, and voluntary waiver of the privilege as to legislative staff did not waive the legislative privilege against compelled testimony. Because the privilege "is a function of the separation of powers designed to 'preserve the constitutional structure of separate, coequal, and independent branches of government,' the ordinary rules for waiver... do not apply." 650 A.2d at 844 (quoting Helstoski, 442 U.S. at 491). The legislative privilege in the New Jersey Constitution's Speech and Debate Clause was not "personal," but institutional; it implicates "the conduct of other legislators and the legislative process itself' and "involves the independence and integrity of a coequal branch of government. The necessity for an 'explicit and unequivocal waiver' reflects this distinction." Id. at 845.Z Communications with the press and public cannot waive the privilege. In Brown and Williamson Tobacco Corp. v. Williams, 62 F.3d 408, 421 n.11 (D.C. Cir. 1995), the Court held that a congressman who stated in a radio interview that his committee had received documents stolen from a law office did not waive the privilege and retained protection against a subpoena directed to those documents. InA Helping Hand, LLC v. Baltimore County, Md., 295 F. Supp. 2d 585 (D. Md. 2003), the Court concluded that a councilman did not waive the privilege when he discussed a bill with the press. The Court found "no authority to suggest that simply speaking to the press may constitute [an explicit and unequivocal] renunciation of the privilege." 295 F. Supp. 2d at 591. Further, the Court noted that "meetings with constituents and interest groups are ordinary legislative business and fall within the scope of the immunity." Id. (citing Bruce v. Riddle, 631 F.2d 272, (4th Cir. 1980). Thus, "public statements about legislative matters 2 Of course, a "legislator who agrees to testify... may be deposed; by voluntarily testifying, the legislator waives any legislative privilege on the subjects that will be addressed in the testimony." Florida, 2012 WL , at *1 (Hinkle, J.); accord Alexander v. Holden, 66 F.3d 62, 68 n.4 (4th Cir. 1995); Virgin Islands v. Lee, 775 F.2d 514, 520 n.7 (3d Cir. 1985). And the privilege does not bar members of the public unaffiliated with the Legislature from testifying to conversations with legislators. Cano v. Davis, 193 F. Supp. 2d 1177, 1179 (C.D. Cal. 2002). # vl 7 A. 205

226 would appear to be an ordinary function of representative government and therefore a matter covered by legislators' testimonial privilege." Id.; accord Northfield Dev. Co., Inc., v. City of Burlington, 523 S.E.2d 743, 750 (N.C. Ct. App. 2000) (no waiver where former council member "spoke with the newspapers, as there is no explicit showing he intended to waive the privilege"). To infer a waiver from contacts with the press and public would either discourage those contacts-an unacceptable consequence in a representative government-or render the legislative privilege altogether useless and nominal. See Johnson v. Metro. Gov 't of Nashville and Davidson County, No. 3: ,2009 WL , at *3 (M.D. Tenn. July 2, 2009) ("Indeed, finding a waiver [where legislators comment about the legislative process to the press] seems potentially unwise, as it could chill contact between legislators and the press."). As courts have explained in the related context of legislative immunity from civil liability, meetings with constituents and interested parties are inseparable from the legislative process. See, e.g., Almonte v. City of Long Beach, 478 F.3d 100, 107 (2d Cir. 2007) ("Meeting with persons outside the legislature... to discuss issues that bear on potential legislation... assist legislators in the discharge of their legislative duty. These activities are also a routine and legitimate part of the modern-day legislative process."); Bruce v. Riddle, 631 F.2d 272, 280 (4th Cir.1980) ("Meeting with 'interest' groups, professional or amateur, regardless of their motivation, is a part and parcel of the modern legislative procedures through which legislators receive information possibly bearing on the legislation they are to consider."). Communications with the press and public are so common and unavoidable that legislators would constantly-and unintentionally-waive the legislative privilege. On the other hand, legislators who attempted to preserve the privilege by silence in the face of inquiries from the press and public would dis serve the democratic process. # vi 8 A. 206

227 Communications with consultants retained by the Legislature do not waive the privilege. In fact, the privilege protects consultants from compelled testimony. In Gravel v. United States, 408 U.S. 606 (1972), a United States Senator convened a subcommittee and read passages from the Pentagon Papers. Earlier in the same day, the Senator had added to his staff Dr. Leonard S. Rodberg, a resident fellow at the Institute of Policy Studies, who had prepared the Senator for the hearing. 408 U.S. at 608. When a grand jury subpoenaed Rodberg, Rodberg asserted privilege. The Court held that Rodberg was entitled to claim the privilege. The legislator and his aide "are to be 'treated as one"': [I]t is literally impossible, in view of the complexities of the modem legislative process, with Congress almost constantly in session and matters of legislative concern constantly proliferating, for Members of Congress to perform their legislative tasks without the help of aides and assistants; that the day-to-day work of such aides is so critical to the Members' performance that they must be treated as the latter's alter egos; and that if they are not so recognized, the central role of the Speech or Debate Clause-to prevent intimidation of legislators by the Executive and accountability before a possibly hostile judiciary-will inevitably be diminished and frustrated. Id. at (citation omitted). In Arizona Independent Redistricting Commission v. Fields, 75 P.3d 1088 (Ariz. Ct. App. 2003), the Court applied Gravel to consultants retained by a redistricting commission. It found "no practical difference... between placing a consultant temporarily 'on staff,' as Senator Gravel did with Dr. Rodberg, and retaining the same consultant as an independent contractor." 75 P.3d at Entitlement to the privilege "turned on the function fulfilled"-not the "job title"-because the "manner of employment does not affect the consultant's function within the legislative process." Id.; accord Favors v. Cuomo, ---F. Supp. 2d ----, 2012 WL , at # vl 9 A. 207

228 *20 (E.D.N.Y. Aug. 10, 2012) (holding that communications with a consultant retained to assist in redistricting were privileged); Holmes v. Farmer, 475 A.2d 976, (R.I. 1984) (same). 3 Consultants are within the legislative privilege because legislatures (including the Florida Legislature) frequently collaborate with outside consultants in the development of complex and technical policies, from health care to redistricting. Fields, 75 P.3d at Thus, a "cramped interpretation of the legislative privilege" that excludes retained consultants "would constrain legislators from freely engaging in legislative acts without the threat of executive or judicial oversight; the core concern of legislative privilege." Id. As one court explained: Legislators must be permitted to have discussions and obtain recommendations from experts retained by them to assist in their legislative functions, without vitiating or waiving legislative privilege. To hold otherwise under the particular circumstances of this case would impair the legislative function by requiring them to exclude their own retained experts from the critical legislative conversations about the precise issues the experts were hired to address. ACORN v. City of Nassau, No. 05-cv-2301, 2009 WL , at *6 (E.D.N.Y. Sep. 10, 2009). The small number of cases to the contrary are conclusory and unsupported, and they fail to appreciate the inevitable realities of modem lawmaking. See Baldus v. Brennan, No. 11-CV- 562, 2011 WL , at *2 (E.D. Wis. Dec. 8, 2011); Comm.for a Fair & Balanced Map v. Ill. State Bd. of Elections, No. 11-C-5065, 2011 WL , at *10 (N.D. Ill. Oct. 12, 2011). Well-reasoned precedent holds, therefore, that (i) a waiver of the privilege must be "explicit and unequivocal"; (ii) that communications with the press and public do not waive the privilege; and (iii) retained consultants, like legislative staff, are protected by the privilege. 4 3 In Fields, the Court also held that the designation of an outside consultant who participated in the legislative process as a testifying expert in litigation is a waiver of the privilege as to the consultant, who may then be deposed and subjected to other discovery in accordance with judicial rules of procedure. 75 P.3d at Plaintiffs' attempt to question legislative staff about instructions received from legislators conflicts with Section 11.26(1 ), Florida Statutes, which provides that no "employee of # vl 10 A. 208

229 Ill. PLAINTIFFS CANNOT SHOW A MORE IMPORTANT GOVERNMENTAL INTEREST. This Court noted that the legislative privilege is a qualified privilege, and asked the parties to consider what interests might outweigh the legislative privilege as a "more important governmental interest." See Fla. House of Representatives v. Expedia, Inc., 85 So. 3d 517 (Fla. 1st DCA 2012). Expedia mentioned only criminal prosecutions, and the cases on which it relied recognize a clear distinction between civil litigation and criminal prosecution. The phrase "more important governmental interest" does not appear in any legislativeprivilege case besides Expedia. To complicate the task, cases in other states differ dramatically in the limitations placed on the privilege. At one end of the spectrum, the privilege is absolute. See, e.g., Copsey v. Baer, 593 So. 2d 685, 688 (La. Ct. App. 1991). At the opposite extreme, the privilege yields to an imprecise and endlessly manipulable "balancing test." See, e.g., Favors v. Cuomo,--- F. Supp. 2d ----,2012 WL , at *17 (E.D.N.Y. Aug. 10, 2012). In this respect, decisions from other states are unhelpful. This Court must look to Expedia and apply it in light of the "strict separation of powers" embodied in Article II, Section 3 of the Florida Constitution. See Crist, 999 So. 2d at 611 (quoting Schiavo, 885 So. 2d at 329). Expedia specifically discussed two cases in connection with the "more important governmental interest" standard: United States v. Nixon, 418 U.S. 683 (1974), and Girardeau v. State, 403 So. 2d 513 (Fla. 1st DCA 1981 ). In Nixon, a grand jury subpoenaed various materials in the possession of the President of the United States, who asserted absolute executive privilege. The Court rejected the claim, concluding that the fundamental importance of criminal justice and the rule of law superseded the privilege: "The impediment that an absolute, unqualified privilege the Legislature" may "reveal to any person outside the area of the employee's direct responsibility the contents or nature of any request for services made by any member of the Legislature, except with the consent of the member making such request." # vl 11 A. 209

230 would place in the way of the primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions would plainly conflict with the function ofthe courts... " 418 U.S. at 707; see id. at ("But this presumptive privilege must be considered in light of our historic commitment to the rule of law. This is nowhere more profoundly manifest than in our view that 'the twofold aim (of criminal justice) is that guilt shall not escape or innocence suffer.'" (quoting Berger v. United States, 295 U.S. 78, 88 (1935))). The Court explained that the production of all evidence at a criminal trial is a right of "constitutional dimensions": [T]he allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial could cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts. A President's acknowledged need for confidentiality in the communications of his office is general in nature, whereas the constitutional need for production of relevant evidence in a criminal proceeding is specific and central to the fair adjudication of a particular criminal case in the administration of justice. Without access to specific facts a criminal prosecution may be totally frustrated. Id. at The Court declined to address the application ofthe privilege to civil litigation, id. at 712 n.19, but held that the executive privilege "must yield to the demonstrated, specific need for evidence in a pending criminal trial," id. at 713. In Girardeau, a member of the Florida Legislature who, in the course of legislative activities, had received possible evidence of a crime, refused to testify before a grand jury. The Court did not decide whether the privilege existed because, at any rate, the privilege "cannot override or defeat the pressing need of the criminal justice system... for evidence of a crime alleged to have been committed in this state." 403 So. 2d at 517. Quoting at length from Nixon, the Court explained that "[i]fthere is one principle that emerges clearly from the now legendary 'Watergate' episode, it is that even the power of the [President] cannot override the power of the judicial branch to compel a full disclosure of the facts in a criminal investigation."!d. # vi 12 A. 210

231 After Nixon and before Girardeau, the Supreme Court decided United States v. Gillock, 445 U.S. 360 (1980). In Gillock, a state legislator indicted under federal criminal laws asserted that the legislative privilege barred the introduction of evidence relating to legislative activities. The Court rejected the claim, explaining that, "in protecting the independence of state legislators, [Tenney v. Brandhove, 341 U.S. 367 (1951)] and subsequent cases have drawn the line at civil actions." 445 U.S. at 373 (emphasis added). Thus, the Court distinguished civil and criminal cases and held that, in criminal matters, "an evidentiary privilege for state legislators would impair the legitimate interest of the Federal Government in enforcing its criminal statutes."!d. Expedia stressed the criminal aspect ofthese and similar cases. See 85 So. 3d at 521 (noting, in its discussion of Girardeau, that the privilege "could not be asserted in any event to withhold information from a grand jury investigating a crime"); id. at 522 (noting, as to Gravel v. United States, 408 U.S. 606 (1972), that "the privilege cannot be used, in any event, as a shield against the commission of a crime"); id. at 523 (noting, as to Nixon, that "recognizing the existence of executive privilege but holding that it is not absolute, in that it cannot be asserted to shield evidence of a crime"); id. at 525 (noting, in its discussion of Girardeau, that "we adhere to our decision in Girardeau that the privilege could not be used to withhold evidence of a crime"). Notably, Judge Hinkle did not find that claims under Section 5 of the Voting Rights Act present a "more important governmental interest." In State v. United States,--- F. Supp. 2d ----, 2012 WL (N.D. Fla. Aug. 10, 2012), Judge Hinkle noted the Expedia decision, but nevertheless concluded that Voting Rights Act litigation is not uniquely important: But even if the state legislative privilege is qualified in civil as well as criminal cases, there is no reason not to recognize the privilege here. Voting Rights Act cases are important, but so are equal-protection challenges to many other state laws, and there is nothing unique about the issues of legislative purpose and privilege in Voting Rights Act cases. # vi 13 A. 211

232 2012 WL , at *3. 5 Judge Hinkle found that claims under the Voting Rights Act do not present an overriding governmental interest, even though the Voting Rights Act was adopted pursuant to Congress' authority to enforce the Civil War Amendments to the United States Constitution-amendments "designed to remedy pervasive racial discrimination," Nipper v. Smith, 39 F.3d 1494, (11th Cir. 1994) (en bane). If any civil case presents a "more important governmental interest," it would have been an action under the Voting Rights Act. Expedia contains no suggestion that the legislative privilege must yield in some civil cases, but not others. 6 Cases implicating the freedom of speech and religion, due process, and equal protection-cherished rights secured by Florida's Declaration of Rights-are all important, and each might entail an inquiry into legislative purpose or motive. If the Court were to set aside the privilege in this case, the privilege might routinely be discarded in litigation to enforce any of these constitutional provisions. It would further invite any person (not limited to these Plaintiffs) to challenge redistricting plans and depose the legislators of their choice. Only last week, the LOWV Plaintiffs brought a challenge to the new State Senate districts. See League of Women Voters of Fla. v. Detzner, No CA-2842 (Fla. 2d Cir. Ct.). Ifthe privilege is disregarded here, interference with the independence of the Legislature would become commonplace. Plaintiffs' reliance on cases in other jurisdictions is flawed. Plaintiffs cite cases with relaxed, multi-factored balancing tests, rather than the strict standard announced in Expedia and 5 While Judge Hinkle applied the federal law of privilege, Florida law was not irrelevant to his decision. Judge Hinkle recognized that "surely, it would affect the analysis if the state didn't recognize the privilege. The grounds for recognizing a federal privilege of a Florida State Legislator would be substantially weaker if Florida itself did not recognize such a privilege." (Mot. for Protective Order, Exh. A at 95.) 6 Any attempt to distinguish one civil case from another would be painfully subjective. As Judge Hinkle explained: "And, candidly, if I were trying to rank cases by importance, I'm not sure how I'd do that. The man and his family who were in court before we started this morning for a sentencing probably think that case was important, and I think it was." (See Mot. for Protective Order, Exh. A at 100.) # vl 14 A. 212

233 demanded by the Florida Constitution's separation-of-powers provision. In addition, Plaintiffs confuse the "deliberative-process privilege" with the legislative privilege, despite their obvious differences. Unlike the legislative privilege, the deliberative-process privilege was originally designed to protect the executive branch, has ordinarily been applied to agency documents, and originated in public policy considerations, not in the constitutional separation of powers. See Kay v. City of Rancho Palos Verdes, No. CV , 2003 WL , at *15-16 (C.D. Cal. Oct. 10, 2003); accord Corporacion Insular de Seguros v. Garcia, 709 F. Supp. 288, 295 (D.P.R. 1989), ("[T]he main justification for the deliberative process privilege has little to do with the separation of powers, as opposed to the legislative privilege, and much to do with the public policy of protecting confidential exchanges of opinions and advice within the executive branch."). Thus, Plaintiffs emphasize that the deliberative-process privilege affords protection only where government decision-making is "collateral" to the litigation, but legislative-privilege cases do not recognize the same limitation. See, e.g., City of Las Vegas v. Foley, 747 F.2d 1294, 1298 (9th Cir. 1984) ("Even where a plaintiff must prove invidious purpose or intent,... the [Supreme] Court has indicated that only in extraordinary circumstances might members of the legislature be called to testify, and even in these circumstances the testimony may be barred by privilege."); Orange v. County of Suffolk, 855 F. Supp. 620,623 (E.D.N.Y. 1994) (same). Plaintiffs' heavy reliance on deliberative-process privilege cases is hardly surprising, since "the common-law deliberative process privilege [is] weaker than, and thus more readily outweighed than, the constitutionally-rooted legislative process privilege." Kay, 2003 WL , at *18. # vl 15 A. 213

234 IV. PLAINTIFFS' CONTENTIONS UNDER THE PUBLIC RECORDS ACT ARE MISGUIDED. Plaintiffs argue that, as to documents, the Public Records Act defeats the legislative privilege. The Legislative Defendants, however, have asserted the privilege only with respect to documents expressly and statutorily exempted from disclosure under the Public Records Act. The Legislative Defendants have not asserted the privilege with respect to all records that relate to redistricting. Quite to the contrary, the Legislative Defendants have produced more than 25,000 documents, many of which include scores or even hundreds of pages. (Plaintiffs, on the other hand, have produced a single PDF document containing 38 pages of scanned press releases and bulk s.) The Legislative Defendants have also produced privilege logs that identify all responsive documents as to which they have asserted the legislative privilege. The number of those documents, in comparison with the number already produced, is miniscule. Section (2)(e), Florida Statutes, exempts draft redistricting plans and, until a bill embodying that draft is filed, supporting documents. The Legislative Defendants have produced member communications that relate to plans filed as bills (unless protected otherwise than by legislative privilege) and have therefore produced records of communications which, but for the Public Records Act, would be privileged. Ultimately, the clearest articulation oflegislative intent is the redistricting plan adopted by the Legislature-not drafts which the Legislature either rejected or never considered. To the extent the Public Records Act allows access to records that otherwise would be protected by legislative privilege, Plaintiffs have been afforded such access. V. CONCLUSION. The Court should adhere to Expedia and the strict separation of powers reflected in the Florida Constitution. The legislative privilege has not been waived, and Plaintiffs cannot show a "governmental interest" more important than the separation of powers, which the Supreme Court # vi 16 A. 214

235 described as the "cornerstone of American democracy." Schiavo, 885 So. 2d at 329. Because the legislative privilege serves purposes fundamental to balanced government, its assertion does not admit an adverse inference. Accordingly, the Court should grant the Legislative Defendants' Motion for Protective Order Based on Legislative Privilege and deny the requested discovery. Respectfully submitted this tenth day of September # vl 17 A. 215

236 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing was sent by electronic mail on September 10, 2012, to the persons listed on the attached Service List. Is/ Leah Marino Leah L. Marino (FBN ) Deputy General Counsel The Florida Senate Suite 409, The Capitol 404 South Momoe Street Tallahassee, FL (850) Facsimile (850) marino.leah@flsenate. gov Attorneys for the Florida Senate Is/ George N Meros, Jr. Charles T. Wells (FBN ) George N. Meros, Jr. (FBN ) Jason L. Unger (FBN ) Allen Winsor (FBN ) Charles B. Upton II (FBN ) GRAYROBINSON, P.A. Post Office Box Tallahassee, Florida (850) Facsimile (850) Charles.Wells@gray-robinson.com George.Meros@gray-robinson.com J ason.unger@gray-robinson.com Allen.Winsor@gray-robinson.com CB.Upton@gray-robinson.com Miguel De Grandy (FBN ) 800 Douglas Road, Suite 850 Coral Gables, Florida (305) Facsimile (305) mad@degrandylaw.com George T. Levesque (FBN ) General Counsel Florida House of Representatives 422 The Capitol Tallahassee, Florida (850) George.Levesque@myfloridahouse.gov Attorneys for the Florida House of Representatives # vl 18 A. 216

237 SERVICE LIST Joseph W. Hatchett Akerman Senterfitt 106 E. College Avenue, Ste Tallahassee, FL Telephone: (850) Fax: (850) com Jon L. Mills Elan N ehleber Boies, Schiller & Flexner LLP 100 SE 2nd Street, Ste Miami, FL Telephone: (305) Fax: (305) jmills@bsfllp.com enehleber@bsfllp.com AbhaKhanna Kevin J. Hamilton Marc Elias Perkins Coie, LLP 1201 Third Avenue, Ste Seattle, WA Telephone: (206) Fax: (206) akhanna@perkinscoie. com khamilton@perkinscoie. com melias@perkinscoie. com Timothy D. Osterhaus Solicitor General Blaine H. Winship Office Of Attorney General Capitol, Pl-01 Tallahassee, FL Telephone: (850) Fax: (850) timothy.osterhaus@myfloridalegal.com blaine.winship@myfloridalegal.com Karen C. Dyer Boies, Schiller & Flexner LLP 121 South Orange Avenue, Ste. 840 Orlando, FL Telephone: (407) Fax: (407) kdyer@bsfllp. com John M. Devaney Mark Erik Elias Perkins Coie, LLP 700 Thirteenth Street, NW, Ste. 700 Washington, DC Telephone: (202) Fax: (202) j devaney@perkinscoie. com melias@perkinscoie.com Ronald Meyer Lynn Hearn Meyer, Brooks, Demma and Blohm, P.A. 131 North Gadsden Street Post Office Box 1547 (32302) Tallahassee, FL Telephone: (850) Fax: (850) rmeyer@meyerbookslaw.com lheam@meyerbrookslaw.com Daniel E. Nordby General Counsel Ashley Davis Assistant General Counsel Florida Department Of State R.A. Gray Building 500 S. Bronaugh Street Tallahassee, FL Telephone: (850) Cell: (850) daniel.nordby@dos.myflorida.com ashley.davis@dos.myflordia.com # vi 19 A. 217

238 Michael A. Carvin Louis K. Fisher Jones Day 51 Louisiana Avenue N.W. Washington, DC Telephone: (202) Fax: Bruce V. Spiva The Spiva Law Firm, PLLC 1776 Massachusetts Avenue, N.W., Ste. 601 Washington, DC Telephone: (202) Fax: (202) Jessica Ring Amunson Paul Smith Michael B. DeSanctis Kristen M. Rogers Christopher Deal Jenner & Block LLP 1099 New York Avenue, N.W., Ste. 900 Washington, DC Telephone: (202) Fax: (202) enner.com Stephen Hogge Stephen Hogge, Esq., LLC 117 South Gadsden Street Tallahassee, FL Telephone: (850) Cynthia S. Tunnicliff Peter M. Dunbar Pennington, Moore, Wilkinson, Bell & Dunbar, P.A. 215 South Monroe Street, 2nd Floor Tallahassee, FL Telephone: (850) Fax: (850) Harry 0. Thomas Christopher B. Lunny Radey, Thomas, Yon & Clark, P A 301 South Bronaugh Street, Ste. Ste. 200 Tallahassee, Florida Telephone: (850) Fax: (850) hthomas@radeylaw. com clunny@radeylaw.com Charles G. Burr Burr & Smith, LLP Grand Central Place 442 West Kennedy Blvd., Ste. 300 Tampa, FL Telephone: (813) Fax: (813) cburr@burrandsmithlaw.com J. Gerald Hebert 191 Somervelle Street, #405 Alexandria, VA Telephone: (703) hebert@voterlaw.com # vl 20 A. 218

239 Victor L. Goode Dorcas R. Gilmore NAACP 4805 Mt. Hope Drive Baltimore, MD Telephone: ( 41 0) Fax: (410) vgoode@naacpnet. org dgilmore@naacpnet.org Allison J. Riggs Anita S. Earls Southern Coalition For Social Justice 1415 West Highway 54, Ste. 101 Durham, NC Telephone: (919) Fax: (919) allison@southemcoalition.org anita@southemcoalition.org # vi 21 A. 219

240 TAB 12

241 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 CA 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; et al., vs. Plaintiffs,, c-_, _.. :--:.:, :--- -q ---' f~c-_. C:J ( --) :;:f)'--- o--'-' )->-j KEN DETZNER, in his official capacity as Florida Secretary of State; THE FLORIDA SENATE, et al., Defendants ~/ ROMO PLAINTIFFS' SUPPLEMENTAL BRIEF RELATING TO LEGISLATIVE DEFENDANTS' MOTION FOR PROTECTIVE ORDER BASED ON LEGISLATIVE PRIVILEGE I. Introduction Pursuant to the Court's directive during the hearing on September 5, 2012, relating to the Legislative Defendants' motion for a protective order ("Defendants' Motion"), the Romo Plaintiffs submit this supplemental brief that provides case law and additional discussion of four issues that are triggered by the Defendants' Motion:(!) { ;1} A. 220

242 whether courts have rejected claims of legislative privilege in favor of the public interest in transparency in legislative decision-making; (2) whether the legislative privilege can be waived and the circumstances that can result in a waiver; (3) whether Defendants should be barred from presenting testimony from legislators about the congressional map if the Comi accepts their claim of legislative privilege; and (4) whether Plaintiffs will be entitled to an adverse evidentiary inference against Defendants if Plaintiffs are prevented from taking depositions of legislators and discovering other relevant evidence about the Defendants' redistricting process and decision-making. In the discussion that follows, which supplements their prior briefing and oral argument on these issues, the Romo Plaintiffs provide multiple examples of courts rejecting legislative privilege and other privileges based upon the compelling public interest in transparency in legislative decision-making. Courts have reached this conclusion in several redistricting cases, finding that the importance of understanding the legislature's intent in enacting a voting map outweighs the legislature's desire to protect its decision-making from public scrutiny. Significantly, this case presents even more compelling reason for rejecting legislative privilege because of Amendment 6's strict prohibition against any intent by the Florida Legislature to favor a political party or an incumbent in drawing a map - a standard that is more stringent than any at issue in the cases discussed below. As also shown below, a decision to shield legislative decision-making from public scrutiny does not come without a litigation cost to a legislature that asserts the privilege. Courts have routinely barred legislatures from asserting legislative privilege, precluding discovery of relevant evidence, and then trying to present testimony from legislators or { ;1} 2 A. 221

243 legislative employees at trial. That result should follow here if the Court accepts the Defendants' claim of privilege, as Plaintiffs would be severely prejudiced if legislators were pe1mitted to testify without proper advance disclosures in discovery. Finally, decisions from multiple courts make it clear that the legislative privilege can be waived. While the Romo Plaintiffs urge the Comito reject Defendants' claim of legislative privilege in its entirety, if the Court is inclined to allow the claim, it should conduct an in camera review of the many documents Defendants are withholding from discovery to determine if there has been a waiver. II. Discussion A. Courts Have Regularly Rejected Legislative Privilege In Favor Of The More Compelling Interest In Public Disclosure Of The Legislative Decision-Making Process In Redistricting Cases Courts have consistently held that legislative privilege, to the extent it may exist, is qualified and subject to a balancing test that requires weighing the importance of the information a legislature seeks to withhold. In Baldus v. Brennan, Nos. 11-cv-562, 11- cv-1011, 2011 WL (E.D. Wis. Dec. 8, 2011), for example, the Wisconsin Legislature asserted legislative privilege in response to plaintiffs' requests for documents and testimony from a redistricting consultant to the Wisconsin legislature and from a legislative aide. Applying a balancing test, the court found that any potential future chilling effect on the legislature was minimal and was outweighed by the compelling, legitimate need for plaintiffs to discover infmmation about the redistricting process.!d. at *2 ("Allowing the plaintiffs access to these items may have some minimal future 'chilling effect' on the Legislature, but that fact is outweighed by the highly relevant and potentially unique nature of the evidence... given the serious nature of the issues in this case and the government's role in crafting the challenged redistricting plans, the Court { ;1} 3 A. 222

244 finds that legislative privilege simply does not apply to the documents and other items the plaintiffs seek in the subpoenas they have issued.") (citations omitted). As an additional ground for its ruling, the court found that even if legislative privilege applied, the legislature "waived its legislative privilege to the extent that it relied on... outside experts for consulting services."!d. In Baldus, after the Wisconsin Legislature failed to comply with the ruling that legislative privilege did not apply, the Court sanctioned counsel for disregarding the ruling. The Court again explained the importance of the Legislature disclosing information about its redistricting decision-making, stating emphatically that "the Legislature has taken action that affects the voting rights of Wisconsin's citizens and now attempts to cloak the record of that action behind a charade masking as privilege." Baldus v. Brennan, 843 F. Supp. 2d 955 (E.D. Wis. 2012). The couti continued, stating that "the Legislature and the actions of its counsel give every appearance of flailing wildly in a desperate attempt to hide from both the Court and the public the true nature of exactly what transpired in the redistricting process." Jd In Favors v. Cuomo, No. 11-cv-5632 (DLI) (RR) (GEL), 2012 WL (E.D.N.Y. Aug. 10, 2012), legislator defendants similarly sought a protective order batting plaintiffs from obtaining documents regarding legislators' motivations. The three-judge federal district comi panel observed that the "clear weight of authority" holds that "the legislative privilege is qualified and subject to a judicial balancing test." Jd. at *21; see also id. at *25 ("This Court, like nearly every court to address the issue in the redistricting context, concludes that state legislators ej\ioy only a qualified evidentiary privilege."). The Court also found that the relevant factors "generally support[ed] { ; I) 4 A. 223

245 overcoming the privilege" and is in the process now of "perform[ing] an analysis of the allegedly privileged documents, in camera, prior to ruling as to the specific documents (or categories of documents) over which the privilege has been invoked."!d. at *28. Another leading decision on whether privilege may protect legislative decisionmaking in the context of redistricting is United States v. Irvin, 127 F.R.D. 169 (C.D. Cal. 1989), which involved claims under the Voting Rights Act. There, the federal government sought documents and testimony regarding the intent of county redistricting officials. 1 The officials objected, invoking the deliberative process privilege. After balancing multiple factors, the court further held that the privilege had to yield and ordered disclosure of both documents and testimony.!d. at 174. Responding to concerns about the "chilling effects" of disclosing legislative deliberations, the court stated that it was "not convinced that the occasional instance in which disclosure may be ordered in a civil context will add measurably to the inhibitions already attending legislative deliberations."!d. See also Committee for a Fair and Balanced Map v. Ill. State Bd. of Elections, No. 11-C-5065, 2011 WL at 10 (N.D. Ill. Oct. 12, 2011) (finding that while legislative privilege provides some protection, "It does not protect facts or information available to lawmakers at the time of their decision); Rodriguez v. Pataki, 280 F. Supp. 2d 89, 100 (S.D.N.Y. 2003) ("A legislator may be required to disgorge documents or provide other inf01mation in appropriate circumstances," and "in deciding whether and to what extent the [legislative] privilege should be honored, the Court must 1 Defendants may argue that cases involving decision-making bodies other than state legislatures are inapposite. See Defs.' Reply in Support of Mot. for Protective Order II. There is no basis for such a distinction. In fact, Arlington Heights v. Metro. Housing Corp., 429 U.S. 252 (1977), the case that Defendants rely heavily upon to define the privilege that they claim, involved the decisions of a village mayor, zoning board and board of trustees, not a state legislature at all.!d. at 255. { ;1) 5 A. 224

246 balance the extent to which production of the information sought would chill the New York State Legislature's deliberations concerning such important matters as redistricting against any other factors favoring disclosure"; the court eventually required production of memorandum to legislator relating to racial issues and redistricting). 2 B. Any Privilege the Legislative Defendants Could Have Claimed Has Been Waived Even if the Defendants' claimed need for secrecy could override Florida voters' constitutional interest in a legal redistricting plan, any privilege Defendants might have been able to claim has been waived for several reasons. In evaluating these grounds for waiver, it is imp011ant to remember that a "waiver of [legislative] privilege need not be 'explicit and unequivocal,' and may occur either in the course of the litigation... or when purportedly privileged communications are shared with outsiders." Favors v. 2 In addition to the cases in which comis have found that the privilege yields, a number of comis have held that, where legislative intent is itself the central issue in the case, the legislative and deliberative process privileges simply does not apply, as it would undermine the law sought to be enforced. See, e.g., In re Subpoena Duces Tecum Served on Off of Comptroller of Currency, 145 F.3d 1422, 1424 (D.C. Cir. 1998) (deliberative process privilege inapplicable when cause of action "turns on the govemment's intent"); East End Ventures, LLC v. Inc. Village of Sag Harbor, 2011 WL , at *3-4 (E.D.N.Y. Dec. 19, 2011) ("The [legislative] privilege, however, may be inapplicable where the legislative deliberations are among the central issues in the case... Because the subject matter on which Plaintiffs seek testimony is one of the central issues in this case, the legislative privilege is inapplicable."); Acorn v. County of Nassau, No. CV ,2008 WL , at *4 (E.D.N.Y. 2008) ("When the decision making process is itself at issue, pmiicularly in civil rights actions, the deliberative process privilege and other privileges designed to shield that process from public scrutiny may not be raised as a bar against disclosure of relevant information; it must yield to the oveniding public interest in challenging discrimination.") (internal quotation marks and citations omitted); Children First Found., Inc. v. Martinez, No ,2007 WL , at *7 (N.D.N.Y. Dec.IO, 2007) (explaining that the "historical and overwhelming consensus and body of law within the Second Circuit is that when the decision-making process itself is the subject of the litigation, the deliberative process privilege cannot be a bar to discovery"); Jones v. City of College Park, 237 F.R.D. 517, 521 (N.D. Ga. 2006) (concluding that deposition testimony of officeholders is appropriate where "government intent is at the heart of the issue in this case"). {251!4927;1} 6 A. 225

247 Cuomo, 2012 WL , at *19 (E.D.N.Y. Aug. 10, 2012) (quoting Almonte v. City of Long Beach, 2005 WL , at *3-4 (E.D.N.Y. July 27, 2005)). First, where, as here, legislators intervene in a case they did not have to be party to, and then seek the benefits but not the burdens of litigation, they lose any claim of privilege. For example, in Powell v. Ridge, 247 F.3d 520 (3d Cir. 2001), the Third Circuit held that legislators who intervened in the case could not avoid discovery while remaining parties and seeking discovery themselves: [T]he Legislative Leaders build from scratch a privilege which would allow them to continue to actively participate in this litigation by submitting briefs, motions, and discovery requests of their own, yet allow them to refuse to comply with and, most likely, appeal from every adverse order. As we noted at the outset,... the privilege they propose would enable them to seek discovery, but not respond to it; take depositions, but not be deposed; and testify at trial, but not be cross-examined. In short, they assert a privilege that does not exist. Id. at 525. What the court forbade in Powell is exactly what Defendants seek here. While they claim to be exempt from depositions or producing documents, they have chosen to intervene in the case and have demanded extensive discovery from plaintiffs. Such a privilege "does not exist." Jd. Second, "[a]s with any privilege, the legislative privilege can be waived when the parties holding the privilege share their communications with an outsider." Comm. for a Fair & Balanced Map v. Illinois State Bd. of Elections, 2011 WL , at* 10 (N.D. Ill. Oct. 12, 2011) (citing ACORN v. County of Nassau, 2007 WL , at *4 (E.D.N.Y. Sept. 25, 2007) (same)); see also Almonte, 2005 WL , at *3-4 (same). Thus, "the legislative privilege does not apply" to any matter legislators discussed with those outside the Legislature, including "consultants," "experis," "members of Congress," "lobbyists," or political operatives. Comm. for a Fair & Balanced Map, 2011 { ;1} 7 A. 226

248 WL , at *10 (citing ACORN, 2007 WL , at *4; Rodriguez v. Pataki, 280 F. Supp. 2d 89, 101 (S.D.N.Y. 2003)). '"While legislators are ce1iainly free to seek information from outside sources, they may not assume that every such contact is forever shielded from view... [A] contrary ruling would allow a legislator to cloak any communication with legislative privilege by simply retaining an outsider in some capacity." Id (quoting ACORN, 2007 WL , at *6); see also Baldus v. Brennan, 201 I WL , at *2 (E.D. Wis. Dec. 8, 2011) ("The Legislature has waived its legislative privilege to the extent that it relied on such outside experts for consulting services."). In shoji, the Legislative Defendants cannot asse1i the privilege as to any subject matter they discussed with those outside the Legislature. It is clear from Defendants' privilege logs, however, that they are withholding a wide range of documents and information they shared with outsiders. For example, Defendants seek to withhold based on legislative privilege communications they had with Michael Carvin, a lawyer in Washington, DC. Senate Privilege Log pages I 0, 35. They also seek to withhold communications with Bob West, a "Database and Political Consultant" based in Tallahassee. Senate Privilege Log pages 17, 22. They even claim the privilege as to s to and from Ryan Terrell, apparently a college student who submitted a draft plan. Senate Privilege Log page 141. Such "conversation[s] between legislators and... outsiders" are ones "for which no one could seriously claim privilege." Rodriguez, 280 F. Supp. 2d at 101. Yet Defendants do exactly that. As to such communications, and their subject matter, Defendants have clearly waived any claim of legislative privilege. See, e.g., Comm.for a Fair & Balanced Map, 201 i WL , at *I 0 (finding the privilege waived as to any matter legislators discussed with ( ; I} 8 A. 227

249 "consultants," "experts," "members of Congress," "lobbyists," or political operatives) (citing ACORN, 2007 WL , at *4; Rodriguez, 280 F. Supp. 2d at 101). Finally, as Defendants' conceded at oral argument last week, the privilege - to the extent it exists- is individual to each legislator; it is not a collective privilege of the legislative body as a whole. See Alamonte, 2005 WL , at *3 n.2. As such, each individual legislators may either voluntarily choose to submit to depositions or authorize their papers to be disclosed through discovery or, through their actions, affect a waiver of the privilege. Put simply, "it is not up to the [Legislature] to assert or waive the privilege; the [legislators] must do so for themselves." ld. Thus, even if the Comi finds that the individual legislators may be entitled to claim a privilege under the circumstances of this case, Plaintiffs should be petmitted "to notice for deposition individual... legislators and to require each of those persons to asseti the privilege on his own behalf." I d. (internal quotations and citation omitted). As with the assertion of other privileges, Plaintiffs should similarly be petmitted to engage in limited questioning of even those legislators that assert a privilege, in order to determine whether the privilege has been properly asserted or ifthere is an argument that the legislator has waived the privilege. C. If The Legislature Is Permitted To Avoid Discovery Based On Legislative Privilege, Defendants Should Not Be Allowed To Present Evidence At Trial In Support Of Legislative Intent If the Court does uphold the Legislative Defendants' claim of privilege, innumerable cases make clear that no legislator may then be allowed to testify or submit evidence in support of the constitutionality of the enacted plan: [ C]ourts have been loath to allow a legislator to invoke the privilege at the discovery stage, only to selectively waive it thereafter in order to offer evidence to suppmi the legislator's claims or defenses. Accordingly, once { ;1) 9 A. 228

250 the privilege is invoked, the Comi should not later allow the proponent of the privilege to strategically waive it to the prejudice of other pmiies. e Favors, 2012 WL , at* 19 (citation omitted). In other words, legislators "cannot invoke the privilege as to themselves yet allow others to use the same information against plaintiffs at trial."!d. at 11 (citing Brown v. City of Detroit, 259 F.Supp.2d 611, (E.D. Mich. 2003); Pacific Gas & Elec. Co. v. Lynch, 2002 WL , at *3 (N.D. Cal. Aug.19, 2002)). Cf Int'l Tel. & Tel. Corp. v. United Tel. Co. of Fla., 60 F.R.D. 177, 186 (M.D. Fla. 1973)). ("Fundamental fairness and justice requires that if the defendant intends to waive the privilege at trial by the introduction of evidence within that privilege, then the defendant will be required to allow discovery with regard to matters material to that testimony."). Thus, if it grants Defendants' motion, the Court should bar Defendants from later testifying or submitting evidence in support of the enacted plan. D. Plaintiffs Are Entitled To An Adverse Evidentiary Inference If The Legislature Is Permitted To Avoid Discovery Based On Legislative Privilege If the Comi finds that the legislators and their staff may avoid depositions and documentary discovery into the very intent that Amendment 6 renders illegal, Plaintiffs are entitled to an adverse inference at trial. As the United States Supreme Comi has long recognized; the voluntary and strategic decision not to proffer testimony in one's own defense "is often evidence of the most persuasive character." Baxter v. Palmigiano, 425 U.S. 308, 319 (1976) (internal quotation marks and citation omitted). In fact, silence under these circumstances can be so persuasive that it is well-settled that fact-finders may make "adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them," even where that silence is based in the Fifth Amendment's privilege against self-incrimination.!d. at 318. The Florida { ;1) 10 A. 229

251 Comis have similarly endorsed the "general rule" "permit[ting] adverse inferences to be drawn from a party's silence in a civil case," recognizing that it furthers justice: "Such a rule is both logical and utilitarian. A party may not trample upon the rights of others and then escape the consequences by invoking a constitutional privilege--at least not in a civil setting." Fraser v. Security & Investment Corp., 615 So. 2d 841, 842 (Fla. Dist. 4 App. 1993). See also Atlas v. Atlas, 708 So. 2d 296, 299 (Fla. Dist. 4 App. 1998) (finding adverse inference appropriate where patiy intentionally chose not to testify in civil litigation by invoking Fifth Amendment privilege against self-incrimination). Defendants have even less at stake than a witness in a civil litigation that invokes their Fifth Amendment privilege against self-incrimination, because they do not risk exposing themselves to later criminal prosecution if they testify truthfully. Furthermore, it is undisputed that, to the extent that state legislators can lay claim to a legislative privilege, it is an individual privilege that each legislator must make an affirmative decision to invoke. Legislators regularly voluntarily submit to depositions and produce the type of discovery that the Plaintiffs seek in this litigation in redistricting cases. Nothing prohibits the legislators and staff that created the Florida congressional plan to do the same. Instead, they have made the affitmative and strategic decision to refuse to answer questions about and produce a complete evidentiary record from which Plaintiffs and this Comi could fairly discern whether the Legislature violated Amendment 6's prohibition of any intent to favor an incumbent or political party. This decision severely prejudices the Plaintiffs in their efforts to enforce this constitutional amendment. As with. the Fifth Amendment privilege, Defendants should not be permitted to. use the legislative privilege as both a shield and a sword. See SEC v. Monterosso, 746 F. Supp. 2d 1253, { ;1) II A. 230

252 1261 (S.D. Fla. 2010) (finding adverse inference appropriate on equitable grounds where civil litigant exercised Fifth Amendment privilege). Nor should the Comi give credence to any argument that the individual decisions of the legislators to invoke the privilege to protect themselves and their staff should be imputed to the Legislature as a whole. By seeking a blanket protective order to prohibit Plaintiffs from deposing any members or their staff, the Court can presume that Defendants speak for the individual members and that, if petmitted to hide behind the privilege, every single member of the Legislature that had a hand in the congressional plan will refuse to voluntarily submit to questions or produce documents (beyond those which Defendants have selectively chosen to produce) as to the intent behind the plan. Under such circumstances, adverse inferences that could be drawn against the individual legislators and staffers may be imputed to the Legislature as a whole. See id. at (listing non-exclusive factors for determining whether adverse inferences that could be drawn against a non-pmiy invoking a privilege may be drawn against a party). 3 In opposition, Defendants are likely to cite a recent decision from the District of Columbia in Florida v. United States,-- F. Supp. 2d --,2012 WL (D.D.C. Aug. 16, 2012). As an initial matter, the question of whether an adverse inference is appropriate is a decision that must be made on a case-by-case basis, left to the sound discretion of the trial court judge. See Monterosso, 746 F. Supp. at ("[A] trial court must carefully balance the interests of the party claiming protection [under a privilege] and the adversary's entitlement to equitable treatment.") (quotation marks and 3 The relevant factors include: "(I) the nature of the reievant relationships; (2) the degree of control of the party over the non-pmiy witnesses; (3) the compatibility of the interests of the party and non-pmiy witness in the outcome of the litigation; and ( 4) the role of the non-pmiy witness in the litigation." ld. { ;1} 12 A. 231

253 citation omitted). Thus, conclusions by other courts that an inference is not appropriate under the circumstances cannot and should not influence this Court's decision as to whether, under the circumstances of this litigation, it would be inequitable to allow Defendants to voluntarily withhold this testimony and evidence free of any consequences. See id. (noting "[t]he principle that the invocation of the privilege may not be too 'costly' does not mean it must be 'costless"') (quoting SEC v. Grays/one Nash, Inc., 25 F.3d 187, 191 (3d Cir. 1994)). But in any event, this Comi should decline to credit the District of Columbia's adverse inference decision in Florida v. United States. That court's conclusion was not only cursory and poorly reasoned, it is also not indicative of a universally-accepted rule. In fact, as Defendants acknowledged at oral argument, Judge Hinkle indicated- at a hearing over which he presided to decide issues of legislative privilege in the very same case- that he believed Plaintiffs would be entitled to an adverse inference if Defendants were permitted to avoid depositions based on the privilege. See J. Hinkle Tr. 19:12-16 (asking challengers whether they would "rather have the deposition than the adverse inference"). Judge Hinkle's role in Florida v. United States was necessarily limited, as the only matter before him was whether to permit the compelled deposition of certain legislators and staff members in the underlying Voting Rights Act case; the substantive issues in the case were ultimately decided by the D.C. court. However, Judge Hinkle's colloquy with counsel indicates that had he had the opportunity to decide the adverse inference question, he might very well have imposed the inference. The D.C. comi decided otherwise, declining to draw an adverse inference against the State based on its conclusion that the inference "would run contrary to... Arlington Heights." 2012 WL { ;1} 13 A. 232

254 , at *44 n.65. Specifically, the D.C. court relied on Arlington Height's statement that, because "judicial inquiries into legislative or executive motivation represent a substantial intrusion in to the workings of other branches of government," "[p]lacing a decisionmaker on the stand is... usually to be avoided." I d. (quoting 429 U.S. 252, 268 (1977)). But the D.C. court's discussion of this issue is relegated to a brief footnote that is more notable for what it does not consider than what it does. In particular, the opinion does not consider or attempt to distinguish the analogous case law applying adverse inferences when a witness invokes his or her constitutional privilege against selfincrimination. See id. It also fails to explain how drawing an adverse inference based on a legislator's voluntary decision not to provide evidence that would enable the court to determine whether the legislature followed the law "intrudes" upon the workings of other branches of government. As explained in Plaintiffs' brief in opposition to the Defendants' motion for a protective order, the roles of the judiciary and legislature remain unchanged after the enactment of Amendment 6-and Defendants certainly do not contest that this Court has the authority to determine whether the Florida Constitution's redistricting standards were in fact complied with. The D.C. court also inexplicably conflates "putting a decisionmaker on the stand" with drawing an adverse evidentiary inference based on a decisionmaker's strategic decision not to take the stand. As the case law discussing adverse inferences in the Fifth Amendment context makes clear, treating both circumstances the same is not appropriate. 4 4 In addition, the D.C. court mistakenly relies on language from a 1972 D.C. Circuit decision, in which that court stated "if... the judge plays a role in suppression of the evidence, the force of the inference is dissipated." Jd. (quoting UAWv. NLRB, 459 F.2d { ;1) 14 A. 233

255 To the contrary, even when a privilege is constitutionally-based, courts must take care to "carefully balance the interests" of the party invoking the privilege with their adversary's "entitlement to equitable treatment." Monterosso, 746 F. Supp. 2d at In doing so, "[c]ourts should give due consideration to the nature of the proceedings, how and when the privilege was invoked, and the potential for harm or prejudice to opposing parties." Id. (quotation marks and citation omitted). Here, the Plaintiffs seek to enforce a constitutional provision enacted by Florida's voters who meant to eliminate political gerrymandering in this State. Defendants have invoked the privilege in order to avoid any meaningful discovery into this process, arguing instead that they should be permitted to rest on their self-serving testimony to the public about their intent to follow the law. The potential hatm and prejudice to the Plaintiffs-as well as all of Florida's voters-is enormous. It is equitable to require Defendants to choose between explaining their action or accepting an adverse inference based on their refusal to do so. Nor would requiring Defendants to make that choice chill future legislative action. Not only are litigations that put the intent of the legislature at issue exceedingly unusual, imposition of an adverse inference under these circumstances would allow the legislators who are unwilling to explain their intent keep it secret. At the same time, it would not allow the 1329, 1338 (D.C. Cir. 1972)). But in UAWthe coutt was not referring to circumstances under which a comt holds that a privilege protects a patty against compelled testimony. Indeed, if that were the rule, then the Fifth Amendment adverse inference jurisprudence would make no sense at all. Instead, as the citation in.uawto NLRB v. Drennon Food Products Co., 272 F. 2d 23,27 (1959), makes clear, the court was referring to the highly unusual circumstances where a judge's own independent actions are the reason that the evidence was not produced. See id. at 27 ("The failure of Drennon to produce the records was patently brought about in large part by the action of the Trial Examiner in taking over the cross examination concerning the records.") (emphasis added). { ;1} 15 A. 234

256 Legislature to insulate itself against any meaningful challenge by its citizens as to its compliance with their constitutional directions. III. Conclusion For these reasons and those set forth in the Romo Plaintiffs' response to the Legislative Defendants' motion for a protective order, the Court should deny Defendants' Motion. Alternatively, the Court should conduct an in camera review of documents withheld on grounds of legislative privilege to dete1mine if any privilege has been waived. Further, if the Court accepts the Legislative Defendants' claim of privilege, it should establish an adverse evidentiary inference and bar the legislative Defendants from calling as witnesses at trial any legislators, legislative aides or employees, or consultants JOS PH W. HA Joseph.hatchett@akerman.com Secondary Martha.pan amore@akerman.com AKERMAN SENTERFliT!06 E. College Ave., Suite 1200 Tallahassee, Florida 3230 I Tel: (850) Fax: (850) I 03 MARC ELIAS (admitted pro hac vice) Primary MElias@Perkinscoie.com Secondmy EFrost@Perkinscoie.com JOHN DEVANEY (admitted pro hac vice) Primary JDevaney@Perkinscoie.com Secondary SYarborough@perkinscoie.com PERKINS COlE LLP th St., N. W., Suite 600 Washington, D.C Tel: (202) Fax: (202) KEVIN J. HAMILTON (admitted pro hac vice) Primary KHamilton@Perkinscoie.com Secondary NPurcell@perkinscoie.com { ;1) 16 A. 235

257 ABHA KHANNA (admitted pro hac vice) Primary Secondary PERKINS COlE LLP 1201 Third Ave, Suite 4900 Seattle, Washington Tel: (206) Fax: (206) Attorneys for the Romo Plaintiffs { ;1) 17 A. 236

258 CERTIFICATE OF SERVICE I HEREBY CERTr a true and correct copy of the foregoing has been furnished by Electronic Mail this& day of September, 201 o ch of the following parties on the attached service list:. { ;1) 18 A. 237

259 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 R.A. Gray Building Allen Winsor 500 S. Bronaugh Street, Suite I 00 Charles B. Upton II Tallahassee FL ORA Y ROBINSON, P.A. Primary Post Office Box daniel.nordby@dos.myflorida.com Tallahassee, FL Secondary Primary Bett)'.monex@dos.mxflorida.com charles.wells@grax-robinson.com Stacey.small@dos.mxflorida.com george.meros@grax-robinson.com Primary CB.UQton@grax-robinson.com ashley.dav is@dos.state. fl.us Secondary Secondary Charlene.roberts@gray-robinson.com Bettx.monex@dos.myflorida.com mwilkinson@gray-robinson.com Stacey.small@dos.myflorida.com Primmy jason.unger@gray-robinson.com allen.winsor@gray-robinson.com Secondary teresa.barreiro@grax-robinson.com allenwinsor!alvahoo.com Michael A. Carvin Miguel A. De Grandy Louis K. Fisher MIGUEL DE GRANDY, P.A. JONES DAY 800 Douglas Road, Suite Louisiana Avenue N.W. Coral Gables, FL 33 I 34 Washington, D.C mad@degrandylaw.com macarvin@jonesday.com lkfisher@ionesdav.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 Tallahassee, FL Primary marino.leah@flsenate.gov george.levesgue@mxfloridahouse.gov. Secondary glevesgue4@comcast.net velma.carter!almvfloridahouse.gov ( ;1} 19 A. 238

260 Peter M. Dunbar Ronald G. Meyer Cynthia Skelton Tunnicliff Lynn Hearn PENNINGTON, MOORE, WILKINSON, MEYER, BROOKS, DEMMA & BLOHM BELL & DUNBAR, P.A. 131 N01th Gadsden Street 215 South Monroe Street, 2d Floor P.O. Box 1547 Tallahassee, FL 3230 I Tallahassee, FL Qete@Qenningtonlaw.com rmexer@meyerbrookslaw.com C','nthia@[)enningtonlaw.com lhearn@meyerbrookslaw.com Jessica Ring Amunson Stephen Hogge Michael B. DeSanctis STEPHEN HOGGE, ESQ., LLC Kristen M. Rogers 117 South Gadsden Street Paul M. Smith Tallahassee, FL Christopher Deal SteQhen@steQhenhoggeesg.com JENNER & BLOCK LLP I 099 New York Ave, N.W., Suite 900 Washington, D.C jamunson@jenner.com mdesanctis@jenner.com krogers@jenner.com Qsmith@jenner.com cdealfalienner.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 W. Kennedy Blvd., Suite 300 Hebert@votelaw.com Tampa, FL cburl falburrandsmithlaw.com Bruce V. Spiva, Esq. Allison J. Riggs THE SPIVA LAW FIRM PLLC Anita S. Earls 1776 Massachusetts Avenue, N.W. SOUTHERN COALITION FOR SOCIAL JUSTICE Suite W. Highway 54, Suite 101 Washington, D.C Durham, NC bsqiva@spivafirm.com A II ison@southerncoalition.org anita@southerncoalition.org Timothy D. Osterhaus, Deputy Solicitor General Victor L. Goode Blaine Winship, General Counsel Dorcas R. Gilmore OFFICE OF THE ATTORNEY GENERAL NAACP The Capitol, PL Mt. Hope Drive Tallahassee, FL Baltimore, MD Timothx.osterhaus@mxfloridalegal.com vgoode@naacqnet.org Blaine.winshiofalmvfloridalegal.com d gi I morefalnaacpnet.org Gerald E. Greenberg Harry 0. Thomas Adam M. Schachter Christopher B. Lunny GELBER SCHACHTER & GREENBERG, P.A. RADLEY THOMAS YON & CLARK, P.A Brickell Avenue, Suite I S. Bronaugh Street, Suite 200 Miami, FL Tallahassee, FL Primary s: Primary { ;1) 20 A. 239

261 Secondary Primmy Secondmy Second my cdemeoralradevlaw.com Jon L. Mills George N. Meros, Jr. Karen C. Dyer Jason L. Unger Elan M. Nehleber Allen C. Win sor BOIES, SCHILLER & FLEXNER, LLP Charles Burns Upton, II 121 S. Orange Avenue GRAY ROBINSON, P.A. Suite 840 P.O. Box Orlando, FL Tallahassee, FL Primary s: Primary s: { ;1} 21 A. 240

262 TAB 13

263 IN THE CIRCUIT COURT FOR THE SECOND JUDICIAL CIRCUIT IN AND FOR LEON COUNTY, FLORIDA RENE ROMO, et al., Plaintiffs, v. KEN DETZNER and PAM BONDI, Defendants. THE LEAGUE OF WOMEN VOTERS OF FLORIDA, et al., Plaintiffs, v. KEN DETZNER, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO CA CASE NO CA COALITION PLAINTIFFS' ADOPTION OF ROMO PLAINTIFFS' SUPPLEMENTAL BRIEF RELATING TO LEGISLATIVE DEFENDANTS' MOTION FOR PROTECTIVE ORDER BASED ON LEGISLATIVE PRIVILEGE Plaintiffs League of Women Voters of Florida, the National Council of La Raza, Common Cause Florida, Robert Allen Schaeffer, Brenda Ann Holt, Roland Sanchez-Medina Jr., and John Steele Olmstead ("Coalition Plaintiffs") fully adopt all arguments set forth in the Romo Plaintiffs' Supplemental Brief Relating to Legislative Defendants' Motion for Protective Order Based on Legislative Privilege. A. 241

264 RONAL G. MEYER Florida Bar No Meyer, Brooks, Demma and Blohm, P.A. 131 North Gadsden Street Post Office Box 1547 (32302) Tallahassee, FL (850) Telephone (850) facsimile (850) facsimile Greenberg Schachter & Greenberg, P.A. Gerald E. Greenberg Florida Bar No Adam M. Schachter Florida Bar No Brickell Avenue, Suite 1420 Miami, Florida (305) (305) Jenner & Block, LLP Michael B. DeSanctis mdesanctis@jenner.com Admitted Pro Hac Vice Paul M. Smith psmith@jenner.com Admitted Pro Hac Vice Jessica Ring Amunson jamunson@jenner.com Admitted Pro Hac Vice Kristen M. Rogers krogers@ienner.com Admitted Pro Hac Vice 1099 New York Ave NW, Suite 900 Washington, DC Telephone: Facsimile: A. 242