132 So. 3d 135
Fla.2013Background
- 2012 Florida congressional map challenged under Article III, § 20 ("Fair Districts"), alleging partisan and racial/linguistic discriminatory intent and violations of traditional redistricting principles.
- Challengers obtained third-party discovery (including ~16,000 e‑mails) suggesting communications between legislators, staff, partisan groups, and consultants; they noticed depositions of legislative leaders and staff.
- Legislature sought a protective order asserting a legislative privilege to block depositions and the production of unfiled draft maps and supporting documents.
- The circuit court recognized a legislative privilege but held it was not absolute: objective communications and documents relating to intent were discoverable, while legislators’ and staffers’ subjective thoughts/impressions were protected.
- The First District quashed the circuit court order, treating the privilege as absolute; the Florida Supreme Court granted review and addressed whether a legislative privilege exists and its scope against the state constitutional mandate banning partisan gerrymandering.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Florida recognize a legislative testimonial privilege? | No privilege exists; Speech or Debate absent in FL Constitution. | Separation of powers and comity require a privilege. | Yes — FL recognizes a legislative privilege grounded in separation of powers. |
| Is the legislative privilege absolute? | N/A (plaintiffs contend privilege shouldn't block relevant discovery). | Privilege is absolute; depositions and draft maps must be barred. | No — the privilege is not absolute and may yield to compelling competing interests. |
| Does the public interest in enforcing Article III, § 20 (prohibiting partisan/discriminatory intent) outweigh the privilege here? | Plaintiffs: compelling state interest in proving intent requires discovery of communications, drafts, testimony. | Legislature: allowing depositions chills legislative functions and undermines separation of powers. | Yes — the Court finds the constitutional interest in policing intent outweighs the privilege in this case. |
| Scope of permissible discovery (depositons/documents/drafts)? | Plaintiffs: broad discovery of communications, drafts, and depositions relevant to intent. | Legislature: both subjective and objective legislative communications are protected; drafts exempt. | Circuit-court balancing approved: objective communications/documents and drafts (subject to in camera review/statutory public-record rules) are discoverable; legislators’ and staffers’ subjective thoughts/impressions remain protected at this stage. |
Key Cases Cited
- In re Senate Joint Resolution of Legislative Apportionment 1176 (Apportionment I), 83 So.3d 597 (Fla. 2012) (interpreting Article III § 20(a) and emphasizing intent analysis using direct and circumstantial evidence)
- In re Senate Joint Resolution of Legislative Apportionment 2‑B (Apportionment II), 89 So.3d 872 (Fla. 2012) (discussing limits of appellate review and need for factual development in reapportionment challenges)
- Florida House of Representatives v. League of Women Voters of Florida (Apportionment III), 118 So.3d 198 (Fla. 2013) (noting voters’ intent for increased judicial scrutiny and reliance on objective evidence in earlier reviews)
- Florida House of Representatives v. Romo, 113 So.3d 117 (Fla. 1st DCA 2013) (First DCA decision quashing circuit court order and treating legislative privilege as broadly protective)
- Florida House of Representatives v. Expedia, Inc., 85 So.3d 517 (Fla. 1st DCA 2012) (recognition of legislative privilege in Florida and discussion of when competing interests may require disclosure)
- United States v. Nixon, 418 U.S. 683 (U.S. 1974) (executive‑privilege balancing framework and limits on absolute privilege)
- Tenney v. Brandhove, 341 U.S. 367 (U.S. 1951) (historical roots of legislative privilege and protection from inquiry into legislative motives)
- United States v. Gillock, 445 U.S. 360 (U.S. 1980) (state‑legislator privilege not absolute in federal criminal prosecutions; comity considerations balanced against important interests)
- Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (U.S. 1977) (judicial caution about inquiries into governmental motive and the intrusion into co‑equal branches)