Johnson v. Mortham

Amendment retaliation failed to state First against

claim each of them be and the same hereby REAFFIRMED because of the pro-

lack of causal connection between alleged speech

tected and the retaliation. alternative, it is and OR- CONSIDERED Montgom-

DERED that aforementioned

ery City Council defendants’ motion dis- qualified immunity

miss on the basis of hereby

and the same is GRANTED. proceed plaintiff’s

This action will on the against

First Amendment retaliation claim City Montgomery. JOHNSON, Plaintiffs,

Andrew E. et al. MORTHAM, etc,

Sandra

et Defendants. al.

No. TCA 94-40025-MMP. Court,

United States District Florida,

N.D.

Tallahassee Division.

Nov. Sullivan, Jr., Boyd,

Gerald J. Sullivan & Jacksonville, FL, for Andrew E. Johnson, Bloodworth, Thomas S. Charles Bloodworth, III, Boyer, Henry Bill Frances Brown, Conner, G. Robert T. Harold F. Davis, Devoe, Ellison, Arthur Robert Wilson Alexandria, P.A., Hebert, Hall, Vice, Farley, Hugh Hac J. Gerald Erdel, Paul Sue George Brown, VA, Corrine Sr., intervenor-defendant Hays, Milton Carson Hays, Hugh Milton Jackson, Carolyn Congresswoman. Howes, Jr., Ron Thomas Johnson, Johnson, H. Susan Coranell Janice Burr, P.A., Burr, G. G. Charles Charles Mathis, Cynthia Lewis, Lamb, Pat M. Jim FL, intervenor-defendant Tampa, Neill, McKinney, Jim McKinney, Daniel Branches. of NAACP State Conference Romero, Praeter, T. Vicki Tommy Charles Romero, Dana Wine. HATCHETT, Judge, Circuit Before VINSON, PAUL, Judge, and District Chief Waas, Attorney Of- General’s George L. Judge. Affairs, Legal Talla- fice, Department Vice, FL, Wright, Pro Hac hassee, Brenda Vice, Berrien, Pro Hac

Jackqueline A. ORDER Rights Un- Lawyers’ for Civil Committee PAUL, Judge. District Chief DC, B. Law, Washington, Gerald Cur- der 19,1995, three-judge panel On October Counsel, Repre- House of ington, General following pend- arguments on the heard oral Tallahassee, FL, sentatives, for defendant ing motions: Smith, Capacity as Sec- in His Official Jim (1) Florida. retary Cummings of the State Motion to Inter- movants’ 11) (doc. which Plaintiffs had re- vene —to Vice, Miami, Zack, Hac Stephen Pro N. (docs. 74); sponded 19 & Vice, Jackque- FL, Wright, Pro Hac Brenda (2) Motion to Intervene Brown movants’ Berrien, Vice, Lawyers’ Pro Hac line A. (doe. 20) response had filed a Law, Rights Under for Civil Committee —Plaintiffs (doc. 34) movants had which Brown DC, Curington, B. Gen- Washington, Gerald —to (doc. (doe. 67); 52), replied and affirmed Counsel, Representatives, Tal- House eral Thomas, lahassee, FL, in His (doc. Pat Official (3) for Motion to Intervene NAACP’s of the Florida Senate. Capacity as President 31); (4) Hixson, Brown mov- Plaintiffs’ Motion Strike Hixson, Richard A. Richard A. (doc. 75); to Dismiss FL, Tedcastle, ants’ Motion

P.A., Tallahassee, R. Thomas Tallahas- Representatives, Florida House (5) to Dismiss movants’ Motion Brown Vice, Zack, see, FL, Pro Hac Stephen N. (doc. 68); Vice, Miami, FL, Wright, Pro Hac Brenda (6) for Motion Sum- Defendant Smith’s Vice, Berrien, Hac Law- Jackqueline A. Pro (doc. 5) Judgment which Plain- mary —to Law, Rights Under yers’ Committee for Civil (doe. 8); responded tiffs had DC, Curington, B. B. Washington, Gerald (7) Summary Judg- Plaintiffs’ Motion Counsel, New, Rep- House Elaine General (doc. 26) had ment which Defendants —to FL, resentatives, Tallahassee, for defendant (doc. 29); responded Johnson, Capacity as Bolley in His Official L. (8) Supplemental Motion for Plaintiffs’ Representa- Speaker of Florida House (doc. 64) Summary Judgment —Defendants tives. (docs. 79) responses 66 & had filed —to Waas, Attorney General’s Of- George L. (doc. 73); replied and Plaintiffs had which Affairs, fice, Legal Tallahas- Department of for Prelimi- Plaintiffs’ Second Motion Mortham, see, FL, Sandra for defendant (doc. 77) nary Injunction which Defen- —to Secretary of Florida State. 84). (doc. responded had dants Vice, Lawyers’ Wright, Pro Hac Brenda party-intervenors proposed parties All Law, Rights Under for Civil Committee hearing. represented at the were DC, for intervenors-defendants Washington, Green, BACKGROUND: Bishop, L. Cummings, Frank Samuel O’Neal, Sr., Reverend, Glynell Pres- Leonard congres- genesis in the has its This case ley, Mary Lawson Brown. redistricting that came the after- sional census. federal decennial Gregory, math of the 1990 Gregory, Rodney Rodney G. G. by over FL, Hebert, population had increased P.A., Jacksonville, Pro Florida’s Gerald J. persons three millón between 1980 the NAACP Branches and Afri- several can-American A entitling persons Florida to four additional members voters. number of organizations Representa- granted were also in the United States House of leave to result, or act congressional panel intervene as amicus curiae. tives. As a Florida’s The appointed Atkins, Clyde represen- Honorable C. delegation increased from nineteen Judge Senior United States District twenty-three. for the tatives to Florida, District Spe- Southern to serve as opening day of the On the 1992 Florida cial panel charged Master. The Senior session, legislative Miguel DeGrandy, a mem- Judge Atkins considering with the task of Representatives, ber of the Florida House of evaluating redistrieting reapportion- joined filing other voters a suit in the However, plans ment panel Florida. for the Northern District of stayed proceedings reappor- related to state challenged constitutionality Supreme tionment after the Court of Florida legisla- of Florida’s and state reapportionment validated the plan. Senate Wetherell, tive districts. See Id. 1080-81. (N.D.Fla.1992). parties stipulated that Florida’s exist plaintiffs alleged light of Florida’s ing congressional malap- district lines were history against of discrimination minorities portioned. April On the three and the lack of electoral success of minori- judge panel existing congres found that the ties, Equal the districts'violated the Protec- districting plan sional was unconstitutional Amendment, tion Clause of the Fourteenth I, § because violated Article 2 of the Con Voting Rights and the Act of 1965. A three- stitution, Equal Protection Clause of the judge panel, comprised Judges of Circuit Jo- Amendment, Fourteenth one-person, seph Judges Hatchett and District William principle, Voting one-vote Rights and the Act Vinson, Roger appointed Stafford and 1965, amended, § 42 U.S.C. 1973. Id. plaintiffs’ hear the case. Mindful fast- 1081, 1090. at approaching qualification candidate deadline 29, 1992, May three-judge On panel elections, upcoming and fall adopted congressional redistrieting plan a plaintiffs urged panel reapportion upon report to it submitted and recom- in light redistrict the state of the results of Special mendation of Master Atkins. Id. at at the 1990 census. Id. 1079-80. Judge panel 1090. Atkins recommended the Legislature regular The Florida ended its 308, adopt developed by Independent Plan adopting session without a either redistrict- Expert key Professor M. David Gelfand from ing reapportionment plan1. April, In portions redistrieting plans. of other Id. at 1992, spe- Governor Lawton Chiles called a created, among Plan 1087-88. other redistrieting reapportionment cial ses- things, majority two African-American dis- Legislature pursuant sion of the to Article (Districts 17), plus tricts 3 and influence one III, 16, § of the Florida Dur- Constitution. (District African-American district session, ing Legislature adopted Sen- 23)2. panel adopted Plan Id. 1088. The 2-G, reapportionment ate Joint Resolution a noting 308 after that the state of Florida did However, legislative for state districts. redistrieting a than have method of other Legislature agree was unable to on a legislative passage congressional of a district- congressional redistrieting plan. Id. at 1080. ing plan. panel Id. at 1090. The therefore time, pro- designated At the same case Plan 308 as the “1992 Florida gressed Plan,” Redistrieting and was with a similar consolidated and ordered state by congressional lawsuit filed the Florida Florida “to the 1992 State Conference conduct 17, Legislature adopt percent. County, 1. The Florida must 50.6 in Dade has a redistrict District ing plan in the same manner as other laws. per- See population total African-American of 58.4 III, 7, 8, §§ Fla. Const. art. cent, age voting population percent, and of 54 percent. registration an of 59.3 District 23 has 3, 2. District located in fourteen northern and age population African-American voter of 45.7 counties, central Florida has total African- percent. DeGrandy, population percent, voting age American population of 55 percent, registration of 50.6 18, 1994, argument was heard July oral On elections elections thereaf- (see July pending motions Id. on all by Plan 308.” as shown in districts ter 55). time, Tr., these mo- added). At the Hr’g doc. with the In accordance (emphasis motion to mandate, included Defendant Smith’s Leg- tions the Florida DeGrandy panel’s summary motion for or alternative existing congres- dismiss repealed islature later (doc. 5), motions to judgment the various Fla.Laws plan. districting See sional (docs. 31), 8.001, 8.01, and Plaintiffs’ §§ intervene 93-271, Fla.Stat. repealing ch. (doc. 26) summary judgment motions 8.011, 8.03, 8.061 32). (doc. injunction preliminary Since Three, two African- one of the District only panel ruled on Defen- hearing, the has under created districts American to dismiss and Plaintiffs’ motion dant Smith’s Plan, Redistricting is an the 1992 injunction. preliminary motion for a January odd-shaped district3. On for a July, Plaintiffs had moved to 28 pursuant filed suit U.S.C. Plaintiffs injunction enjoin use of preliminary Three violated alleging § that District redistricting plan DeGrandy panel’s protection under the rights equal them 32). (doc. (doc. 2). congressional election the 1994 Plaintiffs Fourteenth Amendment However, that motion was denied Johnson, an unsuccessful Andrew include injunction have dis- would panel Three con- because the District candidate for Spe- congressional election. rupted the 1994 seat, residents of the gressional non-black cifically, qualifying period for candidates allegedly rele- been Three who ended, begun orga- had status, had the candidates minority voting and non- gated to funds, and “to campaigns, to raise congression- nize their of other Florida black residents present on the spend those funds reliance purportedly created al which were districts result, panel districting scheme.” As separate voters race. intent to with the public would not be Secretary found that the interest of State San- include Defendants (doe. 3). injunction 47 at Mortham4, such an leadership of the Florida served dra States, which legislature5, and the United 1994, 31, August dated an order party as a defen- permitted was to intervene motion panel also denied Defendant Smith’s (doc. 45). dant (doc. -5). majority The held to dismiss claim under Shaw. The Plaintiffs stated a alleged that District Plaintiffs have not Act, majority rejected Defendant’s contention Rights nor Voting Three violates the barred under the doctrine repre that the claim was they claimed that the District have estoppel because the issue of white of collateral dilution of sents an unconstitutional unconstitu- Rather, District Three was an crux of Plain whether voting strength. had not gerrymander under Shaw that District Three is tional legal claims is tiffs’ raised, adjudicated actually litigated, or gerrymander be been nothing than a racial more Furthermore, majority unconstitutionally segregates DeGrandy. voters cause it because Equal that state action existed in violation of the reasoned on the basis of race Clause, adopted the De- narrowly although Plan 308 was that it is not Protection court, necessarily partic- involved governmen Grandy compelling tailored to further agencies in the conduct of may ipation of state Plaintiffs raise such tal interest. Reno, Finally, held authority actual elections. of Shaw claim under 2816, 125 they applying retroac- 630, 113 were not Shaw L.Ed.2d 511 Plaintiffs’ claimed viola- tively because the Johnson, Bolley Speaker L. Congressional of the Florida House map 3. A of Florida's Third defendants, opinion. provided Appendix pursuant original party A to this as one of 83). (doc. September panel’s order of Secretary for former Mortham was substituted Smith, original party Secretary defendants, one of Jim parties stipulated that the action Sep- pursuant panel’s order of against Legislature be abated until the should 86). (doc. tember ruling constitutionality panel makes a on the (see 18). doc. District Three Wallace, Speaker the Florida House 5. Peter R. Representatives, substituted for former (doc. 57). ongoing current and tions were requisite legally tervenors lack the cogniza- Judge Circuit Hatchett dissented from the ble interest to entitle them to intervene in 11-14). (Id. majority’s holding this action. 81,1995, Judge On March Stafford recused A proposed per intervenor shall be (doe. 60). panel himself from the Chief Cir- mitted to intervene right as of in an action: Judge Tjoflat appointed cuit then Chief Dis- (1) (2) upon timely application; when the Judge trict panel Maurice Paul to the as the direct, applicant substantial, has a legally (doc. 62). requesting judge protectable litigation6; interest On June the United States Su- (3) existing parties to the lawsuit will not preme rulings Court issued its in Miller v. adequately represent applicant’s interest. Johnson, U.S.-,-, See, e.g., 24(a); Thornburgh, Fed.R.Civ.P. (1995), 132 L.Ed.2d 762 and United (citations omitted). 865 F.2d at 1213 Once Hays, -,-, States v. prerequisites these to intervention are estab 2431, 2436-37, 132 L.Ed.2d 635 lished, the court has no deny discretion to (1995), involving equal protection cases chal- the motion. United Georgia, States v. lenges under Shaw to redis- Cir.1994) curiam). F.3d (per tricting plans Georgia Louisiana, re- spectively. Plaintiffs filed renewed motions proposed A intervenor also be (doc. 64) summary judgment pre- and a (1) permitted to intervene in upon an action: (doc. liminary injunction 77), relying on the timely application; and appli when the authority panel of these two cases. The then cant’s claim or defense and the main action set this hearing pending cause for a on all have a question common of law or fact. Fed. (doe. 78). motions pending Each of these 24(b); Thornburgh, R.Civ.P. 865 F.2d at motions will be discussed turn. 1213. A number of other factors are rele DISCUSSION: ' permissive vant to whether intervention I. Motions to Intervene: granted. should be example, For a court proposed intervenors seek to inter- must consider whether the intervention will vene in this preserve existing lawsuit to “unduly delay prejudice adjudication congressional districting plan adopted rights original parties.” Fed. DeGrandy. The they may movants contend 24(b). Furthermore, R.Civ.P. it is relevant right pursuant 24(a), intervene as to Rule proposed whether the intervenor has stand Procedure, Federal Rules of Civil or alterna- ing protected to assert a interest at in issue tively, permissive seek pursuant intervention Thornburgh, suit. See 865 F.2d at 1212- 24(b), to Rule Federal Rules of Civil Proce- addition, In a court should evaluate dure. whether adequate the movant’s interests are oppose The Plaintiffs all three motions to ly represented by existing parties. Venegas intervene. The point they Plaintiffs out that Cir.1989), 527, (9th Skaggs, v. 867 F.2d 530-31 seek, receive, they do not nor could relief grounds, 82, on other 495 U.S. aff 'd from the movants who seek to intervene as (1990). 1679, 109 110 S.Ct. L.Ed.2d 74 Final defendants. The Plaintiffs contend that the judicial ly, economy is a relevant consider only proper party state is the to defend a Id.; Viterna, 350, ation. Bush v. 740 F.2d challenge constitutional congres- to Florida’s (5th Cir.1984) curiam). (per 359 sional only districts because the state has the authority question to draw and There is no districting proposed enforce a that all the plan. argue proposed Plaintiffs timely in- applied intervenors have for interven- Supreme of Rule 24. Chiles v. 1197, 6. The Court has noted Thornburgh, that case law is 865 F.2d (11th Cir.1989). Nevertheless, “legally protectable unclear the standing extent to which a 1213 is requires compliance only interest” inquiry with not proposed relevant to the of whether a 24(a), requirements interest, id., standing of Rule but also a intervenor has sufficient and a requirements of standing Article III. See Diamond sufficiently v. movant who shows a has Charles, 54, 68-69, 1697, 476 U.S. 106 S.Ct. substantial interest to intervene. v. Howard 1706-07, (1986). However, McLucas, 956, (11th Cir.1986), 90 L.Ed.2d 48 782 F.2d 959 cert. denied, applicant Eleventh Circuit has held that an seek- 107 ing only (1989). requirements to intervene must meet the L.Ed.2d 555 1536 district). Consequently, the creation of the of mo- Consequently, resolution tion. granted are individuals above-mentioned the other on whether turns intervene tions to right. to intervene as leave 24 have been demon- Rule

requirements strated. regis are remaining individuals7 The congressional districts vote in other tered to Cummings Movants: The

A. subject the Plaintiffs’ are not the include African- Supreme Cummings challenge. movants The The constitutional majority Afri- living reside in dis voters who that voters recently American held Court congressional pri districts that is the can-American district other than the tricts by the created gerrymandering districts congressional racial mary other focus a DeGrandy, as well as panel judge claim, bring a lawsuit. See standing three lack purporting rep- U.S.-,- each organizations, Hays, three v. States United 2436-37, of African-American large groups 132 L.Ed.2d -, resent the individual Three of in Florida. from other voters that voters fact intervenors De- Cummings standing were rele movants lack districts a Cummings movants claim Grandy. they protect- have sufficient to whether vant in the con- interest and immediate Thornburgh, “direct to intervene. interests able this redistricting plan which Although gressional the Cum F.2d at 1212-13. 11). (doc. Florida” adopted residing outside the Third mings movants might a stake in have Congressional District Cummings Only mov some of adopted redistricting plan maintaining the direct, substantial, legally ants have preserve their by DeGrandy in order own litigation sufficient interest in the protectable districts, generalized this interest stake right. to intervene as of them to entitle direct, to level of a sub that does not rise following counsel indicated Movants’ stantial, interest legally protectable in the registered to vote are individuals McLucas, F.2d at litigation8. See Bishop Frank Congressional District: Third ManaSota-88, 959; Inc. v. generally see Brown, the Mary Reve Cummings, Lawson Cir.1990) (11th Tidwell, F.2d O’Neal, Green, Sr., Leonard L. rand Samuel (mere be disadvan fact that movant Registered Glynell Presley. voters by potential stare decisis effect de taged sufficiently substantial inter standing, and a grant automatically warrant not cision does intervene, challenging action est to as of application to intervene ing movant’s regis are the voters voting district which result, are not right). these individuals As Metropolitan County, Dade tered. Meek right. intervene as entitled to Cir.1993) (11th Fla., (per 985 F.2d Furthermore, the individual movants curiam); Latin Am. Citi League United (“LULAC Three will residing outside District zens, v. Clements No. Council sum, Cir.1993) (en permissively intervene. allowed to II”), 831, 845 999 F.2d litigation in this goals and defenses banc) their standing as voters coun (judges had other defendants and judicial overlap with those of challenging ty to intervene action — However, these indi denied, county), cert. defendant-intervenors. in that elections other that the defen 74 viduals have not shown -, 127 L.Ed.2d U.S. adequately represent Johnson, to dants will be unable (1994); v. also see Miller existing party 2485, 132 an interests. -,-, L.Ed.2d their Where objective ultimate (1995) (residents the same challenged voting pursues intervention, proposed seeking equal protec applicant bring standing had to district to presumed be ade- is intervenor’s interest that resulted in challenge to tion Congressional Chandler, Adams, allegedly Cyn- reside the Third outside W. Gerald 7. Wilmateen Williams, Larramore, Chiquita (doc. 68), Carolyn many and of those voters and thia while seeking representatives Williams. to congressional inter- reside outside Third as defendants also vene that, Indeed, disingenuous un- it is somewhat Congressional District. congressional authority Hays, mov- der the certain who ants have moved dismiss quately represented. v. FSLIC Falls Chase Congressional B. The Movants: Dist., Special Taxing 983 F.2d congressional movants include the Cir.1993)9. unlikely It is therefore these three incumbent African-American members any individuals would raise substantive de Florida, Congress from Brown, Corrine beyond fenses those raised the other de Hastings, fendants and defendant-intervenors. Aleee More Carrie Meek. Con- over, allowing these individuals to intervene gresswoman Brown representative is the judicial will not further the interests of econ from Congressional District, the Third omy. was an intervenor in DeGrandy. Congress- Hastings represents man Twenty-Third organizations Three have also moved District, Congressional an African-American organizations to intervene10. These have a influence district created under DeGrandy. protectable legal litigation, interest in this Congresswoman represents Meek the Seven- they represent the extent voters within the Congressional District, teenth Af- However, Third District11. organi the three rican-American district created under De- completely zations have failed to demonstrate Grandy. congressional movants claim inadequacy representation by any of the “a protecting direct interest in the benefits of defendants or the defendant-intervenors. representation which provided have been Having presumption failed to rebut adequate representation, organizations individually these to them the citizens whom 24(a). pursuant cannot intervene to Rule they represent, assuring and in their Chase, Falls 983 F.2d at 215-16. Permissive opportunities to engage in coalition-building 24(b) inappro intervention under Rule is also (doc. ... continues speed” with all deliberate priate, for the same reasons that the individ 8-9). 21 at ual residing movants outside District Three are not entitled to such intervention. A Congress, any member of like other applicant, subject requirements to the Accordingly, the motion to intervene intervention delineated in Rule 24. Cf. (doc. 11) Cummings movants is GRANT- (a Thornburgh, 865 F.2d at 1205-08 member following ED IN PART. The individuals are Congress subject to constitutional re granted leave to right pursu- intervene as of quirements standing); Boehner 24(a): ant Bishop Fed.R.Civ.P. Frank Anderson, 156, 159-60 (D.C.Cir.1994) 30 F.3d Cummings, Brown, Mary Lawson the Reve- (same). A Green, Sr., review of the O’Neal, rand Samuel L. mov- Leonard Glynell Presley. ants’ motion to only intervene reveals that Proposed generally intervenors have a Washington minimal burden 11.See Apple Hunt v. State Comm’n, 333, 342-44, Advertising to show that inadequately their interests 2434, 2441-42, 53 L.Ed.2d 383 An represented, notwithstanding existing party’s standing bring association has suit on behalf Chase, goal. common Falls 983 F.2d at 216. (a) of its members when: its members would Generally, presumption to overcome the of ade- standing otherwise have to sue in their own quate representation, applicant must show (b) right; protect the interests it seeks to are (1) following: collusion between the germane organization’s (c) purpose; (2) representative opposing party; and an request- neither the claim asserted nor the relief representative represents has or an interest ad- requires participation ed of individual mem- intervenor; proposed verse to the bers in the lawsuit. Id. at 97 S.Ct. at 2441. representative duty. has failed in fulfillment of its Members of an association who reside within the (citations omitted). Congressional standing Third Cummings Id. at 215 District have in The defendants, right their own and otherwise residing movants outside District Three have not Meek, legally protectable have a interest. See showing. made such a 1480; II, 845; 985 F.2d at LULAC 999 F.2d at - Miller, --, see also U.S. at 115 S.Ct. at organizations 10. These include The African maintaining 2485. The interest in the African- Florida, American Political Action Network of germane American District Three is to Women, the National Political Caucus of Black purpose Cummings orga- the of each of the three Chapter, Tallahassee and Blacks on the Serious Finally, by nizations. the defenses asserted the Side, Inc. organizations require partic- three do not conclusion, by require- the motion to intervene Brown meets Congresswoman 20) (doc. congressional of is ments Rule movants grant- PART. The motion is GRANTED IN Brown, whose con Congresswoman Congresswoman Cor- ed to the extent that being challenged in is gressional district may right pursu- as of rine Brown intervene bar, as of entitled to intervene case at is 24(a). ant to Fed.R.Civ.P. direct, substantial, First, has right. she litiga in the legally interest protectable and C. NAACP: inter personal have tion. Elected officials give them in office sufficient ests their Finally, has to inter- the NAACP moved represent standing they district is when the represent purports The vene. NAACP challenge. subject See to a constitutional African-American Florida “thousands” of Citizens, Latin Am. Coun League United of voters, in Three. including voters District (“LULAC I”), 884 cil No. v. Clements DeGrandy, participated The NAACP Cir.1989); Williams F.2d portions congressional provided of the redis- Elections, F.Supp. Bd. State tricting plan DeGrandy pan- adopted (N.D.Ill.1988). Second, although she 1569-73 The claims “an interest as- el. NAACP represented might adequately minority suring that Florida retains through the in United States—demonstrated prior un- representation remedy so as to declaration in the clusion her Govern voting (see lawful dilution of African-American Defs.’ ment’s recent memorandum of law 79)—she strength that con- inter and to assure Florida’s personal A to has a Ex. doc. goes beyond that comply est in her more gressional office with federal law” districts she general and the Govern 3). interest (doc. 31 at keeping Three intact. ment District right. cannot intervene as of NAACP Brown, Congresswoman Consequently, is protectable legal NAACP interest has granted pursuant intervene to Fed. leave to litigation, in this to the extent NAACP 24(a). R.Civ.P. represents within the Third District13. voters hand, remaining On the other However, completely has failed the NAACP congressional movants not intervene two inadequacy representation demonstrate Twen as defendants. The Seventeenth and by any of the defendants defendant-inter- ty-Third Congressional are not the Districts Having presump- venors. failed rebut the subject challenge a constitutional adequate representation, tion of the NAACP judice. Undoubtedly, finding by case sub 24(a). pursuant cannot intervene to Rule Third panel Congressional Dis Chase, Falls 983 F.2d 215-16. gerry product trict unconstitutional necessarily require mandering would Nevertheless, grant the NAACP is Legislature adopt permissively leave to In De- ed intervene. effectively abrogate the De- plan that would Grandy, the NAACP submitted a redistrict Grandy plan—and might result even substantially ing plan that influenced the redrawing Congressman Hastings’ Special Master in the creation of Plan 308 Congresswoman Meek’s Neverthe districts. District Three. See 794 less, Congress Congressman Hastings and Participation 1086-88. in this NAACP general woman have no more than a Meek action will therefore aid the Court its litigation, ized in this since their interest inquiry concerning constitutional being challenged districts are not and the Three, thereby promote the interests remedy impair possibility of a that would judicial economy. brings a The NAACP also their in their seats is interests case, unique perspective to the and has been McLucas, speculative12. no more than See F.2d allowed to in similar actions around at 959. intervene Congressional ipation organiza- lenge or defend the Third District. of individual members of these at-, Hays, See 115 S.Ct. at tions. 2436-37; supra see discussion on the individual supported by This conclusion further Cummings residing movants outside District within fact voters the Seventeenth Three. Twenty-Third Congressional would lack Districts legally supra protectable to chal- 13. See note 11. interest sufficient result, (b) eountiy. As a particularized, the NAACP’s mo- imminent, actual or (doc. 31) conjectural hypothetical. Second, tion to intervene is GRANTED. there must be a causal connection between (Doc. 75): II. Plaintiffs’ Motion to Strike injury and the conduct complained of.... Third, likely, it must opposed as merely (doe. 75) Plaintiffs move to strike speculative, injury will be redressed (doe. 68) Brown movants’ motion to dismiss by a Hays, favorable decision.” 514 U.S. at grounds on the that the Brown movants have -, (quoting S.Ct. at 2435 Lujan v. permitted not been to intervene in this action Wildlife, 555, 560-61, 504 U.S. Defenders of defendants, party as and therefore lack 2130, 2136, 119 (1992)). L.Ed.2d 351 However, standing having to file the motion. permitted Congresswoman Corrine Brown to agree Plaintiffs with Defendants defendant, party intervene as a Plaintiffs’ only following plaintiffs individual motion to strike is DENIED. registered are voters in Congres the Third Johnson, sional District: Coranell H. Charles III. Corrine Brown’s Motion to Dismiss Romero, Romero, Vicki T. Davis, Harold F. (Doc. 68): Devoe, Arthur Erdel, Wilson George Carson Howes, Jr., (see Thomas and Jim Neill Staf Corrine Brown moves to dismiss the com- 88). aff., ford doc. grounds Brown’s for dis (doc. 68) plaint separate grounds. on two missal as to these completely are First, Brown asserts that several of the without merit. plaintiffs are not residents of Florida’s Third District, Congressional As residents of the Congressional therefore lack Third District, eight plaintiffs standing to listed maintain their above have constitutional standing prosecute the ease at bar. against Second, See claims Defendants. Brown —Miller, at-, 2485; U.S. S.Ct. remaining plaintiffs asserts that Hays, at-, 115 S.Ct. at In Reno, failed to state claim under v. Shaw Hays, Supreme Court discussed the indi- injury therefore have not sustained an by vidualized harm plaintiff suffered resid- fact or give individualized harm sufficient to ing racially in a gerrymandered district, find- standing prosecute them this action. Ac- ing that cordingly, Brown concludes that this cause plaintiff ... has equal been denied prejudice. should be dismissed with treatment legislature’s because of the reli- complaint A is not to be dismissed “unless criteria, ance on racial and therefore has appears beyond plaintiff doubt that the can standing challenge legislature’s ac- prove no claim support set facts of his tion. Voters in such districts suffer which would entitle him Conley to relief.” special representational harms racial Gibson, 41, 45-46, 99, 102, 355 U.S. voting classifications can cause con- L.Ed.2d 80 reviewing “[I]n the suffi text. ciency of complaint in the context of a (internal omitted). Id. citations Brown’s ar motion to panel dismiss ... [the must] treat guments, some of previously which have been well-pleaded allegations all of the of the com disposed by panel14, largely go true,” plaint Ga., County, as Miree v. DeKalb merits of equal protection Plaintiffs’ claims. 27 n. 2492 n. However, by drawing all inferences from the (1977), 53 L.Ed.2d 557 and must draw all complaint light in the most favorable to the from light inferences those facts in the most Plaintiffs, Duke, e.g., 5 F.3d at plaintiff, e.g., favorable to the Duke v. Cle plaintiffs residing in District Three have land, 1399, 1402 Cir.1993). 5 F.3d fact, injury shown an causation between injury alleged order to have their and the standing, constitutional unconstitutional conduct, injury and that their can the Plaintiffs must be cured requirements. meet three panel. a favorable decision First, they “injury must have suffered words, fact” —in other “legally violation of a argue Johnson, Plaintiffs also that Andrew (a) protected interest which is concrete and an unsuccessful candidate for the Third Dis- (doc. copy August 57) 14. A provided Appendix order opinion. B to this 1540 rights immunities and whatever vindicate congressional elec- in the seat trict’s enjoy. may More- itself association not a is standing. Mr. Johnson tions, has from over, secure relief attempting to District, regis- but is Third

resident may assert injury to itself association Plaintiffs Florida. State voter tered members, long so at least rights of its shape Three’s bizarre that District contend adversely af- challenged infractions as the District perception public and the ties. associational its members’ fect by an African-Ameri- represented should be 511, Seldin, 490, 95 S.Ct. white v. U.S. and other Warth can, prevented Johnson have (1975); supra see 45 L.Ed.2d being elected from congressional candidates 76). that the bizarre (see Aff., Plaintiffs contend note 11. doe. Johnson District in the prevented Three has shape of District is not a resident Although Mr. Johnson effectively organizing itself from UWSA Three, Qualifications Clause District District, standing to sue giving it within Repre only requires that a the Constitution addition, Plaintiffs main- right. own its “Inhabitant of that State be sentative shape Three of District that the bizarre tain art. Const. chosen.” U.S. shall which he be between members association has inhibited Limits, 2, 2; U.S. Term I, generally § cl. see who interested UWSA reside persons -, Thornton, S.Ct. Inc. v. Drawing all infer- the Third District. within (neither Con L.Ed.2d 881 Duke, Plaintiffs, e.g., in favor of the ences may impose qualifica gress nor the States standing in his has Mr. Ellison F.3d be Representative States for United tions to raise both capacity as an official UWSA Qualifications in the set forth yond those at-, Hays, 514 U.S. of these claims. See Constitution). Any require Clause of at 2435. must be candidate that a ment deny that those Finally, Plaintiffs do not congressional district a resident residing District Three outside individuals election, addi would be an which he seeks Hays, bring action. See standing to lack void under qualification is tional at-, 2436-37. Conse- Collier, 217 Md. v. Hellmann Constitution. following plaintiffs who reside quently, the An Since 141 A.2d 911-12 Congressional District lack the Third outside as the qualified serve Johnson is drew Thomas S. standing, are dismissed: Congressional Third from the Representative III, Bloodworth, Bloodworth, Henry Charles abridgment District15, alleged an has he Brown, T. Robert Con- Boyer, Bill Frances through run for such office right his Jr., Hays, nor, Farley, Milton Hugh Paul standing to gerrymandering, he has racial Johnson, Jackson, Carolyn Susan Ron Janice Hays, 514 See bring instant action16. Lamb, Mathis, McKinney, Cynthia Pat M. at-, at 2435. McKinney. and Daniel argue that Robert further Plaintiffs reasons, De- For all the afore-mentioned Ellison, Stand treasurer of United We motion dis- Brown’s fendant-Intervenor (“UWSA”) Congres for the Third America (doc. 68) PART. IN miss is GRANTED District, standing. Mr. Elli While sional has Motion For Defendant Smith’s Sum- IV. not a resident of son himself is 5): (Doc. mary Judgment repre Three, he of the association members 88). (see Aff., An Ellison are doc. sents Smith moved At the same time Defendant association dismiss, alternative motion he filed an (doc. 5). However, judgment summary standing in own to seek right its supporting present failed to evidence injury to Smith judicial relief from itself where she was contem Amendment claim of Flori First Namely, of the State he resident older, future); da, Porte twenty-five years plating running has been in the La for office years. least States at seven citizen of the United Comm. v. County Republican Cent. Board of I, 2,§ cl. 2. Const. See U.S. art. County, 43 F.3d La Porte Comm’r of 1994) purpose (redrawing districts Cir. Briggs Elections generally See Ohio ability curtailing candidates to of certain (6th Cir.1995) 487, 491-93 61 F.3d Comm’n. Constitution). may violate elected (unsuccessful standing to raise had candidate

1541 question showing that no material of fact Plaintiffs grounds raise several different result, on claims. Plaintiffs’ a summary judgment, remained As which are dealt with reasoning panel’s denying in its order separately below. (see 57) motion to Smith’s dismiss doc. is

equally applicable here. Accordingly, Defen- DeGrandy A. Panel’s Jurisdiction: dant Smith’s motion is DENIED. Plaintiffs argue they first are entitled to summary judgment DeGrandy because the Summary Motion V. Plaintiffs’ For panel subject jurisdiction lacked matter over (Docs. 64): Judgment 26 & plaintiffs’ claims. Plaintiffs maintain that 1994, July, In Plaintiffs moved for sum- pursuant 2284, § to 28 U.S.C. three-judge (doc. 26). mary 1995, judgment July, In may only courts address “the constitutionali- Plaintiffs filed a renewed motion for sum- ty apportionment congressional of dis- (doe. 64). mary judgment Plaintiffs have tricts,” and not the constitutionality of a re- affidavits, supplemental authority, filed districting plan. Plaintiffs further contend other in support documents of their motions three-judge even if a court could enter- (docs. 53-54, 76, 87).& Defendants have claim, tain such a imposition court’s aof responses opposition filed and documents in congressional redistricting plan would violate (docs. 79). 29, 66, to Plaintiffs’ motion & (doe. principle separation powers of 26 reply Plaintiffs have filed brief to Defen- 12-17). (doc. 73). responses dants’ subject Lack jurisdic matter evaluating In a motion for sum time, tion any be raised at even after mary judgment, panel examine must the court has rendered a decision on the pleadings, depositions, whether “the answers Casio, Co., merits. Inc., Inc. v. S.M. & R. interrogatories, file, admissions (7th 528, Cir.1985); 755 F.2d see Fed. together with the ... affidavits show 12(h)(3); Bay, R.Civ.P. Save the Inc. v. Unit genuine there no as is issue material 1100, (5th ed Army, States 639 F.2d moving party fact and the is entitled to a Cir.1981)17. Nevertheless, Plaintiffs’ argu judgment as a matter of law.” Fed.R.Civ.P. ments that panel lacked sub 56(e). party opposing If the motion ject jurisdiction matter are without merit. summary judgment bears the burden of challenges Constitutional re proof issue, dispositive on a the burden on districting plans clearly scope fall within the moving party is to demonstrate ab See, § e.g., 28 U.S.C. 2284. Ohio ex rel. support sence of nonmoving evidence Lambros, Williams v. 512 F.2d 372 Cir. party’s Catrett, Corporation case. Celotex v. 1975); Shayer Kirkpatrick, v. 541 F.Supp. 317, 322-23, 106 2548, 2553-54, (D.Mo.), aff'd, 456 U.S. 102 S.Ct. (1986). occurs, 91 L.Ed.2d 265 If this (1982). Moreover, 72 L.Ed.2d 841 if a party upon proof whom the burden of three-judge exercising jurisdiction un imposed then must come forward with evi congres § der 28 U.S.C. 2284 strikes down a dentiary demonstrating genuine material districting plan legislature sional and the issue fact for trial. Id. must be There adopt redistricting plan, unable to a new then jury such reasonably evidence could may impose the court plan. its v. own Wise party return a verdict for the bearing the Lipscomb, 535, 540, 437 U.S. proof. burden of Liberty Lobby, Anderson v. 2497, 57 L.Ed.2d 411 242, 251, (1986). However, L.Ed.2d “the evidence B. Time For Frame Court Redistrict- and inferences drawn from the evidence are ing Plan: light viewed most favorable nonmoving party, and all doubts next reasonable Plaintiffs assert that court-or Lee, are in his favor.” resolved v. temporary WSB-TV dered is a solution (11th Cir.1988). 1266, 1270 842 F.2d applied legislature when the state has insuffi- Prichard, City adopted precedent Bonner 661 F.2d Circuit the decisions of the (11th Cir.1981) (en banc), prior the Eleventh Fifth Circuit rendered October entry judg- days after ten redistricting plan motion within newa time to enact cient However, that some to the extent Plaintiffs main- ment. elections. impending before in the parties are impending elections in this were parties action after tain that be legislature might should able action, parties the state completed, those adopt a new redis- to opportunity Fed. given pursuant the to a raise such motion to However, contend Plaintiffs tricting plan. 60(b)(5), the gives a court which R.Civ.P. prevented Legislature Florida that prospective modify the power inherent to by para- enacting replacement a from injunction18. In the permanent a effect of judgment. DeGrandy court’s graph 2 of the might seek alternative, DeGrandy parties perma- as the adopted Plan B08 Paragraph 2 60(b)(6), which Rule under an amendment state redistricting plan for the nent decennial judgment on a final relief from provides for Florida, the state of and ordered of justifying” “any reason other grounds of congressional elections conduct the 1992 “to relief19. in dis- elections thereafter DeGrandy, by appropriate Plan 308.” more as shown finds that the tricts The Court added). (emphasis at 1090 by treating Plain- 794 analytical route to take DeGrandy pan- Plaintiffs conclude independent attack on arguments as tiffs’ redistricting permanent adoption of a el’s redistricting plan. It is de- DeGrandy principle of the constitutional plan violates in- panel, which now whether batable powers. separation of place Judge Paul in cludes Chief District Stafford, the De- constitutes Judge several different parties raised hand, in- Grandy On the other court. three-judge panel the instant ways in which jurisdiction to three-judge panel has stant pertaining to the arguments consider can challenges to entertain constitutional DeGrandy of the time frame redistricting plan. DeGrandy portion of to alter or a motion plan. It is clear that chal- § Plaintiffs have 28 U.S.C. See to Fed.R.Civ.P. judgment pursuant amend DeGrandy imposition of a lenged court’s 59(e) entertained, 52(b) since cannot be or redistricting plan20, and this permanent a state DeGrandy parties raised such none of the challenge expressly equitable power 20.While Plaintiffs did not the inherent 18. A court has DeGrandy plan permanence in their of the modify prospective effect of its decrees in (see 2), they circumstances, raised such complaint doc. have a changed when response summary judg- challenge in their motions significant change in or inter been a there has 8; 5), (doc. 64 at which should 26 at doc. ment controlling law. Roberts pretation decisional complaint. their 166, as a to amend Co., (5th be treated motion Regis Paper F.2d 172 Cir. 653 v. St. allowing discretion in has see, This Court substantial 1981); e.g., Aug. States United v. Unit B pleadings, and leave to parties to amend 929, (5th their Co., Georgia 634 F.2d 932-34 Power justice freely given so when is to "be amend 1981), and remanded on other Jan. vacated Cir. 15(a). requires.” Fed.R.Civ.P. 2026, 72 grounds, S.Ct. 456 U.S. (1982). L.Ed.2d dissent, Hatchett, erroneously Judge his before the this issue is not concludes that 60(b)(6) 60(b)(1)-(3), a Rule mo 19. Unlike Rules Court, notwithstanding "... his concession year within one after not be language certainly tion need raised plaintiffs' the rest of the judgment. imposition a See Fed.R.Civ.P. final au- opines court exceeded its that the 60(b). may by judges be amend Mistakes law rendering injunction ..." rec- thority its 60(b), provides "grand Rule which ed under that Plaintiffs evidence demonstrates ord consistently equitable power justice constitutionality to do reservoir of of a attacked the Lundy, particular 975 F.2d redistricting plan. case.” Nisson v. For permanent court-drawn Cir.1992) (citations omitted). (11th judgment original summary example, motion, in their was ‘clear mistake extent the argued a district court's that to the "[W]here Plaintiffs ‘plain permanent adopted misconstruc redistrict- the record' involved ..., compelling policies of ing plan, basic tion' of the law 60(b)' by may equity appears to have deviated reflected man the court fairness ... from judgment authority redis- its to create court-drawn date amendment to ‘conform limited ” Nevertheless, omitted). Supreme (citations by Court. It tricting plans set re out law.’ Id. separation 60(b)(6) principle extraordinary remedy also violated is an has lief under Legis- powers the Florida exceptional prevented and has may only under cir invoked Co., obligations fulfilling under Arti- its lature from Ins. Cavaliere v. Allstate cumstances. III, Cir.1993). Florida Constitution Section 3 of the cle F.2d panel properly according consider such a chal- fails to [redistrict] to federal con- lenge. requisites timely stitutional in a fashion after having adequate opportunity had an to do Legislature required to re The Florida Sims, Reynolds 533, 586, so.” v. 377 U.S. congressional districts each district its after 1362, 1394, L.Ed.2d 506 I, 2,§ decennial census. See U.S. Const. art. the wake of such a legislature, failure cl. as amended U.S. Const. amend. “a federal court is left with the unwelcome XIV, (“Representatives § 2 appor shall be obligation performing legislature’s in the among according tioned the several States stead, lacking political while authorita- numbers”); respective their U.S. Const. art. legislature tiveness bring can (“The I, Times, § 1cl. Places and Manner Finch, task.” Connor holding Repre Elections for Senators 1828, 1834, 52 L.Ed.2d 465 sentatives, prescribed shall be in each State thereof; by Legislature Congress the the but question There DeGrandy is no that the by time Law make or alter such properly adopted court redistrieting plan Regulations, except as to the Places of chus- congressional for Florida for the 1992 elec- Senators.”); ing (pro § 2 see also U.S.C. 2a three-judge panel tion. The struck down the viding redistrieting). the time and manner for existing congressional districting plan after Redistrieting is therefore a matter for state parties stipulated the congressional legislative consideration and determination. district malapportioned. lines were emphasized legislative The Court the nature panel at 1081. adopted a new redistrieting in Lipscomb: v.Wise congressional districting only scheme after existing When a federal court declares an Legislature the Florida timely adopt failed to unconstitutional, apportionment scheme redistrieting plan, a new filing with the dead- therefore, appropriate, practi- is whenever Fall, for congressional lines the election cable, opportunity to afford a reasonable close at hand. See id. legislature for the to meet constitutional requirements by adopting a substitute Nevertheless, including language “and measure rather than for the federal court congressional elections in- thereafter” to plan. devise order into effect its own junction in DeGrandy appears issued to have at 2497. one DeGrandy Judicial had of two results: Either the only appropriate legislature actually designated relief is “when a per- Plan 308 as a allowing legislative redistrieting process redistrict the State after the decennial cen- to go possible. sus. forward whenever added). Moreover, Tr., (emphasis Hr'g (empha- Doc. 26 at 5 dur- Oct. doc. 90 at 50-51 motion, added). ing arguments oral on Plaintiffs' Mr. sis Sullivan, counsel, Judge correctly language Plaintiffs’ stated Hatchett recites from narrowly any remedy arguments [w]e think that to tailor the oral in which Plaintiffs' counsel satisfy asking or to the third element of the Milliken indicated that Plaintiffs were not test, simply DeGrandy injunction [the court] this Court would to Court (see amend the 116-17). However, congressional districting contrary have to have made its doc. 90 at to plan, temporary Judge interpretation, Plan an interim or a Hatchett's Plaintiffs were that, plan; congressional abandoning as soon their attack on the constitution- completed legisla- ality permanent redistrieting elections were of a court-ordered Instead, permitted opportuni- plan. ture should have been as noted in the discussion in back, and, fact, order, ty go V(C) to as a matter of should section of this Plaintiffs' counsel was back, go attempt merely emphasizing importance have been ordered to to to the Court the legislatively addressing underlying redraw the districts. issue of whether And, consequently, asking challenge that's what we are District Three survived a under here, happen legislature to is that the ... has Shaw—even if the Court determined that permission DeGrandy injunction asked this Court for to redistrict exceeded constitutional Florida, districts, (to state constraints. See doc. 90 at 117 do otherwise principles; ignore plan, in accordance with constitutional “would the fact that the as it cur- therefore, exists, they, granted rently give and that should be is unconstitutional and would right responsibility people because it is their under the solace to who would believe that it can according Florida Constitution to do so. And I think that continue to hold elections to an un- Constitution, redistrieting plan, under the U.S. it is this Court's constitutional and overlook responsibility rights plaintiffs”). to exercise all of its discretion the violations 1286, 1293, L.Ed.2d State of U.S. redistricting plan manent21 (1966) (“The adopt alternatively, Legis- free to Florida; or, the Florida State remains pres- order that and the interpreted plans apportionment, lature other thereby discouraged from way and was in effect no plan will remain ent interim permanent its own adopting necessary adopt perma- is longer than first result To the extent plan22. Indeed, practical and there are plan.”). nent DeGrandy plan unconstitu- occurred, scope narrow reasons for the constitutional oc- the second result extent To the tional. Practically power. remedial of the court’s legisla- curred, clear that a state the law speaking, authority to redistrict always has the ture that is legislature is the institution a state con- subject to constitutional reapportion, identify the best situated far straints. policies traditional state then reconcile some author appears to be Although there constitutionally mandated within perma implementation ity supports equal- population framework substantial courts23, by federal redistricting plans nent pos- contrast ity. federal courts authority is to the con weight of the clear compromise no distinctive mandate sess great Supreme Court went trary. The conflicting apportionment sometimes state that, point out under the pains Wise people’s name. policies in the above, federal a circumstances discussed 414-15, Finch, 97 v. 431 U.S. at S.Ct. Connor impose reapportion a “devise and court must Constitutionally speaking, a dis- at 1833-34. legislative action.” plan pending later ment precluded by principles the twin trict court is 540, (emphasis at 2497 98 S.Ct. 437 U.S. at Richardson, separation powers and federalism24 of the of added); Burns v. 384 see also Connor, redistricting plan. gressional the Su- "permanent,” in the context of 21. It is clear adopt preme a redistricting, the lower court to means until Court ordered reapportionment and reapportionment plan, Reynolds, “permanent” but limited 377 census. See the next decennial (Decennial legislators 583-84, reap- application in the to the election of at 1393 its at 84 S.Ct. U.S. any necessary quadrennial elections and minimum re- 1979 portionment the constitutional November, special to be held in 1976. elections quired). 679, S.Ct. at 1816. The 425 U.S. at 96 Garza Legislature that it has indicated 22. Florida redistricting plan, although permanent on its opportunity to devise be afforded an should face, county supervisor only applied to the 1990 present plan the redis- acceptable replacement if Furthermore, F.2d at 765. election. See 918 7).¶ (see tricting plan down doc. 18 at is struck upon plan was based results since Garza July, hearings, July, 1994 and 1995 At both the census, super- would have been from the 1980 it Legislature indicated that the Florida counsel for from the for the 1992 election results seded adopt Legislature to another wanted even if designated census. Kimble was 1990 decennial redistricting plan, to move this it would have plan only parties stipu- permanent after the as a DeGrandy order to strike the Court to amend the F.Supp. designation. at 671- lated to such a 826 language congressional elections thereaf- "and 73; Tr., 18, Hr’g 55 at see id. (July doc. ter” 1994 24.Separation powers, of which is fundamental 69-75). very likely that the therefore It is system government, of does not arise from to our good Legislature faith belief that Plan 308 has a Constitution, provision but because of DeGrandy perma- adopted by court as a provi- "behind the words of the constitutional redistricting plan. nent postulates which limit and control.” sions are Coleman, 675, U.S. 96 S.Ct. Mississippi, v. 425 Principality 23. See Connor 292 U.S. Monaco v. of curiam) (Su (1976) (per 313, 323, 48 L.Ed.2d 295 78 L.Ed. 1282 adopt (Holmes, C.J.). court to preme separation Court ordered district the doctrine of Under plan reapportionment Missis "permanent” composed powers, government of three our of County Ange sippi Legislature); les, Consequently, v. Los separate coequal Garza branches. but Cir.1990) (upholding dis expressly provided 918 F.2d or inciden- "unless otherwise plan conferred, adoption permanent judiciary powers trict court’s ... tal to the denied, districts), 498 U.S. county supervisor legislative cert. or cannot exercise either executive (1991); Islands, see Philippine 112 L.Ed.2d power.” Springer Niagara, 189, 201-02, County also Kimble v. 72 L.Ed. 845 (district (W.D.N.Y.1993) adopted per court Federal- James Madison noted in The As county legislature 47, "[wjere judging joined to power manent for elections ist No. upon parties’ request). liberty legislative, the life and with the control, exposed arbitrary subject to actually would be that a district None of these cases held legislator.” judge be the permanent would then power adopt a con- court has legislature’s authority usurping ularly light a state trae in Legisla- from the Florida adopt redistrieting plan. a constitutional duty ture’s failure to fulfill its constitutional clear, light foregoing, adopt permanent that if redistrieting plan25. It is DeGrandy designated Plan It necessary 308 as is therefore to determine wheth- Florida, permanent redistrieting plan for they er Plaintiffs have demonstrated are en- summary judgment violate both of these constitu- titled to equal then would on their protection principles. tional claims.

Therefore, Legal the Plaintiffs’ motion for sum- Standards: mary judgment granted must ex- allegation Plaintiffs’ that District challenges DeGrandy plan that it tent product Three is the separate of “an effort to redistrieting permanent plan. state We voters into different districts on the basis of be, is, that it conclude must an interim ¶ (doc. 6) race” cognizable is a claim only plan which will remain in effect until the Equal under Protection Clause. See Legislature adopts congres- Florida a valid Shaw, at-, 113 S.Ct. at 2824. redistrieting plan, through sional the next The mere fact that District Three and the census, decennial whichever first occurs. redistrieting plan were created result, federal court change does not Gerrymandering Under Shaw C. Racial judges since equally federal are bound to v. Reno: follow the dictates of the Constitution26. V(B) While discussion section shows The Shaw decision was handed down subse court could not constitu- quent adoption court’s tionally impose permanent redistrieting redistrieting plan. “Some courts have plan, that does not end this matter. intervening The held that an change in the law justify readjudication heart of Plaintiffs’ claims is that District ... would of the consti gerrymander tutionality Three amounts to a reapportionment racial of a redis [or Folsom, Equal tricting] plan.” violation of the Protection Clause of Wesch v. 6 F.3d (see 2). (11th Cir.1993) the Fourteenth If Amendment doc. 1472-73 (collecting — cases), denied, equal U.S.-, the Plaintiffs in fact been denied cert. 114 S.Ct. (1994). 696, 126 protection by result, the manner in which District L.Ed.2d 663 aAs drawn, Three panel independent obligation was then the Court’s failure to instant an has that constitutionality address issue would allow the constitu- to evaluate the of District deprivation partic- light tional to continue. This is Three in of Shaw27. principle beginning The Constitution embodies the itself that would be effective with the 1994 ("The congressional Legislature of federalism. See U.S. Const. amend. X elections. The Florida delegated powers by implicitly adopted to the United DeGrandy plan States when it Constitution, States, prohibited by nor repealed existing districting plan. it to See 1993 States, 93-271, respectively, are reserved to the or to the repealing Fla.Laws ch. Fla.Stat. people.”); Gregory Ashcroft, 8.001, 8.01, 8.011, 8.03, see also 501 U.S. §§ 8.061 452, 457, 2395, 2399, 111 S.Ct. 115 L.Ed.2d 410 (1991) ("The Constitution created a Federal Gov otherwise, Judge suggests 26. To hold as Hatchett powers.”). ernment limited Federalism is dissent, holding in his would be akin to upon power based the belief that a diffusion of Equal Protection Clause the Fourteenth state, governments, between two federal and will apply Amendment does not to federal courts. Ashcroft, people. enhance freedom of the See unwilling The Court is to reach such a conclu- 458-59, 2400; 501 U.S. at 111 S.Ct. at see also Commissioner, sion. See Adamson v. 745 F.2d States, 144, 180, New Yorkv. United 505 U.S. (9th Cir.1984) ("Federal courts cannot 2408, 2431, (1992) ("|T|he S.Ct. 120 L.Ed.2d 120 countenance deliberate violations of basic consti- authority Constitution divides between federal rights. judi- tutional To do so would violate our governments protection and state for the of indi uphold cial oath to the Constitution of the United sovereignty just viduals. State is not an end in States.”) 453). (citing § 28 U.S.C. ‘Rather, itself: federalism secures to citizens the liberties that derive from the diffusion of sover eign power.’") (quoting equally 27. The law of this Circuit is clear that Thompson, Coleman v. DeGrandy does not bar this action under the 2546, 2570, 111 S.Ct. judicata. generally doctrine of res See Parnell v. (1991) (Blackmun, J., dissenting)). L.Ed.2d 640 Bd., Rapides Parish Sch. 563 F.2d decision, Cir.1977) ("Faced law, Leg- changing

25.After the Florida courts with adopt hearing redistrieting plan questions right failed to islature a new of constitutional cannot — -, Johnson, U.S. In Miller v. provides that Clause Equal Protection The clari- Supreme Court S.Ct. any person within its “deny to shall no State equal proving an requirements for fied the protection of the laws.” equal jurisdiction the districting reap- challenge to a protection XIV, § 1. Shaw amend. U.S. Const. plan. question before portionment explicitly distin that “[l]aws that court noted Georgia’s Eleventh whether Miller court was grounds on racial guish individuals between racially gerry- Congressional District prohibition.” 509 that core of fall within the Equal Protec- of the mandered violation at-, at 2824. The 113 S.Ct. at-, at 2482. 115 S.Ct. tion Clause. Id. or re reapportionment therefore held designated been a cov- Georgia, which had made under the challenge could be districting 4(b) Voting jurisdiction § under ered Clause Equal Protection Act, preclearance for Rights had to obtain though legislation, alleging that by redistrieting plan. Id. at congressional its face, rationally cannot its race-neutral -, plans first two at 2483. The 115 S.Ct. anything Legislature other than Georgia be understood submitted rejected by the Justice were preclearanee into different dis- separate voters effort to they only two included Department because race, and that tricts on basis majority districts. Id. at African-American justification. separation lacks sufficient -, In order at 2483-84. S.Ct. Redistricting at-, at 2828. Id. Legisla- Georgia preclearance, to obtain it is on its face legislation so bizarre finally plan that created submitted ture race, grounds other than unexplainable on majority districts. African-American three like other state laws be treated will at-, at 2484. The Justice Id. 115 S.Ct. such the basis of race: classify citizens on Department gave preclearance, and elections it is upheld unless legislation will not be new dis- were held under the compelling narrowly to achieve tailored November, Id. at tricting plan in at-, at 2825- interest. Id. state -, at 2484-85. around District was centered The Eleventh prov on to hold that went The Shaw court Atlanta, including Au- large urban centers vary, gerrymandering racial will ing Savannah, together a ease of and was tied gusta, and “In facts of the case. of miles of rural counties depending upon the hundreds eight swamp “splitting cases, narrow reapportionment exceptional some corridors — municipalities along the counties and five that, highly irregular on its so at-, In way.” 115 S.Ct. at 2484. Id. face, understood as rationally cannot be 1994, voters from the Eleventh five white ‘segregat[e] effort to anything other than an District, majori- one of the African-American Shaw, race.” 509 ... on the basis of voters’ districts, ty against several state filed suit at-, (quoting at 2826 Gom 113 S.Ct. U.S. at-, at 2485. The Id. 115 S.Ct. officials. 339, 341, 81 S.Ct. Lightfoot, 364 U.S. illion plaintiffs alleged that the Eleventh Miller (1960)). cases L.Ed.2d 110 Other 5 gerrymander that violat- a racial was reapportion because “a will be more difficult Clause, interpret- Equal ed the Protection of the concentrates members ment that ined Shaw. Id. from and excludes them group in one district panel majority the District Court A wholly legitimate pur may reflect others Miller, F.Supp. 1354 agreed. Johnson v. 864 Rockefeller, (citing Wright v. 376 poses.” Id. (S.D.Ga.1994). court found that The lower (1964)). 512 11 L.Ed.2d U.S. 84 S.Ct. creating Georgia Legislature’s purpose to defeat a Legitimate purposes sufficient shape plan and the bizarre of the the final may gerrymandering be racial claim of District, that race Eleventh demonstrated application of traditional through the shown overriding predominant force was the and compactness, con districting criteria such as Id. at 1374- districting determination. political subdivisions. tiguity, respect applied and a strict scru- 78. The court therefore assuming compliance with at-, tiny analysis, that Shaw, at 2827. 113 S.Ct. 509 U.S. were, denying panel much in their order judicata. they of this held as by If res be limited (see differently applied in dif would be to dismiss doc. 57 Constitution Smith's motion Defendant denied, locations.”), 98 cert. 438 U.S. 6-8). ferent at (1978). majority A S.Ct. 57 L.Ed.2d 1160 (1) evidence, Rights compelling Act a Voting by would be circumstantial demonstrated Nevertheless, shape demographics; Id. at 1381-82. the district’s interest. Voting Rights legislature’s Act did more pur- court found that the direct evidence -, majority pose. require three African-American Id. at 115 S.Ct. at words, districts, Georgia’s plaintiff prove therefore that redis- other “a must that the narrowly legislature tricting plan was not tailored to the subordinated traditional race-neu- goal complying districting principles with the Act. Id. at 1392- tral ... to racial consid- erations.” Id. Although appealed.

The state defendants The Su the district court had found it “exceedingly granted stay, shape a obvious” from the preme Court Miller v. John son, U.S.-, 36, 129 demographics challenged of the L.Ed.2d District that S.Ct. deliberately (1994), encompass it was drawn to Afri- probable jurisdic and later noted populations, can-American tion, -, the Miller court did not reach the issue of whether this evi- L.Ed.2d 620 dence alone was sufficient to establish a argued appeal, On the state defendants at-, claim. Shaw Id. S.Ct. legislature’s that of a deliberate evidence Instead, 2488-89. the Court focused on the classification of voters on the basis of race purpose direct evidence of racial considered was insufficient to state a claim under Shaw. by namely, the district that the Geor- court — Instead, argued “regardless the defendants gia Legislature was motivated a desire to legislature’s purposes, plaintiff must of the create majority three African-American dis- shape that a district’s is so bi- demonstrate attempt get tricts administrative unexplainable zarre that it is other than on preclearance Department28. from the Justice race,” plain- the basis of and that the Miller at-, id. See S.Ct. 2489-90. — showing. tiffs had failed to make such a The Court held that the district court’s find- at-, at 2485. ing of racial supported, motivation was well rejected Supreme the Miller Court applied scrutiny analy- therefore strict at-, defendants’ contention. Id. at-, sis. Id. at 2490. 115 S.Ct. at 2485-87. The Court reasoned recognized the Miller signifi- While eradicating past cant state interest [sjhape is because relevant not bizarreness in Georgia, effects discrimination it found necessary is a of the constitutional element Georgia Legislature not moti- was wrong requirement proof, or a threshold Instead, vated interest. Id. persuasive but because it circum- recognized Legislature sake, stantial evidence that race for its own adopted redistrieting plan that would com- districting principles, and not for other ply preclearance requirement with legislature’s controlling dominant Act, Voting Rights and would maximize the drawing rationale its district lines. The number of African-American dis- logical implication, ... parties may is that at-, tricts. Id. 115 S.Ct. at 2490- rely upon evidence other than bizarreness attempts 93. The held that Court such to districting. to establish race-based comply with federal antidiscrimination laws (collect- at-, 115 at Id. S.Ct. 2486 justify districting could not race-based when cases). ing districting unnecessary such “under a was on to re- The Court went consider the reading application constitutional of quired proof equal sufficient to sustain an at-, Id. 115 those laws.” S.Ct. 2491. protection challenge redistricting plan. to a Indeed, that a “[i]t the Court reasoned takes plaintiff’s The Court held that the burden is shortsighted unauthorized of the view statute, predominant Voting that “race was the fac- Rights show Act to invoke that motivating legislature’s tor decision to played which has a decisive role in redress- place significant ing number voters within some of our worst forms of discrimina- district,” tion, particular through very stereotyping racial without a either: demand “every 28. The district court had noted that factor create the three African-American dis- realistically Johnson, that could be subordinated to racial F.Supp. tricts. at 1384. tinkering in fact suffered that fate" in order to separate to submit a statement Id. at failure Amendment forbids.” the Fourteenth Accordingly, grounds for de- -, undisputed material facts is 115 S.Ct. Georgia redis- found that nying Miller court The United States next their motion. scrutiny, pass strict tricting plan failed to summary judgment inappro- contends an unconstitu- and struck down discovery. no priate because there has been gerrymander. Id. tional racial also asserts that The United States stay proceedings pend- Contentions: should further 2. The Parties’ Court Supreme in ing the decisions supple- Plaintiffs filed a July On —Hunt, U.S.-, Shaw v. summary rely- judgment, mental motion Vera, (1995), v. L.Ed.2d 878 and Bush authority of Miller large part in on the ing — U.S.-, 2639, 132 L.Ed.2d 64). (doc. Plaintiffs filed exhibits and Shaw (1995). motion, including Re- support in of their Special port and Recommendation maintains that Finally, the United States expert as the DeGrandy, in as well Master the ab- Plaintiffs have failed to demonstrate Special upon relied in report that the Master concerning fact sence of triable issues of 87). (see doc. making his recommendations equal protection their claims. United includes both argue that the record Plaintiffs beyond dispute that this admits “it is States direct evidence that race circumstantial and important race as an factor Court considered motivating in the predominant factor was the 18). (doe. 79 at How- creating District 3” redistricting plan. Plaintiffs fur- ever, contends that the United States DeGrandy court’s maintain that the cre- ther tradi- court also took into account narrowly District Three was not ation of districting principles thereby avoid- tional — compelling state inter- to further tailored stereotyping ing impermissible racial dis- est. further cussed Shaw. The United States response in filed a Defendant Mortham DeGrandy redistricting plan argues that the (doc. 66). motion opposition to Plaintiffs’ justified by government compelling assuming argues that even Mortham complying Voting Rights interests of with the motivating was a factor the DeGran- race adopting a remedial measure to Act and dy redistricting plan, traditional past discrimination. The eradicate effects factors not sacrificed racial consider were also asserts that there is a United States extensively cites ations. Mortham question material of fact as to whether Dis- independent expert’s DeGrandy court and narrowly trict Three was tailored further factors, support con analysis of these her compelling these interests. points Mortham further out clusion. preclude being race from Miller does not Analysis Preliminary Issues: — citing districting equation, factored into the (E.D.Cal. Wilson, matter, preliminary As a Defendant-Inter- DeWitt 1994), part appeal judgment argues venor United that Plaintiffs’ States aff'd U.S.-, part, undisputed dismissed to file a ma- failure statement 2637, 132L.Ed.2d 876 grounds denying terial facts is their mo- specify that fail- tion. The Local Rules also United States Defendant-Intervenor “constitutes ure file such statement (doc. 79). response to Plaintiffs’ motion filed grounds for denial of the motion.” N.D.Fla. has filed a number The United States 56.1(A). However, this case is some- Loc.R. summary opposition judgment, exhibits undisputed in that what unusual most including Congresswoman the declaration DeGrandy material facts are contained in the (Defs.’ A), by Ex. an affidavit Profes- Brown Consequently, decision itself29. Plaintiffs (Defs.’ B), Ex. and the sor Richard Scher substantially complied with Local Rule Stem, have report Mark United States’ (Defs.’ C). 56.1, on this and denial of their motion DeGrandy expert witness Ex. inappropriate. argues ground that Plaintiffs’ would be The United States first fact, findings and factual record in the DeGran- In Defendant-Intervenor United States correctly (see 2). pointed out that the law of this litigation has dy doc. at 2 n. 79 judicial permits notice Circuit the Court to take

1549 Nevertheless, also United States Defendant-Intervenor United States has discovery argues requested discovery additional is needed also limited that on the issue summary the Court considers the of whether District upheld before Three can be (see 11, 14 21- judgment scrutiny analysis. motions doc. 79 at n. under a strict Such limit D). 22; non-moving party may discovery A appropriate. Defs.’ Ex. ed Consequently, pursuant move to Federal Rule of Civil Pro- Defendant-Intervenor United Rule States’ 56(f) 56(f) cedure for a continuance to obtain fur- motion to continue is GRANTED IN evidence, discovery parties thirty ther where additional PART. The days carry its would enable the non-movant to from the date of this order within which to summary judgment30. E.g., discovery burden on Fitz- conduct on matters relevant to a Atlanta, City patrick scrutiny analysis v. F.3d 1116 strict of District Three. (11th Cir.1993). n. 3 While the United States 56(f), complied Finally, it has not invoked Rule has Defendant-Intervenor Unit requirements by informing requested ed stay with the Rule’s States has the Court fur proceedings ther pending the Court about the need for additional dis- this matter covery support Supreme decisions of its ease31. See Dean v. Court in Bush and Barber, (11th Co., Shaw. 951 F.2d & n. 3 Landis North Am. Cir.1992). 248, 254-55, 163, 165-66, 81 L.Ed. (1936), Supreme Court held that motion, granting To warrant such a power stay courts have the proceedings in postponement United States must show “how pending one action the decision of another [it], ruling of a on the motion will enable action. The Court reasoned that means, discovery or other to rebut the mov- showing of genuine ant’s the absence of a power stay proceedings is incidental Light issue of fact.” Florida Power & v.Co. power every inherent court to Corp., Allis 893 F.2d Chalmers disposition control the of the causes on its Cir.1990) (11th (quoting Wallace v. Brownell economy docket with of time and effort for Co., Inc., itself, counsel, Pontiac-GMC 703 F.2d litigants. and for How Cir.1983)). The issue of whether Dis- this can best be done calls for the exercise racially gerrymandered trict Three is a dis- judgment, weigh competing which must trict on an examination of turns the DeGran- interests and maintain an even bal- ance_ dy creating court’s motivations in Third Especially in cases of extraordi- District, independent moment, as memorialized in the nary public may the individual be expert’s report, Special Report required delay Master’s to submit to not immoder- Recommendation, and the deci- oppressive ate in and not extent its discovery sion itself32. Additional consequences would not public if the welfare or con- lead to evidence would create thereby promoted. venience will question material of fact on this issue. 254-56, Id. at Therefore, on the issue of whether District district, However, racially gerrymandered adequate grounds

Three is do not exist request stay the United States’ for additional dis- for the issuance of a in this matter. First, covery although must be DENIED. Bush v. Vera and Shaw v. 56(f) motion, provides ruling summary judgment 30. Rule ment 56(f) although requirements appear party the technical of Rule from [s]hould the affidavits of opposing party the motion that the cannot for have not met.” v. Bankers been Nat’l Fernandez Co., present by (11th Cir.1990). reasons stated affidavit facts essen- F.2d Ins. Life justify party's opposition, tial to the court may application judgment refuse the 32.Counsel for Defendant-Intervenor United may permit order a continuance to affidavits during arguments, States admitted as much oral depositions to he obtained or be taken or dis- noting the reasons the covery to be had or make such other adopted Plan 308 were contained in that court's just. order as is agreed Counsel also that it would be orders. 56(f). Fed.R.Civ.P. inappropriate under these to de- circumstances pose DeGrandy judges, recognized and stated that no 31. The Eleventh Circuit has that “the justice require postpone- request of interests sometimes such would be made. redistricting scrutiny apply will and the increas- strict undoubtedly enhance Hunt will will be un- plan defining the Third District jurisprudence protection body equal ing of Reno, rea- if the court’s the recent constitutional Shaw began with narrowly tai- Hays Miller for its creation were sons decisions Supreme Court compelling state interest. adequate lored to further a with an this Court provided at-, at 2490. Plaintiffs’ id. 115 S.Ct. to evaluate See analytical framework Moreover, public welfare will be claims. that race was have conceded Defendants by immediate consider- promoted better drawing motivating factors one of several cause, any forthcoming since this ation of However, Congressional District. Third untimely be too will Supreme Court decisions any a to look further than one does not need opportunity an effectively give this Court District to reach the conclu- map of the Third poten- at bar without adjudicate the case predominant in fact the sion that race was congressional elec- the 1996 tially disrupting DeGrandy court. motivating factor of the will Finally, any harm to Defendants tions. many respects, Appendix A. See minimis, any event since it is clear be de is a better ex- Congressional Third District adopt may at time Legislature Georgia districting than the ample racial redistricting plan. De- permanent its own pan- in Miller. In this district struck down States’ motion fendant-Intervenor United majority August el’s order of DENIED. stay is therefore way: this described District Three Analysis Claims —Plaintiffs’ shaped gnawed a 3rd District is like v. Reno: Under Shaw wishbone, narrowly twisting about 250 strange through portions and anomalous case. of 14 counties— This is a miles years ago, three-judge panel yards a or parts three some of it no wider than 50 Over city begins adopted length redistrict- of a block. It near this Court Florida, thinly juts edge which would ing Orlando and out plan for the State place places, leaving for the next ten purportedly be the Atlantic Ocean trail DeGrandy court elongated time the Rorschach ink years. At the that looks like way up districting zigzags lines for the State it all the to Jack drew the blot as Florida, good faith engaged in a effort Then it meanders down toward sonville. redistricting plan state, following a adopt politically part neutral the western voting opportunities spilled paint, before path enhance that resembles would Hispanic Levy bouncing up trickling voters. into Coun for African-American (doc. closely ty, followed which touches the Gulf of Mexico Voting Rights Act and tradi- ar quoting at Florida-Times Union dictates of 32). throughout redistricting principles ticle attached to doc. tional must now reexamine process. This Court DeGrandy, at 1090-91 See also Plan 308 and lines drawn (same). (Vinson, J., concurring) specially District the contours of decide whether Eleventh District in Miller was Whereas the light of Shaw Three are unconstitutional large, geographically comprised of a cohesive and Miller. joined through narrow corridors rural area Shaw, populations in Atlan- with African-American Plaintiffs’ burden is to show Under — ta, Savannah, at-, Augusta, and U.S. predominant factor moti- that “race was single Three is a [DeGrandy decision to 115 S.Ct. at vating court’s] cutting through 39 mu- serpentine corridor significant number of voters within or place a 14 counties in the northern Congressional nicipalities Dis- Third [Florida’s without — Miller, at-, District Three includes the half of Florida. trict].” population areas African-American 2488. Plaintiffs can meet their burden Beach, Gainesville, Jacksonville, (1) evidence, Daytona through either circumstantial to achieve a 54.5 It was drawn shape and de- Orlando. demonstrated the district’s population, 50.1 percent African-American mographics; more direct evidence VAP, and a 50.1 at-, African-American percent purpose. the court’s Id. (see burden, De- registered voter percent 2488. Once Plaintiffs have met their

1551 added). Therefore, Grandy independent expert report, (emphasis Pls.’ Ex. we conclude 35). genuine that there is no issue of 27, material fact to doc. 87 at regarding the issue of whether race was the clearly exceptional This is case where predominating factor in the creation of Dis- that, redistrieting plan irregular on “so Three, trict and that Plaintiffs’ motion for face, rationally its cannot be understood as summary judgment on that issue must be anything ‘segregate] other than an effort to GRANTED. Shaw, ... voters’ on the basis of race33.” Since Plaintiff's have met their burden of at-, (quoting

509 113 at U.S. S.Ct. 2826 showing that race was the motivating factor Gomillion, 127). 341, at at 364 U.S. drawing Three, scrutiny ap- strict not, plies. satisfy scrutiny, “To strict Even if it were the direct evidence of the state must districting legisla- demonstrate that its DeGrandy panel’s purpose, by as evidenced narrowly tion is compel- tailored to achieve a opinion34, Special report its Master’s and —Miller, ling at-, interest.” 115 recommendation, independent and the ex- S.Ct. at 2490. Defendants have articulated pert’s report35, support would such a conclu- compelling two interests that motivated the DeGrandy explained sion 36. The DeGrandy court redistrieting plan. its “although respecting county traditional First, Defendants contend that the DeGran- approach, boundaries is a desirable dy by court was comply motivated a desire to requirement aesthetic should not undercut with sections 2 and 5 of Voting Rights (cid:127)primary goal creating minority dis- Second, Act. Defendants maintain the De- F.Supp. (emphasis tricts.” 794 at 1085 add- Grandy adopt desired a remedial ed). rejected Court also designed measure past to eradicate effects Wetherell, submitted T.K. who was discrimination in Florida. Speaker Repre- then of the Florida House of 1976, In Attorney 1975 and General sentatives, because it the second- “elevat[ed] designated five Florida counties37 as covered ary compactness, criteria coherent com- 4(b) jurisdictions § Voting under interest, respect munities shared and 1965, Rights amended, Act of 42 U.S.C. political pri- traditional boundaries over the (1975); § Fed.Reg. 197338. 40 41 mary principle ensuring minority Fed.Reg. pt. See C.F.R. voting strength App. Although preclearance diluted.” Id. at 1087 require readily distinguishable drawing 33. The instant case is court's of the District Three Wilson, F.Supp. (see from DeWitt v. at independent expert report, boundaries at- Judge cited 18-34). Defendants Hatchett in his tach. to doc. District Three was judice, dissent. Unlike the case sub the redis- plans, Expert drawn from one of these and the tricting plan in DeWitt did not create bizarre expressly adjustments noted that “several were boundaries, and the Masters "did not draw dis- made district 3 to increase the African-Ameri- race, deliberately solely trict lines based majority registration can VAP 34-35). [Id. levels” arbitrary with distortions of district boundaries.” Id. at 1413. background 36. "Historical of the decision is one DeGrandy, 34. See at 1085-86. evidentiary proof source” for of a constitutional concurring opinion, Judge his Vinson stated that Village Arlington Heights violation. v. Metro clearly very motivating race was factor 252, 267, politan Housing Corp., Dev. creation of District Three: (1977); 50 L.Ed.2d 450 Ammons course, shapes, The reason for these odd Fla., City, v. Dade 783 F.2d Cir. taking arises from several concentrations of denied, 1986), reh’g 788 F.2d 1570. minority population, large which alone are not enough to be the basis of a black or district, majority Hispanic connecting Collier, Hardee, Hillsborough, Hendry, together them order create such a dis- Monroe Counties. so, experts acknowledge doing trict. The advancing political representation while result, 38. As a Florida must obtain either admin- opportunities language for racial and minori- preclearance by Attorney istrative General or ties, redistrieting important sacrifices other approval by the United States District Court for values. "any voting qualifi- the District of Columbia (Vinson, J., specially concurring). Id. at 1091 voting, prerequisite cation or or standard practice, procedure respect voting” Independent Expert's with 35. A review of the discus- proposed redistrieting plans sion of the twelve made after November U.S.C. driving § reveals that race was the force behind the 1973c. 1552 64) (docs. IN PART. are GRANTED redistricting plan 26 & to a apply ment does see, genuine court, e.g., is no McDan have shown “there Plaintiffs adopted by a federal (1) 138, 130, Sanchez, 101 S.Ct. the any material fact” 452 U.S. issue as to

iel v. (1981); v. 2224, 2230, 724 Connor au- L.Ed.2d court lacked the constitutional 68 1760, Johnson, 91 S.Ct. 402 U.S. thority adopt permanent (1971) curiam), (per 1761, (2) L.Ed.2d 268 racially 29 Three is a plan, and District nevertheless three-judge court Plaintiffs are gerrymander. motivated great lengths to ensure went summary judg- partial therefore entitled adopted compli inwas redistricting plan it Fed.R.Civ.P. those issues. See ment on 794 Voting Rights Act. See ance with the (court 56(d) may 56(c); see also Fed.R.Civ.P. the district court As F.Supp. at 1082-88. par- judgment party for on a summary enter Miller, may the Court v. held Johnson issue). is denied to Plaintiffs’ motion ticular compliance with federal antidis- assume granted that the has the extent Court inter compelling state laws is a crimination discovery pursu- for additional parties time However, at 1381-82. est. See 864 56(f), whether Dis- Rule to determine ant to Supreme Court be noted that it must a strict scruti- trict Three can survive under plan in Miller found ny analysis. Rights Voting Act required “was not reading statute.” Mil under a correct Injunction: Preliminary VI. Motion — -, ler, 115 S.Ct. at 2491. at U.S. injunction an ex preliminary A “is point out that the De- also Defendants remedy traordinary not to be and drastic compel motivated Grandy court was ‘clearly the movant carries granted unless eradicating the effects ling state interest ” Zardui-Quinta persuasion.’ burden of in Florida. See 794 past discrimination (11th Richard, 1213, F.2d 1216 na v. 768 1079, 1085-88. past Florida’s his F.Supp. at Cir.1985) (quoting United States Jefferson is well docu tory racial discrimination (11th Cir.1983)), 1511, County, F.2d Smith, See, e.g., Nipper v. 39 F.3d mented. (11th Cir.1985). denied, reh’g 778 F.2d 793 Cir.1994) (en (11th 1494, 1507-08 & nn. 26-28 preliminary prevail in their motion for To — U.S.-, denied, banc), 115 S.Ct. cert. prov burden of injunction, Plaintiffs have the (1995); DeGrandy, 131 L.Ed.2d 723 (1) on ing: likelihood of success a substantial Supreme F.Supp. at 1079. The Court (2) merits; irrepa threat of a substantial significant state expressly recognized a has granted; injury injunction if is not rable past eradicating effects of interest (3) injunc injustice if greater will result —Miller, E.g., racial discrimination. by granting tion is denied than harm caused Shaw, 2490; at-, injunction injunction; would -, pur at 2831. For remedial Tally-Ho, public interest. not disserve necessary for the state to poses, Dist., College Community Inc. v. Coast past ongoing effects of discrim show that the (11th Cir.1989). Failure F.2d districting. race-conscious ination warrant of these ele Plaintiffs to demonstrate one Blumstein, Gerryman “Racial F. See James deny requires Plaintiffs’ ments this Court v. Reno in dering Dilution: Shaw and Vote injunction. preliminary motion for a Rutgers Cafe Context,” L.J. Doctrinal County, 989 F.2d Inc. v. St. Johns IV(c) (1995). part Cir.1993). However, in- to better assist the order determining three-judge panel stant Although has found that the Court scrutiny, strict whether District Three meets Congressional was the Third States and the Defendant-Intervenor United parties gerrymandering, the product of racial requested limit- party other defendants granted to conduct addition have been leave discovery issue. As discussed ed on this dispositive discovery on the issue al limited discovery above, finds limited the Court fails under a whether the Third District appropriate. that issue to be result, scrutiny analysis. As a strict that Plain reasons, to find at this time declines Accordingly, foregoing for all proven a likelihood summary judgment tiffs have substantial Plaintiffs’ motions for Jr., Jackson, Hays, Carolyn The Court therefore Milton Ron success on the merits. Jan- remaining requirements not reach the Johnson, Lamb, need Mathis, ice Susan M. Pat injunctive Consequently, Plain- relief. Cynthia McKinney, McKinney. and Daniel injunc- preliminary second motion for a tiffs’ (7) Defendant Smith’s alternative motion for 77) (doc. DENIED. tion (doc. 5) summary judgment is DENIED. Accordingly, it is therefore (8) To the extent that Defendant-Intervenor AND ADJUDGED: ORDERED response summary United States’ to the (doe. 52) (1) (doc. 79) judgment may The Brown movants and the motions be construed 73) (doc. reply Plaintiffs have filed briefs pursuant as a motion for a continuance formally moving without for leave to do so 56(f), Rule that motion is GRANTED IN 7.1(C)(2). pursuant to N.D.Fla.Loc.R. To the (30) parties thirty days PART. The may extent those briefs be considered mo- from the date of this order within which to briefs, they tions for leave file such are discovery conduct on matters relevant to a GRANTED. scrutiny analysis strict of District Three. (2) Cummings movants’ motion to inter- (9) To the extent that Defendant-Intervenor (doc. 11) vene is GRANTED IN PART. The response summary United States’ granted motion is to the extent (doc. 79) judgment motions be construed following granted are individuals leave stay proceedings, as a motion for a of these right pursuant intervene defendants that motion is DENIED. 24(a): Bishop Fed.R.Civ.P. Frank Cum- Brown, mings, Mary Lawson the Reverand (10) (doc. 26) Supple- Plaintiffs’ Motion Green, Sr., O’Neal, Samuel L. Leonard (doc. summary judgment mental Motion for Glynell Presley. 64) are IN GRANTED PART. The Court (3) movants’s motion to finds that court lacked the (doc. 20) intervene is GRANTED IN PART. authority adopt permanent constitutional granted to The motion is the extent congressional redistricting plan. The Court Congresswoman permitted Corrine Brown is Congres- further finds Florida’s Third right pursu- to intervene as defendant as of gerryman- sional District constitutes a racial 24(a). ant to Fed.R.CivJP. summary judgment der. The Court denies (4) Movant NAACP’s motion to intervene Congres- on the issue whether the Third (doc. 31) is GRANTED. The NAACP is passes scrutiny analy- sional District strict granted permissively leave to as a intervene sis. 24(b). pursuant defendant to Fed.R.Civ.P. (11) Plaintiffs’ Second Motion for Prelimi- (5) Plaintiffs’ Motion to Strike the Brown (doc. 77) nary Injunction is DENIED. (doc. 75) DE- movants’ Motion to Dismiss NIED. filing dispositive pre- Deadlines for all motions, responsive trial memoranda and a (6) Defendant-Intervenor Corrine Brown’s pretrial stipulation, pretrial and dates for a (doc. 68) Motion to Dismiss IN is GRANTED matter, conference and trial in this will be set granted PART. The motion is to the extent by separate order. following plaintiffs residing outside Congressional the Third District are DIS- AND DONE ORDERED. Bloodworth, MISSED: Thomas S. Charles Bloodworth, III, Henry Boyer, Bill Frances

Brown, Connor, VINSON, J., Farley, Hugh Robert T. Paul concurs. A

APPENDIX

Congressional Third Florida’s

1555 APPENDIX B adopted legislative apportionment plan, THE UNITED STATES DISTRICT IN adopt any congressional failed to redistrict- DISTRICT OF COURT NORTHERN ing plan. DIVI- TALLAHASSEE FLORIDA legislature At the time the Florida ad SION journed adopting congres 1992 without JOHNSON, Blood- E. Thomas S.

Andrew redistrieting plan, challenge sional Bloodworth, III, worth, Henry Charles legislative congressional appor Brown, Boyer, Robert T. Bill Frances already pending tionment was before this Davis, Conner, Harold F. Arthur Wilson May adopted court. On this court Ellison, Erdel, Devoe, George Robert congressional redistrieting plan report on the Hall, Hugh Farley, Paul Milton Sue special and recommendation of master C. Jr., Sr., Hayes, Hays, Hugh Milton Car- Atkins, Clyde Senior United States District Howes, Jr., Jackson, Ron son Thomas Judge, Judge Southern District of Florida. Johnson, H. Carolyn Coranell Janeie adopt Atkins recommended that the court Johnson, Lamb, Lewis, M. Jim Susan by a 308—assembled court- —Plan Mathis, McKinney, Cynthia Jim Pat appointed independent expert, than rather Praeter, Romero, Neill, Tommy Charles any plans of the submitted the various Tornero, White, T. and Dana Vicki parties. Designating Plan 308 as the 1992 Plan, Redistrieting Florida this court ordered Plaintiffs, congressional the State of Florida to conduct v. 1992, thereafter, elections in and in accor plan. v. Wethe dance with that SMITH, Capacity in His Official as Sec- Jim rell) (N.D.Fla.1992). Florida, retary of State of the State Redistrieting 1992 Florida Plan The creat- Thomas, Capacity in as Pat His Official congressional in ed two districts which a Senate; the Florida President of majority voting age population was Johnson, Bolley Capacity in His Official (District Seventeen, black located within Rep- Speaker as of the Florida House County, in Dade and District Three located resentatives, Florida), north and central and created two Defendants. majority a districts which (Dis- voting age population Hispanic was CASE NO. 94-40025-WS Twenty-One, Eighteen and both tricts HATCHETT, Judge, Before Circuit “mi- County). plan Dade also created a VINSON, Judges. STAFFORD and District nority influence district” southeast Florida voting age population of with a black 45.7% ORDER Florida). (District Twenty-Three in South Currently pending is the motion of defen- adopted by The 1992 this court created Smith, Secretary dant as of State of Jim districts, notably odd-shaped some Florida, complaint State of to dismiss way: Three which has been described upon a claim which relief can failure to state shaped gnawed The 3rd District is like a (Doe. 5). granted. wishbone, narrowly twisting about through portions of 14 counties— miles

I. BACKGROUND yards it than 50 parts some of no wider length city block. census, After the 1990 decennial the state thinly juts begins near to four additional It Orlando of Florida became entitled edge out to the of the Atlantic Ocean representatives in the United States House places, leaving' a trail that looks like an Representatives. legislature Florida zigzags ink elongated Rorschach blot as required reapportion and redistrict is way up Then it legislative congressional dis- all the to Jacksonville. Florida’s part toward the western meanders down tricts after each decennial census. state, ultimately following path that resembles although legislature the Florida Thus, bouncing up representation trick- on a statewide basis. spilled paint, before County, Levy which touches is no cause of action for vote dilution ling into there Voting Rights Act or the Gulf of Mexico. under either the based on the mere fact that a Constitution (Jan. Times-Union The Florida voting district was created with A-12). being is It District Three which p. However, minority v. racial voters. Shaw in this case as a challenged by Reno, Supreme clarified that Court gerrymander. racial districting principles” “sound must be em Redistricting Plan After the 1992 decisions, including ployed all Court, Supreme adopted by this Voting attempting comply with the those v. States decided Shaw Court of the United recognized Rights Act. It the UJO Reno, S.Ct. preclude was not meant to voters of decision (1993), involving challenge L.Ed.2d 511 raising “analytically dis race from majority-black congressional districts two reapportionment plan tinct claim that a ra North after the 1990 census created tionally anything cannot be understood as ir- legislature, both of which were Carolina segregate than an effort to citizens into other regularly-shaped. separate voting race districts on the basis of Reno, Supreme held In Shaw v. justification.” without sufficient Shaw by alleging redistricting plan that a Reno, at-, 2830, 125 its face that it can be under “so irrational on at 532. L.Ed.2d only attempt segregate voters stood voting separate into districts because of their allege Plaintiffs in this case neither that justification” ... sufficient [without] race Voting Rights District Three violates the plaintiffs a cause of action under had stated Act, represents nor that it an unconstitution- Equal the Protection Clause of the Four Instead, voting strength. al dilution of white at-, 509 113 teenth Amendment. U.S. Three, plaintiffs allege the that District as 2832, 125 at S.Ct. at L.Ed.2d 536. The Court order, established this court’s 1992 uncon- classifying emphasized that individuals on stitutionally segregates voters on the basis of odious the basis of race is and “even Equal race in violation of the Protection purposes, us into [it] remedial balkanize Simply put, plaintiffs’ claim in Clause. this at-, competing racial factions.” 509 U.S. recognized as that in case the same Shaw 2832, 125 at L.Ed.2d at Racial v. Reno. said, gerrymandering, the Court “threatens carry goal politi from to us further the II. ANALYSIS system longer cal in which race no matters.” -, 2832, at 125 509 U.S. S.Ct. A. Motion To Dismiss. plaintiffs L.Ed.2d at 535. Because the ade alleged gerrymander quately a case of racial A motion to dismiss for failure state remand, that, ing, the ordered if complaint granted claim cannot be unless the allegation gerrymandering of racial re facts, which, proved, if alleges no set of uneontradicted, of North mained State See, plaintiff e.g., would entitle the to relief. Carolina would have to demonstrate that its Rhodes, 232, 236, Scheuer v. 416 U.S. “narrowly was tailored to further a com 90, (1974); 40 L.Ed.2d S.Ct. pelling governmental interest.” 509 U.S. (11th Cleland, 1399, Duke v. 5 F.3d -, 2832, 113 S.Ct. at 125 L.Ed.2d at 536. Cir.1993). dismiss, On a motion to the court accept alleged must all facts as true and in Both the and the dissent Shaw find all inferences from those facts in the agreed Organi- v. Reno United Jewish See, plaintiff. light most favorable to the Williamsburgh, Carey, zations Inc. v. (1977) Beto, e.g., v. 51 L.Ed.2d 229 Cruz (1972); (“UJO”), prohibited 31 L.Ed.2d 263 Jones Resolution white voters from Corp., mounting challenges majori- Trust 7 F.3d Cir. vote dilution 1993). ty-minority they if proportional districts have Estoppel. issue in this case is whether

B. Collateral District Three is gerrymander an unconstitutional racial under in Defendant asserts his motion to Smith the rationale of Shaw v. Reno. That issue collaterally plaintiffs that the are es- dismiss raised, actually adjudi- not litigated, was bringing they topped from this suit because therefore, DeGrandy, cated in it could in, prosecuted could have intervened necessary not have a critical and part been in, DeGrandy their claims the earlier case of judgment in that action. But if even we that, plain- v. Wetherell. Smith notes while (for motion) purposes assume of this in tiffs here did not seek intervene Voting Rights inherent tension between the action, in De- earlier leave to intervene partisan Act and the established standards of Grandy litigation freely given was to those gerrymandering1 justiciable, was then for it. who asked gerrymandering implicit that racial was in Circuit, prerequisites In the action, Eleventh plaintiffs here did estoppel of the doctrine of collateral have opportunity litigate not have a full and fair created, course, it. been described as follows: District Three was part plan adopted remedy of the in as the estoppel preclusion; is issue it Collateral litigation. Defendant Smith preclusive judg- refers to the effect of a suggest seems to should foreclosing relitigation ment of a anticipated have that District Three would be particular subsequent proceed- in a issue manner, they created and that must raised, ing, litigated, if that issue was challenge intervened then order to its lawsuit, adjudicated prior if constitutionality it was even con- —before adjudication necessary of the issue was Further, plain- ceived. the claim which the prior the outcome lawsuit. asserting tiffs are now under v. Reno Shaw judicata, Like the doctrine of res recognized had not been at the time of the estoppel doctrine collateral also has cer- DeGrandy litigation analytically as an dis- (1) prerequisites application: tain to its Thus, tinct claim. the issue at stake here is issue at stake must be identical to the one DeGrandy; not identical to one it involved prior litigation, involved in the the issue actually litigated DeGrandy; actually litigated in must have been necessary part was not a critical and suit, (3) prior the determination of the DeGrandy judgment; plaintiffs and the here prior litigation in issue must have been opportunity did not have a full and fair to necessary part judg- a critical and of the litigate DeGrandy. the issue in (4) action, party ment in that We conclude that are not against whom the earlier decision is assert- collaterally estopped challenging from now opportuni- fair ed must have had a full and District Three as an unconstitutional racial ty litigate pro- to the issue the earlier gerrymander v. under Shaw Reno. ceeding. judicata While res forecloses all might litigated in claims which have been Judicially Redistricting Plans. C. Drawn lawsuit, prior estoppel collateral as- attempts distinguish Defendant Smith signs preclusive only effect to those is- this case from Shaw v. Reno because the necessarily actually sues decided in congressional challenged in district Shaw prior lawsuit. part legislatively redistricting of a drawn S.E.L. Maduro v. Antonio De Gastane M/V plan, congressional district chal- whereas (11th Cir.1987) (cita ta, 1477, 833 F.2d lenged part judicially of a this lawsuit is omitted). tions Hatchett, plan. Judge drawn appear prereq- dissent, that, It does not that these four of Flori- adds because the State develop- application responsibility uisites to the of the doctrine of for the da “bears no implementation estoppel are satisfied here. The ment and of the 1992 redis- collateral See, Bryant, Giddings Kaplan, Reapportionment, & Partisan Ger 19 Fla.St.U.L.Rev. rymandering: A New Concern Florida’s 1992 (2) (1) purpose of conspiracy; for the pleaded not plaintiffs have tricting plan,” the directly indirectly, any depriving, or either support this court’s state action sufficient persons equal of person or class Amend- the Fourteenth jurisdiction under laws, equal privi- protection or of of ment. laws; leges and immunities under relies on Swann v. Char- Defendant Smith (8) conspiracy; in furtherance of the an act lotte-Mecklenburg [402 Board Education (4) injured in whereby person is either 1267, ] 28 L.Ed.2d 554 S.Ct. deprived any person property or his proposition that fed- progeny for and its privilege of the United right or of a citizen powers to judges broad remedial eral States. unconstitutional racial remedy state-imposed Birmingham, Operation v. Rescue Lucero deseg- was a school discrimination. Swann Cir.1992) (quoting 954 F.2d case, approved the regation and the court Carpenters & Joiners United Brotherhood of noncontiguous “pairing grouping of America, Scott, Local 610 part of the school district’s school zones” as a 828-29, 103 77 L.Ed.2d 1049 really desegregation efforts. Swann is not (1983)). plaintiffs have failed to Because the case, districts and point in this for election conspiracy, defendant Smith’s motion plead a clearly voting rights involved. were granted to the extent he to dismiss will be Moreover, certainly did not hold that Swann seeks dismissal of claim under Section power impose judges have the federal courts unconstitutional remedies. Neither However, jurisdiction plaintiffs also invoke exempt requirements from the nor states are Code, under Title United States Section hearing the constitution. At the on the provides the federal district which dismiss, pro- the defendants and motion jurisdiction original with over actions courts this court posed intervenors stressed deprivation, color of to “redress the under then-existing held law, statute, ordinance, regulation, any State districts were unconsti- usage, any right, privilege or custom or tutional, so the new was within immunity secured the Constitution of the true, powers. court’s remedial While is 1343(a)(3). § United States.” U.S.C. constitutionality of the 1992 irrelevant This sufficient. impose A an uncon- plan. court is not free to also find no merit the contention We redistricting plan merely stitutional because It is that there is no state action involved. replacing it is was also unconstitu- the one state, undisputed that and the state racially gerry- tional. If District Three is alone, actually Plain- conducts the elections. mandered violation of the Fourteenth Smith, allege tiffs that defendant as Secre- Amendment, subject being then it is chal- State, tary charged administering with unconstitutional, lenged regardless of as Congress in to the United States elections government which branch of authored the They allege the State of Florida. that defen- up, plan or whether the it which set Johnson, Bolley L. dants Pat Thomas and replaced was also unconstitutional. Nor is Speaker of the Florida Senate and President involved, question retroactivity of there Representatives, re- of the Florida House plaintiffs’ because the claimed violation is spectively, charged responsibility are with ongoing. current and redistricting for districts. defendants, on These behalf State D. Nature the Claim. Florida, provide if would have to relief relief is merited. strongest argument Defendant Smith’s complaint dismissal is the assertion that the sum, plaintiffs alleged In have plaintiffs should be dismissed because the currently existing congres- of Florida’s State Code, invoke Title United States Section right Three violates their sional District jurisdiction. 1985 as a basis for The ele- equal protection the Fourteenth under They estopped 1985 from ments of a cause of action under Section Amendment. are not doing They stated a claim that is so. are: Education, Charlotte-Mecklenburg Board precedent Supreme Court cognizable under 1, 27, 91 402 U.S. S.Ct. jurisdiction has this court which and over (1971), Supreme Court en- L.Ed.2d 554 1343(a)(3). under Section “frank —and some- a district court’s dorsed Accordingly, it is ORDERED: gerrymandering of school dis- times drastic — motion to dismiss zones,” Defendant Smith’s tricts and which resulted attendance a claim is DENIED. compact state nor con- failure to in “zones are neither [that] tiguous- an interim corrective mea- As day of this 31st AND ORDERED DONE sure, beyond be said to be this cannot August, 1994. powers of a court.” 402 broad remedial Roger Vinson /s/ added). (emphasis at 1282 ROGER VINSON Thus, Supreme has held that fed- Court Judge United States District fashioning wide latitude eral courts have imposed response to state consti- remedies denying major- concurs Judge Consequently, STAFFORD tutional violations. concluding that this court has ity errs in motion to dismiss. plaintiffs have jurisdiction, and that the stat- dissenting. HATCHETT, J[udge], [Circuit] granted. can be upon a claim which relief ed correctly concludes Moreover, collaterally are es- provide this court does not § 1985 U.S.C. pres- topped bringing from this lawsuit. The incorrectly concludes jurisdiction, but following four factors invokes the ence of the sufficiently alleges equal complaint estoppel: of collateral preclusive effect claim, jurisdic affording this court protection (1) The at stake must be identical issue §§ 1331 and pursuant U.S.C. tion prior litigation, one involved 1343(a)(3). grounds this majority also (2) actually liti- the issue must have been (3) Amend jurisdiction suit, in the Fourteenth prior gated court’s the determina- Reno, prior litigation v. tion of the issue must and Shaw ment (1993).* necessary part 2816, 125 have been critical L.Ed.2d 511 action, judgment of that majority’s conclusion disagree I with the against the earlier decision party whom “state pled sufficient plaintiffs have fair have had a full and asserted must jurisdiction or support this court’s action” to litigate in the ear- the issue opportunity upon relief can claim which to state a proceeding. lier man Fourteenth Amendment granted. The v. Antonio De Gastane Maduro S.E.L. M/V “deny any person shall that no state dates (11th Cir.1987); ta, I.A. Dur 833 F.2d 1477 jurisdiction equal protection within its Bank, bin, National Inc. v. Jefferson XIV, § 2. amend. Const. the laws.” U.S. (11th Cir.1986); In see also F.2d Reno, Supreme Accordingly, in Shaw Laurent, F.2d 675-76 Re: St. Fourteenth Amendment recognized a Cir.1993). legislatively drawn redistrict challenge to a prerequisites for all four This case satisfies ing plan. First, presents this case estoppel. collateral ease, bears no the state of Florida in the De- issues involved of the same one imple- development responsibility for Grandy litigation: constitutionality plan; of the 1992 mentation See De congressional districts. Florida’s rather, developed Wetherell, the 1992 this court Grandy v. Second, constitutionality congressional (N.D.Fla.1992). dis- oddly-shaped third the and its was a criti prior congressional district unconstitu- the third replace to the state’s trict in judgment necessary part of the v. cal and In Swann congressional districts. tional * Su- Supreme at the time the heavily before the interesting majority the relies It is that in Reno, its decision Shaw preme Court announced the that it dictates and assumes Shaw v. Supreme Court would authority Surely, the citing any Reno. case without result this in DeGrandy with to this court directions applied remanded to be retroactive- holding that the case is Shaw v. Reno relevant. pending had considered Additionally, DeGrandy if it ly. case was the

HATCHETT, Judge, Dissenting; Circuit regarding (1) DeGrandy. shape, Issues the majority Because the has erred in: compactness, length, finding plaintiff and reach of third that the Andrew Johnson has (2) lawsuit; standing denying in this fully litigated. Corrine district were dismiss; Third, holding Brown’s motion to that DeGrandy presented the action DeGrandy injunction court’s violates the plaintiffs opportunity with a full and fair Constitution; (4) granting plaintiffs sum- litigate through the issues intervention. This mary judgment on their claim that the Third court, DeGrandy litigation, in permitted gerrymander, District constitutes a racial I parties several interested in the outcome of dissent. litigation part to intervene or otherwise icipate.** The abstained from Preliminarily, important emphasize pursuing DeGrandy litiga claim in their today majority has not held that the tion. Rather, Third District is unconstitutional. majority has found that the Third Dis- parties requesting The in this case are trict, appearance, due to its rationally cannot this ruling regarding court reconsider its dis- anything be understood as other than an DeGrandy. parties trict 3 in Even the in segregate effort to voters on account of race. DeGrandy are seeking now foreclosed from alternative, held, In the majority has ruling through Shaw v. Reno a motion for solely on the DeGrandy opinion basis of the DeGrandy. parties new trial in in De- permitting and without parties engage Grandy appeal; consequent- did not take an discovery, predominant that race was the ly, DeGrandy’s parties’ rights are settled. motivating factor three-judge federal Yet, according majority, parties court in drawing the Third District. Accord- case, although parties this in DeGrandy, ingly, continue, this lawsuit will and this greater right have a to attack court will the third con- have to determine whether Third narrowly District is gressional tailored to parties district than the achieve De- compelling is, interest. If it the Third Grandy. This lawsuit nothing constitutes pass District will constitutional muster. parties more than origi- who were not in the DeGrandy nal seeking case new trial Standing majority If right, anyone ease. the state of Florida ask this court to Plaintiff Andrew Johnson does not reside any prior rulings reconsider of its in the District, in the Third presented and he has case. accept would specific no showing evidence that he has simply such a lawsuit Supreme because the personally subjected been to a racial classifi Court has ruled in subsequent another case Thus, cation. standing bring he lacks — voting rights on a issue. Fol- lawsuit. Hays, United States v.

lowing majority’s reasoning logical -,-, 2436, 132 to its L.Ed.2d ruling conclusion would ensure I fail majority’s that no would to see how the Qualifications ever reference to rulings be final —not even par- Clause has inquiry. relevance to this appeal. ties failed to reasons, For foregoing I respectfully 2. Motion to dismiss majority’s opinion. dissent from the I would I grant would Corrine Brown’s motion to dismiss this case. dismiss this action for the reasons stated ** DeGrandy plaintiffs, Women; In addition to the Hispanic the court Representative and State granted also intervention and amicus curiae sta- Daniel Webster. Plaintiff Intervenors include: following groups tus to the and individuals. Humphrey, Representative Gwen State Darrell Reaves; Ferrell, Representative acting United States Those Bac- as amici are: Jim Simon cus; Representative State Andy Chairman of the Florida United States Democratic Par- Cause; ty; AFI/CIO; Representative Common Ireland. United State Also Reddick is James; Representative Craig States the a Cuban defendanl/intervenor. Association; American Bar DeGrandy, the Coalition of at 1080. sentativest,] press conference at called a unpub- this court’s dissenting opinion to my willingness move Appen- he indicated a August 1994. See which of order lished opinion. redistricting and at majority’s legislative quickly to the on dix B necessity calling of suggested he the which DeGrandy in- Constitutionality the 3. Legislature of the Florida special a session junction legislative consider fall of 1995 to the in DeGrandy court’s deciding that the that redistricting. In is little doubt There Constitution, majori the the junction violates to the bur- [sic] does not want this Court way to gone of its improperly out ty has legislatively re- process of with the dened presented has not been issue that decide on a second districting the of Florida State that asserts court. this Consequent- during this decade. occasion challenged the have “[pjlaintiffs motion ly, rapid action on the movants’ redis permanent state imposition of a court’s legislative redis- likely would most lead may properly panel and this tricting plan20, legislative being in the trieting resolved In footnote challenge.” such consider judicial forum. rather than a forum majority states: twenty, the 5).2 (doc. language does not even This challenge expressly did not Plaintiffs While plaintiffs “have DeGrandy plan remotely that the the indicate permanence of the (see 2), they have imposition court’s complaint challenged doc. the their for their motions challenge such redistricting plan.” raised permanent state aof (doc. 8; 26 at doc. summary judgment plaintiffs’ majority’s citation 5), as a motion be treated which should (doc. 26) summary judgment also for motion has Court complaint. This their to amend Page eight of support its contention. fails par- allowing discretion substantial reads, part: that motion relevant pleadings, and leave their to amend ties justice freely when given is to “be amend in this case was Legislature The Florida 15(a). Fed.R.Civ.P. requires.” so enacting replacement from prevented only con- complaint not reading of the A [DeGrandy 2 of the by paragraph ] plan that majority’s contention firms that judgment which stated court’s challenge the expressly not plaintiffs “did merely temporary plan not be 308 would DeGrandy plan,” but also permanence of the uti- plan to be be “the instead would but im- plaintiffs did not even that reveals in the 1992 lized Moreover, ma- this issue.1 plicitly raise congressional elec- and in Florida elections motions for plaintiffs’ citations to the jority’s extent, the To this tions thereafter.” support its judgment simply do summary from the limited to have deviated appears challenged contention redistrict- authority to create court-drawn Page five of the DeGrandy injunction. Supreme Court. plans set out ing summary for supplemental motion plaintiffs’ principle of also violated It has (doc. 64) part: states in judgment prevented and has powers separation par- hearing July At the fulfilling Legislature from its the Florida Judgment, Summary Motion ties’ III, 3 of Section obligations under Article Legis- the Florida was advised Court to redistrict the Florida Constitution to redistrict opportunity desired the lature Any al- census. after the decennial State should it be determined the State cure adopted by the court should ternative Districts Congressional Florida’s or all of Judgment initial defect gerrymanders. racial unconstitutional were any court-ordered making Supreme ruling response to legis- pending temporary plan a measure Wallace, Johnson, Peter in Miller v. Repre- lative action. House speaker of the Florida supplemental plaintiffs' page summary copy five A complaint forth plaintiffs’ is set copy A provided as judgment motion Appendix opinion. Appendix A to this opinion. B to (doe. 8) added).3 (emphasis grieved 26 at parties As the as a result of that racial shows, emphasized language gerrymandering? this motion plaintiffs only the if request that this court If the court particular wants to take that relief, part issues a as plan its action, all, course of first of it would be temporary that should be in nature. grid legis- almost an invitation to lock the Though plaintiffs’ language the of the rest lature, parties since there are who both certainly opines the court support oppose currently existing the exceeded its authority rendering its in- plan. junction, I majority do not see how the can Secondly, ignore it would fact that the fairly language transform that into a chal- plan, exists, currently as it is unconsti- lenge injunction. to that give tutional and people solace to would who would that it can assuming Even believe continue to one could read the hold according elections plaintiffs’ pleadings to an somehow unconstitu- asserting redistricting plan, tional challenge, this events at overlook the this court’s October rights violations of hearing plaintiffs of the majority’s render the posi- particular this wholly tion case. Amazingly, unsustainable. majority’s plaintiffs’ creation of challenge JUDGE I HATCHETT: to make want DeGrandy injunction persists despite that, I you sure understand too. You plaintiffs’ express they admission that urging are not this Court its amend not pursuing challenge. are such At the injunction in case? hearing, October parties which time the MR. SULLIVAN: That’s correct. orally argued plaintiffs’ motions for sum- JUDGE right. HATCHETT: All

mary judgment, following exchange tran- (doc. 116-17). 90 at majority’s holding spired plaintiffs’ between this court and plaintiffs that the have raised a challenge to counsel: DeGrandy injunction, light of plain- JUDGE HATCHETT: Let me make express tiffs’ admission to contrary, your sure I position. understand As I simply incomprehensible. point, you’re understand it at this urging (now Furthermore, assuming hypothetical- that this Court simply read the DeGrandy ly) plaintiffs that the presented somehow this opinion and hold that District 3 is unconsti- challenge, provide legal fails to upon tutional based Shaw and cases that support for its twenty conclusion footnote have come down since this Court ruled in plaintiffs’ alleged challenge “should DeGrandy. be treated as a motion to amend their com- MR. SULLIVAN: That’s correct. plaint.” support conclusion, of this majority states that this court “has substan- your JUDGE posi- HATCHETT: That’s tial allowing parties discretion in to amend tion? pleadings, their and leave to amend is to be MR. SULLIVAN: Yes. There was a ‘freely given justice when requires.’ so Fed. suggestion Department made 15(a).” R.Civ.P. This is a correct statement simply Justice that this modify its law, but one that has no relevance here prior order and that Plan order 308 would plaintiffs because the have not moved only be districting plan amend their pleadings to include this chal- legislature

until the came forward with lenge.4 Rule 15(a) of the Federal Rules plan. another Civil party Procedure addresses a amending particular suggestion That sidesteps pleadings; its speak rule does not to a here, is, basic issue which has this amending party’s district pleadings sua constitutionally been gerryman- 15(a). racial sponte. See Fed.R.Civ.P. Additional- dered, clients, fact, my and are ag- ly, plaintiffs because the never made this copy page eight plaintiffs’ course, A3. expect motion 4. Of one would not summary judgment put Appendix pleadings forth as C to to amend their challenge to include a opinion. they they pursuing. are admitted

1563 injunction DeGrandy should of the propriety intervenors challenge, the defendants DeGrandy party it.5 a to the respond to to addressed when opportunity an had never DeGrandy sum- Therefore, majority’s granting of to the raises issue litigation the that “issue” is fundamen- on this mary judgment court.7

tally unfair. plaintiffs’ “chal- of the As to the resolution support no sum, majority possesses In the only that injunction, I note the lenge” to the plaintiffs have that the for its contention support precedent to its majority cites no DeGrandy injunction.6 Un- challenged the injunction DeGrandy court’s holding that the the is that fortunately, seems clear what separation powers of constitutional violates propri- expound the majority to on so wants principles. and federalism willing to that it is ety injunction of the raise the is- failure to parties’ the overlook ger- Summary on the racial judgment majority’s action. condone the I cannot sue. rymander claim majority’s conten with the disagree I also summary judgment for the granting In a such panel could consider that this tion claim, gerrymander racial plaintiffs on their DeGrandy ended action challenge. Reno, 509 majority that Shaw v. the holds that lawsuit parties to none the when 2816, 630, 511 125 L.Ed.2d 113 S.Ct. 29, 1992 judgment. May that appealed court’s — Johnson, U.S.-, (1993), Miller v. 1994, Judge the 14, the Chief March On (1995), 2475, con- L.Ed.2d 762 115 S.Ct. panel to designated this Circuit Eleventh however, evident, that It is trol this case.8 The issue over this ease. preside abandoning asserts, "[p]laintiffs not Indeed, if, injunction, were plaintiffs majority the the as words, why injunction. other on the In challenge, their attack" one wonders this have raised contending plain- that majority has re- to or the is reduced intervenors none of the defendants the what he said at pleadings. not mean sponded their tiffs' counsel did to it in hearing. October my response dissent in foot- majority’s to 6. The twenty opinion not affect this does of its note continuing power to DeGrandy has 7. The court majority writes that the the conclusion. There modify injunction. Mann See supervise and its “consistently the consti- attacked” have (5th Inc., 403, Hortex, Mfg., 439 F.2d Inc. v. sup- DeGrandy injunction. tutionality of the Cir.1971) ("It issuing the well settled that is however, assertion, majority only port of this supervise continuing power to has court that) (selectively language edited provides injunctions with modify in accordance its plaintiffs’ pleading motion for one from —the conditions.”); States v. changed also United see above, that summary judgment. As discussed 114, Co., 106, 286 U.S. &Swift context, fairly be language, when read cannot modify injunc- (power to 76 L.Ed. 999 challenge constituting as characterized subject always to come is to events tion "directed not, majority does because injunction. The need”). shape adaptation events as to cannot, plaintiffs’ language com- from the cite Moreover, DeGrandy action can parties to summary plaint supplemental motion injunction. modify See that court to move only position. The support its judgment in 60(b); Georgia Pow- States v. United Fed.R.Civ.P. provides demon- majority to other evidence Co., Jan. Unit B Cir. 634 F.2d er challenge plaintiffs’ is the existence of strate modify 1981) (the prospectively issuing court can excerpt plaintiffs' counsel’s selectively edited 60(b)(5) pursuant injunction to rule permanent hearing. The at the October made statements majority's longer 'it is no convinced the "court is when language proves the to this reference prospec- judgment equitable should have position. counsel desperate of its Plaintiffs' state ”) (quoting application' Fed.R.Civ.P. tive responding to the Jus- those made comments grounds, 60(b)(5)), and remanded other vacated conten- Department State of Florida's tice 72 L.Ed.2d 456 U.S. redistricting plan DeGrandy consti- tion that parties to None of plan pursuant to Milliken v. a remedial tuted however, modify action, sought in- L.Ed.2d Bradley, junction. reading (1977); most creative even usurping the Chief majority Clearly, was reveal counsel does not those comments specific assign judges to cases. challenge Judge's power to the De- articulating a constitutional (A copy plaintiffs’ coun- Grandy injunction. states, course, majority that (doc. this is the same 8. Of 90 at of the Milliken issue sel’s discussion 46-51) opinion, that it "is twenty-six its opin- footnote in unwilling provided Appendix D to this [the] ... conclusion” though ion.) reach Finally, writes apply to does not Amendment "the Fourteenth expressly that he plaintiffs’ admitted counsel courts.” federal asking amend principles expressed pose, Shaw Miller predominant that race was the factor are confined to the context of a Fourteenth motivating legislature’s decision challenge legislature’s Amendment to a state place significant number of within voters redistrieting introductory scheme. The sen- particular or without a district. To make opinion tence of Justice O’Connor’s in Shaw showing, plaintiff prove must states: “This case involves two of the most legislature subordinated traditional complex and sensitive issues this Court has districting principles, race-neutral includ- years: faced in meaning recent ing but compactness, not limited to conti- vote, ‘right’ ‘propri- constitutional and the guity, respect political for subdivisions or race-based, ety legislation designed state of by communities defined actual in- shared historically of benefit members disadvan- terests, to racial considerations. Where taged Shaw, minority groups.” racial 509 these or other race-neutral considerations -, U.S. at (emphasis 113 S.Ct. at 2819 are the redistrieting legislation, basis for added). Moreover, the Shaw Court framed race, and are not subordinated to a state its holding as follows: can “defeat a claim that a district has been plaintiff [W]e conclude that a challenging a gerrymandered on racial lines.” reapportionment statute Equal under —Miller, at-, U.S. 115 S.Ct. at 2488 may Protection Clause state a claim (citations omitted) added) (emphasis (quoting alleging legislation, though race- Shaw, at-, 2827). 509 U.S. 113 S.Ct. at face, rationally neutral on its cannot be case, contrast, This challenge involves a anything understood as other than an ef- congressional to a district a three-judge fed- separate fort to voters into different dis- eral court in fashioning drew a remedial race, tricts on the basis of and that state-wide redistrieting plan in separation justification. lacks sufficient response Legislature’s to the Florida failure Shaw, at-, 113 at S.Ct. 2828 to do Accordingly, so. prescriptions of added). (emphasis Shaw and Miller do apply here. Kennedy’s opinion Justice in Miller also Supreme The Court’s treatment of DeWitt unequivocally restrains principles ex- Wilson, v. F.Supp. (E.D.Cal.1994), 856 1409 pressed in that case to the context of a in part appeal dismissed in challenge legislature’s to state redistrieting aff'd —part, -, plan: (1995), L.Ed.2d 876 bolsters this courts, conclusion. assessing sufficiency of a fact, In DeWitt constitutes a analogous more challenge districting plan, to a must be (and persuasive) thus more precedent for this complex sensitive to the interplay of forces DeWitt, case than Shaw or does Miller. legislature’s enter a redistrieting cal- three-judge federal upheld court the consti Redistrieting legislatures will, culus. tutionality of the 1992 redistrieting plan example, always almost be of aware racial Supreme California Court enacted in demographies; the face but it does not follow that legislative impasse. of predominates The DeWitt race redistrieting pro- in the noted that the district lines were not “based being cess. distinction between aware race, deliberately solely racial with arbi being considerations and motivat- trary distortions of them district ed be difficult make. This boundaries.” Rather, F.Supp. at evidentiary difficulty, together redistrieting with the plan “looked at ... many sensitive nature of race as one of redistrieting and the considered,” factors to presumption good faith which that must be included enactments, population legislative equality, accorded requires compliance with Vot ing Rights Act, courts to extraordinary respect exercise caution in for communities interest, adjudicating compactness, claims that a geographic integri state has drawn ty, lines contiguity, political district on the basis race. The boundaries. 856 show, F.Supp. burden is Supreme either 1413. The Court sum through marily circumstantial evidence a dis- affirmed DeWitt the day same it is shape trict’s demographics opinion Wilson, sued its more in Miller. v. DeWitt — going direct evidence pur- U.S.-, to legislative 132 L.Ed.2d newspaper editorials effect that suasive of the DeGran- a review Because Next, three-judge court in the Eleventh Circuit. dy opinion shows concurring opinion race, Judge but Vinson’s solely on refers based not redistrict “did Third tra- component DeGrandy, he wrote that where race as considered] ... something I would principles,” appearance of “has ditional summary motions test.” plaintiffs’ from a Rorschach deny the lifted (N.D.Fla. authority Wetherell, of DeWitt. F.Supp. judgment on the 1992) (Vinson, J., concurring). specially course, Vinson, joined DeGran- Judge however, and Miller that Shaw Assuming, spe explained in his opinion and dy court’s ease, do not decisions those apply to this do redistricting plan concurrence cial for the summary judgment compel granting striv what we are accomplishes “is fair and claim gerrymander racial on plaintiffs their Finally, at 1084. F.Supp. ing to do.” 794 con- Miller litigation. stage the at this District’s majority that the Third asserts the as follows: Shaw and modified strued shape the of the than shape is more bizarre bizarreness not because Shape is relevant Miller, Georgia’s Eleventh at issue in district the necessary constitutional element is a absolutely no comparison has This District. proof, requirement a wrong or threshold not Supreme Court did the because circum- relevance may persuasive be because it but Shaw, Georgia’s sake, find, Elev to that pursuant its own that race for evidence stantial face, constituted, on its a racial was districting principles, District enth other controlling Rather, the considered dominant legislature’s gerrymander. the showing lines. that the Gener drawing its district evidence in “additional rationale predomi a Assembly — motivated al at-, 2486. Miller, at 115 S.Ct. U.S. popu nant, assign black overriding desire to the “[i]n state that on to Court went The to District” order to the Eleventh lations in Yick as those pattern as stark of a absence majority a third African-American create 6 S.Ct. 118 U.S. Hopkins, [v.Wo Miller, Georgia. district (1886),] Light [v. or Gomillion 30 L.Ed. — at-, at 115 S.Ct. 5 L.Ed.2d U.S. 81 S.Ct. foot, 364 U.S. (1960)], look ‘... must the Court so District be Third shape of the The race-based decisionmak- other evidence’ rationally be understood it can that bizarre — at-, at Miller, ing.” U.S. segregate voters only effort Metropol Heights v. Arlington (quoting at-, Shaw, of race. basis 252, 266, 97 Corp., 429 U.S. Hous. Dev. itan litigation, stage of the this at 2826. At S.Ct. (1977)). 50 L.Ed.2d did, If I I however, say it is. that I cannot judgment summary granting eonclusory engaging the same be would Shaw, majority pro- pursuant to employs. As the majority reasoning that the majori- analysis. The paragraph of one vides only in “rare” explained, Supreme Court has to look need “one does not ty first states that will a eases “exceptional” Gomillion-like map of the Third any further than rise, without give facial bizarreness district’s was in fact that race the conclusion to reach evidence, gerrymander to a racial further De- motivating of the factor predominant — at-, Miller, finding. eonclusory, “it is I find this Grandy court.” stage of the this at Consequently, reasoning wholly unpersuasive. it is” because sum- deny plaintiffs’ litigation, I would map to one, I, to look further than need that to the extent mary judgment motions conclusion; apparently, so do reach such Shaw, shape that pursuant to they allege, States representatives of United legal more, District, proves without Third majority governments. gerrymander. racial of a existence in its first weakness recognize the must however, parties would, permit I however, statement, provides because next prod- this claim. discovery on (enti- engage in newspaper editorial from a quotation discovery provide would describing the ucts Travesty”) Shape a tled “Odd its support it could use to I evidence District. with the Third appearance of inelegant could parties issue. The of this per- resolution comprehends am sure secure or depose experts minorities.”) affidavits who could language racial or and at 1084 (1) opine (“This questions on such as: whether the court should also consider issues of Third District is more or less bizarre than possible retrogression affecting the five Flor Shaw, the districts at issue North Car- ida counties which come protection under the Districts; olina’s First and Twelfth where Voting Act.”); section 5 of the Rights see the Third District ranks Special (“[A]ll terms of “bizarre- also Report Master’s at 12 congressional districts; ness” with other parties and amici agree curiae section (3) ultimately, must, shape whether minimum, at a be considered craft Third District is so bizarre that it can ration- ing redistricting plan.”) 19-20; and at ally only be understood as a racial gerryman- Independent Expert’s Report at 10-13. The Again, allowing der. parties pursue court also decided to contiguous draw dis discovery plaintiffs’ as to the facial bizarre- tricts. See 794 (“Although ness claim provide would enable this court no requirement federal state congres decision, substantial reasons its and not sional exists, districts contiguous contigu just eonclusory assertions and quotations ity appropriate.”); see Independent also newspaper from editorials. Expert’s Report Moreover, at 14-15. court found that respecting county traditional holds, majority The alternative, also in the boundaries was a approach.” “desirable 794 that DeGrandy opinion, Special Mas- 1085; F.Supp. at see Independent also Ex Report, ter’s Independent Expert’s pert’s Report at 16.11 Report predominat- show that “race was the ing Three,” factor in the creation of District Similarly, the court held that generating and thus the are entitled to sum- compact districts was “desirable.” 794 mary judgment pursuant to Miller.9 A re- F.Supp. at 1084. The court also found the documents, view of however, those does not prescriptions of Thornburg Gingles, 478 support majority’s holding.10 30, 106 (1986), 92 L.Ed.2d 25 alia, which, inter require plaintiffs mounting In drawing congressional Florida’s dis- a 2 challenge section to make a threshold tricts, DeGrandy court considered race showing that their group sufficiently large is among several variables. The recog- court and geographically compact to constitute nized that it had obligation a constitutional majority single-member district, in a “help- population achieve equality among the dis- ful.” F.Supp. 794 at 1083. The court fur- (“To tricts. 794 F.Supp. See at satisfy 1084 ther stated that person-one the one requirement, vote court must draw the districts [t]he consideration of communities of inter- so that their populations equal.”); are see est is also relevant to the determination of Special also Report 8; Master’s at Indepen- compactness. If a district spread is so out Expert’s dent Report at 8-9. The court that no community exists, sense of then also drew the light districts in princi- of the that district is not sufficiently compact. ples of section 2 and section 5 of Voting However, minority members group Rights (“[T]his Act. See F.Supp. 794 at 1083 separate live in who may enclaves still be court must consider in crafting the redistrict- single included in a district where it can be ing plan requirement the section 2 of ensur- they shown that single constitute a com- ing does not dilute votes of munity having similar interests. majority’s 9. analysis The spans on this issue Independent noted, also Expert's Report 11.The how paragraph. one ever, that requirement ”[t]here is no that tradi tional drawing boundaries be followed in con appendices 10. The opin- court's gressional redistricting plans for Florida.” See ion, Special which Report include Master’s Apportionment Law, In re Senate Joint Res. No. Independent Expert’s and the Report, were not (Fla. 1972) (‘‘[Tlhere 263 So.2d 801 published along opinion, with the court’s but are requirement no precinct lines follow district on file with the United States District Court for lines...."), county supplemented by, Northern District of Florida. The (Fla.) (Fla. opinion 1973). court's So.2d and 281 expressly incorporated So.2d 484 Spe- Independent cial Expert's Master’s and Reports. F.Supp. at 1090. of interest. communities comprise omitted); (citation see F.Supp. wrote: court plan, the Ireland rejecting the 16-17. Report at Expert’s Independent also Master Special majority Critically, the Af- African-American found plan’s ... The Dis- the Third residing in extremely Florida ricanr-Americans central district community interest: from constituted and extends shaped, irregularly trict long, districts Florida proposed County in south parties Beach Palm Several Florida, Afri- contained central County which Florida Northeast Volusia popu- [voting-age] Atlantic majority County on the Lucie St. can-American from due to Gulf County showed on the The evidence Pinellas lations. Coast shaped dis- African-American irregularly long, This cohesiveness Coast. may consti- counties seventeen parts of African-Americans population, trict traverses they if even major interest markets. community of media three involves tute Therefore, sprawling municipalities. in this linked in different live communities The district, inter- competing likely to have are an African-American district Plan’s Expert Independent communities constitute do not such as ests a number over spread interest. community of damaging a without counties rejected also course, a number there are Of interest. alia, because, “the inter DeGrandy plan make- in the considered factors non-racial influ- [African-American] sprawling plan’s interest, e.g., similar community of up of a together links in central district ence aspira- status, background economic areas and Orlando Tampa in the populations tions. interests.” competing likely to (citations at 27-28 Report Master’s Special majority addresses F.Supp. at not majority does omitted).12 Incredibly, the it admits factors, except when of these none di- though Miller finding even this address closely followed DeGrandy court “[t]he that recognize to free is State “[a] that rects Rights Act and Voting dictates the racial particular that communities throughout redistricting principles traditional to- directed its action makeup, provided process.” redistricting] th[e inter- relevant of thread common some ward the of find, basis on the sum, I cannot In — at-, at Miller, U.S. ests.” pre- the race that opinion, DeGrandy court contem- Finally, the three-judge motivating the factor dominant competitiveness” party “maintaining plated I also District. Third drawing the in court plan. redistricting adopting its in ma- of issues however, believe, genuine that Ex- Independent 1085; also see These concerning issue. this fact exist terial 17-18, 38-39. Report at pert’s Third (1) the whether include: issues factual dis- short, drawing the In functionally compact; District nu- considered DeGrandy court tricts, the subordinated court the whether districting traditional, non-racial merous districting race-neutral traditional Florida’s equality, including population principles, drawing considerations to radal principles the Vot- 5 of 2 and sections with compliance does Accordingly, Miller District. Third the of con- Act, maintenance and the ing Rights judg- summary granting justify not boundaries, compactness, county tiguity, gerry- racial their ment party interest, political communities litigation. stage of this claim at mander Moreover, ex- court competitiveness. engage to parties permit also I would African-American found pressly majority does The issue. discovery on this constituted District Third in the population issue “[t]he however, believes not, because addition, interest. community of gerry- racially ais Three District whether redistricting proposed rejected two examination on an turns district mandered contain- districts they included plans because creating motivations DeGrandy court’s that did populations ing African-American District. Third now 3” is Expert Plan's “Independent The District, the Third as memorialized in the volves a challenge to a congres- court-drawn independent expert’s report, Special Master’s sional district. The majority gives short Report Recommendation, and the De- (and shrift to this fact precedent), DeWitt Grandy decision Though itself.” majori- which enables it apply the less-deferential ty is correct asserting that this turns issue Miller standard. majority, The however, on the DeGrandy motivations, court’s I fail not permit does parties litigate fully why only understand the three enumerat- the Miller claim—that would par- involve the ed documents can be used to discern those ties questioning responsible governmen- motivations. provides legal no tal actors about their motivations drawing support for conclusion; indeed, the ma- the Third District’s Instead, lines. the ma- jority’s prohibit decision to discovery on the jority restricts its Miller inquiry to three plaintiffs’ gerrymander racial claim contra- documents. I believe the majority does this venes the Supreme Court’s directive because this case involves a challenge to a ... “courts exercise extraordinary caution district, court-drawn and the majority real- in adjudicating claims that a state has drawn izes that allowing parties develop their district lines on the Miller, basis race.” contentions under Miller lead messy — at-, 2488 (emphasis (like results federal judges being deposed added). It is not obvious to why me about what their intentions were in drawing parties precluded should be from engaging in lines) that the majority wants to discovery, which involve, could among other avoid. majority, however, cannot have it options, deposing independent expert, or, ways. both If judicially-drawn districts are matter, members the DeGrandy greater entitled to deference from reviewing court.13 parties When challenge legislative- courts than legislatively-drawn (and districts ly-drawn districts, they are not restricted to I are), they believe the DeWitt standard the four corners legislative histories in applies. not, If applies, Miller par- attempting to legislature’s discern a motives; ties must be afforded the opportunity to liti- rather, they depose legislators aas matter of gate fully the issue of whether race was the practice. Courts permit occur, this to of predominant factor driving the DeGrandy course, governmental because actors do court in drawing the Third District —even if always document their true motives. There- that inquiry leads to consequences major- fore, if Miller applies to court-drawn dis- ity dislikes. tricts, why should this court preclude the parties from looking beyond majority’s the DeGrandy granting of summary judg- judicial pronouncements?14 court’s short, ment on their gerry- racial the majority’s assertion that “[additional pursuant dis- mander claim and, Shaw in the covery would not lead to alternative, evidence that Miller, without first affording the would create a material question of parties fact on the opportunity to engage in discov- this issue” is indefensible.15 ery in this complex important and case, is a grave error.

In closing, I must state I find the majority’s approach troubling. This in- case For the foregoing reasons, I dissent. course, 13. Of granting a discovery request such Grandy itself,” decision I do not believe that the could lead to the panel reconstitution of this plaintiffs have "substantially complied” with lo- because two members of participated this court cal rule by 56.1 solely submitting a photocopy of on the court. the DeGrandy opinion to this court. Local rule provides 56.1 "[a]ny for 14. motion majority's summary decision to discovery foreclose judgment ... accompanied shall be sepa- decide gerrymander racial claim based rate, short solely on the concise DeGrandy opinion statement of the especially is material in- appropriate given as facts moving which the DeGrandy opinion party pre- contends cededShaw and genuine Miller. there no issue to be tried. Failure to submit such a statement grounds constitutes 15. disagree Because I that "most of the undis- denial 56.1(A). motion.” N.D.Fla.Loc.R. puted material facts are contained in De- A

APPENDIX THOMAS, capacity his official IDA; PAT COURT DISTRICT STATES UNITED SEN- THE FLORIDA OF PRESIDENT as FLORIDA OF DISTRICT NORTHERN JOHNSON, his ATE; L. BOLLEY DIVISION TALLAHASSEE THE OF as SPEAKER capacity official REPRESENTA- HOUSE OF FLORIDA Blood- JOHNSON, S. Thomas E. Andrew allege: TIVES, and III, Bloodworth, Henry worth, Charles Brown, T. Robert over Frances Boyer, jurisdiction has Bill 1. This Davis, 1343(1), Wilson Arthur Conner, F. Section Harold to 28 U.S.C. pursuant cause Erdel, Ellison, George action is a civil Devoe, This (2), Robert Hall, Hugh privilege, Milton right, aof Farley, deprivation Sue Paul redress Sr., Car- the Constitution Hays, Jr., immunity Hugh Milton secured Hays, Jackson, Sec- USC Jr., pursuant Howes, Ron States United Thomas son H. Johnson, Coranell Carolyn tion Janice Lewis, Lamb, Jim Johnson, M. Susan elec- Congressional During the McKinney, Daniel Mathis, Cynthia Pat Plaintiff, JOHNSON E. tions, ANDREW Praeter, Neill, Tommy McKinney, Jim Congress in United a candidate was Romero, and Romero, T. Vicki Charles Congressional Third States Wine, Jacksonville, Dana Florida, who resided State registered still and who Florida Plaintiffs, during andAt of Florida. in the State voter Plaintiffs, herein, mentioned all vs. times JOHNSON, S. THOMAS E. ANDREW as Sec- Capacity SMITH, Official in His Jim HENRY BLOODWORTH, CHARLES Florida; Pat the State retary of BOYER, III, BLOODWORTH, BILL Capacity Thomas, His Official BROWN, T. CON- ROBERT FRANCES Senate; and Florida President DAVIS, WIL- ARTHUR NER, F. HAROLD Capac- Johnson, His Official Bolley L. ELLISON, DEVOE, ROBERT SON House Speaker ity as FARLEY, SUE ERDEL, PAUL GEORGE Representatives, JR., HAYS, HALL, MILTON HUGH SR., HAYS, CARSON MILTON HUGH Defendants. JACKSON, JR., HOWES, RON THOMAS JOHNSON, NO.: 94-40025 CORA- CASE JANICE CAROLYN LAMB, JOHNSON, M. SUSAN H. NELL COMPLAINT MATHIS, CYNTHIA LEWIS, PAT JIM JOHNSON, E. Plaintiffs, ANDREW MCKINNEY, JIM MCKINNEY, DANIEL BLOODWORTH, CHARLES S. THOMAS PRAETER, CHARLES NEILL, TOMMY III, BLOODWORTH, BILL BOY- HENRY ROMERO, DANA and ROMERO, T. VICKI BROWN, T. ROBERT ER, FRANCES Duval, of residents are still and were WINE DAVIS, ARTHUR F. CONNER, HAROLD Counties, and Florida Johns Clay, and St. ELLISON, DEVOE, ROBERT WILSON registered voters and citizens are FARLEY, SUE ERDEL, PAUL GEORGE similarly are Florida, of whom all of State JR., HAYS, HALL, MILTON HUGH as: situated SR., HAYS, CARSON MILTON HUGH Con- Third 1992-1994 in the A. Residents JACKSON, JR., HOWES, RON THOMAS deliber- District, have been who gressional JOHNSON, CORA- JANICE CAROLYN voting status minority relegated ately LAMB, JOHNSON, M. SUSAN H. NELL District Congressional Third within MATHIS, CYNTHIA LEWIS, PAT JIM redistricting plan, and/or MCKINNEY, JIM MCKINNEY, DANIEL who Florida State of PRAETER, B. Residents CHARLES NEILL, TOMMY with created which were in districts ROMERO, live DANA ROMERO, T. VICKI dis- into different separate voters SMITH, intent to Defendant, JIM sue WINE race. of the basis tricts FLOR- OF STATE THE OF SECRETARY 3. At during all times ularly mentioned the Fourteenth and Fifteenth Amend- herein, Defendant, SMITH, JIM ments to the Constitution. still is Secretary of State of Florida. As 8. The Third Congressional District is ob- Secretary State, of Mr. SMITH charged jectionable because: with administering elections to the United A. The creation of the District was not Congress States in the State of Florida. At narrowly tailored to further a compelling and during all times herein, mentioned governmental interest. Defendants, PAT THOMAS and BOLLEY B. The shape of the District results in a L. JOHNSON are the President of the Flori- political unit incapable of meaningful repre- da Speaker Senate and of the Florida House sentation. of Representatives respectively and are charged C. by District contains Constitution no coherent with re- com- munities of sponsibility for shared interest and Congression- shows no respect al political districts traditional after each reapportion- decennial boundaries. ment. D. The District together links popula- Orlando, tions in Daytona, Jacksonville, 4. On July 17, about the State of likely to have competing Florida, interests. in accordance opinion with the order of the United States Court, District E. The District lacks real and effective Northern District of Florida in contiguity. the cases of Miguel De Grandy, et Wetherell, al. vs. T.K 9. As a proximate direct and result of the 92-40015-WS; TCA Florida State Confer- creation of the 1992-1994 Congression- Third ence NAACP Chiles, Branches vs. TCA al District in the Florida, State of the Plain- 92-40131-WS; No. and United States of tiffs have deprived been of equal protection America Florida, vs. State TCA-No. 92- under the law. 40220-WS created a Congression- new Third 10. The Plaintiffs have retained the ser- al general District. A layout map of the new vices firm Boyd Sullivan & repre- Congressional Third District is attached sent them in this matter. hereto and incorporated herein as Exhibit WHEREFORE, the Plaintiffs demand in- “A”. junctive and other against relief the Defen- 5. The newly drawn Congressional Third including, dant but not limited to the follow- District was created assembling pockets ing: of African-American voters from fourteen A. entry of an order setting aside counties extending from through Orlando July 1992 order of the United States Jacksonville Ocala. The African-Ameri- Court, Northern District of Florida can population in Northeast Florida is nei- in the Miguel cases of De Grandy, et al. vs. ther sufficiently large nor sufficiently geo- Wetherell, T.K TCA 92-40015-WS; Florida graphically compact to single constitute a State NAACP Branches vs. Conference of Congressional District without resorting to Chiles, TCA 92-40131-WS; No. and United racial gerrymandering. Because man- States America Florida, vs. State TCA- ner in which the created, District was No. 92-40220-WS for the set reasons out in Third Congressional District is not reason- the Supreme ruling Court’s in Shaw vs. ably compact. Reno, 2816, 125 (1993) L.Ed.2d 6. The new Third Congressional District and enjoining SMITH, JIM SECRETARY cannot rationally be understood as anything OF THE STATE OF FLORIDA from hold other than an separate effort to voters into ing any congressional future elections based different districts on the basis of race. upon the 1992 redistricting plan set forth therein.

7. The creation of the new Third Con- gressional District deprives each of the Plain- B. entry The of an order directing that tiffs right, of a privilege or immunity secured the term of office of each member of the by the United States Constitution and partic- United States Representatives House of from suggested redistricting he and which tive un- created district a represents who Florida of special session calling a necessity of each the redistricting plan, der the 1995 to the fall Legislature in expire Florida the plan, shall such under created district is redistricting. There legislative January, consider day of 3rd on the at noon to want does this Court shall districts little doubt such office and terms such legislatively process of next the into the with over the burdened carried or extended not be a second Florida on redistricting the State any whatsoever. manner in Congress Consequently, during this decade. occasion PAT compelling an order entry of C. would movants’ motion on rapid action L. JOHNSON BOLLEY THOMAS legislative likely to lead most to Legislature Florida representatives rather legislative forum being resolved accordance Florida State redistriet forum. judicial than by the Su- established principles with the ; Court. preme awarding the order entry of an D. The C APPENDIX pre- plus attorneys fees reasonable Plaintiffs for motion plaintiffs’ [Page costs. 8 of interest judgment summary judgment] submitted, Respectfully & BOYD SULLIVAN impend- After the SULLIVAN, P.A. JR. ROD G.J. legislature completed, the are ing elections Rod Sullivan G.J. /s/ its deliberations to recommence supposed Sullivan, Jr. Rod G.J. legislative up with a come attempt to ID No. Florida Bar redistricting plan. Box 4519 Post Office case was Jacksonville, Legislature FL Florida plan enacting replacement from 356-2050 prevented judgment Plaintiffs court’s Attorney 2 of the paragraph not be would plan 308 which stated would plan but instead temporary merely B APPENDIX Florida in the 1992 utilized be “the 31, 1994 August [Page 5 of con- in Florida elections congressional order] unpublished this ex- To thereafter.” elections gressional gov- compelling satisfy a narrowly tailored from have deviated tent, appears similarly prohibited interest, ernmental court-drawn create authority to the limited any- If District Court. States a United Supreme by the set out redistricting plans to be need Courts thing, Federal principle violated It has also Court. prohibi- the Constitutional cognizant of more prevented and has powers separation than State classifications against racial tions fulfilling its ob- from Legislature Florida legislatures. III, Section Article under ligations hearing the State July to redistrict At the Florida Constitution Judgment, Summary Any alternative census. parties’ Motion decennial after Legisla- that initial cure was advised court should by the adopted Court any redistrict opportunity making court- Judgment ture desired defect all determined mea- temporary it be redistricting plan should State ordered un- were Districts Congressional of Florida’s action. legislative pending sure re- gerrymanders. racial constitutional aof Failing the enactment Supreme ruling of sponse to developed a has Congress plan, districting Wallace, speak- Johnson, Peter Miller proce- That holding elections. for procedure Representatives of House the Florida er of 2a(c)(2). Section in out U.S.C. is set dure he indicat- at which conference press called requires It legisla- quickly willingness to move a ed D APPENDIX Now, the Court does make a finding on [Pages 46-51 of by plaintiffs’ discussion Page 1079 of fourteen examples individual counsel of Milliken issue] official racial discrimination in the state Florida that it asserts have influenced the the in evidence this clearly points case Florida’s process. However, electoral those that fact District gerrymander 3 is a racial generalized suggestions examples or of offi- either under test or Shaw the Miller test. cial racial discrimination are all remote Having established that it is a gerry- racial At time. the time that the Court issued its

mander, it is presumptively opinion, unconstitutional, there were no more poll taxes; called inquiry and our was probably prohibition should there no more against able to inter- marriage particular races; end at point. between there reason for was no more segregation official buses; that is that on public this Court was never asked few, were if there any, remaining develop vestiges remedy other than to remedy pop- school desegregation; there were no more ulation inequalities and the legislature’s fail- primaries; white there were no more at- plan. ure to draw the large voting schemes for seats. However, the United States and the Flori- Consequently, all of while these examples Secretary da argued State have in their time, exist at did one they do not exist and was, briefs effect, this a remedial proved were not in the De Grandy litigation plan. And while it have been remedial to have existed at the time that this Court regards with population inequalities and was drafting plan. its Consequently, legislature’s plan, failure to draw it was plan, though it is remedial as to certain not, opinion, in our remedial toas the ques- violations, constitutional is not remedial toas tion of racial fairness. particular of these examples of racial discrimination. The first element of the Milliken test is: Secondly, plan does not pass the sec- Did directly address a constitutional ond test Milliken plans, to remedial which violation? There specific no constitu- is: Does remedy restore the victims of asserted, tional violation all, first alleged discrimination to position the same they complaints filed in this matter or assert- would have been in the absence of discrim- Court, ed other than the ones we’ve ination? already population inequality and discussed— particular case, there are fourteen legislature’s failure to plan. draw a counties that are within the Congres- Third Population District; inequality however, sional very could easily none of those fourteen have been counties resolved and is within the every pre-clearance resolved ten years requirements of the without resorting Department gerryman- racial Justice. Those So, dering. Collier, counties are consequently, Har- gerry- racial dee, Hendry, Hillsborough Monroe, mandering remedy not necessary to ad- none of which are included in the dress Third question population inequality. Congressional District. Similarly, legislature redraws the dis- every years tricts ten Furthermore, and does so without Congressional the Third racial gerrymandering. many Consequently, racial African-American candidates gerrymandering public was not office had necessary won in majority to ad- white dress districts. proposed We have alleged supervisor contacted the constitu- of elections in tional each of violation of legislature’s fourteen counties failure to and have found plan. draw a between and 30 examples of where African-American candidates ran So, consequently, since the gerry- racial races, school board county and circuit mandering did not directly address a consti- judgeships, city councils county commis- tutional relevant, violation that’s the racial sions each of they which were elected in a gerrymander itself could not satisfy the crite- majority white district ria for a plan. remedial votes. and, back, as go opportunity to the permitted Cor- County, where in Duval Specifically, to fact, ordered have been matter of should a number of a where resides Brown rine redraw back, legislatively attempt to reside, goM. Earl case this the the districts. at-large an elected had been Johnson in Duval opponents against white seat council ask- we are And, that’s what consequently, More two occasions. County on at least here, legislature, the is that happen ing to sheriff was elected recently, Glover Sheriff stipula- a in this case already filed has which African-American —in County is Duval decree, —he has asked to abide tion to abate County. Gwenn Duval at-large election an to redistrict permission for this Court an African-American Thompson, Chandler districts, Florida, state at- city council in a city for council candidate principles; constitutional with in accordance race, similarly won. large therefore, granted they, should and that responsibility it is their right because that this case is no—in So, consequently, there do so. to Constitution under a to address designed not remedy is Constitution, that under And think I violation. specific constitutional all to exercise responsibility is this Court’s Thirdly— legislative allowing the discretion of its Sullivan, you Mr. HATCHETT: JUDGE whenever go redistricting process to forward argument. this your motions combined possible. six about you to conclude to ask We’ll have Honor, in summarize, this So, just Your to minutes. gerryman- a racial case, is Third District Honor, I’ll even Your MR. SULLIVAN: This der, unconstitutional. presumptively that, I We have think. than cut it shorter though the defendants plan, particular even points. majority of the covered was, in plan, it is a remedial that argued viola- population fact, only remedial the third element say that Let me plan; a to draw legislature’s failure tions and remedy ade- Does the is this: test Milliken remedial, it would if it were and even the interest into take account quately scrutiny. pass strict government? managing state legislature state therefore, the Court would, ask ver- We Now, a called McDaniel case there pro- this case—refer this question refer Sanchez, with dealt which sus legislature. state cess step in and create back court can when has legislature plan where districting oth- there Are HATCHETT: JUDGE impor- act, particularly think and I faded to today? argue you er motions ease is Footnote particular tant mo- Judge, there SULLIVAN: MR. court must decision, says that the which which, quite injunction, preliminary tion for de- every opportunity legislature give the argument a lot of the frankly, repeats acceptable plan. vise judg- summary motion for in the was made case in that Now, situation the factual ment. plan before developing a court was where there is is that first element forward, think the we but had come elections prevail. will that we likelihood substantial applicable where equally principle is elements, later I can address three The other the immi- plan because develops a any of the duplicating without think that We coming election. nence of satisfy or to any remedy narrowly tailor test, this of the Milliken third element congres- its have made have to would 308, an interim Plan districting plan, sional that, as soon plan; and temporary or a complet- were congressional elections as the have been legislature should

ined

Case Details

Case Name: Johnson v. Mortham

Court Name: District Court, N.D. Florida

Date Published: Nov 20, 1995

Citation: 915 F. Supp. 1529

Docket Number: TCA 94-40025-MMP

Court Abbreviation: N.D. Fla.