By Jim Saunders ©2024 The News Service of Florida
TALLAHASSEE — In a dispute rooted in a lawsuit about a congressional redistricting plan, an appeals court Tuesday grappled with an attempt by the Florida House and Senate to shield lawmakers from testifying in lawsuits.
Attorneys for current and former House and Senate members ultimately want the issue to get to the Florida Supreme Court and to undo a 2013 Supreme Court decision that allowed legislative testimony in certain circumstances.
The dispute started when current and former lawmakers and staff members faced the possibility of testifying in a lawsuit challenging the 2022 redistricting plan. Their attorneys contended that a concept known as “legislative privilege” shielded them.
But as a three-judge panel of the 1st District Court of Appeal considered the issue Tuesday, it questioned whether the dispute is moot. Voting rights groups that challenged the redistricting plan long ago dropped the idea of taking depositions of the current and former lawmakers, and the underlying challenge to the redistricting plan has moved on to the Supreme Court.
“Big important issues, got it,” Judge Susan Kelsey said as she questioned Andy Bardos, an attorney for House members. “But not this case, maybe. How do you overcome the mootness problem?”
Bardos, however, argued that the dispute is not moot because it involves an “issue of great public importance” that is likely to recur in the future. He said that would allow the appeals court to decide the case even though the redistricting-testimony issue is moot.
“It’s likely to recur. We’ve seen time and time again, both in state and federal court, parties attempting to depose legislators, issuing deposition subpoenas, document subpoenas,” Bardos said.
A coalition of groups, such as the League of Women Voters of Florida and Equal Ground Education Fund, and individual plaintiffs filed a lawsuit in 2022 challenging the constitutionality of the congressional redistricting plan, which Gov. Ron DeSantis pushed through the Legislature. They contended the plan violated a 2010 constitutional amendment, known as the Fair Districts Amendment, that set redistricting standards, including a standard that said plans could not “diminish” the ability of minorities to “elect representatives of their choice.”
The 1st District Court of Appeal in December 2023 upheld the constitutionality of the redistricting plan, and the Supreme Court heard arguments last week in an appeal by the voting-rights groups.
As part of the underlying lawsuit, the voting-rights groups in 2022 sought depositions from six current and former lawmakers and five current and former staff members. The Legislature fought the depositions, but Circuit Judge J. Lee Marsh in October 2022 said he would allow the lawmakers and staff members to be questioned, with some limits.
Marsh cited the 2013 Supreme Court precedent.
“The appropriate line in this case is where the doors to the House and Senate meet the outside world,” Marsh wrote. “Accordingly, each legislator and legislative staff member may be questioned regarding any matter already part of the public record and information received from anyone not elected to the Legislature, their direct staff members or the staff of the legislative bodies themselves. They may not be questioned as to information internal to each legislative body that is not already public record (e.g., their thoughts or opinions or those of other legislators).”
The appeals-court panel Tuesday took up a House and Senate appeal of that decision. House and Senate attorneys are trying to get a ruling by the appeals court on the legislative privilege issue that can then be taken to the Supreme Court to try to reverse the 2013 decision.
Bardos said lawmakers need to be able to “act and to vote and to speak freely within the legislative process” without apprehension about being faced with depositions.
Judge Brad Thomas raised questions about the “value” of the appeals court issuing an opinion that the Supreme Court decision was wrong, after no depositions were taken in the redistricting case.
“Do you think that is of value to the Supreme Court?” Thomas asked Bardos.
“I don’t think it’s an academic exercise,” Bardos said. “I think the Florida Supreme Court would recognize that this (2013) decision is having an impact currently on the legislative process.”
But Jyoti Jasrasaria, an attorney for the voting-rights groups, said “there’s no disagreement about the state of the law” under the Supreme Court precedent.
“Just because appellants (the current and former lawmakers) don’t like that guidance doesn’t mean that the courts all of a sudden will need new guidance,” she said.
