Martin Dyckman: Courts failed organizations that won redistricting fight

If only the Florida Constitution included a provision like this:

(1) Members of the Legislature who vote for measures subsequently held unconstitutional shall be liable jointly and severally for all attorney fees and costs as established by the court.

(2) Failure to pay such liabilities within 60 days of final judgment shall constitute disqualification for re-election or election to another office.

That is, to be sure, as far-fetched a dream as hitting the Powerball, if not more so. But it’s just as sweet.

It’s prompted by a pair of recent court decisions that expose, as courts too often do, the distinction between law and justice.

Law is supposed to serve justice. When the law becomes an end in itself, it can thwart justice.

That’s what has happened in the epilogue to the stunning victory over gerrymandering by a coalition of plaintiffs led by the League of Women Voters and Common Cause.

After four years of litigation, cynically resisted at every step and in every way by the Republican-controlled Legislature, the plaintiffs proved that Florida’s congressional districts had been drawn in gross violation of the 2010 “Fair Districts” initiatives. The Senate then threw in the towel, confessing its own districts were invalid too.

Nearly two-thirds of the voters had voted for the initiatives that their purported representatives consciously violated.

Attorney General Pam Bondi was defending the Legislature rather than the people, so the nonprofits stepped up. Thanks to them, Florida finally will have fairer elections.

At the last reckoning by the Miami Herald and Tampa Bay Times, taxpayers had spent $11 million to defend the Legislature through four trials, three special sessions and eight rulings by the Florida Supreme Court. The other side’s legal bills are not public, but amount to several million dollars at least.

But when the plaintiffs went back to court to be awarded those fees, the courts said no.

Terry Lewis, the Tallahassee circuit judge who had heard most of the trial litigation, turned them down because of the general Florida policy, known as the “American rule,” that each party bears its own costs. Losers pay only when there’s a specific law or contract saying so.

“If there is to be an exception to that rule of law, which I have to follow, it needs to be made by the legislature or by the Appellate Court,” Lewis said.

The plaintiffs took a powerful argument to the First District Court of Appeal. In California, Iowa and some other states, courts have invoked what’s called the “private attorney general doctrine” on behalf of citizens who speak truth to power on the public’s behalf, as the Florida plaintiffs did.

But at the First DCA, a panel of three judges appointed by Republican Governors Jeb Bush and Rick Scott turned them down. Judge Joseph Lewis‘ opinion relied on contrary precedents from other states. It was a political opinion by a politicized court.

And it added insult to injury. It scoffed at the plaintiffs’ plea that the court should grant their fees because the Legislature never would.

“Not only is the argument about the future actions of the Legislature based on speculation,” the court said, “but it ignores the fact that if the Legislature refuses to act upon an issue that is supported by the public will, Florida’s citizens hold the power to vote their representatives out of office.”

That was smug, fatuous and unrealistic. It was propaganda, not jurisprudence. Thanks to gerrymandering and the financial power of incumbency, Florida’s Legislature never has to fear the voters. The odds of being swept out of their offices are almost as long as those in a lottery. The new maps are a significant improvement, but not a cure.

Judge Brad Thomas, writing separately, poured on the heifer dust. If attorney fees were to be awarded in redistricting litigation, he said, the sponsors should have provided for that in the “Fair Districts” initiatives.

Had they done so, the initiatives might have been tossed off the ballot because of Florida’s single-subject rule.

Any chance of appealing the decision vanished a few days later when the Florida Supreme Court, ruling separately on legal fees for the appeals it had heard, denied them on a 4-3 vote with no written majority opinion.

Justice Barbara Pariente, writing in dissent for herself and Justices Peggy Quince and James Perry, warned that the court was encouraging “recalcitrant legislatures…to use the taxpayer resources at their disposal to run up their adversaries’ costs, thereby shielding constitutional violations…”

In these cases, the defendants did just that. They had relied on consultants to rig the maps for Republican candidates. When the plaintiffs subpenaed documents, the consultants claimed they were “trade secrets.” That had to be appealed, costing much time and expense.

When the Supreme Court finally opened the documents, in a split decision, there were “hundreds of thousands of pages” to sift through, and “the real stuff had been destroyed,” according to the League’s Ellen Frieden.

Even so, the “trade secrets” turned out to be dirty secrets, such as passing off a highly political map as the suggestion of a private citizen who had nothing to do with it.

More than a dozen lawyers were needed on the plaintiffs’ side alone. As none of the nonprofits or private citizens have deep pockets, it’s hard to see how those bills can be fully paid.

But Liza McClenaghan, Common Cause’s state chairperson, sees a bright side.

“Now we have the legal precedents and recognition for the efforts.  Supporters are no longer strangers.  The lawyers are being paid through funds raised,” she said in an email to me.

They won an enormous precedent that set benchmarks for future redistricting. But what happens if the Legislature tries again to game the Constitution? Pariente’s warning is apt. The lawbreakers will hold the financial high hand, at taxpayer expense, and the nonprofits will be scrounging for money again. It could be left to the minority political party, with somewhat deeper pockets, to challenge the maps.

Such a partisan cast would be unfortunate, and harmful. The genius of the victory this time was that the public’s banner was in nonpartisan hands.

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Martin Dyckman is a retired associate editor of the St. Petersburg Times. He lives in suburban Asheville, North Carolina.