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Martin Dyckman: Crucial court appointments face next governor

 There’s a phrase in Shakespeare that ought to be printed on every politician’s paycheck:

Upon what meat doth this our Caesar feed

That he is grown so great?

It might remind him or her that, all too often, it’s all too easy to forget who is supposed to be serving whom.

So it is a pleasure to note that Florida’s version of the Roman Senate has been instructed forcefully of the proper relationship between citizen and public servant.

A 5-2 Florida Supreme Court decision last week means the former Senate majority leader, Andy Gardiner, and two of his staffers must testify how they redrew Florida’s voting districts and provide copies of draft maps that didn’t make it into law.

The League of Women Voters, Common Cause, and other plaintiffs are trying to prove the Republican-led Legislature schemed with party officials in Tallahassee and Washington to gain an unconstitutional advantage.

The “fair districts” amendments for which the people petitioned and for which they voted overwhelmingly in 2010 forbid the sleazy but common practice of district-rigging known as gerrymandering.

The results alone suggest that it happened in Florida yet again in 2012: the Republican majorities in Tallahassee and the congressional delegation are disproportionate to the overall votes they actually won.

But courts want more than appearance to overturn a districting scheme. They want proof of intent.

To avoid providing that proof, the defendants raised the ancient claim of “legislative privilege” — the principle that legislators shouldn’t have courts looking over their shoulders.

Unlike nearly all other states, Florida has no such provision in its constitution.

So the Senate’s lawyers asked the court to infer it from language establishing separation of powers among the three branches of government.

The court agreed, for the first time, that there is such a privilege.

Score one for the politicians.

But it went on to say the privilege is not absolute; that it must give way to something so fundamental as the public’s “explicit” constitutional right to fair districts.

Score one for the people.

The court acknowledged the claim that the compelled testimony would have a “chilling effect” on redistricting deliberations.

“This type of ‘chilling effect’ was the precise purpose of the constitutional amendment outlawing partisan political gerrymandering and improper discriminatory intent,” the majority opinion said.

Even at that, the court gave the plaintiffs’ lawyers less than they wanted. Legislators and staff won’t have to say what they were thinking; only what they saw, did, or heard. A judge will have to decide question by question what must be answered. That process will be tedious and frustrating.

But to believe the dissent of Justice Charles Canady and Chief Justice Ricky Polston, it was an unparalleled, unwarranted disaster for the powers that be.

For “the first time in the history of our Republic,” they complained, legislators must account for their votes to a court. They said this “grievously violates the separation of powers.”

Justice Barbara Pariente’s majority opinion referred to the dissent as “hyperbolic,” a polite word for hysterical. She and Justices R. Fred Lewis, Jorge Labarga, Peggy Quince, and James C. Perry comprised the majority.

Such dissents by Canady and Polston have become predictable whenever a case pits the citizen against political or economic power. They’re conservative with a vengeance.

Their philosophy will likely become the majority view if Gov. Rick Scott is re-elected next year. Pariente, Lewis, Quince and Perry are facing mandatory retirement. Scott makes no secret of preferring judges who think like Canady and Polston, who were Jeb Bush’s appointees to district courts of appeal and Charlie Crist’s to the Supreme Court.

However, Crist was also responsible for Justices Perry and Labarga. It was a neat balancing act.

Scott doesn’t believe in balance.

Labarga wrote separately to emphasize that the public’s right to fair districts would be unenforceable if legislators could claim “privilege” to cover their tracks.

“It is the Florida Constitution, not the judiciary, that creates the necessity for the Legislature to disclose any evidence of improper intent. Thus, there is no violation of the principle of separation of powers,” he said.

Nothing is as important as the right of voters to have a fair opportunity to elect legislators of their choice.

Nothing, that is, except to be served by judges who respect that right.

Five Florida justices do. Sad to say, two apparently do not.

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