FL Supreme Court rules “legislative privilege is not absolute”

The Florida Supreme Court ruled on Friday, December 13th in THE LEAGUE OF WOMEN VOTERS OF FLORIDA, et al., Petitioners, vs. THE FLORIDA HOUSE OF REPRESENTATIVES, et al., Respondents that:

In this opinion, we decide for the first time that Florida should recognize a legislative privilege founded on the constitutional principle of separation of powers, thus rejecting the challengers’ assertion that there is no legislative privilege in Florida. We also hold, however, that this privilege is not absolute where, as in this case, the purposes underlying the privilege are outweighed by the compelling, competing interest of effectuating the explicit constitutional mandate that prohibits partisan political gerrymandering and improper discriminatory intent in redistricting. We therefore reject the Legislature’s argument that requiring the testimony of individual legislators and legislative staff members will have a “chilling effect” among legislators in discussion and participation in the reapportionment process, as this type of “chilling effect” was the precise purpose of the constitutional amendment outlawing partisan political gerrymandering and improper discriminatory intent.

This decision will have a ripple effect across all levels of government in Florida.

While the specific case upon which this decision was decided involved the Florida legislature and redistricting it will impact all those who legislate at the city and county levels in Florida. The actions of mayors, city and county commissioners, state legislators and the Governor will all become more transparent.

Hugh Culverhouse, a Miami based lawyer, noted, “Every county, city and state commissioner, manager, employee, Senator, Congressman is covered by the FL Supreme Court’s decision, which is very broad. The case defined what is a ‘legislative act and who can claim it.’ The Boards of County Commission are legislators, as are mayors, and any board empowered to make rules, regulations or act in a quasi-judicial capacity (e.g. make zoning decisions). It is in no way limited to the issue of state Representative’s motives for voting to redistrict in a specific geographic way. That was simply the vehicle for the Supreme Court to decide whether Florida recognizes a legislative privilege, and if so, is the privilege absolute or qualified. The Court in a  7-2 strong decision stated that Florida will recognize legislative privilege, however, it is qualified.”

According Culverhouse, “The best part is the Florida Supreme Court is followed by many other states in saying rule makers and decision makers cannot hide behind a ‘privilege.’ They can still take the Fifth Amendment when their testimony would tend to incriminate them, and I expect, in Sarasota County for example, some will. But they cannot hide. You are not going to accept a campaign contribution in return for promising to vote a certain way two weeks later and then claim legislative privilege. Now, you will admit to a crime or take the fifth.”

It appears the Florida Supreme Court on Friday the 13th made our governments at every level more transparent and more accountable to the people. Bad luck for our elected and appointed officials, good luck for all Floridians.