Brief of Amicus Curiae on Behalf of [Florida Senator] Pat Frank, In Opposition (Regarding Apportionment of the Florida L...


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Brief of Amicus Curiae on Behalf of Florida Senator Pat Frank, In Opposition (Regarding Apportionment of the Florida Legislature; 1982 Special Apportionment Session)
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North America -- United States of America -- Florida -- Leon -- Tallahassee

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MAY 3 1982

Chla ODouty Clark


CASE NO. 61,933


On Behalf of Honorable-
Pat Frank, In Opposition

By Wagner, Cunningham, Vaughan
& McLaughlin, P. A.
Tony Cunningham for Amicus Curiae
as Opponent
708 Jackson Street
Tampa, Florida 33602
Telephone: 813 223-7421














Cases Page

Farrelly v. Cole,
56 P. 492 (Kan. 1899)

Ferrell v. State of Oklahoma ex rel. Hall, 16
339 F.Supp. 73, 81 (W.D. Okla. 1972), aff'd,
92 S.Ct. 2045 (1972)

Gray v. Sanders, 10
372 U.S. 368, 381, 9 L.Ed. 2d
821, 831, 83 S.Ct. 801 (1963)

Griswold v. County of San Diego, 16
32 Cal. App. 3d 56, 107 Cal. Rptr.
845 (Ct.App. 4th Dist. 1973)

Groh v. Egan,
526 P.2d 863 (Alaska 1974)

In Re: Advisory Opinion to Governor, 9
313 So.2d 717 (Fla. 1975)

Legislature of State of California v. Reinecke, 14, 15, 16
516 P.2d 6 (Cal. 1973)

Mader v. Crowell,
498 F.Supp. 226, 229 (M.D. Tenn. 1980)

Reynolds v. Sims, 10
377 U.S. 533, 12 L.Ed. 2d 506,
84 S.Ct. 1362 (1964)

State ex rel. West v. Gray, 6
74 So.2d 114 (Fla. 1954)



Art. III, 15, Fla. Const.

Art. III, 15(a), Fla. Const.

Art. III, 16, Fla. Const.

Art. III, 16(a), Fla. Const.





Letter to Representative Emerson Allsworth, Chairman, 7
Legislative Committee CRC from L. K. Ireland, Jr.,
dated January 17, 1966; Florida State Archives,
RG 005, Series 720, Box 5



That this is in effect a case, the nature of which is

a declaratory judgment to determine thevalidity of Senate Joint

Resolution 1 E through the interpretation of Article III, Sections

15 and 16 of the Florida Constitution and having first judged the

validity of SJR 1 E and found it to be constitutionally sound, to

then determine the questions concerning its implementation.



Without reiteration, we adopt the Statement of Facts

as contained at Pages 2 through 6 of the Attorney General's brief.



Senator Frank, as Amicus Curiae, is in the unique position

of being the only senator in an odd-numbered district, District 23,

who unequivocally takes the position that her electors and constituents,

under the redistricting plan contained in SJR 1 E, have the right to

approve or disapprove of her representation of that constituency in

the Florida Senate by standing for election in 1982 for a two-year


Further, Senator Frank takes the position that under the

interpretation hereinafter set forth of the Florida Constitution, and

further for compelling public policy reasons, these arguments so

override and so far outweigh the inconvenience of the other 19 senators

affected by having to run in 1982 for a two-year term that it would

do substantial injustice to and disenfranchise hundreds of thousands

of Florida citizens to not require such election.

That our Constitution uniquely provides a method by which

this Court can obviate the inequality and inequities caused by SJR 1 E

to the citizens of the State of Florida.

That the machinery for election will be in place in any

event because each House member must run and each even-numbered senate

district also must run so the monetary cost is of no consequence

to hold the elections.





Examination of SJR 1 E makes it readily apparent that the

Legislature adhered to those constitutional principles which should

have been followed concerning the minority-dominated and minority-

access senatorial districts and does not appear in any respect to

have adverse impact on any minority group. Further, single-member

districts, as is evidenced by the many opinions and conclusions of

the Courts and Legislatures of the various states, are consistent

with and aimed at protecting minority representation in the

Legislature. It is, therefore, clear that the Court should declare

the apportionment plan contained in SJR 1 E to be constitutional

on such grounds.

Further, it is clear that the Legislature followed consistent

constitutional guidelines in their efforts to bring about districts

as nearly equal in population as was practicable under the circumstances

and that such result is well within those requirements of the Florida

and Federal Constitutions. It is, therefore, again conclusive that

SJR 1 E complies with the requirements of those respective





The Attorney General identified the problem at Paragraph

15 of his petition to this Court when he said:

"15. The question whether state Senators who were
from odd-numbered districts in the 1980 general
election will serve two or four-year terms is an
issue related to apportionment, and the Constitution
is ambiguous on this issue." Emphasis supplied.

The Attorney General now takes the position that Article III,

Section 15(a) does not apply to the situation presently before this Court

in determining whether or not the 19 senators who do not desire to do

so, will have to run for office in 1982. In his brief, the Attorney

General uses the reasoning that because there are already senators

elected on staggered terms, i.e. half the Senate, that this shows that

it is not necessary for odd-numbered senators to run for a two-year

term in 1982 because they are already on staggered terms from being

elected in 1980.

Of course, that's an illogical approach to the situation

and it also makes a basic error in the interpretation of the

Constitution. It in effect holds that those terms used in Article III,

Section 15(a) are meaningless because if we accept the position

expressed by the Attorney General, that is to say that no matter what

happens, unless the size of the Senate changes, no matter what


reapportionment occurs, that even if there were gross realignments

as we have here, that Article III, Section 15 still has no bearing

because the only time it would come into play, according to the

Attorney General's argument, is if there was a failure of staggered

terms. As long then as there are staggered terms, and there always

will be, if holdover senators are allowed, then the terms of Section

15(a)'s exception become meaningless in a reapportionment situation.

Why were the terms as we see them in Section 15(a) set out?

The clear expression that states: "At the election next following

a reapportionment", is that language meaningless? Is it not more

logical and reasonable to assume that the people intended in drafting

and ratifying that provision that if there was a reapportionment,

such as there has been, that some senators "shall run".

We more than agree that the fundamental objective in

construing constitutional provisions is to give effect to the intent

of the framers and adopters to fulfill the intention of both.State

ex rel. West v. Gray, 74 So.2d 114 (Fla. 1954).

Certainly though there should not be a strained interpreta-

tion of the Constitution against the principles of public policy of

its adopters in order to help 19 senators who don't want to go to

the time and trouble of running. Amazingly the position taken by

the Attorney General,more or less agreeing with the Senate,that it

would have been very easy to make their language understandable if one

half of the Senate was to be elected after a reapportionment for a

two-year term, and holds therefore since it wasn't in the Constitution

in that manner it means that one half the Senate would not have

to run.

The Attorney General and the Senate briefs cite as authority,

of some sort, for this proposition that'Mr. Ireland wrote a letter to

the Constitution Revision Commission suggesting that one-half of

the Senate run after each reapportionment to two-year terms, and then

they use the logic that because this was not included by the framers

of the Constitution that they intended the reasoning offered by the

Attorney General as set forth above.

May we hasten to offer this Court a much more reasonable,

logical, and some might say, a better idea. That perhaps when

they examined Mr. Ireland's proposition the CRC could foresee that

it might not be necessary to change every senate district in the

State of Florida in each reapportionment and if, in fact, any district

were left the same, would it not be ridiculous for that senator to

have to run for election merely because of such a proposition when

he would be facing the same voters who had already elected him.

Would it not be more logical to assume that not all of the

districts would be changed every reapportionment and therefore it

would not be necessary for all senators in odd-numbered districts to

run for election for a two-year term. I think we can safely assume,

thank goodness, that the framers of the Constitution saw this trap and

took care of it very well by placing the language in Article III,

Section 15(a) to allow the Legislature, if they would, or this Court

to decide, if they would not, if "some" of the senators would have to

run for a two-year term to obviate the disenfranchisement and

inequality caused by redistricting in reapportionment years.

Obviously if they must run where it is necessary to obviate the

inequalities of such reapportionment, they should run for only

two years to preserve the staggered terms of the Senate.

The fact that the reapportionment, though very properly

done as we note above, resulted in this instance in wholesale

redistricting thereby necessitating all of the odd-numbered senators

to run in 1982 for a two-year term, does not and cannot destroy the

efficacy of Article III, Section 15(a) merely because it affects all

20 instead of 17, 10 or 6.

The proof of this reasoning is easily understood if we

assume that although this plan is an excellent one, that it certainly

is not the only plan that could have been devised by the Legislature

and therefore had it wished to devise a plan which did not call for

such radical redistricting and had preserved the continuity of certain

constituencies, then certainly all of the odd-numbered senators would

not have had to run, but only "some" to maintain the public policy of

this state to obviate the disenfranchisement of some of the citizens

of this state and still maintain staggered terms in the Senate.*

* It might be well to note in passing that an examination of District
25 might bring that senator into a position of not having to run for
office again in 1982 in front of what appears to be substantially the
same constituency. No attempt has been made to verify this situation.


In re: The Advisory Opinion of The Governor, 313 So.2d

679, there was the clear instruction that the Constitution must be

given effect in every clause and provision and that they were inserted

for a definite purpose. All provisions must, therefore, be construed

together, not accepting one and ignoring another.

Great public policy demands that this be followed because it

was the people of the State of Florida who accepted and rely upon this

Constitution as well as the incumbents.

Having disposed, we believe logically and reasonably,with the

constitutional provision questions raised by the proponents' briefs,

we pass to consideration of the cases cited and the arguments thereon.

A close examination of the House document, "A Computerized

Analysis of Disenfranchisement Resulting from SJR 1 E", indicates far

more people are affected than the 1.16% of the population set by the

Senate brief, and truly disenfranchisement, as nasty as that word

may seem to be, and as disagreeable as it is to the position of the

Senate, it is obvious that more than half of the state's population

is affected by the redistricting plan. It is urged that there is no

such thing as being a little disenfranchised, which might be compared

to a de minimis pregnancy; there isn't any such thing. The brief

of the Senate and the brief for the Attorney General have apparent

disagreement on the question of whether a legislator has a property

"A Computerized Analysis of Disenfranchisement Resulting From SJR 1 E",
Leach, Committee Report 82-11, Select Committee on Reapportionment
(April 6, 1982). [App. A, B-l]


right in his office, which is a perfect example of how that should

not be controlling on this Court, and this Court could arrive at its

own opinions based upon its own Constitution, which is unlike any

Constitution cited in any of the cases with which we here deal.

Much ado is made in the briefs about the historical allowing

of holdover senators by the State of Florida, and little can truly be

said about that, because obviously they did, but at the time they

also did not have Article III, Section 15(a). In other words, a

constitutional way of dealing with the situation and obviating the

problems of inequality.

The concept in Reynolds v. Sims, 377 U.S. 533 (1964), 12

L.Ed. 2d 506, 84 S.Ct. 1362 (1964), the United States Supreme Court

in its far-reaching opinion, followed the political equality thinking

of "one-person, one-vote", as so well set forth by Justice Douglas

in Gray v. Sanders, 372 U.S. 368, 381, 9 L.Ed. 2d 821, 83 S.Ct. 801

(1963), which put its finger on the pulse of this situation when the

Court said:

"What is marginally permissible in one state may be
unsatisfactory in another, depending upon the
particular circumstances of the case. Developing
a body of doctrine on a case by case basis appears
to us to provide the most satisfactory means..."

Staggered terms are not the issue here. The electors have

long taken care of sending experienced legislators back to their offices

and causing all senators to run will not by any stretch of the

*Page 25, Senate Brief
Page 32, Attorney General's Brief


imagination mean that there will not be experienced senators. The

idea of arguing that extremely remote possibility in balance to

disenfranchise 800,000 people is not reasonable. To hear the 19

argue to protect their own incumbency at the cost of the electors'

right to elect their duly chosen senators may be very human but

should not be tolerated by the people or by the Courts.

One other aspect is clearly visible on the horizon if

odd-numbered districts do not run, the work load of many senators,

one of whom is Senator Frank, will be increased because of increased

numbers of people taken into their district, with no increase in

staff, salary, etc. This will create not only hardship for the

senator involved, but also a decrease in service to constituents.

It is all very well to quote Senator Matthews as saying he

represents, or represented at the time, 6,000,000 people in the State

of Florida when he was a senator, but one must bury his head in the

sand to not also believe that it is most important to represent the

constituents who seek the aid and attention of their particular

senator or representative. One can only serve so many masters.

Before visiting the cases we must touch on the incongruity

of an attempted distinction which the Senate brief makes. We go back

to the questions of these 20 senators who ran in 1980. There was at

that time in existence Article III, Section 15, as well as Article III,

Section 16, and there was no question that the decennial census was

going to be used in redistricting as called for by the Constitution.

Presumably those constitutional provisions were known to those elected


to office in 1980. How can they then now be heard to say that

they do not have to run? The Senate Brief says the reason we

didn't believe that,is that Article III, Section 15 says

"reapportionment", and that was meant to mean something other

than decennial apportionment as is set forth in Section 16.

The brief attempts to make some difference in the words "apportion-

ment" and "reapportionment" and counsel for the Senate continues

at length to attempt to make this distinction without difference. It

is truly a distinction but without any difference.

A reading of the cases involving "apportionment" or

"reapportionment" will indicate that the form of the word is used

often interchangably by the Courts and by the contestants alike in

the cases.

Proponent's position in Article III, Section 15 does not

apply because it uses the word "reapportionment", as compared to

Article III, Section 16, which does apply because it uses the word

"apportionment" or "apportion". They want then to leap over the

cliff of conclusion that the framers meant some kind of process other

than decennial reapportionment in Article III, Section 15 than they

did in Article III, Section 16.

Are not the people of the state entitled to and does not

public policy demand a clear, straight-forward interpretation that a

layman might make if he was voting on approval of this Constitution?

We urge that even the proponents must have to swallow pretty hard to


attempt such an ubiquitous distinction. We also urge that an

examination of their own brief might make them swallow a little

harder when the Court reads the argument at Page 27, where the

attempted distinction is made, and then we turn to Page 40, where

in arguing the inapplicability of The Fourteenth Amendment, they

become truly hoist on their own petard, in the following language:

"No Court has ever concluded..., elected from
constitutionally-apportioned districts, when
decennial reapportionment results in population
shifts..." Emphasis supplied.

And further, on Page 40, where they use the terms:

"...which permits a very temporary and minor
inequality in the voting rights of the citizens
affected by reapportionment. Such temporary
voting delays resulting from reapportionment
thus do not rise to constitutional magnitude
under the Equal Protection Clause." Emphasis

Therefore, here the proponents have used the term "reapportionment"

in their argument in exactly the way that it is interpreted by the

opponents in their requested interpretation in this Court of Article

III, Section 15, so they truly have made it a distinction with no


The Senate Brief further attempts a heavy handed approach

by saying that these were duly elected senators and they have such

an interest in their office that it could only be destroyed by an

"act of God", an "assassin's bullet" or by an "improper decision".

Attempting to put this Court's conclusion, if it is other than

approving of their position, of doing away with the person himself.


Of course, there is another solution and that is a proper

election in which the people choose the person to be their representa-

tive in the Senate of the State of Florida. A proper election protects

the electors' interest, admittedly not necessarily that of the

incumbent but after all which is better public policy.

Are we protecting the rights of 20 senators, 19 of whom

would choose not to run or does public policy and proper constitutional

interpretation demand that these 19 appear before their true and

correct constituents for approval?

We would again urge that the mechanism for election will

all be set up in 1982; that there would be no hardship on the

people, only upon the 19.

The Senate Brief and the Attorney General's Brief rely

heavily on the case of Legislature of State of California v. Reinecke,

516 P.2d 6 (Cal. 1973). This opinion is both misconstrued and

misused here. In that particular case the Court in considering

having all senate districts run in the State of California did not

consider the question of truncated terms to maintain staggered terms,

something that is provided here. Secondly, if we can read the

opinion correctly, there was no discussion as to what degree of

inequality which was not "invidiously discriminatory". Lastly, and

most importantly in this case, is that the Court was clearly restrained

in Reinecke by the fact that the inequality was deemed to "flow

directly from the provisions of the California Constitution".


That inequality was therefore qualified in that sense. The Court

went on further to say, "We are not free to obviate them (the

inequalities) unless they constitute invidious discrimination."

It is obvious that the California Constitution contained

no provisions such as Article III, Section 15(a).

The people of our state are much more fortunate because of

the wisdom of the authors of the present Constitution. They presented

to the electorate to ratify and they did so the Article III, Section

15(a) "exception", which clearly and unmistakably allow this Court,

pursuant to that Section, to obviate our inequality without the

necessity of anyone proving invidious discrimination.

Therefore the Reinecke case, if anything, stands for the

proposition that where there flows from the California Constitution

an inequality which that Court could not obviate without the

showing of invidious discrimination, it is in perfect harmony with

the position taken by Senator Frank as Amicus Curiae to this Court.

Unlike California, the Florida Constitution does contain provisions

to allow the obviation of the inequalities which flow from the

requirements of reapportionment pursuant to Article III, Section 16.

The public has approved the method and now are deserving of the use

of that method as a plain and direct interpretation of the

Constitution as set forth in Article III, Section 15(a) to require

the 20 senators from the odd-numbered districts to run for a two-year

term in 1982.


The Reinecke case, Id., has clearly been distinguished

as can Ferrell v. State of Oklahoma, Griswold, and others cited

by proponents on the same ground that we have distinguished the

Reinecke case. That is, in those state'Constitutions there was

no way to obviate the problem of disenfranchisement which is

created by reapportionment except by the test of invidious

discrimination. The California Supreme Court, and the others cited,

showing that the problems stem from the Constitution, and that there

was no other relief in the Constitution to allow them to obviate the

problem, were forced to the position that there was no answer except

the invidious discrimination test. This Court is not hamstrung in

that manner; there is no need to find invidious discrimination.

The Courts and the proponents here speak of de minimis

situations, they speak of unavoidable consequences, of inequality,

and of their beliefs that politically sensitive politicians will

seek to represent voters. All of these arguments waste away when

it is readily apparent that the electorate, the people, the ratifiers,

the accepters of the constitutional provisions could easily see that

Section 15(a) reasonably interpreted meant when reapportionment

time came around, there would be elections in all probability, and

if it was necessary in an district where a senator might have to run

to properly represent his constituency, then "some" senators might

have to run for two-year terms in order to maintain the staggered

"experience balance" in the Senate. Therefore, if one chooses to

apply in a rational and reasonable manner Article III, Section 15(a),


all of those cases cited by the proponents and even the Attorney

General fall by the wayside.



For the reasons stated, this Court is urged on behalf

of Senator Frank, as Amicus Curiae, that the great public policy

of this state demands: (1) that this Court take jurisdiction of

and decide the questions required to lay this matter to rest;

(2) that the district lines as provided in SJR 1 E be termed

valid and proper; (3) to require that election of members of the

Senate and the House of Representatives shall take place in all

Senate and House of Representatives Districts as reapportioned

by SJR 1 E, with terms of two years for the senators from odd-

numbered districts so as to comply with Article III, Sections

15 and 16 of the Florida Constitution, to maintain staggered terms

of office; that all such elections be held in 1982.

Respectfully submitted,

Wagne Cunningf, Vaughan
& Mc ughlin, A.
708 Tackson St eet
Tampa, Florida 33602
Telephone: 813 223-7421

For Amicus Curiae as Opponent




JE HEREBY CERTIFY that a true copy was served by mail

this __3 y of May, 1982, upon the following:

1. Honorable Bob Graham
Governor of the State of Florida
The Capitol
Tallahassee, Florida 32301

2. Honorable W. D. Childers
President, The Florida Senate
The Capitol
Tallahassee, Florida 32301

3. Honorable Ralph D. Haben, Jr.
Speaker, The Florida House
of Representatives
The Capitol
Tallahassee, Florida 32301

4. Honorable Jim Smith
Attorney General, State of Florida
The Capitol
Tallahassee, Florida 32301

5. Honorable Bill Gunter
Treasurer and Insurance Commissioner,
State of Florida
The Capitol
Tallahassee, Florida 32301

6. Honorable N. Curtis Peterson, Jr.
President Pro Tempore, The Florida Senate
Room 405, Senate Office Building
Tallahassee, Florida 32301

7. Honorable Barry Kutun
Speaker Pro Tempore, The Florida House
of Representatives
Room 420, The Capitol
Tallahassee, Florida 32301

8. Honorable Dempsey J. Barron
Senator, State of Florida, and Chairman
Senate Committee on Apportionment
Room 205, Senate Office Building
Tallahassee, Florida 32301


9. Honorable Lee Moffitt
Representative, State of Florida,
and Chairman, House Committee on
Room 223, The Capitol
Tallahassee, Florida 32301

10. Betty J. Steffens, Esquire
General Counsel for Governor
Bob Graham
209 Capitol Building
Tallahassee, Florida 32301

11. Barry Richard, Esquire
Counsel for the Florida House of
Roberts, Baggett, La Face, Richard
& Wiser
101 E. College Avenue
Tallahassee, Florida 32301

12. Kendrick Tucker, Esquire
Deputy Attorney General
The Capitol
Tallahassee, Florida 32301

13. Mitchell D. Franks, Esquire
Assistant Attorney General
The Capitol, Suite 1501
Tallahassee, Florida 32301

14. Gerald B. Curington, Esquire
Assistant Attorney General
The Capitol, Suite 1501
Tallahassee, Florida 32301

15. John K. Aurell, Esquire
Of Counsel, The Attorney General
Holland & Knight
P. O. Drawer 810
Tallahassee, Florida 32301

16. Donald A. Dowdell, Esquire
General Counsel
Department of Insurance
Plaza Room 16, The Capitol
Tallahassee, Florida 32301

17. Tom R. Moore, Esquire
Counsel for Common Cause/Florida
222 West Pensacola Street
Room 126
Tallahassee, Florida 32301


18. Al Hadeed, Esquire
Counsel for Common Cause/Florida
115-A N.E. 7th Avenue
Gainesville, Florida 32601

19. Halley B. Lewis, Esquire
Box 154
Trenton, Florida 32693

20. John M. Diaz
In Propria Persona Plaintiff
70 Tamiami Blvd.
Miami, Florida 33144

21. Thomas W. McAliley, Esquire
Beckham & McAliley, P.A.
66 West Flagler Street
Miami, Florida 33130

22. Neal P. Rutledge, Esquire
3636 16th Street
Washington, D. C. 20010

Wagner Cunningham Vaughan
& McL ughlin, P.
708 ackson Street
Tamp Florida 33602
Telephone: 813 223-7421