Pariente suggested that Circuit Court Judge Terry Lewis “struck a good balance” when he limited questioning.
But the lawyer for the League, Talbot “Sandy” D’Alemberte said there is no common-law legislative privilege and therefore no need to limit questions. He said the League wants to ask legislators why they drew the maps the way they did because that would be how they would determine intent.
“We take the position that intent is in the constitution and we should be able to ask questions,’’ he said. Among the questions: “Why did you consult with partisan political operatives in developing your plan?” and “Was there a parallel secret process going on at the same time as the open process?”
He noted that in 2002, the Legislature admitted in court that when it drew its redistricting maps it intended to give the advantage to the Republican party — a practice that was legal at the time.
“The constitutional amendments adopted in 2010 were intended to chill the Legislature,’’ D’Alemberte said. “The Legislature could no longer do what it did in 2002 and adopt a plan that favors a partisan party.”
Justice Charles Canady, himself a former legislator, asked D’Alemberte to cite a single case in which a court has ordered a member of the Legislature to submit to a deposition about a legislative matter.
D’Alemberte said he could not cite a case but there was also no other state that had a constitutional amendment like Florida’s “that uses the word intent.”
Justice Peggy Quince and R. Fred Lewis each warned that allowing the unlimited deposition of legislators or their aides could lead to problems.
D’Alemberte responded that “if we go overboard” with deposing legislators, the lower court “is equipped to limit that.”
Although questioning legislators came up during the challenge to the congressional maps, Pariente suggested that the issue will apply to the challenge to the Senate map, now winding its way through the lower courts.
That lawsuit has already resulted in a prolonged fight over documents and depositions. One GOP consultant in that case, Marc Reichelderfer, said outside consultants were included in Republican strategy sessions with legislators and staff until lawyers advised them that their conversations would not be protected by legislative privilege and they could be questioned under oath.
Whichever way the court rules, both sides believe it could have sweeping repercussions. The state and federal Constitutions do not exempt legislators from testifying under oath but it is generally only allowed in corruption and criminal cases.
If the court asserts a broad privilege for legislators, as their lawyers contend, D’Alemberte warned that it could be used by lawmakers to justify withholding other documents and information under Florida’s public records laws.
“We have great pride in being an open-government state,” D’Alemberte told reporters after the hearing. “If you now can’t get to what the Legislature did… what does that do to the core of our principles about open government?”
If the court allows legislators to be deposed, Cantero warned that it could harm their ability to interact with each other and could stifle debate.
“No court in the country has ever ordered that a legislator testify about the legislative process,” Cantero said after the hearing. “If the court were to order depositions in this case, they’d be the first court in this country to do so. We just want them to do what every other state has done.”
The Legislature’s warning about a chilling effect also was underscored in a brief filed by former Republican Senate Presidents Ken Pruitt and John McKay and former Speaker of the House James Harold Thompson, a Democrat from Quincy who was speaker in the 1980s.
Mary Ellen Klas can be reached at meklas@MiamiHerald.com. Follow her on Twitter @MaryEllenKlas