Groups that successfully challenged the Florida Legislature's congressional map aren't entitled to recover millions of dollars in legal fees from the state, an appellate court ruled Thursday.
A three-judge panel of the 1st District Court of Appeal unanimously rejected arguments from a coalition of voting-rights organizations and a group of voters that their lawyers had essentially done the work of a "private attorney general" while state Attorney General Pam Bondi "sat on the sidelines."
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Thursday's ruling upheld a 2014 decision by Leon County Circuit Judge Terry Lewis, who also denied the plaintiffs' request for legal fees in a nearly four-year battle over congressional districts drawn by state lawmakers but rejected by the Florida Supreme Court.
The Supreme Court last year ruled that eight congressional districts crafted by the Republican-dominated Legislature violated the anti-gerrymandering "Fair Districts" standards approved by voters in 2010. The ruling came in a case filed by the League of Women Voters of Florida, Common Cause and other plaintiffs. The Supreme Court later approved a new map proposed by the voting-rights groups.
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The groups, known in the case as the "coalition plaintiffs," and a group of voters, known as the "Romo plaintiffs," had sought to get the state to pay their legal fees by asking the court to consider adopting a rarely used "private attorney general" doctrine that allows private parties to collect legal fees in public-interest lawsuits when the government chooses not to pursue litigation.
But siding with the Legislature, the appellate panel rejected the plaintiffs' arguments, saying that the "policy judgments underlying the doctrine" should be made by lawmakers, not the courts.
"In reaching our conclusion, we acknowledge that this case is unique in that it was those involved with the Legislature who allegedly violated the public interest," Judge Joseph Lewis Jr. wrote in a 17-page ruling joined by judges Ronald V. Swanson and Bradford L. Thomas, who also wrote a brief concurring opinion. "However, we reject appellants' [the voting-rights groups and voters] arguments that we must adopt the private attorney general doctrine because the Legislature will not statutorily authorize attorney's fees in redistricting cases and because Florida's citizens obtained a significant benefit as a result of the redistricting lawsuit. Not only is the argument about the future actions of the Legislature based upon speculation, 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."
The three-judge panel also noted that, while several other states – including Alaska and Montana – have authorized the use of the private attorney general doctrine, most courts have rejected other attempts at establishing an exception to what is known as the "American Rule," another legal doctrine that bars attorney's fees from being paid unless established by case law, statute or contract.
But David King, who represents the coalition plaintiffs, argued in a court document last year that Florida's redistricting challenge involved "precisely the circumstances" for which the exception to the American Rule is intended.
"It is difficult to imagine a better case in which to recognize and apply the doctrine than this one. First, as the Florida Supreme Court has already ruled, the public policy vindicated by this action is of maximum strength and societal importance, going to the very core of our representative democracy," King wrote.
The groups' attorneys argued they are entitled to the fees, in part, because the Legislature's wrongdoing would never have come to light but for the lawsuit.
The Legislature went to great efforts to "obstruct, delay, and intimidate" the plaintiffs by using "personal email accounts, Drop Box transfers, secretly delivered thumb drives, and other difficult-to-trace methods of communication" and avoiding public meetings that would have created a public record, the lawyers wrote.
Plaintiffs "were left to weave together the 'bits and pieces' of evidence that had not been destroyed or allegedly forgotten," the lawyers wrote. The Legislature also "derailed proceedings" by trying to prove the plaintiffs were motivated by partisan intent, the lawyer argued.
The Legislature's actions drove up the plaintiffs' legal costs and made what could have been "straightforward" litigation into a "multi-year odyssey," King wrote.
It is unknown what the tab for the plaintiffs' legal fees would be, but the Legislature has spent at least $8 million on the litigation.
King also warned that refusing to grant the request to have the state underwrite the plaintiffs' legal fees would set a dangerous precedent.
"Absent the ability to recover fees, future private litigants will be deterred from engaging in similar efforts to uncover official wrongdoing and future legislatures will be encouraged to drive away adversaries by increasing their litigation costs at every opportunity," he wrote.
But, again siding with the Legislature, the appeals court also ruled Thursday that the plaintiffs were procedurally barred from seeking fees because they did not seek them earlier.
In his concurring opinion, Thomas wrote that the plaintiffs also were not entitled to ask for fees because the Fair Districts constitutional amendments did not require it.
To grant the attorney's fees "at public expense" would violate the constitutional separation of powers, "when this issue could have and should have been presented to the public during its consideration of the redistricting amendment," he wrote.
The Florida Supreme Court is considering a similar request by the plaintiffs, also based on the private attorney general doctrine, seeking attorney's fees for the appellate cases.
Lawyers for the plaintiffs did not say whether they would try to appeal Thursday's ruling.
"I would imagine that we will be looking at it to see if there's a way to seek review in the Florida Supreme Court," Mark Herron, who represents the Romo plaintiffs, said. "Since there's no statutory right and there's no contract right, it's a way to see if we could establish some law in this area."
King and lawyers for the coalition plaintiffs were busy Thursday preparing for a federal court hearing regarding the new Congressional District 5. U.S. Rep. Corinne Brown is seeking an injunction that would block the state from using the new district, arguing that it violates the federal Voting Rights Act and would harm the ability of black votes to elect a candidate of their choice. A three-judge panel of federal judges is slated to hear arguments in the case on Friday.