LAWYER v. DEPARTMENT OF JUSTICE
Based on the 1990 census, the Florida Legislature adopted a reapportionment plan for State Senate and House districts. After the Justice Department refused to preclear the plan and it appeared as if the Governor, Senate President, and House Speaker would not convene a session, the Florida Supreme Court revised the redistricting plan itself. In 1995, C. Martin Lawyer, III, and other residents filed suit against state and federal parties, alleging that his district, Senate District 21, violated the Equal Protection Clause. The District permitted the State Senate and House of Representatives to intervene and ultimately, all the parties, but Lawyer, agreed to a settlement that revised District 21 under a new plan. The District Court rejected Lawyer's argument that the court had to find the original reapportionment plan unconstitutional, because race seemingly determined District 21's contours, before the settlement could be approved. The court approved the settlement.
Did the District Court err in approving a remedial plan for the creation of a Florida state Senate district, which allegedly violated the Equal Protection Clause?
Legal provision: Equal Protection
No. In a 5-4 opinion delivered by David H. Souter, the Court held that the State exercised the choice to which it was entitled under our cases, that Lawyer had no right to block the settlement, and that he failed to point out any unconstitutionality in the proposed plan. The Court found that Lawyer's agreement to the provisional settlement did not require the District Court to adjudicate the constitutionality of the plan before approving the settlement and that the court, in redrawing the district, did not subordinate Florida's traditional districting principles to race. Justice Souter wrote that "the evidence amply supports the trial court's views that race did not predominate over Florida's traditional districting principles....[Lawyer] has provided nothing that calls that conclusion into question, much less that points to any clear error." Justice Antonin Scalia, joined by Justices Sandra Day O'Connor, Anthony M. Kennedy, and Clarence Thomas, dissented.
Argument of Robert J. Shapiro
Chief Justice Rehnquist: We'll hear argument next in Number 95-2024, C. Martin Lawyer, III, v. the Department of Justice.
Mr. Shapiro: Mr. Chief Justice, and may it please the Court:
In this case, the district court used an unconstitutional process to achieve an unconstitutional result in the form of plan 386.
Before commencing my argument, I would like to make a correction in my reply brief which is important in that it's a reference to the record.
On page 14 of the reply brief I referred to the preclearance denial letter of the Justice Department as R. 18... I'm sorry, as R. 13, and it's actually in the record at R. 18, and the full text is at R. 18.
I also would like to just briefly refer to the maps which are attached to the briefs.
If I may, the first map we have is Appendix A to the reply brief.
This is the legislatively adopted plan which was approved by the Florida supreme court in 1992.
It's called SJR 2G.
This is District 21 in yellow, which is all encompassed within Tampa, Hillsborough County, Florida.
The next map we have was the court-ordered plan as a result of the Justice Department's preclearance denial letter.
They objected to it.
Although there was absolutely no history of Voting Rights Act violations against black voters in Hillsborough County they were covered under section 5 because in Hillsborough County they did not print ballots in Spanish as well as English.
So there was no congressional finding whatsoever of any Voting Rights Act violations against blacks in Hillsborough County, and this is in the record at... let's see, if I may.
Okay, it's at record at R. 104, which I didn't put in my brief.
R. 104, page 3, specifically states that.
You can see that this district extends into Pinellas County.
This is Hillsborough County.
It goes into Polk County.
It's called the Polk County finger, and we have the--
Unknown Speaker: Mr. Shapiro, is this the district that the Florida supreme court approved, that we're looking at now?
Mr. Shapiro: --This... what you're looking at is the district that the Florida supreme court approved under the duress of the Justice Department's letter.
Unknown Speaker: That's 4A of the brief?
Mr. Shapiro: The--
Unknown Speaker: Of the blue brief?
Mr. Shapiro: --This is Appendix B to the brief on the merits for appellant.
Unknown Speaker: Yes, and this is the one that was superseded by the district that is now in question?
Mr. Shapiro: That's correct.
This was the one that was challenged by the plaintiff in his lawsuit, so this is the one that was the result of the preclearance denial letter by the Justice Department.
Unknown Speaker: Mr. Shapiro, I had a question about the challenge and the choice of forum.
You are attacking a decision of the Florida supreme court, and you come into a Federal court to do that.
Was there not a means by which you could have fought out your challenge to a district created by the Florida supreme court in the Florida State system so you wouldn't have the embarrassment of a Federal court being faced with a decision of the Florida supreme court that it was impelled to reject?
Could you have gotten a remedy by appealing to the State system rather than running to the Federal courts?
Mr. Shapiro: No, Your Honor, because this was a challenge based on what the Justice Department had forced the Florida supreme court--
Unknown Speaker: But that doesn't tell me why you couldn't say... I mean, the Equal Protection Clause governs the State of Florida, as it does the Nation.
Why couldn't you then go into the State court system, make precisely the argument made in the Federal court?
Mr. Shapiro: --First of all, the Florida supreme court did not reserve jurisdiction over this issue.
It reserved jurisdiction when it approved this district in 597 So.2d.
If you read the opinion of the Florida supreme court it says, we reserve jurisdiction.
But when it approved 330 at the insistence of the Justice Department it did not reserve jurisdiction.
Unknown Speaker: I don't mean in that case.
Bring the case... bring another case, in which you're saying, Florida supreme court, we know you've got precedent, but you were acting under the gun of the Department of Justice, so we want to free you from that thrall.
Mr. Shapiro: Well, Your Honor, the only thing I can say is that the plaintiff had the right to contest this district in U.S. district court, and under the Voting Rights Act.
Unknown Speaker: Mr. Shapiro, I appreciate that you did, but there was a certain anomaly in you coming to a Federal court to in effect override a decision of the State court and then say that the Federal court has not been sufficiently respectful of the State authorities.
Maybe you haven't in coming to the Federal court rather than a State court for the solution to your problem.
Mr. Shapiro: Well, that issue was resolved in the trial court.
There were motions... there were actually motions to dismiss filed by the Attorney General in the State of Florida asserting that position.
Those were denied by the district court, and that was not appealed.
Unknown Speaker: Do you think you would have had much of a chance had you gone into a Florida trial court and said that what the Florida supreme court did was a mistake?
Mr. Shapiro: I don't know that a Florida trial court would have jurisdiction in the Voting Rights Act case, Your Honor.
I just don't know.
I don't think so.
I think this would be exclusive jurisdiction in the Federal district court, and Mr. Lawyer had a right to make a Shaw claim in the U.S. district court, and again, there was a motion filed by the Attorney General to abstain, to transfer because of the DeGrandy litigation, which was in progress at the time.
This district... this plan was in U.S. district court in the Northern District.
Unknown Speaker: Mr. Shapiro, may I just clarify, is anybody now claiming that plan should be defended?
Mr. Shapiro: Well, yes.
The... in fact, and that's a critical aspect of this case, is that the... at no time in this litigation did... was there ever an adjudication that this plan was unconstitutional.
Unknown Speaker: I understand, but is anybody now claiming that it is constitutional?
Mr. Shapiro: Yes, because what they're saying, they reserve--
Unknown Speaker: And if so, who?
Mr. Shapiro: --The Attorney General... I'm sorry.
The State appellants at the least, specifically in their settlement agreement said, we do not acknowledge that 330 is unconstitutional, and we have a right... if their settlement plan was rejected, they retained the right to contest that 330 was unconstitutional, and that's a key aspect of this case, in that there was never an adjudication of liability that that 330--
Unknown Speaker: Well, I thought in this Court though they don't contest that it's unconstitutional.
Mr. Shapiro: --I believe they do.
They do not concede that 330 was unconstitutional.
Unknown Speaker: But how does that bear on the arguments you're trying to make?
Mr. Shapiro: It doesn't bear on the arguments.
I do not... they do not admit that 330 is unconstitutional.
Unknown Speaker: But then, why don't we go to the district which basically we're talking about here, I take it.
Mr. Shapiro: That's correct.
This is 386.
This was the settlement plan that was approved by the Federal court.
Now, you can see what happened with the map that was produced at the "fairness hearing".
There's no political subdivisions that are even included in this, when you talk about disrespect for political subdivisions.
Here's Tampa Bay.
It's a huge body of water.
Although there's the shoreline which is depicted, it doesn't really reflect which portion of Pinellas County... Pinellas County is over here.
You don't know that because it's not on here.
Unknown Speaker: We can't tell where Tampa Bay is on that map.
Mr. Shapiro: Well, that's the whole purpose of our map.
We have enhanced the map.
Unknown Speaker: We now know where Tampa Bay is.
Mr. Shapiro: This is a rather large body of water.
Now, if... I'm sorry everybody can't see it, but this is... you can now see the contours, for the first time, of the district.
The district is a tiny portion of Pinellas County over here.
I'm referring now to Appendix B of the brief on the merits for the appellants.
This is in--
Unknown Speaker: That's where St. Petersburg is, right?
Mr. Shapiro: --Yes, sir.
St. Petersburg is over here, and that is a portion of Pinellas County, but this is all Pinellas County.
They chose this portion of Pinellas County.
Now, what they did was, they eliminated that part that went over to Polk County, but they retained this at the insistence of the Justice Department.
Now, if you look at this little spit of land here, this was included as well, so it goes all the way across, and if you look back at the plan that was presented to the court, it looks like one contiguous compact piece of land.
Unknown Speaker: But much of that is the lake, is what you're saying.
Mr. Shapiro: Yes, sir.
Unknown Speaker: And you're suggesting that the judges down there didn't know where Tampa Bay was.
Mr. Shapiro: Well, I don't know.
Judge Tjoflat said, well, we assume there's no houseboats there.
That's what he said in... at the fairness hearing.
Well, there are no... they have a lot of fish there, and they don't vote.
But as we... as Mr. Lawyer made clear this is only part of the picture though, the shape of the map and irregular aspect of it.
Unknown Speaker: Is that unusual in Florida, to have a district separated by a body of water?
Mr. Shapiro: Well, it is not unusual to be separated by a body of water, but it's a totally different proposition when there... when a district has to be... a piece of land has to be in some district, say in an island and the Florida supreme court stated this in their original decision.
They said, look, in Florida there's a lot of water, so just because a district encompasses water doesn't necessarily make it noncontiguous.
It's another proposition for the district to artificially reach over this huge body of water for the specific exclusive purpose of including black voters in order to boost the population of the entire district, and that was the exact purpose of the designers of this plan, was to go across at this highly dense black community in Pinellas, where they had been in their own district.
In fact, it's truly emblematic of this case that if you look at 21, whereas under their plan they presented to the court, the number 21 was in yellow, now the two is submerged in water, so it's... so they have jumped across Tampa Bay and taken these counties, which used to be in other districts.
They were in other districts.
Unknown Speaker: But you're not claiming now, as I think was the case in the earlier district, that they put together rural areas with urban areas on both sides of the rivers, or the bay?
Mr. Shapiro: No.
As a matter of fact, that was eliminated, this finger, but when you create a monster, you can cut the fingers off, it's still a monster.
This finger was cut off that led to Polk County, which was rural, but the NAACP opposed the plan of joining Pinellas County over here, because they said there's not even a cohesive black community in the Tampa-Hillsborough area, much less the Pinellas area.
They opposed it.
But what the Justice Department did was, it insisted that in order to create an additional majority district, that they must join the populations.
Unknown Speaker: I thought this wasn't a majority--
Mr. Shapiro: It is not a majority, but the purpose was to create a majority--
Unknown Speaker: --Why did the NAACP oppose it?
What was... why did they think that would harm the interests of the black voters?
Mr. Shapiro: --Because they... they were correct.
This plan... this is striking.
Sixty-four percent of all Pinellas County's blacks are now in plan 386.
Even more, 74 percent of Manatee County's blacks are in the plan, so they bleach... and the NAACP said, look, you re bleaching the surrounding areas of their influence, because you're taking a pocket of black voters, and you're forcing them into that plan where they don't belong.
Now, the Justice Department--
Unknown Speaker: Before you leave that, may I just ask, does the NAACP... are they a party to the appeal?
They don't challenge it now, do they?
Mr. Shapiro: --No.
They are not a party to this appeal, and they were not involved in this litigation.
But when the... here's the point.
When the Florida supreme court considered the idea, at the insistence of the Justice Department, that they cross Tampa Bay to pick up this pocket of black voters, the Florida supreme court in the 601 So.2d copy said, but these... this is not a compact group of black voters.
Unknown Speaker: Mr. Shapiro, let me understand.
Mr. Shapiro: Yes.
Unknown Speaker: --You're talking about the NAACP opposition to the plan that the Florida supreme court adopted, the one that we saw before with the finger--
Mr. Shapiro: That's correct.
Unknown Speaker: --and that was a concern with packing into that district, right?
Mr. Shapiro: This plan, that's correct.
Unknown Speaker: But we have nothing to say that the NAACP opposes the plan that the--
Mr. Shapiro: No.
Unknown Speaker: --court approved, that the Federal court approved.
Mr. Shapiro: No, we don't.
But those comments that they made before the Florida supreme court are directly relevant to this case, because they said... they said to the court they objected to any plan... any plan which would cross Tampa Bay and join these populations.
Unknown Speaker: But they objected because to do so was packing.
Mr. Shapiro: That's correct.
Unknown Speaker: And if the packing is now less, I don't know that it follows that they still find it objectionable.
You've only got... your district is what, 30-some-odd percent black now?
Mr. Shapiro: It's 36-percent black.
Unknown Speaker: So I don't know that there... I don't know that we can infer that there's... that they would still object, when in fact they have not done so.
Or that it makes any difference whether they object or not.
Mr. Shapiro: I'm just pointing that out to say that there was a substantial... that the Florida supreme court was saying, we do not believe that we're obeying our traditional neutral districting principles by doing this, but we're doing it because under duress of the Justice Department--
Unknown Speaker: I'm sorry to get you into this, Mr. Shapiro.
Mr. Shapiro: --Yes, sir.
Unknown Speaker: I was just curious.
You shouldn't waste a whole lot of your time on it.
I was just curious as to--
Mr. Shapiro: No, of course.
Unknown Speaker: --why the NAACP would seem to be on the other side of this.
Mr. Shapiro: Okay.
Unknown Speaker: I understand it now.
Well, could you explain what your position here is?
You say you never consented to this final plan--
Mr. Shapiro: That's correct.
Unknown Speaker: --386, and--
Mr. Shapiro: We never consented to it.
Unknown Speaker: --that you've never agreed with it, and that you did not get relief at the State level, and you assert that the plan, 386, violates this Court's constitutional standards.
Mr. Shapiro: That's correct, and it does so for several reasons.
Number 1, this was called a hybrid consent decree.
That's what the majority of the court called this.
The notion of the consent decree, however, is you have to have consent.
Unknown Speaker: And your client did not consent.
Mr. Shapiro: That's correct.
Unknown Speaker: Although was a party below.
Mr. Shapiro: That's correct, and he objected to it.
He objected ad nauseam to 386, and he insisted upon an adjudication that 330 be declared unconstitutional.
What the court did was, instead it made a conscious decision that instead of actually adjudicating 330 unconstitutional, that it would submit the matter to mediation, and the purpose of the mediation was to allow the parties to come up with a remedy or a substitute plan.
The problem is, that does an end run around the Florida legislature, which in the traditional cases that this Court has said over and over and over, including Miller, this Court has said it's the province of the State legislature--
Unknown Speaker: But is it not true that if there had been a finding of violation, and then after hearings the court had imposed this plan, you would still make precisely the same objections you're making now?
Mr. Shapiro: --Absolutely.
Unknown Speaker: But... so if you win... well, you started by saying this is not a good plan, the new plan.
You win or you lose.
So if you win that's--
Mr. Shapiro: If I--
Unknown Speaker: --So if you win that's--
Mr. Shapiro: --in the way it was done.
Unknown Speaker: --I under... let's... suppose--
Mr. Shapiro: I'm sorry.
Unknown Speaker: --Suppose we were to say that this new plan violated the Constitution... you know, the cases we've held... you'd win and that would be the end of it, right?
Mr. Shapiro: Yes, sir.
Unknown Speaker: All right.
Now suppose we were to say the opposite, that you lose if this plan's okay constitutionally.
Now, is that the end of this case as far as you're concerned?
Mr. Shapiro: I would take the position that Mr. Lawyer... that's a complicated question, because in a usual consent--
Unknown Speaker: No, I mean, because you could say now that this is what you really wanted.
You wanted an adjudication of whether this plan is good or bad.
Mr. Shapiro: --That's right.
Unknown Speaker: And that would eliminate a whole set of complex procedural issues.
Mr. Shapiro: It--
Unknown Speaker: So what I think you're going to say is no, that isn't the end.
Mr. Shapiro: --No.
Unknown Speaker: Okay.
Now, if that isn't the end of it, why not precisely, because now what you're doing is, you're attacking the procedure, so even if this is a good result, the procedure was wrong.
Mr. Shapiro: That's... it's wrong on both counts.
The procedure was wrong because the footprint of the Federal judiciary, in this case the district court, was put on the process and a coercive order was entered without any adjudication.
Unknown Speaker: All right.
Now, my question on that is this.
Suppose the four people, Mr. Scott, Mr. Hargrett, Mrs. Simms, and Mr. James, and your client, five people... now an imaginary case... an imaginary case.
Those five people sue somebody for something.
Mr. Shapiro: Yes, Your Honor.
Unknown Speaker: And they want an injunction, and now--
Mr. Shapiro: From the court?
Unknown Speaker: --Yes.
They want... I'm just making up a case.
Mr. Shapiro: Okay.
Unknown Speaker: They sue somebody.
Mr. White they sue, okay, and they say, Mr. White, you're doing a bad thing here, and he says no I'm not, and now they say, four of the five, not your client but the other four say, we'll settle.
White says, I won't settle if I have to admit I was wrong.
We won't make you admit it.
So four of them settle with Mr. White, and the judge then simply enters a decree embodying their settlement which doesn't admit liability.
Mr. Shapiro: Yes.
Unknown Speaker: Common, garden variety, every day of the week.
The fifth person doesn't agree.
Mr. Shapiro: Yes, Your Honor.
Unknown Speaker: Well, I can understand why the fifth person can attack the merits.
He can say, Mr. White, you're doing a bad thing still.
But I don't understand how that fifth person could object to the fact that the other four have settled with Mr. White.
Mr. Shapiro: The answer to your question is that a nonconsenting plaintiff cannot have substantive issues resolved against them in the context of a consent decree.
Unknown Speaker: Well, doesn't it happen every day of the week that people are in cases where they have 10 plaintiffs, 9 of them settle, the judge looks it over, he says, this is fine.
The tenth one doesn't agree, so the judge says, okay, tenth one, you don't have to agree.
You can maintain your suit, but I'm entering the decree as to the other nine.
Mr. Shapiro: As to the other nine, but Mr. Lawyer lives in 386, and in fact he's the only plaintiff in this case who had standing to challenge 330.
Unknown Speaker: But didn't the district court rule against him on the merits?
Mr. Shapiro: Exactly.
It's a coercive order.
Unknown Speaker: Yes, well--
Mr. Shapiro: They couched it in terms of a consent decree.
Unknown Speaker: --But you've been arguing now for 20 minutes.
You've only got 10 minutes left, and you challenged the decree on the merits, I take it.
Mr. Shapiro: Yes, Your Honor.
Unknown Speaker: Why don't you get to that part of your case?
Mr. Shapiro: I will.
The... 330 itself... 386 was approved by the court.
Now, what our position is on this case is that, as I said, the original district, 330, was never declared unconstitutional, but it was a product of coercion by the Justice Department.
Now, what happened here is--
Unknown Speaker: Why does that bear at all on the validity of the most recent plan, the court-ordered plan?
Mr. Shapiro: --Because... it absolutely does, because the coercive order of a Federal court is based upon adjudication.
A Federal court can only order a remedy where there has been an adjudication, or there has been some admission of liability.
Here, there was never an admission of liability.
Unknown Speaker: Mr. Shapiro, since you are making much of this point, Mr. Lawyer submitted a statement together with Plaintiff Scott and others, a statement of the case, representing to the district court as a result of this Court's decision in the Miller case there are no issues of law to be decided by the court in this matter.
Accordingly, the only issue which would remain for the court to decide at the trial on this matter is the issue of the appropriate remedy.
Now, it seems to me that your first point about how the court has to declare the old district unconstitutional, this is a stipulation that your client joined and said, court, we all agree there's nothing for you to decide but the remedy for this constitutional violation.
Mr. Shapiro: By the remedy he meant how much time... this... how much time the court should give the legislature to decide what the replacement plan would be.
He did not specify that the court should actually decide what the plan should be, so he didn't... he said the remedy, meaning how much time to give the court, how much time to give the legislature.
Unknown Speaker: Accordingly, the only issue for the court to decide at the trial... at the trial... is the issue of the appropriate remedy.
Do you have a trial on how much time to give the--
Mr. Shapiro: There was never a trial period in this case.
Unknown Speaker: --But I'm just reading the stipulation, trying to find out what that means.
One thing it says, there's no issue of law dividing the parties.
There's only the question of the appropriate remedy, and that's for trial.
Mr. Shapiro: What he meant by that was that he... the remedy meaning the court should determine... assuming that there's an unconstitutional district, the court should then determine how it's supposed to act, and it's supposed to act by referring it back to the legislature.
Unknown Speaker: Well, I'm still so confused by your position here.
Do you want this Court to just focus on the fact that--
Mr. Shapiro: No.
Unknown Speaker: --Wait a minute.
You didn't even hear the question, and you've already answered it.
Do you want to hear the question and then answer it?
You appear to be here arguing that the procedure followed by the Federal district court was erroneous because it didn't first find unconstitutionality of plan 330, and furthermore it did not then await an opportunity for the legislature to adopt its own plan, so much of the argument centers on that.
On the other hand, do you have an argument here at all to the effect that, irrespective of that, what the court ended up with by virtue of the agreement of the other parties, other than Lawyer, is itself unconstitutional.
Mr. Shapiro: Yes, I get to that.
Unknown Speaker: Do you get to both of those arguments or not?
Mr. Shapiro: Yes, we do.
Unknown Speaker: I'm just so confused.
Mr. Shapiro: Yes, we do.
What happened in this case, the Court in approving plan 386 did not adequately apply the Miller standards.
They held... instead of determining and applying those... that case very carefully they said, well, 386 is better than 330, so we're going to approve it.
They said that it was benign and statute satisfactorily tidy, because it was better than 330.
That's not an accurate... an adequate application of Miller.
Instead of using the community of interest analysis in Miller in looking at the actual objective evidence in terms of what these communities are, they held... they used a fairness hearing as a referendum and said, well, we're... because we have a fairness hearing and we've put a notice in the newspaper that anybody who wants to contest 386 could come to the court and do that, the court in this case, the district court said, well, nobody showed up and objected to plan 386, so therefore there must be a community of interest.
The statistics of the case are also important.
The statistics are that although 330 had 45 percent black voters of V.A.P., this plan had 36 percent, so that a significant number of black voters were moved from their place over here in Pinellas County into District 21 when they normally would not be there.
There was no... and one of the key aspects is... I know I've harped on this, but in adopting the procedure that the court used of using mediation in a secret sessions to design this plan, in effect there is no report or any evidence of the exact factors that the designers of the plan used.
Miller absolutely mandates--
Unknown Speaker: Wasn't there one point that you had an opportunity to examine the designer of the plan?
Am I right that it was the State Senate's expert that was the designer?
Mr. Shapiro: --Correct.
He... his report went into the record, and I will tell you that Mr. Lawyer was threatened with sanctions in this case if he divulged the contents of the negotiation.
Unknown Speaker: Was he... did he have an opportunity to examine this witness and say--
Mr. Shapiro: Yes.
Yes, he did.
Unknown Speaker: --no, I don't choose to--
Mr. Shapiro: Yes, he did.
He did, but there was... he was permitted to cross-examine the witness, but there was no oral testimony at that... there was no one under oath, there was no oral testimony whatsoever at the fairness hearing, and there were no findings of fact, which is the most critical aspect of this case, really.
Unknown Speaker: --Did Mr. Lawyer have an opportunity to say, I want to call witness X, Y, and Z, I want to cross-examine, and was denied that opportunity?
Mr. Shapiro: He wasn't denied the right to call witnesses, but there... this was not... the judge was asked at the pre-trial conference, is this going to be an evidentiary hearing?
He said, I suppose you could find a judge somewhere who liked to hear evidence, but no, this is not an evidentiary hearing.
So he specifically ruled that this would not be an evidentiary hearing, so to say that Mr. Lawyer had a burden at that hearing to prove the district unconstitutional, or that he failed to--
Unknown Speaker: He was the plaintiff in the case.
Mr. Shapiro: --Yes, but the plan was never properly before the court.
Unknown Speaker: Where was it that he had the opportunity to cross-examine?
Mr. Shapiro: At the fairness hearing.
Unknown Speaker: So there was testimony taken there?
Mr. Shapiro: There was no testimony.
It was a hearing, and it was not an evidentiary hearing, and it's clear that Judge Merryday stated at the pretrial conference this will not be an evidentiary hearing.
Unknown Speaker: Well then, how would he have had a chance to cross-examine him?
Mr. Shapiro: That's the point.
Unknown Speaker: But I thought you said he did have a chance.
Mr. Shapiro: Well, he was given a chance by the judge.
Guthrie, the person for the State, he didn't testify.
He put his affidavit in the record and Judge Tjoflat said, we'll consider that his direct testimony.
If you want to cross-examine him, go ahead.
Unknown Speaker: And your client declined.
Mr. Shapiro: Declined, but that was not an evidentiary hearing, so to say--
Unknown Speaker: Well, it was certainly the next best thing.
Mr. Shapiro: --The next best thing, but he had no burden to prove plan 386 was unconstitutional, because plan 386 was never properly before the court.
Because they did an end run around the legislature, it was never referred to the legislature.
Therefore, to say that he had a duty or a burden at all at that hearing is incorrect.
He had no burden under Miller or anywhere else to prove that that district was unconstitutional.
Unknown Speaker: Was the judge not told by the representatives of the legislature that the legislature just wasn't going to do anything about this?
Mr. Shapiro: Well--
Unknown Speaker: That it had done its thing in the decennial whatever, and that the article of the Constitution that you cite didn't apply except at the 10-year redistricting?
Mr. Shapiro: --Everybody, including the Attorney General of the State of Florida, expected, and stated to the district court, that the State legislature had the right to convene.
In fact, the district court was asking for status reports.
But the fact is that the State legislature never had to... it was never triggered, a special session, because there was no adjudication that the original district was unconstitutional.
Unknown Speaker: I took what went on as simply an indication that at least unless and until the extant district was declared unconstitutional, the legislature, simply because of the existence of a lawsuit, had no intention of creating a new district.
Mr. Shapiro: Exactly.
What the court was saying was, because of Miller v. Johnson for the U.S. Supreme Court, we note that the Florida legislature has not spontaneously convened itself to rectify the situation.
Unknown Speaker: But aren't those matters of State law?
I mean, whether or not the State--
Mr. Shapiro: No.
Unknown Speaker: --Whether or not the State of Florida has the legal power to agree with the court to change its district with these representatives present or not would seem a question of State law.
I don't see what's the question of Federal law.
Mr. Shapiro: Because this Court has made clear repeatedly that this is a matter that is to be reserved for the States in the first instance.
Unknown Speaker: If, in fact, the court introduces a decree agreed upon by our four plaintiffs and their defendant, Mr. White, whether Mr. White has the power to make that agreement to the decree is a matter of Mr. White, a matter of the State.
Why is it Federal?
Mr. Shapiro: It's Federal because the Court has made clear that this is a matter which is to be resolved first by the State.
It's a U.S. constitutional issue of Federalism.
It's a Federalism issue that Mr. Lawyer had a right to have his State legislature make that decision in the first instance as a matter of Federalism, but also--
Unknown Speaker: I think you've answered the question, Mr. Shapiro.
Mr. Shapiro: --Thank you.
Unknown Speaker: Thank you.
Argument of Richard G. Taranto
Mr. Taranto: Mr. Chief Justice, and may it please the Court:
The equal protection holding of the district court should be affirmed, we suggest, because there's ample evidence to find, under this Court's recent decisions, that race did not predominate over, did not subordinate other districting principles in the design of plan 386, and the Court should find no Federalism problem here because the district court, acting only after giving the legislature an opportunity to convene, then properly allowed authorized State officials to resolve the serious Federal claim here by proposing a lawful districting plan, giving appellant an opportunity to challenge the lawfulness of that plan--
Unknown Speaker: Did the court below ever enter an order saying, and I hereby give 60 days or 90 days or something in which the legislature can act, or did he just accept somebody's statement that the legislature wasn't going to be called into special session?
Mr. Taranto: --I think it's a combination of those.
In July of 1995, after this Court decided Miller, there was a status conference at which everyone recognized this claim had now become substantially more risky than it had been before.
Part of what the district court did was to enter an order directing the State parties every 30 days to file a piece of paper in the court saying whether the State legislature would be convened to address what was now recognized to be a serious Federal claim.
Unknown Speaker: What had not yet been adjudicated to be an unconstitutional district.
Mr. Taranto: --That's right.
Unknown Speaker: It's uncontested, is it not, that the legislature had no opportunity, after this Court had determined that the district was unconstitutional and therefore could not be used, to adopt on its own a new district?
Mr. Taranto: This Court... the court did not determine that plan 330 was unconstitutional.
Unknown Speaker: So why should the legislature adopt a new district--
Mr. Taranto: Because--
Unknown Speaker: --unless and until the court does that?
Mr. Taranto: --Because I think the legislature, represented by the Speaker here and the President of the Senate and the Attorney General, was fully aware that there was a serious risk of invalidation.
Unknown Speaker: But legislatures don't enact new legislation just because there's a serious risk, and some of the members of the legislature did not think that these individuals had the authority to commit the legislature to a whole new districting plan.
Mr. Taranto: Well, I don't think there's any thing in the record--
Unknown Speaker: There's a letter in the record from one Senator, isn't there?
Mr. Taranto: --That letter was not in the record.
It was rejected because it was improperly filed, and had that issue ever been joined, which it has never been joined, there is plenty of evidence that we would have submitted had the issue ever been raised, to support the authority.
Unknown Speaker: No, I think--
Mr. Taranto: That authority has not been questioned.
Unknown Speaker: --I think there is a serious burden on whoever is taking the word of a couple of members of a State legislature that the State legislature as a body concedes to redistricting for the State.
I think there's an enormous burden to show that that representation that they can speak on behalf of the legislature is true, and even if there is nothing else in the record, I cannot imagine approving a Federal judge's acceptance of the Majority Leader's statement just on its face.
Mr. Taranto: It was not simply submitted on its face.
Exactly the same statements were made to the Florida supreme court after preclearance was denied to the original plan that the legislature would not convene, and therefore judicial action was going to be required.
Unknown Speaker: I'm not talking about the statement that it would not convene.
I accept that.
I'm not surprised that it would not convene.
Its prior plan was still constitutional as far as it knew.
I'm talking about the assertion that I and one other person have the authority on behalf of the entire legislature of Florida to agree to redistricting of the State.
That's an extraordinary assertion.
Mr. Taranto: Your Honor, I don't think it's extraordinary.
I think State parties are defendants in Federal courts all of the time.
It is a matter of State law what authority they have through whoever the party is to settle litigation.
We've cited in our brief a number of authorities to show that the Florida authorities, including the Attorney General and the State parties, the State legislative parties, did have that authority, and that has never been contested here.
The district court here took great care to assure itself that it was not allowing itself to be used to usurp authority.
Unknown Speaker: Well, I think it is one thing to settle litigation.
That is, to agree on behalf of the legislature that the State will not oppose the judicially... the judicially imposed districting.
That's one thing.
But what is being asserted here is that this is not judicially imposed districting, that this is districting that was, in fact, expressing the will of the Florida legislature, which to my mind is an important thing if the prior district was never declared unconstitutional.
Mr. Taranto: I think what's going on here is that there is... by the time the summer of 1995 comes around there is a very serious Federal challenge.
Authorized State officials I don't think are required or should be stripped of the authority to resolve that litigation voluntarily as other defendants can resolve their Federal claims.
That seems to me to turn Federalism principles upside down.
Consent decrees are routinely... customarily, as this Court said in Maher v. Gagne, entered without liability findings against State defendants and it would, I think, strip them of an important authority--
Unknown Speaker: Would the State parties, as you understand State laws, have had authority to concede that the Senate-approved plan... that the legislatively approved plan was unconstitutional?
Mr. Taranto: --Would have had authority, yes, as... litigating authority, absolutely.
Unknown Speaker: They did not make that concession, however.
Mr. Taranto: They did not make that concession.
And the issue--
Unknown Speaker: You--
Mr. Taranto: --The issue in the district court was never pressed whether, had Judge Tjoflat's view prevailed that the court had agreed that a liability judgment had to be entered, whether we would have accepted that as a condition to the entry of the remedy.
That issue was simply never presented.
Unknown Speaker: --Well, frankly, looking at the series of maps, it didn't strike me as terribly important if we were to say the district judge should have found the plan 330 unconstitutional before deciding which plan to adopt, and if it went back, the court could probably make that finding.
It is a most unusual-looking district--
Mr. Taranto: When I--
Unknown Speaker: --and chances are the court would say plan 330 was unconstitutional, therefore I have to adopt a plan, and the plan I'm going to adopt is 386.
Mr. Taranto: --When I say that the issue was not joined, the State appellees are prepared to accept and were prepared to accept back in November 20... November 20, a judgment entering a finding of liability without conceding the constitutional issue.
It was not pressed at the point, and not necessary, so we would accept an affirmance under Judge Tjoflat's route.
What we do think is that this district, the 1995 district, is constitutional under this Court's standards, and all of what I think this Court said last term in the Bush case and the Shaw case indicates that there is a variety of evidence that bears on that question.
Here, the evidence is partly what there is, and partly what there isn't.
What there isn't is any block-by-block separation of races.
What there isn't--
Unknown Speaker: Well, if there were a party, as there appears to be here, to the proceedings below who didn't consent, is that party entitled to an evidentiary hearing before the district court says yes, I'm going to go with 386?
Mr. Taranto: --Absolutely, and he got it.
He was invited to put on evidence.
The reference to--
Unknown Speaker: Did the court say this is not an evidentiary hearing?
Mr. Taranto: --Absolutely not.
He's taking one quote--
Unknown Speaker: That's wrong?
Mr. Taranto: --That's wrong.
Unknown Speaker: That's not in the record?
Mr. Taranto: That is not in the record.
He's referring to a statement at the end of the November 2 status conference in which the Justice Department attorney said, I'm a little confused, Your Honor, about how you want to handle the hearing that's coming up.
Do you want us to put on oral evidence?
And the judge said, I suppose somebody, some judge here wants to hear oral evidence, and what happened was of course that all of the affirmative evidence of the State was put on in writing.
What happened then was that Mr. Lawyer was invited several times, put him on the stand and cross-examine him.
Ask him what his instructions were.
Unknown Speaker: And the court never said this will not be an evidentiary hearing?
Mr. Taranto: --Never said this will not be an evidentiary hearing, and at the hearing--
Unknown Speaker: Counsel here has just misrepresented flatly that the statement--
Mr. Taranto: --He's taking one quote that was addressed to the Justice Department lawyer--
Unknown Speaker: --Did the quote say this will not be an evidentiary hearing?
Mr. Taranto: --No, and I don't even think that the quote as he quotes it says it.
Unknown Speaker: Well, in any event his client was offered a chance to cross-examine.
You know, most people would think of that as an evidentiary hearing, I gather.
Mr. Taranto: Absolutely.
He said that... the man who sat down with the computer, he has said in writing what he did.
Put him on the stand.
Ask him what his instructions were, what your data were, did you use race as a proxy for, or disproportionately... do you have more racial data than nonracial data, as in the Texas case?
Did you try to draw things block-by-block?
What's your information about what's inside the district and what's outside the district?
Do the people who live along the coast own boats?
Are they the same socioeconomically as the people who live between the freeways here?
Unknown Speaker: Did the court indicate--
Mr. Taranto: None of that was done.
Unknown Speaker: --Did the court indicate in this hearing that there would be any restrictions on the matters as to which Mr.... the appellant could inquire?
Mr. Taranto: Yes.
The one restriction that was pressed by Judge... Chief Judge Tjoflat was a restriction about asking... about putting the Justice Department attorney on the stand and that, I think, is actually a perfectly proper discretionary evidentiary ruling.
There is a general rule that says you don't make a lawyer a witness in the case absent compelling need.
Before you've examined the man who drew the district, before you've examined the State officials who actually negotiated, you couldn't possibly show a compelling need, and there was no showing of that sort by appellant.
Appellant was allowed to submit statistics, allowed to submit a different plan, allowed to submit his own maps, some of these maps... he was invited to put on any evidence he had and under, I think, this Court's decision in Local 93, it is very clear that once the other parties to the case agreed on a decree, that couldn't... that by itself couldn't adjudicate his rights, but he had an opportunity to adjudicate his claim that this district was unlawful.
And I think this district cannot be found unlawful.
It is not a safe minority district.
It is... geographically and economically shares a real community of interest.
There's plenty of evidence to that effect.
There... this is not a district that had the kind of process flaws of either being dictated by the Justice Department... this was negotiated in a wideranging discussion, including appellant's coplaintiffs who after the fact came in and said, this is not a district that is race-based.
Unknown Speaker: Mr. Taranto, I'm prepared to accept your analysis as far as whether the district, had it been adopted by the legislature, would be unconstitutional.
My problem with this case is, I think it's a serious matter to say that when the Florida legislature as a whole has not been put on notice that its existing districting is unconstitutional, and has not been given an opportunity after that notice to itself draw a district... which might have been like this, but then again it might not have... it isn't enough for me that this district be constitutional.
I also would like it to be the district that the voters of Florida wanted to the extent that the Federal court could have given them an opportunity to select it.
Mr. Taranto: Your Honor, I don't agree with that rule, because I think that the proper Federalism rule in this context is one that leaves it to State law what officials have the authority to engage in what kind of settlement of litigation, and that's what is undisputed here.
These State officials--
Unknown Speaker: Mr. Taranto, is there anything in the decree that would prevent the Florida legislature today from redefining the district?
Mr. Taranto: --No, not at all.
Appellant is free to contact any Senator or--
Unknown Speaker: Is there anything in the record indicating objections on the part of legislators to this action?
Mr. Taranto: --The following is either in or was attempted to be gotten in the record.
There was this one letter that Justice Scalia referred to from one Senator who sent a letter ex parte to each of the three judges, one of which was returned under the order of the court, and he said I don't think the Senate can represent... can speak this way in litigation.
Otherwise, there is nothing on that issue.
There is a public comment from the former Senator at this hearing, the former Senator of this district, objecting to the plan.
Unknown Speaker: Was there an inquiry by the court?
Did the court... on what did the court base its assurance that it had the authority to accept this as the will of the Florida legislature?
Mr. Taranto: Well, several things.
The briefing that was submitted in support of the plan, the particular... I think the fullest brief was by the United States... cited the State statutory authority as interpreted in various decisions giving the Attorney General the authority to resolve litigation.
There's an affidavit in the joint appendix from the Speaker of the House citing the House rule that specific--
Unknown Speaker: So you didn't even need the Senators.
It would have been enough to have the Attorney General?
The Attorney General could redistrict the State, or could agree to it?
Mr. Taranto: --I think as a matter of Florida law that is probably correct.
I think as a district court is being asked to enter a decree that resolves a serious claim, and puts in place a new plan subject to any change that the legislature wants to make, it needs to inquire into all the circumstances.
It's a harder case if the House and the Senate both came in and said, we disagree about what should be done.
That's not this case.
Here, all relevant State authorities are speaking with the same--
Unknown Speaker: No... there was that statute.
Now, what else was there besides the statute that gave the Attorney General authority?
Mr. Taranto: --Florida... a Florida decision, in particular the Abramson decision, which we cited in our brief, that says State agencies can violate their State statutes when necessary to settle a serious claim against them.
There is the--
Unknown Speaker: I don't see the relevance of that.
There was no State agency here, was there?
Mr. Taranto: --Well, the State as a party itself is... I think the form of the question is, could it change its State statute by voluntarily settling through the Attorney General a serious piece of Federal litigation?
I think the Abramson decision under Florida law is supportive of that.
There is the affidavit of the Speaker citing and attesting to the authority under the House rule, and then there was a series of representations I think two or three times in which the attorney for the Senate was asked by the court, are you sure that you really have authority to be representing the Senate here and he said, yes, I'm absolutely sure.
I'm absolutely sure.
And had there been a contest about that, there would have been still more evidence in the form of petitions.
Unknown Speaker: Well, is this a matter, though, perhaps of Federal law?
This Court seems to have indicated its position that a district court, before drawing its own plan to replace one that appears to be invalid, or has been found to be invalid, should give the State legislature an opportunity to address it.
Now, could we mean, as a matter of Federal law, that the full legislature should have an opportunity to draw up a plan--
Mr. Taranto: I--
Unknown Speaker: --and that we don't accept the notion that, pursuant to settlement authority, the Attorney General can come in and say, speaking on behalf of the State, we accept this?
Mr. Taranto: --I think that the legislative opportunity was given over the course of several months.
I don't think there was any doubt about--
Unknown Speaker: But it was not given within the context of a finding that plan 330 was invalid.
Mr. Taranto: --That's right, but the price of that rule would be to be... to insist that States in voting rights cases may never voluntarily resolve their claims.
In fact, they do on a number of occasions.
There's a consent decree in the Johnson v. DeGrandy case in--
Unknown Speaker: Well, I can certainly understand that a State and this Court might be willing to accept the notion that the attorneys on behalf of the State could agree that the former plan was unconstitutional.
Now let's go from there.
Is it nevertheless a matter of Federal law that the full legislature be given an opportunity, following that, to adopt a plan?
Mr. Taranto: --Well, I think it is a matter of Federal law that an... a proper opportunity to be given.
I think it's also a matter of Federal law whether there should be a rigid rule saying, you have to have, in this one class of cases, an adjudicated violation.
I think that that, in fact, strips States of an important authority that all other litigants have and doesn't--
Unknown Speaker: Well, of course, the concern expressed by this Court in saying there should be such was a concern on behalf of the States that the Federal court shouldn't intrude and take upon itself the job of drawing a legislative district without finding a good reason for it, to wit, invalidity of what the legislature had put its task--
Mr. Taranto: --But I think--
Unknown Speaker: --its hand to.
Mr. Taranto: --I think it is also a good reason that the Federal claim is very serious, that there is a real... a real risk of the litigation.
It's the same good reason that supports consent decrees without liability in all kinds of other cases against States, including--
Unknown Speaker: Well, this wasn't a consent decree, of course, because we have a petitioner here who didn't consent.
Mr. Taranto: --Insofar--
Unknown Speaker: I mean, it wasn't a consent decree.
Mr. Taranto: --Insofar as the State is concerned, though, it is a consent decree.
It's a consent decree between the four other plaintiffs and the State appellees and the other defendants, and by the way, the reason that is plain in this record for why the legislature was not going to convene has nothing to do with whether there had been an adjudicated violation.
It has to do with a series of political problems in the State that I think Judge Merryday referred to in the October 26 hearing that a whole series of important, contentious vetoes are triggered for override the minute the legislature convenes, and that was not going to happen.
I don't think there was any... that it would have made any difference had there been an adjudication.
The same thing would have happened: thank you for the opportunity; we're not going to do it; we think that this ought to be resolved here.
The only difference, therefore, that we're talking about in this regard is whether this declaratory judgment that plan 330, the predecessor, is invalid, a different... a declaratory judgment that can't possibly make a difference to appellant, who's already had that plan eliminated by court order.
Unknown Speaker: So your position is that, as far as the State legislature and the State itself is concerned, that counsel had a right to waive any finding of unconstitutionality, and they did so, and the State had a right to waive any opportunity to redraw a district, and they did so.
Is that your position, in essence?
Mr. Taranto: Yes, Your Honor.
Argument of Irving L. Gornstein
Chief Justice Rehnquist: Thank you, Mr. Taranto.
Mr. Gornstein, we'll hear from you.
Mr. Gornstein: Mr. Chief Justice, and may it please the Court:
Our position is that the settlement plan is constitutional, and that the district court did not violate any principles of Federalism in approving it.
On the constitutional question, I wanted to make three points.
The first is that the district court applied the correct legal standard in judging the constitutionality of the proposed plan, that it correctly drew from Miller the principle that a plan is subject to strict scrutiny only when a challenger can show that race predominated in the design of the district.
The second point I wanted to make is that district court findings of predominant motive are governed by the clearly erroneous standard of review, so that the district court's finding in this case that District 21 was not predominantly motivated by racial considerations is subject to review in this Court only for clear error.
The final point I wanted to make on the constitutional question is that the district court's subsidiary findings show that its ultimate finding on predominant motive is not clearly erroneous, and those findings are that the district is sufficiently regular by Florida standards to avoid any suggestion that race predominated, that the district includes a genuine community of interest, and that the district affords to any candidate, without regard to race, the opportunity to be elected.
Now, those findings are all supported by the record and are together sufficient to support the district court's ultimate finding that race did not predominate.
On the Federalism question, we think it was entirely appropriate for the district court to resolve the litigation without making a formal adjudication based on the State's consent.
It would... it is one of the principle reasons that parties enter into settlements, is to avoid a formal adjudication, to avoid findings of liability.
Unknown Speaker: Well, but how can it do so as against somebody who didn't consent, to wit, the petitioner here?
How can it avoid some opportunity to have evidence put on and conduct a full inquiry into the validity of plan 386?
Mr. Gornstein: It certainly can have... is required for there to be an inquiry into the validity of 386.
What there was not required was an inquiry into the validity of 330.
Unknown Speaker: Well, but the appellant is in the position of suggesting that there be redistricting, or that the old district be approved, and faces, as the court faces, a difficult task in determining what are legitimate criteria for districting?
What are community interests?
What are legislative preferences?
And it seems to me that the court must exercise its discretion to have before it and to have available to the parties the legislative policies, the legislative determinations as to what legitimate district criteria are, and by not referring this to the legislature and accepting too quickly, perhaps, the representations of State officials, the court and the appellant were deprived of that data, that body of guidelines that are necessary to make appropriate and legitimate districting determinations.
Mr. Gornstein: Well, I think that the legislature did... had ample opportunity to convene, and to legislate a plan if it had wanted to.
It was faced with more than a very serious claim under Miller, and I think everybody in the legislature must have been aware that the Florida supreme court's plan was extremely vulnerable, and still it did not convene in legislative session, and instead what it did is, its authorized representatives, the Speaker of the House and the President of the Senate, are authorized to conduct litigation, and they negotiated a settlement.
Now, the... that settlement says that it shall only--
Unknown Speaker: Your basis for that is?
You can give me no citation of Florida law, at least as far as the Senate is concerned.
Mr. Gornstein: --That's correct.
That was strictly on the basis of a representation made.
That was the determination made.
Unknown Speaker: And on the basis of a representation of one person, the--
Mr. Gornstein: Well, it was--
Unknown Speaker: --The ability of the Senate to participate in redistricting of the State is disregarded by the court.
I'm... I'm worried about that.
Mr. Gornstein: --I... to go on to what the legislative opportunity was here, there were then negotiations.
Nothing prevented the legislature during that entire time that negotiations were ongoing to intervene, convene, and submit a plan.
Then there was a settlement agreement presented to the district court, and that settlement agreement says that this shall only remain into... in effect unless and until the legislature formally enacts a different plan in compliance with Federal and State law, still.
Now, there was remedial hearing held in November.
The district court did not approve this until March.
There was a long period of time in which the legislature knew that if it did nothing there... the district court had before it a proposal that it could resolve at any time to resolve this litigation.
Still the district court did nothing, and it has done nothing since to change the plan even though the settlement itself says that it only remains in effect unless and until the legislature formally adopts a different plan in compliance with State and Federal law.
Unknown Speaker: --Do you agree that Mr. Shapiro erred in stating that the court below at its hearing on 386 said it would not be an evidentiary hearing?
Mr. Gornstein: Let me break that down into two parts.
There is the prehearing before the remedial hearing, and then there is the remedial hearing.
Let me address the prehearing first.
An inquiry was made by the Department of Justice, do we have to submit live evidence or can we introduce it in other ways, and I will quote from that.
Unknown Speaker: This is all people sitting around in the judge's chambers, perhaps, or in open court?
Mr. Gornstein: It's a pretrial conference, and I'm not sure whether it was an open court or not, but I think it probably was.
Unknown Speaker: Are you going to read from the record?
Mr. Gornstein: I am reading, and this is page 31 of the hearing from November 2, 1995, and I don't have the record cite to that.
I apologize for that.
But the presentation that the proponents of the settlement agreement are to lead off with:
Is it the court's contemplation that it be evidentiary in nature?
Should we be prepared to put witnesses under oath?
I think Mr. Hill might have mentioned that he thought it might suffice simply to have lawyers present the plan, but if a full evidentiary presentation is preferred, we would be prepared to do that.
It is a matter of figuring out what the court's preference is so that we can prepare accordingly.
The answer comes, I assume there are some judges somewhere who simply enjoy hearing evidence.
Now, I take that to be a response that the proponents did not have to put on live evidence, that they could rely on the attachments.
I don't take that to be a preclusion of the appellant or anyone else who would have wanted an opportunity to present evidence at that hearing to do that, and I think when we get to the evidence... now, this is in the joint appendix at page 185, at the remedial hearing.
The bottom of the page, Judge Tjoflat says, at the very bottom, Mr. Hill has summarized in effect what is in the record.
There are affidavits in the record.
If you want to examine Mr. Guthrie you're free to do so, or call any witness you want.
I think it was quite clear at the remedial hearing that there was a full chance to put on evidence for the appellant.
Now, if the appellant didn't think... had misunderstood that he was... and thought he didn't have that chance before, he could have said something about that.
He could have said, look, I didn't think that I was going to get that chance.
I need more time.
He didn't say anything like that.
Unknown Speaker: Mr. Gornstein, maybe you can explain something to me about this record, because it does seem that in the beginning the plaintiffs, everybody was trying to settle this.
Everybody agreed that the plan was vulnerable under... the old plan under Miller, and there was the stipulation that I read, and then there seemed at some point there was... this harmony that prevailed about, let's stipulate, let's mediate, broke down, but it's not clear to me how that happened.
Mr. Gornstein: Well, I think Mr.... the appellant in this case was not satisfied with the results of mediation, and--
Unknown Speaker: But going into mediation, everybody was on board.
Mr. Gornstein: --Yes, with the idea that it would be a good idea to mediate.
I think that the rule that there should be no precondition, that there... it will always have to be a liability finding is extremely important in facilitating settlements, and it would disserve the principles of Federalism, we would suggest, to make the States the only parties who could not settle cases without either a formal adjudication or an admission of liability, because when an admission of liability is required, that is going to discourage in many cases voluntary compliance in... with the law.
It is going to discourage States from entering into settlements, because there are consequences to admissions of liability, so that the value of voluntary--
Unknown Speaker: Attorney's fees, I suppose, for one.
Mr. Gornstein: --I think that that would certainly dictate the result of attorney's fees, Mr. Chief Justice.
Chief Justice Rehnquist: Thank you, Mr. Gornstein.
The case is submitted.
Unknown Speaker: The honorable court is now adjourned until Monday next at ten o'clock.