"Foremost among the factors commending the proposed resolution in this action is the consent of Florida's Senate and House . . ."
How later courts described this case
- "Foremost among the factors commending the proposed resolution in this action is the consent of Florida's Senate and House . . ."
- “[P]roposed District 21, like present District 21, is primarily a legislative action and is advanced ... by this court preeminently for that reason” (emphasis added)
- "Plan 386 passes any pertinent test of constitutionality and fairness"
Written by the judges who cited it.
The opinion
TJOFLAT, Chief Circuit Judge, specially concurring:
I concur in the court’s judgment incorporating as a remedy the redistricting plan for Senate District 21 proposed by the Florida legislature because I am convinced of two things. First, District 21, as presently drawn, is the product of racial gerrymandering and thus cannot be squared with the Equal Protection Clause of the Fourteenth Amendment. See Miller v. Johnson, — U.S. -, 115 S.Ct. 2475 , 132 L.Ed.2d 762 (1995); Shaw v. Reno, 509 U.S. 630 , 113 S.Ct. 2816 , 125 L.Ed.2d 511 (1993). Second, the legislature’s proposed remedy is constitutional.
The majority believes that we can enter a final judgment in this case without deciding the threshold constitutional issue because (1) the defendants concede in their Joint Motion to Approve Settlement that “a reasonable factual and legal basis exists for plaintiffs’ constitutional claim,” i.e., a prima facie claim exists, and (2) the defendants have agreed that the remedy the court adopts today is constitutional. The majority ignores the fact that, in their Joint Motion to Approve Settlement, the state defendants insist that they “do not admit liability.”
As the majority acknowledges, the judgment the court enters today is not a consent judgment. See White v. Alabama, 74 F.3d 1058 , 1073-74 (11th Cir.1996). It therefore follows that, to enter the judgment in question, the court must find that District 21 is *1257 unconstitutional. 1 The court can do this without such a finding only if it treats the state defendants’ Joint Motion as conceding the issue of liability. Obviously, in the face of the explicit denial quoted above, the court cannot do that. 2
I would resolve the issue of District 21’s constitutionality on the record before us. The state defendants readily acknowledge the existence of a prima facie case of liability, and they have expressed no desire to contest this point by rebutting the plaintiffs’ case. In short, the evidence in this case has been closed. It is as if we have held a bench trial and taken the case under submission. Accordingly, were I writing for the majority, I would find that District 21 is the product of racial gerrymandering in violation of the Equal Protection Clause.
With respect to the remedy that this court should then impose, I subscribe in full to the majority’s conclusion that the redistricting plan that , the Florida legislature has proposed, and that we adopt today, is constitutional. I therefore concur in the court’s final order.
. A reader of the majority’s order might conclude that my view has changed since the hearing held in this case on November 2, 1995. Such is not the case. I did not participate in the November 2 hearing; that hearing was presided over by Judge Merryday sitting alone.
. The majority seems to read the settlement papers as containing the requisite concession of liability. See ante at 1253 n. 3. I do not agree with such a reading.