“[A] trial court has broad discretion to exercise control over the order of presentation at trial.... There will be no error in changing the order of presentation, so long as the court does not shift the ultimate burden of proof or persuasion to the other party....”
How later courts described this case
- “[A] trial court has broad discretion to exercise control over the order of presentation at trial.... There will be no error in changing the order of presentation, so long as the court does not shift the ultimate burden of proof or persuasion to the other party....”
Written by the judges who cited it.
The opinion
HATCHETT, Judge,
concurring in part and dissenting in part.
I concur in the order as it relates to burdens of proof because I understand it to mean: (1) plaintiffs have the burden of proving through a preponderance of the evidence that the DeGrandy court did not have a compelling interest in drawing the Third District as it exists and did not narrowly tailor the Third District through the use of the least restrictive means; and (2) the change from the traditional sequence of the parties’ presentation of proof at trial is simply for the convenience of the court and neither alters the plaintiffs’ burden of persuasion nor the defendants’ burden of production. See Lisbon Contractors, Inc. v. United States, 828 F.2d 759, 765 (Fed.Cir.1987). Therefore, the plaintiffs bear the burden of proving a prima facie case on all of the essential elements of their case; the defendanVintervenors must produce evidence tending to show that the DeGrandy court had a compelling interest for drawing the Third District as it did and used a means that was appropriate, and ultimately the plaintiffs must persuade the court that they are entitled to relief.
*1583 I dissent in part, however, because I maintain the belief that the majority errs in finding authority for its actions in Shaw v. Reno, 509 U.S. 630 , 113 S.Ct. 2816 , 125 L.Ed.2d 511 (1993) and Miller v. Johnson, — U.S.-, 115 S.Ct. 2475 , 132 L.Ed.2d 762 (1995). See Johnson v. Mortham, 915 F.Supp. 1529, 1558-59 (N.D.Fla.1995) (Hatchett, J. dissenting). Both Shaw and Miller address Fourteenth Amendment challenges to state legislatures’ redistricting plans. It is clear from both Shaw and Miller that the principles flowing from those decisions apply in that context. See, e.g., Shaw, — U.S. at-, 113 S.Ct. at 2819 (recognizing that the case addressed the propriety of race-based state legislation); Miller, — U.S. at -, 115 S.Ct. at 2488 (stating that in assessing the sufficiency of a challenge to a districting plan, courts must be sensitive to the complex interplay of forces that enter a legislature’s redistricting calculus)..
In this case, however, plaintiffs challenge a three-judge federal court drawn plan — not a state legislature’s plan. Therefore, I do not believe Shaw and Miller control this case. The Supreme Court’s treatment of DeWitt v. Wilson, however, provides a more appropriate framework for resolving this matter as that case addressed a three-judge federal court drawn plan. DeWitt v. Wilson, 856 F.Supp. 1409 (E.D.Cal.1994), aff'd in part and appeal dismissed in part, — U.S.-, 115 S.Ct. 2637 , 132 L.Ed.2d 876 (1995).