Not so fast. The ball has some bounce left. GOP political consultant Pat Bainter has asked the U.S. Supreme Court to stay the order by the Florida Supreme Court over the release of documents in the ongoing redistricting trial.
Florida's high court ruled 5-2 late Tuesday that 538 pages of emails, maps and planning documents of Bainter and his Gainesville-based political consulting firm must be allowed into the record – but only if the courtroom is closed. The ruling came even before a written opinion had been completed by the First District Court of Appeal and Bainter claims the forced disclosure of what he considers "trade secrets" will have a chilling effect on his First Amendment rights.
On Wednesday, Bainter's attorney appeared in trial court and asked that the testimony of Bainter, and GOP political consultant Rich Heffley, wait until next week to give the federal court time to rule. Circuit Court Judge Terry Lewis said no. The Florida Supreme Court's ruling will hold, he said, until he is told to do otherwise.
"If it's not relevant, it’s not admitted,'' Lewis told Kent Safriet, Bainter's attorney. "…Your interest in not having it admitted is not the same as whether something is relevant or not. If somebody doesn't object, they obviously think it's relevant. Whether you think it's relevant or your client thinks it's relevant is not the issue."
Safriet argued in 31-page appeal to the U.S. Supreme Court that disclosing the documents will violate Bainter's First Amendment rights and force him to disclose trade secrets. The information he wants kept from disclosure includes "names, contact information, and internal deliberations" of Bainter and his team as well as their employees, clients, and "other like-minded individuals regarding the redistricting process." Other documents include "data, analysis, and impressions crucial to [Data Targeting's] business as political consultants" as well as "grassroots members" and insight into his direct mail capabilities.
He argued that disclosure would harm Bainter's financial interests because competitors could "pick off" clients and cause irreparable harm. He also suggested that Bainter may be not answer "questions related to these privileged nad confidential materials" and could therefore be held in contempt of court.
"Disclosure of the privileged and confidential documents at trial (regardless of whether the proceedings are temporarily sealed) would chill the Applicants’ ability (along with that of other concerned citizens) to organize and participate with others in an effort to petition their government generally, and participate in Florida’s decennial redistricting process specifically,'' Safriet wrote in the emergency request.
The emergency appeal to the nation's highest court continues what has been nearly two-years of legal battles over the documents held by Bainter, the owner of Data Targeting, a GOP political consulting firm. His lawyers say that he and his partners, Matt Mitchell and Michael Sheehan "are caught in the crossfire through non-party subpoenas and discovery."
The plaintiffs allege that Bainter and his partners conspired with GOP consultants and legislative staff to create a "shadow" redistricting process that attempted to protect incumbents and Republican candidates in violation of the Fair District amendments to the state constitution.
Bainter, whose legal bills are being paid by the Republican Party of Florida, argues that the U.S. Supreme Court should issue an emergency stay "to keep the proverbial cat in the bag" and to preserve his ability to later petition this court if it wants to appeal any ruling out of Florida.
"The Applicants are simply political consultants,'' Bainter's lawyers write. "They align with the Republican Party and conservative causes, and as a result are thus vilified by the Democratic-Respondents. But this does not mean that the Non-Parties conspired to violate the law as Respondents suggest."
In a curious note, the brief claims "the First Amendment Foundation and other news organizations are poised to sue in order to reveal whatever is disclosed at trial based on the Florida Supreme Court’s invitation to challenge the temporarily sealed nature of the proceedings." There has been no brief filed by the foundation or any news organization.
Bainter also argues: "If this information is entered into evidence at trial, waiver of the Applicants’ rights to later argue the privileged and confidential nature of the documents also remains a real threat – especially if the trial court relies on this privileged information to support its judgment in the underlying case."
Safriet clearly is not a fan of Florida's highest court. He writes in a footnote: "To the Florida Supreme Court, legislative intent is like looking for one’s enemies at a crowded cocktail party the Democratic-Respondents’ may cherry-pick testimony from a few, select legislators in an attempt to show an improper intent. But the Applicants are different; they are not legislators; they were not invited to the cocktail party; their intent and internal deliberations are not and cannot be subject to disclosure absent the closest scrutiny."
Finally, Safriet quotes Thomas More in the Man for All Seasons and concludes that the Florida Supreme Court has sided with the plaintiffs in four previous redistricting issues and now ignores "safeguards for protecting trade secrets" because it has decided to "navigate" the "currents and eddies of right and wrong" rather than the "thickets of the law." Download Emergency Application for Stay