The ping pong over secret redistricting documents ended Tuesday as the Florida Supreme Court ruled that 538 pages of emails, maps and planning documents of a GOP political operative must be allowed into the record in the ongoing redistricting trial – but only if the courtroom is closed.
The 5-2 ruling by the state’s high court was a victory for the voters groups who are challenging the congressional maps drawn by the Legislature and alleging that a “shadow” redistricting process was conducted by political consultants and operatives in an attempt to unconstitutionally influence the legislature’s drawing of the 2012 maps.
But the ruling was also a triumph for Pat Bainter, and his company Data Targeting, who sought to have shield his confidential conversations from the public. Trial court Judge Terry Lewis had ruled that Bainter’s documents could remain confidential unless they were entered as evidence in the trial but the First District Court of Appeal reversed that decision and ordered the documents to remain sealed.
The plaintiffs in the case, led by the League of Women voters, asked the high court for an expedited review and argued, in briefs that were kept under seal, that the documents should be opened and allowed in court.
Because the case is ongoing and the justices have not had time to determine whether the documents should be allowed in public, the justices ordered Lewis to “maintain the confidentiality of the documents by permitting any disclosure or use only under seal of the court and in a courtroom closed to the public.''
The ruling protects Bainter in the event any documents are deemed “trade secrets” as his lawyers argue but also allows the trial to continue. The trial is in its second week and faces a tight deadline of next Wednesday for completion.
The First Amendment Foundation and some news organizations are reviewing the ruling to decide whether they will take a position on the issue.
"This litigation is unique because it impacts the statewide operation of government and the validity of Florida’s current system of government through the alleged unconstitutionality of the 2012 apportionment plan,'' the majority wrote in the opinion signed by Justices Barbara Pariente, Peggy Quince, Jorge Labarga and James E.C. Perry. Download Sc14-987
Justice R. Fred Lewis concurred with an opinion. Justices Ricky Polston and Charles Canady dissented, with an opinion.
The high court decision came even before the appeals court released its written opinion. The court had ordered the documents sealed late in the day on Thursday but was expected to make its findings and determine the rule of law in a written opinion that has not yet been issued.
Polston blasted that order of events as “truly unprecedented” and chastised the majority as “simply guessing at what the First District’s opinion will state as the basis for its ruling in order to engage in the active trial management.”
He also accused the court of unconstitutionally pre-empting the appellate court.
“In short, this Court has predetermined appellate error and awarded the petitioners full relief in the trial court by requiring admission of evidence,’’ Polston wrote.
Polston also noted that "Florida’s constitution does not grant this Court the jurisdiction to generally weigh in on evidentiary rulings and discovery disputes in ongoing civil trials."
The majority noted that the "statewide importance" of the litigation and the "lack of Florida precedent" regarding the secret documents, made it likely that that the appellate court would have referred the issue to the high court.
"In order to maintain the status quo during the ongoing trial, preserve this Court’s ability to completely exercise the eventual jurisdiction it is likely to have to review the First District’s decision, and prevent any irreparable harm that might occur if the Petitioners are prevented from using the challenged documents, we conclude that we must grant the petition and stay the enforcement of the First District’s reversal of the circuit court, pending the completion of the trial,'' the court concluded.
The ruling will create some challenges for Lewis, who has allowed the trial to be broadcast daily on public broadcasting’s The Florida Channel.
Lewis was told of the ruling and the potential for a closed courtroom at the end of the redistricting hearing on Tuesday. “I wasn't about to close it without someone telling me," he said.