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Appeals court rules that secret documents may not be made public in redistricting trial

The First District Court of Appeal in Tallahassee sided Thursday with Republican political consultants and ordered that 538 pages of their documents may be considered confidential “trade secrets” and should not be entered as evidence in the pending trial over the state's congressional districts.

The ruling came on the fourth day of the 12-day trial g in Circuit Court in Leon County and reverses a ruling by Judge Terry Lewis who had ordered that the documents of GOP consulting company, Data Targeting, and its owner Pat Bainter could be made public if entered as evidence.

The League of Women Voters and seven Florida voters are suing the state for violating the state law that prohibits legislators from protecting political parties and incumbents when redistricting the state.

Attorneys for the plaintiffs had planned to use the documents to argue that Bainter and his staff partners, Matt Mitchell and Michael Sheehan, “surreptitiously participated in the process of preparing the 2012 Congressional Plan,” which they contend unfairly benefits incumbents. 

"The orders of the lower tribunal entered May 2, 2014, and May 15, 2014, are REVERSED to the extent the orders permit any degree of disclosure or use at trial of the constitutionally-protected contents of the privileged and confidential documents that are the subject of those orders," a three-judge panel in its one-page ruling. An opinion will be forthcoming. 

The three judges that signed the ruling, Joseph Lewis, Simone Marstiller and Scott Makar, were each appointed by Republican governors (Bush, Crist and Scott.) Here's the ruling:   Download DCA ruling 52214

Plaintiffs attorney Mark Herron told the Herald/Times on Thursday that have not decided whether or not to appeal the decision to the Florida Supreme Court. The plaintiffs said they have already been hamstrung by a ruling earlier this week that ordered them not to discuss the confidential documents. 

"We are considering and assessing all our options and it may take us a day or two to decide,'' Herron said. He added that the plaintiffs were prepared to go to trial with or without the documents.

During a break in the trial late Thursday, lawyers for the House and Senate were beaming with smiles after the DCA ruling, but repeated their comment that they have no position on the issue.  

The lawyers for Bainter, who are paid by the Republican Party of Florida, asked the First DCA to either reverse Lewis' order or close the courtroom if witnesses were examined about their documents. 

The parties have been fighting for more than a year over whether the emails between legislators, staff and the political consultants should be kept secret.

Lewis last fall appointed a special master, Major Harding, a former Florida Supreme Court justice, to review 1,833 pages of documents. He concluded the documents could remain secret but Lewis conducted a separate review and decided that 538 of them were relevant to the case and should be disclosed.

Bainter’s lawyers then asked Lewis to clear the courtroom if the documents are introduced during trial, claiming the release of the proprietary documents would result in irreparable harm.

"... disclosure of the lists of people with whom the Non-Parties [Bainter and partners] associate – their names, contact information, and sometimes controversial views – would tear at the very fabric of the First Amendment that views '[a]nonymity [as] a shield from the tyranny of the majority,'" Bainter’s lawyers wrote.  Download Bainter et al May 15 appeal

Lewis rejected those arguments and refused to order the courtroom be cleared, prompting Bainter's lawyers to appeal to the First DCA.

The plaintiffs lawyers have been trying to show the court that the Republican consultants "were involved in coordinated efforts to undermine the public redistricting process and thereby influence the 2012 Congressional Plan."

House Speaker Will Weatherford and Senate President Don Gaetz acknowledged under oath this week that they met privately with legislative staff to work out their differences in the congressional map. Kirk Pepper, a House aide, testified he provided congressional maps to Republican political consultant Marc Reichelderfer weeks before they were made available to the public and House Redistricting Committee Staff Director Alex Kelly testified Thursday that he turned over numerous map to Pepper, at Pepper's request.

Kelly also said Weatherford authorized him to go to a meeting with the political consultants at the Tallahassee office of GrayRobinson, the House's legal counsel, before the map-drawing process started.

The plaintiffs allege that "legislators and staffers collaborated with Petitioners [Bainter] and other partisan operatives to conduct a separate redistricting process that was not only apart from the public process – but actually perverted the public process itself.”

Lawyers for the legislature counter that the challengers can provide no evidence that the behind-the-scenes meetings or influence of consultants violates the constitution because, they claim, they cannot prove legislative intent.  

“These documents are not subject to First Amendment protection and certainly do not constitute trade secrets,’’ lawyers for the citizens coalition argued. Download Plaintiffs response to show cause

Lawyers for the legislature counter that the challengers can provide no evidence that the behind-the-scenes meetings or influence of consultants violates the constitution because, they claim, they cannot prove legislative intent.