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

05/22/2014 5:03 PM

05/22/2014 7:25 PM

In a major blow to challengers of the state’s congressional districts, a state appeals court sided with Republican political consultants Thursday in ruling that 538 pages of maps, emails and memos are confidential “trade secrets” that may not be entered as evidence in the ongoing redistricting trial.

The ruling by the First District Court of Appeal was a setback to League of Women Voters and seven Florida voters who are suing the state for violating the law that prohibits legislators from protecting political parties and incumbents when redistricting the state’s congressional boundaries.

The plaintiffs allege that “legislators and staffers collaborated” with political operative Pat Bainter, of Data Targeting, 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.”

Circuit Court Judge Terry Lewis had ordered Bainter to turn over thousands of documents and said that 538 pages could be entered as evidence in the trial. But Bainter’s lawyers, who are being paid by the Republican Party of Florida, said the release of the documents would result in irreparable harm.

They appealed Lewis’ ruling, claiming he had a First Amendment privilege not to release what he considered proprietary information. The appeals court agreed.

Plaintiffs attorney Mark Herron said Thursday that the legal team for the voters’ coalition has not decided whether or not to appeal the decision to the Florida Supreme Court.

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

The three judges who signed the ruling, Joseph Lewis, Simone Marstiller and Scott Makar, were each appointed by Republican governors — Jeb Bush, Charlie Crist and Rick Scott.

The ruling came on the fourth day of the landmark trial in Leon County in which plaintiffs have been trying to show that legislators violated the constitutional redistricting rules by allowing Republican consultants to coordinate map-making and “undermine the public redistricting process.”

House Speaker Will Weatherford and Senate President Don Gaetz, who were in charge of the 2012 redistricting efforts, were called this week to testify under oath for the first time, and acknowledged that they met privately to work out their differences and reach a deal on the congressional map. Plaintiffs say that the map, which was adopted by lawmakers, favors incumbents and benefits the Republican Party.

Kirk Pepper, a top aide to state Rep. Dean Cannon who was House speaker during the map-drawing session, testified Tuesday that he provided congressional maps to Republican political consultant Marc Reichelderfer weeks before they were made available to the public. House Redistricting Committee Staff Director Alex Kelly testified Thursday that he turned over numerous maps 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 start of the redistricting process.

Republican political consultant Rich Heffley, a close Gaetz adviser, is scheduled to testify Friday. Court documents show Heffley was paid more than $100,000 by the Republican Party to provide redistricting advice and was a liaison between mapmakers at Republican Party headquarters and legislative staff.

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

Last fall, Lewis 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 pages of documents 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. The DCA stayed that order earlier this week and the plaintiffs have been unable to refer to the documents during cross-examination of witnesses.

Bainter’s lawyers argued that disclosure “would tear at the very fabric of the First Amendment that views ‘[a]nonymity [as] a shield from the tyranny of the majority.”

Attorneys for the plaintiffs rejected that argument, saying the documents “are not subject to First Amendment protection and certainly do not constitute trade secrets.’’

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