The Florida Supreme Court on Friday grilled an attorney representing a political consultant who tried to evade a Leon Circuit judge's efforts to get at the truth in the congressional redistricting process.
For his part, D. Kent Safriet of Hopping Green & Sams in Tallahassee tried to turn his client's situation into an opportunity to challenge two constitutional amendments intended to curb gerrymandering.
Pat Bainter, et al v. The League of Women Voters of Florida, et al came to the court for oral arguments because of Bainter's efforts to keep sealed 538 pages of documents that the League claims would establish a secret, illegal mapping process favoring the Republican Party, which controls the state Legislature.
Redistricting consultants have formed a number-crunching cottage industry. Some experts maintain partisan election outcomes can be determined by mappers to a high degree of certainty long before any voters see a ballot.
While the open records fight was making its way to the court, the trial judge, Terry Lewis, entered an order July 10 finding violations of the Fair Districts amendment and striking down two district boundaries.
News media were barred from Lewis' courtroom during key parts of the hearings. He relied on 35 sealed documents in making his ruling, Justice Barbara Pariente noted. Safriet maintains the documents should remain sealed.
"We can't ignore the reality the judge made certain rulings," Pariente told Safriet. He maintained Lewis' rulings were not specifically dependent on the sealed documents.
Throughout the discovery process, Lewis recalled Bainter and others at his company, Data Targeting Inc., said they were told by legislators that they could not have a seat at the table. Any map drawing on their part was described as a "hobby," something for personal use only, Lewis said.
"What this additional evidence gave the plaintiffs was the ability to confront these denials, to lay bear not only the fact that some of these consultants were submitting maps to the Legislature, but to show how extensive and organized that effort was, and what lengths they went to in order to conceal what they were doing," Lewis wrote.
Ultimately, at least one district map was identical to a map created by Data Targeting.
Ticking down a series of events, Pariente said Bainter was subpoenaed in 2012, appeared for deposition, came to understand the plaintiffs were investigating him for any role he might have had in secret plans. Bainter claimed privilege without explaining which privilege applied.
He later refused to produce any documents unless the court sealed them and the plaintiffs paid a $50,000 deposit. Then he claimed the documents shouldn't come in evidence because they were irrelevant or involved trade secrets. Lewis demanded a privilege log, itemizing each document and the reason for privilege. The first log did none of this, Pariente said in summarizing the litigation.
Only then, 18 months after Bainter was subpoenaed and after he was threatened with contempt by Lewis did Bainter assert a First Amendment freedom of association privilege, Pariente said.
"It looks like a obfuscation of a legitimate discovery request," she said. "This is to me more important—how parties conduct themselves in litigation and whether they are being forthright."
Safriet insisted the documents referred to were "anonymous associational materials" that were not part of the court record. He called them "extra-record" evidence and said the court should strike Lewis' references to them in his ruling and sanction the League of Women Voters for using them.
He went back and forth with the justices over whether Bainter waived his First Amendment right by asserting it so late.
"The waiver of the First Amendment is a federal question governed by federal law," Safriet said.
Even Justice Ricky Polston, who objected to hearing the case at all, argued Bainter did not follow procedure. When responding to a subpoena, he said the typical tactic is to release some documents and withhold others based on an asserted privilege.
The failure to properly assert privilege constituted a waiver of the First Amendment, Polston said.
Safriet argued Bainter didn't provide a more timely and nuanced privilege response because he didn't know which documents to protect. He argued the court should have had a process in place to make it easier for Bainter to pinpoint the requisite documents.
"If we had that as a rule of law, it would throw discovery into chaos," Pariente said.
Pariente said it was ironic that a company named Data Targeting required 18 months to figure out the scope of discovery.
Safriet argued the scope went beyond the intent of the Fair Districts Amendments. He claimed any investigation should be limited to what was done by legislators and not anyone else. If anonymous speech of nonparties is covered by the amendments, they are unconstitutional, he said.
Speaking for the League of Women Voters, John S. Mills of the Mills Firm in Tallahassee asked the court to resolve the dispute without reaching the First Amendment question.
Justice Charles Canady questioned whether citizens have a right to petition the Legislature anonymously even when the intent was to reach a partisan result.
Mills said that was possible, but not in an illegal manner.
"What is illegal? The amendment had to do with the intentions of the Legislature. Your theory has to do with the intent of individuals who secretly under false pretenses submitted something to the Legislature," Canady said.
If the secret meeting is pursuant to a plan prohibited by the Constitution, it's illegal, Mills answered.
The League of Women Voters also is seeking attorney fees as a sanction against the Bainter parties because they claimed they didn't know who drew the maps relied upon by the Legislature when they did.
Adolfo Pesquera can be reached at (954) 468-2616.