Supreme Court questions need for documents secrecy

New Service of Florida | New Service of Florida | 09/19/2014

THE CAPITAL, TALLAHASSEE, September 19, 2014

A lawyer for a Republican political consultant trying to keep out of public view documents at the center of a redistricting lawsuit ran into resistance from Florida Supreme Court justices across the ideological spectrum Friday.

The lawyer's client, Pat Bainter —- whose firm Data Targeting, Inc., has battled for months to keep the documents private —- appeared to be bracing for defeat Friday afternoon, issuing a blistering statement denouncing his perceived enemies.

"The very institutional integrity of the Florida Supreme Court is at stake in this matter," Bainter said.

"The Democrats have manipulated a more than willing legal system to coerce me by legal threat to reveal my private internal political opinions, analysis, expertise and even trade secrets, even though I am neither elected to office nor employed by the Legislature," Bainter said.

Hours earlier, Bainter's lawyer stood before an obviously skeptical Supreme Court, which zeroed in on a variety of potential holes in Bainter's case, including the fact that he waited for several months to claim that releasing some of the documents would violate his First Amendment rights. The documents were requested by voting-rights organizations challenging the state's congressional districts.

The voting-rights groups, which include the League of Women Voters of Florida, argued that the Republican-dominated Legislature drew congressional districts that violated the anti-gerrymandering "Fair Districts" constitutional requirements, approved by voters in 2010.

Justices noted that before Bainter made the First Amendment arguments, he denied having much of a role in redistricting, saying that maps he drew were just a hobby of his. But relying at least in part on the sealed documents from Bainter's firm, Leon County Circuit Judge Terry Lewis ruled in July that GOP consultants managed to taint the redistricting process by submitting maps under the name of another individual.

"It seems like it was an afterthought, that months later someone says, 'Well, wait a second ... we're going to do away with, this was an interest and a hobby of mine kind of thing and now we're going to go to another argument,' " Justice Barbara Pariente said. "That's what concerns me."

Lewis found that a congressional map drawn up in 2012 violated the Fair Districts requirements, which spurred the Legislature to hold a special session last month to redraw lines. The judge signed off on the revised districts, though voting-rights groups have vowed to fight the new map.

While the trial over the congressional map is over, there is still a looming legal battle over the future of state Senate districts. John Mills, an attorney for the voting rights groups, said a Supreme Court ruling in favor of the plaintiffs on the records issue could make the judge overseeing the Senate case more likely to admit documents from Bainter's trove into the new trial.

Even Justice Ricky Polston —- who tends to be one of the more conservative justices on the court —- probed Kent Safriet, a lawyer representing Bainter. And Justice R. Fred Lewis, who forms part of the court's more-liberal wing, got into a brief back-and-forth with Safriet late in the court session, with each man interrupting the other.

"It helps if we can get the question out," Lewis snapped.

Bainter contends the documents, and what they reveal, are protected by his rights to free association and political speech under the U.S. Constitution. He says that would override the Fair Districts standards.

"Amendment 5 and 6 cannot strip citizens of rights to anonymously submit material," Safriet told the court.

But Mills said the documents should not be kept secret, a request joined by a handful of media outlets that have filed a joint friend-of-the-court brief in the case. Mills said Bainter essentially waived his right to challenge a subpoena by waiting too long to do so. Mills also brushed off the suggestion that rights could be diminished by a court ruling in favor of his clients.

"There can't be a First Amendment right to petition the government in a corrupt manner," Mills said.

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