Supreme Court of Florida
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No. SC14-987
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THE LEAGUE OF WOMEN VOTERS OF FLORIDA, et al.,
Petitioners,
vs.
DATA TARGETING, INC., et al.,
Respondents.
[May 27, 2014]
PER CURIAM.
This case is before the Court on an emergency petition for the issuance of a
constitutional writ, filed by the League of Women Voters of Florida, Common
Cause, and eleven individually named parties, who are all plaintiffs in an ongoing
lawsuit challenging the constitutional validity of the 2012 plan apportioning
Florida’s congressional districts under the “Fair Districts Amendments” approved
by Florida voters in 2010 to prohibit improper partisan and discriminatory intent in
redistricting. See art. III, § 20(a), Fla. Const. The Respondents—political
consulting organization Data Targeting, Inc., its president, and two company
employees—are non-parties to the litigation that possess documents that the
Petitioners contend demonstrate “the surreptitious participation of partisan
operatives in the apportionment process,” in alleged violation of the Fair Districts
Amendments to the Florida Constitution.
In consideration of the parties’ arguments, this Court’s case law, and the
importance and statewide significance of this case, and for the reasons that follow,
we grant the petition. Pursuant to our constitutional authority to issue “all writs
necessary to the complete exercise of [our] jurisdiction,” art. V, § 3(b)(7), Fla.
Const., we stay the enforcement of the First District Court of Appeal’s order that
reversed the circuit court and prevented the disclosure or use of the documents at
trial.
Based on the narrow and specific relief requested in the emergency petition,
we determine that the circuit court is not precluded from admitting the documents
into evidence, subject to a proper showing of relevancy, but that any disclosure or
use of the documents must take place under seal in a courtroom closed to the
public. We conclude that this is the only adequate, available remedy to maintain
the status quo during the trial that is currently ongoing, and that there is a strong
likelihood of irreparable harm to the Petitioners if the trial is conducted without the
ability to offer this evidence—and no harm to the Respondents if the documents,
which have already been produced, are admitted in this manner. In fact, this is
similar to the remedy the Respondents themselves originally proposed in the circuit
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court after producing the documents. See Non-Parties’ Motion to Determine
Confidentiality of Court Records at 8, Romo v. Detzner, Nos. 2012-CA-00412 &
2012-CA-00490 (Fla. 2d Jud. Cir. Ct. May 12, 2014). However, in granting the
petition, we emphasize that this opinion is not a determination that these
documents will be permanently under seal or that they are in fact protected by the
associational privilege and should be shielded from the public.
BACKGROUND
The issue presented by this emergency petition for extraordinary writ relief
concerns certain documents in the possession of non-parties to the redistricting
litigation, which are allegedly relevant to the constitutional claims currently being
argued in the trial that is taking place in a Leon County circuit court. After the
circuit court determined that the challenged documents were not privileged, the
Respondents subsequently produced the documents to the trial judge and to
counsel and experts for the Petitioners, although the circuit court directed that the
documents would remain confidential. See Romo v. Detzner, Nos. 2012-CA-
00412 & 2012-CA-00490, Order at 2-3 (Fla. 2d Jud. Cir. Ct. May 2, 2014).
The circuit court stated that it would provide further guidance at a later time
as to how the documents could be used at trial, see id. at 3, which the court then
did in a second order entered two weeks later, in anticipation of the start of the trial
the following week. See Romo v. Detzner, Nos. 2012-CA-00412 & 2012-CA-
-3-
00490 (Fla. 2d Jud. Cir. Ct. May 15, 2014). In this order, the circuit court
determined that the documents themselves were to remain confidential, even “if
offered as an exhibit in witness examination or entered into evidence in the trial of
this case,” but that the proceedings “shall remain open” during use of the
documents by any party at trial. Id. at 3.
Thereafter, in a short ruling that promised a forthcoming opinion explaining
its reasoning in greater detail, the First District reversed the circuit court, stating in
full as follows:
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. See Perry v. Schwarzenegger, 591 F.3d 1147 (9th Cir.
2010). An opinion of this court explaining its reasoning will follow.
Non-Parties, Pat Bainter, Matt Mitchell v. League of Women Voters of Fla., No.
1D14-2163 (Fla. 1st DCA order filed May 22, 2014) (reversing circuit court).
The case cited by the First District in its order arises from the United States
Court of Appeals for the Ninth Circuit and pertains to the First Amendment
associational privilege. See id. (citing Perry, 591 F.3d 1147). The First District
also denied the Petitioners’ emergency motion to stay its decision during the
pendency of the trial. See Non-Parties, Pat Bainter, Matt Mitchell v. League of
Women Voters of Fla., No. 1D14-2163 (Fla. 1st DCA order filed May 22, 2014)
(denying emergency request for stay).
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The following day, the Petitioners filed the emergency petition now before
this Court, seeking to stay the enforcement of the First District’s order precluding
the admission of the documents “so that the trial can be completed with this
evidence, which has already been disclosed to the parties’ counsel and the trial
court, in time for the trial court to fashion meaningful relief before the upcoming
2014 midterm elections.” The petition asserts that these documents are relevant to
the Petitioners’ claims as to the unconstitutionality of the 2012 congressional
apportionment plan because they allegedly indicate that the non-parties worked
with other partisan operatives to submit, through “public front persons,” draft
redistricting maps for the Legislature’s consideration. In other words, the
Petitioners contend that these documents are important evidence for establishing
their claim that there was “a parallel redistricting process” to the open and
transparent one, which was “conducted in the shadows” in an effort to “subvert[]
the public process” and produce a partisan map favoring Republicans and
incumbents in violation of the Florida Constitution.
DISCUSSION
Since the passage of the Fair Districts Amendments, this Court has
considered their impact and the “more stringent requirements as to apportionment”
that they provide in a series of important decisions. In re Senate Joint Resolution
of Legislative Apportionment 1176 (Apportionment I), 83 So. 3d 597, 598 (Fla.
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2012); see also In re Senate Joint Resolution of Legislative Apportionment 2–B
(Apportionment II), 89 So. 3d 872 (Fla. 2012); Fla. House of Representatives v.
League of Women Voters of Fla. (Apportionment III), 118 So. 3d 198 (Fla. 2013);
League of Women Voters of Fla. v. Fla. House of Representatives (Apportionment
IV), 132 So. 3d 135 (Fla. 2013). Indeed, in December of last year, this Court
addressed a claim of privilege concerning the very types of information implicated
by this petition, in a case related to the same ongoing circuit court litigation. See
Apportionment IV, 132 So. 3d at 140-41.
Specifically, in that case, this Court held that even the significance of a
legislative privilege founded on the fundamental principle of separation of powers
must yield to the compelling, competing interest in effectuating the constitutional
Fair Districts reapportionment standards and “ensuring that the Legislature does
not engage in unconstitutional partisan political gerrymandering.” Id. at 148. Our
decision in Apportionment IV, as well as our other recent redistricting cases,
makes clear that 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.
Article V, section 3(b)(7), of the Florida Constitution provides that this
Court may issue “all writs necessary to the complete exercise of its jurisdiction.”
(Emphasis added.) In Roberts v. Brown, 43 So. 3d 673 (Fla. 2010), we explained
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that although the doctrine of all writs is not an independent basis for jurisdiction,
this Court may utilize the constitutional all writs provision as a means of
“preserving jurisdiction that has already been invoked or protecting jurisdiction
that likely will be invoked in the future.” Id. at 677 (emphasis added); see also
Petit v. Adams, 211 So. 2d 565, 566 (Fla. 1968) (providing that this Court may use
its all writs authority if necessary to preserve the status quo and protect this Court’s
ability to completely exercise jurisdiction at a future time).
We have fully considered the First District’s order, the underlying orders of
the circuit court, and the parties’ arguments concerning our jurisdiction. After
careful review, we have determined that the First District’s forthcoming decision
on this issue is highly likely to construe both the First Amendment of the United
States Constitution and the Fair Districts Amendments of the Florida Constitution.
Indeed, in reversing the circuit court, the First District relied on a case holding that
courts are required to consider the importance of the litigation in evaluating
whether information is protected by the associational privilege. See Perry, 591
F.3d at 1161. In this case, this determination is highly likely to require the
construction of not only the First Amendment, but also the Fair Districts
Amendments and this Court’s decision in Apportionment IV, which repeatedly
emphasized the important “public interest in ensuring that the Legislature does not
engage in unconstitutional partisan political gerrymandering.” Apportionment IV,
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132 So. 3d at 148. While we are unable at this time to determine the likelihood
that the First District’s forthcoming decision will expressly affect a class of
constitutional officers, as argued by the emergency petition, we observe that we
previously accepted jurisdiction on this basis regarding a related issue in
Apportionment IV. See id. at 142. In addition, given the statewide importance of
this litigation and the lack of Florida precedent regarding the associational
privilege, we note that the First District may certify a question to this Court in
issuing its forthcoming decision, which would undeniably vest us with jurisdiction
under article V, section 3(b)(4), of the Florida Constitution.
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. See
Amends. to Fla. Rules of Crim. P. 3.853(d)(1)(A) (Postconviction DNA Testing),
857 So. 2d 190 (Fla. 2003) (exercising all writs authority to hold a statute in
abeyance while this Court considered its jurisdiction and other matters in order to
avoid rendering proceedings moot and precluding this Court, should it determine it
had jurisdiction, from the “complete exercise” thereof); cf. Monroe Educ. Ass’n v.
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Clerk, Dist. Ct. of Appeal, Third Dist., 299 So. 2d 1, 3 (Fla. 1974) (noting the
importance of the Court’s all writs authority with respect to “certain cases [that]
present extraordinary circumstances involving great public interest where
emergencies and seasonable considerations are involved that require expedition”).
Accordingly, we hereby exercise our discretion under article V, section
3(b)(7), of the Florida Constitution to issue all writs necessary to the complete
exercise of our jurisdiction, and stay the enforcement of the First District’s May
22, 2014, order reversing the circuit court’s May 2, 2014, and May 15, 2014,
orders, pending the conclusion of the ongoing trial. As specifically requested in
the emergency petition, the circuit court is not precluded from admitting the
documents into evidence, subject to a proper showing of relevancy, but shall
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.
No motion for rehearing will be entertained by the Court. It is so ordered.
PARIENTE, QUINCE, LABARGA, and PERRY, JJ., concur.
LEWIS, J., concurs with an opinion.
POLSTON, C.J., dissents with an opinion in which CANADY, J., concurs.
LEWIS, J., concurring.
I concur with the decision to grant the petition, but write separately to
explain why the exercise of all writs jurisdiction is appropriate here. If the order of
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the First District Court of Appeal, which precludes the disclosure or use during
trial of documents that were determined by the circuit court to be discoverable with
regard to the 2012 redistricting, remains in effect, the trial will proceed without
their admission. Such an outcome will frustrate the fact-finding ability of the
circuit court to determine whether the 2012 redistricting was conducted in a fair,
impartial, and nonpartisan fashion, as required by the Florida Constitution. The
First District has, by preventing consideration of these documents during trial,
jeopardized the stability and integrity of our governmental structure and authorized
those who interact with the Florida Legislature on a critical matter such as
redistricting to operate under a veil of secrecy. This outcome should be most
disconcerting to any supporter of our democratic form of government.
The First District stated that it will issue an opinion to provide the rationale
for the reversal of the circuit court orders. As previously discussed in the opinion
granting the petition, precedent establishes that we possess the authority under the
doctrine of all writs to intervene now and protect the status quo while we
determine whether jurisdiction ultimately exists to review the issue presented.1
The issue is one that impacts the statewide operation of Florida government and is,
therefore, one of paramount importance. In Petit v. Adams, 211 So. 2d 565 (Fla.
1. Indeed, the opinion granting the petition demonstrates it is highly likely
that this Court will have jurisdiction to review the forthcoming opinion by the
district court. See majority op. at 7-8.
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1968), when presented with an electoral challenge that impacted Dade County, the
Court utilized its all writs authority to maintain the status quo where action by a
county canvassing board would have otherwise rendered the proceedings moot:
[I]t is apparent from the disclosures of the petition that it is the
intention of the respondents constituting the Dade County Canvassing
Board to erase the counters on all of said machines beginning at 5
o’clock p.m., Friday, June 7th, unless this Court directs otherwise.
The erasure of such counters would render these proceedings moot
and would in effect prevent this Court, in the event it determines it has
jurisdiction, from the complete exercise thereof.
Upon consideration of the matter and pursuant to Article V,
Section 4(2) which provides “the Supreme Court may issue all writs
necessary or proper to the complete exercise of its jurisdiction,” the
respondents in this cause are hereby directed to refrain from in any
way erasing the results of said second primary election on any voting
machine used therefor in Dade County, Florida until the further order
of this Court.
Id. at 566. More recently, this Court utilized the all writs power to preserve
physical evidence for DNA testing so that two pending emergency petitions related
to the issue could be considered. See Amends. to Fla. Rule of Crim. P.
3.853(d)(1)(A) (Postconviction DNA Testing), 857 So. 2d 190 (Fla. 2003). The
Court explained:
To allow this Court an opportunity to fully consider the
petitions, the deadline of October 1, 2003, set forth in rule
3.853(d)(1)(A), is hereby suspended until further order of this Court.
Further, as petitioners point out, operation of the same deadline in
section 925.11(1)(b)1., Florida Statutes (2002), may result in the non-
preservation of physical evidence for DNA testing under section
925.11(4)(b). Because such a result would render these proceedings
moot and in effect preclude this Court, should it determine it has
jurisdiction, from the “complete exercise” thereof, the deadline in
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section 925.11(1)(b)1. is hereby held in abeyance while this Court
considers its jurisdiction and other matters before it. See art. V, §
3(b)(7), Fla. Const. By our actions herein, we express no opinion on
the merits of the underlying petitions. Accordingly, by operation of
the terms of the statute, the evidence described in section 925.11(4)(a)
“shall be maintained for at least the period of time” controlled by the
abeyance. No other provision of the rule or statute is affected by this
order.
Id. at 190.
While the use of all writs in this manner occurs in only the most urgent of
situations, I cannot think of a situation more urgent than precluding the disclosure
and use of documents during trial to potentially demonstrate that our entire
legislative structure is a façade and was not redistricted in compliance with the
Florida Constitution. Moreover, if the trial proceeds in accordance with the order
of the First District, this issue will become moot due to the time sensitive nature of
the proceedings, and there will be no adequate remedy to correct a possible
manifest injustice. Therefore, utilization of the doctrine of all writs to preserve the
status quo is unquestionably within the parameters of our authority. See id. at 190;
Petit, 211 So. 2d at 566. This is the only way the validity and operation of our
democratic system of government in Florida—and public faith in that system—can
be protected.
Accordingly, I wholeheartedly concur with the decision of the majority to
grant the petition.
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POLSTON, C.J., dissenting.
Because Florida’s constitution does not grant this Court the jurisdiction to
generally weigh in on evidentiary rulings and discovery disputes in ongoing civil
trials, I respectfully dissent. In fact, with today’s decision, this Court effectively
and unconstitutionally usurps the role of the First District Court of Appeal as the
appellate court vested with jurisdiction over this interlocutory appeal of a civil
evidentiary ruling.
The petitioners seek to invoke this Court’s all writs jurisdiction, but before
exercising all writs jurisdiction, this Court must first have an independent basis for
jurisdiction. This is because “[t]he all writs provision of section 3(b)(7) does not
confer added appellate jurisdiction on this Court, and this Court’s all writs power
cannot be used as an independent basis of jurisdiction.” St. Paul Title Ins. Corp. v.
Davis, 392 So. 2d 1304, 1305 (Fla. 1980). In Williams v. State, 913 So. 2d 541,
543 (Fla. 2005), this Court emphasized that the all writs provision of the Florida
Constitution “does not constitute a separate source of original or appellate
jurisdiction. Rather, it operates as an aid to the Court in exercising its ‘ultimate
jurisdiction,’ conferred elsewhere in the constitution.”
Here, the petitioners concede that this Court does not currently have
jurisdiction over this case. The proceedings below involve a dispute over allegedly
privileged and confidential documents and a district court order (and an expected,
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eventual opinion) in the interlocutory appeal of a trial court’s ruling regarding that
dispute. The petitioners and the majority hypothesize about what the First District
might eventually discuss in its opinion reversing the trial court, but such guesses
do not constitute an independent basis for jurisdiction. If the First District, as the
majority hypothesizes, issues an opinion construing the First Amendment to the
United States Constitution or an amendment to the Florida Constitution, then this
Court could eventually choose to exercise its discretionary jurisdiction pursuant to
article V, section 3(b)(3) of the Florida Constitution. However, granting an all
writs petition at this point is improper because an independent basis for jurisdiction
does not currently exist.
The majority quotes Roberts v. Brown, 43 So. 3d 673, 677 (Fla. 2010), and
claims it is granting this all writs petition to “protect[] jurisdiction that likely will
be invoked in the future.” But, unlike this case, there was an independent and
nonspeculative basis for this Court’s jurisdiction in Roberts, namely this Court’s
exclusive jurisdiction over pre-election challenges to constitutional amendments
proposed through the citizen initiative process. Id. at 678 (“The applicability of the
writ of prohibition in this case hinges upon the identical issue that is determinative
of whether the doctrine of all writs applies; that is, the exclusiveness of this Court’s
jurisdiction to consider pre-election challenges to proposed citizen-initiative
constitutional amendments.”); see also United Servs. Auto. Ass’n v. Goodman, 826
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So. 2d 914, 915 (Fla. 2002) (exercising all writs jurisdiction to vacate circuit court
orders that encroached on this Court’s exclusive jurisdiction to adopt rules
pursuant to article V, section 2(a) of the Florida Constitution); Fla. Senate v.
Graham, 412 So. 2d 360, 361 (Fla. 1982) (“Because jurisdiction of the issue of
apportionment will vest in this Court with certainty in this year we have the
jurisdiction conferred by article V, section 3(b)(7), to issue all writs necessary to
the complete exercise and in aid of the ultimate jurisdiction imposed by article III,
section 16(b), (c) and (f).”). Additionally, the First District’s current order is most
akin to an unelaborated per curiam opinion or order merely citing another decision,
and this Court has ruled that it does not have extraordinary writ jurisdiction over
such opinions and orders. See Persaud v. State, 838 So. 2d 529 (Fla. 2003) (stating
that this Court lacks discretionary review jurisdiction to review per curiam
decisions of the district courts that simply affirm with citations to cases not
pending review in this Court, and that extraordinary writs also cannot be used to
seek review of such decisions); see also Dodi Publ’g Co. v. Editorial Am., S.A.,
385 So. 2d 1369 (Fla. 1980), and Jollie v. State, 405 So. 2d 418 (Fla. 1981)
(together standing for proposition that this Court lacks jurisdiction to review per
curiam opinions citing a case not pending review in this Court).
The majority’s action in this case is truly unprecedented. The majority is
simply guessing at what the First District’s opinion will state as the basis for its
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ruling in order to engage in the active trial management of evidentiary rulings that
are subject to the jurisdiction of Florida’s district courts of appeal. Moreover, by
requiring admission of the evidence at issue, rather than a proffer pending review
by this Court of the yet-issued First District opinion, the majority has adjudicated
the opinion not yet written to be in error. In short, this Court has predetermined
appellate error and awarded the petitioners full relief in the trial court by requiring
admission of evidence. Such action does not act to protect this Court’s
jurisdiction; it expands it outside the bounds of the constitution.
Accordingly, I respectfully dissent.
CANADY, J., concurs.
Original Proceedings – All Writs
Mark Herron, Robert J. Telfer, III, and Angelina Perez of Messer, Caparello &
Self, P.A., Tallahassee, Florida; John Stewart Mills, Andrew David Manko, and
Courtney Rebecca Brewer of The Mills Firm, P.A., Tallahassee, Florida; and
David B. King, Thomas Alan Zehnder, Frederick Stanton Wermuth, and Vincent
Falcone, III, of King, Blackwell, Zehnder & Wermuth, P.A., Orlando, Florida,
for Petitioners
D. Kent Safriet, Thomas Roy Philpot, and Mohammad Omar Jazil of Hopping
Green & Sams, P.A., Tallahassee, Florida,
for Respondents
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