Call it the Thursday afternoon surprise. Out of nowhere, the Florida House Judiciary Committee produced legislation that would grant state legislators and their staffs absolute protection from being required to testify or produce documents in civil court cases. The committee approved it along generally partisan lines, and now this dangerous four-page bill appears headed straight to the House floor with just three weeks left in the legislative session and no public scrutiny. There is no need for this blanket protection, and its supporters' motives are suspect at best.
State legislators already have protection in common law from being compelled to testify in civil court about their actions in public office. For example, four legislators and a staff member were subpoenaed to testify in a federal lawsuit involving the election law changes approved last year by the Legislature. U.S. District Judge Robert Hinkle ruled earlier this month that they could not be forced to testify about the reasoning behind the controversial changes and cited a long-standing legislative privilege.
In state courts, judges have routinely recognized a similar protection and have been reluctant to compel state lawmakers to testify in civil cases about their official actions. But the protection is not absolute. Rep. Rick Kriseman, D-St. Petersburg, was ordered by a state judge in November to submit to limited questioning in a deposition by lawyers for an online travel company regarding tax legislation. Kriseman's situation was cited by the bill's supporters, but the legislation has much broader implications and Kriseman does not support it.
First, this appears to be aimed at short-circuiting anticipated court battles over redistricting. The House unsuccessfully fought the constitutional amendments approved by voters that establish new rules for drawing districts and refer to the intent of legislators. It would be impossible to determine their intent in drawing the new lines if lawmakers had absolute protection from testifying or producing documents for lawsuits that challenged the districts. When a Democrat offered an amendment to exempt redistricting lawsuits, the Republicans defeated it.
Second, the legislation would make it impossible for Floridians to rely on the courts to force legislators and their staffs to produce public records. When they refuse to produce those records, the only recourse is to ask a judge to compel them to produce the public documents. The legislation says it does not affect the right of access to records, but granting an absolute privilege from any civil action would make it impossible to get the courts to enforce that right. A League of Women Voters representative told the committee the legislation is an "outrageous assault'' on open government, and that may be an understatement.
A suddenly appearing, proposed committee bill with no legislator's name attached to it. One quick committee hearing. A straight shot to the full House as the session nears its usual frantic end. This is another sneaky attempt by brazen lawmakers to bend the law to benefit themselves, and it is an affront to Floridians who demand fairly drawn legislative districts and open government.