Advertisement
  1. News

Florida lawmakers say they destroyed documents during redistricting process

Published Dec. 18, 2013

TALLAHASSEE — The Florida Supreme Court ruled last week that the state's legislative leaders must turn over their redistricting documents in a simmering legal feud, but legislators say that before the ruling they turned over thousands of records they considered appropriate and destroyed everything else.

It was all a part of the routine document destruction process allowed by law, lawyers for the Republican-controlled House and Senate said in court documents filed Wednesday.

The lawsuit was brought last year against the Florida Legislature by the League of Women Voters and 11 individuals. If the court agrees with the challengers, new maps may have to be drawn for the 2014 election cycle.

The challengers are asking House Speaker Will Weatherford and Senate President Don Gaetz to provide them with a detailed description of when and what records the legislative leaders allowed to be purged.

Among the documents they are seeking are emails, text messages, voice messages, handwritten notes, social media messages, Dropbox files, "and any other electronically stored information" on "all computers, cellular phones, smart phones, blackberries, tablets or other devices" used by House and Senate members.

If the members are using their personal devices to discuss redistricting, they want all that data as well. The plaintiffs' lawyers fear some redistricting documents are among those destroyed, while lawyers for the lawmakers say none were destroyed.

It's the latest wrinkle in an already lengthy case that is using a 2010 amendment to the state Constitution to challenge the Legislature's intent when it conducted the once-a-decade reapportionment for legislative and congressional district boundaries.

The challengers filed the case in February 2012 alleging that lawmakers violated the amendments when they drew congressional and state Senate maps that favored incumbents, Republican candidates, and intentionally diminished the ability of racial and language minorities to elect representatives of their choice.

The challengers attempted to question legislators, staff members and their political consultants and get access to their emails and text messages. But lawyers for the Republican leaders claimed that legislators should be exempt from that kind of scrutiny or it could have a "chilling effect" on the reapportionment process.

In a 5-2 ruling, the Florida Supreme Court last week rejected that argument and, for the first time, acknowledged that while legislative privilege does exist in Florida, it is not absolute.

"…this type of 'chilling effect' was the precise purpose of the constitutional amendment outlawing partisan political gerrymandering and improper discriminatory intent," wrote Justice Barbara Pariente in the majority opinion.

Said Weatherford: "Any accusation that the Florida House of Representatives thwarted the law and destroyed documents is completely false."

Lawyers for the defendants have told the court that none of the documents sought by the plaintiffs have been "deleted, destroyed, lost, misappropriated, or otherwise became unavailable for production" and that they produced more than 20,000 documents in response to the request.

They acknowledge, however, that "during the legislative redistricting process, the Legislative Parties maintained and disposed of legislative records in accordance with record-retention policies embodied in the rules of the Florida House of Representatives and the Florida Senate."

That raises the question of whether there were documents lawyers were trying to shield through legislative privilege and, if so, do those documents still exist?

Kathy Mears, chief of staff to Weatherford, said the House expected litigation and their lawyers told them "there will be lawsuits so please be aware there will be records that you have to turn over for the redistricting case."

Federal rules prohibit document destruction when a party has a reasonable sense that the records could become part of the case and Florida lawmakers have known that a lawsuit challenging their maps was highly likely.

Gaetz, for example, told the Fort Myers News Press in November 2010 that he opposed the constitutional amendments and said: "I predict there will be a deep rut beaten to the courthouse — that's what the supporters of Amendments 5 and 6 wanted."

Sen. John Thrasher, R-St. Augustine, told Sunshine State News in December 2010 that "everything we say and do now in light of 5 and 6 and the intent language is subject to the review of some court."

Lawyers for the House and Senate say that they turned over more than 20,000 documents in 2012 and the challengers never complained. The House and Senate's lawyers argue that it was the job of the challengers to ask them to protect any communications from destruction and they failed to do it.

In a response filed with the court Wednesday, the Senate's lawyers wrote:

"... the Legislative Parties offered to 'ask legislators and legislative staff who participated in the redistricting process to search their personal and campaign email accounts as well as their personal mobile devices for information responsive to Plaintiffs' document requests,' and offered to arrange a mutually convenient time for the production of such documents. You never responded.

"Nonetheless, the Senate asked legislators and legislative staff who participated in the redistricting process to search their personal computers, handheld devices and email accounts for information concerning the redistricting process."

The next step, legal experts say, is to determine how permanent the Legislature's destruction of documents is and whether anything significant was destroyed. The challengers may have to hire a forensic computer expert to dig deep into the House and Senate computer servers to uncover evidence of legislative intent, said Gerry Hebert, a former Justice Department lawyer who is representing the League of Women Voters in the Florida case.

It took forensic computer analysts to discover pivotal documents in a Texas redistricting case last year, he said. A federal court determined that Republican lawmakers in Texas had discriminatory intent when they drew a congressional district and the court invalidated the map.

The key piece of evidence: an email from an attorney for a congressman to the staff member drawing the map for the Texas speaker of the House. He described how he must employ the "nudge factor" to elect a Republican by swapping out high turnout Latino precincts with low turnout precincts but maintaining the ethnic composition.

Hebert has represented challengers and governments in dozens of redistricting cases over six decades and said he always advises his clients, "do not destroy any communications or documents."

Contact Mary Ellen Klas at meklas@MiamiHerald.com and @MaryEllenKlas

ALSO IN THIS SECTION

  1. Reynaldo Figueroa-Sanabria, accused of stabbing and killing John Travlos and Germana Morin aboard their houseboat in 2013, testified on his own behalf at his murder trial in Pinellas County this week. MARTHA ASENCIO-RHINE  |  Times
    It took the jury about four hours to find Reynaldo Figueroa-Sanabria guilty. Next they must decide whether to send him to Florida’s death row.
  2. Harold Fritz, 75, was awarded the nation's highest and rarest honor, the Medal of Honor, for his actions in 1969. The Army lieutenant saved his platoon during an ambush in the Vietnam war. He spoke to students at Farnell Middle School in Tampa. MARLENE SOKOL  |  Times
    Harold Fritz wanted to talk about teachers’ salaries and education. The kids wanted selfies with one of the 71 living recipients of the nation’s highest honor.
  3. PDQ's new Trinity location features a self-serve sauce bar with seven signature sauces perfect for dipping chicken tenders. Courtesy of PDQ
    Both chains are expanding locally and held grand opening celebrations this month with giveaways and free food.
  4. Casey Cane has resigned as chair of Pinellas County’s Housing Finance Authority in the wake of a Tampa Bay Times story about his failure to disclose an arrest for a financial felony when he was 19. He also serves as a Palm Harbor fire commissioner. Casey Cane
    Casey Cane failed to disclose his arrest for a financial felony in 2006. He said he didn’t think he had to reveal that information.
  5. Tampa Mayor Jane Castor speaks to about 75 people Tuesday at a city conference on innovation and collaboration. (City of Tampa photo by Janelle McGregor) Janelle McGregor
    City Hall brought together startups and the nonprofits that nurture them for a discussion of possible ideas to improve city operations and service.
  6. Scott Purcell, a senior geophysicist with GeoView, left, and Mike Wightman, president of GeoView, use ground-penetrating radar to scan a portion of King High School campus in search for Ridgewood Cemetery. OCTAVIO JONES  |  Times
    Preliminary answers from the ground-penetrating radar could come as soon as next week.
  7. A federal judge gas stayed the Nov. 7 execution of death row inmate James Dailey, 73, for the 1985 murder of 14-year-old Shelly Boggio. Left: Dailey at his 1987 trial, where he was convicted and sentenced to death. Middle: Dailey in 1993, when he was again sentenced to die. Right: The most current photo of Dailey on Florida's Death Row. Tampa Bay Times
    Dailey was set to be put to death Nov. 7. A judge ordered his execution to be postponed to give his attorneys time to present their claims. But the state can appeal.
  8. Markeith Loyd, suspected of fatally shooting a Florida police officer, attends his initial court appearance Thursday, Jan. 19, 2017, at the Orange County Jail, in Orlando, Fla. Loyd spoke out of turn and was defiant during the appearance on charges of killing his pregnant ex-girlfriend. He was injured during his arrest Tuesday night following a weeklong manhunt.
    The same jury found Loyd guilty last week of first-degree murder in the fatal shooting 24-year-old Sade Dixon outside her home in 2016.
  9. The new owner of a dilapidated mobile home park on Gandy Boulevard has sued the city of Tampa over a record-setting fine levied against the property for a massive tree removal in August. [CHARLIE FRAGO | Times]
    A Gandy Boulevard mobile home park owner is suing the city of Tampa over a record $420,000 fine .
  10. Dashboard camera video shows a Tampa police cruiser pursuing Dusharn Weems through a parking lot. A second later, Weems is fatally injured when the car strikes him. Courtesy Haydee Oropesa
    The family of Dusharn Weems, 23, claims an officer intentionally struck him after he was spotted driving a stolen car.
Advertisement
Advertisement
Advertisement