          Supreme Court of Florida
                                  ____________

                                  No. SC14-987
                                  ____________

         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


                                           -2-
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).


                                           -4-
      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.


                                         -5-
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


                                         -6-
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,


                                          -7-
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.


                                         -8-
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


                                         -9-
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.


                                        - 10 -
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

                                        - 11 -
      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.




                                         - 12 -
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,


                                         - 13 -
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


                                          - 14 -
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


                                         - 15 -
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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