New hearing sought in lawmaker subpoena fight

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United States Supreme Court
FILE - The U.S. Supreme Court building in Washington, Monday, June 27, 2022. The (AP Photo/Patrick Semansky, File)

TALLAHASSEE — Plaintiffs’ attorneys Monday asked a full federal appeals court to take up a dispute about whether 14 current and former Florida lawmakers should have to turn over documents in a challenge to a state law that Gov. Ron DeSantis dubbed the “Stop WOKE Act.”

The attorneys representing instructors and a student from six universities are seeking a hearing from the full 11th U.S. Circuit Court of Appeals after a divided three-judge panel last month ordered that subpoenas for the documents be quashed.

The underlying challenge to the Stop WOKE Act was filed under a major federal civil-rights law and alleges violation of First Amendment and equal-protection rights. The dispute about the subpoenas involves whether lawmakers are shielded from turning over the documents by what is known as “legislative privilege.”

In the petition Monday, the plaintiffs’ attorneys argued that the three-judge panel did not follow U.S. Supreme Court precedents and “established an absolute rule that state legislative privilege never yields in Section 1983 (the civil-rights law) cases no matter the importance of the federal interests presented, the need for legislative discovery or the level of the intrusion, or lack thereof, into the legislative process.

“The majority’s categorical rule ignores the Supreme Court’s directive to weigh the important competing interests when assessing claims of privilege,” the petition said.

The plaintiffs’ attorney also wrote that a rehearing is “vital so the entire court can determine if such an absolute rule should be imposed upon all lawsuits brought under Section 1983, which serves as the primary vehicle for citizens to vindicate all constitutional rights.”

The panel, in a 2-1 decision issued Oct. 30, overturned a ruling by Chief U.S. District Judge Mark Walker.

Walker’s ruling in February shielded from disclosure documents such as lawmakers’ communications “with their staff, other members of the Florida Legislature and their staff, and third parties regarding their motivations and mental impressions concerning the formulation” of the law.

But he ordered that the lawmakers should provide certain “factually based information” to the plaintiffs. He wrote that “purely factual documents, including bill drafts, bill analyses, white papers, studies, and news reports provided by or to the legislators and their staff members, do not fall within the scope of this privilege.”

In the appellate panel’s majority decision, however, Chief Judge William Pryor wrote that it was an “erroneous decision” that legislative privilege does not protect factual documents. Pryor, joined by Judge L. Scott Coogler, wrote that the subpoenas were designed to determine whether lawmakers had a discriminatory motives in passing the controversial law.

“By the plaintiffs’ own admission, the subpoenas’ purpose was to uncover the legislators’ motives in passing the law. ‘The privilege applies with full force against requests for information about the motives for legislative votes and legislative enactments,’” the opinion said, partially quoting a legal precedent. “So, the privilege applies with its usual force against the discovery of even the factual documents in the Florida legislators’ possession. The district court abused its discretion when it determined otherwise.”

But Judge Jill Pryor, in a 30-page dissent, wrote that the subpoenas were issued amid broader arguments that the law violates federal equal-protection rights. She wrote that such cases “may turn on the subjective motivations of legislators. I would not require plaintiffs put to such proof to litigate these important cases with one hand tied behind their backs.”

“Under our existing precedent, they must meet the increasingly difficult task of producing persuasive evidence of legislative intent to discriminate,” Jill Pryor wrote. “And they must do so by focusing on the specific chain of events leading to the enactment of the challenged legislation. The majority opinion adds that — no matter the circumstances — they are not entitled to discovery into ‘legislative acts or the motivation for actual performance of legislative acts.’ In essence, the majority opinion forces a whole category of plaintiffs, tasked with an already difficult standard of proof, to make their cases without the tools ordinarily available to civil litigants.”

The 2022 law, known as the “Stop Wrongs To Our Kids and Employees Act,” or “Stop WOKE Act.” seeks to restrict how race-related issues can be addressed in higher education and in workplace training.

The law lists a series of race-related concepts and says it would constitute discrimination if students are subjected to instruction that “espouses, promotes, advances, inculcates or compels” them to believe the concepts.

As an example, the law labels instruction discriminatory if students are led to believe that they bear “responsibility for, or should be discriminated against or receive adverse treatment because of, actions committed in the past by other members of the same race, color, national origin or sex.”

As another example, the law seeks to prohibit instruction that would cause students to “feel guilt, anguish or other forms of psychological distress because of actions, in which the person played no part, committed in the past by other members of the same race, color, national origin or sex.”

Walker in November 2022 issued a preliminary injunction against the law, finding that it was unconstitutional.

The state has appealed the preliminary injunction to the Atlanta-based appeals court, but parts of the case also have continued before Walker. The preliminary injunction appeal remains pending.

The subpoenas were issued to 13 co-sponsors of the bill — Rep. Melony Bell, R-Fort Meade; Rep. David Borrero, R-Sweetwater; former Rep. Juan Alfonso Fernandez-Barquin, R-Miami-Dade County; Rep. Randy Fine, R-Brevard County; Rep. Randy Maggard, R-Dade City; Rep. Ralph Massullo, R-Lecanto; Rep. Stan McClain, R-Ocala; Rep. Toby Overdorf, R-Palm City; Rep. Bobby Payne, R-Palatka; Rep. Rick Roth, R-West Palm Beach; Rep. Jason Shoaf, R-Port St. Joe; Rep. Tyler Sirois, R-Merritt Island; and Rep. Keith Truenow, R-Tavares — and Rep. Alex Andrade, R-Pensacola.

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