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Judge sides with House in subpoena battle

A federal judge Friday refused to block subpoenas issued by the Florida House of Representatives demanding documents from broadcasting executive Pat Roberts and his production company, MAT Media, related to contracts with the tourism-marketing agency VISIT FLORIDA.

A House committee in October issued subpoenas to Roberts, who is the longtime president of the Florida Association of Broadcasters, and the production company. The contracts at issue include $11.6 million for a cooking show featuring celebrity chef Emeril Lagasse. Roberts refused to comply with the subpoenas, and two court cases focused on the contracts and the subpoenas are pending in Leon County circuit court.

House Speaker Richard Corcoran and the Florida House last week again issued subpoenas demanding records about the contracts with the state tourism agency.

The subpoenas gave Roberts until 5 p.m. Tuesday to turn over the records or risk $1,000-per day fines and 90 days in jail for each day he did not produce the documents.

Lawyers for Roberts asked U.S. District Judge Mark Walker to block the subpoenas, saying they violated his constitutional right to due process.

But on Friday, Walker said the issue wasn’t ripe because there wasn’t a “concrete controversy” before the court.

“We’re not even there because there’s not an imminent threat of injury,” Walker said.

Rep. Larry Metz, a Yahala Republican who serves as chairman of the committee that issued the original subpoenas, and several other Republican House members were among the spectators in the courtroom. Also watching was Talbot “Sandy” D’Alemberte, a former president of the American Bar Association and former president of Florida State University.

Tim Jansen, a lawyer representing Roberts, told Walker that his client could be personally sued if he turned over some of the documents, which contain trade secrets. And, Jansen said, the request for income tax returns is a violation of his property rights.

Walker acknowledged that the subpoenas — signed by Corcoran from the rostrum during a floor session and immediately dispatched by a process server, who was waiting in the speaker’s office — equate to “a certain 1,000-pound gorilla.”

“I wouldn’t use the word ‘bullying,’ but some might use the word,” Walker said, saying the House may have been “posturing” by issuing the subpoenas.

While no case law exists for the unprecedented move by the House, the judge said there are rulings that found rare instances when subpoenas issued by Congress can be overturned by the courts. The only time that can happen is when the subpoenas are unrelated to issues within the scope of a committee’s purpose.

But, in the request for the VISIT FLORIDA documents, lawmakers are “rooting out information dealing with the public purse,” Walker said.

“The Legislature does get to say, if we want to continue to spend money on VISIT FLORIDA, let’s figure out how it’s being spent,” he said. “Are we buying a pig in a poke or are we engaging in contracts that make sense for the public purse?”

Adam Tanenbaum, general counsel for the House, assured Walker that Roberts’ arrest wasn’t imminent. Only the full House — which won’t meet until Wednesday — could decide that Roberts is in contempt and decide to impose the sanctions.

But Tanenbaum said that wasn’t likely to happen. Roberts’ lawyers turned over some documents on Tuesday and are negotiating with Tanenbaum about the release of other records and how to keep them from being kept secret from the public.

“We’re optimistic that, at this point, we’ll be able to get those documents from MAT Media and Mr. Roberts,” Tanenbaum said.

Even if the House did approve the contempt charge, Roberts would have an opportunity to defend himself, Tanenbaum promised.

“Nothing has happened yet, and there’s not even the suggestion that something is going to happen,” Tanenbaum argued, saying it was too soon for the court to issue the preliminary injunction sought by Roberts and his company.

Although Walker sided with Corcoran and the House, he had some harsh words for the lawmakers.

The judge questioned why the House would issue the new subpoenas while two court cases were pending on the matter, accusing them of doing “an end run to subvert the state courts.”

“Can the Florida Legislature really subpoena me for whatever they want and whenever they want, and, if I refuse to respond, they can throw me in jail?” Walker asked. “Sounds a little Orwellian to me.”

But Tanenbaum said the House issued the subpoenas because it was “the only thing it has the power to do to get the documents it has been seeking” since April, when the House began probing the contracts.

After delivering his decision from the bench, Walker expounded on his rationale.

“If Mr. Roberts was being hauled off and taken into custody … I suspect I may have a very different view of separation of powers,” he said. “But that’s not what we have here.”

Even if such harm was imminent, Walker said his power to do something was limited, and “the only thing I could say” to the Legislature was “follow the law.”

But Walker found that there was “nothing to show that the Florida Legislature is going to willy-nilly” impose penalties on Roberts.

The judge concluded with a mini-lecture for the Legislature.

“I in no way minimize the significance of having an august body like the House say you’re going to turn over documents or we’re going to throw you in jail,” Walker said, adding that there’s “probably a reason why it’s never been done before.”

“I am going to respectfully suggest to the Florida Legislature, just as I am cautious about exercising my authority, my colleagues in the other two branches should likewise comport themselves,” he concluded.

Republished with permission of the News Service of Florida.

The News Service of Florida provides journalists, lobbyists, government officials and other civic leaders with comprehensive, objective information about the activities of state government year-round.

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