MILWAUKEE (CN) – Republican legislators cannot keep private information on Wisconsin’s redistricting, a three-judge federal panel ruled, writing bluntly: “the Legislature has taken action that affects the voting rights of Wisconsin’s citizens and now attempts to cloak the record of that action behind a charade masking as privilege.”
“Quite clearly, the Wisconsin State Senate and Wisconsin State Assembly (collectively, the ‘Legislature’) and its attorneys are none too pleased with this three-judge Court’s prior orders, filed on December 8, 2011, and December 20, 2011, respectively,” the judges wrote. “By those orders, this Court twice held that neither Joe Handrick, a lobbyist hired by the Legislature to assist in preparing the redistricting plan now challenged in this case, nor documents in his possession are protected by legislative privilege, attorney-client privilege, or work product privilege. The Legislature’s dissatisfaction with the Court’s prior decisions is clear from its refusal to comply with those orders. Rather than comply, the Legislature has all but declined to cooperate with the plaintiffs’ reasonable discovery efforts. And, now, the Legislature again reaffirms its displeasure by filing a ‘Motion for Review by Three-Judge Court’ of the Court’s two prior orders.
“But this new motion – in reality, the Legislature’s second collateral attack on the wisdom of the Court’s prior orders in as many weeks – is completely devoid of merit. In the Court’s eyes, this motion is nothing more than a third bite at an apple that the Court has twice explained is a bitter one to chew. In reality, the Court can deny the Legislature’s motion without reaching its merits; but, even quickly reaching the merits, it is clear that the Legislature’s motion fails. And, thus – for the third time – this Court rules that neither Mr. Handrick nor the documents he holds are protected by privilege.” (Citations omitted.)
U.S. District Judge J.P. Stadtmueller wrote the latest order in Alvin Baldus et al. v. Members of the Wisconsin Accountability Board and Voces de la Frontera et al. v. Members of the Wisconsin Accountability Board.
U.S. District Judges Diane Wood and Robert Dow Jr. joined in finding that legislators refused to cooperate with the plaintiffs, who challenged the constitutionality of the state’s redistricting plan, saying it was designed to favor Republicans.
Lest there be any doubt, the court wrote: “given the Legislature’s refusal to adequately cooperate in the discovery process, despite the Court’s having twice denied their requests for privilege, the Court reaffirms its earlier directive: cooperate immediately. Neither this Court, the parties in the case, nor Wisconsin’s citizens have the interest or time to endure the litigation tactics being used by public officials or their private counsel in what has quickly become a poorly disguised attempt to cover up a process that should have been public from the outset, despite the Legislature’s concerted efforts to mask the process behind the closed doors of a private law firm. To remedy this regrettable situation, the Court grants the plaintiffs’ requests to reconvene the depositions of Mr. Handrick, as well as Tad Ottman and Adam Foltz, with the specific directive that those individuals comply with each of the Court’s successive orders, including today’s order, denying privilege.” (Italics in original.)
The judges added: “The defendants, members of Wisconsin’s Government Accountability Board, have filed several documents taking issue with a number of the plaintiffs’ filings. In these documents, the defendants argue that the plaintiffs are ‘dragging the defendants … into the middle of’ a discovery between the plaintiffs and the Legislature. Simply put, the defendants are wrong: the plaintiffs have not dragged the defendants into anything. The defendants, on the other hand, by filing these documents, have willingly inserted themselves into a dispute that the Court has never viewed them as being part of. Thus, any issues related to privilege arising from Mr. Handrick’s current assistance to Reinhart, Boerner, Van Dueren, S.C. in connection with pretrial preparation on behalf of the defendants are not before the Court and, therefore, not addressed in today’s Order.” (Ellipsis in original; citations omitted.)
The judges also refused to allow the GOP legislators an opportunity to request a three-judge panel at any future juncture in the case: “a much simpler path to clarification existed than that ultimately taken by the Legislature. Surely, all involved could have been readily spared the substantial time and effort in dealing with what the Court now concludes to be a frivolous motion. …
“Indeed, the arguments advanced by the Legislature more than suggest that it wishes to have its cake and eat it too. Specifically, the Legislature argues that Mr. Handrick is – seemingly simultaneously and interchangeably, adapting to whatever the situation might call for so as to avoid the disclosure this three-judge panel has already twice commanded – at once a quasi-employee of the Legislature (Leg. Br. in Supp. Mot. for Reconsid. 19 & n.7 (calling Mr. Handrick ‘effectively a short-term legislative staffer’)) and not an employee of the Legislature (Id. at 3, 11 (calling Mr. Handrick a ‘consulting expert’)). … The Court could go on with the Legislature’s internally-inconsistent flipflopping and hair-splitting, including the acknowledgment of Mr. Handrick’s serving as a lobbyist but arguing he did not act as one when hired by the Legislature, to their insistence that certain parts of the legislative process are open to the public while others are not … or displeasure at the Court’s ‘blanket, sight unseen’ pronouncement that privilege does not apply when they themselves request blanket application of privilege to documents they have elected not to produce. Suffice it to say, the Court is quite aware of the distinctions that the Legislature points out. Despite those distinctions, the Court’s previous rulings stand: the Legislature has taken action that affects the voting rights of Wisconsin’s citizens and now attempts to cloak the record of that action behind a charade masking as privilege.” (Some citations omitted.)
The judges added: “the Court finds it appropriate to impose sanctions in this instance. However, mindful of the fact that the state’s taxpayers would ultimately bear the cost of such sanctions, the Court will order that the Legislature’s attorneys, Eric M. McLeod, Joseph L. Olson, Aaron H. Kastens, and Michael Best & Friedrich LLP – those ultimately responsible for the sandbagging, hide-the-ball trial tactics that continue to be employed – jointly and severally, make payment to plaintiffs’ counsel in the form of an award of attorneys fees and costs as a sanction by the Court. As such, the Legislature’s attorneys shall be responsible for payment of the reasonable and necessary attorneys’ fees and costs incurred by the plaintiffs in responding to both this motion as well as the Legislature’s prior motion for clarification.” (Citations omitted.)
Two of the three participating judges were appointed by Republican presidents. U.S. District Judge J.P. Stadtmueller was appointed by President Ronald Reagan, Diane P. Wood by President Bill Clinton and Robert M. Dow, Jr., by President George W. Bush.
A trial is set for February.