For the Fourth Time, US District Court Rules Against WI R-Controlled Legislature re: Redistricting Plans

For the fourth time, the United States District Court (Eastern District of Wisconsin) has ruled against the Republican-dominated Wisconsin Legislature and its attorneys over the new district maps the Legislature drew last year.  These maps were drawn in secret, the public had only one day to comment publicly on them in Madison, and then they were passed by party-line vote in the Republican-dominated Legislature.  No Democratic legislators had any input into these maps because the Republicans completely shut them out.

Worse yet, the Republicans, nearly to a person, signed non-disclosure agreements with attorneys in order to try to cloak their legislative business under the “attorney-client” privilege that’s commonly given to legal defendants.

But this did not work.

So, for the fourth time, the US District Court (Eastern Dist. of WI) has said that all the deliberations of the Republicans via e-mail with and without their lawyers (that is, communication to and from their lawyers, and communication among themselves) do not qualify as something that can be protected via attorney-client privilege.  And the judges’ comments, once again, are scathing.

Here’s the link to yesterday’s story in the Milwaukee Journal-Sentinel:

http://www.jsonline.com/news/statepolitics/federal-judges-slam-gop-lawmakers-over-redistricting-secrecy-0l47pqm-139467038.html

And here’s a link to the actual order by the three district judges, two of whom were appointed by Republican Presidents:

http://media.jsonline.com/documents/redist-021712.pdf

Here are a few words from the judges’ decision that explained why they have ruled against the Republicans (again):

The documents produced by the defendants consist predominantly of a series of email messages discussing the support of certain Hispanic community groups for redistricting legislation and also discussing the floor debates on a pending bill.

In the Court’s view, it is quite apparent that these email discussions involve advice on political strategy, as opposed to legal strategy, and, therefore, are not afforded attorney-client privilege protection.

But wait!  There’s more!

Without a doubt, the Legislature made a conscious choice to involve private lawyers in what gives every appearance of an attempt—albeit poorly disguised—to cloak the private machinations of Wisconsin’s Republican legislators in the shroud of attorney-client privilege. What could have—indeed should have—been accomplished publicly instead took place in private, in an all but shameful attempt to hide the redistricting process from public scrutiny.

OK, let’s have that last sentence again, shall we?  With emphasis this time (as added by yours truly):

What could have—indeed should have—been accomplished publicly instead took place in private, in an all but shameful attempt to hide the redistricting process from public scrutiny.

What bothers the judges here is also what’s bothered me from the start regarding the redistricting process.  Simply put: this should’ve been done in the full light of day, where Wisconsin voters would’ve had weeks to weigh in on what they thought of the districts (rather than only one day in Madison for people to hurry on up there and try to talk sense into the recalcitrant Rs).  The Democrats should’ve been consulted even if the Rs had still refused to listen.  And the actual redistricting itself should’ve been far less cumbersome than it’s turned out to be, which it would’ve been if the Rs had just done things openly rather than try to give themselves some sort of out via “attorney-client privilege.”

But let’s hear some more from the District judges, shall we?

In concluding that the documents at issue here are not privileged from disclosure, the Court does not mean to suggest that the attorney-client privilege is unavailable to government entities. It is simply not available in this instance because of the Legislature’s peculiar (and frankly unfortunate) decision in this case to so blur the lines between political, strategic, and legal advice as to make those lines practically disappear. In so doing, the movants—who, in fact, seem to act on behalf of only a portion of the Legislature despite their assertion that they act on behalf of the full Legislature (and, by extension, all of Wisconsin’s citizens)—have tried to hide the redistricting process from the very people whose rights are at stake in that process.

Amen!  (I couldn’t have said it better myself.)

The judges continue:

And those very people, Wisconsin’s citizens, have paid through their tax dollars for the efforts ostensibly taken on their behalf. The Court finds it highly doubtful that any lawyer’s client would delight in having the documents and communications  for which they have paid kept beyond their reach. Thus, in these particular circumstances, it would be inappropriate to shield from disclosure the communications provided to the Court for in camera review.

Now, did you note the language the judges used?  “The Court finds it highly doubtful . . . ” is quite pointed language from a judge (much less a three-judge panel).  But what about this next line?  “. . . the Legislature’s peculiar (and frankly unfortunate) decision in this case  to so blur the lines between political, strategic, and legal advice as to make those lines practically disappear” is practically acerbic, coming from a judge.  And this next line — my favorite in the whole five-page order — “What could have—indeed should have—been accomplished publicly instead took place in private, in an all but shameful attempt to hide the redistricting process from public scrutiny” makes the point that the judges have had quite enough of this, thank you, so let’s get on.

All of this is why it’s noteworthy that the judges’ ordered the R-dominated Legislature and its hand-picked lawyers release all e-mail communications.  Because, you see, the judges have obviously had enough — and for the fourth time, they’ve said so.