“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.”
Ouch.
A three judge panel ordered attorneys hired by the GOP-dominated Wisconsin legislature to cooperate IMMEDIATELY with their orders instead of filing frivolous lawsuits and continuing to employ “sandbagging” and “hide-the-ball trial tactics”.
The panel denied the WI GOP’s 3rd attempt to keep lobbyist Handricks’ work on redistricting private and said it had to be released to the public and they ordered the GOP’s attorneys to pay for the costs of their frivolous lawsuits as well as for a future deposition ordered by the panel.
These individuals are ordered to appear at the deposition: Messrs. Joseph Handrick, Tad Ottman, and Adam Foltz “with the specific directive that they comply with this Court’s prior orders requiring disclosure of documents and denying application of privilege”
The panel calls Handricks a “lobbyist hired by the Legislature to assist in preparing the redistricting plan” and called the bluff of the Legislature’s attorneys who at times have said Handricks is “a quasi-employee of the Legislature” and times that he is “not an employee of the Legislature” –basically saying anything in an effort to keep his redistricting work secret.
Apparently the Wisconsin GOP legislators aren’t getting their money’s worth from the dream team they hired. (Oh what am I saying? Will we the Wisconsin taxpayer be charged for the Michael Best & Friedrich dream team’s work?):
“the Legislature has declined to provide sufficient facts, much less legal precedent, for the Court to even understand Mr. Handrick’s role in the redistricting process—let alone offer any good reason as to why he should be covered by any privilege.”
As to who exactly got hit in the pocket book for previous frivolous suits, the panel ordered Eric M. McLeod, Joseph L. Olson,Aaron H. Kastens, and Michael Best & Friedrich LLP to pay the opposing party for the cost of coming to court for docket #63 and #84. (The “opposing party” is a long list of folks favorable to the Democratic party to include Tammy Baldwin, Gwendolynne Moore, and Ron Kind)
The panel isn’t acting out of irritation for only its own time wasted. It explains that the State of Wisconsin requested the court put this redistricting case on an “accelerated track” to process matters in time for the 2012 primary elections.
“In consideration of those matters,the Court has warned those involved that the filing of frivolous motions to quash would result in imposition of fees against the filing party…. [the Court] will not suffer the sort of disinformation, foot-dragging, and obfuscation now being engaged in by Wisconsin’s elected officials and/or their attorneys.”
For the record the 3 panel judge who delivered the ruling are not all LIBRULS. Milwaukee J. Sentinel says “The case is being heard by J.P. Stadtmueller of the Eastern District of Wisconsin, Diane P. Wood of the 7th Circuit Court of Appeals and Robert M. Dow Jr. of the Northern District of Illinois. Stadtmueller was appointed by Republican President Ronald Reagan, Wood by Democratic President Bill Clinton and Dow by Republican President George W. Bush.”
The panel was appointed to its task by Frank H. Easterbrook of the 7th circuit court
Here’s a link to the original PDF And below are a few more choice quotes:
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. ….. And, thus—for the third time—this Court rules that neither Mr. Handrick nor the documents he holds are protected by privilege. …
Simply put, the Legislature’s motion is a non-starter, as the Legislature is not entitled to “review by a three-judge panel” when the Court’s prior decisions on the same issue were decided by the same three judge panel. …
…But it does not end there, for even upon close examination of the merits of the Legislature’s arguments, it is also equally clear that the motion is frivolous and similarly must be denied. 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 (calling Mr. Handrick “effectively a shortterm legislative staffer”)) and not an employee of the Legislature (calling Mr. Handrick a “consulting expert”)).
…The Court could go on with the Legislature’s internally-inconsistent flip flopping 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 …or displeasure at the Court’s “blanket, sight unseen” pronouncement that privilege does not apply (Id. at 11) when they themselves request blanket application of privilege to documents they have elected not to produce …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.
Yet, again, the Legislature has declined to provide sufficient facts, much less legal precedent, for the Court to even understand Mr. Handrick’s role in the redistricting process—let alone offer any good reason as to why he should be covered by any privilege. (taking issue with the Court’s “conjecture” that documents supplied to Mr. Handrick likely did not contain legal advice, but failing to provide the Court with any citation to evidence that would establish Mr.Handrick’s “specialized skill set” or recognition as an “expert in redistricting map drawing”)).
…Over the course of three motions, the Legislature has cited increasingly diverse law, at times later taking issue withthe very law they cited previously. …
Quite frankly, the Legislature and the actions of its counsel give every appearance of flailing wildly in a desperate attempt to hide from both the Court and the public the true nature of exactly what transpired in the redistricting process.
Having argued three times that much of theinformation regarding the process be shielded from discovery, the Legislature has made clear its intention not to make such information publicly available. Regardless of whether the Legislature has objected on grounds of privilege eleven times or forty-five times, and regardless of whether the Legislature claims privilege over the communications of two people or the communications of ten people, the fact does not change that the Legislature has continued its path of opposition to the plaintiffs’ discovery efforts by claiming privilege at multiple turns.
Those argued privileges, though, exist in derogation of the truth… And the truth here—regardless ofwhether the Court ultimately finds the redistricting plan unconstitutional—is extremely important to the public, whose political rights stand significantly affected by the efforts of the Legislature. On the other hand, no public good suffers by the denial of privilege in this case. Thus, as it has already done twice, the three-judge panel again declines to hold that Mr. Handrick or any of his documents are entitled to any of the privileges being asserted.
…In fact,the State of Wisconsin requested that the Court place this case on an accelerated track, with the expectation that the Court would reach its decision in sufficient time to allow for the proper planning and execution ofWisconsin’s upcoming primary elections.
In consideration of those matters,the Court has warned those involved that the filing of frivolous motions to quash would result in imposition of fees against the filing party. (Docket #74at 6).
While the Court never specifically addressed whether it would impose fees and sanctions in situations such as the matter now before the court, the tenor of the Court’s warnings has been clear and stern from the outset: it will not suffer the sort of disinformation, foot-dragging, and obfuscation now being engaged in by Wisconsin’s elected officials and/or their attorneys. As such, 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 (Docket #84), as well as the Legislature’s prior motion for clarification(Docket #63). In assessing reasonable and necessary attorneys’ fees and costs,the court invokes the authority to impose sanctions in the form of reasonable and necessary attorneys’ fees and costs pursuant to Federal Rule of CivilProcedure 37(b)(2)(C) for failure to comply with the Court’s two prior orders(Docket #74, #82).
To insure timely compliance with the Court’s sanction order, plaintiffs’ counsel shall prepare and file with the court, not later than seven (7) calendar days from today’s date, an itemized statement of actual, reasonable and necessary attorneys’ fees and costs associated with their responses to both this motion (Docket #84) and the prior motion (Docket#63).
Absent any challenge as to necessity or reasonableness, the amount sought shall be paid in full by the Legislature’s counsel, Eric M. McLeod, Joseph L. Olson, Aaron H. Kastens, and Michael, Best & Friedrich LLP, jointly and severally, within ten (10) days thereafter. Finally, given the Legislature’s refusal to adequately cooperate in thediscovery process, despite the Court’s having twice denied their requests forprivilege, 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
…
Accordingly,IT IS ORDERED that the motion of the Wisconsin State Senate and the Wisconsin State Assembly for reconsideration by a three-judge panel(Docket #84) be and the same is hereby DENIED…
Case 2:11-cv-00562-JPS-DPW-RMD Filed 01/03/12
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