Baldus v. Members of Wisconsin Government Accountability Board

843 F. Supp. 2d 955, 2012 WL 10610, 2012 U.S. Dist. LEXIS 501
CourtDistrict Court, E.D. Wisconsin
DecidedJanuary 3, 2012
DocketCase Nos. 11-CV-562, 11-CV-1011
StatusPublished
Cited by1 cases

This text of 843 F. Supp. 2d 955 (Baldus v. Members of Wisconsin Government Accountability Board) is published on Counsel Stack Legal Research, covering District Court, E.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Baldus v. Members of Wisconsin Government Accountability Board, 843 F. Supp. 2d 955, 2012 WL 10610, 2012 U.S. Dist. LEXIS 501 (E.D. Wis. 2012).

Opinion

ORDER

J.P. STADTMUELLER, District Judge.

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, 2011 WL 6122542 and December 20, 2011, 2011 WL 6385645 respectively. 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. (Docket # 74, # 82). The Legislature’s [957]*957dissatisfaction with the Court’s prior decisions is clear from its refusal to comply with those orders. (See Pl.’s Resp. Mot. Rev. by Three-Judge Ct. 3 (citing Poland Decl., Docket # 89, ¶¶ 11, 15,18)). Rather than comply, the Legislature has all but declined to cooperate with the plaintiffs’ reasonable discovery efforts. (See PL’s Resp. Mot. Rev. by Three-Judge Ct. 3 (citing Poland Decl., Docket # 89, ¶¶ 11, 15, 18)). 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. (Docket #84).

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 — /or the third time — this Court rules that neither Mr. Handrick nor the documents he holds are protected by privilege. But, this time, beyond once again directing that the Legislature comply with the Court’s orders as related to discovery, the Court goes further, by sanctioning the Legislature’s attorneys.

Beginning with procedure, perhaps the simplest issue of all, the Court finds that the Legislature is not entitled to a review of the Court’s prior orders. Simply put, the Legislature’s motion is a nonstarter, 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. Under 28 U.S.C. § 2284(b)(3), “[a]ny action of a single judge may be reviewed by the full court at any time before the final judgment.” 28 U.S.C. § 2284(b)(3) (emphasis supplied). In other words, it is only when a single judge enters an order that such order may become the subject of review by the three-judge panel.

Thus, here, where the three-judge panel twice considered the Legislature’s arguments and entered orders denying their motions, any further three-judge review is inappropriate. To clarify, if perhaps the Legislature’s lawyers failed to read or understand the Court’s prior orders entered under the heading “Before WOOD, Circuit Judge, DOW, District Judge, and STADT-MUELLER, District Judge,” the full Court considered the arguments of the parties, conferred and agreed upon an appropriate resolution, and entered both challenged orders accordingly. (Compare Docket # 74, # 82, with Docket # 35).1 In the interest of fairness, the full Court has participated in the consideration and review of the subject of each order; yet, the full three-judge Court concluded that it would be most expeditious for Judge Stadtmueller to serve as the signatory on each order. That practice will continue throughout pendency of the case. Thus, there is no good reason why any reasonable person, much less a lawyer, ought to have found themselves confused about the non-applicability of 28 U.S.C. § 2284(b)(3), noting that counsel for the Legislature could have easily contacted the chambers of any one of the three judges to clarify the issue, rather than resorting to filing a [958]*958motion, together with a 22-page brief and a declaration which the plaintiffs and the Court now find themselves obliged to address. Despite the Legislature’s arguments that it was justified in believing that the three-judge Court’s prior order were issued by a single judge (Leg. Reply in Supp. Mot. for Reconsid. 2-3), 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.

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 (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”)). Moreover, the Legislature further argues that a case it first brought to the Court’s attention is without precedential authority {Id. at 10 (citing Marylanders for Fair Representation v. Schaefer, 144 F.R.D. 292 (D.Md.1992))), despite having cited to the case for an intertwined contention in its prior motion (Docket # 77, at 3 (citing same)). 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 (Leg. Br. in Supp. Mot. for Reconsid. 11, 19 & n. 7), to their insistence that certain parts of the legislative process are open to the public while others are not {Id. at 18-19 (drawing a distinction between the private drafting process and public deliberations that follow, despite the fact that — typically—records of the drafting process are open to the public in the form of legislative history)), 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 {see, e.g., Docket #63, # 64, # 76, # 77). 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.

Moreover, the Legislature continues to obfuscate the true facts of Mr. Handrick’s involvement by selectively adding to the facts and arguments earlier presented to the Court, while at the same time suggesting that the Court based its prior decisions on erroneous or incomplete law and facts

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Cite This Page — Counsel Stack

Bluebook (online)
843 F. Supp. 2d 955, 2012 WL 10610, 2012 U.S. Dist. LEXIS 501, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baldus-v-members-of-wisconsin-government-accountability-board-wied-2012.