Friday, November 01, 2013

Redistricting Board Asks Court To Push Trial To Early To Mid January

There's a motion before the Court dated 30 October 2013 from the Alaska Redistricting Board asking the Court to further delay any necessary trial until early to mid January.  It turns out that the Board's lead counsel Michael White's radiation treatment schedule will take longer than what he originally understood.  I'll give you the wording directly from the filing, the judge's response, and then some of my thoughts at the end. 

From the Board's motion
“As the Board previously explained, Mr. White is required to undergo a series of 30 radiation treatments as part of his treatment plan.  Mr. White had discussed these treatments with his team of doctors at Virginia Mason Hospital and believed the radiation treatments would commence as soon as he returned home in mid-October, concluding by the end of November.  The Board and Mr. White relied upon this radiation schedule when it filed its Unopposed Motion to Continue Trial on September 27, 2013 and asked for a continuance until early December. 

Mr. White returned home from Seattle on October 12, 2013, and met with his local radiation oncologist on October 14, 2013 to schedule the radiation treatments.  Mr. White’s local radiation oncologist explained that he would have to undergo several pre-radiation appointments over the following two weeks before he could actually begin treatment, thereby postponing the previously understood radiation schedule.  In this regard, the radiation oncologist works with a physicist to create a mesh mask of Mr. White’s face and digitally map his face to focus the radiation on the affected areas thereby improving the efficacy of the treatment.  This complicated process takes several weeks.  Accordingly, Mr. White will not begin his radiation treatment until October 30, 2013.  He will undergo thirty daily treatments, five times each week, except for Thanksgiving and the Friday after, completing treatment December 12, 2013, which is during the currently scheduled trial.  Mr. White’s doctors have informed him he cannot leave Anchorage until the radiation treatment is complete, and that he will need at least two weeks after concluding radiation to recuperate sufficiently to participate in any legal proceeding in this case. 

The Board previously requested a continuance of trial so that Mr. White, the Board’s lead counsel, could participate.  Given the recent discovered change in circumstances, the Board requests the Court grant another short continuance until early January so that Mr. White can, in fact, participate in trial.  The Board understands the tight time frame within which the Court and the parties are operating in this matter, and does not make this request lightly.    The Board met on October 24 and discussed that it would be greatly prejudiced if its lead counsel was not permitted to participate at trial given his extensive knowledge of the facts and unique legal issues involved in this case."

They go on to point out that
“A trial may not even be necessary should this Court resolve the issues in its omnibus order on the currently pending summary judgment motions.” 

The judge knows this.  And by now I'm sure he knows if he's going to call for a trial.  Given the wording of his last continuance, I assumed he thought that at least some of the issues will need to be heard in trial.

The Board finally says that Mr. White will be medically unavailable until early January 2014 and asks that the Court reschedule until early to mid-January. 

On October 31, 2013 the judge ordered:
"On 30 October 2013 the Board filed a second motion to continue trial.  The plaintiffs shall have until 1 November 2013 by noon to file an opposition.  The Board will have until 4 November 2013 by noon to file a reply."

What Does This All Mean?

There are a lot of issues swirling around in my head.  Foremost is a sense of the uncertainty of human existence and I want to take this chance to send my best wishes to Michael White and my hopes for a speedy and full recovery.  Over the last few years  covering the redistricting process, I've been treated in a fair and forthcoming way by Mike as have other members of the media.  He did this while also working vigorously on behalf of his client, as is his duty.

Some Issues That Scream Out At Me

Michael White's role in this case.  I don't think this can be overstated.  Michael White has been with the Board from early on and attended just about every meeting, watched every step of the way as the maps were prepared.  I doubt there is anyone who has as comprehensive a knowledge of what the Board has done.  His ability to talk about the case and recall the smallest detail is amazing - whether it's the state law, the federal law, a court case, or the redistricting process itself.  Plus he knows all the players.   Without White representing the Board, the Board's ability to defend its actions is greatly compromised.

White's co-counsel, Nichole Corr,  has been to a few meetings and I'm sure that she's been doing a lot of work on briefs all the while.  I'm guessing she's doing a lot of work now so that she can handle some or all of the work if it comes to that. 

That said, the Board's gone into the courtroom with an advantage over the plaintiffs whose attorneys have worked extremely hard, but who simply cannot know the details the way White does. 


a.  Timing of the Redistricting Process

Originally, the Board set up a fairly leisurely schedule and planned to have their third Plan completed by January 2014.  The plaintiffs challenged that pace arguing that there wouldn't be time for all the possible legal appeals if they waited until January 2014 to present their plan and the Court agreed telling the Board to get moving.

Basically the plan has to be finalized and in place by the end of May so that candidates for the August primaries will know their districts and so the State can prepare election materials.  May is cutting it pretty tight for those involved in the election.

The Board's original January target date would have given the appeals process four months to work itself out.  The current process proves the plaintiffs' point and vindicates the judge's decision to force the Board to move much faster.

The current Plan was finalized July 14, 2013.  It is now November 1 and the Board is asking the trial to be postponed until January - six months after the Plan was completed.  That's two months more than they said was necessary last year.  And if the judge has problems with the plan and tells the Board to make changes?  How long will that take and how long will the appeal of the new plan take?  The Board's original plan was declared unconstitutional by the Alaska Supreme Court and they approved an interim plan because there wasn't enough time to make a new one in time for the election.  No one wants another interim plan.  No one. 

b.  Timing of White's Treatment

White's expectation of when his radiation treatment would be complete was wrong.  Skeptics might question why his Seattle doctors were two weeks off in their estimate of the time of the radiation.  Or why, if White learned about the extra two weeks on October 14, it took another ten days for the Board to meet about this, and six more days to inform the Court.  I do not see any game playing here at all.  White has gone through a life altering experience - physically and emotionally - and I give him lots of slack on processing this information and conveying it to others.  Looking online, I found an oral cancer site and a cancer research site that both said a mesh mask could be made pretty quickly, so it is very reasonable for his Seattle doctors to assume that and for Mike to find here a doctor who is using a more complex mask and procedure.  The Mike I have come to know over these last couple of years is a bulldog.  I'm sure that before he accepted this delay he researched and questioned his doctors and tried to find a way to be ready by December. I wouldn't be surprised if he was still arguing with the doctors when he met (telephonically) with the Board and they gave him a couple days to be sure before he asked for the postponement. 

c.  Timing of White's Recovery and the Case

It sounds to me Mike is taking the optimal recovery time in his request for a delay.  What if he has a normal recovery, or a slower recovery?  The surgery was in his mouth and I assume the radiation will be as well.  Even if his mind is totally back to normal, what about his speaking ability, and his energy level?  How will a week of court time affect his recovery?  And what happens if he needs more time?

The case may not be settled in January.  If the Court has serious problems, the Board will no doubt appeal that to the Alaska Supreme Court.  And, of course, the plaintiffs could appeal if it went against them.  We'll be in February by then.  What if changes will have to be made to the maps?  Can they be made and appeals be done in time for the 2014 election?  It could be tight, but I expect that any changes would be to specific districts and, despite the Board's ripple affect arguments, could be done without changing the rest of the map.  The Board made just such surgical adjustments to a few districts and was able to leave all the rest unaffected in 2012.

And Nichole Corr, and possibly another attorney at Patton Boggs, has had a couple of months now to get up to speed on this.  They've got six more weeks to cram before the currently scheduled December date and about a month more if the trial were postponed until January.

If the Board were to ask for another delay, I'd expect that the probability of the court appointing a master to fix the map goes way up. 

[I really am working on a post about District 5 and possibly 3.  It's just complicated. I'll try to post it soon.]

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