Sunday, November 17, 2013

Redistricting - Waiting On The Judge. What MIght He Say And When?

[This post meanders far more than I intended.  If you want to get to the meat of things, skip down to the conclusion at the end.] 

Judge Michael McConnahy's August 28 order  included a "Briefing Schedule" requiring that parties:
"must file a motion for summary judgment regarding all such concerns within 15 days of the date of the distribution of this order.  The Board shall have 10 days to file its opposition.  Replies, if any, are due 3 days thereafter. "

Fifteen days from August 28 gets us to Sept. 15
Ten more days gets us to Sept. 25
Three more gets us to Sept. 28.

There is also a section just called "Scheduling."
  • "It is the intent of this court to have all issues resolved within 90 days"
  • "If testimony is required the court anticipates setting a trial week on short notice"
Ninety days gets us to November 28.  That would have everything resolved by Thanksgiving.

On September 25, the judge set a tentative court date of November 7-15.  He wrote:
"Various motions are pending before the court.  It is not clear whether an evidentiary hearing will be needed on any issue.  The court will make that decision after the pending motions are ripe.  At the time the court will issue an omnibus order addressing all pending issues and note what, if any, issues require an evidentiary hearing.
For planning purposes the court has reserved full trial days [8:30 am to 4:30 pm] from 7 November 2013 through 15 November 2013.  The court expresses no opinion at this time whether such an evidentiary hearing will be necessary or that any such hearing would require all the allotted time.  The omnibus summary judgment order will address those details, including any time limitations on specific issues.  The intent of this order is simply to allow the parties to plan their schedules accordingly."

"Ripe" in the legal sense here would mean, I guess, when all the motions have been filed, but I'm not sure.  They should have been filed September 28.

But on October 3, the judge issued another order.  This one responded to a request by the Board to postpone the trial until December because of their attorney's illness.  The other parties had no objections and the judge set a new date:  December 9-16.  He also said:
‘The need for a hearing and on what specific issues will be addressed in the omnibus order on the summary judgment.”
 I originally read that to mean that the judge expected there to be a hearing on some of the issues.  It sounded a lot more certain than the previous "it is not clear whether an evidentiary hearing will be needed on any issue."

On Monday (tomorrow) there will be three weeks left until the tentative starting date of the December trial.

What exactly might the judge rule?  (Remember, I'm not an attorney.  I'm just applying lay logic to what I've been reading. Winging it might be more accurate.)

  • He could make a summary judgment on all the issues before him, none, or something in-between.  
    • If he makes a summary judgment on all the issues, there would be no need for a court hearing.  (Though one or both parties is likely to appeal to the Supreme Court.)  
    • If he makes summary judgment on some issues, but not all, as I understand this, the parties would argue their points on the remaining issues in court. 
  • He could rule everything for the Board or everything for the plaintiffs, or some for each.  
    • If he determines any of the issues for the plaintiffs, he could order the Board to fix things or he could send the resolution of all this to a master. 
How likely is the judge to send it to a master?  There have been calls by the Democratic Party and an editorial in the Anchorage Daily News seeking this option

The Alaska Constitution is vague on this.  It (Article 6 §11) says:
"Upon a final judicial decision that a plan is invalid, the matter shall be returned to the board for correction and development of a new plan. If that new plan is declared invalid, the matter may be referred again to the board. [Amended 1998] "
The original plan and a second plan have already been sent back to the Board.  The language says that "the matter MAY be referred again to the board."

It doesn't say what other option that Court has if it doesn't refer it to the Board again.  The Alaska Rules of Civil Procedure - and I'm now treading on topics I know little about except what I can find online - give a Superior Court the ability to appoint a master or masters.
[Rule 53] (b) Powers. The order of reference to the master may specify or limit the master's powers and may direct the master to report only upon particular issues or to do or perform particular acts or to receive and report evidence only and may fix the time and place for beginning and closing the hearings and for the filing of the master's report. Subject to the specifications and limitations stated in the order, the master has and shall exercise the power to regulate all proceedings in every hearing before the master and to do all acts and take all measures necessary or proper for the efficient performance of the master's duties under the order. The master may require the production of evidence upon all matters embraced in the reference, including the production of all books, papers, vouchers, documents, and writings applicable thereto. The master may rule upon the admissibility of evidence unless otherwise directed by the order of reference and has the authority to put witnesses on oath and may examine them and may call the parties to the action and examine them upon oath. When a party so requests, the master shall make a record of the evidence offered and excluded in the same manner and subject to the same limitations as provided in Evidence Rule 103(b) for a court sitting without a jury.
(d) Report.
(1) Contents and Filing. The master shall prepare a report upon the matters submitted to the master by the order of reference and, if required to make findings of fact and conclusions of law, the master shall set them forth in the report. The master shall file the report with the clerk of the court and in an action to be tried without a jury, unless otherwise directed by the order of reference, shall file with it the original exhibits. The clerk shall forthwith mail to all parties notice of the filing.


The judge is expected to offer his "omnibus ruling" fairly soon.  There are only three weeks left before the tentatively scheduled trial.  The attorneys and the Board all need to make their travel arrangements, should there be a trial, to get to Fairbanks.

And, the attorneys would need to prepare for their arguments in court.

But, if the judge has decided that he has sufficient information to make a summary judgment on all the disputed issues, there would be no need to have a trial.  He could actually meet his 90 timetable, set in August, if he ruled on all the issues by November 28 (which is Thanksgiving day.) 

But if the judge rules parts or all of the plan unconstitutional, will he send it all back to the Board or will he appoint masters to finish off the process?  Appointing masters would say that the constitutionally established process failed and given the time constraints until the next election and the Board's performance so far, he sees no option for a constitutional plan except to now by-pass the Board.  That's seems like a step that a judge would be reluctant to take unless he felt he had no choice. 

1 comment:

  1. Steve - your mailbox is full. The Judges order is out. Email me if you still haven't seen it. Can't seem to post the link here...Ernie Weiss


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