AK Redistricting Pre-Trial Hearing - Board Strategy Is Clear And Working

Another 90 minutes or so of five plaintiffs, an intervenor, a defendant, and a judge wrangling over the rules, less than two days before the trial begins.  [NOTE:  My quotes from the hearing are based on my faulty fingers trying to keep up with the speakers and don't represent verbatim quotes, but do give a sense of what was argued.]

Biggest news:  The Supreme Court overturned Judge Matthews' denial of the Board's request for a stay in turning over the emails between the Board members and their attorney.  Matthews had granted the Anchorage plaintiffs' request that Matthews review the documents to determine if they really have legitimate attorney-client privilege content.  The Board's attorney had asked for a stay and Matthews had rejected that request because the trial is so near and the plaintiffs don't have much time left.  Singer, the Board's attorney had agreed to deliver to the court a thumb drive with the documents after the judge promised that he wouldn't look at them if the Supreme Court ordered a stay.  Then a little later, during the meeting, they did.   Both Singer and Matthews said they expect a decision tomorrow.  

Observation:  It's gotten clearer and clearer that the Board's attorney's strategy has been to keep the plaintiffs from getting the information that they need.  The plaintiffs have been asking for these emails for a month now and when they are finally delivered to the judge the Supreme Court puts a stay on them.  Even if the Supreme Court lifts the stay and agrees with the judge's order, it's getting a little late for the plaintiffs to use the information.  The Anchorage part of the trial (over the Eagle River Senate pairings) will be Friday.  Aside from everything else the judge has to do in preparation, he may also have to read the emails - though they've been narrowed down to around 200 specific ones.  And then decide which to release.  And then get them to the attorneys.  

From what I understand of the discussion today and previous hearings, Singer has limited what information the plaintiffs' attorneys could get from the Board members.  He's done this through offering affidavits from the Board members in response to some of the attorneys.  Others have been able to get depositions.  Affidavits are where the witness writes up a statement.  I've read several that are posted for this trial.  They say very little.  In other cases, where there were depositions, Singer has told the Board members to refuse to answer many of the questions based on Attorney-Client privilege.  Last week when Holly Wells, the attorney for the Anchorage plaintiffs, raised this point while arguing that the attorney-client privilege claims were too broad, Singer said that they could ask the question in court and the judge would decide if they should answer the questions.  

But today he protested those same attorneys wanting to question the Board members.  From my notes: 

"Plaintiffs are trying to amend the process at the last minute before the trial.  It was very clear.  No one has right to do direct testimony.  We get the same right as any other party about who to call and defend these cases.  These folks have jobs and other commitments.  Changing the rules of the game 24 hours before the trial.  They asked for 5 separate trials and now they want a free for all for any lawyer asking questions at any case."

There's a lot packed into that.  First there's the bravado.  Singer is good at that.  It wasn't apparent at the Board meetings, but he throws out claims like "changing the rules at the last minute" with ease.  He made that point several times.  Let's try to unpack that a bit.  

1.  Direct Testimony at trial. "No one has a right to do direct testimony."  Yes, but no.  They had agreed that direct testimony would be through the depositions and affidavits in the discovery phase and in the courtroom, they would do cross exams.  To that end all the depositions and affidavits are on the record.  But Wells had argued that when she deposed Board members, Singer advised them not to answer because of attorney-client privilege.  She said that she'd agreed to only cross exams in the trial before she did the depositions and found out that they would not answer - so she has to do direct questioning in the trial because there isn't any basis for cross exams.  

Singer: I acknowledge, none of those witnesses have anything against that case   Ms. Wells has their affidavits.  I have no obligations to provide those witnesses.  We decided on which board member to offer for which case.

Wells:  Our position is intact. A board makes decisions as a Board, they did submit affidavits and goes to their ????

Singer:  Opportunity to do direct - that’s inconsistent from pre-trial from day one.  Solution - eight/nine hours of deposition from Borromeo.  That’s the way to present testimony.  Budd Simpson will be here Friday.  He’s offered on this.  [NOTE: Yes, Borromeo has lots of deposition time, but it's for the Valdez and Mat-Su cases that she worked on and agrees with the Board decision and not the Anchorage case on which she strongly disagreed with the Board majority.]

Wells:  All Board members are on our witness list and stay in the confines of the affidavit they submitted.  

And a little later

"Singer:  Plaintiffs trying to amend the process at the last minute before the trial.  It was very clear.  No one has right to do direct testimony.  We get same right as any other party  - who to call and defend these cases."  

Singer has done a good job of blocking the plaintiffs from getting the information they need.  Transcripts of Board meeting last November only showed up last week.  He's also claimed a very broad attorney-client privilege right to keep the plaintiffs from getting testimony. [I've discussed attorney-client privilege at more length in the last two posts - here and here.]  

At a previous hearing Wells complained that there was no direct testimony to cross examine because Singer had the Board members refuse to answer based on attorney-client privilege.  Then, Singer said something like, "You can ask your questions at the trial and the judge can decide if something is privileged or not."  Now he seems to have conveniently forgotten that offer.  But Judge Matthews didn't forget and raised that and said that's how it will go.  

In addition the transcripts from the Board meetings are part of the record and Board member Borromeo said then that the decision was unconstitutional and she couldn't wait to be deposed.  I guess Wells can ask her what she meant by that.  

The judge allowed that he'd call it as it comes along.   

2.  Trial Order.  Brenna had said that he thought they'd change the order of the cases when he (the Valdez case) and Mat-Su agreed to combine their cases since Mat-Su is complaining that Valdez is in one of their districts and Valdez is complaining that they were paired with Mat-Su.  But no one else except Mat-Su's attorney had that understanding - that they would go last.  I'm guessing that Valdez and Mat-Su, meeting together to discuss how to work jointly, agreed, but failed to adequately inform the others and get it approved.  In the end they agreed to the original order:

1.  East Anchorage case (the same thing I keep calling the Anchorage case)

2.  Mat-Su

3. Valdez

4. Intervenors - intervening on behalf of the Board 

5. Calista

6. Skagawy

3.  Separation of cases and whether attorneys can cross examine witnesses for the other cases.There was some squabble by Singer over comments by plaintiffs' attorneys saying they may want to question Board members as they come up as witnesses in other parts of the trial.  

"Singer: These folks [Board members and other witnesses] have jobs and other commitments.  Now we're changing the rules of the game 24 hours before the trial.  They asked for 5 separate trials and now they want a free for all for any lawyer asking questions at any case."

There were five separate cases filed against the Board.  The court consolidated all five cases into one case.  And they agreed early on that instead of one big case - which might be hard to organize and would leave a confusing record for the Supreme Court - it would be easier to try each case one by one.  The judge allotted two days for each case - one day for the plaintiffs and one for the defense. 

Then they further agreed since the Mat-Su and Valdez cases were about the same issues and would have the same witnesses giving the same testimony, to combine them, the judge allowing the two attorneys to work out how they would schedule.  

 In response to Singer's free-for-all comment Wells said:

"This is still a consolidated case, Pretrial clear.  This is one case with evidence taken at several times.  Not five distinct trials with distinct findings.  Much more important that case remains consolidated.  We will rely on the whole case for final argument.  I want that distinction to be clear."

Judge Matthews, after listening a while, said that things would be fluid.  

"Matthews:  A touchy subject for everyone.  Court’s function is to make the best possible decisions I can.  You all are shaping the testimony.  I’ve been given a hybrid case - but it may well be I’m listening to witnesses and if I don’t hear an answer to a question I need, I’ll ask that question.  If affidavits of Board members weren’t available before  Plaintiffs were allowed to get affidavit from Board members. . .  Plaintiffs have listed some or all of the Board members as witnesses.  These witnesses are important to the decision the court has to make.  I’m going to hone in on Bahnke and Borromeo, and I won’t stop cross even if there is no direct testimony.  Second question with privilege assertion - if there are questions that weren’t allowed at the time, if the Supreme Court allows it, I’ll allow the questions."

4.  Time 

As people were asked about how much time they would need, it sounded like they thought the trial would take less time than anticipated. Singer said he didn't plan to spend much time cross examining  the Anchorage lay witnesses, but more time - perhaps an hour or so for the expert witness.  And Wells seemed to think she could do things in half a day and so the Anchorage trial would be over in one day, not two.  That even led to a request to start on Monday, but the judge resisted, saying witnesses already had travel plans and there was also concern about it getting tight on the other end. But this was a heads up that the trial could shorter.  

Final Thoughts

Essentially, Matt Singer, the Board's attorney, has been arguing about process and procedure. He's the defense attorney and he's been defensive.  He's been doing a lot of blocking 

He's acted confident in the way he spoke that there was no other correct position than his own on attorney-client privilege.  He called the plaintiffs' arguments 'laughable.'  He's stalled in getting the transcripts from the November board meetings to the plaintiff's attorneys.  He's used attorney-client privilege to block Board members from saying much in some depositions. The plaintiffs' attorneys didn't have the Board meeting transcripts or the affidavits when the deposed Board members and other witnesses.  He's blamed the transcription service for some of the delays.  He's blamed all the paperwork he needs to get into the court for other delays.  And, that point has some merit.  He's got five separate attorneys filing requests and motions and he has to respond to them all.  But in his firm's proposal to be the attorney for the Board, they talked about all the lawyers who would be available to back him up.

In a normal two party court case, there would be two lawyers duking it out of these rules.  But here, when one is finished, another jumps in, and then another.  

The most focused and on-point attorney appears to me to be Holly Wells, the attorney for the Anchorage plaintiffs.  She keeps her comments short and to the point and cites relevant laws succinctly.  Robin Brena, the attorney for both the Valdez and Skagway cases, is a bit talkative, but he does make important points.  The other attorneys have said much less.