What The Judge Decides Will Depend On The Intent/Meaning of Socio-Economic Integration

 I imagine the judge up late last night, writing, then stopping to look things up in the materials the attorneys submitted, in the transcripts of the Board meetings, in Hickel v Southeast Conference, and other Supreme Court rulings on redistricting.  He's busily reviewing what he's written, having staff check for typos, and generally giving himself as much time as he can, so he can get it as right and as inclusive as possible.  

Fortunately, blog posts aren't as consequential.  But I can't help thinking about the factors Judge Matthews has to balance.  While compactness, contiguity, deviation, all count, I think that the interpretation of Socio-Economic Integration (SEI) will be the most critical.  But issues about public participation and gerrymandering will also be in the mix.  

So here's a look at the cases being decided and another look aback at the Hickel case.

That case was decided December 29, 1992. (Not to be confused with a 1994 case with the same name which settled payment of attorney fees on the original case.)  

At that time redistricting was done by the Governor.  A 1998 Constitutional Amendment gave the process to a Board of five.  The Governor chooses two members  and the Speaker of the House, Senate President, and Supreme Court Chief Justice each choose two, "without regard to political affiliation."  

I add that last note because the Governor clearly used political affiliation in his choices.  Board member Budd Simpson said as much when questioned by Skagway attorney Robin Brena.  Those choices were clearly unconstitutional, but whether the courts take that into consideration remains to be seen.  While there were situations where incumbents of the same party were paired or other instances where decisions were made that will have partisan impacts, those weren't direct targets of lawsuits.  However, the East Anchorage attorney has charged that the Eagle River pairings were done to give (very Republican) Eagle River an extra Senate seat, so this is on the record for the judges to use if they see fit.  

But the critical issue as I said in all of the cases boils down to the meaning of Socio-Economic Integration (SEI), one of the four key criteria for evaluating the constitutionality of a district.  The other three are 

• equal sized districts
• compactness
• contiguity

From Article 6 Section 6 of the Alaska Constitution:

§ 6. District Boundaries

The Redistricting Board shall establish the size and area of house districts, subject to the limitations of this article. Each house district shall be formed of contiguous and compact territory containing as nearly as practicable a relatively integrated socio-economic area. Each shall contain a population as near as practicable to the quotient obtained by dividing the population of the state by forty. Each senate district shall be composed as near as practicable of two contiguous house districts. Consideration may be given to local government boundaries. Drainage and other geographic features shall be used in describing boundaries wherever possible.

 The key guidelines the Board's attorney, Matt Singer, has used for SEI has been:  Everything within a borough is SEI. And that was said clearly

"Everything within a borough or city boundary is SEI."

 Therefore, according to Singer, talking about SEI within Anchorage is besides the point.  He even cited the Supreme Court as saying at one point that Mat-Su and Anchorage could be combined and so he stretched that, at times, to claim all of Mat-Su and Anchorage are SEI. He backpedaled on that during the mapping, but he even claimed, in the closing argument (if I recall right) that at one time the court had allowed Valdez to connect to Anchorage, and since all three shop in Anchorage and use the Anchorage Airport, they can all three be considered SEI.  

My lay reading of the Hickel case  and the Constitution make me believe Singer's interpretation is much more simplistic than the Supreme Court's.  Valdez and Skagway attorney also sees it differently. 

The Constitution says "as near as practicable a relatively socio-economic area."  Each criterion is qualified with "as near as practicable" because they all have to be balanced to form each district and then to put all forty districts together.  As you get closer to the ideal in one criterion, you get further away in others.

In the Hickel case, PART II:  LEGISLATIVE REAPPORTIONMENT begins with this quote from the Alaska Constitutional Convention:

"Now the goal of all apportionment plans is simple: the goal is adequate and true representation by the people in their elected legislature, true, just, and fair representation. And in deciding and in weighing this plan, never lose sight of that goal, and keep it foremost in your mind; and the details that we will present are merely the details of achieving true representation, which, of course, is the very cornerstone of a democratic government."

3 Proceedings of the Constitutional Convention (PACC) 1835 (January 11, 1956). [1835 is the page number]

This seems to make it pretty clear that 'the details' are a means to an end.  So, what does that mean?

Hickel then says the various criteria - size, compactness, contiguity, and SEI - have to be fit together. That's the hard part, but they help constrain the Governor (at that time) from gerrymandering. They give several definitions of gerrymandering, but the essence seems to be

Gerrymandering is the dividing of an area into political units "in an unnatural way with the purpose of bestowing advantages on some and thus disadvantaging others." 

 "Gerrymandering is `the deliberate and arbitrary distortion of district boundaries and populations for partisan or personal political purposes. , ,'"

While people often think of gerrymandering as being directly related to giving advantage to one party over another, these definitions cited in the Hickel case are broader than that.  They include "partisan" [that would be political party] or 'personal political purposes'. [that would mean more for personal power advantage.] 

They then tell us that limiting SEI can only be done to increase compactness and contiguity, NOT to achieve some other goals.

The requirement of relative socio-economic integration is given some flexibility by the constitution since districts need be integrated only "as nearly as practicable." Alaska Const. art. VI, § 6. However, the flexibility that this clause provides should be used only to maximize the other constitutional requirements of contiguity and compactness. The governor is not permitted to diminish the degree of socio-economic integration in order to achieve other policy goals.

There's a lot more discussion, but one more quote on SEI from Hickel:

"Relatively" means that we compare proposed districts to other previously existing and proposed districts as well as principal alternative districts to determine if socio-economic links are sufficient. "Relatively" does not mean "minimally," and it does not weaken the constitutional requirement of integration. 

Skagway Case 

ASIDE TO READERS:  You can see how hard it is to separate one concept from another.  I'm trying to talk about SEI, but all these other factors are intimately related.  In the case of Skagway, attorney Brena has argued with lots of supportive data, that Skagway is significantly more SEI with downtown Juneau (with which it is currently paired in a district) than it is with the Mendenhall Valley (in the Juneau Borough) where Board member Simpson put Skagway in the new maps.  Singer is using "Everything in a Borough is SEI" to say that it doesn't matter, constitutionally, if Skagway is with Mendenhall Valley or with downtown Juneau.

Brena has argued that it does matter.  He's also arguing, without saying it out loud, that there is gerrymandering going on.  He's given the court all the pieces to put together:

1.  Simpson was picked because he's a Republican

2. He and his wife have been strong supporters of building a road to Skagway from Juneau

3. He's given election results to show that Mendenhall Valley favors the road and downtown Juneau doesn't

4. He's offered evidence that a road would devastate Skagway's economy as the 'Gateway to the Klondike" and as a cruise ship destination (the source of over 90% of their income).  [Maybe it would, or maybe there would be new opportunities, but they seem to believe it would.]

5. He's shown public testimony being overwhelmingly in favor of Skagway staying with downtown Juneau and not splitting up the Mendenhall Valley.  (Another complication because I haven't cited above the part of the constitution that says the board needs to spend six weeks getting feedback from the public on their draft plan. So what the public thinks matters, but the Board's attorney brushed it off with "This isn't a popularity contest.")

So Brena, all together, is giving the Court the pieces to see that Simpson ignored the close SEI ties between downtown Juneau and Skagway to put them into a district they aren't so SEI with.  This will mean their "adequate and true representation" will be diluted by having a representative who represents mostly people who want to build the road to Skagway, which they strongly oppose.  And Simpson did this, ignoring public opinion,  to further his personal political purpose of building the road to Skagway. 

So, the court has to balance Singer's mantra of "everyone in a Borough is SEI" with all these other factors that Brena says  need to be considered.  

So it seems that in trying to provide legal perspectives on SEI, I've essentially laid you Robin Brena's case for why Skagway should be with downtown Juneau.  I'd also note, this is the easiest case to fix.  No other districts need to be affected.  Just move the line south to add about 4000 people and reunite the Mendenhall Valley community.  Then take out Skagway, Haines, and Gustavus - also close to 4000 - and put them with downtown Juneau.  

East Anchorage Case

Issues here:  Compactness, Contiguity, and Socio-Economic Integration.  Also some hints at

gerrymandering.  

1.  Contiguity is a possible big issue here, so let's see what Hickel said (in part, of course) 

"Contiguous territory is territory which is bordering or touching. As one commentator has noted, "[a] district may be defined as contiguous if every part of the district is reachable from every other part without crossing the district boundary (i.e., the district is not divided into two or more discrete pieces)."

The Board's interactive map makes the two Eagle River districts D22 and D24 purple so you can't really see which is which.  But they're paired with Elmendorf/Govt Hill (D23) and that little orange almost rectangle in the middle left (D21).  From Government Hill you'd have to drive through two districts to get to the other district in your Senate pairing.  From you South Muldoon you'd have to do the same.  Not contiguous in that sense.  Unless you want to hike over a mountain range.  

The Eagle River district maps only show parts of the districts.  It's hard to figure how they fit into this map above.  

East Anchorage is about the pairing of Senate districts and the only factor mentioned in the Constitution is contiguity.  

The two house districts paired here are contiguous geographically.  There is a large part where both districts touch.   But it is roadless land - mountains and different river drainages.  To get from the South Muldoon district to the Eagle River district you have to drive out of the district through other districts about eight or ten miles.  

The courts allowance of contiguity via roadless areas was originally in recognition that the State has many communities off the road system.  So that makes sense in rural areas.  It doesn't making sense in urban districts.  (Urban districts are also expected to have lover deviations (from the ideal population) than rural districts.  

2.  Socio-Economic Integrity

The two Eagle River districts which adjoin each other like the two halves of an apple (a very odd shaped apple) are among the whitest and wealthiest districts in Alaska.  The homes are large and many on large secluded lots.  The south Muldoon district is has a population made up of a large percentage of people of color and immigrants - actual population is close to 50%, voter age population is lower.  When a Muldoon house district was paired with an Eagle River district in 2013, the State's only black Senator was trounced in the next election.  

So the goal of reapportionment, from the Constitutional Convention of "adequate and true representation by the people in their elected legislature, true, just, and fair representation" is what the Court should be considering closely, because the people of south Muldoon are not going to get fair representation in the Senate with this pairing.  Continuity and compactness were also sacrificed to form this and the other Eagle River district that goes to Government Hill and parts of downtown.

Gerrymandering is also an issue here.  Board member Marcum said at the Board meeting that this pairing would give (Republican) Eagle River an extra Senate seat.  

Putting the two Eagle River house districts into one Senate seat is the most obvious and natural pairing on all factors, for both Eagle River and the two Anchorage districts they were paired with.  It would require repairing [pair them with different house districts*] some of the north Anchorage bowl house districts, but wouldn't be difficult and wouldn't affect other parts of the State.  

*Someone was confused with 'repairing' thinking I meant to fix, but I meant to re-pair them with other districts.

Calista

I have much less sense of this case.  Essentially, there are enough Calista Native Corporation members for one and a half house districts and about 70% of a Senate district.  The Board's map spreads them out over three house districts (D37, D38, D39) and two Senate districts.  They didn't come up with a map that puts all their members in two districts, but they did, if I understand this right, manage to increase their percentage in the third district from 1% to 10% (or something like that.)  

From Calista's Findings of Facts and Conclusions of Law:

From the Board's Interactive Map

"Calista’s goal was to achieve more effective representation for its region by consolidating more of its population into fewer districts, specifically by having Hooper Bay, Scammon Bay, and Chevak—which were historically in a district with Nome (District 39)—moved into the Bethel district (District 38), and shifting other Calista villages into the district to the south (District 37). While the Calista Region would still be split across three house districts and two senate districts, this would concentrate more of the region’s population into two house districts and one senate district in a manner that would have a meaningful effect on future election outcomes."  [emphasis added]

The goal, according the Calista President and CEO Andrew Guy, is to gain more control of a Senate seat.  

This would appear to be consistent with the idea of 

"the goal is adequate and true representation by the people in their elected legislature, true, just, and fair representation"

This case specifically raised the issue of gerrymandering:

"Multiple Board members had actual conflicts of interest. Member Bahnke is the President and CEO of Kawerak, Inc., the nonprofit arm of Bering Straits Native Corporation, which has an interest in District 39.7 Member Borromeo is a Doyon shareholder and the evidence at trial demonstrated that she was in close communication with the Doyon Coalition’s attorney about District 36 throughout the redistricting process.8 Member Simpson is outside counsel to Sealaska, an ANC in the Doyon Coalition, and testified that he receives six figures in billings from Sealaska annually and communicated with Sealaska about District 36 while working on the maps.9"

Particularly that the drawing of D36 and D39 unfairly impacted how D37 was drawn.   

Part of their proposal would move Tyonek out of D37 and put it back with Kenai Borough which it is part of.  (The fact that Kenai Peninsula Borough was broken twice, but the Board stubbornly refused to do that with Fairbanks raises questions about the consistency of the Board's rules.)  This will cause a ripple effect that Doyon Intervening attorney Admdur-Clark argued would ripple into many other districts, meaning the Board would have a bigger job.  

Mat-Su and Valdez

I've spent a lot of time on this in previous posts.  Again Brena made a strong argument about competing interests between Mat-Su and Valdez, which means Valdez wouldn't achieve 

"the goal is adequate and true representation by the people in their elected legislature, true, just, and fair representation"

There are also contiguity issues because you have to cross into District 36 for over 100 miles to get back to District 29 and drive into Mat-Su where 76% of the population of the district lives.

Brena also raised the issues of various Board members protecting their interests - getting all the Doyon and Ahtna villages into D36 for example - that meant that Valdez' normal pairing with the Richardson Highway communities was foreclosed.  

Ruling in favor of Valdez will cause the Board the most headaches, because it will affect a lot of other districts, either directly, or through ripple effects.  

So, sometime in the next 12 hours the Judge Matthews' decision should be known.  

I'd make a correction to what I wrote in the previous post.  I said if they can't get a final map done in time for the Division of Elections, then the Proclamation Plan map would be used.  That's what happened in the 2012 election.  But as I read the Hickel case again, I saw that another option is to have the trial court judge get a map done in time for the election.  

"In a separate Order of Remand, later corrected, we directed the superior court to remand the case to the Board for formulation of a final plan. However, because of time constraints, we also directed the court to formulate an interim plan so that 1992 state elections might proceed in conformity with the requirements of the United States Constitution, the Alaska Constitution and the federal Voting Rights Act. Further, we authorized the court to employ experts or masters to assist in the formulation of an interim plan. See Appendix C.

Thereafter the superior court appointed three masters. After receiving instructions from the court and reviewing alternative plans proposed by the parties, the masters presented a recommended interim plan to the court on June 14. In Orders dated June 18 and 19, the superior court accepted the Masters' recommendation, with several modifications including a redrawing of the Fairbanks House Districts. The parties cross-petitioned this court for review of the court's orders. On June 25, after considering oral and written arguments, we granted the petition and affirmed the court's interim plan with modifications required by our determination that the court had erred in redrawing the Fairbanks House Districts."

Day 7 AK Redistricting Trial: Calista Challenging Board's Maps So They Can Control A Senate Seat

[The title is more provocative than normal here, but this was said very clearly yesterday and today in the trial.  Read on.]

What are findings of fact and conclusions of law and what is their purpose?

Findings of fact take the place of a jury’s verdict and provide the factual framework for the court’s judgment. In cases tried without a jury, findings of fact delineate the facts that support the judgment. As they are often described, findings of fact in a bench trial have the “same force and dignity” as a jury’s answers to jury questions. . . . Conclusions of law, as the name suggests, identify the legal basis for the judgment based on the facts found.  From "How To Draft Good Findings of Fact and Conclusions of Law"

Court started with 'housekeeping' items, a key one was when findings of facts and conclusions of law would be due to Judge Matthews.  February 9.  Closing arguments will be February 11.  

Then there was testimony from Calista witnesses:  Harvey Sundown and Myron Naneng, plaintiffs in this case.  They testified from Scammon Bay and Bethel respectively.  Testimony for the two was less than an hour including technical difficulties hooking up and getting unmuted.  We learned that all the villages in the area are closely linked to Bethel, all speak Central Yup'ik, and basketball is big.  For the nearby villages the families and players go by snow machine, if further, the players fly.  

From what I could tell the Board's attorney was just trying to establish that all the villages are socio-economically integrated.  Calista is trying to switch three villages into the Bethel district  (38) and three out of 38 and into D37.  Speciically tthat Scammon Bay, Hooper Bay, and Chevak be included in District 38 and that Kwigillingok, Kongiganak, and Quinhagak be included in District 37.

The reason for all this didn't become clear until Randy Ruedrich was on the stand.  Eventually was clearly stated that the goal was to increase the percentage of Calista shareholders in District 37 so that Calista would have more power to elect (between the two house districts) the Senator of their choice.  Ruedrich was clear that while Calista has enough population for 1.5 districts, they are spread over three districts.  The Calista map Ruedrich made gave Calista 10% of D37 while the Board's map only made the 1% of the district.  

Singer pointed out that Sen. Hoffman is the longest serving Senator in Alaska history and won his last election with 90% of the vote.  Ruedrich countered with what Andrew Guy had said Friday, that Hoffman wasn't going to be the Senator forever.  He added that once a well know and popular incumbent is gone, it's risky and no telling what will happen.

Singer pursued other parts of the AFFER map for Alaska trying to point out that it would have ripple effects all over the state map.  

Ruedrich was on the longest - over an hour I think - [I used PT when I started because that's what my computer is on, but I think I switched to Alaska time part way into the hearing].  

The final witness was Thomas Leonard, Calista Corporate Communications and Shareholder Services.  His questioning didn't last more than five minutes. 

I'd recommend a look at the Calista website. It's much more focused on corporate business than culture and history found on the Doyon and Ahtna websites I linked to the other day.  

Today they clearly said what I've been thinking about for several weeks now:  what does it mean to have a corporate district?  I don't know, just asking the question.  Clearly, Native Corporations have social obligations to their people, but they are also large for profit corporations that are driven also by the need to make profits for their shareholders - for dividends and for social services.  

How would people react if Exxon wanted its own district?  Well, that's a silly question since they have their own Senators without needing to bother with elections - just the elimination of caps on campaign contributions.  Calista's website strongly supports building the Donlin Gold mine.

“Calista Corporation’s priority is supporting Shareholders by protecting our land, our traditional way of life and promoting economic opportunities that benefit our people. We support the Donlin Gold Project because strict environmental oversight, good-paying jobs and affordable energy brought by the project will allow us to grow healthy communities.”

Robert Beans, Calista Corp. Board Chair

I don't want to second guess Calista's corporate leaders.  I know they believe that they have the best interests of their people in mind.  But the promise of huge wealth often makes it easier to overlook the damage that acquiring it causes.  It's a human failing world wide.  So far the fear of of the impact on salmon has kept Pebble Mine at bay, but backers haven't given up. I listened to their engineers who said they'd learned from previous mining failures.  But I know before those previous mining failures happened, there were engineers who had said the same thing about those mines that came before them.  Canadian mining doesn't have a great environmental record.  

I'm excited that Alaska Natives are gaining more power and control over their lands. I think that's a good thing.  My concerns are the same I have for any large for profit corporation.  I know that requiring Alaska Natives to become capitalists meant requiring them to acquire a way of seeing the world that is antithetical to traditional native culture.  I'm sure Andrew Guy could tell me why I'm wrong. And he might have a good balance of values.  But the corporations pushing the Donlin mine don't.  

And given what I wrote yesterday about Valdez' case, aligning socio-economically integrated populations into districts so they can elect legislators who will strongly support their interests is why that criterion is in the Constitution.  Valdez' complaint was that Mat-Su would own their Legislator, not Valdez.  

Redistricting Board members will be on the stand tomorrow.     

Your Crib Sheet For Friday's Opening Day Of The Alaska Redistricting Trial

 There were originally five separate cases (links go to the original legal complaints):

• East Anchorage challenged over the Eagle River senate pairings
• Mat-Su challenged over being put into a district with Valdez
• Valdez challenged over being put into a house district with Mat-Su and separated from the nearby communities along the Richardson Highway
• Calista challenged over  Hooper Bay, Scammon Bay, and Chevak being put in a House district separate from that of the City of Bethel.
• Skagway challenged over being paired with the Mendenhall Valley rather than downtown Juneau

The five cases were consolidated into one case.  But the plaintiffs, the Board, and the judge all agreed to have them tried separately to make it easier to keep the issues clear and to establish a record for the appellate court.  Later, they also agreed to have Mat-Su and Valdez combine because the issues are the same and to eliminate repetition of witnesses and testimony.  So that's where we are today.  

The cases will be heard in court in the order I've listed them.  So we start tomorrow and 8:30am Alaska time.  You can listen in on Judge Thomas Matthews' Youtube channel.

Different from most trials, the opening arguments and direct testimony (original questioning of the witness in the court room) was done in writing and submitted to the court before the trial.  This was done to save time because the case has to be done 120 days before the date candidates have to file to run for office - June 1. That is the end of January.  

So, since you won't hear the opening argument in court, I'm going to give you the opening parts of it and if you want to see the rest, you can see the East Anchorage pre-trial brief and opening statement here.   I'd note the lead attorney in this case is Holly Wells of the law firm Birch Horton Bittner & Cherot.  She has done many workshops for state boards on how to comply with the public meetings law in Alaska.  She's also been one of the most succinct and on point attorneys in the pre-trial hearings.  

"I. OPENING STATEMENT

“The goal of an apportionment plan is simple: the goal is adequate and true representation by the people in their elected legislature, true, just, and fair representation.” Hickel v. Southeast Conference.1 The Alaska Supreme Court in Hickel v. Southeast Conference reminded Alaska’s leaders:

in deciding and in weighing this plan, never lose sight of that goal, and keep it foremost in your mind; and the details that we will present are merely the details of achieving true representation, which, of course, is the very cornerstone of a democratic government.”2

The East Anchorage Plaintiffs will present this Court with substantial evidence that the Board systematically deprived the voters in the East Anchorage communities of interest adequate and true representation in the Alaska State Senate. The evidence will demonstrate that the pairing of House District 21 with House District 22 and House District 23 with House District 24 was arbitrary, unreasonable, and in direct violation of the due process clause of the Alaska Constitution. Both the record and testimony will demonstrate that the Board’s process and procedure regarding the senate pairings violated Art. VI, Section 10 of the Alaska Constitution as well as the Alaska Open

1

846 P.2d 38 (Alaska 1993).

Hickel, 846 P.2d at 44 (quoting from 3 Proceedings of the ConstitutionalIN THE MATTER OF THE 2021 REDISTRICTING PLAN CASE NO. 3AN-21-08869CI

EAST ANCHORAGE’S PRETRIAL BRIEF/OPENING STATEMENT PAGE 2 OF 2401163926.DOCX

2
Convention (PACC) 1835 (January 11, 1956)).

Meetings Act.3 The East Anchorage Plaintiffs will submit evidence both from the record and testimony demonstrating that Board members intentionally misrepresented their considerations of partisan motivations, misrepresented their use of partisan data to select their pairings, concealed their analysis of the risk of dilution in the districts at issue on the basis of race and minority status, misconstrued testimony by East Anchorage community members to serve their impermissible objective, and held secret deliberations and meetings to veil their partisan and discriminatory goals. The evidence will demonstrate that the Board’s intentional pairing of Eagle River districts with East Anchorage Districts favored one geographical area, community of interest, and political party over another despite overwhelming testimony from both communities detailing their lack of shared interests, goals, and commonalities before the Board, and reiterated by East Anchorage witnesses from Eagle River and East Anchorage alike.

Upholding the adopted senate pairings not only muffles the voices of East Anchorage communities of interest, as so aptly stated by Board member Melanie Bahnke, it would confirm for future boards that partisanship and discrimination are “fair game” in the senate pairing realm. Under the underlying principles of the redistricting process, the Alaska Constitution, and the most basic tenets of fairness, the Board’s pairing of the South Muldoon and Eagle River Valley house districts and the pairing of the Government Hill/JBER/Northeast Anchorage and North Eagle River/Chugach house districts cannot stand.

And from Part B:

More specifically,  the evidence will demonstrate the following impermissible Board actions:

1. Holding executive sessions that are not permitted under the Open Meetings  Act (AS 44.62.310, et.seq.);
2. Adopting final senate pairings that were not presented to the public during the public hearing process in violation of Article VI, Section 10 of the Alaska Constitution;
3. Adopting final senate pairings that were not developed in accordance with the guidelines adopted by the Board for development of its final pairings;
4. Adopting senate pairings which the public did not have access to view;
5. Adopting final senate pairings that were not one of the senate pairings options published by the Board for public comment and testimony; and
6. Adopting pairings without regard to public testimony or relying upon misrepresentation of public testimony to justify pairings.

Don't assume this is a slam dunk.  The Board's attorney has done a great job of blocking access to Board members - having them cite attorney-client privilege for many questions during depositions.  He's also managed to delay the plaintiffs' access to transcripts of Board meetings.  He says this is due to the transcription service, but as I watch, the cumulative effect is keeping information from the plaintiffs.  

But I would add for point number 4 here that in neither the initial Board plans nor the modified plans that showed all the House seats, did the Board include Senate pairings.  On the other hand, all the third party submissions did include Senate pairings.  

See you all in court tomorrow.  

[UPDATED January 21, 2022, 10:30pm:  I didn't mean to leave this part (Conclusions) in here.  It was something I'd started on, but decided to put elsewhere and it interrupts the flow of the plaintiffs argument.  Since a number of folks have already seen it, I'll leave it here, but move it down to the end.  My rule is that I can make minor non-substantive corrections but not substantive ones more than an hour after posting, so I'll leave this here.] 

Conclusions:

I'm sticking my neck out here making conclusions before the trial even starts, but this has been a rare opportunity to hear all the pretrial wrangling of the attorneys.  Since this is not a jury trial, no one had to worry about potential jurors listening in.  

Essentially, Singer has been arguing about process and procedure.  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.  The plaintiffs' attorneys didn't have that information 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."

What Are The Limits To Attorney Client Privilege? Debate At AK Redistricting Board Pre-Trial Hearing Today [UPDATED]

[UPDATE Monday January 17, 2022:  It turns out that the Sunday hearing was recorded and is available at Judge Matthews page - at least for the time being.  So here it is.  You can see how much I fumbled in my notes.]  [UPDATE Wednesday January 19, 2022 - Seems they took the video down.]

]

There was a very lively discussion at the limits to attorney-client privilege focused on two points in this case:

• whether the Board has to turn over all the emails between the Board's attorney and Board members
• whether the Board members can involve attorney-client privilege to avoid answering questions during the trial

Essentially, several of the plaintiffs argued that attorney-client privilege is limited when there is a public board doing public business.  The Board's attorney argued it is a pre-Constitutional privilege that is sacrosanct and any dilution would harm all future redistricting boards.  Citing a case where the Supreme Court said  privilege extends beyond the death of the client.

I'd note there are plenty of discussions on line that suggestion this privilege is not absolute.  

And here's another: https://lawpracticecle.com/wp-content/uploads/2019/01/LawPracticeCLE_The-Basics-of-Attorney-Client_Course-Manual.pdf

I'm getting ready to go south again tomorrow to spend more time with family in the Seattle area, so I don't have much time.  This meeting lasted from 1pm to 4pm.  I don't know how this trial is going to get done on time.  There really are lots of things that have to be discussed and so little time to do it. 

For now, I offer my rough notes [normal disclaimers - not verbatim, not complete, but enough to give you a sense of what was covered, but really not anything you could attribute to any of the speakers with any confidence.]  I may be able to clean this up more on the plane or even start writing  about attorney-client issues the discussion raised for me.  

MY ROUGH NOTES

Judge Thomas Matthews:  Motion for Rule of Law and Board’s opposition  Jan 16, 2022  1 pm

Starting - 1:06  Opened hearing -  I don’t see any representative of he Intervenor.  Amdur-Clark not participating today.

Thanks you for intervening Sunday afternoon.  

Addressing motion for Rule of Law filed by East Anchorage and Open Meeting Act played large role in Board’s response.

Ms.Wells, I look to you first.

Singer:  1)  Time constraints on parties   3) We have expert discovery issues that need to be nailed down after or before.  

 

Mathews:  I’m here so let's get things covered.

No time line - roughly hour ideal, but I won’t cut you off.

Wells:  Try to brief.  Tried in the motion.  

Matthews:  I have 2 questions.  1)  Any question whether public meetings apples to board - does board have attorney-client privilege

Wells - It applies

Wells:  Comments about balance tween    Atty-client privilege allow them to deliberate.  We spent time in briefing on Griswold case - deals with quasi- judicial proceedings.  When Homer Board citing in judgment - “person seeking relief”  similar to court case.  We provided guidance to Homer, their findings and final written decision.  Interest and scope very different from here.  Not a legislative act.  Here duties, holding meetings engaging with public.  Still Art 6 Sec 10 - still have due process clause and ….   And that’s putting open meeting aside, which is a big aside.  Scope of motion, not saying you can’t give advice to board,  only saying you can’t say to us  - we give you one paragraph “We couldn’t do analysis…”  OK, when we get to trial, Singer will present and expert and we can seek answers.  But no expert.  OK, we’ll talk to Board members, all based on their rational.  Get to Board members and they claim patty-client privilege.  We have no way to determine how these very significant issues impacted their decisions at all.  Need to be able to ask basic questions of law to base their decisions.  Did I answer your question.

Matthews:  you did.  And the production of emails - more other counsels -  all the emails, what is being requested introduction of emails.  

Wells:  I’ll answer in part and let Mss Stone answer.  2 aspects  -  and 2 dealing with ther record.  Agree with Mat-Su attorneys - tried to be as reasonable as possible and scope as narrow as possible.  Extent to it being separate issue?  Sort of married.  

Go to Griswold, not just permission granted by court, but almost an obligation in atty-client dispute.  This is what Mat-Su B has asked for is reasonable - asking for specific set of documents.  

Stone:  We thru diligent process.  Tried to be reasonable as possible - dynamic spreadsheet to put reason for withholding.  I gave a referral.  Several refs to APOC and  

Maybe taking to heart your note because we got material this morning.  Now we have to compare two spread sheets.  

Public testimony withheld as privilege.  Bethany’s personal email to her redistricting email withheld.  We recognize board has benefit of legal counsels.  Hundreds of cells not identified.  We’re supposed to take them at their word without knowing what the document is.  We joined in the motion because of the scope - issue of consultants and open meeting act.  

Transcript - referencing statutes of Open Meetings Act.  Come out and lengthy discussion of what they discussed in ES which suggests they covered unexampled discussion.

Matthews:  I did a ??? Sort of email.  Something in excess of 50% are after Nov. 10.  Why is anything after the proclamation relevant.  

Stone:  We used date that litigation filed.  I will not from Nov 9 Fall 1142-1258  Still asking for 1142 emails, but I can’t compare the two spread sheets.  Hundred of items no date

Wells:  Add to that response to pre-Nov 10 emails.  For East Anchorage - looking at process and rationale.  Whether or not motivated by partisan, whether evidence of ???  Reflections made after Nov 10 could reflect on rationale.  When we give open meeting act training, whenever you make determinations, those communications become public records and must be stored.  Important for retention schedule requirement.  Board subject to those rules.  Not treated different from other Boards.  Not saying all relevant to disclosure, but don’t want to cut them off yet. 

No other significant point, but Open Meeting Act is just one part of whole suite of rules on privilege and public records, due process, due process protect.   Need to    I feel their briefing misrepresents the fact and the law.  More intentional than we anticipated.  Cites Hickel - says it may have applied then, but not now.  Board referred to Open Meetings Act throughout the process and now say it doesn’t apply.  

Matthews:  Saw in your reply, dovetails into question I have - way to separate open meeting argument, not just process but also substance issues.   What do you contemplate in further briefs.

Wells:  Appropriate to deal with it in closing argument and rule of law and it allows the Board wants to separate out the Open Meeting Act  - just one of due process claims violations.  Allows parties to present in way that makes sense.  Not all parties do have the Open Meetings Act argument.  Others do.  That would protect everyone’s abilities to prevent their arguments in way streamlined and 

Matthews:  Mis Stone, other comments?

Stone:  No

Brenna:  Thank you.  A few comments.  I’d like to focus on what was intended when the Board created prior to 1998 - it was political process.  1998 Legislature took it out of Governor’s hand.  Not designed to be adversary system.  One of cooperation.  They anticipated public engagement in the process.  They’re drawing of political boundaries - to avoid gerrymandering and things happen in closed political system.  I share Mr. Singer’s fear for the institution.  Not because institution too open, but too closed.

If two private companies engaged in fight over issue and protecting client privilege

Not that context.  This is public process not intended to be political.  Shielding from the public.  Not how the drafters of the redistricting board intended.  Intended that deliberate process should be public.  Atty-client privilege minimal. During these closed - the less transparent the process .

I agree fundamental threat to this institution, because institution taken behind closed doors for abuse     —  Public doesn’t know what constitution standards and advice board received how those constitutional standards should be applied.   Driven by some interpretation of the law.  As member of the public, we don’t even know whether the law the board was told to follow is legitimate, because behind closed doors.  Board did not deliberate of Socio Economic factors joining Valdez and Mat-Su.  Every Alaskan has a right to know the general legal advice directing this hold process, so we know if it was correct and whether it was followed by the board.  The applicants of the standards seems ad hoc, they seemed to pick and choose and apply it when it was convenient in different ways in different places.  They come up with legal principles that guide their decisions differently in different places.  I can’t imagine any reason why it should be confidential.  Done behind close doors.

Matthews:  For the record - disagreement that the Board is entitled to get legal advice in 

Brena:  I do not - but it has to be specific and according to the 8 Factos I put in my brief.  Not applied here.

Purpose of privilege, to ??? Of professional legal services.  I have to communicate with you in a certain way   in pursuit of legal services.  Secretness is not in the protected class.  When you go through the emails, just go thru them, apply the factors and decide if applies

Matthews:  If email from Singer or firm about processes for redistricting

Brena:  No, not related to litigation.  I think Singer acknowledged in public all legal advice is not subject to privilege.

VRA  districts historically most protected.  Hickel process very specific and the order it must occur.  If they brought in a VOA expert and took his counsel in ES.  Should fundamental part of Hickel process be able to aired in ES session only.  I believe that analysis has to be in public or it has no meaning in the process.  More important to this case.  This Board went out of its way to impose ANCSA boundaries wherever it could.  You’ve heard packing or cracking.  Packing is where you put minority members all in one districts.  When get to 80% litigation begins.  Putting them all in one district dilutes their vote.  District 38 - 84%  39  83% native.  Packed along the ANCSA boundaries.  Their expert known to go around the country and is known for unpacking districts.  He gave them advice, should his advice be considered public so the Board can see how they made the decisions, which surely must have come up in that conversation.  

To make matters worse, opposing counsel comes out and summarizes the advice given in ES.  You can’t play don’t look behind the curtain when you summarize what happened behind the curtain, Then I have a right to see what happened behind closed doors to see if your summary is accurate.  He didn’t let expert speak, just gave us a page of summary.  That’s breaking privilege even if it was properly asserted which I don’t believe it was.  

When see situation decisions made, but process doesn’t include deliberating the consensus, have to conclude the discussion out of the public process.  Fairbanks,Doyon district becomes Doyon Ahtna district.  You can’t see how they made those decisions.  Making Doyon whole and Ahtna whole.  Has …. Going through to Cantwell.  You can’t track the process.  Hours of confidential sessions and they say formed a consensus.  I challenge the court finding any discussion joining Valdez and Matsu.  Sort of, we took care of anything else, this is left over, do it.  We should have chance to see the VRA analysis not hidden from public.  

Now, to just basic litigation rights.  They have advanced opinion of the Board - these two are SE Integrated - making opinion conclusions about compactness etc.  In litigation you ought to explore the basis.  Doesn’t lend itself to expert analysis.  We want to understand how his opinion entered into the opinion testimony coming into this court.  If he’s going to advance Board members and their opinion testimony.  He can’t help shape their opinions.  But time after time Board relied on some pronouncement that Valdez and Matsu linked in the past disregarding that Valdez and Fairbanks were linked.  

Rule 26 goes to that.  Advice of expert witnesses.  Option testimony if to be considered by this court.  Many are legal opinions advanced that we can’t explore.  He’s hiding between a-c privilege to hide his advice that formed the opinions.

I was concerned if Board would be cooperative on emails.  I’d asked judge to have any assertion of a-c privilege given to the court, because we didn’t have time to get this info.  I’ve run out of time.  Even transcripts of what the Board said are late.  We need to go through the emails.

They filed at 8:20am today, they are withdrawing claims of privilege of some emails today.  Though haven’t produced any et so can’t determine.   One category - deliberations when counsel not even present.  It’s January 16.  A little late.  Filing today demonstrates abuse of process.  What they should have done before.  I don’t want to get back to the court on this.  Just roll up your sleeves and read.  If you think privilege applies and call some balls and strikes.  I don’t accept that now they’ve seen the light 2 hours before oral argument and haven’t actually seen anything.  Already prejudiced enough by delay and over application of a-c privilege.

Ashton-Mason firm any arguments?

Eva Gardner - no.

Singer:  One hour hearing has already gone an hour.  Do you want a five minute break? 

Matches:  We’re good on our end, but will give you five.  

Singer:  Brena good closing argument.  CA privilege predates our constitution.  Foster committed suicide and SC said patty-client privilege after death promotes candor between client and counsel.  Clients have right to believe what they say is confidential.  Here on Sunday four days - contemplating a rule of law that doesn’t exist.  No nexus between what you heard and the documents they are demanding.

Matthews:  Stop, Where’s the line.  No one says ac doesn’t exist.  Where’s the line

Singer:  There is no line.  Applies to communication that is confidential and made for legal services.  Ms. Stone - pre-litigation, you can go to lawyer and get confidential advice to 

Work product ??? To apply.  Singer - laughing - some limit to what can be discussion in ES.  But doesn’t apply to communications.  Nothing in the law says attorney cannot advise client …

Argues Cool Homes case extended not just ES and applied it to more.  ……..  Court acknowledges right to ac privilege.  This notion - if going to assert to single document, simply throwing mud at the Board.  Alaska SC has dealt with this Central Construction v Home Indemnity.  First plaintiff has to make a showing that in camera review will reveal one of the exceptions.  Showing has to be that went into ES to help the Board commit a crime.  And then if such a showing, you have to consider facts (listing them).  They haven’t attempted to go through that process.  We follow the SC’s approach,   US SC acknowledged chilling effect without some preliminary showing or safeguard.  Dealing with privilege fundamental to our legal system  and asking to adopt rule that has not been accepted by any court.  This befuddles me, such an overreach.

Matthews:  Number of arguments in case about the process.  Recognize questions whether Board’s decision meet the process, but many about the process was faulty.  How do you deal with that?

Singer:  This way:  Open Meetings Act has statutory remedies, if it’s true, the remedy the Board’s action becomes 

Matthews:  How do I determine that if everything they did in executive session is shielded

Singer :  B had 6 o 7 ES most under an hour and hundreds of hours of public session.  After law school, worked for Howard Trickey.  General Counsel School district.  I’ve done a lot of ES remedies that fall under the PMA - if you give general laws you do that in public.  But if a specific strategies do it in ES.   This Board understood the requirement - two attorneys.  You’re going to review the record.  Go to the decisions.  The Board will explain how they made decisions.  If Board says “I’m not going to explain because of ac privilege”   Ms. Wells mis

She asked, “did you discuss a general principle of law, and I objected.

Matthews:  Did you in ES pairings that hadn’t been discussed in public and you advised her not to answer.  

Singer:  I gave here good advice.  If she’d have asked if they discussed the pairings.

Matthews:  The question asked for a yes or no answer, not confidential info.  Only if -  why is that wrong?

Singer:  If I was wrong, then ask again at trial.

Matthews:  That’s why I asked - what can they ask in trial?

Singer:  If general principle of law was discussed then whole ES has to be in public.  If you have negligence and you need to deal with it.  In course of discussion I’m going to give general law as well to give advice.  Not required to say, OK, I told you will be sued and now we have to go public for me to discuss that in public.   I put summaries and put it in the public so people could see it.  No mystery at all.  Not like I gave one definition of compactness and had a secret definition in ES.  

Volume of documents.  Complaint about privilege laws.  Have to understand how we got here.  In ordinary course if had more time, we would have had affirmative to identify all communications about Skagway.  I advance several weeks ago that parties provide key words to search.  Didn’t go that way.  Asked Board to produce all non-privileged infor.  No limits.  We searched Board’s servers, The boards, all board and staff to search all their personal  computers.  We looked - couldn’t possible put eyes on all pages.  Used search software and data base and Bruce Adelson - another attorney as well.  I’d advice ED and he would tell the Board.  What he did after the process.

[Hard to keep up]  I’ve been general counsel for months before redistricting, I was doing day-to-day for a state agency.  Lots of issues about Census - all that - confidential advice to client.  Your Honors pretrial came out Jan 4 - all communications.  Order said present summary of all documents.  And plaintiffs need to object by Jan 10.  Speeded up had ten people working full time - another thousand that we felt not privileged.  Time wasn’t available.  We couldn’t law every documents.  We continued to produce more.  Contrary to Brena, no disclosure - documents already in counsel’s hands, letter to day was explaining.  Long intro, but a lot here.  

Privilege is in evidence rule 503 - anything you say intended to be confidential, not solely to legal advice.  When Mr. Foster, not clear if lawyer was hired.  Enough to fall into privilege.  

Not limited by Public Meetings Act.  When ?? Walker in Valdez.  When Ms. Stone writes to Mat-Su Borough.  Distinguish about public bodies different is not in the law.

Matthews:  Does it make a difference if Oper Meeting Act applies?

Singer:  No.  You should read every email between Board and Counsel.  It doesn’t matter if open meetings act applies, and you accept their allegations apply, then a Board action could be invalidated.  It’s your job to decide if that’s in the public interest.  Courts have been concerned it would hurt the public interests.  If I incorrectly advised client at deposition and it comes up again in court, Judge can call it ball or strike.  

Supposed to be public process and client committed to public process.  Law says Board shall have counsel and be advised … Sec 11 Article 6 anticipates your Honor’s role to determine if Board complied with Constitution.  Every single plan has been challenged in court.   Role for counsel to give confidential confidence to Board.  “If you consider that option, let me tell you the risks. Of that action.”  Intended by the constitution.  We followed the Cool Homes standard. 

If Board violates the rules, but we operated under the assumption that the act applied and we went into ES sparingly.  Majority of Board meetings the counsel didn’t attend.  Attended half of those meetings.  Ms Wells wants to deal later.  Don’t appreciate notion that we did things knowingly.  Issue not decided by SC.  If bases for invading AC is to see if we violated the Open Meeting Act, -   …….. Board is an independent entity, forms self every ten years.  Appointed by Gov, Speaker, Pres of Senate, SC Chief Justice.  Doesn’t answer to any of those.  Applies to Boards, that miss the point.  Independent entity.  Has to comply to Article 6 of Constitution, but free to set own rules. 

Matthews:  subject to judicial review?

Singer:  Article 6, absolutely subject to judicial review as legislature is, or any branch potentially.  But one branch can’t tell another how to organize themselves.  Redistricting Board independence important.  If legislature can tell the Board how to organize, where would it end?  Not contemplated in the independent Board when adopted in 1998.

Summarize:  Plaintiffs have mangled the law by conflating different laws.  There’s any possibility of waiver of privilege of those documents.  Then next point - to obtain review, plaintiff has to make case that one of the exceptions exist.  They don’t mention 503, no basis, no reason for court to conduct in camera review.

Brena’s new argument about  - Board members explain how they came up to..  If Board members are opining about their own decisions, then decisions require in camera review.  Why argument is absurd.  If defendant says not responsible for causing the accident.  The Board members are charged in Sec 6 and proud of work project they’ve produced and they went to explain to the court.

Matthews:  Question:  You’re saying Board member can say, if asked Why did you make the decision.  Well it was based on sound legal advice we received.  Does that end the inquiry?”

Singer:  Guarantee that’s not the answer you’ll here.  Budd Simpson has lived in SE and he explained why he put Skagway where it is in detail.  If the Board said we drew this 40 district plan because of counsel, we’d had a problem.  But Brena says, if Board member says they have these characteristics and because there was no other way to draw it without disrupting everything.  Brena - something the lawyer said that influenced the decision.  Board is explaining the reason for its decision.  Board has to be able to explain oneself - not as a defendant.

Matthew:  Back to my hypothetical. “In part I based my decision on advice of counsel”  Doesn’t that open ‘what advice you get.”

Singer;  No - why did you cash that check.

Matthew:  If insurance caee say, I did on advice of attorney, doesn’t that open up to ask what the advice was?

Singer:  pause, then back to maybe will have to make calls in the trial.  Also think what Brena, …. He’s not offering to waive his ca privilege.  Board doesn’t waive.

Matthews:  To be clear:  If board member asked why did you make decisions to pair Valdez and Matsu and gives lengthy explanation and also and sound legal advice of attorney = are you saying that doesn’t open it up.

Singer:  I’d like to think about it more and it will come up in trial.

Matthews:  1.  In camera request for emails and 2. Questioning in trial of these decisions in how they decided and role of legal counsel.

Singer:  This board very hands on and they made the decision.  Simpson made SE maps and offered affidavit on how that was done.  Nicole Borromeo was principle drawer of that district but agreed by all.  It wasn’t possible to draw a district the way Valdez wants it. And it demonstrates why .  Hooper Bay has significant consequences.  Large community if you put it in 38 and it has ripple effect into other districts.  Wasn’t influenced by counsel in the least.  No issue and should be decided in trial.

Matthew:  Fair enough

Singer:  Trying tog et through the myriad issues here.  One of the painful things for Board about today’s fight.  They were invested in public process.  Ruedrich said in deposition this was the most public Board ever.  Understand the attorneys’ roles.  Not why Board put up the website and kept it up To date.  Concerned what this will do to future Boards.  Feel loyalty to institution and ability to function.  There are occasions when Board needs confidential legal advice.  

No VRA act questions raised.  Proud of that.  If there is problem they can can take it up in federal court.  Up to last time obligation to VRA but after 2013 no obligation to VRA.  Could have done it without looking at VRA, but risk of violating the VRA.  Didn’t need pre-clearance this time.  We haired VRA expert to make sure it was ok.  No intentional packing or cracking.  

If court demanded the Board produce all the communication, please consider what that means ten years from now, when the attorney in ten years, he or she will have to consider there will be litigation and my words will be opened.  Incredibly destructive to process and to client’s right to confidential advice.

Matthews:  Coming out of ES you talked about legal advice. 

Singer:  Talking out of both sides of your mouth.  First - we did specific candid advice about legal threat in ES.  In public session long presentation about VRA report.  I worked closely with the counsel about what should be in the court.  We did it to avoid violation and going to court.  

Any other questions your honor.

Matthews:  Point by Ms. Wells in reply - specific but narrow rule of law.  Not privileged.  

Singer:  What rule of law did you discuss in ES.  The rule is to discuss a specific legal threat.  If she asked if there was a session to provide general legal advice?  Fair questions.  One map had a problem map.  That’s identical to one Court blocked in ES and that’s a version of D2 that was held illegal by Hickel court - that decision would make you sued.  And mentioned compactness.  That doesn’t violate the rule of law.    In correct reading of Cool-Homes.  That’s my reading.

Matthews:  I understand, other points?

Singer:  Mis Stones says, “We don’t know if something I privileged”  Ms Marcum had a custom of writing questions down that she wanted to ask me and noted them as a/c  - she asked about pre-litigation.  I’ve gone too long.  apologize.  Kitchen sink.  

Matthews:  One miscellaneous question.  In your brief you refer to Board’s open meeting policy and we agreed on my seeing the Board’s website, so could you send it to me.?

Singer:  I’ll produce a copy.  D

Matthews:  Want to look at it, and didn’t want to go to website to do it.

Wells:  A lot of things said that were misrepresentations of the law and extremely inaccurate and won’t go in 

503 specifies subject to privilege.  But in a govt body - who’s the client, and the people of the state do not yield their sovereignty   public servants don’t get right to decide what is good for the people to know.  Not constitutional right, but expressed and fundamental.  We look at scope of the privilege under the ac privilege.  2018 Griswold case - this idea of fraudulent basis for fraudulent review.  Griswold involves documents withheld by quasi -legislative body and court found certain things privileged.  Then a request for public records of bills by attorney to city.  It tells you the 3 steps that allow the court to make the determination and present it to parties and allowing them to make …..   We don’t have to prove fraud to get there.  Other issues I hear Singer saying to decide at trial.  He has not given any affidavit of two Board members of the two members who are in disagreement and so we have no information on them.  Rule 1.13 rules of professional comment - rule on scope of - different balance between maintaining confidentiality when public interest is involved.  We are not talking about a private person, but a public body and its need for advice and the public’s need .  Questions.?

Matthews:  No

Stone:  I join what Ms Wells presented.  Mr. Singer mischaracterizes my words.  Mr. Singer threatened us to move to Federal Court concern with lack of collaboration between the parties., so we do think the in camera review.

Matthews:  Mr. Brena

Brena:  You asked the question if decisions are made on advice of counsel, I think the answer to your question is heck yeah.  Of course you can.  All through this process Singer was offering advice on all sorts of decision.  Specifically Valdez.  For example appendix A p59, Mr. Singer issues of Matsu and Valdez paired on compactness.  His interpretation of prior cases is central???   

2.  If opposing counsel is using too broad a scope, it cannot be remedied at trial.  We have 6.5 hours in trial.  It goes to whether they have to produce the information they were asked to produce.  Memo from Torkelson to Marcum, subject matter:  challenges and pathway to a plan.  Singer is not even copied on this.  Completely blacked out and redacted

Matthews:  If what is redacted is the advice from counsel.

Brena:  This is what we’re getting showing page after black pages.  I want the judge to call balls and strikes.  There is no choice but to ask you to go through those emails.  The standard he suggested for in camera review.  We had witness who relied on notes and refused to show us on advice from counsel.  We ask this from the beginning.  This is an abuse - showing blacked out pages.  

Review of VRA - direct you to brief Ex A p.29 - Ex A p 38  they come out of ES and say had extensive discussion of VRA experts.  Now we’ll hear from legal counsel who will summarize their finding.  He goes on for five pages.  Talks about the district - why summarizing five pages.  Summary VRA does not have problem with plan, at least as the plan is now considering tem?.  There’s a specific process under Hickel rule whether pre-approval is required or not.  You can’t talk about five pages of what was in the VRA report.  We need to know if Mr. Singer’s summary is complete.  Email exchange - numbers - between Mr. Torkelson and Bruce Adelson that was summarized in multiple pages after ES.  Mr. T suggests - Mr. Adelson lists risks if he is an expert witness, they have no confidentiality rights.  Mr. Adelson did an extensive report that is summarized extensively.  I think purest case I’ve seen of waiver of a privilege.  Can’t come out of ES with five pages of summary and then say the report itself is privileged.  As soon as you make aspects public, you open it .  You can’t reveal the parts you want to reveal and hide the parts that you don’t want to reveal.  You should order this report.  Important not because go to Federal court or not.  They did precisely what the Hickel plan says not to.  The planner say you start with these districts.  Once you start with VRA aspects - ignore VRA and do them in the end.  Took Fairbanks out of play then they wanted a Doyon and Ahtna District.

Matthews:  Don’t want to cut you off, but 

Brena:  VRA report was waived  and regard to emails, I’ve showed you the redacted pages.  Nothing has counsels notes.  

Is the constitution a deliberative process of the board and the basis of its decision should be before us or not.  If we cannot gain insight, we can not make a proper record to go to the SC.  Should the deliberate process be made in public  or not.?

Matthews:  Alright folks.  Lots to unpack.  I’ll get a decision as soon as I can.  Singer’s issue?

Singer:  The VRA report is in the Proclamation Plan.  We didn’t get Mr. Brena’s expert until this morning.  Mat-Su and East Anchorage.  Calista want more days.  

Baxter:  We don’t have documents from Brena and we’re asking court to ask plaintiffs to produce.  

Brena:  I wan’t completely prepared to have this conversation now

Matthews:  Just a timing questions

Brena:  With regard to shape files no problem, just trying to get them out.  We asked the same things - all communications to the Board and haven’t had opportunity to meet with Board.  As I understand how this is playing.  They plan to say ac privilege while asking us to produce it.  It is a timing issue, see it as burdens on, but happy to get the shape files out the door to evaluate our maps.

Wells:  Let court know we did get it to them Saturday when it was due.  Some objections about cope, but a significant /// we think is responsive.  

Singer:  If there’s a withholding on ac privilege there should be a log

Wells:  I will look and talk to the board about that.  

Matthews:  Timing on depositions

Brena:  Yesterday was a heck of a day.

Baxter:  We have ????? No ac issues

Wells:  Witness being deposed 19th 

Baxter:  Wed, Thursday, Calista on Saturday

Brena:  My request complied with - took D’s two weeks ago and still don’t have a reply

Singer:  Think Brena is making

Matthews:  Hold up, let’s not go there Mr Singer

Singer:  He’s saying because Board members explain why plan is constitutional that that is a waiver, no discovery before the court

Matthews:  Docs on privilege log?

Brena:  don’t know the answer but don’t believe so.  Like all of us giving documents of our communications, we’re asking them to produce documents…..  Data request not responded to.  Went through five depositions without the data.  

Matthews:  I think I heard extensive argument with counsel

Stone:  We are in process in doing this but got delayed having to review the privilege log

Gardner?  We need clarification from Mr.  Baxter

Baxter:  To Skagway, Valdez, and Mat-So, not to Calista

Matthews:  Expert receive with enough time before Wednesday.  I’ll be addressing the ac privilege shortly. 

Brena:  Getting expert’s disclosures, just haven’t gotten it yet.

Matthews:  I know all are stretched - time is something you don’t have.  I’m on same schedule as all of you.  All on the same life raft.

Brena:  Does your honor have the email?

Matthews:  No, but Mr. Singer has them and will get them to me if I ask.

Depositions…

Singer:  Does court want transcript or video?

Mathews:  both

Brena:  We got them… ??

Matthews:  Court reported sent us and e???

Brena:  yes, that’s what we're doing, searchable.

Matthews:  Better if sent notes directly to redistricting email because that follows me.  

Gardner:  3 small things 1.  Confirm next scheduled hearing - still Wed 8am

Singer:  Can we change it to Tuesday we have depositions Tuesday.

Matthew:  Can set late onWednesday.  We’d like your stuff first.

Singer:  Two on Wednesday, but after 2pm Thursday.  Hard to do two depositions and court hearing.

Gardner:  We could take break from depositions on Wednesday.

Singer:  If can’t break ask court to do something?? On Saturday.  Time before the court.

Matthew:  If going at 9 and 1, either , how about  Wed at 4pm.  Hopefully got the depositions done.  Rather do it Wednesday.  You’ll all be in better position and don’t want to do it day before trial.  Wed at 4

Gardner:  2 cleared just now   3.  Several witnesses are living in RuralAlaska - internet access and travel unreliable - need to have deadline for cross examination decisions.  

Singer:  We can’t have a deadline.  I don’t want to ?? To anyone.  If we review affidavit and decide not to call .  Ms Gardner when I raised the two week requirement for our witness, she said, that’s what they signed up for.  Same process for both parties.  In each case when providing Boad testimony.  

Scheduled to go 3rd in lineup.  A difference here.  Board facing five different lawsuits.  Here you have the direct testimony and just a courtesy - does not seem unreasonable to ask who you intend to cross.

Singer:  I haven’t read them.  Not hiding the ball, I respect Ms Gardner and Schecter and if there are any witnesses.  It might be I’m disinclined to call, but then it doesn’t turn out that way.  Gardner:  I’m dismayed that Mr. Singer hasn’t read them.  I’ve talked to him about these issues and he insisted on no extension unless the Board gets extension.  Mr. Singer can’t be bothered to spend half and hour for multiple flights and life disruptions.  

Brena:  Done a number of reptile d  Just a courtesy, but not that it can’t be changed.  I would ask that all parties indicate who they intend to cross by Wed that could be changed.

Wells:  Housekeeping - we did provide 1300 pages, not ac privilege

Matthews:  Witness issue.  Ms Gardner you did raise before - internet and travel issues.  It is fair to find specific days people are going to testify.  Hard to tell when going to be called, most likely day just looking you’re #3 in group 

Brena is number 4

Matthews: - then early the following week.  Ought to be able as this progresses we can narrow when they will be called.  Word from Mr. Singer before the weekend.

Matthews:  fair not to wait until that day

Singer:  I have a number of points I want to establish from the witnesses. If have to make today, I’d say both.  If we know we don’t need them, I’ll tell you.  But we get to cross the witnesses

Matthews:  Ought to plan on taking them on second Monday.  Mr. Singer every courtesy you can when you know you have a final decisions.  Pick a day folks when should be available so they don’t have to make last minute travel arrangements.  May have to be in town the day before.  

Other housekeeping matters?  Thank you for doing this on a Sunday.  Longer than intended (4pm now)

4pm on Wednesday. I’ll be working on getting these decisions.  

Singer:  Brena can we talk.

Brena:  Do not intend to depose TJ tomorrow.  Does anyone intend to cross TJ tomorrow

Gardner:  I do have about five sessions