Anyone who is NOT confused by this case just isn't paying attention.
You could read Matt Buxton's account of Friday's opening court date -and it's a good version - but there is so much happening, that 100 different reporters could have written equally good accounts that were all different.
In part, because direct testimony in this case is not happening in open court. That decision was made because of the ticking clock between now and the date by which candidates, who need to know what districts they're in, have to file to run for office.. The court's decision has to be in 120 days before that June 1 deadline. That's January 31 or February 1.
So I'm going to ask readers who haven't read Matt's account, to go read it. That leaves me free to not try to give an overview, but rather to focus elsewhere. For instance, Matt wrote:
"The court spent a decent amount of time in the afternoon arguing about access to records and the admissibility of various pieces of testimony."
With no intent of contradicting Matt, I'd say the court spent an indecent amount of time on the rules of this trial. Maybe it's more obvious because in this trial the public was able to follow the wrangling in the pre-trial hearings - stuff we don't usually see in court. I'm now thinking back to various screen court dramas. I think most spend 99.9% of the time in open court, not in chambers arguing rules. Maybe some chamber time with the judge, but after the trial has already begun. Usually the judge is giving one party a stern warning about following the rules, not about what the rules are.
But it's become clear to me that that is where the real battle is here. It's the rules the court ultimately follows that will decide the outcome of this case.
Essentially, the plaintiffs are trying to expose how the board came to their decisions when they were drawing the lines. The plaintiffs belief the Board members either had no documented reasons or had blatantly partisan reasons.
For the most part, the Board's process was the most open in Alaska history. Every meeting since at least December 2020 was available via phone or online. The Board staff listened to suggestions about their website, quickly put up audio and video tapes of meetings, and worked to set up interactive programs that the public could use to make their own maps online. They put up all the public testimony on the website in days.
What didn't get up were transcripts of any of these meetings. Video's nice, but searching keywords doesn't work. (Though the Assembly has a program where you can search keywords.) The one area I'd found the Board a little loose on was Executive Session. These seemed a bit too long to just be covering the official reasons for them. And often the list of reasons a board is allowed to go into ES was cited, but not the specific issue they were going to discuss.
Well, despite all this openness, the battle now is between the plaintiffs trying to extract the reasons the Board made certain decisions and the defense trying to block them. They've been asking for the Board meeting transcripts from last November's key meetings for a month now, but the Board only just got them out a few days ago. They've been asking for the transcripts of the Board's emails to each other and the attorney for a month. The Board's attorney Matt Singer has been fighting that request tooth and nail. Even after the Judge ruled in favor the the plaintiffs - with the stipulation that the Judge would read them 'in camera' and decide which were and weren't protected by attorney-client privilege - Singer asked for a stay. When that was rejected, he asked the Supreme Court for a stay. They granted a stay, but it was short lived and in the afternoon before the case began, the Supreme Court upheld the Judge's ruling.
But that meant that Holly Wells had to try her case without any of the information in those emails. But the judge did allow that this is one big case and she hasn't closed her case yet. It's still open pending those emails and what other things come up in trial. Despite Singer's vigorous argument against that.
There were three witnesses Friday. Felisa Wilson is the lead plaintiff in the Anchorage case. I couldn't tell if she said anything that isn't already on the record or not. I say this because - as mentioned above - it's hard to know what is already on the record. While the affidavits and depositions are now on the record, they've only recently been available. In a normal trial, we would have heard direct testimony and what documents were submitted as evidence. In this trial there are thousand of pages of transcripts, much of which has only appeared in the last week.
David Dunsmore, worked with Alaskans for Fair Redistricting (AFFR) to come up with their third-party map and was deep in the weeds of this whole process. Again I don't know that he revealed anything new. They also had an expert witness. It seems he did get a few points in about the demographics of East Anchorage and why pairing that district with ER would dilute their voting power.
The Board's lawyer, Singer, did everything he could to discredit the witnesses. He pointed out that Wilson had been treasurer of the Democratic party, implying this made the lawsuit simply a partisan maneuver. She retorted that she was more than a temporary volunteer position she had only recently taken - that she was a physician, retired Air Force Major, an African-American, and a Blackfoot Sioux and when she retired from the military she got to do a lot of volunteer work she couldn't do while in the military including in immigrant neighborhoods of Anchorage, the ones that will be hurt by the Board's Senate pairings.
Singer did the same with Dunsmore. You were a staffer to Democratic Sen Bill Wielechowski, right? AFFR was a union organization right? These kinds of guilt by association arguments might work at a jury trial, but I have confidence they won't sway Judge Matthews.
He tried to deny the expert credentials of anthropologist Dr. Chase Hensel. He asked him questions about things he either wasn't qualified to answer (the law) or aspects of the Anchorage maps he hadn't studied. Hensel didn't fall into the traps. These attacks on Hensel were particularly awkward because, as Mat-Su plaintiff's attorney got on the record, Matt Singer himself had himself hired Hensel as an expert witness for another Alaska case.
I understand that attorneys try to diminish the creditability of opposing witnesses, but given that there is no jury here, these attacks were fairly transparent and seemed sleazy. Singer had already seemed close to whining as he repeatedly complained about 'changing the rules at the last minute'.
Singer is one attorney (plus the backups from his law firm) who is fighting off five other attorneys. With just one opponent it's much easier. But here, one attorney raises a point and debates with Singer, and then the next one picks it up and adds more ammunition, then the next. The plaintiffs' attorneys each have one big day in court and the rest of the days they can sit back and just swoop in with question when an opportunity arises. Singer has to be in the hot seat every day. Maybe he should have given an associate responsibility for a couple of these cases so he could recoup.
His main accomplishment has been to block the plaintiffs from getting information that would help them find out what the Board's logic was for the districts that are being challenged. (Most of the house districts were discussed fairly openly. But the Eagle River pairings- the most blatantly partisan action the Board approved - was not openly discussed. It was just ramrodded through. The Valdez pairing with Matsu was briefly discussed in open, but it seemed to be, "Well we've got most everything else done, what do we do with Valdez?" The options they discussed were pairing it with Anchorage or Mat-Su. Since it's with Mat-Su now, that seemed the best to them.
I'd note that Holly Wells had planned to cross examine Melanie Bahnke about the Eagle River pairing. Board member Bahnke had flown in from Nome specifically for this. But at the last minute, Wells decided not to cross Bahnke. My rough notes include this:
"Singer: I want to call member Bahnke and Borromeo is here. Ms. Bahnke wants to go back to Nome.
Wells: I was hoping to take break given Mr. Singer’s comments. Rather not call Board. Nervous about that."
I didn't understand the issue, only that she didn't want to open things up for Singer to question the two Board members. Later I found a "MOTION TO PRECLUDE REDIRECT QUESTIONING IN ABSENCE OF CROSS-EXAMINATION" that was submitted the evening before the trial was to begin. (It's still, as I write this Sunday evening, the last document up for this case.) It's in response to things Singer said in a meeting they had Thursday afternoon. The part that seems to most succinctly explain her concern:
"Plaintiffs indicated that they intended only to call three of the Board members, after which counsel for the Board informed the East Anchorage Plaintiffs that he intended to conduct a re-direct examination of all the Board members, regardless of whether the East Anchorage Plaintiffs intended to cross-examine them."
Another maneuver by Singer. I don't deny that Singer's job is to defend his clients to the best of his ability. But what is becoming clear is that his clients' case in the Senate Pairings is pretty weak. His defense is not - at least in the East Anchorage case - to have his clients come to the stand and explain how they got to their decisions, but rather to keep the plaintiffs from getting to his clients.
On the other hand, he belittles the work of the East Anchorage plaintiffs' expert witness. That's ok except that the expert actually did some analysis of the districts, while the Board member who did the Eagle River pairings, Bethany Marcum, used, in her own words, her opinion based on having lived in Eagle River. No demographic analysis, no numbers on the comparative racial and ethnic make up or economic differences between the two house districts she paired up.
The wrangling in this case tends to support those who argue that the US courts are not about justice, but about winning.
Enough.
Bahnke and Borromeo will be back for the other plaintiffs, but I'm not sure Wells will be able to get more about the Senate pairings from them.
Thoughts and ideas are sloshing back and forth in my head like waves racing up the beach, that quickly sliding back down into the ocean. And it seems the facts and actions in the combined Redistricting cases are as easy to describe as the constantly moving surf.
To prep for the Mat-Su case, here's the Board's final map of the Matsu districts. Districts 25, 26, 27, and 28 are shown completely, but 29 and 30 are cut off. You can't, for example see that Valdez is part of 29 or that 30 includes Denali National Park but not Cantwell. It's best to use the Board's interactive state map here.
So let's at least get a sense of what Mat-Su is complaining about and wants. You can see their suit here - it's ten pages, not too bad. I've tried to pull out the key points they're making from a section called "Counts".
Valdez Case Connected
I'd also note that the Mat-Su case is paired in trial with the Valdez case - both locations don't like being paired with each other. I've done two posts on the Valdez case which you can see here (Part 1) and here (Part 2).
Mat-Su has two counts:
Equal Protection
In this one they point out the Federal requirement that the districts be as equal in population as possible and that the Mat-Su as a whole is over-populated, that is their districts have more people than the perfect size district of 18,335 residents. (State population as of official 2020 census/40 house districts.)
The plaintiffs claim that the six Mat-Su districts "Combined, the total overpopulation of the districts is 13.75 percent." The problem here is that they are adding the percent above the ideal for each district. That doesn't make sense with percents, because percent is district size/ideal size. If you have two districts you have to calculate 2 districts/2*ideal size, etc. The chart does that for each district and then shows the total percent over for all six districts - 2.3, not 13.75.
District
Over or under
Total Pop
Ideal Pop
% above/
Below
25-M
487
18,822
18,335
2.66
26-M
472
18,807
18,335
2.58
27-N
464
18,799
18,335
2.53
28-N
458
18,793
18,335
2.50
29-O
438
18,773
18,335
2.39
30-O
201
18,536
18,335
1.1
Totals
2520
112,530
110,010
2.3
Looking at the chart, when you add the six districts and divide their total population (112,530) by the ideal size for six districts (110,010), the percent is 2.3 over the ideal size for all six Mat-Su districts combined. That's well within the parameters for redistricting in non-urban areas.
One could argue that the smaller, more urban districts like Palmer (D-28) and Wasilla (D-27) should have lower deviations than the much larger and more sparsely populated D-30. That might raise a question or two about the overpopulation of all the Mat-Su districts. But the claim of them being 13.75% above the ideal is a specious argument. If they really were that high, they would be automatically ruled unconstitutional because the greatest difference allowable between the lowest under populated district and the highest overpopulated district statewide is 10%.
District Boundaries - Here they argue the constitutional requirements of compactness, contiguity, and socio-economically integrated. The Valdez plaintiffs, in their challenge, make a strong argument about socio-economic integrity in their long list of how Valdez is tied in with the Richardson Highway communities. Compactness gets squirrelly when we get into rural Alaskan districts because of the sparsely populated areas. But I think contiguity is an important factor is this case. Valdez is connected by road to Palmer, but you can't drive from Valdez to Palmer without going outside the district. Yes, they are contiguous by roadless, unpopulated, land, but not by road. The courts have accepted contiguity in rural Alaska where communities are not connected by road. But that's been in areas where there are NO roads at all between communities. In this case there is a road that connects Valdez to a number of communities they have much closer ties to than to Mat-Su. Valdez residents have to drive through another, much closer, district to get to the Mat-Su part of their district. This is also part of the argument in the East Anchorage case where this is an even more extreme example of using geographic contiguity to connect districts that are actually far apart.
From Mat-Su's complaint:
"COUNTS COUNT I – EQUAL PROTECTION
Paragraphs 1 through 36 are incorporated herein as if fully set forth.
The Fourteenth Amendment to the United States Constitution provides that the
State shall not deny any person within its jurisdiction the equal protection of the laws.
39. Article I, Section 1 of the Alaska Constitution provides that all persons are equal and entitled to equal rights and protection under the law.
40. The Final Plan violates the equal protection clauses of the United States and Alaska Constitutions.
41. The Board's plan unnecessarily divides the excess population of the MSB in a way that dilutes the effective strength of municipal voters, including by placing them in districts centered elsewhere and that have different social and political concerns; ignoring traditional senate configurations; and, failing to respect political subdivision boundaries and communities of interest, thereby depriving its citizens the right to be an equally powerful and geographically effective vote, all of which is in violation of the equal protection clauses of the United States and Alaska Constitutions.
42. The Final Plan overpopulates each of the six House Districts within the MSB in an excessive amount and out of proportion with the remainder of the State of Alaska, demonstrating that the Board failed to apply the quotient in a practicable fashion in violation of the equal protection clauses of the United States and Alaska Constitutions.
COUNT II – DISTRICT BOUNDARIES
43. Paragraphs 1 through 42 are incorporated herein as if fully set forth.
44. Article VI, Section 6 of the Alaska Constitution provides the requirements for each House District. They are to be compact, contiguous, and contain as nearly as practicable a relatively integrated socioeconomic area, and consideration may be given to local government boundaries. Each must contain a population as near as practicable to the quotient obtained by dividing the population of the State by forty. Additionally, drainage and other geographic features shall be used in describing boundaries wherever possible.
The Final Plan violates Article VI, Section 6 of the Alaska Constitution.
The Final Plan overpopulates each of the six House Districts within the MSB inan excessive amount and out of proportion with the remainder of the State of Alaska, demonstrating that the Board failed to apply the quotient in a practicable fashion in violation of Article VI, Section 6 of the Alaska Constitution.
47. House Districts, including but not limited to, 29, 30 and 36 as included in the Final Plan violate Article VI, Section 6 of the Alaska Constitution, as the House Districts are not compact, contiguous, do not contain as nearly as practicable a relatively integrated socioeconomic area, nor do they consider local government boundaries."
My Conclusions
Valdez is a tricky community to deal with in redistricting. Its location and size make it hard to add to any district without doing some sort of stretching of the constitutional criteria. I think Valdez made a strong case for it being with the Richardson highway communities, but that leaves Mat-Su with a partial district that needs to be paired with something. I think the lack of road contiguity is also a big issue.
I also get pretty suspicious of parties who make misleading arguments - like the claim that Mat-Su is 13.75% over populated. Either they can't do the math or they're being disingenuous. Either case is bad, but shouldn't prevent the court from weighing the rest of their arguments.
If this Valdez-Mat-Su house district is rejected by the courts, there will be a ripple effect as the Board has to find ways to make other districts that are reasonably sized and are compact, etc.
Alaska districts are a balancing act and the courts will have to decide whether the arguments here are compelling, whether there are better alternatives, and how disruptive it would be to tell the Board to go back and draw a better map.
I was talking to an African-American friend today (who is also very much an American, by the way) who told me his TikTok account has been hampered by bots who target his messages that use words like 'white' as violating TikTok rules and it's taking just too much time to fight this.
I don't use TikTok - I have enough online distractions so I've limited myself - so I wasn't aware of this issue. But it seems to be longstanding and I'm guessing it's a well organized campaign - like the CRT nonsense - to suppress black voices. From the people who use terms like 'cancel culture' to accuse others of doing what they themselves are actively doing.
"Tyler tried a number of phrases, including ones declaring his support for “Black Lives Matter,” “black people,” “black voices” and “black success,” and simply stating “I am a black man” — all of which would immediately trigger a pop-up message prompting him to “remove any inappropriate content.”
But putting “supporting white supremacy” or "supporting white success” in his bio did not prompt the same inappropriate content message. Neither did 'I am a neo-Nazi.'”
It says TikTok apologized, but it's clearly an ongoing problem for my friend.
From a January 2022 article at Insider, we can see the source of the problem my friend was reporting:
"TikTok told Insider that all of the content cited in the Media Matters study was removed from the platform for violating its hateful behavior policy. Additionally, the company outlined anti-abuse efforts that it has built into its product, including its addition of new controls that allow users to delete or report multiple comments at once and block accounts in bulk."
My friend was reporting what he called bot accounts that would report comments with the word "white" as violations and TikTok would remove them. Here's a message he got from someone who reported him to TikTok and got things taken down.
This is, presumably, a white guy telling a black guy he's being racist for talking about white racism.
I'd note that for TikTok content creators with tens of thousands of followers, their income stream is cut way back when their content is blocked.
"the app is shockingly good at reading your preferences and steering you to one of its many “sides,” whether you’re interested in socialism or Excel tips or sex, conservative politics or a specific celebrity. It’s astonishingly good at revealing people’s desires even to themselves — “The TikTok Algorithm Knew My Sexuality Better Than I Did,” reads one in a series of headlines about people marveling at the app’s X-ray of their inner lives."
This article focuses on how the algorithm addicts users and the information it collects on users as the paragraph above indicates. This leads to concerns about national security because of TikTok's Chinese origin. It doesn't discuss how the algorithm determines inappropriate content.
So, this is just a heads up for people like me who only see TikTok videos when they are reposted in other social media. African-Americans appear to be targeted and their messages are getting censored. My friend's issues were about using words like 'white' and having people complain to TikTok and getting things blocked.
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.
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:
Holding executive sessions that are not permitted under the Open Meetings Act (AS 44.62.310, et.seq.);
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;
Adopting final senate pairings that were not developed in accordance with the guidelines adopted by the Board for development of its final pairings;
Adopting senate pairings which the public did not have access to view;
Adopting final senate pairings that were not one of the senate pairings options published by the Board for public comment and testimony; and
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."
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.
Observation: If you look at all the filings on this case you'll see they're coming in at great speed. The judge and the defendant (the Board) have to read them all. All this is preface to this post and the fact that as I finally get this up,
It's great that the court is posting these documents so quickly - the denial of the stay was signed and posted today. But that means my post on attorney-client privilege is a little behind the times. Nevertheless, it still has general relevance. So here it is:
The Alaska Redistricting Board attorney claimed a very broad interpretation of Attorney-Client Privilege (ACP here).
The Plaintiffs claimed that the Board made decisions out of the view of the public - the Anchorage plaintiffs say this about the Eagle River Senate pairings, the Valdez plaintiffs and Mat-Su plaintiffs say this about the decision to put Valdez in a Mat-Su district - and so they want to know what happened at the lengthy Executive Sessions held the last week of the proclamation process. They also want to see what the attorney told the Board members in emails.
The plaintiffs were not willing to let the Board attorney decide which emails were privileged and which weren't. They wanted the judge to let them have all the emails with the caveat they are all confidential until they are approved to be used.
The Board attorney strongly disagreed. He said this would be a massive abuse of ACP and damage future Redistricting Boards if members can't speak with their attorney in confidence. He's said they've gone through as many as they could, but there are thousands of emails and it takes time they don't have as they do depositions and respond to requests from the judge and the plaintiffs and prepare for trial. Two of the plaintiffs said they got caches of email the morning of the Sunday hearing. But there were still problems and redactions.
Here's Valdez and Skagway attorney Robin Brena showing pages of redactions at the Sunday hearing.
Sunday's hearing was about whether the judge should get the emails and review them. It also spilled into what would happen in trial when Board members were asked about how and why they made certain decisions. Anchorage plaintiffs' attorney, Holly Wells, said that when she asked those question in deposition, the Board's attorney, Matt Singer, told them not to answer because of ACP. Wells wanted to know if that was going to happen in trial. Singer responded that the judge will have to decide if they can answer.
A big chunk of Sunrday's pre-trial hearing was devoted to ACP. Board attorney Singer argued for an extreme, no exceptions interpretation - citing a federal case where a man committed suicide not long after talking to an attorney and the US Supreeme Court ruled ACP is still valid after death.
Valdez plaintiffs' attorney Robin Brena, Mat-Su plaintiffs' attorney Stacey Stone, and Anchorage plaintiff's attorney Holly Wells all argued for a much more restricted application, especially when applied to a a public body. Wells has given Open Meetings Act training to state boards and commissions which includes instruction of the limits of the Executive Session for such bodies.
Wells pointed out that with public boards there is even a question of who the client is - the Board, the individual Board member, the State, the Public? With a background in public administration, I had similar thoughts.
The Board's attorney, Singer, called such claims 'laughable'. Wells responded that Singer's claims "were misrepresentations of the law and extremely inaccurate."
The judge tried to referee this as neutrally and diplomatically as he could, not tipping his hand - at least not to this non-lawyer - but he did make sure that Singer had all the emails on a thumb-drive ready for him should he decide he wants to review them. [I shake my head in wonder as consider how the judge is going to find time to review them all. The tradeoff between getting work done, getting sleep, and being awake and sharp in court is vicious in this rushed process.)
My quick review of on-line explanations of ACP suggest that Singer has stretched the concept way beyond what is commonly accepted. His demeanor at the hearing was dismissive, that this was all well trodden legal ground. He laughed and acted as if the plaintiffs' attorneys were just making up legal theory out of thin air.
I did some checking on Attorney-Client Privilege based on that, I'm guessing the Board's attorney Matt Singer's case is not that strong.
Singer argued that ACP was sacred and couldn't be breached.
And this from the same CLE source seems relevant here.
THE ADVICE OF COUNSEL EXCEPTION
The advice of counsel exception is designed to prevent a party in litigation from using the attorney-client privilege as a mechanism "to prejudice his opponent's case or to disclose some selected communications for self- serving purposes"
Attorney-client privilege is a shield not a sword
This Photo by Unknown Author is licensed
A question the judge has to decide on is whether the Board is using Attorney-Client privilege "to prejudice his client's case."
Additional questions I had included:
Does it protect the client or the attorney? From what I can tell online, it clearly protects the client, not the attorney. If that's the case, why did Singer argue that future law firms are going to be wary about working for the Board if their communications are all public. (No one said all, and all parties agreed that confidential information should be redacted.)
What kinds of communications are protected? Another source says things like legal advice is protected, but not business advice. How do you make those distinctions here? The Board is getting legal advice in the sense that the attorney is interpreting laws and court rulings regarding how districts can be drawn. But he's not giving them legal advice to help them personally avoid legal consequences. If he says one choice for drawing district lines is more likely to pass the Supreme Court's scrutiny, is that business advice or legal advice? It would appear that advising the Board on options based on the attorney's legal knowledge would be covered as legal advice, at least according to this decision:
"It is hoped that legal considerations will play a role in governmental policymaking. When a lawyer has been asked to assess compliance with a legal obligation, the lawyer’s recommendation of a policy that complies (or better complies) with the legal obligation– or that advocates and promotes compliance, or oversees implementation of compliance measures–is legal advice. Public officials who craft policies that may directly implicate the legal rights or responsibilities of the public should be encouraged to seek out and receive fully informed legal advice in the course of formulating such policies....26"
But this trial is about whether the Board's Proclamation plan was prepared legally and whether the outcome is legal. None of the Board members is threatened personally with consequences other than having to go back and redo the plan based on the court's instructions.
Alaska Public Meetings Lawhttps://codes.findlaw.com/ak/title-44-state-government/ak-st-sect-44-62-310.html
(b) If permitted subjects are to be discussed at a meeting in executive session, the meeting must first be convened as a public meeting and the question of holding an executive session to discuss matters that are listed in (c) of this section shall be determined by a majority vote of the governmental body. The motion to convene in executive session must clearly and with specificity describe the subject of the proposed executive session without defeating the purpose of addressing the subject in private. Subjects may not be considered at the executive session except those mentioned in the motion calling for the executive session unless auxiliary to the main question. Action may not be taken at an executive session, except to give direction to an attorney or labor negotiator regarding the handling of a specific legal matter or pending labor negotiations.
(c) The following subjects may be considered in an executive session:
(1) matters, the immediate knowledge of which would clearly have an adverse effect upon the finances of the public entity;
(2) subjects that tend to prejudice the reputation and character of any person, provided the person may request a public discussion;
(3) matters which by law, municipal charter, or ordinance are required to be confidential;
(4) matters involving consideration of government records that by law are not subject to public disclosure.
(d) This section does not apply to [None of these are relevant, but you can go to the link to double check.]
Under limited circumstances communications between a governmental body and its attorney qualify for executive session treatment, according to Cool Homes, Inc. v. Fairbanks North Star Borough.92 This exception is based on the attorney-client privilege, but for Open Meetings Act purposes, the privilege is defined narrowly.
This executive session exception is not available for general legal advice or opinion. It applies only when the revelation of the communication will injure the public interest or there is some other recognized purpose in keeping the communication confidential. It is not even enough that the public body is involved in pending litigation.93 Rather, the specific communication must be one that the confidentiality rationale for the privilege deems worthy of protection. The court cited a number of examples of attorney-client communications that might qualify for executive sessions: candid discussions of facts and litigation strategies; a conference on a decision to appeal; a conference about settlement; and advice about how a body and its members might avoid legal liability. A discussion generally about the "ins and outs and status" of litigation, and "what has happened in the year . . . as to court findings" did not qualify for executive session.94
It does seem the plaintiffs' arguments that the Board has interpreted when they need to be in Executive Session a little broadly and also they were a bit sloppy in what they said before going into Executive Session.
It's time to pick up my granddaughter from school so I'll end this here. There's another preheating at 4pm this afternoon (Alaska Time).
"Confidentiality is the cornerstone of the lawyer-client relationship. The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law.1 Its availability to public sector clients has been widely assumed, but only recently have courts and scholars begun to focus squarely on whether the privilege exists, and the special obligations placed on government lawyers."
"A board attorney’s allegiance to a majority faction also implicates the attorney-client privilege, when the board majority pressures the attorney not to share their communications with the minority. Although the case law remains sparse, the weight of authority holds that public entities do enjoy an attorney-client privilege,13 which may be asserted or waived only by the entity itself through those authorized to do so on its behalf.14 Since the board attorney’s client is certainly not the majority faction but the board as a whole, there is no legal authority that would permit the attorney to deny the board minority access to this information."
In a Sixth Circuit case,15 a city and its former police director were defendants in a § 1983 failure-to-promote case. When the police director asserted qualified immunity, relying on legal advice he had received from the city’s attorneys, the city objected to the attorneys’ depositions on the ground that there was an attorney-client privilege that only the city could waive. The court found that the police director had no standing to waive the city’s attorney-client privilege, even if revealing those communications was essential to his defense.
A Washington federal court rejected a federal agency officer’s claim of attorney-client privilege, in a challenge to an indictment based on the testimony of two agency lawyers who revealed communications he had with them concerning the behavior giving rise to the charges.16 The court rejected the official’s claim of privilege because he was not the “true client,” even though he was communicating with the attorneys with the expectation of confidentiality. The agency was the client and, as such, the only party with standing to invoke or waive the privilege.
[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'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
