Baldus et al v. Brennan et al

Filing 317

ORDER by Circuit Judge Diane P. Wood, District Judge J.P. Stadtmueller, and District Judge Robert M. Dow, Jr., on 6/3/13 ACCEPTING 315 the parties' Joint Report; all matters in this litigation are now resolved. (cc: all counsel)(nm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ALVIN BALDUS, CARLENE BECHEN, ELVIRA
BUMPUS, RONALD BIENDSEIL, LESLIE W DAVIS,
III, BRETT ECKSTEIN, GLORIA ROGERS, RICHARD
KRESBACH, ROCHELLE MOORE, AMY RISSEEUW,
JUDY ROBSON, JEANNE SANCHEZ-BELL,
CECELIA SCHLIEPP, TRAVIS THYSSEN, CINDY
BARBERA, RON BOONE, VERA BOONE,
EVANJELINA CLEERMAN, SHEILA COCHRAN,
MAXINE HOUGH, CLARENCE JOHNSON,
RICHARD LANGE, and GLADYS MANZANET

Case No. 11-CV-562
JPS-DPW-RMD

Plaintiffs,
TAMMY BALDWIN, GWENDOLYNNE MOORE and
RONALD KIND,
Intervenor-Plaintiffs,
v.
Members of the Wisconsin Government
Accountability Board, each only in his official
capacity: MICHAEL BRENNAN, DAVID
DEININGER, GERALD NICHOL, THOMAS CANE,
THOMAS BARLAND, and TIMOTHY VOCKE, and
KEVIN KENNEDY, Director and General Counsel for
the Wisconsin Government Accountability Board,
Defendants,
F. JAMES SENSENBRENNER, JR., THOMAS E.
PETRI, PAUL D. RYAN, JR., REID J. RIBBLE, and
SEAN P. DUFFY,
Intervenor-Defendants.
VOCES DE LA FRONTERA, INC., RAMIRO VARA,
OLGA VARA, JOSE PEREZ, and ERICA RAMIREZ,
Plaintiffs,
v.
Members of the Wisconsin Government
Accountability Board, each only in his official
capacity: MICHAEL BRENNAN, DAVID
DEININGER, GERALD NICHOL, THOMAS CANE,
THOMAS BARLAND, and TIMOTHY VOCKE, and
KEVIN KENNEDY, Director and General Counsel for
the Wisconsin Government Accountability Board,
Defendants.

Case No. 11-CV-1011
JPS-DPW-RMD

ORDER

June 3, 2013
Before WOOD, Circuit Judge, STADTMUELLER, District Judge, and DOW,
District Judge
On May 15, 2013, the parties filed two documents: (1) a Joint Report
(Docket #315) on the status of the investigation following the filing of
Plaintiffs’ Motion for Remedial Discovery and Preliminary Motion for
Sanctions (“Sanctions Motion” located at Docket #252); and (2) a letter
(Docket #316) advising the Court that they have entered into a settlement
agreement that resolves the issues raised in the Sanctions Motion. After
reviewing both documents, the Court enters this final order that at long last
terminates this litigation almost two years after it began.
As it turns out, the Court issued its ruling on the merits less than
halfway through the life of the case. At that time, attorneys’ fees for the
prevailing parties remained in dispute. But, as the parties moved toward
resolution of that collateral issue, Plaintiffs filed the Sanctions Motion, in
which they: (1) charged that aides, consultants, and lawyers working with
the Legislature during this litigation improperly withheld certain documents
that should have been produced in response to subpoenas and court orders;
and (2) suggested the possibility that the missing documents may have been
material to Plaintiffs’ substantive claims. In the almost nine months that the
motion has been pending, the parties and their lawyers and consultants have
engaged in a costly and time-consuming effort to investigate the allegations.1
1
The Joint Report indicates that Plaintiffs have spent at least $100,000 on
their forensic consultant alone, not to mention attorneys’ fees. The amounts paid
to consultants and lawyers by Michael, Best & Friedrich LLP, which represented
the Republican caucus in the redistricting effort, are not disclosed in the Joint
Report, but undoubtedly are substantial. The extent to which any of the expenses
associated with the post-trial aspects of this case may have added to the taxpayers’
already substantial bill in this litigation likewise is unknown.

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The Joint Report sets out the results of that investigation. The Report
accomplishes its stated purpose, which is “to provide, in neutral terms, what
is known and what remains unknown about the nature, extent, explanation,
and responsibility for the non-production of documents and data that should
have been produced in response to the subpoenas issued by Plaintiffs and the
Court’s pre-trial discovery orders in the redistricting process.” (Joint Report
at 1). At the end of the day, the best that can be said for the non-moving
parties is that, through “inadvertence or ineptitude, or otherwise,”
compliance with Plaintiffs’ subpoenas and the Court’s orders “was not
complete.” (Id. at 7). Yet, the Joint Report concludes, “no direct or clear and
convincing evidence has come to light to date showing either: (1) that such
non-production was the result of intentional, deliberate or contumacious
disregard of the subpoenas or the Court’s orders by anyone; and (2) that the
previously unproduced material would have materially affected the ultimate
outcome of the redistricting litigation.” (Id. at 8).
Recognizing that these conclusions are couched in uncertainty, they
do, nevertheless, satisfy the Court that its role in this litigation should come
to an end. Even after resolving the merits of this case, the Court retained an
ongoing interest in the post-trial aspects to the extent necessary to vindicate
its orders and processes and to protect the integrity of its ruling on Plaintiffs’
claims. Had the parties’ efforts to date uncovered a “smoking gun” or other
good cause for action, the Court retained the authority to impose sanctions
on the non-moving parties and/or to award affirmative relief to the moving
parties. Given the inconclusive results of those efforts, however, we concur
in the parties’ apparent judgment that the further consumption of public or
private funds or judicial resources in pursuit of the Sanctions Motion—or any
other potential avenues for relief in federal court—would not be justified.
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Whether there is another chapter to be written in this story by others who
may have an interest in getting to the bottom of this unfortunate chapter in
Wisconsin political history remains to be seen. The extent to which historians,
the media, professional regulators and disciplinary bodies, or any others may
wish to take further action is for them to decide in due course. But the
involvement of the federal judiciary in this matter has come to an end at least
for this decade.2
In closing, we simply reemphasize our previous observations
(see 3/22/12 Opinion (Docket #210), at 34-35) about the regrettable
contentiousness that often accompanies partisan redistricting wherever it
takes place and the additional Wisconsin-specific rancor brought on by the
peculiarly furtive process adopted by the majority party this time around.
We cannot help but conclude that the people of Wisconsin deserve better in
the next round of redistricting after the 2020 census.
Accordingly,
IT IS ORDERED that the parties’ Joint Report (Docket #315) be and
the same is hereby ACCEPTED, and all matters in this litigation are finally
resolved.

2
As the Court noted in its Memorandum Opinion and Order of March 22,
2012, judicial involvement in the redistricting process is nothing new in Wisconsin.
Following each of the three most recent prior censuses (1980, 1990, 2000), threejudge courts have actually drawn the state’s legislative districts.

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