Whitford, William et al v. Nichol, Gerald et al

Filing 243

ORDER denying without prejudice 224 Motion to Dismiss and 27 Motion to Dismiss; granting in part and denying in part 230 Motion to Stay. Signed by Judges William C. Griesbach, James D. Peterson and Kenneth F. Ripple on 1/23/2019. Associated Cases: 3:15-cv-00421-jdp, 3:18-cv-00763-jdp. (voc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

WILLIAM WHITFORD, GRAHAM ADSIT,
ROGER ANCLAM, WARREN BRAUN,
HANS BREITENMOSER, JUDITH BREY,
BRENT BRIGSON, EMILY BUNTING,
SANDRA CARLSON-KAYE, GUY COSTELLO,
TIMOTHY B. DALEY, MARGARET LESLIE
DEMUTH, DANIEL DIETERICH, MARY LYNNE
DONOHUE, LEAH DUDLEY, JENNIFER ESTRADA,
BARBARA FLOM, HELEN HARRIS,
GAIL HOHENSTEIN, WAYNE JENSEN,
WENDY SUE JOHNSON, MICHAEL LECKER,
ELIZABETH LENTINI, NORAH MCCUE,
JANET MITCHELL, DEBORAH PATEL,
JANE PEDERSEN, NANCY PETULLA,
ROBERT PFUNDHELLER, SARA RAMAKER,
ROSALIE SCHNICK, ALLISON SEATON,
JAMES SEATON, ANN E. STEVNING-ROE,
LINEA SUNDSTROM, MICHAEL SWITZENBAUM,
JEROME WALLACE, DONALD WINTER,
EDWARD WOHL, and ANN WOLFE,
Plaintiffs,
v.
BEVERLY R. GILL, JULIE M. GLANCEY,
ANN S. JACOBS, JODI JENSEN, DEAN KNUDSON,
STEVE KING, DON MILLS, and
MARK L. THOMSEN,
Defendants,
and
THE WISCONSIN STATE ASSEMBLY,
Intervenor-Defendant.

OPINION and ORDER
15-cv-421-jdp

THE WISCONSIN ASSEMBLY DEMOCRATIC
CAMPAIGN COMMITTEE,
Plaintiff,
v.
BEVERLY R. GILL, JULIE M. GLANCEY,
ANN S. JACOBS, JODI JENSEN, DEAN KNUDSON,
and MARK L. THOMSEN,

OPINION and ORDER
18-cv-763-jdp

Defendants,
and
THE WISCONSIN STATE ASSEMBLY,
Intervenor-Defendant.
The question before the court is whether these consolidated cases should be stayed
pending resolution of Rucho v. Common Cause, No. 18-422 (U.S.), and Lamone v. Benisek, No.
18-726 (U.S.), two other cases raising partisan gerrymandering claims that are now before the
Supreme Court. Intervenor-Defendant Wisconsin State Assembly favors a stay, contending
that Rucho and Lamone are likely either to provide a new legal standard for partisan
gerrymandering claims or to hold that such claims are not justiciable. Dkt. 230.1 Either way,
the Assembly says, allowing these cases to proceed before the Supreme Court decisions would
waste the resources of the court and the parties. Plaintiffs object to a stay, contending that a
significant delay will prevent them from obtaining relief on their claims before the 2020
elections. The other defendants take no position on the question.
Both the Assembly and plaintiffs raise important considerations. For reasons explained
below, the court will take a middle path intended to minimize the waste of resources while

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Docket entries are to Case No. 15-cv-421-jdp.

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keeping the case on track for reasonably prompt resolution. The court will allow discovery to
proceed as scheduled, but it will delay the trial and any decision on the merits until after the
Supreme Court decides Rucho and Lamone.

ANALYSIS
The court has discretion to stay proceedings for the sake of judicial economy, Landis v.
N. Am. Co., 299 U.S. 248, 254 (1936), including when there are parallel proceedings that could
resolve important issues in the case. E.g., Texas Indep. Producers & Royalty Owners Ass’n v. E.P.A.,
410 F.3d 964, 980 (7th Cir. 2005); Ingersoll Milling Mach. Co. v. Granger, 833 F.2d 680, 686
(7th Cir. 1987). In considering a motion to stay, the court must weigh the costs and benefits
to each side. Radio Corp. of Am. v. Igoe, 217 F.2d 218, 220 (7th Cir. 1954); Grice Eng’g, Inc. v.
JG Innovations, Inc., 691 F. Supp. 2d 915, 920 (W.D. Wis. 2010).
Rucho and Lamone have important implications for our cases, which require this court to
resolve four main issues: (1) whether partisan gerrymandering claims are justiciable; (2)
whether any of the plaintiffs have standing to sue; (3) whether the legislative maps at issue in
these cases violate the First Amendment; and (4) whether the maps violate the Fourteenth
Amendment. Rucho and Lamone present these issues as well. Rucho and Lamone will likely be
decided toward the end of the current Supreme Court term, in June 2019, after the currently
scheduled trial and post-trial briefing in our cases.
As the parties know well, this court cannot simply apply well-established principles to
a new set of facts in deciding these cases. The Supreme Court has not yet provided a standard
for determining whether a partisan gerrymander violates the First or Fourteenth Amendment
or even determined whether such claims are justiciable. If the Court determines that partisan

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gerrymandering claims are not justiciable, these cases will have to be dismissed. If the Court
articulates a standard for evaluating partisan gerrymandering claims that departs from any
standard applied by this court, then a new trial under the correct standard may be necessary.
Either way, holding a trial and taking full briefing in these cases before the Supreme Court
decides Rucho and Lamone would almost certainly lead to a significant waste of resources for the
parties and the court.
Plaintiffs’ concerns about timing are valid, but allowing these cases to go forward
without taking consideration of Rucho and Lamone would not necessarily mean that plaintiffs
could obtain a ruling from the Supreme Court any faster. Even assuming that the Supreme
Court concludes that partisan gerrymandering claims are justiciable, it will not help the
plaintiffs if this court has to retry the cases under a new standard.
The court is persuaded that judicial economy and the balance of equities favor delaying
the trial and any decision on the merits until the Supreme Court decides Rucho and Lamone.
But to avoid any unnecessary delay once that happens, this court will allow discovery to
proceed in the meantime. Most of that discovery should be relevant regardless of any new
standard announced by the Supreme Court. Although the experts may need to update their
reports, the court will give the parties an opportunity to do that before trial as necessary.
It is true that should the Supreme Court determine that partisan gerrymandering claims
are not justiciable, the parties’ work will have been for naught. But the court must weigh the
interests of both sides. Staying all proceedings until the Supreme Court decides Rucho and
Lamone would significantly delay this court’s resolution of these cases, thereby increasing the
risk of prejudice to plaintiffs. By allowing discovery to proceed while staying the trial, the court

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hopes to minimize any wasted effort while still allowing the parties to obtain timely Supreme
Court review.
A trial beginning on July 22, 2019, would allow the parties to update their expert reports
and prepare for trial under the new law. A compressed post-trial briefing schedule would allow
the case to be under advisement to this court by early September, and the court will commit
to decide the cases as promptly as possible in light of the complexities of the dispute.
Such a schedule would impose only modest delay. Plaintiffs acknowledge that this court
could not issue a decision on the merits until the Supreme Court decides Rucho and Lamone
and that, at a minimum, supplemental briefing would be required. Dkt. 239, at 5. So even
under plaintiffs’ best-case scenario, the case would not be under advisement until late July at
the earliest. It makes little sense to expend the additional resources necessary for an early trial
for such a small time savings, particularly when the chances of retrial are so significant.
So the court will grant the Assembly’s motion in part and deny it in part. The court will
hold a telephone conference with the parties to give them an opportunity to provide input on
the proposed July 22 trial date, deadlines for updated expert reports, and a post-trial briefing
schedule.
One final point. At the Assembly’s request, the court has delayed further briefing on
the Assembly’s motions to dismiss both cases pending a decision on the Assembly’s motion to
stay. Dkt. 235. Now that the court has agreed to stay a decision on the merits pending decisions
in Rucho and Lamone, the court will deny the motions to dismiss without prejudice to the
Assembly’s renewing its motions after the Supreme Court decides those cases.

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ORDER
IT IS ORDERED that:
1. The Wisconsin State Assembly’s motion to stay, Dkt. 230, is GRANTED in part
and DENIED in part. The court will allow discovery to proceed but will postpone
the trial and a decision on the merits until after the Supreme Court decides Rucho v.
Common Cause, No. 18-422 (U.S.), and Lamone v. Benisek, No. 18-726 (U.S.).
2. The Assembly’s motions to dismiss, Dkt. 224 (in Case No. 15-cv-421-jdp) and Dkt.
27 (in Case No. 18-cv-763-jdp), are DENIED without prejudice pending resolution
of Rucho and Lamone.
3. The clerk of court is directed to set a telephone conference with the parties to
determine a new trial date and related deadlines.
Entered January 23, 2019.
BY THE COURT:
_/s/_______________________________________
WILLIAM C. GRIESBACH
District Judge
_/s/_______________________________________
JAMES D. PETERSON
District Judge

Judge Ripple respectfully dissents from the part of the order that grants the motion to
stay the trial.

_/s/_______________________________________
KENNETH F. RIPPLE
Circuit Judge

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