Whitford, William et al v. Nichol, Gerald et al
Filing
275
ORDER: It is ordered that plaintiffs' motion to compel discovery, Dkt. 257 , is granted as to the deposition of Robin Vos and requests for production nos. 1-3, 6-9, and 15. The motion is otherwise denied. Signed by Judges Kenneth F. Ripple, William C. Griesbach and James D. Peterson on 5/3/2019. (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,
OPINION and ORDER
15-cv-421-jdp
Plaintiffs,
v.
BEVERLY R. GILL, JULIE M. GLANCEY,
ANN S. JACOBS, JODI JENSEN, DEAN KNUDSON,
and MARK L. THOMSEN,
Defendants,
and
THE WISCONSIN STATE ASSEMBLY,
Intervenor-Defendant.
Plaintiffs have filed a motion to compel discovery against Robin Vos, the Wisconsin
State Assembly Speaker. Dkt. 257. Plaintiffs contend that Vos has critical information related
to their claim that the 2011 Assembly redistricting plan is an unconstitutional partisan
gerrymander, so they ask the court to compel Vos to sit for a deposition and turn over 15
categories of documents. In response, Vos says that any discovery against him is barred by
legislative privilege or is otherwise outside the scope of Federal Rule of Civil Procedure 26.
Dkt. 265. The Assembly adopted Vos’s position as its own, Dkt. 266; the remaining defendants
took no position on the motion, Dkt. 263.
For the reasons explained below, we conclude that plaintiffs are entitled to depose Vos
and to receive responses to some but not all of their requests for production. We acknowledge
that a sitting legislator is not subject to civil process in any but the most exceptional
circumstances. But this is an exceptional case that raises important federal questions about the
constitutionality of Wisconsin’s plan for electing members of the Assembly. Vos was a key
figure in enacting that plan and he was involved at nearly every stage of the process. Probably
no one has a better understanding of the challenged plan than he does. Under these
circumstances, the qualified legislative privilege to which Vos is entitled must yield to the
important federal interests implicated by plaintiffs’ claims.
ANALYSIS
The parties argue the following issues in their briefs: (1) whether Vos waived any
legislative privilege he had; (2) if not, whether the privilege is absolute or qualified under the
facts of this case; (3) if it is qualified, whether the privilege, other federal common law, or Rule
26 bars the discovery at issue. We will consider each issue in turn.
A. Waiver
Plaintiffs assert that Vos has waived any claim to legislative privilege because the
Wisconsin Assembly intervened in this case. But the Assembly’s intervention in the litigation
2
did not waive the legislative privilege held by its individual members. That is because the
privilege is a “personal one” and may only be “waived or asserted by each individual legislator.”
Marylanders for Fair Representation, Inc. v. Schaefer, 144 F.R.D. 292, 298 (D. Md. 1992); see also
Favors v. Cuomo, 285 F.R.D. 187, 211 (E.D.N.Y. 2012) (“[A] legislator cannot assert or waive
the privilege on behalf of another legislator.”). Vos did not intervene in this case and thus did
not waive the privilege.
B. Scope of the privilege
In arguing that legislative privilege bars plaintiffs’ discovery requests, Vos relies on a
line of cases that begins with Tenney v. Brandhove, 341 U.S. 367 (1951). In that case, the
Supreme Court concluded that members of a California state senate committee were immune
under federal common law principles from civil liability for allegedly violating the plaintiff’s
First Amendment rights by calling him before the committee. Id. at 376–77. See also United
States v. Gillock, 445 U.S. 360, 372 n.10 (1980) (noting that Tenney “was grounded on its
interpretation of federal common law”). The Court’s rationale was that granting immunity was
necessary to allow legislators to discharge their public duties without concern of adverse
consequences outside the ballot box. Tenney, 341 U.S. at 373. Since Tenney, federal courts have
uniformly held that state legislators are generally immune from civil lawsuits. E.g., Reeder v.
Madigan, 780 F.3d 799, 805 (7th Cir. 2015); Bagley v. Blagojevich, 646 F.3d 378, 396–97 (7th
Cir. 2011).
Tenney was not about a privilege against testifying or complying with discovery requests,
which is less burdensome and intrusive than being a defendant in a lawsuit. But lower courts
have consistently construed Tenney and its progeny as more generally restricting the use of civil
process against state legislators, including depositions and other discovery. E.g., In re Hubbard,
3
803 F.3d 1298, 1307–08 (11th Cir. 2015); Bagley, 646 F.3d at 396–97; EEOC v. Washington
Suburban Sanitary Comm’n, 631 F.3d 174, 181 (4th Cir. 2011).
That is not the end of the matter, however, because the Supreme Court has also held
that there are exceptions to state legislative immunity. Specifically, immunity must give way
“where important federal interests are at stake.” United States v. Gillock, 445 U.S. 360, 373
(1980). The interest at stake in Gillock was a federal prosecution for bribery. The Court
distinguished Tenney on the ground that Tenney “was a civil action brought by a private plaintiff
to vindicate private rights.” Id. at 372.
Gillock is the only case cited by the parties in which the Supreme Court concluded that
a state legislator was not entitled to immunity for legislative acts. But many courts, including
two in the Seventh Circuit, have concluded that gerrymandering claims raise sufficiently
important federal interests to overcome legislative privilege, reasoning that such claims involve
public rights and that the ballot box may not provide adequate protection of those rights. E.g.,
Benisek v. Lamone, 241 F. Supp. 3d 566, 572–74 (D. Md. 2017); Lee v. Virginia State Bd. of
Elections, No. 15-cv-357 (HEH-RCY), 2015 WL 9461505, at *5 (E.D. Va. Dec. 23, 2015);
Bethune-Hill v. Virginia State Bd. of Elections, 114 F. Supp. 3d 323, 333 (E.D. Va. 2015); Favors
v. Cuomo, 285 F.R.D. 187, 213–14 (E.D.N.Y. 2012); Comm. for a Fair & Balanced Map v. Ill.
State Bd. of Elections, No. 11 C 5065, 2011 WL 4837508 (N.D. Ill. 2011); Baldus v. Brennan,
Nos. 11–cv–562, 11–cv–1011, 2011 WL 6122542 (E.D. Wis. 2011); United States v. Irvin, 127
F.R.D. 169, 170, 173–74 (C.D. Cal. 1989). These cases are consistent with Village of Arlington
Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 268 (1977), in which the
Supreme Court stated that “extraordinary circumstances” could justify requiring a legislator to
testify at trial.
4
The only contrary authority that Vos cites is Lee v. City of Los Angeles, 908 F.3d 1175,
1187 (9th Cir. 2018), in which the court relied on legislative privilege to deny a motion to
compel depositions of city officials in the context of a racial gerrymandering claim. But the
court in Lee did not hold that a gerrymandering claim can never overcome legislative privilege,
only that “the factual record in [that] case [fell] short of justifying the substantial intrusion
into the legislative process.” 908 F.3d at 1188 (internal quotations omitted). In any event, the
persuasive force of Lee is limited because the court did not acknowledge Gillock’s statement that
an important federal interest can overcome legislative immunity. And the court did not
acknowledge any of the cases from other courts discussing the unique nature of gerrymandering
claims.
We are persuaded by the reasoning of the many courts concluding that there is a
qualified rather than absolute legislative privilege from complying with discovery requests in
the context of a claim regarding unconstitutional gerrymandering. An allegation that a
legislative act violated a single individual’s rights cannot be compared with a claim that the
entire make up of a state legislative body is the result of an unconstitutional redistricting
process. The alleged constitutional violations in this case implicate important structural
concerns about the legitimacy of the Wisconsin government in a way that impedes plaintiffs’
ability to obtain redress through the political process. Under these circumstances, we conclude
that an absolute privilege would fail to give due respect to the important federal interest of
ensuring a fair and equal election process that complies with the First and Fourteenth
Amendments. See Trammel v. United States, 445 U.S. 40, 50 (1980) (privileges should apply
“only to the very limited extent that . . . a public good transcend[s] the normally predominant
principle of utilizing all rational means for ascertaining truth” (internal quotations omitted)).
5
The next step is to determine the appropriate test for evaluating whether the qualified
privilege should apply. The other courts that have applied a qualified privilege to
gerrymandering claims have balanced five factors: (1) the relevance of the evidence sought; (2)
the availability of other evidence; (3) the seriousness of the litigation; (4) the role of the State,
as opposed to individual legislators, in the litigation; and (5) the extent to which the discovery
would impede legislative action. E.g., Benisek, 241 F. Supp. 3d at 575.
We will take this approach, though not all of the factors require extended discussion.
As for the seriousness of the litigation, we have already concluded that plaintiffs’ claim
implicates an important federal interest. As for the role of the state versus the individual
legislator, that factor relates to whether the lawsuit potentially subjects the legislator to
personal liability. Bethune-Hill, 114 F. Supp. 3d at 334–35. In this case, as in any
gerrymandering case, the answer is no. As for the potential to impede legislative action, any
intrusion into the legislative process has that potential; that is the reason for the privilege in
the first place. We have already concluded that gerrymandering claims raise sufficiently
important federal interests to override that concern in some circumstances.
This leaves two key questions: (1) how important to plaintiffs’ claims is the requested
discovery? and (2) do plaintiffs have alternative means for obtaining the information? We will
now turn to these questions as well as the more general question whether all of the discovery
requests at issue fall within the discovery limits of Rule 26. 1
1
In addition to asserting legislative privilege, Vos invokes the principle that a public official
“should not be taken away from his work to spend hours or days answering lawyers’ questions
unless there is a real need.” Olivieri v. Rodriguez, 122 F.3d 406, 409 (7th Cir. 1997). Because
legislative privilege implicates the same concern, we need not discuss the principle in Oliveri
separately.
6
C. Particular discovery requests
1. Deposition testimony
Plaintiffs seek to depose Vos on the following topics:
(1) testimony relating to how the Legislature reached its decision
on the boundaries for each district in the 2011 redistricting maps
(Act 43), including its motives, objective facts it relied on, and the
involvement of others in the process, including the Redistricting
Majority Project (REDMAP), the Republican National
Committee, or other national Republican Party entities; and
(2) testimony as to the predicted and actual associational effects
of Act 43 on the Democratic Party, Democratic voters, the
Republican Party, and Republican voters.
Dkt. 258, at 7.
As both sides acknowledge, the proposed deposition relates primarily to the intent of
the legislature in enacting the 2011 plan. Although the Supreme Court has yet to articulate a
standard for proving partisan gerrymandering, other types of gerrymandering claims recognized
by the Court include intent as an element. See Cooper v. Harris, 137 S. Ct. 1455, 1463 (2017)
(“A State may not use race as the predominant factor in drawing district lines unless it has a
compelling reason.”). Intent has also been an element in the tests for partisan gerrymandering
applied by district courts—including this one—under both the First Amendment and the Equal
Protection Clause. E.g., League of Women Voters of Michigan v. Benson, No. 17-cv-14148, 2019
WL 1856625, at *27–28 (E.D. Mich. Apr. 25, 2019); Ohio A. Philip Randolph Inst. v.
Householder, No. 18-cv-357, 2019 WL 652980, at *4–6 (S.D. Ohio Feb. 15, 2019); Common
Cause v. Rucho, 318 F. Supp. 3d 777, 861, 927 (M.D.N.C. 2018); Benisek v. Lamone, 348 F.
Supp. 3d 493, 522 (D. Md. 2018); Whitford v. Gill, 218 F. Supp. 3d 837, 884 (W.D. Wis.
2016). Vos does not deny that plaintiffs will have to prove the Assembly’s intent to prevail on
7
their claims. So the type of evidence that plaintiffs seek from Vos is not only relevant but also
necessary.
Plaintiffs have narrowly tailored their request to include only Vos rather than a larger
group of legislators. Plaintiffs chose Vos because of his deep involvement in the redistricting
process. Specifically, Vos was the only Representative who participated in two sets of key
meetings. In the first set, Vos and other members of the legislative leadership met to discuss
the boundaries of specific districts. Dkt. 258, at 16. In the second set, Vos met one-on-one
with each Republican Representative about that Representative’s district. Id. So Vos has a
unique perspective and potential insight into the intent behind the redistricting plan.
Vos points out that plaintiffs have already obtained numerous documents and
electronic discovery related to the redistricting process, as well as the testimony of legislative
aide Adam Foltz, who was present with Vos at many of the meetings about the redistricting
plan. In a supplemental brief, the Assembly notes that plaintiffs have served a subpoena on
Foltz that overlaps substantially with the subpoena served on Vos. See Dkt. 272.
We are not persuaded that the availability of other documents or Foltz’s testimony
renders Vos’s testimony unnecessary. As for the documents already produced, it is undisputed
that there are significant gaps in the records because much electronic discovery was lost as the
result of damage to one hard drive that contained information related to the redistricting
process and the destruction of others. Dkt. 268, at 16. And Vos does not point to any
documents that detail the discussions among the legislative leadership or between Vos and the
individual Representatives.
As for Foltz’s testimony, we do not believe that it is properly viewed as an adequate
substitute for testimony from Vos. For one thing, we have already stated that we have “less
8
confidence” in Foltz’s testimony than the testimony of some other witnesses and even that
some of his testimony was “unworthy of credence.” Whitford, 218 F. Supp. 3d at 890 n.177.
And even assuming that everything Foltz said was true, the perspective of a legislative aide
cannot be compared to that of one of the primary architects of the redistricting plan. Foltz
simply does not have the same insight into legislative intent that Vos does.
So we will grant the motion to compel Vos’s deposition. But we will also follow the
approach in Benisek by reserving a final ruling on the admissibility of deposition testimony. If
plaintiffs attempt to rely on any portion of the testimony later in the proceedings, Vos may
seek a ruling on its admissibility or a protective order at that time. See Benisek, 241 F. Supp. 3d
at 577 (“[E]ach legislator witness will be able, before his or her testimony becomes public, to
file a motion for a protective order, should the parties not be able to agree on one.” (footnotes
omitted)).
2. Requests for production
In addition to Vos’s deposition, plaintiffs submitted requests for production of 15
categories of documents. See Dkt. 259-1. Requests for production nos. 1 through 3 and 15
appear to overlap substantially with the topics noticed for deposition. 2 Because the parties do
not raise any issues unique to these requests, we will direct Vos to respond.
2
Requests for production nos. 1–3 seek:
1. All documents, including but not limited to email, concerning
any analyses, data, plans, procedures, memos and/or reports used
by state legislative staff, state legislators, and/or any consultants
or experts in the planning, development, negotiation, drawing,
revision, or redrawing of the maps codified in 2011Wisconsin Act
43 or any other potential state assembly plan that was not
adopted.
9
Requests nos. 4 and 5 relate to the Assembly’s retention of a law firm before the original
appeal of this case. 3 Because plaintiffs do not explain how that information is relevant to any
2. All documents, including but not limited to email, concerning
the objectives and/or motives relied on by—or available to—state
lawmakers, their staff and/or any consultants or experts in the
planning, development, negotiation, drawing, revision, or
redrawing of the maps codified in 2011 Wisconsin Act 43 or any
other potential state assembly plan that was not adopted.
3. All documents, including but not limited to email, concerning
the objective facts that legislative staff and/or any experts or
consultants references, used or relied upon—or had available to
them—in the planning, development negotiation, drawing,
revision, or redrawing of the maps codified in 2011 Wisconsin
Act 43 or any other potential state assembly plan that was not
adopted.
Request for production no. 15 seeks:
15. Any and all documents reflecting or relating or referring to
communications the RPW has had with any current or former
Republican Wisconsin State Assembly member or candidate
about the impact of Act 43 . . . on Assembly elections across the
State of Wisconsin as a whole or in any one or more particular
Assembly districts from 2010 to the present.
3
Requests nos. 4 and 5 seek:
4. Any and all requests that you, your office, or anyone employed
by you or your office received to provide to the requesting person
or to release to the public a copy of any engagement letter,
contract, agreement, or other document reflecting the Wisconsin
State Assembly’s retention or engagement of Bartlit Beck LLP to
serve as its legal counsel in Whitford v. Gill, case no. 15-cv-421jdp, pending in the U.S. District Court for the Western District
of Wisconsin.
5. Copies of any and all documents that you, your office, or
anyone employed by you or your office provided to the requesting
person or released to the public in response to any request
identified in Paragraph 4, above.
10
of the issues that plaintiffs must prove in this case (or could lead to the discovery of relevant
information), we will deny the motion to compel as to those requests.
Requests nos. 6 through 9 relate to information that Vos received from outside
organizations such as the Republican National Committee. 4 Vos does not deny the relevance
of these materials, but he contends that plaintiffs should be required to seek the information
from the third parties. But that would be true only if these materials were covered by legislative
privilege. Because these documents came from third parties, they are not protected. See Bethune-
4
Requests for production nos. 6–9 seek:
6. Copies of any and all documents prepared by or transmitted by
the Republican National Committee, that relate or refer to
legislative redistricting, including but not limited to the document
attached hereto as Exhibit 1.
7. Copies of any and all communications, including email, that
relate or refer to legislative redistricting, reflecting or referring to
any of the following people or email addresses:
a. Tom Hofeller, thofeller@rnchq.org
b. Dale Oldham, doldham@rnchq.org
c. Mike Wild, mwild@rnchq.org
d. John Phillipe, jphillippe@rnchq.org
e. Leslie Rutledge, lrutledge@rnchq.org
8. Any and all materials reflecting or relating or referring to the
April 2010 Republican National Committee’s GOP Redistricting
Conference, including any and all notes, summaries, minutes,
agendas, papers, documents, data, computer files, CDs, training
materials, or any other written or electronic material prepared for,
distributed at, created at, or otherwise related to that conference.
9. Any and all documents reflecting or relating or referring to the
Redistricting Majority Project, commonly referred to as
“REDMAP.”
11
Hill, 114 F. Supp. 3d at 343 (“[T]he House must produce any documents or communications
shared with, or received from, any individual or organization outside the employ of the
legislature.”); Baldus, 2011 WL 6122542, at *2 (“The Legislature has waived its legislative
privilege to the extent that it relied on such outside experts for consulting services.”). So the
court will direct Vos to respond to these requests as well.
The last group of requests is extremely broad. Plaintiffs seek information from 2002
onward related to a wide range of activities of the Republican party. 5 Because plaintiffs do not
5
Requests nos. 10–14 seek:
10. Any and all documents reflecting or relating or referring to
meetings, communications, or conversations from 2002 to the
present regarding or relating to recruiting Republican candidates
for Wisconsin State Assembly.
11. Any and all documents reflecting or relating or referring to
communications made by the RPW that solicited campaign
contributions to the RPW or to any individual Republican
candidate for the Wisconsin State Assembly from 2002 to the
present. The categories of communications as used in this request
includes but is not limited to emails, mailings, phone solicitations,
person-to-person solicitations, and fundraising events.
12. Any and all documents reflecting or relating or referring to
volunteer activities in support of Republican campaigns for the
Wisconsin State Assembly that were coordinated by, arranged by,
carried out by, or funded by the RPW from 2002 to the present.
13. Any and all documents reflecting or relating or referring to
voter registration activities that were coordinated, arranged,
carried out, or funded by the RPW or Wisconsin Republican
Assembly Campaign Committee (“WRACC”) from 2002 to the
present.
14. Any and all documents reflecting or relating or referring to
meetings, communications, or conversations from 2002 to the
present regarding or relating to advocating for or implementing
legislative policies preferred by the RPW or the Republican
Assembly Caucus.
12
even attempt to show that that these requests are “proportional to the needs of the case” or
that the benefit of providing the information is not outweighed by the burden or expense of
the proposed discovery, see Fed. R. Civ. P. 26(b)(1), we will not require Vos to produce the
responsive material at this time.
ORDER
IT IS ORDERED that plaintiffs’ motion to compel discovery, Dkt. 257, is GRANTED
as to the deposition of Robin Vos and requests for production nos. 1–3, 6–9, and 15. The
motion is otherwise DENIED.
Entered May 3, 2019.
BY THE COURT:
/s/________________________________________
KENNETH F. RIPPLE
Circuit Judge
/s/________________________________________
JAMES D. PETERSON
District Judge
13
GRIESBACH, District Judge, dissenting. I respectfully dissent from the majority’s
conclusion that the legislative privilege does not apply in this case. In my view, intent is
no longer an issue in the case, and whatever relevance Speaker Vos’ testimony may have
does not warrant invasion of the legislative privilege.
“The legislative privilege is important. It has deep roots in federal common law.”
In re Hubbard, 803 F.3d 1298, 1307 (11th Cir. 2015) (citing Tenney v. Brandhove, 341 U.S. 367,
372 (1951)). Legislative privilege is a corollary to legislative immunity, which provides a
legislator with immunity from civil liability for their actions. See Benisek v. Lamone, 263 F.
Supp. 3d 551, 554 (D. Md. 2017) (citation omitted). The doctrine of legislative immunity
is premised on the notion that “a private civil action . . . creates a distraction and forces
[legislators] to divert their time, energy, and attention from their legislative tasks to
defend the litigation.” Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 503 (1975).
It also recognizes that the threat of civil liability strips legislators of the courage necessary
to legislate for the public good. See Tenney, 341 U.S. at 377. “The doctrine is a bulwark in
upholding the separation of powers” and insulates legislators “from judicial scrutiny into
their deliberative processes.” Schaefer, 144 F.R.D. at 304; see also Supreme Court of Va. v.
Consumers Union of the United States, 446 U.S. 719, 731–32 (1980) (noting the purpose of
legislative immunity is to ensure that “the legislative function may be performed
independently without fear of outside interference”); All. for Global Justice v. District of
Columbia, 437 F. Supp. 2d 32, 35 (D.D.C. 2006) (“The primary purposes of . . . legislative
immunity is to insure the independent performance of the legislative function and to
preserve the separation of powers.” (citation omitted)).
Legislative privilege exists to “safeguard . . . legislative immunity and to further
encourage the republican values it promotes.” EEOC v. Wash. Suburban Sanitary Comm’n,
1
631 F.3d 174, 181 (4th Cir. 2011). The privilege “protects against inquiry into acts that
occur in the regular course of the legislative process and into the motivation for those
acts.” United States v. Brewster, 408 U.S. 501, 525 (1972). Like legislative immunity, the
legislative privilege ensures that “lawmakers are allowed to ‘focus on their public
duties’” rather than on defending lawsuits. In re Hubbard, 803 F.3d at 1310 (quoting Wash.
Suburban, 631 F.3d at 181). More importantly, however, the purpose of the legislative
privilege is to minimize politics masquerading as litigation by shielding legislators from
“political wars of attrition in which their opponents try to defeat them through litigation
rather than at the ballot box.” Wash. Suburban, 631 F.3d at 181. The legislative privilege,
which functions as a testimonial and evidentiary privilege, is therefore not to be cast aside
lightly. See Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 268 (1977).
In actions brought in federal courts, the constitutional and policy reasons
underlying the legislative privilege have been found less compelling for state legislators
than for federal legislators. See United States v. Gillock, 445 U.S. 360, 370–71 (1980) (noting
that “federal interference in the state legislative process is not on the same constitutional
footing with the interference of one branch of the Federal Government in the affairs of a
coequal branch”). But principles of comity still warrant recognition of such a privilege
and “command careful consideration.” Id. at 373. In Gillock, the Court held that “where
important federal interests are at stake, as in the enforcement of federal criminal statutes,
comity yields.” Id. Gillock, however, involved a federal prosecution of a state legislator
for bribery. The issue before the Court there was whether a legislative privilege barred
the introduction of evidence of the legislative acts of a state legislator charged with taking
bribes or otherwise obtaining money unlawfully through the exploitation of his official
position. Id. at 362.
2
Speaker Vos, in contrast, is not charged with taking bribes or engaging in criminal
conduct for his own personal purposes. Instead, he and the other legislative members of
his party are alleged to have used the legislative process to enact a redistricting plan
intended to increase the chances of their party obtaining a majority in the assembly, in
other words, partisan gerrymandering, a practice that is older than the Republic.
Moreover, at the time Speaker Vos is alleged to have so acted, and even at this late date,
the Court has yet to hold such intent unlawful. Indeed, the Court has consistently
recognized that partisan intent is part and parcel of a system that entrusts redistricting to
politicians. See, e.g., Vieth v. Jubelirer, 541 U.S. 267, 285 (2004) (plurality opinion) (“The
Constitution clearly contemplates districting by political entities, see Article I, ' 4, and
unsurprisingly that turns out to be root-and-branch a matter of politics.”); Miller v.
Johnson, 515 U.S. 900, 914 (1995) (“[R]edistricting in most cases will implicate a political
calculus in which various interests compete for recognition . . . .”). This is a far cry from
the conduct at issue in Gillock.
The majority notes that “many courts, including two in the Seventh Circuit, have
concluded that gerrymandering claims raise sufficiently important federal interests to
overcome legislative privilege, reasoning that such claims involve public rights and that
the ballot box may not provide adequate protection of those rights.” Majority opinion at
3–4 (collecting cases). But this just begs the question of whether such claims are justiciable
in the first place. Absent a judicially manageable standard, which the Supreme Court has
so far been unable to discern, no judicial remedy is available and we are simply spinning
our wheels.
Even if I were to accept the majority’s view that the importance of the issue, by
itself, is sufficient to overcome the legislative privilege, I would nevertheless hold that
3
under the circumstances of this case, Speaker Vos’ testimony is not required. This is
because partisan intent has already been established. This court found that such intent
existed in the first trial. After a detailed eight-page discussion of the evidence bearing on
the issue of intent, the majority concluded: “These facts, in tandem with the
overwhelming number of reports and memoranda addressing the partisan outcomes of
the various maps, lead us to conclude that, although Act 43 complied with traditional
redistricting principles, it nevertheless had as one of its objectives entrenching the
Republicans’ control of the Assembly.” Whitford v. Gill, 218 F. Supp. 3d 837, 898 (W.D.
Wis. 2016). The majority then went on to find: “It is clear that the drafters got what they
intended to get. There is no question that Act 43 was designed to make it more difficult
for Democrats, compared to Republicans, to translate their votes into seats.” Id. Not even
the dissent disputed this finding, and the Supreme Court did not disturb it.
Instead, the Court vacated this court’s judgment upon a finding that standing had
not been established and remanded the case to allow voters “an opportunity to prove
concrete and particularized injuries using evidence—unlike the bulk of the evidence
presented thus far—that would tend to demonstrate a burden on their individual votes.”
Gill v. Whitford, 138 S. Ct. 1932, 1934 (2018). The Court expressly stated whether plaintiffs
have established an injury in fact “turns on effect, not intent, and requires a showing of a
burden on the plaintiffs’ votes that is ‘actual or imminent, not “conjectural” or
“hypothetical.”’” Id. at 1932 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
(1992)). Deposing Vos about the legislature=s intent in enacting the 2011 plan is neither
necessary nor relevant to plaintiffs’ burden and would be an intrusion into the legislative
process for no real reason. Given these circumstances, plaintiffs have not made the
showing necessary to overcome the legislative privilege.
4
Because the legislative privilege applies, I would deny plaintiffs’ motion to
compel. I therefore dissent.
/s/________________________________________
WILLIAM C. GRIESBACH
District Judge
5
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