[EL] ELB News and Commentary 1/4/12

[Mathew Manweller]

I hope my question regarding the case below is not beyond the scope of
this list, but I noticed that the Legislature refused to comply with the
court's order. 
 
A few weeks ago, I posted to the Con Law listserv asking "What
enforcement mechanisms, if any, do the courts have when the Legislature
(as a body) refuses to comply with a court order?" I got no responses so
I will try with this list.
 
I assume the court can hold the Leg in contempt, but I can't imagine
they will start trying to arrest individual legislators. And, I see no
mechanism by which the court can compel an individual legislator to
change her vote. 
Regards,
 
Matt Manweller
Three Judge Court Smacks Down WI Legislature in Redistricting Suit (
http://electionlawblog.org/?p=27352 ) Posted on January 3, 2012 7:30 pm
( http://electionlawblog.org/?p=27352 ) by Rick Hasen (
http://electionlawblog.org/?author=3 ) 

Read this (
http://app.blastnewsletters.com/link.php?M=56765&N=5008&L=112042&F=H ):
Quite clearly, the Wisconsin State Senate and Wisconsin State Assembly
(collectively, “the Legislature”) and its attorneys are none too pleased
with this three-judge Court’s prior orders, filed on December 8,
2011,and December 20, 2011, respectively. By those orders, this Court
twice held that neither Joe Handrick, a lobbyist hired by the
Legislature to assist in preparing the redistricting plan now challenged
in this case, nor documents in his possession are protected by
legislative privilege, attorney-client privilege, or work product
privilege. (Docket #74, #82). The Legislature’s dissatisfaction with the
Court’s prior decisions is clear from its refusal to comply with those
orders. (See Pl.’s Resp. Mot. Rev. by Three-Judge Ct. 3(citing Poland
Decl., Docket #89, ¶¶ 11, 15, 18)). Rather than comply, the Legislature
has all but declined to cooperate with the plaintiffs’ reasonable
discovery efforts. (See Pl.’s Resp. Mot. Rev. by Three-Judge Ct. 3
(citing Poland Decl., Docket #89, ¶¶ 11, 15, 18)). And, now, the
Legislature again reaffirms its displeasure by filing a “Motion for
Review by Three-Judge Court” of the Court’s two prior orders. (Docket
#84).
But this new motion—in reality, the Legislature’s second collateral
attack on the wisdom of the Court’s prior orders in as many weeks—is
completely devoid of merit. In the Court’s eyes, this motion is nothing
more than a third bite at an apple that the Court has twice explained is
a bitter one to chew. In reality, the Court can deny the Legislature’s
motion without reaching its merits; but, even quickly reaching the
merits, it is clear that the Legislature’s motion fails. And, thus—for
the third time—this Court rules that neither Mr. Handrick nor the
documents he holds are protected by privilege.But, this time, beyond
once again directing that the Legislature comply with the Court’s orders
as related to discovery, the Court goes further, by sanctioning the
Legislature’s attorneys.
Beginning with procedure, perhaps the simplest issue of all, the Court
finds that the Legislature is not entitled to a review of the Court’s
prior orders. Simply put, the Legislature’s motion is a non-starter, as
the Legislature is not entitled to “review by a three-judge panel” when
the Court’s prior decisions on the same issue were decided by the same
three judge panel. Under 28 U.S.C. § 2284(b)(3), “[a]ny action of a
single judge may be reviewed by the full court at any time before the
final judgment.” 28 U.S.C. § 2284(b)(3) (emphasis supplied). In other
words, it is only when a single judge enters an order that such order
may become the subject of review by the three-judge panel.
Thus, here, where the three-judge panel twice considered the
Legislature’s arguments and entered orders denying their motions, any
further three-judge review is inappropriate. To clarify, if perhaps the
Legislature’s lawyer’s failed to read or understand the Court’s prior
orders entered under the heading “Before WOOD, Circuit Judge, DOW,
District
Judge, and STADTMUELLER, District Judge,” the full Court considered the
arguments of the parties, conferred and agreed upon an appropriate
resolution, and entered both challenged orders accordingly. (Compare
Docket #74, #82, with Docket #35). In the interest of fairness, the full
Court has participated in the consideration and review of the subject of
each order; yet, the full three-judge Court concluded that it would be
most expeditious for Judge Stadtmueller to serve as the signatory on
each order. That practice will continue throughout pendency of the case.
Thus, there is no good reason why any reasonable person, much less a
lawyer, ought to have found themselves confused about the
non-applicability of 28 U.S.C. § 2284(b)(3), noting that counsel for the
Legislature could have easily contacted the chambers of any one of the
three judge’s chambers to clarify the issue, rather than resorting to
filing a motion, together with a 22-page brief and a declaration which
the plaintiffs and the Court now find themselves obliged to address.
Despite the Legislature’s arguments that it was justified in believing
that the three-judge Court’s prior order were issued by a single judge
(Leg. Reply in Supp. Mot. for Reconsid. 2–3), a much simpler path to
clarification existed than that ultimately taken by the Legislature.
Surely, all involved could have been readily spared the substantial time
and effort in dealing with what the Court now concludes to be a
frivolous motion.
But it does not end there, for even upon close examination of the
merits of the Legislature’s arguments, it is also equally clear that the
motion is frivolous and similarly must be denied. Indeed, the arguments
advanced by the Legislature more than suggest that it wishes to have its
cake and eat it too.
 
Central Washington University
Assoc. Professor of Political Science 
manwellerm at cwu.edu
509-963-2396 
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20120104/8bf23954/attachment.html>