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.