ARIZONA IRC v. Fields

• Decision Date: 16 September 2003
• Docket Number: No. 1CA-SA 03-0085.,1CA-SA 03-0085.
• Parties: THE ARIZONA INDEPENDENT REDISTRICTING COMMISSION, Petitioner, v. The Honorable Kenneth W. FIELDS, Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judge, Arizona Minority Coalition for Fair Redistricting; The Navajo Nation, the Hopi Tribe; The San Carlos Apache Tribe; The Arizona Secretary of State; The City of Flagstaff; The City of Prescott; The Town of Prescott Valley; The Town of Chino Valley; The City of Kingman; The City of Lake Havasu City; Mohave County; Apache County; Greenlee County; Graham County; Santa Cruz County; Arnold Estrada, et al.; Joseph Ricarte, et al.; Jaime Abeytia, et al.; and Arizonans for Fair and Legal Redistricting, Real Parties in Interest.
• Court: Arizona Court of Appeals

75 P.3d 1088

206 Ariz. 130

THE ARIZONA INDEPENDENT REDISTRICTING COMMISSION, Petitioner, v. The Honorable Kenneth W. FIELDS, Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judge, Arizona Minority Coalition for Fair Redistricting; The Navajo Nation, the Hopi Tribe; The San Carlos Apache Tribe; The Arizona Secretary of State; The City of Flagstaff; The City of Prescott; The Town of Prescott Valley; The Town of Chino Valley; The City of Kingman; The City of Lake Havasu City; Mohave County; Apache County; Greenlee County; Graham County; Santa Cruz County; Arnold Estrada, et al.; Joseph Ricarte, et al.; Jaime Abeytia, et al.; and Arizonans for Fair and Legal Redistricting, Real Parties in Interest.

No. 1CA-SA 03-0085.

Court of Appeals of Arizona, Division 1, Department C.

September 16, 2003.

Gammage & Burnham, P.L.C., By Lisa T. Hauser, Cameron C. Artigue, Leonard W. Aragon, Phoenix, for Petitioner.

Haralson Miller Pitt & McAnally, PC, By Jose De Jesus Rivera, Phoenix, Co-Counsel for Petitioner.

Brown & Bain, P.A., By Paul F. Eckstein, Michael S. Mandell, Phoenix, for Real Party in Interest Arizona Minority Coalition.

Lewis and Roca, LLP, By Richard A. Halloran, James A. Martin, Joshua Grabel, Phoenix, for Real Party in Interest Arizona Minority Coalition.

Law Office of Aaron Kizer, PLC, By Aaron Kizer, Phoenix, Co-Counsel for Real Party in Interest Arizona Minority Coalition.

Law Offices of Neil Vincent Wake, By Neil Vincent Wake, Phoenix, for Real Party in

Interest Arizonans for Fair/Legal Redistricting.

Joseph Bertoldo, Flagstaff City Attorney, By Joseph Bertoldo, Flagstaff, for Real Party in Interest City of Flagstaff.

Jennings, Strouss & Salmon, P.L.C., By David B. Earl, Ernest Calderon, David J. Cantelme, Phoenix, for Real Party in Interest City of Flagstaff.

Arizona State Legislature, By Donald W. Jansen, Greg Jernigan, Glenn Davis, Phoenix, for Arizona State Legislature.

OPINION

TIMMER, Presiding Judge.

¶ 1 In this special action, the Arizona Independent Redistricting Commission ("IRC") challenges the trial court's order granting a motion by the Arizona Minority Coalition for Fair Redistricting ("Coalition") to compel the IRC to produce documents exchanged between the IRC, its consultants, and expert witnesses. The IRC claims that the requested documents are protected from disclosure by legislative, deliberative process, attorney-client, and work-product privileges. The trial court found that none of these privileges applied to immunize the documents from disclosure. We decide that communications between the IRC and its consultants are subject to the protection afforded by the legislative privilege. While we do not decide the applicability of the deliberative process privilege, the attorney-client and work-product privileges are inapplicable. Additionally, by designating consulting experts as testifying experts, the IRC waived any legislative privilege attaching to communications with those experts, or any materials reviewed by them, that relate to the subject of the experts' testimony.

¶ 2 For the reasons that follow, we accept jurisdiction and grant relief to the IRC in the manner described hereafter. See infra ¶ 51.

BACKGROUND

¶ 3 Since the grant of statehood, Arizona voters living in artificially drawn districts have selected residents from those districts to serve in Congress and the state legislature. Ariz. Const. art. IV, Pt. 2, § 1(1), (2) (historical notes to 2000 amendment). Historically, and in recognition of population changes, our legislature undertook the task of redrawing these districts from time to time. Id. Because of past violations of the Voting Rights Act, 42 U.S.C. § 1973c (1994), Section 5 of the Act requires Arizona to submit such redistricting plans for preclearance to either the United States Department of Justice ("DOJ") or the District Court for the District of Columbia. Navajo Nation v. Arizona Indep. Redistricting Comm'n, 230 F.Supp.2d 998, 1001 (D.Ariz.2002). Since 1980, the legislature has submitted such plans to the DOJ. Id.

¶ 4 In November 2000, Arizona voters passed Proposition 106, which amended the constitution by creating the IRC and assigning to it the redistricting task. Ariz. Const. art. IV, Pt. 2, § 1(3) (historical notes to 2000 amendment). The IRC is thus a constitutional body that consists of five appointed volunteers who serve concurrent, ten-year terms. Ariz. Const. art. IV, Pt. 2, §§ 1(3), (23). The IRC members are not required to have any expertise in the redistricting process. Ariz. Const. art. IV, Pt. 2, § 1(3). However, the constitution authorizes the IRC to hire staff, consultants, and attorneys to assist it. Ariz. Const. art. IV, Pt. 2, § 1(19).

¶ 5 The IRC must ensure that configuration of the districts complies with the United States Constitution and the Voting Rights Act. Ariz. Const. art. IV, Pt. 2, § 1(14)(A). Furthermore, "[t]he IRC must attempt to create competitive districts to the extent practicable" when doing so would not create a significant detriment to other factors, such as compactness, contiguity, and communities of interest. Navajo Nation, 230 F.Supp.2d at 1002; see also Ariz. Const. art. IV, Pt. 2, § 1(14)(A)-(F).

¶ 6 The 2000 decennial census revealed substantial population growth in Arizona and shifts within pre-existing districts. Navajo Nation, 230 F.Supp.2d at 1002. As a result, redistricting was required. Id. Consequently, in April 2001, the IRC retained National Demographics Corporation ("NDC") to serve as the lead consultant to the IRC in the redistricting process. Among other tasks, NDC assisted the IRC in creating an equal-population grid, drafting congressional and legislative maps, testing alternatives, and preparing final congressional and legislative redistricting plans for submission to the DOJ. NDC also assisted the IRC staff in soliciting and digesting public input on proposed representational lines. After holding a series of public hearings, the IRC adopted a redistricting plan in October 2001, which was ultimately submitted to the DOJ for preclearance. Id. In March 2002, the DOJ approved part of the plan, but reserved judgment on the remaining portion pending receipt of additional information. Id. at 1003.

¶ 7 Pending preclearance from the DOJ, the Coalition and other parties filed a complaint against the IRC in March 2002, alleging that the IRC violated the Arizona Constitution by failing to make the legislative districts sufficiently competitive. Id. at 1002. When the Coalition sought to depose the IRC members and NDC consultants and obtain responses to written discovery requests, the IRC moved the court for an order precluding discovery concerning "legislative acts." On April 15, the court granted the motion as to the commissioners but ruled that the Coalition could depose the consultants. On April 30, the court clarified that it "does not view the consultants ... as legislative aides entitled to a deliberative process privilege." Accordingly, the Coalition deposed NDC consultants Douglas Johnson, and Drs. Alan Heslop, Michael McDonald, and Lisa Handley. The IRC later designated these consultants as expert witnesses for purposes of testifying at the trial in this case.

¶ 8 In September 2002, in light of looming primary and general elections, the IRC obtained federal district court approval for an interim redistricting plan for use in these elections. Navajo Nation, 230 F.Supp.2d at 1016. The IRC then adopted a new redistricting plan for use in 2004 through 2010. The Coalition and other plaintiffs amended their complaints in this case to challenge the new plan.

¶ 9 The Coalition submitted a document request to the IRC seeking "all documents, communications, etc., that have been withheld for privilege," including "all email communications pertaining to redistricting contained on Doug Johnson's computer in California." On February 24, 2003, the IRC produced two binders of documents but withheld documents exchanged with NDC and its counsel on the basis of multiple privileges. According to the IRC, most of these documents are paper print-outs of electronic mail.

¶ 10 On March 4, the Coalition filed a motion to compel production of all documents that were created by, or provided to, the IRC's testifying expert witnesses, as well as all communications with the IRC's vendors, including NDC. The trial court granted the Coalition's motion to compel on March 21, ruling that while the IRC has a privilege for its deliberative process, that privilege does not extend to communications with its consultants. The court additionally found that the requested documents are not protected by the attorney-client or work-product privileges, and that all communications between IRC's expert witnesses and counsel are discoverable. This special action followed, and we entered an order staying the trial court's discovery order pending our resolution of the issues. On May 30, 2003, the IRC removed the case to the Arizona District Court. By order dated September 5, 2003, that court remanded the matter to the superior court, thereby revesting jurisdiction in this court.

SPECIAL ACTION JURISDICTION

¶ 11 The exercise of special action jurisdiction is appropriate to review an order compelling discovery over the objection of a party asserting privileges because that party has no equally plain, speedy, or adequate remedy by appeal. Twin City Fire Ins. Co. v. Burke, 204 Ariz. 251, 252, ¶ 3, 63 P.3d 282, 283 (2003) (citation omitted). Special action review is also appropriate to resolve constitutional issues of first impression and of statewide importance, such as the ones presented by the IRC's petition. See Martin v. Reinstein, 195 Ariz. 293, 300-01,

¶ 10, 987 P.2d 779, 786-87 (App.1999) (citation omitted).

¶ 12 Nevertheless, the Coalition urges us to decline jurisdiction under the doctrine of laches because the IRC unreasonably delayed seeking relief by not...