Rodriguez v. Pataki, s. 02 Civ. 618(RMB)(FM), 02 Civ. 3239(RMB)(FM).
| Citation | 280 F.Supp.2d 89 |
| Decision Date | 28 July 2003 |
| Docket Number | Nos. 02 Civ. 618(RMB)(FM), 02 Civ. 3239(RMB)(FM).,s. 02 Civ. 618(RMB)(FM), 02 Civ. 3239(RMB)(FM). |
| Parties | Eric RODRIGUEZ, et al., Plaintiffs, v. George E. PATAKI, et al., Defendants. Howard T. Allen, et al., Plaintiffs, v. George E. Pataki, et al., Defendants. |
| Court | U.S. District Court — Southern District of New York |
Page 89
v.
George E. PATAKI, et al., Defendants.
Howard T. Allen, et al., Plaintiffs,
v.
George E. Pataki, et al., Defendants.
Page 90
Gregory Charles Soumas, Gregory C. Soumas, New York City, for Eric Rodriguez, James R. Jubilee, Martin Malave-Divan.
Ira J. Lipton, Assist. corp. Counsel, Fredric S. Newman, Hoguet, Newman & Regal, LLP, New York City, for George E. Pataki.
Fredric S. Newman, Hoguet, Newman & Regal, LLP, New York City, Todd D. Valentine, Albany, NY, for Mary O' Donohue.
Eliot L. Spitzer, Joel Graber, Office of Atty. General of State of N.Y., for Eliot Spitzer, Charles Nesbitt.
Traci L. Lovitt, Jones Day, New York City, John Richard Braatz, New york City, Gregg M. Mashberg, Proskauer, Rose, LLP, New York City, for Joseph L. Bruno.
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Nancy R. Sills, C. Daniel Chill, Graubard, Mollen, Horowitz, Pomeranz & Shapiro, New York City, for Sheldon Silver.
Brian J. Clark, Clifton, Budd & Demaria, LLP, New York City, for John J. Faso.
Arnold J. Ludwig, New York City, H. Reed Witherby, Boston, MA, for Martin E. Connor.
Todd D. Valentine, Albany, NY, for Crol Berman, Neil W. Kelleher, Evelyn J. Aquila.
Henry T. Berger, New York City, for Howard T. Allen, Jeannette Santos, Donald J. Jirak, Richard Flateau, Charlotte A. Taylor, Mervyn A. Campbell, Sarah Brockus.
Enry T. Berger, Center for Law and Social Justice Medger Evers College City Univ. of N.Y., Brooklyn, NY, for Sandra Rivers, Rosemari Mealy, Ronald Cranshaw, Sandra Bradford.
Gayle N. Wolkenberg, David J. Molton, Buchanan, Ingersoll, PC, New York City, for Raymond M. Fink, Stephen R. Gocinski, John Quaglione, Patricia Mustaro, Lena Yu.
Paul Wooten, Paul Wooten & Assoc., Brooklyn, NY, for New York State Council of Black Elected Democrats, Leslie Barbour, Michelle Romero, William O. Low, Cecilia Guiterrez, Evelyn Miller, Seretta C. McKnight, Tracey Edwards, Donna Swain.
Kenneth Kimerling, Glenn D. Magpanty, Asian Amer. Legal Defense and Educ. Fund, for Asian Amer. Legal Defense and Educ. Fund.
Todd D. Valentine, Albany, NY, for Neil W. Kelleher.
Foster Maer, Puerto Rican Defense & Educ. Fund, Inc., New York City, for Puerto Rican Legal Defense and Educ. Fund.
Gregory Charles Soumas, New york City, for James R. Jubilee, Martin, Malave-Divan.
Lawrence A. Mandelker, Kantor, Davidoff, Wolfe, Rabbino & Kass, New York City, for Robert A. Radulski, Bernard T. Kozykowski, Benjamin A. Gilman.
Nancy R. Sills, Graubard Miller, New York City, Cassandra Lentchner, Perkins, Cole, LLP, Washington, DC, for Anthony Creaney, Thomas Terry.
MAAS, United States Magistrate Judge.
I. Introduction
These consolidated actions (hereinafter, "action") challenging the New York Legislature's 2002 State Senate and Congressional redistricting plans are pending before Chief Circuit Judge Walker and District Judges Berman and Koeltl.1 The three-judge court recently denied the defendants' motion to dismiss, concluding that any determination on the merits before the plaintiffs were afforded an opportunity to engage in discovery would be premature. See Rodriguez v. Pataki, 274 F.Supp.2d 363, 2003 WL 21782327 (S.D.N.Y.2003).2 Because the issues raised in this action need to be resolved well in advance of the 2004 election, discovery has been placed on an accelerated schedule which calls for its
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completion by September 19, 2003. In addition, to facilitate that process, supervision of pretrial discovery has been referred to me.
I held an initial discovery conference on July 1, 2003. Thereafter, by letter-motion dated July 3, 2003 ("Pls.' Letter"), the plaintiffs and plaintiff-intervenors (collectively, "plaintiffs") moved to compel the production of "all documents relating to the analysis and process employed by [the d]efendants" in developing the 2002 Senate and Congressional redistricting plans, as well as responses to their interrogatories concerning these subjects. By letter dated July 11, 2003 ("Defs.' Letter"), defendant Joseph Bruno, Majority Leader of the New York State Senate, joined by defendant Sheldon Silver, Speaker of the New York State Assembly, opposed this motion on the basis of legislative immunity/privilege. On July 15, 2003, the plaintiffs submitted a reply letter-brief ("Pls.' Reply Letter").
On July 23, I held a telephone conference with lead counsel (Messrs. Richard D. Emery and Michael A. Carvin), during which I conveyed my conclusions regarding the defendants' claims of privilege. For reasons which are explained in further detail below, I advised counsel that the plaintiffs' motion to compel would be granted in part and denied in part. I further directed the parties to take certain steps to ensure that discovery will be completed by the September 19 deadline. Those directives were issued without prejudice to either side's right to file objections to my determination of the parties' privilege dispute within ten days after the issuance of this Opinion and Order.3
II. Background
Article III, Section 4, of the New York State Constitution, provides that after each decennial Census, the New York State Senate and Assembly districts must be "readjusted or altered" so that each district contains, to the extent possible, "an equal number of inhabitants, excluding aliens, in as compact form as practicable." In 1978, as part of an appropriations bill, the New York legislature created an advisory Task Force on Demographic Research and Reapportionment ("LATFOR") to provide technical assistance to the New York legislature with respect to the task of redistricting Senate, Assembly, and Congressional districts. (See S.7302-A, A.9502-A (Jan. 17, 1978)). LATFOR consists of six members, of whom four are legislators and two are non-legislators. (See id. at 10). One non-legislator is appointed by the President Pro Tem of the Senate; the other by the Assembly Speaker. (Id.). In addition to its members, LATFOR has a staff, which includes two co-executive directors. (Id.; Bruno Resp. to Pls.' Interrog. No. 22; http://www.dasny.org/ dasny/board/board.shtml)(last visited July 25, 2003). LATFOR is authorized to hold public and private hearings and has all the powers of a legislative committee. (S. 7302-A, A.9502 at 11).
According to the LATFOR website, the non-legislators currently on the task force are Mark A. Bonilla, who was appointed by Senator Bruno, and Roman Hedges, who was appointed by Assembly Speaker Silver. (See http://www.latfor.state.ny.us)(last visited July 25, 2003). Mr. Bonilla is a lawyer with a private practice on Long Island. (See http://204.168.97.3/pressreleases.nsf/0/ 8513c44567fcb62985256b7400526a68?
OpenDocument)(last visited July 25, 2003). Dr. Hedges is a member of the
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Board of Directors of the New York State Dormitory Authority and also serves as Deputy Secretary of the New York State Assembly Committee on Ways and Means. (See http://www. dasny.org/ dasny/board/board.shtml)(last visited July 25, 2003).
After the plaintiffs commenced this action, LATFOR published its proposed Senate and Assembly redistricting plan on February 14, 2002. (Am. and Consol. Compl. ("Complaint" or "Compl.") ¶ 103). Thereafter, the New York Legislature adopted LATFOR's plan, which was signed into law by Governor Pataki in late April 2002. (Id. ¶ 104).
Following the adoption of a new legislative map, any aggrieved citizen may file an action in state court to seek review of the redistricting plan. N.Y. Uncons. L. § 4221 (McKinney 2000)("Section 4221"). Section 4221 provides that service of such a suit shall be made "upon the attorney-general, the president of the senate, the speaker of the assembly and the governor," by such means as the state court may direct. Id. Consistent with this procedure, the Allen lawsuit (02 Civ. 3239) was originally commenced in Supreme Court, New York County, but was later removed here. The Rodriguez suit (02 Civ. 618) was initially filed in this Court.
The Complaint in this action alleges that the defendants have underpopulated upstate Senate districts and overpopulated downstate Senate districts in a manner which causes the over-representation of upstate non-Hispanic white voters. (See Compl. ¶¶ 106-38). The plaintiffs contend that this intentional conduct violates the Equal Protection Clause of the Fourteenth Amendment and Section 2 of the Voting Rights Act, 42 U.S.C. § 1973. (Id. ¶ 1; see also Pls.' Letter at 2). Several plaintiffs also have challenged the 2002 Congressional redistricting plan. (Compl. ¶¶ 340-60). Finally, the plaintiffs accuse the defendants of racial gerrymandering in Senate District 34. (Id. ¶¶ 329-38).
Not surprisingly, in their answers to the Complaint, Senator Bruno and Assembly Speaker Silver deny many of the Plaintiffs' allegations. (See Docket Nos. 212, 216). In addition, both defendants allege as affirmative defenses that at least some of the plaintiffs lack standing and that the plaintiffs have failed to state a claim upon which relief can be granted. (See Docket Nos. 212 at 31-32, 216 at 38).4 Neither defendant has asserted legislative immunity as an affirmative defense, nor have they sought to be dismissed from this action on that ground.
In or around September 2002, the plaintiffs served the defendants with a combined document demand and set of interrogatories through which they sought information concerning the process by which the 2002 redistricting maps were drawn and subsequently adopted by the Legislature. Senator Bruno, apparently acting on behalf of all the legislator-defendants, responded to these requests in October 2002. (See Pls.' Ex. 3). Thereafter, at the request of all of the parties, I stayed any further discovery proceedings pending the three-judge court's determination of the defendants' motion to dismiss the Complaint. (See Docket No. 189). That stay remained in effect...
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