However, where yesterday Freeman hedged, saying:
Commissioner Freeman does not concede that he must definitively and irrevocably elect whether to assert any privilege before being asked any questions or being presented with any discovery request. Commissioner Freeman, therefore, to the extent permissible under the law and any order of this Court, reserves the right to waive or assert any privilege until such time that he must respond to discovery requests or questioning at a deposition or trial. In addition, Commissioner Freeman does not waive any privilege, evidentiary, or other objections he may have to any discovery requests or responses offered by any other party.Today, Freeman says only:
In conformance with the Court’s February 7, 2013, Order [Doc. 120], and in accord with the Notice he provided the Court on February 6, 2012, [Doc. 118], Commissioner Scott Day Freeman, by and through undersigned counsel, states that he does not claim legislative privilege in this matter.Presumably, the phrase, "in accord with the Notice he provided the Court on February 6, 2012..." incorporates the caveats and qualifications spelled out two days earlier.
Stertz, then today said:
Commissioner Rick Stertz, by and through undersigned counsel, and pursuant to the order of the Court dated February 7, 2013, (Docket No. 120), hereby respectfully gives notice that, based upon the limited and incomplete information now available to him and his counsel, he will not invoke any legislative privilege that might be applicable in response to questions or discovery requests that might be directed to him in the above-captioned matter. This decision not to invoke any legislative privilege does not and is not intended to serve as a waiver of Commissioner Stertz’s right to assert any other testimonial or other privilege that might be available to him. Further, Commissioner Stertz respectfully submits that this decision is made under protest for the reasons set forth in his Motion for Extension of Time...Don't you just love ambiguity?
Clearly, Stertz and Freeman want to be able to spill their guts, so to speak, regarding how they believe the process unfolded. It might be reasonable to infer they'd like to be able to help the plaintiffs undermine the legitimacy of the legislative district maps. "Might" being the operative word.
Attorneys for each had hoped for two weeks in order to review the official record of AIRC proceedings. That would have put a nice HUGE dent in the $500,000 supplemental appropriation the legislature approved last week, which Brewer signed just Wednesday. As it stands, however, both have telegraphed their TENTATIVE intent to waive legislative privilege.
I understand the next expected step in the process is for both parties (AIRC and the GOP plaintiffs) to file rebuttal expert reports. Those filings promise to be both tedious and intriguing, with arguments for and against the legislative maps that were used in the 2012 election.
In the meantime, on Wednesday, Scott Freeman tweeted:
3 of 5 #AIRC commissioners claim "legislative privilege" in lawsuit brought by voters concerning legislative district map. #azright #azgopWhich, when posted on facebook drew a comment from Bill Mitchell:
— Scott Day Freeman (@FREEMAN_AZ) February 7, 2013
"Let me guess which ones!!"
While technically, Freeman's tweet was (is) accurate, it seems clear the impression given to at least one tea partier was that Commissioners Mathis, McNulty and Herrera have something to hide. To me, since both Freeman and Stertz took great pains to qualify their position on asserting the privilege, Freeman's tweet seems -- at minimum -- disingenuous.