Arizona Eagletarian

Arizona Eagletarian

Monday, February 4, 2013

Redistricting -- fed court order on privilege?

Following up on Howard Fischer's story the other day regarding the question of legislative privilege, Arizona Independent Redistricting Commission counsel Mary O'Grady provided a copy of the January 30 order.

O'Grady indicated the recent court order does not specifically make a ruling on whether each commissioner is allowed to invoke the privilege, but does instruct all five commissioners to respond, by Wednesday this week to the question of whether they plan to do so or to waive said privilege. Fischer apparently read between the lines (of that order) where Judge Roslyn Silver stated:
These Defendants should know that if the legislative privilege is recognized here, claiming privilege will likely be treated by the Court as irrevocable, such that any individual claiming the privilege would not be permitted to testify on those subjects at trial.
The election by a defendant not to assert a legislative privilege does not mean that the defendant foregoes other limitations upon discovery and trial examination, including limitations that might be imposed by the Court under its authority to supervise discovery and manage the case.
While Fischer's inference -- that the redistricting commissioners "do not need to answer certain questions from those who are suing them" -- may seem reasonable, that's NOT what the order says, or even implies. Silver specifically stated, "if the legislative privilege is recognized here..." leaving the possibility open that said privilege might not ultimately be recognized.

Anyway, apparently all five commissioners will have individual counsel on this question. I will follow up later this week to see and report on which ones invoke and which ones waive the privilege. We will find out at some point after that whether the court will recognize the privilege.

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