N.C. Supreme Court decides Republicans do not have to make public lawyers' redistricting email

lbonner@newsobserver.comJanuary 25, 2013 

The state Supreme Court ruled Friday that Republican legislators do not have to make public email from lawyers who helped them draw new voting districts.

Democrats, civil rights groups and nonprofits suing over redistricting plans sought email exchanges between lawyers and legislators as they reconfigured House, Senate and congressional districts. The new districts were used in the November 2012 elections, when Republicans expanded their majorities in the state House and Senate and won three congressional seats that had been held by Democrats.

Democrats maintain the redistricting plans are unconstitutional because they pack African-American voters into districts. They sought the email to support their lawsuit. Republicans argue the plans are legal and that the email is covered by attorney-client privilege.

The case now goes back to a panel of three Superior Court judges.

The Supreme Court decision is another setback for those seeking to overturn the redistricting plans. Last year, they lost a bid to delay the state primaries to make time for a trial.

Democrats argued that the email should be made public, just as other legislative employee communications on redistricting become public after new maps are approved. Democrats sought email exchanges between Republican legislators and the private lawyers they paid with state money. They also sought email exchanges between Republican legislators and lawyers with the state Attorney General’s office.

The panel of three Superior Court judges told Republicans last year to hand over the information, but legislative leaders appealed to the state Supreme Court.

The Supreme Court agreed with the Republicans.

“Without a clear and unambiguous statement by the General Assembly that it intends to waive its attorney-client privilege or work-product doctrine, we are compelled to exercise judicial restraint and defer to the General Assembly’s judgment regarding the scope of its legislative confidentiality,” Justice Barbara Jackson wrote for the majority.

Justice Cheri Beasley, who is new to the court, did not participate in the decision, and Justice Robin Hudson dissented.

“The unequivocal statutory language here can be summed up quite simply: as of 7 November 2011, the dates that this redistricting plan finally became law, all prior ‘drafting and information requests’ and ‘documents’ concerning redistricting ceased to be confidential,” Hudson wrote. “Therefore, these requests and documents cannot be covered by attorney-client privilege, which applies only to confidential communications.”

State Rep. Nelson Dollar, a Cary Republican and one of the redistricting leaders, said Republicans anticipated a win.

“We’re certainly pleased with the Supreme Court’s decision,” he said. “I think it follows what normal precedent has been on similar communication.”

Edwin Speas, one of the lawyers representing Democrats, said he was disappointed by the decision because he thought state law was clear that the records are no longer confidential. But the evidence already gathered will show that the redistricting plans are unconstitutional, he said.

Both sides have asked the three-judge panel to decide the case for them without a trial. If the judges decide to hear evidence, a trial will be scheduled for later this year.

The North Carolina Open Government Coalition, the N.C. Press Association, of which the News & Observer is a member, and the N.C. Association of Broadcasters filed briefs to support making the records public.

Bonner: 919-829-4821

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