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The documents and deliberations of an advisory task force that drafted the redistricting plan for the New York state Legislature is not protected by legislative privilege, a Southern District magistrate judge has ruled. Judge Frank Maas, ruling on a discovery issue in advance of a trial on the fairness of New York state’s redrawn voting districts, said the privilege cannot be invoked by the Task Force on Demographic Research and Reapportionment (LATFOR). While only four of the task force’s six members are legislators and the remaining two are non-legislators appointed by Senate Majority Leader Joseph Bruno, R-Rensselaer, and State Assembly Speaker Sheldon Silver, D-Manhattan, Magistrate Judge Maas said the task force has the powers of a legislative committee. “It does not follow, however, that LATFOR was necessarily acting at the earlier stages of the redistricting process solely as the surrogate of Senator Bruno or other individual members of the Legislature,” Maas said in Rodriguez v. Pataki , 02 Civ. 618 and Allen v. Pataki, 02 Civ. 3239. Taken together, Maas said, the lawsuits charge that the redistricting plan approved by the Legislature and signed by the governor is not fair to Hispanics. The plan, the plaintiffs claim, “underpopulated upstate Senate districts and overpopulated downstate Senate districts in a manner which causes over-representation of upstate non-Hispanic white voters,” in violation of the Voting Rights Act and the 14th Amendment of the U.S. Constitution. The suits also allege that the Legislature engaged in racial gerrymandering in Senate District 34, with some plaintiffs challenging the congressional redistricting plan. The suits are being heard by Second Circuit Chief Judge John M. Walker Jr. and Southern District Judges Richard M. Berman and John G. Koeltl. With the issues at stake requiring resolution well before the 2004 election, Maas is handling expedited discovery in the cases with a deadline of Sept. 19. Plaintiffs sought all documents “relating to the analysis and process” used in developing the 2002 Senate and congressional redistricting plans as well as answers to interrogatories. Bruno and Silver opposed the request in a letter two weeks ago, citing what Maas called the “two interrelated principles” of legislative immunity and privilege. Because a modern-day legislature “cannot operate strictly through the efforts of its members,” Maas said, the doctrine of legislative immunity is applicable to legislative staff members, although it is “less absolute” than the immunity conferred on legislators. And even though legislators are immune from suit, they can still be directed to produce documents in certain situations, he said. Because the defendants did not move to dismiss the case on legislative immunity grounds, he said, the “narrow issue presented is whether Senator Bruno, Speaker Silver, and the other legislator-defendants are entitled to resist the limited discovery sought by the plaintiffs on the basis of the qualified legislative privilege.” Sometimes called the “deliberative process privilege” because of the desire to promote freewheeling debate and consideration of legislation, a defendant’s invocation of the legislative privilege, the magistrate judge said, requires a court to determine whether production of the material “would chill the New York State Legislature’s deliberations concerning such important matters as redistricting against any other factors favoring disclosure.” Here, he said, the document requests and interrogatories do not focus on the Legislature’s “apparently brief consideration of a redistricting bill.” Maas focused on the two non-legislative members of the task force, Bruno appointee Mark A. Bonilla, a lawyer in private practice on Long Island, and Silver appointee Roman Hedges, a member of the board of directors of the New York State Dormitory Authority and deputy secretary of the Assembly’s Ways and Means Committee. “While the political reality may be that these ‘outsiders’ are consummate insiders … the fact that LATFOR was constituted in this fashion tends to weaken any claim that the disclosure of LATFOR’s deliberations and documents would cause future members of the Legislature not to engage in frank discussions of proposed legislation,” Maas said. “Indeed, the legislatively-mandated structure of LATFOR makes its workings more akin to conversation between legislators and knowledgeable outsiders, such as lobbyists, to mark up legislation — a session for which no one could seriously claim privilege.” Richard D. Emery of Emery Celli Cuti Brinckerhoff & Abady represents the plaintiffs. Michael A. Carvin of Jones Day represents the defendants

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