Supreme Court sides with legislative leaders
The North Carolina Supreme Court sided Friday with legislative leaders who withheld emails and other documents between them and state-funded private attorneys about redistricting maps approved in 2011, ruling that those documents can be confidential.
Most of the justices overturned a decision by a panel of three trial court judges who are hearing lawsuits challenging the boundaries drawn by the Republican-led General Assembly.
The dozens of individuals and groups suing asked the legislators and their lawyers to give them correspondence on legal advice about drawing the maps, presenting the maps to General Assembly committees and getting them cleared by federal authorities. The plaintiffs believed the documents would bolster their case to throw out the new lines.
The three-judge panel last spring told the mapmakers to provide the documents leading up to the maps' final approval in November 2011, citing a 1983 law in ruling the documents were no longer confidential. The attorneys for the Republican legislators challenged the decision, saying the law didn't cancel the attorney-client privilege, which goes back hundreds of years to English common law.
In Friday's majority opinion, Justice Barbara Jackson wrote the court couldn't find solid proof that the General Assembly intended to remove the attorney-client privilege for redistricting matters in the law.
The Legislature was "clear and unambiguous" in three other situations whether they eliminated the privilege, Jackson wrote, but not in redistricting. There's also no reference to the Public Records law in the redistricting confidentiality law, she said.
"We will not lightly assume such a waiver by a coordinate branch of government," she wrote, so "we are compelled to exercise judicial restraint and defer to the General Assembly's judgment regarding the scope of its legislative confidentiality."
Associate Justice Robin Hudson gave a dissenting opinion, writing that the attorney-client privilege is inapplicable in redistricting matters because the 1983 law says the documents are no longer confidential once the maps are given final approval. None of the other justices were identified as joining in her opinion.
"The majority never addresses, let alone explains, how communications that are 'no longer confidential' ... can be covered by a common law privilege that has never applied to non-confidential communications," Hudson wrote. She added the defendants "seek to protect much of their legislative redistricting work from public scrutiny under the cloak" of the privilege.
The private attorneys hired by the GOP-led Legislature to assist with redistricting legislation and litigation have said they've released hundreds of thousands of pages of documents and participated in dozens of depositions for the pending lawsuits.
Rep. David Lewis, R-Harnett, who was chairman of the House Redistricting Committee when the maps were drawn, praised the ruling Friday. "It's very important for individuals to have the common-law right afforded to them of being able to have confidential communications with their attorneys," he said.
A spokesman for Democratic voters and former elected officials who filed one of two lawsuits said they disagreed with the decision but additional documents weren't necessarily needed to persuade courts the new legislative and congressional maps are illegal.
"We believe that the documents released to date, the depositions taken, and the other evidence discovered in this case will clearly show that the enacted districts are unconstitutional on several grounds, and we look forward to having our day in court," spokesman Scott Falmlen said.
Organizations representing media outlets and the N.C. Open Government Coalition had filed briefs last year supporting the three-judge panel's ruling to compel release of the documents.
Jackson's majority opinion agreed with the three judges that documents related to redistricting after the maps were approved can be subject to attorney-client and attorney work-product privileges. Associate Justice Cheri Beasley, who joined the court a few weeks ago, didn't participate in the case, leaving six of the justices to consider it.
Friday's rulings should accelerate the actual litigation being heard by the three Superior Court judges. The next hearing date hasn't been scheduled.
The lawsuits allege Republican lawmakers bundled black voters in majority-black districts to reduce their political power and split hundreds of voting precincts in the process, disproportionately affecting black citizens. Lewis said the maps are legal and fair.
The three judges didn't block the maps from being used in the 2012 elections. The boundaries contributed to Republicans expanding their new majorities in the state House and Senate and helping GOP candidates pick up three seats in North Carolina's congressional delegation.