Blair Miller

(Daily Montanan) A Helena law firm challenging the Public Service Commission redistricting map drawn and approved by Republican lawmakers last year is now in a fight with the sponsor of the bill that changed the map and the Montana Department of Justice over the communications the senator had regarding why he drew the map the way he did.

Lewis and Clark County District Court Judge Christopher Abbott in February ruled that the map — drawn by Sen. Keith Regier, R-Kalispell, and approved by the Republican supermajority legislature — is likely an unconstitutional gerrymander because PSC Districts 3 and 5 “were drawn to disfavor voters on the basis of political ideas.”

His order said the map likely was illegally designed to favor Republicans and limit the influence of voters more likely to vote for Democrats or candidates of other political parties.

But he let the map stay in place for the time being because if he would have struck it down, the PSC districts would have reverted to a map that disadvantaged other groups and was found to be unconstitutionalDrawing PSC districts is the legislature’s job, and Abbott declined to step in.

During the session, Regier’s amendment to his Senate Bill 109, which ended up being the final map, split up 14 counties and all of Montana’s largest cities into separate districts except for Butte-Silver Bow, which Democrats criticized as an obvious way to water down Democratic votes in each district.

Regier denied knowledge of a partisan lean in the map and had said while the measure was going through the legislature that he drew the districts in order to ensure the minimum amount of population deviation among them.

Upper Seven Law, which is representing Montana Conservation Voters and eight individual plaintiffs in the case, in May issued subpoenas to Regier calling on him to appear at a deposition in August and to produce a list of records that include documents and communications that were involved in crafting the new maps.

The attorneys for the plaintiffs say the “junque file” that typically includes all the written communications lawmakers and others have during the crafting a bill, which can reveal more behind the motivations and stakeholders for a bill, was “thin” and they are seeking the information as part of discovery in their suit against the Secretary of State.

In his February order, Abbott wrote “the record contains no information about who assisted Senator Regier in drafting the maps and what motivations they may have harbored.”

The Upper Seven Law attorneys believe that subpoenaing records and deposing Regier might help them better understand how Senate Bill 109 and the redrawn map came about and whether it was “drawn to disfavor voters on the basis of political ideas.”

But Attorney General Austin Knudsen’s office, which is representing Regier in the subpoena fight, asked Abbott last week to quash the subpoena, claiming an absolute legislative privilege exists that prohibits Regier from producing the records or being deposed because a provision of the state constitution says a legislator “shall not be questioned in any other place for any speech or debate in the legislature.”

The Attorney General’s Office said in its filing it believes Regier and his communications should be off limits because they involve “legislative deliberations on pending legislation” and because they say the request is “speculative” of Regier’s motives for the bill without any justification.

“Senator Regier objects based on both the constitutional and common law privilege. Because the constitutional privilege affords an absolute evidentiary and testimonial privilege, the Court must quash the subpoena on those grounds,” Deputy Solicitor General Brent Mead wrote in his motion to quash the subpoena. “Even under the qualified privilege, Plaintiffs fail to meet the narrow exceptions that justify the extraordinary intrusions into a co-equal branch of government.”

Mead also argues that the request for records, which include nine ranges of topics, by Upper Seven is overly broad and could sweep up communications with other lawmakers or constituents that would not be relevant evidence in a case involving a decision to pass a bill made by the entire legislature.

Upper Seven Law issued the initial subpoena to Regier on May 16, then an amended version on May 29. The Attorney General’s Office sent a letter back to the firm the next day initially making the claim that legislative privilege barred the subpoenas, and Upper Seven responded on June 3, calling the claims of blanket privilege and refusal to produce a privilege log “meritless.”

“The map at issue was introduced by Senator Regier—not the other 149 legislators—and the legislative record is remarkably thin. There is no information in the record about who drew the map or how it was drawn,” the letter from attorney Dimitrious Tsolakidis said. “The unknown origins of SB 109’s map are central to understanding whether political affiliation was a substantial factor in its creation, and Senator Regier appears to be the only legislator who can explain how it came into existence.”

Tsolakidis added that if there is legislative privilege Regier can assert, it would have to be qualified privilege and “must be evaluated under a balancing of interests.” He said the need for discovery material “is high and in the public interest.” Mead filed the motion to quash three days later.

On Thursday, Upper Seven attorney Constance Van Kley filed a brief in opposition of the motion to quash outlining why the plaintiffs believe Regier’s and the Attorney General’s Office’s assertion of absolute privilege is incorrect and an “extreme” one.

“Over five hundred years after legislative immunity was created, language intended to protect legislators from retributive prosecution is being asserted to block not a prosecution, not a civil lawsuit, not only a deposition, but all discovery—even production of a privilege log and documents shared with non-legislators, and even in the face of evidence supporting Plaintiffs’ claims of intentional discrimination interfering with all Montanans’ fundamental right to vote,” the filing says.

Attorneys for the plaintiffs say in the filing that Regier and Mead’s motion contains multiple citations to case law from other jurisdictions that do not have provisions in their state constitutions like Montana’s right to know. They also argue that the two are misreading the constitution’s immunity provision.

“Far from giving legislators an opportunity to legislate in secret, it provides protection for that which occurs out in the open, as demanded by our Constitution,” Van Kley wrote in the filing.

The firm is asking the court not to quash the subpoena even if it finds there is some form of legislative privilege that applies. And if that privilege does apply, the constitutional protections against partisan gerrymanders should outweigh the privilege and force Regier to provide some of the requested information, the attorneys argue.

“The Right to Know is critical to maintaining transparency in government,” Van Kley said in a statement. “Absolute legislative privilege would eviscerate the fundamental right to access government information—and hold government actors accountable at the ballot box.”

The Secretary of State’s Office has requested a jury trial in the case, which the plaintiffs oppose; the two sides are scheduled to deliver oral arguments on that question on July 8. They could also discuss the subpoena and motion to quash if those are not resolved by then, Van Kley said.