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Whitford v. Gill
United States District Court, W.D. Wisconsin
January 23, 2019
WILLIAM WHITFORD, GRAHAM ADSIT, ROGER ANCLAM, WARREN BRAUN, HANS BREITENMOSER, JUDITH BREY, BRENT BRIGSON, EMILY BUNTING, SANDRA CARLSON-KAYE, GUY COSTELLO, TIMOTHY B. DALEY, MARGARET LESLIE DEMUTH, DANIEL DIETERICH, MARY LYNNE DONOHUE, LEAH DUDLEY, JENNIFER ESTRADA, BARBARA FLOM, HELEN HARRIS, GAIL HOHENSTEIN, WAYNE JENSEN, WENDY SUE JOHNSON, MICHAEL LECKER, ELIZABETH LENTINI, NORAH MCCUE, JANET MITCHELL, DEBORAH PATEL, JANE PEDERSEN, NANCY PETULLA, ROBERT PFUNDHELLER, SARA RAMAKER, ROSALIE SCHNICK, ALLISON SEATON, JAMES SEATON, ANN E. STEVNING-ROE, LINEA SUNDSTROM, MICHAEL SWITZENBAUM, JEROME WALLACE, DONALD WINTER, EDWARD WOHL, and ANN WOLFE, Plaintiffs,
BEVERLY R. GILL, JULIE M. GLANCEY, ANN S. JACOBS, JODI JENSEN, DEAN KNUDSON, STEVE KING, DON MILLS, and MARK L. THOMSEN, Defendants, and THE WISCONSIN STATE ASSEMBLY, Intervenor-Defendant. THE WISCONSIN ASSEMBLY DEMOCRATIC CAMPAIGN COMMITTEE, Plaintiff,
BEVERLY R. GILL, JULIE M. GLANCEY, ANN S. JACOBS, JODI JENSEN, DEAN KNUDSON, and MARK L. THOMSEN, Defendants, and THE WISCONSIN STATE ASSEMBLY, Intervenor-Defendant.
OPINION AND ORDER
question before the court is whether these consolidated cases
should be stayed pending resolution of Rucho v. Common
Cause, No. 18-422 (U.S.), and Lamone v.
Benisek, No. 18-726 (U.S.), two other cases raising
partisan gerrymandering claims that are now before the
Supreme Court. Intervenor-Defendant Wisconsin State Assembly
favors a stay, contending that Rucho and
Lamone are likely either to provide a new legal
standard for partisan gerrymandering claims or to hold that
such claims are not justiciable. Dkt. 230. Either way, the
Assembly says, allowing these cases to proceed before the
Supreme Court decisions would waste the resources of the
court and the parties. Plaintiffs object to a stay,
contending that a significant delay will prevent them from
obtaining relief on their claims before the 2020 elections.
The other defendants take no position on the question.
the Assembly and plaintiffs raise important considerations.
For reasons explained below, the court will take a middle
path intended to minimize the waste of resources while
keeping the case on track for reasonably prompt resolution.
The court will allow discovery to proceed as scheduled, but
it will delay the trial and any decision on the merits until
after the Supreme Court decides Rucho and
court has discretion to stay proceedings for the sake of
judicial economy, Landis v. N. Am. Co., 299 U.S.
248, 254 (1936), including when there are parallel
proceedings that could resolve important issues in the case.
E.g., Texas Indep. Producers & Royalty
Owners Ass'n v. E.P.A., 410 F.3d 964, 980 (7th Cir.
2005); Ingersoll Milling Mach. Co. v. Granger, 833
F.2d 680, 686 (7th Cir. 1987). In considering a motion to
stay, the court must weigh the costs and benefits to each
side. Radio Corp. of Am. v. Igoe, 217 F.2d 218, 220
(7th Cir. 1954); Grice Eng'g, Inc. v. JG Innovations,
Inc., 691 F.Supp.2d 915, 920 (W.D. Wis. 2010).
and Lamone have important implications for our
cases, which require this court to resolve four main issues:
(1) whether partisan gerrymandering claims are justiciable;
(2) whether any of the plaintiffs have standing to sue; (3)
whether the legislative maps at issue in these cases violate
the First Amendment; and (4) whether the maps violate the
Fourteenth Amendment. Rucho and Lamone
present these issues as well. Rucho and
Lamone will likely be decided toward the end of the
current Supreme Court term, in June 2019, after the currently
scheduled trial and post-trial briefing in our cases.
parties know well, this court cannot simply apply
well-established principles to a new set of facts in deciding
these cases. The Supreme Court has not yet provided a
standard for determining whether a partisan gerrymander
violates the First or Fourteenth Amendment or even determined
whether such claims are justiciable. If the Court determines
that partisan gerrymandering claims are not justiciable,
these cases will have to be dismissed. If the Court
articulates a standard for evaluating partisan gerrymandering
claims that departs from any standard applied by this court,
then a new trial under the correct standard may be necessary.
Either way, holding a trial and taking full briefing in these
cases before the Supreme Court decides Rucho and
Lamone would almost certainly lead to a significant
waste of resources for the parties and the court.
concerns about timing are valid, but allowing these cases to
go forward without taking consideration of Rucho and
Lamone would not necessarily mean that plaintiffs
could obtain a ruling from the Supreme Court any faster. Even
assuming that the Supreme Court concludes that partisan
gerrymandering claims are justiciable, it will not help the
plaintiffs if this court has to retry the cases under a new
court is persuaded that judicial economy and the balance of
equities favor delaying the trial and any decision on the
merits until the Supreme Court decides Rucho and
Lamone. But to avoid any unnecessary delay once that
happens, this court will allow discovery to proceed in the
meantime. Most of that discovery should be relevant
regardless of any new standard announced by the Supreme
Court. Although the experts may need to update their reports,
the court will give the parties an opportunity to do that
before trial as necessary.
true that should the Supreme Court determine that partisan
gerrymandering claims are not justiciable, the parties'
work will have been for naught. But the court must weigh the
interests of both sides. Staying all proceedings until the
Supreme Court decides Rucho and Lamone
would significantly delay this court's resolution of
these cases, thereby increasing the risk of prejudice to
plaintiffs. By allowing discovery to proceed while staying
the trial, the court hopes to minimize any wasted effort
while still allowing the parties to obtain timely Supreme
beginning on July 22, 2019, would allow the parties to update
their expert reports and prepare for trial under the new law.
A compressed post-trial briefing schedule would allow the
case to be under advisement to this court by early September,
and the court will commit to decide the cases as promptly as
possible in light of the complexities of the dispute.
schedule would impose only modest delay. Plaintiffs
acknowledge that this court could not issue a decision on the
merits until the Supreme Court decides Rucho and
Lamone and that, at a minimum, supplemental briefing
would be required. Dkt. 239, at 5. So even under
plaintiffs' best-case scenario, the case would not be
under advisement until late July at the earliest. It makes
little sense to expend the additional resources necessary for
an early trial for such a small time savings, particularly
when the chances of retrial are so significant.
court will grant the Assembly's motion in part and deny
it in part. The court will hold a telephone conference with
the parties to give them an opportunity to provide input on
the proposed July 22 trial date, deadlines for updated expert
reports, and a post-trial briefing schedule.
final point. At the Assembly's request, the court has
delayed further briefing on the Assembly's motions to
dismiss both cases pending a decision on the Assembly's
motion to stay. Dkt. 235. Now that the court has agreed to
stay a decision on the merits pending decisions in
Rucho and Lamone, the court will deny the
motions to dismiss without ...