Judges order Miller, Busch to give depositions in Maryland redistricting lawsuit

A three-judge panel ordered leaders of the General Assembly to give depositions in a redistricting lawsuit.

A three-judge panel has ordered Maryland Senate President Thomas V. Mike Miller Jr. and House Speaker Michael E. Busch to give depositions and turn over documents in a federal lawsuit challenging the 2011 redrawing of the state's congressional districts.

The ruling affirmed an earlier order by U.S. District Judge James K. Bredar, which had been appealed by the Maryland Attorney General's Office citing "legislative privilege."

"Because of the importance of the federal interests at stake and because the evidence of these conversations may be crucial to their vindication, we ... therefore hold in this case that legislative privilege does not protect conversations and other communications between legislators," wrote Fourth Circuit Judge Paul V. Niemeyer.

The order also calls on three legislators — Del. Curt Anderson and Sens. C. Anthony Muse and Richard Madaleno — to cooperate with the lawsuit.

Legislators referred questions to the attorney general's office.

The lawsuit was filed in 2013 when three residents argued that state officials violated their rights by redrawing the district maps to dilute the power of Republican voters.

In particular, the plaintiffs point to the redrawing of the state's sixth congressional district, which was represented for 20 years by Republican Roscoe Bartlett. The residents argue that in 2011, after the 2010 census, Democratic Gov. Martin O'Malley and the Democratic-controlled legislature set out to make the district a Democratic one.

Miller and Busch were among four members appointed by O'Malley to sit on a Redistricting Advisory Committee.

After the re-drawing, Bartlett faced Democrat John Delaney in his 2012 bid for re-election and lost. Seven of the state's eight members of the House of Representatives are Democrats.

Watchdogs have described Maryland's districts as among the most gerrymandered in the nation.

Bredar previously dismissed the lawsuit, but the U.S. Supreme Court ruled in late 2015 that it had been improperly dismissed and said federal law required that the case be heard by a three-judge panel. That panel then ruled in August that the case could go forward.

The plaintiffs served notices of deposition and subpoenas on members of the redistricting committee as well as Anderson and Muse, and served document subpoenas on the committee and Madaleno.

Miller, Busch and Madaleno produced less than 150 pages total, and asserted state legislative privilege as the basis for withholding 36 documents, the judges said.

The Attorney General's Office sought to quash the subpoenas, "on the ground that their legislative privilege ... protects them from being compelled to testify in this matter about their legislative activity."

The three-judge panel, which included Niemeyer, Bredar and U.S. District Court Judge George Russell, ruled that "while legislative privilege is undoubtedly robust, the Supreme Court's decisions make clear that privilege does not absolutely protect state legislative officials from discovery into communications made in their legislative capacity."

In their ruling, the judges ask the parties to allow Miller and Busch to postpone their depositions until after the conclusion of the General Assembly session, which concludes April 10.

Baltimore Sun reporter Ian Duncan and the Associated Press contributed to this article.

jfenton@baltsun.com

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