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|I Need an Open Records Abortion Litigation Lawyer|
|Written by Chet|
Or maybe I just need a legal opinion. Or a couple of them.
This blog post is about North Dakota's expensive abortion litigation and the Attorney General's Office. I have a lot of questions and concerns and I'm seeking your expertise in sorting out these issues.
First, I want to talk about my most recent open records request made to the North Dakota Attorney General's office. I asked for "copies of the itemized billing statements for all professional fees (attorneys, expert witnesses, etc.) received by the State that relate to abortion litigation in 2013 and 2014." I posted a brief comment about the records provided on the NorthDecoder Facebook fan page. (You missed it if you haven't given us a "Like" on Facebook.) In response I received two things from the AG's office: (1) a summary of all expenses paid in the litigation, which I hadn't asked for; and (2) the itemized bills I asked for. Sort of.
Because of the Attorney General's response, I'm contemplating either (a) challenging the disclosure in Court, or (b) asking for an official "AG's opinion." (The former would obviously be expensive [see the "Donate Here" button in the right column on the website], while the latter would likely be a waste of time considering that the AG would have a clear, unavoidable conflict of interest in issuing an AG opinion, though he'd disregard that ethics violation and issue an opinion anyway.) A third option, I suppose, is doing nothing. I don't like that option, much. There are reasons why I'm considering these options.
I'll take the less complicated concern about the open records disclosure first. To understand what I'm talking about, I'd ask you to take a look through all of the itemized bills Wayne Stenehjem provided. Notice anything about them? I did. Right away. Every single word in every dated entry on every bill is redacted. Every one. A lawyer or paralegal did a "file review"? That's redacted. A lawyer flew to Chicago to take a deposition? Redacted. Someone took a call from the press? Redacted. I don't think it's appropriate for Stenehjem to redact every word in these bills. It's not all exempt from North Dakota's open records laws. I'm pretty sure of that.
To be clear, I'm not ignorant to the idea that some things in a lawyer's bill to a client -- in this context -- might legitimately be redacted from a disclosure made under North Dakota's open records law. I get that. But nobody could possibly convince me that every single word in these bills is "attorney work product" or "attorney client privilege" or otherwise exempt from disclosure.
Here's my guess: My guess is that somebody who knows nothing about North Dakota's open records law (or who doesn't give a crap about the law) was assigned the task of deciding what to redact and what not to redact in these bills before providing to me. That person just said, "A, heck; let's just redact EVERYTHING. This clown won't know any better." Well, I do. I've seen attorney bills before, as it turns out. I know what's included. I can state with a fairly high degree of confidence that the attorney general's office has broken the law by redacting EVERYTHING in these itemized bills.
The more complicated issue I take with the Attorney General's disclosure is this: I think the AG cited a completely irrelevant Federal Rule of Civil Procedure as part of his justification for withholding some of the information he has withheld. This stuff is a little complicated, but I don't think you have to be a lawyer to understand it. Follow along.
On the form the AG provided as a cover-page to the itemized professional services open records, Stenehjem cites as part of his authority for withholding records "Fed. R. Civ. Proc 26(b)(4)(C)." Here's a cut-and-paste of that federal rule:
(C) Trial-Preparation Protection for Communications Between a Party's Attorney and Expert Witnesses. Rules 26(b)(3)(A) and (B) protect communications between the party's attorney and any witness required to provide a report under Rule 26(a)(2)(B), regardless of the form of the communications, except to the extent that the communications:
(i) relate to compensation for the expert's study or testimony;
(ii) identify facts or data that the party's attorney provided and that the expert considered in forming the opinions to be expressed; or
(iii) identify assumptions that the party's attorney provided and that the expert relied on in forming the opinions to be expressed.
Now, in order to understand what this sub-part of this rule has to do with, you have to know what Rule 26 of the Federal Rules of Civil Procedure is all about. Rule 26 provides "general provisions governing discovery." "Discovery" is the process, in litigation, where parties to a lawsuit exchange information, compell each other to disclose information, and seek information from third parties in their "search for the truth" which they eventually will or may present at trial.
So if you read the indented stuff, above, you'll see that Stenehjem apparently thinks three things: (a) that the Federal Rules of Civil Procedure govern requests (or my request) made by the public to the AG's office relating to open records, (b) that I am a party or an agent of a party to the abortion litigation, and/or (c) that everything contained in every itemization provided by the State's expert witnesses is exempt from disclosure under North Dakota's open records constitutional provision and laws. Let me take each of these one at a time.
Regarding the federal court rules, I tried to figure out why the Federal Rules of Civil Procedure might apply to my North Dakota state government open records request. I looked at a couple different things in my search for understanding. First I looked at the North Dakota Century Code. That's generally where you'll find exemptions to North Dakota's open records constitutional provision and laws. Here's the closest thing I could find to a law that might be relevant:
6. Any request under this section for records in the possession of a public entity by a party to a criminal or civil action, adjudicative proceeding as defined in subsection 1 of section 28-32-01, or arbitration in which the public entity is a party, or by an agent of the party, must comply with applicable discovery rules or orders and be made to the attorney representing that entity in the criminal or civil action, adjudicative proceeding, or arbitration. The public entity may deny a request from a party or an agent of a party under this subsection if the request seeks records that are privileged under applicable discovery rules.
So what's this law about? Well, the legislature apparently thought that if a person/entity was embroiled in litigation with the State of North Dakota and wanted to get public records from the state, they couldn't do an "end run" around the normal discovery rules and process; they had to get the records using the discovery rules. This kind of makes sense. (Sort of.) But there's a glaring problem here, methinks. See, I am not "a party" or "agent of the party" to any criminal or civil action, adjudicative proceeding (as defined). And, as such, I am not trying to do an "end run" around the discovery rules. I'm just a regular Joe -- arguably a "member of the media" -- trying to obtain public records. So the federal discovery rules don't -- or shouldn't -- apply to me.
I also looked in the Attorney General's open records manual. Wayne wrote it or signed off on it, so it should provide some guidance on this issue. You'd think that would be authoritative. I looked, and found nothing inconsistent with what I've written, above. There's a section on page seven (7) that talks about discovery rules applying to parties to litigation. "Any documents that would normally be open to the public but would be privileged under discovery rules may be withheld from an adversary or agent of an adversary." (Manual) But, see, I'm not "an adversary or agent of an adversary." I didn't say I was. Wayne didn't ask if I was. If he had, I probably would have told him I'm not. (The reason I might not have said that the law should prohibit him from asking me why I want it. Why do I think that? Gosh, because an authority on the topic told me so.
See, Wayne Stenehjem told me so. "A public entity cannot ask why the records are requested, ask for identification, or require a request be made in writing (or in person)." A Public Officials Guide to North Dakota's Open Meetings and Open Records Laws by Wayne Stenehjem, at p. 2.
But I probably would have told him. I have nothing to hide. I am obviously not a party to his abortion litigation. He surely knows I'm not a lawyer for a party. And certainly not an agent.
Okay, so I've addressed the first two apparent Stenehjem thoughts: (a) that the federal rules apply, and (b) that I am a party. The federal rules do not apply BECAUSE I am not a party (or agent of a party). I've already addressed the excessive redacting issue, above. I do not believe for one minute that everything -- EVERYTHING -- in the expert witnesses' billing statement itemizations is exempt from disclosure, regardless of whether the alleged authority for withholding it is a federal court rule, a state law or otherwise. I don't even think substantive information in an expert witness's billing statement is exempt from the open records law. It's not attorney work product or privileged; and no other exemption applies.
The other provisions cited in the cover sheet relate to "attorney work product" and "attorney privileged communications" and I'm not disputing that those things -- if done conservatively -- can be redacted, if they disclose work product or the substance of privileged communications. I am not saying "I spoke to my client" is a privileged communication. A description of what was discussed, on the other hand, would be privileged.
I should note, too, that all the fighting that Republicans are doing lately about "states' rights" (besides being coded language to hide racism) is about the supremacy of state laws and constitutional provisions over Federal Law. We -- in North Dakota -- apparently hate the EPA because it's trying to impose federal rules on us. We hate the BLM for the same reason, apparently. We hate Hate HATE everything having to do with the federal government (apparently) because we're a red, states' rights state. Yet Wayne Stenehjem apparently loves Loves LOVES the federal discovery rules when he thinks he can hide behind them in his effort -- as the state's official enforcer of open records laws -- to hide public information from a taxpayer.
So I think reliance on a federal rule of discovery to withhold records is completely unjustified and illegal. In other words... yes, I am accusing the Attorney General of breaking the law. I just need to decide what to do about it.
Second, I'm intrigued by Attorney General Wayne Stenehjem's statements about the abortion litigation and the possibility of an appeal of Judge Hovland's most recent Order Granting Summary Judgment, in which the judge notes the patent and obvious unconstitutional status of North Dakota's law banning virtually all abortions.
All attorneys and judges take an oath that they will protect and defend the constitution of the United States. Elected officials in North Dakota also take an oath to "support" the North Dakota constitution. Lawyers also are obligated by law to "maintain no claim that appears to the attorney to be unjust, nor any defense except one the attorney believes to be honestly debatable under the law." (NDCC sec. 27-13-01(2)). Judge Hovland's order points out the obviousness the unconstitutionality of North Dakota's abortion ban. He calls it -- among other things -- a "blatant violation of the constitutional guarantees afforded to all women." (Order at p. 24)
The "special" assistant Attorney General who handled the abortion case in federal court for the State of North Dakota was Dan Gaustad, from Grand Forks. Gaustad has made it quite clear that the state "will appeal to a federal appeals court 'and if need be to the Supreme Court.'" (ForumComm) But now Stenehjem is apparently walking that back:
Stenehjem told The Associated Press on Wednesday that he needed to read Hovland's ruling and talk to the governor and others before deciding what the state will do next.
"There are those who believed that this was a challenge that could go to the Supreme Court," Stenehjem said. "Whether or not that's likely is something we need to confer about."
I occasionally hear legislators say cringe-worthy things that might cause one to believe legislators have no duty to understand the constitution or to enact constitutional laws. They say things like, "It's our job to pass laws; it's the Attorney General's job to defend the laws we pass; it's the Courts' job to decide whether the laws we pass are constitutional." This, of course, doesn't mesh with the fact they all take an oath to defend the constitution. But it also is an indication that Stenehjem is between a bit of a rock and a hard place. Does he defend a "blatantly" unconstitutional law and dishonor his oath to defend the constitution? Does he dishonor his obligation to defend laws passed by the legislature if he refuses to defend a blatantly unconstitutional law?
Importantly, Stenehjem -- by already defending the blatantly unconstitutional law so far -- has taken a position that he thinks it's worthy of defending. (Remember, it's illegal for him to assert a defense he doesn't believe is "honestly debatable under the law") If he changes his mind now, is he admitting he took a position that is not "debatable under the law," thus violating NDCC sec. 27-13-01(2)? If so, will he be disciplined for violating the law and the Attorney oath and pledge? Will -- and should -- someone file an ethics grievance against him? Perhaps an unhappy legislator who wants him to continue to defend the blatantly unconstitutional law if he doesn't? Or a reproductive rights advocate if he does?
These are all good questions. I'm gonna make myself some popcorn, sit back and see how he sorts it all out.