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Senators in Contempt Over Secret Emails Get Day Before Supreme Court of Virginia


A case that could re-calibrate what documents State Legislators can keep secret was heard yesterday in the Supreme Court of Virginia.

Vesilind v. Virginia State Board of Elections is primarily a redistricting case, brought to challenge 11 General Assembly Districts under the State Constitution. But a side issue has gotten four State Senators, and two former Senators, held in contempt of court by a Richmond Circuit Court judge.

That was the issue before the Supreme Court: whether the Virginia Constitution allows State Legislators to withhold emails and other documents, even when they’re subpoenaed in a lawsuit.

The arguments quickly became a complex discussion of Legislative privilege, past court precedent and English common law, but Chief Justice Donald Lemons seemed skeptical of just how broadly the Senators' attorney seemed ready to stretch their privilege.

The whole tenor of the arguments changed when Lemons began peppering attorney Jason Torchinsky with questions, said Steven Emmert, an Appeals attorney who is not involved in the case but sat through Tuesday's arguments.

Virginia's Constitution generally shields Legislators from arrest during a General Assembly session and says that they may not be "questioned in any other place" for "any speech or debate in either house."

This has evolved into a broader concept of Legislative privilege, allowing Legislators to sheild emails, bill drafts and other Legislative documents from public view. In practice, that privilege extends to the General Assembly's Division of Legislative Services (DLS)S which writes bills and handles other legal and staff work for the part-time Legislature.

The DLS is also part of this suit, and both the division and the senators, all Democrats save one, who were held in contempt say they shouldn't have to turn over emails subpoenaed in the case. House members also were subpoenaed, but they handed over correspondence, having already fought and lost on this issue as part of a separate redistricting case in Federal court.

Because the Vesilind case is proceeding in State court, though, that outcome has little bearing, Torchinsky argued Tuesday. "They brought the wrong claim in the wrong forum," he said.

Torchinsky is with Holtzman Vogel Josefiak Torchinsky, which specializes in Election law and where State Sen. Jill Vogel is Managing Partner. The firm had billed taxpayers $180,000 for its services as of May, the last time the Daily Press asked to see invoices.

OneVirginia2021, the Redistricting Reform Group behind this lawsuit, wants to see a massive number of emails and other documents related to Redistricting. It is most interested, attorneys said, in emails between Senate Democratic leaders who were in the majority during the 2011 map-making session and outside political consultants who may have helped draw maps, but its legal team has also asked for emails between Legislators and Legislative services staff.

The group is trying to prove that Legislators subverted the State Constitution's requirement that Districts be drawn compactly, drawing lines instead that they hoped would bring partisan gains.

Releasing any of these emails would "invade the legislative province," Torchinsky argued Tuesday.

Lemons probed the limits of this idea, asking whether everyday Virginians who write their State Legislators to suggest a bill could assert the privilege. Torchinsky said anything can be protected as long it relates "to a core legislative function" and that people other than legislators could assert the privilege.

Justice Arthur Kelsey joined Lemons in questioning "such a broad interpretation" of the law.

It's unclear when this issue will be decided, but the Supreme Court is expediting the matter. Once the extent of privilege is decided, discovery will continue in the underlying Redistricting case, which remains in the City of Richmond Circuit Court.

The privilege decision could have longer-reaching affects, though, setting new precedent statewide. It's unlikely to affect what documents are available to the public through Virginia's Freedom of Information Act, though, because that's a separate section of the law.

The focus here is on documents subpoenaed in a court case.

The Senators being held in contempt are John Edwards, D-Roanoke, Richard Saslaw, D-Springfield, David Marsden, D-Burke, and George Barker, D-Alexandria. Former State Sens. Charles Colgan, a Democrat, and Ralph Smith, a Republican, have been held in contempt as well.

They each face daily $100 fines, though Circuit Court Judge Reilly Marchant has said the fines will be waived if they prevail before the Supreme Court. If not, it's likely taxpayers will pay the fines, since Legislators incurred them in the course of their jobs, Marchant has said.











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This post first appeared on The Independent View, please read the originial post: here

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Senators in Contempt Over Secret Emails Get Day Before Supreme Court of Virginia

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