Saturday, September 22, 2007


The November date that Kochert has made a redistricting issue did not come from the plaintiffs. I attended the meeting with the federal magistrate, along with Randy Smith, Larry Kochert, and our respective counsel. It was Kochert himself who objected to our proposal to set a redistricting deadline in the middle of next year and inserted the November 2007 date into the negotiated agreement. Neither the magistrate nor the plaintiffs suggested it. The plaintiffs agreed to that date solely based on Kocherts assurance, written into the negotiated proposal, that all discussions between council members concerning redistricting would occur only in public meetings with proper notice. The only sticking point left was the attorney's fees, which our attorney graciously allowed us to cut in an effort to save time, money and further argument.

Kochert noted at the time that he wasn't authorized to obligate the council to even the reduced attorney's fees without a proper council appropriation. He promised to bring that appropriation to a vote at the council's next public meeting and report back to the magistrate and plaintiffs on the results of that vote immediately following. That didn't occur, nor did any communication from Kochert concerning settlement.

Since that time, the Council has continued to discuss redistricting in private in lieu of responding to the settlement proposal. Again, the plaintiffs offered to settle weeks ago and the council did not respond to that offer. Why Kochert has chosen to emphasize his own arbitrarily imposed date as it it's a court order while ignoring the public access portion of the agreement, which the council has clearly violated, is a question that should be directed to him. There is no court order currently directing the council to do anything, although, as mentioned, the magistrate was expecting a response from the council concerning the proposed settlement immediately after the last council meeting. He never received it. If I am not mistaken, a court order would be a matter of public record. It's only a matter of time before Kochert's erroneous assertion is exposed. The results of the council both not responding to the negotiated settlement offer and not honoring the content of that offer, though, is that the agreement in principle is a moot point and the plaintiffs have to assume that the council (or at least its president) has decided to go to trial. As that's the case, we must prepare accordingly.

Some costs have already been incurred solely because the council(s) refused to address the redistricting issue in a timely manner. It's been roughly five years since the previous council chose not to comply with the original state mandated deadline and more than three since this council, including several members from the previous iteration who were well aware of having missed the deadline, took office. It's been more than a full year since the suit was filed.

Further, the magistrate made clear to everyone at the meeting that a federal judge would expect depositions from government officials who oversee elections, both current and former council members, and expect census and/or demographic testimony from both sides in order to properly decide the case, all of which is expensive. If the preparation expenses, not the actual time spent in court, that create the lion's share of the financial burden. He also specifically pointed out to Kochert that, even if redistricting occurs prior to the December 3 trial date, the council would still be responsible for bearing the cost of trial preparation for both sides up to that point, as that preparation would have to start long before, possibly as early as next week. State law precludes the council from redistricting prior to the upcoming election and redistricting immediately after the election saves almost no money, as most of the trial preparation expenses would have already been incurred. The longer Kochert or other council members delay settlement, the more expensive it becomes for taxpayers, who will ultimately be asked to foot the bill for the council to prepare for and try a lawsuit, the facts of which the Council doesn't even dispute. Kochert confirmed at the magistrate meeting that the council does not dispute the facts presented in the lawsuit--that a timely redistricting did not occur and the districts are unequal. I don't understand why Kochert seems to think that delaying the settlement process or rushing through a redistricting process will serve the public or save money.

The only reason the suit was filed in the first place is to ensure that redistricting occurs in a fair manner with public oversight. If enough council members are interested in that as well, we have good reason to talk in an attempt to reach settlement, which the plaintiffs have and offer to do. That talk has to occur very soon, however, in order to avoid the expense of trial preparation previously mentioned. Continuing to ignore our offer to settle and continuing with the current, still substantially unequal redistricting plan will be a clear sign the council intends to go to trial and expenses will start to mount. None of the plaintiffs and I doubt most of the defendants want to unnecessarily spend a significant amount of time and money on legal proceedings.

But, allow me to be blunt. Council President Kochert's bad faith bargaining thus far has created a strong impression that the council has no intention of committing to a fair and legal redistricting process. If Kochert won't play by the rules to which he agreed and other council members won't hold him accountable if he doesn't, the plaintiffs have no real choice but to demand a framework of additional oversight to ensure that the public good is served.

In Saturday's Tribune, Kochert accused the plaintiffs in this case of being political "wannabes" while referencing the very same election law that he's knowingly broken for five straight years as justification. That reveals more about the nature of this case than any other response I could muster.

Again, if the council wishes, as we do, to avoid the unnecessary time and expense of the trial preparations currently beginning, we need to talk very soon.

Jeff Gillenwater

Freedom of Speech would like to ask: What about the legal requirement for the City Council to have a unanimous vote of approval to amend the agenda before adding an unlisted item to the agenda and taking a vote?

Councilman Messer, is your committee legal according to New Albany Code?

New Albany Code 20.23 (e) (9)

9. a motion to "suspend the rules" is a privileged question, is debatable, a two-thirds vote of all elected members, "AFTER UNANIMOUS CONSENT" of the members present to consider the ordinance, is required to pass an ordinance of the legislative body on the same day or at the same meeting at which it is introduced.

Again, the "wannabe's agenda" is purely about a $$$$$$ settlement!