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Attorney General Withdraws Subpoena in Green Party Case

Maryland's Attorney General has withdrawn a subpoena directed at Montgomery College, the employer of a lawyer who was representing the Green Party. The subpoena had been challenged on appeal by the ACLU of Maryland as intrusive and overly broad, arguing that it would have a chilling effect on civil rights enforcement. The Public Justice Center wrote an amicus brief in support of quashing the subpoena, and organized a large group of civil rights advocates to join the brief, including CASA of Maryland, Inc., Civil Justice, Inc., the Greater Baltimore Christian Legal Society, the Labor Council for Latin American Advancement, the Maryland Disability Law Center, the Maryland Employment Lawyers Association, the National Council of La Raza, the NAACP Legal Defense and Education Fund, Inc., the Natural Resources Defense Council, Inc., and Public Citizen. A media release from the ACLU of Maryland and an article in the Daily Record Follow.

John Nethercut
Executive Director
Public Justice Center
500 E. Lexington Street
Baltimore, MD 21202
voice 410-625-9409 Ext. 238
fax 410-625-9423
email nethercutj@publicjustice.org
website www.publicjustice.org

***MEDIA RELEASE***

In Victory for Civil Rights, State of Maryland Withdraws Subpoena for Lawyer¹s Computer, Personnel Records

FOR IMMEDIATE RELEASE:

February 27, 2007

CONTACT: Meredith Curtis, ACLU of Maryland

410-889-8555

In a move hailed by the American Civil Liberties Union of Maryland, Attorney General Douglas Gansler is withdrawing a subpoena demanding production of a civil rights lawyer¹s computer hard drive and personnel records in a long-running voting rights dispute between the Maryland Green Party and the State Board of Elections.

In January, the ACLU appealed to the Maryland Court of Special Appeals to quash the subpoena which had been served upon the lawyer¹s employer, Montgomery College. Shortly thereafter, Maryland¹s highest court, the Court of Appeals, took the matter up for review on its own motion. The Attorney General is likely to tell the court that the withdrawal of the subpoena renders further Court review of the appeal unnecessary.

³This a victory for every Marylander who cares about our court system¹s respect for the rights of those who stand up to challenge civil rights violations,² said ACLU of Maryland Legal Director Deborah A. Jeon. ³We view this turnabout by the State as a clear indication of Attorney General Gansler¹s commitment to making Maryland a place where the government recognizes the necessity of vigorous enforcement of civil rights laws. We hope that the approach taken by the State in this case reflects an intention to cooperatively resolve other cases raising civil rights issues.²

The controversy arose in a voting rights case in which the Maryland Green Party successfully challenged the constitutionality of state election laws and practices that denied a Green Party candidate a place on the ballot during the 2000 Congressional elections. The merits of the dispute have been settled since 2003, when the State¹s highest court ruled in favor of the Green Party. The courts also have squarely decided that the State is required to pay the Green Party¹s legal fees under civil rights laws. But the litigation has dragged on for years as the State has sought to delay or avoid payment of those fees engaging in what Supreme Court Justice William Brennan once called ³one of the least socially productive types of litigation imaginable.²

The subpoena was served in spring 2006 upon the employer of one of the Green Party¹s lawyers, even though the employer is not a party to the case. It demanded production of the lawyer¹s job application and his wage, attendance, and leave records. More importantly, the subpoena also sought all email and other electronic information stored on the lawyer's password-protected work computer, including privileged communications between the lawyer and the Green Party and confidential documents prepared as part of the litigation.

In its appeal, the ACLU argued that enforcement of the subpoena would have undermined both the attorney-client privilege and the work product doctrine two of the oldest and most fundamental protections clients and their lawyers have under the law. The ACLU also argued that the subpoena would discourage private parties and lawyers from taking up civil rights causes, for fear that their success in doing so would expose them to unreasonable government intrusions upon their privacy.

Numerous civil rights and legal groups joined the ACLU as ³friends of the court² supporting the effort to quash the subpoena, because of its potential to undermine enforcement of civil rights law. Led by the Public Justice Center, those groups include: CASA of Maryland, Inc., Civil Justice, Inc., the Greater Baltimore Christian Legal Society, the Labor Council for Latin American Advancement, the Maryland Disability Law Center, the Maryland Employment Lawyers Association, the National Council of La Raza, the NAACP Legal Defense and Education Fund, Inc., the Natural Resources Defense Council, Inc., and Public Citizen.

Counsel in the case include Frank Dunbaugh and Mark Miller, original counsel for the Green Party; Creighton R. Magid and Beth Forsythe of Dorsey & Whitney; C. Christopher Brown of Brown, Goldstein & Levy; and Deborah Jeon and David Rocah of the ACLU of Maryland. Suzanne Sangree at the Public Justice Center organized participants filing the amicus brief.

###

AG drops demand for lawyer’s records
BARBARA GRZINCIC
Daily Record Legal Affairs Editor
February 27, 2007 5:59 PM

The Office of the Attorney General has dropped its demand for personnel records and the computer hard drive of an attorney who represented the Maryland Green Party.

The State Board of Elections had subpoenaed the items from Mark Miller’s employer, Montgomery College, as part of a dispute over legal fees in a voting rights case the Green Party won in 2003.

The subpoena drew protests from civil rights groups, which claimed the demand — seeking Miller’s time sheets, attendance and wage records as well as “all documents relating to this lawsuit” including “computer files, e-mails, electronic correspondence or other documents” in the college’s possession — was unduly broad and would have a chilling effect on future civil rights litigation.

Deborah Jeon, legal director of ACLU of Maryland, hailed Attorney General Douglas F. Gansler’s decision to withdraw the subpoena Tuesday.

“We view this turnabout by the state as a clear indication of Attorney General Gansler’s commitment to making Maryland a place where the government recognizes the necessity of vigorous enforcement of civil rights laws,” Jeon said in a statement announcing the development. “We hope that the approach taken by the state in this case reflects an intention to cooperatively resolve other cases raising civil rights issues.”

The ACLU filed an appeal on Miller’s behalf in late January, after Anne Arundel County Circuit Judge Michael Loney declined to quash the subpoena.

The appeal was backed by the Public Justice Center, which filed a friend-of-the-court brief on behalf of several civil rights groups.

On Feb. 7, the Court of Appeals took the case from the Court of Special Appeals on its own motion.

The decision to withdraw the subpoena now has nothing to do with the merits of the appeal, a spokeswoman for the attorney general’s office said.

“It reflects our desire to move forward at the trial court level toward a swift and fair resolution of the fee dispute,” said the spokeswoman, Raquel Guillory.

In January, Guillory estimated that the fee demand was about $500,000.

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