Neelley v. Walker, et al.

Filing 54

ORDER as follows: (1) Plaintiff's 38 Motion to Compel be and is hereby GRANTED as further set out in the order; and (2) The parties have until on or before 10/29/2015 to submit a joint proposed protective order to govern the documents to be produced. Signed by Honorable Judge Terry F. Moorer on 10/22/2015. (dmn, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
JUDITH A. NEELLEY,

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Plaintiff,
v.
CLIFFORD WALKER, et al.,
Defendants.

CASE NO. 2:14-cv-269-WKW-TFM
[wo]

ORDER
Pending before the Court are Plaintiff’s Motion to Compel (Doc. 38, filed June 29,
2015) and Supplement to Motion to Compel (Doc. 45, filed July 23, 2015), and
Defendants’ Response (Docs. 46, filed July 27, 2015).
I.

FACTUAL BACKGROUND

On April 18 1983, Plaintiff Judith A. Neelley (“Neelley” or “Plaintiff”) was
sentenced to death. See Doc. 1 at 3. On January 15, 1999, former State of Alabama
Governor Fob James (“Governor James”) commuted Neelley’s sentence to a life
sentence. Id. Governor James’ letter to the Alabama Supreme Court omitted an explicit
order as to whether the life sentence was to be with or without possibility of parole, and
was subsequently reviewed by the Alabama Attorney General. See Doc. 1 at 5. The
Alabama Attorney General stated the determination of whether the commuted sentence
would be deemed with or without possibility of parole is based on the “specific order of
the Governor.” Due to Governor James’ omission of specific language to that effect, the
Alabama Board of Pardons and Paroles (“Parole Board”) informed Neelley that she

would be eligible for parole consideration on or about January 15, 2014. See Doc. 1 at 6.
On October 23, 2001, Neelley filed a declaratory judgment action seeking a
determination as to her immediate eligibility of parole due to the fact that she had already
served nineteen (19) years in prison, sixteen (16) of those years on Alabama’s death row.
Id. On July 22, 2002, a Montgomery County Circuit Court judge held that the fifteen
(15) year parole period did not begin running until Governor James commuted her
sentence on January 15, 1999. Id.
On June 18, 2003, the Alabama Legislature passed Act 2003-300 which amended
Section 15-22-27(b) of the Code of Alabama to include that “[a]ny person whose
sentence to death has been commuted by the Governor shall not be eligible for a parole.”
See Doc. 1 at 7. Act 2003-300 provided only one exception, where the person whose
death sentence has been commuted can be eligible for parole if “sufficient evidence is
presented to the Board of Pardons and Paroles to satisfy it that the person was innocent of
the crime for which he or she was convicted, the board votes unanimously to grant the
person” parole, and that “the Governor concurs in and approves the granting.”

Id.

(quoting ALA. CODE § 15-22-27(d)). Further, Section 3 of Act 2003-300 provided that
the “operation” of the Act shall be retroactive to September 1, 1998, approximately four
and a half months prior to Governor James’ commutation of Neelley’s death sentence.
Id. Accordingly, the retroactivity of the Act converted Neelley’s sentence from life
imprisonment to life imprisonment without the possibility of parole. See Doc. 1 at 8. In
January of 2014, after serving fifteen (15) years from the date of Governor James’
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commutation, Neelley requested a parole consideration hearing. See Doc. 1 at 9. On
March 31, 2014, upon request of the Parole Board, the Alabama Attorney General issued
an advisory opinion stating that Neelley was not eligible for parole consideration due to
the retroactivity of Act 2003-300. Id.
Neelley asserts that she is the only person in Alabama to have a death sentence
commuted since 1962. More specifically, Neelley asserts that she is the only person
whose death sentence was commuted between September 1, 1998 and September 1,
2003. Thus, the “Legislature’s retroactive application of Act 2003-30 was directed at and
affected only one person – Neelley.” See Doc. 1 at 8. Plaintiff asserts that the sponsor
and many supporters of the Act expressed that it was “intended to ‘fix’ Governor James’
commutation of Neelley’s death and even referred to it as ‘Neelley’s law.’” Id. Neelley
claims that “[t]he retroactivity of Act No. 2003-30 to Neelley is unconstitutional under
both the United States and Alabama Constitutions.” See Doc. 1 at 9.
II.

DISCUSSION

Discovery is not limited to that information which is admissible in court, but rather
discoverable information is “relevant information” which “appears reasonably calculated
to lead to the discovery of admissible evidence.” FED. R. CIV. P. 26(b)(1). The Court
recognizes its duty to balance production of “relevant information” which is “reasonably
calculated to lead to the discovery of admissible evidence” with concerns that the
discovery sought is “unreasonably cumulative or duplicative, or can be obtained from
some other source that is more convenient, less burdensome, or less expensive.” FED. R.
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CIV. P. 26(b)(1) and 26(b)(2)(C)(i).
Neelley moves this Court to compel responses to requests for admission,
interrogatories, and requests for production. See Doc. 38. Plaintiff’s motion is seeking
several documents contained in her parole file including provisions of the Code of
Alabama, copies of the Formal Opinions publicly issued by the Alabama Attorney
General, copies of published newspaper articles, and copies of letters exchanged between
Neelley’s counsel and the Parole Board and between Neelley and the Parole Board. See
Doc. 38 at 3. Plaintiff asserts that she is entitled to this information because Defendants
have asserted and pursued a defense based upon the statute of limitations, as well as
heavily relied on it in Defendants’ Motion for Summary Judgment (Doc. 41). See Docs.
38, 45. Neelley requests this discovery, specifically to gather information on notice and
correspondence which discuss Neelley’s eligibility for parole. See Doc. 38 at 2. Further,
Neelley asserts that Defendants have already turned over public records contained in her
parole file including a January 21, 2014 Request for Attorney General’s Opinion that
tends to establish Defendants’ own confusion as to whether Act 2003-30 applied to
Neelley, yet they argue that Neelley knew or should have known as early as 2003 that the
Act barred her from parole consideration. See Doc. 45 at 2-3.
Defendants Clifford Walker (“Walker”), William W. Wynne, Jr. (“Wynne”), and
Robert P. Longshore (“Longshore”) (collectively “Defendants”) assert that pursuant to
Alabama law, the contents of Neelley’s parole file are privileged. Section 15-22-36(b) of
the Code of Alabama provides that:
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Each member of the Board of Pardons and Paroles favoring a pardon,
parole, remission of a fine or forfeiture, or restoration of civil and political
rights shall enter in the file his or her reasons in detail, which entry and the
order shall be public records, but all other portions of the file shall be
privileged.
See Doc. 46 at 3 (emphasis added). Defendants cite to an Alabama Supreme Court case
and an Eleventh Circuit case that have upheld the parole file privilege set forth in Section
15-22-36(b) of the Code of Alabama. First, Defendants cite to Ex Parte Alabama Board
of Pardons & Paroles, in which the Alabama Supreme Court held that Section 15-2236(b) “clearly and unambiguously establishes an absolute privilege that the Board is
legally bound to obey and the . . . court is under a duty to uphold.” See Doc. 46 at 5
(quoting 814 So. 2d 870, 873 (Ala. 2001)). Defendants also cite to Porter v. Ray, where
the Eleventh Circuit “upheld the district court’s denial of the appellants’ request for in
camera inspection of their parole files” under a similar statute pursuant to Georgia law.
461 F.3d 1315, 1324 (11th Cir. 2006). Defendants also assert that some of the documents
are also protected under other doctrines including attorney work product, attorney-client
privilege, and federal executive/official-information/deliberative-process privilege.
While well taken, the facts of the cases cited by Defendants are easily
distinguishable to the facts before this Court. In Ex Parte Alabama Board of Pardons &
Paroles, the Alabama Supreme Court was reviewing the lower court’s ruling on whether
notifications and correspondence made between the Parole Board and the victim(s) of the
crime, not correspondence between the Parole Board and the prisoner herself. 814 So. 2d
at 871. The quote that was shortened by Defendants reads in its entirety:
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[a] plain reading of the statute indicates that the Legislature created an
absolute privilege to provide individuals and entities an unfettered
opportunity to provide information to the Board, without exposing the
individuals and entities to public scrutiny and potential retaliation.
Ex parte Alabama Bd. of Pardons & Paroles, 814 So. 2d at 872.

Based upon

representations made by Plaintiff’s counsel, as well as the Court’s review of the requests,
it is clear that Plaintiff is not seeking any documents that would have any potential for
exposing the identities or statements made by any victims, witnesses, etc.
Similarly, in Porter v. Ray, the Eleventh Circuit was reviewing the district court’s
denial of a request for an in camera review of the Georgia Board of Pardons & Paroles’
parole files, statistics, and other documents the plaintiffs alleged were used in applying an
ex post facto policy. The Eleventh Circuit ultimately held that the district court did not
abuse its discretion in denying the in camera review because the plaintiffs failed to meet
their burden of overcoming the claim of confidentiality, and stated:
[. . .] even though we do not blindly accept the Board's claim of
confidentiality, we find that the appellants' allegations are insufficient to
meet their burden when requesting discovery that the State of Georgia has
deemed confidential.
Porter, 461 F.3d at 1324 (citing McGoy v. Ray, 164 Fed. App’x 876, 878 (11th
Cir.2006)) (emphasis added). The Eleventh Circuit clearly stated that even though state
law provided that the parole files were confidential, that they would not “blindly accept”
a claim of confidentiality without further analysis. Id.
Here, during oral argument, Plaintiff narrowed her requests to correspondence
between the Parole Board and her and/or her counsel, and the publisher as well as the
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corresponding dates of newspaper articles contained in Neelley’s parole file. First, with
regard to the correspondence between the Parole Board and Neelley’s counsel, Mr. Barry
Ragsdale (“Mr. Ragsdale”) informed the Court that he has not served as counsel for
Neelley since her sentence was commuted in 1999. Mr. Ragsdale said the attorney who
represented Neelley in the interim, and is also co-counsel in this case, has represented to
Mr. Ragsdale that he no longer has copies of all of the correspondence. Similarly, with
regard to correspondence between the Parole Board and Neelley, Mr. Ragsdale asserted
that prisoners are limited in what they are allowed to keep in their cells, and thus Neelley
was not able to keep all correspondence between her and the Parole Board. Mr. Ragsdale
represented as an officer of the Court that he only has possession of five (5) of the eleven
(11) correspondence listed on the privilege log, and that he only wants copies of the
correspondence which he does not already have.
The correspondence requested clearly do not raise the same concerns as those
raised in the case law cited in support of the privilege, or those cited in the legislative
intent of Section 15-22-36(b) of the Code of Alabama. The correspondence are of the
nature that Plaintiff and/or her counsel drafted them and sent them to the Parole Board, or
the Parole Board voluntarily sent a copy to Plaintiff and/or her counsel. While the Court
recognizes the parole file privilege, it must also take into account that the correspondence
cannot be obtained in another manner and that the documents sought were created by the
Parole Board with the intent that they be viewed by Plaintiff and/or her counsel or created
by Neelley and/or her counsel to be viewed by the Parole Board. Indeed, these items
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were sent to Neelley and/or her counsel by the Parole Board, or sent by Neelley and/or
her counsel to the Parole Board.

Correspondence sent between Neelley and/or her

counsel and the Parole Board do not implicate the need that the privilege is meant to
address.

Therefore, the Court finds that Defendants shall produce the requested

correspondence between the Parole Board and Neelley and/or her counsel. However,
Defendants shall only produce those documents that are not already in Plaintiff’s
possession, and shall redact any writings or markings made by the Parole Board or its
counsel that were not on the document when sent to Plaintiff or her counsel, or sent by
Plaintiff or her counsel.
Neelley also requests the name of the publication and the corresponding dates of
publication for any newspaper articles contained in her parole file. Neelley asserts that
Defendants have pursued a defense based upon the statute of limitations, as well as
heavily relied on it in Defendants’ Motion for Summary Judgment (Doc. 41), thus, she
must gather information related to the notice element. See Docs. 38, 45. Neelley asserts
that Defendants have cited to several newspaper articles in their motion for summary
judgment; however, they did not attach them as exhibits or set forth any identifying
information. Defendants aver that as a whole, the collection of newspaper clippings
speak to the Parole Board’s decision-making process by disclosing all of the news related
media used in making their decisions related to Neelley’s parole consideration. While the
Court generally agrees with Defendants’ stance, Defendants cite to several of the articles
in their motion for summary judgment. While the Court is not making any express
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finding that Defendants have waived the parole file privilege, to the extent that
Defendants have cited to the documents in their motion for summary judgment, in the
interest of fairness, the Plaintiff is entitled a copy of those articles in order to properly
defend herself against a possible summary judgment. Thus, to the extent Defendants cite
to any newspaper articles in their Motion for Summary Judgment (Doc. 41), the
Defendants shall produce the publisher and corresponding date to only those articles
cited. Additionally, if any of the articles are clippings that do not identify the publisher
and/or date, Defendants shall produce a copy of that article, subject to redactions of any
notes or markings made by the Parole Board or their counsel.
Within seven (7) days of the date of this Order, the parties shall submit a joint
proposed protective order that will govern the release of these documents.
III.

CONCLUSION

Accordingly, upon consideration of the motions, for the reasons as stated, and for
good cause, it is ORDERED as follows:
(1) Plaintiff’s Motion to Compel (Doc. 38) be and is hereby GRANTED; and
(2) The parties have until on or before October 29, 2015 to submit a joint
proposed protective order to govern the documents to be produced.
DONE this 22nd day of October, 2015.
/s/Terry F. Moorer
TERRY F. MOORER
UNITED STATES MAGISTRATE JUDGE

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