International Association of Fire Fighters et al v. Bentley et al

Filing 123

MEMORANDUM OPINION and ORDER; it is ordered that the motions to quash be denied as more fully set out in order; it is further ordered that AL Governor Robert J. Bentley, former AL Governor Robert R. Riley, AL Senate President Pro Tempore Del Marsh, and Speaker of the House of Representatives Mike Hubbard provide full and complete responses to the subpeonas duces tecum served upon each of them on or before Friday, Febuary 1, 2013. Signed by Judge C Lynwood Smith, Jr on 1/3/2013. (AHI)

FILED
2013 Jan-07 AM 08:46
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ALABAMA

NORTHEASTERN DIVISION

ALABAMA EDUCATION
ASSOCIATION; et al.,
Plaintiffs,

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vs.
ROBERT BENTLEY, in his
official capacity as Governor ofthe
State of Alabama and President of
the State School Board; et al.,
Defendants.

Civil Action No. CV-II-S-761-NE

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)
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MEMORANDUM OPINION AND ORDER
This action is before the court on motions to quash subpoenas duces tecum
issued by plaintiffs to four non-parties: i.e., Alabama Senate President Pro Tempore
Del Marsh; Speaker ofthe Alabama House ofRepresentatives Mike Hubbard; former
Alabama Governor Robert R. ("Bob") Riley; and, current Alabama Governor Robert
J. Bentley, who was a defendant until August 22,2012, when all claims against him

were dismissed. I Understanding how the documents sought by the contested
subpoenas relate to claims asserted by plaintiffs requires a review of the case's
procedural history.

1 See doc. no. 126 (Memorandum Opinion and Order), at 82-84 and 100; see also note 13,
infra, and the accompanying text.

I. PROCEDURAL HISTORY
The Alabama Education Association (“AEA”), Alabama Voice of Teachers for
Education (“A-VOTE”), and six individuals affiliated with those organizations
commenced this action in February of 2011.2 They challenged the constitutionality

2

AEA is an Alabama non-profit corporation. Its membership consists of approximately
75,000 active and 30,000 retired public educators and education support personnel employed by the
State of Alabama, or one of Alabama’s four-year colleges and universities, or the State’s Department
of Postsecondary Education (“DPE”), or one of the State’s postsecondary institutions (two-year
colleges and trade and vocational training schools that function under the supervision of the DPE),
or one of the State’s local boards of education. See doc. no. 1 (Complaint) ¶¶ 5-7. “AEA’s mission
is to promote educational excellence, advocate for its members, and lead in the advancement of
equitable and quality public education for a diverse population.” Id. ¶ 24. To advance that mission,
“AEA advocates on an array of issues that are of concern to its members, including questions
relating to tax policy, pension and insurance issues, education funding, tenure protections for
education employees, school curriculum, and charter schools.” Id. ¶ 25.
“A-VOTE” is a political action committee sponsored by AEA that functions as “a vehicle
for members who wish to support candidates whose positions are consistent with AEA’s missions
and goals.” Id. ¶ 26. AEA members who contribute to A-VOTE have the “opportunity to
participate in the electoral process and to support and elect candidates of their choice.” Id. The
“vast majority” of AEA members have, for decades, executed voluntary requests to have their AEA
membership dues, as well as their voluntary contributions to A-VOTE, automatically deducted from
their respective paychecks. Id. ¶ 7.
The six individual plaintiffs, all of whom are members of AEA, are: Pam Hill, an education
support professional who is employed by the Huntsville City Board of Education; Dr. Cathy
McNeal, Ph.D., a professional educator who is employed by the same public school system; Chassity
Smith, a professional educator who is employed by the City of Madison Board of Education; Jeff
Breece, a professional educator who is employed by the Madison County Board of Education;
Dorothy J. Strickland, a professional educator who is employed by the Lee County School District;
and Ronald Slaughter, a professional educator who is employed by Alabama Agricultural &
Mechanical University. See doc. no. 1 (Complaint) ¶¶ 8-13.
This court also allowed an intervention complaint to be filed by the Alabama State Employee
Association (“ASEA”), the State Employee Association Political Action Committee (“SEA-PAC”),
Randy Hebson (President of ASEA), Edwin J. McArthur (Executive Director of ASEA), and three
State employees who are members of ASEA and contributors to SEA-PAC: i.e., Larry Sanders,
JoAnne Brown, and John Allen. See doc. no. 86 (Order entered May 30, 2012, allowing complaint
in intervention to be filed), and doc. no. 87 (Complaint in Intervention). The intervenor-plaintiffs
assert essentially the same claims as the original plaintiffs.

2

of Alabama Act No. 2010-761 (“Act No. 761”), an amendment of preexisting law that
was enacted by the Alabama Legislature on December 15, 2010, and signed into law
by Governor Riley on December 20, 2010.3
A.

Preexisting Alabama Law
Prior to the enactment of Act No. 761, Alabama Code § 16-22-6 directed city

and county boards of education, as well as some post-secondary institutions, to adopt
procedures to allow employees to deduct from their paychecks contributions for,
among other things, “membership dues” and “voluntary contributions.” The pertinent
portion of the statute as it then existed provided that:
Each local board of education and certain postsecondary
institutions shall adopt policies or regulations which will provide for
deductions from salaries of its employees or groups of employees
whenever a request is presented to the board or postsecondary institution
by the employees or groups. The deductions shall be made from salaries
earned in at least nine different pay periods and shall be remitted to the
appropriate company, association, or organization as specified by the
employees within 10 days following each deduction. The deductions
may be made for, but [are] not limited to, savings plans, tax sheltered
annuities, the Public Employees’ Individual Retirement Account Fund,
membership dues, voluntary contributions, and group insurance
premiums. Deductions for membership dues and voluntary contributions
shall be made based upon membership lists and forms provided by the
employees’ organization. Such lists are to be corrected, updated, and
returned to the employees’ designated organization(s) not later than
November 10 of each school year. . . .
Ala. Code § 16-22-6(a) (1975) (2001 Replacement Vol.) (emphasis and alteration
3

See doc. no. 1 (Complaint) ¶¶ 1-2.

3

supplied). Those statutory requirements had been a part of the corpus of Alabama law
since at least 1973. Relatedly, Alabama Code § 36-1-4.3 provided that:
(a) The state Comptroller shall adopt statewide policies which
provide for deductions from the salaries of state employees or groups of
state employees whenever a request is presented to the state Comptroller
by a group of participating state employees equal in number to at least
200 provided, however, that deductions being made as of April 23, 1985,
shall continue to be made. The deductions shall be made at least
monthly and shall be remitted to the appropriate company, association,
or organization as specified by the employees. The deductions may be
made for membership dues, and voluntary contributions, and insurance
premiums. Any deduction provided under the provisions of this section
may be terminated upon two months’ notice in writing by a state
employee to the appropriate company, association, or organization and
to the appropriate payroll clerk or other appropriate officials as specified
by the state Comptroller.
(b) The state Comptroller may, at his discretion, collect from the
deductions withheld a cost of administration fee not to exceed one
percent of the total deduction collected.
Ala. Code § 36-1-4.3 (1975) (2001 Replacement Vol.) (emphasis supplied). Again,
the basis for those statutory requirements had been a part of the corpus of Alabama
law since at least 1985.
Both of the foregoing statutes were tempered by Alabama Code § 17-17-5,
which is located in a chapter addressing “Election Offenses,” and which read as
follows prior to the enactment of Act. No. 761:
No person in the employment of the State of Alabama, a county,
or a city whether classified or unclassified, shall use any state, county,
4

or city funds, property or time, for any political activities. Any person
who is in the employment of the State of Alabama, a county, or a city
shall be on approved leave to engage in political action or the person
shall be on personal time before or after work and on holidays. It shall
be unlawful for any officer or employee to solicit any type of political
campaign contributions from other employees who work for the officer
or employee in a subordinate capacity. It shall also be unlawful for any
officer or employee to coerce or attempt to coerce any subordinate
employee to work in any capacity in any political campaign or cause.
Any person who violates this section shall be guilty of the crime of
trading in public office and upon conviction thereof, shall be fined or
sentenced, or both, as provided by Section 13A-10-63.
Ala. Code § 17-17-5 (1975) (2007 Replacement Vol.).4

4

The statute referenced in the last line of the textual quotation (i.e., “Section 13A-10-63”)
states the elements of the crime of “trading in public office” as follows:
(a)

A person is guilty of trading in public office if:
(1)

He offers, confers or agrees to confer any pecuniary benefit upon a public
servant or party officer upon an agreement or understanding that he
himself will or may be appointed to a public office or public employment
or designated or nominated as a candidate for public office; or

(2)

While a public servant or party officer, he solicits, accepts or agrees to
accept any pecuniary benefit from another upon an agreement or
understanding that that person will or may be appointed to a public office
or public employment or designated or nominated as a candidate for
public office.

(b)

This section does not apply to contributions to political campaign funds or
other political contributions.

(c)

Trading in public office is a Class A misdemeanor.

Ala. Code § 13A-10-63 (1975) (2005 Replacement Vol.). Class A misdemeanors are punishable by
imprisonment in the county jail or by hard labor for the county for a term of not more than one year,
or by a fine of not more than $2,000, or both. See id. §§ 13A-5-2(c), 13A-5-7(a)(1), and 13A-512(a)(1).

5

B.

Alabama Act No. 761
Act No. 761 specifically addressed Alabama Code § 17-17-5, and amended the

language of that provision in the following manner:
ENROLLED, An Act,
To amend Section 17-17-5, Code of Alabama 1975, relating to
prohibited political activities by state, county, and city employees;
to further specifically prohibit employees of the state, a county, a
city, a local school board, or other governmental agency from using
any agency funds, property, or time arranging for payments by
salary deduction, or otherwise, to a political action committee or
dues for membership organizations that use funds for political
activities.
BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:
Section 1. Section 17-17-5, Code of Alabama 1975, is amended
to read as follows:
Ҥ17-17-5.
“(a) No person in the employment of the State of Alabama, a
county, a city, a local school board, or any other governmental agency,
whether classified or unclassified, shall use any state, county, city, local
school board, or other governmental agency funds, property, or time, for
any political activities.
“(b) No person in the employment of the State of Alabama, a
county, a city, a local school board, or any other governmental agency
may arrange by salary deduction or otherwise for any payments to a
political action committee or arrange by salary deduction or otherwise
for any payments for the dues of any person so employed to a
membership organization which uses any portion of the dues for political
activity. For purposes of this subsection (b) only, political activity shall
6

be limited to all of the following:
“(1) Making contributions to or contracting with any entity which
engages in any form of political communication, including
communications which mention the name of a political candidate.
“(2) Engaging in or paying for public opinion polling.
“(3) Engaging in or paying for any form of political
communication, including communications which mention the name of
a political candidate.
“(4) Engaging in or paying for any type of political advertising in
any medium.
“(5) Phone calling for any political purpose.
“(6) Distributing political literature of any type.
“(7) Providing any type of in-kind help or support to or for a
political candidate.
“Any organization that requests the State of Alabama, a county,
a city, a local school board, or any other governmental agency to arrange
by salary deduction or otherwise for the collection of membership dues
of persons employed by the State of Alabama, a county, a city, a local
school board, or any other governmental agency shall certify to the
appropriate governmental entity that none of the membership dues will
be used for political activity. Thereafter, at the conclusion of each
calendar year, each organization that has arranged for the collection of
its membership dues of persons employed by the State of Alabama, a
county, a city, a local school board, or any other governmental agency
shall provide the appropriate governmental entity a detailed breakdown
of the expenditure of the membership dues of persons employed by the
State of Alabama, a county, a city, a local school board, or any other
governmental agency collected by the governmental entity. Any
organization that fails to provide the required certifications, that reports
7

any expenditures for political activity or that files false information about
political activity in any of its reports shall be permanently barred from
arranging for the collection of its membership dues by any governmental
entity. The Examiners of Public Accounts shall annually review a
sample of at least ten percent of the certifications filed with each
governmental entity and report its findings to the appropriate
governmental entity.
“(c) Any person who is in the employment of the State of
Alabama, a county, a city, a local school board, the State Board of
Education or any other governmental agency, shall be on approved leave
to engage in political action or the person shall be on personal time
before or after work and on holidays. It shall be unlawful for any officer
or employee to solicit any type of political campaign contributions from
other employees who work for the officer or employee in a subordinate
capacity. It shall also be unlawful for any officer or employee to coerce
or attempt to coerce any subordinate employee to work in any capacity
in any political campaign or cause. Any person who violates this section
shall be guilty of the crime of trading in public office and upon
conviction thereof, shall be fined or sentenced, or both, as provided by
Section 13A-10-63.”
Section 2. The provisions of this act are severable. If any part of
this action is declared invalid or unconstitutional, that declaration shall
not affect the part which remains.
Section 3. All law or parts of laws which conflict with this act are
repealed.
Section 4. This act shall become effective 90 days following its
passage and approval by the Governor or its otherwise becoming law.
Act of Dec. 15, 2010, Ala. Act No. 2010-761 (boldface emphasis in original,
underscoring applied to language added to preexisting law).
C.

Codification of Alabama Act No. 761
8

The language of Act No. 761 as signed into law by Governor Riley was
subsequently codified as follows:
(a) No person in the employment of the State of Alabama, a
county, a city, a local school board, or any other governmental agency,
whether classified or unclassified, shall use any state, county, city, local
school board, or other governmental agency funds, property, or time, for
any political activities.
(b)(1) No person in the employment of the State of Alabama, a
county, a city, a local school board, or any other governmental agency
may arrange by salary deduction or otherwise for any payments to a
political action committee or arrange by salary deduction or otherwise
for any payments for the dues of any person so employed to a
membership organization which uses any portion of the dues for political
activity. For purposes of this subsection only, political activity shall be
limited to all of the following:
a. Making contributions to or contracting with any entity
which engages in any form of political communication, including
communications which mention the name of a political candidate.
b. Engaging in or paying for public opinion polling.
c. Engaging in or paying for any form of political
communication, including communications which mention the
name of a political candidate.
d. Engaging in or paying for any type of political
advertising in any medium.
e. Phone calling for any political purpose.
f. Distributing political literature of any type.
g. Providing any type of in-kind help or support to or for
9

a political candidate.
(2) Any organization that requests the State of Alabama, a county,
a city, a local school board, or any other governmental agency to arrange
by salary deduction or otherwise for the collection of membership dues
from persons employed by the State of Alabama, a county, a city, a local
school board, or any other governmental agency shall certify to the
appropriate governmental entity that none of the membership dues will
be used for political activity. Thereafter, at the conclusion of each
calendar year, each organization that has arranged for the collection of
its membership dues from persons employed by the State of Alabama,
a county, a city, a local school board, or any other governmental agency
shall provide the appropriate governmental entity a detailed breakdown
of the expenditure of the membership dues of persons employed by the
State of Alabama, a county, a city, a local school board, or any other
governmental agency and collected by the governmental entity. Any
organization that fails to provide the required certifications, that reports
any expenditures for political activity, or that files false information
about political activity in any of its reports shall be permanently barred
from arranging for the collection of its membership dues by any
governmental entity. The Examiners of Public Accounts shall annually
review a sample of at least 10 percent of the certifications filed with each
governmental entity and report its findings to the appropriate
governmental entity.
(c) Any person who is in the employment of the State of Alabama,
a county, a city, a local school board, the State Board of Education or
any other governmental agency, shall be on approved leave to engage in
political action or the person shall be on personal time before or after
work and on holidays. It shall be unlawful for any officer or employee
to solicit any type of political campaign contributions from other
employees who work for the officer or employee in a subordinate
capacity. It shall also be unlawful for any officer or employee to coerce
or attempt to coerce any subordinate employee to work in any capacity
in any political campaign or cause. Any person who violates this section
shall be guilty of the crime of trading in public office and upon
conviction thereof, shall be fined or sentenced, or both, as provided by
10

Section 13A-10-63.
Ala. Code § 17-17-5 (1975) (Supp. 2011) (boldface emphasis supplied).
D.

This Court’s Preliminary Injunction
Plaintiffs’ complaint alleged, among other things, that the changes to

preexisting Alabama law worked by Act No. 761 violated the Free Speech and Free
Association Clauses of the First Amendment, as well as the Equal Protection and Due
Process Clauses of the Fourteenth Amendment to the United States Constitution.5
Following a hearing, this court held that the Act infringed important First Amendment
rights, and that plaintiffs had demonstrated a substantial likelihood of ultimately
prevailing on the merits of their claims that the Act’s restrictions were overly broad,
and that the Act itself was unduly vague.6 Specifically, this court reasoned that the
phrase “or otherwise” reached beyond payroll deductions, and attached the personal
political contributions of government employees.7 This court also held that the term
“political activity,” found in both subsections of § 17-17-5(b), did not clearly define

5

See doc. no. 1 (Complaint) at, e.g., ¶¶ 1-2.

6

To justify the entry of an order granting preliminary injunctive relief, plaintiffs generally
must satisfy four prerequisites: (1) demonstrate a substantial likelihood of ultimately prevailing on
the merits; (2) show that plaintiffs will suffer irreparable harm if an injunction maintaining the status
quo pendente lite does not issue; (3) prove that the threatened injury to plaintiffs outweighs whatever
damage the proposed injunction may cause to the opposing parties; and (4) demonstrate that the
injunction will not be adverse to the public interest. See Alabama Education Association v. State
Superintendent of Education, 788 F. Supp. 2d 1283, 1301-03 (N.D. Ala. 2011).
7

Id. at 1319-24.

11

the nature of prohibited acts.8 For such reasons, this court preliminarily enjoined the
implementation and enforcement of Act. No. 761, and required defendants to honor
all employee requests for payroll deductions to AEA, and to remit those deductions
to AEA, including all amounts representing contributions to “A-VOTE,”9 the political
action committee sponsored by AEA.10
E.

Appeal of Order Granting Preliminary Injunctive Relief
Most of the defendants appealed the order granting preliminary injunctive

relief.11 The Eleventh Circuit concluded that the constitutional issues raised by
plaintiffs turned upon questions of state law that had not been specifically addressed
by either the Alabama Supreme Court or the State’s intermediate courts of appeal.
Consequently, rather than speculating as to the proper interpretation of a state statute,
the Circuit Court certified two questions:
TO THE SUPREME COURT OF ALABAMA AND THE
HONORABLE JUSTICES THEREOF:
AEA contends that Alabama Act No. 2010-761 infringes a broader
range of constitutionally protected activity than previously recognized
as permissible under the First Amendment. Specifically, AEA argues
that the Act’s “or otherwise” language would prevent government
8

Id. at 1324-28.

9

See doc. no. 37 (Preliminary Injunction).

10

See supra note 2.

11

See doc. no. 40 (Notice of Appeal by AEA Bice Defendants); doc. no. 41 (Amended Notice
of Appeal by Bice Defendants); and doc. no. 45 (Notice of Appeal by AEA Governor Defendants).

12

employees from making contributions to an organization engaged in
political activity through any means, including personal donations of
their own money. AEA also argues that the term “political activity”
reaches a wide number of ill-defined activities, making it impossible for
any organization to certify that it is in compliance with the Act. The
state counters that “or otherwise” simply prevents the use of state
resources in any way — whether through salary deductions or some
other state mechanism — from benefitting organizations involved in
political activities. The state argues that “political activity” means
electioneering activities.
The interpretation of the Act is a question of state law that has not
been specifically addressed by the Alabama Supreme Court or the
intermediate state appellate courts. Therefore, we certify the following
questions to the Alabama Supreme Court:
1. Is the “or otherwise” language in the statute limited to
the use of state mechanisms to support political
organizations, or does it cover all contributions by state
employees to political organizations, regardless of the
source?
2. Does the term “political activity” refer only to
electioneering activities?
The answers to these questions will permit this court to address
AEA’s concerns and determine whether the Act runs afoul of the First
Amendment. To facilitate the resolution of these questions, we direct the
Clerk to transmit the entire record of this case, together with copies of
the parties’ briefs, to the Alabama Supreme Court. Of course, the
Alabama Supreme Court is in no way limited by our questions and may
consider the case as it sees fit.
Alabama Education Association v. State Superintendent of Education, 665 F.3d 1234,
1238-39 (11th Cir. 2011) (Dubina, C.J.).12
12

The other judges comprising the panel are Emmett Ripley Cox, Senior Circuit Judge, and

13

The Circuit opinion on interlocutory appeal also narrowed this court’s
injunction, and permitted the State to enforce Act No. 761, but only to the extent that
it restricted payroll deductions for organizations engaged in “electioneering
activities.” Id. at 10-12. That part of the Circuit opinion was based upon the Supreme
Court’s decision in Ysursa v. Pocatello Education Association, 555 U.S. 353 (2009),
holding that a properly conceived ban on salary deductions to organizations engaged
in electioneering activities would be constitutional. The Eleventh Circuit opinion
summarized the Ysursa holding as follows:
In Ysursa, public employee unions challenged an Idaho state law ban on
political payroll deductions as a violation of the First Amendment. The
Court began by reiterating that the First Amendment “protects the right
to be free from government abridgment of speech. While in some
contexts the government must accommodate expression, it is not
required to assist others in funding the expression of particular ideas,
including political ones.” Id. at 358, 129 S. Ct. at 1098; Regan v.
Taxation with Representation of Wash., 461 U.S. 540, 549, 103 S. Ct.
1997, 2003, 76 L. Ed. 2d 129 (1983) (“[A] legislature’s decision not to
subsidize the exercise of a fundamental right does not infringe the right,
and thus is not subject to strict scrutiny.”). The Court accepted that the
unions challenging Idaho’s law faced substantial difficulties in collecting
funds for their political speech without the assistance of the state through
salary deductions. However, this fact posed no difficulty for the Court,
which concluded,
While publicly administered payroll deductions for political
purposes can enhance the unions’ exercise of First
Amendment rights, Idaho is under no obligation to aid the
Willis B. Hunt Jr., United States District Judge for the Northern District of Georgia, sitting by
designation.

14

unions in their political activities. And the State’s decision
not to do so is not an abridgment of the unions’ speech;
they are free to engage in such speech as they see fit. They
simply are barred from enlisting the State in support of that
endeavor.
Ysursa, 555 U.S. at 359, 129 S. Ct. at 1098. The Court then held,
“Idaho’s decision to limit public employer payroll deductions as it has
is not subject to strict scrutiny under the First Amendment.” Id. (internal
citations and quotation marks omitted). Instead, “[g]iven that the State
has not infringed the unions’ First Amendment rights, the State need
only demonstrate a rational basis to justify the ban on political payroll
deductions.” Id. The Supreme Court concluded that the payroll
deduction ban met the rational basis test. It wrote,
The concern that political payroll deductions might be seen
as involving public employers in politics arises only
because Idaho permits public employer payroll deductions
in the first place . . . . [T]he State’s response to that
problem is limited to its source — in this case, political
payroll deductions. The ban on such deductions plainly
serves the State’s interest in separating public employment
from political activities.
Id. at 361, 129 S. Ct. at 1099.
Thus, the question before this court in the present case turns
entirely on how the Act is interpreted. If it is meant only to reach payroll
deductions for organizations engaged in electioneering activities such as
those targeted by the Idaho statute at issue in Ysursa, then it presents no
constitutional problems. A statute with a broader reach may implicate
First Amendment concerns not explored in Ysursa. . . .
Alabama Education Association, 665 F.3d at 1237-38 (alterations in original)
(footnote omitted).

15

F.

Subsequent Disposition of Claims Not Addressed in the Prior Opinion
This court recently narrowed the claims that were not addressed in the opinion

granting preliminary injunctive relief. All claims against the current Governor of
Alabama, Dr. Robert J. Bentley, M.D., were dismissed without prejudice on August
22, 2012.13 The same opinion dismissed with prejudice all claims against any
defendant that were based upon the Equal Protection Clause of the Fourteenth
Amendment, as well as plaintiffs’ claims for so-called “viewpoint discrimination” and
“unconstitutional conditions.”14
The ruling that led to the events forming the basis of the present motions to
quash, however, was this court’s determination that plaintiffs’ First Amendment
retaliation claim should not be dismissed.15
13

See doc. no. 126 (Memorandum Opinion and Order), at 82-84 and 100 (“Pursuant to the
consent of both the AEA and the IAFF plaintiffs, all claims asserted against Governor Robert
Bentley are due to be, and hereby are, DISMISSED without prejudice.”). Dr. Bentley assumed the
Governor’s office on January 17, 2011, after the events leading to the enactment of Act No. 761.
Governor Bentley argued that, because plaintiffs failed to identify any specific connection between
him and enforcement of the Act, plaintiffs had in effect sued the State of Alabama, which is immune
from the claims asserted in both actions. Plaintiffs did not contest Governor Bentley’s motion to
dismiss. See doc. no. 75 (AEA’s Response to Governor Bentley’s Motion to Dismiss), at 1 (“The
plaintiffs have no objection to the granting of Governor Bentley’s motion to dismiss.”); and doc. no.
109 (ASEA’s Response to Governor Bentley’s Incorporation of the Motions to Dismiss Against the
Plaintiff Intervenors), at 1-2 (“As with AEA and A-VOTE, ASEA has no objection to the granting
of Governor Bentley’s Motion to Dismiss.”).
14

See doc. no. 126 (Memorandum Opinion and Order), at 56-60 (discussion of “viewpoint
discrimination” claims), 78-80 (discussion of “unconstitutional conditions” claims), and 100 (orders
dismissing the foregoing claims with prejudice).
15

Id. at 60-78 (discussion of the motions to dismiss the First Amendment retaliation claim),
and 100-01 (overruling the motions to dismiss that claim).

16

1.

First Amendment Retaliation Claim

It is well established that governmental actions that do not violate the
Constitution on their face may, nevertheless, become actionable constitutional “torts”
if it is demonstrated that the contested acts were motivated in substantial part by a
desire to punish an individual or group for the exercise of a constitutional right. See,
e.g., Perry v. Sindermann, 408 U.S. 593, 597 (1972) (“[I]f the government could deny
a benefit to a person because of his constitutionally protected speech or associations,
his exercise of those freedoms would in effect be penalized and inhibited.”).16
Thus, a cause of action may arise from the curtailment or elimination of a
governmental benefit in retaliation for a plaintiff’s exercise of First Amendment
rights. See, e.g., Georgia Association of Educators v. Gwinnett County School
District, 856 F.2d 142, 144-45 (11th Cir. 1986) (recognizing a First Amendment
retaliation claim based upon materially similar facts: i.e., the termination of a payroll
deduction service for three teachers’ associations based upon an alleged desire to
destroy the local teachers’ union in retaliation for the union’s exercise of First
Amendment rights) (citing Perry, 408 U.S. at 597).

16

See also, e.g., Crawford-El v. Britton, 523 U.S. 574 (1998) (holding that the act of
intentionally depriving an inmate of his personal belongings may serve as the basis for a claim of
retaliation for his exercise of First Amendment rights); Board of County Commissioners, Wabaunsee
County v. Umbehr, 518 U.S. 668 (1996) (nonrenewal of plaintiff’s government contract in retaliation
for his exercise of free speech is actionable).

17

The policy rationale for the recognition of a cause of action for governmental
acts motivated in substantial part by a desire to punish an individual or group for the
exercise of First Amendment rights was succinctly stated by the Supreme Court in
Hartman v. Moore, 547 U.S. 250 (2006), where the Court held: “Official reprisal for
protected speech ‘offends the Constitution [because] it threatens to inhibit exercise of
the protected right.’” Id. at 256 (quoting Crawford-El v. Britton, 523 U.S. 574, 588
n.10 (1998)) (alteration in original).
a.

Prima facie elements of a First Amendment retaliation claim

The Eleventh Circuit defined the elements of a prima facie First Amendment
retaliation claim in Castle v. Appalachian Technical College, 631 F.3d 1194 (11th Cir.
2011), holding that a plaintiff must show that: “(1) her speech was constitutionally
protected; (2) she suffered adverse conduct that would likely deter a person of
ordinary firmness from engaging in such speech; and (3) there was a causal
relationship between the adverse conduct and the protected speech.” Id. at 1197
(citing Bennett v. Hendrix, 423 F.3d 1247, 1250 (11th Cir. 2005)). “In order to
establish a causal connection, the plaintiff must show that the defendant was
subjectively motivated to take the adverse action because of the protected speech.”
Keeton v. Anderson-Wiley, 664 F.3d 865, 878 (11th Cir. 2011) (quoting Castle, 631
F.3d at 1197).
18

b.

The basis for plaintiffs’ First Amendment retaliation claim

In substance, plaintiffs allege that AEA had a long history of expressing and
advocating political viewpoints opposed by Alabama elected officials affiliated with
the Republican Party. That difference of opinion and policy continued into and
intensified during the two terms of the Riley Administration,17 as seen by, among
other disputes, AEA’s act of lobbying for a cloture vote on then-State Senator Bradley
Byrne’s filibuster of a teacher tenure bill, and AEA’s opposition to Governor Riley’s
2007 nomination of Byrne for Chancellor of the Alabama Department of
Postsecondary Education.18 Further, and according to plaintiffs:
In late 2009 and early 2010, Governor Riley criticized AEA for its
opposition to legislation authorizing charter schools. And, in 2010, AEA
and Riley clashed over a State Board of Education policy prohibiting
two-year college system employees from serving in the state legislature.
Riley (then serving as both Governor of Alabama and ex officio
President of the State Board of Education) and Bradley Byrne (whom
Riley had appointed to be Chancellor of DPE) both supported the policy.
AEA vocally opposed that policy, and brought a lawsuit to invalidate it.19

The conflict between plaintiffs and Governor Riley came to a head during the
2010 election cycle, when AEA and A-VOTE spent a great deal of money in the
Republican primary to thwart Bradley Byrne’s attempt to become Riley’s successor
17

Robert R. “(Bob”) Riley served two consecutive, four-year terms as Governor of the State
of Alabama, from Jan. 20, 2003 to Jan. 17, 2011.
18

See, e.g., doc. no. 1 (Complaint) ¶ 35.

19

Id.

19

as Governor. As a result, a dark-horse candidate, Dr. Robert J. Bentley, M.D., a
retired dermatologist from Tuscaloosa who had served two terms in the Alabama
House of Representatives (2002 to 2010), surprised political analysts by finishing
second in the June 1, 2010 primary election, and forcing a run-off with Byrne.20 On
June 26, 2010, during the run-up to the July 13th run-off election, Riley stated that
“we do not support the AEA and we don’t want ‘em in our primary and we don’t want
anyone that wants ‘em in our primary.”21 Only two days later, his administration
ended the decades-old policy of making payroll deductions for public employee
contributions to political action committees:
On June 28, 2010 — two days after Governor Riley stated his
desire that AEA stay out of the Republican primary — Alabama
Comptroller Thomas White announced to all state departments, agencies
and personnel officers that “Payroll deductions for Political Action
Committees (PACs) will no longer be withheld from employees’ pay
effective July 1, 2010.” Comptroller White subsequently amended the
Fiscal Policy and Procedures Manual — which had expressly authorized
payroll deductions for PAC contributions — to omit any mention of
PACs as recipients of voluntary contributions. The Comptroller
purported to have come to the view that, even though such requests had
been honored and effectuated for decades, longstanding statutory
authority — in particular, the provision of Ala. Code § 17-17-5
prohibiting public employees from “us[ing] any state, county, or city
funds, property, or time, for any political activities” — made it unlawful
20

Out of a field of seven candidates, Byrne ran first with 137,349 votes (27.9% of all votes
cast), followed by Bentley with 123,870 votes (25.2% of the total), and Tim James with 123,662
votes (25.1%). See http://www.sos.state.al.us/elections/2010/electionInfo2010.aspx.
21

Doc. no. 1 (Complaint) ¶ 39. See also, e.g., www.youtube.com/watch?v=LaXwNIp34qg
(videotape recording of a portion of Governor Riley’s remarks at the GOP Summer Dinner).

20

for the State to comply with such payroll deduction requests.22
Governor Riley issued a press release taking credit for the change: e.g., “the Riley
Administration stopped payroll deductions . . . .”23
Despite Riley’s public endorsement of Byrne prior to the primary run-off
election,24 Dr. Bentley handily defeated his opponent with 56% of the votes cast, and
claimed the Republican nomination. He went on to defeat the nominee of the
Democratic Party in the November 2, 2010 general election by a margin of 230,000
votes: just over 58% of the total number cast.
Of greater significance, however, is the fact that, during the 2010 general
election, Republicans gained firm control of both chambers of the Alabama
Legislature for the first time in 136 years.25 According to plaintiffs, the “new
22

Doc. no. 1 (Complaint) ¶ 40 (alteration in original).

23

Id. ¶ 41.

24

See, e.g., David Catanese, Riley lines up behind Byrne, Politico (July 9, 2010, 4:05 p.m.
EST), http://dyn.politico.com/news/stories/0710/39543.html.
25

Republican candidates won 21 of 35 seats in the Alabama Senate, and 63 of 105 seats in
the Alabama House of Representatives during the November 2010 general election. See, e.g., www.
legislature.state.al.us. Republicans previously controlled Alabama government only during a brief
period following the Civil War and the end of “Presidential Reconstruction,” and the general
election of 1874, when candidates affiliated with the so-called “Conservative and Democratic Party”
“redeemed” control of State government from the “Radical Republicans,” a political coalition among
Northern Carpetbaggers, Southern Scallywags, and a handful of recently-freed slaves. The adjective
“radical” was used to describe those white, Northern Republican officeholders who had most
strongly opposed slavery prior to and during the Civil War; who distrusted former Confederate
Army officers and those who had held political offices in the former Confederate States; who
believed that harsh and punitive policies were required to punish those who had led the nation into
civil war, and to “Reconstruct” the South; who demanded civil and political rights for the recentlyfreed slaves; and who understood that the moral redemption and future prosperity of the South were

21

Republican majority consist[ed] almost exclusively of legislators that AEA and
A-VOTE failed to support or actively opposed during the 2010 election campaign.”26
Further, even though Alabama legislators assume office the day after they are
elected,27 they normally do not convene in Montgomery until the first Tuesday in
March of the following year.28 Thus, when Governor Riley “took the extraordinary
step” on December 1, 2010 of issuing a “call” for a special session of the newlyelected legislature to convene on December 8th,29 it gave him a “small window of
opportunity”30 to end his two terms in office with the enactment of “the most stringent
ethics law in the country.”31
Plaintiffs assert that Republican lawmakers involved in the enactment of Act
No. 761 shared Governor Riley’s animus against AEA:

dependent upon the education and elevation of the former slaves.
26

Doc. no. 1 (Complaint) ¶ 43 (alteration supplied).

27

See Ala. Const., art. IV, § 46(a), 2d sent. (1901) (“The terms of office of the senators and
representatives shall commence on the day after the general election at which they are elected. . .
.”).
28

See Ala. Code § 29-1-4 (1975) (2003 Replacement Vol.). See also http://www.legislature.
state.al.us/misc/visitorsguide/visitorsguide.html#anchor985286.
29

Doc. no. 1 (Complaint) ¶ 45.

30

Cameron McWhirter, “Alabama Seeks Ethics Overhaul,” The Wall Street Journal (Nov.
15, 2010) (“Now, with winning legislators taking office immediately and his own party in charge,
Gov. Riley says he’s winding down his eight years in office by using a ‘small window of
opportunity’ to take action before budget debates consume political discussion.”), at
http://online.wsj.com/article/SB10001424052748704865704575610730582946158.html.
31

Kim Chandler, “Gov. Riley calls for special session on ethics reform for Alabama
government,” at http://blog.al.com/spotnews (posted Dec. 1, 2010).

22

47. On December 10, 2010, Senator Marsh [President Pro
Tempore of the upper house] introduced in the Alabama Senate a bill to
prohibit public employees from “arrang[ing] by salary deduction or
otherwise” for the payment of “dues for any membership organization
which engages, directly or indirectly, in political activity” as well as to
prohibit public employees from “arrang[ing] by salary deduction or
otherwise” for the payment of PAC contributions.
48. On information and belief, defeated gubernatorial candidate
Byrne participated in the drafting of the legislation and heavily lobbied
Republican lawmakers to support it. Indeed, Byrne lobbied legislators
on the floor of the legislature while the legislation was being debated.
49. On information and belief, a majority of the members of the
new legislature share then-Governor Riley’s antipathy toward the
political activities of AEA and A-VOTE, and/or were recruited by
then-Governor Riley and/or his supporters to support the Riley
Administration’s campaign against those activities through legislation.32
Plaintiffs also contend that the Act will reduce AEA’s membership and A-VOTE’s
funding, thereby diminishing their future ability to engage in protected speech.33
In summary, AEA and A-VOTE allege sufficient facts to show that they
engaged in constitutionally protected speech during the 2010 Alabama Republican
gubernatorial primary; that Governor Riley and members of his administration
expressed animosity towards plaintiffs’ political speech; and that those individuals
played a critical role in the enactment of Act No. 761 shortly after plaintiffs utilized
their protected speech to influence the selection of the Republican Party’s nominee for
32

Doc. no. 1 (Complaint) ¶¶ 48-49 (first alteration supplied, all other alterations in original).

33

Id. ¶ 75.

23

the office of Governor.
Moreover, plaintiffs allege sufficient facts from which an inference can be
drawn that a majority of the Republican members of the Alabama legislature who had
been elected in the 2010 general election harbored an animus against AEA and AVOTE due to their protected speech.
For all of those reasons, this court allowed plaintiffs’ claim for First
Amendment retaliation to survive defendants’ motions to dismiss.34
G.

The Contested Subpoenas
The need for the present opinion grew from plaintiffs’ act of serving subpoenas

duces tecum on Governor Bentley, former Governor Riley, Alabama Senate President
Pro Tempore Del Marsh, and Speaker of the Alabama House of Representatives Mike
Hubbard (collectively, “the Officials”). The subpoenas ask for the production of
documents and communications that may show a causal relationship between
plaintiffs’ political speech during the 2010 Republican Party primary, and Act No.
761’s termination of the payroll deduction service that had been a part of Alabama law
since at least 1973. Specifically, plaintiffs request production of six categories of
documents:
1. Produce each document in your possession or control which
explains the requirements of Alabama Act 2010-761, including any
34

See doc. no. 126 (Memorandum Opinion and Order), at 60-78.

24

cover letter showing the person or agency sending you the document or
to whom you sent the document.
2. Produce each document in your possession or control which is
a draft of (or proposal for) any legislative bill, proposed rule, or
proposed regulation to prohibit or restrict payroll deductions of dues or
contributions to the Alabama Education Association, the Alabama State
Employees Association, any other organization composed primarily of
state or local government employees, or any political action committee
associated with any of the foregoing; and any document showing the
person or persons who drafted the bill or proposal.
3. Produce each communication (including emails) of which you
were the sender or a recipient and which related to or concerned Senate
Bill 2 in the 2010 Special Session of the Alabama Legislature.[35]
4. Produce each document or communication (including emails)
in your possession or control with a known or apparent creation date in
2009 or 2010 and which related to or concerned Alabama Education
Association, A-Vote, the Alabama State Employees Association,
SEA-PAC, Dr. Paul Hubbert, Dr. Joe Reed, or Edwin “Mac” McArthur.
5. Produce each document or communication (including emails)
received from the office of Gov. Bob Riley, the Comptroller, or the
Finance Director and which related to or concerned any proposal to stop
the collection of dues for membership organizations through payroll
deduction.
6. Produce each document or communication (including emails)
received from the office of Gov. Bob Riley, the Comptroller, or the
Finance Director and which related to or concerned any proposal to stop
the collection of contributions to political organizations through payroll
deduction.36
35

Senate Bill 2 became Act No. 761.
2010_special_summaries.html.
36

See, e.g., http://lrs.state.al.us/publications/

Doc. no. 104-1 (Motion to Quash Subpoenas Directed to Speaker Hubbard, President Pro
Tempore Marsh, and Former Governor Riley, and to Stay All Discovery Pending Resolution of the

25

H.

The Motions to Quash and the Privileges Relied Upon
Motions to quash plaintiffs’ subpoenas were filed on behalf of the Officials.37

The motions contend that the subpoenas seek information protected from disclosure
by the privileges discussed in the following subsections.38
1.

Executive privilege

“Executive privilege”39 refers to a doctrine under which “documents from a
former or an incumbent President [or, arguably, the chief executive of a state
government] are presumptively privileged.” United States v. Poindexter, 727 F. Supp.
1501, 1505 (D. D.C. 1989) (citing United States v. Nixon, 418 U.S. 683, 708-13
(1974)) (alteration supplied).40 The privilege recognizes “the paramount necessity of
Defendants’ Motions to Dismiss by Alabama House of Representatives Speaker Mike Hubbard,
Alabama Senate President Pro Tempore Del Marsh, and the Bice Defendants), Exhibit “A,” at 33
(Attachment F) (alteration supplied).
The phrasing of the request for documents in the possession of Governor Bentley is not
identical to the language quoted in the text accompanying this footnote, but it is substantially the
same. Compare id. with doc. no. 104-2, Exhibit “B,” at 3-4.
37

See doc. no. 104 (Motion to Quash Subpoenas Directed to Speaker Hubbard, President Pro
Tempore Marsh, and Former Governor Riley, and to Stay All Discovery Pending Resolution of the
Defendants’ Motions to Dismiss by Alabama House of Representatives Speaker Mike Hubbard,
Alabama Senate President Pro Tempore Del Marsh, and the Bice Defendants); doc. no. 106 (Motion
to Quash Subpoena by Former Governor Riley); and doc. no. 127 (Motion to Quash Subpoena by
Governor Bentley).
38

In addition to the privileges discussed hereafter, Governor Bentley argued that the
subpoenaed documents are protected by the “attorney-client” and “work-product” privileges. See
doc. no. 127, at 2-3.
39

See doc. no. 104, at 1-2; doc. no. 106, at 1 (incorporating by reference the arguments in
doc. no. 104); and doc. no. 127, at 2-3 (same).
40

Just as the President is the head of the executive branch of the United States government,
so a Governor is the head of the executive branch of a state government. Thus, extending the

26

protecting the Executive Branch from vexatious litigation that might distract it from
the energetic performance of its constitutional duties.” Cheney v. United States
District Court for the District of Columbia, 542 U.S. 367, 382 (2004) (citing Nixon,
418 U.S. at 715).
Any claim of executive privilege implicates three non-harmonious interests:
(1) “the undeniable interest of the executive branch of government in maintaining
confidentiality over certain types of information necessary for the performance of its
constitutional duties”; (2) “the unquestionable interest of the litigant in seeking
information for the just resolution of the legal dispute”; and (3) “the perplexing
separation of powers question that is lurking in the background.” Assured Investors

executive privilege to the current and former Governors of Alabama serves the interest of
maintaining the separation of powers between the executive and judicial branches of government.
See Thomas v. Cate, 715 F. Supp. 2d 1012 (E.D. Cal. 2010); Wilson v. Brown, 404 N.J. Super. 557,
563-64 (App. Div. 2009) (both applying the executive privilege to discovery sought from
Governors).
It may also serve the purpose of insulating a state government from federal intervention. See
generally Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 102 (1984). In Pennhurst,
the Supreme Court held that a suit against state officials may be functionally equivalent to a suit
against the state served by those officials, “if ‘the judgment sought would expend itself on the public
treasury or domain, or interfere with the public administration,’ or if the effect of the judgment
would be ‘to restrain the [Pennsylvania] Government from acting, or to compel it to act.’” Id. at 102
(citing Dugan v. Rank, 372 U.S. 609, 620 (1963)) (alteration supplied). Even though there are no
claims pending against any of the four current and former Alabama officials upon whom plaintiffs
have served the subject subpoenas, plaintiffs are seeking documentary evidence that may support
their challenge to Act No. 761. Thus, there is at least a colorable argument that state sovereignty
is “in play.” See doc. no. 104 (Motion to Quash Subpoenas Directed to Speaker Hubbard, President
Pro Tempore Marsh, and Former Governor Riley, and to Stay All Discovery Pending Resolution
of the Defendants’ Motions to Dismiss by Alabama House of Representatives Speaker Mike
Hubbard, Alabama Senate President Pro Tempore Del Marsh, and the Bice Defendants), at 15.

27

Life Insurance Co. v. National Union Associates, Inc., 362 So. 2d 228, 233 (Ala.
1978), overruled on unrelated grounds by Ex parte Norfolk Southern Railroad Co.,
897 So. 2d 290, 295 (Ala. 2004) (citing United States ex rel. Jackson v. Petrilli, 63
F.R.D. 152 (N.D. Ill.1974)). Given that mix of conflicting interests,
claims of executive privilege, like other evidentiary privileges, must be
narrowly construed so as to permit the broadest possible discovery
otherwise allowed under the Rules. 35 C.J.S. Federal Civil Procedure
§ 709. The governmental interest in favor of maintaining confidentiality
under the cloak of privilege must be tempered by the historical function
of the courts to provide compulsory process for the production of
material needed for a just determination of the legal dispute.
Assured Investors, 362 So. 2d at 233 (citing Jabara v. Kelley, 75 F.R.D. 475 (E.D.
Mich. 1977); Equal Employment Opportunity Commission v. Los Alamos
Constructors, Inc., 382 F. Supp. 1373 (D. N.M.1974); Wood v. Strickland, 420 U.S.
308, 317 (1975); Glick v. McKesson & Robbins, Inc., 10 F.R.D. 477 (W.D. Mo. 1950);
35A C.J.S. Federal Civil Procedure § 738).
2.

Legislative immunity and legislative privilege

The Officials also urge this court to quash the subpoenas based on the doctrine
of “legislative immunity,”41 which grants state legislators “common law immunity
41

See doc. no. 104 (Motion to Quash Subpoenas Directed to Speaker Hubbard, President Pro
Tempore Marsh, and Former Governor Riley, and to Stay All Discovery Pending Resolution of the
Defendants’ Motions to Dismiss by Alabama House of Representatives Speaker Mike Hubbard,
Alabama Senate President Pro Tempore Del Marsh, and the Bice Defendants), at 1-2; doc. no. 106
(Motion to Quash Subpoena by Former Governor Riley), at 1 (incorporating by reference the
arguments in doc. no. 104); and doc. no. 127 (Motion to Quash Subpoena by Governor Bentley), at
2-3 (same) (emphasis supplied).

28

from liability for their legislative acts.” Scott v. Taylor, 405 F.3d 1251, 1254 (11th
Cir. 2005) (emphasis supplied).42 In order to effectuate its purpose of freeing state
legislators from the “worries and distractions” of a lawsuit, legislative immunity
applies regardless of the legislators’ subjective motivations, regardless of whether the
legislators are sued in their individual or official capacities, and regardless of whether
the plaintiffs seek a retroactive or prospective form of relief. Id. at 1256-57.
Of course, the Officials on whose behalf motions to quash the subpoenas have
been filed are not, in fact, being sued. Even when the doctrine of legislative immunity
applies, state legislators still may be “required to supply evidence in a federal civil
case where, like the instant case, there is no threat of personal liability.” Doe v.
Nebraska, 788 F. Supp. 2d 975, 984 n.2 (D. Neb. 2011) (interpreting Tenney v.
Brandhove, 341 U.S. 367 (1951)). Specifically, they “may be protected from
testifying, but are not necessarily exempted from producing documents.” Id. at 984
(citing Small v. Hunt, 152 F.R.D. 509, 513 (E.D. N.C. 1994); Marylanders for Fair
Representation, Inc. v. Schaefer, 144 F.R.D. 292, 302 n. 20 (D. Md. 1992)).
Accordingly, the Officials supplement their discussion of legislative immunity

42

Despite the implication of its name, the doctrine of “legislative immunity” protects
members of the executive branch as well as the legislative branch. See Women’s Emergency
Network v. Bush, 323 F.3d 937, 950 (11th Cir. 2003) (applying legislative immunity to the Governor
of Florida).

29

with a discussion of a related doctrine called “legislative privilege,”43 which applies
to protect legislators from the compulsory production of “evidence or testimony about
all ‘acts that occur in the regular course of the legislative process.’” Corporacion
Insular de Seguros v. Garcia, 709 F. Supp. 288, 292 (D. P.R. 1989) (quoting U.S. v.
Brewster, 408 U.S. 501, 525 (1972)). The doctrine of “legislative privilege” is an
emanation of the Speech or Debate Clause of the United States Constitution and, as
such, it “exists to safeguard . . . legislative immunity and to further encourage the
republican values it promotes.” Equal Employment Opportunity Commission v.
Washington Suburban Sanitary Commission, 631 F.3d 174, 181 (4th Cir. 2011) (citing
Burtnick v. McLean, 76 F.3d 611, 613 (4th Cir. 1996)).
In spite of the importance of those interests, the legislative privilege is not
absolute, and “may be overridden in circumstances where ‘reason and experience’
suggest that the claim of privilege should not be honored.” Rodriguez v. Pataki, 280
F. Supp. 2d 89, 99-100 (S.D. N.Y. 2003) (citing Fed. R. Evid. 501; Manzi v. DiCarlo,
982 F. Supp. 125, 131 (E.D. N.Y. 1997)). Thus, courts must “‘balance the various
competing interests’ to determine whether to apply the . . . legislative privilege to

43

See doc. no. 104 (Motion to Quash Subpoenas Directed to Speaker Hubbard, President
Pro Tempore Marsh, and Former Governor Riley, and to Stay All Discovery Pending Resolution
of the Defendants’ Motions to Dismiss by Alabama House of Representatives Speaker Mike
Hubbard, Alabama Senate President Pro Tempore Del Marsh, and the Bice Defendants), at, e.g., 8,
12 (emphasis supplied).

30

shield the legislature’s documents from discovery.” Rodriguez, 280 F. Supp. 2d at
99-100 (quoting Manzi, 982 F. Supp. at 131). When doing so, “any confidential
privilege for legislators must be ‘narrowly tailored.’” Manzi, 982 F. Supp. at 130
(quoting In re Grand Jury, 821 F.2d 946, 959 (3d Cir. 1987)).
3.

Deliberative process privileges

The motions to quash also assert the so-called “deliberative process privilege,”44
which actually constitutes two related privileges: i.e., the “executive deliberative
process privilege,” a subcategory of the executive privilege; and the “legislative
deliberative process privilege,” a subcategory of the legislative privilege.
a.

Executive deliberative process privilege

The executive deliberative process privilege “rests on the obvious realization
that officials will not communicate candidly among themselves if each remark is a
potential item of discovery and front page news.” Department of Interior v. Klamath
Water Users Protective Association, 532 U.S. 1, 8-9 (2001) (citing Environmental
Protection Agency v. Mink, 410 U.S. 73, 86-87 (1973); United States v. Weber
Aircraft Corp., 465 U.S. 792, 802 (1984)). Thus, the privilege serves the purpose of
enhancing the quality of decisions by “protecting open and frank discussion among

44

See id. at 1-2; doc. no. 106 (Motion to Quash Subpoena by Former Governor Riley), at 1
(incorporating by reference the arguments in doc. no. 104); and doc. no. 127 (Motion to Quash
Subpoena by Governor Bentley), at 2-3 (same).

31

those who make them within the Government.” Id. (citing National Labor Relations
Board v. Sears, Roebuck & Co., 421 U.S. 132, 151 (1975)).
The executive deliberative process privilege “covers documents reflecting
advisory opinions, recommendations and deliberations comprising part of a process
by which governmental decisions and policies are formulated.” Alabama v. Abbott
Laboratories, Inc., No. 08-3429, 2009 U.S. Dist. LEXIS 20379, *5 (M.D. Ala. Mar.
13, 2009) (quoting Klamath Water Users, 532 U.S. at 8). As a result,
[t]wo requirements must be met for the deliberative process privilege to
apply. First, the material must be pre-decisional, i.e., “prepared in order
to assist an agency decision maker in arriving at his decision.”
Renegotiation Bd. v. Grumman Aircraft Engineering Corp., 421 U.S.
168, 184, 95 S. Ct. 1491, 44 L. Ed. 2d 57 (1975); Nadler v. U.S. Dep’t
of Justice, 955 F.2d 1479, 1490-91 (11th Cir. 1992) abrogated on
unrelated grounds, U.S. Dep’t of Justice v. Landano, 508 U.S. 165, 170,
113 S. Ct. 2014, 124 L. Ed. 2d 84, (1993). Second, it must be
deliberative, “a direct part of the deliberative process in that it makes
recommendations or expresses opinions on legal or policy matters.”
Nadler, 955 F.2d at 1490-91. Even factual material contained in a
“deliberative” document may be withheld pursuant to the privilege where
disclosure of the factual material would reveal the deliberative process
or where the factual material is so inextricably intertwined with the
deliberative material that meaningful segregation is not possible. Id., at
1490.
Abbott Laboratories, 2009 U.S. Dist. LEXIS 20379 at *6-7 (alteration and emphasis
supplied).
Nevertheless, the executive deliberative process privilege “is a qualified

32

privilege which may be overcome upon a showing that the adverse party’s need for
disclosure outweighs the interest in confidentiality.” Rodriguez v. Pataki, 280 F.
Supp. 2d 89, 98 (S.D. N.Y. 2003). When weighing the interests protected by the
privilege against the adverse party’s need for disclosure, the leading considerations
include the following five factors:
(i) the relevance of the evidence sought to be protected; (ii) the
availability of other evidence, see, e.g., Carl Zeiss Stiftung v. V. E. B.
Carl Zeiss, Jena, 40 F.R.D. 318, 331 (D. D.C. 1966), aff’d. on opinion
below, 128 U.S. App. D.C. 10, 384 F.2d 979, cert. denied, 389 U.S. 952,
88 S. Ct. 334, 19 L. Ed. 2d 361 (1967); (iii) the “seriousness” of the
litigation and the issues involved, see, e.g., Freeman v. Seligson, 132
U.S. App. D.C. 56, 60, 405 F.2d 1326, 1340 (D.C. Cir. 1968); (iv) the
role of the government in the litigation, see, e.g., Carl Zeiss Stiftung, 40
F.R.D. at 329; Bank of Dearborn v. Saxon, 244 F. Supp. 394, 401-03
(E.D. Mich.1965), aff’d., 377 F.2d 496 (6th Cir. 1967); and (v) the
possibility of future timidity by government employees who will be
forced to recognize that their secrets are violable.
In re Franklin National Bank Securities Litigation, 478 F. Supp. 577, 583 (E.D. N.Y.
1979).
b.

Legislative deliberative process privilege

The “deliberative process privilege . . . is more typically asserted in cases which
challenge the decisions of administrative agencies.” Rodriguez v. Pataki, 280 F.
Supp. 2d 89, 97-98 (S.D. N.Y. 2003). Even so, some courts have also extended that
privilege to protect the deliberative processes of local legislators. See, e.g., North

33

Pacifica, L.L.C. v. City of Pacifica, 274 F. Supp. 2d 1118, 1121 (N.D. Cal. 2003).
When doing so, those courts have reasoned that the deliberative process privilege for
executive officials “provides a useful analogy for a confidentiality-based privilege for
state legislators because executive agencies, like state legislators, engage in a wide
variety of activities, including factual investigations for quasi-legislative rulemaking.”
In re Grand Jury, 821 F.2d 946, 958-59 (3d Cir. 1987).
Thus, “in terms of the alleged need for secrecy surrounding deliberations, there
is no principled distinction” between state legislators and executive officials. United
States v. Irvin, 127 F.R.D. 169, 172 (C.D. Cal. 1989). Like the executive deliberative
process privilege, the legislative deliberative process privilege protects “only
documents which are pre-decisional, deliberative and reflect the subjective intent of
the legislators.” See Doe v. Nebraska, 788 F. Supp. 2d 975, 985 (D. Neb. 2011)
(citing Qamhiyah v. Iowa State University, 245 F.R.D. 393, 396 (S.D. Iowa 2007)).45
However, it does not protect “documents containing factually based information used

45

Even though the Abbott Labs test for the executive deliberative process privilege discussed
in the previous section lists only the first two prongs of the Doe test for the legislative deliberative
process privilege (i.e., that documents are protected only if they are both pre-decisional and
deliberative), it appears that the definition of “deliberative” from Abbott Labs incorporates the third
prong of Doe (i.e., that protected documents must reflect the subjective intent of legislators).
Compare Abbott Labs, 2009 U.S. Dist. LEXIS 20379, at *5 (describing a deliberative document as
one that is “a direct part of the deliberative process in that it makes recommendations or expresses
opinions on legal or policy matters”) (emphasis supplied) (quoting Nadler, 955 F.2d at 1490-91)
with Doe, 788 F. Supp. 2d at 985 (requiring protected documents to “reflect the subjective intent of
the legislators”) (emphasis supplied).

34

in the decision-making process or disseminated to legislators or committees, such as
committee reports and minutes of meetings.” Doe, 788 F. Supp. 2d at 984-85.
Likewise, it does not protect documents “shared with non-legislative members.” Id.
at 987.
Further, and even though the purposes and applications of the executive and
legislative deliberative process privileges are similar, there may be valid policy
reasons for construing the legislative deliberative process privilege more narrowly.
See Rodriguez, 280 F. Supp. 2d at 98; Manzi v. Dicarlo, 982 F. Supp. 125, 130 (E.D.
N.Y. 1997); Corporacion Insular de Seguros v. Garcia, 709 F. Supp. 288, 298 (D.
P.R. 1989). In Corporacion Insular, for example, the court reasoned that legislators
are part of the governmental branch that historically has been subjected
to the greatest degree of public accountability. There are too many
potentially detrimental ramifications to applying a confidentiality-based
privilege to a governmental body that should continually remain open to
the legitimate scrutiny of its constituents. Legislators should be
protected from overreaching and intimidation by other branches of
government and possibly from abusive or disruptive public intrusion but
we refuse to swaddle them in a cocoon of secrecy for acts that go to the
core of our democratic processes.
Id. at 298. Moreover,
the cases discussing both the legislative and deliberate process privileges
make clear that these protections are only “qualified.” Accordingly,
either privilege may be overridden in circumstances where “reason and
experience” suggest that the claim of privilege should not be honored.
See Fed. R. Evid. 501; Manzi v. DiCarlo, 982 F. Supp. 125, 131 (E.D.
35

N.Y. 1997) (indicating that the court needs to “balance the various
competing interests” to determine whether to apply the deliberative
process or state legislative privilege to shield the legislature’s documents
from discovery).
Rodriguez, 280 F. Supp. 2d at 99-100.
Thus, even when a certain legislative record or document appears to fall under
the privilege, “protection from production is not a given.” Doe, 788 F. Supp. 2d at
985. Instead, courts should balance four considerations: “(1) the relevance of the
evidence; (2) the availability of other evidence; (3) the government’s role in the
litigation; and (4) the extent to which disclosure would hinder frank and independent
discussion regarding contemplated policies and decisions.” Id. (citing Qamhiyah, 245
F.R.D. at 396; FTC v. Warner Communications, Inc., 742 F.2d 1156, 1161 (9th Cir.
1984); Rodriguez, 280 F. Supp. 2d at 101).46
c.

The applicability of the deliberative process privileges when
the governmental decision-making process is “the issue” in
the litigation

Neither the executive nor the legislative deliberative process privilege is
available when the governmental decision-making process is, itself, the subject of the

46

Unlike the five-factor Franklin test for the executive deliberative process privilege
discussed at the end of the previous section, the Doe test for the legislative deliberative process
privilege does not list the factor of “the ‘seriousness’ of the litigation and the issues involved.” See
Franklin, 478 F. Supp. at 583. However, both tests are worded in non-exclusive terms. See id.
(listing “some of the factors that assume significance”) (emphasis supplied); Qamhiyah, 245 F.R.D.
at 396 (noting that, “[u]sually[,] four factors weigh in the balance”) (alterations supplied).

36

litigation, or when the purpose of the disclosure is to expose governmental
malfeasance. See, e.g., In re Subpoena Duces Tecum Served on the Office of the
Comptroller of the Currency, 145 F.3d 1422, 1424 (D.C. Cir. 1998); Texaco P.R., Inc.
v. Department of Consumer Affairs, 60 F.3d 867, 885 (1st Cir. 1995); Rodriguez v.
Pataki, 280 F. Supp. 2d 89, 99 (S.D. N.Y. 2003); Corporacion Insular de Seguros v.
Garcia, 709 F. Supp. 288, 292 (D. P.R. 1989); Burka v. New York City Transit
Authority, 110 F.R.D. 660, 667 (S.D. N.Y. 1986).
A number of courts have held that the deliberative process
privilege does not apply in actions where the government’s decision
making is central to the plaintiff’s case. E.g. In re Subpoena Duces
Tecum Served on the Office of the Comptroller of the Currency, 145 F.3d
1422, 1424-25, 330 U.S. App. D.C. 352 (D.C. Cir. 1998); United States
v. Lake County Bd. of Comm’rs, 233 F.R.D. 523, 526 (N.D. Ind. 2005)
(collecting cases). As the Court of Appeals for the District of Columbia
explained in In re Subpoena:
The privilege was fashioned in cases where the
governmental decisionmaking process is collateral to the
plaintiff’s suit. See, e.g., In re Subpoena Served Upon the
Comptroller of the Currency, 296 U.S. App. D.C. 263, 967
F.2d 630 (D.C. Cir. 1992) (shareholders sought
Comptroller’s bank examination reports to prove fraud
charges against corporation); Singer Sewing Machine Co.
v. NLRB, 329 F.2d 200 (4th Cir. 1964) (petitioner wanted
deliberative materials to establish a defense to an unfair
labor practice charge). If the plaintiff’s cause of action is
directed at the government’s intent, however, it makes no
sense to permit the government to use the privilege as a
shield. For instance, it seems rather obvious to us that the
privilege has no place in a Title VII action or in a
37

constitutional claim for discrimination. The Supreme Court
struggled in Crawford-El and Webster with governmental
claims that discovery in such a proceeding should be
limited, but no one in any of these cases ever had the
temerity to suggest that the privilege applied. The
argument is absent in these cases because if either the
Constitution or a statute makes the nature of governmental
officials’ deliberations the issue, the privilege is a
nonsequitur. The central purpose of the privilege is to
foster government decisionmaking by protecting it from the
chill of potential disclosure. See NLRB v. Sears, Roebuck
& Co., 421 U.S. 132, 150, 44 L. Ed. 2d 29, 95 S. Ct. 1504
(1975).
In re Subpoena, 145 F.3d at 1424-25.
Thomas v. Cate, 715 F. Supp. 2d 1012, 1020-21 (E.D. Cal. 2010) (emphasis in
original); see also Rodriguez, 280 F. Supp. 2d at 99 (relying on In re Subpoena, 145
F.3d at 1424, to grant voters’ motions to compel their legislators to produce requested
documents).
Because plaintiffs, in order to support their claim for First Amendment
retaliation, must be able to explore any evidence indicating that defendants, acting
through (among others) the Officials, intended to punish plaintiffs for their political
speech, the governmental decision-making process in the drafting and enactment of
Act No. 761 is “the issue” in this action.
II. DISCUSSION
Historically, courts have been cautious about the creation or extension of
38

privileges because they do not aid in the ascertainment of truth. Those privileges that
have been recognized by federal and state courts generally have been justified on the
basis of protecting “interests or relationships which, rightly or wrongly, are regarded
as of sufficient social importance to justify some incidental sacrifice of sources of
facts needed in the administration of justice.” Ex parte Rudder, 507 So. 2d 411, 414
(Ala. 1987) (Shores, J.) (citing McCormick on Evidence § 72, at 171 (1984)).
It must always be remembered, however, that, “[w]hatever their origins, these
exceptions to the demand for every man’s evidence are not lightly created nor
expansively construed, for they are in derogation of the search for truth.” United
States v. Nixon, 418 U.S. 683, 710 (1974) (alteration supplied) (footnote omitted).47
Indeed, in the case just cited — overriding a sitting President’s claims of executive
privilege and compelling him to comply with a subpoena seeking recordings of his
conversations with aides and advisers — the Supreme Court affirmed that the “need
to develop all relevant facts in the adversary system is both fundamental and
comprehensive. . . . The very integrity of the judicial system and public confidence

47

See also, e.g., Greenpeace v. National Marine Fisheries Service, 198 F.R.D. 540, 543
(W.D. Wash. 2000) (“Like all evidentiary privileges that derogate a court’s inherent power to
compel the production of relevant evidence, the deliberative process privilege is narrowly
construed.”); Kaufman v. City of New York, No. 98-2648, 1999 U.S. Dist. LEXIS 5779, at *11 (S.D.
N.Y. Apr. 22, 1999) (“The [deliberative process] privilege, as it is in derogation of the search for
truth, is not to be expansively construed.”) (alteration supplied); Pacific Gas & Electric Co. v.
United States, 70 Fed. Cl. 128, 133 (2006) (quoting Greenpeace, 198 F.R.D. at 543, and Kaufman,
1999 U.S. Dist. LEXIS 5779, at *11, with approval).

39

in the system depend on full disclosure of all the facts, within the framework of the
rules of evidence.” Id. at 709.48
Moreover, as the discussion in Part I(H) of this opinion demonstrates, none of
the privileges relied upon as the basis for the motions to quash are absolute. Instead,
each is qualified, and subject to a balancing of interests.
A.

The Minimum Requirements for Invoking Governmental Privileges
At least four requirements must be satisfied in order to support a claim of

privilege based upon the doctrines discussed in Part I(H) of this opinion, supra.
[1] The head of the agency claiming the privilege must personally review
the material,[49] [2] there must be “a specific designation and description
of the documents claimed to be privileged,” and [3] there must be
“precise and certain reasons for preserving” the confidentiality of the
48

Even though the Court’s opinion in Nixon addressed subpoenas that had been issued in aid
of a criminal investigation, courts have regularly applied both its holding and rationale to civil cases
in which government officials asserted the deliberative process privilege. See, e.g., Kelly v. San
Jose, 114 F.R.D. 653, 659 (N.D. Cal. 1987) (quoting Nixon, 418 U.S. at 710, for the proposition that,
“[s]ince privileges derogate the search for the truth they are supposed to be narrowly construed”)
(alteration supplied); Resolution Trust Corp. v. Diamond, 773 F. Supp. 597, 604 (S.D. N.Y. 1991)
(quoting Nixon, 418 U.S. at 706, for the proposition that a “broad, undifferentiated . . . generalized
interest in confidentiality is insufficient to assert the deliberative-process privilege”) (internal
quotation marks and citations omitted); Pacific Gas & Electric Co. v. United States, 70 Fed. Cl. 128,
141 (2006) (quoting Nixon, 418 U.S. at 706, for the proposition that a “broad, undifferentiated claim
of public interest in the confidentiality of . . . conversations” is not enough to support the
deliberative process privilege) (internal quotation marks and citations omitted).
49

Of course, none of the Officials are heads of “agencies” in the strict sense of that term.
Nevertheless, Governor Bentley, former Governor Riley, Senate President Pro Tempore Marsh, and
Speaker Hubbard are likewise subject to the requirement of personally reviewing the material
requested by plaintiffs’ subpoenas before a privilege may be validly invoked. See, e.g., K.L. v.
Edgar, 964 F. Supp. 1206, 1209 (N.D. Ill. 1997) (holding in the context of a motion to compel
discovery from a governor and a mental health department that “the department head with control
over the matter must make a formal claim of privilege, after personal consideration of the problem”).

40

communications. [4] Usually such claims must be raised by affidavit.
United States v. O’Neill, 619 F.2d 222, 226 (3d Cir. 1980) (alterations supplied)
(quoting A. O. Smith v. Federal Trade Commission, 403 F. Supp. 1000, 1016 (D. Del.
1975) (other citations omitted)).50 As will be seen, the motions before this court do
not comply with any of those requirements.
1.

Personal consideration by the relevant official

The first requirement was best stated by the Supreme Court in United States v.
Reynolds, 345 U.S. 1 (1953), holding that: “There must be a formal claim of
privilege, lodged by the head of the department which has control over the matter,

50

A recent decision of the Northern District of California in the case of In re: McKesson, 264
F.R.D. 595 (N.D. Cal. 2009), parsed the requirements as follows:
In order to invoke the privilege, there are several requirements, none of which
is met here. For example, CDHCS [i.e., the state agency supervising and operating
California’s medicaid program] should have provided a declaration from an agency
head that includes the following information with respect to each document for
which the deliberative process privilege is asserted: 1) specific facts demonstrating
why each document is “deliberative” and “predecisional”; 2) specific facts
concerning: a) the degree and type of harm that would result from requiring
production of each document; and b) what type of protective order would be
necessary to reduce that harm or, alternatively, why a protective order would not
reduce this harm; and 3) what portions of each document are deliberative and, if
specific sections are purely factual, why those sections cannot be produced. Without
this information, the Court cannot determine whether the documents at issue are
deliberative or predecisional. Nor can the Court adequately assess the harm that
would result if production is ordered. See e.g., L.H. v. Schwarzenegger, [No.
06-2042,] 2008 WL 2073958, *7 (E.D. Cal. May 14, 2008) (finding waiver of
deliberative process privilege where no declarations supporting privilege were filed).
McKesson, 264 F.R.D. at 602 (alteration and emphasis supplied). None of the requirements have
been satisfied in this case.

41

after actual personal consideration by that officer.” Id. at 7-8 (footnote omitted).51
See also, e.g., L.H. v. Schwarzenegger, No. 06-2042, 2008 U.S. Dist. LEXIS 86829,
at *25 (E.D. Cal. May 14, 2008) (holding that a public official “cannot invoke a
privilege without personally considering the material for which the privilege is
sought”); In re Nelson, 131 F.R.D. 161, 164 (D. Neb. 1989) (holding that a privilege
“exists only when raised by a formal claim of privilege, lodged by the head of the
department which has control over the matter, after actual personal consideration by
that officer”) (emphasis in original); Resident Advisory Board v. Rizzo, 97 F.R.D. 749,
752 (E.D. Pa. 1983) (quoting Reynolds, 345 U.S. at 7-8, supra); Pierson v. United
States, 428 F. Supp. 384, 395 (D. Del. 1977) (“Requiring the agency head to review
the documents sought and to claim the privilege where appropriate is the most
effective method available to assure consistency and prudence [in the invocation of
the privilege].”) (alteration supplied).

51

The omitted footnote emphasized the importance of this requirement:

The essential matter is that the decision to object should be taken by the
minister who is the political head of the department, and that he should have seen
and considered the contents of the documents and himself have formed the view that
on grounds of public interest they ought not to be produced.
United States v. Reynolds, 345 U.S. at 8 n.20 (citation and internal quotation marks omitted). Even
though Reynolds addressed a claim of privilege for state and military secrets, “its prerequisites for
formal invocation of the privilege have been uniformly applied irrespective of the particular kind
of executive claim advanced.” Carter v. Carlson, 56 F.R.D. 9, 10 (D. D.C. 1972). See also, e.g.,
United States v. O’Neill, 619 F.2d 222, 226 (3d Cir. 1980) (same).

42

The Supreme Court’s reference to “a formal claim of privilege” in Reynolds,
supra, is a remark that calls attention to a corollary of the first requirement: that is,
the claim of privilege cannot be invoked merely by attorneys acting on behalf of the
governmental official. “Usually such claims must be raised by affidavit [of the
responsible governmental official].” O’Neill, 619 F.2d at 226 (alteration supplied).
The requirement that the privilege be invoked only by the head of
the department after actual personal consideration has been promulgated
to insure that the privilege remains a narrow privilege which is not
indiscriminately invoked. As stated in Coastal Corp. v. Duncan, 86
F.R.D. 514 (D. Del. 1980):
Requiring the agency head to claim the privilege assures
the Court, which must make the ultimate decision, that
executive privilege has not been lightly invoked by the
agency, United States v. Reynolds, supra, and that in the
considered judgment of the individual with an overall
responsibility for the administration of the agency, the
documents withheld are indeed thought to be privileged.
Id. at 518. Thus, the courts have not permitted staff attorneys, especially
those who are participating in the pending litigation, to assert the
privilege on behalf of the agency. Exxon Corp. [v. Department of
Energy], 91 F.R.D. [26,] 43-44 [(N.D. Tex. 1981)]; see also, Pierson v.
United States, 428 F. Supp. 384, 395 (D. Del. 1977).
In re Nelson, 131 F.R.D. 161, 164 (D. Neb. 1989) (emphasis and alterations supplied).
See also, e.g., O’Neill, 619 F.2d at 225 (holding the invocation of a privilege by a
municipality to be improper because, among other deficiencies, “it was not invoked
by the department head, but by the attorney for the City”); United States v. Burr, 25
43

F. Cas. 187, 192 (C.C. Va. 1807) (Marshall, C.J., sitting on Circuit) (“The propriety
of withholding [the allegedly privileged letter] must be decided by [the President]
himself, not by another for him.”) (alteration supplied).52
No case reviewed by this court has held that the assertion of a privilege by only
an attorney for the governmental official was adequate. See, e.g., In re Nelson, 131
F.R.D. at 165 (“An assertion of the ‘deliberative process privilege’ by defense counsel
is wholly inadequate for the proper invocation of that privilege.”); Rizzo, 97 F.R.D.
at 752 (observing that, “in no case has assertion [of a privilege] by the litigation
attorney for the government been held adequate”) (alteration supplied); United States
v. American Telephone & Telegraph, 86 F.R.D. 603, 605 (D. D.C. 1979) (“All the
cases sustaining government privilege appear to require an assertion of the claim by
some responsible officer other than the Government’s attorneys.”).
The initial motion to quash plaintiffs’ subpoenas was filed by the Alabama
Attorney General on behalf of former Governor Riley, Senate President Pro Tempore
Marsh, and Speaker Hubbard.53 Notably, however, the motion was not accompanied
52

For a discussion of Aaron Burr’s attempts to obtain a copy of a letter from General James
Wilkinson (one of the principals who accused Burr of treason) to President Thomas Jefferson, see
Paul A. Freund, The Supreme Court, 1973 Term—Foreword: On Presidential Privilege, 88 HARV.
L. REV. 13, 22-31 (1974), and In re Sealed Case, 116 F.3d 550, 559 (D.C. Cir. 1997).
53

See doc. no. 104 (Motion to Quash Subpoenas Directed to Speaker Hubbard, President Pro
Tempore Marsh, and Former Governor Riley, and to Stay All Discovery Pending Resolution of the
Defendants’ Motions to Dismiss by Alabama House of Representatives Speaker Mike Hubbard,
Alabama Senate President Pro Tempore Del Marsh, and the Bice Defendants), signed by Assistant
Attorney General Joshual K. Payne.

44

by affidavits executed by any of those officials, and indicating that any of them had
personally “seen and considered the contents of the documents [sought by plaintiffs’
subpoenas] and . . . formed the view that on grounds of public interest they ought not
to be produced.” Reynolds, 345 U.S. at 8 n.20 (alterations supplied).54
A separate motion to quash the subpoena issued to former Governor Riley was
later filed by a member of the Birmingham law firm Bradley Arant Boult Cummings
LLP.55 Again, however, the motion did not include an affidavit executed by Mr.
Riley, indicating that he had personally seen and considered the contents of the
documents sought by plaintiffs’ subpoena, and personally concluded that, on grounds
of public policy, they ought not to be produced.

Various Assistant Alabama Attorneys General previously had appeared on behalf of several
of the named defendants. See doc. no. 22 (Notice of Appearance by Assistant Alabama Attorneys
General James W. Davis, Margaret L. Fleming, and William G. Parker Jr. on behalf of defendants,
Dr. Joseph B. Morton, State Superintendent of Education; Dr. Freida Hill, Chancellor of
Postsecondary Education; and Robert T. Treese III, District Attorney of Lee County); doc. no. 83
(Notice of Appearance by Assistant Alabama Attorney General Joshua K. Payne as additional
counsel for defendants Dr. Thomas R. Bice, State Superintendent of Education; Susan Price, Interim
Chancellor of Postsecondary Education; and Robert T. Treese III, District Attorney of Lee County);
doc. no. 101 (Notice of Appearance by Assistant Alabama Attorney General James W. Davis as
counsel of record for non-parties Mike Hubbard, Speaker of the Alabama House of Representatives,
and Del Marsh, President Pro Tempore of the Alabama Senate); doc. no. 102 (Notice of Appearance
by Assistant Alabama Attorney General William G. Parker Jr. as additional counsel of record for
non-parties Mike Hubbard, Speaker of the Alabama House of Representatives, and Del Marsh,
President Pro Tempore of the Alabama Senate); and doc. no. 103 (Notice of Appearance by
Assistant Alabama Attorney General Joshua K. Payne as additional counsel of record for non-parties
Mike Hubbard, Speaker of the Alabama House of Representatives, and Del Marsh, President Pro
Tempore of the Alabama Senate).
54

See supra note 51 and accompanying text.

55

See doc. no. 106 (Motion to Quash Subpoena by former Governor Riley).

45

A separate motion to quash the subpoena issued to Governor Bentley was also
filed by attorneys affiliated with the Birmingham law firm Wallace Jordan Ratliff &
Brandt LLC, and the Montgomery firm Ryals, Plummer, Donaldson, Agricola &
Smith, P.C.56 Yet again, the motion was not accompanied by an affidavit executed by
Governor Bentley, indicating that he had seen and considered the contents of the
documents sought by plaintiffs’ subpoenas, and concluded that, on grounds of public
policy, they ought not to be produced.
All cases hold that such omissions render the attempted invocation of privileges
wholly inadequate. See, e.g., O’Neill, 619 F.2d at 225 (holding “unsatisfactory” the
omission of an affidavit indicating that “the privilege was being invoked by the
responsible public official on the representation that he had personally examined the
documents and determined nondisclosure was required”); id. at 226 (observing that
“there was no indication here that the department heads made the type of personal
careful examination which must precede invocation of the privilege”); Rizzo, 97
F.R.D. at 752 (holding an attempted invocation of privilege to be invalid because
“there is no indication in the record that these officials personally reviewed the
evidentiary material in question and made a determination that the public interest, as
opposed to the government’s interest in this litigation, would best be served by

56

See doc. no. 127 (Motion to Quash Subpoena by Governor Bentley).

46

nondisclosure”).
2.

A specific description of the documents claimed to be privileged

The second requirement for invoking any of the privileges at issue is “a specific
designation and description of the documents claimed to be privileged, of sufficient
detail to allow a reasoned determination as to the legitimacy of the claimed privilege.”
In re Nelson, 131 F.R.D. at 165 (citations omitted). See also, e.g, O’Neill, 619 F.2d
at 225 (holding a municipality’s invocation of a privilege to be improper because,
among other deficiencies, “it was a broadside invocation of privilege which failed to
designate with particularity the specific documents to which the claim of privilege
applied”); Rizzo, 97 F.R.D. at 753 (“Specificity of description is necessary to enable
the Court to comply with its duty of insuring that the privilege is invoked as narrowly
as possible consistent with its objectives.”); Black v. Sheraton Corp. of America, 371
F. Supp 97, 101 (D. D.C. 1974) (Ritchey, J.) (“A formal and proper claim of executive
privilege requires a specific designation and description of the documents within its
scope as well as precise and certain reasons for preserving their confidentiality.”)
(citing United States v. Article of Drug, 43 F.R.D. 181, 190 (D. Del. 1967); Carl Zeiss
Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318, 327 (D. D.C. 1966)).
“The ‘precise and certain reasons’ requirement is well established in the case
law.” Resolution Trust Corp. v. Diamond, 773 F. Supp. 597, 604 (S.D. N.Y. 1991)
47

(citing O’Neill, 619 F.2d at 225-26; Mary Imogene Bassett Hospital v. Sullivan, 136
F.R.D. 42, 44 (N.D. N.Y. 1991); Mobil Oil Corp. v. Department of Energy, 102
F.R.D. 1, 5-6 (N.D. N.Y. 1983); Rizzo, 97 F.R.D. at 752; Coastal Corp. v. Duncan,
86 F.R.D. 514, 519, 522 (D. Del. 1980); Black, 371 F. Supp. at 101).57
This case-law requirement was incorporated into Federal Rule of Civil
Procedure 45, expressly commanding that privilege claims be stated with clarity and
specificity:
A person withholding subpoenaed information under a claim that
it is privileged or subject to protection as trial-preparation material must:
(i)

expressly make the claim; and

(ii)

describe the nature of the withheld documents, communications, or tangible things in a manner that, without
revealing information itself privileged or protected, will
enable the parties to assess the claim.

Fed. R. Civ. P. 45(d)(2) (emphasis supplied).58 As emphasized by the italicized word
57

Other decisions to the same effect as those cited in the text include Mobil Oil Corp. v.
Department of Energy, 520 F. Supp. 414, 416 (N.D. N.Y. 1981), and A. O. Smith v. Federal Trade
Commission, 403 F. Supp. 1000, 1016 (D. Del. 1975).
58

See also Fed. R. Civ. P. 26(b)(5)(A), which addresses the proper method for failing to
produce materials that would otherwise be discoverable under Rule 26, but which the withholding
party contends are subject to a privilege. Specifically:
When a party withholds information otherwise discoverable by claiming that
the information is privileged . . . material, the party must:
(i)

expressly make the claim; and

(ii)

describe the nature of the documents, communications, or tangible things not

48

“must,” the requirements of that rule are mandatory, not precatory.59 The Advisory
Committee’s Notes are consistent with the cases discussed above, and make clear that
“[t]he person claiming a privilege or protection cannot decide the limits of that party’s
own entitlement.” Fed. R. Civ. P. 45 advisory committee’s note (1991 amends.)
(alteration supplied). Instead, the purpose of Rule 45(d)(2) “is to provide a party
whose discovery is constrained by a claim of privilege or work product protection
with information sufficient to evaluate such a claim and to resist if it seems
unjustified.” Id.
Thus, broad, undifferentiated claims of privilege, such as those lodged in the
motions before this court, provide sufficient reason to deny them. See, e.g., O’Neill,
619 F.2d at 227 (“The indiscriminate claim of privilege may in itself be sufficient
reason to deny it”); Resolution Trust Corp. v. Diamond, 773 F. Supp. 597, 603 (S.D.
N.Y. 1991) (holding that a “blanket” approach of “asserting the privilege for all
predecisional, deliberative documents, is unacceptably inflexible. . . . The deliberative
process privilege presupposes a review to determine, document by document, whether

produced or disclosed — and do so in a manner that, without revealing
information itself privileged or protected, will enable other parties to assess
the claim.
Fed. R. Civ. P. 26(b)(5)(A).
59

See, e.g., Bryan A. Garner, Garner’s Dictionary of Legal Usage 953 (3d ed. 2011)
(defining “must” as meaning “is required to”).

49

the assertion of the privilege is justified in each instance.”) (citations omitted); In re
Nelson, 131 F.R.D. at 165 (holding that parties asserting a privilege must provide “a
specific designation and description of the documents claimed to be privileged”)
(citations omitted).
3.

Precise reasons for preserving confidentiality

The third requirement, closely related to the second, “is a demonstration,
usually by affidavit of the responsible agency official, of precise and certain reasons
for preserving the confidentiality of the governmental communication.” Rizzo, 97
F.R.D. at 753. See also, e.g., In re Sealed Case, 856 F.2d 268, 271 (D.C. Cir. 1988)
(holding that “the information for which the privilege is claimed must be specified,
with an explanation of why it properly falls within the scope of the privilege”); A. O.
Smith, 403 F. Supp. at 1016 (holding that the requirement for the agency head to state
“precise and certain reasons for preserving” the confidentiality of the communications
sought “is necessary in order [for] a court [to] be able to make a knowledgable
decision as to whether any document or portion thereof actually contains advisory or
deliberative materials. Any attempts to invoke executive privilege in the absence of
this specific factual showing are actually attempts to interfere with the proper
functioning of the judicial branch of our government by appropriating the means of
[making] this decision to the executive branch.”) (alterations supplied); In re Nelson,
50

131 F.R.D. at 165 (holding that “there must be a specification of precise and certain
reasons for the need to preserve the confidentiality of the documents at issue”) (citing
Mobil Oil Corp., 102 F.R.D. at 6 (same)); Coastal Corp., 86 F.R.D. at 517-19
(observing that the governmental entity “failed to proffer ‘precise and certain’ reasons
for preserving the confidentiality of the requested documents”); Exxon Corp. v.
Department of Energy, 91 F.R.D. 26, 44 (N.D. Tex. 1981) (holding that the agency
must articulate “precise reasons why the public interest would be affected adversely
by disclosure”).
No such demonstration has been made in the present case. Indeed, no
justification for withholding the documents sought by plaintiffs’ subpoenas has been
advanced at all, other than the bare assertion that one or more of the privileges
discussed in Part I(H) of this opinion, supra, applies. Such broad, undifferentiated
claims deprive this court of the ability to determine whether the plaintiffs’ need for the
documents and communications sought by the subject subpoenas “outweighs the harm
that would result from their disclosure.” McKesson, 264 F.R.D. at 602.
B.

Conclusions
Numerous cases have held that improperly asserted claims of privilege are no

claims of privilege at all. See, e.g., Coastal Corp., 86 F.R.D. at 522-23; A. O. Smith,
403 F. Supp. at 1017; Black, 371 F. Supp. at 101.
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In addition, when, as here, privileges are asserted in vague, nonspecific terms,
untethered from the requirements discussed above, the privileges are deemed to have
been waived. See Nelson, 131 F.R.D. at 165 (ordering a governmental agency to
disclose requested documents because “conclusional assertions as to its right to
protect the documents at issue on the basis of privilege are wholly inadequate not only
to invoke the privilege but also to demonstrate that they are properly within its
coverage”); L.H., 2008 U.S. Dist. LEXIS 86829, at *27 (ordering the Governor of
California and other state officials to disclose requested documents because
“defendants have presented no declarations whatsoever to support their claim of
deliberative process privilege or official information privilege”); McKesson, 264
F.R.D. at 602 (ordering the California agency responsible for overseeing and
operating the state’s medicaid program to disclose requested documents because it
cited “no authority for the proposition that a state agency can avoid its initial burden
to satisfy the requirements for invoking the deliberative process privilege simply by
arguing financial burden”).60
III. ORDERS
60

See doc. no. 105 (AEA Plaintiffs’ Response to Motion to Quash Subpoenas to Hubbard,
Marsh, and Riley etc.), at 7 (arguing that “the Court should deny the motion to quash because of the
failure of the Officials to comply with Rule 45(d)(2), FRCivP”); and doc. no. 129 (AEA Plaintiffs’
Response to Alabama Governor Robert Bentley’s Motion to Quash Subpoena), at 8 (arguing that
the motion to quash is due to be denied “because of the waiver of the claimed privilege by Governor
Bentley’s predecessor, Governor Riley,” and, “in the alternative . . . because of Governor Bentley’s
failure to comply with Rule 45(d)(2), FRCivP”) (emphasis supplied).

52

For all of the foregoing reasons, it is ORDERED that the motions to quash be,
and the same hereby are, DENIED. It is further ORDERED that Alabama Governor
Robert J. Bentley, M.D., former Alabama Governor Robert R. (“Bob”) Riley,
Alabama Senate President Pro Tempore Del Marsh, and Speaker of the Alabama
House of Representatives Mike Hubbard, separately and severally, provide full and
complete responses to the subpoenas duces tecum served upon each of them on or
before Friday, February 1, 2013.
DONE and ORDERED this 3rd day of January, 2013.

______________________________
United States District Judge

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