Log Cabin Republicans v. United States of America et al

Filing 211

TRIAL BRIEF Regarding Legislative Privilege and Expert Testimony on Legislative History filed by Plaintiff Log Cabin Republicans.. (Woods, Daniel)

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DAN WOODS (SBN 78638) EARLE MILLER (SBN 116864) PATRICK HAGAN (SBN 266237) WHITE & CASE LLP 633 W. Fifth Street, Suite 1900 Los Angeles, CA 90071-2007 Telephone: [phone] Facsimile: [phone] Email: [e-mail] Email: [e-mail] Email: [e-mail] Attorneys for Plaintiff Log Cabin Republicans UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA Case No. CV 04-8425-VAP (Ex) LOG CABIN'S TRIAL MEMORANDUM REGARDING LEGISLATIVE PRIVILEGE AND EXPERT TESTIMONY ON LEGISLATIVE HISTORY

LOG CABIN REPUBLICANS, a nonprofit corporation, Plaintiff, v. UNITED STATES OF AMERICA and ROBERT M. GATES, SECRETARY OF DEFENSE, in his official capacity, Defendants.

Plaintiff Log Cabin Republicans ("Log Cabin") presents the following trial memorandum on legislative privilege and expert testimony on legislative history in support of its evidence adduced at trial.

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I.

INTRODUCTION At the pretrial conference on June 28, during the discussion of the

defendants' motion in limine to exclude expert witnesses, the Court expressed a concern as to whether a portion of Professor Nathaniel Frank's anticipated expert testimony might infringe the legislative privilege. This memorandum explores that privilege and explains that it protects legislators from liability or questioning about statements made during the legislative process but does not make their acts or statements inadmissible for independent purposes. It also shows that Professor Frank's anticipated testimony about statements or viewpoints of members of Congress does not infringe on that privilege and, therefore, is admissible. Because Professor Frank is expected to testify on the first or second day of trial, Log Cabin Republicans submits this memorandum today to enable the Court to consider the issue before Professor Frank testifies next week. II. THE LEGISLATIVE PRIVILEGE AND STATEMENTS BY LAWMAKERS A. Origins

Legislative privilege, also known as parliamentary or legislative immunity, is set forth in Article 1, Section 6 of the United States Constitution, which provides: The Senators and Representatives. . . shall in all Cases, except Treason, Felony, and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place. U.S. Const. art. 1, § 6, cl. 1. The language of Section 6, clause 1 is known as the "Speech or Debate Clause." Although identified in the U.S. Constitution, the -2LOSANGELES 871381 (2K)

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origins of the legislative privilege extend back to late sixteenth and early seventeenth century disputes between the British Parliament and the monarchy. Richard Silver, Note, A Common Law Privilege For State Legislators in Federal Criminal Prosecutions, 54 St. John's L. Rev. 79, 83 (1979). After a long history of arrests and intimidation of legislators who questioned the judgment of the monarch, Parliament successfully enacted legislation recognizing free speech in debate, immunizing legislators from all prosecutions arising from parliamentary proceedings and privileging the use of parliamentary statements against legislators. Id.; 26A Charles Alan Wright & Kenneth W. Graham, Federal Practice & Procedure, § 5675, pp. 69-70 (1992). B. American Development

Cognizant of the potential struggles among the branches of government, the architects of the American republic also inserted the legislative privilege into the Articles of Confederation and the federal Constitution, where it garnered no substantive attention for 90 years. Silver, supra at 84-85. In 1880, the Supreme Court addressed the legislative privilege in Kilbourn v. Thompson, 103 U.S. 168, 26 L.Ed. 377 (1880), an action by Hallett Kilbourn for false imprisonment against John Thompson and members of a House of Representatives investigative committee that had ordered Kilbourn's arrest for his refusal to testify before the committee. Id. at 85. The Supreme Court held that although Thompson did falsely imprison Kilbourn, the legislative privilege immunized Thompson and the other Representatives from Kilbourn's suit. Kilbourn v. Thompson, 103 U.S. 168, 18283, 200-04 (1880). In so doing, the Supreme Court interpreted the legislative privilege to protect "things generally done in a session of the House by one of its members in relation to the business before it." Id. at 204. For another 80 years, few courts opined on the legislative privilege. Wright & Graham, supra, § 5675, pp. 70-71. In 1966, the Supreme Court held that a -3LOSANGELES 871381 (2K)

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speech on the floor of Congress could not be used as evidence of a conspiracy to commit bribery. United States v. Johnson, 383 U.S. 169, 184-85, 86 S.Ct. 749, 15 L.Ed.2d 681 (1966). A recent increase in the federal prosecution of legislators has provided opportunities for further interpretation, extending, for instance, the privilege to aides, Gravel v. United States, 408 U.S. 606, 616-17, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972), and beyond the physical space of the legislative floor to any legislative acts, United States v. Helstoski, 442 U.S. 477, 477-78, 99 S.Ct. 2432, 61 L.Ed.2d 12 (1979). See also Powell v. McCormack, 395 U.S. 486, 501-06, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969). C. Scope and Purpose of the Legislative Privilege

Today, the legislative privilege provides federal legislators both a substantive immunity from civil and criminal liability and an evidentiary immunity against the use of statements made in the legislative process, essentially as it did in its original iteration imported from England, despite minor expansions and retractions along its periphery. Wright & Graham, supra, § 5675, pp. 69-70. The evidentiary aspect of the legislative privilege finds justification in the need to spare the legislator from having to devote his time and effort to defending himself in court. United Transp. Union v. Springfield Terminal Ry., 132 F.R.D. 4, 5 (D. Me. 1990) ("In civil cases the clause prevents the litigation from distracting members of Congress and their aides, forcing them to divert their time and attention from their legislative tasks, and from delaying and disrupting the legislative function."). Typically, cases triggering the legislative privilege involve allegations that the legislator accepted bribes in exchange for votes, or where the legislator is sued for defamation on the basis of statements made in connection with legislation. Wright & Graham, supra, § 5675, p. 71. Where legislators are not subject to liability or questioning, assertion of the privilege on behalf of third parties is inappropriate. Benford v. Am. Broadcasting -4LOSANGELES 871381 (2K)

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Co., 98 F.R.D. 42, 46 (D. Md. 1983). In Benford, a committee of members of the U.S. House of Representatives ­ none of whom were parties to the action ­ filed a motion to intervene and for a protective order against the plaintiff's subpoena duces tecum. Id. at 44. The subpoena, served on the Clerk of the House, sought communications between several congressional aides ­ who were co-defendants in this action ­ and ABC. Id. at 44-45. The court denied the motion and acknowledged that while the aides themselves may assert the privilege under Gravel, the non-party Representatives could not. Id. at 46, 47. D. Use of Statements Beyond the Scope of the Legislative Privilege

While the legislative privilege prohibits questioning legislators and their aides outside of Congress, it does not necessarily preclude the testimony of third party witnesses about legislative acts. Gravel, 408 U.S. at 628-29. In Gravel, Senator Gravel's aide was subpoenaed in connection with the dissemination of the "Pentagon Papers." Id. at 608. Although the Supreme Court held that the legislative privilege extended to congressional aides, it noted that third party witnesses could still testify about the senator's legislative acts. Id. at 629, n.18. Additionally, the Supreme Court further noted that Senator Gravel's recitation of the complete Pentagon Papers at a subcommittee hearing constituted adequate proof of his public disclosure of confidential information, implying that the legislative record lies entirely beyond the scope of the legislative privilege. Id. Where the intent of the legislators enacting law is at issue, statements made by lawmakers in the context of legislation within and outside the official record provide relevant evidence of their motivations for enacting a law. For example, in Wallace v. Jaffree, 472 U.S. 38, 43, 105 S.Ct. 2479, 86 L.Ed.2d. 29 (1985), the legislative sponsor of a school "meditation" law testified in person about his intent to reintroduce prayer to public schools. In Edwards v. Aguillard, 482 U.S. 578, 587, 107 S.Ct. 2573, 96 L.Ed. 510 (1987), legislators' statements made during the -5LOSANGELES 871381 (2K)

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course of debate on a law requiring the teaching of creationism in schools provided "clear" evidence of an improper purpose. Similarly, in McCreary County v. American Civil Liberties Union of Kentucky, 545 U.S. 844, 851, 125 S.Ct. 2722, 162 L.Ed.2d 729 (2005), the Supreme Court considered evidence of religious statements by a judge at a county courthouse to find a predominantly religious purpose behind the courthouse's display of the Ten Commandments. In Kitzmiller v. Dover Area School District, 400 F.Supp.2d 707, 746, n.20 (M.D. Pa. 2005), the school board defendants argued that individual board members' statements were irrelevant as a matter of law and sought to exclude them entirely. Citing McCreary and Edwards, the Court admitted evidence of those statements, noting that "the Supreme Court has consistently held not only that legislative history can and must be considered in ascertaining legislative purpose. . . but also that statements by a measure's sponsors and chief proponents are strong indicia of such purpose." Id. at 747. III. TESTIMONY OF DR. FRANK REGARDING THE STATEMENTS OF LEGISLATORS Log Cabin proffers the testimony of Dr. Nathaniel Frank to prove, inter alia, that DADT was enacted because of prejudice and animus toward homosexuals. Dkt. 189 at 15-21. As one of the bases for a portion of his expert opinion, Dr. Frank relies on the statements of legislators before and during the DADT legislation process. See id. For instance, he will cite to the official legislative record to show that Representative Robert Dornan laid bare his own prejudice in saying, "You gentleman all know that the best of your troops can never respect and thereby follow orders totally from someone who likes taking it up the bum, no matter how secret he keeps it. Once it leaks out, they think this person is abnormal, perverted, and deviant from the norm." Id. at 19, citing House Comm. on Armed Services, Policy Implications of Lifting the Ban on Homosexuals in the Military: Hearings -6LOSANGELES 871381 (2K)

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Before the House Comm. on Armed Services, 103rd Cong., 1st sess., 1993. As another example, Dr. Frank will also rely on the statements of Senator Nunn, who said the government should not "endorse the sex behavior of people that are lesbian and gay." Asked if he was "saying the heterosexual lifestyle is superior, is morally superior, to the homosexual lifestyle," Nunn answered that he was "not only saying that," but that "the American family deterioration is one of the biggest problems we face in our culture, and government programs cannot solve that." The statements to which Dr. Frank will testify are a matter of public record. Log Cabin will not subpoena any legislators for questioning. Log Cabin does not proffer Dr. Frank's expert opinion to accuse any legislators of criminal misconduct. For Log Cabin's purposes in this action, their statements are being used to evidence the animus and prejudice exhibited by legislators in enacting DADT, nothing more. Therefore, the legislative privilege does not apply here. Nothing in the history of cases interpreting the legislative privilege indicates that statements made by legislators are beyond the scope of judicial review. Indeed, the Supreme Court has on numerous occasions reviewed testimony regarding the statements of legislators in determining the purpose of a particular law. Dr. Frank's testimony is no different, and the legislative privilege should not apply to exclude it. IV. CONCLUSION For the above reasons, the testimony of Dr. Frank regarding the statements of legislators should not be excluded under the legislative privilege. Dated: July 6, 2010 WHITE & CASE LLP By: /s/ Dan Woods Dan Woods Attorneys for Plaintiff

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LOG CABIN'S TRIAL MEMORANDUM REGARDING LEGISLATIVE PRIVILEGE AND EXPERT TESTIMONY ON LEGISLATIVE HISTORY