Shapiro v. McManus

Filing 132

MEMORANDUM AND ORDER granting 111 Motion of plaintiffs to Compel; denying 112 Motion for Protective Order to quash non-party deposition subpoenas by Thomas V. Mike Miller, Jr, Michael E. Busch, Richard Stewart, Jeanne Hitchcock ; denying 114 Corrected Motion for Protective Order to quash non-party deposition subpoenas by Michael E. Busch, Jeanne Hitchcock, Thomas V. Mike Miller, Jr, Richard Stewart. Signed by Judge James K. Bredar on 1/31/2017. (jnls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
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O. JOHN BENISEK et al..,

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Plaintiffs

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v.

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LINDA H. LAMONE et al..,
Defendants
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CIVIL NO. JKB-13-3233

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MEMORANDUM AND ORDER
This case challenges the 2011 redistricting of Maryland’s congressional districts. It was
assigned to a three-judge court, of which the undersigned is a member and for which the
undersigned has been designated to handle “all preliminary matters, including scheduling and
oversight of discovery,” subject to review by the full court. (Sched. Ord. 1, Nov. 16, 2016, ECF
No. 108.) An order was entered on November 16, 2016, setting a schedule for discovery,
including the date of February 10, 2017, for completion of all fact discovery. (Id.)
Now pending before the Court are two ripe motions related to discovery:


Plaintiffs’ Motion to Compel Non-Parties Jeanne D. Hitchcock, Thomas V. “Mike”
Miller Jr., Michael E. Busch, and Richard Stewart to Testify at Deposition, and to
Compel Non-Parties Thomas V. “Mike” Miller Jr., Michael E. Busch, and Richard S.
Madaleno Jr. to Produce Documents (ECF No. 111), and



Non-Parties’ Motion for Protective Order and to Quash Non-Party Deposition Subpoenas
Served on Thomas V. Mike Miller, Jr., Michael E. Busch, Jeanne Hitchcock, and Richard
Stewart (ECF Nos. 112 & 114).

Each of these two motions is effectively the mirror image of the other motion.
Accordingly, they will be analyzed as one. Both motions have been briefed (ECF Nos. 119, 120,
123, & 124), and no hearing is required, Local Rule 105.6 (D. Md. 2016). Plaintiffs’ motion will
be granted, and the Non-Parties’ motion will be denied.
I.
This memorandum will not repeat all that was said by the Court in its majority opinion
when it denied Defendants’ motion to dismiss for failure to state a claim for relief. (Op. Aug. 24,
2016, ECF No. 88.) In short, the Court determined the second amended complaint states a claim
of violation of Plaintiffs’ First Amendment rights by alleging that the 2011 redistricting was
undertaken, as to the former Sixth Congressional District, purposefully to dilute the weight of
Republicans’ votes based upon their voting histories and their party affiliation and that it
achieved that purpose.

(Op. 38-39.)

Applying established principles of First Amendment

retaliation cases, the Court distilled the three elements that Plaintiffs will be called upon to prove
in this case:
1. Intent – Those responsible for the redistricting map redrew the lines of the Sixth District
with the specific intent to impose a burden on Plaintiffs and similarly situated voters
because of how they voted or the political party with which they were affiliated.
2. Injury – The burden imposed on Plaintiffs was dilution of their votes to such a degree that
it yielded a tangible and concrete adverse effect.
3. Causation – The redistricting of the Sixth District would not have resulted in an adverse
effect to Plaintiffs but for the officials’ retaliatory motive, that is, to burden Plaintiffs and
similarly situated voters by reason of their views.
(Op. 31-32.)

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II.
It is the first element of specific intent that underlies Plaintiffs’ efforts to obtain
deposition testimony and/or production of documents from the Non-Parties.

In turn, the

Non-Parties have resisted Plaintiffs’ attempts to delve into the intent of those individuals
drawing the contested redistricting map and those legislators ratifying that map, and they have
claimed they are justified in doing so because they enjoy legislative privilege. After considering
all of the parties’ arguments, the Court concludes the legislative privilege claimed by the NonParties must yield to the discovery requests of Plaintiffs.
In analyzing the claim of legislative privilege, the Court endorses and relies upon the
five-factor analysis employed in a redistricting case in the Eastern District of Virginia, BethuneHill v. Va. State Bd. of Elections, 114 F. Supp. 3d 323 (E.D. Va. 2015) (three-judge court).
Recognizing state legislative privilege as a creature of federal common law, Bethune-Hill
nevertheless noted that the privilege “may become qualified based on the nature of the claim at
issue.” Id. at 334. Thus, unlike lawsuits seeking to hold individual legislators liable, “where the
State faces liability, the legislative privilege becomes qualified when it stands as a barrier to the
vindication of important federal interests and insulates against effective redress of public rights.”
Id.

A redistricting case such as that now before the Court is a “particularly appropriate

circumstance” for qualifying the privilege claimed by state legislators since “judicial inquiry into
legislative intent is specifically contemplated as part of the resolution of the core issue” in the
case. Id. at 337.
The five factors examined in the analysis of qualified state legislative privilege are
(1) relevance of the evidence sought, (2) availability of other evidence, (3) the seriousness of the

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litigation and the issues involved, (4) the role of the State in the case, and (5) the purposes of the
privilege. Id. at 339-42.
The first factor is relevance of the evidence sought. Assuming arguendo that all of the
Non-Parties are entitled to invoke the federal common-law legislative privilege accorded to state
legislative officials, the Court cannot endorse the Non-Parties’ claim of that privilege to bar
essential discovery of evidence that lies at the heart of this case. As previously indicated,
Plaintiffs are called upon to prove the Sixth District map was redrawn by state officials who had
the specific intent to dilute the votes of Republican voters in that district based upon their voting
history or their party affiliation. The Non-Parties’ intent, therefore, is at issue and this factor
weighs in favor of Plaintiffs.
The Court gives no weight to the Non-Parties’ contention that the Court’s earlier opinion
purportedly prohibited Plaintiffs from using “subjective evidence,” which the Non-Parties
apparently define as evidence of their subjective intent. (See Non-Parties’ Opp’n to Pls.’ Mot.
Compel 9, 12.) Their contention is a distortion of what the opinion actually said, which was, “a
plaintiff must rely on objective evidence to prove that, in redrawing a district’s boundaries, the
legislature and its mapmakers were motivated by a specific intent to burden the supporters of a
particular political party.”

(Op. 33.)

Objective evidence, in the form of testimony and

documents, that goes to prove the Non-Parties “were motivated by a specific intent to burden the
supporters of a particular political party” is not somehow transformed into “subjective evidence”
merely by the inclusion of some subjective perceptions of a given witness. “Objective evidence”
often has bits embedded within it that are themselves subjective perceptions or experiences. This
contention of the Non-Parties is meritless.

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The second factor is availability of other evidence. The Non-Parties argue that Plaintiffs
have all the evidence they need on the question of specific intent, pointing to Maryland Public
Information Act requests, recording of legislator statements, transcripts of public hearings
conducted by the Governor’s Redistricting Advisory Committee (“GRAC”), maps, election and
voter data, bill files, and draft maps considered by the GRAC. Although those materials may be
probative in part on the issue of specific intent, they provide no meaningful substitute for the
direct evidence of the mapmakers’ intent. This factor also weighs in Plaintiffs’ favor.
The third factor relates to the seriousness of the litigation and the issues involved. The
Non-Parties acknowledge the serious quality of the instant litigation, which challenges as
unconstitutional the method by which voters select their congressional representatives. Even so,
they fault Plaintiffs for not bringing the Non-Parties’ intent into issue sooner, although they fail
to explain what difference the timing makes in assessing seriousness of the issues. The Court
finds no significant question as to the seriousness of both the litigation and the issues involved.
This factor favors the Plaintiffs.
The fourth factor focuses on the role of the State of Maryland in the case. As earlier
indicated, this suit is not brought against individual state legislators. Instead, it is brought against
those who are responsible for the electoral process in Maryland, seeking to enjoin them from
administering, preparing for, or permitting the nomination or election of congressional
representatives from certain districts.1

The electoral process is a product of Maryland’s

legislature, which prescribes the laws incorporating the challenged redistricting. As was true in
Bethune-Hill, the legislature’s decision-making process lies at the core of Plaintiffs’ case, and the
legislature’s direct role in the precipitating events of the instant litigation supports overcoming
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The Second Amended Complaint included the Sixth, Seventh, and Eighth Congressional Districts in its
prayer for relief (ECF No. 44), but is clearly focused on the Sixth District. Subsequent proceedings have also
focused only on the Sixth District.

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the legislative privilege. 114 F. Supp. 3d at 341 (citing Favors v. Cuomo, 285 F.R.D. 187, 220
(E.D.N.Y. 2012)).
The fifth factor examines the purposes of the state legislative privilege, which derives
from state legislative immunity. Id. at 331-34. State legislators may broadly claim immunity
“from . . . civil process for what they do or say in legislative proceedings.”
Brandhove, 341 U.S. 367, 372 (1951).

Tenney v.

See also EEOC v. Wash. Suburban Sanitary Comm’n,

631 F.3d 174, 181 (4th Cir. 2011) (“Legislative privilege against compulsory evidentiary process
exists to safeguard this legislative immunity and to further encourage the republican values it
promotes.”). The privilege applies whether or not the legislators themselves have been sued. Id.
However, every testimonial exclusionary privilege “contravene[s] the fundamental principle that
the public . . . has a right to every man’s evidence.” Trammel v. United States, 445 U.S. 40, 50
(1980) (internal quotation marks omitted). For that reason, any privilege “must be strictly
construed and accepted only to the very limited extent that permitting a refusal to testify or
excluding relevant evidence has a public good transcending the normally predominant principle
of utilizing all rational means for ascertaining the truth.” Id. (internal quotation marks omitted).
In comparing the state legislative privilege with the federal legislative immunity
enshrined in the Speech or Debate Clause, U.S. Const., art. I, § 6, cl. 1, the Supreme Court has
noted that the federal legislative privilege has two underlying rationales:

one, to avoid

unnecessary intrusion by one coequal branch of government into another and, two, to protect
legislative independence. United States v. Gillock, 445 U.S. 360, 369 (1980). The first rationale
rests upon the doctrine of separation of powers, which has no application to a claim of state
legislative privilege in federal court litigation. Id. at 370. The second rationale, to protect
legislative independence, is rooted in a desire to avoid disruption of the state legislative process.

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Id. at 371. The Gillock Court noted, though, that Tenney’s upholding of a state legislator’s
absolute common-law immunity from suit was founded upon the circumstances of state
legislators being sued under 42 U.S.C. § 1983 by an individual seeking damages; those
circumstances qualified the breadth of Tenney’s holding, in the Gillock Court’s view. Gillock,
445 U.S. at 372. The absence of the threat of personal monetary liability reduces significantly,
and perhaps even eliminates, the justification for state legislative immunity. Owen v. City of
Independence, 445 U.S. 622, 655-56 (1980).
Moreover, “where important federal interests are at stake,” the principle of comity, which
undergirds the protection of legislative independence, yields. Gillock, 445 U.S. at 373. See also
Bethune-Hill, 114 F. Supp. 3d at 333. Those “important federal interests” are present in the case
now before this Court. Although the Non-Parties’ compliance with the subpoenas served upon
them may involve some inconvenience, the Court concludes such inconvenience to be minor in
comparison to the weight of the litigation, which seeks to vindicate fundamental constitutional
rights; alone, inconvenience is not a compelling reason to quash the subpoenas. The NonParties’ invocation of legislative privilege is without merit.
III.
For the reasons previously stated herein, the Court GRANTS Plaintiffs’ motion to compel
(ECF No. 111) and DENIES the Non-Parties’ motion for protective order and to quash
subpoenas (ECF Nos. 112 & 114).
DATED this 31st day of January, 2017.
BY THE COURT:

______________/s/____________________
James K. Bredar
United States District Judge
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