James v. Hampton et al
OPINION and ORDER GRANTING PLAINTIFF'S 72 Renewed MOTION to Compel Discovery from JTC Defendants Pursuant to Fed. R. Civ. P. 26(b)(5)(A), 33, 34 and 37 - Signed by Magistrate Judge R. Steven Whalen. (CCie)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
District Judge Paul D. Borman
Magistrate Judge R. Steven Whalen
HILLIARD HAMPTON, ET AL.,
OPINION AND ORDER
Plaintiff Sylvia James is a former Michigan state court judge who was removed
from office by the Michigan Supreme Court in 2012 following an investigation and
recommendation by the Michigan Judicial Tenure Commission (“JTC”). She filed the
present action against the JTC and other Defendants under 42 U.S.C. § 1983, alleging
violation of her rights under the Equal Protection Clause of the Fourteenth Amendment.
Ms. James is an African-American female. The gist of her claim is that the JTC chose not
to recommend discipline of Caucasian judges who were alleged to have engaged in
similar judicial misconduct. This case has twice been remanded by the Sixth Circuit. In its
latest opinion [Doc. #56], the Sixth Circuit reversed an order of dismissal, holding that
Ms. James had pled a plausible prima facie equal protection claim.
In the present motion to compel discovery from the JTC Defendants [Doc. #72],
Ms. James seeks “information about requests for investigation submitted to the JTC in
order to ascertain necessary information about judges against whom the JTC declined to
file a formal complaint for the period of May 2001 through May 2011, including those
specifically identified as examples of disparate treatment in her Complaint.” Brief in
Support of Motion, at 6, Pg. ID 1866 [Doc. #72](emphasis in original). The JTC
interposed an objection based on M.C.R. 9.221, which establishes a State privilege.
Although not raised in its objections, the JTC now claims protection under the
deliberative process privilege as well.
The Michigan Court Rules, specifically M.C.R. 9.221(a), set forth a privilege that
bars disclosure of JTC material:
(A) Scope of Rule. Except as provided in this rule, all papers filed with the
commission and all proceedings before it are confidential in nature and are
absolutely privileged from disclosure by the commission or its staff,
including former members and employees, in any other matter, including
but not limited to civil, criminal, legislative, or administrative proceedings.
All the commission's investigative files and commission-generated
documents are likewise confidential and privileged from disclosure.
Nothing in this rule prohibits the respondent judge from making statements
regarding the judge's conduct.
This Court is not bound by a state statutory privilege not also found in federal
statutes or common law. Pearson v. Miller, 211 F.3d 57, 61 (3rd Cir. 2000). See also
Hancock v. Dodson, 958 F..2d 1367, 1373 (6th Cir. 1992). Generally, under Fed.R.Ev.
501, federal courts are bound only by privileges currently recognized by federal law.
Rule 501 states:
“Except as otherwise required by the Constitution of the United States or
provided by Act of Congress or in rules prescribed by the Supreme Court
pursuant to statutory authority, the privilege of a witness, person,
government, State, or political subdivision thereof shall be governed by the
principles of the common law as they may be interpreted by the courts of
the United States in the light of reason and experience. However, in civil
actions and proceedings, with respect to an element of a claim or defense as
to which State law supplies the rule of decision, the privilege of a witness,
person, government, State, or political subdivision thereof shall be
determined in accordance with State law.”
Thus, when the claim is grounded in federal law (in this case, the Equal Protection
Clause), federal, not state privileges apply. Pearson at 66. The Senate Report
accompanying the adoption of Rule 501 "should be understood as reflecting the view that
the recognition of a privilege based on a confidential relationship ... should be determined
on a case-by-case basis." Jaffee v. Redmond 518 U.S. 1, 8 (1996); S.Rep. No. 93-1277, p.
13. Nonetheless, “[f]ederal courts have generally declined to grant requests for new
privileges.” Pearson, 211 F. 3d at 67. See, e.g., University of Pennsylvania v. EEOC, 493
U.S. 182, 189 (1990); United States v. Nixon, 418 U.S. 683, 710 (1974) ( privileges “are
not lightly created nor expansively construed, for they are in derogation of the search for
truth”). “In determining whether a privilege should be recognized in a specific instance,
courts must start with the fundamental maxim that ‘the public...has a right to every man’s
evidence.” Grabow v. County of Macomb, 2013 WL 3354505, *5 (E.D. Mich.
2013)(Cohn, J.), quoting Jaffee at 9.
In Grabow, Judge Cohn explained why Michigan’s peer review privilege did not
apply in a federal civil rights case brought under 42 U.S.C. § 1983:
“Because this is a prisoner civil rights case brought under § 1983, federal
law supplies the rule of decision, and Rule 501 applies. Indeed, ‘[t]he
claims made here are federal constitutional claims ... It thus appears
particularly inappropriate to allow the use of state evidentiary privileges.’
Leon v. Cnty. of San Diego, 202 F.R.D. 631, 636 (S.D.Cal.2001); see also
Agster v. Maricopa Cnty., 422 F.3d 836, 839 (9th Cir.2005) (‘But we are
not bound by Arizona law....). ‘Where, as here, it is alleged that a defendant
acted under color of state law to violate a citizen's rights, ‘[t]he
appropriateness of deference to a state's law of privilege is diminished.’
Weiss v. Cnty. of Chester, 231 F.R.D. 202, 207 (E.D.Pa.2005).
“Although ‘Rule 501 has been recognized as allowing the adoption of
existing state evidentiary codes to govern federal cases where the state rules
are not in conflict with the federal rules,’ Michigan's medical peer review
privilege conflicts with and harms ‘federal substantive and procedural
policy’ when applied in a § 1983 deliberate indifference case. See Leon, 202
F.R.D. at 635 (explaining that California's peer review privilege conflicts
with liberal discovery rules applicable in federal courts in § 1983 deliberate
indifference case). Indeed, ‘[t]he absolute bar on discovery provided by
[Michigan's peer review privilege] conflicts with the liberal discovery rules
applicable in federal courts, and it conflicts with the necessity of finding
state action inherent in the federal civil rights law.’ Id. at 636. Accordingly,
Michigan's peer review privilege is inapplicable to this case.”
The same reasoning applies to M.C.R. 9.221(a). Here, as in Grabow, we have a
federal constitutional claim, giving primacy to the Plaintiff’s interest in discovery vis-avis Michigan’s interest in confidentiality. The question of whether the JTC treats
Caucasian judges differently from African-American judges is at the heart of Plaintiff’s
Equal Protection claim, so the requested discovery is not only relevant, but critical to the
disparate treatment inquiry.
In Lawrence v. VanAken, 2004 WL 228989 (W.D. Mich. 2004), the Court found
that the prior iteration of M.C.R. 9.221 made JTC files confidential, but did not create a
state privilege. Nevertheless, VanAken reasoned that even if Michigan law accorded
privilege to JTC records (as the newer version of the Rule does), there is no “broad
national consensus” on the existence of such a privilege that would justify incorporating it
into federal common law under Fed.R.Ev. 501:
“In the present case, the JTC is, in essence, asking this court to fashion a
new common-law privilege from whole cloth, in the absence of any
appellae authority recognizing a federal privilege for judicial disciplinary
proceedings in Michigan or any other state.” Id. at *5.
Although I find that M.C.R. 9.221(a) has no analogue in federal common law, and
is thus inapplicable in a federal constitutional claim, I do recognize the State
confidentiality interests at which the Rule is directed. And while those interests are not
controlling in this case, they can and will be adequately vindicated by a protective order
that limits disclosure and use of any JTC material that is disclosed.
Deliberative Process Privilege
In Liuzzo v. United States, 508 F.Supp. 923, 937 (E.D.Mich.1981), the Court held
that the deliberative process privilege protects from discovery “intra-governmental
documents reflecting advisory opinions, recommendations and deliberations comprising
part of a process by which governmental decisions and policies are formulated.” To come
within the protection of the deliberative process privilege, the material must of necessity
be “deliberative” or “evaluative.” In Kaiser v. Aluminum & Chemical Corp. v. United
States, 141 Ct.Cl. 38, 157 F.Supp. 939, 946 (1958), the Court explained that while the
privilege applies to “confidential intraagency advisory opinions,” it does not extend to
“objective facts” upon which an agency's decisions are based. See also Lewis v. City of
Detroit, 234 F.R.D. 157, 160 (E.D.Mich. 2006)(the privilege does not extend to the facts).
In this case, the Plaintiff seeks purely factual material. Plaintiff is therefore entitled
to the disclosure of “factual information regarding each person against whom the JTC
declined to file a formal complaint between May 2001 and May 2011, and information
regarding each person against whom the JTC did file a formal complaint, such as their
race, gender, nature of complaint, date of complaint and identity of grievant.” See
Plaintiff’s Reply Brief [Doc. #76], at 3; Plaintiff’s Interrogatory Nos. 12 and 13. Plaintiff
is not entitled to “staff memoranda to the Commission, reports and recommendations
prepared by or at the request of the Commission, and minutes or other documents
reflecting the deliberations and votes of Commissioners.” VanAken, at *7.
Plaintiff’s motion to compel discovery from the JTC Defendants [Doc. #72] is
GRANTED, with the exception of JTC records described above that would fall within the
deliberative process privilege.
All documents produced under this Order are subject to a protective order whereby
they will not be disclosed to any person or entity not involved in the prosecution or
defense of this lawsuit, nor used for any purpose other than preparation, litigation, trial,
and appeal of this action. At the conclusion of this litigation, the documents will be
returned to the JTC.
IT IS SO ORDERED.
s/R. Steven Whalen
R. STEVEN WHALEN
UNITED STATES MAGISTRATE JUDGE
Dated: December 29, 2015
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was sent to parties of record
on December 29, 2015, electronically and/or by U.S. mail.
s/Carolyn M. Ciesla
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