Stallworth v. Bryant et al

Filing 328

ORDER overruling 252 Objection to 251 ORDER granting in part and denying in part Motion to Enforce Subpoenas. Signed by District Judge Carlton W. Reeves on 6/25/2018. (AC)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
JACKSON MUNICIPAL AIRPORT
AUTHORITY, ET AL.

PLAINTIFFS

V.

CAUSE NO. 3:16-CV-246-CWR-FKB

GOVERNOR PHIL BRYANT, ET AL.

DEFENDANTS
ORDER

Constitutional litigation occasionally requires “discovery into the motives of the
[government] officials” who caused the alleged violation. Benisek v. Lamone, No. 17-333, 2018
WL 3013808, at *2 (U.S. June 18, 2018) (per curiam). That can lead to “the assertion of
legislative privilege by those officials” which, in turn, “delay[s] the completion of that
discovery.” Id.
Benisek is illustrative. In that case, plaintiffs alleged that Democrats redrew Maryland’s
congressional districts to favor Democrats and harm Republicans. The plaintiffs subpoenaed
three of the most powerful Democrats in the state legislature to provide evidence on that claim.
The legislators “produced [fewer] than 150 pages in total, and they asserted state legislative
privilege as the basis for withholding 36 responsive documents.” Benisek v. Lamone, 241 F.
Supp. 3d 566, 572 (D. Md. 2017). The plaintiffs then sought to compel depositions and
document production. The legislators claimed an absolute legislative privilege.
A three-judge district court rejected the legislators’ argument. It held that “legislative
privilege, like all evidentiary privileges, applies only to the very limited extent that a public good
transcends the normally predominant principle of utilizing all rational means for ascertaining
truth.” Id. at 574 (quotation marks, citations, ellipses, and brackets omitted). The court ordered

the legislators to sit for depositions, produce legislator-legislator communications, and produce
legislator-staff communications. Id. at 576-77.
As in Benisek, the plaintiffs in this case allege that legislative action violated the United
States Constitution. The plaintiffs’ subpoenas were met with claims of an absolute legislative
privilege. The legislators further assert that they are exempt from having to create a privilege log
that would enable the Court and the parties to assess the applicability of the privilege.
The Magistrate Judge conducted a thorough review of the law. He identified precedent
holding that “the legislative privilege for state lawmakers is, at best, one which is qualified.”
Jefferson Cmty. Health Care Centers, Inc. v. Jefferson Par. Gov’t, 849 F.3d 615, 624 (5th Cir.
2017) (quotation marks and citation omitted). “This 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.
The Magistrate Judge concluded that the state legislators subpoenaed in this action must
create the customary privilege log. Once the privilege log is created and reviewed by all, the
Magistrate Judge will adjudicate whether the plaintiffs can overcome the traditional privilege
afforded to legislators’ communications with other legislators and legislative staff. He then
indicated that the legislators will likely have to produce their communications with nonlegislative third parties, where the privilege was waived. See, e.g., League of Women Voters of
Michigan v. Johnson, No. 17-14148, 2018 WL 2335805, at *6 (E.D. Mich. May 23, 2018)
(“Communications between legislators or staff members and third parties consulted during the
redistricting process are not protected by the legislative privilege.”).

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The legislators timely objected. The Magistrate Judge’s decision is reviewed de novo. See
Burgess v. Fed. Deposit Ins. Corp., 871 F.3d 297, 303 (5th Cir. 2017).
The legislators’ principal argument is that they have an absolute right to be free from all
discovery requests in federal court. This Court joins the Magistrate Judge in concluding that this
argument is foreclosed by Fifth Circuit precedent.
In distinguishing the legislative privilege from legislative immunity, Jefferson held that
the legislative privilege was, “at best,” a “qualified” evidentiary privilege to be “strictly
construed.” 849 F.3d at 624. That is a straightforward rejection of an absolute privilege.1
The legislators contend that the discussion in Jefferson was dicta because the case was
truly about legislative immunity. It is an appealing but unpersuasive contention. In Jefferson, the
officials argued not only that they were immune, but also that “their reasons for passing the
resolutions [were] privileged.” 849 F.3d at 624. With the battle joined, the Fifth Circuit was free
to adjudicate the dispute and hold that the privilege was qualified, not absolute.
Lastly, the legislators press that the Eleventh Circuit’s decision in In re Hubbard is the
correct statement of the law. See 803 F.3d 1298 (11th Cir. 2015). That too runs into difficulties.
The Jefferson court was certainly aware of Hubbard—it had been advanced as a basis for
reversal. See Reply Brief of Appellants, Jefferson Cmty. Health Care Centers, Inc. v. Jefferson
Par. Gov’t, No. 16-30875, 2016 WL 6135217, at *6 (5th Cir. Oct. 18, 2016). The Fifth Circuit’s
reasoning, however, was contrary to Hubbard. Hubbard was never mentioned or cited. Perhaps

1

The conclusion was buttressed by Jefferson’s citation to Rodriguez v. Pataki, a leading case holding that
“notwithstanding their immunity from suit, legislators may, at times, be called upon to produce documents or testify
at depositions.” 280 F. Supp. 2d 89, 95 (S.D.N.Y. 2003); e.g., Angelicare, LLC v. St. Bernard Par., No. CV 177360, 2018 WL 1172947, at *8 (E.D. La. Mar. 6, 2018) (applying Rodriguez).

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the Fifth Circuit was being polite to a coordinate court; we do not know.2 But we do know what
Jefferson says. It happens to cut against the legislators’ arguments in this matter.
The Magistrate Judge’s thorough opinion is a correct statement of Fifth Circuit law as it
exists today. For sure, this Court cannot state with absolute certainty that the Magistrate Judge’s
ruling is clearly erroneous or contrary to law. See Fed. R. Civ. P. 72(a). The legislators have
preserved their arguments for further review. In the interests of preserving the status quo pending
the expected interlocutory appeal, the legislators will not have to comply with the Magistrate’s
opinion until the mandate issues from New Orleans or Washington, D.C.
For these reasons, the objection is overruled.
SO ORDERED, this the 25th day of June, 2018.
s/ Carlton W. Reeves
UNITED STATES DISTRICT JUDGE

2

The Magistrate Judge’s opinion suggests that the Eleventh Circuit mistakenly conflated legislative privilege with
legislative immunity.

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