Doe v. Franklin, County of, Missouri et al

Filing 79

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that defendants' Motion to Dismiss Based on Legislative Immunity (#42) is DENIED, but the Motion to Dismiss based on the Political Question Doctrine is HELD IN ABEYANCE. IT IS FURTHER ORDERED that defendants' Motion to Dismiss Based on Standing (#44) is DENIED. IT IS FINALLY ORDERED that defendants' Motion to Compel (#47) is GRANTED as provided herein. Signed by District Judge Stephen N. Limbaugh, Jr on 6/7/2013. (JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

JANE DOE,
Plaintiff,
vs.
FRANKLIN COUNTY, MISSOURI, et al.,
Defendants.

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No. 4:12-CV-918 SNLJ

MEMORANDUM AND ORDER
Plaintiff Jane Doe brought this suit against Franklin County, Missouri, and John
Griesheimer, individually and in his official capacity as Presiding Commissioner of Franklin
County. Plaintiff, pursuant to 42 U.S.C. § 1983, challenges the constitutionality of the County’s
practice of leading and sponsoring a prayer at its Board of Commissioners’ meetings.
Defendants have three pending motions: (1) Defendants’ Motion to Dismiss Based on
Legislative Immunity and the Political Question Doctrine (#42), (2) Defendants’ Motion to
Dismiss Based on Standing (#44), and (3) Defendants’ Motion to Compel (#47). The matters
have been fully briefed1 and are now ripe for disposition.
I.

Factual Allegations
According to the Complaint, plaintiff attended Franklin County Commission meetings in

2011 because she was interested in the Commission’s discussions and decisions on matters on
the agenda. The Commission agenda and meeting minutes reflect a “moment of silence,” but
plaintiff alleges that the “commissioner offered a prayer instead.” Specifically, plaintiff alleges

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The Court notes, however, that defendants did not file a reply in support of their Motion
to Dismiss Based on Standing (#44). The time for doing so has now passed.

that defendant Griesheimer opened the November 29, 2011 commission meeting with the
following prayer:
Dear Lord, we thank you for all the great things you have given us. We thank you
for the very nice weather and incredible rain that we’ve had. We hope everybody.
We hope. We thank you for all the great things that we’re thankful for for
Thanksgiving and for getting us together with our family and friends. We would
ask you to watch over those who in the Armed Forces, who are either here or
away from here in harm’s way. We ask you to watch over them and protect them.
In Jesus’ name we pray. Amen.
Cmplt. ¶ 19. Plaintiff’s complaint also quotes similarly-themed prayers with which defendant
Griesheimer opened Commission meetings on December 6, 2011, December 13, 2011, and
December 20, 2011. Before commencing the prayers, plaintiff alleges that Griesheimer instructs
those attending the meeting to bow their heads. Plaintiff further alleges that meeting attendees
often responded with a chorus of “amen,” and that the attendees sometimes respond to parts of
the prayers orally or by raising their arms toward the ceiling. Plaintiff brought this action against
Franklin County and defendant Griesheimer claiming that (Count I) the defendants’ sponsorship
of sectarian prayers at Commission meetings violates the First and Fourteenth Amendments of
the United States Constitution, and (Counts II and III) the defendants’ sponsorship of sectarian
prayers at commission meetings violates Article I, sections 6 and 7 of the Constitution of 1945 of
the State of Missouri.
II.

Motions to Dismiss
Defendant Griesheimer contends that he has absolute legislative immunity under the

Speech or Debate Clause of the United States Constitution, Art. I, § 6, cl. 1, and that this matter
should be dismissed as to him pursuant to Federal Rules of Civil Procedure 12(b)(1) and
12(b)(6). In his reply brief, defendant Griesheimer argued that plaintiff’s claims against him in

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his official capacity should be dismissed and that thus Franklin County must be dismissed as a
defendant. Finally, defendant Griesheimer contends this matter should be dismissed pursuant to
Rule 12(b)(6) because he states the plaintiff lacks standing to bring this lawsuit.
The purpose of a Rule 12(b)(6) motion to dismiss for failure to state a claim is to test the
legal sufficiency of a complaint so as to eliminate those actions “which are fatally flawed in their
legal premises and designed to fail, thereby sparing litigants the burden of unnecessary pretrial
and trial activity.” Young v. City of St. Charles, 244 F.3d 623, 627 (8th Cir. 2001) (quoting
Neitzke v. Williams, 490 U.S. 319, 326-27 (1989)). “To survive a motion to dismiss, a claim
must be facially plausible, meaning that the ‘factual content . . . allows the court to draw the
reasonable inference that the respondent is liable for the misconduct alleged.’” Cole v. Homier
Dist. Co., Inc., 599 F.3d 856, 861 (8th Cir. 2010) (quoting Ashcroft v. Iqbal, 129 S.Ct. 1937,
1949 (2009)). The Court must “accept the allegations contained in the complaint as true and
draw all reasonable inferences in favor of the nonmoving party.” Id. (quoting Coons v. Mineta,
410 F.3d 1036, 1039 (8th Cir. 2005)).
Federal Rule of Civil Procedure 12(b)(1) requires dismissal if the court lacks subject
matter jurisdiction over the claim. The standards applied to a Rule 12(b)(1) motion to dismiss are
the same as those that apply to a Rule 12(b)(6) motion to dismiss for failure to state a claim.
Vankempen v. McDonnell Douglas Corp., 923 F. Supp. 146, 147 (E.D. Mo. 1996) (citing Satz v.
ITT Fin. Corp., 619 F.2d 738, 742 (8th Cir. 1980)).

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A.

Motion to Dismiss Based on Legislative Immunity (#42)

The Constitution provides that
The Senators and Representatives ... for any Speech or Debate in either House,
they shall not be questioned in any other Place.
U.S. Const. art. I, § 6, cl. 1. The above-quoted “Speech or Debate Clause” forms the basis of the
“legislative immunity” advocated here by defendant. Although defendant is not a United States
congressman, a “local legislator is entitled to absolute legislative immunity for acts undertaken
within the ‘sphere of legitimate legislative activity.’” Leapheart v. Williamson, 705 F.3d 310,
313-14 (8th Cir. 2013) (quoting Bogan v. Scott–Harris, 523 U.S. 44, 54 (1998)).
At issue here is whether defendant Griesheimer’s act — opening Franklin County
Commission sessions with prayer — is within the “sphere of legislative activity” such that
legislative immunity attaches.
“The Speech or Debate Clause was designed to assure a co-equal branch of the
government wide freedom of speech, debate, and deliberation without intimidation or threats
from the Executive Branch. It thus protects Members against prosecutions that directly impinge
upon or threaten the legislative process.” Gravel v. United States, 408 U.S. 606, 616 (1972).
Considerations of the Clause’s historical purpose have been critical to the Supreme Court’s
considerations of the Clause’s application. The Supreme Court has observed that its
jurisprudence
reflect[s] a decidedly jaundiced view towards extending the Clause so as to
privilege illegal or unconstitutional conduct beyond that essential to foreclose
executive control of legislative speech or debate and associated matters such as
voting and committee reports and proceedings.... In each case, protecting the
rights of others may have to some extent frustrated a planned or completed
legislative act; but relief could be afforded without proof of a legislative act or the
motives or purposes underlying such an act. No threat to legislative independence
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was posed, and Speech or Debate Clause protection did not attach.
Id. at 621 (discussing Kilbourn v. Thompson, 103 U.S. 168 (1881); Dombrowski v. Eastland, 387
U.S. 82 (1967), and Powell v. McCormack, 395 U.S. 486 (1969)). Defendants here advocate for
a per se test, that is, if the subject act is any “speech” that occurred in the House or other
legislative body, then it is protected by the Speech and Debate Clause.
Of particular note, defendant argues, is United States v. Johnson, in which a former U.S.
Representative was convicted of the federal conflict of interest statute and conspiracy to defraud
the United States based on, among other things, a speech the congressman read to Congress. 383
U.S. 169 (1966). The speech was in support of certain savings and loan associations, and the
congressman was paid for his “services.” Id. at 172. The Supreme Court set aside the
conspiracy conviction and ordered a new trial on the other counts because the conspiracy count
was premised entirely on the speech and the other counts were undoubtedly affected by evidence
pertaining to the (protected) speech. Id. at 176-77. The Supreme Court held that “a prosecution
under a general criminal statute dependent on such inquiries necessarily contravenes the Speech
or Debate Clause.” Id. at 169. “However represensible such conduct may be, we believe the
Speech or Debate Clause extends at least so far as to prevent it from being made the basis of a
criminal charge against a member of Congress of conspiracy to defraud the United States by
impeding the due discharge of government functions.” Id. at 180.
Defendant charges that if Johnson’s criminal activities were immune, then defendant
Griesheimer’s invocations are, too. Further, defendant notes that the Court must defer to the
judgment of the legislative body as to what is an “essential” part of legislative activity, citing
Doe v. McMillan, 412 U.S. 306, 313 (1973). In McMillan, plaintiffs were parents of school

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children who were the subjects of a Congressional report regarding academic and disciplinary
failings. The Supreme Court held that legislative immunity applied to the defendant members of
the House of Representatives Committee insofar as they had engaged in legislative acts of
compiling the report, referring it to the House, or voting for its publication. Id. at 311-12. The
plaintiffs argued that including the students’ personal details in the report should be actionable
because it was unnecessary and irrelevant to any legislative purpose. Id. at 312. The Supreme
Court disagreed and observed that although we might disagree with the legislative body as to
“whether it was necessary, or even remotely useful,” to engage in the activities for which they
are sued, “we have no authority to oversee the judgment of the Committee in this respect or to
impose liability on its Members if we disagree with their legislative judgment.” Id. at 313. The
Court held that the acts complained of were all “integral part(s) of the deliberative and
communicative processes” and were thus protected by the Constitution’s Speech or Debate
Clause. Id. (quoting Gravel v. United States, 408 U.S. 606, 625 (1972)). The Supreme Court
noted however, that “everything a [legislator] may regularly do is not a legislative act within the
protection of the Speech or Debate Clause.” 412 U.S. at 313. The Court thus held in McMillan
that legislators were not immune from liability for distributing the objectionable materials
“beyond the reasonable requirements of the legislative function.” Id. at 315-316; cf. Hutchinson
v. Proxmire, 443 U.S. 111, 127-28 (1979) (holding that a legislator “may be held liable for
republishing defamatory statements originally made in either House”).
Defendant maintains that his prayers were not outside the legislative forum because they
were uttered during the legislative meeting, and thus they are per se immune pursuant to
McMillan. But there is no precedent regarding legislative prayer directly on point. The Eighth

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Circuit addressed legislative immunity in Chambers v. Marsh, 675 F.2d 228, 231 (8th Cir. 1982)
rev’d on other grounds, 463 U.S. 783 (1983), in which the plaintiff challenged the Nebraska
legislature’s practice of opening session with prayers not by a legislator but by a chaplain paid
for by state funds. The Eighth Circuit stated that, with respect to defendant’s legislative
immunity argument, “no speech activity by any legislator is at issue. Moreover, the deliberative
process of the legislature will not be impaired to any degree by judicial resolution of the claim
brought by [plaintiff].” 675 F.2d at 232. Although the Supreme Court reversed the Eighth
Circuit’s holding that the Nebraska legislature’s practice violated the Constitution, the Supreme
Court did not address the legislative immunity issue. 463 U.S. 783. Neither the Eighth Circuit’s
nor the Supreme Court’s opinion in Marsh provide definitive guidance regarding legislative
immunity in this case. However, the Eighth Circuit acknowledged that the “deliberative
process” was not at issue with respect to prayer at the commencement of legislative sessions.
Further, legislative immunity applies to actions “taken in furtherance of legitimate legislative
activity.” Hinshaw, 436 F.3dat 1008. The Eighth Circuit and other courts’ extensive discussions
on what constitutes a “legislative act” defies defendant’s position in favor of a “per se” rule.
Recently, for example, the Eighth Circuit reiterated that
When determining whether an act is legislative, the Supreme Court applies a
functional test. Redwood Vill. P’ship v. Graham, 26 F.3d 839, 840 (8th Cir.
1994) (citing Harlow v. Fitzgerald, 457 U.S. 800, 810, 102 S.Ct. 2727, 73
L.Ed.2d 396 (1982)). “Legislation ... looks to the future and changes existing
conditions by making a new rule to be applied thereafter to all or some part of
those subject to its power.” Prentis v. Atl. Coast Line Co., 211 U.S. 210, 226, 29
S.Ct. 67, 53 L.Ed. 150 (1908) (quoted in Brown v. Griesenauer, 970 F.2d 431,
437 (8th Cir. 1992)). For example, passing an ordinance is a legislative act.
Bogan, 523 U.S. at 55, 118 S.Ct. 966.
Under this functional test, “[w]hether an act is legislative turns on the nature of
the act, rather than on the motive or intent of the official performing it.” Id. at 54,
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118 S.Ct. 966. A legislator’s potential or alleged motives are “wholly irrelevant to
[the] determination of whether [a legislator is] entitled to legislative immunity.”
State Emps. Bargaining Agent Coal. v. Rowland, 494 F.3d 71, 90 (2d Cir. 2007)
(citing Bogan, 523 U.S. at 55, 118 S.Ct. 966). The issue is “ ‘whether, stripped of
all considerations of intent and motive, [the petitioner’s] acts were legislative.’”
Id. (alteration in original) (quoting Bogan, 523 U.S. at 55, 118 S.Ct. 966).
Leapheart, 705 F.3d at 313-14. Looking to the nature of defendant Griesheimer’s act — a prayer
that looks to the past and present, offers thanks, and requests protection for the Armed Forces —
this Court cannot say that defendant’s prayers were functionally legislative. Although defendant
articulates admirable motives for his prayer invocations, the Court must decline to consider those
motives because, first, the Court is not permitted to consider matters outside the pleadings on a
Rule 12(b)(6) motion to dismiss (see Fed. R. Civ. P. 12(d)), and, second, to the extent the Court
could consider such matters, binding precedent is clear that the legislator’s motives or intent are
“wholly irrelevant.” Leapheart, 705 F.3d at 714 (quoting Rowland, 494 F.3d at 90). Moreover,
relief can be provided to plaintiff here “without proof of a legislative act” and “[n]o threat to
legislative independence [is] posed.” See Gravel, 408 U.S. at 621; see also Marsh, 675 F.2d at
232 (“the deliberative process of the legislature will not be impaired to any degree by judicial
resolution of the claim brought by [plaintiff].”). Finally, in contrast to situations like that in
Johnson, the speech in this case — the specific content of the prayer — did not pertain to
deliberating or passing any law. Therefore, legislative immunity does not attach.
Thus, defendants’ motion is denied with respect to legislative immunity.
B.

Motion to Dismiss Official Capacity Claims

The Court must also address defendant Griesheimer’s argument for dismissal of the
claims made against him in his official capacity. Defendant suggests that because he was acting
only in his individual capacity when he uttered the prayers at issue, he was not acting pursuant to
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any Franklin County policy or custom. Therefore, defendant argues, claims made against him in
his official capacity must be dismissed.
A 42 U.S.C. § 1983 suit against a county commissioner in his official capacity is treated
as a suit against the county. See Liebe v. Norton, 157 F.3d 574, 578 (8th Cir. 1998). The county
“may only be held liable for constitutional deprivations if the deprivation is the result of a policy
or custom” of the county. Id. A “policy” is “an official policy, a deliberate choice of a guiding
principle or procedure made by the ... official who has final authority regarding such matters.”
Mettler v. Whitledge, 165 F.3d 1197, 1204 (8th Cir. 1999). A “custom” is a practice “that is not
authorized by written law, but which is ‘so permanent and well-settled ... as to [have] the force
of law.’” Russell v. Hennepin Cnty., 420 F.3d 841, 849 (8th Cir. 2005) (quoting Harris v. City of
Pagedale, 821 F.2d 499, 504 n. 7 (8th Cir. 1987) and Monell v. Dep’t of Social Servs., 436 U.S.
658, 691 (1978)).
Defendant maintains (1) the Commission’s policy was to have a moment of silence, not a
prayer, (2) he acted entirely on his own, and (3) the short duration of time over which the prayers
occurred (12 months) could not have given rise to a custom. Plaintiff counters that defendant
Griesheimer’s acts made the prayer invocations a County Commission custom and that
defendant’s affidavit even refers to prayers as the Commission’s “practice.” It is clear to the
Court that there is, at least, a question of fact as to this matter. As a result, defendant’s motion
will be denied.
C.

Motion to Dismiss Based on Political Question Doctrine (#42)

Next, defendants contends that the issue at the heart of this case — whether the
legislative prayers at issue were “sectarian” such that they violated the Establishment Clause —

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is a nonjusticiable political question. The “political question doctrine” is a narrow exception to
the general rule that the judiciary “has a responsibility to decide cases properly before it, even
those it ‘would gladly avoid.’” Zivotofsky ex rel. Zivotofsky v. Clinton, 132 S. Ct. 1421, 1427
(2012) (quoting Cohens v. Virginia, 6 Wheat. 264, 404, 5 L.Ed. 257 (1821)). A political
question exists “where there is a textually demonstrable constitutional commitment of the issue
to a coordinate political department; or a lack of judicially discoverable and manageable
standards for resolving it.” Id. (internal quotations omitted). In such a case, the Supreme Court
has held that “a court lacks the authority to decide the dispute before it.” Id.
Defendants posit that there are no judicially discoverable and manageable standards for
determining whether a prayer is sectarian. Defendants’ position is belied by numerous cases that
address similar matters. See, e.g., Marsh, 463 U.S. at 793 n.14, quoted in County of Allegheny v.
American Civil Liberties Union Greater Pittsburgh Chapter, 492 U.S. 573, 604 (1989) (noting
that the legislative prayers at issue in Marsh did not violate the Establishment Clause “because
the particular chaplain had ‘removed all references to Christ.’”); Lee v. Weisman, 505 U.S. 577,
588 (1992) (defining, in context of school prayer case, “sectarian” prayers as using “the ideas or
images identified with a particular religion”); id. at 641 (Scalia, J., dissenting) (defining sectarian
prayer as one “specifying details upon which men and women who believe in a benevolent,
omnipotent Creator and Ruler of the world are known to differ (for example, the divinity of
Christ).”); Galloway v. Town of Greece, 681 F.3d 20, 28-9 (2d Cir. 2012), cert. granted, 81
U.S.L.W. 3336 (May 20, 2013) (No. 12-696); Pelphrey v. Cobb County, Ga., 547 F.3d 1263
(11th Cir. 2008).
Regardless, as the parties have acknowledged (see #77, 78), the Supreme Court has

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recently granted certiorari to the parties in Galloway, a case which involves whether legislative
prayer offered by volunteers from the community violates the Establishment Clause. As
defendants put it, the Supreme Court is “likely to clarify or restate the governing test for
legislative prayer” in the Galloway decision. (#78.) The Second Circuit’s opinion in Galloway
highlights the trouble inherent in navigating the Supreme Court’s jurisprudence regarding
legislative prayer, but ultimately the Second Circuit held that it could determine whether the
town’s practice of opening its meetings with a prayer, “viewed in its totality by an ordinary,
reasonable observer, conveyed the view that the town favored or disfavored certain religious
beliefs.” 681 F.3d at 29. That Court concluded that the “town’s prayer practice must be viewed
as an endorsement of a particular religious viewpoint.” Id. at 30.
It is likely that the Supreme Court’s result in Galloway will settle the defendants’
political question argument. As a result, this Court will hold in abeyance defendants’ argument
regarding the political question doctrine pending the Supreme Court’s resolution of Galloway v.
Greece.
D.

Motion to Dismiss Based on Standing (#44)

Defendants contend that plaintiff lacks standing under Article III of the Constitution to
bring this lawsuit. They state that her “psychological unease” as an “offended observer” of the
legislative prayers is insufficient.
Defendant is correct that “[n]o principle is more fundamental to the judiciary’s proper
role in our system of government than the constitutional limitation of federal-court jurisdiction to
actual cases or controversies.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341-42 (2006)
(quoting Raines v. Byrd, 521 U.S. 811, 818 (1997)). In order to support an actual controversy,

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plaintiff must have standing; that is, plaintiff must allege an injury that is “distinct and palpable,”
and not one that is “abstract” or “conjectural” or “hypothetical.” Allen v. Wright, 468 U.S. 737,
751 (1984) (citations omitted).
The Eighth Circuit holds that to establish standing for an Establishment Clause violation,
plaintiff must demonstrate “direct and unwelcome personal contact with the alleged
establishment of religion.” Red River Freethinkers v. City of Fargo, 679 F.3d 1015, 1022 (8th
Cir. 2012) (quoting ACLU Neb. Found. v. City of Plattsmouth, Neb., 358 F.3d 1020, 1029 (8th
Cir. 2004), rev’d en banc on other grounds, 419 F.3d 772 (8th Cir. 2005)). Plaintiff has
sufficiently alleged standing here. She alleges she was injured because she repeatedly came into
unwelcome contact in her own community with the prayer practice, she felt excluded and
offended by the practice, and she felt coerced into altering her own behavior (i.e., by bowing her
head as instructed during prayers). In Americans United for Separation of Church & State v.
Prison Fellowship Ministries, Inc., prison inmates alleged “they altered their behavior and had
direct, offensive, and alienating contact with” a program they contended violated the
Establishment Clause. 509 F.3d 406, 419 (8th Cir. 2007). The Court held that “An injunction
can remedy this injury. The inmates have standing.” Id. Here, plaintiff claims that although
defendants have voluntarily stopped the prayer practice of which she complains, she is entitled to
nominal damages for her feelings of exclusion.
Defendants’ reliance on Valley Forge Christian Coll. v. Americans United for Separation
of Church & State, Inc., 454 U.S. 464 (1982), is misplaced. There, plaintiffs objected to the
government’s sale of surplus goods to a church for $0 (after the church received the benefit of a
“100% public benefit allowance”) and claimed an Establishment Clause violation. 454 U.S. at

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756-57. Plaintiffs read about the conveyance in a news release, and the Court held that they
lacked standing because “they fail[ed] to identify any personal injury suffered by them as a
consequence of the alleged constitutional error.” Id. at 765. The Court clarified, however, that
“we do not retreat from our earlier holdings that standing may be predicated on noneconomic
injury.” Id. at 766. Defendants’ attempt to characterize this case as akin to the plaintiffs in
Valley Forge fails because here, plaintiff came into personal contact with the allegedly
unconstitutional practice. She did not, for example, read about the prayers in the newspaper and
find the concept offensive in theory. She alleges she experienced the injury herself, in person,
and that is sufficient “unwelcome personal contact” under this Circuit’s precedent. Red River
Freethinkers, 679 F.3d at 1022. Because this Court finds that plaintiff has properly alleged
standing, it need not address whether plaintiff has also sufficiently shown she has taxpayer
standing. Defendants’ motion to dismiss based on standing will be denied.
III.

Motion to Compel (#47)
Discovery in this case was to commence on September 17, 2012 and be completed by

January 28, 2013 (pursuant to an agreed-upon extension). (#31.) Defendants were, during the
discovery period, under the impression that (1) plaintiff would turn over audio recordings of the
prayers that are the subject of this litigation, and (2) plaintiff would be made available for
deposition regarding her alleged injuries. Then, defendants say, well after the discovery period
closed, despite oral and e-mail communication about those matters, plaintiff told defendant that
she would not turn over the recordings or appear for a deposition.
Plaintiff argues that defendants did not make formal or informal discovery requests and
that defendants’ motion is out of time. Further, plaintiff contends that the records of the prayers

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are privileged work product.
Although defendants waited to file their motion to compel until after the February 8,
2013 deadline, plaintiff’s counsel did not correct defendants’ apparent misunderstandings until
the week of February 18, 2013. Further, defendants filed their motion to compel after receiving
plaintiff’s motion for summary judgment, which attached plaintiff’s declaration attesting to her
injuries. Defendants seek to depose plaintiff to better ascertain her alleged injuries and damages,
which is permitted by Federal Rule of Civil Procedure 56(d): “If a nonmovant shows by affidavit
or declaration that, for specified reasons, it cannot present facts essential to justify its opposition,
the court may...allow time to obtain affidavits or declarations or to take discovery.” Further,
defendants note that plaintiff’s declaration quotes at length from the recordings she made at
Commissioner meetings, and defendants desire access to the recordings of the prayers and
comments pertaining to them. Defendants’ delay in filing the motion to compel, then, is
explained by the filing of plaintiff’s summary judgment motion, and Rule 56(d) provides an
avenue for the relief defendants seek. Aside from Rule 56(d), plaintiff’s counsel’s failure to alert
defense counsel to the fact that she would not appear for a deposition or produce the tape
recording excuses defendants’ delay.
Plaintiff now claims that the records are privileged work product because she “collected
and prepared them in anticipation of litigation.” (#50 at 8.) The Court acknowledges that
although “‘work product’ may be, and often is, that of an attorney, the concept of ‘work product’
is not confined to information or materials gathered or assembled by a lawyer.” Diversified
Indus., Inc. v. Meredith, 572 F.2d 596, 603 (8th Cir. 1977). Even assuming the tape recordings
are work product, however, defendants are entitled to their production.

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First, it is noteworthy that plaintiff did not object to producing the tapes when given the
opportunity, as plaintiff’s counsel did not respond at all to defense counsel’s January 16 and 24
emails which made clear that defendants expected to receive the tapes.
Second, if the tapes are work product at all, they are clearly “ordinary work product,” as
they contain “raw factual information.” Baker v. Gen. Motors Corp., 209 F.3d 1051, 1054 (8th
Cir. 2000) (contrasting ordinary work product with opinion work product, which enjoys near
absolute immunity from production). Ordinary work product may be discoverable where “the
party seeking discovery has a substantial need for the materials and the party cannot obtain the
substantial equivalent of the materials by other means.” Id. (citing Fed. R. Civ. P. 26(b)(3)).
Both criteria are met here. With respect to substantial need, plaintiff quotes heavily from the
tapes in her summary judgment papers, and defendant Griesheimer does not believe that he
instructed the attendees to bow their heads except during the moment of silence. Short of
employing time travel, defendants have no way to obtain plaintiff’s recordings or even their
“substantial equivalent.”
Third, defendants suggest that the recordings are available to them under Rule
26(b)(3)(C), which states that a person may “on request, ...obtain the person’s own previous
statement about the action or its subject matter,” and “[i]f the request is refused, the person may
move for a court order.” Thus defendant Griesheimer maintains that recordings of his own
prayers at the Commission meetings should be produced. Plaintiff disputes that Rule
26(b)(3)(C) is applicable because, she argues, the recordings are not “about the action or its
subject matter” but rather the recordings “are the incident itself.” (#50 at 9.) Plaintiff’s
distinction is dubious, but the Court need not resolve this question because defendants meet the
requirements for production of work product under Rule 26(b)(3)(A).
Finally, prejudice to plaintiff will be minimal if limited discovery is allowed, particularly
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because plaintiff has already consented to delaying adjudication of this matter on the merits until
after the Supreme Court decides Galloway. (See #77 (“Because the challenge here is to a past
practice, not an ongoing one, there is little, if any, harm to awaiting the Supreme Court’s
decision before ruling on the dispositive motions in this case.”).) There is no question that the
recordings are ordinary work product and that they do not contain the thoughts and reflections of
plaintiff’s attorneys. Defendants show a substantial need for access to the recordings, and
defendants have no way to access the information therein in any other way. Defendants may
also now depose the plaintiff outside the discovery period.
The Motion to Compel will be granted, and the parties shall have until July 8, 2013 to
arrange for and complete production of the recordings and plaintiff’s deposition.
Accordingly,
IT IS HEREBY ORDERED that defendants’ Motion to Dismiss Based on Legislative
Immunity (#42) is DENIED, but the Motion to Dismiss based on the Political Question Doctrine
is HELD IN ABEYANCE.
IT IS FURTHER ORDERED that defendants’ Motion to Dismiss Based on Standing
(#44) is DENIED.
IT IS FINALLY ORDERED that defendants’ Motion to Compel (#47) is GRANTED
as provided herein.
Dated this 7th

day of June, 2013.
STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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