Shelby County Board Of Education v. Memphis City Board of Education et al

Filing 471

SUPPLEMENTAL ORDER to 461 Granting 442 Third-Party Plaintiff's Motion to Compel Production from State Defendants. Signed by Magistrate Judge Charmiane G. Claxton on 11-2101. (Claxton, Charmiane)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

THE BOARD OF EDUCATION OF
SHELBY COUNTY, TENNESSEE,

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Plaintiff, Counter-Defendant,
v.
THE MEMPHIS CITY BOARD OF
EDUCATION, et al.,
Defendants.

THE BOARD OF COUNTY
COMMISSIONERS OF SHELBY COUNTY,
Third-Party Plaintiff,
v.
ROBERT E. COOPER, JR., in his official
capacity as Attorney General of the State of
Tennessee, et al.,
Third Party Defendants.

No. 2:11-cv-02101-SHM-cgc

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SUPPLEMENTAL ORDER GRANTING THIRD-PARTY PLAINTIFF’S MOTION TO
COMPEL PRODUCTION FROM STATE DEFENDANTS

I. Introduction
Before the Court is Third Party Plaintiff, The Board of County Commissioners of Shelby
County, Tennessee’s (“County Commission”) Motion to Compel Production (Docket Entry “D.E.”
#442) pursuant to Rule 37 of the Federal Rules of Civil Procedure from the following Defendants:

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Robert E. Cooper, Jr., Attorney General for the State of Tennessee; Tre Hargett, Secretary of State
for the State of Tennessee; Mark Goins, Coordinator of Elections for the Tennessee Department of
State; The Tennessee Department of State, Division of Elections; and, Kevin Huffman,
Commissioner of the Tennessee Department of Education (collectively “State Defendants”). The
instant motion was referred to the United States Magistrate Judge for determination. (D.E. #446).
On November 30, 2012, the Magistrate Judge issued an Order Granting the County
Commission’s Motion to Compel Production (D.E. #461). The Magistrate Judge noted that it did
not appear that State Defendants had filed a Response to the Motion and that failure to file a
response could be grounds for granting the motion. However, rather than granting the Motion on
that basis, the Magistrate Judge considered the merits of the County Commission’s Motion.
Ultimately, the Magistrate Judge concluded that the Motion should be granted.
On December 5, 2012, State Defendants filed an Appeal of the Magistrate Judge’s Order.
State Defendants assert that they had timely filed a Notice that contained their Response in
Opposition to the Motion on November 21, 2012 (D.E. #453). To ensure that the State Defendant’s
arguments have been throughly considered, the Magistrate Judge has reviewed the Response and
will address the issues raised therein in this Supplemental Order to the November 30, 2012 Order.1
II. Analysis
A. Attorney General’s “Control” Over Requested Documents
In the State Defendant’s Response, they assert that the Attorney General does not have

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The Magistrate Judge has already set forth the substance of the County Commission’s
Second Set of Requests for Production of Documents and Things (“Second Set of Requests”)
and the State Defendant’s grounds for opposition in its November 30, 2012 Order.
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“control” over the documents requested from the Tennessee General Assembly.2 However, the State
Defendants have not cited any legal basis for the asserted lack of control over these documents. The
Court remains persuaded by the reasoning in its November 30, 2012 Order that, absent any explicit
provision to the contrary, the Attorney General, who is State Defendants’ legal representative under
Tennessee law, must be deemed to have such control to carry out the broad statutorily mandated
requirements of such representation, including compliance with discovery.
The State Defendants raised a concern that this Court should not follow the County
Commission’s reasoning that other courts, namely in John B. v. Goetz, No. 3:98-0168, 2010 WL
8754110, at *103 (M.D.Tenn. Jan. 28, 2010), have ordered precisely the same discovery. The
Magistrate Judge’s November 30, 2012 Order did not base its reasoning on the Board’s assertion
that the Goetz court’s ruling necessarily dictate that disclosure is required in this case.3 However,
while the requests at issue in Goetz pertained to the Governor of the State of Tennessee and the
requests at issue in the instant motion pertain to the General Assembly, the case before this Court
is analogous to a significant extent. In Goetz, the United States District Court for the Middle District
of Tennessee reasoned that, absent a citation of legal authority to the contrary, the Governor, by and
through his legal representatives, was not excluded from complying with discovery. Id. The Goetz
court found that any contrary conclusion would run counter to the Supreme Court’s principle that
“there is a general duty to give what testimony one is capable of giving.” Id. (citing Jaffee v.

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Although the County Commission argued in its Motion that State Defendants may
oppose discovery on the grounds that the Tennessee General Assembly is not a “named
defendant” in this litigation, State Defendants’ Response does not argue this issue.
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The Magistrate Judge cited Goetz only for its explanation of “control” under Rule
34(a)(1). (Nov. 30, 2012 Order at 5).
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Redmond, 518 U.S. 1, 9 (1996)).

Here, the General Assembly, by and through its legal

representative, must comply with discovery absent legal authority to the contrary. The State
Defendants’ argument that the Governor’s office’s duties in the discovery process are
distinguishable from a ninety-nine-member House and thirty-three member Senate with separate and
individually elected members throughout the State is not persuasive. Merely because the task may
be more onerous4 does not mean that it is not required under the Federal Rules of Civil Procedure.
B. Speech or Debate Clause
The Court’s November 30, 2012 Order concluded that the Speech or Debate Clause of the
United States Constitution, Article I, Section 6, does not apply to state legislators. The State
Defendants’ Response agrees with this conclusion. Thus, the only issues raised in the State
Defendants’ Response are as follows: (1) whether the Speech or Debate Clause of the Tennessee
Constitution, Article II, Section 13, is a permissible ground for asserting privilege to the County
Commission’s Second Set of Requests; or, (2) whether federal common law contains a similar
privilege for state legislators.
After reviewing the State Defendants’ position, the Court does not find any basis to alter or
amend its conclusion in its November 30, 2012 Order with respect to the applicability of the
Tennessee Speech or Debate Clause in federal court. Rule 501 of the Federal Rules of Evidence
provides that federal law of privilege applies in federal court. Fed. R. Evid. 501. State Defendants’
have conceded that the United States Constitution’s Speech or Debate clause is inapplicable here.

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The State Defendants similarly assert that the General Assembly retains “voluminous
amounts” of information, much of which may be privileged, which would necessitate an
“enormous privilege log.” However, the issue of undue burden does not appear to have been
raised by State Defendants as an objection to the requests at issue, nor has it been briefed by the
parties.
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Further, State Defendants have not provided any authority for the applicability of the
Tennessee Constitution’s Speech or Debate Clause in federal court. While State Defendants discuss
at length that the scope of the Tennessee constitutional privilege has been held to be as broad as the
federal constitutional privilege, this is distinct from the applicability of the Tennessee constitutional
privilege. Ultimately, the fact that the Tennessee constitutional privilege is “almost identical” to
the federal privilege does not render it to be applicable in federal court. Mayhew v. Wilder, 46
S.W.3d 760, 774 (Tenn. Ct. App. 2001). The United States Supreme Court has explicitly so held
in United States v. Gillock, 445 U.S. 360, 368 (1980) (concluding that the fact that the Tennessee
Constitution’s Speech or Debate Clause could be asserted in state court does not “compel an
analogous privilege” in federal court).5
State Defendants’ Response also suggest that the federal common law provides a basis for
a speech or debate privilege for state legislators. The Gillock court has also considered this question
and explicitly determined that such a privilege is not “either indelibly ensconced in our common law
or an imperative of federalism.” 445 U.S. at 367. The Gillock court made this determination based
upon the language and legislative history of Rule 501. Id. at 366-368. The Gillock court also noted
that, should Congress desire to enact such a privilege, it would have done so, but it has not. Id. at
366-368. Therefore, the Magistrate Judge concludes that neither the Tennessee Speech or Debate

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State Defendants also assert that Gillock involved a criminal prosecution rather than a
civil action and, thus, his acts were beyond the scope of the privilege because criminal offenses
could not possibly constitute legitimate legislative acts. While it may be true the determination
of what acts fall within the scope of the privilege varies from a civil case to a criminal case, this
is a secondary question to what privilege applies in the first place. The Court is not aware of any
basis for a distinction under Rule 501 between civil and criminal cases. Thus, this Court finds
the Gillock court’s conclusion that federal law of privilege applies in federal court to be
determinative of the issue.
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Clause nor federal common law provides a privilege for the Tennessee General Assembly to assert
in opposition to the County Commission’s Second Set of Requests.6
C. Separation-of-Powers Doctrine
Next, the State Defendants assert that the Second Set of Requests are unreasonable for two
reasons under the separation-of-powers doctrine. First, the State Defendants argue as follows: “In
light of the separate, co-equal, and co-exclusive roles of the three governmental branches, prudence
dictates that where the validity of a statute is in question, any judicial inquiry into the conduct and
motives attributable to members of the General Assembly in the enactment of the statute is
forbidden.” Second, the State Defendants argue that the Attorney General cannot comply because
creating and reviewing privileged and confidential documents of the General Assembly violates the
separation-of-powers doctrine. Although the County Commission’s Motion discussed briefly
addressed separation-of-powers concerns with respect to the issues, the Court did not specifically
address the State Defendants’ two specific questions in its November 30, 2012 Order. Thus, the
Court will address those in this Supplemental Order.
First, as to whether a federal court may consider the constitutionality of a state legislative
enactment, there is no separation-of-powers concern. As the Gillock court succinctly noted, “under

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State Defendants additionally argue that, if the privileged documents relating to the
legislative function that the County Commission seeks to discovery are not afforded the
protections of the Speech or Debate Clause, it would violate the First Amendment. State
Defendants assert that, in the absence of such a protection, “legislators will be reluctant to
engage in communications regarding legislation for fear that anything they say may be
discovered by one challenging the constitutionality of a statute.” However, State Defendants do
not cite any authority that Congress’s decision not to establish a privilege for state legislators
violates the First Amendment. State Defendants likewise do not cite any authority for their
position that permitting the discovery requested in this case would violate the First Amendment.
Thus, the Court will not address these issues.
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our federal structure, we do not have the struggles for power between the federal and state systems
. . . .” 445 U.S. at 370. For this reason, “federal interference in the state legislative process is not
on the same constitutional footing with the interference of one branch . . . in the affairs of a coequal
branch.” Id. (citing cases). As to the secondary question of whether this inquiry can specifically
include the potential motivations of the state legislature, this issue will be considered with State
Defendants’ arguments as to whether the discovery requests are relevant or reasonably calculated
to lead to the discovery of admissible evidence. See, supra, Section II.D.
Second, the State Defendants’ briefly mention in their argument regarding whether the
Attorney General has “control” over the requested documents that any review of privileged or
confidential legislative documents by the Attorney General would be in contravention of the
separation-of-powers doctrine. However, the relationship between the Attorney General and its
represented parties is not a matter for this Court to determine. This Court must simply determine
the scope of appropriate discovery under the Federal Rules of Civil Procedure. Thus, the Court will
not further address this issue.
D. Relevance of Discovery Requests
State Defendants further assert that the Second Set of Requests are not relevant and are not
reasonably calculated to lead to the discovery of admissible evidence under Rule 26 of the Federal
Rules of Civil Procedure. As the Court has already noted, without the Second Set of Requests and
the objections thereto in the record, it is impossible for the Court to know whether State Defendants
raised this as a ground for their objection to the requests, as the County Commission’s Motion does
not reference such an objection. In any event, the Court will address the State Defendants’ position
regarding this objection.

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The Court’s November 30, 2012 Order already concluded that such discovery was relevant
and reasonably calculated to lead to the discovery of admissible evidence. However, the State
Defendants’ raise a novel issue not previously considered by the Court.

Specifically, State

Defendants argue that such discovery should not be permitted because the claims in this case under
the Equal Protection Clause of the Fourteenth Amendment should ultimately be analyzed under the
rational basis test. State Defendants argue that evidence of legislative intent, including statements
or documents outside the legislative record, are not admissible under this level of scrutiny.
As the District Court has not yet considered the claims under the Equal Protection Clause,
the District Judge has not made a determination as to what level of scrutiny applies to these claims.
It is not the position of the Magistrate Judge to do so, and it is not within the ambit of the Order of
Reference. However, the Magistrate Judge must determine what discovery requests are reasonably
calculated to lead to the discovery of admissible evidence before the eventual determination on the
merits of the Equal Protection Clause claim. The Magistrate Judge must be guided the allegations
in the Complaint, by the Federal Rules of Civil Procedure, and by case authority on this issue.
As a general rule, express classifications based on race must be analyzed under strict
scrutiny. Tigrett v. Cooper, 855 F.Supp.2d 733, 750 (quoting Johnson v. California, 543 U.S. 499,
505 (2005)). However, if an enactment is facially neutral, which the County Commission asserts
that the Municipal School Acts at issue in this case are, a court must not automatically apply strict
scrutiny. Id. But strict scrutiny will “trigger[ed]” if the Complaint contains factual allegations of
racial animus, purpose, or intent. Id at 752-53. The allegations, however, may not simply be “legal
conclusions masquerading as factual assertions.” Id.
In the instant case, the County Commission’s Second Amended Third-Party Complaint (D.E.

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#371) contains what can only be deemed as extensive factual allegations regarding its position that
the enactment of the Municipal School Acts was motivated by racial animus, purpose, and intent.
(Second Am. Compl. ¶¶ 64, 67-71, 105-149). The County Commission alleges at great length the
demographic factors of Shelby County and the municipalities therein as well as the historical
background and sequence of events preceding the decision to enact the Shelby County Municipal
School Acts. (Second Am. Compl. ¶¶ 105-127).
Of specific important to the instant discovery requests, the County Commission alleges as
follows: “Prior to the enactment of the Shelby County Municipal School Acts, some Shelby County
citizens voiced concerns regarding suburban children becoming part of a predominantly AfricanAmerican school district and/or increasing the number of African-American children in their school
system.” (Second Am. Compl. ¶ 128). The County Commission further alleges as follows: “[S]ome
Shelby County citizens expressed concerns about allowing schools located in suburban Shelby
County to be governed by the same predominantly African-American administrators and/or elected
officials that operated the Memphis City School system.” (Second Am. Compl. ¶ 129). The County
Commission alleges that, “[u]pon information and belief, these were among the concerns to which
the Tennessee legislators responded when they voted in favor of the Shelby County Municipal
School Acts.” (Second Am. Compl. ¶ 130). The County Commission alleges that the racial
motivation and discriminatory purpose behind the enactments is “further evidenced by the General
Assembly’s substantial departures from several procedural and substantive norms in enacting the
Shelby County Municipal School Acts,” which the County Commission continues to enumerate.
(Second Am. Compl. ¶ 134-144). Given these exhaustive factual allegations, the Court finds that
State Defendants’ arguments that the discovery is not relevant or reasonably calculated to lead to

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the discovery of admissible evidence to be unpersuasive.
The Magistrate Judge also notes that the District Court has previously considered another
Motion to Compel filed by the County Commission in the instant case. On November 15, 2012, the
District Court ordered that the County Commission would not be permitted discovery from the
Memphis Publishing Company, which publishes The Commercial Appeal newspaper, of either a
transcript of public comments about newspaper articles relating to the Municipal School Acts on the
newspaper’s website or the personal identification information of the individuals who posted the
comments. The County Commission had sought such information to attempt to establish that the
passage of the Municipal School Acts was motivated at least in part by an intent to achieve a
disparate racial impact. The District Court found that these requests “concerning the opinions of the
general readership of the Commercial Appeal” is not relevant in this action. The Magistrate Judge
throughly considered this ruling of the District Court as well when considering the issue in the
instant motion. However, the Magistrate Judge finds that the direct communications with the
legislative branch are of a different nature than public comments on a newspaper website. Direct
communications with the legislature are reasonably calculated to lead to the potential motivating
factors for enacting legislation, whereas public comments on a local newspaper website that
legislators may or may not have even been aware of while making critical decisions are not.
E. Deliberative Process Privilege
The Magistrate Judge’s November 30, 2012 Order addressed the County Commission’s
arguments as to the State Defendants’ objection on the basis of the deliberative-process privilege.
The State Defendants Response did not raise any issues as to this privilege. Thus, the Court does
not find any need to reconsider its conclusions on this issue.

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III. Conclusion
Having considered the State Defendants’ Response to the County Commission’s Motion to
Compel Production (D.E. #442), and for the reasons set forth in the Court’s November 30, 2012
Order (D.E. #461) and this Order, the Court again concludes that the County Commission’s Motion
to Compel Production should be GRANTED.

IT IS SO ORDERED this 18th day of December, 2012.
s/ Charmiane G. Claxton
CHARMIANE G. CLAXTON
UNITED STATES MAGISTRATE JUDGE

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