Lee et al v. Virginia State Board of Elections, et al
Filing
114
MEMORANDUM OPINION. Signed by Magistrate Judge Roderick C. Young on 12/23/2015. (tjoh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
BARBARA LEE, et al^
Plaintiffs,
Civil Action No. 3:15CV357 (HEH-RCY)
V.
VIRGINIA STATE BOARD
OF ELECTIONS, etal,
Defendants.
MEMORANDUM OPINION
On Legislative Nonparties' Motion for Stay of Discovery and Motion to Quash Subpoenas
and/or Motion for Protective Order
This matter is before the Court for resolutionof non-dispositive matters pursuant to 28
U.S.C. § 636(b)(1)(A) on the Legislative Nonparties' Motion for Stay of Discovery and Motion to
Quash Subpoenas and/or Motion for Protective Order ("Mot. to Quash," ECF No. 71). Plaintiffs
have served subpoenas on several nonparty current, or former, members of the Virginia General
Assembly ("Nonparty Legislators").' Through these subpoenas. Plaintiffs seek to compel the
Nonparty Legislators to produce communications between themselves and various otherpersons;
these communications involve several senate bills and related topics discussed by the Virginia
Senate. {See Notice of Additional Attach, to Mot. to Queish, ECF No. 73, Subpoena to Senator
' Plaintiffs have served subpoenas on the following Nonparty Legislators: Speaker of the Virginia House of Delegates
William Howell; Majority Leader of the Virgmia Senate Kirk Cox; Delegate Tim Hugo; Delegate Rob Bell; Delegate
Margaret Ransone; Delegate Randy Minchew; Delegate David Ramadan; Delegate Buddy Fowler; Delegate Mark Cole;
Delegate John O'Bannon; Delegate Nick Rush; Delegate Joseph Yost; Delegate Israel O'Quinn; Delegate Riley Ingram;
Delegate Dave Albo; Delegate Steve Landes; Delegate Chris Jones; Senator Jill Vogel; Senator Bryce Reeves; Senator
John Cosgrove; Senator Bill Carrico; Senator Mark Obenshain; Senator Steve Martin; Senator Dick Black; and Senator
Jeffrey McWaters. (Legs.' Mot. to Quash at 1 n.l.)
Plaintiffs also have served subpoenas on Delegate John Cox, Delegate Jackson Miller, Delegate Thomas Garrett, and
Senator Ralph Smith. These four legislators have not joined the Motion to Quash as they either have no responsive
documents or do not object to the subpoenas. {See Pis.' Mem. Opp'n to Mot. to Quash ("Pis.' Opp'n") at 3 n. 2, ECF
No. 82.)
Bryce E. Reeves, Attach. A("Reeves Subpoena") at5, ECF No. 73-1;^ see also Non-Party
Legislators' Mem. of P. & A. in Supp. of Legislators' Mot. to Quash ("Legs.' Mem. Supp."), ECF
No. 72, Attach. 3, Decl. of Sen. Jill Holtzman Vogel ("Vogel Decl.") H4, ECF No. 72-3.) The
Nonparty Legislators refused to produce these communications, arguing that the communications
are protected by legislative privilege andthatproduction would be unduly burdensome. {See Legs.'
Mem. Supp. at 3-4.)
Having reviewed the submissions byPlaintiffs andthe Legislative Nonparties, and for the
reasons discussed herein, the Courtholds (1) that legislative privilege precludes the production of
communications between and among theNonparty Legislators andany persons in the employ of the
Nonparty Legislators ("Legislative Employees"); (2) that legislative privilege does notpreclude the
production of communications between and among theNonparty Legislators and third parties, such
as state agencies, constituents, and lobbyists, among others ("Third Parties"); (3) that legislative
privilege does not preclude the production of communications between and among the Legislative
Employees andThird Parties; and, (4) given the limitations noted below andthe fact thatdiscovery
is broad in scope andfreely permitted, thatthe production of communications with Third Parties is
not unduly broad orburdensome.^ Accordingly, the Court will grant the Motion to Quash to the
extent set forth herein and otherwise will deny the Motion to Quash.
I. BACKGROUND
Barbara H. Lee, Gonzalo J. Aida Brescia, and the DemocraticParty of Virginia ("Plaintiffs")
havebrought this suit against the Virginia StateBoardof Elections and its officers as well as the
Virginia Department of Elections and its commissioner (collectively, "Defendants"). Plaintiffs
^Forall citations, theCourt uses the pagination of thedocuments themselves, rather thantheECF pagination.
^Because the Courtfinds that communications between and among the Nonparty Legislators and the Legislative
Employees areprivileged the Courtwilldeny the Motion to Quash to the extentit seeks a protective order.
Furthermore, because this Court has ruled on the Motion to Dismiss, {seeOrder, ECFNo. Ill), the Courtwill deny as
moot the Motionto Quash to the extent it seeks a stay of discoverypendingthe resolutionofthe Motionto Dismiss.
allegethat Virginia's recently-passed Voter Identification Law ("Voter ID Law") violatesthe
Federal Constitution, violates the Voting Rights Act ("VRA"), and results in impermissible Partisan
Fencing. {See Am. Compl.
100-11,114-126, ECF No. 36.) Therefore, Plaintiffs askthe Court
for declaratory and injunctive relief with regard to Virginia's Voter ID Law."^ {See Am. Compl. at
38-39, HHA-D.)
In seeking evidence of the"legislative intent" oftheVoter ID Law, Plaintiffs served the
Nonparty Legislators with subpoenas, demanding theproduction of "[a]ll communications between
any person and [the legislator], and/or [the legislator's] employees, staff, agents, vendors, or
consultants, regarding or related to ... "[v]oter identification, including free voter ID" and Senate
Bills 1,663, and 1256—enacted by the General Assembly in 2013 (collectively, "Voter ID
Communications"). {See Reeves Subpoena at 5; see also Vogel Decl. 14.)^
The Nonparty Legislators refused to produce the Voter ID Communications demanded in
the subpoenas and subsequently filed their Motion to Quash (ECF No. 71). For thereasons
discussed below, the Court finds that all communications between and amongthe Nonparty
Legislators and the Legislative Employees are protected bylegislative privilege. The Court also
finds, however, thatcommunications between and among Nonparty Legislators and/or Legislative
Employees and third parties are not protected bylegislative privilege. Accordingly, the Court
grants in part and denies in partthe Nonparty Legislators' Motion to Quash (ECF No. 71).
^Plaintiffs originally also brought a claim regarding the re-enfranchisement ofnon-violent felons. {See Am. Compl.
112-13.) Plaintiffs have since voluntarily dismissed this claim. (Stipulation for Dismissal Pursuant to Rule 41(A)(1),
ECFNo. 97; see Order Dismissing part of Count II of the Am. Compl., ECF No, 98.)
Plaintiffs also originally brought claims regarding alleged "long wait times to vote." {See Am. Compl. ^ 105-07, 116,
119,121, 124-26.) However, the Court has since dismissed Plaintiffs' long-line claims. {See Order, ECF No. 111.)
^The subpoenas also demanded communications regarding original demanded communications regarding Senate Bills
702, 964, and 1150; "[v]oter wait times and/or lines at the polls;" and "re-enfranchisement of non-violent felons." {See
Reeves Subpoena at 11; see also Vogel Decl. ^ 4.) As Plaintiffs' claims regarding voter wait times and reenfranchisement have been dismissed, see supra note 4, the Court will quash the subpoenas to the extent they demand
communications regarding Senate Bills 702, 964, and 1150; voter wait time and/or lines at the polls; and, reenfranchisement of non-violent felons.
11. DISCUSSION
A. Legislative Immunity and Legislative Privilege
The Court begins by noting that "[legislative privilege clearly falls within the category of
accepted evidentiary privileges." EEOC v. Washington Suburban Sanitary CommQ^'WSSC //")
631 F.3d 174,180(4thCir. 2011) (citing Burtnick v. McLean, 16 F.3d611,613 (4th Cir. 1996)).
Legislative privilege derives from the doctrine oflegislative immunity, and the twin doctrines are
the two sides of the same coin. As the FourthCircuit has stated, "[l]egislative privilege against
compulsory evidentiary process exists to safeguard ... legislative immunity and to further
encourage the republican values it promotes." M at 181. As this Court has previously held,
"[legislative] privilege is rooted inthe absolute immunity granted to federal legislators ... and
exists to safeguard that immunity." Page v. Va. State Bd. ofElections, 15 F. Supp. 3d 657, 661
(E.D. Va. 2014) (quoting WSSC11, 631 F.3d at 180). Moreover, as the United States District Court
for the District ofMaryland has noted, "[l]egislative immunity not only protects state legislators
from civil liability, italso functions as an evidentiary and testimonialprivilege.^'' Marylandersfor
FairRepresentation, Inc. v. Schaefer, 144 F.R.D. 292,297 (D. Md. 1992) (Smalkin, J.) (emphasis
added). "The doctrine oflegislative immunity (both inits substantive and testimonial aspects) itself
embodies fundamental public policy. It insulates legislators from liability for their official acts and
shields themfrom judicial scrutiny into their deliberative process. The doctrine isa bulwark in
upholding the separation ofpowers." Id. at304 (Mumaghan, J., &Motz, J.) (emphasis added). In
short, the doctrine of legislative privilege—^which extends equally to testimony and other
evidence—exists to safeguard legislative immunity. See Simpson v. City ofHampton, 166 F.R.D.
16, *19 (E.D. Va. 1996) ("Pursuant to the Fourth Circuit['s holding inBurtnick,] the Court DENIES
PlaintiffsMotion to Compel Discovery of the council members' personal notes andfiles, as they
areprotected by testimonial legislative privilege.'' (citing Burtnick, 76 F.3d 611) (emphasis added)).
4
B. Legislative Immunity Applies to State Legislators
Federal legislators enjoy legislative immunity and legislative privilege that derives from the
"Speech orDebate Clause" ofthe Federal Constitution.^ fVSSC //, 631 F.3d at 180 ("The Speech or
Debate Clause provides [legislative] immunity to federal legislators."); see also Domhrowski v.
Eastland, 387 U.S. 82, 84-85 (1967) ("It is the purpose and office of the doctrine of legislative
immunity, having its roots as it does in the Speech or Debate Clause of the Constitution, that
legislators engaged *in the sphere of legitimate legislative activity,' should beprotected not only
from the consequences of litigation's results butalso from the burden of defending themselves.").
State legislators also enjoy legislative immunity and legislative privilege; however, insofar as state
legislators may employ these protections in federal court, the protections are grounded in federal
common law.^ See Tenneyv. Brandhove, 341 U.S. 367 (1951) (recognizing legislative immunity
for state legislators sued for violating the Civil Rights Act of 1871); see also WSSCII, 631 F.3d at
180-81 ("In recognition of the immunity's historical pedigree and practical importance the Supreme
Court has extended it to a wide range of legislative actors." (citing Tenney, 341 U.S. at 372-76, for
®
"[The Senators and Representatives] shall inall Cases, except Treason, Felony and Breach of the Peace, be privileged
from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the
same; and for any Speech orDebate in either House, they shall not bequestioned inany other Place." U.S. Const, art. I,
§6, cl.l.
' The Nonparty Legislators argue that they have a separate legislative privilege stemming from the Virginia
Constitution's Speech or Debate Clause. (See Legs.' Mem. Supp. at 7-8 (quoting Va. Const, art IV, § 9 ("Members of
the General Assembly shall, an allcases, except treason, felony, or breach ofthe peace, be privileged from arrest during
the sessions oftheir respective houses; and for any speech ordebate ineither house shall not bequestioned inany other
place.")).) The Court, however, does not separately analyze the claim ofprivilege under the Virginia Constitution as the
analysis is substantially similar to that under the federal common law, wherein privilege for state legislators ultimately
relates back to the Speech or Debate clause of the Federal Constitution. SeeGreenburg v. Collier, 482 F. Supp. 200,
202 (E.D. Va. 1979) ("The [Virginia] and federal immunities are very similar in their wording. Further, they appear to
be based upon the same historical and public policy considerations."). Furthermore, because theCourt—^using Supreme
Court and Fourth Circuit precedent interpreting both the federal common law and the Federal Speech or Debate
Clause—ultimately finds that internal legislative communications are privileged, but that third-party communications
are not, the Court does not undertake a separate analysis under the Virginia Speech or Debate Clause, which is
substantially coterminous with its federal analog. See id. at 202-04 (discussing the Virginia Speech or Debate Clause
and analyzing a privilege claim thereunder using Supreme Court precedent based on the Federal Speech or Debate
Clause, ultimately holding that state legislators enjoyed legislative privilege and did not need to produce internal
legislative communications that related to the motive underlying the passage of a Virginia state law) (citing United
States V. Brewster, 408 U.S. 501 (1972)).
the proposition that the immunity has been extended to state legislators)); Page, 15 F. Supp. 3d at
661 ("In Tenney v. Brandhove, the Supreme Court of the United States found that the Speech or
Debate Clause was partof a broader common law ^tradition [of legislative privilege]... well
grounded in history' andextended the benefit of thattradition (though not the Speech or Debate
Clause itself) to state legislators." (quoting Tenney, 341 U.S. at 372-76)). Moreover, state
legislators enjoy the benefits of legislative immunity and legislative privilege regardless of whether
they are named as parties to the underlying lawsuit. Schlitz v. Virginia, 854 F.2d 43,46 (4th Cir.
1988) ("[W]e reject plaintiffs argument that he cancircumvent the doctrine of legislative immumty
bydeclining to name as defendants individual legislators. The purpose of the doctrine is to prevent
legislators from having to testify regarding matters of legislative conduct, whether ornot they are
testifying to defend themselves.").
The Supreme Court and the Fourth Circuit have addressed the doctrine of legislative
immunity in a number of cases. Inwhat seems to bethe first Supreme Court case to explicitly
recognize federal common law legislative immunity for state legislators, Tenney v. Brandhove, the
Supreme Court explicitly ruled "that it was not consonant with our scheme of government for a
court to inquire into the motives of legislators." Tenney, 341 U.S. at 377. In thatcase, the Supreme
Court found thatstate legislators enjoyed immunity forconduct that was alleged to have violated a
civil rights statute passed in 1871 and aimed at enforcing the Fourteenth Amendment to the Federal
Constitution. Id. at 378; see also Bogan v. Scott-Harris, 523 U.S. 44,49 (1998) ("Recognizing this
venerable tradition [of legislative immunity], we haveheldthat state and regional legislators are
entitled to absolute immunityfrom liability under § 1983 for their legislative activities." (emphasis
added) (citing Tenney, 341 U.S. 367)); United States v. Gillock, 445 U.S. 360, 371-72 (1980)
(discussing Tenney). In so doing, the Supreme Court explained the dangers of curtailing legislative
immunity by explicitly stating that"[i]ntimes of political passion, dishonest or vindictive motives
6
are readily attributed to legislative conduct and as readily believed... [and thatc]ourts are notthe
place for such controversies." Tenney, 341 U.S. at 378.
Later, in Supreme CourtofVa. v. Consumers Union ofthe U.S., Inc., the United States
Supreme Court reiterated its holding that state legislators enjoy legislative immunity bystating "[i]n
Tenney we concluded that Congress did not intend § 1983 to abrogate the common-law immunity of
state legislatures. Although Tenney involved anaction for damages under § 1983, its holding is
equally applicable to § 1983 actions seeking declaratory orinjunctive relief." Supreme Court of
Va., 446 U.S. 719, 732 (1980) (recognizing a federal common law legislative immunity and
legislative privilege for state legislators). The Supreme Court also reaffirmed that legislative
privilege is an essential derivative of legislative immunity, stating thatin order "[t]o preserve
legislative independence, we have concluded that *
legislators engaged "inthe sphere oflegitimate
legislative activity," should be protected not only from the consequences oflitigation's results but
also from the burden of defending themselves.'" Id. at 732 (quoting Dombrowski, 387 U.S. at 87
(quoting Tenney, 341 U.S. at 376)). The Supreme Court went so far asto declare that state
legislators enjoy absolute immunity, at least in § 1983 civil claims, bynoting that
there is little doubt that if the Virginia Legislature had enacted the
State Bar Code and if suit had been broughtagainst the legislature, its
committees, or members for refusing to amend the Code in the wake
of our cases indicating that the Code in some respects would be held
invalid, the defendants in that suit could successfully have sought
dismissal on the grounds ofabsolute legislative immunity.
Id. at 733-34 (emphasis added). The parties have not proffered, and this Court is not aware of, any
subsequent Supreme Court decision that has overturned the holdings in either Tenney or Supreme
Court of Virginia}
® discussed below, the Court notes that in United States v. GillocK 445 U.S. 360 (1980), the United States Supreme
As
Court recognized an exception to the doctrine of legislative immunity insofar as a state legislator did not enjoy absolute
legislative immunity or legislative privilege in the case of a criminal prosecution for violation of federal law. As
discussed below, this Court is not convinced that the Supreme Court intended Gillock to create a broad carve-out to the
7
Likewise, the Fourth Circuit has consistently held that state legislators enjoy legislative
immunityand legislative privilege. Indeed, the Fourth Circuit has explicitly stated that legislative
immunity"allows [legislators] to focus on their public duties by removing the costs and distractions
attending lawsuits ... [and legislative immunity] shields them from political wars of attrition in
which their opponents try to defeat them through litigation rather than at the ballot box." fVSSC II,
631 F.3d at 181. Furthermore, "[legislative privilege agamst compulsory evidentiary process exists
to safeguard ... legislative immunity andto further encourage the republican values it promotes."
Id. Applying this safeguard in Washington Suburban Sanitary Commission, the Fourth Circuit
specifically recognized that"if the [government agency] or private plaintiffs sought to compel
information from legislative actors about their legislative activities, they would not need to
comply." Id. (citing Burtnick, 16 F.3d at 613) (ADEA casebrought by the EEOC).
In the earlier case of Burtnick v. McLean, the Fourth Circuit also recognized that legislative
immunity applied to individual state and local legislators sued under § 1983. The Fourth Circuit
specifically held that "McLean, in herindividual capacity as a legislator, is still immune from suit
under the legislative immunity doctrine." Burtnick, 76 F.3d at 613 (citations omitted). The Fourth
Circuit further reinforced this holding by noting that "local legislators are entitledto absolute
immunity when acting in a legislative capacity." Id. (citation omitted) (emphasis added). Noting
that"[t]heexistence of testimonial privilege is the prevailing law in [the Fourth Circuit]" andthat
"thisprivilege [is] stillviable," the Fourth Circuit held thatthe plaintiffs "attempt to establish a
prima facie case [ofdiscrimination] will have to be accomplished without the testimony of members
of the Board as to their motives." Id. (citations omitted).
doctrine of legislative immunity for state legislators. Indeed, inSupreme Court of Virginia, immediately prior to noting
that Virginia legislators "could successfully have sought dismissal [of a § 1983 case] on the grounds of absolute
legislative immunity^'' Supreme Court of Va., 446 U.S. at 734 (emphasis added), the United States Supreme Court
recognized itsholding in Gillock as only curtailing immunity for state legislators inthe criminal context, id. at 733 ("the
separation-of-powers doctrine justices a broader privilege for Congressmen than for state legislators in criminal
actions") (citing Gillock, 445 U.S. 360).
8
Moreover, in rejecting an argument that legislative immunity for state legislators is not
absolute, the Fourth Circuit has held that "where ... the suit would require legislators to testify
regarding conduct in their legislative capacity, the doctrine of legislative immunity has full force."
Schlitz, 854F.2dat 45 (citing Dombrowski, 387U.S. at 85). In reaching that holding, the Fourth
Circuit specifically stated that—in thecourse of ADEA litigation—an inquiry into "whether [the
Virginia General] Assembly's purported motives for declining to reelect [a state judge] are a pretext
for age discrimination" was an inquiry that ran "squarely afoul of the doctrine of legislative
immunity." Id. at 45.
Likewise, in Kensington Volunteer Fire Dep %Inc. v. Montgomery Cty.^ 684 F.3d 462 (4th
Cir. 2012), the Fourth Circuit held thata district court did noterr"in refusing to inquire into the
allegedly unconstitutional motive behind the County's budget." Kensington, 684 F.3d at 467. In
reaching this holding, the Fourth Circuit expounded onSupreme Court precedent and "warned that
it was a 'hazardous matter' to inquire into legislative motives because '[w]hat motivates one
legislator to make a speech about a statute is notnecessarily what motivates scores of others to
enact it, andthe stakes are sufficiently high for us to eschew guesswork.'" Kensington, 684F.3d at
468 (quoting UnitedStates v. O'Brien, 391 U.S. 367, 383-84 (1968)).
In summation, the Fourth Circuit and SupremeCourt have consistently held that state
legislators enjoy both legislative immunity andits supporting doctrine, legislative privilege,
C. Recognized Exceptions to Legislative Immunity for State Legislators
The United States Supreme Court has recognized a specific exception to the doctrines of
legislative immunity and legislative privilege. In United States v. Gillock, the Supreme Court held
that a state legislator could not invoke legislative privilege in a case wherein the state legislator was
being prosecuted for violation of a federal criminal statute. Gillock, 445 U.S. at 361-62, 374.
Specifically, the Supreme Court concluded
9
that although principles of comity command careful consideration,
our cases disclose that where important federal interests are at stake,
as in the enforcement of federal criminal statutes, comity yields. . . .
Here, we believe that recognition of an evidentiary privilege for state
legislators for their legislative acts would impair the legitimate
interest of the Federal Government in enforcing its criminal statutes
with only speculative benefit to the state legislative process.
Id. at 373. In reachingits decision, the Supreme Courtdistinguished its holding in Tenney,
explaining that legislators enjoy immunity incivil cases, but that legislators cannot utilize the
"judicially fashioned doctrine ofofficial immunity ... to immunize criminal conduct proscribed by
anAct of Congress." Id. at 372 (quoting O v . Littleton, 414 U.S. 488, 503 (1974) (quoting
Gravel v. United States, 408 U.S. 606, 627(1972))). Moreover, the Supreme Court further seemed
to limit its holding in Gillock to criminal matters, stating explicitly that''^Tenney and subsequent
cases on official immunity have drawn the line at civil actions." Id. at 373.
Citing the Supreme Court's holding in Gillock, some in-circuit district courts have found a
limited exception to legislative privilege in cases involving legislative redistricting. See Bethune HillV. Va. State Bd ofElections, No. 3:14CV852,2015 WL 3404869, *9 (E.D. Va. May 26, 2015);
Page, 15 F. Supp. 3dat 657, 665; Schaefer, 144 F.R.D. at 292, 304. These courts have all noted,
essentially, that "[l]egislative redistricting is a suigeneris process." Schaefer, 144 F.R.D. at 304;
Bethune-Hill, 2015 WL 3404869, at *9;Page, 15 F. Supp. 3d at 665 (quoting Schaefer, 144
F.R.D. at 304). In ordering limited production in Bethune-Hill, this Court explained the unique
nature of redistricting cases by noting thatthey are "extraordinary" and that"thenatural corrective
mechanisms builtinto ourrepublican system of government offerlittle check upon the very real
threat of "legislative self-entrenchment." Bethune-Hill, 2015 WL 3404869, at *9. Likewise, in
Page, this Court found that"a consultant who was employed by a partisan political committee"
could not claim legislative privilege. Page, 15 F. Supp. 3d at 662. The Court determined, however,
that evenwere the partisan consultant eligible to assert legislative privilege, the privilege would
10
yield because of the suigeneris nature of the redistricting claims brought in thatcase. See id. at 665
(quoting Schaefer, 144 F.R.D at 304). This court specifically held that the "significant difference
[ofredistricting cases] prompted the [Schaefer] court to require a flexible approach to resolving
discovery objections based on legislative privilege." Id. Ultimately, based onthe unique nature of
redistricting cases, theBethune-Hill, Page, and Schaefer courts held thata flexible, qualified
privilege analysis was required with regard to legislative privilege.
The Court is unconvinced, however, that the same flexible approach is appropriate in the
instant c£ise. First, this Court's holding in Page wasultimately based on the unremarkable
proposition that a consultant hired bya partisan political caucus and "paid as an independent
contractor" bya partisan political campaign committee was ineligible to claim legislative privilege.
See Page, 15 P. Supp. 3dat 660, 664. Second, this Court reached itsholding inBethune-Hill, based
on the "extraordinary" nature of legislative redistricting cases. Bethune-Hill, 2015 WL 3404869, at
*9. Moreover, even accounting for that "extraordinary" nature, this Court stilldid not order a
general production of all legislative communication, but rather still limited the scope of production,
inpartdue to "theimportance of the legislative privilege." Id. at *15-* 17. Finally, while the
Schaefer court also ordered the limited production of communications due to the unique nature of
legislative redistricting cases, one member of the three-judge panel stated that"[i]t is evident that
any action (orinaction) taken by the Maryland Legislature after the Governor's plan was introduced
on January 8,1992 falls within the scope of legislative immunity." Schaefer, 144 F.R.D. at 299.
Likewise, the other two judges on the panel stated that they
would flatly prohibit [the legislators'] depositions from being taken as
to any action which they took after the redistricting legislation
reached the floor of the General Assembly as President of the Senate
and Speaker of the House, respectively (unless they ultimately are
listed by the Defendants as trial witnesses) because of the direct
intrusion of such discovery into the legislative process.
at 305.
11
In summation, this Court is not persuaded by Plaintiffs' argument that these in-circuit
district court cases compel the broad production of documents sought in the instant case, especially
in light of binding Fourth Circuit precedent thatwarns of the "hazardous" nature of inquiring into
legislative motive, Kensington, 684 F.3d at 468 (quoting O'Brien, 391 U.S. at 383-84), and that
continues to hold that "[t]he existence oftestimonial privilege is the prevailing law in [the Fourth
Circuit]," Burtnick, 76 F.3d at613 (citations omitted).^
D. Legislative Privilege and Production in the Instant Case
Ultimately, adhering tothe Fourth Circuit's ruling that legislative privilege is"still viable"
in this Circuit, seeBurtnick, 16 F.3d at 613 (citations omitted), the Court will briefly discuss the
extent to which the Nonparty Legislators and the Legislative Employees may claim that privilege.
First, the Court concludes thatthe Legislative Employees are in substantially the same
position asthe Nonparty Legislators themselves interms ofeligibility to claim legislative privilege.
See, e.g.. Gravel v. United States 408 U.S. 606, 616-17 (1972) (discussing legislative privilege and
noting that a legislator "and his aide are to be 'treated as one' and that the refiisal to recognize
legislative privilege for aides would frustrate the purpose of legislative privilege for the legislator);
see, e.g., also, N.C. NAACP, No. 1:13CV658, ECF No. 207, Slip Op. at 14 (concluding that
' The Court notes that, even if it were to adopt a "qualified analysis" as used in the redistricting cases, it would still
ultimately reach the same holding it reaches without adopting the qualified analysis. The Court would reach the same
conclusion in large part for the reasons articulated by Judge Peake in North Carolina State Conf. of the NAACP v.
McCrory, No. 1:13CV658, ECF No, 207, Slip Op. at 5-15 (M.D.N.C. Nov. 20, 2014). In N.C. NAACP, Judge Peake
addressed subpoenas for legislative communications and a motion to quash in a case involving a challenge to a state
voter identification law. See id. at 1-5. In analyzing the discovery disputes. Judge Peaked essentially adopted the same
qualified privilege analysis that the Bethune-Hill, Page, and Schaefer courts utilized. See id. at 5. Judge Peake
characterized this analysis as "a flexible approach that considers the need for the information while still protecting
legislative sovereignty and minimizing any direct intrusion into the legislative process." Id. After performing the
qualified analysis. Judge Peak ultimately concluded "that communications between legislators and third parties are not
ordinarily within the scope of legislative privilege, [and] that any such privilege has been waived as to those
communications." Id. at 14. However, Judge Peake also concluded that legislative privilege did apply "to purely
internal legislative conmiunications (i.e., communications solely among legislators and communications between
legislators and legislative staff)." Id. Ultimately, therefore, this Court notes that it would reach the same result either
under the qualified privilege analysis stemming from the redistricting cases orunder the absolute privilege analysis, "the
existence [ofwhich] is the prevailing lawin [theFourth Circuit]." Burtnick, 16 F.3d at 613 (citations omitted).
12
communications between legislators and legislative staffare privileged under thedoctrine of
legislative privilege).
Second, the Courtconcludes that the Nonparty Legislators were acting in a legislative
capacity by passing the Senate Bills in question and debating thetopic of voter identification. That
is, the Nonparty Legislators were engaged in "theadop[tion of] prospective, legislative-type rules ,.
. thatestablish[]... a general policy affecting the larger population." WSSCII, 631 F.3d at 184
{
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