Local Legislators and the Need for an Evidentiary Privilege

by Jonathan Hughes [1] (Attorney Profile)
Bose McKinney & Evans, LLP
111 Monument Circle, Suite 2700
Indianapolis, IN 46204
(317) 684-5381
jhughes@boselaw.com


“To preserve legislative independence, . . .‘legislators engaged in the sphere of legitimate legislative activity should be protected not only from the consequences of litigation’s results but also from the burden of defending themselves.’” [2].

“Private lawsuits threaten to chill robust representation by encouraging legislators to avoid controversial issues or stances in order to protect themselves.” [3].

“We are governed by laws, not by the intentions of legislators.” [4].

“[I]t simply is not consonant with our scheme of government for a court to inquire into the motives of legislators . . . .” [5].

“All politics is local.” [6].  Former Speaker of the House Thomas Phillip “Tip” O’Neill used these words to remind federal politicians to “pay attention to their own backyards and take care of their folks.” [7].  The concept also carries a broader meaning – that local legislative actors are most intimately entrusted with providing services to the public.  Often, local legislative actors are not afforded the opportunity to focus solely on their legislative jobs.  Their role as town council member, city council member, or state legislator is often only a part-time job for which they must supplement their salary with other work.  Federal legislators, on the other hand, are afforded full-time jobs and a staff to assist them in performing their functions.  In this context, when a city or town is sued for taking some legislative action, the local legislator should be protected from judicial inquiry to the same extent as the federal legislator.  Unfortunately, a circuit split has developed, with some federal courts providing a lesser legislative immunity to local legislators than is provided to federal legislators.

I.     FEDERAL SPEECH OR DEBATE CLAUSE AND THE EVIDENTIARY PRIVILEGE

Deeply enshrined in the Constitutional fabric of the Speech or Debate Clause is an absolute legislative immunity for members of Congress.  Specifically, Article I, Section 6, clause 1 of the United States Constitution provides:

“[Senators and Representatives] shall in all cases, except treason, felony and breach of the peace, be privileged . . . for any speech or debate in either House, they shall not be questioned in any other place.” [8].

This “[c]lause reflects two related purposes:  (1) avoiding executive or judicial interference in the functioning of the legislature, and (2) enhancing legislative deliberative independence.” [9].  “As a general matter, the clause is guided by the principle ‘that it is not consonant with our scheme of government for a court to inquire into the motives of legislators.’” [10].

Courts have interpreted the Speech or Debate Clause “to provide members of Congress with absolute immunity from suit as well as from compelled discovery or testimony.” [11].  In other words, the federal legislative immunity contains three protections:  (1) an absolute immunity from suit (“immunity”); (2) an absolute immunity/privilege from compelled oral testimony (“testimonial privilege”); and (3) an absolute immunity/privilege from compelled document production (“evidentiary privilege”).  Specifically, “[i]f the testimonial privilege under the [Speech or Debate Clause] is absolute and there is no distinction between oral and written materials within the legislative sphere, then the non-disclosure privilege for written materials . . . is also absolute, and thus admits of no balancing.” [12].  This federal legislative immunity “is consistent with our system of separation of powers and fosters the unrestrained debate that our forefathers deemed essential to democratic government.” [13].

Of these three protections afforded by the Speech or Debate Clause, perhaps the most robust [14] of all is the evidentiary privilege which protects federal legislative defendants “not only from the consequences of litigation’s results but also from the burden of defending themselves.” [15].  Despite the robust and necessary protection the evidentiary privilege provides, the implications of preventing any legislator from providing documents no matter the context runs somewhat adrift of conceptions of freedom of information or government in the sunshine. [16].  However, the point of the Speech or Debate Clause and its related immunity is not to protect the legislator from public scrutiny, but rather to insulate the legislator from litigation for those actions taken in the legitimate sphere of legislative activity.

II.     LOCAL LEGISLATORS AFFORDED THE SAME(ISH) PROTECTION

The Speech or Debate Clause only applies to federal legislators. [17].  However, the Supreme Court has extended the immunity to state legislators to the same extent as the federal immunity. [18].  Thus, the Supreme Court has extended absolute immunity from civil liability for a wide range of acts taken within “the sphere of legitimate legislative activity.” [19].  This is consistent with the Supreme Court’s recognition in Bogan that “[r]egardless of the level of government, the exercise of legislative discretion should not be inhibited by judicial interference or distorted by the fear of personal liability.” [20].

III.     THE GILLOCK WRENCH

Bogan’s analysis would seem to settle the matter; however, federal courts are still in disagreement as to whether the legislative immunity translates to both a testimonial and evidentiary privilege to local legislators in the civil discovery context. [21].  The rationale for limiting the privilege stems from dicta in footnote 10 in the Supreme Court’s decision in U.S. v. Gillock[22].  In Gillock, a Tennessee state legislator was indicted for engaging in various federal criminal activities.  The defendant moved to suppress all evidence relating to his legislative activities on the basis of absolute legislative immunity. [23].  The Court found that the legislative immunity afforded to local legislators was limited “when balanced against the need of enforcing criminal statutes.” [24].  Accordingly, Gillock, when properly limited to its holding, stands for the narrow proposition that in federal criminal cases the state legislative privilege is limited. [25].

Unfortunately, some courts have mistakenly applied Gillock in a manner that limits the legislative privilege in civil cases. [26].  In Rodriguez, for example the Court held that “in deciding whether and to what extent the privilege should be honored, the court must balance the extent to which production of the information sought would chill the New York State Legislature’s deliberations concerning such important matters as redistricting against any other factors favoring disclosure.” [27].  This factorial balancing is music to the ears of a law student searching for an analysis to insert into a final exam.  But, it is inconsistent with the D.C. Circuit’s proper holding that “[i]f the testimonial privilege . . . is absolute and there is no distinction between oral and written materials within the legislative sphere, then the non-disclosure privilege for written materials . . . is also absolute, and thus admits of no balancing.” [28].  Simply put, any attempt to use Gillock or the notion of “federal common law” as a mechanism to erode the rationale behind providing the absolute protection should be rejected.

IV.     EXPLORING BAGLEY AND DOE

In addition to the cases already cited herein, two cases float to the surface in examining the courts’ apparent divergent analysis:  Bagley v. Blagojevich [29] and Doe v. Nebraska[30].  In Bagley, embroiled Illinois Governor Rod Blagojevich exercised a line-item veto to terminate several captains from the Illinois Department of Corrections. [31].  A group of those captains sued alleging an unlawful retaliation for seeking to unionize. [32].  As part of that lawsuit, the plaintiffs attempted to depose Governor Blagojevich. [33].  The Seventh Circuit quoted Bogan in acknowledging that “[a]bsolute legislative immunity attaches to all actions taken in the sphere of legitimate legislative activity.” [34].  Although a Governor is in the executive branch, the Seventh Circuit correctly determined that the legislative privilege attaches to all legislative actions, including “signing and vetoing bills because they are ‘integral steps in the legislative process.’” [35]. After reviewing the history of the legislative privilege, and acknowledging the debate concerning the congruency of the federal privilege as compared to the local privilege, the Seventh Circuit concluded, “We see no reason why the immunity protecting the Governor from liability for his veto (and [a related official] to the extent of her involvement in the veto) would not also protect them ‘from the burden of defending themselves,’ for their” legitimately legislative actions. [36].  Accordingly, the court held that Governor Blagojevich could not be deposed because he was absolutely protected by the legislative privilege. [37].

Notably, Bagley ultimately holds that Governor Blagojevich was entitled to a testimonial privilege that protected him from testifying at a deposition.  Accordingly, Bagley does not directly speak to the evidentiary privilege.  However, the court’s reasoning in Bagley is that legislative actors should be protected “from the burden of defending themselves.” [38]. Such reasoning would apply with equal (if not greater) force to a plaintiff’s attempts to seek document production.  In fact, it could be said that requiring a party to participate in document discovery is a greater burden than is showing up for a single deposition.  Accordingly, the language in Bagley supports an absolute testimonial and evidentiary privilege for local legislative actors.

Conversely, the United States District Court of Nebraska in Doe held that local legislators are not entitled to an absolute evidentiary privilege. [39]. In Doe, the plaintiff challenged the constitutionality of the Nebraska legislator’s adoption of a sex offender registration act. [40].  Plaintiff served requests for production of documents on the legislative defendants seeking essentially all communications (in any form) from or to the legislative defendants concerning the act. [41].  The defendants objected to the discovery and asserted the legislative evidentiary privilege. [42].  The court noted that “[t]he evidentiary privilege has been interpreted to allow federal legislators to avoid the production of documents in certain cases.” [43].  However, the court noted that when it comes to local legislators “[f]ederal courts have wrestled with whether a common law evidentiary legislative privilege applies.” [44].  The court then stated, without providing any in-depth analysis, that “in most cases the only evidentiary legislative privilege regarding the production of documents available to state legislators (and other local government officials) is a very narrow and qualified one, sometimes referred to as a ‘deliberative process privilege.’” [45].  Without explaining why, the Doe court found that state legislative actors are simply not entitled to the same protection as federal legislators. [46].  Thus, the Doe court concluded that “only documents or communications that were created prior to the passage [of the law] that involve opinions, recommendations or advice about legislative decisions between legislators or between legislators and their aides – that is, documents that are pre-decisional, deliberative and contain matters of opinion” are protected by the local legislative privilege. [47].

V.     A BROAD EXPANSIVE PRIVILEGE IS THE BETTER POLICY

Bagley and Doe are not the only cases dealing with the scope of the evidentiary privilege afforded to local legislative actors.  But the cases do help frame the debate.  On one side of the debate is Bagley which looks to the Supreme Court’s rationale behind the privilege:  to protect the legislative defendant from “the burden of defending themselves.” [48].  On the other side of the debate is Doe, which finds that local legislative defendants should simply be given a lesser protection than their federal counterparts.  Bagley provides the better result because Bagley understands that the legislative privilege exists to protect the legislator from the costly burdens of defending themselves.  Without that protection, a plaintiff could sue legislative defendants solely to review their legislative motivations in making decisions.  And, as the Supreme Court has held:

“In times of political passion, dishonest or vindictive motives are readily attributed to legislative conduct and as readily believed.  The wisdom of congressional approach or methodology is not open to judicial veto.  Nor is the legitimacy of a congressional inquiry to be defined by what it produces.  The very nature of the investigative function—like any research—is that it takes the searchers upon some “blind alleys” and into non-productive enterprises.  To be a valid legislative inquiry there need be no predictable end result.” [49].

These words penned by Chief Justice Burger in 1975 set a framework for separation of powers between legislative functions and judicial functions such that legislative motives should not be examined by the judiciary.   Further, without the complete evidentiary protection, legislators would be chilled from legislative debate on topics that are potentially divisive or litigious. [50].  This is contrary to the Supreme Court’s holding that local legislators should be protected to the same extent as federal legislators. [51].  Finally, Doe and other similar cases fail to recognize that there is greater reason to protect the local legislator from the burdens of defending themselves.  Specifically, federal legislators act in that capacity as a full time job.  Local legislators typically do not.  Thus, the burden of defense has greater impact on the local legislator than it would on the federal legislator. Simply put, only a robust evidentiary privilege for local legislators accurately applies Supreme Court precedent and understands the need to protect local legislators.  Thus, courts should apply a robust evidentiary privilege for local legislative action.


[1]. Associate Bose McKinney & Evans, LLP.  Former Clerk to the Honorable C. Arlen Beam, United States Court of Appeals for the 8th Circuit.  J.D., Indiana University McKinney School of Law Class of 2009.   A special thanks to Steve Unger, and Alan Townsend for helping develop the ideas in this blog.

[2]. Supreme Court of Virginia v. Consumers Union of U.S., Inc., 446 U.S. 719, 731 (1980) (quoting Dombrowski v. Eastland, 387 U.S. 82, 85 (1967) (per curiam) (in turn citing Tenney v. Brandhove, 341 U.S. 367, 376 (1951))).

[3]. Spallone v. United States, 493 U.S. 265, 300 (1990).

[4]. Conroy v. Aniskoff, 507 U.S. 511, 519 (1993) (Scalia, J., concurring in judgment).

[5]. Bogan v. Scott-Harris, 523 U.S. 44, 55 (1998).

[6]. TIP O’NEILL & GARY HYMEL, ALL POLITICS IS LOCAL AND OTHER RULES OF THE GAME  xvi (1994).

[7]. Id.

[8]. U.S. CONST. ART. I, § 6, cl. 1 (emphases added).

[9]. Favors v. Cuomo, 285 F.R.D. 187, 208 (E.D.N.Y. 2012) (citing United States v. Gillock, 445 U.S. 360, 369 (1980)).

[10]. Id.  (quoting Tenney v. Brandhove, 341 U.S. 367, 377 (1951)).

[11]. Id. (emphasis added) (citing United States v. Rayburn House Office Bldg., 497 F.3d 654, 662 (D.C. Cir. 2007)).

[12]. Rayburn House Office Bldg., 497 F.3d at 662.

[13]. Rodriguez v. Pataki, 280 F. Supp. 2d 89, 94 (S.D.N.Y. 2003) (citing United States v. Helstoski, 442 U.S. 477, 491-92 (1979); Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491, 502 (1975); Tenney, 341 U.S. at 372-74).

[14]. I do not intend to minimize the benefits of immunity from suit or the testimonial privilege.  Both are integral to the overall scheme of encouraging free and open debate by, between, and among legislators.  However, in today’s world of constant documentation, preventing a litigant from dragging a legislator through compelled evidentiary discovery gives the legislator some reprieve from one of the costliest portions of a case.

[15]. Dombrowski v. Eastland, 387 U.S. 82, 86 (1967) (emphasis added).

[16]. For the purposes of this article, I have set aside the issues of the overlapping concerns of “government in the sunshine” laws (referred to in Indiana as the Access to Public Records Act or at the federal level as the Freedom of Information Act (“FOIA”)).  I intend to explore these overlapping concerns in a later article.

[17]. U.S. CONST. ART. I, § 6, cl. 1; see also Favors v. Cuomo, 285 F.R.D. 187, 208 (E.D.N.Y. 2012) (“By its terms, the Speech or Debate Clause applies only to federal legislators.”).  Notably most states “have ratified similar provisions in their constitutions, [but] federal courts are not bound by those state protections where . . . the plaintiffs have asserted federal claims.”  Id. (citing Rodriguez, 280 F. Supp. 2d at 95).  Whether the Courts should recognize those state constitutional provisions pursuant to the Tenth Amendment or the doctrine of comity are set aside for the purpose of this article.

[18]. Favors, 285 F.R.D. at 208 (collecting cases and noting “federal courts in civil cases have extended absolute legislative immunity to state legislators to the same extent as to federal legislators”); see also Tenney v. Brandhove, 341 U.S. 367, 375-79 (1951).

[19]. See, e.g., Bogan v. Scott-Harris, 523 U.S. 44, 46 (1998) (citing Tenney, 341 U.S. at 376); United States v. Helstoski, 442 U.S. 477, 488-89 (1979)) (broadly defining “legislative acts” as those that are “generally done in [the legislature] in relation to the business before it”).

[20]. Bogan, 523 U.S. at 52.

[21]. Compare Bagley v. Blagojevich, 646 F.3d 378 (7th Cir. 2011) (extending absolute legislative immunity to local legislative defendant to prohibit discovery) with Favors, 285 F.R.D. at 210 (providing a “qualified” legislative privilege from compelled disclosure of documentary and testimonial evidence); with Doe v. Nebraska, 788 F. Supp. 2d 975, 984-85 & n.4 (D. Neb. 2011) (providing that the state legislative privilege is the same as the deliberative process privilege).

[22]. 445 U.S. at 372-73 & n.10.

[23]. Id. at 362.

[24]. Id. at 373.

[25]. Id.

[26]. See, e.g., In re Grand Jury, 821 F.2d 946, 957 (3d Cir. 1987); Rodriguez v. Pataki, 280 F. Supp. 2d 89, 100 (S.D.N.Y. 2003).

[27]. Rodriguez, 280 F. Supp. 2d at 100.  To that end, the court recognized five factors in assessing whether the qualified privilege applies to protect the legislator-defendant from discovery:

“(i) the relevance of the evidence sought to be protected; (ii) the availability of other evidence; (iii) the “seriousness” of the litigation and the issues involved; (iv) the role of the government in the litigation; and (v) the possibility of future timidity by government employees who will be forced to recognize that their secrets are violable.”

Id. at 101; see also Favors v. Cuomo, 285 F.R.D. 187, 209 (E.D.N.Y. 2012).

[28]. United States v. Rayburn House Office Bldg., 497 F.3d 654, 662 (D.C. Cir. 2007) (emphasis added).

[29]. 646 F.3d 378 (7th Cir. 2011).

[30].  788 F. Supp. 2d 975 (D. Neb. 2011).

[31]. Bagley v. Blagojevich, 646 F.3d 378, 379-83 (7th Cir. 2011).

[32]. Id. at 383.

[33]. Id. at 384.

[34]. Id. at 391 (quoting Bogan v. Scott-Harris, 523 U.S. 44, 54 (1998)).

[35]. Id. (quoting Bogan, 523 U.S. at 55).

[36]. Id. at 396 (quoting Dombrowski v. Eastland, 387 U.S. 82, 85 (1967)).

[37]. Id. at 398.

[38]. Id. at 396.

[39]. Doe v. Nebraska, 788 F. Supp. 2d 975, 986 (D. Neb. 2011).

[40]. Id. at 977.

[41]. Id. at 979.

[42]. Id. at 983.

[43]. Id. at 983-84.

[44]. Id. at 984.

[45]. Id.  The court was incorrect in applying the deliberative process privilege as that privilege is reserved for the executive branch.  See Kay v. City of Rancho Palos Verdes, No. CV 02–03922 MMM RZ, 2003 WL 25294710, at *15 (C.D. Cal. Oct. 10, 2003) (emphasis added) (holding that “whereas the legislative privilege is the appropriate privilege to analyze when Defendants seek to withhold communications about . . . a legislative act, the deliberative process privilege instead serves as the principle source of possible protection . . . for communications about non-legislative City actions”).  Thus, the Doe court conflated the legislative and executive privileges, which have different legal origins and rationales.

[46]. Doe, 788 F. Supp. 2d at 985-86.

[47]. Id. at 986.

[48]. Dombrowski v. Eastland, 387 U.S. 82, 82 (1967).

[49]. Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 509 (1975) (internal quotations and citations omitted).

[50]. “Private lawsuits threaten to chill robust representation by encouraging legislators to avoid controversial issues or stances in order to protect themselves.”  Spallone v. United States, 493 U.S. 265, 300 (1990).

[51]. Favors v. Cuomo, 285 F.R.D. 187, 208 (E.D.N.Y. 2012) (collecting cases and noting “federal courts in civil cases have extended absolute legislative immunity to state legislators to the same extent as to federal legislators”); see also Tenney v. Brandhove, 341 U.S. 367, 375-79 (1951).

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