Opinion
Case No. 2:19-cv-5086
06-02-2020
PLAIN LOCAL SCHOOL DISTRICT BOARD OF EDUCATION, et al., Plaintiffs, v. Mike DEWINE, et al., Defendants.
Amanda Martinsek, Daniela Paez, Trevor J. Hardy, Gregory C. Djordjevic, Timothy J. Downing, William D. Edwards, Ulmer Berne LLP, Cleveland, OH, Rachael Leigh Rodman, Rex A. Littrell, Ulmer & Berne LLP, Columbus, OH, for Plaintiff Plain Local School District Board of Education. Amanda Martinsek, Daniela Paez, Trevor J. Hardy, Timothy J. Downing, William D. Edwards, Ulmer Berne LLP, Cleveland, OH, Rachael Leigh Rodman, Rex A. Littrell, Ulmer & Berne LLP, Columbus, OH, for Plaintiffs C.L., J.L., B.H., C.H. Frank J. Reed, Jr., Stephen Eric Chappelear, Aaron T. Brogdon, Frost Brown Todd LLC, Columbus, OH, for Defendants Paolo Demaria, Laura Kohler, Charlotte McGuire, Linda Haycock, Kirsten Hill, Jenny Kilgore, Lisa Woods, Antoinette Miranda, Sarah Fowler, John Hagan, Stephanie Dodd, Nick Owens, Meryl Johnson, Eric Poklar, Cindy Collins, Mark Lamoncha, Martha Manchester, Steve Dackin, Reginald Wilkinson. Frank J. Reed, Jr., Stephen Eric Chappelear, Frost Brown Todd LLC, Columbus, OH, for Defendant Mike Toal. Scott M. Zurakowski, Amanda M. Connelly, Joseph J. Pasquarella, Mathew E. Doney, Owen J. Rarric, Krugliak Wilkins Griffiths & Dougherty Co. LPA, Canton, OH, for Defendant Village of Hills And Dales.
Amanda Martinsek, Daniela Paez, Trevor J. Hardy, Gregory C. Djordjevic, Timothy J. Downing, William D. Edwards, Ulmer Berne LLP, Cleveland, OH, Rachael Leigh Rodman, Rex A. Littrell, Ulmer & Berne LLP, Columbus, OH, for Plaintiff Plain Local School District Board of Education.
Amanda Martinsek, Daniela Paez, Trevor J. Hardy, Timothy J. Downing, William D. Edwards, Ulmer Berne LLP, Cleveland, OH, Rachael Leigh Rodman, Rex A. Littrell, Ulmer & Berne LLP, Columbus, OH, for Plaintiffs C.L., J.L., B.H., C.H.
Frank J. Reed, Jr., Stephen Eric Chappelear, Aaron T. Brogdon, Frost Brown Todd LLC, Columbus, OH, for Defendants Paolo Demaria, Laura Kohler, Charlotte McGuire, Linda Haycock, Kirsten Hill, Jenny Kilgore, Lisa Woods, Antoinette Miranda, Sarah Fowler, John Hagan, Stephanie Dodd, Nick Owens, Meryl Johnson, Eric Poklar, Cindy Collins, Mark Lamoncha, Martha Manchester, Steve Dackin, Reginald Wilkinson.
Frank J. Reed, Jr., Stephen Eric Chappelear, Frost Brown Todd LLC, Columbus, OH, for Defendant Mike Toal.
Scott M. Zurakowski, Amanda M. Connelly, Joseph J. Pasquarella, Mathew E. Doney, Owen J. Rarric, Krugliak Wilkins Griffiths & Dougherty Co. LPA, Canton, OH, for Defendant Village of Hills And Dales.
OPINION AND ORDER
MICHAEL H. WATSON, JUDGE Plaintiffs have served deposition subpoenas on non-parties Ohio Senator Kirk Schuring, Ohio Representative Scott Oelslager, Ohio Representative Thomas Brinkman, Legislative Aide Michaela George, and Legislative Aide Alexandra Harris (collectively, "Movants"). Movants seek to quash the subpoenas, asserting irrelevance, undue burden, and legislative privilege. Mot. Quash, ECF No. 79. For the following reasons, Movants’ motion is GRANTED IN PART AND DENIED IN PART .
I. STANDARD OF REVIEW
A court "must quash or modify a subpoena that ... (iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or (iv) subjects a person to undue burden." Fed. R. Civ. P. 45(d)(3). "In addition, while the Rule itself does not list irrelevance or overbreadth as reasons for granting a motion to quash, [c]ourts ... have held that the scope of discovery under a subpoena is the same as the scope of discovery under Rule 26." Duncan v. Husted , No. 2:13-CV-1157, 2014 WL 4659863, at *4 (S.D. Ohio Sept. 17, 2014) (internal quotation marks and citation omitted), reconsidered in part , No. 2:13-CV-1157, 2015 WL 631103 (S.D. Ohio Feb. 12, 2015).
II. ANALYSIS
A. Relevance
Movants argue that their testimony is irrelevant to Plaintiffs’ Equal Protection claim because Plaintiffs allege that Hills & Dales, not the legislature, possessed a discriminatory motive in passing the challenged legislation. Mot. Quash 13–14, ECF No. 79. In any event, Movants argue, the motivation of a few legislators does not establish the motive of the entire legislative body. Id.
The Court concludes Movants may possess knowledge relevant to the factors articulated in Village of Arlington Heights v. Metro. Housing Dev. Corp. , 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977), which bear on whether a legislature was partially motivated by an invidious discriminatory purpose, as relevant to an Equal Protection claim. For instance, the sequence of events leading up to the passage of the bill and any departures from the normal procedural sequence are two Arlington Heights factors that are therefore relevant to Plaintiffs’ constitutional claim. To the extent any Movant strategized or otherwise discussed with an outsider how to affect enactment of the legislation (particularly if they strategized departing from the normal procedural sequence), such discussions are not shielded by legislative privilege (as explained infra ) and would be relevant under Arlington Heights .
The Arlington Heights factors are: (1) disparate racial impact; (2) the historical background of the decision; (3) the sequence of events leading up to the challenged decision; (4) departures from the normal procedural sequence; (5) departures from established substantive standards; and (6) legislative or administrative history. 429 U.S. at 266–68, 97 S.Ct. 555.
Moreover, Hills & Dales, which was allegedly the impetus and driver of the bill, identified Senator Schuring and Representative Oelslager as possessing information relevant to this suit. Resp. Interrogatory No. 2, ECF No. 91-1; see also id. at Resp. Interrogatory No. 4. Indeed, the exhibits attached to Plaintiffs’ response brief are alone sufficient to demonstrate that Movants likely possess relevant information. See, e.g. , Resp. Exs. 1, 2, 4, 5, 6, 7, 9, 10, 12.
Accordingly, the Court refuses to quash the subpoenas based on relevance.
B. Undue Burden
It is undoubtedly an extreme burden on a legislator to be deposed. If courts permitted legislators to be deposed every time a constitutional challenge was raised to a piece of legislation, the legislators would be severely detracted from their work. Therefore, if the information Plaintiffs seek is duplicative of other available information or obtainable from another source that is more convenient, less burdensome, or less expensive, Plaintiffs may not seek it from Movants.
However, it is alleged that Movants were instrumental in the clandestine passage of an unconstitutional bill for the benefit of one small community (who was previously denied that benefit under the proper channels). Some of the evidence already presented by Plaintiffs shows the irregularities that attended the passage of the bill. That the bill appears to have been passed under the cover of night also suggests that Plaintiffs may not have another avenue of seeking some of the discoverable information, requiring some burden on Movants to provide it.
Ultimately, though, the Court is loath to permit parties to conduct in-person depositions of State legislators, even in this extraordinary case. Accordingly, Movants’ motion is granted insofar as the Court will not permit in-person depositions. Rather, as explained below, in an attempt to lessen the burden on Movants, Plaintiffs shall be permitted to submit written deposition questions.
The Court's analysis on legislative privilege, infra , applies to both the members of the General Assembly and their legislative aides because the privilege applies equally to both. E.g. , ACORN (New York Ass'n of Cmty. Orgs. for Reform Now) v. Cty. of Nassau , No. CV05-2301(JFB)(WDW), 2007 WL 2815810, at *4 n.3 (E.D.N.Y. Sept. 25, 2007) ; N. Carolina State Conference v. McCrory , No. 1:13CV658, 2015 WL 12683665, at *6 (M.D.N.C. Feb. 4, 2015).
Movants argue the subpoenas should be quashed because legislative privilege prohibits Plaintiffs from deposing them. Plaintiffs contend that much of the information they seek is not covered by the legislative privilege and, in any event, the Court should find that the information that is privileged is nonetheless discoverable in this extraordinary case. In so arguing, Plaintiffs contend the privilege for State legislators is a qualified one and is overcome under the circumstances here.
For the reasons below, the Court concludes that some information is discoverable from Movants because it is not covered by the legislative privilege. For the information that is covered by the privilege, the Court declines to find that the privilege is overcome in this case. Accordingly, Plaintiffs are entitled to discovery from Movants regarding only the narrow set of information that is: (1) not privileged, (2) relevant to the Arlington Heights factors, and (3) not obtainable from another source.
With respect to members of Congress, the United States Constitution's Speech or Debate Clause provides a legislative privilege that "protects against inquiry into acts that occur in the regular course of the legislative process and into the motivation for those acts." United States v. Brewster , 408 U.S. 501, 525, 92 S.Ct. 2531, 33 L.Ed.2d 507 (1972). Not all acts taken by a legislator are legislative acts. Rather, "[a] legislative act has consistently been defined as an act generally done in Congress in relation to the business before it. In sum, the Speech or Debate Clause prohibits inquiry only into those things generally said or done in the House or the Senate in the performance of official duties and into the motivation for those acts." Id. at 512, 92 S.Ct. 2531. This legislative privilege does not provide a blanket protection from deposing Movants for several reasons.
U.S. Const. Art. I s. 6 provides, "for any Speech or Debate in either House, [Senators and Representatives] shall not be questioned in any other Place."
First, it is not clear that the legislative privilege afforded to state legislators mirrors in scope the privilege afforded to federal legislators. By its terms, the Speech or Debate Clause applies only to federal "Senators and Representatives." United States v. Gillock , 445 U.S. 360, 366 n.5, 100 S.Ct. 1185, 63 L.Ed.2d 454 (1980) (internal quotation marks and citation omitted). Federal common law has recognized an analogous privilege for State and local legislators, N. Carolina State Conference v. McCrory , No. 1:13CV658, 2015 WL 12683665, at *3 (M.D.N.C. Feb. 4, 2015), but that common-law privilege is not an absolute "evidentiary privilege for state legislators for their legislative acts." See Gillock , 445 U.S. at 373, 100 S.Ct. 1185 ("[W]here important federal interests are at stake ... comity yields[,]" and legislative privilege may be denied to a state legislator); Jefferson Cmty. Health Care Ctrs., Inc. v. Jefferson Par. Gov. , 849 F.3d 615, 624 (5th Cir. 2017) ("While the common-law legislative immunity for state legislators is absolute, the legislative privilege for state lawmakers is, at best, one which is qualified." (internal quotation marks and citation omitted)); Doe v. Nebraska , 788 F. Supp. 2d 975, 984 (D. Neb. 2011) ("Federal courts have wrestled with whether a common law evidentiary legislative privilege applies to state legislators." (citations omitted)); ACORN , 2007 WL 2815810, at *2 ("The Supreme Court has, however, rejected the notion that the common law immunity of state legislators gives rise to a general evidentiary privilege. The legislative privilege is qualified, not absolute ...." (internal quotation marks and citations omitted)); Rodriguez v. Pataki , 280 F. Supp. 2d 89, 95 (S.D.N.Y. 2003) ("Legislative privilege ... is not absolute." (citation omitted)).
Federal common law governs the claim of privilege for the federal claims in this case. Fed. R. Evid. 501.
Legislative privilege is a concept related to, but distinct from, legislative immunity. The Supreme Court has held that state legislators are absolutely immune, under the common law, from civil liability for their legislative activities. Tenney v. Brandhove , 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951) ; accord Bradley v. Mallory , No. 88-3988, 1989 WL 25523, at *1 (6th Cir. Feb. 24, 1989) ("State legislators are entitled to absolute immunity from liability for actions taken in their legislative capacities." (citing Tenney , 341 U.S. at 367, 71 S.Ct. 783 )). Legislative immunity is not at issue here, though, because movants are non-parties to the lawsuit. Rather, at issue is the scope of the evidentiary legislative privilege.
The Supreme Court therefore has left open the question of when a State legislator can invoke the common-law evidentiary legislative privilege in a federal civil case. See, e.g. , Harding v. Cty. of Dallas, Texas , No. 3:15-CV-0131-D, 2016 WL 7426127, at *2 (N.D. Tex. Dec. 23, 2016). The Sixth Circuit has not answered that question, and this Court is not convinced that the circuit would apply the bounds of federal legislative privilege to State legislators simply because State legislators are entitled to absolute legislative immunity.
In finding that the legislative privilege for State legislators in a federal civil case is a qualified one, the Court necessarily rejects Movants’ argument that courts determine whether the privilege is absolute or qualified according to the type of claim at issue. As discussed above, courts have routinely found the privilege to be a qualified one—regardless of the claim brought—and have then determined on a case-by-case basis whether the qualified privilege should be overcome based, in part, on the issues under review.
Second, as alluded to above, not every action or communication by a legislator is covered by the legislative privilege, and courts have declined to apply the privilege to communications between legislators and third parties, such as lobbyists or constituents. E.g. , ACORN 2007 WL 2815810, at *6 ("While legislators are certainly free to seek information from outside sources, they may not assume that every such contact is forever shielded from view. Defendants have not cited any caselaw that suggests otherwise, and the court is simply unwilling to approve such an unprecedented expansion of the qualified legislative privilege."); Shreveport Chapter #237 of United Daughters of the Confederacy v. Caddo Par. Comm'n , No. CV 17-1346, 2018 WL 1973283, at *5 (W.D. La. Apr. 26, 2018) ("The Court finds the blog entries at issue in this matter are the functional equivalent of news letters to constituents, which the Supreme Court suggested are political matters not protected by the Speech and Debate Clause." (internal quotation marks omitted)); McCrory , 2015 WL 12683665, at *8 ("The interests that the State legislative privilege safeguards by limiting intrusions into a legislature's deliberative process are less discernible in the context of documents revealing communications between legislators and constituents. That is because, while a legislator no doubt must be free to meet with constituents as to matters pending before the legislative body, the constituent is always free to disclose every aspect of the encounter. From the legislator's perspective, therefore, it is hard to contend that there is any reasonable expectation of secrecy in this context or serious threat of timidity for fear that the conversation be discovered."); Favors v. Cuomo , No. 11-CV-5632, 2015 WL 7075960, at *8 (E.D.N.Y. Feb. 8, 2015) (listing activities that were "non-legislative" and therefore not entitled to privilege); Perez v. Perry , No. SA-11-CV-360-OLG, 2014 WL 106927, at *2 (W.D. Tex. Jan. 8, 2014) ("To the extent, however, that any legislator, legislative aide, or staff member had conversations or communications with any outsider (e.g. party representatives, non-legislators, or non-legislative staff), any privilege is waived as to the contents of those specific communications." (citation omitted)); Rodriguez , 280 F. Supp. 2d at 101 ("Indeed, the legislatively-mandated structure of LATFOR makes its workings more akin to a conversation between legislators and knowledgeable outsiders, such as lobbyists, to mark up legislation—a session for which no one could seriously claim privilege."); Nebraska , 788 F. Supp. 2d at 987 (ordering the production of documents "communicated to or shared with non-legislative members"); Comm. for a Fair and Balanced Map v. Ill. State Bd. of Elections , 2011 WL 4837508, at *10 (N.D. Ill. Oct. 12, 2011) ("As with any privilege, the legislative privilege can be waived when the parties holding the privilege share their communications with an outsider.... This includes lobbyists ...."); Cunningham v. Chapel Hill, ISD , 438 F. Supp. 2d 718, 723 (E.D. Tex. 2006) ("[Plaintiff] may ask [local legislator] or other trustees questions related to comments they might have made to members of the public or the press prior to or after the session in question, even if the comments were related to the session.").
Indeed, in the context of legislative immunity, the Supreme Court has repeated that not everything "related" to the office of a legislator is covered by the Speech or Debate Clause. Brewster , 408 U.S. at 513–14, 92 S.Ct. 2531. The Supreme Court distinguished between "acts that occur in the regular course of the legislative process" and other legitimate but non-privileged acts:
It is well known, of course, that Members of the Congress engage in many activities other than the purely legislative activities protected by the Speech or Debate Clause. These include a wide range of legitimate ‘errands’ performed for constituents, the making of appointments with Government agencies, assistance in securing Government contracts, preparing so-called ‘news letters’ to constituents, news releases, and speeches delivered outside the Congress. The range of these related activities has grown over the years. They are performed in part because they have come to be expected by constituents, and because they are a means of developing continuing support for future elections. Although these are entirely legitimate activities, they are political in nature rather than legislative, in the sense that term has been used by the Court in prior cases. But it has never been seriously contended that these political matters, however appropriate, have the protection afforded by the Speech or Debate Clause. Careful examination of the decided cases reveals that the Court has regarded the protection as reaching only those things ‘generally done in a session of the House by one of its members in relation to the business before it,’ Kilbourn v. Thompson, supra , 103 U.S. [168] at 204[, 26 L.Ed. 377 (1880) ], or things ‘said or done by him, as a representative, in the exercise of the functions of that office,’ Coffin v. Coffin , 4 Mass. 1, 27 (1808).
Brewster , 408 U.S. at 512–13, 92 S.Ct. 2531. It concluded that "[t]he only reasonable reading of the Clause, consistent with its history and purpose, is that it does not prohibit inquiry into activities that are casually or incidentally related to legislative affairs but not a part of the legislative process itself." Id. at 528, 92 S.Ct. 2531. This distinction applies to considerations of legislative privilege as well. Favors , 2015 WL 7075960, at *5 n.8.
Movants have offered no authority for their proposition that legislative privilege protects discovery of information concerning communications between them and, for example, members of the Hills & Dales council. Indeed, the fact that Movants complied with Plaintiffs’ subpoenas duces tecum by producing correspondence from Hills & Dales and communications with constituents, without invoking the privilege, undermines their argument that privilege prevents Movants from being deposed regarding the same matters.
In sum, even if Movants were members of the federal legislature, the legislative privilege would not bar discovery concerning communications with non-privileged third parties. That they are State legislators, and therefore arguably entitled to even less protection under the privilege, underscores that its protection does not prevent disclosure of communications between Movants and third parties, such as constituents or lobbyists. Therefore, and by way of example and not limitation, Plaintiffs may question Movants about all communications they had with non-protected parties, such as residents of Hills & Dales.
Although some of the cases cited above required document production rather than permitting deposition of the legislators, written deposition is warranted under the unique facts of this case. Evidence here suggests that Movants had relevant oral conversations with residents of Hills & Dales (and perhaps others), information about which may not be contained in any document. Accordingly, this is an extraordinary case where some form of depositions is warranted. The Court is also by no means alone in permitting depositions, in addition to document discovery, of non-privileged information. See, e.g. , Cunningham , 438 F. Supp. 2d at 723 (permitting deposition regarding non-privileged information); Miles-Un-Ltd., Inc. v. Town of New Shoreham, R.I. , 917 F. Supp. 91, 102 (D. N.H. 1996) (permitting deposition regarding non-legislative activities).
Communications between the General Assembly members and their legislative aides, however, are protected. For the reasons addressed in footnote 2, legislative aides are not considered "outsiders," communication with whom would destroy the privilege. Accordingly, Michaela George and Alexandra Harris may not be questioned about communications with legislators or other legislative staff.
In addition to inquiring about communications with third parties, though, Plaintiffs seek to depose Movants about the types of legislative activities and motivations that would typically fall under legislative privilege. In doing so, Plaintiffs assert that the qualified privilege can be overcome in this case due, primarily, to the important federal interests at stake and the inability to obtain the evidence through other means. Plaintiffs ask the Court to apply a five-factor test that some other district courts have used to determine whether movants’ qualified privilege can be overcome vis-à-vis information that is otherwise protected.
This test considers: "(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." Rodriguez , 280 F. Supp. 2d at 101 (internal quotation marks and citation omitted). Courts weigh those factors to determine whether the chill on the legislator's deliberations caused by production of the information outweighs the factors favoring disclosure. Id. at 100. If not, courts may find the qualified privilege overcome and require disclosure. This test has been applied by some district courts in the Sixth Circuit. E.g. , Nashville Student Organizing Comm. v. Hargett , 123 F Supp. 3d 967 (M.D. Tenn. 2015).
The Court will not permit Movants to be deposed regarding privileged information. Although Movants possess relevant information and there are important federal interests at stake, much of the information relevant to the departure from the normal legislative process will be discoverable as unprotected by the privilege in the first instance. And, federal interests are not typically found sufficient to overcome the privilege. Cf. ACORN , 2007 WL 2815810, at *3 ("[N]either plaintiffs’ submissions nor the court's own research has identified a single case in which the seriousness of the litigation overrode the assertion of legislative privilege as to testimony regarding a legislator's motivations.").
Plaintiffs’ reliance on Arlington Heights for overcoming the privilege is unavailing as that case expressly noted that relevant testimony from the legislature will often be barred by privilege.
Accordingly, the Court agrees that the legislative privilege protects inquiry into legislative acts, such as Movants’ deliberation and motivation. E.g. , ACORN , 2007 WL 2815810, at *6 ("Legislative privilege is available to protect inquiry into the actual deliberation and motivations of legislators in this case."); McCrory , 2015 WL 12683665, at *6 ("[F]or Plaintiffs’ requests for discovery of communications among legislators and between legislators and their staff, the potential intrusion into the legislative process outweighs the countervailing factors."). The Court declines to find that this case warrants overcoming the qualified privilege as to such covered information.
III. CONCLUSION
For the reasons addressed above, Movants’ motion to quash, ECF No. 79, is GRANTED IN PART AND DENIED IN PART .
Specifically, Plaintiffs are entitled to question Movants only regarding information that is: (1) not privileged, (2) relevant to the Arlington Heights factors, and (3) not obtainable from another source. The questions shall, of course, not seek information that is protected by any other privilege.
Moreover, the burden that in-person depositions would pose on Movants outweighs the relevance and need for the information. Therefore, Plaintiffs may not depose Movants in person. Rather, Plaintiffs may submit no more than twenty written deposition questions—that comply with the above guidelines—to each Movant. Movant may either answer each question, object to the same, or specifically direct Plaintiffs to where the information is available from another source.
Counsel for all parties and Movants are admonished to attempt to abide by the guidelines set herein and to resolve disputes over the questions extra-judicially. To that end, the Court will permit additional reasonable extensions of the discovery deadline. Nonetheless, should counsel be unable to resolve such disputes and if Movants have a good-faith objection to any question posed given the rulings herein, Movants may assert the objection for ruling by the Court. In so permitting, the Court does not invite re-litigation of the matters decided in this Opinion and Order, and it is the Court's sincere hope that objections, if any, will be few in number.
Finally, nothing herein should be construed as permitting any Movant to testify at the hearing, unless they wish to do so.