Abuzahra v. City of Cambridge
| Decision Date | 21 June 2022 |
| Docket Number | 21-P-225 |
| Citation | 190 N.E.3d 553 |
| Parties | Said S. ABUZAHRA v. CITY OF CAMBRIDGE. |
| Court | Appeals Court of Massachusetts |
M. Patrick Moore, Jr. (John S. Leonard also present), Boston, for the defendant.
John E. Bowen, Boston (John R. Maciolek also present) for the plaintiff.
Present: Sacks, Ditkoff, & Walsh, JJ.
In September of 2016, the city council for the city of Cambridge (city) voted to approve an order of taking of the plaintiff's property, located at 139 Bishop Allen Drive/1-15 Vail Court (property), by eminent domain. The stated purpose of the taking was to create affordable senior housing or transitional housing for city residents. The owner of the property, and the plaintiff in the present action, Said S. Abuzahra, filed suit against the city claiming that the taking was made in bad faith and in violation of his Federal and State constitutional rights.
During the discovery phase of the lawsuit, a Superior Court judge issued an order regarding the production of electronically stored information, which resulted in over 36,000 e-mail files, consisting of e-mail messages and attachments (collectively, email), being identified by the prescribed search terms. The city combed through one portion (just over 5,700 e-mails), and in its first production, turned over roughly 1,000 relevant emails to the plaintiff. The city withheld fifty-six e-mails claiming legislative privilege and sought a protective order.2 The judge denied the city's motion for a protective order and the subsequent motion for reconsideration, later explaining that all but one of the e-mails concerned administrative acts such that legislative privilege did not apply. As to that one email, dated September 24, 2016, the judge ruled that it was not discoverable under the open meeting law. The city has filed this interlocutory appeal, invoking the doctrine of present execution. The plaintiff cross-appeals from the judge's ruling that the September 24, 2016 e-mail regarding executive session minutes was protected from disclosure under the open meeting law pursuant to G. L. c. 30A, § 21 (a ) (6).
We conclude that we have jurisdiction over the city's appeal, that the eminent domain taking was legislative in nature, and that legislative privilege may apply at least to some communications involving the city council that concern the taking. We remand for further proceedings to determine which, if any, of the withheld e-mails are within the privilege. We conclude that we lack jurisdiction over the plaintiff's cross appeal.
Discussion. When a judge's ruling on a discovery motion is based upon a mixed question of fact and law, we review the ultimate ruling de novo. See Patel v. Martin, 481 Mass. 29, 39, 111 N.E.3d 1082 (2018) ; Chambers v. Gold Medal Bakery, Inc., 464 Mass. 383, 389, 983 N.E.2d 683 (2013). We afford the judge's findings of fact the usual deference, unless based on purely documentary evidence. See Committee for Pub. Counsel Servs. v. Barnstable County Sheriff's Office, 488 Mass. 460, 473-474, 173 N.E.3d 1102 (2021) ; Commonwealth v. Tremblay, 480 Mass. 645, 654-655, 107 N.E.3d 1121 (2018). The issue before us is the extent to which legislative privilege attaches to the fifty-four contested e-mails. While the plaintiff acknowledges the principle of legislative privilege, he claims that the e-mails are discoverable because the communications did not concern legislative acts but rather administrative acts.
1. Appellate jurisdiction. The city appeals from this interlocutory discovery order under the doctrine of present execution. Generally, "there is no right to appeal from an interlocutory order unless a statute or rule authorizes it." Maddocks v. Ricker, 403 Mass. 592, 597, 531 N.E.2d 583 (1988). A limited exception is found in the doctrine of present execution, which allows an immediate appeal "[1] where the interlocutory ruling will interfere with rights in a way that cannot be remedied on appeal from the final judgment, and [2] where the matter is collateral to the merits of the controversy" (quotations and citation omitted). Elles v. Zoning Bd. of Appeals of Quincy, 450 Mass. 671, 674, 881 N.E.2d 129 (2008).
It is true that both our courts and courts in the Federal system have generally not allowed parties to appeal from interlocutory discovery orders under the doctrine of present execution or the comparable collateral order doctrine. See Patel, 481 Mass. at 34, 111 N.E.3d 1082. Indeed, in Patel, id. at 35-36, 111 N.E.3d 1082, the Supreme Judicial Court concluded that the doctrine of present execution did not allow an appeal from a discovery order that required the disclosure of assertedly attorney-client privileged materials in private litigation. "Where a postjudgment appeal offers a viable, albeit imperfect, remedy, we will not grant a right to interlocutory appeal from a discovery order simply because it involves an issue of privilege."3 Id. at 36, 111 N.E.3d 1082.
In this particular instance, however, there is more than a simple claim of attorney-client privilege at stake. If legislative privilege exists here, it reflects a determination about the proper allocation of governmental powers -- a recognition that courts should not interfere in the affairs of legislative bodies by requiring disclosure of certain communications at the center of the legislative process. If the documents at issue here were communications among members of the Legislature about proposed legislation, the order to disclose them would raise a significant question under the separation of powers provisions of art. 30 of the Massachusetts Declaration of Rights. Cf. K.J. v. Superintendent of Bridgewater State Hosp., 488 Mass. 362, 368, 173 N.E.3d 363 (2021) (). The city council, although not the Legislature, is nevertheless an elected legislative body, serving important public functions, with which the courts ought not to interfere lightly. The larger impact of such interference on the proper functioning of government could be difficult to undo on appeal from a final judgment, even if particular communications erroneously ordered disclosed, and information derived from such communications, could be excluded from any subsequent proceedings. See note 3, supra.
"In determining whether to allow an appeal under the doctrine, [an appellate court] must balance ‘the harm to cost-effective litigation arising from piecemeal interlocutory appeals against the harm that a litigant may suffer from a trial court order that is irremediable on postjudgment appeal.’ " CP 200 State, LLC v. CIEE, Inc., 488 Mass. 847, 849, 179 N.E.3d 45 (2022), quoting Patel, 481 Mass. at 37, 111 N.E.3d 1082. "In applying this ‘balancing act,’ [an appellate court must also] consider[ ] whether the ‘sheer volume of potential appeals’ resulting if an immediate appeal is permitted, as well as the ‘inevitable adverse impact on judicial efficiency, outweighs the intrinsic harm that potentially might be suffered by an aggrieved party who is denied an immediate right to appeal.’ " CP 200 State, LLC, supra at 849-850, 179 N.E.3d 45, quoting Patel, supra. We think that the volume of interlocutory appeals raising issues of legislative privilege is likely to be low and is outweighed by the intrinsic harm that might be suffered by legislative bodies, and the public they serve, if they were denied an immediate appeal. Therefore, in this limited and narrow circumstance, we conclude that the doctrine of present execution allows an immediate appeal by the city.
The same does not hold true for the plaintiff's cross appeal regarding the September 24, 2016 e-mail that the judge found to be protected by an exemption from the open meeting law's disclosure requirements. The plaintiff's cross appeal fits squarely within the general rule that interlocutory orders are not immediately appealable because "a party ought not to have the power to interrupt the progress of the litigation by piecemeal appeals that cause delay and often waste judicial effort in deciding questions that will turn out to be unimportant" (quotation and citation omitted). CP 200 State, LLC, 488 Mass. at 848-849, 179 N.E.3d 45. If the plaintiff does not ultimately prevail in the trial court, he may appeal, and if he shows prejudicial error in the judge's decision not to order disclosure of that e-mail, the error may be fully remedied in further proceedings.4 We now turn to the merits of the city's claim.
2. Legislative privilege. "Testimonial privileges are exceptions to the general duty imposed on all people to testify." Commonwealth v. Corsetti, 387 Mass. 1, 5, 438 N.E.2d 805 (1982). "Thus, the recognition of privileges contravenes the fundamental maxim that the public ... has a right to every [person's] evidence" (quotation and citation omitted). Matter of the Enforcement of a Subpoena, 463 Mass. 162, 166, 972 N.E.2d 1022 (2012). When an appellate court does recognize a testimonial privilege, a power that is exercised cautiously, the court does so because "excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth." Id. at 167, 972 N.E.2d 1022, quoting Three Juveniles v. Commonwealth, 390 Mass. 357, 359-360, 455 N.E.2d 1203 (1983), cert. denied, 465 U.S. 1068, 104 S.Ct. 1421, 79 L.Ed.2d 746 (1984). See Babets v. Secretary of the Executive Office of Human Servs., 403 Mass. 230, 235, 526 N.E.2d 1261 (1988) ().5
The concept of a legislative privilege, however, is not new; although not recognized in any Massachusetts appellate decision, it has been widely recognized elsewhere, and both the judge in this case and the plaintiff at oral argument before u...
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