Bethune-Hill v. Va. State Bd. of Elections

• Citation: 114 F.Supp.3d 323
• Decision Date: 26 May 2015
• Docket Number: Civil Action No. 3:14cv852.
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Golden BETHUNE–HILL, et al., Plaintiffs, v. VIRGINIA STATE BOARD OF ELECTIONS, et al., Defendants, v. Virginia House of Delegates, et al., Intervenor–Defendants.

114 F.Supp.3d 323

Golden BETHUNE–HILL, et al., Plaintiffs,

v.VIRGINIA STATE BOARD OF ELECTIONS, et al., Defendants,

v.Virginia House of Delegates, et al., Intervenor–Defendants.

Civil Action No. 3:14cv852.

United States District Court, E.D. Virginia. Richmond Division.

Signed May 26, 2015.

John Kuropatkin Roche, Aria Christine Branch, Bruce Van Spiva, Elisabeth Carmel Frost, Marc Erik Elias, Perkins Coie LLP, Washington, DC, Kevin John Hamilton, Ryan Spear, William Benjamin Stafford, Abha Khanna, Perkins Coie LLP, Seattle, WA, for Plaintiffs.

Jeffrey P. Brundage, Eckert Seamans Cherin & Mellott LLC, Kathleen Angell Gallagher, Daniel Ari Glass, Washington, DC, Anthony F. Troy, Eckert Seamans Cherin & Mellott LLC, Godfrey Thadeus Pinn, Jr., Harrell & Chambliss LLP, Richmond, VA, for Defendants.

Katherine Lea McKnight, Effrem Mark Braden, Jennifer Marie Walrath, Richard Bryan Raile, Baker & Hostetler LLP, Washington, DC, for Intervenor–Defendants.

MEMORANDUM OPINION

ROBERT E. PAYNE, Senior District Judge.

This matter is before the Court on PLAINTIFFS' MOTION TO COMPEL PRODUCTION OF DOCUMENTS AND MEMORANDUM IN SUPPORT (Docket No. 48). For the reasons set forth below, the motion will be granted in part and denied in part.

BACKGROUND

In this case, Plaintiffs have challenged twelve Virginia House of Delegates districts as unlawful racial gerrymanders in violation of the Equal Protection Clause of the U.S. Constitution. Plaintiffs filed this action against the Virginia State Board of Elections ("BOE") and various members thereof (collectively, "Defendants"), but did not name any legislative body or individual legislator as a defendant. Soon after Plaintiffs filed their Complaint, however, the Virginia House of Delegates (the "House") and Speaker William J. Howell ("Speaker Howell") (collectively, "Intervenors") moved to intervene, (Docket No. 12), and that motion was granted, (Docket No. 26.). Intervenors have represented that they do not represent any individual delegate except Speaker Howell, and that the House does not speak on behalf of any individual legislator. See Tr. of Hr'g, Feb. 24, 2015, at 9:7–9.

During discovery, Plaintiffs served the House with requests for production of documents including, inter alia,

1. "[A]ll communications [related to the 2011 redistricting process] between or among the Virginia House of Delegates, including but not limited to those members who represent or represented" the challenged districts;

2. "[A]ll communications [related to the 2011 redistricting process] between, among, or with the Virginia House of Delegates and any other individual or entity, including, without limitation, political organizations, lobbyists, political operatives, consultants, constituents, voters, and government officials;" and3. "[A]ll communications [related to the 2011 redistricting process] between the Virginia House of Delegates and any and all local, statewide, or national Republican groups, including without limitation the Republican National Committee, National Republican Congressional Committee, Republican State Leadership Committee, Republican Legislative Campaign Committee, current or former members of the local, state, or national Republican group, their staff members, agents, employees, consultants, advisors, experts, and personnel."

Decl. of Ryan Spear in Supp. of Pls.' Mot. to Compel Produc. of Docs., Ex. B (Docket No. 49). Plaintiffs also sought, more generally, "all documents related to the [2011 Virginia redistricting process], including without limitation all emails, letters, notes, press releases, and other documents." Id.

Plaintiffs have sought the communications of individual, non-party legislators and other documents directly from the Intervenors. The House is in possession of these legislators' communications because it maintains an email system that the delegates are encouraged to use for "communications between legislators, staff, state agencies, constituents, and others concerned with state business, including the transfer of documents and usage of electronic mail." Def.-Ints.' Mem. in Opp'n to Mot. to Compel, Ex. A, Virginia House Appropriate Use Policy (Docket No. 50–1). Counsel to the Intervenors, Baker Hostetler, is also in possession of other documents sought by the Plaintiffs, including files obtained from Mr. Christopher Marston (an attorney who worked for the House during 2010 and 2011 and provided legal and strategic advice concerning redistricting), Mr. John Morgan (an individual retained by the House to assist with the 2011 redistricting process), and Mr. Chris Jones (a state legislator who expects to testify in this matter and is represented by Baker Hostetler in that capacity).

In response to Plaintiffs' requests, the House produced documents and served privilege logs reflecting other documents that it had withheld from production on the basis of the legislative privilege, the attorney-client privilege, and the work-product doctrine. In an effort to minimize disputes about the legislative privilege, the parties agreed to send a joint letter to delegates whose emails the House had withheld on legislative privilege grounds. That letter informed the affected delegates that the House had custody of responsive emails to or from the delegates; that the House did not represent the delegates; and that it was the responsibility of the individual delegates to waive or assert the legislative privilege. The notice was sent to the twenty-nine (29) delegates whose communications had been deemed relevant and privileged. The notice set a date by which the delegates were to indicate whether they intended to assert or waive their legislative privilege. However, the notice did not explain that to be successful, an assertion of the legislative privilege must be accompanied by proof that the documents actually are privileged. Nor did the notice explain how that showing should be made.

Of the 29 delegates who received the joint letter, twenty-one (21) responded to "assert" legislative privilege, four (4) responded by waiving legislative privilege, and four (4) failed to respond. The House produced the documents of the four legislators who expressly waived their legislative privilege but continues to withhold the documents of the four legislators who failed to respond. The House also continues to withhold the documents of the remaining 21 delegates, who have expressed a preference to assert their legislative privilege but have taken no steps to establish that the withheld documents do, in fact, satisfy the elements of the legislative privilege. Nor has the House sought to make that showing on behalf of those 21 delegates.

Following a telephone conference with the Court in an effort to resolve the claims informally, Plaintiffs filed a motion to compel the production of numerous purportedly "privileged" documents, arguing that the Intervenors have not established valid claims of privilege under the legislative privilege, the attorney-client privilege, or the work-product doctrine.

DISCUSSION

I. Legislative Privilege

To understand the scope and strength of the state legislative privilege for state legislators, "it is necessary to take a step back and examine the parallel concept of legislative immunity." E.E.O.C. v. Washington Suburban Sanitary Comm'n [WSSC II ], 631 F.3d 174, 180 (4th Cir.2011). In addition, it is important to identify how legislative immunity and legislative privilege differ between federal and state legislators as to the source of the privileges, their purpose, and the degree of their protection.

A. History and Purpose of the Legislative Privilege

1. Federal Legislative Immunity and Privilege

Legislative immunity and legislative privilege for federal legislators derive from the Speech and Debate Clause of the United States Constitution which provides that, "for any Speech or Debate in either House, they [Members of Congress] shall not be questioned in any other Place." U.S. Const. Art. I, § 6, cl. 1. The Speech and Debate Clause was "designed to assure a coequal branch of the government wide freedom of speech, debate, and deliberation" and has been read as a means to protect "the legislative process" and "prevent intimidation of legislators by the Executive and accountability before a possibly hostile judiciary," Gravel v. United States, 408 U.S. 606, 616, 617, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972). Thus, two important principles animate legislative immunity at the federal level: (1) the separation of powers, and (2) the protection of the legislative process. See Eastland v. U.S. Servicemen's Fund, 421 U.S. 491, 502, 95 S.Ct. 1813, 44 L.Ed.2d 324 (1975) (observing that "the clause ... reinforc[es] the separation of powers so deliberately established by the Founders" and was "not written into the Constitution simply for the personal or private benefit of Members of Congress, but to protect the integrity of the legislative process by insuring the independence of individual legislators").

Although the clause speaks only of "Speech or Debate," it shields federal legislators from liability for all "things generally done in a session of the House by one of its members in relation to the business before it," Kilbourn v. Thompson, 103 U.S. 168, 204, 26 L.Ed. 377 (1881), such as the production of committee reports, the passage of resolutions, and the act of voting, see Gravel, 408 U.S. at 617, 92 S.Ct. 2614. To determine whether particular activities fall within this "legitimate legislative sphere," the party claiming the privilege must prove that the activities are "an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House." Id. at 625, 92 S.Ct. 2614. Such "legislative acts" typically involve "the adoption of prospective, legislative-type rules ......