League of Women Voters of Pa. v. Commonwealth, 261 M.D. 2017
| Decision Date | 30 November 2017 |
| Docket Number | No. 261 M.D. 2017,261 M.D. 2017 |
| Citation | 177 A.3d 1010 |
| Parties | LEAGUE OF WOMEN VOTERS of Pennsylvania, Carmen Febo San Miguel, James Solomon, John Greiner, John Capowski, Gretchen Brandt, Thomas Rentschler, Mary Elizabeth Lawn, Lisa Isaacs, Don Lancaster, Jordi Comas, Robert Smith, William Marx, Richard Mantell, Priscilla McNulty, Thomas Ulrich, Robert McKinstry, Mark Lichty, Lorraine Petrosky, Petitioners v. The COMMONWEALTH of Pennsylvania; The Pennsylvania General Assembly; Thomas W. Wolf, In His Capacity As Governor of Pennsylvania; Michael J. Stack III, In His Capacity As Lieutenant Governor of Pennsylvania And President of the Pennsylvania Senate; Michael C. Turzai, In His Capacity As Speaker of the Pennsylvania House of Representatives; Joseph B. Scarnati III, In His Capacity As Pennsylvania Senate President Pro Tempore; Robert Torres, In His Capacity As Acting Secretary of the Commonwealth of Pennsylvania; Jonathan M. Marks, In His Capacity As Commissioner of the Bureau of Commissions, Elections, and Legislation of the Pennsylvania Department of State, Respondents |
| Court | Pennsylvania Commonwealth Court |
177 A.3d 1010
LEAGUE OF WOMEN VOTERS of Pennsylvania, Carmen Febo San Miguel, James Solomon, John Greiner, John Capowski, Gretchen Brandt, Thomas Rentschler, Mary Elizabeth Lawn, Lisa Isaacs, Don Lancaster, Jordi Comas, Robert Smith, William Marx, Richard Mantell, Priscilla McNulty, Thomas Ulrich, Robert McKinstry, Mark Lichty, Lorraine Petrosky, Petitioners
v.
The COMMONWEALTH of Pennsylvania; The Pennsylvania General Assembly; Thomas W. Wolf, In His Capacity As Governor of Pennsylvania; Michael J. Stack III, In His Capacity As Lieutenant Governor of Pennsylvania And President of the Pennsylvania Senate; Michael C. Turzai, In His Capacity As Speaker of the Pennsylvania House of Representatives; Joseph B. Scarnati III, In His Capacity As Pennsylvania Senate President Pro Tempore; Robert Torres, In His Capacity As Acting Secretary of the Commonwealth of Pennsylvania; Jonathan M. Marks, In His Capacity As Commissioner of the Bureau of Commissions, Elections, and Legislation of the Pennsylvania Department of State, Respondents
No. 261 M.D. 2017
Commonwealth Court of Pennsylvania.
Decided November 30, 2017
Jarad W. Handelman, Harrisburg, for movant Thomas W. Corbett.
David P. Gersch, Washington, DC, and Mary M. McKenzie, Philadelphia, for petitioners.
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
OPINION BY JUDGE BROBSON
Presently before the Court for disposition is an application to quash subpoena directed to the Honorable Thomas W. Corbett (Governor Corbett), along with Governor Corbett's memorandum of law in support thereof, Petitioners' answer to the application to quash, Governor Corbett's brief in reply to the answer, and Petitioners' praecipe to supplement the record for the application to quash.
On November 22, 2017, Petitioners caused a subpoena to be served on Governor Corbett, seeking to secure his appearance at a deposition scheduled for December 1, 2017, and to compel the production of documents from Governor Corbett described in a request for production attached to the subpoena (Requests). (Application to Quash, Ex. "A".) The Requests are for "[a]ll documents referring or relating to the 2011 [Congressional Redistricting] Plan [ (2011 Plan) ], including, but not limited to" the following seven (7) subcategories of documents and communications relating to the 2011 Plan:
1. All documents referring or relating to the 2011 Plan, including, but not limited to:
a. All proposals, analyses, memoranda, notes, and calendar entries in whatever medium ... they are maintained referring or relating to the 2011 Plan.
b. All documents referring or relating to all considerations or criteria that were used to develop the 2011 Plan, such as compactness, contiguity, keeping political units or communities together,
equal population, race or ethnicity, incumbent protection, a voter['s] or area's likelihood of supporting Republican or Democratic candidates, and any others.
c. All documents referring or relating to how each consideration or criterion was measured, including the specific data and specific formulas used in assessing compactness and partisanship.
d. All documents referring or relating to how each consideration or criterion affected the 2011 Plan, including any rule or principle guiding the use of each consideration or criteria in developing the 2011 Plan.
e. All communications since January 1, 2009 with any affiliate of the Republican Party, including, but not limited to, the Republican National Committee (RNC), the National Republican Congressional Committee (NRCC), the Republican State Leadership Committee (RSLC), the REDistricting Majority Project (REDMAP), or the State Government Leadership Foundation (SGLF) that refer or relate to the 2011 Plan.
f. All communications with any consultants, advisors, attorneys, or political scientists referring or relating to the 2011 Plan.
g. All communications with any committees, legislators, or legislative staffers referring or relating to the 2011 Plan.
(Id. )
The subpoena also lists the following seven (7) "deposition topics," relating to the 2011 Plan:
1. Governor Corbett's involvement in the creation, passage, and signing into law of the 2011 Plan.
2. Communications involving Governor Corbett referring or relating to the 2011 Plan.
3. Involvement of the REDistricting Majority Project (REDMAP), the RNC, or any non-Pennsylvania organizations with development of the 2011 Plan.
4. The considerations or criteria that were used to develop the 2011 Plan, such as compactness, contiguity, keeping political units or communities together, equal population, race or ethnicity, incumbent protection, a voter ['s] or area's likelihood of supporting Republican or Democratic candidates, and any others.
5. How each consideration or criterion was measured, including the specific data and specific formulas used in assessing compactness and partisanship.
6. How each consideration or criterion or [sic] affected the 2011 Plan, including any rule or principle guiding the use of each consideration or criteria in developing the 2011 Plan.
7. The goals and expected election outcomes of the 2011 Plan.
(Id. )
Along with the subpoena, Petitioners caused this Court's order, dated November 22, 2017, to be served on Governor Corbett.1
In response to the subpoena, Governor Corbett filed the subject application to quash, averring that all of the documents and/or information sought from Governor Corbett in the subpoena are protected from disclosure by a number of privileges, including the executive privilege, the deliberative process privilege, and the attorney-client privilege.
With regard to subpoenas in the context of assertions of privilege, the Commonwealth Court has explained:
Subpoenas are one of many different discovery tools. The essential purpose of discovery is to give each side access to all information reasonably calculated to lead to the discovery of relevant, non-privileged information possessed by the other side, as well as limited access to information held by non-parties. Information, that is not otherwise privileged, is discoverable if it is both relevant and reasonable. Whether information is relevant depends upon the nature and the facts of the case, and any doubts are to be resolved in favor of relevancy.
The objector to a discovery request must demonstrate non-discoverability.
Ario v. Deloitte & Touche, LLP , 934 A.2d 1290, 1292–93 (Pa. Cmwlth. 2007) (internal citations omitted).
As discussed in this Court's November 22, 2017 order, the General Assembly and its staff enjoy protection from judicial interference with their legitimate legislative activities under the Speech and Debate Clause of the Pennsylvania Constitution. See Pa. Const., Art. 2, § 15. The Pennsylvania Constitution, however, does not expressly provide a similar protection for the executive branch of state government. Moreover, with the exception of requests made pursuant to the Right-to-Know Law (RTKL), Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101 – 67.3104,2 the General Assembly has not codified any similar privilege for the executive branch. Thus, any privilege available to a Governor of Pennsylvania necessarily must derive, to some extent, from common law doctrine or constitutional concepts.
The common law doctrine of governmental privilege for executive branch members consists largely of the executive privilege and, in some jurisdictions, the deliberative process privilege. Van Hine v. Dep't of State , 856 A.2d 204, 208 (Pa. Cmwlth. 2004). To the extent that these privileges
exist in Pennsylvania,3 both state and federal courts of Pennsylvania have held that the deliberative process privilege and the executive privilege are coterminous, as both "protect[ ] documents whose disclosure would ‘seriously hamper the function of government.’ " See id. at 208. The privileges, however, require somewhat different analyses. See id. at 208–12.
Moreover, when it comes to use of judicial process against a Governor of this Commonwealth, the Pennsylvania Supreme Court historically has exercised restraint, given that the Governor is the head of a co-equal branch of government. See Harding v. Pinchot , 306 Pa. 139, 159 A. 16 (1932). In Harding , the Supreme Court opined:
[I]t may be well to repeat that when we, in the past, refrained from issuing judicial process against the Governor, in deference to the fact that he represents a co-ordinate branch of the government ..., this court did not divest itself of power to issue judicial process to him in an appropriate case. The rule enunciated in [ Appeal of Hartranft , 85 Pa. 433 (1877),] was that, where it was sought to compel the Governor by judicial process and he made answer that the decree prayed for would interfere with the proper performance of his executive duties, the courts would not issue mandamus to compel him to act. However, it should not be forgotten that the people are sovereign and their Constitution is the fundamental law. That Constitution provides: ‘All courts shall be open; and every man for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law, and right and justice administered without sale, denial or delay.’ Article 1, § 11. This court has at no time declared that,...
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...as any knowledge he has would arise from his role as a legislator. He urges the Court to follow League of Women Voters v. Commonwealth , 177 A.3d 1010 (Pa. Cmwlth. 2017) ( League of Women Voters I ), and apply the legislative privilege to him. He further contends that several of the subject......