Page v. Va. State Bd. of Elections
| Decision Date | 08 May 2014 |
| Docket Number | Civil Action No. 3:13cv678. |
| Citation | 15 F.Supp.3d 657 |
| Court | U.S. District Court — Eastern District of Virginia |
| Parties | Dawn Curry PAGE, et al., Plaintiffs, v. VIRGINIA STATE BOARD OF ELECTIONS, et al., Defendants. |
John Kuropatkin Roche, John Michael Devaney, Marc Erik Elias, Perkins Coie LLP, Washington, DC, Kevin Hamilton, Perkins Coie LLP, Seattle, WA, for Plaintiffs.
Trevor Stephen Cox, Hunton & Williams LLP, Mike Melis, Office of the Attorney General, Richmond, VA, for Defendants.
This matter is before the Court on the non-party Christopher Marston's MOTION TO QUASH SUBPOENAS TO ROBERT B. BELL, WILLIAM ROBERT JANIS, AND CHRISTOPHER MARSTON AND/OR FOR A PROTECTIVE ORDER, Docket No. 61. For the reasons set forth below, the Motion will be denied in part.
Dawn Curry Page, Gloria Personhuballah, and James Farkas (“Plaintiffs”) filed this action against Virginia State Board of Elections, Don Palmer, Kimberly Bowers, Charlie Judd, and Kenneth Cuccinelli II, (“Defendants”)1 alleging that the Plaintiffs' rights under the Equal Protection Clause of the United States Constitution were violated by the racial gerrymander of Virginia Congressional District 3 during the 2011–12 redistricting cycle. The Plaintiffs' request for hearing by a three-judge court pursuant to 28 U.S.C. § 2284(a) was granted by the Chief Judge of the United States Court of Appeals for the Fourth Circuit.
Kenneth Cuccinelli II (then the Attorney General of Virginia) and the Virginia State Board of Elections have been dismissed from this case by consent of the parties. Virginia's Republican Congressional delegation filed an unopposed motion to intervene as defendants. After the Court denied motions for summary judgment submitted by the Defendants and the Intervenor Defendants, Dawn Curry Page withdrew as a plaintiff upon consent of the parties.
The pending motion was originally filed by non-parties Robert B. Bell, William Robert Janis, and Christopher Marston, in response to a series of subpoenas issued by the Plaintiffs. Bell and Janis were members of the Virginia House of Delegates at the time of the redistricting. They were subpoenaed to give depositions, but Plaintiffs have since withdrawn the subpoenas, and Janis and Bell are no longer parties to this motion. From Marston, the Plaintiffs sought documents pertaining to the redistricting process. Marston has refused to produce those documents, claiming that the attorney-client privilege and the legislative privilege protect them from disclosure. The Court has completed an in camera review of the documents Marston claims to be protected by the attorney-client privilege and has upheld some claims of privilege while rejecting others. See Docket No. 90. Accordingly, this opinion will address only Marston's assertion of a legislative privilege.
In his declaration, Marston avers that, during the relevant time period, he “was Executive Director of and Counsel to the Virginia House Republican Caucus,” but that he “was paid as an independent contractor by the House Republican Campaign Committee.” The parties agree that the membership of the Caucus and the Campaign Committee is the same. However, at oral argument, counsel for Marston acknowledged that, notwithstanding the overlap in membership, the organizations are distinctly different. The Caucus functions within the confines of the House of Delegates, whereas the Campaign Committee serves a political function, helping Republican delegates to be elected or re-elected.
Marston also avers that, while he served as “legal counsel to the Speaker of the Virginia House of Delegates and the Virginia House Republican Caucus,” he “also worked in a legislative capacity for the Republican members of the Virginia House of Delegates.” His job in the latter capacity was coordinating communications and legislative strategy. Marston asserts that there were four staff members, but that, in his consulting capacity, he “effectively was lead staff for the redistricting efforts of the Virginia House of Delegates.”
In his role of consultant, Marston “participated in crafting redistricting legislation; coordinating and gathering analysis of data and information from which redistricting legislation was introduced; assisted members of the House of Delegates in holding hearings on redistricting; assisted in preparing statements to members about redistricting; advised members and their staff regarding strategy for passage of redistricting legislation; and regularly engaged in frank discussions with members concerning the creation, evolution, and passage of redistricting legislation.” Marston recites that, when performing those responsibilities, he “was a consultant due to the manner in which [he] was compensated.”
Testimonial and evidentiary privileges exist against the backdrop of the general principle that all reasonable and reliable measures should be employed to ascertain the truth of a disputed matter. Privileges are therefore strictly construed and accepted only where the public good associated with the exclusion of relevant evidence overrides the general principle in favor of admission. Trammel v. United States, 445 U.S. 40, 50, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980). See also Herbert v. Lando, 441 U.S. 153, 175, 99 S.Ct. 1635, 60 L.Ed.2d 115 (1979) (). “A party asserting privilege has the burden of demonstrating its applicability.” N.L.R.B. v. Interbake Foods, LLC, 637 F.3d 492, 501 (4th Cir.2011). A conclusory assertion of privilege is insufficient to establish a privilege's applicability to a particular document; thus, the proponent of a privilege must “demonstrate specific facts showing that the communications were privileged.” RLI Ins. Co. v. Conseco, Inc., 477 F.Supp.2d 741, 751 (E.D.Va.2007).
“Legislative privilege clearly falls within the category of accepted evidentiary privileges.” E.E.O.C. v. Wash. Suburban Sanitary Comm'n, 631 F.3d 174, 180 (4th Cir.2011). The privilege is rooted in the absolute immunity granted to federal legislators by the Speech or Debate Clause of the United States Constitution and exists to safeguard that immunity. Id. at 180–181. In Tenney v. Brandhove, the Supreme Court of the United States found that the Speech or Debate Clause was part of a broader common law “tradition [of legislative privilege] ... well grounded in history” and extended the benefit of that tradition (though not the Speech or Debate Clause itself) to state legislators. 341 U.S. 367, 372–76, 71 S.Ct. 783, 95 L.Ed. 1019 (1951). See also United States v. Johnson, 383 U.S. 169, 169, 180, 86 S.Ct. 749, 15 L.Ed.2d 681 (1966). The privilege “covers all those properly acting in a legislative capacity, not just actual officeholders.” Wash. Suburban Sanitary Comm'n, 631 F.3d at 181 (citing Supreme Ct. of Va. v. Consumers Union of U.S., Inc., 446 U.S. 719, 731–34, 100 S.Ct. 1967, 64 L.Ed.2d 641 (1980) ).
The parties do not contest the existence of a legislative privilege. However, they sharply dispute whether Marston or the documents that were subpoenaed are protected by the privilege.
Marston relies on McCray v. Md. Dep't of Transp., Md. Transit Admin., 741 F.3d 480, 484 (4th Cir.2014) and Doe v. McMillan, 412 U.S. 306, 312, 93 S.Ct. 2018, 36 L.Ed.2d 912 (1973), to support the proposition that, as an independently contracted legislative consultant, he is covered by the same privilege as elected legislators. But in both cases, the extension of the legislative immunity or privilege was circumscribed by the specific nature of the consultant's duties. In Doe v. McMillan, an action was brought directly against, among others, legislators, legislative committee staff, a committee investigator, and a committee consultant. 412 U.S. at 309, 93 S.Ct. 2018. The Supreme Court of the United States held that the suit against the parties was barred by the Speech or Debate Clause, but only insofar as it sought relief “for introducing materials at Committee hearings that identified particular individuals, for referring the Report that included the material to the Speaker of the House, and for voting for publication of the report.” Id. at 312, 93 S.Ct. 2018. In reaching that decision, the Court held that those activities were “an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings.” Id. at 314, 93 S.Ct. 2018 (quoting Gravel v. United States, 408 U.S. 606, 625, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972) ). For that reason, the legislative immunity created by the Speech or Debate Clause foreclosed litigation over those activities. But the activities described in McMillan are quite unlike the consulting activities for which Marston claims the privilege. Nor does McMillan announce, or even suggest, the blanket extension of legislative privilege or immunity to legislative consultants that Marston urges.2
McCray is perhaps even less helpful to Marston's position. In McCray, the Fourth Circuit commented favorably on the concept of extending legislative privilege to government agency officials who gave counsel to executive officials tasked with carrying out legislative budget cuts. 741 F.3d at 484–85. But, the Court of Appeals also reversed the trial court's application of that privilege because the plaintiff's complaint alleged discriminatory actions by agency officials that predated any legislative action. Id. at 485–86. In light of that remand and the observation that, “McCray's lawsuit has not yet implicated legislative immunity,” id. at 487, the Fourth Circuit's comments about the application of legislative privilege to non-legislators must necessarily be considered dicta. Moreover, those claiming the privilege were government agency officials, not a consultant who was employed by a partisan political committee.
In their opposition, the Plaintiffs argue that ...
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