La Union del Pueblo Entero v. Abbott

• Court: U.S. Court of Appeals — Fifth Circuit
• Writing for the Court: Jerry E. Smith, Circuit Judge
• Citation: La Union del Pueblo Entero v. Abbott, 93 F.4th 310 (5th Cir. 2024)
• Docket Number: 23-50201
• Decision Date: 16 February 2024
• Parties: LA UNION DEL PUEBLO ENTERO; Friendship-West Baptist Church; Southwest Voter Registration Education Project; Texas Impact; Mexican American Bar Association of Texas; Texas Hispanics Organized for Political Education; Jolt Action; William C. Velasquez Institute; James Lewin; Fiel Houston, Incorporated, Plaintiffs—Appellees, v. Gregory W. ABBOTT, in his Official Capacity as Governor of Texas, et al., v. Senator Paul Bettencourt; Representative Briscoe Cain, Appellants.

93 F.4th 310

LA UNION DEL PUEBLO ENTERO; Friendship-West Baptist Church;

Southwest Voter Registration Education Project; Texas Impact; Mexican

American Bar Association of Texas; Texas Hispanics Organized for Political Education;

Jolt Action; William C. Velasquez Institute; James Lewin; Fiel Houston, Incorporated, Plaintiffs—Appellees, v. Gregory W. ABBOTT, in his Official Capacity as Governor of Texas, et al., v. Senator Paul Bettencourt; Representative Briscoe Cain, Appellants.

No. 23-50201

United States Court of Appeals, Fifth Circuit

FILED February 16, 2024

Appeal from the United States District Court for the Western District of Texas, USDC No. 5:21-CV-844, Xavier Rodriguez, U.S. District Judge

Nina Perales, Mexican-American Legal Defense & Educational Fund, San Antonio, TX, Jason Scott Kanterman, Fried, Frank, Harris, Shriver & Jacobson, L.L.P., New York, NY, Elizabeth Ryan, Weil, Gotshal & Manges, L.L.P., Dallas, TX, for Plaintiff—Appellee La Union del Pueblo Entero.

Zachary Tripp, Weil, Gotshal & Manges, L.L.P., Washington, DC, Aaron J. Curtis (argued), Weil, Gotshal & Manges, L.L.P., New York, NY, Sean Morales-Doyle, Brennan Center for Justice, New York, NY, Elizabeth Ryan, Weil, Gotshal & Manges, L.L.P., Dallas, TX, for Plaintiffs—Appellees Friendship-West Baptist Church, Texas Impact, James Lewin.

Nina Perales, Mexican-American Legal Defense & Educational Fund, San Antonio, TX, Jason Scott Kanterman, Fried, Frank, Harris, Shriver & Jacobson, L.L.P., New York, NY, for Plaintiffs—Appellees Southwest Voter Registration Education Project, Mexican American Bar Association of Texas, Texas Hispanics Organized for Political Education, JOLT Action, William C. Velasquez Institute, Fiel Houston, Incorporated.

Lanora Christine Pettit, William Francis Cole (argued), Esq., Office of the Texas Attorney General, Solicitor General Division, Austin, TX, Michael Abrams, Office of the Attorney General, Austin, TX, Kathleen Theresa Hunker, Office of the Attorney General of Texas, Special Litigation Division, Austin, TX, for Appellants.

Before Smith, Graves, and Wilson, Circuit Judges.

Jerry E. Smith, Circuit Judge:

Appellees¹ (collectively "LUPE") seek to discover, from defendant-intervenor Harris County Republican Party ("HCRP"), documents and communications sent to or exchanged with the Texas Legislature and various members of the Texas executive branch regarding Texas Senate Bill 1 ("S.B. 1"). Defendants² (collectively "state defendants") and non-party appellants³ (collectively "legislators") maintain that some of those materials are protected from discovery by legislative privilege.

The district court concluded the legislative privilege did not apply. Because that was error and an abuse of discretion, we reverse.

I.

In 2021, the Texas Legislature enacted S.B. 1,⁴ relating to "voter registration, voting by mail, poll watchers, and other aspects of election integrity and security." La Union del Pueblo Entero v. Abbott, 68 F.4th 228, 231-32 (5th Cir. 2023) ("Hughes"⁵). LUPE sued, taking aim at S.B. 1, alleging that (1) S.B. 1's amendments chill voter registration and (2) S.B. 1 was enacted with an intent to discriminate against racial minorities.⁶ Initially, the only named defendants were the state defendants. HCRP was added as a defendant-intervenor after the district court granted its renewed motion to intervene in May 2022. Shortly after HCRP was joined, LUPE sought documents and communications that HCRP had sent to or exchanged with the Texas Legislature and various members of the Texas executive branch regarding S.B. 1.

In November 2022, LUPE moved to compel HCRP to produce those materials. Following a hearing, the district court ordered HCRP to "produce documents responsive to Plaintiffs' requests for production, subject to the objections sustained at the hearing" and the HCRP's "assertions of privilege." In response to LUPE's deposition requests, HCRP designated Alan Vera, the chair of the HCRP Ballot Security Committee, as its document custodian.

LUPE took Vera's deposition on February 27, 2023. At that deposition, Vera testified that he had communicated extensively on behalf of HCRP with legislators and legislative staff regarding S.B. 1 from June 2020 through September 2021. But Vera declined to testify when the scope of the question appeared potentially to encompass Vera's communications with the legislators or legislative staff in response to a legislative inquiry. Office of Attorney General ("OAG") attorneys representing the state defendants also objected to those questions on the ground of legislative privilege.

Vera's deposition was the first time the parties became aware that Vera held potentially privileged documents on his personal email and personal computer. LUPE, upon so learning, held Vera's deposition open and filed a motion to compel HCRP "to conduct a search for and produce all relevant documents in response to Plaintiffs' Requests for Production . . . , including documents in Mr. Vera's personal email address and personal computer," and "to provide deposition testimony in response to Plaintiffs' questions regarding [HCRP's] communications with legislators and legislative staff."

The district court, following a hearing on LUPE's motion, rejected Vera's and OAG attorneys' invocations of legislative privilege. It then ordered (1) Vera to submit to another deposition and (2) Vera and HCRP to produce documents responsive to LUPE's requests for production. The legislators appeal the denial of legislative privilege.

II.

There are three jurisdictional issues we must resolve before turning to the merits of the appeal: First, whether the legislators, as non-parties, have standing to appeal. Second, whether the collateral order doctrine applies. Last, whether the order on appeal is moot.⁷

A. Non-Party Standing

LUPE contends the legislators lack standing to bring this appeal because they are not parties to the case. The legislators agree that non-parties generally cannot appeal an order or judgment. See Castillo v. Cameron Cnty., 238 F.3d 339, 349 (5th Cir. 2001). They observe that that general rule permits of an exception: A non-party may appeal "if the decree affects his interests." Id.

Three factors guide our determining whether the legislators qualify for that exception: (1) "whether the nonparties actually participated in the proceedings below," (2) whether "the equities weigh in favor of hearing the appeal," and (3) whether "the nonparties have a personal stake in the outcome." Id. at 350 (cleaned up).

1. Participation

The legislators have participated adequately in the district court proceedings.

The legislators had previously been served with third-party subpoenas—seeking the same documents and communications at issue in this appeal—by plaintiffs in the consolidated district court proceedings. In responding to those subpoenas, the legislators invoked legislative privilege and involved themselves in the district court proceedings. As noted by the district court, the legislators sent "a letter asserting various objections including legislative privilege" and attended "numerous meet-and-confer sessions."⁸ The legislators also filed briefing and attended hearings where they explained that the legislative privilege applied and was not waived. Extensive is the legislators' efforts in defending their claims of legislative privilege.

LUPE posits we should disregard the legislators' efforts in opposing those third-party subpoenas, theorizing that the only relevant proceedings that should be examined for purposes of the first factor are the exact proceedings giving rise to the order on appeal. Observing that the non-parties in Castillo "brought the very motion that was denied in the order that [was] being appealed," 238 F.3d at 350, LUPE asserts that the legislators did not participate in the district court proceedings at all, in that they did not personally invoke the privilege at Vera's deposition or attend the subsequent hearing.

LUPE's theory misinterprets Castillo. True, the non-party in Castillo brought "the very motion that was denied in the order that [was] being appealed." Id. Indeed, that was one of the reasons Castillo concluded there was "no question . . . the [non-party] has been an active participant in the proceedings." Id. But that was not the only basis for the Castillo court's conclusion. Also considered was the non-party's participation in proceedings other than the order on appeal.⁹ Thus, Castillo cuts against LUPE's theory and suggests that non-parties need not participate in the same proceedings concerning the order on appeal.

Nor can LUPE's interpretation of Castillo be squared with subsequent Fifth Circuit caselaw. Take, for example, Maiz v. Virani, 311 F.3d 334 (5th Cir. 2002), which dealt with an appeal brought by two non-party companies challenging a turnover order divesting them of property allegedly worth tens of millions of dollars, see id. at 339. Maiz held those two companies had standing to appeal the turnover order even though "there [wa]s simply no indication that [non-party] appellants requested relief from the district court or intended to have any direct involvement in the Receivership proceedings." Id. at 339, 341. That was because those two non-parties "allege[d] an actual injury and thus have a personal stake in this appeal. [That] is sufficient . . . to grant them an exception to the general rule that a non-party should not be allowed to appeal the district court's judgment." Id. at 339 (citations omitted). LUPE's interpretation cannot be squared with Maiz.

The first factor is satisfied because the legislators have participated adequately in the proceedings in the district court.

2. Equitable Considerations

There are two reasons the equities weigh in favor of allowing the legislators to appeal:

First, it is well established that "a non-party may appeal orders for discovery if he has no other effective means of obtaining review." United States v. Chagra, 701 F.2d 354, 359 (5th...