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League of Women Voters of Michigan v. Johnson

United States District Court, E.D. Michigan, Southern Division

May 23, 2018

RUTH JOHNSON, in her official capacity as Michigan Secretary of State, Defendant.


          Denise Page Hood, J

         This matter is before the Court on two motions to quash Plaintiffs' subpoenas instructing non-party legislative bodies (“Legislative Bodies”), [1] officials and staff (“Legislative Personnel”)[2] (collectively, “Non-party Movants”) to produce documents related to the introduction, consideration, or passage of Michigan's current apportionment plan. [Doc # 27; Doc # 46] The Non-party Legislative Personnel filed a Motion to Quash on March 8, 2018. [Doc # 27] The Non-party Legislative Bodies' Motion was filed on March 30, 2018. [Doc # 46] All Responses and Replies have been filed.

         For the reasons that follow, the present Motions to Quash are GRANTED IN PART and DENIED IN PART.

         I. BACKGROUND

         This suit was brought against Ruth Johnson, in her official capacity as Michigan Secretary of State, on December 22, 2017. [Id.] Plaintiffs claim that Michigan's current apportionment plan-constituting three redistricting maps adopted from the passage of Michigan Senate Bill 498 (2011) and Michigan House Bill 4780 (2011) (“2012 Michigan Redistricting Legislation”)-violates Plaintiffs' First Amendment free speech and association rights and Fourteenth Amendment equal protection rights. [Doc # 1, Compl. ¶ 1] Specifically, Plaintiffs allege that the apportionment plan intentionally places Michigan Democrats in voting districts that reduce or eliminate the power of Democrat votes and burdens their representational rights because of their political party affiliation. [Id.]


         Rule 45 of the Federal Rules of Civil Procedure governs the service of subpoenas. Rule 45(d)(3)(A) dictates that a court, upon a timely motion, must quash or modify a subpoena if the subpoena: (i) fails to allow a reasonable time for compliance, (ii) requires a non-party to travel more than 100 miles from where they reside, (iii) requires disclosure of privileged or other protected matter and no exception or waiver applies, or (iv) subjects a person to undue burden. “The party seeking to quash a subpoena bears a heavy burden of proof.” United States v. Wells, No. 06-10589, 2006 WL 3203905, at *2 (E.D. Mich. Nov. 3, 2006) (citing Irons v. Karceski, 74 F.3d 1262, 1264, 316 (D.C. Cir. 1995)).

         Rule 26(b) defines the scope of discovery for tools of discovery, including subpoenas issued pursuant to Rule 45. Sys. Prod. & Sols., Inc. v. Scramlin, No. 13-CV-14947, 2014 WL 3894385, at *9 (E.D. Mich. Aug. 8, 2014). “Rule 26(b) allows a party to obtain discovery concerning any non-privileged matter that is relevant to any party's claim or defense.” Id.; Fed.R.Civ.P. 26(b). “Evidence is relevant if[] it has any tendency to make a fact [of consequence] more or less probable than it would be without the evidence.” Fed.R.Evid. 401. If, however, a district court determines that “the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues, ” the court must limit the scope of discovery. Fed.R.Civ.P. 26(b)(2)(C)(iii).

         Rule 26(c) governs the issuance of protective orders. “The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed.R.Civ.P. 26(c). Such an order may forbid discovery or disclosure altogether or limit discovery to certain matters. Id. “The burden of establishing good cause for a protective order rests” with the party seeking the order. Nix v. Sword, 11 Fed.Appx. 498, 500 (6th Cir. 2001). “To show good cause, a movant for a protective order must articulate specific facts showing clearly defined and serious injury resulting from the discovery sought and cannot rely on mere conclusory statements.” Id. (citations and internal quotation marks omitted).

         III. ANALYSIS

         Plaintiffs mailed subpoenas duces tecum to the Legislative Personnel on February 21, 2018, and to the Legislative Bodies on March 15, 2018. [Doc # 27-2; Doc # 46-2] Plaintiffs seek, in part, all documents, notes, data and analysis related to the 2012 Michigan Redistricting process. Non-party Movants argue that the legislative privilege granted under the Speech or Debate Clause of the United States Constitution and the Michigan Constitution, other Michigan constitutional and statutory law, and the legislative privilege granted under federal common law, mandate quashing the subpoenas or granting a protective order. [Doc # 27, Pg. 17-18; Doc # 46, Pg. 16] They also contend that the subpoenas seek information that is irrelevant to the present case, are overly burdensome and without temporal limitation, and will have a chilling effect on legislative activity. [Doc # 27, Pg. 17; Doc # 46, Pg. 16] The Legislative Personnel assert that the subpoenas directed toward them seek information that is protected by the attorney-client privilege. [Doc # 27, Pg. 17] The Legislative Bodies assert that the subpoenas sent to them are vague. [Doc # 46, Pg. 16] Plaintiffs argue, among other things, that the present issues are governed by federal common law and the Court should apply a qualified legislative privilege balancing test. [Doc # 41, Pg. 6; Doc # 49, Pg. 3-5] Plaintiffs add that the factors under the balancing test favor denying the present Motions, the subpoenas are not overly broad or unduly burdensome, and not all of the information sought is subject to privilege. [Doc # 41, Pg. 6; Doc # 49, Pg. 1-6]

         A. Federal Common Law Governs the Claims of Legislative Privilege

         Members of Congress “shall not be questioned in any other Place” for “any Speech or Debate in either House.” U.S. Const. art. I, § 6, cl. 1. The purpose of the Speech or Debate Clause is to preserve the separation of powers. See Powell v. McCormack, 395 U.S. 486, 502 (1969) (“[T]he purpose of this clause was to prevent intimidation (of legislators) by the executive and accountability before a possibly hostile judiciary.”). “Congress enjoys absolute privilege from testimony and absolute immunity from liability under the Speech or Debate Clause.” Jackson Municipal Airport Authority v. Bryant, No. 3:16-cv-246-CWR-FKB, 2017 WL 6520967, at *4 (S.D.Miss. Dec. 19, 2017) (citing Eastland v. U.S. Servicemen's Fund, 421 U.S. 491, 502-04 (1975)). When construing the legislative privilege, a legislator and her aide are to be “treated as one.” Gravel v. United States, 408 U.S. 606, 616 (1972). The Michigan Constitution contains a clause affording state legislators similar protections. Mi. Const. art. IV, § 11.

         A recent case before the United States District Court for the Eastern District of Michigan, Michigan State A. Philip Randolph Inst. v. Johnson, No. 16-CV-11844, 2018 WL 1465767 (E.D. Mich. Jan. 4, 2018), addressed which law governs the existence of legislative privilege for state legislators in federal question cases. In that case, the district court determined that federal common law governs claims of legislative privilege for state legislators in federal question cases because neither the federal Speech or Debate Clause nor the Michigan Speech or Debate Clause protects state legislators from interference by the federal government. Id. at *3. This Court agrees. Federal common law governs the existence of legislative privilege in this case. See Fed. R. Evid. 501 (In federal question cases, “[t]he common law--as interpreted by United States courts in the light of reason and experience--governs a claim of privilege unless” the U.S. Constitution, a federal statute, or rules prescribed by the Supreme Court provide otherwise.). See also United States v. Gillock, 445 U.S. 360, 374 (1980) (“The Federal Speech or Debate Clause, of course, is a limitation on the Federal Executive, but by its terms is confined to federal legislators. The [state] Speech or Debate Clause is in terms a limit only on the prosecutorial powers of that State.”).[3]

         B. Federal Courts Apply a Qualified Legislative Privilege

         Non-party Movants argue that state legislators enjoy an absolute legislative privilege. Plaintiffs argue that state legislators have only a qualified legislative privilege under federal common law. This Court agrees with Plaintiffs.

         Federal common law extends the absolute legislative immunity granted by the Federal Speech or Debate Clause to state legislators. Bradley v. Mallory, 871 F.2d 1087 (6th Cir. 1989) (citing Tenney v. Brandhove, 341 U.S. 367 (1951)). Legislative privilege is related to legislative immunity, but is a distinct concept.[4]Favors v. Cuomo, 285 F.R.D. 187, 209 (E.D.N.Y. 2012). For state legislators involved in federal question cases, legislative privilege protects state legislators and their legislative staff from compelled disclosure of documentary or testimonial evidence relating to actions taken within the scope of legitimate legislative activity. Id. (citing Kay v. City of Rancho Palos Verdes, No. CV 02-03922 MMM RZ, 2003 WL 25294710, at *9-11 (C.D. Cal. Oct. 10, 2003) and Rodriguez v. Pataki, 280 F.Supp.2d 89, 93-94, 95 (S.D.N.Y. 2003)). The privilege, however, is not absolute.

         State legislators are afforded a qualified legislative privilege against being required to provide records or testimony concerning legislative activity. Michigan State A. Philip Randolph Inst., 2018 WL 1465767, at *4. The privilege can be overcome where important federal interests are at stake. Id. Federal courts have applied a qualified legislative privilege in cases involving constitutional challenges to state legislation. See, e.g., Nashville Student Org. Comm. v. Hargett, 123 F.Supp.3d 967, 969 (M.D. Tenn. 2015); Rodriguez, 280 F.Supp.2d at 100; Florida v. United States, 886 F.Supp.2d 1301, 1303-04 (N.D. Fla. 2012) (“To be sure, a state legislator's privilege is qualified, not absolute; a state legislator's privilege is not coterminous with the privilege of a member of Congress under the Constitution's Speech and Debate Clause.”); Bethune-Hill v. Va. State Bd. of Elections, No. 3:14CV852, 2015 WL 3404869, at *9 (E.D. Va. May 26, 2015); N. Carolina State Conference v. McCrory, No. 1:13CV658, 2015 WL 12683665 (M.D. N.C. Feb. 4, 2015) (“legislative privilege is not absolute, but rather requires a flexible approach that considers the need for the information while still protecting legislative sovereignty and minimizing any direct intrusion into the legislative process.”); Perez v. Perry, No. SA-11-CA-360, 2014 WL 106927, at *2 (W.D. Tex. Jan. 8, 2014) (“While the common-law legislative immunity for state legislators is absolute, the legislative privilege for state lawmakers is, at best, one which is qualified.”) (citations and internal quotation marks omitted); Favors, 285 F.R.D. 187, 211 (E.D.N.Y. 2012); Comm. for a Fair & Balanced Map v. Ill. State Bd. of Elections, No. 11 C 5065, 2011 WL 4837508, at *7 (N.D. Ill. Oct. 12, 2011). But see In re Grand Jury, 821 F.2d 946, 958 (3d Cir. 1987) (rejecting ...

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