United States District Court, W.D. Wisconsin
WILLIAM WHITFORD, GRAHAM ADSIT, ROGER ANCLAM, WARREN BRAUN, HANS BREITENMOSER, JUDITH BREY, BRENT BRIGSON, EMILY BUNTING, SANDRA CARLSON-KAYE, GUY COSTELLO, TIMOTHY B. DALEY, MARGARET LESLIE DEMUTH, DANIEL DIETERICH, MARY LYNNE DONOHUE, LEAH DUDLEY, JENNIFER ESTRADA, BARBARA FLOM, HELEN HARRIS, GAIL HOHENSTEIN, WAYNE JENSEN, WENDY SUE JOHNSON, MICHAEL LECKER, ELIZABETH LENTINI, NORAH MCCUE, JANET MITCHELL, DEBORAH PATEL, JANE PEDERSEN, NANCY PETULLA, ROBERT PFUNDHELLER, SARA RAMAKER, ROSALIE SCHNICK, ALLISON SEATON, JAMES SEATON, ANN E. STEVNING-ROE, LINEA SUNDSTROM, MICHAEL SWITZENBAUM, JEROME WALLACE, DONALD WINTER, EDWARD WOHL, and ANN WOLFE, Plaintiffs,
BEVERLY R. GILL, JULIE M. GLANCEY, ANN S. JACOBS, JODI JENSEN, DEAN KNUDSON, and MARK L. THOMSEN, Defendants, and THE WISCONSIN STATE ASSEMBLY, Intervenor-Defendant.
OPINION AND ORDER
KENNETH F. RIPPLE CIRCUIT JUDGE.
have filed a motion to compel discovery against Robin Vos,
the Wisconsin State Assembly Speaker. Dkt. 257. Plaintiffs
contend that Vos has critical information related to their
claim that the 2011 Assembly redistricting plan is an
unconstitutional partisan gerrymander, so they ask the court
to compel Vos to sit for a deposition and turn over 15
categories of documents. In response, Vos says that any
discovery against him is barred by legislative privilege or
is otherwise outside the scope of Federal Rule of Civil
Procedure 26. Dkt. 265. The Assembly adopted Vos's
position as its own, Dkt. 266; the remaining defendants took
no position on the motion, Dkt. 263.
reasons explained below, we conclude that plaintiffs are
entitled to depose Vos and to receive responses to some but
not all of their requests for production. We acknowledge that
a sitting legislator is not subject to civil process in any
but the most exceptional circumstances. But this is an
exceptional case that raises important federal questions
about the constitutionality of Wisconsin's plan for
electing members of the Assembly. Vos was a key figure in
enacting that plan and he was involved at nearly every stage
of the process. Probably no one has a better understanding of
the challenged plan than he does. Under these circumstances,
the qualified legislative privilege to which Vos is entitled
must yield to the important federal interests implicated by
parties argue the following issues in their briefs: (1)
whether Vos waived any legislative privilege he had; (2) if
not, whether the privilege is absolute or qualified under the
facts of this case; (3) if it is qualified, whether the
privilege, other federal common law, or Rule 26 bars the
discovery at issue. We will consider each issue in turn.
assert that Vos has waived any claim to legislative privilege
because the Wisconsin Assembly intervened in this case. But
the Assembly's intervention in the litigation did not
waive the legislative privilege held by its individual
members. That is because the privilege is a “personal
one” and may only be “waived or asserted by each
individual legislator.” Marylanders for Fair
Representation, Inc. v. Schaefer, 144 F.R.D. 292, 298
(D. Md. 1992); see also Favors v. Cuomo, 285 F.R.D.
187, 211 (E.D.N.Y. 2012) (“[A] legislator cannot assert
or waive the privilege on behalf of another
legislator.”). Vos did not intervene in this case and
thus did not waive the privilege.
Scope of the privilege
arguing that legislative privilege bars plaintiffs'
discovery requests, Vos relies on a line of cases that begins
with Tenney v. Brandhove, 341 U.S. 367 (1951). In
that case, the Supreme Court concluded that members of a
California state senate committee were immune under federal
common law principles from civil liability for allegedly
violating the plaintiff's First Amendment rights by
calling him before the committee. Id. at 376-77.
See also United States v. Gillock, 445 U.S. 360, 372
n.10 (1980) (noting that Tenney “was grounded
on its interpretation of federal common law”). The
Court's rationale was that granting immunity was
necessary to allow legislators to discharge their public
duties without concern of adverse consequences outside the
ballot box. Tenney, 341 U.S. at 373. Since
Tenney, federal courts have uniformly held that
state legislators are generally immune from civil lawsuits.
E.g., Reeder v. Madigan, 780 F.3d 799, 805
(7th Cir. 2015); Bagley v. Blagojevich, 646 F.3d
378, 396-97 (7th Cir. 2011).
was not about a privilege against testifying or complying
with discovery requests, which is less burdensome and
intrusive than being a defendant in a lawsuit. But lower
courts have consistently construed Tenney and its
progeny as more generally restricting the use of civil
process against state legislators, including depositions and
other discovery. E.g., In re Hubbard, 803
F.3d 1298, 1307-08 (11th Cir. 2015); Bagley, 646
F.3d at 396-97; EEOC v. Washington Suburban Sanitary
Comm'n, 631 F.3d 174, 181 (4th Cir. 2011).
not the end of the matter, however, because the Supreme Court
has also held that there are exceptions to state legislative
immunity. Specifically, immunity must give way “where
important federal interests are at stake.” United
States v. Gillock, 445 U.S. 360, 373 (1980). The
interest at stake in Gillock was a federal
prosecution for bribery. The Court distinguished
Tenney on the ground that Tenney “was
a civil action brought by a private plaintiff to vindicate
private rights.” Id. at 372.
is the only case cited by the parties in which the Supreme
Court concluded that a state legislator was not entitled to
immunity for legislative acts. But many courts, including two
in the Seventh Circuit, have concluded that gerrymandering
claims raise sufficiently important federal interests to
overcome legislative privilege, reasoning that such claims
involve public rights and that the ballot box may not provide
adequate protection of those rights. E.g.,
Benisek v. Lamone, 241 F.Supp.3d 566, 572-74 (D. Md.
2017); Lee v. Virginia State Bd. of Elections, No.
15-cv-357 (HEH-RCY), 2015 WL 9461505, at *5 (E.D. Va. Dec.
23, 2015); Bethune-Hill v. Virginia State Bd. of
Elections, 114 F.Supp.3d 323, 333 (E.D. Va. 2015);
Favors v. Cuomo, 285 F.R.D. 187, 213-14 (E.D.N.Y.
2012); Comm. for a Fair & Balanced Map v. Ill. State
Bd. of Elections, No. 11 C 5065, 2011 WL 4837508 (N.D.
Ill. 2011); Baldus v. Brennan, Nos. 11-cv-562,
11-cv-1011, 2011 WL 6122542 (E.D. Wis. 2011); United
States v. Irvin, 127 F.R.D. 169, 170, 173-74 (C.D. Cal.
1989). These cases are consistent with Village of
Arlington Heights v. Metropolitan Housing Development
Corp., 429 U.S. 252, 268 (1977), in which the Supreme
Court stated that “extraordinary circumstances”
could justify requiring a legislator to testify at trial.
only contrary authority that Vos cites is Lee v. City of
Los Angeles, 908 F.3d 1175, 1187 (9th Cir. 2018), in
which the court relied on legislative privilege to deny a
motion to compel depositions of city officials in the context
of a racial gerrymandering claim. But the court in
Lee did not hold that a gerrymandering claim can
never overcome legislative privilege, only that “the
factual record in [that] case [fell] short of justifying the
substantial intrusion into the legislative process.”
908 F.3d at 1188 (internal quotations omitted). In any event,
the persuasive force of Lee is limited because the
court did not acknowledge Gillock's statement
that an important federal interest can overcome legislative
immunity. And the court did not acknowledge any of the cases
from other courts discussing the unique nature of
persuaded by the reasoning of the many courts concluding that
there is a qualified rather than absolute legislative
privilege from complying with discovery requests in the
context of a claim regarding unconstitutional gerrymandering.
An allegation that a legislative act violated a single
individual's rights cannot be compared with a claim that
the entire make up of a state legislative body is the result
of an unconstitutional redistricting process. The alleged
constitutional violations in this case implicate important
structural concerns about the legitimacy of the Wisconsin
government in a way that impedes plaintiffs' ability to
obtain redress through the political process. Under these
circumstances, we conclude that an absolute privilege would
fail to give due respect to the important federal interest of
ensuring a fair and equal election process that complies with
the First and Fourteenth Amendments. See Trammel v.
United States, 445 U.S. 40, 50 (1980) (privileges should
apply “only to the very limited extent that . . . a
public good transcend[s] the normally predominant principle
of utilizing all rational means for ascertaining truth”
(internal quotations omitted)).
next step is to determine the appropriate test for evaluating
whether the qualified privilege should apply. The other
courts that have applied a qualified privilege to
gerrymandering claims have balanced five factors: (1) the
relevance of the evidence sought; (2) the availability of
other evidence; (3) the seriousness of the litigation; (4)
the role of the State, as opposed to individual legislators,
in the litigation; and (5) the extent to which the discovery
would impede legislative action. E.g.,
Benisek, 241 F.Supp.3d at 575.
take this approach, though not all of the factors require
extended discussion. As for the seriousness of the
litigation, we have already concluded that plaintiffs'
claim implicates an important federal interest. As for the
role of the state versus the individual legislator, that
factor relates to whether the lawsuit potentially subjects
the legislator to personal liability. Bethune-Hill,
114 F.Supp.3d at 334-35. In this case, as in any
gerrymandering case, the answer is no. As for the potential
to impede legislative action, any intrusion into the
legislative process has that potential; that is the reason
for the privilege in the first place. We have already
concluded that gerrymandering claims raise sufficiently
important federal interests to override that concern in some
leaves two key questions: (1) how important to
plaintiffs' claims is the requested discovery? and (2) do
plaintiffs have alternative means for obtaining the
information? We will now turn to these questions as well as
the more general question whether all of the ...