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Whitford v. Gill

United States District Court, W.D. Wisconsin

June 5, 2019

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,
v.
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

          WILLIAM C. GRIESBACH DISTRICT JUDGE

         Plaintiffs 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.

         For the 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 plaintiffs' claims.

         ANALYSIS

         The 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.

         A. Waiver

         Plaintiffs 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.

         B. Scope of the privilege In 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).

         Tenney 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).

         That is 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.

         Gillock 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.

         The 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 gerrymandering claims.

         We are 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)).

         The 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.

         We will 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 v. 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 circumstances.

         This 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 discovery requests at issue fall within the discovery limits of Rule 26.[1]

         C. Particular discovery requests

         1. Deposition testimony Plaintiffs seek to depose Vos on the following topics:

(1) testimony relating to how the Legislature reached its decision on the boundaries for each district in the 2011 redistricting maps (Act 43), including its motives, objective facts it relied on, and the involvement of others in the process, including the Redistricting Majority Project (REDMAP), the Republican National Committee, or other national Republican Party entities; and (2) testimony as to the predicted and actual associational effects of Act 43 on the Democratic Party, Democratic voters, the Republican Party, and Republican voters.

Dkt. 258, at 7.

         As both sides acknowledge, the proposed deposition relates primarily to the intent of the legislature in enacting the 2011 plan. Although the Supreme Court has yet to articulate a standard for proving partisan gerrymandering, other types of gerrymandering claims recognized by the Court include intent as an element. See Cooper v. Harris, 137 S.Ct. 1455, 1463 (2017) (“A State may not use race as the predominant factor in drawing district lines unless it has a compelling reason.”). Intent has also been an element in the tests for partisan gerrymandering applied by district courts-including this one-under both the First Amendment and the Equal Protection Clause. E.g., League of Women Voters of Michigan v. Benson, No. 17-cv-14148, 2019 WL 1856625, at *27-28 (E.D. Mich. Apr. 25, 2019); Ohio A. Philip Randolph Inst. v. Householder, No. 18-cv-357, 2019 WL 652980, at *4-6 (S.D. Ohio Feb. 15, 2019); Common Cause v. Rucho, 318 F.Supp.3d 777, 861, 927 (M.D. N.C. 2018); Benisek v. Lamone,348 F.Supp.3d 493, 522 (D. Md. 2018); Whitford v. Gill,218 F.Supp.3d 837, 884 (W.D. Wis. 2016). Vos does not deny that plaintiffs will have to prove the Assembly's intent to prevail on their claims. So the type of evidence that plaintiffs seek from Vos is not only relevant but also necessary. Plaintiffs have narrowly tailored their request to include only Vos rather than a larger group of legislators. Plaintiffs chose Vos because of his deep involvement in the redistricting process. Specifically, Vos was the only Representative who ...


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