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
WILLIAM C. GRIESBACH DISTRICT 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 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).
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
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 gerrymandering claims.
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
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.
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
Particular discovery requests
Deposition testimony Plaintiffs seek to depose Vos on the
(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.
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