Motion to Quash Subpoena or in the Alternative for a Protective Order; Brief in Support

    IN
FOR T

RALPH GfNGLES, et

PIaint

v.

RUFUS EDMISTEN, €t
Defen

NOW COI'IE the D

and move this Hono

and notices to tak

I4arvin and Marshal

order pursuant to

the depositions be

ignated hy the Cou

opened only bl, Cou

The Defendants

Motion:

1. The leqisl

are prj-vrileged and

by Fed. R. Civ. Pr

Rauch are members

or: llebate provisio

leqislators a priv

Iegislative acts i
2. The leqisl-

the intent of indi

scope of discovery

$tr

TIIE UNTTED STATES DISTRICT COURT -,/

E EASTERN DISTRICT OF NORTI{ CAROLII'IA TrJ Y v
RALETGHDIVI.SION {. LLED

crvrl No. 81-803-(m,8 1 + tggt

'i,o!'il;1Tg? crER,(
".:f,{$#?,?',7E D,sr+bj"Xrr:

I.,

ffs,
MOTION

ALTER}IATIVE

TO QUASH SUBPOENAE'
OR IN THII

FOR A PROTECTIVE ORDER
., et aI.,
nts.

fendants, by and throuqh their counsel of record,

able Court for an order guashing the suhooenae

the depositions of North Carolina Senators Helen

Rauch, or, in the alternative to enter a protective

ed. P.. Civ. Pro. 26 (c) (5) and (6), directing that
conducted rr-ith no one prcsent except persons de.s-

t and that the deposit'ions he sealed and subsequently

t Order

state the follorvinq grounds j.n support of their

tive acts and words of the prospective deponents

thus outside the scope of dj-scovery permitted

. 26(b) (1). SenaLors Helen Marvin and llarshall

f the llorth Carolina General Assembly. The Speech

of tke North Carolina General Statutes affords

lege to refuse to ansv?er anv question concerning

any proceeding outside of the legislature.
tive history speaks for. itself, and inquirv into
idual legislator,s is irrelevant and beyond the

as described in Fed. R. Civ. Pro. 26 (b) (1) .

i



WHEREFORE,

forth in the at
pray this Honor

described subpo

depositions be

This the

of Couisel:

Jerris Leonard &
900 ITth Street,
Suite 1020
Washington, D. C.
202/872-t09s

reason of the foregoing, and as more ful1y set
ched brlef in support of this motion, Defendants

ble Court for an order guashing th.e above_
nae, or, in the alternative, directing that
ealed.

day of December,19B1.

RUFUS L. ED.I{TSTEN
ATTORNEY GENERAL

-2-

ssociates, p.C.
.w.

20006

r r 7't, ..f. t t .l {*mti{:lfrtmffi

Raleigh, North Carolina 27602Telephone: (919) 733-3377

Norma Harrell
Tiare Smiley
Assistant Attorneys General

John Lassiter
Associate Attorney General

Attorne.ys for Defendants

,T

aJ.J.ace, Jr.
by Attorney Gefr6ral
r LeqaI Affairs

orney Generalts Office. C. Department of JusticePost Office Rox 629



IN
FOR TH

RALPH GINGLES, et.

Plaint

v.

RUFUS EDMISTEN, C

Defe

Plaintiffs ha

and .},larsha11 Rauc

December 17, 1981.

Carolina General

contend that the

to give testimony

Civ. Pro. 26 (h) (1)

TIIE DOCTRINE
LdGTEfATT\tr'-

Rule 26 (b) (1)

discoverable mate

doctrine, various

tive immunity, df

any questions con

of the legislatur
(o. Md. L976).

which guarantees

in the legislativ

rIE UNITED STATES DISTRICT COURT

RALEIGH DTVISION

F'Tt ED

crvrl No. rr:d$ffir;Hld;Tl#Hl^cJER,,

E UNITED STATES DISTRICT COUI1T ftr n
EASTERN DTSTRTCT OF NORTTT CAROLTT.TA "Ll" I 4 tg}t

t;,0'g, 
,u,

dl. ,

ffs,

., et a1.,

nts.

U,

BRIEF IN SLIPPOI?.7
MOTTON TO QUASH
ALTEPNATTVE FOR

OF DEFENDANTS I

SUBPOFNAE OR IN
A PROTECTTYE ORDER

)

)

)
)

)

) THE
)
)

)

hence also non-cli verahle under Fed. F.. Civ. Pro. 26 (b) (1).

LEGISLATIVE PRIVTLEGE PREVENTS INQI'IRY INTOI.

INTP.ODUCTION

subpoenaed Nortir Carolina Senators tlelen Marvin

for the purpose of taking their depositions on

The prospective deponents, members of. the I'Iorth

sembly, are not parties to thls action. Defendants

tters about which l{arvin and Rauch rvould be asked

re privi-1eged, hence non-discoverable undqr Fed. R.

, and that such matters are irrelevant to the action,

6F-TEE_I,IOT

pecifically excludes from the scope of otherttrise

ial matters which are privileged. The common-law

referred to as legislative privilege or legisla-

rds legislators a privilece to refuse to answer

rnj-ng legislative acts in anv proceeding outside

. See , 475 F.Supp. 1025

is concept is codified in 11.C. Gen. Stat. 5120-9,

reedom of speech and debate in the legislature and

pro""=".1

Irhe section

"The

as follovrs:

rs shaIl have freedom of speech and debate j-n
1 Assembly, and shall not he liab1e to impeachment
tion, in any court or place out of the General
for vrords therein spoken; and shall be protected
cases of crime, from all arrest and imprisonment,

t of property, during the time of their going to,

the Gener
or que
Assembly,
except in
or attac
coming f r ot attending the General Assembly. "



the

In
ttIt

North Carolin

Debate Clause of

as the statutory

states. In inte
this doctrine the

The reaso
well
member of
responsib
Constitut
a repres
public tr
indispens
the fu1le
should be
one, howe
liberty
341 u.S.

Legislative p

aspect, and both

integrity and ind

aspect affords 1

legislative acts

State v. Ilandel,

specifically, wh

should .have effi

S1:eech or Debate

deposition

Brewster v.

IS beyond do

into act

and into

ndence, enunciated hy the f'ramers and propounded

two centuries 1a r by the Suprerire Court. The substantive aspect

of the doctrine a fords legislators immunity from civil anrl crimi-nal

from legislative proceedings. The evidentiary

islators a privilege to refuse to testify about

liability arisj-ng

's statutory provisj-on para1le1s the Speech or

he Federal Constitution (art. I, 56) , as well

constitutional enactments of most other

reting the federal constitutional version of

United States Supreme Court has written:

for the privilege is cIear. It r'ras
rized by James Wilson an influential
the Committee of Detail which r'ras
e for the provision in the Federal
on. "In order to enable and encourage
tative of the public to di-scharse his
st with firmness antl success, it is
b1y necessary, that he should enjoy
t liberty of speechr and tl'.at he
protected from the resentment of every
er por"rerful, to r'rhom the exercise of that
y occasion offence. " Tenney v. Broadhove,
U (1951) at 372-73 (citaTion.s omffid);-

ivilege has a substantive as wel 1 as evidentiary

re founded in the rationale of legislative

n proceedings outside the legislative ha1ls. pnited

ra at 1027.

her such a state-afforded evidentiary privilege

cy in the federal courts. It is clear that the

l-ause of the federal constitution would preclude

a member of Congress in an analogous situation.

ted Statesr 408 U,S. 508 (1975), the Court stated,

t that the Speech or Debate clause protects against

that occur in the regular course of the legislative
e motivation for those acts,rr 408 U.S. at 525.

At issue he is the evi<lentiary facet of the privileqe and,

r-nqur-ry

process



Defendants acknow

legislators is tro

the need for ever

As Brewster furt

the historic ind

enough to guard a

process by corrup

motion attempts,

I{ith the boun

mindr w€ turn to

Whatever their ex

Unj-ted States SrP

times, yeild to o

United States v.

recognized only o

merit dispensing

of federal cri-mes

The Supreme

here: whether a

intact in federa

the Court ruled

withstood the

were not suscePt

of the legislati

aspect of the pr

there gave great

in United States

evidentiary face

for the proposit

state legislativ

-3-

edge that even the privilege granted federal

ed by countervailing considerations, particularly

man's evidence in federal criniinal prosecution.

r states, "the privilege is hroad enough to insure

endence of the Legislative Branch . but narrow

ainst tlre excesses of those who woul<1 corrupt the

ng its memhers." 408 U.S. at 525. Defendants

ever, to conceal no "corruPtion".

ries of the fe<leral legislative privilege in

he question of the scope of paral1eI state privileges.

ent and range of applicabitity in state court, the

eme Court has ruled that state privileges v'iII, Elt

erriding federal interests in federal courts.

i11ock, 100 S.Ct. 1185 (1980). The Court has

e federal interest of importance sufficient to

ith this state-granted privilege: the prosecution

urt has never squarety addressed the issue presented

tate legislator's evidentiary privilege remains

civil proceedings' In Tenney v. Broadhove, supra,

at a legislator's aqlElglll-ve. inmunity from suit

tment of 42 U.S.C. 51983, and thus state legislators

le to suit for r'rords and acts vrithin the purvievr

process. Although it deals with the substantive

iIege, Tenney is instructive, insofar as the Court

eference to the statets own doctrine. Recently,

. cillocE, supra., a criminal case involving the

of legislative immunity, the Cotrrt cited Tenney

on that all federal courts must endeavor to apply

privilege. In Gillock, however, the Court ruled



that the Tennes

inquiry into the

prosecuted for a

Throughout th
distinction has b

applications of

efficacy of legis
Courtrs conclusio

and their comhin

granted a legisla
it must yield to

See Gillocl: at 11

Unless federa

role of the state
respect as that o

act free of inter

Speech or Debate Clause r,vould not exclude

egislative acts of the defendant-legislator
ederal criminal offense.

Supreme Court's activj_ty in this field no

n drawn betvreen substantive and evidentiary
privilege for the purpose of determj-ning the

ative privileqe in fecleral court. Thus , the
s in 9i11gck, and lgnney. must be read together,
effect dictates that the evidentiarlz privilege
r by his state remains inviolahle except where

he enforcement of federal criminal statutes.
3.

criminal prosecution demands othenuise, "the
Iegislature is entitled to as much judicial
Congress . The need for a Conqress rahich may

erence by the courts is neither: more nor less than
the need for an impai-red state legislature." star Distributors, Ltd.
v. Marino, 613

Supreme Court

Bill of Rights

d 4 (1980) at 9. On this fundamental point the

recently said, "To create a system in which the
itors more closely the conduct of state officials
of federal officials is to stand the constitutional
. " Butz v. Ecjlomog i 428 (r,s. 478 (1979) at 504.

civil action, brought by private citizens of
ltrorth Carolina, islators l[arvin and Rauch are privileged to refuse

ing their legislative acts. principles of comity
w strongly suggest that federal courts honor this
ege in all civil actions.

II. THE T/I,ATERIAL OUGHT TO BE DTSCOVERED rS IRRELEVA}IT.

El

has

than it does that
design on its hea

In the presen

to testify concer

and the decided 1

evidentiary privi

The North Ca

plans challenged

lina House, Senate, and

n this litigation speak

Congres s j-ona I reapportionment

for themselves. Insofar as



legislatlve inten

sponsor of the bi

. The remarks of any single legj-slator, even the

, are not controlling in analyzLng legislative

history. Chrysle Corporation v. Frown, 44I U.S. 28l- (1979). That

such remarks have

contemporaneously

State v. Gila Riv

ny relevance at all precludes that they htere made

nd constitute part of the record. See United

r Pima-llaricopa Indian Community, 586 F.2d 209

s proposition is adhered to even more strongly

the intent of the

i.e., the conte

(ct. cl. 1978).

by the appellate

Court, for exampl

268 N.C. 57'l , 581

tt. Irlo
held that
Legislatu
to take i
15 N.C. 1
intention
be shown
ture, it
Act itsel
N.C. 736,

The testimony

of the General As

Thus, their depos

discovery.

III. PRESERVATION
OSITI

If the court

that the transcri

purpose of legisl

Executive or the

of l,larvin and Rauch is not

embly and can have no other

tions are outside the scope

relevant tcl the intent

discernahle relevance.

of permissible

-5-

egislature is in question, the legislative history,

aneous record of dehrate anC. enactment, reveals the

urts of North Carolina. The North Carolina Supreme

, stated the following in D & I'I, Inc. v. Charlotte,

151 S.E.2d 24r, 244 (1966);

e than a hundred years ago this Court
'no evidence as to the motives of the
e can be heard to gj-ve operation tor or
from, their acts. . . .' Drake v. Drake,

O, 117. The meaning of a sEEEuEe and-EEe
of the legislature which passe<l it cannot

the testimony of a memher of the legisla-
must be drawn from the construction of the
.' Goins v. Indian Training School, J-69
739,

OF LEGISLATIVE INDEPENDENCE REQUIRES THAT SHOTILD
lvlu

rders the depositions to proceed, it is imperative

ts he sealed and opened only upon Court Order. The

tive privilege is to "avoid intrusion by the

udiciary into the affairs of a co-equal hranch,

and . to pro ct legislative independence. " Gillock at 119I.



Legislators m

of economic, soci

legislative decis

individual legisI

destroy independe

political conside

proposed discove

General Assemblyr

expressed therein

are not quashed,

Respectfully

Of Counsel:

Jerris Leonard &

900 17th Street,
Suite 1020
Washington, D. C.
(202) 872-L095

-6-

st feel free to discuss and ponder the plethora

1, and political eonsiderations which enter into
on-making. Fear of subsequent disclosure of an

torrs intent or rationale would chil1 <lebate and

ce of thought and vote. In this case, sensitive

ations might be recklessly exposed by the Plaintiff's
To maintain free expression of j-deas vrithin the

ruell as to protect those j-deas already freely
protective order must issue, if the subpoenae

AS

a

s they should he.

ubmitted, this th" ( day of December, 1981.

Raleigh, Il,orth Carolina 27602
Telephone: (919) 733-3377

Norma Harrell
Tiare Smiley
Assistant A.ttorneys General

John Lassiter
Associate Attorney General

A.ttorneys for Defendants

sociates, P.C.
. r.^J .

20006

P.UFUS L.
ATTORNEY

aJ- lace , ilr .
Attorney Gene

Legal Affairs
rney General's Office

. C. Department of Justice
Post Office Box 629



f hereby cert
Motion to Quash S

Order and foregoi

attorneys by plac

Office, postage p

rhis *" / y'

CERTITICATE OF S}:RVTCE

fy that I have this day served the foregoing

bpoenae or in the Alternative for a Protective

Brief in support thereof upqn Plaintiffs'

ng a copy of same in the United States Post

epaid, addressed to:

J. Levonne Chambers
Leslie l{inner
Chambers, Ferguson, I{att, hlallas,

Adkins & Fuller, P.A.
951 South Independence Boulevard
Charlotte, Ilorth Carolj-a 28202

Jack Greenberg
James l'.. Irlabrit, fII
Napeoloen B. Williams, Jr,
10 Columbus Circle
Ner^r York, Ne\^r Yorl< 10019

day of December, 198I.