A Review of Patterns and Practices of Racial Discrimination in North Carolina Since the 1950's Working Paper

     

 

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IN THE
UNITED STATES DISTRICT COURT
FOR THE
EASTERN DISTRICT OF NORTH CAROLINA
RALEIGH DIVISION
NO. 81—803-CIV-5

RALPH GINGLES, et al.,

Plaintiffs,

 
 

TS' MOTION TO QUASH
SUBPOENAE OR IN THE ALTERNA-
TIVE FOR A PROTECTIVE ORDER

V.

RUFUS EDMISTEN, et al.,

vvvvvvvvv

Defendants.

I. Introduction

Plaintiffs, black citizens of North Carolina, bring this
action to enforce their right to vote and to have equal repre-
sentation. They assert claims under the Fourteenth and Fifteenth
Amendments to the United States Constitution and under §§2 and 5
of the Voting Rights Act of 1965, as amended, 42 U.S.C. §§l973
and 1973c (”The Voting Rights Act"), challenging the apportionment
of the North Carolina General Assembly and the United States
Congressional districts in North Carolina. Plaintiffs allege that
the apportionments were adopted with the purpose and effect of

denying black citizens the right to use their votes effectively

51

and that the General Assembly apportionments violate the ”one
person—one vote” provisions of the equal protection clause.
Discovery has commenced. On December 3, 1981, plaintiffs

noticed the depositions of and subpoenaed Senator Marshall Rauch,

the Chairman of the North Carolina Senate's Committee on Legis- g
lative Redistricting and Senator Helen Marvin, the Chairman of N\
the North Carolina Senate's Committee on Congressional Redistricting.¥\?
The subpoenae request that the Senators bring to the depositions: 75
Documents of any kind which you have in your possession -:S

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which relate to the adoption of SB 3l3[87] duringthe 1981

Session of the North Carolina General Assembly. This

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request includes but is not limited to correspondence,

memoranda or other writings proposing or objecting to

any plan for apportionment of North Carolina's Senate
-7 [Congressional]districtscn:anycriteria therefore.

, Defendants move to quash the subpoenae on the grounds that
neither Senator can give any relevant testimony and that all testi-
mony of both Senators is privileged. Plaintiffs oppose this motion.

Defendants'motionto quashisenmobjectiontXJtheentire deposi-
tions. Plaintiffs have not asked particular questions. If plain—
tiffs had taken the depositions, the inquiry would have ineluded the
following:

1. The nature of the Senator's role as Chairman of a

Redistricting Committee;

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2. The sequence of events which lead to the enactment of
the redistricting legislation;

3. Normal procedures for enacting this type of legislation;

4. The criteria adopted by the redistricting committees;

5. Factors normally considered important in redistricting;

6. The existence of any substantive or procedural departures
from normal;

7. The existence of documents, official records, or unoffi-
cial records which contain the substance of committee, subcommittee
or whole Senate debate;

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8. Their knowledge of the contemporary statements by mem-
bers of the legislature of the reasons for adopting or rejecting
proposed apportionment plans;

' 9. The existence of witnesses to statements as described in
paragraph 8 above; and

10. The existence of other witnesses who observed or were
involved in the process that led to the enactment of the challenged
apportionments. 3

Because the Senators were the Chairmen of the redistricting
committees which were responsible for reporting to the full Senate

a recommended apportionment for enactment, plaintiffs believe each

has knowledge relevant to these inquiries.

One of plaintiffs' allegations isthat theseapportionments
discriminate against them on the basis of race in violation of
the equal protection clause of the Fourteenth Amendment. In
order to prevail on this claim, plaintiffs must show that the
plans were conceived or maintained with a purpose to discriminate.
City of Mobile v. Bolden, 446 U.S. 55 (1980); Village of Arlington

Heights v. Metropolitan Housing Corp., 429 U.S. 252 (1977);

 

Washington v. Davis, 426 U.S. 229 (1976).

 

In addition, it is arguable that plaintiffs must show purpose
to dilute black vote in order to prevail in their claims under 52

of the Voting Rights Act. See Mobile v. Bolden, supra, Washington

 

v. Finley, F.2d , (4th Cir., #80-1277, November 17, 1981).

The Supreme Court in Arlington Heights, supra, noted that,

 

"Determining whether invidious discriminatory purpose was a moti-
vating factor demands a sensitive inquiry into such circumstantial
anddirectevidence of intent as may be available." 429 U.S. at 266.
Among the subjects of proper inquiry for proving intent listed by
the Supreme Court are:
l. The specific sequence of events leading up to the chal—
lenged decision;
2. Departures from normal procedural sequence;
3. Substantive departures from factors usually considered
important; and
4. Contemporary statements by members of the decisionmaking
body, minutes of its meetings, or reports.

Arlington Heights v. Metro Housing Corp;, 429 U.S. at 257-268. See

 

also McMillan v. Escambia Co., 638 F.2d 1239 (5th Cir. 1981);

 

U.S. v. City of Parma, 494 F.Supp. 1049, 1054 (N.D.Ohu 1980).

 

Senators Rauch and Marvin would be expected to give testimony
relevant to each of these inquiries. In addition, the Supreme Court
recognized, ”In some extraordinary instances the members might be
called to the stand at trial to testify concerning the purpose of

official action,.... Arlington Heights, supra.

In addition, defendants have raised as the Fourth Defense
in their Answer that, ”The deviations in the 1981 Apportionment
of the General Assembly were unavoidable and are justified by
rational state policies.” This defense relates to plaintiffs’
"one person-one vote" claim. If allowed to take the deposition
of Senator Rauch, Chairman of the Senate Committee on Legisla-
tive Redistricting, plaintiffs would inquire about the rational
state policies that caused the population deviations in the
Senate plan and would inquire about the existence of other plans
that met these policies but had lower population deviations.

These depositions and these lines of inquiry are permitted
under Rules 26 and 33 of the Federal Rules of Civil Procedure and

under the Federal Rules of Evidence.

II. THE TESTIMONY OF SENATORS RAUCH
AND MARVIN IS NOT PRIVILEGED.

in which a state governor asserted immunity from criminal prosecu-
tion,and the Court held that there was no immunity for governors
doing legislative acts. The language quoted by defendants is only
dicta, largely irrelevant to the issue before that Court.

In order to determine whether a privilege parallel to the Speech
and Debate Clause should be created for state legislators, it is
helpful to analyze the purposes of the Speech and Debate Clause.

Its history is set out in Kilbourn v. Thompson, 103 U.S. 168, 26

 

L.Ed. 377 (1881). The clause was patterned after an English parlia-
mentary provision which was designed to stop the crown frominmrisoning
Members of Parliament for seditiOus libel. 26 L.Ed at 390-391. As
translated into the American republican form of government, the
clause has two purposes:
1. To protect the members of the co-equal legislative
branch of the federal government from prosecution
by a possibly hostile executive before a possibly

hostile judiciary, Kifibourn v. Thompson, supra; and

 

Ix.)

To preserve the independence of the legislature by
freeing the members from the burden of defending
themselves in court and of ultimate liability.

Dombrowski v. Eastland, 387 U.S. 82 (1967).

 

Neither of these reason is applicable to the motion before
the Court.

Since a state legislature is not one of the three co—equal
branches of the federal government, the first reason does not
apply. The Supreme Court reached this conclusion in U.S. v. Gillock,
supra, in holding that a state legislator is not immune from
federal prosecution for crimes committed in his legislative capacity
and that he had no privilege against the admission into evidence of
his legislative acts. Both would have been precluded if a privilege
similar in scope to the Speech and Debate Clause applied. 'In
reaching the conclusion the Court said:

The first rationale, resting solely on the separation—of-

powers doctrine, gives no support to the grant of a privi-

lege to state legislators in federal criminal prosecutions.

It requires no citation of authorities for the proposition

that the Federal Government has limited powers with respect

to the states, unlike the unfettered authority which English

/,, / i

monarchs exercised over the Parliament. the process or SUP”

stance of legislative actions will prevent a legislator from
acting in the interests of the people. Plaintiffs herein do not
seek money damages from anyone, much less Senator Rauch or Senator

Marvin. Furthermore, in Star Distributors, supra, an action to

 

enjoin a legislative investigation, the Court was careful to point
out that the plaintiff had another remedy available; to refuse to
comply with the legislative subpoena and assert the claim as a
defense in contempt proceedings. In this case, plaintiffs must
assert their claim in a judicial proceeding or not at all. They
have no other remedy.

Finally, the notion of independence of state legislatures is
antithetical to the purpose of the Fourteenth Amentment and of
the Voting Rights Act, both of which have the purpose of limiting the
actions which states may take. Sge, e.g., State of South Carolina
v. Katzenbach, 383 U.S. 301 (1966).

After rejecting both the separation of powers and independence
of legislative privilege. the Supreme Court in Gillock also considered

the doctrine of comity. The Court stated:

 

We conclude, therefore, that although principles of

comity command careful consideration, our cases dis-
close that where important federal interests are at

stake, as in the enforcement of federal criminal

statutes, comity yields.

Here we believe that recognition of an evidentiary

privilege for state legislators for their legislative

acts would impair the legitimate interest of the

Federal Government in enforcing its criminal statuteS‘

with only speculative benefit to the state legislative

process. 445 U.S. at 373.

In Gillock the important federal interest was enforcement of
a criminal statute. However, enforcement of the United States
Constitution and of the Voting Rights Act is of equal importance.
This was recognized by the Court of Appeals for the Fourth Circuit
in Jordan v. Hutchinson, 323 F.2d 597, 600-601 (4th Cir. 1973),
in holding that plaintiffs, black lawyers, could maintain an action
against the members of an investigatory committee of the Virginia
legislature seeking to enjoin the legislators from engaging in
racially motivated harassment of plaintiffs and their clients.
The Court stated, "The concept of federalism, i.e. federal respect
for state institutions, will not be permitted to shield an inva-
sion of citizen's constitutional rights." Id at 601. Thus plain-
tiffs were allowed to maintain an action with legislators as defen—
dants. The intrusion here is, of course, much more minor.

In addition, Congress has provided that a prevailing plaintiff
in an action under the Voting Rights Act or under 42 U.S.C. 51983
is to be awarded his attorney's fees. 42 U.S.C. §§1973l(e) and
1988. The reason for the fee award provision is that Congress
recognized the importance of endouraging private citizens, acting
as private attorneys general, to enforce the Voting Rights Act and

the Constitution. Riddell v. National Democratic Party, 624 F.2d

 

539, 543 (5th Cir. 1980); 5 U.S. Code Congressional and Adminis-
trative News 5908, 5910 (1976). The right to vdte and to be fairly
represented are central to our democratic government.

Defendants' quote from Butz v. Economou, 428 U.S. 478, 504
(1978), to the effect that the immunity of a federal defendant
should not be greater than the immunity of a state defendant, is
inapposite. In EBEE the question was whether federal administra-
tors should have greater innunity from liability for invading
an individual's constitutional rights than do similar state admini-
strators. The question involved comparing the protection Of
42 U.S.C. §l983 and the Fourteenth Amendment to the protection of
the Fourth and Fifth Amendments to the United States Constitution.
The Court held that the two could not be rationally distinguished.
That is a far cry from the situation here in which the U.S.
Congressional immunity, created by an unambiguous constitutional
provision, is compared to the state legislator's privilege, a
creature of either state statute or unprecedented federal common
law.

Even if there is an evidentiary privilege for state legisla—
tors, in this case it must give way in the interest of truth and
justice. The courts have recognized that privileges of government
officials are in derogation of the truth and must extend only to
the extent necessary to protect the independence of the branch in
question. See, e.g., U.S. v. Nixon, 418 U.S. 683, 710 (1974);
U.S. v. Mandel, 415 F.Supp. at 1030.

However, in this case privilege would be more than in dero-
gation of the truth; it would prevent plaintiffs from being able
to prove an essential element of their claims. As discussed in
Part I, above, discriminatory legislative purpose is a necessary
element of at least one and possibly two of plaintiffs' claims.

To hold one the one hand that evidence of legislative purpose is
necessary and on the other that it is privileged and inadmissible
is to make a mockery of both the Constitution and the Voting Rights

Act.

This reasoning was recognized by the Supreme Court in
Herbert v. Lando, 441 U.S. 153 (1979). In Herbert the Court held
that a television news editor could not claim his First Amendment
privilege not to disclose his sources, motivations, and thought
processes in a libel suit brought by a public figure. The Court
recognized it would be grossly unfair to require the plaintiff to
prove actual malice or reckless disregard for the truth and pre-
clude him from inquiring to the defendants' knowledge and motiva-
tion. Id. at 170.

The Court noted, in addition, that it was particularly
unfair to allow defendants to testify to good faith and preclude
plaintiff from inquiring into direct evidence of known or reckless
falsehood.

Thus the Court concluded that an evidentiary privilege,
even one rooted in the Constitution, must yield, in proper circum-
stances, to a demonstrated specific need for evidence.

In this case, as in Herbert v. Lando, plaintiffs have demon-
strated a specific need for the evidence which Senators Rauch and
Marvin have which may establish'discriminatory purpose. This case
is, however, even stronger than Herbert v. Lando because, in
Herbert, defendants asserted a Constitutional privilege. In this
case the privilege, if one exists, comes only from common law or
state statute .'

The Supreme Court in Arlington Heights v. Metropolitan Housing

 

Authority, supra, recognized that in some circumstances a member's
testimony about motivation could be privileged and cited Citizens to

Protect Overton Park v. Volpe, 401 U.S. 402 (1971). 429 U.S. at 268,

 

n. 18. In Overton Park the Supreme Court considered whether the
Secretary of Transportation could be examined as to his reasons

for choosing to put a highway through a park. The Court held that
under the circumstances in that Jase he could be examined. The Court
reasoned that although it was generally to be avoided, when there

was no formal record detailing the reasons for the decision, it is

permissible to examine the mental process of decisionmakers. Id.at 420.

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g .

 

In this case, as in Overton Park, supra, there is no formal
record adequate to determine the purpose, or even the process, of
the legislators. A direct examination is, therefore, permissible.

III. THE TESTIMONY OF SENATORS RAUCH AND MARVIN IS
RELEVANT TO THE SUBJECT MATTER OF THE ACTION.

Rule 26(b) provides in pertinent part, "Parties may obtain
discovery regarding any matter, not privleged, which is relevant
to the subject matter in the pending action,... It is not ground
for objection that the information sought will be inadmissible at
the trial if the information sought appears reasonably calculated
to lead to the discovery of admissible evidence."

Thus, in order to be entitled to prevent the entire deposition,
defendants must show that the "information sought was wholly
irrelevant and could have no possible bearing on the issue, but in"
view of the broad test of relevancy at the discovery stage such a
motion will ordinarily be denied.” Wrightand Miller, 8 Federal
Practice and Procedure §2037.

The testimony of the two senators is relevant to the subject
matter. Each senator was Chairman of a Redistricting Committee.

As discussed in Part I above, these senators are believed to have
knowledge of the procedures used for developing the apportionments,
the criteria used by the committees, other plans which were consi-
dered but rejected, and the documents and statements which indicate
the reasons that the General Assembly adopted the proposals which

plaintiffs challenge.

 

Under the Supreme Court decisions in City of Mobile v. Bolden,
supra, and Village of Arlington Heights v. Metropolitan Housing
Corporation, supra, this information is not simply relevant, it iS
critical to plaintiffs' ability to prove their claims.

Defendants assert that the legislative history and official
records speak for themselves and that the individual senators'
testimony is, therefore, irrelevant. Plaintiffs know of no official
records which contain any committee proceedings, the contents of any

floor debate, the criteria used by the committees, a list of pro-

posed apportionments available to but rejected by the committees,

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, .
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s. .

or the contemporaneous statements of the members. If, however,
these records exist, perhaps Senators Rauch and Marvin can describe
them so that plaintiffs may discover them.

Finally, defendants assert that the testimony of legislators
is not relevant when analyzing legislation. Plaintiffs do not seek
to use the testimony to interpretenurambiguity in the legislation,

as in D & W, Inc. v. Charlotte, 268 N.C. 577 (1966), cited by

 

defendants. Rather, plaintiffs seek the testimony to establish

purpose. See Arlington Heights, supra. To this end, the testimony

 

is relevant.
IV. CONCLUSION

"Exceptions to the demand for every man's evidence are not
lightly created nor expansively construed, for they are in dero-
gation of the search for truthf' Herbert v. Lando, 441 U.S. at 170.

"These rules shall be construed to secure fairness in adminis-
tration,... to the end that the truth may be ascertained or pro-
ceedings justly determined." Rule 102, F.R.Ev.

The search for truth requires that defendants not be allowed
to ascert a privilege which will deprive plaintiffs of the proof
of one of the necessary elements of their claims. To require
plaintiffs to prove purpose and to refuse to allow them to inquire
about it is neither fair nor just.

Plaintiffs, therefore, request that the subpoenae of Senators
Rauch and Marvin not be quashed.

This ESC) day of December, 1981.

[/5sz Mme

 

J. LeVONNE/CHAMBERS

LESLIE J. WINNER

Chambers, Ferguson, Watt, Wallas,
Adkins & Fuller, P.A.

Suite 730 East Indepence Plaza

951 South Independence Boulevard

Charlotte, North Carolina 28202

704/375-8461

Attorneys for Plaintiffs

 

CERTIFICATE OF SERVICE

I certify that I have served the foregoing Plaintiffs' Response
To Defendants' Motion To Quash Subpoenae Or In The Alternative For
A Protective Order on all other parties by placing a copy thereof
enclosed in a postage prepaid properly addressed wrapper in a post
office or official depository under the exclusive care and custody

of the United States Postal service, addressed to:

Mr. James Wallace, Jr. Mr. Jerris Leonard
NC AttorneyGeneral'sOffice 900 17th St. NW

Post Office Box 629 » Suite 1020

Raleigh, NC 27602 Washington, DC 20006

This 5C) day of December, 1981.

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