Plaintiffs' Response to Defendants' Motion to Quash Subpoenae or in the Alternative for a Protective Order; Attorney Notes; Memorandum from Williams to Greenberg, Nabrit, Ralston, Johnston, Sherwood, Lann Lee, Peterson, Wright, Lief, Winter, and Liebman; Brief in Support of Defendants' Motion to Quash Subpoenae or in the Alternative for a Protective Order

    RALPH GINGLES,

v.

RUFUS EDMISTEN,

IN IHE
UNIIED STATES DISTRICT COURT

FOR THE
EASTERN DISTRICT OF NORTH CAROLINA

RALEIGH DIVISION
NO.81-803-CrV-5

eE al.,
Plaintiffs,

ec al.,
Defendants.

PIAINTIFFS' RESPONSE TO
DEFENDANTS' MOTION TO QUASH
S1IBPOENAE OR IN THE ALTER}IA-
TIVE FOR A PROIECTI\E ORDER

I. Introduction

Plaintlffs, black clrizens of Norrh Carolina, bring rhis
acllon to enforce their righE to vole and Eo have equal repre-
senlation. They asserc craios under the Fourteenth and Fifteenth
AmendmenEs co Ehe United Stales Constitution and under SS2 and 5

of the Votlng Rights Acc of 1955, as aoended, 42 U.S.C. SSl973

and 1973c ("The Voting Rights AeE"), challenging the apportionnenE

of the NorEh Carollna General Asseably and the Uni.ted SEaEes

congresslonal discricrs in North carolina. Plaintiffs allege thac
che apportionments were adopted with rhe purpose and effect of
denying black ciEizens the right to use cheir votes effectively
and thac the General Assembly apportionments violaEe t,he "one

person-one voce" provisions of che equal proteccion clause.

Discovery has comenced. On Deceober 3, 1981, plaintiffs
noEiced che depositions of and subpoenaed Senator llarshalr Rauch,

che Chairoan of rhe Norch CarolLna Senate's ComiEt.ee on Legis-
lacive Redlscriccing and SenaEor Helen Marvin, the Chairuan of
che Norch carolina senate's comiltee on congressionar RedistricEing.
The subpoenae requesE EhaE Ehe senaEors bring Eo Ehe deposi.lions:

Documents of any kind which you have in your possession

which relaE.e co Ehe adopcion of SB 313 t87l during che 1981

Session of che Norch Carolina General Asseubly. This



request includes buE is noE liniEed Eo correspondence,

memoranda or other writings proposing or objecting Eo

any plan for apportionment of North Carolina's Senace

(Congressionall districts or any criEeria Eherefore.
Defendarits rDove t,o quash the subpoenae on the grounds that

neither senator can give any relevant EestiEony and that all Eesti-
rnony of both Senators is privileged. plaintiffs oppose this uotion.

Defendants' ooEion to quash is an objeccion to the entire deposi-
tions. Plaintiffs have not asked partlcular guestions. rf prain-
tiffs had taken che depositions, the inquiry would have incruded rhe
fo llowing:

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

RedlstricElng ComitCee ;

2. The sequence of events which lead to Ehe enactmenE of
the redistricting legislatlon;

3. Norual procedures for enacting this tlpe of regislation;
4. The criteria adopted by the redrstricting couuittees ;

6- The existence of any subscanlive or procedural departures
froo noroali

7. rhe exisEence of docuuents, official records, or unoffi-
cial records whlch contain Ehe substance of conroittee, subcormiltee
or whole SenaEe debate i

8. Their knowledge of the contemporary sEater'ents by rDe!'-

bers of the legislaEure of che reasons for adopcing or rejecting
proposed apporcionnenE plans ;

9. The exi.srence of wiEnesses !o sEateEents as descri_bed in
paragraph 8 above; and

10. rhe exiscence of ocher wit,nesses who observed or were

involved in che process chac red co che enacE'ent of che challenged
apportionoenEs.

Because she Senators were che chairnen of che redisgricting
comlEEees which rrere responsible for reporcing co the full senaEe

a recoEEnended apportionBenE for enacEuent, plaintiffs berieve each

has knowledge relevanE Eo Ehese inquiries.

-2-



One of plaintiffs' allegations is t.haE these apporcionments

discrisrinaEe againsE Ehera on the basis of race in violation of
che equal. proceciion cLause of the FourceenEh Aoendment. In
order to prevail on this claiu, plaintiffs ousE show that the
plans lrere conceived or maintained wit.h a purpose to discriroinaEe.
cirv of Mobile v. Bolden, 446 u.s. 55 (1ggo)i village of Arllnsron
tteiehts v. Merropol@ , 4Zg U.s. Z5Z (L977);

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

In addltion, ic is arguable that plaintiffs u.st show purpose

to diluce black vote in order to prevail in their claims under s2

of the Voting Righrs Acc. See Mobile v. Bolden, Sgpra, Washinsron

v. Fin1ey, _ F.zd _, (4th Cir ., #AO-L277, Noveober 17, 19g1) .

The Supreme Court in Arlington Heights, .sgE,, noted thaE,

"Det,eruining wheEher lnvidious discrioinatory purpose lras a Eoti-
vaEing factor demands a sensitive iirquiry into such circuostanEial
anddirect evidence of intenE as tray be available." 4zg u.s. at 25G.

Among che subjects of proper inquiry for proving intenr lisced by

?he specific sequence of evenEs leading up Eo the chal-
Ienged decision;

Departures froo normal procedural sequencei

Substantive deparEures frou facEors usually considered

inportant; and

Contemporary sEaEeuents by members of che decisionuraking

body, minuces of iEs neetings, or reports.
Arlington Heights v. !.terro Housing Corp., 4Zg U.S. ac 257-25g. See

also McMillan v. E.scaubia Co. , 638 F. Zd L23g (5rh Cir. I9g1);
U.S. v. Cicv of Parrna, 494 F.Supp. 1049, 1054 (N.D. Oh.19gO).

senacors Rauch and Marvin would be expecced to give cestiuony
relevanE Eo each of chese inquiries. rn addition, the Suprene court
recognized, "rn some extraordinary inscances Ehe roeubers oighc be

carled Eo Ehe scand aE. Erial Eo EesEify concerning the purpose of
official acEion, .. . . " Arlington Heights, -W..

1.

2.

3.

4.

-3-



In additj.on, defendancs have raised as Ehe Fourth Defense

in their Answer EhaE, "The deviaEions in the 1981 Apporcionnent

of che General Asseubly lrere unavoidable and are justified by

raEionar srate policies." This defense relates to prainrifr-s,
"one person-one voE,e" claim. If allowed to cake the deposition
of senaEor Rauch, chairuan of the SenaEe cormirtee on Legisla-
tive Redistrlcting, plainEiffs would inquire abou! the rational
state policies chat caused the population deviacions in che

senate plan and would inquire about che exiscenee of oEher plans

EhaE mec these policies but had lower population deviacioni.
These depositions and these lines of inquiry ..are permitted

under Rules 25 and 33 of che Federal Rures of civir procedure and

under the Federal Rules of Evidence.

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

Rule 501 of the Federal Rules of Evidence provides, ln per-

Einenc parE:

Except as oEhenrise requi.red by che Conscitucion of the

UniEed SEales or provided by Acc of Congress or in rules

prescribed by the Supreme Court pursuant E.o statuEory

auchori.Ey, Ehe privilege of a lritness, person, governoent,

Stace, or political subdivision E.hereof shall be governed

by che principles of the comon law as Ehey nay be incer-

prered by the courEs of the United SEaEes in the light of

reason and experience.

This rule applies Eo discovery as weII as to trial. F.R.Ev.,

Rule 1101(c). lhus, in order Eo dete:=oine if the cesti-mony of Senators

Rauch and Marvin is privileged within Ehe meaning of RuIe 26(b) of

che Federal Rules of Civil Procedure, Ehe CourE nusE deteruine if iE

is covered by Rule 501 of che Rules of Evidence. See U.S. v. Gillock,

445 U.S. 350, 365 (1980).

DeEendants asserE a legislacive privilege parallel Eo che Speech

and Debace Clause of Arcicl.e I, S6 of che Uniged SE.aEes Conscicucion.

However, rhe Speech and Debace Clause applies only co oeubers of che

-4-



united St,ates congress, noE to sEaEe regislaEors. Nor does the
staEe sEature establishing the privilege in sEate courts establish
the privirege under the Federal Rules. u.S. v. Gillock, 44g u.s.
ac 358, 374. Defendant.s do nor ciEe any provision of rhe united.
StaEes constitution, Ac! of congress, or Supreoe court rure which

estabrishes a privilege which exenpts state regislators froa !es-
tlfying. Thus the court m.st deceroine if Ehe testimony is pri-
vileged "by Ehe principles of cormon law as chey may be interpreted
by the courts of the united Staces in right of reason and experience.,,
F.R.Ev., RuIe 501.

Defendancs cite no case in which legislative privilege is
extended to E.he EesEi-mony of staEe iegislators, and plainciffs know

of none. U.S. v. Ilandel, 415 F.Supp. 1025 (D.Md. Lg76), which

defendants cite in support of the evidentary privirege, is a case

in which a staEe governor asserted .imunity froo criminar prosecu-

tiorq and the courc held that Ehere was no imunity for governors

doing legislacive acts. The ranguage quoted by defendancs is only

rn order ro deteroine wheEher a privilege parallel to the speech

and Debate clause shouLd be created for state legislators, it is
helpfur co analyze the purposes of che speech and Debace clause.
Its history is sec out in Kilbourn v. lhompson, 103 U.S. 159, 25

L.Ed. 377 (1881). The crause \ras patr.erned afrer an English parlia-
menEary provision which was designed to stop Ehe clorrn froo inprj.soning
Ilembers of ParliaoenE for sedir.i-ous riber. 26 L.Ed ac 390-391. As

cransratdd into the American republican form of governmenE, Ehe

clause has cwo purposes:

I. To prorecc Ehe members of the co-equal legislacive
branch of the federal govelnaenc froo prosecution

by a possibly hostile execuEive before a possibly

hoscile judiciary, KiLbourn v. Ttroupson, supra; and

2. to preserve che independence of che legislature by

freeing rhe nembers from che burden of defending

Ehemselves in cour! and of ulrimace 1iabitity.
Dombrowski v. Easrland, 387 U.S. 82 (L967).

-5-



Neither of chese reason is applicable to che moEion before

the Court.

Since a st.aEe legislature is not one of Ehe three co-equaJ.

branches of the federal governnenE, the firsE reason does noE

apply. The Suprene Court reached this conclusion in U.S. v. Gi1lock,

-ggpra., in holding EhaE, a state legislacor is not iuoune from

federal prosecution for crimes comnitted in his legislati.ve capacicy

and thac he had no privllege againsc the admission inro evidence of
his legislaEive acts. Both would have been precluded if a privilege

similar in scope Eo the Speech and Debate CLause appli.ed. In

reaching che conclusion che Court said:

The first rat,ionale, resting sole1y on Ehe separation-of-

powers docurine, gives no support to Ehe granE of a privi-

lege to sEate legislaEors in federal crioinal prosecutions.

IE requires no citation of auchorities for the proposition

EhaE Ehe Federal Governnent has linited powers wich respecE

Eo Ehe sEaEes, unlike the unfetcered auEhority which English

however, in chose areas where Ehe Constitution grants t.he

Federal GovernmenE Ehe power Eo acE., the Suprenacy Clause

dicEates that federaL enacEoenEs will prevail over conpeEing

sEaEe exercises of porrer. Thus, under our federal scrucEure,

we do noE have the struggles for power beElreen che federal

and state sysEems such as inspired the need for the Speech

or Debace Clause as a restraint. on Ehe Federal Executive to

proEecE federal legislators. 445 U.S. at 370.

Since a staEe legislature is not a co-equal branch with the

federal legislacure which passed che Voting Righcs Acc or wich rhe

Federal Courrs, the firsE reason for che Speech and Debace Clause

has no relacion Eo Ehis acEion.

The second purpose for che Speech and Debate Clause is to assure

E.haE che legislacors can be free co speek ouc wichouE fear of liabi-

Iicy. For rhis proposition defendanEs ciEe Tennev v. Broadhove, 34I

-5-



u. s.

F.2d

367 (1951) and SEar Disrributors, LEd. v. Marino, 613

4 (2d Cir. 1980).

However, in boch of those actions Ehe state legislator was

the defendant. The cases discussed noE an evidentiary privirege but
rather a co@on law imounity from riability. The purpose of pro-
tecting legislative independence is fully protected if regislators
are relieved of the burden of defending thenselves. powell v.
McCormack, 395 U.S. 486, 50I-506 (1969).

Plaintiffs do not seek Eo hold either senator Rauch or Senaror

Marvin liabre. NeiEher is a defendant. Neicher is pur in a posi-
tion of having rhe burden of defending rhe acrion.. Alr plaintiffs
seek is to discover whaE evidence each has thae eicher supports

Ehe claims or defenses.

In addition, in @ry, supra, che legislator was sued for
money daroages. rE is reasonable Ehat possible financial liability
night inhibit a legislator froo acting his conscience. It is
noE reasonable that merely having co disclose the process or sub-

accing in the inEerests of che people. plaintiffs herein do noE

seek money danages from anyone, uuch less senacor Rauch or senator
Marvin. Furtlrermore, in Star Discributors, .W., an acEion t,o

enjoin a legislacive investigaEion, rhe courc was careful to point
out chaE che plainci.ff had anocher remedy avairable; to refuse co

conply wiEh t.he legislative subpoena and assert Ehe claim as a

defense in conEempt proceedings. rn Ehis case, praintiffs mrsE

asserc Cheir claim in a judicial proceeding o! noE ar all. They

have no oEher remedy.

Finally, rhe nccion of independence of srate legislacures is
anEiEheEical to che purpose of the Eourteent.h A.EenEDenE and of
che vocing Righcs Acr, boch of which have rhe purpose of tiuicing rhe

acEions which sEaEes may cake. see, e.g., scace of Souch carorina
v. Kaczenbach,383 U.S.30t (I966).

Afrer rejeccing both che separaEion of powers and independence

of legislacive privilege, che supreme court in Girlock also considered

che doctrine of couricy. fhe Courc sEated:

-7-



I.Ie conclude, Eherefore, chat although principles of
coait.y comuand careful consideration, our cases dis-
close thaE where inporEant federal inEerests are at
st,ake, as in Ehe enforcemenE of federal criainal
staEuEes, comity yields.

:

Here we believe chat recognition of an evidenEi.ary
privilege for srate legislacors for Eheir legislarive
accs would iopair che legitimace interest of the
Federal Government. in enforcing its crininal staEuEes.

wiCh only speculative benefic to che state legislarive
process. 445 U.S. at 373

rn Gillock rhe inportant federal interest was enforceoenE of
a crioi.nal scaEule. However, enforceuenc of the united SEaEes

constituEion and of the voEing Rights Act is of equal ioporEance.
This was recognized by the courE of Appeals for the FourEh circuit
in Jordan v. Hutchinson, 323 F.2d 591, 600-6OL (4Eh Cir. Lg73),

in holding chac prai.ntiffs, black lawyers, courd maintain an acti.on
againsc che menbers of an invescigatory conmictee of the Virginia
regislature seeking co enjoin the regisraEors from engaging in
raciarly BocivaEed harassment of plaintiffs and their clients.
The court sEaced, "The concept of federalism, i.e. federal respect
for sEace inscitucions, wilr noc be pertriEted to.shield an inva-
sion of citizen's consEicucional rights." rd at 601. Thus plain-
tiffs were allowed to maintain an action with legislacors as defen-
dancs. The intrusion here is, of course, utrch oore minor.

rn addiEion, congress has provided chaE a prevairing plaintiff
in an accion under che voring Righrs Acr or under 42 u.s.c. s19g3

is co be awarded his aEcorney's fees. 42 u.s.c. ss1973!(e) and

1988. The reason for che fee award provision is thac congress

recognized che iaporcance of encouraging private cicizens, acring
as privaEe aEtorneys generar, ro enforce che voting Righcs Act and

che consciE.ucion. Ridderl v. Nationar DerLocracic parEr, 624 F.?d,

-8-



539' 543 (5Eh cir. 1980); 5 u.s. code congressional and Aduinis-
Erative News 5908, 5910 (1976). The right Eo vore and to be fairly
represenEed are central Eo our deoocratic government.

DefendanEsr quoEe froo Butz v. Economou, 4Zg lJ.S. 479, 504

(1978), Eo Ehe effect EhaE Ehe irurunity of a federal defendant

should not be greaEer than the imunity of a sEate defendanE, is
inapposite. rn Butz che question vras whether federal adloinistra-
Eors should have greater innunity froo liability for invading
an individual's consEitutional rights Ehan do siuilar state admini-
sErators. The question involved comparing Ehe protection of
42 u.s.c. 91983 and Ehe Fourteenth AmendmenE Eo the proEection of
che Fourth and Fifth Amendments to Ehe united sEates constiEution.
The court herd chac Ehe cwo could not be rarionally disringuished.
Thac is a far cry from the situation here in which the U.S.

congressional imu,rniEy, cleaced by an unambiguous constitutional
provision, is conpared to the state legislator,s privileg?, 4

creature of either staEe sEatute or unplecedented federal conmon

Iaw.

Even if Ehere is an evidentiary privilege for staEe legisla-
Eors, in this case iE must give way in che incerest of t.ruth and

juscice. The courts have recognized rhac privileges of governuent

officials are in derogation of the truEh and rotrst extend onry co

Ehe exEenE necessary t.o protec! the independence of the branch in
question. See, e.g., U.S. v. Nixon, 4I8 U.S. Og3, 710 (1974);

U.S. v. Mandel,415 F.Supp. ar 1030.

Hovever, in chis case privilege would be uore than in dero-
gaEion of the Eruth; ir would prevent plainciffs fron being able

co prove an essenEial elemenE of cheir claios. As discussed in
Parc I, above, discriuinatory legislacive purpose is a necessary

eremenE of aE leasE one and possibry cwo of prainciffs'clai-ms.
To hold one Ehe one hand char evidence of legislarive purpose is
necessary and on che ocher EhaE iE is privireged and inadoissibre
is to oake a mockery of boch che constiEution and rhe vocing Righcs

AcE.

-9-



This reasoning was recognized by the Supreme Court in
Herbert v. Lando, 441 u.s. 153 (1979). rn Herberr che court herd
chat a teLevision news ediEor courd noE claim his First Amendoent

privilege noE to disclose his sources, rnoEivations, and thought
processes in a libel suiE brought by a pubric figure. The courE

recognized it would be grossry unfair co require the plainciff to
prove actual malice or reckless disregard for Ehe Eruth and pre-
clude hio fron inquiring co the defendants' knowledge and moEiva-

tion. Id. ar 170.

The Court noEed, in addition, Ehat iE s;as palticularly
unfair co allow defendanEs co cestify to good faich and precrude

plainciff from inquiring inro direcE evidence of knowo or reckless
falsehood.

Thus the Court concluded that an evidenliary privilege,
rooEed in the ConstiEution, rm.rst yield, in proper circum-

-to a demonstrated specific need for evidence.

this case, as in Herbert v. Lando, plaintiffs have demon-

even one

sEances,

In

Marvin have which may establish'discri-oinatory purpose. This case

is, however, even sEronger Ehan Herbert v. Lando because, in
Hg!g' defendants asserled a constitucional privirege. rn this
case Ehe privilege, if one exisEs, coEes only from coElmon law or
sEaEe sEaEute.

The Supreme CourE in ArlingCon Heighrs v. MeEropoIiEan Housing

Authority, supra, recognized chat in some circumsEances a member's

Eescimony abouc troEivaEion courd be privileged and ciced citizens to
ProcecE Overcon Park v. Vo1pe, 401 U.S. 402 (1971). 429 U.S. ar 26g,

n. 18. rn overcon Park che Supreoe courE considered whether Ehe

Secrecary of TransporEaEion courd be examined as to his reasons

for choosing Eo puE a highway chrough a park. The courc held thac

under Ehe circumsEances in chac case he could be exauined. The courc
reasoned chac alchough ir was generarly co be avoided, when Ehere

Lras no fornal record detailing E.he reasons for che decision, ic is
permissible !o examine che menEar process of decisionmakers. rd. at 420.

-l0-



rn this case' as in Overcon park, supra, there is no fonnal
record adequate Eo determine the purpose, or even the process, of
the legislaEors. A direct exaaination is, therefore, peroissible.

III. THE TESTIMONY OF SENATORS RAUCH AND MARVIN IS
RELEVAT'{T TO lHE SUBJECT MATTER OF THE ACTTON,

Rule 25(b) provides in perti_nent part, ',parties nay obtain
discovery regarding any Ba.ter, not privleged, which is relevant
to the subject rnaEter in the pending action, ... It is not ground
for objecEion that Ehe informaEion sought will be inaduissible at
the triar if Ehe information soughE appears reasonably calculaced
to lead to the discovery of admissible evidence."

Thus, in order to be entitled r.o prevent the ancire deposiEion,
defendanEs utrst show thac the "infonoation soughE was wholly
irrelevant and could have no possibre bearing on the issue, but in
view of the broad Eest of relevancy. at the discovery sEage such a

motion will ordinarily be denied. " I.lrighE and Miller, g Federal
Practice and Procedure 92037.

The tesEiaony of the two senators is relevant to the subjecc

sErj.ctj.ng
As discussed in Part r above, these senators are believed to have

knowledge of the procedures used for deveroping the apportionment.s,
Ehe criteria used by the cornoiEcees, other plans which were consi-
dered buc rejected, and che docr:oengs and sEateoenEs which indicace
che reasons chac che Generar Assenbly adopced, che proposals which
plaintiffs challenge.

under che supreue courE decisions in ciEv of Mob.lle v. Borden,
supra, .td

9orporag_ign, ggpra., chis infortoacion is noE siaply relevanE, it is
cricical co plainciffs' abiliEy Eo prove rheir claims.

Defendancs asserE chat che legislacive hiscory and officiar
records speak for theoserves and chac che individual senaEors'
cescimony is, Eherefore, irrerevant. prainciffs know of no official
records which contain any comitcee proceedings, che conEenEs of any

floor debaEe, Ehe criEeria used by Ehe comiEtees, a lisc of pro-
posed apporEionmenEs avairable Eo buc rejecred by the comiEcees,

-11-



or the conteEporaneous staEemenEs of the members. rf, however,

these records exist, perhaps SenaEors Rauch and Marvin can describe
theo so that plainciffs may discover Eheo.

Finarry, defendants asserE Ehat the EesEioony of legisrators
is not relevanE when analyzing legislarion. plaintiffs do not seek

to use Ehe cestimony to incerpret ahy anbiguity in the legisraEion,
as in D & W, Inc. v. Charlotce, 268 N.C. 577 (1966), cired by

defendants. Rather, plainttffs seek Ehe Eesci.mony to estabrish
purpose. See Arlington Heighis, .g!PE. To this end, the testimony
is relevant.

IV. CONCLUSION

"Exceptions to the denand for every uan's evidence are noc

lighcly created nor expansively construed, for they are in dero-
gation of the search for truth." Herbert v. Lando, 441 u.S. at 170.

"These rules sharr be construed Eo secure fairness in adminis-
tratlon' ;.. to the end thac the truth nay be ascerlained or pro-
ceedings justly deEermined." Rule 102, F.R.Ev.

The search for t

Eo ascert a privilege which wilk deprive praintiffs of che proof
of one of the necessary elenenEs of cheir clairos. To require
prainttffs Eo prove purpose and co refuse to arlow Ehero Eo inquire
abouE i! is neicher fair nor jusc

Plaintiffs, Eherefore, request that Ehe subpoenae of senac.ors

Rauch and Marvin noE be quashed.

fhis ?O day of December, 1981.

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

Suite 730 East Indepence PLaza
951 South Independence Boulevard
Charlotte, Norrh Carolina 28202
704/ 375-846L

Accorneys for Plainciffs

vt4-p
LESLIE J. WINNER

-L2-



CERTIFICATE OF SERVICE

r certify Ehat r have served the foregoing plaintiffs, Response

To DefendanEs' Motion ro Quash subpoenae or rn The Arternative For
A Procective 0rder on all ocher parties by plaeing a copy thereof
encl0sed in a postage prepaid properly addressed wrapper in a posr
office or official depository under Ehe exclusive care and custody
of che United States posral Service, addressed Eo:

l'1r . Jame s l,lallace , Jr .
NC AEEorney General's Office
Post Office Box 529
Raleigh, NC 27602

fhis ZO day of December,

1,1r. Jerris Leonard
900 17rh sE. NI.,
Suite 1020
I{ashingron, DC 20006

1981.

-13-



{rttnruff{



*
s)+,, r o

Mem&an?um

January 18, :--98Z

r.g. : . Jack Greenberg, Jlm Nabr tt,/steve RaLston, Lowel]Johnston, Peter sherwood, gir-r- Lann Lee, patrlck
Patterson, Ga11 Wrlght, Beth Llef, Steve Wlnter
and Jlm Llebman

Napoleon B. W11l1ams, ,". Ir.b lt
Dlscovery of LeFlslators, Motives

rn the North carollna reapportlonment case, Glnglesv. E.dmlFt en,, we is sued subpoenas to varloui ffifriG,of the North carolina state Leglslature. The scope
of_ dlscovery encompassed virtually all lnformatlonrelatlng to the enactment of the State's reapportion-ment scheme, lncludlng knowledge of the reasons for

. enaetment of the relevant statutes.
Defend.ants f-1-1ed for a protectlve order, clalmlne

d1n our favor. Attached are the supportlng memorand.a.r am not convlnced that they provid.e the complete
answer to this issue of uslng leglslators to dlscoverthe motlves or lntent of the leglslatlon. rf youhave any ldeas on how thls problem should be ai_proached and resolved, r welcome your communlcitionof them.

From:

Re:

NBW,/T
Attach

Thank you.



irIL EC
IN TIIE UNITED S?ATES DISTRICT COURT hcn

FoR rEE EAsTERN DrsrRrcr oF NoRTE caRolrtlA -'u 1 4 lggl
RALETGH o""tol-.,," 

r" ., *'$t'fruiffi#
RALPH GINGLES, et. a1.,

Plaintiffs,

EDMISTEN, etc., et al.,

Defendants.

BRIEF TN SLiPPOII.T OF DETSNDANTS'
MOTION TO QUASN SUBPOENAE OR TN

TEE A],TEPNATIVE FOR A PROTECTT\E ORDER

INTP.ODUCTTON

Plaintiffs have subpoenaed Nortir Carolina Senators Eelen Marvin

and llarshaIl P.auch for the purPose of taking thej-r depositions on

December 17, 1981. the prospective deponents, members of the I'Iorth

Carolina General Assernbly, are not parties to thas actj.on. Defendants

contend that the matters about which t4arvin and Rauch tlould be asked

to give testimony are privileged, hence non-discoverable undqr Fed. R.

Civ. Pro. 26(b)(1), and that such matters are irrelevant to the action,

I. TIIE DOCTRTNE OF LEGISLATTVE PRIVILEGE PREVENTS INQUTRY INTO_L

Rule 25 (b) (I) specificalJ.y excludes from the scope of othemise

discoverable material matters which are privileged. The cormnon-law

doctrine, variously referred to as legislative privilege or legisla-

tive irurunity, afforils legislatols a privilege to refuse to anster

any questions concerning legislative acts in any proceeding outside

of the legislature. e€ tnlted States v. Man , 415 F.Supp. 1025

(D. Md. 1975). This concept is codified in N.C. Gen. Stat. 5120-9,

which guarantees freedorn of speech and debate in the legislature and

in the legislativ" pro"."=.1

I'The section reads as follovrs:

"The members shal1 have freedom of speech and debate in
the General Assembly, and shall not be liabLe to impeachment
or guestlon, in any court or place out of the General
Assembly, for nords therei.n spoken; and sha1l be protected
except in cases of crime, fron all arrest and imprisorlment,
or attachment of property, during the time of their going to,
coming from, or attending the General Assernbly. "



L.

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North Carolinats statutory provision para1le1s the Speech or

Debate Clause of the Federal Constitution (Ait- I, 56), as well

as the statutory and constitutional enactmelrts of most other

states. In interpreting the federal constitutional version of

this doctrine the United States SuPreme Court has wrj-tten:

The reason for the privilege is clear- It l'ras
well summarized by Janes Wilson an influential
mernber of the Committee of Detail which r'ras
responsible for the provision in the Pederal
conititution. "In order to enable and encourage
a representative of the public to discharge his
public trust r'rith firurness and success, it is
inclispensably necessary, that he should enjoy
the fullest liberty of speech, and t!-at he
shoulit be protected from the resentment of every
one, however powerful, to vhom the exercise of that
liberty may'occasion offence." TenneY v- Broadhove,
341 u.-S. 3e7 (1951) at 372-73 (cffi

Legislative privilege has a substantive as well as evidentiary

aspect, and both are founded in the rationale of legislative

integrity and independence, enunciated by the Framers and propounded

turo centuries later by the Suprerire Court. The substantive asPect

of the doctri.ne afforits legislators irunu:lity from civil and criminal

liability arj.sing from legislative proceedings. The evidentiary

aspect affords legislat6rs a privilege to refuse to testify about

legj-slative acts in proceedings outside the legislative haIls. United

State v. llandel , suE,ra at 1027.

At issue here is the evidentiary facet of the privileqe and,

specifically, whether such a state-afforded evidentiary privilege

should have efficacy in the federal courts. It is clear that the

S;:eech or Debate Clause of the federal constitution would preclude

the deposition of a meuber of Congress in an analogous situation.

In Brewster v. United states, 408 U.s. 508 (1975), the Court stated,
rlt is beyond doubt that the Speech or Debate clause Protects against

inguiry into acts that occur in the regular course of the legislative
process ancl into the motivation for those acts.r 408 U,S. at 525.



L

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Defendants acknowledge that even the Pri.vilege granted federal

legislators is boundect by countervailing consideratj-ons, particularly

the need for every man's evidence in federal criniinaL prosecution.

As Brewster further states, 'the privilege is hroad enough to insure

the historic inilependence of the Legislative Branch . . . but narrow

enough to guard against the excesses of those who woul<l corrupt the

process by.corrupting its meml:ers." 408 U.S- at 525- Defendants

motion attenpts, however, to conceal no "corruption".
with the boundaries of the federal legislative privilege in

mind, we turn to the question of the scope of para11e1 state privileges.

Whatever their exterlt and range of applicability in state court, tbe

United States Suprene Court has ruled that state privileges vtill, at

ti.mes, yeild to overliding federal interests in federal courts.

United States v. Gi11ock, I00 S.Ct. 1185 (l'980). lhe Court has

recognized only one federal interest of irnportance sufficient to

merit dispensing with this state-granted privi'lege: the prosecution

of federal crimes.

The Supreme court has never squarely addressed the issue presented

here: whether a state legislator's evidentiary privilege remains

intact in federal civil proceed.ings. In Tenhey v. Broadhove, .gg.,
the Court ruled that a legislator's substantive irununity from suit

withstood the enactment of 42 U.S.C. 51983, and thus state legislators

were not susceSrtible to suit for r'rords and acts within the purvievr

of the legislative process. Although it deals rr'ith tlre substantive

aspect of the privilege, Tenney is instructive, insofar as the Court

there gave great deference to the staters own doctrine. Recently,

in United States v. Gillockr suPlar a criminal case involving the

evi-dentiary facet of legislatlve inununity, the Corrrt citecl renneY

for the proposition that all federal courts must endeavor to aPply

state legislative privilege. In Gillock, however, the Court ruled



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that the Tennessee speech or Debate crause would not exclude
inguiry into the legislative acts of the defendant-regisl.ator
prosecuted for a federal criminal. offense.

Throughout the Supreme Court's activity in thi.s field no

distinction has been d.rawn betvreen substantive and evidentiary
appu-cations of the privilege for the purpose of determining the
efficacy of legislative privilege in fetleral court. Thus, the
courtrs concl.usions in Gillgck and Tenney must be read together,
and tireir comhi.ned effect dictates that the evidentiary privilege
granted a legislator by his state remains inviolahle except where

it must yield to the enforcement of federal cri-minal statutes.
See Gillocl: at 1193.

Unless federal criminal prosecution dernands othe:r,.rj.se, nthe

role of the state legislature is entitled to as much judicial
respect as that of Congress . . . ?he need for a Conqress vrhich may

act free of interference by the bourts is neither more nor less than
the need for an unimpaired state legislature." glar ois!-ributorsr r,ta.

at 9. s fundamental point the
Supreme Court has recently said, "To create a system in which the
BilL of Rights monitors more closely the conduct of state officials
than it does that of federaL officials is to stand the constitutional
design on its head." Butz v. Economou,, 42g U.S. 47g (19?B) at 504.

rn the present civir acti.on, brought by private citizens of
llorth carolina, Legisrators ltarvin and Rauch are privileged to refuse
to testify concerni.nq their legislative acts. principles of cornity
and the decided Iaw strongry suggest that federal courts honor.this
evj-dentiary privilege in all civil actions.

rT. TEE I,IATERIAI SOUGHT TO BE DISCOI/ERED TS TRRELEVA}IT.

The North Carolina gouse, Senate, and Congressional reapportionment
plans ehallenged in this litigation speak for themselves. rnsofar as



-5-

the intent of the legislature is in question, the legislative history,

i..e., the contemporaneous record of dehate and. enactment, reveals the

).egislative intent. The remarks of any single legislator, even the

sponsor of the bi11, are not controlling in analyzing leglslative

history. Chrysler Corporation v. Bror"rn, 441 U.S. 281 (1979). That

Such remarks have any relevance at aII precludes that they were nrade

contemporaneously and constitute part of the record. See Unitei

state v. Gila Rive , 585 E .2d 209

(Ct. c1. 1978). This proposition is adhered to even more strongly

by the appellate courts of North Carolina. The North Carolina Supreme

Court, for example, stated the following in D & FJ, Inc. v. Challotte,

258 N.C. 577, 58L, 151 S .E.2d. 241 , 244 (1966) :

'. . . N.ore than a hundred years ago this court
held that rno evidence as to the motives of the
Legislature can be heard to give operation to, or
to ',ake it from, their acts. .' Drake v. Drake,
15 N.c. 110, 117. The meanj-ng of a sEE66ffiEEE
intention of the legislature which passed it cannot
be shown by the testimony of a member of the legisla-
ture; it tmust be drawn from the construction of the
Act itself.' v. Indian Tr School, 159

The testimony of Marvin and Rauch is not relevant to the intent

of the General Assenbly and can have no other d.iscernable relevance.

Thus, their depositions are outsj.de the scope of pennissible

discovery.

rII. PRESERVATTON OF LEGISLATTVE INDEPFNDENCE REQUTRES THAT, SHOIILD

If the court orders the depositions to proceed, it is imperative

that the transcri-pts be sealed and opened only upon Court order. The

purpose of legislative privilege is to "avoid indrusion by the

Executive or the JuiliciarL into the affairs of a co-equal branch,

and . . . to protect leglslative in<iependence." Gillock at 1191.



Legislators must feel free to discuss and ponder the plethora

of econotric, socj.aI, and political considerations which enter into
legislative decision-making. Fear of subsequent disclosure of an

individuaL legislatorrs intent or rationale '.vould chill. debate and

destroy independence of thought and vote. In this case, sensiti.ve

political considerations might be recklessly exposed by the plaintiffrs

proposed discovery. To rnaintain free expression of ideas within the

General Assenbly, as well as to protect those j.deas already freely
expressed therein, a protective order must issue, if the subpoenae

are not quashed, as they should be.
,r/Respectfully subnui-tted, this Lhe l? day of December, 1981.

Telephone: (919) 733-3377

Norma Earrell
Tiare Smiley
Assistant S.ttorneys General

John Lassiter
Associate Attorney General

Attorneys for Defendants

Of Counsel:

Jerris Leonard & Associates, P.C.
900 17th Street, N.W.
Suite 1020
Washington, D. C. 20006
(202) 872-t095

Attolney Gene
Legal Affairs

AlSrney General's of fice
nl-. C. Department of Justice
Post Office Box 629



aol

CERTTFICATE OF SFRVICE

I hereby certify that I have this day se:rred the foregoins

llotion to Quash Subpoenae or in the Alternative for a Protective

Order and foregoing Brief in support thereof upqn Plaintiffs'

attorneys by placing a copy of saure in the United States Post

Office, postage prepaid, addressed to:

J. Levonne Charnbers
Leslie l.Iinner
Cha.mtrers, Ferguson, 9lattr l{allas,

Adkins & Fuller, P.A.
951 South Independence Boulevard
Charlotte, llorth Carolia 28202

Jack Greenberg
,rames !'1. Dlabrit, lII
Napeoloen B. Willians, Jr.
10 Coluail:us Circle
New York, New York 10019

Th.is the /y' u^, of December, 1981.