Brief in Support of Defendants' Motion to Quash Subpoenae ; Plaintiffs' Response to Defendants' Motion to Quash Subpoenae

    I.

l!h-

m, or attending t.he General Assembly. "

trrt ED
rN

FOR TH

RALPH GINGLES, €t.

Plaint
v.

RUFUS EDMISTEN, €t

Defend

Plaintiffs ha

and Marshall Pauc

December L7, 1981.

Carolina General

contend that the

to give testimony

TIIE DOCTRINE-id-cTsil-^TIVE-A

Rule 26 (b) (I)

discoverable mate

doctr j-ne, various

tive immunity, af

any questions con

of the legislatur
(o. Md. 1976).

whicl'r guarantees

in the legislativ

TIE UNITED STATES DISTRICT COUITT

RALEIGH DIVISION

aI. ,

ffs,
BRIEF IN SUPPOP.T OF DETENDANTS I

IqOTION TO QUASH SUBPOFNAE OR IN
TIIE ALTEPNATTVE F'OR A PROTECTT\IE ORDER

., et Erl.,

nts.

INTP.ODUCTION

subpoenaed Nortir Carolina Senators llelen Marvin

for the purpose of taking their depositions on

The prospective deponents, members of. the }Iorth

sembly, are not parties to thls action. Defendants

tters about which l4arvin and Rauch tvould be asked

re privileged, hence non-discoverable undgr Fed. R.

LEGISLATIVE PRTVTLEGE PREVENTS INQUTRY INTO
-6n-rE-a-ubT

pecifically excludes from the scope of otherwise

ia1 matters which are privileged. The common-}aw

y referred to as legislative privilege or legisLa-

ords legislators a p::ivilec-re to refuse to answer

ernj-ng legislative acts in anv proceeding outside

. qe_= , 415 F . .Supp . 102 5

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

recdom of speech and debate in the legislature and

pro"""=.1

E UNITED STATES DISTRICT COUIT'I' flfn
EASTERN DISTRTCT oF NORTII CAROLTI'IA "u J 4l9Bl

cr\rrl No. er-Li3ffifocf!fiS
',3l,|;*uo.
'*S$?g'?Hffi,?H

Civ. Pro. 26 (b) (1) , and that such matters are irrelevant to the a6tion,

hence also non-di overable under Fed. P.. Civ. Pro. 26 (b) (1).

]rhe Section
ttThe mem

ads as follovrs:

rs shall have treedom of speech and debate in
1 Assembly, and shal-I not be 1iab1e to impeachment
tion, in any court or place out of the General
for vrords therein spoken; and shalI be protected
cases of crime, from all arrest and imprisonment,
nt of property, during the time of their going to,

the Gener
or que
Assemb1y,
except in
or attac
coming f



t

/

I

i

the

In

North Caroli

Debate Clause of

as the statutory
states. In inte
this doctrine t,h

member o
responsi
Consti tu
a repres
public t
indispen
the fu1I
should
one, h
liberty
341 u.s

Legislativo
aspect, and both

integrity and in
two centuries 1a

of the doctrine

liability arisin

aspect. affords I

legislative acts

State v. llandel ,

At issue her

specifically, wh

should have effi

S.,:reech or Debate

"ft is beyond do

into act

and into

re founded

cy i-n the

lause of

a member

t that the

that occur

-2^

a's statutory provi-sion paralle1s the Speech or
the Federal Constj-tution (art. I, 56), as well
and constitutional enactments of most other
preting the federal constitutional version of
United State Supreme Court has written:

The reas n for the privilege is c1ear. It r.ras
well su rized by James Wilson an influential

the Committee of Detail which r.ras
le for the provision in the Federal
ion. "In order to enablc and encourage
ntative of the public to discharge his
ust r,rith firmness and success, it is
ably necessary, that he should enjoy
st liberty of speechr drld tl..at he
protected from the resentment of every
er por{erf uI, to r.rhom the exerc j-se of that

ay occasion offence. " Tenney v. Broadhove,
367 (19s1) at 372-73 (citaEibns omiEEeaf-

rivilege has

deposition o

Brewster v. ted States,

a substantive as weLl as evidentiary
in the rationale of legislative

the federal constitution vrould preclude

of Congress in an analogous situation.
408 U,S. 508 (1975), the Court stated,

Speech or Debate clause protects against
in the regular course of the 1egislative

ependence, enuncj-ated by the Framers and propounded
J

r by the Supreire Court. The substantive aspec,t

ffords legislators

from legislative
immunity from civil anrl criminal

proceedings. The evidentiary

tesLify aboutislators a privilege to refuse to
n proceedings outside the legislative haIls. united

ra at 1027.

-is the evidentiary facet of the privileqe and,

ther such a state-afforded evidentiary privilege
federal courts. It is clear that the

r-nqurry

process
'| ,4
he motivation for those acts." 4OB U.S. at S2S.



L

Defendants ackn

legislators is
the need for eve

As Brewster furt
the historic ind

enough to guard a

process by corru

motion attempts,

mindr w€ turn to

Whatever their ex

United States Srp

times, yeild to o

United States v.

recognized only o

merit dispensing

of federal cri-mes

The Supreme C

here: ,whether a

intact in federal

the Court ruled t
withstood the ena

were not suscepti

of the legislativ
aspect of the pri
there gave great

in United States

evidentiary facet

for the propositi

state legislative

ever, to conceal no ,,corruption".

I.Iith the bo ries of the federal legislative privilege in

-3-

edge that even the privilege qranted federal
ed by countervailinq considerati.onsr paf,ticularly

man's evidence in federal criminal prosecution.
r states, "the privi-Ieqe is hroad enough to insure
endence of the Legislativc Branch . but narrow

ainst the excesses of those who uould corrupt the
ing its memhers." 408 U.S. at 525. Defendants

he question of the scope of para11e1 state privireges.
ent and range of applicabllity in state courL, the
erne Court has ruled that state privileges v,iIl, dt
rriding federal interests in federal courts.

lillocl:, 100 S.Ct. I1B5 (1980). The Court has

e federal interest of importance sufficient to
ith this state-granted privilege: the prosecution

urt has never sqnrely addressed the issue presented

tate legislator's evidentiary privilege remains

civil proceedings. In @, supra,
at a legislator's substantive immunity from suit
tment of 42 U.S.C. 51983, and thus state legislators
le to suit for rrords and acts vrj_thin the purvievr

process. Although it deals rr'ith the substantive
i1egc, Tenney is instructive, insofar as the Court
eference to the staters own doctrine. Recently,
. cilf oqtlr Fupra I a crimj-naI case involving the

of legislative immunity, the Corrrt cited Tenney

p thgt all federal courts must endeavor to apply
privilege. In 9i11ock, however, the Court ruled



il

that the Tennes

inquj-ry into th
prosecuted for

Throughout

distinction has

applications of

efficacy of legi
Court's conclusi

and their comhin

granted a legisI
j-t must yield t

See Gillocl: at

Unless fede

role of the sta

respect as that

act free of int
the need for an

v. I,,larino, 613

and the decided

evidentiary pri

Supreme Court
a

BiIt of Rights

than it does tha t of federal officials is to stand the constitutional
design on its d. " Fu!Z::_ gc:r,c*eg, 428 It.S. 478 (1978) at 504.

t civil action, brought by private citizens ofIn the pres

Ilorth Carolina, sislators .rlarvin and Rauch are privileged to refuse

to testify con

- 4--

e Speech or Debate Clause urould not exclude

legislative acts of the defendant-legislator

federal criminal offense.

Supreme Court's activity in this field no

en drawn betvreen substantive and evidentiary
privilege for the purpose of determining the

lative privileqe in federal court. Thus, the

ns in Gillock and Tenney must be read together,

d effect dictates that the evidentiary privilege
tor by his st,ate remains inviolahle except, where

the enforcement of federal criminal statutes.

93.

I criminal prosecution demands othenvise, "the

legislature is entitled to as much judicial

f Congress . The need for a Conqress vlhich may

ference by the courts is neithe:: more nor less than

nimpaired state legislature." Star Distributors, Ltd

2d 4 (1980) at 9. On this fundamental point the

recently said, "To create a system in which the

nitors more closely the conduct of state officials

rninq their legislative acts. Principles of comity

law strongly suggest that federal courts honor this
ilege in all civil actions.

II. TI.IE I,,IATERIA sougrl To BE P]scovEREp rS IRRELEVA}IT.

The North

plans challeng
p111" llouse, Senate, and

in this litigation speak

Congressional

for themselves

reapportionmen I

. Insofar as



legislature is in question, the legislative history,
raneous record of dekrate anc. enactment, reveals the
. The remarks of any single legislator, even the
1, are not controlling in analyzing legislative

history. Chrysle CofpoTation v. Brown , 44L U.S. 291 (1979) . That
such remarks have

contemporaneously

any relevance at all precludes that they were made

and constitute part of the record. see united
State v. Gila Riv r Pima-ltaricopa fndian ggmmunity, 596 F.2d 2Og

(ct. cI. 1978).

by the appellate

Court, tor exampl

268 N.C. 577, 581

his proposition is adhere<l to even more strongly
urts of North carolina. The North carorina supreme

the lntent of th
i.e., the contem

legislative inten
sponsor of the bi

tt. 
l.'lo

held that
Legislatu
to take i
15 N.C. 1
intention
be shor^ln
turer it
Act itsel
N.C. 736,

The testimony

of the peneral As

Thus, their depos

discovery.

III. PRESERVATTON
DEPOS

If the court
that the transcri
purpose of 1egisl

Executive or the

and . to prot

, stated the following in D & I"I, Lnc. v. Charlotte,
lsl s.E.2d 24l-, 244 (1966):

e than a hundred years ago this Court
'no evidence as to the motives of thee can be heard to give operation to, or
f rom, their acts. . Dral<e v. Drake,0, 117. The meaning of a sE-aE[Ee a '

of the legislature vrhich pas.serl it cannoty the testimony of a memher of the legisla_must be drarvn from the construction oi the.' Goins v. Ln_{ian Training Schoo1 , 169zlg,

of Marvin and Rauch is not relevant to the intent
embly and can have no other discernable relevance.
tions are outside ilre scope of permissible

F LEGTSLATIVE INqEPENDENCE REQUIRES T}IAT, SHOI.ILDs-EryqemD;rffii
rrlers the depositions to proceecl, it is imperative
s he sealed and opened only upon Court Order. The

ive privilege is to ,,avoj-d, intrusion by the
iciary into the affairs of a co-equal hranch,

t legislative independence.,' Gillock at I19I.

.4



*-



EA

RALPH GINGLES, et a

PIai

v.

RUFUS EDMISTEN, eI

Defe

PlainEiffs, bl
action to enforce E

sentation. They as

Amendments to the U

of Ehe Voting Right

and 1973c ("The Vot

of Ehe NorEh Caroli

Congressional disEr

Ehe apporEionmenLs

denying black cici

and that Ehe Genera

person-one vote" pr

Discovery has

noEiced Ehe deposiE

Ehe Chairman of the

lacive Redistriccin

che Norch Carolina

The subpoenae reque

DocumenEs of a

which relate E

Session of the

il
,'t ')'J

IN THE
UNITED STATES DISTRICT COURT

FOR THE
RN DISTRICT OF NORTH CAROLINA

MLEIGH DIVISION
NO. 81-803-CrV-5

riffs, PIJ,INTIFFS' RESPONSE TO
DEFENDANTS' MOTION TO QUASH
SUBPOENAE OR IN THE ALTERNA-
TIVE FOR A PROTECTIVE ORDER1.,

dant s .

I. Introduction

ck citizens of Norrh Carolina, bring this
eir right to vote and Eo have equal repre-

rt claims under the FourEeenEh and Fifteenth
ited StaEes Constirution and under SS2 and 5

Act of 1965, BS amended, 42 U.S.C. SSf973

ng Rights AcE"), challenging the apportionment

a General Assembly and the United States

cts in NorEh Carolina. PlainEiffs allege thaE

re adopted wiEh the purpose and effecr of

ns Ehe righc Eo use their votes effecEively

Assembly apporEionmenEs violaEe the "one

visions of Ehe equal protection clause.

nmenced. On December 3, 1981, plaintiffs

ons of and subpoenaed Senator Marshall Rauch,

North Carolina Senate's ComnitEee on Legis-

and Senator Helen Marvin, Ehe Chairman of
enaEe' s CoruritEee on Congressional RedistricEing.

E that the senaEors bring Co Ehe depositions:

y kind which you have in your possession

che adopEion of SB 313 t87l during the 1981

NorEh Carolina General Assembly. This



:l
I

I

I

requesE includ{s but is noE limited Eo correspondence,
I

memoranda or odher writings proposing or objecting to
I

any plan for aflportionmenE of NorEh carolina's senate

lCongressionall Or"cricts or any crireria therefore.
Defendana" *o.rJ to quash the subpoenae on the grounds that

neither Senator 
""., lgive any relevant tesrimony and that all tesri-

mony of both S".,.aoJ" is privileged. Plaintiffs oppose this motion.
Defendana"' *oa[-on to quash is an objecrion to the entire deposi-

IEions. Plaintiffs I have not^ asked parEicular questions. If plain-
Eiffs had taken an. ldepositions, the inquiry would have included the

Ifollowing: 
I

1. The ,r"arJ" of the SenaEor,s role as Chairman of a
I

RedistrieE ing Comnri{tee ;

2. The ..O,rJt"" of evenEs which lead to the enactmenE of
I

the redistricEing l{SisIaEion i

3. Normal ,rd"udures for enacring rhis rype of legisration;
4. The "ti."]i" adopted by Ehe redistricring cournirrees;

5. Factors ,.J.*"ffy considered importanE in redisEricring;
6. The u*i"ttt". of any subsEantive or procedural deparrures

from normal, 
I

7. The exist{... of documents, official records, or unoffi-
cial records which do.,tain Ehe substance of cornmitEee, subcommiEtee

I

or whole SenaEe debdte i

8. rhe Iir knoJledge of Ehe contemporary statements by mem-

bers of Ehe legisla{ure of che reasons for adopting or rejecEing
proposed appor.ior,*!.ra plans ;

g. The "*iralrr"u of wicnesses to statements as described in
Iparagraph 8 above; dnd

10. The u*i"at.,". of oEher wiEnesses who observed or $/ere

involved in Ehe otolu." chac led Eo che enacrmenr of Ehe challenged

appor.ionmenEs. 
I

I

Because the Serfarors were the Chairmen of rhe redistrj-cring
commiEtees which wele responsible for reporEing Eo the full Senate

a recommended apporiionmenr for enactmenE,, plainEiffs believe each

has knowledge ."levlr,t ro Ehese inquiries.
I

I

I

| 'r'
I

I



One of plainEi
discriminate agains

the equal protectio

order to prevail on

plans were conceive or maintained with a purpose to discriminate.
City of Mobile v. lden, 446 U.S. 55 (1980); Village of Arlinsron
Heiehts v. Iletroool tan Housing Corp., 429 U.S. 252 (L977);

[.IashinFEon v. Davis

In addition, i
Eo diluce black vor

of the Voting Right

v. Finley, F.2

fs' allegations is that these apportionments

them on the basis of race in violation of
clause of the Fourteenth Amendment. In

this claim, plaintiffs must show that the

426 u.s. 229 (1976).

is arguable that plainEiffs must show purpose

in order to prevail in Eheir claims under 52

Act . See Mobile v. Bolden, -ggpra., Washington

_, (4tn Cir., #80-1277, November L7, 1981).

rt in Arlington Heights, ggpra., noted Ehat ,

invidious discriminatory purpose was a moti-
s a sensitive iirquiry into such circumstanEial

f inEent as may be available." 429 U.S. at 266.

f proper inquiry for proving intent listed by

ic sequence of evenEs leading up Eo the chal-
is ion;

The Supreme Co

rrDeEermining wheEhe

vating factof deman

and direcE evidence

Among Ehe subjects

Ehe Supreme CourE a

I. The speci

lenged de

DeparEure

Sub s ranE i
irnportant

Contempor

body, min

SenaEors Rauch

relevant to each of
recognized, "In so

called Eo Ehe suand

official acEion, ...

from normal

e deparrures

and

procedural sequence;.

from factors usually considered

ry sEatements by members of the decisionmaking

Ees of its meetings, or reports.
Arlin ton Heishts v l.leEro Housing Corp . , 429 U. S. at 257 -268 . See

also Mct'Iillan v. Es ambia Co., 638 F.2d L239 (5rh Cir. 1981);

U.S. v. City of Pa , 494 F.Supp. 1049, 1054 (N.D.0h. 1980).

and Marvin would be expected to give testimony

Ehese inquiries. In addition, the Supreme CourE

exEraordinary instances Elre members mighr be

aE Erial Eo Eestify concerning Ehe purpose of

" ArlingEon Heighcs, supra.



In addition, d

in their Answer Eha

of Ehe General Asse

raEional state poli

"one person-one voL

of Senator Rauch,

tive Redistricting,
state policies that
Senate plan and wou

thaE met Ehese poli

These deposiri

under Rule s 26 and

under Ehe Federal R

tr.

Rule 501 of

tinent part:

ExcepE as oEhe

United SEates

prescribed by

auEhority, the

State, or poli

by Ehe princip

preEed by the

reason and exp

This rule appl

RuIe 1101(c). Thus

Rauch and Marvin is
che Federal Rules o

is covered by Rule

445 U.S. 360, 366 (

Defendancs ass

and Debace Clause o

However, Ehe Speec

fendants have raised as the Fourth Defense

, "The deviations in the 1981 ApporEionment

ly were unavoidable and are justified by

ies." This defense relates to plaintiffsi
" claim. If allowed to take Ehe deposition
airman of Ehe Senace Committee on Legisla-
plaintiffs would inquire about the rational
caused the populaEion deviations in Ehe

d inquire abouE the existence of other plans

ies but had lor.rer populaEion deviations.
ns and these lines of inquiry are permitted

3 of the Federal Rules of Civil procedure and

les of Evidence.

E TESTIMONY OF SENATORS RAUCH
D MARVIN IS NOT PRIVILEGED.

Federal Rules of Evidence provides, in per-

ise required by the ConstituEion of the

r provided by Act of Congress or in rules

he Supreme Court pursuant to statuEory

privilege of a witness, personr goveEnmenE,

ical subdivision Ehereof shall be governed

es of Ehe courmon law as Ehey may be inter-
ourts of Ehe United States in Ehe light of
rience.

es Eo discovery as well as Eo Erial. F.R.Ev.,

in order Eo determine if the Eestimony of Senators

privileged wirhin the meaning of Rule 26(b) of
Civil Procedure, rhe CourE musE determine if it

0t of the Rules of Evidence. See U.S. v. Gillock,
980)

rE a legislarive
Arcicle I, $6 of

and Debate Clause

privilege parallel Eo che Speech

che United SEaces Consticuuion.

applies only Eo members of Ehe



by Ehe courts of E

F.R.Ev., Rule 501.

exEended to the Ees

of none. U.S. v.

defendanrs cice in
in which a staEe go

tion, and che Court

doing legislarive a

dicEa, largely irre
In order to de

and Debate Clause s

helpful to analyze

Its hisEory is set

L.8d.377 (1881).

menEary provision w

Nlembers of Parliame

Eranslaeed inEo che

clause has Ewo purp

l.

United StaEes Congr

sEaEe staEuEe estab

Ehe privilege under

at 368, 374. Defen

Stares Constitution

esEablishes a privi

tifying. Thus the

vileged "by the pri

Defendants cit

To proEec

branch of

by a poss

hoscile j

freeing E

Ehemse lve

Dombrowsk

e members from the burden of defending

in courE and of ulcimaEe liabiliry.
v. Eastlalld, 387 U.S. 82 (Lg6l)

ss, not to staEe legislators. Nor does the

ishing the privilege in state courts esEablish

the Federal Rules. U.S. v. Gillock, 448 U.S.

ants do noE cite any provision of the United

Act of Congress, or Supreme Court rule which

ege vrhich exempEs state legislators from tes-
urt must deEermine if Che EesEimony is pri-

ciples of cornnon law as they may be inLerpreEed

United States in light of reason and experience. tt

no case in which legislative privilege is
imony of state legislators, and plaintiffs know

ndel , 4!5 F.Supp . IOZS tO.ltO. Lg76), which

pport of the evidentary privilege, is a case

rnor asserted inrnunity from criminal prosecu-

eld rhat Ehere was no immunity for governors

ts. The language quoted by defendanEs is only
evanE Eo the issue before that CourE.

ermine whecher a privilege parallel to the Speech

uld be created for staEe legislacors, it is
he purposes of rhe Speech and Debate Clause.

uE in Kilbourn v. Thompson, 103 U.S. 168, 26

e clause was paEcerned aftcr an English parlia-
ich was designed Eo stop the crown from imprisoning

E for seditious Iibel. 26 L.Ed ac 390-391. As

American republican form of governmenE, the

ses:

Ehe members of the co-equal legislative
the federal governmenE from prosecuEion

bly hostile execuEive before a possibly

diciary, Kilbourn v. Thomnson, supra; and

To prese the independence of che IegislaEure by2.

-5-



Neither of the

the CourE.

Since a state

branches of the fed

apply. The Supreme

supra, in holding c

federal prosecution

and EhaE he had no

his legislative acE

similar in scope to

reaching the conclu

The first rati
powers doccrin

lege Eo sEaEe

It requires no

Ehat the Feder

to Ehe sEates,

monarchs exerc

however, in E

Federal Gover

dictates that

state exercise

ure do noE have

and sEate syst

or Debate Clau

proEecE federa

Since a sEate

federal legislaEure

Federal Courts, Ehe

has no relation to

The second pu

EhaE

licy.
che legislaEor

For Ehis pro

e reason is applicable to the motion before

egislature is not one of the three co-equal

ral government, the first reason does noE

Court reached this conclusion in U.S. v. Gillock,
at a staEe legislator is noE immune from

for crimes committed in his legislative capacity

rivilege againsE the admission into evidence of

. Both would have been precluded if a privilege

the Speech and Debate Clause applied. In

ion the CourE said:

nale, resting solely on the separaEion-of-

, gives no support to the grant of a privi-
egislators in federal criminal prosecutions.

ciEaEion of authorities for the proposition

I GovernmenE has limited powers with respect

unlike the unfettered authority which English

sed over the Parliament. By the same Eoken,

se areas where the Constitution grants the

t the por^rer Eo act, rhe Supremacy Clause

ederal enacEmenEs will prevail over competing

of power. Thus, under our federal sEructure,

che struggles for power between Ehe federal

ms such as inspired the need for Ehe Speech

e as a resErainE on the Federal ExecuEive to

legislators . 445 U. S. at 370.

egislature is not a co-equal branch with the

rvhich passed Ehe Vocing Rights Act or wiEh the

first reason for che Speech and Debare Clause

his action.

ose for che Speecl'r and DebaEe Clause is Eo assure

can be free to speek our wichour fear of liabi-
sition defendanus cite Ten@, 341

-6-



:,1
I

I

I

u.s. 367 (1951) andlsrar Disrriburors, Ltd. v. Marino, 613

F.2d 4 (2d Cir. rrrl
I

However, in Uo[n of those actions the sEate legislator was
Ithe defendant. Thelcases discussed not an evidentiary privilege but
Irather a common lawl immunity from liability. The purpose of pro-
Itecting legislative 
I independence is fully prorected if legislators

are relieved of ttreluuraen of defending themselves. powell v.
t-

McCormack, 395 U.S. | 486, 501-506 (1969).

Plaintiffs do l"a seek to hold eiEher Senator Rauch or Senaror
IMarvin liable. Neither is a defendanr. Neither is put in a posi-
Ition of having the 
furden 

of defending the acEion. A11 plainriffs
seek is to discoverlwhar evidence each has thaL either supports

Ithe claims or defenAes.

In addition, ,{ ,..,.,"r, -ggp.g, rhe legislaEor was sued for
money damages. rE +r;.nable thiat possible f inanciar liability

Imight inhibit a legfslator from acting his conscience. rt is
I

noE reasonable that lmerely having to disclose Ehe process or sub-
I

stance of legislari'fe acEions will prevent a legislator froml--('--
acEing in the inter{sts of Ehe people. PlainEiffs herein do not

I

seek money damages 
from 

anyone, much less Senator Rauch or Senator

t'larvin. FurEhermor{, in !tar Distributors , supra, an act ion to
t-eujoin a legisfacivt invesEigaEion, Ehe Courc was careful Eo point

out that Ehe plaintfff nra another remedy available; to refuse to
I

comply wiEh the reslslative subpoena and assert the claim as a

defense in contempElproceedings. In this case, plainriffs s&rsE

assert rheir claim +" a judicial proceeding or not aE arr. They

have no other r"r.aj.
Finally, the ,rJ.ior, or independence of stare regislatures is

IanEitheEical to che lpurpose of Ehe FourEeenEh AmenEmenE and of
che Voting Right" eJ., boEh of which have the purpose of limiring rhe

I

acEions r.rhich sEate{ *r, Eake. See, €.8., stare of sourh carolina
v. KaEzenbach, 383 J.t. 3ol (r966).

Afcer rejecEirJ boch uhe separaEion of powers and independence

of legislative ptir{lege, Ehe Supreme Court in Gillock also considered

che doctrine of "o*dcy. The Court scaEed:

I

I

| -t-
I

I



We conclude, E

comity command

close that whe

stake, BS in L

statutes, comi

erefore, that although principles of
careful consideraEion, our cases dis-
e important federal interests are at

e enforcemenE of federal criminal
y yields.

Here we believ
privilege for
acts would imp

Federal Govern

with only spec

process. 445

In Gillock Ehe

a criminal sEatute.

ConsEituEion and of
This was recognized

in Jordan v. HuEchi

in holding char pla

againsE che members

legislature seeking

racially mocivated

The Court stat,ed, "
for staEe inscituti
sion of citizen's c

tiffs were allowed

dancs. The incrusi
In addition, C

in an acEion under

is to be awarded hi
1988. The reason t
recognized the impo

as privaEe aEtorney

che Consciturion.

Ehat recognition

tate legislators
ir che legitimate

nE in enforcing

lative benefit to

of an evidentiary

for their legislaEive

interest of the

its criminal statutes.

the state legislative
. S. at 373.

important federal inEerest was enforcemenE of
However, enforcemenE of Ehe United SLates

the VoEing Rights Act is of equal imporcance.

by the Court of Appeals for rhe FourEh Circuit
son, 323 F.2d 597, 600-601 (4rtr cir. Lg73),

ntiffs, black lawyers, could maintain an action
of an invesEigatory commictee of the Virginia
to enjoin the legislators from engaging in
arassment of plainEiffs and their clienEs.
he concept of federalism, i.e. federal respecc

s, will not be permitted to .shield an inva-
sticuEional righEs." Id at 601. Thus plain-

o maintaj-n an action with legislaEors as defen_

n here is, of course, rmlch more minor.

ngress has provided thaE a prevailing plaintiff
he Voting Righrs Acr or under 42 U.S.C. $19g3

atEorneyis fees. 42 U.S.C. SS1973l(e) and

r che fee award provision is that Congress

Eance of encouraging private cirizens, acting
general, Eo enforce the VoEing Righcs Act and

iddell v. Narional Democrariq party, 6Zq F.2d

-8-



539, 543 (5th Cir.

trative News 5908,

represented are cen

Defendants' qu

(1978), to the effe
should not be greaE

inapposice. In Bur

Eors should have gr

an individual's con

straEors. The ques

42 U.S.C. S1983 and

the Fourth and Fift

The Court held Ehat

Thac is a far cry f
Congressional imnnrn

provision, is compa

creaEure of either
Iaw.

Even if there

tors, in this case

juscice. The court

officials are in de

the extenE necessar

question. See, e. g

U.S. v. Mandel, 415

However, in Eh

gaEion of Ehe truEh

Eo prove an essenEi

Part I, above, disc

element of aE least

To hold one the one

necessary and on Eh

is to make a mocker

Acr.

980); 5 U.S. Code Congressional and Adminis-

910 (L976). The righr ro vore and ro be fairly
ral to our democratic government.

te from Butz 11. lconomou, 428 U.S. 478, 504

E that the immunity of a federal defendant

r Ehan the immunity of a state defendant, is
the question was whether federal administra-

ater innunity from liability for invading

tiEutional rights than do similar state admini-

ion involved comparing the protecEion bf
the Fourteenth Amendment to che protection of
Amendments Eo the United States Constitution.

the two could not be raEionally discinguished.

om the situation here in which the U.S.

ty, creaEed by an unambiguous constiEutional
ed to Ehe staEe legislator's privilege, a

LaEe statute or unprecedented federal common

s an evidentiary privilege for staEe legisla-
E must give way in the interest of truth and

have recognized EhaE privileges of government

ogaEion of the truUh and musE extend only to
Eo protect the independence of Ehe branch in

, U.S. v. Nixon, 418 U.S. 683, 710 (L974);

F. Supp. at 1030.

s case privilege would be more than in dero-

it would prevent plainriffs from being able

I elemenE of cheir claims. As discussed in
iminacory legislacive purpose is a necessary

one and possibly ct^ro of plaintif f s' claims.

hand that evidence of legislative purpose is
other thac it is privileged and inadmissible

of both the ConstiEution and rhe VoEing Rights

-9-



This reasoning

Herbert v. Lando, 4

that a Eelevision n

privilege not Eo di
processes in a libe
recognized it would

prove actual malice

clude him from inqu

tion. Id. ar 170.

The Court noEe

unfair to allow def

plainciff from inqu

falsehood.

Thus the Court

even one rooted in
sEances, -to a demon

In this case,

strated a specific
Marvin have which

is, however, even s

Her!erg, defendants

case the privilege,

sEaEe staEute.

The Supreme Co

Authoritv, supra, r
tesEimony abouE mot

Protect OverEon Par

SecreEary of Transp

for choosing to put

under che circumsEa

reasoned rhac alcho

was no formal recor

permissible to exam

v. Vo1pe, 401 U.S. 402 (f971). 429 U.S. aE 269,

n. 18. In Overton ark che Supreme CourE considered wheEher the

was recognized by the Supreme Court in
r u.s. r53 (1979). rn Herberr rhe courr hetd

ws editor could not claim his First Amendment

close his sources, motivaEions, and thought

suit brought by a public figure. The Courr

be grossly unfair to require the plaintiff to
or reckless disregard for the truth and pre-

ring to the defendants' knowledge and motiva-

, in addition, that it was particularly
ndants to testify to good faith and preclude

ring into direct evidence of known or reckless

concluded Lhat an evidenEiary privilege,
the ConscituEion, must yield, in proper circum-

trated specific need for evidence.

s in Herbert v. Lando, plaintiffs have demon-

eed for the evidence which Senators Rauch and

y esEablish ldiscriminatory purpose. This case

ronger Chan Herbert v. Lando because, in
asserEed a ConsEitutional privilege. In this
if one exists, comes only from common law or

rt in Arlington Heighcs v. Metropolitan Housi

cognized chac in some circumsEances a member's

vaEion could be privileged and ciced Citizens Eo

rtaEion could be examined as to his reasons

a highway chrough a park. The Courr held thac

ces in thaE case he could be examined. The Courc

gh ir was generally Eo be avoided, when there

derailing Ehe reasons for the decision, iE is
ne che menEal process of decisionmakers. Id. at 4ZO.

-I0-



In this case,

record adequaEe to

Ehe legislators. A

discovery regarding

to the subject matt

for objection Ehat

the trial if Ehe in
Eo lead Eo the disc

Thus, in order

defendanEs nusE sho

irrelevant and coul

view of the broad t
motion will ordinar

PracEice and Proced

The tesEimony

maEter. Each senat

As discussed in par

knowledge of the pr

the criceria used b

dered but rejected,

Ehe reasons EhaE th
plaintiffs challeng

supra, and Village

9orporation, supra,

cricical Eo plainui

records speak for th

t-esEimony is, Eheref

records which conta

floor debate, Ehe cr
poscd apporEionmenEs

s in Overton Park, supra, there is no formal

etermine the purpose, or even the process, of
direcE examination is, therefore, permissible.

III. THE TE
RELEVA

IMONY OF SENATORS RAUCH AND MARVIN IS
TO THE SUBJECT MATTER OF THE ACTION.

Rule 26(b) pro ides in pertinent part, "parties may obtain
any matter, not privleged, which is relevanL

r in Ehe pending action, ... It is not ground

he informacion sought will be inadmissible at
ormation sought appears reasonably calculated
very of admissible evidence. ,'

to be entitled to prevent Ehe entire deposition,
thaE the "information sought was wholly
have no possible bearing on the issue, buE

sE of relevancy. at Ehe discovery sEage such

ly be denied. " Wrlght and Mil1er, 8 Federal

re S2037.

t the Ewo senators is relevant Eo the subjecE

was Chairman of a RedistricEing CommitEee.

I above, these senat.ors are believed Eo have

edures used for developing the apporEionmenE,s,

Ehe conrnittees, oEher plans which were consi-
nd Ehe documenLs and statements which indicate
General Assembly adopted Ehe proposals which

Under Ehe Supr Courc decisions in City of Mobile v. Bolden,

Arlington Heighrs v. Metropolitan Housin

his informaEion is nor simply relevanE, iE is
s' ability Eo prove Eheir claims.

Defendanrs asse E thaE che legislarive hiscory and official
mselves and that the individual senaEors '

E€, irrelevanE. Plainciffs know of no official
any couuoiEEee proceedings, Ehe conEenEs of any

Eeria used by Ehe comrniEEees, a lisc of pro-
available Eo but rejected by the commiEEees,

in

a

- 11-



or the

these

them

asinD&W

contemporane

records exist
so EhaE plaint

Finally, defen

is not relevant wh

to use Ehe testimon

defendanrs. RaLher

purpose. See ArIin
is relevant.

"Exceptions to

lightly created nor

gaEion of the searc

"These rules s

Eration, ... to Ehe

ceedings justly det

The search for
Eo ascerE a privile

of one of the neces

plainEiffs Co prove

abouE iE is neicher

PlainEiffs, Eh

Rauch and Marvin no

ary elements of Eheir claims.

purpose and to refuse to allow

us statements of the members. If, however,

perhaps SenaEors Rauch and Marvin can describe

ffs may discover them.

ants assert that the testimony of legislators
analyzing legislation. Plaintiffs do not seek

to interpret any ambiguity in the legislaEion,

plaintiffs seek the testimony to establish
ton Heighfs, supra. To this end, the Eestimony

IV. CONCLUSION

the demand for every man's evidence are not

expansively construed, for they are in dero-

for truEh.r' Herbert v. Lando , 441 U.S. at 170.

all be construed to secure fairness in adminis-

nd that the truth may be ascertained or pro-

rmined. " Rule LOz, F.R.Ev.

EruEh requires thaC defendants not be allowed

of Ehe proof

To require

them to inquire

which wilk deprive plainriffs

fair nor jusc.

refore, request that the subpoenae of SenaEors

be quashed.

rhis 30 day of December, 1981.

/1r"/* / A/^^^
v. !s vVrtrtlC/ Vl@U

LESLIE J. WINNER
Chambers, Ferguson, Watt, Wa11as,

Adkins & Fuller, P.A.
Suite 730 East Indepence PLaza
951 Sourh Independence Boulevard
CharloEte, North Carolina 28202
704/ 375-846L

Atcorneys for Plainriffs

Inc. v CharloEte, 268 N.C. 577 (1966), ciEed by

-L2-



Response

ive For

hereof

a posL

custody

SERVICE

foregoing Ptaintiffs'
nae Or In The Alternat
es by placing a copy r

y addressed wrapper in
he exclusive care and

addressed Eo:

. Jerris Leonard
0 17rh Sr. NW
ite 1020
shington, DC 20006

,l
I

I

| .u*rrFrcArE oFl-
certify rhaE l, n"r" served rhe

ndants' Mori{" r" Quash Subpoe

cEive Order 
fn 

aff other parri
d in a nostafe prepaid properl
or official 

l"rository-under 
r

United Stare] Posral Service,

ames Wallace,l lr. Mr
Eorney Genera[-'s 0ffice 90Office Box 6{9 Su
Bh, NC 276021 Wa

Ls 40 a.y lor December, 1981

IlE
I

I

l1
I

I

I

I

I

I

I

I

I

I

I

I

| 
-',-

I

I

I
To Defe

A ProEe

enclo se

office

of Ehe

Mr. J
NC AI
Po sE
Ralei

Th

-t --:
\' i'



.>i '-

UNI

EASTER

Helen
Wa1la

IN
D STATES

roR
DISTRICT

RALEIGH

THE
DISTRICT COURT

THE
OF NORTH CAROLINA
DlVISION

F TtE, D
il[L] t tl 1981

J. RICH LEONARD, CLERI(
U. S. DIIITI1ICT COURT

E. D|ST. tlo. CAR.

MLPH GINGLES, et

v.

RUFUS EDMISTEN, €t

NOTICE OF POSTPONEMENT
OF DEPOSITION

TO: Senator
Senator
James M.

fendants.

Marsha 1 Rauch
rvl-n

e, Jr.

,e above captioned action hereby gives notice

of Senators Marshall Rauch and Helen

be taken on December L7, 1981, are postponed

he Court shall rule on Defendants' Motion

Plaintiff in t
that the deposition

Marvin, scheduled t
until such time as

to Quesh Srrbpoenae

This 17th day

*F. 7at'ior".i c"r,"t
PdsV office Box 629
Rhl4igh, North Caro

r in the Alternative For a Protective Order.

f December, 1981.

l,h*

Chambers , Ferguson, I,latt , Wallas ,
Adkins & Fuller, P.A.

Suite 730 East Independence PLaza
951 South Independence Boulevard
Charlotte, North Carolina 28202
704/ 37s-846L

Attorney for Plaintiff

0ffice
27 602

Attorney for Defe

ina