Correspondence from Pamela Karlan to William P. Quigley, Esq. Re Chisom v. Edwards

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U. RICH IJONARD, r,-eRh
I.|, S. DISTRICT COURT

E DIST. NO. CAR.RALPB GINGLES, et a1.,

Plaintiffs
vs.

RUPUS EDI'!ISTEIi, et al.,
Defendants

NO.81-803-crv-5

RDERI

This action brought by btack citizens of North carorina char-
lenging the apportionment of the North Carolina General Assembly anil
the unitetl states congressional d.istricts in North carolina is before
the court f,or a ruling on defendants I motion to guash subpoenae or in
the aLternative for a protective order. On Decernber 3, 19g1, plain_
tiffs noti-ced the depositions of and subpoenaed senator Marshall
Rauch, the chalrman of tbe Norttr carolina senaters committee on

r,egisrative Redlistricting, and senator llelen Marvin, ttre chairman of
the North carorina senate's conurittee on congressionar Redistricting.
Defend,ants have moved to quash the subpoenae on the g:rounds that the
testimony sought is irrelevant arid privileged. rn lieu of an order
quashing the subpoenae, defendants seek a prbtective oider.d"irecting
that the transcripts be sealed and opened only upon court order.
Plaintiffs oppose the motion to guash but have not responded specifi-
calIy to the motion for a protective order.

The testimony sought is plainly naterial to questions presented

in ttris litigation. rn order to prevail on at least one of their
clairns, plaintiffs must show t}rat the reapportionnent plans were

conceived or maintained with a puryose to discrininate. city of
llobile v. yolden, 446 U.S. 55 (1990). Ihe matters concerning which
testimony is sought, including the sequence of events leading up tc
the adoption of the apportionment prans, departures from the normal
procedural sequence, the criteria considered important in the appor_

ti'onment decision, and contemporaly statements by members of ttre

legislature, are all relevant to the determination of whether an

invidious discriminatoly purpose 'ras a motivating factor in ttre



1T

decision. Village of Arli.ngton Heights v. Metropolitan llousing

Developmen! Corporation, 429 V.S. 252, 267-268 (1977). In general,

without addressJ.ng any particular question which night be asked during

the depositions, the matters sought are material and relevan!.

Ttre "legislative pri.vilege" asserted on the Senators' behalf does

not prohibit their depositions here. fhey are not parties to tbis

litigation and are in no way being made personally to answer for their

statements during legislative debate. @., *-, Dombrowski v.

Eastland, 387 U.S. 82 (1957). Because federal law supplies ttre rule

of decision in this case, the question of the privilege of a witness

is "governed by the principles of the conunon larv as they may be inter-

preted by the courts of the United States in the light of reason and

experience.' F.R.Evid. 501. No federal statute or constitutional

provision establishes such a privilege for state legislators, nor does

the federal connon 1aw. See United States v. Gillock, 445 U.s. 360

(1980). It is clear that principles.of federalism and comity also do

not prevent the testimony sought here. See Uniteil States L qllgck,

supra; ilordan v. Butcheson, 323 F.2d 597 (4th Cir. 1953). Cf.,

Eerbert v. Lando, 44I U.S. 153 (1979)

Por these reasons, the motj.on to quash must be denied. In an

effort "to insure legistative independence,' s!!g] States v. GilIock,

.ggpra, 445 U.S. at 37I, and to minimize any possible chilling effect

on legislative debate, the court will grant defendantsr nlction for a

protective order and direct that the transcripts of the dePositions be

sealed upon filint "::t"::Jr:t 
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January 5, 1982.

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v.\.

STATES DISTRICT .'UDGE

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J. Rich Leonarol Y'lll^^,,*

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