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RALEIGH DIVTSION

U, RICH LEONARD, v-tsRh
U, S. DISTRICT COURT

E DIST. NO. CAR.
RALPH GINGLES, €t a1.,

Plaintiffs

vs.

RUFUS EnI'lISTElil, et aI.,

De fendants

NO.81-803-CrV-5

ORDER

Ittis action brought by black citizens of North Carolina chal-

lenging the apportionment of the North Carolina General Assembly and

the United States Congressional districts in North Carolina is before

the court for a ruling on defendants I motion to quash subpoenae or in

the alternative for a protective order. On December 3, 1981, plain-

tiffs noticed the depositions of and subpoenaed Senator ltlarshall

Rauch, the Chairman of the North Carolina Senatets Committee on

Legislative Redistricting, and Senator Helen Marvin, the Chairman of

the North Carolina Senaters Conrnittee on Congressional Redistricting.

Defendants have moved to quash the subpoenae on the grounds that the

testimony sought is irrelevant and privileged. In lieu of an ord,er

quashing the subpoenae, defendants seek a prbtective oider directing

that the transcripts be sealed and opened only upon court order.

Plaintiffs oppose the motion to quash but have not responded specifi-

cally to the motion for a protective order.

The testimony sought is plainly material to questions presented

in this litigation. In order to prevail on at least one of ttreir

claims, plaintiffs must show that the reapportionment plans were

conceived or maintained with a purpose to discriminate. City of

Mobile v. Bolden, 446 U.S. 55 (1980). The matters concerning which

testimony is sought, including the sequence of events leading up to

the adoption of the apportionment plans, departures from the normal

procedural sequence, the criteria considered important in the aPPor-

tionment decision, and contemporary statements by members of the

legislature, are all relevant to the determination of whether an

invidious discriminatory purpose was a motivating factor in the



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decision. Village of Arlington Heights v. Metropolitan Housing

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

without addressing any particular question which might be asked during

the depositions, the matters sought are material and relevant.

The "legislative privilege" asserted on the Senators' behalf does

not prohibit their depositions here. They are not parties to this

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

statements during legislative debate. Compare, e.g. , Dombrowski v.

Eastland, 387 U.S. 82 (1967). Because federal law supplies the rule

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

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

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

experience." F.R.Evid. 50I. No federal statute'or constitutional

provisj.on establishes such a privilege for state legislators, nor does

the federal common }aw. See Unltecl States v. Gillock, 445 U.S. 350

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

not prevent the testimony sought here. See United States v. GiIIock,

supra; Jordan v. Hutcheson, 323 F.2d 597 (4th Cir- 1963) - E ,

Herbert v. Lando, 44:-- U.S. I53 (1979).

For these reasons, the motion to quash must be denied. In an

effort "to insure legislative independencer" United States v. Gillock,

supra, 445 U.S. at 37L, and to minirnize any possible chilling effect

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

protective order and direct that the transcripts of the depositions be

sealed upon filing with the court.

SO ORDERED.

E, JR.
I.'NITED STATES DISTRICT JUDGE

January 5,1982.

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