Plaintiffs' Response to Defendants' Motion to Quash Subpoena of in the Alternative for a Protective Order
Public Court Documents
December 30, 1981

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Case Files, Thornburg v. Gingles Hardbacks, Briefs, and Trial Transcript. Plaintiffs' Response to Defendants' Motion to Quash Subpoena of in the Alternative for a Protective Order, 1981. 963592cd-d292-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/8b67695f-52f3-4bba-9648-9da03c14e4b1/plaintiffs-response-to-defendants-motion-to-quash-subpoena-of-in-the-alternative-for-a-protective-order. Accessed May 18, 2025.
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EA RALPH GINGLES, et a Plai v. RUFUS EDMISTEN, eI Defe Plaintiffs, bl action to enforce t sentation. They as Amendments to the U of the VoEing Right and 1973c ("The VoE of the North Caroli Congressional distr Ehe apportionments denying black citiz and Ehat Ehe Genera person-one voEe" pr Discovery has noticed the deposiE Ehe Chairman of the lative Redisrrictin rhe Norrh Carolina The subpoenae reque DocumenEs of a which relaEe E Session of the IN THE UNITED STATES DISTRICT COURT FOR THE RN DISTRICT OF NORTH CAROLINA MLEIGH DIVISION N0. 8I-803-CrV-5 Eiffs, PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION TO QUASH SUBPOENAE OR IN THE ALTERNA- TIVE FOR A PROTECTIVE ORDER1., dant s . I. Introduct ion ck ciEizens of North Carolina, bring this ir right to vole and to have equal repre- erE claims under the Fourteenth and Fifteenth ited States ConstiEution and under $S2 and 5 Act of 1965, 3S amended, 42 U.S.C. S$f973 g Rights Ac.t"), challenging the apportionmenE General Assembly and the UniEed StaEes cEs in NorEh Carolina. Plaintiffs allege that re adopted with the purpose and effect of ns Ehe right Eo use Eheir voEes effectively Assembly apportionments violate the "one visions of Ehe equal protecEion clause. onmenced. On December 3, 1981, plaintiffs ons of and subpoenaed Senator Marshall Rauch, Norrh Carolina SenaEe's Comnirtee on Legis- and Senator'Helen Marvin, Ehe Chairman of naEe's Commircee on Congressional RedisEricEing. E thaE the senaEors bring to che depositions: y kind which you have in your possession Ehe adopEion of SB 3f3 t87l during Ehe 1981 NorEh Carolina General Assembly. This request inclu memoranda or o any plan for a I Congres s ional Defendants mov neither Senator can mony of both Senato Defendants' mo Eions. Plaintiffs Eiffs had taken the fo Ilowing : 1. The natu RedisEricting Cornmi 2. The sequ Ehe redisEricEing 1 3. -- Normal pr 4. 5. 6. The crite FacEors n The exist from normal; 7. The exist cial records which or whole Senate deb 8. Their k bers of the legisla proposed apportio 9. The exisE paragraph 8 above; 10. The exisr involved in the pro apporE ionment s . Because Ehe Se commiEEees which we a recommended appor has knowledge relev s but is not limited to correspondence, er writings proposing or objecting to portionment of North Carolina's Senate districts or any criteria therefore. to quash the subpoenae on the grounds that give any relevant testimony and that a1l testi- s is privileged. Plainriffs oppose Ehis motion. ion to quash is an objection to the entire deposi- have not- asked particular quesEions. If plain- depositions, the inquiry would have included the e of Ehe Senatorrs role as Chairman of a tee; nce of events which lead to the enacEment of gislat ion; cedures for enacting Ehis type of legislation; ia adopted by the redistricting cournittees; rmally consiclered imporEanE in redisEricLing; nce. of any substantive or procedural departures nce of.documenEs, official records, oE unoffi- ontain Ehe substance of conuniEEee, subcommiEtee l-a. ledge of the conEemporary staEements by mem- ure.of the reasons for adopEing or rejecEing nE plans; nce of wiEnesses to statements as described in nd nce of ocher wiEnesses who observed ess fhar led Eo the enactment of the or were challenged ators were the Chairmen of the redisCricCing e responsible for reporEing to Ehe full Senate ionmenE for enactment, plainciffs believe each nt Eo Ehese inquiries. -2- fs' allegations is that these apporLionments them on the basis of race in violation of clause of the Fourteenth Amendment. In this claim, plaintiffs musE show that che plans were conceive or maintained wiEh a purpose to discriminate. Cicy of Mobile v. lden, 446 U.S. 55 (1980); Village of Arlinsron Heights v. Iletropo tan Housing Corp., 429 U.S. 252 (L917); Washington v. Davi , 426 u.s. 229 (1976). In addition, is "rgu"b1" Ehat plainLiffs must show purpose in order to prevail in their claims under 52 Act. See Mobile v. Bolden, supra, Washington _, (4th Cir., #80-1277, November L7, 1981). rE in Arlington Heights, supra, noEed Ehat invidious discriminatory purpose was a moti- v. Finley, F.2 One of plaint discriminate again the equal protecEi order Eo prevail o Eo diluEe black vot of Ehe Voting Righr The Supreme Co "Determining wheEhe vating factor deman and direct evidence Among the subjects the Supreme CourE a l. The speci leilged de Departure Substanti importanE Conc empor SenaEors Rauch relevanE to each of recognized, "In so called Eo the stand official action, . .. from normal departures and s a sensitive inquiry inEo such circumstantial f intent as may be available." 429 U.S. aE 266. f proper inquiry for proving inEenr lisred by e: ic sequence tof evenEs leading up Lo Ehe chal- is ion; procedural sequencei. from factors usually considered body, mir ry staEemenEs by members of the decisionmaking tes of its meetings, ots reports. Arlin Eon Heiehts v l'leEro Housing Corp . , 429 U. S. aE 257 -268. See also McMillan v. Es ernLia Co., 638 F.2d L239 (5rh Cir. 1981); U.S. v. Citv of Par , 494 F. Supp. 1049, 1054 (N.D. Oh. 1980). and }tarvin would be expecEed Eo give tesEimony these inquiries. In addition, the Supreme Court exrraordinary insEances Ehe members might be aE crial to Eestify concerning the purpose of " Arlington Heights, supra. In addition, in their Answer E of the General Ass rational sEate po1 "one person-one vo of SenaEor Rauch, Eive Redistricting, staEe policies tha Senate plan and wo Ehat meE Ehese pol These deposiEi under Rule s 26 and under the Federal R II. Rule 501 of th Einent parE: ExcepL as othe UniEed SEares prescribed by authority, th Stace, ots pol by che princi preted by the reason and e This rule app Rule ll0l(c). Thu Rauch and I'larvin i che Federal Rules is covered by Rule q45 u.s. 360, 366 ( Defendants as and Debate Clause I{owever, the Speec fendanLs have raised as the Fourth Defense , "The deviations in the 1981 Apportionment ly were unavoidable and are justified by ies. " This defense relates to plaintiffsi " claim. If allowed Eo take the deposition airman of Ehe SenaEe Committee on Legisla- plaintiffs would inquire abouE Ehe rational caused the populaEion deviations in the d inquire-about the exisEence of oEher plans ies but had lorver population deviations. ns and these lines of inquiry are permiEted 3 of Ehe Federal Rules of Civil procedure ancl 1es of Evidence. E TESTIMONY OF SENATORS RAUCH D },IARVIN IS NOT PRIVILEGED. Federal Rules of Evidence provides, in per- ise required by Ehe ConsEitution of Ehe r provided by Acc of Congress or in rules he Supreme Court pursuant to statutory privilege of a witness, person, gov€Enment, ical subdivision thereof shall be governed les of Ehe common law as Ehey may be inEer- ourts of the United Suaces in Ehe light of rlence. ies to discovery as well as Eo trial. F.R.Ev., , in order to determine if the testimony of SenaEors privileged within Ehe meaning of Rule 26(b) of f Civil Procedure, Ehe Court musE determine if ic 501 of Ehe Rules of Evidence See U.S. v. Gillock, r980 ) rE a legislacive f Arricle I, 56 of and Debare Clause privilege parallel to rhe Speech the Uniced Scaces ConsEiEuEion. applies only Eo members of che United States Cong sEate statute esta the privilege unde at 368, 374. Defe Srates Constitutio esEablishes a priv Eifying. Thus the vileged "by the pr by Ehe courEs of t F.R.Ev., Rule 501. extended Eo Lhe te of none. U.S. v. defendants cite in in which a state tion, and- the Court doing legislative dicca, largely irr and Debate Clause helpful to analyze IEs history is seE L. Ed . 377 ( 188r) . mentary provision Ilembers of Parlia t,ranslaEed into Eh clause has thro pur I. ss, not Eo state legislators. Nor does the lishing the privilege in state courts establish Ehe Federal Rules. U.S. v. Gillock, 448 U.S. dants do not cite any provision of the United , Act of Congress, or Supreme Court rule which lege vrhich exempts state legislators from tes- urt must determine if the testimony is pri- ciples of coutrnon law as they may be inEerpreted United States in light of reason and experience. Defendants ci no case in which legislative privilege is imony of state legislators, and plaintiffs know ndel, 415 F.Supp. L025 (D.Md. L976), which support of Ehe evidenEary privilege, is a case rnor asserted iunnunity from criminal prosecu- eld thac Ehere was no inrnunity for governors ts. The language quoted by defendants is only evant to Ehe issue before that Court. In order to ermine whether a privilege parallel to the Speech uld be created for state legislaEors, it is Ehe purposes of the Speech and Debate Clause. ut in Kilbourn v. Thompson, 103 U.S. 168, 26 hostile j he clause was patterned afEer an English parlia- ich was designed Eo stop the crown from imprisoning E for seditious libel. 26 L.Ed ar 390-391. As American republican form of government, Ehe ses: Ehe members of Ehe co-equal legislauive the federal governmenE from prosecuEion bly hostile executive before a possibly diciary, Kilbourn v. Thompson, supra; and e Ehe independence of the legislacure by e members from the burden of defending in court and of ulrimace liabiliry. v. Eastland, 387 U.S. 82 (L961). To prese freeing t tl To prote branch o by a pos chemse lv Dombrows ) -5- Neither of th the Court. Since a state branches of the fe apply. The Supre supra, in holding t federal prosecutio and thar he had no his legislaEive ac similar in scope t reaching the concl The first rat powers doctri lege to stace It requires EhaL the Feder to Ehe states, monarchs exerc however, in t Federal Gover dictates that state exercis we do not hav and staEe sys or DebaEe CIa protecC feder Since a staEe federal legislacur Federal CourEs, th has no relation Eo The second pu thau che legislaco licy. For rhis pr e reason is applicable to the motion before egislature is not one of the three co-equal ral government, the first reason does not CourE reached Lhis conclusion in U.S. v. Gillock, t a state legislator is not irnmune from for crimes committed in his legislative capacity rivilege against the admission into evidence of . Both would have been precluded if a privilege the Speech and Debate Clause applied. In ion the Court said: nale, r€sting solely on the separation-of- , gives no support to the granE of a privi- egislaEors in federal criminal prosecutions. ciEation of authorities for the proposition I GovernmenE has limited powers wirh respect unlike the unfettered authority which English ised over the Parliament. By the same token, se .areas whEte the Constitution grants the nt the power to acL, the Supremacy Clause federal enactmencs will prevail over competing of power. Thus, under our federal structure, che srruggles for power between Ehe federal s such as inspired the need for the Speech e as a resLrainE on the Federal Executive to legislators. 445 U.S. at 370. egislacure is not a co-equal branch wirh Ehe which passed the Voring Righrs Act or wich the first reason for rhe Speech and Debace Clause his acEion. ose for che Speech and Debare Clause is to assure can be free to speek ouc rvithouc fcar of liabi- osicion defendanEs cite Tu@, 341 -6- U.S. 367 (195I) an F.2d 4 (2d Cir. 19 However, in b Ehe defendant. Th rather a common 1 Eecting legislaci are relieved of t McCormack, 395 U.S Plaintiffs do Marvin 1iable. Ne tion of having the seek is to discove Ehe claims or defe In addition, money damages. It might inhibic a le noE reasonable tha stallce of legislaE acEing in the inCe seek money damages I'larvin. Furthermo enjoin a legislati out thac the plain comply with Ehe le defense in contemp asserE their claim have no other reme Finally, the ancitheEical Eo th che Vocing Rights acCions rvhich sCat v. Katzenbach, 383 After rejecci legislacive priof Ehe doctrine of com -7- Star Distributors Ltd. v. I,larino, 613 0). th of those actions the state legislator was cases discussed not an evidentiary privilege but irununity from liability. The purpose of pro- independence is fully protected if legislators burden of defending Ehemselves. powell v. 486, 501-506 (1969). not seek td hold either Senator Rauch Eher is a defendanc. Neither is put urden of defending the acrion. A11 whac evidence each has thac eicher . s. 30r ( 1966) . boch the separation of lege, the Supreme Court ty. The Courr scaced: or Senator ].n a Posl- p laint iffs support s Tenney, supra, the legislaEor was sued for is reasonable Ehat possible financial liabitity islator from acting his conscience. It is merely having Eo disclose Ehe process or sub- actions will prevenE a legislator from sEs of the y'eople. Plainciffs herein do noE from anyone, much less SenaEor Rauch or Senator , in Star Distributors, supra, dt acEion Eo investigation, the Court was careful to poinE iff had another remedy available; to refuse to islacive subpoena and asserE the claim as a proceedings. In Ehis case, plaintiffs must in a judicial proceeding or not ac all. They cion of independence of state legislatures is purpose of Ehe FourEeenth AmentmenE and of t, boch of which have the purpose of limiring the may cake. See, €.8., State of South Carolina porvers and independence in Gillock also considered We conclude, comiEy comman close that wh stake, zts in statutes, com erefore, that although principles careful consideration, our cases e important federal interests are e enforcement of federal criminal ty yields. of dis - at in Jordan v. Hutchi son, 323 F.2d 597, 600-601 (Arfr Cir. 1973), in holding EhaE pl Here we belie privilege for acEs would im Federal Gover with only spe process. 445 In Gillock th a criminal sEatute. ConstiEuEion and o This was -recognize againsE the members Icgislature seekin racially moEivated The CourE sEated, " for sraEe inscituti sion of citizen's ciffsr.rereallowed danCs. The intrus In addition, in an action under is co be arvarded hi i988. The reason recognized the impo as privaEe aEtorney Ehe Conscicution. that recognition tate legislators ir uhe legiuimate nt in enforcing lative benefit to of an evidentiary for their legislative interest of the its criminal statutes the state legislaEive . S. at 373. importanE federal interest was enforcement of However, enforcemenE of Ehe United States the VoEing Rights Act is of equal importance. by Ehe Court of Appeals for the FourEh Circuit ntiffs, black lawyers, could maintain an action of an investri.gatory commiEtee of the Virginia Eo enjoin the legislaEors from engaging in arassment of plaintiffs and their clienEs. he concepE of federalism, i.e. federal respect DS, will not be permitted to .shield an inva- nsEitutional rights." Id at 601. Thus plain- o maintain an action wirh legislators as defen- n here is, of course, much more minor. ngress has provided chat a prevailing plaintiff he Voting Righrs AcE or under 42 U.S.C. S1983 attorney's fees. 42 U.S.C. SSf9731(e) and r che fee award provision is that Congress Eance of encouraging private cirizens, acEing general, Eo enforce the VoEing Rights Act and iddell v. Nacional Democraric Part -8- , 624 F.2d 539, 543 (5tn Cir. trative News 5908, represented are cen DefendanEs' qu (1978), Eo rhe effe should not be great inapposice. In But tors should have Br an individual's con straEors. The ques 42 U.S.C. S1983 an the Fourth and Fifr The Court held that That is a far cry Congressional imrmrn provision, is compa creaEure of either law. Even if Ehere tors, in this case juscice. The courE officials are in de rhe extenE necessar quesEion. see, e. g U.S. v. I'landeI, 4l However, in E gaEion of Ehe truE to prove an essent ParE I, above, dis clement of ac least To hold one Ehe on necessary and on t is to make a mocke Act. 980); 5 U.S. Code Congressional and Adminis- 910 (1976). The right ro vore and Eo be fairly ral to our democratic government. te from Bucz V_- lsqnomotr, 428 U. S. 478, 504 t that the irmnunity of a federal defendanr r than the immuniLy of a state defendant, is the question was whether federal administra- ater innunity from liability for invading titutional rights than do similar sEate admini- ion involved comparing Ehe protection of the Fourteenth Amendment to the protection of Amendments to Ehe UniEed States Constitution. the two could noE be rationally disEinguished. the situation here in which the U.S. ty, created by an unambiguous consEitufional ed to the sEate legislator's privilege, a tate statute or unprecedenEed federal common s an evidentiary privilege for state legisla- t musE give way i-n Ehe interest of Eruth and have recognized that privileges of governmenE ogaLion of the EruCh and must extend only to to protect Ehe independence of the branch in U.S. v. Nixon, 418 U.S. 683, 710 (L974)t Supp. at 1030. case privilege rvould be more than in dero- ; it would prevenc plaintiffs from being able I elemenE of their claims. As discussed in iminatory legislative purpose is a necessary one and possibly Ewo of plainfiffs' claims. hand chat evidence of legislacive purpose is other Ehat ic is privileged and inadmissible of both the Constitution and rhe Voting Righrs -9- This reasoning Herbert v. Lando, 4 thaE a television n privilege not to di processes in a libe recognized it would prove actual malice clude him from inqu Eion. Id. aE 170. The Court note unfair Eo allow def plaintiff from inqu fal sehood. Thus the Court even one rooted in stances, to a demon In this case, sEraEed a specific Marvin have which is, however, even s Herbert, defendanEs Secretary of Transp for choosing Eo put under Ehe circumsta reasoned chat alcho was no formal recor case che privilege, state statute. The Supreme Co i\uthoritv, supra, r EesEimony about mot Procecc OverEon Par rt in Arlington Heights v. MeEropoliEan Housing v. Volpe, 401 U.S. 402 (f971). 429 U.S. aE 268, n. I8. In Overcon ark che Supreme Court considered whether Ehe was recognized by the Supreme Court in I U.S. 153 (f979). In Herbert the Court held \^rs editor could not claim his First Amendment close his sources, motivations, and thought suit broughc 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 defendanEs' knowledge and motiva- , in addition, that it was particularly ndants to testify to good faith and preclude ring inEo direcE evidence of known or reckless concluded that an evidenriary privilege, the ConsEituEion, musE yield, in proper circum- trated specific need for evidence. s in Herbert y_:_lg!dq, plainriffs have demon- eed for Ehe evidence which Senators Rauch and y esEablish discriminatory purpose. This case ronger than Herberr v. Lando because, in asserted a ConsEituEional privilege. In Ehis if one exisEs, comes only from common law or cognized thaC in some circumsEances a member's vaEion could be privileged and cired Citizens Eo rtation could be examined as Eo his reasons a highway Ehrough a park. The Courc held thac ces in thac case he could be examined. The Court gh ir was generally Eo be avoided, when Ehere deEailing rhe reasons for rhe decision, iE is ne the mental process of decisionmakers. Id. aC 420.permissible Eo exa -10- In chis case, record adequate to the legislaEors. discovery regardi to the subject mat for objecEion Ehat rhe rrial if Ehe i Eo lead to the dis defendants nrusE sho irrelevanE and coul view of Ehe broad t motion will ordinar Practice and Proce The tesEimony matter. Each senat As discussed in Par knowledge of the pr Ehe criEeria used b dered but rejecred, che reasons that Eh plainriffs challeng supra, and Village Corporacion, supra, cricical Eo plainti Defendancs ass records speak for E EesEimony is, there records which conta floor debate, Ehe c posed apportionmenE s in Overton Park, supra, there is no formal termine the purpose, or even the process, of direct examination is, therefore, permissible. III. THE II.IONY OF SENATORS RAUCH AND MARVIN IS RELEV TO THE SUBJECT MATTER OF THE ACTION. Rule 26(b) pr ides in pertinent part, "Parties may obLain any matter, not privleged, which is relevant r in the pending acLion, ... IE is not ground he information sought will be inadmissible at ormaEion sought appears reasonably calculated very of admissible evidence." Thus, in orde to be enf if led to prevent the entire depositi-on, Ehat the "informaEion sought was wholly have no possible bearing on the issue, but st of relevancy. at the discovery stage such Iy be denied. " Wright and Miller, 8 Federal re S2037. f the Ei,ro senaEors is relevant to the subjecu r was Chairman of a RedistricEing Cournittee. . !' I above, these senators are believed to have cedures used for developing the apporEionment,s, Ehe conrnittees, other plans which were consi- and the documents and stat,ements which indicate General Assembly adopted the proposals which Under Ehe Supr Court decisions in City of Mobile v. Bolden, f Arlingcoq Heights v. Metropolitan Housin chis information is noE simply relevant, iE is fs' abilicy to prove their claims. rE thaE the legislarive hisEory and official emselves and chat the individual senaEors' ore, irrelevanc. Plainciffs know of no official n any committee proceediogs, Ehe conE,ents of any iceria used by Ehe comrnitEees, a lisu of pro- available Eo bur rejected by Ehe committees, ln a -tI- asinD&W is relevant. or the contemporane these records exist Ehem so that plaint Finally, defen is not relevant whe to use the testimon defendanrs. Rathe purpose. See Arli Inc. Charlotte, 268 N.C. 577 (1966), cired by us statements of the members. If, however, perhaps Senators Rauch and Marvin can describe ffs may discover them. ants assert that the testimony of legislators analyzing legislation. Plaintiffs do not seek to interprer any ambiguity in the legislation, , plaintiffs seek the testimony to establish ron Heights, supra. To this end, the testimony "Exceptions to Iightly created nor gaEion of the searc "These rules s tration, . .. to the ceedings justly deE The search for Eo ascert a privile of one of Lhe neces plainEiffs Eo prove abouE iE is neither Plainriffs, th Rauch and Marvin no ary elemenEs of their claims. purpose and to refuse to allow IV. CONCLUSION the demand for every man's evidence are not expansively construed, for Ehey are in dero- for truEh." Herbert v. Lando, 441 U.S. at 170. all be consErued to secure fairness in adminis- d that the truth may be ascertained or pro- rmined. " Rule L02, F.R.Ev. truth requires that defendants not be allowed of the proof To require Ehem Eo inquire which will deprive plainriffs fair nor just. refore, request that the subpoenae of SenaEors be quashed. rhis '3O aav of December, 1981. LESLIE J. WINNER Chambers, Ferguson, Warr, Wallas, Adkins & Ful1er, P.A. Suite 730 East Indepence PLaza 951 Sourh Independence Boulevard CharlotEe, NorEh Carolina 28202 704/ 37 5-846L Attorneys for Plainriffs -L2- I certify rha To Defendants' Mot A ProEective Order enclosed in a post office or official of the United StaE Mr. James Wallac NC Attorney Gener Post Office Box Raleigh, NC 2760 This 70 aa CERTIFICATE OF SERVICE r have served Ehe foregoing plaintiffs' Response n To Quash Subpoenae Or In The Alternative For n all other parties by placing a copy thereof e prepaid properly addressed wrapper in a post epository under the exclusive care and custody PoscaI Service, addressed to: Jr. I's Office 9 I^Iashington, DC 20006 of December, 198f Mr. Jerris Leonard 900 tTuh Sr. NW Suite 1020 -13-