Order

    ,^.t

IN THE UNITED STATES DISTRICT
FOR THE EASTERT'I DTSTRICT OF NORTH

RALEIGH DIVISIO}J

RALPH GINGLES, et dI.,

Plainti ffs

VS.

RUFUS EDI{ISTEI.I , €t aI.,

De fendants

FILED
COUST
CARoLTNA lJAt{ 5 1gg2

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

E. DIST. NO. CAR.

NO.81-803-CrV-5

9BPEE

This 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
,r$

the court for a ruling on defendants' motion to quash st:bpoenae or in /{',', i
the alternative for a protective order. On December 3, 198I, plain- '

tiffs noticed the depositions of and subpoenaed Senator Marshall

Rauch, the Chairman of the North Carolina Senaters Committee on

Legislative Redistricting, and Senator He1en Marvin, the Chairman of .:

the North Carolina Senaters Cormittee 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 order

quashing ttre subpoenae, def endants seek a protective 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 motiotl 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 their

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
H

testimony is sought, including the sequence of events }eading up to

the adoption of the apportionment,'pf ans, departures from the normal

procedural seguence, 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 vras a motivating factor in ttre



decision. ViIIage of Arlington Heights v. Metropolitan llousing
Developmen! Corporation, 429 U.S. 252, 267-268 (19.77). fn general,

without addressj-ng any particular guestion 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

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

statements during legislative debate. Compare, *_, 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 conrmon larv as they may be inter-

preted by the courts of the United States in the Iight. of reason and

experience . " r' . R. Evid. 50 1. No f ederal statute 'or cons titutional

provisj.crn establishes such a privilege for state legislatorsr rlor does

the federal common law. See Unitecl States v. Gill-ock, 445 U.S. 350

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

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

Herbert v. Lando, 44L U.S. 153 (1979)-

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

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

.supm., 445 U.S. at 3'tl-, and to minimize any possible chilling effect

on 1egislative debate, the court will grant defendants' motion for a

protective order and direct that the transcripts of the depositions be

sealed upon filing with the court.

SO ORDERED.

t-

F. T. DUPREE,
UNITED STATBS

JR.
DISTRICT JUDGE

January 5, L982.

I certfi the foregoingi-t^*"3'ill'
:ffi':Ydi'-oPi ot nt, original

l. ni.n Leonard' Clerk

Page 2

DePuU Clerlt