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RALEIGH DIVTSION
U, RICH I-EONARD, v-ERh
U, S. DISTRICT COURT

E DIST. NO. CAR.
RALPH GINGLES, €t d1.,

Plaintiffs

vs.

RUFUS EDMf STEI{, €t aI. ,

Defendants

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l[Lris action brought by black citizens of North Carolina chal-

Ienging 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 defendantsr 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 l,larshall

Rauch, the Chairman of the North Carolina Senate's Committee on

Legislative Redistricting, and Senator Helen Marvin, the Chairman of

the North Carolina Senaters Conunittee on Congressional Redistricting.

Defendants have moved to quash the subpoenae on the grounds ttrat Lhe

testimony sought is irrelevant and privileged. In lieu of an order

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 guash but have not responded specifi-

ca1ly to the motiotr for a protective order.

The testimony sought is ptainly material to questions presented

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

claims, plaintiffs must show ttrat 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 pIans, departures ito* the normal

procedural sequence, the criteria considered important in ttre appor-

tionment decision, and contemporary statements by members of the

legislaturer Er€ all relevant to the determination of whether an

invidious discriminatory purpose $tas a motivating factor in ttre

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.l decision. Village of Arlington Heights v. MetroPolitan Housing

Developmeng CorPoration, 429 U.S.252,267-268 (L977). 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

litigation 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. 501. No federal statute or cons b.itutional

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

the federal common }aw. See United States v. Gil1ock, 445 U.S. 360

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

not prevent the testimony sought here. See United States v. Gil1ock,

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

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,

ap3, 445 U.S. at 37J-, and to minimize any possible chilling effect

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

protective order and direct that the transcripts of the depositions be

sealed upon filing with the court.

SO ORDERED.

DUPREE,
T'NITED STATBS DISTRICT JUDGE

January 5, 1982.

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