Motion to Quash Subpoenae or in the Alternative for a Protective Order; Brief in Support of Defendants' Motion to Quash Subpoenae or in the Alternative for a Protective Order

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IN THE UNTTED STATES DTSTRICT COURT

J. R,CH T,: ;Xi.,Tdf?r?.rT,

MOTTON TO QUASH SUBPOENAE
OR IN THII

ALTER].IATIVE FOR A PROTECTIVE ORDER

FoR rHE totttlX"SlffTffr3lniln*'I{ cARoL*o 
F.' I L E D

crvrl No. 81-8og-qts? 
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RALPH GINGLES, €t aI. ,

Plaintiffs,
v.

RUFUS EDMfSTEN, etc., et a1.,

Defendants.

NoW COME the Defendants, by and through their counsel of record,

and move this Honorable Court for an order guashing the suhS:oenae

and notices to take the depositions of North Carolina Senators Helen

l'larvin and Marshall Rauchr or, in the alternative to enter a protective
order pursuant to Fed. P.. civ. Pro. 26(c) (5) and (6), directing that
the depositions be conducted v.ith no one prcsent except persons des-

ignated hy the Court and that the depositrons he sealed and subsequently

opened only b), Court Order. ''

The Defendants state the follolvinq grounds in support of their
Motion:

1. The leqislative acts and words of the prospective deponents
a

are prj-vileged and thus outside the scope of discovery perm5.tted

by Fed. R. Civ. Pro. 26 (b) (1). Senators Helen Marvin and llarshall
Rauch are members of the }Iorth Carolina General Assembly. The Speech

ol: Debate provision of tke North Carolina General Statutes affords
leqislators a privilege to refuse to ansvrer anv fluestion concerning

legislative acts in any proceeding outside of the legislature.
2. The legislative history speaks.for itself, and inquiry into

the intent of individual legislators is irrelevant and beyond the

scope of discovery as described in Fed. R. Civ. Pro. 26(b) (1).

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crvrL No. 81-803-(}Fe'l 

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Nol\7 coME the Defendants, b), and throuoh their counsel of record,
and mc\-e this Honorat,le Court for an order guashinq the suhpoenae
and notices to take the depositions of North Carolina senators Helen
I{:rvin atrd r'hrshal I \'rr.tt'tt, o\r, in t t,.e :r1t orn.rt ivrr to ottt.er s pto[eetlvg
order pursuant to Fed. p.. Civ. pro. 2G (c) (5) and (6), directing that.
the depositions be conducted rrith no one prcsent except persons des-
ignated by the court and that the deposit'i ons be seared and subsequentry
opened only b), Court Order

The Defendants state the follorving gr,rrl.ra= in support of their
Motion:

1 ' The fegislati-ve acts and words of the prospective deponents
are pri'vileged and thus outside the scope of di-scovery permitted

a

by Fed' R' Civ' Pro. 26(b) (1). senators Helen Marvin and tlarshall
Rauch are members of the llorth carolina Gencrar AssemLrly. The speech
o:: Debate provision of tke North carolina General statutes affords
legisrators a privilege to refuse to ansv,er anv ouestj-on concerning
legislative acts in any proceeding outside of the legisl_ature.

2. The legislative hi_story speaks for. itself, and inquiry into
the intent of individual regislators is irrerevant and beyond the
rtc()l,o rtf t'li t;crr )vnl-y ir,i rjr:rjr_-rilrrtrl in [,.cr]. n. C j v. pro. 26 (h) (l) .

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FTT ED
IN TTIE UNITED STATES DISTRICT COUI1T flTn

FOR THE DASTERN DTSTRTCT OF NORTH CAROLT)'IA -(-t', I 4 lg}l
RALET.H Drvrs'olrur" 

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RALPH GINGLES, €t. a1.,

Plainti ffs ,

v.

RUFUS EDMISTEN, etc., et af.,

Defendants.

BRIEF' IN SUPPOP.T OF DEFENDANTS I

I'IOTION TO qUASH SUBPOENAE OR IN
THE ALTEPNATTVE FOR A PROTECTT\TE ORDER

I.

INTP.ODUCTION

Plaintiffs have subpoenaed Nortir Carolina Senators Helen Marvin

and l4arshal1 P.auch for the purpose of taking their depositj-ons on

December l?, 198I. The prospective de1'ronents, members of- the }Iorth

Carolina General AssembIy, are not parties to thls action. Defendants

contend that the matters about which l4arvin and Rauch rvould be 
.asked

to give testimony are prj-vi1eged, hence non-discoverable under Fed. R.

Civ. Pro. 26(b) (1), and that such matters are irrelevant to the action,

hence also non-<liscoverahle under Fed. P.. Civ. Pro. 26 (b) (1) .

TIIE DOCTRINE OF LEGISLATIVE PRIVILEGE PREVENTS INQUIRY INTO
r,dGfs f,at r ve-AmS-6n rE-r-l,rbTmffi
Rule 26 (b) (1) specifically excludes from the scope of otherlise

discoverable material matters which are privileged. The common-law

doctrine, variously referred to as legislative privilege or legisla-

tive immunity, affords legislators a p::ivilegre to refuse to answer

any questions concerning legislative acts in anv proceeding outside

of the legislature. ges , 415 F-Supp. 1025

(O. Md. I976). This concept is codified in I'1.C. Gen. Stat. 5120-9,

which guarantecs freedom of speech and debate in the legislature and

in the legislative p.o."=".1

l', .)9

]rhe Section reads as follovrs:
,'The members shal1 have ^f reedom of speech and debate in
the General Assembly, and shall not hre liable to impeachment
or qucstion, in any court or place out of the General
Assembly, for vrords therein spoken; and shall be protected
except in cases of crime, frora all arrest and imprisonment,
or attachment of propertY, during the time of their going to,
coming from, ot attending the General Assembly. "

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North Carolina's statutory provision paralleIs the Speech or
Debate Clause of the Federal Constitution (ert. T, 56), as well
as the statutory and constitutional enactments of most other

states. In interpretinq the federal constitutional version of
this doctrine the United State Supreme Court has written:

The reason for the privilege is clear. It i.ras
well summarized by James Wilson an influential
member of the Committee of Detail which r.ras
responsible for the provision in the Federal
Constitution. "In order to enable and encourage
a representative of the public to discharge his
public trust trith firmness and success, it is
indispensably necessary, that he should enjoy
the fullest liberty of speech, and tt.at he
should be protected from the resentment of every
one, however porverful, to vhom the exercise of that
liberty may occasion of fence. " Tenney v. p,roadhove,
341 U.S. 367 (1951) at 372-73 (cltaEions omr.Effil ._-

Legislativo privilege has a substantive as we-l-1 as evidentiary
aspect, and both are founded in the rationale of legislative
integrity and independence, enunciated by the Framers and propounded

two centuries later by the Suprerire Court. The substantive aspec,t

of the doctrine affords legislators immunity from civil anrl criminal
liability arising from legislative proceedinqs. The evidentiary
aspect. affords legislators a privilege to refuse to testify about

legislative acts i.n proceedings outside the legislative haIIs. United
State v. lIandel, supra at 1027.

At issue here -is the evidentiary facet of the privilege and,

specifically, whether such a state-afforderl evidentiary privilege
should have efficacy in the federal courts. It is clear that the

SPeech or Debate Clause of the federal constitution vrould preclude

the deposition of a member of Congress in an analogous situation.
In Brewster v. United States, 408 U.S. 508 (1975), the Court stated,
"It is beyond doubt that the Speech

inquiry into acts that occur j-n the,,, ,Tprocess and into the motivation for

or Debate clause protects against

regular course of the legislative
those acts," 40B U.S. at S2S.



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Defendants acknowledge that even the privilege granted federal
legislators is hrounded by countervailinq considerations, particularly
the need for every man's evidence in federal criminal prosecution.
As Brewster further states, "the privilege is hroad enough to insure
the historic independence of the Legislative Branch . but narrow
enough to guard against the excesses of those who woul<i corrupt the
process by corrupting its memhers.,, 409 u.s. at 525. Defendants

motion attempts, however, to conceal no "corruption,,.
I{ith the boundaries of the federal legislative privilege in

mindr wQ turn to the question of the scope of paral1e1 state privileges.
Whatever thcir extent and range of applicability in state court, the
United States Supreme Court has ruled that state privileges vri1l, &t
times, yeild to overriding federal interests in federal courts.
ufgq Stateg v. 9i11ock, 100 S . Ct. 1185 (f 9BO ) . The Court has

recognized only one federal j-nterest of importance sufficient to
meri-t dispensing with this state-granted privilege: the prosecution
of federal crimes.

The Supreme Court has never sqt:arely adclressed the issue presented
here: ,whether a state legislator's evidentiary privilege remains

intact in federar civil proceedi-ngs. rr @r 9upra,
tl're Court ruled that a legis.l-ator's aglllentavg. irnmunity from suit
withstood the enactment of 42 U.S.C. 51983, and thus state legislators
were not susceptible to suit for r.rords and acts vrithin the purvievr

of the legislative process. Although it deals r+ith the substantive
aspect of the privilegc, Tenney is instructive, insofar as the Court
there gave great deference to the state's own doctrine. Recently,
in Eitea states v. ciloc]!, supra, a criminal case involving the
evidentiary facet of legislative immunity, the Cortrt cited Tenney

for the propositign thEt all federal courts must endeavor to apply
state legislative privilege. In Gillock, horever, the Court ruled



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that the Tennessee speech or Debate clause would not exclude

inquiry into the legislative acts of the defendant-legislator
prosecuted for a federal criminal offense.

Throughout thc supreme court's activity in this fierd no

distinction has been drawn betvreen substantive and evidentiary
applicatj-ons of the privilege for the purpose of determining the

efficacy of legislative privirege in federal court. Thus, the

court's conclusions i" glrfgrx and Tcnney must be read together,
and their comhined effect dictates that the evidentiaryr privilege
granted a legislator by his state remains inviolahle except where

it must yield to the cnforcement of federal criminal statutes.
See Gil-l-ocl: at 1193 .

Unless fedcral criminal prosecution demands othen.zise, "the
rore of the state legislature is entitled to as much judicial
respect as that of Congress . The need for a Conqress vrhich may

act free of interference by the courts is neithe:: more nor less than

the need for an unimpaired state legis1ature." Star Distributors, Ltd

y-:_lggn_g,6l-3 F.2d 4 (1980) at 9. On this fundamental point the

supreme court has recently said, "To create a system in which the
a

Bill of Rights monitors more closely the conduct of state officials
than it does that of federal officials is to stand the constitutional
design on its head." Butz v. Economou, 428 Il.S. 478 (1978) at 504.

In the present civil action, brought by private citizens of
llorth Caro1ina, Legislators llarvin and Rauch are privileged to refuse

to testi-fy concerninq their legislative acts. Principles of comity

and the decided 1aw strongly suggest that federal courts honor this
evidentiary privilege in all civil actions.

IT THE I.TATERIAI SOUGHT TO BE DISCOVERED TS IRRELFVAI.IT.

The North Capoliqa House,

plans chal-lenged in this liti
Senate, and

gation speak

Congressional

for themselves

reapportionmen r

. Insofar as

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the intent of the legislature is in question, the legislative history,
i'e', the contemporaneous record of debate anc enactment, reveals the
legislative intent. The remarks of any singre legislator, even the
sponsor of the bi11, are not controlling in analyzinc legislative
history. , 44L U.S. 2Bt (1929). That
such remarks have any relevance at all precludes that they were made

contemporaneously and constitute part of the record. See United
state v. Gila River pima-I1@community, 5g6 F.2d 2og
(ct' cl-' 1978). This proposition is adhered to even more strongly
by the appellatc courts of North carolina. The North carolina supreme
court, for example, stated the following in D & I^1,-.rnc. v. charlotte,
268 N.C. 577, 581, 151 S.E.2d 24t, 244 (1966):

". l.lore than a hundred years ago this Courtheld that Ino evidence as ta the motives of theLegislature can be heard to give operation to, orto take it from, their acts. . Dral<e v. Drake.15 N.c. 110, 117. The meaning of a sEEEEE-E-il-tlt'intention of the legisrature wtricr, passerl it cannotbe sho.n by the. testimony of a memhlr of the legisra-ture; it 'must be drarvn from the construction oi th;Act itself .' Goins v. Irdr_gr,_frgl11ing School , L6gN.C. 736, 739,-T6- ilE.-TTg,-?-IT:,
The testimony of Marvin and Rauch is

of the peneral Assembly and can have no

Thus, titeir dcpositions are outside thc
discovery.

not relevant to the intent
other discernable relevance.
scope of pcrmissible

IIT. PRESERVATION OF LEGTSry\lryq_JxqIlxliqE!.JcE REQUr RE.s THAT, SHOT.TLDTHE OS]TI ROCF:ED, 
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MU SE.P,

rf the court orders the depositions to proceed, it is imperative
that thc transcripts he sealed and opened only upon court order. The
purpose of legisrative privilege is to "avoid. intrusion by the
Executive or the Judiciary into the affairs of a co-equal hranch,
and - to protect legislative inrlependence." Gillock at 1I9I.

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Legislators must feel free to discuss and ponder the plethora

of economic, social, and political considerations which enter into
legislative decision-making. Fear of subsequent disclosure of an

individual legislator's intent or rationale rvould ch111 <lebate and

destroy independence of thought and vote. In this case, sensitive

political considerations might be recklessly exposed by the Plaintiff's
proposed discovery. To maintain free expression of j-deas vrithin the

General Assembly, as well as to protect those ideas already freely

cxpressed therein, a protecti-ve order must issue, if the subpoenae

are not quashedr ds they should be.

Respectfully submitted, this the lLday of December, 1981.

Raleigh, I'Iorth Carolina 27602
Telephone: (919) 733-3377

Norma Harrell
Tiare Smi1e17
Assistant A.ttorneys General

John Lassiter
Associate Attorney General

Attorneys for Defendants

Of Counsel:

Jerris Leonard &

900 17th Street,
Suite 1020
Washington, D. C.
(202) 872-L095

Associates, P.C.
N.I\7.

20005

.Ta

P.UFUS L.
ATTORNEY

EDI,IISTEN
GE}]ERAL

aIIaCe, tJf .
Attorney Gene

Legal Affairs
rney Generalrs Office

. C. Department of Justice
Post Office Box 629