United States District Court, S.D. Mississippi, Northern Division
JACKSON MUNICIPAL AIRPORT AUTHORITY, ET AL. PLAINTIFFS
GOVERNOR PHIL BRYANT, ET AL. DEFENDANTS
CARLTON W. REEVES, UNITED STATES DISTRICT JUDGE.
litigation occasionally requires “discovery into the
motives of the [government] officials” who caused the
alleged violation. Benisek v. Lamone, No. 17-333,
2018 WL 3013808, at *2 (U.S. June 18, 2018) (per curiam).
That can lead to “the assertion of legislative
privilege by those officials” which, in turn,
“delay[s] the completion of that discovery.”
is illustrative. In that case, plaintiffs alleged that
Democrats redrew Maryland's congressional districts to
favor Democrats and harm Republicans. The plaintiffs
subpoenaed three of the most powerful Democrats in the state
legislature to provide evidence on that claim. The
legislators “produced [fewer] than 150 pages in total,
and they asserted state legislative privilege as the basis
for withholding 36 responsive documents.” Benisek
v. Lamone, 241 F.Supp.3d 566, 572 (D. Md. 2017). The
plaintiffs then sought to compel depositions and document
production. The legislators claimed an absolute legislative
three-judge district court rejected the legislators'
argument. It held that “legislative privilege, like all
evidentiary privileges, applies only to the very limited
extent that a public good transcends the normally predominant
principle of utilizing all rational means for ascertaining
truth.” Id. at 574 (quotation marks,
citations, ellipses, and brackets omitted). The court ordered
the legislators to sit for depositions, produce
legislator-legislator communications, and produce
legislator-staff communications. Id. at 576-77.
Benisek, the plaintiffs in this case allege that
legislative action violated the United States Constitution.
The plaintiffs' subpoenas were met with claims of an
absolute legislative privilege. The legislators further
assert that they are exempt from having to create a privilege
log that would enable the Court and the parties to assess the
applicability of the privilege.
Magistrate Judge conducted a thorough review of the law. He
identified precedent holding that “the legislative
privilege for state lawmakers is, at best, one which is
qualified.” Jefferson Cmty. Health Care Centers,
Inc. v. Jefferson Par. Gov't, 849 F.3d 615, 624 (5th
Cir. 2017) (quotation marks and citation omitted).
“This privilege must be strictly construed and accepted
only to the very limited extent that permitting a refusal to
testify or excluding relevant evidence has a public good
transcending the normally predominant principle of utilizing
all rational means for ascertaining the truth.”
Magistrate Judge concluded that the state legislators
subpoenaed in this action must create the customary privilege
log. Once the privilege log is created and reviewed by all,
the Magistrate Judge will adjudicate whether the plaintiffs
can overcome the traditional privilege afforded to
legislators' communications with other legislators and
legislative staff. He then indicated that the legislators
will likely have to produce their communications with
non-legislative third parties, where the privilege was
waived. See, e.g., League of Women Voters of
Michigan v. Johnson, No. 17-14148, 2018 WL 2335805, at
*6 (E.D. Mich. May 23, 2018) (“Communications between
legislators or staff members and third parties consulted
during the redistricting process are not protected by the
legislators timely objected. The Magistrate Judge's
decision is reviewed de novo. See Burgess v.
Fed. Deposit Ins. Corp., 871 F.3d 297, 303 (5th Cir.
legislators' principal argument is that they have an
absolute right to be free from all discovery requests in
federal court. This Court joins the Magistrate Judge in
concluding that this argument is foreclosed by Fifth Circuit
distinguishing the legislative privilege from legislative
immunity, Jefferson held that the legislative
privilege was, “at best, ” a
“qualified” evidentiary privilege to be
“strictly construed.” 849 F.3d at 624. That is a
straightforward rejection of an absolute
legislators contend that the discussion in Jefferson
was dicta because the case was truly about legislative
immunity. It is an appealing but unpersuasive contention. In
Jefferson, the officials argued not only that they
were immune, but also that “their reasons for
passing the resolutions [were] privileged.” 849 F.3d at
624. With the battle joined, the Fifth Circuit was free to
adjudicate the dispute and hold that the privilege was
qualified, not absolute.
the legislators press that the Eleventh Circuit's
decision in In re Hubbard is the correct statement
of the law. See 803 F.3d 1298 (11th Cir. 2015). That
too runs into difficulties. The Jefferson court was
certainly aware of Hubbard-it had been advanced as a
basis for reversal. See Reply Brief of Appellants,
Jefferson Cmty. Health Care Centers, Inc. v. Jefferson Par.
Gov't, No. 16-30875, 2016 WL 6135217, at *6 (5th Cir.
Oct. 18, 2016). The Fifth Circuit's reasoning, however,
was contrary to Hubbard. Hubbard was never
mentioned or cited. Perhaps the Fifth Circuit was being
polite to a coordinate court; we do not know. But we do know
what Jefferson says. It happens to cut against the
legislators' arguments in this matter.
Magistrate Judge's thorough opinion is a correct
statement of Fifth Circuit law as it exists today. For sure,
this Court cannot state with absolute certainty that the
Magistrate Judge's ruling is clearly erroneous
or contrary to law. See Fed. R. Civ. P.
72(a). The legislators have preserved their arguments for
further review. In the interests of preserving the status quo
pending the expected interlocutory appeal, the ...