Mi Familia Vota v. Hobbs

682 F.Supp.3d 769

MI FAMILIA VOTA, et al., Plaintiffs, v. Katie HOBBS, et al., Defendants.

No. CV-21-01423-PHX-DWL

United States District Court, D. Arizona

Signed July 18, 2023

Ben Clements, Pro Hac Vice, Courtney Hostetler, Pro Hac Vice, John C. Bonifaz, Pro Hac Vice, Free Speech for People, Newton, MA, Coree Elizabeth Neumeyer, Lauren Elliott Stine, Quarles & Brady LLP, Phoenix, AZ, Daniel T. Fenske, Pro Hac Vice, Gary A. Isaac, Pro Hac Vice, Jed W. Glickstein, Pro Hac Vice, William Joseph McElhaney, III, Pro Hac Vice, Mayer Brown LLP, Chicago, IL, Lee H. Rubin, Pro Hac Vice, Mayer Brown LP, Palo Alto, CA, Rachel J. Lamorte, Pro Hac Vice, Mayer Brown LLP, Washington, DC, for Plaintiffs.

Celeste M. Robertson, Joseph D. Young, Apache County Attorneys Office, Saint Johns, AZ, for Defendant Larry Noble.

Robert Douglas Gilliland, Greenlee County Attorneys Office, Clifton, AZ, for Defendants David W. Stevens, Sadie Jo Bingham, Wendy John, Sharie Milheiro, Michael Sample.

Aaron Michael Lumpkin, Davis Miles McGuire Gardner PLLC, Tempe, AZ, Rose Marie Winkeler, Coconino County Attorneys Office, Flagstaff, AZ, for Defendant Patty Hansen.

Ryan Norton Dooley, La Paz County Attorneys Office, Parker, AZ, for Defendant Richard Garcia.

Joseph James Branco, Joseph Eugene LaRue, Maricopa County Attorney Civil Services Division, Phoenix, AZ, for Defendant Stephen Richer.

Ryan Henry Esplin, Mohave County Attorney's Office, Kingman, AZ, for Defendant Kristi Blair.

Daniel S. Jurkowitz, Pima County Attorneys Office, Tucson, AZ, for Defendant Gabriella Cazares-Kelly.

Craig Charles Cameron, Pinal County Attorneys Office, Florence, AZ, for Defendant Virginia Ross.

Robert Douglas Gilliland, Greenlee County Attorneys Office, Clifton, AZ, Robert F. May, Santa Cruz County Attorney, Nogales, AZ, for Defendant Suzanne Sainz.

M. Colleen Connor, Arizona Secretary of State, Phoenix, AZ, Michael James Gordon, Thomas M. Stoxen, Yavapai County Attorneys Office, Prescott, AZ, for Defendant Michelle Burchill.

William J. Kerekes, Office of the Yuma County Attorney, Yuma, AZ, for Defendants Richard Colwell.

Amy B. Chan, Arizona Secretary of State, Phoenix, AZ, Craig Alan Morgan, Jake Tyler Rapp, Shayna Gabrielle Stuart, Sherman & Howard LLC, Phoenix, AZ, Spencer Garrett Scharff, Scharff PC, Phoenix, AZ, for Defendant Adrian Fontes.

Brunn Wall Roysden, III, Joseph Andrew Kanefield, Robert John Makar, Hayleigh Susan Crawford, Joshua Michael Whitaker, Kathryn E. Boughton, Arizona Attorney General's Office, Phoenix, AZ, Drew Curtis Ensign, Drew C. Ensign PLLC, Phoenix, AZ, Stephen William Tully, Law Offices of Tully Bailey LLP, Phoenix, AZ, Michael G. Bailey, Bailey Law Offices PLC, Scottsdale, AZ, for Defendant Kristin K. Mayes.

ORDER

Dominic W. Lanza, United States District Judge

This action involves a challenge to an Arizona voting law, Senate Bill 1485 ("S.B. 1485"). In 2022, Plaintiffs served several non-party state legislators (collectively, "Legislators") with Rule 45 subpoenas seeking documents concerning S.B. 1485 and related legislation. Now pending before the Court is Plaintiffs' motion to compel Legislators to produce 196 responsive documents that Legislators have withheld on legislative privilege grounds. (Doc. 197.) For the following reasons, Plaintiffs' motion is granted in part and denied in part—the Court will not order any production at this time but will conduct an in camera review of the documents at issue.

RELEVANT BACKGROUND

On August 17, 2021, Plaintiffs initiated this action. (Doc. 1.) In a nutshell, Plaintiffs allege that S.B. 1485 and Senate Bill 1003 ("S.B. 1003"), both of which were enacted by the Arizona legislature following the 2020 election and concern early voting procedures, violate (1) the First and Fourteenth Amendments, by creating an undue burden on the right to vote (Count One); (2) the Fourteenth and Fifteenth Amendments, because they were enacted for a racially discriminatory purpose (Count Two); and (3) Section 2 of the Voting Rights Act, for the same reason (Count Three).¹

On November 24, 2021, Defendants moved to dismiss all of Plaintiffs' claims. (Docs. 76, 77.)

On June 24, 2022, after a full briefing (Docs. 83, 99, 100, 118), a tentative order (Doc. 144), and oral argument (Doc. 149), the Court dismissed Count One in its entirety and dismissed Counts Two and Three with respect to the challenges to S.B. 1003. (Doc. 154.) The Court denied the motion to dismiss with respect to the challenges to S.B. 1485 in Counts Two and Three. (Id. at 52, 60.)²

On January 7, 2022, Plaintiffs served document subpoenas on former State Senators Kelly Townsend and Michelle Ugenti-Rita, as well as on the Arizona House of Representatives and the Arizona Senate. (Doc. 198 ¶ 2.) On April 27, 2022, Plaintiffs served similar subpoenas on former State Senator Karen Fann, former Speaker of the House Rusty Bowers, former State Representative John Fillmore, and State Senators David Gowan, Jake Hoffman, and JD Mesnard. (Id.) In broad strokes, the subpoenas seek information related to certain Arizona voting laws, including S.B. 1485 and S.B. 1003. (Doc. 198-1 at 14-16.)

Beginning in January 2022, Plaintiffs' counsel and Legislators' counsel engaged in extensive meet-and-confer efforts concerning the subpoenas. (Doc. 198 ¶¶ 3-8.) Throughout that process, Legislators' counsel produced several privilege logs. (Id. ¶¶ 4-5. See also Docs. 198-2, 198-3, 202-1.)

Ultimately, on February 17, 2023, counsel determined they were at an impasse about 196 responsive documents that Legislators were withholding on legislative privilege grounds. (Doc. 198 ¶¶ 7-8; Doc. 198-4.)

On March 2, 2023, Plaintiffs and Legislators submitted a joint summary of their discovery dispute, stating that they disagree about the applicability and scope of the state legislative privilege and asking the Court "to set a briefing schedule to resolve this dispute." (Doc. 194 at 1.)

On March 3, 2023, the Court granted Plaintiffs leave to file a motion to compel. (Doc. 195 ["[G]iven the seeming complexity of the issues, the current dispute is better resolved through formal motion practice than through the Court's informal discovery dispute resolution process."].)

On March 14, 2023, Plaintiffs filed a motion to compel Legislators to produce the 196 documents in question. (Doc. 197.) The motion is now fully briefed. (Docs. 202, 209.)

In May 2023, the Fifth Circuit issued a pair of published decisions that touch on issues raised in the motion-to-compel briefing: Jackson Municip. Airport Auth. v. Harkins, 67 F.4th 678 (5th Cir. 2023), and La Union Del Pueblo Entero v. Abbott, 68 F.4th 228 (5th Cir. 2023). Accordingly, on May 26, 2023, the Court invited each side to file a supplemental brief discussing the two new decisions. (Doc. 221.)

On June 6, 2023—before the supplemental briefs were due—the Eighth Circuit issued a published decision that also touches upon issues raised in the motion-to-compel briefing: In re N. Dakota Legis. Assembly, 70 F.4th 460 (8th Cir. 2023).

On June 9, 2023, each side filed a supplemental brief. (Docs. 225, 26.)

On July 7, 2023, the Court issued a tentative ruling. (Doc. 232.)

On July 17, 2023, the Court heard oral argument. (Doc. 235.)

DISCUSSION

Plaintiffs move to compel Legislators to produce 196 documents that Legislators have withheld "pursuant to claims of legislative privilege." (Doc. 197 at 1.) The withheld documents consist of 38 communications between Legislators and third parties outside the legislature (e.g., county officials) and 158 intra-legislative communications (e.g., communications between Legislators and legislative staffers). (Id. at 3.)

With exceptions not applicable here, "[t]he common law—as interpreted by United States courts in the light of reason and experience—governs a claim of privilege." Fed. R. Evid. 501. "The party asserting an evidentiary privilege has the burden to demonstrate that the privilege applies to the information in question." Tornay v. United States, 840 F.2d 1424, 1426 (9th Cir. 1988).

Plaintiffs contend that Legislators "cannot rely on state legislative privilege to withhold the documents on their privilege logs" because (1) the privilege does not apply to the 38 "logged communications with third parties outside the legislative branch"; and (2) more broadly, "legislative privilege is a qualified privilege, which gives way when the discovery sought is as central as it is here to a claim vindicating federal constitutional rights." (Doc. 197 at 3, emphasis omitted.)

I. Communications With Third Parties

A. The Parties' Arguments

As for the 38 communications with third parties outside the legislative branch,³ Plaintiffs contend that "a clear majority of courts have held[ ] [that] legislative privilege does not extend to communications with outside parties, who do not deliberate over and vote for legislation." (Doc. 197 at 4.) According to Plaintiffs, "[c]ourts have offered two related but distinct rationales for this conclusion"—"[s]ome hold that legislative privilege does not apply to communications with third parties at all" while others "hold that legislators waive any privilege that might have existed when they communicate with a third party." (Id. at 4-5, collecting cases.) Plaintiffs contend that, "[u]nder either rationale, legislators cannot cloak conversations with executive-branch officials, lobbyists, and other interested outsiders in their privilege." (Id. at 5, internal quotation marks and citation omitted). Plaintiffs acknowledge that in Puente Arizona v. Arpaio, 314 F.R.D. 664 (D. Ariz. 2016), Judge Campbell held that the state legislative privilege may apply to state legislators' communications with third parties, but they argue that Puente Arizona (and other courts reaching similar conclusions) erred by relying on case law concerning the Speech or Debate Clause (which does not apply to state legislators), by "conflating legislative immunity and legislative privilege," and by failing to "recognize the tension between...