League of United Latin Am. Citizens v. Abbott

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LEAGUE OF UNITED LATIN AMERICAN CITIZENS, et al., Plaintiffs, EDDIE BERNICE JOHNSON, et al., Plaintiff-Intervenors, v. GREG ABBOTT, in his official capacity as Governor of the State of Texas, et al., Defendants.

No. EP-21-CV-00259-DCG-JES-JVB

United States District Court, W.D. Texas, El Paso Division

December 21, 2023

MEMORANDUM OPINION AND ORDER ^[1]

JERRY E. SMITH, UNITED STATES CIRCUIT JUDGE

The United States and a legion of private plaintiffs have alleged that the redistricting plans enacted by Texas following the 2020 census violate the Voting Rights Act (“VRA”) and the United States Constitution. In this consolidated redistricting case, numerous discovery disputes have arisen regarding the invocation of the legislative privilege by Texas legislators and associated individuals. Specifically the United States and private plaintiffs have moved to compel the production of numerous documents and unseal portions of deposition testimony given by legislators and their aides and consultants. We ruled on several of these motions in a July 25, 2022 order, see ECF No. 467, but the Fifth Circuit vacated that order in light of recent caselaw articulating the scope of the legislative privilege. See League of United Latin Am. Citizens v. Abbott, No 22-50662, 2023 WL 4697109 (5th Cir. July 18, 2023) (per curiam) (unpublished).

In May 2023, the Fifth Circuit decided Jackson Municipal Airport Authority v. Harkins, 67 F.4th 678 (5th Cir. 2023), and La Union del Pueblo Entero v. Abbott, 68 F.4th 228 (5th Cir. 2023) (“Hughes”). Both cases directly affect the discovery dispute between the parties here, and at the parties' request, see ECF No. 702, this Court ordered supplemental briefing to better understand and apply these new binding cases, see ECF No. 703. After the parties had submitted almost all of their supplemental briefing, the Fifth Circuit withdrew and vacated its opinion in Harkins, substituting it with an unpublished non-precedential opinion. See No. 21-60312, 2023 WL 5522213, at *1 (5th Cir. Aug. 25, 2023) (unpublished). Shortly thereafter, the Fifth Circuit withdrew the unpublished opinion and scheduled the case for en banc rehearing. See 78 F.4th 844 (Mem) (5th Cir. 2023). We therefore disregard Harkins and rule as follows regarding the legislative privilege and the pending motions to compel:

I. The Scope of the Legislative Privilege

We find that the legislative privilege's scope is properly and necessarily broad.

The Hughes plaintiffs pointed to Jefferson Community Health Care Centers, Inc. v. Jefferson Parish Government (“JCHCC”) for the proposition that “the legislative privilege for state lawmakers is, at best, one which is qualified.” 849 F.3d 615, 624 (5th Cir. 2017). But the court distinguished JCHCC by pointing out that those claims related to whether a court could even “decid[e] whether to issue injunctive relief[,]” not whether “state legislators can be compelled to produce documents concerning the legislative process and a legislator's subjective thoughts and motives.” Hughes, 68 F.4th at 240 (citing JCHCC, 849 F.3d at 624) (emphasis in the original). We face the same issue here. Because the Fifth Circuit treats the invocation of legislative privilege to bar a claim (JCHCC) and its invocation to prevent certain discovery (Hughes) as distinct, we do so too. Therefore, Hughes governs our discussion of the legislative privilege's scope, not Jefferson. So, we begin by applying Hughes to define the legislative privilege and its extent. Then we address which defendants can assert it.

As the Fifth Circuit explained in Hughes, the state-legislator's legislative privilege is a common-law evidentiary privilege. 68 F.4th at 235. As a common-law privilege, it is not governed by the Speech or Debate Clause of the U.S. Constitution and is therefore narrower than the federal legislative privilege and must yield in certain situations, as discussed infra. See United States v. Gillock, 445 U.S. 360, 366-67, 372 n.10 (1980). It is not an immunity from suit or from attending a deposition. Instead, the privilege covers the material a legislator may refuse to turn over or disclose. See Am. Trucking Ass'ns, Inc. v. Alviti, 14 F.4th 76, 86 n.6 (1st Cir. 2021); Hughes, 68 F.4th at 237 (“the parallel between [legislative privilege and legislative immunity] may not run to the horizon”). Specifically, it protects the “many actions and documents” legislators take, review, or produce “within ‘the legislative process itself' . . . .” Hughes, 68 F.4th at 235 (quoting In re Hubbard, 803 F.3d 1298, 1308 (11th Cir. 2015)); see also Tenney v. Brandhove, 341 U.S. 367, 372 (1951). And the scope of the legislative privilege “is necessarily broad.” Hughes, 68 F.4th at 236.

Thus, this privilege extends well beyond the act of voting for or against a particular piece of legislation. It covers material prepared for a legislator's understanding of legislation, lobbying conversations encouraging a vote on pending legislation, and even materials the legislator possesses related to potential legislation-i.e., “all aspects of the legislative process.” Id. at 235- 36 (quotation marks and citation omitted); see also Almonte v. City of Long Beach, 478 F.3d 100, 103 (2d Cir. 2007) (“[L]egislative immunity applies not only to . . . vote[s] . . ., but also to any discussions and agreements . . . prior to the vote, regardless of whether those discussions and agreements took place in secret.”). But see United States v. Helstoski, 442 U.S. 477, 490 (1979) (describing “legislative acts” under the Speech or Debate clause exclusively as prior actions). The privilege also extends to material provided by or to third parties involved in the legislative process, Hughes, 68 F.4th at 237; see In re N.D. Legis. Assembly, 70 F.4th 460, 464 (8th Cir. 2023), because all of these actions occur “within ‘the regular course of the legislative process,'” Hughes, 68 F.4th at 235 (quoting Helstoski, 442 U.S. at 489 (1979)).

Primarily, this protection enables state legislators to focus on legislating “rather than on motions practice in lawsuits.” Id. at 237 (citing Tenney, 341 U.S. at 377). Therefore, the privilege “applies with full force against requests for information about the motives for legislative votes and legislative enactments.” Hubbard, 803 F.3d at 1310. Such requests are exactly what we are dealing with here.

However, this privilege does not extend beyond the legislative process. To the extent the plaintiffs seek discovery over materials not part of the “proposal, formulation, and passage of legislation,” that material is not protected by the privilege. Hughes, 68 F.4th at 236 (quoting Hubbard, 803 F.3d at 1308).

A. The Legislative Privilege Protects Derivative Factual Information

Like other common-law privileges, the legislative privilege does not protect purely factual information. And, as the plaintiffs' and United States' briefs suggest, we believe it appropriate to analogize to two of those common-law privileges. See ECF No. 708 at 6-7 (citing Comm. for a Fair & Balanced Map v. Ill. State Bd. of Elecs., No. 11 C 5065, 2011 WL 4837508, at *7 n.9 (N.D. Ill. Oct. 12, 2011) (analogizing the legislative privilege to the deliberative-process privilege); Upjohn Co. v. United States, 449 U.S. 383, 389, 395 (1981) (attorney-client privilege); In re Sealed Case, 121 F.3d 729, 750 (D.C. Cir. 1997) (deliberative-process privilege)); ECF No. 709 at 9-13; ECF No. 722 at 5-6. But see ECF No. 721 at 14-16 (Defendants' Brief). As discussed infra, we believe analogizing to those other common-law privileges-the attorney-client privilege and the deliberative-process privilege-helps elucidate the extent of the legislative privilege. But that does not mean that all three privileges are coterminous. The legislative privilege extends further than either other privilege when it comes to bare facts.

The legislative privilege protects the possession, preparation, or review of factual information when disclosure would “inevitably reveal the [legislator's] deliberations.”^[2] In re Sealed Case, 121 F.3d at 737 (citing NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150-54 (1974)). Disclosure of the underlying facts that the legislator relied on in voting on or in crafting a legislative proposal is unlikely to affect the legislator's willingness to consider those facts or reveal his or her deliberations. However, disclosing that the legislator relied on or considered some facts, and not others, would inevitably indicate the legislator's deliberations.^[3] Thus, testimony or documentation that may indicate the legislator's relative focus on some facts is privileged. For example, testimony such as “I don't know” or “I don't recall” is privileged insofar as it indicates that the legislator did not find certain material particularly relevant to the decision-making process. Cf. ECF No. 708 at 11. Similarly, material the legislator obtained, or declined to obtain, in the decision-making process is privileged too insofar as it is sought from the legislator.

As Hughes makes clear, the privilege protects information shared with a legislator by a third party, or which a legislator shares with a third party for the purposes of preparing or voting on legislation. 68 F.4th at 236. We believe that this also means any reports or analyses prepared for a legislator, or even in the process of briefing a legislator, are protected derivative factual information. This is because such meetings, and therefore the preparation for them, are “part and parcel of the modern legislative procedures through which legislators receive information possibly bearing on the legislation they are to consider.” Id. (quoting Bruce v Riddle, 631 F.2d 272, 280 (4th Cir. 1980)). Such documents and information are prepared within the...