Plain Local Sch. Dist. Bd. of Educ. v. DeWine

464 F.Supp.3d 915

PLAIN LOCAL SCHOOL DISTRICT BOARD OF EDUCATION, et al., Plaintiffs,

v.Mike DEWINE, et al., Defendants.

Case No. 2:19-cv-5086

United States District Court, S.D. Ohio, Eastern Division.

Filed June 2, 2020

Amanda Martinsek, Daniela Paez, Trevor J. Hardy, Gregory C. Djordjevic, Timothy J. Downing, William D. Edwards, Ulmer Berne LLP, Cleveland, OH, Rachael Leigh Rodman, Rex A. Littrell, Ulmer & Berne LLP, Columbus, OH, for Plaintiff Plain Local School District Board of Education.

Amanda Martinsek, Daniela Paez, Trevor J. Hardy, Timothy J. Downing, William D. Edwards, Ulmer Berne LLP, Cleveland, OH, Rachael Leigh Rodman, Rex A. Littrell, Ulmer & Berne LLP, Columbus, OH, for Plaintiffs C.L., J.L., B.H., C.H.

Frank J. Reed, Jr., Stephen Eric Chappelear, Aaron T. Brogdon, Frost Brown Todd LLC, Columbus, OH, for Defendants Paolo Demaria, Laura Kohler, Charlotte McGuire, Linda Haycock, Kirsten Hill, Jenny Kilgore, Lisa Woods, Antoinette Miranda, Sarah Fowler, John Hagan, Stephanie Dodd, Nick Owens, Meryl Johnson, Eric Poklar, Cindy Collins, Mark Lamoncha, Martha Manchester, Steve Dackin, Reginald Wilkinson.

Frank J. Reed, Jr., Stephen Eric Chappelear, Frost Brown Todd LLC, Columbus, OH, for Defendant Mike Toal.

Scott M. Zurakowski, Amanda M. Connelly, Joseph J. Pasquarella, Mathew E. Doney, Owen J. Rarric, Krugliak Wilkins Griffiths & Dougherty Co. LPA, Canton, OH, for Defendant Village of Hills And Dales.

OPINION AND ORDER

MICHAEL H. WATSON, JUDGE

Plaintiffs have served deposition subpoenas on non-parties Ohio Senator Kirk Schuring, Ohio Representative Scott Oelslager, Ohio Representative Thomas Brinkman, Legislative Aide Michaela George, and Legislative Aide Alexandra Harris (collectively, "Movants"). Movants seek to quash the subpoenas, asserting irrelevance, undue burden, and legislative privilege. Mot. Quash, ECF No. 79. For the following reasons, Movants’ motion is GRANTED IN PART AND DENIED IN PART .

I. STANDARD OF REVIEW

A court "must quash or modify a subpoena that ... (iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or (iv) subjects a person to undue burden." Fed. R. Civ. P. 45(d)(3). "In addition, while the Rule itself does not list irrelevance or overbreadth as reasons for granting a motion to quash, [c]ourts ... have held that the scope of discovery under a subpoena is the same as the scope of discovery under Rule 26." Duncan v. Husted , No. 2:13-CV-1157, 2014 WL 4659863, at *4 (S.D. Ohio Sept. 17, 2014) (internal quotation marks and citation omitted), reconsidered in part , No. 2:13-CV-1157, 2015 WL 631103 (S.D. Ohio Feb. 12, 2015).

II. ANALYSIS

A. Relevance

Movants argue that their testimony is irrelevant to Plaintiffs’ Equal Protection claim because Plaintiffs allege that Hills & Dales, not the legislature, possessed a discriminatory motive in passing the challenged legislation. Mot. Quash 13–14, ECF No. 79. In any event, Movants argue, the motivation of a few legislators does not establish the motive of the entire legislative body. Id.

The Court concludes Movants may possess knowledge relevant to the factors articulated in Village of Arlington Heights v. Metro. Housing Dev. Corp. , 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977),¹ which bear on whether a legislature was partially motivated by an invidious discriminatory purpose, as relevant to an Equal Protection claim. For instance, the sequence of events leading up to the passage of the bill and any departures from the normal procedural sequence are two Arlington Heights factors that are therefore relevant to Plaintiffs’ constitutional claim. To the extent any Movant strategized or otherwise discussed with an outsider how to affect enactment of the legislation (particularly if they strategized departing from the normal procedural sequence), such discussions are not shielded by legislative privilege (as explained infra ) and would be relevant under Arlington Heights .

Moreover, Hills & Dales, which was allegedly the impetus and driver of the bill, identified Senator Schuring and Representative Oelslager as possessing information relevant to this suit. Resp. Interrogatory No. 2, ECF No. 91-1; see also id. at Resp. Interrogatory No. 4. Indeed, the exhibits attached to Plaintiffs’ response brief are alone sufficient to demonstrate that Movants likely possess relevant information. See, e.g. , Resp. Exs. 1, 2, 4, 5, 6, 7, 9, 10, 12.

Accordingly, the Court refuses to quash the subpoenas based on relevance.

B. Undue Burden

It is undoubtedly an extreme burden on a legislator to be deposed. If courts permitted legislators to be deposed every time a constitutional challenge was raised to a piece of legislation, the legislators would be severely detracted from their work. Therefore, if the information Plaintiffs seek is duplicative of other available information or obtainable from another source that is more convenient, less burdensome, or less expensive, Plaintiffs may not seek it from Movants.

However, it is alleged that Movants were instrumental in the clandestine passage of an unconstitutional bill for the benefit of one small community (who was previously denied that benefit under the proper channels). Some of the evidence already presented by Plaintiffs shows the irregularities that attended the passage of the bill. That the bill appears to have been passed under the cover of night also suggests that Plaintiffs may not have another avenue of seeking some of the discoverable information, requiring some burden on Movants to provide it.

Ultimately, though, the Court is loath to permit parties to conduct in-person depositions of State legislators, even in this extraordinary case. Accordingly, Movants’ motion is granted insofar as the Court will not permit in-person depositions. Rather, as explained below, in an attempt to lessen the burden on Movants, Plaintiffs shall be permitted to submit written deposition questions.

C. Legislative Privilege²

Movants argue the subpoenas should be quashed because legislative privilege prohibits Plaintiffs from deposing them. Plaintiffs contend that much of the information they seek is not covered by the legislative privilege and, in any event, the Court should find that the information that is privileged is nonetheless discoverable in this extraordinary case. In so arguing, Plaintiffs contend the privilege for State legislators is a qualified one and is overcome under the circumstances here.

For the reasons below, the Court concludes that some information is discoverable from Movants because it is not covered by the legislative privilege. For the information that is covered by the privilege, the Court declines to find that the privilege is overcome in this case. Accordingly, Plaintiffs are entitled to discovery from Movants regarding only the narrow set of information that is: (1) not privileged, (2) relevant to the Arlington Heights factors, and (3) not obtainable from another source.

With respect to members of Congress, the United States Constitution's Speech or Debate Clause³ provides a legislative privilege that "protects against inquiry into acts that occur in the regular course of the legislative process and into the motivation for those acts." United States v. Brewster , 408 U.S. 501, 525, 92 S.Ct. 2531, 33 L.Ed.2d 507 (1972). Not all acts taken by a legislator are legislative acts. Rather, "[a] legislative act has consistently been defined as an act generally done in Congress in relation to the business before it. In sum, the Speech or Debate Clause prohibits inquiry only into those things generally said or done in the House or the Senate in the performance of official duties and into the motivation for those acts." Id. at 512, 92 S.Ct. 2531. This legislative privilege does not provide a blanket protection from deposing Movants for several reasons.

First, it is not clear that the legislative privilege afforded to state legislators mirrors in scope the privilege afforded to federal legislators. By its terms, the Speech or Debate Clause applies only to federal "Senators and Representatives." United States v. Gillock , 445 U.S. 360, 366 n.5, 100 S.Ct. 1185, 63 L.Ed.2d 454 (1980) (internal quotation marks and citation omitted). Federal common law⁴ has recognized an analogous privilege for State and local legislators, N. Carolina State Conference v. McCrory , No. 1:13CV658, 2015 WL 12683665, at *3 (M.D.N.C. Feb. 4, 2015), but that common-law privilege is not an absolute "evidentiary privilege for state legislators for their legislative acts."⁵ See Gillock , 445 U.S. at 373, 100 S.Ct. 1185 ("[W]here important federal interests are at stake ... comity yields[,]" and legislative privilege may be denied to a state legislator); Jefferson Cmty. Health Care Ctrs., Inc. v. Jefferson Par. Gov. , 849 F.3d 615, 624 (5th Cir. 2017) ("While the common-law legislative immunity for state legislators is absolute, the legislative privilege for state lawmakers is, at best, one which is qualified." (internal quotation marks and citation omitted)); Doe v. Nebraska , 788 F. Supp. 2d 975, 984 (D. Neb. 2011) ("Federal courts have wrestled with whether a common law evidentiary legislative privilege applies to state legislators." (citations omitted)); ACORN , 2007 WL 2815810, at *2 ("The Supreme Court has, however, rejected the notion that the common law immunity of state legislators gives rise to a general evidentiary privilege. The legislative privilege is qualified, not absolute ...." (internal quotation marks and citations omitted)); Rodriguez v. Pataki , 280 F. Supp. 2d 89, 95 (S.D.N.Y. 2003) ("Legislative privilege ... is not absolute." (citation omitted)).

The Supreme Court therefore has left open the question of when a State legislator can invoke the common-law evidentiary legislative privilege in a federal civil case. See, e.g. , Harding v. Cty. of Dallas, Texas , No. 3:15-CV-0131-D, 2016 WL 7426127, at *2 (N.D. Tex. Dec. 23, 2016). The Sixth Circuit has not answered that...