Gov. Bryant Motion to Quash Subpeona

IN THE UNITED STATES DISTRICT COURT FORTHE SOUTHERN DISTRICT OF MISSISSIPPI

NORTHERN DIVISION

JEFFERY A. STALLWORTH PLAINTIFF

VS. CIVIL ACTION NO. 3:16cv246-CWR-FKB

GOVERNOR DEWEY PHILLIP “PHIL” BRYANT, et al. DEFENDANTS

***** Urgent and Necessitous Motion ******Expedited Consideration Requested Pursuant to Local Rule 7(b)(8)

Governor Phil Bryant’s Memorandum in Supportof His Motion to Quash Subpoena

Comes now Governor Phil Bryant and by the undersigned Special Assistant

Attorney General files this memorandum in support of his motion to quash the

subpoena ad testificandum through which the Board of Commissioners of the Jackson

Municipal Airport Authority (“JMAA Board”) seek to compel the Governor to personally

testify during the June 30 hearing in this matter. See Subpoena, Exhibit A to Motion.

The subpoena should be quashed before the June 30 hearing because the Governor has

legislative immunity from providing such testimony.

Background

Even though this underlying litigation was filed over 120 days ago, the JMAA

Board waited until days before the July 1 effective date to file a motions seeking to

intervene and requesting a preliminary injunction. On June 27, this Court set those

motions for a hearing on the morning of June 30. The late filing has prejudicially

deprived the defendants of their constitutional rights to fairly prepare for the hearing

and has unnecessary deprived this of the opportunity to study the issues raised.

Approximately 10:45 a.m. on June 28, the currently non-party JMAA Board served a

Case 3:16-cv-00246-CWR-FKB Document 31 Filed 06/28/16 Page 1 of 9

subpoena ad testificandum on the Governor seeking his personal testimony at the June

30 hearing. Without coordinating with the undersigned counsel, JMAA Board

attempted to serve the Governor as he was conducting the State’s business during the

specially called legislative session.1

The timing and nature of this subpoena is designed to further prejudice the

defendants’ ability to utilize what few days were available to prepare for the June 30

hearing. However, and more importantly, governors and legislators are shielded from

testifying regarding their legislative activities and intentions by the fundamentally

important doctrine of legislative immunity. Courts recognize that calling a sitting

governor as a witness in a case is beyond all bounds of necessity and represents a

extreme disruption to the functioning of government. The subpoena must be quashed.

Argument

I. This Court has Broad Authority to Quash Testimonial Subpoenas.

Federal Rule of Civil Procedure 45 states, in part, that “[o]n timely motion, the

issuing 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)(A). Both such rationale exist here.

II. Legislative Immunity Shields Governors and Legislators fromTestifying About Their Legislative Acts.

Government officials who exercise legislative authority and undertake legislative

acts are immune from testifying regarding the nature, purpose, or motivations of those

Also on June 28, 2016, the JMAA Board served Lt. Governor Tate Reeves with a similar1

subpoena. As of this writing, the Governor anticipates the Lt. Governor Reeves is likely to join

the Governor’s motion and/or otherwise seek similar relief.

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legislative actions. This immunity applies to legislators themselves and governors when

signing or vetoing legislation.

Legislative immunity, recognized first in the Speech and Debate Clause of the

United States Constitution,2 has long been recognized for federal legislators and was

extended to state legislators in Tenney v. Brandhove, 341 U.S. 367, 376 (1951). The

Tenney Court created absolute immunity from civil suit for state officials acting within

“the sphere of legitimate legislative activity.” Id. at 376. “Doctrinally, legislative

immunity emanates from the well-spring of the federal common law; nevertheless, it is

similar in scope and object to the immunity provided federal legislators under the

Speech or Debate Clause. Indeed, when the Supreme Court initially recognized state

legislative immunity as a constituent of the federal common law, it looked to its Speech

or Debate Clause jurisprudence for guidance anent the contours of the doctrine.”

Bryant v. Jones, 575 F.3d 1281, 1304 (11th Cir. 2009) (citing Tenney v. Brandhove, 341

U.S. 367, 376–79 (1951)).

Because legislative immunity is premised on whether the act is legislative in

nature, legislative immunity applies to governors in their executive of legislative related

functions of reviewing, signing or vetoing bills. “Absolute legislative immunity attaches

to all actions taken ‘in the sphere of legitimate legislative activity,’” Bogan v.

Scott-Harris, 523 U.S. 44, 54 (1998) (quoting Tenney, 341 U.S. at 376), and extends to

non-legislative officials engaging in legislative acts, id. at 55 (“We have recognized that

See U.S. Constitution, Article I, section 6 (“The Senators and Representatives shall .2

. . be privileged . . . for any Speech or Debate in either House, they shall not bequestioned in any other Place.”)

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officials outside the legislative branch are entitled to legislative immunity when they

perform legislative functions ....”), as well as their aides, see, e.g., Rini v. Zwirn, 886

F.Supp. 270, 284 (E.D.N.Y.1995) (citing Gravel v. United States, 408 U.S. 606, 618, 92

S.Ct. 2614, 33 L.Ed.2d 583 (1972)). Specifically, a governor’s review and action upon

legislation falls within the protection of legislative immunity. See Torres-Rivera v.

Calderon-Serra, 412 F.3d 205, 213 (1st Cir.2005)(“[A] governor who signs into law or

vetoes legislation passed by the legislature is also entitled to absolute immunity for that

act.”); Bagley v. Blagojevich, 646 F.3d 378, 396-97 (7th Cir. 2011).

Legislative immunity has two components. First, governors and legislators are

entitled to “absolute immunity from liability” for their legislative activities. Bogan v.

Scott-Harris, 523 U.S. 44, 49 (1998) (citing Tenney). “Private lawsuits threaten to chill

robust representation by encouraging legislators to avoid controversial issues or stances

in order to protect themselves.” Spallone v. United States, 493 U.S. 265, 300 (1990).

Second, and applicable here, legislative immunity also protects a governor from

being compelled to testify about his legislative activities or purposes.

Legislative immunity not only protects state legislators fromcivil liability, it also functions as an evidentiary and testimonialprivilege. . . . [T]o effectuate the purposes of the doctrine of legislativeimmunity, legislators “should be protected not only from the consequencesof litigation's results but also from the burden of defending themselves.”Thus, a state legislator acting “within the sphere of legitimate legislativeactivity” may not be a party to a civil suit concerning those activities, normay he be required to testify regarding those same actions.

Marylanders for Fair Representation, Inc. v. Schaefer, 144 F.R.D. 292, 297-98 (D. Md.

1992) (emphasis supplied).

The rationale for affording state, regional, and local legislators atestimonial privilege is as compelling as the rationale for providing

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immunity from civil liability. Effectuating the intentions of the legislativeimmunity doctrine, legislators acting within the realm of legitimatelegislative activity, should not be required to be a party to a civil actionconcerning legislative activities, nor should they be required totestify regarding those actions.

Miles-Un-Ltd., Inc. v. Town of New Shoreham, R.I., 917 F. Supp. 91, 98 (D.N.H. 1996)

(emphasis supplied); see, e.g., Schlitz v. Commonwealth of Virginia, 854 F.2d 43, 46

(4th Cir.1988) (“The purpose of the doctrine is to prevent legislators from having to

testify regarding matters of legislative conduct, whether or not they are testifying to

defend themselves”); 2BD Assocs. Ltd. Partnership v. County Commissioners of Queen

Anne's County, 896 F.Supp. 528, 531 (D.Md.1995) (“[T]he effect of the doctrine is

twofold; it protects legislators from civil liability, and it also functions as an evidentiary

and testimonial privilege”); Suhre v. Board of Comm'rs, 894 F.Supp. 927, 932

(W.D.N.C.1995) (“Because the commissioners are entitled to legislative immunity, they

are protected from testifying concerning their motives for refusing to remove the

commandments”), rev'd. on other grounds, 131 F.3d 1083 (4th Cir.1997); Small v. Hunt,

152 F.R.D. 509, 512 (E.D.N.C.1994) ( “[L]egislative immunity is both an evidentiary and

testimonial privilege, as well as a protection against civil suit”).

Legislative immunity shields a governor from testifying even the governor is

named as a defendant in the lawsuit or if the governor’s testimony is relevant to the

underlying claims. For example, in Bagley v. Blagojevich, 646 F.3d 378, 383-84 (7th

Cir. 2011), government employees sued the sitting governor and others alleging that the

governor’s veto of a budget bill was in retaliation of their speech and, therefore, in

violation of the First Amendment. The trial court prohibited the plaintiffs from

depositing the governor and the Eleventh Circuit affirmed. Id. at 383 (“Because we find

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that Governor Blagojevich's veto was legislative, we also hold that the district court did

not abuse its discretion in blocking the Governor's deposition . . . .”)

Even should JMAA argue that the Governor should be required to undergo cross-

examination regarding his deliberative process or motivation in signing the questioned

litigation, such a claim does not overcome legislative immunity. As an initial matter, the

Supreme Court has proclaimed that it is “not consonant with our scheme of government

for a court to inquire into the motives of legislators.” Tenney, 341 U.S. at 377. “This

Court has recognized, ever since Fletcher v. Peck, 6 Cranch 87, 130-131, 3 L.Ed. 162

(1810), that judicial inquiries into legislative or executive motivation represent a

substantial intrusion into the workings of other branches of government. Placing a

decisionmaker on the stand is therefore ‘usually to be avoided.’” Vill. of Arlington

Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 268 n.18 (1977) (citing Citizens to

Preserve Overton Park v. Volpe, 401 U.S. 402, 420 (1971)). A recent federal court

opinion reiterated that even when a plaintiff’s equal protection or voting rights act turn

on legislative intent, compelled testimony directly from legislators is not appropriate

given their legislative immunity.

The considerations that support the result include the burden that beingcompelled to testify would impose on state legislators, the chilling effectthe prospect of having to testify might impose on legislators whenconsidering proposed legislation and discussing it with staff members, andperhaps most importantly, the respect due a coordinate branch ofgovernment. Legislators ought not call unwilling judges to testify atlegislative hearings about the reasons for specific judicial decisions, andcourts ought not compel unwilling legislators to testify about the reasonsfor specific legislative votes. Nothing in the Voting Rights Act suggests thatCongress intended to override this long-recognized legislative privilege.

Florida v. United States, 886 F. Supp. 2d 1301, 1303 (N.D. Fla. 2012)

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Secondly, even when a plaintiff’s claim turns upon legislative intent or

motivation, the Supreme Court has instructed courts on the traditional evidence to be

considered in light of the legislative immunity which shields legislators from being

compelled to testify. Legislative purpose or motivation is reviewed using the plain

language of the enactment, “historical background,” “events leading up to the challenged

decision,” “departures from the normal procedural sequences,” and “legislative or

administrative history, especially [any] contemporaneous statements by members of

the decision making body.” See Vill. of Arlington Heights v. Metro. Housing Dev.

Corp., 429 U.S. 252, 268 (1977) (emphasis supplied). Even though “legislative purpose

is an issue” in “many” cases, including cases under the Voting Rights Act and equal

protect clause, legislative immunity prohibits compelling direct testimony from

legislators or a governor. See Florida, 886 F.Supp. 2d at 1303. As the Supreme Court

directed,

The legislative or administrative history [of the legislative action] may behighly relevant, especially where there are contemporaneous statementsby members of the decisionmaking body, minutes of its meetings, orreports. In some extraordinary instances the members might be called tothe stand at trial to testify concerning the purpose of the official action,although even then such testimony frequently will be barred byprivilege.

Vill. of Arlington Heights, 429 U.S. at 26 (emphasis supplied). The Florida court,

noting Arlington Heights’s application to Voting Rights Act and equal protection claims,

prohibited plaintiffs from compelling the testimony of legislators and found that state

“legislators have a federal legislative privilege—at least qualified, if not absolute—not to

testify in this civil case about the reasons for their votes.” 886 F.Supp. 2d at 1303.

Moreover, because the “type of direct and circumstance evidence” identified in

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Arlington Heights that can be used to prove motives of a legislative body is present,

there exists no “extraordinary circumstances requiring the legislators to waive their

testimonial privilege.” Cunningham v. Chapel Hill, ISD, 438 F. Supp. 2d 718, 722 (E.D.

Tex. 2006). In this matter, contemporaneous statements of Mississippi legislators and

the Governor regarding this legislation are a matter of public record and available to the

plaintiffs and does not require compelled testimony from the governor or legislators.

Conclusion

The subpoena ad testificandum issued to the Governor and attached as exhibit A

to the accompanying motion should be quashed.

THIS the 28 day of June, 2016.th

Respectfully submitted,

GOVERNOR PHIL BRYANT

By: JIM HOOD, ATTORNEY GENERAL

By: S/Justin L. MathenyJustin L. Matheny (Bar No. 100754)Office of the Attorney GeneralP.O. Box 220Jackson, MS 39205Telephone: (601) 359-3680Facsimile: (601) [email protected]

Counsel for Governor Phil Bryant

CERTIFICATE OF SERVICE

I hereby certify that the foregoing document has been filed with the Clerk ofCourt using the Court’s ECF system and thereby served on all counsel of record whohave entered their appearance in this action to date, and also served on the followingpersons via US Mail, properly addressed and postage prepaid:

Jeffrey A. Stallworth

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6286 Hanging Moss RoadJackson, MS 39206

THIS the 28 day of June, 2016.th

S/Justin L. MathenyJustin L. Matheny

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Documents

Gov. Bryant Motion to Quash Subpeona