doc 927_city arguing atty client privilege

8/14/2019 Doc 927_city Arguing Atty Client Privilege

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

UNITED STATES OF AMERICA

Plaintiff

V. 3:07-CR-289-M

DONALD W. HILL, et al.,

Defendants.

CITY OF DALLAS MEMORANDUM OF POINTS AND AUTHORITIES

RESPECTING ATTORNEY-CLIENT AND LEGISLATIVE

DELIBERATION PRIVILEGES

OFFICE OF THE CITY ATTORNEY

CITY OF DALLAS, TEXAS

PETER B. HASKEL

Assistant City Attorney

Texas Bar No. 09198900

1500 Marilla Street, 7BN

Dallas, Texas 75201

Telephone: 214-670-3519

Facsimile: 214-670-0622

[email protected]

ATTORNEYS FOR THE CITY OF DALLAS,

TEXAS

Case 3:07-cr-00289-M Document 927 Filed 08/05/2009 Page 1 of 21


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TABLE OF CONTENTS

PAGE

BACKGROUND .............................................................................................................................2

ARGUMENT 1................................................................................................................................2

The City is entitled to invoke the attorney client privilege for

communications between its officials and employees, on the one part, andattorneys for the City, on the other part, to the same extent that business

corporations could do so.

ARGUMENT II .............................................................................................................................11

City Council Members and Board Members cannot be questioned abouttheir thought processes relating to legislative conduct under the legislative

deliberation privilege

.



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ii

TABLE OF AUTHORITIES

Cases

AHF Community Development, LLC v. City of Dallas,___ F.R.D.___, 2009 WL 348190 (N.D. Tex., February 12, 2009)........................................... 4

Bannum v. City of Beaumont,

236 F. Supp. 2d 633 (E.D. Tex. 2002) ......................................................................... 12, 13, 14

Bogan v. Scott-Harris,

523 U.S. 44 (1998) ............................................................................................................. 12, 13

Bryan v. City of Madison,

213 F. 3d 267 (5th Cir. 2000)................................................................................................... 13

Citibank, N.A. v. Andros,

666 F.2d 1192 (8th Cir. 1981).................................................................................................... 5

City of Brookside Village v. Comeau,633 S.W.2d 790 (Tex. 1982).................................................................................................... 12

City of Pharr v. Tippitt,

616 S.W.2d 173 (Tex.1981)..................................................................................................... 12

City ofRound Rock v. Smith,

687 S.W.2d 300 (Tex. 1985).................................................................................................... 12

Commodity Futures Trading Commn v. Weintraub,

471 U.S. 343 (1985) ................................................................................................................. 11

Cunningham v. Chapel Hill, ISD,

438 F. Supp. 2d 718 (E.D. Tex. 2006)............................................................................... 11, 12

Dallas Merchants & Concessionaires Assoc. v. City of Dallas,852 S.W.2d 489 (Tex. 1993)...................................................................................................... 8

Denius v. Dunlap,209 F.3d 944 (7th Cir. 2000)...................................................................................................... 3

Fisher v. United States,425 U.S. 391 (1976) ................................................................................................................... 4

Forwood v. City of Taylor,

147 Tex. 161 S.W.2d 282 (Tex. 1948)....................................................................................... 8

Hughes v. Tarrant County Tex.,

948 F. 2d 918 (5th Cir. 1991)................................................................................................... 13



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iii

Hunt v. Blackburn,

28 U.S. 464 (1888) ..................................................................................................................... 4

In re Anderson,

163 S.W.3d 136 (Tex. App. San Antonio 2005, orig. proceeding)......................................... 8

In re City of Dallas,

No. 05-03-00516-CV, 2003 WL 21000387 (Tex. App. Dallas May 5, 2003, nopet.)............................................................................................................................................. 8

In re Grand Jury Investigation (Doe II),

399 F.3d 527 (2nd Cir. 2005)......................................................................................... 3, 6, 7, 9

In re Grand Jury Subpoena Duces Tecum,

112 F.3d 910 (8th Cir. 1997).................................................................................................. 6, 9

In re Grand Jury Subpoena,

886 F.2d 135 (6th Cir. 1989)..................................................................................................... 7

In re Grand Jury Subpoena,

419 F.3d 329 (5th Cir. 2005).......................................................................................... 9, 10, 11

In re Hampers,651 F.2d 19 (1st Cir. 1981) ........................................................................................................ 7

In re Lindsey,158 F.3d 1263 (D.C. Cir. 1998) ................................................................................................. 6

In re Perry, 60 S.W. 3d 857, 860 (Tex. 2001).............................................................................. 13

In re Witness Before Special Grand Jury 2000-2,288 F.3d 289 (7th Cir. 2002)...................................................................................................... 6

Jaffee v. Redmond,

518 U.S. 1 (1996) ....................................................................................................................... 4

Lipscomb v. Randall,

985 S.W.2d 601 (Tex. App. Fort Worth 1999, pet. denied).................................................... 8

Mayhew v. Town of Sunnyvale,

964 S.W.2d 922 (Tex. 1998).................................................................................................... 12

Minton v. St. Bernard Parish Sch. Bd.,

803 F. 2d 129 (5th Cir. 1986)................................................................................................... 13

Swidler & Berlin v. United States,524 U.S. 399 (1998) ................................................................................................................... 4



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iv

United States v. Edwards,

303 F.3d 606 (5th Cir. 2002)...................................................................................................... 9

United States v. Sells Eng'g, Inc.,

463 U.S. 418 (1983) ................................................................................................................... 7

Upjohn Co. v. United States,

449 U.S. 383 (1981) ................................................................................................................... 3

Weatherford v. City of San Marcos,157 S.W.3d 473 (Tex. App.-Austin 2004,pet. denied) ........................................................... 12

Willy v. Administrative Review Bd.,423 F.3d 483 (5th Cir. 2005)...................................................................................................... 5

Statutes

TEX.GOVT CODE 22.004 ............................................................................................................ 8

TEX.GOVT CODE 22.109 ............................................................................................................ 8

TEX.GOVT CODE CH.81 ................................................................................................................ 9

Other Authorities

Dallas, Tex., Charter ch. VII, 3................................................................................................ 2, 7

Dallas, Tx., Charter ch. III ............................................................................................................ 11

Dallas, Tx., Charter ch. III, 1 ..................................................................................................... 11

Dallas, Tx., Charter ch. VII, 2.............................................................................................. 2, 7, 8

Dallas, Tx., Code 12A-33(b)(3)............................................................................................... 2, 7

TEX.DISCIPLINARY R. OF PROFL CONDUCT 1.05 ........................................................................... 9

Rules

FED.R.EVID. 501............................................................................................................................ 5

TEX.R.EVID. 503............................................................................................................................ 8

Treatises

Jack B. Weinstein & Vivian M. Berger,

3 WEINSTEIN'S FEDERAL EVIDENCE 503.02 (J.M. McLaughlin ed. 2005) .............................. 5



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v

John Mixon, James L. Dougherty, Jr. & Brenda N. McDonald,

TEXAS MUNICIPAL ZONING LAW, 7.104 (3d. ed.1999) ......................................................... 12

Restatement (Third) of Law Governing Lawyers 74 (2000) ....................................................... 5

Constitutional Provisions

TEX.CONST.art. XI, 5. ................................................................................................................. 8



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CITY OF DALLAS MEMORANDUM OF POINTS AND AUTHORITIES RESPECTING

ATTORNEY-CLIENT AND LEGISLATIVE DELIBERATION PRIVILEGES Page 1

CITY OF DALLAS MEMORANDUM OF POINTS AND AUTHORITIES

RESPECTING ATTORNEY-CLIENT AND LEGISLATIVE DELIBERATION

PRIVILEGES

TO THE HONORABLE JUDGE OF SAID COURT:

The City of Dallas, Texas, a home-rule Texas municipal corporation (the City) is not a

party to this proceeding. However, present and former City officials and employees have been

subpoenaed to testify as trial witnesses in this case and have been included on parties trial

witness lists. In that sense, the City is a person from whom discovery may be had. As the City

stated in open court on August 3, 2009, the City might need to object some of the questions that

may be posed to present and former city officials and employees to the extent that such questions

elicit information for which the City might assert privileges. The instant memorandum is

submitted in compliance with the Courts request for briefing on applicable privileges.

As the undersigned counsel advised the Court on August 3, 2009, a specific briefing is

impossible because the City does not know in advance what specific questions may be asked or

about what subjects witnesses may be asked, nor does the City yet know which witnesses any

party may call to testify about potentially privileged subjects. Hence, as counsel informed the

Court the City would do, the City provides this memorandum of points and authorities on the

applicability to this trial of the two privileges most likely to be implicated here: The attorney-

client privilege and the legislative deliberations privilege.

In an order in this case dated June 25, 2008, filed under seal (ECF Doc. No. 309), the

Court has already recognized the Citys interest in protecting information in documents under the

attorney-client privilege in this case.1

1No purpose appears to be served by keeping that order sealed.



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Background

The Dallas City Attorney is the chief legal officer of the City. His duties and powers are

enumerated in Chapter VII of the City Charter of the City of Dallas, Texas (City Charter) and

in various provisions of the Dallas City Code and uncodified ordinances and resolutions

promulgated by the City Council. Important components of the City Attorneys duties are to:

be the legal adviser to the city manager, the council, or any committeethereof, all official boards and commissions and all city officers andemployees with respect to any legal question involving an official duty or

any legal matter pertaining to the affairs of the City of Dallas

when deemed for the best interest of the city, to advise or representofficers and employees of the city in litigation in matters arising out of theofficial conduct of their office or duties or in the course of their

employment;

perform such other duties as the council may direct or request. provide City officials and employees with ethics opinions pursuant to

Section12A-33 of the City Code, which also provides in pertinent partthat such employee or official can rely on the City Attorneys writtenopinion if, among other things, the person waives the attorney-client

privilege with respect to the written advisory opinion.

Dallas, Tx., Charter ch. VII, 3(7), (12), (13) (emphasis added); Dallas, Tx., Code

12A-33(b)(3) (emphasis added).

The City Attorney is head of the Citys Legal Department, commonly called the City

Attorneys Office (CAO), which is comprised of staff, including assistant city attorneys. All

powers and duties imposed on the city attorney may be exercised and performed by any assistant

city attorney under the direction of the city attorney. Dallas, Tx., Charter ch. VII, 2.

Madeleine B. Johnson was the City Attorney for the period June 7, 1999 through April 1, 2005.



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From April 1, 2005, through June 7, 2005, Thomas P. Perkins, Jr. was the Interim City Attorney

and since June 8, 2005 he has been the City Attorney.

ARGUMENT

I.

The City is entitled to invoke the attorney client privilege for communications between its

officials and employees, on the one part, and attorneys for the city, on the other part, to the

same extent that business corporations could do so.

A. Federal Common Law protects the fundamental attorney-client privilege of the City

and of City Officials in the context of a federal criminal trial.

Under the doctrine of attorney-client privilege, confidential communications

between a client and an attorney for the purpose of obtaining legal advice are privileged. A court cannot compel revelation of these communications through

discovery or testimony in civil or criminalmatters.

Denius v. Dunlap, 209 F.3d 944, 952 (7th Cir. 2000) (emphasis added).

It is crucial that government officials, who are expected to uphold and execute thelaw and who may face criminal prosecution for failure to do so, be encouraged to

seek out and receive fully informed legal advice. Upholding the privilege furthers

a culture in which consultation with government lawyers is accepted as a normal,desirable and even indispensable part of conducting business. Abrogating the

privilege undermines that culture and thereby impairs the public interest.

In re Grand Jury Investigation (Doe II), 399 F.3d 527, 534 (2nd Cir. 2005).

The attorney-client privilege is the oldest of the privileges for confidential

communications known to common law; deeply rooted in our countrys history and

jurisprudence. See Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). Abrogating the

attorney-client privilege in any context, including the local government context, runs contrary to

the extended history of the privilege in the United States, contravenes public policy applicable to

federal courts sitting in Texas, and goes against the Fifth Circuits appreciation of the importance

of this privilege. More than 100 years ago, the United States Supreme Court recognized the

importance of the attorney-client privilege in spite of any possible costs. InHunt v. Blackburn,



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128 U.S. 464 (1888), the Court explained that the privilege is founded upon necessity; in the

interest and administration of justice, of the aid of persons having knowledge of the law and

skilled in its practice, which assistance can only be safely and readily availed of when free from

the consequences or the apprehension of disclosure. Although the privilege has a potential cost,

it is rooted in the imperative need for confidence and trust. Jaffee v. Redmond, 518 U.S. 1, 10

(1996) (citation omitted). The loss of evidence admittedly caused by the privilege is justified in

part by fact that without the privilege, the client may not have made such communications in the

first place. Swidler & Berlin v. United States, 524 U.S. 399, 408 (1998).

The privilege protects not just communications of an attorneys advice to a client, but

also a clients factual disclosures necessary to obtain informed legal advice which might not

have been made absent the privilege. Fisher v. United States, 425 U.S. 391, 403 (1976).

Neither the Supreme Court, the Fifth Circuit, nor any court of this district has ever

refused to recognize a local governments or local officials attorney-client privilege in the

context of a federal criminal proceeding (although courts have of course sometimes found waiver

of the privilege or applied a recognized exception to the privilege). For the applicability of the

attorney-client privilege to the City of Dallas in the federal civil trial context, and the application

of the normal waiver principles, see generally AHF Community Development, LLC v. City of

Dallas, __ F.R.D.___, 2009 WL 348190 (N.D. Tex., February 12, 2009) (Fitzwater, C.J.).

In 1975, Congress rejected specific proposed Federal Rules of Evidence respecting

separate privileges, opting instead for Federal Rule of Evidence 501, which allows federal courts

to develop the federal common law of privileges in light of reason and experience.

Significantly, Rule 501 expressly recognizes that privileges under federal common law are



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available to a person, government, State, orpolitical subdivision thereof. FED.R.EVID. 501

(emphasis added).

It is widely recognized that the Supreme Courts proposed rules (Supreme Court

Standards) provide an accurate restatement of the federal common law of evidence as of the

Standards publication in 1972. [Supreme Court Standard 503] restates, rather than modifies,

the common-law lawyer-client privilege. Thus, it has considerable utility as a guide to the

federal common law. Jack B. Weinstein & Vivian M. Berger, 3 WEINSTEIN'S FEDERAL

EVIDENCE 503.02 (J.M. McLaughlin ed. 2005).2

Supreme Court Standard 503(a)(1) expressly

recognized that the client for purposes of the federal attorney-client privilege included a

person,public officer, or corporation, association, or otherorganization or entity, eitherpublic or

private, with no exception or limitation on the availability of the attorney-client privilege.

Supreme Court Standard 503(a)(1) (emphases added). There is no exception provided for grand

jury process, search warrants, or other criminal proceedings. See 3 Weinstein & Berger,supra at

503.01 (reproducing text of standard). Clearly under federal common law both local

governments and their officials could claim the attorney-client privilege. Moreover,

communications with government lawyers were treated no differently under Standard 503 than

were communications with other attorneys. Id. (reproducing text of S. Ct. Standard 503(a)(2),

defining lawyer for purposes of the attorney-client privilege as a person authorized, or

reasonably believed by the client to be authorized, to practice law in any state or nation).

2 See Citibank, N.A. v. Andros, 666 F.2d 1192, 1195 (8th Cir. 1981) (Despite Congress failureto enact the proposed rules on privileges, courts have continued to look to the proposed rules as a sourcefor defining the federal common law of attorney-client privilege); see also Willy v. AdministrativeReview Bd., 423 F.3d 483, 496 (5th Cir. 2005) (citing S. Ct. Standard 503(d) as authority respecting scopeof attorney-client privilege); Restatement (Third) of Law Governing Lawyers 74 (2000) (attorney-client privilege extends to a communication of a governmental organization ...).



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Although another circuits court of appeals has held that a federal grand jury subpoena

overrode a local government privilege, it did so under specific facts, and the holding was wrong.

See In re Witness Before Special Grand Jury 2000-2 (Ryan), 288 F.3d 289, 291 (7th Cir. 2002).

Two key factors that were present in Ryan are absent here: First, inRyan there was a perceived

reticence of local government attorneys to disclose information about crimes. Id. at 290-91;see

Ross v. City of Memphis, 423 F.3d 596, 603 n.2 (6th Cir. 2005) (upholding Citys privilege in

civil case, while noting that untrustworthy attorney was significant factor inRyan outcome);see

also In re Lindsey, 158 F.3d 1263, 1278 (D.C. Cir. 1998), cert. denied sub nom. Office of the

President v. Office of the Independent Counsel, 525 U.S. 996 (1998) (White House Counsel

couldinvoke Presidents attorney-client privilege against federal grand jury subpoena except that

counsel was obligated to disclose his own knowledge of crimes). Second, the client claiming the

privilege inRyan was a governmental department that wanted to waive its privileges. Ryan, 288

F.3d at 291-92. Another factor that has influenced some courts to override governmental

attorney-client privilege claims was the idea that federal agencies should not withhold

information from a federal grand jury a factor not present here. See, e.g., In re Lindsey,158

F.3d at 1278;In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 921 (8th Cir. 1997).

The public interest is best served by encouraging officials to consult their attorneys when

in doubt as to how to comply with applicable laws and the Court therefore must not eviscerate

the attorney-client privilege and must continue to allow it to extend to those communications,

even against federal grand jury process. This better-reasoned approach is the one adopted in the

Second and Sixth Circuits, which have properly upheld the privilege in principle as between

local officials and their government attorneys in the face even of federal grand jury process. See

In re Doe II, supra, (but criminal-fraud exception found); In re Grand Jury Subpoena (Doe I),



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886 F.2d 135, 139 (6th Cir. 1989) (however, city lost the right to use the privilege when the

meeting minutes became public under state law).

Because a federal grand jury has extraordinary powers of investigation, United States v.

Sells Eng'g, Inc., 463 U.S. 418, 423 (1983), a local governments attorney-client privilege should

be entitled to at least the same deference during a federal criminal trial as during a grand jury

investigation.

In the absence of dispositive Supreme Court or Fifth Circuit authority, federal courts

sitting in Texas should give great weight to Texas privilege policies in determining whether a

traditional privilege should be recognized; and as a matter of comity this deference should be

particularly strong when a political subdivision of the State and the officials of that governmental

unit assert the privilege. See Doe II, 399 F.3d at 527 (deference to Connecticut law protecting

communications between governor and his official attorney). In addition to the deference to

local laws espoused by the Second Circuit, the First Circuit has recognized the important of state

law as the primary factor in that courts four-part test for recognizing state privileges. SeeIn re

Hampers, 651 F.2d 19, 21-23 (1st Cir. 1981).3

The City Attorney is the attorney for each City officer and official, as well as for the City

and its Council, and other City agencies and departments. As noted above, the City Attorney is

expressly designated by the City Charter to advise City officers among other official clients.

Dallas, Tx., Charter, ch. VII, 3(7)). Moreover, his advice to officers in providing Ethics

Opinions is expressly made subject to the attorney-client privilege to be held by the officer-

clients. Dallas, Tx., Code 12A-33(b)(3). Assistant City Attorneys have the same powers and

3 The fourHampers factors are: (1) Would the courts of the state recognize such a privilege? (2)

Is the state's asserted privilege intrinsically meritorious in the court's independent judgment? (3) Shouldsuch a privileged relationship be sedulously fostered? and (4) Is the injury that would inure to the relation

by the disclosure of the communication greater than the benefit thereby granted?



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duties and the City Attorney,Dallas, Tx.,Charter ch. VII, 2, so their communications with City

officials are likewise privileged.

The above-cited charter and code provisions are well within the Citys home-rule

legislative powers and have the force of law:

It was the purpose of the Home-Rule Amendment [to the Texas Constitution[4]

to bestow upon accepting cities and towns of more than 5000 population full power of self-government, that is, full authority to do anything the legislature

could theretofore have authorized them to do. The result is that now it is

necessary to look to the acts of the legislature not for grants of power to suchcities but only for limitations on their powers. Forwood v. City of Taylor, 147

Tex. 161, 214 S.W.2d 282, 286 (Tex. 1948) (citing TEX.CONST. art. XI, 5);seealsoDallas Merchants & Concessionaires Assoc. v. City of Dallas, 852 S.W.2d

489, 490-91 (Tex. 1993).

Lipscomb v. Randall, 985 S.W.2d 601, 605 (Tex. App. Fort Worth 1999, pet. denied).

Texas case law also explicitly recognizes that local governments and their officials are

entitled to communicate under the privilege with their official attorneys. See In re Anderson,

163 S.W.3d 136, 140-42 (Tex. App. San Antonio 2005, orig. proceeding) (San Antonio City

Attorney waived Citys attorney-client privilege by failing to follow state court procedures for

claiming it);In re City of Dallas, No. 05-03-00516-CV, 2003 WL 21000387 (Tex. App. Dallas

May 5, 2003, no pet.) (mem.op.) (attorney-client privilege attached to documents involving

efforts of city attorney for defendant in negotiating contracts, where he acted as both attorney

and negotiator).

Further, Texas Rule of Evidence 503 is identical in relevant parts to the above-quoted

passages of Supreme Court Standard 503 Texas governments and officials are clients and

Texas government attorneys are attorneys for purposes of the attorney-client privilege. Texas

Rule 503 is adopted with the express authority of the Legislature by the Texas Supreme Court

(TEX.GOVT CODE 22.004) and Court of Criminal Appeals (TEX.GOVT CODE 22.109) by

4 TEX.CONST. art. XI, 5.



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express delegation of power from the Legislature. Additionally, the Texas Supreme Court has

adopted mandatory disciplinary rules involving punishment extending to disbarment that forbid

Texas attorneys disclosure of confidential client information. See TEX. DISCIPLINARY R. OF

PROFL CONDUCT 1.05. These rules also have the force of law under the States integrated bar

system. See State Bar Act, TEX. GOVT CODE CH. 81. Thus the duty of Texas government

lawyers not to divulge privileged information is embodied in State law a factor that the Second

Circuit considered inIn re Doe II, 399 F.3d at 534.

For these reasons, the Court should recognize and protect the attorney-client privilege of

the City and its officials respecting their communications with the City Attorneys Office here.

The Government may assert the so-called crime-fraud exception to the attorney-client

privilege as to communications that the City may assert to be privileged. However, the

exception cannot apply to communications intended to conceal past offenses it only excepts

communications aimed at furthering continuing or future misconduct. See United States v.

Edwards, 303 F.3d 606, 618 (5th Cir. 2002); quoted with approval,In re Grand Jury Subpoenas,

561 F.3d 408, 412 (5th Cir. 2009). The government bears the burden of establishing a prima

facie case that the attorney-client relationship was intended to further criminal or fraudulent

activity. In re Grand Jury Subpoena, 419 F.3d 329, 335 (5th Cir. 2005) (internal quotation

marks and citation omitted). Allegations in pleadings are not evidence and are not sufficient to

make a prima facie showing that the crime-fraud exception applies. Id. at 336 (internal

quotation marks and citation omitted). The Fifth Circuit has refined this prima facie standard,

breaking it into two separate components: First there must be a prima facie showing of a

violation sufficiently serious to defeat the attorney work-product privilege. Second, the court



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must find some valid relationship between the communication at issue and the prima facie

violation.

The first part of the test is alternatively stated as requiring a showing that the

client was engaged in ongoing fraudulent activity when the work product wassought or produced. The second part of the test is alternatively stated as requiring

a showing that the work product material reasonably relates to the fraudulent

activity.

Id. at 346 (internal quotation marks and citations omitted).

The City does not believe that the Government or any defendant can adduce evidence

sufficient to meet that burden. Without access to specific questions, the City cannot of course in

this memorandum refute in advance any specific grounds upon which the Government may rely

for the crime-fraud exception. However, we note here:

a. The fraud involved in the communication to the attorney must be serious;

b. That fraud must have a material, not merely incidental, relationship to the

underlying crime that the Government is investigating;

c. The City Attorneys role in providing ethics and conflict-ofinterest opinions does

not extend to opining as to legality of conduct under the criminal law. At most,

the opinion would extend to whether an official could participate in certain

hearings or votes, or engage in certain outside business activities, without

violating state or city ethics laws and rules. Thus, if the Governments theory in

respect of the crime-fraud exception is that a suspect lied to the City Attorney in

order to be permitted to vote on a matter, the Government should also have to

demonstrate that the officials vote was decisive and that it directly related to the

conduct that the Investigation is targeting.

[T]he proper scope of the crime-fraud exception must necessarily be limited to

those attorney-client communications and work products reasonably related to the



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furtherance of the ongoing or future crime or fraud at issue. Otherwise, to put it

simply, the crime-fraud exception swallows the privilege rule.

Id. at 347.

To the extent if any that the City Attorneys Office work-product may be elicited by

questions at this trial, the principles applicable to such work-products admissibility and

discoverability will in the main be the same as those applicable to the attorney-client privilege.

Id.

The attorney-client privilege of an organization belongs to the organization, not to any

individual. SeeCommodity Futures Trading Commn v. Weintraub, 471 U.S. 343, 358 (1985).

II

City Council Members and Board Members cannot be questioned about their thought

processes relating to legislative conduct under the legislative deliberation privilege.

The testimonial privilege is an inherent aspect of the legislative immunity that applies to

local legislators under the Speech and Debate Clause of the United States Constitution.

Cunningham v. Chapel Hill, ISD, 438 F. Supp. 2d 718, 723 (E.D. Tex. 2006).

The duties and powers of the Dallas City Council are predominantly legislative. These

duties are specified in several provisions scattered throughout the City Charter and City Code,

both available online via links from www.dallascityattorney.org, and in Texas statutes, but of

particular relevance is City Charter Chapter III. Most pertinently, [e]xcept as otherwise

provided by [the] Charter, all powers conferred on the city shall be exercised by a city council to

be composed of 15 members, including the Mayor. Dallas, Tx., Charter ch. III, 1. Thus, the

City Council is the legislature of the City, as is also established by plentiful evidence already

admitted during the court of this trial and is generally known in this district.



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Further, land use decisions of the City Plan & Zoning Commission, including zoning and

platting, are legislative. SeeWeatherford v. City of San Marcos, 157 S.W.3d 473, 483484 (Tex.

App.-Austin 2004, pet. denied); City of Pharr v. Tippitt, 616 S.W.2d 173, 175-76 (Tex.1981);

see also John Mixon, James L. Dougherty, Jr. & Brenda N. McDonald, TEXAS MUNICIPAL

ZONING LAW, 7.104 (3d. ed.1999) ("[a]doption or rejection of a PDD by ordinance amendment

is, by current Texas and Fifth Circuit law, a legislative act"). Zoning is a governmental function

that allows "a municipality, in the exercise of its legislative discretion, to restrict the use of

private property." City of Brookside Village v. Comeau, 633 S.W.2d 790, 792 (Tex. 1982); see

Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 933 (Tex. 1998) ("Zoning decisions are vested

in the discretion of municipal authorities; courts should not assume the role of a super zoning

board."); City ofRound Rock v. Smith, 687 S.W.2d 300, 302-03 (Tex. 1985) ("plat approval is a

governmental function").

Of course, City Council land use actions based on Plan & Zoning Commission

Recommendations are by definition also legislative. For example, a City Councils denial of an

application for a specific use permit has been held to be a legislative function. See Bannum v.

City of Beaumont, 236 F. Supp. 2d 633, 634 (E.D. Tex. 2002).

The principle that legislators are absolutely immune from liability for their legislative

activities has long been recognized in Anglo-American law. Bogan v. Scott-Harris, 523 U.S. 44,

48 (1998). The Supreme Court has held that this immunity applies to local legislators such as

City Council members. Id. at 49. When a local legislator such as a city council member is

shielded from liability by legislative immunity, evidentiary and testimonial privileges preclude

any party from deposing the local legislator or otherwise compelling testimony about legislative

actions taken in the sphere of legitimate legislative activity. Cunningham v. Chapel Hill ISD,



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438 F. Supp. 2d 718, 722 (E.D. Tex. 2006);Bannum v. City of Beaumont,supra, 236 F. Supp. 2d

at 634;see also Minton v. St. Bernard Parish Sch. Bd., 803 F. 2d 129, 135 (5th Cir. 1986).

Not all actions taken by an official with legislative duties are protected by legislative

immunity. The immunity protects only those duties that are functionally legislative. Hughes v.

Tarrant County Tex., 948 F. 2d 918, 920 (5th Cir. 1991). Whether an act is legislative turns on

the nature of the act, rather than on the motive or intent of the official performing it. Bogan,

523 U.S. at 54. Relying on Hughes, 948 F. 2d at 920 the Texas Supreme Court has held that a

function is legislative, and thus protected by immunity, if it reflects a discretionary,

policymaking decision of general application, rather than an individualized decision based upon

particular facts. In re Perry, 60 S.W. 3d 857, 860 (Tex. 2001)(citing Bogan, 523 U.S. at 54).

Likewise, the Fifth Circuit has developed two general guidelines for determining whether a

particular activity is legislative rather than administrative and therefore protected by immunity.

Bryan v. City of Madison, 213 F. 3d 267, 273 (5th Cir. 2000). The Fifth Circuit described these

guidelines as follows:

The first test focuses on the nature of the facts used to reach the given decision. Ifthe underlying facts on which the decision is based are legislative facts, such as

generalizations concerning a policy or state of affairs, then the decision is

legislative. If the facts used in the decisionmaking are more specific, such as

those that relate to particular individuals or situations, then the decision isadministrative. The second test focuses on the particularity of the impact of the

state action. If the action involves establishment of a general policy, it is

legislative; if the action single[s] out specific individuals and affect[s] themdifferently from others, it is legislative.

Hughes, 948 F. 2d at 921;Bryan, 213 F. 3d at 273. The more the general community is affected

by the action, the more likely it is a legislative act. Bannum, 236 F. Supp. 2d at 635.

InBannum, the Court held that the City Councils denial of Bannums application for a

specific use permit for operation of a halfway house at a proposed location was legislative



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because it revolved around a debate over public safety and reflected a discretionary,

policymaking decision implicating the city and specific communities. Bannum, 236 F. Supp. 2d

at 636. The Bannum Court concluded, therefore, that Bannum was precluded from taking the

depositions of the Council members by the testimonial privilege attached to legislative

immunity. Id. at 637.

The privilege clearly belongs to the local government, not just to the local

councilmember, because it is the local governments interest in protecting the democratic

process, not the local legislators personal interests, that justifies recognition of the privilege. As

the Cunningham court explained:

To [refuse to apply the privilege to local government legislators], would

undoubtably have a chilling effect on local legislative bodies and their members.Denying local legislators the protection of the testimonial privilege would likely

dissuade some citizens from volunteering for such local legislative bodies and

would surely hinder the free flow of discussion that is such an integral part of thedemocratic legislative process employed by these and all other legislative bodies

in this country.

438 F. Supp. 2d at 722723. Therefore, the city should be allowed to assert the privilege even if

a present or former legislator might wish to waive it. In particular, a former official should not

be empowered to waive a governmental units present privilege.

Respectfully submitted,

OFFICE OF CITY ATTORNEYCITY OF DALLAS, TEXAS

By: /s/ Peter B. HaskelPETER B. HASKEL

Assistant City AttorneyTXNB 09198900



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Dallas City Attorneys Office

1500 Marilla, Room 7BN

Dallas TX 75201214-670-3519

214-670-0622 (FAX)

[email protected]

ATTORNEYS FOR CITY

OF DALLAS, TEXAS

CERTIFICATE OF SERVICE

I hereby certify that on August 4, 2009, I electronically filed the foregoing memorandum

of points and authorities with the clerk of the court for the U.S. District Court, Northern District

of Texas, using the electronic case filing system of the court. Upon information and belief, the

electronic case filing system sent a Notice of Electronic Filing to all attorneys of record who

have consented in writing to accept this Notice as service of this document by electronic means.

/s/ Peter B. Haskel


doc 927_city arguing atty client privilege

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