mfr v. schaefer (2) - wisconsin legislature v. schaefer (2).… · tiary and testimonial privilege...

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MARYLANDERS FOR FAIR REPRESENTATION, I NC., et al. v. WILLIAMDONALD SCHAEFER, et a l .; NATIONAL ASSOCIATION FOR THE AD-VANCEMENT OF COLORED PEOPLE, INC, et a l . v. WILLIAM DONALD

SCHAEFER, et a l .

CIVIL NO. S-92-5 1 0, CIVIL NO. S-92-1409

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

144 F.R.D . 292;. 1 992 U.S. Dist. LEXIS 1660 6; 24 Fed. R. Serv. 3d (Callaghan) 1242

October 14, 1992, DecidedOctober 14, 1992, Filed

CASE SUMMARY :

PROCEDURAL POSTURE: Plainti ffs, liti gants andnon-profit corporation (corporation), each fi led an actionagainst defendants, govern or , President of the MarylandState Senate (president) , Speaker of the Maryland Houseof Delegates (speaker) , and offi cials , seeking declaratoryand injunctive relief stemming from the enactm ent of theMaryland state legislative redistricting plan (plan) . Theparties were before the court for resolution of certaindiscovery disputes .

OVERVIEW: The litigants and corporation sought tohave their suits consolidated . Both cases challen ged theconstitutionality of the plan, which was enacted by theMaryland General Assembly. Following completion ofthe 1990 federal census , the governor appointed a com-mittee, including the president and speaker , to aid him informulating a new legislative and Congressional district-ing plan . The committee recommended a plan to thegovernor. He made a few minor changes and in troducedit to the general assembly . The plan became law . Afterconsidering the various discovery disputes between theparties , the court held that : (1) an order would be enteredseparately consolidating the two cases for discovery pur-poses and for all future hearings , including trial; (2 ) thespeaker and the president had no personal liability Co thelitigants or corporat ion where , as members of th e com-mi tte e, they were the governor's " alter ego" and thusgranted full immunity where the governor's l e gislativ e

immunity was established; (3) discovery would proceedas normal and not bifurcated; and (4) an advisor to thecommittee had 14 days to submit an affidavit concern inghis interactions with th e committe e.

OUTCOME : The court gran ted the litigant's motion toconsolidate their suit with that of the corporation. Thecourt granted the governor , speaker, president , and offi-cials' motion to dismis s the speaker and the president.The court ordered the governor and o ffi cials to submit anaffidavit from an advisor to the committee within 14days of the date of the accompanying order . The courtdenied the governor and officials' motion for bifurcateddiscovery .

CORE TERMS: discovery , legislative immunity , redis-tricting , immunity, motive, advisory committee, census ,s ession, testimonial , depos ition, election, sphere, statelegislators , preparation, anticipated , voting , private citi-zens , gerrymandering, introduce, staff, aide, legislativedistricts , legislative body , discriminatory effect , subjectmatter, work-product, motivation , functional, functioned,appointed

LexisNexis(R) Headnotes

Constitutional Law > Congression al Duties & Powers >Elections > General Overview

144 F. R. D . 292,'; 1992 U. S . D ist. LEXIS 1 6606, **;24 Fed. R . Se rv . 3 d (Callagh a n) 1 2 4 2

Constitutional Larv > Equal Protection > Voting Dis-tricts & RepresentativesGovernments > State & Territorial Governments >Elections[HNI]Md . Const . art . III , 5 reads, in pe rt inent part, asfollows: Fo ll owing each decennial census of the UnitedStates and after public hearings, the Governor shall pre-pare a plan setting forth the boundaries of the legislati v edi str icts for elect i ng of the members of the Senate andthe House of Delegates . The Governor shall present theplan to the Pres i dent of the Senate and Speaker of theHouse of Delegates who shall introduce the Governor ' splan as a joint resolution Co th e General Assembly, notlater than the first day of its regular session in the secondyear following every census . The plan shall conform toSections 2, 3 , and 4 of this Article. Following each de-cennial census the General Assembly may by joint reso -lution adopt a plan setting forth the boundaries of thelegislative districts for the election of members of theSenate and the House of Delegates, which plan shall con-form to Sections 2 , 3 , and 4 of this Article . If a plan hasbeen adopted by the General Assembly by the 45th dayafter the opening of the regular session of the GeneralAssembly in the second year following every census , theplan adopted by the General Assembly shall become law .If no plan has been adopted by the General Assembly forthese purposes by the 45th day after the opening of theregular session of the General Assembly the Govern or'splan presented to the General Assembly shall becomelaw .

Civil Rights Law > Immunity From Liability > LocalOfftcials > Customs & PoliciesConstitutional Law > Congressional Duties & Powers >Speech & Debate Immunity[HN2]The doctrine of absolute legislative immunity formembers of the United States Congress stems from theSpeech or Debate Clause of the Constitution . The clauseis designed to shield legislators from the threat of possi-ble prosecution by an un friendly executive and convic -tion by a hostile judic i ary . Legislators are immune fromdeterrents to the uninhibited discharge of their legislativeduty , not for their private indulgence but for the publicgood. One must not expect uncommon courage even inlegislators . The privilege would be of little value if theycould be subjected to the cost and inconvenience anddistractions of a trial upon a conclusion of the pleader, orto the hazard of a judgment against them based upon ajury's speculation as to motives . U.S. Const . art. I , § 6 .For any speech or debate i n either house, they (Represen-tatives and Senators) shall not be questioned in any otherplace . Md Const. art. III 1§1 8 has a similar provision ,providing th at no s enator or delegate s hall be liable in

any civil action , or criminal prosecution , whatever , forword s spoken in debate.

Governments > State & Territorial Governments >Claims By & Against[HN3 ]Leg i s lative immunity not only protects state legis-lators from civil liabili ty, it also functions as an eviden-tiary and te stimonial privilege . To effectuate the pur-poses of the doctrine of legislative immunity, legislatorsshould be protected not only from the consequences oflitigation's results but also from the burden of defendingthemselves . Thus , a state legislator acting within thesphere of legitimate legislative activity may not be aparty to a civil suit concerning those activities , nor mayhe be required to testify regarding those same actions .The privilege is a personal one and may be waived orasse rted by each individual legislator. The immunityenjoyed by state legislators is absolute . Where an inquiryinto legislative motive would require legislators Co Yestifyregarding conduct in their legislative capacity, the doc-trine of legislat ive immunity has fu ll force.

Constitutional Law > Congressional Duties & Powers>Speech & Debate ImmunityGovernments > State & Territorial Governments >Claims By & Against[HN4 ]The doctrine of legislative immunity is also appli-cable to legislative staff members, officers, or other em-ployees of a legislative body, although it is considered" less absolute" as applied to these individuals. The im-munity enjoyed by legislative staff derives from the indi-vidual legislators themselves : to the extent a legislator isimmunized, his staffers are likewise "cloaked." For thepurpose of construing the privilege a member and hisaide are to be treated as one . It is literally impossible forMembers of Congress to perform their legislat i ve taskswithout the help of aides and as s istants; the day-to-daywork of such aides is so critical to the members' per-formance that they must be treated as the latter's alteregos ; and that if they are not so recognized , the centralrole of the Soeech or Debate Clause will inevitably bediminished and frustrated.

Constitutional Law > Congressional Duties & Powers >Speech & Debate ImmunityGovernments > State & Territorial Governments >Claims By & AgainstPublic Contracts Law > Governmental Immunities >Sovereign Immunity[IINS ] It is the function of the government official thatdetermines whether or not he is enti tled Co legi s lativeimmunity , n ot hi s title. The "functional" approach in-

I44 F . R .D . 2 92, *; 1992 U . S . Di st . LEXIS 16606 ,24 Fe d . R . Serv. 3d (Cal lag han) 1 242

volves an examinati on of the nature of the function s withwhich a particular offi cial or class of officials has be enlawfully entru sted as we ll as the e ffect that expo sure toparticular forms of li ability woul d l i kely have on theappropriate exercise of those functions. Thus , much moreimport ant than the branch to which an official is ass i gnedi s his particular role in a given governmental activi ty andwhether the absence of immunity would have a"chi llingeffect " upon the official's performance of his duties . Leg-islative immunity i s not confined to the legislativebranch; rather, the judiciary can act in a legislative ca-pacity . The grant of legislative immunity appears to bedependent upon the confluence of three separate ele-ments: (1) the actor, who must be a government officialor an individual working on his behalf; (2) the act itself,which must fall within the "sphere of legitimate legisla-tive ac ti vity ;" and (3) the act's proximity to the legisla-tive arena .

land. For National Association for the Advancement ofColored People, Plaintiffs: Dennis C . Hayes , GeneralCounsel and Samuel L . Walters, Ass istant GeneralCounsel , National Association for the Advancement ofColored People, Deborah A. Jeon and Susan Goering ,American Civil Liberties Union, Baltimore, Maryland ,and Peter C . Forbes, Leslie J. Cloutier, Micki M. Chenand Joseph P. Savage, Morrison & Foerster, Washington,D.C . for plaintiffs, National Association for the Ad-vancement of Colored People.

For William Donald Schaefer, State AdministrativeBoard of Election Laws, Winfield M. Kelly , Jr., ThomasV . Miller, Jr., and R. Clayton Mitchell , Jr., Defendants:Evelyn O. Cannon, Carmen M. Shepherd and Lucy A.Cardwell , Assistants Attorney General, Baltimore, Mary -land and Robert A. Zarnoch and Kathryn M. Rowe, As-sistants Attorney General , Annapolis, Maryland ,

Constitutional Lnw > Congressional Duties & Powers >General OverviewGovernments > State & Territorial Governments > Leg-islatures[HN6] A legislative act involves policy-making ratherthan mere adminis trative application of existing policies .

Civil Procedure > Discovery > Privileged Matters >Work Produet > General OverviewEvidence > Testimony > General Overview[HN7]The text of Fed . R. Civ. P. 260)(b) , in pertinentpart, is as follows: Discove ry of facts known and opin-ions held by experts , otherwise discoverable under theprovisions of Fed R. Civ. P. 26(b)(I ) of this rule andacquired or developed in anticipation of liti gation or fortrial, may be obtained only as follows: (A)(i) A partymay through interrogatories require any other party toidentify each person whom the other party expects to callas an expert witness at tr ial , to state the subject matter onwhich the expert is expected to testify , and to s tate thesubstance of the facts and opinions to which the expe rt isexpected to testify and a summary of the grounds foreach opinion. (B) A party may discover facts known oropinions held by an expert who has been retained or spe-cially employed by another party in anticipation of litiga-tion or preparation for trial and who is not expected to becalled as a witness at trial , only upon a showing of ex-ceptional circumstances under which it is impracticablefor the party seeking discovery to obtain facts or opin-ions on the same subject by other means .

COUNSEL: [ ** 1] For Mary landers For Fair Represen-tation , Inc., Plaintiffs: David D . Queen and Randall L .Hagen , Obe r , Kaler , Grim es & Shriver, Baltimore, Mary-

JUDGES: Smalkin

OPINION BY: FREDERIC N. SMALKIN

OPINION

[ *294] MEMORANDUMOPINION

Before Murnaghan , Circuit Judge , Motz, DistrictJudge , and Smalkin, District Judge.

1. INTRODUCTION

Appended to this Memorandum Opinion [* * 2) is aseparate opinion of Judges Murnaghan and Motz inwhich they differ from the undersigned with regard to thepersons who may as sert the legislative pri vilege. In allother aspects, however, they concur in the opinion as setforth below .

This matter is before the Court for resolution of cer-tain discovery disputes between the plaintiffs, Maryland-ers for Fair Representation ("MFFR") ' and the NationalAssociation for the Advancement of Colored People("NAACP" ) , ' and the defendants, Governor William D .Schaefer and various state officials . I These two casesinvolve a number of challenges ` to the constitutionalityof the Maryland state legislative redistricting plan ("thePlan") , as enacted by the Maryland General Assemblyduring its 1992 session . ' Pursuant to 28 U.S. C 6 2284(West 1978 & Supp. 1992), a three -judge court has beenconvened to consider the issues raised in these cases.

I Marylanders for Fair Representation, Inc. isalleged to be "a not-for-profit , non -partisan cor-poration organized . .. for the purpose of takingsuch action as may be neces s ary to as s ure thatCongre s sional and legislative districts in Mary-land shall conform to the law s, Constitution and

14 4 F , R . D . 292 , *; ] 992 U . S . Dist . LEXIS 16606 ,24 Fed . R . Serv . 3d (Ca ll aghan) 1 242

cen sus of the United States and that they be fairand equitab le . " MFFR Amend . Compl . at P 7 .

( **312 Plaintiffs al so include Maryland's NAACP-affiliated chapters as well as numerous privateindividu als .3 Additional defendants are the State Adminis-trative Board of Election Laws ("ElectionBoard"); Gene M. Raynor, State Admini strator ofElection Laws; Winfield M. Kelly, Jr . , Secretaryof State for the State of Maryland ; Thomas V.Miller, Jr . , President of the Maryland State Sen -ate ; and R. Clayton Mitchell, Jr., Speaker of theMaryland House of Delegates.4 Plaintiffs' complaints allege, inter adaa, that theGovernor's Plan (1) is the product of politi cal ger-rymandering , (2) violates Section 2 of the VotingRights Act, 42 US.C . § 1973 , (D violates 42U S . C. & 1983 , and (4) violates both the Four-teenth (one person-one vote/single & mulYi-member districts) and Fifteenth (dilution of mi-nority voting s tr ength) Amendments of theUnited States Constitution .5 The Maryland Constitution confers originaljurisdiction upon the Maryland Court of Appealsto consider constitutional challenges to redistrict-ing plans . Challenges similar to those here are be-ing pursued simultaneously in the Maryland courtsystem. (See Memorandum & Order, paper #7,June 15, 1992 , at 2 J

[** 4] The NAACP Plaintiffs have moved underFed . R Civ. P 42a to consolidate their action with thatfiled by the MFFR. Because these two suits involvecommon [*295] questions of law and fact and consoli-dation will tend to avoid unnecessary costs and delay,combining the two cases for all future proceedings willserve the objectives of Rute 42 a . Accordingly , an Orderwill be entered separately, consolidating the above cap-t i oned cases for discovery purposes and for all futurehearings, including trial.

I n their pleadings , pla i ntiffs request both declaratoryand injunctive relief. Specifically, plaintiffs seek to havethe Governor's redistricting Plan declared unconstitu-tional and to have this Court prohibit the defendants fromholding legislative elect i ons based upon the Plan'sboundaries . (MFFR Amend . Compl. PP 1& 2, NAACPCompl . at P 1.) Further, the plaintiffs ask this Court tofashion such relief as may be required to achieve a con-stitutional legislative dis tricting plan for the state ofMaryland .

Pursuant to thi s Court ' s July 24, 1992 schedulingOrder , plaint i ffs filed propo sed discovery schedules ,which included gen eral request s for documentary evi-den ce as well as depo s ition [ '`* 5] testimony from rele-

vant party and non-party witness es . The defendants re-sponded to and strongly opposed the plaintiffs' proposals ,and the plaintiffs, in turn , filed their oppos ition to thedefendan ts' suggested di s covery limitations . This Courtheld a discovery hearin g on September 17 , 1992 to re-solve the major discovery disagreements .

The three central discovery disputes as s et forth bythe parties in their papers and at the hearing are as fol-lows : (1) whether the exi s tence of legislative immunityprecludes the deposition of defendants Thomas V."Mike" Miller, Jr., President of the Senate and R. Clay-ton Mitchell , Jr., Speaker of the House of Delegates, aswell as any inqu iry into legislative "moti ve" concerningthe introduction of the redistricting plan ; (2) whether thework-product doctrine bars the deposition of, or discov-ery concerning , Dr . Allan J. Lichtman , the state's redis-tricting consultant; and (3) whether discovery should bebifurcated in order to confine plainti ffs' initial inqui ry toissues not related to discriminatory intent . Each of theseissues will be addressed in turn. `

6 In addition , the defendants fi led a Motion toDismiss Defendan ts Mitchell and Miller .

[ ** 6] IL FACTUAL BACKGROUND

The redistricting plan at issue here was submitted tothe General Assembly by Governor Schaefer pursuant tohis state constitutional mandate . Under Article III & 5 ofthe Marvland Constitut i on, the Governor is required,following each decennial cen sus and after public hear-ings , to propose a plan for sett ing the boundaries of legis-lative districts for electing members to the MarylandSenate and House of Delegates and to the United StatesCongress. ' After the Governor's plan has been submit-ted, the General Assembly may introduce and adopt analternative plan for redistricting the state. If, however,the General Assembly fails to act (either by ratifying theGove rnor's plan or one of its own) within 45 days fromthe introduction of the Governor's proposal, the Gover-nor's plan becomes law .

7[HN1]Article III, § 5 reads, in pertinent part,as follows:

Following each decennial censusof the United States and after pub-lic hearings , the Governor shallprepare a plan sett ing forth theboundari es of the legislative di s-tricts for electing of the membersof the Senate and the Hous e ofDelegates.

The Governor shall presentthe plan to the President of th e

144 F . R .D . 2 92, *; 1992 U . S . Di st . LEXIS 16606 , **;24 Fed . R . Serv . 3 d (Callaghan) 1242

Senate and Speaker of th e Houseof Delegates who shall introducethe Govern or's plan as a joint reso-lution to the General A ssembly ,not later than the first day of itsregular session in the second yearfollowing every census,. . . . Theplan shall conform to Sections 2,3, and 4 of this Art icle. Followingeach decennial census the GeneralAssembly may by joint resolutionadopt a plan setting forth theboundaries of the legislative dis-tricts for the election of membersof the Senate and the House ofDelegates, which plan shall con-form to Sections 2, 3, and 4 of thisArt icle. If a plan has been adoptedby the General Assembly by the45th day after the opening of theregular session of the General As-sembly in the second year follow-ing every census, the plan adoptedby the General Assembly shall be-come law. If no plan has beenadopted by the General Assemblyfor these purposes by the 45th dayafter the opening of the regularsession of the General Assembly .

. the Governor's plan presented tothe General Assembly shall be-come law .

[* *7 ] [*296] On May 14 , 1991, follow ing com-pleYion of the 1990 federal census , Govern or Schaeferappointed a five-member Redistricting Advisory Com -mittee ("the Committee " ) , to assist him in the formula-tion of new legislative and Congressional districtingplans . s The five-member committee was comprised oftwo legislators and three private citizens. Members in-cluded Thomas V. "Mike" Miller, Jr ., President of theSenate; R. Clayton Mitchell, Jr ., Speaker of the House ofDelegates; Donna M . Felling; Norman M. Glasgow Sr.;and Benjamin L . Brown , chairman of the Committ ee. 'The purpose of the Commi ttee was to "make recommen-dations to the Governor and General Assembly onboundary changes for legislative and Congressional elec-tion distr icts" reflecting population shifts as recorded inthe 1990 census . 1991-92 Maryland Manual, at 486 .

8 This committee was not the first of its kind . In1981 , then Governor Harry Hughes also ap-pointed a five-member adviso ry committee to aidin the deve lopment of a new districting plan . See

[* "g ]

Matter oLLeQislativ e Distric tinQ, 299 Md. 658 ,667 , 475 A . 2d 42 8, 432 (Md. ) , appeal dismissedsub nom Wiser v . Huehes 459 U . S . 962. 74 L .Gd 2d 2 72 I03 S . Ct. 286 (198 2) . I t appears thatMaryland ConstiYUtion Art icle II , & 24 (Reorgani -zation of Executive Branch) provides Govern orSchaefer the authority to appoint the AdvisoryCommittee , although this Court found no specificreference to that section by the part ies to these ac-tions.

9 The membership of the Committ ee appears tobe the result of a political compromi se betweenthe office of the Governor and the leaders ofMarylan d's General Assembly. See , e . g. , "As-sembly leaders , Schaefer spar over redistrictingpanel , " The Baltimore Sun, May 8 , 1991 .

In December of 1991, the Committee recommendeda legislative redistr icting plan to the Govern or. The Gov-ernor made minor changes to the plan and introduced itto the General Assembly on January 8 , 1992 , the firstday of the 1992 session. (MFFR Amend . Compl . at P27.) The General Assembly did not amend the Gover-nor's plan nor did it enact an alternative plan; thus, onFebru ary 22 , 1992, the 45th day of the 1992 session , theGovern or's plan became law . The present actions werefi led shortly thereafter.

IIL LEGISLATIVE IMMUNITY

Plaintiffs' wide-ranging discovery proposals includethe customary interrogatories , requests for documentaryevidence and admissions , and depositions of both factand expe rt witnesses . Specifically, plaintiffs intend toinquire, inter alia, into "the reapportionment criteria that[**9] the defendants used in developing ... the statelegislative plan" and "defendants' reasons for rejectingalternative redistricting pl an s submitted by the NAACPplaintiffs or third part ies." (NAACP Pls . ' ProposedSchedule of Discovery , at 6 . ) Plaintiffs also intend todepose, among others , the members of the Governor'sAdvisory Committee (including defendants Mitche ll andMiller) , and selected additional "non-party" members ofthe Maryland General Assembly . (Id. at 8 , MFFR Pls:Proposed Schedule of Discovery, at 3.) In opposition ,defendants contend that much of the plaintiffs' proposedinquiry into the legislative motivation behind the Gover-nor's Plan is barred by the doctrine of legislative immu-nity . (Defs . ' Resp. to Proposed Discovery , at 2-3 . ) De-fendants argue that the "preparation and discussion of alegislative redistr icting plan , consideration of alterna-tives , and voting to approve or reject such a plan, arelegislative acts within the protection of legislative privi-leges . " (Id. at 17 . ) A ll parties recognize th at if defen-dants' claims of legislative immunity are accepte d , pla in -

1 4 4 F.R.D . 292, *; 1992 U.S. Dist. LEXIS 16606,24 Fed . R . Serv . 3 d (Ca l lagh an) 1 2 4 2

tiffs' discovery efforts in thi s case would be substantia llycu rtailed .

DOCTRINE OF [" *1 0] LEGISLA TIVE IMMU-NITY

[HN2]The doctrine of absolute l egi s lative immunityfor members of the United States Congress stems fromthe Speech ar Debate Clause of the Constitution. 10 TheClause is designed to shield legislators from the threat ofpo s sible prosecution by an un friendly [*297] executiveand conviction by a hostile judiciary . United States v .Johnson 383 U . S . 169 18I IS L. Fd. 2d 681 86 . t.749 1966 . The common-law immunity for state legisla -tors was first recognized in Tennev v. Brandhove , 341U S 367 376 95 L Ed 1019 71 S. Ct 783 rehg, de-nied, 342 U S 843 96 L Ed 637 72 S Ct 20 (1951).

from civilThe Tennny Court created absolute immunitysuit " for state legislators acting within the sphere oflegitimate legislative activity. " Id. at 376 . The protectionagainst civil liability extends to suits for injunctive anddeclaratory relief, such as those currently before thisCourt . Although the Tenney court did not base its dec i -s ion upon the Speech or Debate clause, it did discuss thehistorical underpinnings and policy rationales for theClause in support of its holding . See generallyCorporation InsuZar de S�ros v Garcia 709 F Suop288 (D.P.R. 1989), [* * I1] appeal dismissed, 876 F.2d254 (lst Cir . 1989 . The Tenney court acknowledged thatthe privilege of legislators to act without fear of arrest orcivil prosecution can be traced back to the Framers' at-tempts to avoid the parliamentary struggles common inSixteenth and Seventeenth Century England . Tennev,341 U . S. at 372. In explaining the necessity of the privi-lege , the Tenney Court noted that:

Legislators are immune from deterrentsto the uninhibited discharge of their legis -lative duty, not for their pri vate indul-gence but for the public good. One mustnot expect uncommon courage even inlegislators . The privilege would be of lit-tle value if they could be subjected to thecost and inconvenience and distractions ofa trial upon a conclusion of the pleader, orto the hazard of a judgment against thembased upon a ju ry' s speculation as to mo-ti ves .

10 U . S. Const . Art. I § 6 . "For any Speech orDebate in either House , they [Representatives andSenators] shall not be questioned in any otherPlac e. " Article TiI 18 o£the Marvland Constitu-

tion has a similar provis i on , providing that "noSenator or Delegate shall be l i ab l e in any civil ac-tion, or criminal prosecution , whatever , for wordsspoken i n debate. "

[**1 2 111 Tenney involved a suit brought by privatel itigants alleging constitutional to rts pursuant to42 U . S . C . §& 1983 and 1985 .

Id. at 377 . Cf. Lake Country Estat es, Inc. v . Tahoe Re-gional Planning Agency, 440 U.S . at 391, 402-06 (1979)(extending Tenney to hold that "regional legislators," tothe extent they act in a capacity comparable to membersof a state legislature, are absolutely immune from suitunder 1983 . )

[HN3]Legislative immunity not only protects statelegislators from civil liability, it also funcYions as an evi -dentiary and testimonial privilege. " In Dombrowski v.[*298) Eastland 387 U S. 82, 85 , 18 L . Ed. 2d 577, 87

the Cou rt acknowledged that, to ef-S. Ct . 1425 1967fectuate the purposes of the doctri ne of legislative im-munity, legislators "should be protected not only fromthe consequence s of litigation's results but also from theburden of defending themselves . " Thus, a state legislatoracting "with in the sphere of legitimate legislative activ-ity " may not be a party to a civil suit concerning thoseactivities , nor [* * 13] may he be required to testify re-garding those same actions. See Schlitz v . Common-wealth 1 V�inia, 854 F.2d 43. 46 (4th Cir. 19881 ("thepurpose of the doctrine is to prevent legislators fromhaving to testify regard ing matters of legislative conduct,whether or not they are testifying to defend them-selves . "). The privilege is a personal one and may bewaived or asserted by each individual legislator.

12 The NAACP plaintiffs argued both in theirpapers and during the discovery hearing that thedoctrine of legislative immunity does not bar dis-covery of legislators in a case brought pursuant toSection 2 of the Voting Rights Act. (NAACP Pls . 'Memo . in Opposition to Defs : Proposed Restric-tions upon Discovery , at 9 - 10) . In support oftheir contention , the NAACP plaintiffs reliedupon language in ArZinQton Heiphts v. Metro .HozrsinQ Dev. Corp 429 U S 252 50 L Ed. 2d450, 97 S. Ct . 555 (1977) . Specifically , plaintiffsemphasized the following passage: "In some ex-traordinary instances the members might becalled Co the stand at trial to testify concerning thepurpose of the official action , although even thensuch testimony frequently will be barred by privi -lege." Id. at 268 . Citing South Caro lina Edu c.Ass 'n v Campbe [l 883 F.2d 1251 1 259 (4th Cir .

14 4 P. R . D . 2 9 2, *; 1 9 9 2 U. S . Di s t . LEXIS 16606 ,24 F ed . R . S erv. 3 d (Callaghan) 1 242

1 9891, cer t. de nied, 493 U . S . 107 7 107 L Ed . 2d1035. 110 S Ct 1129 (1990) the plaintiffsclaimed that the "extraordinary instances" de-s cribed by the A rlingt on He ights cou rt includedan inquiry into the motive beh ind all eged viola-tions of Section 2 of the Voting Rights Act .

The plaintiffs appear to have confu sed legis-lative immunity with an inquiry into legislativemotive . Since Fletcher v Peck 10 U S . 87 6Cranch 87, 130-31, 3 L. Ed. 162 ( 1810), the gen -eral rule has been that inquiry into the motives oflegislators was not in keeping with our scheme ofgovernment and, therefore , "placing a decision-maker on the stand is usually to be avoided . "Arlinzaon Heizhts. 429 U .S . at 268 n. 18 (citationsomitted). Plaint iffs are correct in asserting thatthere are exceptions to this general rule , for ex-ample in race and sex discrimination cases.Campbe li, 883 F . 2d at 1259 ; Unite d States v .OBrien 391 US 367 383 - 84 20 L. Ed. 2d 67288 S Ct 1673 (1968) . While subsequent to theSupreme Court's decision in Thornburg v .Gineles 478 U S 30 92 L Ed 2d 25 106 S. Ct.2752 (1986) , proof of legislative motive is nolonger on e of the three required elements forproving a Section 2 violation, proof of motivenevertheless may be relevant. Additionally , leg-islative motive remains an element of the MFFRplaintiffs' political gerrymandering claim and iscertainly relevant to that claim. See Davis , 478U.S. at 127 .

Plaintiffs cannot, however, inqui re into legis-lative motive if such an inquiry would necessitatean abrogation of legislative immunity . Contraryto plaintiffs' asserti ons, the immunity enjoyed bystate legislators is abso lute . Where an inquiryinto le gislative motive "would require legislatorsto tesYify regarding conduct in the i r legislativecapacity, the doctrine of legislative immuni ty hasfull force." Schlitz v Commonwealth o Vir inia854 F.2d 43 45 (4th Cir . 1988) (because theCommonwealth would have been unable to de-fend itself unless the legislators testified as totheir motives for declining co reelect former statejudge plaintiff, the doctrine of legislati ve immu-nity barred the suit). See als o Holl�day v.Rain ey_964 F.2d 1441 , 1443 (4th Cir . 1992) .Thus, legislative immunity , if found, woulcl bazinqui ry into legislative motive regarding allegedSection 2 violations , just as it would prohibit cer-tain di scovery regardin g plaintiffs' other claims .

[* " 14 � [RN4]

The doctrine of leg islative immunity i s also applica-b le to legis lative staff members , o fficer s , or other em-ployee s of a legislative body , although it is considered" l e ss absolute " as applied to thes e individu a l s.Dombrowski 387 U S at 85 ; Tennev. 341 U . S . at 378 .("Legislative privilege [when ass erted by a legislator] . ..deserves greater respect than where an offi cial acting onbehalf of the legislature is sued or the legislature seeksthe affirma ti ve aid of the courts to assert a privile ge . ")The immunity enjoyed by legislat ive staff derives fromthe individual legislators themselves : to the extent a leg-islator is immunized, his staffers are likewise "cloaked."See Grmel v United States 408 U.S . 606 618 33 L. Ed.2d 583 92 S. Ct. 2614, rehg. denied, 409 U . S . 90234 L.Ed. 2d 165, 93 S . Ct. 98 (19721. ("The Speech and De-bate Clause applies not only to a Member but also to hisaides insofar as the conduct of the latter would be a pro-tected legislative act if performed by the Member him-self.") "

13 The purpose of the extension of this immu-nity beyond the legislators themselves was co -gently articulated by the Grave l cou rt:

For the purpose of construingthe privilege a Member and hisaide are to be 'treated as one; .. . .It is literally impos s ible . . . forMembers of Congress to performtheir legislative tasks without thehelp of aides and assistants ; .. .the day-to-day work of such aidesis so critical to the Members' per-formance that they must be treatedas the latter's alter egos; and that ifthey are not so recogn i zed , thecen tr al role of the Speech or De-bate Clause . . . will inevitably bed i minished and fr ustrated.

408 U.S . at 617 (citations omitted), While theGravel court's discussion is concerned with thestaff of United States Representatives and Sena-tors, modern state legislatures operate in a similarfash i on and are equally dependent upon skilledlegislative aides.

[ * * 1 5 ] [FIN S IIt is the function of the government o ffi cial that de-

tennines whether or not he is entitled to legislati ve im-munity, not his title . In Forrester v White 484 U.S 219223 -24 , 98 L . Ed 2d 555 , 108 S . Ct . 538 (1987�, the Su-preme Court acknowledged the " function a l " approachunder which it had decided pri o r immunity case s . That

144 F . R . D . 2 9 2, *; 1 992 U . S . D is t . LEXIS 1 660 6 , *F;24 Fed . R . S erv. 3d ( Callaghan ) 1242 ,

approach involves an examination of the " nature of thefuncti ons with which a part icular official or class of offi-c i als has been lawfu lly entrusted" as we ll as "the effectthat expo sure to pa rt icular forms of liability would likelyhave on the appropriate exercise o f tho se functions . "Forrester, 484 U . S . at 2 18 . '^ Thus, much more importantthan [ * 299] the branch to which an official is assignedis his particular role in a given governmental activity andwhether the absence of immunity would have a "chillingeffect" upon the official' s performance of his duties.

14 See also Baker v Mayor and City Council ofBaltimnre 894 F 2d 679 682 (4th Cir.) , cert. de-nie d, 112 L . Ed. 2d 31 , 111 S . Ct. 56 (1990). Indetermining that the Board of Estimates of Balti-more (composed of the Mayor, Comptroller,President of the City Council, City Solicitor, andDirector of Public Works) was entitled Co legisla-tive immunity, the Baker cou rt reasone d that the" function performed by the Board [in submittinga proposed budget to the City Council for pas-sage], and not the titles of its members, is deter -mina ti ve of whether a given task is legislative orexecutive in nature for immunity purposes."

[ ** I6] Under this analysis , it is clear that legisla-tive immunity is not confined to the legislative branch ;rather, the judiciary can act in a legislat ive capacity, see�reme Court of Vir2inia v Consumers Union o�theUnited States Inc 446 U S . 719 734 64 L . Ed . 2d 641100 S Ct 1967 (19791 (Virginia Court exerci sed State'sentire legislative power with respect to regulating the Baran d issuing Bar Code and was immune from suit whenacting i n legislative capacity), as can the members of theexecutive branch . Fralin & Waldron Inc v . Countv ofHenrico Va 474 F Sup n. 1315 1320 (E D Va 1979.See generally Butz v Fconomou 438 U S. 478 511 57L . Ed. 2d 895 98 S Ct 2894 (rejecting argument thatabsolute immunity should be denied to individuals em-ployed in the Executive Branch , reasoning that "judgeshave absolute immunity not because of their part icularlocation within the Government but because of the spe-cial nature oFtheir responsibilities . ) "

15 In Lake County Estates, supra, 440 U.S. at405 n . 30, the Court seemed to extend the "func-tion not title" analysis of Butz to imply that mem-bers of the legislative branch can act in an execu -t ive capacity. See also Rateree v Roekett 852F2d 946, 950 (7th Cir. 19881.

[**17) Analyzing Forrester's "functional" ap-proach , the grant of legi s lative immuni ty appears to bedependent upon the confluence of three separate ele-ments : (I) the actor, who must be a government officialor an individual working on hi s bebalf; (2 ) the act i tself,

which must fall within the " s phere o f legitimate legisla-tive activity;" and (3) the act's proximity to the legisla-t i ve arena. If, for example , a l egislator made a speech onthe floor of th e l egi s latur e, she would b e protected fromsuit as to the contents of that spe ech . Legislative immu-nity exists because each of the three factors listed aboveis present . In contrast, if that legislator gave that samespeech in her home district, she would not be protectedfrom a potential suit for slander . While the actor (ele-ment one) and the act (element two) are the same , thepolicy rationales for protecting the speech are absentbecause it is not given with in sufficient proximity to thelegislat i ve arena (element three) . On the confluence ofthese three factors depends the immuni ty.

THE MARYLAND LEGISLATURE

Based upon the doctrine as outlined above , we mustnow determine whether actions taken by the members ofthe Maryland [ ** 18J Legislature concerning the Gover-nor's redistrictin g plan warrant legislative immunity. It isevident that any action (or inaction) taken by the Mary-land Legislature after the Governor's plan was introducedon January 8 , 1992 fa ll s within the scope of legislativeimmunity . Without question , both the House of Dele-gates and the Maryland Senate were acting "w ithin thesphere of legitimate legislative activity" in failing to en-act an alternative redis tri cting plan and thus allowing theGovernor's Plan to become law . The legislators weremeeting in regular session to consider the passage orrejection of proposed legislation for the purpose of enact-ing law . Such activity is quintessentially legislative , andlegislators so engaged deserve all of the protection theTenney court extended to them . Thus , any inquiry intothe Maryland Legistature's consideration of the Gover-nor's Plan or its failure to ratify an alternative plan isentirely barred . Of course, legislative immunity is per-sonal and belongs to the individual members of theMaryland Legislature themselves. The privilege may beasserted or waived as each individual legislator sochooses . "I

16 Thus, plaintiffs are free to notice for deposi-t i on individual state legislators and to requireeach of those persons to asse rt the privilege onhis own behalf. Even if, however, the plaintiffsare successful in obtaining information or testi -mony from individual legislators concerning theprocess of legislative redistricting, it is question-able how much assistance such information mightprovide in establishing plaintiffs' prima faciecase. See Campbell, 883 F .2d at 1262 ("it isa xiomati c that if motivation is pertinent , i t is themotivation of the entire legislature , not the moti-vation of a handful of vo l ubl e members, that isrelevant").

144 F . R . D . 2 9 2, *; 199 2 U. S . Di s t . LEXIS 16606 ,24 F ed . R . S erv . 3 d (Call aghan) 1 242

[ ** 19) [*3 00] THE GO VERNOR 'S ADVISORYCOMMITTEE

The analy sis with re spect to th e Governor's Commit-tee i s more complex . As n o ted pr ev iou sly , the Comm i t-tee was made up of th r e e pr i vate citizens, one of whomfimctioned a s the Committee chairman, as well as SenatePresident Miller and House Speaker Mitchell. None ofthe Comm ittee members was under any statutory or con-stitutional duty to s erv e upon the Committee; all wereappointed by Governor Schaefer pursuant to the execu-tive power vested in him by the Maryland Constitution,and each served at his pleasure . Thus , the members ofthe Committee were acting, under a "title" analysis, as anexecutive committee , and President Miller and SpeakerMitchell, although legislators when performing legisla-tive duties, would not enjoy the privilege of legislativeimmunity as such. "

While the caselaw is replete with example s of when leg -is l ative immunity has been granted or withheld , littleguidance i s provided regard ing how to determine whatconstitutes a legitimate leg i slative activity .

Courts have , however, provided some anecdotal ex-amples of le gislat ive functions. In Gravel. 408 U . S. at617 , the Court noted that the legislative sphere included :"committee reports, resolutions, and the act of voting ..

'in short, .. . things generally done in a se s sion of theI-Iouse by one of its members in relation to the businessbefore it . " quoting Kilbourn v. Thomnson , 103 U . S. 168204. 26 L. Ed. 377 (1881). The Eleventh Circuit inCrvmes v. DeKalb Cou GeorQia 923 F .2d 1482,1485 ( l lth Cir. 199ll concluded that [HN6] "a legislativeact involves policy-making rather than mere administra-tive application of existing policies . " See also Rateree v.Rocken, 852 F.2d 946, 950 (7th Cir . 198$) [* *22]("budgetmaking is a quintessential legislative function") .

17 That President Miller and Speaker Mitchellmay have used their legislative expertise in pre-paring the Plan or that they may have been ap-pointed because of their leadership positionswithin the Maryl and Legislature is not dispositiveof the function they performed as members of theGovernor's Advisory Committee.

[*"20] THE GOVERNOR AND DERIVATIVE IM-MUNITY

That the Committee was executive by "title," how-ever, is only the beginning of the immunity analysi s. Thecentral question is h ow the Governor functioned , andwhether that function entitles the members of the Com-mittee to derivative legislative immunity.

The stated purpose of the Committee was to "makerecommendations to the Govern or and General Assem-bly on boundary changes for legislative and Congres-sional election districts" reflecting population shifts asrecorded in the 1990 censu s. 1991 -92 Maryland Manual,at 486 . Nothing in the parties' papers or the arguments ofcounsel in th i s case indicate s to this Court that the Com-mittee in reality operated di fferently than it had beenenvisioned. Indeed, the Committee clearly provided sub-stantial assistance to the Governor in the preparation ofboth legislative and Congressional redistricting plans forMaryland. The culmination of their efforts was the planpresented to the Governor in December, 1991 , which,with only minor changes, he ultimately introduced to theLegislature .

Our next inqui ry , then, is whether the actions of theGovernor himself were " within the sphere of legitimate[ * *21] legi s lativ e activity," see Forrester supra , suchthat he funct ioned a s a legis lator , an d thus should becloaked in l eg i s l ative immun i ty . Determination of whattask s are " w i thin th e leg i s l a tiv e sphere" is not easy .

It is axiomatic that to this list must be added thepreparation and introduction of legislation for the legisla-ture , in this case the General Assembly of Maryland , toconsider and accept or reject. See Gravel 408 U . S. at625 . Indeed, it is difficult to imagine something which is[*301] more at the core of legislative activity than theintroduction of legislation. When 'viewed in this light,the actions of the Governor seem clearly to fall withinthe purview of "legitimate legislative activity . " Afterappointing a committee to aid him in the preparation oflegislation , he reviewed their report, made changeswhere he thought appropriate, and submitted the legisla-tion to the General Assembly for the purpose of gainingpassage of the plan into law. Thus although the Gover-nor's title ind i cates his Executive position within thegovernmental framework of the State, his specific ac-tions in this case i ndicate that he functioned as would alegislator , and therefore the Govern or is entitled to legis-lative immunity for his actions in preparing and present-ing the legi s lati ve redistricting plan to the General [ **23]Assembly . 's Of course , the sui generis nature of redis-tricting legislation distinguishes the Governor's role herefrom the executive role , in more pedestrian cases, of pro-posing legislat ion to be introduced -- or not - - by indi -vidual members .

18 The plaintiffs might seek solace in the factthat the Maryland Constitution requires the Gov-ernor to act in this legislative role , and that there-fore there is something inherently desirable inhaving the Executive prepare this legislation.They could point to the fact that no legislator canintroduce legislation pertaining to legislative re-distric ting, at least until the Governor has intro -duced his own . Thus the Gove rn or , plaintiffsmight contend , even though app earing to act as a

144 F .R , D . 292, *; 1992 U . S . Dist . LEXIS 16606 ,2 4 Fed. R . Serv . 3d (C all aghan) 1 242

le g i s lator , i s actin g in a way no legislator is per-mi tt ed to act and therefore cannot be performinga legitimate le gis lative activity . In fact, under thisana l y s i s, the Govern or would merely be fulfillinghi s Constitutionally mandated role in the proces s,and would thus be a cting in hi s traditional Execu-tiv e capacity.

Thi s analys is is , however , flawed by its reli-ance on the specific nature of the Governor's rolein State Government . The Governor , it is true , hasvested in him the Executive power of the State ofMaryland . The "functional" test of Forrester ,however , looks to the nature of the functions en-trusted to an official or officials , and the effect ofliability on those functions, not to the power withwhich that specific official or officials is in-vested . It is, therefore , the legislative nature ofthe Govemor's actions which concerns us , andnot the fact that it is the Governor who is requiredto act Thus , even though a legislator could notintroduce the spec ific legislation which is the sub-ject matter of thi s lawsuit , it is in the nature of thefunction entrusted to a legislator to introduce leg-islation. The nature of the Governor's actionswas , therefore, legislative, and thus they shouldbe cloaked in l egislative immunity.

[ "* 24) Once the Governor's immunity has been es-tablished, the question then becomes whether the mem-bers of the Committee should derive complete immunityfrom the Govern or, or whether they are only entitled tosome lesser form of immunity . Although Tenney andDombrowski indicate that this privilege might be lessabsolute than that of the Governor , Gravel, infra, leavesthe undersigned in no doubt that the correct result is totreat the members of the Committee as the Governor's" alter egos" and thus grant them full immunity both fromliability and inquiry a s Co their actions while preparingthe plan for the Governor's consideration. " The policyreasons that inspired the Cou rt to create the doctr ine oflegislative immunity in Tenney are no less valid whenapplied to the members of the Committee than theywould be when applied to legislators themselves. Asnoted above, the efficient functioning of contemporarygovernment relies on the existence of staff members whoperform tasks traditionally assigned to the legislatorsthemselves . If these staff members (here, non-legislatorcommi ttee members) are not accorded the same testimo-nial and liabil ity immunity as the legislators , [ ** 25]then the purpose of Tenney would be vitiated .

leavin g them uncloaked from providin g te sti-mony. Further, they defer any ruling on whetherdefendants Miller and Mitchel l, in their capacityas members of the Advisory Committ e e, shouldbe able to assert leg islative immunity . This is thesubject of their separate opinion, which refl ectstheir majority , an d thus prevailin g, views on thispoint .

An order will be issued separately granting the de-fendant's Motion to Dismiss Defendants Miller andMitchell , in that they have no personal liability to plain-tiffs. Of course , they still might have relevant informa-tion to be obtained in discovery if and when the majorityof th is Court decides to allow them to be deposed as to[*3021 their actions as members of the Governor'sCommittee, Although a ruling on whether legislativeprivilege may [ * "26 1 be affirmatively asserted by Millerand Mitchell as to any actions taken by them as membersof the Governor's Committee is deferred under the pre-vailing opinion of Judges Murnaghan and Motz, there isno question that they may assert the privilege as to anyaction taken by them after the redistricting legislationreached the floor of the General Ass embly . ' °

20 Legislative immunity is , as noted above, apersonal immunity from liability as well as anevidentiary and testimonial priv i lege . It does not,however, extend to cert ain types of documenta-tion . See Corporacion, 709 F . Supp. at 297. Seealso In re Grand Jurv Proceedina , 503 F .2d 577(3d Cir . 19771 ; United States v. Helstoska' 5 76F.2d 511 (3d Cir.), cert. granted, 439 U . S. 10451978 , affd, 442 U.S. 477 61 L. 12 99

S : Ct . 2432, affd sub nom. Helstoski v . Meanor442 U S 5 00 61 L. Ed. 2d 30 99 S Ct. 24451979 ; In re Grand Jury Investieation, 587 F2d589 (3d Cir . 197�; Fed . R Evid . 501 , offering a"speech or debate-like" privilege. Thus, the de-fendants will be required to produce any docu-ments prepared by the Committee during thecourse of its deliberations which are requested bythe plaintiffs, subject, of course , to the assert ionof any other privilege on behalf of particulardocuments . The extent to which documents dis-covered by the plaintiffs may be used at tr i al, es-pecially given this Court's dismissal of the twolegislator-defendants from this case, is an issuewhich we need not address here .

(**27] IV. DISCOVERY OF DR. LICHTMAN

19 Jud ge s Murn agltan and Motz d isagree on th i spoint , however, and are of the opinion that leg is-lative privil ege does not extend Co the three pri-v ate c iti ze n member s of the Committee, thus

The defendants have opposed the plaintiffs' attemptsto depose Dr . Allan J . Lichtman . Dr . Lichtman is a Pro -fessor at the American Univers i ty , and was hired , ac-cording to the defendants , by the Maryland AttorneyGeneral's Offi ce to advise them i n th e cour se of antici-

1 44 P . R . D . 2 92 , *; 1992 U.S. Dist. LEXIS 16606 , * * ;24 Fed . R . S erv . 3 d (Ca ll aghan) 1 242

pated litigation stemm ing from the congressional redis-tricting plan promul gated by the Governor's Redist ri ctin gAdvisory Committee . (Defs . ' Response to Proposed Dis-covery , at 13 . ) The proposed plan was indeed challengedin Court, and was upheld in Anne Arundel County Re-publican Cent Comm v. State Administrative Bd. ofElection Laws 781 F Supp 394 (D Md. 1991), affd,] 19 L . Ed. 2d 197 112 S . Ct. 2269 , rehg. denied, 120 L.Ed. 2d 923 , 112 S Ct. 3058 (1992). The Governor'sCommittee, however , continued to meet and ultimatelyproduced the legislative redistricting plan which is thesubject of the present litigation. Dr. Lichtm an cont inuedto advise the Governor's committee , under the directionof the Maryland Attorney General's office .

(B) A party may discoverfacts known or op i nions held byan expert who has been retained orspeci a lly employed by anoth e rparty in anticipation of litigationor preparation for tr ial and who isnot expected to be called as a wit-ness at tr ial , only ... upon a show-ing of exceptional circumstancesunder which it is impracticable forthe party seeking discovery to ob-tain facts or opinions on the samesubject by other means.

The defendants contend that , because Dr. Lichtmanwas an expert retained in anticipation [ * *28] of l itiga-tion , he should be protected from discovery under Fed.R Civ. P. 26(b)(4), 1 ' the attorney-cl 'aenC privilege , thework-product privilege and the deliberative and legisla-tive process privileges. The plainti ffs take the positionthat there is a "strong inference" that Dr. Lichtman was aparticipant in th e development in the plan itself, notmerely an adviser as to the various implications of theplan and the anticipated legal challenges thereto.(NAACP Pls . ' Proposed Schedule of Discovery, at 14 . )Thus , they contend , Rule 26(b)(4) cannot be invoked toprotect Dr . Lichtman from discovery, since he was anact ive participant in the events which are the subject mat-ter o£this litigation, not merely an adviser .

21 [HN7]The text of the rule , in pertinent part,is as follows:

Discovery of facts known andopinions held by expert s , other-wise discoverable under the provi-sions of subd i vision (b)(1) of thisrule and acquired or developed inanticipation of litigation or fortr ial, may be obtained only as fol-lows :

(A)(i) A party may throughinterrogatories require any otherparty to identify each personwhom the other party expects tocall as an expert witness at trial , tostate the subject matter on whichthe expert is expected to testify,and to state the substance of thefacts and opinions to which theexpe rt is expected to testify and asummary of the ground s for eachopinion .

x rk z

[**29 ] [ * 303] Furthermore, plaintiffs claim thatthe privileges asserted by the defendant are not applica-ble to Dr . Lichtman. The plaintiffs note that the attorney-client privilege is only applicable when an expert advise san attorney who then advises his c li ent . Where a clientconsults an expert independently, then the privilege willnot apply. Finally , the plaintiffs question the extent towhich litigat ion was anticipated in this case . They notethat the retention of an expert merely to ensure compli-ance with legal requirements, even where there is a like-lihood of litigation , is not privileged under the work-product doctrine.

Certainly, if the plaintiffs are correct that Dr. Licht-man was an active participant in the events which formthe subject matter of this litigation, they are entitled towhatever discovery of him they may deem appropriate.They are also entitled to discovery if they are correct thatDr. Lichtman was consulted by the committee independ-ently of any supervision by the Attorney General's office,or that litigation was not truly anticipated in this case.However, if the defendants are correct, and Dr. Lichtmanwas neither an active participant in the preparation of the[ ** 30] red i stricting plan, nor independently consultedby the committee, and that litigation was anticipated atthe time of his appointment , then the defendants areequally correct that Rule 26(bl(4) and the various pri vi -le ges would bar any discovery of Dr. Lichtman.

The impasse to which these diametrically opposingpositions have brought us can easily be resolved by asimple affidavit from Dr. Lichtman , addressing the vari-ous issues in dispute. If, after Dr . Lichtman has submit-ted his affidavit, it appears that he merely gave advice tothe Committee, at the request of the Attorney General'soffice , concerning the legal implications of the plan un-der consideration by the Committee, then clearly he willbe protected by Rule 26(b)(41 and the attorney-clientprivilege. Should this not be the case , the Court can thenconsider the question of whether or not the curre nt litiga-tion was sufficiently anticipated, thus re s olving the ques-

144 F . R .D . 292 , *; ] 992 U . S . Dist. LEXIS 1 6606 ,24 Fed. R. Serv . 3 d ( Callaghan) 1 242

tion of the work-product privilege . Should it prove nec -essary , the Court can also, at that time , consider the de-liberative and legislative process privileges asserted bythe defendant s. OPcourse , should the defendants , at somelater time, list Dr . Lichtman as [ ** 31] a potential wit-nes s in this case, then the plaintiffs would have an undis-puted right to depose him as they would any other trialwitness .

evaluate the sufficiency of the plaintiffs' evidence bysubmission of a motion for summary judgment once dis -covery has been had on all o f the issue s in this case .

Based upon the above analy s is , an Order wi ll be en-tered separately:

(]) GRANTING NAACP plainti ffs'Motion to Con s olidate ;

V. BIFURCATION

The defendants have also asked this Court to bifur-cate discovery in this case . The gravamen of their argu-ment is that the plaint i ffs will be unable to satisfy one ofthe prongs of the tes t promulgated in Davis v. Bandemer478 U S 109 127 92 L�d. 2d 85 106 S Ct 2797(1986).. This test requires that a plaintiff attempting toshow partisan gerrymandering must, with respect to anidentifiable political group , show (I) intentional dis-crim ination against that group and (2) an actual discrimi -natory effect on the group. It is th is second prong of thetest which , the defendants claim , will, for a variety offactors, be impossible for the plaintiffs to prove . Thus ,they contend , this Court should require the plaintiffs tomake a showing that a prima facie case can be maderegarding the actual discriminatory effect of the planbefore discovery can be had on the other i ssues in thiscase .

Implicit within the defendants' analysis of this issueis an assumption that the Davis test is weighted un-evenly , w ith more emphasis [* * 32 1 falling on the secondprong . In fact , the Davis test consists of two equalprongs , and nothing contained in Davis leads this Courtto assume that only after an actual discriminatory effectis shown should a court review the intent which informedthat discrimination . It may well be, as the defendantspoint out, that no part isan gerrymandering case has yetmade a showing of actual discriminatory effect . Thisdoes not mean, however , that such a showing cannot bemade , which is what the defendants appear to be askingthe Court to hold . To subscribe to the defendants' logicon this point , however, would be tantamount to renderingDavis moot , an d thus would insulate the legislative[ * 304] redistricting process from judicial review ofclaims of part isan gerrymander ing . This the Court simplywill not do. The plaintiffs may have embarked on a taskof near Sisyphean proportions , but such was their deci-sion when they chose to pursue th is litigation. This Courtwill neither pre-judge the plaintiffs' potential for successin this case, nor increase their burden by prescribing theorder in which they should present their case .

Thus, discovery in this case will proceed normally[ ** 33 ] for a period of ninety (90) days from the date ofthi s opin i on . The Court is confide n t that , at the close ofd is covery, the defendants wi ll afford it the opportunity Co

(2 ) GRANTING defendants' Motionto Dismiss Defendants Mi ll er andMitchell;

(3) ORDERING defendants to submitan affidavit pur suant to the above discus-sion within fou rteen (14) days of the dateof the accompanying order ; and

(4) DENYING defendants' requestfor bifurcated discovery.

Frederic N . Smalkin

United States D i strict Judge

Dated : October 14th , 1992

Opinion of Murnaghan, J . and Motz J .

We agree with almost all that Judge Smalkin haswritten in his thorough and scholarly opinion. We be -lieve, however, that a less categorical, more flexible,approach should be taken to the question of testimoniallegislative immunity in shaping the scope of discovery .

Legislative redistricting is a sui generis process .[ * * 34 ] While it is an exercise of legislative power , it isnot a routine exercise of that power . The enactment ofstatutes ordinarily involves the implementation of publicpolicy by a duly constituted legislative body . Redistrict-ing involves the establishment of the electoral structureby which the legislative body becomes duly constituted.Inevitably, it directly involves the self-interest of thelegislators themselves .

The doctrine of legislative immunity (both in itssubstan ti ve and testimonial aspects) " itself embodiesfundamental public policy . It insulates legislators fromliab ility for their official acts and shields them from judi-cial scrutiny into their deliberative processes. The doc-trine is a bulwark in upholding the separat ion of powers.It does not, however, necessarily prohibit judicial inqui ryinto legislative motive where the challenged legislativeaction is alleged to have violated an overriding, free-standing public policy . The Supreme Court has reco g-nized that "in some extraordinary in stances the members[of a legislative body] might be called to the s tand at tr ial

1 44F .RD.292, *; 1992 U . S . D is t . LEXIS 16606 ,24 F ed . R . S erv. 3 d (Ca llagh a n) 1 2 4 2

to test i fy c oncernin g the purpo s e of th e o fficia l act i on ,although even then such te stimon y frequently [ *k 35]will be barred by privile ge ." Villaee ofArl inuton HeiQhtsv. Metropolit an Housi� Dev Corp 429 U S 252 2 6850 L. Ed. 2d 450, 97 S . Ct . 555 (1977) ; see also SouthCarolina Educ. Ass'n v. Campbell 883 F 2d 1251 1259(4th C9r . 1989) , cert. denied, 493 U . S . 1077107 L . Ed .2d 1035, 110 S . Ct . 11 29 (1990) (reco gni zing that judi-cial inquiry into legislative motive is appropriate where"the very nature of the constitutional question requires aninquiry into legislative purpose," quoting from UnitedStates v. O'Brien, 391 U.S. 367 383 20 L. Ed. 2d 67288 S . Ct. 1673 n 30 (1968), but not specifically holdingthat the inquiry may be made through legislators' testi-mony).

22 It is not necessary to explore the scope oflegislative immunity under the prov i sions of theMaivland Constimtion , Article III , Section 18and the Declaration of Rights , Art icle 10 . Thatcan be left for another day since the common lawcasts its net on the scope of legislative immunityat least as widely as does the Maryland Constitu-tion .

rial committee because of a concern that theymi ght subsequently be deposed in connect i onwith actions taken by the committee.

A le gitimate argument can p erhap s be made thatconsiderations of federalism and the separ at i on of pow-ers should have persuaded the Supreme Cou rt and theCongress never to confer jurisdiction upon the federalcou rts to review state legislative redistricting plans in thefirst place. However, that jurisdiction has been created,and we should not de facto abdicate our responsibil ity toexercise it . The promise having been made , we mustprovide an opportuni ty for its fulfillment . We should not[**38] simply rely upon bright line tests which havebeen developed in other contexts to bar virtually all dis -covery of relevant facts. Rather, we must accept the task,however distasteful and arduous it may be, of closelymonitoring the discovery process and be prepared to re-visit the testimonial issues now presented if, after havingconducted limited prelimina ry discovery, plaintiffs areable factually to draw into serious que stion the legality ofthe redistrictin g under federal law .

Francis D . Murnaghan. Jr .

United States Circuit Judge[ ** 36] The unique nature of legislative redistrictin g

and the fact that testimonial legislative immunity is notan absolute leads us to conclude that we should permitthe three members of the Governor's Redistricting[ * 305] Advisory Committee who are private citizens tobe deposed concerning the Committee's deliberations.However theoretica lly pure extension of the legislativeimmunity doctrine to them under a functional analysistest may be, as a practical matter inquiry through theminto the factors which were taken into account by theCommittee in formulating its redistricting plan wouldprovide a means for learn ing pertinent information with-out directly impacting upon legislative sovereignty, "L ikewise , we believe that ruling on the issue of whetherThomas V . "Mike" Miller , Jr. , and R. Clayton Mitchell,Jr . , can be deposed in their capacity as members of theRedistricting Advisory Committee should be deferreduntil a more complete factual record has been developed(by the depositions of the private citizen members of theCommittee and otherwise) . We too , however, wouldflatly prohibit their depositions from being taken as toany act ion which they took after the redistricting legisla-tion [ * *37] reached the floor of the General Assemblyas President of the Senate and Speaker of the House,respectively (unless they ultimately are listed by the De-fendants as trial witnesses) because of the direct intru-sion of such discovery into the legislative process .

2 3 We mi ght also note that we deem it ex -trem e ly unlikely that in the future private citizen swould re fuse to se rve on a presti giou s gubernato -

J. Frederick Motz

United States District Judge

ORDER

For the reasons stated in the foregoing Memoran-dum Opinion of even date entered herewith, IT IS, this14th day of October, 1992 , by the Court, ORDERED:

1. That NAACP plaintiffs' motion to consolidate S-92-1409 with S-92 -5 I 0 BE , and it hereby IS,GRANTED;

2. That defendants' motion to dismiss PresidentMiller and Speaker Mitchell as i ndividual defendantsBE, and it hereby IS , GRANTED;

3. That defendants are to subm it the affidavit of Dr.Lichtman concerning his appointment and the extent ofh i s duties as an advisor to the State of Maryland withrespect to redistricting subsequent to the [ * *39] 1990census within fou rteen (14) days from the date of th i sOrder ;

4 . That defendants' request for bifurcated discoveryBE, and the same hereby IS , DENIED ; and

5. That the Clerk of Court mail copies of the forego-ing Memorandum Opinion and this Order to counsel forthe part ies .

Frederic N . Smalkin

1 44 F . R . D . 29 2, * ; 1992 U . S . D ist . LEXIS 16606,24 Fed . R . S erv. 3 d (Ca l laghan) 1 242

United States Di stri ct Judge

mfr v. schaefer (2) - wisconsin legislature v. schaefer (2).… · tiary and testimonial privilege...

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