Peter Lee v. City of Los Angeles , 908 F.3d 1175 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PETER LEE, individual; MIRI PARK, No. 15-55478
individual; HO SAM PARK,
individual; GENEY KIM, individual; D.C. No.
YONAH HONG, individual, 2:12-cv-06618-
Plaintiffs-Appellants, CBM-JCG
v.
CITY OF LOS ANGELES,
Defendant-Appellee.
STANLEY HAVERILAND, individual; No. 15-55502
THEODORE THOMAS, individual;
HORACE PENNMAN, individual; JULIA D.C. No.
SIMMONS, individual; HEATHER 2:12-cv-06618-
PRESHA, individual; SALLY STEIN, CBM-JCG
individual,
Plaintiffs-Appellants,
OPINION
v.
CITY OF LOS ANGELES,
Defendant-Appellee.
2 LEE V. CITY OF LOS ANGELES
Appeal from the United States District Court
for the Central District of California
Consuelo B. Marshall, Senior District Judge, Presiding
Argued and Submitted January 9, 2017
Pasadena, California
Filed November 19, 2018
Before: Jacqueline H. Nguyen * and Paul J. Watford,
Circuit Judges, and Mark W. Bennett, ** District Judge.
Opinion by Judge Nguyen
SUMMARY ***
Civil Rights
The panel affirmed the district court’s protective order
and its order granting summary judgment in favor of the City
of Los Angeles in an action alleging that the City was
motivated predominantly by racial considerations in
drawing the boundaries of its current Council Districts for its
2012 redistricting ordinance.
*
Judge Nguyen was drawn to replace Judge Reinhardt on the panel
following his death. Judge Nguyen has read the briefs, reviewed the
record, and listened to the oral argument.
**
The Honorable Mark W. Bennett, United States District Judge for
the Northern District of Iowa, sitting by designation.
***
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
LEE V. CITY OF LOS ANGELES 3
The panel held that, although the evidence showed that
race was a motivation in drawing Council District 10,
plaintiffs failed to raise a genuine issue of material fact as to
whether race was the predominant factor motivating the
legislature’s decision as to the Council Districts’ final
boundaries. The panel held that even viewed in the light
most favorable to plaintiffs, the record failed to show that the
successive boundary amendments were driven
predominantly by racial considerations. Instead, the panel
held that the City Council Redistricting Commission’s final
report and recommendations showed that, overall, the
Commission sought to rebalance the populations in each
Council District, while preserving communities and unifying
as many Neighborhood Councils as possible in a single
Council District. The panel further held that the
circumstantial evidence, demographic data and expert
analyses failed to create a genuine dispute on racial
predominance in Council District 10.
The panel agreed with the district court that legislative
privilege protected local officials from being deposed and
questioned regarding any legislative acts, motivations, or
deliberations pertaining to the 2012 redistricting ordinance.
The panel held that the factual record in this case fell short
of justifying such a “substantial intrusion” into the
legislative process.
COUNSEL
Rex S. Heinke (argued), John A. Karaczynski, Hyongsoon
Kim, and Patrick E. Murray, Akin Gump Strauss Hauer &
Feld LLP, Los Angeles, California; Ekwan E. Rhow, Bird
Marella Boxer Wolpert Nessim Drooks Lincenberg & Rhow
4 LEE V. CITY OF LOS ANGELES
P.C.; for Plaintiffs-Appellants Peter Lee, Miri Park, Ho Sam
Park, Geney Kim, and Yonah Hong.
Leo James Terrell, Law Offices of Leo James Terrell, Los
Angeles, California, for Plaintiffs-Appellants Stanley
Haveriland, Theodore Thomas, Horace Pennman, Julia
Simmons, Heather Presha, and Sally Stein.
Robin B. Johansen (argued) and Thomas A. Willis, Remcho
Johansen & Purcell LLP, Oakland, California; Harit U.
Trivedi, Deputy City Attorney; Valerie L. Flores, Managing
Assistant City Attorney; Michael N. Feuer, City Attorney;
Office of the City Attorney, Los Angeles, California; for
Defendant-Appellee.
OPINION
NGUYEN, Circuit Judge:
At least once every ten years, the City of Los Angeles
(the “City”) must redraw the boundaries of its Council
Districts in accordance with the requirements of its City
Charter. Unsurprisingly, this decennial exercise can ignite
intense debate and political maneuvering. These debates
often center around “communities of interest,” which are
frequently but not exclusively defined along racial or ethnic
lines, and which the City must take into account in its
redistricting. In Los Angeles, certain communities have
been divided across two or more Council Districts for
decades even when they have been historically concentrated
in certain areas of the City. Here, for example, Koreatown
in Los Angeles is the largest Korean community in the
United States, but, because it has been split into multiple
LEE V. CITY OF LOS ANGELES 5
City Council districts, the community has encountered
“difficulty getting elected officials to address [its] needs.”
Even as the redistricting process endeavors to respect the
integrity of these communities of interest, the City has
recognized that it is “inevitable . . . that some interests will
be advanced more than others by the choice of a particular
district configuration.” The City Council (and the
Commission charged with advising it) must make these
tough calls, recognizing that not all communities will be
satisfied with the outcome. While the City Council may
consider the passionate advocacy of these local
communities, they must ultimately adhere to the strictures of
the United States and California Constitutions and the City
Charter. Thus, the City Council generally may not act with
race as a predominant motivating factor. Cooper v. Harris,
137 S. Ct. 1455, 1463 (2017). Doing so would be
presumptively unlawful under the Equal Protection Clause
of the Fourteenth Amendment, unless the City can meet the
demanding burden of showing that such action was narrowly
tailored to serve a compelling interest. Id. at 1464.
In this appeal, we must decide whether Plaintiffs have
presented sufficient evidence to survive summary judgment
on the claim that the City was motivated predominantly by
racial considerations in drawing its current Council Districts.
That is, we consider whether the City primarily sought to
maximize the voting power of certain racial groups over
others when drawing Council Districts and subordinated all
other considerations to that priority. On this record, we
conclude that Plaintiffs have failed to raise a genuine issue
of material fact on whether racial considerations
predominated the City’s redistricting process. We further
agree with the district court that legislative privilege protects
local officials from being deposed. We therefore affirm the
6 LEE V. CITY OF LOS ANGELES
district court’s protective order and its order granting
summary judgment in favor of the City.
I. Background
A. Factual Background
The Los Angeles City Council Redistricting
Commission was created after Los Angeles voters adopted
the current Los Angeles City Charter in 1999. The purpose
of the Commission is to advise the Los Angeles City Council
on the drawing of new Council District (alternatively, “CD”)
boundaries. These boundaries are drawn every ten years
after each federal census with the goal of ensuring that each
Council District contain “as nearly as practicable, equal
portions of the total population of the City” as shown in the
most recent census data. To the extent feasible, the
boundaries are to be drawn to “keep neighborhoods and
communities intact, utilize natural boundaries or street lines,
and be geographically compact.” In accordance with the
City Charter, a Commission was appointed to propose new
boundaries after the 2010 census. Since the previous
redistricting in 2002, changes in population had caused
imbalances across Council Districts that required
rebalancing.
1. The Commission’s Initial Steps
The Commission began the redistricting process by
holding several preliminary meetings between September
27, 2011 and December 5, 2011. At these initial meetings,
the Commission was presented with the existing Council
District boundaries along with population and demographic
data from the 2010 Census. The Commission then held a
series of public hearings throughout the City between
December 5, 2011, and January 10, 2012. One of the issues
LEE V. CITY OF LOS ANGELES 7
raised at these hearings was whether the Wilshire Center-
Koreatown Neighborhood Council (“Koreatown”) should
continue to be split across multiple Council Districts or
united into a single Council District. At the time, Koreatown
fell within at least three Council Districts: CDs 4, 10, and 13.
The majority of public participants at the hearings spoke in
favor of joining Koreatown into a single Council District.
On January 11, 2012, the Commission held a meeting at
which the Chair of the Commission proposed dividing the
Commission into three ad hoc committees corresponding to
three regions: (1) the San Fernando Valley; (2) West and
Southwest Los Angeles; and (3) East and Southeast Los
Angeles. Each committee would meet on its own and be
responsible for drawing an initial map of the Council
Districts within its assigned region. The Commission voted
to approve this proposal.
2. The Ad Hoc Committees Draw the Initial Council
District Boundaries
The committee assigned to West and Southwest Los
Angeles (the “West/Southwest Committee”) was
responsible for drawing five Council Districts, including CD
10. CD 10 is west of downtown Los Angeles and split in
half by the I-10 (Santa Monica Freeway). At the time of the
2012 redistricting, the 2010 Census data indicated that CD
10 was about 4.9% below its required population size. Its
registered voters were 49.1% African American, and its
Citizen Voting Age Population (“CVAP”) percentages were
36.8% African American, 28.2% Latino, 17.1% Asian, and
15.9% White.
At the West/Southwest Committee’s first meeting,
Commissioner Chris Ellison, who had been appointed to the
Commission by City Council President Herb Wesson (CD
8 LEE V. CITY OF LOS ANGELES
10’s councilmember), prepared his proposed boundaries for
CD 10. These boundaries encompassed majority African
American neighborhoods that had previously been in CD 8,
such as Leimert Park and the “Dons” portion of Baldwin
Hills. They also excluded from CD 10 a substantial portion
of the “Palms” neighborhood (which had a minority of
African American residents) and split Koreatown’s
population between CD 10 and CD 13. In presenting his
proposed boundaries, Ellison stated that he sought to
increase the percentage of registered African American
voters in CD 10 to over 50%. He later reiterated this
intention in an email:
Being a historical African American
opportunity district, we found it necessary to
increase the AA population. We attempted to
protect the historical African American
incumbents in this district by increasing the
black voter registration percentage and
CVAP #s accordingly. As you can discern on
the attachment, we were able to increase the
numbers to 50.12% and 42.8%, respectively.
This was a significant increase in black voters
in CD 10 which would protect and assist in
keeping CD 10 a predominantly African-
American opportunity district.
He continued:
We agreed to move the western portion of CD
10 (Palms) into CD 5 and 11. This area is
approximately 50% white voter registration
or CVAP, 20% Latino CVAP and
approximately 11% AA voter registration.
This move would allow CD 10 to divest itself
LEE V. CITY OF LOS ANGELES 9
of this diverse populated area, and increase
the AA population to the South.
After Ellison’s presentation, other Commissioners
proposed alternative boundaries. Ellison’s proposed
boundaries and the boundaries proposed by Commissioner
Helen B. Kim received the most votes from the
West/Southwest Committee with three votes each, but
neither received a majority. Because both Ellison’s and
Kim’s proposals received the same number of votes, the
West/Southwest Committee should have submitted both
proposals to a larger “Dispute Resolution” subcommittee to
“stitch[] together” a compromise from the various proposals.
However, this did not occur, and instead only Ellison’s
proposal was presented to the Dispute Resolution
subcommittee. 1 As a result, the West/Southwest Committee
ultimately presented only Ellison’s proposal to the full
Commission for approval.
3. The Commission Considers the Proposed Boundaries
Although the West/Southwest Committee formally
presented Ellison’s proposal to the Commission,
Commissioner Kim presented an alternative set of
boundaries to the Commission that would have placed
Koreatown entirely within CD 13. The Commission rejected
1
The record does not provide a clear explanation as to why Ellison’s
map, but not Kim’s map, moved forward: whether it was a result of
“suppression,” or, alternatively, a misunderstanding by the initial
Valley/West Dispute Resolution Committee that the Kim map had “not
gone through the proper process.” In any case, the record indicates that
once the first Dispute Resolution Committee had met to resolve
boundaries for the Valley/West region, those boundaries were effectively
“locked in” for the subsequent East/West Dispute Resolution
Committee.
10 LEE V. CITY OF LOS ANGELES
Kim’s proposal. Because it was the largest neighborhood in
Los Angeles, the Commission did not find it practical or
feasible to maintain Koreatown within a single Council
District without creating “major disruptions to other
communities and Council Districts throughout the City.”
Instead, the Commission incorporated Ellison’s proposal
into a complete draft Council District map, which it released
for public comment and review.
After considering the public feedback, the Commission
debated and approved 42 out of 80 proposed adjustments.
The Commission then placed these amended boundaries
before the public for another round of comment and review. 2
This led to yet another round of amendments wherein the
Commission approved 5 of 14 proposed adjustments. The
Commission then approved this “final” set of boundaries on
a 16–5 vote, which was forwarded to the City Council with
additional adjustments for the City Council to consider.
The Commission’s final proposal increased the African
American CVAP in CD 10 from 36.8% to 43.1%, and it
increased the percentage of African American registered
voters in CD 10 from 43.2% to 50.6%. The White CVAP in
CD 10 decreased from 15.6% to 11.1%, and the Asian
CVAP decreased from 17.1% to 16.3%.
4. The City Council Deliberates and Promulgates the Final
Council District Boundaries
After the City Council received the Commission’s final
proposal, it held three public hearings throughout the City to
2
Over the course of this entire process, the Commission held a total
of 22 public testimony hearings and 10 business meetings, which over
5,000 people attended and which produced over 6,500 pieces of written
and verbal testimony.
LEE V. CITY OF LOS ANGELES 11
further review and revise it. Based on these hearings, City
Council members ended up proposing 25 additional
adjustments to the Commission’s proposed boundaries. The
City’s Chief Legislative Analyst reviewed these proposed
changes along with the Commission’s original proposal and
recommended adopting the Commission’s proposed
boundaries with 18 of the 25 proposed adjustments.
According to the Legislative Analyst, adoption of these
18 adjustments would resolve concerns raised during the
public hearings.
On March 16, 2012, the City Council adopted the
Commission’s proposal with the 18 additional adjustments.
On June 20, 2012, the City Council passed the final
redistricting ordinance, which was signed and published two
days later. CD 10’s final boundaries increased African
American CVAP from 36.8% to 40.5%, and decreased
White CVAP from 15.9% to 12.3% and Asian CVAP from
17.1% to 16.3%.
Afterwards, Council President Wesson made the
following statements to the Baptist Ministers’ Conference in
July 2012:
One, it has been since November, so brothers
and sisters, it was me against twelve other
members on the Council. I had no backup. I
had no faction. And I did the very best I
could with what I had. And I was able to
protect the most important asset that we as
black people have. And that’s to make sure
that a minimum of two of the council peoples
will be black for the next thirty years.
We as African Americans make up only 9%
of the population. 9%. If we didn’t all live
12 LEE V. CITY OF LOS ANGELES
clustered together, we would not have one
council district. Not one. The Asians have
16% of the population. They don’t have one
district. Why? Because they live all over. So
it’s important for us to harness our resources
because the most important asset again that
we have as people is to make sure we have a
black vote or two on that council. And that
was my priority.
B. Procedural History
On July 31, 2012, Peter Lee, Miri Park, Ho Sam Park,
Geney Kim, and Yonah Hong filed a complaint in federal
district court alleging that the City violated the U.S. and
California Constitutions and the City Charter in drawing CD
10. On February 26, 2013, Stanley Haveriland, Theodore
Thomas, Horace Pennman, Julia Simons, Heather Presha,
and Sally Stein filed a similar complaint in federal district
court bringing the same claims against the City for CD 10,
but also challenging the boundaries for CDs 8 and 9. The
district court consolidated these cases on August 21, 2013.
In the course of litigation, the City moved for a
protective order prohibiting Plaintiffs from questioning City
officials regarding any legislative acts, motivations, or
deliberations pertaining to the 2012 redistricting ordinance.
The City also sought to specifically prohibit Plaintiffs from
deposing Mayor Eric Garcetti, Council President Wesson,
City Councilmember Jose Huizar, and former City
Councilmember Jan Perry. The district court granted the
City’s motion and issued a protective order.
On February 24, 2015, the district court granted
summary judgment in favor of the City as to Plaintiffs’
federal constitutional claim and declined to exercise
LEE V. CITY OF LOS ANGELES 13
supplemental jurisdiction over their remaining claims, which
it dismissed without prejudice. Plaintiffs appeal both the
summary judgment order and the issuance of the protective
order. 3
II. Jurisdiction and Standard of Review
We have jurisdiction under 28 U.S.C. § 1291. We
review de novo a district court’s order granting summary
judgment. Fresno Motors, LLC v. Mercedes Benz USA,
LLC, 771 F.3d 1119, 1125 (9th Cir. 2014). “Summary
judgment . . . is appropriate only where there is no genuine
issue of material fact and the moving party is entitled to
judgment as a matter of law.” Hunt v. Cromartie, 526 U.S.
541, 549 (1999) (Cromartie I).
We generally review protective orders entered under a
district court’s inherent authority for abuse of discretion.
Wharton v. Calderon, 127 F.3d 1201, 1205 (9th Cir. 1997).
However, “[a] district court by definition abuses its
discretion when it makes an error of law.” Koon v. United
States, 518 U.S. 81, 100 (1996). Because the application of
a legal privilege is “essentially a legal matter” that is
reviewed de novo, Al-Haramain Islamic Found., Inc. v.
Bush, 507 F.3d 1190, 1196 (9th Cir. 2007), we apply that
standard here to the district court’s application of the
legislative privilege.
3
Because we do not rely on it in this opinion, we DENY the City’s
motion requesting judicial notice as moot.
14 LEE V. CITY OF LOS ANGELES
III. Discussion
A. Equal Protection Claim
The Equal Protection Clause of the Fourteenth
Amendment provides that “[n]o State shall . . . deny to any
person within its jurisdiction the equal protection of the
laws.” U.S. Const., amend. XIV, § 1. “Its central purpose
is to prevent the States from purposefully discriminating
between individuals on the basis of race.” Shaw v. Reno,
509 U.S. 630, 642 (1993) (Shaw I). This includes
“separating . . . citizens into different voting districts on the
basis of race” without “sufficient justification.” Cooper,
137 S. Ct. at 1463 (quoting Bethune-Hill v. Va. State Bd. of
Elections, 137 S. Ct. 788, 797 (2017)). Claims that voting
districts have been drawn on race-based lines are evaluated
under a two-step analysis: (1) the plaintiffs must first prove
that “race was the predominant factor motivating the
legislature’s decision to place a significant number of voters
within or without a particular district”; and (2) if the
plaintiffs do so, the burden shifts to the defendant “to prove
that its race-based sorting of voters serves a ‘compelling
interest’ and is ‘narrowly tailored’ to that end.” Id. at 1463–
64 (quoting Bethune-Hill, 137 S. Ct. at 797). The district
court granted summary judgment after finding that the
plaintiffs failed to raise a genuine dispute at the first step of
the analysis.
Proving that race was the predominant factor in drawing
district boundaries “entails demonstrating that the legislature
‘subordinated’ other factors . . . to ‘racial considerations.’”
Id. (quoting Miller v. Johnson, 515 U.S. 900, 916 (1995)).
What matters is “the actual considerations that provided the
essential basis for the lines drawn, not post hoc justifications
the [legislative body] in theory could have used but in reality
did not.” Bethune-Hill, 137 S. Ct. at 799. Plaintiffs may
LEE V. CITY OF LOS ANGELES 15
make this showing with direct or circumstantial evidence.
Cooper, 137 S. Ct. at 1464.
In proving that race was the predominant factor, it is
unnecessary to show an actual conflict between the enacted
plan and “traditional redistricting principles.” Bethune-Hill,
137 S. Ct. at 799. “Race may predominate even when a
reapportionment plan respects traditional principles,” id. at
798—for example, when a legislative body uses race as the
predominant criterion to advance those principles, see
Cooper, 137 S. Ct. at 1464 n.1. Given that traditional
redistricting principles are “numerous and malleable,” a
legislative body “could construct a plethora of potential
maps that look consistent with traditional, race-neutral
principles.” Bethune-Hill, 137 S. Ct. at 799. “But if race for
its own sake is the overriding reason for choosing one map
over others, race still may predominate.” Id. Still, the
Supreme Court has recently reiterated that the “good faith of
[the legislative body] must be presumed,” and the burden of
proof rests with the challenger to demonstrate that race
predominated the districting process. Abbott v. Perez,
138 S. Ct. 2305, 2324 (2018) (quoting Miller, 515 U.S. at
915).
Plaintiffs argue that race was in fact the overriding
motivation behind CD 10’s boundaries. They contend that
Council President Wesson used his powerful and prominent
position to ensure that CD 10 would become a majority
African American Council District. Wesson claimed credit
for acting to preserve African American seats on the City
Council after the redistricting process concluded. He
explicitly stated that it had been his “priority” to “make sure
we have a black vote or two on that council.”
In light of Wesson’s statements, Plaintiffs draw
particular significance from two facts: (1) Wesson’s
16 LEE V. CITY OF LOS ANGELES
appointment of Christopher Ellison, a man with no prior
redistricting experience, to the Redistricting Commission,
and (2) the division of the Commission into ad hoc
committees for the initial drawing of Council District
boundaries. According to Plaintiffs, the explicit purpose of
the ad hoc committees was to avoid public scrutiny, and
Ellison was appointed specifically to pursue Wesson’s race-
based agenda. Outside public view, and with fewer
Commissioners against whom he needed to contend, Ellison
could exercise greater control over the proceedings and more
effectively pursue his (and Wesson’s) goals. Indeed,
Plaintiffs assert that “[t]he Ad Hoc Committees were the
most important part of the redistricting process.” By getting
the first crack at drawing the Council Districts, these
committees enjoyed the advantage of setting the terms of
future debate. Although the Commission and the City
Council might later amend a committee’s proposal on the
margins, it would be difficult if not impossible to completely
scrap a proposal and redraw the boundaries anew.
At the West/Southwest Committee’s first meeting,
Ellison had the Commission’s Technical Director display a
map of CD 10 with racial demographic data superimposed
over it. He then had the Technical Director redraw CD 10 to
maximize the percentage of African American registered
voters. Ellison explained the changes in his proposed map
in terms of how it would increase the African American
voting population in CD 10. He explicitly stated that “[w]e
attempted to protect the historical African American
incumbents in this district by increasing the black voter
registration percentage and CVAP #s accordingly.”
This evidence certainly shows that race was a motivation
in drawing CD 10. For Ellison and Wesson, it may have
even been the only motivation. Ellison never offered any
LEE V. CITY OF LOS ANGELES 17
justification other than race for his proposed boundaries. But
the relevant inquiry is whether “race was the predominant
factor motivating the legislature’s decision” as to the final
boundaries. Cooper, 137 S. Ct. at 1463 (emphases added).
And here, Plaintiffs have not made the requisite showing to
raise a genuine dispute of fact. Had Ellison been the final
decision maker, then on this record Plaintiffs may have been
able to make a compelling showing of predominance.
However, Ellison and Wesson were only two people in a
process that incorporated multiple layers of decisions and
alterations from the entire Commission, as well as the City
Council.
Nor was Ellison’s proposal adopted “as is.” After his
proposal was forwarded to the Commission, the boundaries
underwent additional review and changes. First, the
Commission released its proposed Council Districts
(including Ellison’s proposed boundaries for CD 10) for
public comment and review. After considering the public
feedback, the Commission amended the proposed
boundaries. For CD 10, the Commission voted to place
additional neighborhoods into the District, putting all of
Little Bangladesh and around 70% of Koreatown 4 into CD
10. The Commission then placed these amended boundaries
before the public again for additional comment and review.
Afterwards, the Commission further amended its
boundaries 5 and approved a “final” version. The
4
The actual percentage of Koreatown that the Commission voted to
place into CD 10 depends on the definition used, e.g., 70% if defined as
the Wilshire Center-Koreatown Neighborhood Council, but 100% if
defined by the City of Los Angeles’ community renaming policy.
5
Although not for CD 10.
18 LEE V. CITY OF LOS ANGELES
Commission forwarded this “final” version to the City
Council with additional recommendations that would further
alter CD 10’s boundaries from what Ellison originally
proposed. 6
Next, the City Council held its own public hearings
regarding the proposed Council Districts and the
Commission’s recommendations. Members of the City
Council then proposed their own adjustments to the
Commission’s proposal; three of these proposals would
affect CD 10. The City’s Chief Legislative Analyst
reviewed these proposed changes along with the
Commission’s original proposal. Ultimately, the Legislative
Analyst recommended adopting the Commission’s proposal
with 18 of the proposed adjustments, including the proposed
changes to CD 10. Finally, on March 16, 2012, the City
Council adopted the Legislative Analyst’s recommended
Council District boundaries.
Even viewed in the light most favorable to Plaintiffs, the
record fails to show that these successive amendments were
driven predominantly by racial considerations. Instead, the
Commission’s final report and recommendations show that,
overall, the Commission sought to rebalance the populations
in each Council District, while preserving communities and
unifying as many Neighborhood Councils as possible in a
single Council District. According to the Commission’s
report, 53 of 95 Neighborhood Councils had been divided
across more than one Council District, and 13 of the 53 were
divided across more than two Council Districts. Under the
Commission’s final proposed boundaries, the number of
6
These recommendations would have kept businesses in the
communities of Little Bangladesh, Little Ethiopia, and Koreatown
within CD 10.
LEE V. CITY OF LOS ANGELES 19
divided Neighborhood Councils was reduced from 53 to 29,
and the number of Neighborhood Councils divided across
more than two Council Districts was reduced from 13 to 3.
A memorandum to the Commission from its staff reflects
these priorities. According to the memorandum, the
amendments pertaining to Koreatown and its adjacent areas
were adopted in response to public testimony expressing a
desire to keep neighborhoods such as Little Ethiopia,
Koreatown, and Little Bangladesh whole. In choosing to
place Leimert Park and Baldwin Hills in CD 10, the
Commission was responding to public testimony requesting
that the entire Empowerment Congress West Area
Neighborhood Development Council (of which Leimert
Park and Baldwin Hills are a part) be placed in one Council
District. Some of these neighborhoods had been divided
across more than one Council District for at least forty years.
Although Koreatown, as defined as the Wilshire Center-
Koreatown Neighborhood Council, ultimately could not be
brought into a single Council District, the Commission did
succeed in reducing the split from three Council Districts to
two. 7
As for the amendments proposed by City Council
members, the record lacks substantive evidence to show that
they were proposed predominantly because of race, rather
than in response to concerns raised during the public
hearings. Plaintiffs allude to Council President Wesson’s
“huge sway” over the drawing of CD 10’s boundaries, but
aside from appointing Ellison to the Commission, they fail
to point to any evidence showing how Wesson used his
7
Under a narrower definition of Koreatown as discussed above, see
supra note 4, the Commission succeeded in uniting Koreatown into a
single Council District.
20 LEE V. CITY OF LOS ANGELES
power and influence to pursue a race-based redistricting
agenda. Wesson stated that his “priority” was to “make sure
[they] have a black vote or two on that council,” but he
indicated in those same remarks that he was alone in
prioritizing race in drawing the Council Districts. Wesson
said that it was “[him] against twelve other members on the
Council. [He] had no backup. [He] had no faction.” These
remarks tend to show that Wesson did not exert as much
influence over the proceedings as he would have liked.
Absent any additional evidence, Ellison’s and Wesson’s
own subjective motivations are insufficient to make
plaintiff’s case that race predominated over the City
Council’s deliberations.
The circumstantial evidence also fails to create a genuine
dispute on racial predominance. CD 10 is one of the most
compact districts in Los Angeles, and its boundaries
generally follow the boundaries of the Los Angeles
Neighborhood Councils or other geographic markers.
Moreover, CD 10 is not any more bizarrely shaped than it
was with its previous boundaries. 8 See Appendix. This is a
far cry from the cases in which the Supreme Court found the
shape of voting districts to be indicative of racial
considerations on their face. See, e.g., Bush v. Vera,
517 U.S. 952, 965–66 (1996) (describing a “compact, albeit
irregularly shaped, core” with “narrow and bizarrely shaped
tentacles . . . extending primarily to the north and west”);
Miller, 515 U.S. at 908–09 (describing a “sparsely populated
rural core” connected by “narrow corridors” to “four
discrete, widely spaced urban centers”); Shaw I, 509 U.S. at
635–36 (describing two districts, one with a “hook shape[]”
8
Expert analysis shows that 88.53% of CD 10’s current boundaries
either follow the Neighborhood Council boundaries or CD 10’s original
boundaries before redistricting.
LEE V. CITY OF LOS ANGELES 21
with “finger-like extensions” and another that winds “in
snakelike fashion” to encompass African American
neighborhoods).
The demographic data and expert analyses fail to raise a
genuine dispute on racial predominance as well. Not only is
the increase in CD 10’s African American CVAP from
36.8% to 40.5% relatively small, but looking at only the
initial and final numbers also obscures what occurred in
between. The Commission’s proposal to the City Council
originally increased African American CVAP to 43.1%. The
City Council’s final, approved version therefore reflects a
decrease in CD 10’s African American CVAP in
comparison to the Commission’s proposal. By placing most
of Koreatown, which is predominantly Latino and Asian in
population, in CD 10, the City Council diluted rather than
concentrated African American voting power in that district.
Moreover, the boundary segment analysis conducted by
Plaintiffs’ expert indicates that the current CD 10 does not
appreciably concentrate African Americans inside CD 10
any more than the former CD 10 did.
Finally, the remaining procedural irregularities noted by
Plaintiffs fail to suggest that race predominated over the
drawing of Council Districts. Plaintiffs identify two
Commissioners who were replaced after allegedly
expressing reservations about the Commission’s proposal.
However, turnover on the Commission was not
uncommon—six Commissioners were replaced between
September 2011 and February 2012. The record does not
clearly show that the two aforementioned Commissioners
had concerns specifically about racial line drawing, as
opposed to the overall proposal put forth by Ellison.
Plaintiffs also take issue with the Commission’s use of
ad hoc committees, but the Commission followed a similar
22 LEE V. CITY OF LOS ANGELES
procedure to draw boundaries in 2002. Admittedly, the
record does not provide a clear explanation on exactly why
the West/Southwest Committee chose to forward Ellison’s
proposed boundaries to the Commission rather than Kim’s,
but Kim was able to present her proposal before the full
Commission anyway. The Commission rejected Kim’s
proposal based on concerns that placing Koreatown in a
single Council District would create major disruptions to
other neighborhoods and Council Districts throughout the
City. And, contrary to Plaintiffs’ assertions, the use of ad
hoc committees did not exclude the public from the
redistricting process. The record indicates that the public
was consulted continually throughout the redistricting
process.
In sum, we conclude that Plaintiffs failed to raise a
triable issue of fact as to whether the City was motivated
predominantly by race in drawing CD 10, and the district
court properly granted summary judgment in favor of the
City. 9
B. Legislative Privilege Claim
Plaintiffs contend that the district court erred in barring
the depositions of Ellison, Wesson, and other officials
involved in the redistricting process. First, according to
Plaintiffs, the legislative privilege does not apply at all to
state and local officials. We disagree.
9
The plaintiffs in the Haveriland action appeal the district court’s
summary judgment order as to CDs 8 and 9. Because the Haveriland
plaintiffs merely joined in “the same arguments and analyses that were
made in the Lee Appellants’ Opening Brief,” their appeal fails for the
same reason.
LEE V. CITY OF LOS ANGELES 23
The legislative privilege has deep historical roots that the
Supreme Court has traced back to “the Parliamentary
struggles of the Sixteenth and Seventeenth Centuries.”
Tenney v. Brandhove, 341 U.S. 367, 372 (1951). In Tenney,
the Court reviewed a civil rights suit against members of a
California state senate committee and a local city mayor,
ultimately finding that such a suit could not proceed. Id. at
369. As the Court explained:
In order to enable and encourage a
representative of the public to discharge his
public trust with firmness and success, it is
indispensably necessary, that he should enjoy
the fullest liberty of speech, and that he
should be protected from the resentment of
every one, however powerful, to whom the
exercise of that liberty may occasion offense.
Id. at 373 (citation omitted). The Court’s analysis drew on
“political principles already firmly established in the States,”
as reflected in numerous state constitutions that had
historically embraced just such a privilege for their own
legislators. Id. at 373–75. Because the defendants had not
“exceeded the bounds of legislative power” and “were acting
in a field where legislators traditionally have power to act,”
the Court held that they were immune from suit. 10 Id. at
378–79.
While Tenney’s holding rested upon a finding of
immunity, its logic supports extending the corollary
10
While the privilege, as applied to federal officials, is embedded
directly in the Constitution, its extension to state and local officials is a
matter of federal common law. See United States v. Gillock, 445 U.S.
360, 372 n.10 (1980).
24 LEE V. CITY OF LOS ANGELES
legislative privilege from compulsory testimony to state and
local officials as well. Like their federal counterparts, state
and local officials undoubtedly share an interest in
minimizing the “distraction” of “divert[ing] their time,
energy, and attention from their legislative tasks to defend
the litigation.” See Eastland v. U.S. Servicemen’s Fund,
421 U.S. 491, 503 (1975). The rationale for the privilege—
to allow duly elected legislators to discharge their public
duties without concern of adverse consequences outside the
ballot box—applies equally to federal, state, and local
officials. 11 “Regardless of the level of government, the
exercise of legislative discretion should not be inhibited by
judicial interference . . . .” Bogan v. Scott-Harris, 523 U.S.
44, 52 (1998). We therefore hold that state and local
legislators may invoke legislative privilege. 12
Plaintiffs next argue that, even assuming the privilege
applies to state and local officials, it is only a qualified right
that should be overcome in this case. Plaintiffs have failed
to persuade us that the privilege was improperly applied
here.
Although the Supreme Court has not set forth the
circumstances under which the privilege must yield to the
need for a decision maker’s testimony, it has repeatedly
stressed that “judicial inquiries into legislative or executive
motivation represent a substantial intrusion” such that
calling a decision maker as a witness “is therefore ‘usually
11
We recognize, however, that certain other concerns addressed by
the legislative privilege are specific to federal legislators, such as the
separation of powers principles that undergird the Speech and Debate
Clause of the Constitution. See Gillock, 445 U.S. at 370, 372 n.10.
12
The privilege also extends to legislative aides and assistants. See
Jeff D. v. Otter, 643 F.3d 278, 290 (9th Cir. 2011).
LEE V. CITY OF LOS ANGELES 25
to be avoided.’” Vill. of Arlington Heights v. Metro. Hous.
Dev. Corp., 429 U.S. 252, 268 n.18 (1977) (quoting Citizens
to Preserve Overton Park v. Volpe, 401 U.S. 402, 420
(1971)).
In Village of Arlington Heights, the plaintiff brought an
Equal Protection challenge against local officials, alleging
that their refusal to rezone a parcel of land for redevelopment
was motivated by racial discrimination. Id. at 254. While
the Court acknowledged that “[t]he legislative or
administrative history may be highly relevant,” it
nonetheless found that even “[i]n extraordinary instances
. . . such testimony frequently will be barred by privilege.”
Id. at 268 (citing Tenney, 341 U.S. 367). Applying this
precedent, we have likewise concluded that plaintiffs are
generally barred from deposing local legislators, even in
“extraordinary circumstances.” City of Las Vegas v. Foley,
747 F.2d 1294, 1298 (9th Cir. 1984) (citing Vill. of Arlington
Heights, 429 U.S. at 268).
We recognize that claims of racial gerrymandering
involve serious allegations: “At the heart of the
Constitution’s guarantee of equal protection lies the simple
command that the Government must treat citizens ‘as
individuals, not “as simply components of a racial . . .
class.”’” Miller, 515 U.S. at 911 (quoting Metro Broad., Inc.
v. FCC, 497 U.S. 547, 602 (O’Connor, J., dissenting)). Here,
Defendants have been accused of violating that important
constitutional right.
But the factual record in this case falls short of justifying
the “substantial intrusion” into the legislative process. See
Vill. of Arlington Heights, 429 U.S. at 268 n.18. Although
Plaintiffs call for a categorical exception whenever a
constitutional claim directly implicates the government’s
intent, that exception would render the privilege “of little
26 LEE V. CITY OF LOS ANGELES
value.” See Tenney, 341 U.S. at 377. Village of Arlington
Heights itself also involved an equal protection claim
alleging racial discrimination—putting the government’s
intent directly at issue—but nonetheless suggested that such
a claim was not, in and of itself, within the subset of
“extraordinary instances” that might justify an exception to
the privilege. 429 U.S. at 268. Without sufficient grounds
to distinguish those circumstances from the case at hand, we
conclude that the district court properly denied discovery on
the ground of legislative privilege.
AFFIRMED.
LEE V. CITY OF LOS ANGELES 27
APPENDIX
Current CD 10 Boundaries
28 LEE V. CITY OF LOS ANGELES
Previous CD 10 Boundaries