In Re: North Dakota Legislative Assembly v.

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 23-1600
___________________________
In re: North Dakota Legislative Assembly; William R. Devlin; Senator Ray
Holmberg; Senator Richard Wardner; Senator Nicole Poolman; Michael Nathe,
Representative; Terry Jones, Representative; Claire Ness, Senior Counsel at the
North Dakota Legislative Council,
lllllllllllllllllllllPetitioners,
____________
Appeal from United States District Court
for the District of North Dakota - Eastern
____________
Submitted: April 17, 2023
Filed: June 6, 2023
____________
Before COLLOTON, BENTON, and KELLY, Circuit Judges.
____________
COLLOTON, Circuit Judge.
We consider here a petition for writ of mandamus filed by several current or
former members of the North Dakota Legislative Assembly and a legislative aide.
The petitioners seek relief from orders of the district court directing them to comply
with subpoenas for documents or testimony in a civil case brought against the State
of North Dakota. See Turtle Mountain Band of Chippewa Indians v. Jaeger, No.
3:22-0022 (D.N.D.). The underlying lawsuit alleges violations of Section 2 of the
Voting Rights Act, 52 U.S.C. § 10301(a). The plaintiffs seek to develop evidence of
alleged “illicit motive” by legislators who enacted a redistricting plan for state
legislative districts. The petitioners argue that the discovery orders infringe on
legislative privilege and that the subpoenas should be quashed.*
Three conditions must be satisfied for this court to issue a writ of mandamus.
First, the party seeking the writ must have no other adequate means to attain the relief
desired. Second, the petitioner must show that his or her right to relief is clear and
indisputable. Third, this court must be satisfied that the writ is appropriate under the
circumstances. Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 380-81 (2004).
Mandamus is an appropriate remedy where a claim of privilege is erroneously
rejected during discovery, because the party claiming privilege has no other adequate
means to attain relief, and the enforcement of the discovery order would destroy the
privilege. See Baker v. Gen. Motors Corp., 209 F.3d 1051, 1053 (8th Cir. 2000); In
re Gen. Motors Corp., 153 F.3d 714, 715 (8th Cir. 1998).
*
The plaintiffs issued a subpoena for testimony to former state representative
William R. Devlin. They issued seven document subpoenas to current or former
legislators and one legislative aide, seeking documents and communications
regarding the following:
(1) Native Americans and/or Indian Reservations and the 2021 Redistricting
Process or Maps.
(2) Tribal input, including regarding written submissions or verbal testimony
from tribal representatives, with respect to the 2021 Redistricting Process or Maps.
(3) Redistricting criteria for the 2021 Redistricting Process or Maps.
(4) District 4, District 9, or District 15, and, where applicable, any subdistricts
of these districts, including documents and communications regarding the
applicability of the Voting Rights Act to these districts and subdistricts.
(5) Trainings provided to legislators in preparation for or as part of the 2021
Redistricting Process.
(6) The identity of map drawers in the 2021 Redistricting Process.
(7) Racial polarization or demographic studies conducted by the Redistricting
Committee or Legislature as part of or in preparation for the 2021 Redistricting
Process.
-2-
The petitioners rely on a claim of legislative privilege. State legislators enjoy
a privilege under the federal common law that largely approximates the protections
afforded to federal legislators under the Speech or Debate Clause of the Constitution.
And a privilege that protects legislators from suit or discovery extends to their aides.
Gravel v. United States, 408 U.S. 606, 616 (1972); Reeder v. Madigan, 780 F.3d 799,
804 (7th Cir. 2015). Although state legislators do not enjoy the same privilege as
federal legislators in criminal actions, United States v. Gillock, 445 U.S. 360, 372-73
(1980), the Supreme Court otherwise has generally equated the legislative immunity
to which state legislators are entitled to that accorded Members of Congress under the
Constitution. Sup. Ct. of Va. v. Consumers Union, 446 U.S. 719, 733 (1980). In civil
litigation, there is no reason to conclude that state legislators and their aides are
“entitled to lesser protection than their peers in Washington.” Reeder, 780 F.3d at
805; see Lee v. City of Los Angeles, 908 F.3d 1175, 1187 (9th Cir. 2018). Legislative
privilege, like legislative immunity, reinforces representative democracy by fostering
an environment where public servants can undertake their duties without the threat
of personal liability or the distraction of incessant litigation. See Bogan v. Scott-
Harris, 523 U.S. 44, 52 (1998); EEOC v. Wash. Suburban Sanitary Comm’n, 631
F.3d 174, 181 (4th Cir. 2011).
Legislative privilege applies where legislators or their aides are “acting in the
sphere of legitimate legislative activity.” Tenney v. Brandhove, 341 U.S. 367, 376
(1951). When legislators are functioning in that sphere, the privilege is an “absolute
bar to interference.” Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491, 503 (1975).
The privilege “protects against inquiry into acts that occur in the regular course of the
legislative process and into the motivation for those acts.” United States v. Brewster,
408 U.S. 501, 525 (1972). The bar to interference extends beyond immunity from
liability to the compelled discovery of documents or testimony, because legislators
“should be protected not only from the consequences of litigation’s results but also
from the burden of defending themselves.” Dombrowski v. Eastland, 387 U.S. 82,
85 (1967) (per curiam). This protection applies whether or not the legislators are
-3-
parties in a civil action: “A litigant does not have to name members or their staffs as
parties to a suit in order to distract them from their legislative work. Discovery
procedures can prove just as intrusive.” MINPECO, S.A. v. Conticommodity Servs.,
Inc., 844 F.2d 856, 859 (D.C. Cir. 1988); see Wash. Suburban Sanitary Comm’n, 631
F.3d at 181. The degree of intrusion is not material; “any probing of legislative acts
is sufficient to trigger the immunity.” Brown & Williamson Tobacco Corp. v.
Williams, 62 F.3d 408, 419 (D.C. Cir. 1995) (emphasis omitted).
The conditions for legislative privilege are plainly satisfied here. The plaintiffs
in the underlying lawsuit seek documents and testimony from legislators and an aide
concerning acts undertaken with respect to the enactment of redistricting legislation
in North Dakota. The district court did not dispute that the acts were undertaken
within the sphere of legitimate legislative activity. The acts are therefore privileged
from inquiry. Absent a waiver of the privilege, the subpoenas should have been
quashed based on legislative privilege.
We conclude that the district court’s conclusion to the contrary was based on
a mistaken conception of the legislative privilege. In its order enforcing the
document subpoenas, the district court reasoned that legislative privilege did not
apply because the subpoena sought communications between legislators and third
parties. The legislative privilege, however, is not limited to a bar on inquiry into
communications among legislators or between legislators and their aides. The
privilege is not designed merely to protect the confidentiality of deliberations within
a legislative body; it protects the functioning of the legislature more broadly.
Communications with constituents, advocacy groups, and others outside the
legislature are a legitimate aspect of legislative activity. The use of compulsory
evidentiary process against legislators and their aides to gather evidence about this
legislative activity is thus barred by the legislative privilege. See Almonte v. City of
Long Beach, 478 F.3d 100, 107 (2d Cir. 2007); Bruce v. Riddle, 631 F.2d 272, 280
(4th Cir. 1980). The authority on which the district court relied for a narrower
-4-
understanding of the privilege has since been reversed on this basis. See Jackson
Mun. Airport Auth. v. Harkins, 67 F.4th 678, No. 21-60312, 2023 WL 3333607, at
*5 (5th Cir. May 10, 2023). The dissent endorses the district court’s order requiring
the production of “nonprivileged communications,” but does not acknowledge that
the order was premised on a mistaken conclusion that the legislative privilege affords
no protection against discovery of communications between a legislator and third
parties.
With respect to the order enforcing a subpoena for testimony from
Representative Devlin, the district court did not simply consider whether the
subpoena would inquire into acts within the legitimate legislative sphere, but instead
applied a five-factor test akin to that used to determine the scope of the deliberative
process privilege. The district court reasoned that redistricting legislation “presents
a particularly appropriate circumstance for qualifying the state legislative privilege
because judicial inquiry into legislative intent is specifically contemplated as part of
the resolution of the core issue that such cases present.” R. Doc. 71, at 3 (quoting
Bethune-Hill v. Va. State Bd. of Elections, 114 F. Supp. 3d 323, 337 (E.D. Va. 2015)).
The cited authority, in turn, relied on Village of Arlington Heights v. Metropolitan
Housing Development Corp., 429 U.S. 252 (1977), where the Supreme Court
addressed a challenge to restricting legislation based on the Equal Protection Clause
of the Fourteenth Amendment. In that context, the Court said that “[i]n some
extraordinary instances the members might be called to the stand at trial to testify
concerning the purpose of the official action, although even then such testimony
frequently will be barred by privilege.” Id. at 268. The Court further observed that
“judicial inquiries into legislative or executive motivation represent a substantial
intrusion into the workings of other branches of government,” and are “usually to be
avoided.” Id. at 268 n.18 (internal quotation omitted).
-5-
The potential for “extraordinary instances” in which testimony might be
compelled from a legislator about legitimate legislative acts does not justify enforcing
a subpoena for testimony in this case. Dicta from Village of Arlington Heights does
not support the use of a five-factor balancing test in lieu of the ordinary rule that
inquiry into legislative conduct is strictly barred by the privilege. Even where
“intent” is an element of a claim, statements by individual legislators are an
insufficient basis from which to infer the intent of a legislative body as a whole.
United States v. O’Brien, 391 U.S. 367, 383-84 (1968); Rosenstiel v. Rodriguez, 101
F.3d 1544, 1552 (8th Cir. 1996). And here, the underlying case does not even turn
on legislative intent. A claim under § 2 of the Voting Rights Act does not depend on
whether the disputed legislative districts were adopted “with the intent to discriminate
against minority voters,” for the statute repudiated an “intent test.” Thornburg v.
Gingles, 478 U.S. 30, 43-44 (1986). Any exception to legislative privilege that might
be available in a case that is based on a legislature’s alleged intent is thus
inapplicable. See Am. Trucking Ass’ns, Inc. v. Alviti, 14 F.4th 76, 88-89 (1st Cir.
2021). The dissent’s proposal to order a deposition during which a legislator could
“invoke legislative privilege” does not sufficiently appreciate that compulsory
process constitutes a “substantial intrusion” into the workings of a legislature that
must “usually be avoided.” Vill. of Arlington Heights, 429 U.S. at 268 n.18; see Lee,
908 F.3d at 1188.
For these reasons, we grant in part the petition for writ of mandamus, and direct
the district court to quash the subpoenas for petitioner Devlin to testify, and for
petitioners Holmberg, Wardner, Poolman, Nathe, Devlin, and Ness to produce
documents and other information. We deny the petition with respect to the subpoena
for petitioner Jones to produce documents. The district court enforced that subpoena
on the alternative ground that Jones waived his legislative privilege by testifying at
a preliminary injunction hearing in another case concerning redistricting legislation.
R. Doc. 72 at 5 & n.1; R. Doc. 63, at 5. The petitioners do not discuss or dispute the
district court’s conclusion of waiver, so we have no occasion to address it. But
-6-
Jones—having declined even to challenge an independent ground for the district
court’s order regarding his subpoena—has not demonstrated a clear and indisputable
right to relief.
KELLY, Circuit Judge, concurring in part and dissenting in part.
I respectfully dissent from the grant of mandamus relief in this case. The
legislative petitioners have not shown that this “drastic and extraordinary” remedy is
appropriate. Cheney, 542 U.S. at 380 (citation omitted). In my view, this case
involves neither “a judicial usurpation of power” nor “a clear abuse of discretion” by
the district court. Id. (cleaned up).
The subpoenas at issue here sought documents and communications from the
legislative petitioners regarding allegations that the 2021 redistricting plan enacted
by the North Dakota Legislature violated the Voting Rights Act. When the legislative
petitioners objected, the plaintiffs, among whom include the Turtle Mountain Band
of Chippewa Indians and Spirit Lake Nation (the Tribes), moved to enforce the
subpoenas. From there, the district court identified three categories of relevant
evidence based on a search the legislative petitioners conducted of their official email
accounts and personal phones: (1) communications between the legislative petitioners
and another legislator; (2) communications between the legislative petitioners and
legislative council staff; and (3) communications between the legislative petitioners
and an individual who was neither a legislator nor a legislative council staff member.
The Tribes only sought disclosure of materials that fell in the third
category—communications that the Tribes argue are nonprivileged because they have
been shared with “third parties.” In short, the Tribes sought documents and
communications for which any privilege had been waived.
-7-
In its petition for mandamus, the legislative petitioners contend broadly that,
where the United States is not a party, any and all “request[s] for discovery . . . in a
civil case [are] barred by common-law legislative privilege.” The legislative
petitioners acknowledge that the privilege is “qualified,” but their argument
recognizes no exception for discovery in a case like this one. At a minimum,
however, the state legislative privilege can be waived. See Jackson Mun. Airport
Auth., 2023 WL 3333607, at *5 (noting that the “legislative privilege can be waived
when certain conditions apply”). And the legislative petitioners fail to address the
issue of waiver. As a result, this court has no basis to determine whether the
legislative petitioners believe they have, or have not, waived privilege as to any of the
documents and communications shared with third parties. An order quashing the
subpoenas here is likely to prohibit the discovery of at least some nonprivileged
materials relevant to the pending litigation. That result sweeps too broadly.
Moreover, the legislative petitioners fail to explain how a privilege log would
not adequately prevent disclosure of documents and communications that are
protected by the state legislative privilege. They bear the burden of establishing the
privilege. See Fed. R. Civ. P. 45(e)(2)(A) (“A person withholding subpoenaed
information under a claim that it is privileged” must “expressly make the claim” and
“describe the nature of the withheld documents . . . in a manner that, without
revealing information itself privileged or protected, will enable the parties to assess
the claim.”). And here, the district court instructed the legislative petitioners to
produce a privilege log, “sufficient to distinguish privileged from non-privileged”
materials, that would describe “the general nature of the document, the identity of the
author, the identities of all recipients, and the date on which the document was
written” for any communications they sought to withhold based on a claim of
legislative privilege. The legislative petitioners’ assertion that a privilege log is “not
required with respect to a claim of legislative privilege” ignores that the district court
ordered the disclosure of only nonprivileged materials. See Jackson Mun. Airport
Auth., 2023 WL 3333607, at *5 (agreeing with the district court that a privilege log
-8-
was “necessary to determine which of the requested documents and communications
are protected by legislative privilege”). A privilege log is an appropriate mechanism
for resolving any privilege disputes that may arise, and the district court is best placed
to determine whether and for what documents the state legislative privilege could
apply.
Finally, the legislative petitioners argue that they would face an “undue
burden” if compelled to produce the requested communications, which they assert
number over 64,000 and would require 640 hours to review. See Fed. R. Civ. P.
45(d)(3)(A)(iv) (requiring that a court “quash or modify a subpoena” that “subjects
a person to undue burden”). But the district court identified just 2,655 responsive
materials in their possession, and of these, the legislative petitioners would need to
produce about 558 documents and communications. As such, the district court
concluded that the record did not support the petitioners’ contention that the
production of these materials would require the amount of work they claimed. These
findings by the court are not clearly erroneous, and I see no reason to disturb them.
See Silverman v. Silverman, 312 F.3d 914, 916 (8th Cir. 2002) (stating that where the
district court’s underlying finding is “solely a question of fact,” we review it for clear
error). All told, the district court recognized that some of the requested
communications may be protected by the state legislative privilege. And in granting
the motion to enforce the subpoenas, it directed the petitioners to produce only those
materials that are nonprivileged. The district court did not abuse its discretion.
Nor did the district court abuse its discretion in denying the motion to quash
the subpoena for testimony directed at Representative Devlin. The legislative
petitioners broadly assert that Devlin’s deposition is “barred by legislative privilege.”
But Representative Devlin remains free to invoke legislative privilege and decline to
answer questions that intrude on the legislative process. And the petitioners do not
contend that such limitations placed on Devlin’s deposition, if imposed, would be
insufficient to protect his assertion of privilege.
-9-
The district court thus acted well within its authority when it granted the
motion to enforce the subpoenas to produce nonprivileged communications directed
to the legislative petitioners, including Representative Jones, and denied the motion
to quash the deposition subpoena directed to Representative Devlin. Mandamus
relief, under these circumstances, is not warranted.
______________________________
-10-