Episode 82 - Testimonial Privileges: The Legislative Privilege

In this episode - the first in a new series this year on testimonial privileges that can impede your efforts to depose witnesses - Jim Garrity explains the "legislative privilege," applicable to legislators and others who engage in legislative functions. It's not the same as "legislative immunity," and as with all privileges, there are ways to depose witnesses who can assert it. In this episode, there are fifteen cases cited in the show notes. If you can't see all fourteen, click through to our home page. (Some podcast sites don't accommodate longer show notes.) Thanks!(NOTE: We add new cases to show notes when appropriate. These notes contain one or more new decisions issued after the episode was first aired. Scroll to bottom for newest decisions.)SHOW NOTES:Bogan v. Scott-Harris, 520 3U. S. 44, 53 (1972) (focus of the analysis is on the nature of the accused act; held, ordinance in question was legislative, because it reflected a discretionary, policymaking decision implicating the budget priorities of the city and the services the city provides to its constituents)McKnight v. Brown, et al., 2022 WL 488607, Case No. 120-cv-03678-PAB-SKC (S. D. Colo. Feb. 17, 2022) (plaintiff may not assert otherwise-valid Fifth Amendment privilege to avoid answering any deposition questions, such as background questions, questions concerning his criminal convictions (if any) consistent with Fed. R. Evid. 609; and questions regarding his damages and injuries claimed in the case)Bannum, Inc v. City of Beaumont, Texas, 236 F. Supp. 2d 633 (E. D. Texas December 12, 2002) (granting motion for protective order as to city clerk, city council, and planning and zoning commission, because discretionary decision on the issue - where a halfway house should best be placed - was a policy decision implicating the interests of the city as a whole)Bryan v. City of Madison, 213 F. 3D 267, 274 (5th Circuit 2000) (concluding that actions involving a decision to rezone a property were entitled to legislative immunity)Singleton V. Merrill, 2021 WL 5979516, Case No. 2:21-cv-1291-AMM, and 2:21- CV-1530 -AMM (immunity and privileges lost when legislators actively participated in litigation pertaining to legislation they helped draft)Gross v. Winter, 1989 WL 54866 (D.C. Circuit May 26, 1989) (District of Columbia Council member not entitled to absolute legislative immunity, because termination of legislative researcher was administrative, not legislative act)Rateree, et al. v. Rockett, et al., 852 F.2d 946 (7th Cir. 1988) (actions of city commissioners in approving budget decision to eliminate jobs were “legislative actions,” rather than administrative actions, and thus commissioners were entitled to absolute immunity)Forrester v. White, 108 S.Ct. 538 (1988) (termination of probation officer did not give rise to absolute immunity from suit)Page v. Virginia State Board of Elections, 15 F. Supp. 3d 657 (E. D. Virginia 2014) (legislative privilege did not apply to independently-contracted legislative consultant retained by a political party)Rodriguez v. Pataki, 280 F. Supp. 89 (S. D. N.Y. 2003) (collecting cases on the contours of the concept of legislative immunity and privilege; immunity and privilege are distinct concepts; privilege not always absolute)Marylanders for Fair Representation, Inc. v. Schaefer, 144 F.R.D. 292 (D. Maryland 1992) (mixing concepts of immunity and privilege, referring to protection for legislators as “testimonial legislative immunity”)Trammel v. United States, 445 U.S. 40, 50 (1980) (discussing the impact of privileges on litigation, and observing that testimonial privileges should be very narrowly construed)Florida Association of Rehabilitation Facilities, Inc. v. State of Florida, Department of Health and Rehabilitation, 164 F.R.D. 257 (N. D. Fla. 1995) (analyzing differences between legislative immunity and testimonial privileges)E. E. O. C. v. Washington Suburban Sanitary Commission, 631 F. 3d 174 ( 4th Circuit 2011) (employment in personnel decisions by legislators are generally administrative acts and not protected by legislative immunity and privilege)Hicks v. Mount Airy-Surrey County Airport Authority, 2015 WL 8484453 (M. D. North Carolina 2015) (termination and nonrenewal of leases at airport was not legislative in nature because the decisions affect specific individuals rather than involving the formulation of broad policy or the adoption of perspective, legislative-type rules that affect the general policy affecting the larger population) **League of United Latin American Citizens, et al. v. Eddie Bernice Johnson, et al., No. EP21-CV-00259-DCG-JES-JVB, 2022 WL 1570858 (W.D. Tex. May 18, 2022) ( rejecting effort by Texas legislators to avoid deposition through invocation of legislative privilege; excellent discussion of the doctrine's contours)ADDED AFTER EPISODE WAS AIRED:In re Georgia Senate Bill 202, No. 1:21-MI-55555-JPB, 2023 WL 3137982, at *2 (N.D. Ga. Apr. 27, 2023) (extended discussion of legislative privilege)Pernell v. Fla. Bd. of Governors of State University, No. 23-10616, 2023 WL 7125049, at *2 (11th Cir. Oct. 30, 2023) ("common-law privilege protects state legislators from “deterrents to the uninhibited discharge of their legislative duty” for the purpose of “the public good.” Tenney v. Brandhove, 341 U.S. 367, 377, 71 S.Ct. 783, 95 L.Ed. 1019 (1951). Although the core of the privilege is a state legislator's immunity from civil suit for acts related to legislative proceedings, see id. at 379, 71 S.Ct. 783, we have explained that this “privilege extends to discovery requests” because “complying with such requests detracts from the performance of official duties.”)