In Pernell v. Andrade, No. 23-10616 (11th Cir. Oct. 30, 2023), a 2-1 panel reverses a district court’s order enforcing subpoenas against legislators in an action challenging the constitutionality of Florida’s “Stop W.O.K.E. Act,” with the panel dividing over whether the legislator privilege is absolute or to some degree qualified by “important federal interestes.”
“In April 2022, Governor DeSantis signed into law the Individual Freedom Act, also called the Stop W.O.K.E. Act. See Ch. 2022-72, Laws of Fla. Governor DeSantis described the Act as ‘a stand against the state-sanctioned racism that is critical race theory.’ It prohibits Florida’s public schools from ‘subject[ing] any student or employee to training or instruction that espouses, promotes, advances, inculcates, or compels such [individual] to believe’ any of eight concepts descended from critical race theory.”
“In August, seven professors and one student from public universities in Florida challenged the law in the district court as violative of their civil rights. See 42 U.S.C. § 1983. They described the Act as ‘racially motivated censorship that the Florida legislature enacted, in significant part, to stifle widespread demands to discuss, study, and address systemic inequalities, following the nationwide protests that provoked discussions about race and racism in the aftermath of the murder of George Floyd.’ They alleged that the Act
imposes viewpoint restrictions in violation of the First Amendment, is unconstitutionally vague in violation of the Due Process Clause of the Fourteenth Amendment and was enacted with a racially discriminatory purpose in violation of the Equal Protection Clause.”
In discovery, “plaintiffs served subpoenas on fourteen non-party legislators—thirteen co-sponsors of the Act and one legislator who supported the bill during a Florida House of Representatives debate. The subpoenas sought an array of documents from ‘both personal and government devices’ from January 2020 onward that bore on eighteen separate requests,” focused particularly on the legislators’ allleged sources and motives behind the act. The legislators moved to quash under the federal common-law legislator privilege. The district court denied the motions in relevant part “on the grounds that factual documents are outside the scope of the privilege and alternatively that important federal interests outweighed the legislative privilege.”
The Eleventh Circuit panel reverses. First, the panel majority holds that the district court relied on an illusory distinction between the discovery of factual documents – which the judge believed subject to process – and those that bear on the legislators’ “motivations and mental impressions.” The majority holds that it is the purpose of the discovery, not the actual details of the requested materials, that govern. ‘According to the plaintiffs’ response to the Florida legislators’ motion to quash the subpoena, the plaintiffs served the subpoenas on the legislators to ‘determin[e] whether there was a discriminatory motive behind the [Act].’ By the plaintiffs’ own admission, the subpoenas’ purpose was to uncover the legislators’ motives in passing the law. ‘The privilege applies with full force against requests for information about the motives for legislative votes and legislative enactments.’ . . . . So, the privilege applies with its usual force against the discovery of even the factual documents in the Florida legislators’ possession. The district court abused its discretion when it determined otherwise.” (The dissenting judge, Judge Jill Pryor, concurred in this part of the opinion.)
Second, the panel majority rejects the district court’s use of a balancing test to determine whether “important federal interests” might outweigh the common-law privilege. While the Supreme Court has recognized such balancing in the criminal arena, United States v. Gillock, 445 U.S. 360 (1980), the panel majority holds that such weighing has never been extended by the Supreme Court into civil litigation. “[A]bsent the Supreme Court’s imprimatur, we are reluctant to adopt a manipulable balancing test, like the one employed by the district court, that links the derogation of the legislative privilege to a subjective judgment of the case’s importance.” The panel majority notes cases in the First, Fifth, Eighth, and Ninth Circuit that has supposedly rejected such an extension (although the dissent dissects this claim, finding only the Fifth Circuit supports absolute legislator privilege). And even “if the privilege could be overcome by especially compelling civil-rights claims, we reject the plaintiffs’ argument that the privilege must give way when the claim depends on proof of legislative intent,” which (in the panel majority’s view) would overtake the privilege in many civil rights lawsuits, rendering it nugatory.
Judge Jill Pryor dissents in part, and would hold that the district court did not abuse its discretion in ordering some production based on important federal interests. (The dissent is structured like a court opinion, and runs much longer than the majority, suggesting that there may have been a late switch in the panel vote; the third panelist is a district judge for the Northern District of Alabama sitting by designation.) The dissent would hold that in “rare instances, the interest in enforcing federal law and the Constitution will justify allowing § 1983 plaintiffs to seek at least some discovery from state legislators. And a balancing test is a perfectly sensible way to identify these instances. This approach does not mean that whenever legislative intent is an element of a plaintiff’s claim, the privilege will yield. Not at all. Even when legislative intent is highly relevant, careful balancing may compel the conclusion that the privilege holds—such as when the form of discovery the plaintiff seeks is particularly intrusive or the plaintiff has other ways to obtain similar information.”
Paul Mollica's Federal Courts Blog 