by Karl Kurtz
Earlier this week a federal district court judge in Washington, D.C. ordered the Texas Legislature to hand over documents that it had withheld in a dispute over redistricting maps. The Justice Department and plaintiffs sought access to the documents prepared by legislators and legislative staff. The Legislature claimed that the documents were protected by legislative privilege and an attorney-client relationship between the staff of the Texas Legislative Council and the members of the Legislature.
Legislative privilege is the doctrine found in the federal Constitution and 43 state constitutions that provides legal protection to legislators in the conduct of legislative business. The intent is to shield them from threats of judicial or executive intervention in their work.
The court rejected the Texas claim of legislative privilege, saying that the Legislature had failed to cite any statute or case law that would justify the privilege. Moreover, the court said that while it recognizes the confidentiality between staff and legislators provided for in the Texas Government Code, that confidentiality does not constitute an attorney-client relationship. Finally, the court ruled that communications between legislative staff and members about the case had to be disclosed because the legislators involved did not claim privilege (the court did not say how it would have ruled if they had claimed privilege).
The Texas Redistricting blog has a more extensive summary of the case and links to the court's decision.
To my inexpert and non-legal eyes, this case seems to hinge mainly on the language of Texas statutes and case law, so it may not have major implications for questions of legislative privilege and attorney-client relationships in other states. However, at the very least it seems to be a case of a federal court joining with state courts in a tendency to side with government openness and transparency against the competing value of the right of legislatures to maintain independent decision-making processes. Ohio State law professor Steven F. Huefner reports in a 2003 law review article, "The Neglected Value of the Legislative Privilege in State Legislatures":
While some of these states' [legislative privilege] provisions have never been applied, recent judicial interpretations in other states have departed from settled federal interpretations of the legislative privilege, failing to apply it broadly to protect the legislative process and instead unduly favoring ideals of open government.
He goes on to conclude:
...To protect representative democracy, the legislative privilege merits a more robust application at the state level than some state courts have been willing to give it.
It now appears that Prof. Huefner can add the federal courts to his plea.
In addition to the Huefner article, my colleague, Kae Warnock has compiled some useful resources on the subject of legislative privilege, legislative attorney-client relationships and confidentiality:
- "Legislative Immunity in Minnesota" by former Senate Counsel Peter Wattson includes extensive citations of federal and state case law (not just Minnesota).
- "Representing Representatives: Ethical Considerations for the Legislature's Attorneys," a 2003 law review article by former Wisconsin staffer Rob Marchant
- Kae's own informal compilation of confidentiality policies and attorney-client privilege statutes and case law.
After reading the case, Peter Wattson, former Minnesota Senate Counsel, offers this helpful and more detailed summary:
"The portion of the order relating to legislative privilege turns on the failure of members of the Texas Legislature to assert the privilege earlier in the proceedings. The privilege must be asserted by a member to protect the member or that member’s staff.
"The D.C. Court (considering VRA section 5 preclearance of the Texas redistricting plans) said the legislative privilege was waived by the members and their staff when they were deposed in the San Antonio case (considering VRA section 2 and other challenges to the plans). Those who were deposed did not object to testifying (presumably in favor of the plans). The Texas attorney general represented to the San Antonio court that he had informed the members who were mentioned in the testimony and they did not object to the testimony being received by that Court.
"Texas then identified key members of the legislative staff who had testified in San Antonio to be witnesses for Texas in the D.C. court, but objected to their being deposed before trial. Texas did not identify any member who asserted legislative privilege as to this new deposition testimony.
"Under the circumstances, the D.C. court found the waiver in the San Antonio case carried over to the D.C. case. Just to be sure, the Court ordered counsel for the State of Texas to canvass any senators not previously contacted to determine whether they asserted privilege as to any of the documents under consideration in the D.C. case and to produce any documents as to which no privilege has been raised."
Posted by: Karl Kurtz | January 10, 2012 at 12:01 PM