United States District Court, W.D. Louisiana, Shreveport Division
L. HORNSBY MAG. JUDGE.
RULING ON APPEAL
G. JAMES UNITED STATES DISTRICT JUDGE.
the Court is a “Motion for Reconsideration and
Objections to Ruling Granting the Protective Order Filed By
Defendant” [Doc. No. 62], submitted by Plaintiff
Shreveport Chapter #237 of the United Daughters of the
Confederacy (“UDC” or “Plaintiff”).
The Court construes the motion as an Appeal of Magistrate
Judge Hornsby's Memorandum Order [Doc. No. 59] granting a
Motion for Protective Order in favor of Caddo Parish
Commissioners Steven Jackson, Lyndon Johnson, Matthew Linn,
and Stormy Gage-Watts (“the Commissioners”). For
the following reasons, the decision of the Magistrate Judge
is AFFIRMED IN PART and REVERSED IN PART.
claims ownership of a Confederate Monument and the small
parcel of land upon which it sits in front of the Caddo
Parish Courthouse. A majority of the members of the Caddo
Parish Commission (“the Commission”) voted in
favor of a resolution to remove the monument from the
courthouse grounds. By this action, Plaintiff seeks an
injunction prohibiting Defendants from removing the monument,
as well as monetary damages pursuant to 42 U.S.C. § 1983
for alleged violations of Plaintiff's rights under the
First, Fifth and Fourteenth Amendments to the United States
to the abbreviated scheduling order issued in this matter, at
the time this Appeal was filed the discovery deadline was
April 9, 2018. [Doc. No. 50] Prior to expiration of that
deadline, Plaintiff issued deposition notices to the four
Commissioners who voted in favor of removing the monument.
The Commissioners responded with a Motion for Protective
Order [Doc. No. 53], seeking to prohibit Plaintiff from
taking their depositions. The Magistrate Judge granted the
Motion for Protective Order, holding the Commissioners are
protected by “legislative privilege, ” and
reasoning in pertinent part as follows:
The parties' briefs suggest that Plaintiff seeks to
inquire about the motives and thought processes of the four
individual Commissioners in voting for the resolution to
remove the Confederate Monument. The information has not been
shown to be of more than limited relevance to the merits of
this case, and the depositions would be the type of intrusive
inquiry that the legislative privilege is designed to
prevent. Denying these Commissioners the protection of the
testimonial privilege could well dissuade these and other
citizens from volunteering for such local legislative bodies
and would hinder the free flow of discussion that is an
integral part of the democratic process employed throughout
[Doc. No. 59 at 3].
appeal, Plaintiff seeks reversal of the Magistrate
Judge's Ruling, arguing as follows: (1) any statements
the Commissioners made “in interviews with the local
media” (which Plaintiff defines to include social media
sites and personal blogs), are not protected by the
legislative privilege [Doc. No. 62-1 at 2]; and (2) due to
the time constraints imposed by the Court's abbreviated
scheduling order, unless Plaintiff is allowed to depose the
Commissioners, Plaintiff is unlikely to be able to enter the
Commissioners' statements to the media into evidence at
trial, as the statements “could possibly remain hearsay
and inadmissible.” Id. at 5-6.
Standard of Review
Magistrate Judge's Ruling on the Commissioners'
Motion for Protective Order was made under the referral
authority of 28 U.S.C. § 636. Section 636 provides in
pertinent part: “[A] judge may designate a magistrate
judge to hear and determine any pretrial matter pending
before the court. . . . A judge of the court may reconsider
any pretrial matter under this subparagraph (A) where it has
been shown that the magistrate judge's order is clearly
erroneous or contrary to law.” Id. at §
(b)(1)(A); see also Fed. R. Civ. P. 72(a); Local
Rule 74.1(A). Under this deferential standard, a magistrate
judge's decision must be affirmed unless “on the
entire evidence . . . [the court] is left with a definite and
firm conviction that a mistake has been committed.”
United States v. United States Gypsum Co., 333 U.S.
364, 395 (1948); Hooker v. Campbell, 2017 WL
5013579, * 2 (W.D.La.).
Objection No. 1
first objection asserts the Magistrate Judge “abused
its' [sic] discretion” by ruling that statements
made by the Commissioners “in interviews with local
media” are protected by the legislative privilege.
[Doc. No. 62-1 at 2]. Plaintiff argues the Commissioners'
statements to the media “are political in nature rather
then [sic] legislative in function, ” and therefore,
those statements are not privileged. Id.
Accordingly, Plaintiff contends the Commissioners failed to
meet their burden and show their testimony is protected by
the legislative privilege, and therefore the Magistrate
Judge's Ruling to the contrary is clearly erroneous and
contrary to law.
Speech or Debate Clause of the United States Constitution
provides “for any Speech or Debate in either House,
[the Senators and Representatives] shall not be questioned in
any other Place.” U.S. Const., Art. I, § 6. The
Supreme Court has held the Clause provides an evidentiary
privilege “against inquiry into acts that occur in the
regular course of the legislative process and into the
motivation for those acts.” U.S. v. Gillock,
445 U.S. 360, 366-67 (1980); see also Eastland v. U.S.
Servicemen's Fund, 421 U.S. 491, 503 (1975)
(“We reaffirm that once it is determined that Members
[of Congress] are acting within the ‘legitimate
legislative sphere' the Speech and Debate Clause is an
absolute bar to interference.”). The Supreme Court has
given the protections of the Speech and Debate Clause a
“practical rather than a strictly literal
reading.” Hutchinson v. Proxmire, 443 U.S.
111, 124 (1979) (“[T]he Court has given the Clause a
practical rather than a strictly literal reading which would
limit the protection to utterances made within the four walls
of either Chamber. Thus, we have held that committee hearings
are protected, even if held outside the Chambers; committee
reports are also protected.”); see also Gravel v.
United States, 408 U.S. 606, 616 (1972).
the Supreme Court nor the Fifth Circuit have directly
addressed whether a legislative privilege exists in favor of
state, regional, or local legislators. Although state,
regional and local legislators are not covered by the federal
Constitution, district courts within this jurisdiction have
extended similar protections to such legislators under the
common law. Furthermore, in Village of Arlington Heights
v. Metropolitan Housing Development Corp., the Supreme
Court indicated in dicta that local legislators are protected
by a similar privilege, although perhaps not as broad in
scope. 429 U.S. 252 (1977). There, the Supreme Court examined
whether the Village of Arlington Heights, a suburb of
Chicago, violated the Equal Protection Clause by denying a
zoning change that would allow for low-income, multi-family
housing. Id. at 254. Noting a violation of the Equal
Protection clause requires “[p]roof of racially
discriminatory intent or purpose, ” the Court stated
that such proof requires “a sensitive inquiry into such
circumstantial and direct evidence of intent as may be
available.” Id. at 265-66. After discussing
various examples of non-testimonial evidence which might show
discriminatory intent or purpose, the Court concluded,
“In 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. While the Court did not identify what
would constitute an ...