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Shreveport Chapter #237 of United Daughters of Confederacy v. Caddo Parish Commission

United States District Court, W.D. Louisiana, Shreveport Division

April 26, 2018





         Before 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.

         I. Background

         Plaintiff 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 Constitution.

         Pursuant to the abbreviated scheduling order issued in this matter, at the time this Appeal was filed the discovery deadline was April 9, 2018.[1] [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 this country.

[Doc. No. 59 at 3].

         By this 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.

         II. Standard of Review

         The 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.).

         III. Analysis

         A. Objection No. 1

         Plaintiff's 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.

         The 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.”[2] 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).

         Neither 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 ...

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