2016 Va. Cir. LEXIS 7
Richmond County Cir. Ct.2016Background
- Plaintiffs challenge the 2011 Virginia General Assembly redistricting as violating Virginia Constitution Article II, §6 (compactness) for six Senate and five House districts.
- Defendants (Virginia State Board of Elections, Department of Elections, Edgardo Cortés) and Defendant-Intervenors (House of Delegates, Speaker Howell) moved to stay proceedings pending resolution of related federal appeal (Bethune-Hill).
- Plaintiffs issued subpoenas and document requests seeking communications and documents about redistricting criteria, compactness, population, contiguity, map creation, and implementation.
- Multiple legislative actors and entities (individual legislators, clerk, Division of Legislative Services, consultants, House leadership, and others) objected asserting legislative privilege and burdensomeness.
- Court denied stay (federal case different parties, districts, and legal issues; prejudice to plaintiffs and speculation about Supreme Court outcome insufficient).
- Court defined legislative privilege narrowly (legislators and their paid legislative staff), except communications with the Attorney General regarding DOJ preclearance; applied waiver and nonprivilege findings to specific persons/entities.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether proceedings should be stayed pending Supreme Court review of Bethune-Hill | Stay unnecessary; proceed to resolution | Stay warranted because federal appeal may change legal landscape and avoid duplicative discovery | Denied — federal case differs in parties, districts, and legal issues; prejudice to plaintiffs outweighs speculative efficiency gains |
| Scope of legislative privilege (who is protected) | Plaintiffs: privilege should be narrowly construed | Defendants/legislative respondents: broader privilege covering many legislative-related actors | Privilege applies absolutely only to legislators and their paid legislative aides/staff; limited exception for Attorney General communications re: DOJ preclearance |
| Whether consultants (Marston, Morgan) and nonlegislative DLS are privileged | Plaintiffs: these are third parties; not privileged | Defendants: these participants are covered by privilege | Denied for consultants and DLS — they are not within defined legislative privilege and must produce discovery |
| Whether Delegate Chris Jones and Speaker Howell waived privilege by prior actions/testimony/intervention | Plaintiffs: testimony/intervention waived privilege | Defendants: privilege preserved despite testimony or intervention | Jones: waived by extensive testimony in Bethune-Hill (subject-matter waiver) — must produce. Speaker Howell: waived by voluntarily intervening and answering — must produce. House as repository: cannot waive individual legislators' privileges; limited protection preserved |
Key Cases Cited
- Board of Supervisors of Fluvanna Cnty. v. Davenport & Co., L.L.C., 285 Va. 580 (2013) (Virginia Supreme Court guidance on legislative immunity and waiver)
- Gravel v. United States, 408 U.S. 606 (1972) (legislative privilege recognizes core protection for internal legislative communications)
- Bogan v. Scott-Harris, 523 U.S. 44 (1998) (scope of legislative acts and immunity)
- McCray v. Maryland Dep’t of Transp., Md. Transit Admin., 741 F.3d 480 (4th Cir. 2014) (legislative privilege and its contours in Fourth Circuit)
- United States v. Brewster, 408 U.S. 501 (1972) (activities outside protected legislative sphere)
- Page v. Virginia State Bd. of Elections, 15 F. Supp. 3d 657 (E.D. Va. 2014) (application of legislative privilege to redistricting discovery)