*1 THE IN SUPREME COURT DICKSON, CHISOLM, CLARK, McLEAN, MARGARET ALICIA ETHEL MATTHEW A. ROLLIZO, GANTT, TRUITT, MELISSA LEE C. DAVID VALERIA ALICE GRAHAM UNDERHILL, JANCIS, JUDGE, WILLIAMS, ARMIN REBECCA ZETTIE TRACEY BURNS-VANN, CAMPBELL, EVERETT, JR., LAWRENCE ROBINSON O. LINDA GARROU, McNEILL, SHAW, DUNSTON, ADAMS, HAYES JIM SIDNEY E. ALMA R. BOWDEN, COLEY, FIELDS, STEVE JASON EDWARD KARL BERTRAND PAMLYN STUBBS, VAUGHAN, ETHERIDGE, GRAHAM, JR., DON BOB GEORGE THOMAS CHUMLEY, DEW, GREGORY, LEAKE, M. AISHA GENEAL VILMA W. RODNEY MOORE, STEVENSON, WHITLEY, VALENTINE, (“TIM”) BRENDA MARTIN JANE I.T. WATKINS, JOYNER, McLAWHORN, LOIS RICHARD MELVIN C. RANDALL S. JONES, TOWNSEND, KIRBY, BOBBY CHARLES ALBERT TERRENCE WILLIAMS, CAMP, POOLE, SMITH, NORMAN C. MARY T. F. STEPHEN A. PHILIP BADDOUR, capacity RUCHO, and DOUGLAS A. WILSON v. ROBERT in his official Redistricting only as the Chairman of the North Carolina Senate Committee; LEWIS, capacity only DAVID in his official as the Chairman of North Redistricting Representatives DOLLAR, NELSON Carolina House of Committee; capacity only in his official as the Co-Chairman of North Carolina House of Redistricting Representatives DOCKHAM, JERRY in his Committee; official capacity only as the Co-Chairman the North of Carolina House Redistricting Representatives BERGER, PHILIP E. in his official Committee; capacity only Tempore as the President Pro North Carolina Senate; TILLIS, capacity only Speaker THOM in his official as the of the North Carolina ELECTIONS; THE STATE BOARD OF House of and THE STATE Representatives; OF NORTH CAROLINA NAACP, NORTH CAROLINA STATE CONFERENCE OF BRANCHES OF THE LEAGUE CAROLINA, CAROLINA, OF WOMEN OF VOTERS NORTH DEMOCRACY NORTH INSTITUTE, McNAIR, A. NORTH CAROLINA PHILIP RANDOLPH REVA DAVIS, STANTON, WILSON, HIGHTOWER, MATTHEW TRESSIE ANNE SHARON BRANDON, WELLS, NEWMAN, STAFFORD, KAY GOLDIE GRAY YVONNE DAWKINS, STOHLER, STOHLER, RAINEY, ROBERT SARA HUGH OCTAVIA HODGE, HARDY, GARDENHIGHT, TAYLOR, CHARLES MARSHALL MARTHA BEN RIVERS, MURPHY, WHITE, BRODIE, KEITH ROMALLUSO. CARL ROSA HERMAN LEWIS, JR., ALBERT, BAILEY, BROWN, CLARENCE EVESTER ALBERT LANIER, VAUGHN, LESTER, BENJAMIN GILBERT AVIE THEODORE MUCHITENI, HOBBS, HAWKINS, BULLOCK, WILLIAM JIMMIE RAY HORACE P. WADDLE, DAVIS-McCOY, WILLIAMS, ROBERTA CHRISTINA JAMES OLIVER SPEED, BROOKS, ALLEN, MARGARET LARRY LAVERNE S. CAROLYN WALTER ROGERS, SR., MEACHEM, BONAPARTE, SHAWN MARY GREEN SAMUEL LOVE, PATTERSON, SINCLAIR, COURTNEY WILLIE O. CARDES HENRY BROWN, JR., CAROLINA; JANE STEPHENS THE STATE OF NORTH THE ELECTIONS; TILLIS, NORTH CAROLINA STATE BOARD OF THOM in his official capacity Speaker and PHILIP North Carolina House Representatives; capacity BERGER, Tempore E. in his official as President Pro North Carolina Senate No. 201PA12 (Filed January 2013) IN COURT THE SUPREME v. RUCHO *2 (2012)] N.C. 332 [366 attorney-client waiver redistricting—no Evidence— — by statute Statutes does North Carolina General Section of the right legislators assert not waive concerning work-product litigation redis- doctrine privilege or Any waiver on where the statute is silent the issue. tricting principles be clear and unam- legal well-established must such way explicitly mentions, let alone biguous and this statute in no privilege or doctrine. waives, the provision law” in phrase “notwithstanding The ordinary meaning definition; lacks a contextual by Dictionary, to a Law “provision,” reference Black's determined to a statue. refers participate in consideration deci-
Justice BEASLEYdid not sion of this case. dissenting. HUDSON
Justice entered pursuant to 120-2.5from an order on Appeal Court, by panel Superior Wake April three-judge 1-267.1, by pursuant to N.C.G.S. County appointed the Chief Justice compel production of certain docu- allowing plаintiffs’ motion to May 2012, Supreme Court of North Carolina issued On 11 ments. Supreme appeal. in the expediting hearing an Heard order July Court on plain- Speas, Jr., Dickson Spruill LLP, M.
Poyner by Edwin for Jr., Speas, Coalition tiff-appellees; and M. Southern Edwin for by Earls, Ferguson Stein Chambers S. Social Justice Anita plain- NAACP Sumter, by Stein, Adam NC & PA. Gresham tiff-appellees. for Deakins, Stewart, P.C., Thomas A. Nash, Smoak & Ogletree, Phillip legislative defendant-appellants; Strach, J. Farr and for General, by McC. Peters Cooper, Attorney Alexander Roy General, Deputy Attorneys all Special Nichols, K. and Susan for defendant-appellants. Bussian, North PLLC, by John A. Firm, Law
Bussian for Inc.; .Brooks, Pierce, Association, Press Carolina Prak, Leonard, L.L.P., by Mark J. McLendon, Humphrey & for Broadcasters, Inc., amici curiae. Association North Carolina IN THE SUPREME COURT Vaughn PLLC, Hugh & Tadych, Stevens, StevensMartin The Open Coalition, Inc., North Carolina Government amicus curiae. JACKSON,Justice. aрpeal
In this we consider whether section 120-133of North right Carolina General Statutes waives of legislators to assert the attorney-client privilege work-product litigation con- doctrine cerning redistricting. Because waiver of such well-established principles unambiguous, must be clear and we conclude that the statute’s on ambiguous silence such waivers renders the statute as to *3 analysis, this issue. After further we conclude the General Assembly did intend not to waive either the doctrine when it enacted section 120-133.While we Assembly acknowledge may that the General choose to its waive legal rights, unwilling we sweeping are to infer such a waiver unless Assembly the General leaves no doubt its about intentions. Accordingly, part we affirm in and part reverse in the of order the three-judge panel for the reasons stated below. July 2011,
On and the North Carolina General plans enacted new redistricting for thе North Carolina House of Representatives, Senate, North Carolina and United States House of Representatives pursuant II, Article to Sections 3 and 5 of the North Carolina Constitution and Title 2a 2c sections of United the During legislative process up States Code. the leading following enactment, the defendant members of Assembly,including Tempore Senate President Pro Philip Berger, Speaker House Thom Tillis, Redistricting Rucho, Senate Chair Robert and House Redistricting Lewis, lawyers Chair David received advice from employed by Attorney the General of North private Carolina and two firms, Deakins, law Ogletree, Nash, Stewart, & (“Ogletree Smoak P.C. Deakins”) Day. lawyers and Jones employed by Like the who are the Attorney General, Ogletree the Day attorneys Deakins and Jones paid were with State funds. 2 September 2011, Attorney
On pre- the General an filed action to plans the redistricting cleаr the in United States District Court for the pursuant
District Columbia Voting Section five of the Rights Act Holder, Sept. North Carolina v. (D.D.C. No. 1:11-CV-01592 simultaneously sought 2011), preclearance administrative from Attorney redistricting plans pre- the United States General. The were administratively by Attorney cleared the United States on 1 General COURT
IN THE SUPREME dismissed result, the federal district court 2011. As a November action on 8 November 2011. preclearance the State’s moot alerted 2011, the General also On 1 November computer an error in the Department of States Justice United plans redistricting had caused program to draw the used software original plans. The to be omitted from areas the state certain 2011to cure this Assembly passed legislation on 7 November General Attorney precleared General United States technical defect. The plans on 8 December 2011. revised
Meanwhile, State Conference рlaintiffs, the North Carolina Carolina, NAACP,League of Women Voters North Branches of Philip Randolph Democracy Carolina, A. North Carolina North separate on Institute, registered voters, filed suits and individual constitutionality challenging 3 and November injunction prevent plans preliminary redistricting seeking plans. In conducting using from elections defendants North General 1-267.1 of the Carolina accordance with section panel appointed three-judge to hear both Statutes, the Chief Justice actions. panel On the 2011, the consolidated cases.
On 19 December moved dismiss the day filed their answers and defendants same denying January 2012, panel entered an order Thereafter, on 20 suit. panel injunction. The also entered preliminary *4 plaintiffs’ motion for a part part denying February allowing on 6 an order to dismiss. defendants’ motion us, on 8 and November the issues before
Most relevant to production on defendants requests for of documents plaintiffs served Procedure. Rules of Civil to of the North Carolina pursuant Rule 34 variety production of communications requests sought These plans. receiving an redistricting After concerning enactment January 2012, served respond, on defendants of time to extension they requests, plaintiffs’ discovery in which responses written to based categories of certain documents objected production to the privilege, or attorney-client privilege, legislative upon the objections, February 2012, defendants amended their doctrine. On privilege claims. their providing regarding information additional following communications Specifically, identified the defendants privileged: Peters, Strach, Farr, Tom Phil Alec
1. Emails to and from Tillis, Rucho, Lewis, David Thom Smiley from Bob Tiare to or IN THE SUPREME COURT DICKSON RUCHO Berger Phil or legislative acting their staff members1 on their or regarding legal behalf at thеir direction advice on impact redistricting plans. data census on Farr, 2. to Strach, Peters, Emails and from Tom Phil Alec Smiley Rucho, Lewis, or Hllis, Hare from Bob David Thom Berger Phil legislative or their staff acting members on their behalf or at regarding legal requirements their direction for process fair 5 of Voting Rights under section Act. Farr, Strach, 3. Emails to and Peters, from Tom Phil Alec Smiley Rucho, or Lewis, Hare Dollar, from Bob David Nelson Hllis, Berger
Thom Phil legislative or their staff mem- acting bers on their or at legal behalf their direction regarding preparation meetings advice for of the House and Senate Redistricting Committees.
4. Farr, Emails to and from Strach, Carvin, Tom Phil Michael McGinley, Peters, Smiley
Michael Alec and Hare to or from Rucho, Lewis, Dollar, Bob David Hllis, Nelson Thom Phil Berger legislative or their on acting staff members their behalf or their regarding requirements at direction legal for legisla- congressional tive and districts.
5. Emails to Farr, Strach, and from Tom Carvin, Phil Michael McGinley, Peters, Smiley
Michael Alec and Hare to or from Rucho, Bob Lewis, Dollar, David Hllis, Nelson Thom Phil or Berger their acting staff members on their behalf regarding legal at their direction regarding any public advice statements proposed about redistricting plans. 6. Farr, Emails and from Tom Strach, Carvin, Phil Michael McGinley, Peters, Smiley
Michael Alec and Hare to or from Rucho, Bob Lewis, Hllis, David Thom Phil Berger leg- or their acting islative staff members on their behalf ator their direc- tion regarding preclearance process on advice redistricting plans. Farr, Strach, Carvin, Emails and from Tom Phil Michael McGinley, Peters, Smiley
Michael Alec and Hare to or from *5 Rucho, Lewis, Dollar, Bob David Hllis, Nelson Thom Phil “legislative 1. Defendants also stated that the term staff members” was limited Kay, (1) Representative Tillis; Tracy (2) Kimbrell, to: Jason General Counsel for Berger; Blaine, (3) Berger; General Counsel for Senator Jim of Chief Staff for Senator (4) Woodcox,redistricting Berger Brent counsel for Senators and Rucho. Berger or their legislative acting staff members on behalf their or at their regarding direction advice for the redistricting Assembly. session of the General February 2012, plaintiffs
On 29 compel filed motion to discov- ery, production of, seeking among things, other “all communications between legislators lawyers paid and core staff all or consultants funds, with state and unredacted invoices sup- and time sheets.” In port of motion, plaintiffs their cited section 120-133 of the North Statutes, Carolina General which reads:
Notwithstanding provision law, drafting all of requests employees information to legislative pre- and documents pared by legislative employees legislators redis- concerning tricting Assembly the North Carolina General or Congressional longer Districts are no confidential and become plan records establishing act the relevant district becoming law. (2011).2 argued
N.C.G.S. 120-133 Plaintiffs that section 120-133 constitutes “broad and unambiguous” waiver the General “any privileges” of relating to communications once the relevant act becomes law. Plaintiffs contended that section compelled production 120-133 prepared by of documents defend- counsel, lawyers Attorney ants’ including from the Office General’s private firms. April 2012, responded plaintiffs’ On 11 motion, defendants denying waives, addresses, that section or even the common law attorney-client privilege doctrine or that the applies Attorney response to the General’s Office. Defendants’ engagement Blue, included an Jr., letter executed 1991 Daniel T. Speaker who serving then was of North Carolina House of Representatives, and II Ferguson, outside counsel James E. of Ferguson, Stein, Watt, Wallas, Gresham, (“Ferguson Adkins & P.A letter, Stein”). Ferguson agreed provide legal In the Stein advice to Representatives of concerning redistricting. North Carolina House The letter stated that firm communications between the “[b]ecause employee” “legislative 2. The term is defined to include “consultants and counsel to members and committees of either house paid by However, 120-129(2) (2011). who are commissions State funds.” N.C.G.S. employee” “legislative term tion, excludes “members the Council State.” Id. In addi- maps records, papers, letters, “all term is defined to include ... “documents]” documentary physical regardless or other material form or characteristics.” 120-129(1) (2011). *6 SUPREME COURT IN THE v. RUCHO (2012)] N.C. 332
[366 attorney-client privileged communi- the are members of House and communications, apply shall not to cations, N.C.G.S. §[ ] attorneys any firm communications, between the including written Representatives.” any North Carolina House and member the panel three-judge a written order April 2012, the entered On 20 compel. panel the plaintiffs’ significantly, to Most allowing motion concluded:' by and between members Although certain communications pertaining to redis- General counsel privilege, with plans may originally been cloaked
tricting have 120-133, Assembly, by enacting N.C. Gen. Stat. General the those expressly any privileges and all such once redis- waived law. tricting plans enacted into were applicable it is unambiguous; 21. This is clear and waiver any provision applies The waiver “notwithstanding of law.” theory the is claimed under regardless whether work-product legislative privilege, the doctrine or privilege. drafting and information
Accordingly, panel stated “[a]ll prepared . . . legislative employees” ... requests to “[documents “ employees” concerning redistricting plans were legislative “ ” ” when, ‘public longer confidential’ and became record’ ‘no enacted, plаns omitted). panel The redistricting (underlining were Day, Deakins, Jones Ogletree that counsel from concluded ” attorneys ‘legislative employees’ staff “were because ” they counsel’ members of the General “served as ‘consultants and paid panel and were with State funds. The stated that this confidentiality or waiver of not extend to documents commu- “d[id] attorneys were . to or from who . . members North nications Attorney Attorney General, because General’s staff Carolina [as] employee’ State, ‘legislative is not a a member of Council of attorneys.” are his staff neither “solely prepared panel also concluded that documents
The litigation” with the remain confidential connection attorney-client privilege work-product doctrine; pursuant to the identify specific however, panel documents to which did not apply. would doctrine means Instead, parties negotiate invited the “a reasonable of iden- it ought remain confidential.” categories of documents that tifying appealed pursuant as of right Defendants this Court to section Cnty. 120-2.5of the Carolina North General Statutes. See Pender *7 Bartlett, 491, 497, 364, 361 (2007) (interpreting N.C. 368 appeal three-judge panel “N.C.G.S. to mean from § 120-2.5 that a dealing apportionment redistricting pursuant with or to N.C.G.S. Supreme 1-267.1 is to” the Carolina), direct Court of North aff’d Strickland, 1, sub. nom. U.S. (2009). Bartlett 556 173L. Ed. 2d 173 three-judge panel stay discovery Defendants also asked the to its order during pendency appeal. panel temporary of The a this issued stay, May expiration Consequently, but set an date 11 of defend- temporary petition ants filed a for stay super- motion and writ of for May May sedeas with on 4 this Court 2012. On 11 we allowed temporary stay petition defendants’ for super- motion and writ of expedited appeal. sedeas and the hеaring of this plaintiffs they Before this that argue pre- Court are entitled to all enactment communications relating and documents to pursuant to section 120-133of the North Carolina General Statutes. Plaintiffs unambiguous contend section 120-133 is and its plain language right attorney- waives the legislators to assert the privilege work-product client doctrine for communications and during contrast, documents made redistricting. argue defendants that, strictly construed, only operates section 120-133 as narrow legislative confidentiality waiver of is codified in Article Chapter 120 of the North General Carolina Statutes. Defendants therefore that section does right contend not waive their attorney-client work-product invoke the privilege doctrine for communications before and documents made enactment the redis- plans. parties tricting agree attorney-client privilege The and apply post-enactment doctrine to relevant communica- tions and documents. presents question statutory
This interpretation, matter which Realty, Inc., 389, 392, we review In re Vogler de novo. 722 primary S.E.2d “The of a (2012). rule construction legislature carry is to ascertain intent of the such out inten- Raleigh, Inc., tion to the Burgess fullest extent.” v. Your House of S.E.2d (1990). When there is no reference attorney-client privilege statute, whatsoever to in a clear unambiguous absent, meaning right waiver the common law prevails. parts assert the privilege (2011) (“All See N.C.G.S. 4-1 such in common law were heretofore force and use within this provided . State . . and has not which been otherwise for whole or COURT IN THE SUPREME v. RUCHO hereby obsolete, are repealed or become part, abrogated, not carefully reviewing State.”). within this After to be in full force declared cannot that section 120-133 parties’ arguments, we conclude сommon law doctrines reasonably to waive these be construed mentions, explicitly waives, way let alone the section in no because work-product doctrine. privilege or recognized the oldest attorney-client privilege is one of “The The is intended confidential communications. privileges for attorneys between encourage and frank communication full thereby promote public interests in the broader their clients administration, justice.” & Swidler of law and the observance 399, 403, 141 L. Ed. 2d States, 524 U.S. Berlin v. United such, public’s quotation omitted). As (citations and marks (1998) “[t]he no trivial privilege is protecting interest in the common .... The has its foundation *8 consideration century.” Miller, In re back to the sixteenth law and can be traced 328, 772, (2003) (citations omitted). 782 316, 584 S.E.2d jurisprudence of this privilege well-grounded Although the “is 4-1, emphasize privilege that the State,” id.-, we § see also 329, statutorily codified,” Miller, 357 N.C. at been in re “has not S.E.2d at 783. attorney exists, relationship of and client all confi-
“[W]hen
attorney
by
to his
on the
dential communications made
the client
may
relationship
not be disclosed.”
privileged
faith of such
are
and
quotation
omitted).
(citations
and
marks
Id. at
584 S.E.2d at
complete and frank communica-
advances
Given
their
tions,
“encourag[es] clients to make the fullest disclosure to
it
effectively, justly
attorneys
to act more
enables the latter
[and]
expeditiously.”
(citations
Id. at
We are unaware of—and neither fully attorney- any abrogating Court decisions this identified — plaintiffs here; however, privilege in advocate client context attorney-client privi- abrogated itself has the General clear three occasions. In each instance the waiver has been lege on 15A-1415(e) (2011) (stating that a unambiguous. See N.C.G.S. prior аlleges who ineffective assistance of coun- criminal defendant attorney-client privilege” to the “shall be deemed to waive the sel privi- “reasonably revealing believes” these prior counsel extent “necessary allega- against to defend leged communications is that a student-athlete who tions”); 78C-97(c) (2011) (stating id. § v. RUCHO representation enters agreement agent into with an “willbe deemed attorney-client to waive the privilege” regarding certain records agent); retained id. 127A-62(h)(3) (2011) (stating that a alleges prior defendant who ineffective assistance of counsel court-martial be proceedings attorney- “shall deemed to waive the prior client privilege” reasonably the extent that counsel believes revealing privileged “necessary these is communications to defend against the allegations”).
The text of section 120-133includes no such clear and unam- biguous attorney-client waiver privilege work-product doc- Instead, trine. only: section 120-133states
Notwithstanding provision law, drafting all requests employees information and documents prepared by legislative employees legislators concerning the North Carolina General or the Congressional Districts are no longer confidential and become establishing records the act plan the relevant district becoming law.
Id. is § 120-133.There no reference in this section to either the privilege work-product always pre- doctrine. “[I]t Legislature prior sumed that the knowledge acted with full Cmty. Ridge Investors, law.” existing Berry, Inc. (1977). Necessarily, presumption this must
include the common law. See contrast, N.C.G.S. 4-1. In Assembly has set clear on limitation
the 132-1.1(a) Public Records Act. (2011). legis- § N.C.G.S. the There placed three-year lature a restriction length on the of time a that attorney confidential communicatiоn between an a “any public board, council, client—such as or commission other governmental body any county, municipality or of State or Assembly two In additional instances the General has addressed the waiver of attorney-client obliquely ambiguity. the more but nevertheless without In 7A-450(d) persons indigent section the is waived for to the extent that if the “person financially representation legal provide .. . becomes able to secure other necessary expenses representation, appointed by he must inform the counsel the represent promptly court to him of that fact.... and counsel must inform the court of 7A-450(d) (2011). specifically that § information.” N.C.G.S. Such information is by protection privilege. addition, excluded the from statute the the Id. In section 44- person 50.1(a) proceeds distributing judgment mandates that the or settlement “[if] personal injury attorney, accounting a is an the [from action] [of disbursements] required by attorney-client privilege.” . . . section is a not breach [44-50.1] 44-50.1(a) (2011). § N.C.G.S. COURT IN THE SUPREME v. RUCHO remain government" may or unit of political subdivision other — public inspection. Id. unavailable for any pro other phrase “[notwithstanding argue Plaintiffs “any privileges” regarding waives of law” in section 120-133 vision begin by observing that the Nonetheless, we legislation. “In the “provision” in Article 17. does define the term not may to definition, to dictionaries of a courts look absence contextual ” ordinary meaning of words within a statute. Perkins the determine Servs., 902, 904 Trucking Inc., 351 N.C. 528 S.E.2d v. Ark. Dictionary “provision” as defines clause (2000). Black’s Law “[a] contract, Law statute, a or other instrument.” Black’s This Dictionary 2009) (emphasis added). definition (9th ed. Assembly’s “provision” was that General use of word suggests statutory law and not to common to refer to other clauses meant doc privilege and doctrines such as the during argument. oral counsel concеded as much trine. Plaintiffs’ interpretation is fact that the General bolstered This explicit it repeatedly it how be when has that knows to demonstrated repeal See, e.g., 48A-1 or the common law. intends to amend pertains as it to of minor insofar (2011) (“The common-law definition hereby repealed abrogated.”); id. 50-6 age of the minor 50-11, provisions of or of (2011) (“Notwithstanding the G.S. rights law, under this section shall not affect the common a divorce alimony spouse respect which have been dependent with to any id pending action.”); in the action or other asserted may any with 160A-626(b) (“The Authority contract railroad (2011) claims, responsibility passenger rail services allocate financial any law, public policy, statutory, . . . notwithstanding common 36C-8-816.1(g) . . prohibition against .”); same . see also id. § or other refer phrase “provision of law” does not (2011) (recognizing be stating: “Nothing law this section shall to the common рower has abridge right trustee who construed appoint property arises under the terms of the in further trust that Chapter under trust under other section of this original provision law.”). another of lawor under common in the article We read section 120-133 context the entire 758, 760 appears. D.S., which it See re General Doing against the conclusion (2010). so militates attorney-client privilege work- its intended waive *10 act cases, the title of an product As we have noted in other doctrine. Flowers, See, e.g., of intent. State v. may legislative an indication be IN THE SUPREME COURT 773, 778 (1986) (relying on the title of support N.C.G.S. § 15A-136 the Court’s conclusion that of venue). appears Chapter addresses matter Section 120-133 “Confidentiality Article 17 of the General Statutes and is entitled Legislative title, may of In light Communication’s.” of this we reason- ably infer govern specific that Article was intended to class of Indeed, Representatives communiсations. a North Carolina House of 1983,shortly Resolution enacted, introduced before Article 17was requested a Legislative study pertaining Research Commission confidentiality “legislative of communications.” See H.R. Res. Assemb., Reg. (N.C. 1983 Gen. 1983). such, gov- Sess. As Article important aspect Assembly’s erns an opera- of the General internal In Act, tions. contrast designed Public Records which was documentary disclose government agencies material State or sub- public inspection divisions to facilitate examination, Article 17 protect legislative was enacted to communications from disclosure preserve process. Compare so as to integrity legislative 132-l(b) (2011) (stating “public public § N.C.G.S. that records and property people” policy information... are the and “it is the people may State copies public this obtain of their records public 120-131, information”) id. -131.1 (2011) (empha- §§ with sizing specified legislative communications “are confidential” kept fact, according be confidential”). Legislative “shall to a 1984 report, Research Commission Article 17 was created to address con- Assembly’s legislative privilege cerns common law expansive could be eroded an reading of Public Records Act. N.C.Legislative Comm’n,Confidentiality Legislative See Research Communications, (1984 Reg. (June 7, 1983 Gen. Assemb. Sess.) 1984) (“[S]ince its enactment law had records broadly been read much more than originally intended.”). We also specific Assembly’s note that the General use term “confiden- 17, see, throughout e.g., tial” thirteen times Article N.C.G.S. -131(a), 120-130(a), -131.1(a), (al) (2011) example, (stating, “is confidential,” confidential,” kept “are be confidential”), “shall legislative demonstrates that Article 17 was enacted to shield com- munications from disclosure.
Operationally, confidentiality places Article 17 a veil of over specific legislative (1) drafting several communications: and infor- requests legislative employees by legislators, mation made to (2011); (2) produced 120-130 documents request employees legislators, (2011); id. *11 COURT IN THE SUPREME 344 v. RUCHO (2012)] N.C. 332 [366 State employees in other employees to legislative requests from (3) notes and preparation of fiscal in the assistance agencies for id,. prohibits also Article 17 (2011). 120-131.1 reports, § evaluation information disclosing confidential employees from legislative Moreover, (2011). Id. 120-132 § context. legislative in the obtained communications legislative these expressly states that 17 Article id. Records Act. See pursuant to the Public are not records -131.1(al). 120-130(d),-131(b), §§ protections exception to the provides a narrow 120-133
Section compli- help the State’s Article 17 to ensure generally established Rights § Act. See U.S.C. requirements Voting of the with the ance 51.27 preclearance procedure); 28 C.F.R. (2012) (outlining 1973c change of a “submitted “[r]equired contents” (listing the (2012) supplemental contents (2012) (listing affecting voting”); id. 51.28 permits drafting “all effect, submissions). In section pre- and documents employees requests legislative to information concerning redistricting” legislators employees for pared purpose. N.C.G.S. limited “public records” for this become of Article that, the other sections in contrast to 120-133.Weobserve We Public Records Act. no reference to the 17, 120-133makes section Assembly “carefully each word used” chose presume Bd., 363 Dep’t v. N.C. Med. N.C. Corr. drafting legislation. 641, (2009). The General 189, 201, S.E.2d N.C. 120-133, in section but Records Act referenced the Public could have General This omission demonstrates not to do so. chose to be made redistricting communications Assembly intended for its 120-133, scope of section with the narrow public in accordance Act. Given scope of the Public Records than the broad rather read within the full context purpose 120-133as limited of section by the General legislative intent discern no clear Article we can attorney-client privilege or work- law Assembly waive the common product doctrine. empha analysis 120-133,we must also of section part of our
As system govern “tripartite within a operates size that this Court cert. Lee, ment.” Bacon exec (2001). legislative, “The L. Ed. 2d 804 denied, 533 U.S. shall be powers government the State supreme judicial utive, and I, N.C. Const. art. each other.” separate and distinct from forever powers[ ... separation of the principal function ] 6. § “[T]he thereby ... Government—and tripartite structure of the maintain the safeguard against liberty by providing a protect individual — DICKSON v. RUCHO aggrandizement
encroachment or
expense
of one branch at the
Bacon,
other.”
353 N.C. at
(alterations
origi-
For the panel’s we reverse the three-judge conclusion of law that attorney- the General waived the work-product client pre-enactment doctrine for com- munications and through 120-133;however, documents section we panel’s affirm attorney-client conclusion that the privilege and apply post-enactment doctrine to relevant communica- tions and documents. This panel case is remanded to the three-judge for additional proceedings opinion. consistent this with PART;
AFFIRMEDIN PART; REVERSEDIN and REMANDED. participate Justice BEASLEYdid not in the consideration or deci- sion of this case.
Justice dissenting. HUDSON opinion majority I am concerned that in its has aban-
Because
principle
confidentiality
doned the
attorney-client
is the basis for
COURT
IN THE SUPREME
v. RUCHO
analysis
majority’s
respectfully
Whilethe
extensive
privilege, I
dissent.
attorney-client
history
purpose
privilege and Article
premise
fundamental
interesting, it fails to address the
17 is
only
attorney-client privilege applies
to confidential communications.
stripped
120-133,
explicitly
has
confidentiality
redistricting communications
enactment
from
many years,
law has established that
law. For
our
apply.
confidentiality,
privilege can
without
no
attorney-client privilege “protects
It is well established that the
attorney.”
communications made
a client to his
State
confidential
(2001) (emphasis
Fair,
354 N.C.
557 S.E.2d
denied,
U.S.
cations between and client made protection their confidential nature and thus the ers can lose Landingham, 589, 602, 197 privilege. State v. Van S.E.2d See *13 539, Confidentiality aprerequisite application of the (1973). 547 is simply attorney-client privilege that is not confidential —information subject privilege. to the is not protect redistricting legislative Defendants seek to much of their public scrutiny attorney-client privilege; work from under the cloak of statutory however, language the relevant could not be clearer inapplicable here, indicating privilege making that the is waiver irrel- pertinent language “Notwithstanding The of the statute reads: evant. any provision law, requests drafting all and information by employ- employees prepared legislative and documents redistricting longer . . . legislators cоncerning ees for are no confi- establishing dential and become records the act plan becoming (2011) law.” N.C.G.S. § relevant district 120-133 added). (emphasis statutory phrase nothing ambiguous
There is unclear or about the long “when longer “are no confidential.” This Court has held that unambiguous, a is clear and there is no room for language of plain judicial construction, give and the courts must it its and definite Props., Cabarrus, meaning.” Cnty. Lanvale LLC v. 366 800, (citations quotation and (2012) N.C. 731 S.E.2d statutory omitted). unequivocal language The here can be marks up quite simply: as of 7 November the dates that this summed THE SUPREME COURT 347
IN plan finally law, prior “drafting all and informa- became requests” concerning redistricting ceased to be tion and “documents” be Therefore, requests and documents cannot confidential. these applies only by attorney-client privilege, which to confi- covered waiver This case does not concern a broad dential communications. ques- privileges nonconfidential communications of various —the beyond protection attorney-client privilege, simply tion are they protected. if were even once and unnec majority spends opinion confusing its entire in a
The “attorney-client phrase essary attempt prove negative —that appear therefore, privilege” does not in the text of the statute thereby. abrogated privilege cannot be considered waived explains, majority addresses, let alone how Meanwhile, the never actually (a phrase that longer communications that are “no confidential” statutory a common law text) is in the can be covered applied communications. The that has never to nonconfidential way suggesting conclusion is that the word “confi to reach this something in the statute means other than “cоnfidential.” dential” majority points out, presume legislature we “care And as the fully used,” Dep’t chose each word N.C. v. N.C. Med. Bd., of Corr. 189, 201, (2009), Legislature and “that the law,” Ridge Cmty. prior existing knowledge acted with full 688, 695, (1977). S.E.2d Investors, Berry, Inc. v. deliberately presume Therefore, we must that the General knowledge with full longer used the words “are no confidential” requisite law element of the common are, remain, confidential.4 communications repeatedly explicitly by majority Even the authorities cited & confidentiality privilege. the basis for this See Swidler refer to (1998) States, U.S. 118 S. Ct. Berlin v. United recog- oldest privilege is one of the (noting that “[t]he *14 communications”); Miller, In re privileges for confidential nized protection “this 316, 328, (2003) (stating S.E.2d N.C. of the oldest and most confidential communications is one (titled (2011) 120-129 to -139 law”); §§ revered in N.C.G.S. 132-1.1(a) “Confidentiality Communications”); Legislative § of excep- majority If, suggests, was written as a “narrow section 120-133 as the cоmpliance requirements Voting Rights solely the with the tion” intended to “ensure Act,” surely “are without and would have said so. Courts could interpolate, superimpose, provisions power and limitations not contained [in omitted). (2010) (citations Davis, State statute].” DICKSON v. RUCHO (2011) (exempting certain “Confidential Communications” from the “public definition years). records” for three opinion majority repudiated this has either long- standing rule that confidential communications are entitled to protection attorney-client privilege, of the which is inconsistent prior authority; or, with all it say, has rewritten N.C.G.S. 120-133to § confidential,” instead of “are longer no communica- confidential,” tions “continue to be which is inconsistent with our role reviewing body. as a court result, rather than a aAs majority unnecessarily has muddled law in this area to reach its result, and made unpredictable. future cases in this area of law
Because I conсlude that does not apply here, necessary I briefly analyze find it what the statute renders “drafting requests” and information nonconfidential— “concerning “documents” redistricting.” N.C.G.S.§ 120-133.While the “drafting does not define requests,” information it does provide very specific quite broad definition of “documents.” purposes For the statute, of this records, “document” means “all papers, letters, maps, books, photographs, films, recordings, sound magnetic tapes, or other data-processing records, electronic arti- facts, documentary or other regardless physical material form or Id,.' 120-129(1) (2011). characteristics.” While the statute does not explicitly “e-mail,” statutory use the term I conclude that this defini- regardless physical tion that includes . . . “letters form or charac- necessarily mail, teristics” includes plain- electronic which is what tiffs seek Moreover, to discover here. expressly aрplies the statute outside counsel Assembly. for members of the General The definition “[legislative employee” expressly includes “counsel to members and committees of either house of the General . . . who are paid by State funds.” Id. 120-129(2)(2011). plain
In sum, the and unambiguous provide terms of the statute that all (including documents e-mails) concerning redistricting, even legislators those between counsel, and outside ceased to be confi- upon dential final enactment of the law on 7 November 2011.Because N.C.G.S. 120-133 renders these longer communications “no confi- dential” enactment of the (and litigation districts because this commenced after enactment law), apply. cannot majority analysis
While the offers no doc- trine, I see no reason to believe that N.C.G.S.§ 120-133has effect
IN THE SUPREME COURT
application of that doctrine here because
doc-
on the
confidentiality
premised
trine is not
of communications.
Work-product
protect
processes
mental
“designed
doctrine is
specifically
“impressions, opinions,
attorney,”
his
and conclu-
Hardy,
strategies.”
sions or his
theories and
State v.
293 N.C.
105, 126,
(1977).
235 S.E.2d
This Court has stated that work-
“qualified immunity”
product
privilege,”
is “not a
but rather a
doctrine
prepared
anticipation
litigation
that “extends to all materials
Co.,
for trial.” Willis v. Duke Power
229 S.E.2d
emphasis,
quotation
(1976) (citation,
omitted).5
marks
It is
important
protection, however,
phrase
not to
this
overstate
“prepared
anticipation
litigation”
“prepared
does not mean
anticipating litigation.”
redistricting litigation
while
The fact that
is
virtually
every
years
every redistricting
inevitable
ten
does not cloak
work-product protection.
work-product protec-
with
While
document
prepared
litigation,
not
tion is broad for those materials
for
it does
prepared
all
in a
in which
extend to
materials
situation
likely.
stated,
Fourth
has
those mate-
litigation
As the
Circuit
prepared specifically
litigation
protected,
“because
are
not
rials
of'
possibility
general
litigation
those that are created “with the
Murray
Co.,
F.2d
mind.” Nat’l Union Fire Ins. Co. v.
Sheet Metal
(4th
1992).
Cir.
addition,
prepared
ordinary
ateríais
in the
course of busi-
“[m]
protected.” Willis,
ness are not
retaining
described in Willis.
293 N.C. at
at
*16
(2012)]
N.C. 332
[366
Finally, work-product
only “qualified
gives
the
doctrine
immu-
Willis,
nity,” not an absolute shield.
not presented appeal. I would hold that documents listed issues on subject are not because, redistricting legislation enactment of the on 7 following 2011, those documents are not confidential. I would November *17 the trial order insofar as it found a broad waiver of reverse court’s any disputed privilege and remand for in camera review of and all process documents. Those that relate to the discovery. open to and were confidential bеfore enactment should be work-product protection material, Should defendants assert subject in camera review and a rul- such claims should also be ing the trial court. here, respectfully I dissent.
For the reasons stated IN THE MATTER OF: APPEAL OF: OCEAN ISLE PALMS LLC and taxation of real Brunswick County Board of property Equalization for tax year Review concerning from the decision of the the valuation
No. 128A12 January 2013) (Filed 25 value— property county reassessment Taxation— real — specified years improper reappraisal permitted — Property did not err North Tax Commission The Carolina Isle) (Ocean in favor Ocean Isle Palms LLC entering judgment County’s (County) reassessment of the arising from Brunswick County property. Although the tax value of Ocean Isle’s real merely existing in an correcting was an error argued that it appraisal misapplication of its 2007schedule that arose from “concerning Obviously, any “documents” or are not materials that are not they attorney-client privilege eligible redistricting” if meet the com- would still be requirements privilege. law of that mon