Powell v. Ridge

Xie; Luzak; zak; Fu Zhen because, of Catherine despite presence relief tive violations, Philadelphia Clergy and Vi there was Black of continuing employer Naacp; plaintiff cinity; Philadelphia Branch particular allegation no examination); Pennsylvania; subject Aspira, Parents Inc. of again would cf. Steeltek, Inc., Schools; Public Citizens Union for Griffin Cir.1998) (10th a nondisabled (permitting Education in on Public Committee inqui- medical improper plaintiff to sue Philadelphia; for Bet Parents United that revela- alleged plaintiff ry Hornbeck, because Schools, Inc.; David W. ter had caused inquiries via tions elicited Superintendent, District of School him, thus re- to hire to refuse employer Alston, Floyd Philadelphia; W. Presi ally our- injury-in-fact). We sulting in an dent, of Education of Board holdings.12 these selves with Philadelphia; of District School Dis of Education of the School Board allegations of “men- Beyond the bare Philadelphia; Dis distress, trict of School anguish, mental tal/emotional Philadelphia; Ren set forth his trict of Edward G. inconvenience” stress and City Philadelphia; dell, Mayor, no Tice has submitted of complaint, initial Philadelphia of such City Philadelphia, to the actual existence evidence as of 3; ADA viola- of CATA’s harms as result Ted Federation of Teachers Local Indeed, identified a Litem, he has not even Kirsch, President, tions. Ad Guardian improperly viewed his single person who Intervenors in D.C. the Fifth Circuit has

medical files. As preemployment of stated in the context RIDGE, J. Governor of Thomas examinations there is no in- inquiries, Pennsylvania; Commonwealth ADA in the text of the dication in either Dr., Chairperson Gallagher, James P. violation of history that a technical its Pennsylvania 12112(d) State give rise to Commonwealth § intended to Education; Eugene Armstrong, 141 Board W. liability. See damages Secretary Education; Therefore, Hickok, Dr., we hold that Tice F.3d at 561. Treasurer; against Hafer, his em- may not maintain his suit Barbara Matthew J. Jubelirer; improper Ryan; record- ployer ground on the Robert Jess M. C. Rhoades, keeping. Stairs; J. Intervenors James D.C., Appellants. reasons, foregoing the District For the summary judgment grant Court’s No. 00-1711. affirmed. CATA will be Appeals, United States Court of

Third Circuit. Argued Jan. 2001. April Filed 2001. Parks; POWELL; Pa David Shelean Davis; Everage; trice Julia A. Yvette Newton;

Bland; Maria M. Geraldine

Rivera; Mary Miller; Gregory E. Lu ADA; "injury” meaning with re- within the 12. We do not reach conclusion merely injury— agree in the absence of spect of these courts’ deter- to the correctness lie for a plaintiffs those however defined—no claim can viola- minations as to whether the 12112(d). § alleged a redressable tion of cases the existence of Krill, Jr., (Argued), John P. Linda J. Glencer, Shorey, Kirkpatrick Julia M. & Lockhart, PA, Harrisburg, Attorneys for Appellants, Ryan, Matthew J. Robert C. Jubelirer, Jess M. Stairs and James J. Rhoades. Rodgers, (Argued), Lynn

James J. R. Rauch, Dilworth, Paxson, Kalish & Kauff- man, PA, Philadelphia, Patricia A. Bran- nan, Hartson, Hogan & William T. Cole- man, Jr., Stephen Harburg, O’Melveny J. DC, Myers, Washington, Attorneys for

& Parks, Bland, Appellees Shelean Yvette Luzak, Luzak, Fu Gregory Catherine Zhen Xie, Alston, President, Floyd Board of W. Education of the School District of Phila- Hornbeck, delphia, Superinten- David W. dent, Pennsylvania, District of School District, Phila- Board of Education School delphia, and School District of Philadel- phia. Gilhool, Churchill,

Michael Thomas Pub- Philadelphia, lic Interest Law Center of PA, Philadelphia, Attorneys Appellees Moreover, presumably believe appellants A. Powell, Everage, Julia Patrice David aspect Newton, they upon come Davis, Maria M. Riv- that when Geraldine they Miller, Clergy they disagreeable, of Phila- find era, litigation Black Mary E. Philadelphia Branch at issue here to Vicinity, find the delphia and Pennsylvania, be, pursue Par- an interloc- NAACP, Aspira, Inc. of will be able Schools, disagree, Citizens for Public in this utory appeal ents Union Court. in Phila- interlocutory appeal Education on Public Committee and will dismiss for Better jurisdiction. Parents United delphia, and for lack of Schools, Inc. Istvan, Philadelphia, City of

Jane L. I. PA, Philadelphia, Attor- Department, Law by filed stu- In March suit was Rendell, G. Appellees Edward neys for school parents, organizations, dents and Philadelphia, City and City of Mayor, City of the city and officials district Philadelphia. (hereinaf- City the itself Philadelphia, and Teti, & David- Willig, Williams Ralph J. alleging that the formula “appellees”) ter PA, son, Attorneys Ap- for Philadelphia, Pennsylva- by used the Commonwealth Philadelphia Federation of Teach- pellees nia to allocate certain federal education President, Kirsch, Local and Ted ers adopted by regulations monies violated the ad litem. Guardian imple- of Education Department the U.S. Akin, Mannino, Gump, F. Edward Act, Rights menting Title VI of the Civil PA, Feld, Strauss, Philadelphia, & Hauer See §§ 42 U.S.C. 2000d-2000d-7. Appellees Ridge, Thomas Attorneys 100.3(b). for specifically, § the More C.F.R. the Commonwealth of Penn- Governor of the complaint alleged that Common- Dr., Gallagher, P. Chair- sylvania, James funding and methods of wealth’s criteria Pennsylvania person Commonwealth yield racially discrimina- public education Education, Eugene Board of W. State Philadelphia pre- in and other tory results Hickok, Dr., of Education and Secretary In- minority school districts. dominantly Hafer, Treasurer. Barbara sought was junctive declaratory and relief against members of the state’s executive ROTH, BARRY, Judges Before Circuit Governor, branch, including the the Secre- SHADUR,* Judge. District Education, Treasurer, tary of the State of the Board of Edu- and the Chair State BARRY, Judge: Circuit cation. Appellants suggest recognize that we immunity early May In several leaders of the for m of heretofore (the law, Assembly “Leg- Pennsylvania in which can best be General unknown the one Leaders”) in immunity.” moved to intervene “partial legislative islative described suit, Thus, citing legal the their financial and disputed, it is not the in litigation them to interests and the need to appellants assert would enable it; per- respond unique not take “articulate to the Court the discovery, seek but of the deposed; spective and testi- branch depositions, but trial, at Pennsylvania government.” App. 48a.1 fy but not be cross examined. * Shadur, then-proposed 1. Then intervenors referred to The Honorable Milton I. United stated, they Judge passing when in States Northern District District brief, Illinois, they do not sitting by designation. a footnote in their time, “legislative privilege.” unopposed, and was After meet- That motion sides, Court. their granted ing District between counsel for both howev- intervention, Legis- support er, agreed brief explicitly lative Leaders concurred their search files deter mine what docu- to dismiss filed the executive motion they possessed ments un- which would fall earlier; days two department defendants the discovery requests. Ultimately der thereafter, shortly filed they reported finding two boxes of docu- judg- their own motion to dismiss or for ments, only pages they of which pleadings; shortly ment on the after privileged. deemed to Appellees that, yet filed another motion for Compel, then filed a Motion to which was pleadings. judgment on the The District granted, although because of miscommu- complaint Court dismissed the for failure counsel, nication between reversed, emphasiz- a claim. state response Leaders’ to the motion validity appellees’ ing that claims received until after the District Court en- developed could be tested on a record response, tered its order. That in- which rejecting Legislative Leaders’ ar- and objections a cluded multitude of to the gument plaintiffs standing lacked to discovery requests including “legislative complaint. maintain each count of their was, however, privilege,” considered (3d Ridge, Powell v. 189 F.3d 387 Cir. Legisla- the Court connection with the 1999). Notably, legis we did not mention tive Leaders’ motion for reconsideration. absolute, immunity, partial lative shrift, objections gave The Court short was, time, because it at least a non- finding prior that our decision stressed the Legislative issue. The Leaders and the “importance ability of Plaintiffs’ to conduct separate executive branch defendants filed and, “mandate,” discovery” light of this petitions Supreme for certiorari to the denied the motion for reconsideration. petitions Court of the Both United States. appeal- The Leaders have now Powell, Ryan were denied. v. 528 U.S. granting ed the order the Motion to Com- 1046, 579, 120 S.Ct. 145 L.Ed.2d 482 pel.2 Powell, (1999); 1046, Ridge v. 528 120 U.S. (1999). 579, 145

S.Ct. L.Ed.2d 482 II. Court, taking The District the cue rule, us, general or “As scheduling thereafter entered a ders are not final orders of the district appellees accordingly sought order and defendants, purposes obtaining appellate court for from all both execu jurisdiction § legislative. tive and under 28 U.S.C. 1291.” In (3d Co., 954, objected, asserting, for the first re Ford Motor 110 F.3d 958 denied, 823, 66, any “speech immunity” they waive or debate cert. 525 U.S. 119 S.Ct. may App. (1998). have. at 37a. L.Ed.2d will exercise This Court appellate speci over orders not Appellees 2. contend that the Lead “(1) appeal fied in the notice of where there is appealed ers should have the denial of their specified un connection between the Motion for Reconsideration rather than the orders; (2) specified appeal the intention to granting Compel. the Motion to With (3) unspecified apparent; order is issue, pausing out to decide that we note that opposing party prejudiced and has a is are “decisions on the merits not to be avoided (cita opportunity full to brief the issues.” Id. grounds proce on of technical violations of omitted). quotations Each tions and internal rules," Trump Taj dural Polonski v. Mahal met here. of those conditions is Associates, (3d 1998), 137 F.3d Cir. added).3 Cir.1997) (citing Hosp. Underlying Hahnemann sis these narrow ex- Univ. (3d Cir.1996)). 74 F.3d Edgar, ceptions general appeal- v. to the rule of non excepts The collateral order doctrine from ability is a concern that where confidential prohibition range a narrow of interloc- way, sought, information is there is no utory Montgomery In re decisions. Coun- appeal absent immediate of the order re- (3d Cir.2000) ty, (citing disclosure, quiring egg to “unscramble the Corp., Indus. Loan Ford, Cohen scrambled the disclosure.” Beneficial 93 L.Ed. 1528 F.3d at 963. It mention that if bears even (1949)). doctrine, To come within the legislative immunity traditionally its rec- interlocutory conclusively decision must ognized similarly form were bottomed on issue, disputed determine the the issue not, confidentiality, Legisla- which it is completely separate must be from the explicitly tive Leaders disavow action, decision must merits interest. effectively unreviewable on beyond argument It leg- judgment. (citing Coopers a final Id. & immunity represents islative 463, 468, Lybrand Livesay, recognized privilege, denying and orders (1978)). 57 L.Ed.2d 351 legislative immunity have often been re- recently, in Just Bacher v. Allstate Ins. viewed under the collateral order doctrine. Co., Cir.2000), 211 F.3d 52 we dis- all, immunity, Absolute after creates applicability cussed the of the collateral only protection liability, from but also discovery doctrine orders. right Montgomery to stand trial. Bacher, the defendant insurance carrier County, (citing 215 F.3d at 373 Mitchell v. contended that “sensitive” information re- 511, 525, Forsyth, 2806, 472 U.S. 105 S.Ct. garding previous ought settlements to be (1985)). “Thus, 86 411 L.Ed.2d interlocu- privileged discovery. Id. at 55. We tory Appellants’ review of the im- in light Cunningham found of v. munity necessary preserve claims is 198, County,

Hamilton 119 S.Ct. protections affords.” Id. (1999), 144 Digital L.Ed.2d 184 law, In light jurisdic- of such clear case Direct, Inc., Equipment Corp. Desktop tional hurdle discussed Bacher would 511 114 way not stand in the of a legislator assert- (1994), approach 842 and the taken ing giving facts rise to a colorable claim of noted, other appeals which, courts of we — legislative immunity. prohibit discovery immediate review of or- ders even when issues are in- This is not such a case. Although volved—the collateral order doctrine does Bacher found that the collateral order doc not reach appeals orders apply categories “be- trine “should to broad yond orders, the narrow categories interlocutory of trade se- without concern for crets and recognized privi- particular individual circumstances of leges, cases,” Bacher, attorney-client such as and work 211 F.3d at (citing Digi Bacher, product.” (empha- 211 F.3d at 57 tal Equipment, 511 U.S. at 3. recently We even sought more examined an inter- The information in Pearson was confi- locutory of a order in Pear- dential and the asserted was based Miller, (2000). Writing upon son v. 211 F.3d specific confidentiality provisions decision, days a few after the Bacher we Legis- three state statutes. Id. at 62-63. The Leaders, contrast, found under the collateral order lative do not assert a clearly doctrine. any Id. at 64-65. Pearson is under state law nor interest in distinguishable confidentiality. from what is at issue here. 1992), stray Leaders far target a defendant or a subpoena of a beyond seeking of traditional extricate bounds himself or herself immunity, territory they surely completely from recognize. legal various entangle See, McLean, e.g., ments. Burtnick v. Legislative immunity, they explain, is a (4th Cir.1996); F.3d 611 Brown & Wil “protects legislators doctrine which state Williams, Corp. liamson Tobacco absolutely liability legisla- for their (D.C.Cir.1995); MINPECO, F.3d 408 S.A. provides tive activities. It also Services, Inc., v. Conticommodity from the protection burden defend- (D.C.Cir.1988); Miller v. Transameri ing engaged themselves when in the Press, (9th Inc., can 709 F.2d 524 Cir. sphere legitimate legislative activity.” 1983); 2BD County Assoc. Limited v. (citations Br. at Appellants’ 14-15 and in- Queen Co., Commissioners Anne’s for omitted). Furthermore, quotations ternal (D.Md.1995); F.Supp. 528 Marylanders add, legislative immunity “protects Representation, Fair Schaefer, Inc. v. for against disruption legislative pro- to the (D.Md.1992); F.R.D. 292 Campaign cess, which discovery invariably pre- civil York, Equity Fiscal v. New this, cipitates.” Id. at n. 14. All of Misc.2d (N.Y.Sup. 687 N.Y.S.2d 227 course, is correct. Ct.1999). Despite leg their understanding of Unlike the reluctant participants immunity’s parameters, broad islative how upon they rely, cases which ever, the Legislative Leaders are not seek voluntarily Leaders installed as themselves which, ing immunity from this suit it must And, defendants. par- unlike the reluctant remembered, they voluntarily joined. ticipants cases, in those the Leaders wish Nor seeking are the participate remain as defendants protection kind of wholesale from the around; time, long as this case no Instead, of defending burden themselves. note, they legislative have invoked immuni- the Leaders build from scratch ty for any basis of their various privilege would con which allow them to simply motions to dismiss. This is not a actively participate to in litiga tinue this up case of in in caught litigation by briefs, motions, submitting tion and dis they which do wish to be involved. own, covery requests yet of their allow Rather, these are self-made defendants and, them to refuse most who seek to turn what has heretofore been likely, appeal every adverse order. legislative the of immunity shield into outset, As noted at we the and as the sword. argu Leaders conceded at oral A proper legislative of immu- invocation ment, privilege they propose the would nity typically would call for the dismissal discovery, them to enable seek but not of a legislator the lawsuit. Cases it; respond depositions, take but not be cited by parties examples the abound with trial, deposed; testify at but not be complete remedy of this than the rather short, they In cross-examined. assert a See, piecemeal sought e.g., remedies here. privilege that does not exist. Supreme Virginia Court v. Consumers of surprisingly, Not the Lead- States, 719, Union the United 446 U.S. ers up have failed to come with even one 733-34, 1967, 100 64 L.Ed.2d 641 case which hints (1980) at the existence of the immunity if (stating legislative Moreover, they press. every applied, in that suit could “defendants suc- case which support cessfully sought do cite to this have dismissal on the features, immunity”) in direct contrast grounds legislative 526 783, L.Ed. 1019 367, 377, 95 71 S.Ct. added); v. United Eastland

(emphasis Brew 491, (1951). Fund, also United States 421 See U.S. States Servicemen’s 2531, 501, 517, 33 1813, ster, 92 S.Ct. 511 n. 95 S.Ct. (shield (while (1972) (1975) legislative absolve immunity does not L.Ed.2d filing a responsibility beyond the what legislators of not extend immunity “does dismiss, be motions must motion to of the integrity the necessary preserve McCormack, resolved); swiftly Powell Nix States v. process”); United 505-06, 89 S.Ct. 395 U.S. 683, 710, on, 94 S.Ct. 418 U.S. (1969) in (citing prior cases L.Ed.2d (1974) (cautioning privi L.Ed.2d against dismissed actions the Court which expan nor lightly created “are not leges protection under the Congress members of construed”). sively Clause); Mitch- and Debate Speech judgment in concurring opinion (“the ell, view, because, estab- in its Larsen only posses- is its of absolute essence open the jurisdiction, would lishes our to answer for not to have sor’s entitlement Court, briefly, where albeit doors of our action.”); damages in a civil his conduct has, in the words Commonwealth, invoked “privilege” Larsen v. Senate of Cir.1998) opinion, author of distinguished (legislators’ taken has “never been for acts in law” and granted to dismiss “no basis motion other, this, any capacity). recognized Those doors Op. at 527. court....” Cone. legislator Not is dismissal view, cannot we open, her because must eminently appropriate re- logical and analysis jurisdictional of our in the course it immunity applies, sult where present- are to see whether we peek even remedy best furthers also is the which traditionally recognized ed with a of the doctrine. As underlying goals touching mer- involve on the as that would observed, “[(legislative have Bach- prevail, if were to and not its. But this view applied pragmatically, must be indeed, Thus, attempting meaningless; to draw without be rendered labels. er would cases, whether a line for all we examine at least certain examination of a confined relief 8 request prospective [can] necessary [the] in Bacher facts was underlying policies accorded consistent with ap- inevitably necessary and would Larsen, immunity.” underlying legislative event, appears plying Bacher. too, We, not at- at 253. need F.3d itself, a that, concurring opinion under the of tempt precise parameters the to set out order, it for peek at the merits would be yet to come. legislative immunity for cases jurisdic- concludes that our collateral clear, however, manifestly that find it by calling privilege the triggered tion is “ immunity was at the involving legis- ‘legislative’ ... in a case privi- The heart of cases such as Larsen. legislative capacity,” in a acting lators Leaders lege Legislative the described deter- Op. paradigm at merits Cone. absolutely from protect would not them mination. and, litigation there- the burdens of this privilege the purported the Because fore, of traditional is outside the bounds assuredly invoke is Legislative Leaders im- legislative immunity. “Legislators are “traditionally recognized,” but only not mune from deterrents to the uninhibited by any reasonable suggested not even is discharge legislative duty, not of their law, Bacher case reading applicable public their for the private indulgence but interlocutory Brandhove, requires that we dismiss good.” 341 U.S. Tenney v. jurisdiction.4 appeal for lack of We note claim of immunity is immediate- that, in any Legislative civil the ly reviewable under Cohen. See Larsen protected by remain the District Leaders Senate the Commonwealth Pennsyl- power discovery to limit which is vania, Cir.1998). Court’s In cumulative, unreasonably easily more ob- view, my jurisdic- Larsen establishes our source, unduly tainable from another or tion here to review the merits of the 26(b)(2). burdensome. Fed. R. Civ. Proc. immunity. claimed It is true that Legislative the Leaders ROTH, Judge, Circuit Concurring: raise their claimed in a different I agree Majority with the that the as- context —as immunity from legislative immunity serted from parties action, while remaining to the civil has no in law and must basis be denied. immunity not as liability or from unprecedented The asserted is having to parties to the action all. scope in its and breadth. Legis- The four See, e.g., Supreme Court Virginia v. Leaders, knowingly lative volun- who States, Consumers Union the United tarily intervened as defendants in this liti- Inc., 719, 732-33, such, gation and argue wish remain as (1980). not, L.Ed.2d 641 But that does enjoy rights that should all the associ- holds, Majority as the change the fact that being parties ated with litigation to federal Legislative the Leaders assert a bearing while none of the burdens or re- that by-product is a of their status as sponsibilities. I have found nothing to legislators, just recognized as their immu- support legislator the idea that a state who nity liability having and from to de- party im- litigation remains to civil is fend by-product themselves is a of their compliance mune from In- discovery. legislators. Clearly, status as See id. deed, has a privilege never immunity that this, other, recognized by been claim “legislative.” merits their court, might conceivably but violate an claimed must irrelevant to our opposing party’s process rights due were jurisdictional analysis. recognize we to it. view, however, my view, In my the lack of merit Majority errs con- in the claim immu- flating analysis jurisdic- Leaders’ a merits into its mean, holds, nity does not as the tional Majority recognizes conclusion. The that we do not have to hear the Legislative Leaders claim that under Collateral Order Doc- their falls the “legislative within rubric, trine of Cohen v. immunity” Indus. Loan Beneficial Corp., 93 Leaders claim “a form of immu- (1949), L.Ed. 1528 and its progeny. nity....” Majority Rath- at 522. When the er, lack Majority subsequently of merit means that the claim states immunity just should be denied for that claimed immunity is “heretofore unknown law,” 522, reason —it lacks merit. It in Majority is established the at and that the in law that the of a Legislative Circuit denial Leaders “assert a corollary finding jurisdic- jurisdiction, 4. The to our of no our lack of we do not decide— Legislative tion under Bacher is that the whether such would be available to not, yet, Leaders have at least as of invoked voluntaiy Legislative intervenors such as legislative immunity. Neither the Leaders, very or whether the act of interven- Court, therefore, District Court nor this has ing privilege. has waived the presented given question and, been with the — 528 525, judgment final because exist”, that a id. at sounds not

that does comply to with required Leaders would be the merits. The a on to me like decision assert their discovery they can later before jurisdic- lack that we Majority’s conclusion Co., 110 immunity. In re Ford Motor See following rea- to rest on the appears tion (3d Cir.1997). 954, Particular 958 F.3d immunity in legislative A claim of soning: the last placed on emphasis should be merit, context, to lacks ceases a which new jurisdiction those or prong, granting over privilege and traditionally recognized abe effectively unreview ders that would be in our decision reviewable under is not judgment, from a final see appeal able on Co., 52, Ins. F.3d v. Allstate Bacher County, Hamilton Cunningham v. Cir.2000) collateral (holding that 1915, U.S. be- should not be extended order doctrine (1999); Corp. v. Desk Digital Equip. of trade se- categories the narrow yond Inc., 863, 867, Direct, top privi- traditionally recognized crets (1994); L.Ed.2d 842 Ford S.Ct. If the begs question: a leges). But this Co., meaning Motor privi- “legislative” asserted practical value of the assert legal a claim” or it is not “colorable lege because destroyed if not vin ed would be context, appropriate in the is not raised to trial. See Lauro Lines prior dicated what is it? 498-99, Chasser, SRL v. labeling the de- simply I believe (1989). 1976, 104L.Ed.2d 548 in a case “legislative” privilege, fense as relies on our decision in a involving legislators acting Bacher, supra. But that decision is not as trigger our collat- capacity, is sufficient to limiting Majority suggests. Bacher as the jurisdiction, opening the door eral order that a proposition does not stand for the denial of appellate review of the immediate traditionally recognized privilege over claim, fact that regardless of the juris- would have collateral order which we immunity arises a new “legislative” diction, immunity, ceas- such as may lack merit. To or different context or recognized privi- es to be a mind, jurisdiction in the instant my our in a lege merely because it is raised new in Lar- compelled by case is our decision and therefore ceases to be a color- context sen, had expressly where held we privilege. claim of that able or meritorious collateral order over the denial particu- a claim of a Bacher did not involve immunity. See Lar- of claims of lar, privilege but was a case identifiable sen, 152 at 245. F.3d party attempted to a civil action which Moreover, the District Court’s discovery a run-of-the-mill order. to com- compelling merely sought The defendant there the three- ply with fits within simple discovery re- complying avoid with analytical that we have prong framework quests ground that the information on determining (the whether an or- established for past settlements sought amounts of 1) der is it con- reviewable under Cohen: paid) was confidential and not relevant and clusively question resolves the whether public policy, would violate its disclosure Bacher, Leaders must see F.3d at but be- 2) discovery; important impli- it is- any privilege resolves cause was sue, jur- immunity from cated. Our conclusion that we lacked parties separate who are that is isdiction not a new limitation on the 3) case; rather a con- from the collateral order doctrine but merits application long-standing from sistent effectively on unreviewable rule that simple discovery orders are not legislative immunity has merit in its cur- final subject orders to immediate rent review. context. Bacher, See at F.3d 58 (quoting Ford I am concerned with impact that this Co., 958).

Motor Here, at F.3d by ruling may have on future cases. It is not contrast, assert contested that plaintiffs could challenge defined, specific, well-established, tradi- the legality of legislative by suing decisions tionally recognized privilege or immunity, the executive officers charged with carry albeit with a twist. twist, But that regard- ing out those Further, decisions.* it is less of its effect on the merits of the clear plaintiffs could sue municipali privilege claim, does not affect our juris- ties for legislative actions and the munici diction and does turn not palities into case themselves are not entitled to leg Bacher —the claimed islative remains immunity. See Foerster, Carver v. legislative, it (3d Cir.1996). remains F.3d recog- It also is nized, and it clear therefore that the should im- individual legislators remain could mediately be named as reviewable. defendants in such a or could be dismissed an early at stage if Nor, as the Majority suggests, see Ma- the suit were upon based their legislative at jority does require Bacher us to activities. See Bogan v. Scott-Harris, 523 conduct a confined examination the mer- 44, 52-54, its of the claimed privilege, only of the (1998); Supreme Court, 446 U.S. at nature of the is, privilege, that type 733-34, 100 S.Ct. 1967. But we have not of immunity asserted. I suggest no differ- addressed whether a non-party legislator ently. it, IAs see we must look at the would be legislatively immune from being record, determine the nature or type of made with subpoenas for discov immunity asserted, and evaluate whether ery in a civil action. it is a traditionally recognized privilege, The Fourth Circuit has decided this is- immunity; pre- this is sue, holding that non-party legislators can- cisely what Bacher commands. But look- not be made to testify provide or evidence ing at whether the immunity asserted is as to their activities or their legislative, meaning asserted legislators motives. See McLean, Burtnick v. based on their official activity, and thus (4th F.3d Cir.1996); Berkley v. traditionally recognized, is not a merits Common Council the City Charles- determination. I have taken peek “a ton, (4th 63 F.3d Cir.1995) (en 303 n. 9 at merits,” 526, just at the banc) (suggesting, but not holding, that nature of the privilege asserted. Only af- prior law indicates that members of the ter concluding that the asserted privilege council would privileged from testify- is legislative and that we therefore have ing). have, on hand, the other noted collateral jurisdiction, do I even that the inquiry intent-based that is part of broach the necessarily separate and dis- certain doctrines constitutional law nec- question tinct of whether that claim of essarily judicial means that inquiry into * It noting is worth not all the separate tions are legislative actions). Leaders' funding activities in education could For example, the record reflects that two of legislative; deemed some activities could Leaders are ex members officio be deemed executive Pennsylvania Education, Board of would not attach to such activities. See Car- department; executive any actions in that Foerster, ver Cir.1996) properly role should be deemed executive. (an officer's executive administrative ac- more might the latter have in case is that per se forbidden motive is 104; former, Carver, might it be a F.3d at than the that merit

such cases. See Arlington Heights immuni- Village application of see also colorable Corp., 429 U.S. Dev. Metropolitan Hous. of the merits ty. But such consideration 50 L.Ed.2d 450 n. 97 S.Ct. to the must be irrelevant privilege of a (1977) extraordinary in (stating that some jurisdiction. of our question circumstances, legisla- of a the members from civil discov- legislative privilege If testify called to about body might be tive exists, in the party, for a ery either actions, usually is although this may non-party a as it instant or for avoided). held that a also have to be future, protect in it exists to arise pro- to may subpoenaed legislator state having to the burden of legislators from jury of which the grand to a vide evidence discovery having and of to deal respond to In re target. See legislator is not disruptions that the distractions and with Purchases), (Granite Jury Grand ability carry to discovery imposes on their Cir.1987). 946, 958 functions. See Su- governmental out their non-party legislator of a The Court, preme 446 U.S. at open issue discovery from civil thus is Larsen, 245; 1967; also 152 F.3d at see Circuit, may called in one that we this 511, 529-30, Forsyth, Mitchell sup- But point. at some upon to resolve (1985) to arise and the Dis- pose that case were (same respect qualified executive with priv- reject the claimed trict Court were immunity). privilege But a legislator to ilege non-party and order the in (assuming, arguendo, it exists either subpoena provide tes- comply with the situation) if is worthless it cannot be vindi- discovery. we have timony and Would being forced prior cated to the jurisdiction immediately to review that or- discovery. Majori- Yet decision, today’s I the an- der? As read effectively any pos- renders ty’s approach way distinguish I no swer is no. see legislative discovery privi- claim a sible privi- instant case. A future case from the until after has lege unreviewable discovery by non-party legisla- a lege from a agree I cannot with such been obtained. in this as the tor would be as new Circuit jurisdiction. appellate limitation on our Legislative that the Leaders seek privilege case; to assert the instant would jurisdic- I that have Because find we do traditionally privilege, recognized be a appeal, Legislative tion over the Leaders’ foreclosing our immediate review under merits my step next would be to reach the Majority’s reading of Bacher. We reject privilege. I would of the claimed future distinguish could not this case regard, on its merits. by saying legis- that those the instant one my to that of reasoning much of is similar asserting legislative privilege a lators are Indeed, Majority. suggests to me (that is, they possess by is, fact, conducting that the posi- in connection with their virtue and, analysis merits claim legislators) and that tions and activities as effect, rejecting Leaders’ legislative immunity is a rec- claim on that basis. ognized privilege, because the knowingly, will- un- Leaders here assert ingly, voluntarily entered this ease questionably “legislative” under such a explicitly intervening They as defendants. only possible definition. The distinction to remain as defendants. And between the instant case and the future wish repeatedly insist that they should be treat- tions and distractions voluntarily ed same as all defendants, other ifas undertook. they had been named in the original filing, The Legislative Leaders attempt to entitled to all the privileges rights of downplay the significance of their inter- parties to litigation. civil follows, It I be- vention. Although they certainly recog- lieve, that they waived immunity from nize immunity may be discovery by the decision to enter and waived, see Government the Virgin Is- remain in the case and to assert their Lee, lands v. (3d F.2d 520 n. 7 rights as defendants. Cir.1985) (noting that criminal defendant pointed Leaders have to legislator’s claim that he was impermissi- no case which legislator is a who party bly deposed “unpersuasive” where the to a civil action has been held to im deposition be was voluntary and the defen- mune from discovery. Every case the dant waived any privilege); Burtnick, 76 Legislative Leaders cite their briefs F.3d at 613 (holding that non-party’s privi- argument oral involves attempts to take lege being compelled to testify could discovery in a civil case legislators waived), Leaders sug- who parties are not to the case. See Burt gested at oral argument that intervening nick, 613; 76 F.3d at Brown & William did not waive their privilege because any son Tobacco Corp. Williams, 62 F.3d such waiver was not sufficiently explicit. I (D.C.Cir.1995). As discussed su conceive, cannot however, of a explic- more pra, we have not determined whether such it waiver of immunity than willingly sub- immunity exists in this Circuit and I offer mitting oneself to aof fed- no opinion as to whether such privilege eral district court. If the Legislative should exist. But none of these cases Leaders had been named as defendants in supports proposition that a legislator the first instance and had failed to assert who chooses to become a party to a civil their legislative immunity as an affirmative action is immune from discovery. defense, they unquestionably could be deemed to have waived that immunity.

The party/non-party distinction is criti- Intervening places them cal. the identical Legislative immunity is intended position. protect legislators from having to divert time, their energy, and attention from I find helpful the analysis of the District their legislative tasks in order to defend Court in an analogous situation, in May themselves or provide evidence in a civil Cooperman, (D.N.J.1984), 578 F.Supp. 1308 action. It protects legislators from the in part, appeal dismissed in aff 'd. potential harassment, disruption, and dis- part, relevant Cir.1985). traction that would come with the burden May, four members of the Jersey New of having to defend pro- themselves legislature, and/or representing that body, inter vide evidence. See Supreme Court, 446 vened § as defendants in a action U.S. at 1967; Jury, Grand defend the constitutionality of a state stat 821 F.2d at 968. But the prophylactic ute because the executive refused de function of the immunity is undermined fend it. After the law down, was struck once join choose to the District Court attorneys’ assessed fees They case. have willingly subjected against the legislative defendants, under themselves to any disruptions and distrac- 1988; § 42 U.S.C. legislators argued tions go with being party to civil that they were absolutely immune from an litigation. They cannot now claim that award attorneys’ legisla fees their they should protected from the disrup- tive activity. The District rejected Court holding that the argument, Beckon; SMITH; Georgette Leroy lawsuit J. into the interjected themselves

had becoming parties, individually; Smith, by intervening T. Valise Marcia waiving their thereby individually, on behalf Matthews, C. suit, attorneys’ as incidents of similarly and all others of themselves May, F.Supp. 1316-17. fees. See situated, prior im- distinguished The District Court Court, cases, be- Supreme munity such as had cho- Jersey legislators New cause the BERG; In National John G. Columbia defense of the and assume sen to intervene Mortgage corporated; First Town at 1317. See id. statute. Countrywide In Corporation; Credit discovery, compliance with Similarly, Inc., subsidiary, dustries, through its re- compelled to being and Inc.; Countrywide Loans, Fi Home information, documents, quests Financial, through delity its National Regard- testimony, are incidents of suit. Fidelity subsidiary, Title In National Legislative Leaders less whether Pennsylvania; Company of surance inci- from such have been immune

would Fidelity Title National Insurance it is clear that non-parties, as dents Pennsylvania, Company of any immunity from surrendered voluntarily willingly entering Incorporated, National First Columbia party remaining in the action as defen- Mortgage Corporation; Coun- Town dants. Industries, Inc.; trywide Fideli- Credit analysis emphasizing my I close ty Company National Title Insurance analysis very simi- Majority’s and the are Pennsylvania, Appellants. denying the asserted im- lar discovery. The is munity from difference No. 00-2881. that the lack that the concludes takes the outside of merit Appeals, United States Court legislative immunity and divests bounds of Third Circuit. jurisdiction. us of collateral order doctrine that, im- I conclude because the asserted March 2001. Argued have collateral munity “legislative,” is April Filed 2001. lack merit to jurisdiction. The claim claim of means the on its merits. I would should be denied judgment

affirm the of the District Court have

because any immunity discovery.

waived

They subject production are as of docu- testimony other

ments and of

party. reasons, I

For the concur above judgment of the Court.

Case Details

Case Name: Powell v. Ridge

Court Name: Court of Appeals for the Third Circuit

Date Published: Apr 6, 2001

Citation: 247 F.3d 520

Docket Number: 00-1711

Court Abbreviation: 3rd Cir.