Legislative Privilege Found to Disallow Inquiry into Subjective Motives of Lawmakers

In In Re Hubbard, No. 13-10281, 2015 WL 5970399 (11th Cir. Oct. 14, 2015), the Eleventh Circuit held that the district court erred in refusing to quash subpoenas for documents sent to current Alabama Governor Robert Bentley, former Governor Bob Riley, Alabama House of Representatives Speaker Mike Hubbard, and Alabama Senate Pro Tempore Del Marsh since the “lawmakers,” as the court termed them, were protected by legislative privilege.

In February 2011, the Alabama Education Association (AEA) filed a lawsuit challenging the constitutionality of a pending Alabama law, Alabama Act No. 2010-761 (Act 761). Act 761 changed the State’s payroll deduction policies to prohibit payroll deductions that went to dues for organizations that used the dues for political activity or went to political action committees. At the time this appeal was decided, the Eleventh Circuit had already determined that this prohibition alone was not a violation of the First Amendment or unconstitutionally overbroad or vague. See Alabama Education Ass’n v. State Superintendent of Education, 665 F.3d 1234 (11th Cir. 2011) and Alabama Education Ass’n v. State Superintendent of Education, 746 F.3d 1135 (11th Cir. 2014). The plaintiffs’ only remaining claim was that Act 761 was an unconstitutional act of governmental retaliation for the plaintiffs’ previous political activity. The district court denied the defendants’ motion to dismiss, deciding that it was a viable claim in light of Eleventh Circuit precedent in Georgia Ass’n of Educators v. Gwinnett County School District, 856 F.2d 142 (11th Cir. 1988).

Prior to the dismissal of the plaintiffs’ other claims, the plaintiffs filed the subpoenas that led to this appeal. The subpoenas were sent to Bentley, Riley, Hubbard, and Marsh, among others. Riley, Hubbard and Marsh moved to quash the subpoenas under governmental privilege, as did Bentley after he was dismissed as a party to the suit. The district court denied all four lawmakers’ motions to quash, holding that they had not properly asserted their privilege. The lawmakers appealed to the Eleventh Circuit and filed petitions for writs of mandamus. The Eleventh Circuit held that under Rule 45 of the Federal Rules of Civil Procedure the district court must quash a subpoena that requires disclosure of privileged material and that legislative privilege protected the lawmakers’ actions during the legislative process. The Eleventh Circuit said that the district court erred in relying on United States v. O’Neill, 619 F.2d 222 (3d Cir. 1980) when holding that the lawmakers failed to properly assert their privilege. The four requirements for asserting privilege articulated in O’Neill were either contrary to Eleventh Circuit precedent or inappropriate in these circumstances, and thus the district court abused its discretion in refusing to quash the subpoenas.

In this case, the Eleventh Circuit noted that the plaintiffs’ only remaining claim required them to look into the subjective motivation of the lawmakers in order to show that Act 761 was in fact retaliation. The facts necessary to prove the plaintiffs’ claim are exactly what is covered by legislative privilege. AEA argued that even if the lawmakers properly asserted their legislative privileges and even if their privileges applied, their privileges must give way to AEA’s First Amendment rights. The Eleventh Circuit held that the First Amendment does not support a “challenge to an otherwise constitutional statute based on the subjective motivations of the lawmakers who passed it.” No. 13-10281 at *10. The Eleventh Circuit held that this case was distinguishable from its precedent in Gwinnett County School District because the payroll deduction rule in that case singled out a specific group and so was not facially constitutional. The Eleventh Circuit directed the district court to quash the motions to compel and stated that the district court on remand could revisit its denial of the lawmakers’ motion to dismiss.

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