Dickson v. Rucho, 366 NC 332

MARGARET DICKSON, ALICIA CHISOLM, ETHEL CLARK, MATTHEW A.

McLEAN, MELISSA LEE ROLLIZO, C. DAVID GANTT, VALERIA TRUITT,

ALICE GRAHAM UNDERHILL, ARMIN JANCIS, REBECCA JUDGE, ZETTIE

WILLIAMS, TRACEY BURNS-VANN, LAWRENCE CAMPBELL, ROBINSON O.

EVERETT, JR., LINDA GARROU, HAYES McNEILL, JIM SHAW, SIDNEY E.

DUNSTON, ALMA ADAMS, R. STEVE BOWDEN, JASON EDWARD COLEY,

KARL BERTRAND FIELDS, PAMLYN STUBBS, DON VAUGHAN, BOB

ETHERIDGE, GEORGE GRAHAM, JR., THOMAS M. CHUMLEY, AISHA DEW,

GENEAL GREGORY, VILMA LEAKE, RODNEY W. MOORE, BRENDA MARTIN

STEVENSON, JANE WHITLEY, I.T. (“TIM”) VALENTINE, LOIS WATKINS,

RICHARD JOYNER, MELVIN C. McLAWHORN, RANDALL S. JONES, BOBBY

CHARLES TOWNSEND, ALBERT KIRBY, TERRENCE WILLIAMS, NORMAN C.

CAMP, MARY F. POOLE, STEPHEN T. SMITH, PHILIP A. BADDOUR, and

DOUGLAS A. WILSON v. ROBERT RUCHO, in his official capacity only as the

Chairman of the North Carolina Senate Redistricting Committee; DAVID LEWIS,

in his official capacity only as the Chairman of the North Carolina House of

Representatives Redistricting Committee; NELSON DOLLAR, in his official

capacity only as the Co-Chairman of the North Carolina House of Representatives

Redistricting Committee; JERRY DOCKHAM, in his official capacity only as the Co-

Chairman of the North Carolina House of Representatives Redistricting Committee;

PHILIP E. BERGER, in his official capacity only as the President Pro Tempore of

the North Carolina Senate; THOM TILLIS, in his official capacity only as the

Speaker of the North Carolina House of Representatives; THE STATE BOARD OF

ELECTIONS; and THE STATE OF NORTH CAROLINA

NORTH CAROLINA STATE CONFERENCE OF BRANCHES OF THE NAACP,

LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DEMOCRACY NORTH

CAROLINA, NORTH CAROLINA A. PHILIP RANDOLPH INSTITUTE, REVA

McNAIR, MATTHEW DAVIS, TRESSIE STANTON, ANNE WILSON, SHARON

HIGHTOWER, KAY BRANDON, GOLDIE WELLS, GRAY NEWMAN, YVONNE

STAFFORD, ROBERT DAWKINS, SARA STOHLER, HUGH STOHLER, OCTAVIA

RAINEY, CHARLES HODGE, MARSHALL HARDY, MARTHA GARDENHIGHT,

BEN TAYLOR, KEITH RIVERS, ROMALLUS O. MURPHY, CARL WHITE, ROSA

BRODIE, HERMAN LEWIS, CLARENCE ALBERT, JR., EVESTER BAILEY,

ALBERT BROWN, BENJAMIN LANIER, GILBERT VAUGHN, AVIE LESTER,

THEODORE MUCHITENI, WILLIAM HOBBS, JIMMIE RAY HAWKINS,

HORACE P. BULLOCK, ROBERTA WADDLE, CHRISTINA DAVIS-McCOY,

JAMES OLIVER WILLIAMS, MARGARET SPEED, LARRY LAVERNE BROOKS,

CAROLYN S. ALLEN, WALTER ROGERS, SR., SHAWN MEACHEM, MARY

GREEN BONAPARTE, SAMUEL LOVE, COURTNEY PATTERSON, WILLIE O.

SINCLAIR, CARDES HENRY BROWN, JR., and JANE STEPHENS v. THE

STATE OF NORTH CAROLINA; THE NORTH CAROLINA STATE BOARD OF

ELECTIONS; THOM TILLIS, in his official capacity as Speaker of the North

Carolina House of Representatives; and PHILIP E. BERGER, in his official capacity

as President Pro Tempore of the North Carolina Senate

DICKSON V. RUCHO

Opinion of the Court

No. 201PA12

(Filed 25 January 2013)

Evidence — attorney-client privilege — redistricting — no waiver by

statute

Section 120-133 of the North Carolina General Statutes does not waive

the right of legislators to assert the attorney-client privilege or work-product

doctrine in litigation concerning redistricting where the statute is silent on

the issue. Any waiver of such well-established legal principles must be clear

and unambiguous and this statute in no way mentions, let alone explicitly

waives, the attorney-client privilege or work-product doctrine. The phrase

“notwithstanding any other provision of law” in the statute lacks a contextual

definition; the ordinary meaning of “provision,” determined by reference to a

Black's Law Dictionary, refers to a statue.

Justice BEASLEY did not participate in the consideration or decision of this

case.

Justice HUDSON dissenting.

Appeal pursuant to N.C.G.S. § 120-2.5 from an order entered on 20 April

2012 by a three-judge panel of the Superior Court, Wake County appointed by the

Chief Justice pursuant to N.C.G.S. § 1-267.1, allowing plaintiffs’ motion to compel

production of certain documents. On 11 May 2012, the Supreme Court of North

Carolina issued an order expediting hearing of the appeal. Heard in the Supreme

Court on 10 July 2012.

Poyner Spruill LLP, by Edwin M. Speas, Jr., for Dickson plaintiff-appellees;

and Edwin M. Speas, Jr., Southern Coalition for Social Justice by Anita S.

Earls, and Ferguson Stein Chambers Gresham & Sumter, P.A. by Adam

Stein, for NC NAACP plaintiff-appellees.

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Opinion of the Court

Ogletree, Deakins, Nash, Smoak & Stewart, P.C., by Thomas A. Farr and

Phillip J. Strach, for legislative defendant-appellants; and Roy Cooper,

Attorney General, by Alexander McC. Peters and Susan K. Nichols, Special

Deputy Attorneys General, for all defendant-appellants.

Bussian Law Firm, PLLC, by John A. Bussian, for North Carolina Press

Association, Inc.; and Brooks, Pierce, McLendon, Humphrey & Leonard,

L.L.P., by Mark J. Prak, for North Carolina Association of Broadcasters, Inc.,

amici curiae.

Stevens Martin Vaughn & Tadych, PLLC, by Hugh Stevens, for The North

Carolina Open Government Coalition, Inc., amicus curiae.

JACKSON, Justice.

In this appeal we consider whether section 120-133 of the North Carolina

General Statutes waives the right of legislators to assert the attorney-client

privilege or work-product doctrine in litigation concerning redistricting. Because

any waiver of such well-established legal principles must be clear and

unambiguous, we conclude that the statute’s silence on such waivers renders the

statute ambiguous as to this issue. After further analysis, we conclude that the

General Assembly did not intend to waive either the attorney-client privilege or

work-product doctrine when it enacted section 120-133. While we acknowledge that

the General Assembly may choose to waive its legal rights, we are unwilling to infer

such a sweeping waiver unless the General Assembly leaves no doubt about its

intentions. Accordingly, we affirm in part and reverse in part the order of the three-

judge panel for the reasons stated below.

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Opinion of the Court

On 27 and 28 July 2011, the North Carolina General Assembly enacted new

redistricting plans for the North Carolina House of Representatives, North Carolina

Senate, and United States House of Representatives pursuant to Article II, Sections

3 and 5 of the North Carolina Constitution and Title 2, sections 2a and 2c of the

United States Code. During the legislative process leading up to and following

enactment, the defendant members of the General Assembly, including Senate

President Pro Tempore Philip Berger, House Speaker Thom Tillis, Senate

Redistricting Chair Robert Rucho, and House Redistricting Chair David Lewis,

received legal advice from lawyers employed by the Attorney General of North

Carolina and two private law firms, Ogletree, Deakins, Nash, Smoak & Stewart,

P.C. (“Ogletree Deakins”) and Jones Day. Like the lawyers who are employed by

the Attorney General, the Ogletree Deakins and Jones Day attorneys were paid

with State funds.

On 2 September 2011, the Attorney General filed an action to preclear the

redistricting plans in the United States District Court for the District of Columbia

pursuant to Section five of the Voting Rights Act of 1965, North Carolina v. Holder,

No. 1:11-CV-01592 (D.D.C. Sept. 2, 2011), and simultaneously sought

administrative preclearance from the United States Attorney General. The

redistricting plans were precleared administratively by the United States Attorney

General on 1 November 2011. As a result, the federal district court dismissed as

moot the State’s preclearance action on 8 November 2011.

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Opinion of the Court

On 1 November 2011, the General Assembly also alerted the United States

Department of Justice that an error in the computer software program used to draw

the redistricting plans had caused certain areas of the state to be omitted from the

original plans. The General Assembly passed legislation on 7 November 2011 to

cure this technical defect. The United States Attorney General precleared the

revised plans on 8 December 2011.

Meanwhile, plaintiffs, the North Carolina State Conference of Branches of

the NAACP, League of Women Voters of North Carolina, Democracy North

Carolina, North Carolina A. Philip Randolph Institute, and individual registered

voters, filed separate suits on 3 and 4 November 2011, challenging the

constitutionality of the redistricting plans and seeking a preliminary injunction to

prevent defendants from conducting elections using the redistricting plans. In

accordance with section 1-267.1 of the North Carolina General Statutes, the Chief

Justice appointed a three-judge panel to hear both actions.

On 19 December 2011, the panel consolidated the cases. On the same day

defendants filed their answers and moved to dismiss the suit. Thereafter, on 20

January 2012, the panel entered an order denying plaintiffs’ motion for a

preliminary injunction. The panel also entered an order on 6 February 2012

allowing in part and denying in part defendants’ motion to dismiss.

Most relevant to the issues before us, on 8 and 17 November 2011, plaintiffs

served requests for production of documents on defendants pursuant to Rule 34 of

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Opinion of the Court

the North Carolina Rules of Civil Procedure. These requests sought production of a

variety of communications concerning enactment of the redistricting plans. After

receiving an extension of time to respond, on 13 January 2012, defendants served

written responses to plaintiffs’ discovery requests, in which they objected to the

production of certain categories of documents based upon the attorney-client

privilege, legislative privilege, or work-product doctrine. On 24 February 2012,

defendants amended their objections, providing additional information regarding

their privilege claims. Specifically, defendants identified the following

communications as privileged:

1. Emails to and from Tom Farr, Phil Strach, Alec

Peters, and Tiare Smiley to or from Bob Rucho,

David Lewis, Thom Tillis, Phil Berger or their

legislative staff members[1] acting on their behalf or

at their direction regarding legal advice on the

impact of census data on redistricting plans.

2. Emails to and from Tom Farr, Phil Strach, Alec

Peters, and Tiare Smiley to or from Bob Rucho,

David Lewis, Thom Tillis, Phil Berger or their

legislative staff members acting on their behalf or

at their direction regarding legal requirements for

a fair process under section 5 of the Voting Rights

Act.

3. Emails to and from Tom Farr, Phil Strach, Alec

Peters, and Tiare Smiley to or from Bob Rucho,

David Lewis, Nelson Dollar, Thom Tillis, Phil

Defendants also stated that the term “legislative staff members” was limited to: (1)

1

Jason Kay, General Counsel for Representative Tillis; (2) Tracy Kimbrell, General Counsel

for Senator Berger; (3) Jim Blaine, Chief of Staff for Senator Berger; and (4) Brent

Woodcox, redistricting counsel for Senators Berger and Rucho.

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DICKSON V. RUCHO

Opinion of the Court

Berger or their legislative staff members acting on

their behalf or at their direction regarding legal

advice in preparation for meetings of the House and

Senate Redistricting Committees.

4. Emails to and from Tom Farr, Phil Strach, Michael

Carvin, Michael McGinley, Alec Peters, and Tiare

Smiley to or from Bob Rucho, David Lewis, Nelson

Dollar, Thom Tillis, Phil Berger or their legislative

staff members acting on their behalf or at their

direction regarding legal requirements for

legislative and congressional districts.

5. Emails to and from Tom Farr, Phil Strach, Michael

Carvin, Michael McGinley, Alec Peters, and Tiare

Smiley to or from Bob Rucho, David Lewis, Nelson

Dollar, Thom Tillis, Phil Berger or their legislative

staff members acting on their behalf or at their

direction regarding legal advice regarding any

public statements about redistricting or proposed

redistricting plans.

6. Emails to and from Tom Farr, Phil Strach, Michael

Carvin, Michael McGinley, Alec Peters, and Tiare

Smiley to or from Bob Rucho, David Lewis, Thom

Tillis, Phil Berger or their legislative staff members

acting on their behalf or at their direction

regarding legal advice on the preclearance process

for redistricting plans.

7. Emails to and from Tom Farr, Phil Strach, Michael

Carvin, Michael McGinley, Alec Peters, and Tiare

Smiley to or from Bob Rucho, David Lewis, Nelson

Dollar, Thom Tillis, Phil Berger or their legislative

staff members acting on their behalf or at their

direction regarding legal advice for the redistricting

session of the General Assembly.

On 29 February 2012, plaintiffs filed a motion to compel discovery, seeking

production of, among other things, “all communications between legislators and core

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DICKSON V. RUCHO

Opinion of the Court

staff and all lawyers or consultants paid with state funds, and unredacted invoices

and time sheets.” In support of their motion, plaintiffs cited section 120-133 of the

North Carolina General Statutes, which reads:

Notwithstanding any other provision of law, all

drafting and information requests to legislative employees

and documents prepared by legislative employees for

legislators concerning redistricting the North Carolina

General Assembly or the Congressional Districts are no

longer confidential and become public records upon the

act establishing the relevant district plan becoming law.

N.C.G.S. § 120-133 (2011).2 Plaintiffs argued that section 120-133 constitutes a

“broad and unambiguous” waiver by the General Assembly of “any privileges”

relating to redistricting communications once the relevant act becomes law.

Plaintiffs contended that section 120-133 compelled the production of documents

prepared by defendants’ counsel, including lawyers from the Attorney General’s

Office and private firms.

On 11 April 2012, defendants responded to plaintiffs’ motion, denying that

section 120-133 waives, or even addresses, the common law attorney-client privilege

or work-product doctrine or that the statute applies to the Attorney General’s

Office. Defendants’ response included an engagement letter executed in 1991 by

2The term “legislative employee” is defined to include “consultants and counsel to

members and committees of either house of the General Assembly or of legislative

commissions who are paid by State funds.” N.C.G.S. § 120-129(2) (2011). However, the

term “legislative employee” excludes “members of the Council of State.” Id. In addition, the

term “document[s]” is defined to include “all records, papers, letters, maps . . . or other

documentary material regardless of physical form or characteristics.” N.C.G.S. § 120-129(1)

(2011).

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DICKSON V. RUCHO

Opinion of the Court

Daniel T. Blue, Jr., who then was serving as Speaker of the North Carolina House

of Representatives, and outside counsel James E. Ferguson, II of Ferguson, Stein,

Watt, Wallas, Adkins & Gresham, P.A (“Ferguson Stein”). In the letter, Ferguson

Stein agreed to provide legal advice to the North Carolina House of Representatives

concerning redistricting. The letter stated that “[b]ecause communications between

the firm and members of the House are privileged attorney-client communications,

N.C.G.S. §[ ]120-133 shall not apply to communications, including written

communications, between any attorneys in the firm and any member of the North

Carolina House of Representatives.”

On 20 April 2012, the three-judge panel entered a written order allowing

plaintiffs’ motion to compel. Most significantly, the panel concluded:

20. Although certain communications by and

between members of the General Assembly and legal

counsel pertaining to redistricting plans may have

originally been cloaked with privilege, the General

Assembly, by enacting N.C. Gen. Stat. § 120-133,

expressly waived any and all such privileges once those

redistricting plans were enacted into law.

21. This waiver is clear and unambiguous; it is

applicable “notwithstanding any other provision of law.”

The waiver applies regardless of whether the privilege is

claimed under a theory of attorney-client privilege, the

work-product doctrine or legislative privilege.

Accordingly, the panel stated that “[a]ll drafting and information requests . . . to

legislative employees” and “[d]ocuments . . . prepared by legislative employees”

concerning the redistricting plans were “ ‘no longer confidential’ ” and became “

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Opinion of the Court

‘public record’ ” when the redistricting plans were enacted. (underlining omitted).

The panel concluded that counsel from Ogletree Deakins, Jones Day, and any

legislative staff attorneys “were ‘legislative employees’ ” because they “served as

‘consultants and counsel’ ” to members of the General Assembly and were paid with

State funds. The panel stated that this waiver of confidentiality “d[id] not extend to

documents or communications to or from attorneys who were . . . members of the

North Carolina Attorney General’s staff because the Attorney General, [as] a

member of the Council of State, is not a ‘legislative employee’ and neither are his

staff attorneys.”

The panel also concluded that any documents prepared “solely in connection

with the redistricting litigation” remain confidential pursuant to the attorney-client

privilege or work-product doctrine; however, the panel did not identify the specific

documents to which the attorney-client privilege or work-product doctrine would

apply. Instead, it invited the parties to negotiate “a reasonable means of identifying

categories of documents that ought to remain confidential.”

Defendants appealed to this Court as of right pursuant to section 120-2.5 of

the North Carolina General Statutes. See Pender Cnty. v. Bartlett, 361 N.C. 491,

497, 649 S.E.2d 364, 368 (2007) (interpreting “N.C.G.S. § 120-2.5 to mean that any

appeal from a three-judge panel dealing with apportionment or redistricting

pursuant to N.C.G.S. § 1-267.1 is direct to” the Supreme Court of North Carolina),

aff’d sub. nom. Bartlett v. Strickland, 556 U.S. 1, 173 L. Ed. 2d 173 (2009).

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Defendants also asked the three-judge panel to stay its discovery order during the

pendency of this appeal. The panel issued a temporary stay, but set an expiration

date of 11 May 2012. Consequently, defendants filed a motion for temporary stay

and petition for writ of supersedeas with this Court on 4 May 2012. On 11 May

2012, we allowed defendants’ motion for temporary stay and petition for writ of

supersedeas and expedited the hearing of this appeal.

Before this Court plaintiffs argue that they are entitled to all pre-enactment

communications and documents relating to redistricting pursuant to section 120-

133 of the North Carolina General Statutes. Plaintiffs contend that section 120-133

is unambiguous and by its plain language waives the right of legislators to assert

the attorney-client privilege or work-product doctrine for communications and

documents made during redistricting. In contrast, defendants argue that, strictly

construed, section 120-133 only operates as a narrow waiver of legislative

confidentiality that is codified in Article 17, Chapter 120 of the North Carolina

General Statutes. Defendants therefore contend that section 120-133 does not

waive their right to invoke the attorney-client privilege or work-product doctrine for

communications and documents made before enactment of the redistricting plans.

The parties agree that the attorney-client privilege and work-product doctrine apply

to relevant post-enactment communications and documents.

This matter presents a question of statutory interpretation, which we review

de novo. In re Vogler Realty, Inc., __ N.C. __, __, 722 S.E.2d 459, 462 (2012). “The

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DICKSON V. RUCHO

Opinion of the Court

primary rule of construction of a statute is to ascertain the intent of the legislature

and to carry out such intention to the fullest extent.” Burgess v. Your House of

Raleigh, Inc., 326 N.C. 205, 209, 388 S.E.2d 134, 137 (1990). When there is no

reference whatsoever to the attorney-client privilege in the statute, a clear and

unambiguous waiver is absent, meaning the common law right to assert the

privilege prevails. See N.C.G.S. § 4-1 (2011) (“All such parts of the common law as

were heretofore in force and use within this State . . . and which has not been

otherwise provided for in whole or in part, not abrogated, repealed or become

obsolete, are hereby declared to be in full force within this State.”). After carefully

reviewing the parties’ arguments, we conclude that section 120-133 cannot

reasonably be construed to waive these common law doctrines because the section

in no way mentions, let alone explicitly waives, the attorney-client privilege or

work-product doctrine.

“The attorney-client privilege is one of the oldest recognized privileges for

confidential communications. The privilege is intended to encourage full and frank

communication between attorneys and their clients and thereby promote broader

public interests in the observance of law and the administration of justice.” Swidler

& Berlin v. United States, 524 U.S. 399, 403, 141 L. Ed. 2d 379, 384 (1998) (citations

and quotation marks omitted). As such, “[t]he public’s interest in protecting the

attorney-client privilege is no trivial consideration . . . . The privilege has its

foundation in the common law and can be traced back to the sixteenth century.” In

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re Miller, 357 N.C. 316, 328, 584 S.E.2d 772, 782 (2003) (citations omitted).

Although the privilege “is well-grounded in the jurisprudence of this State,” id.; see

also N.C.G.S. § 4-1, we emphasize that the privilege “has not been statutorily

codified,” in re Miller, 357 N.C. at 329, 584 S.E.2d at 783.

“[W]hen the relationship of attorney and client exists, all confidential

communications made by the client to his attorney on the faith of such relationship

are privileged and may not be disclosed.” Id. at 328, 584 S.E.2d at 782 (citations

and quotation marks omitted). Given that the privilege advances complete and

frank communications, it “encourag[es] clients to make the fullest disclosure to their

attorneys [and] enables the latter to act more effectively, justly and expeditiously.”

Id. at 329, 584 S.E.2d at 782 (citations and quotation marks omitted).

We are unaware of—and neither plaintiffs nor defendants have identified—

any decisions by this Court fully abrogating the attorney-client privilege in any

context as plaintiffs advocate here; however, the General Assembly itself has

abrogated the attorney-client privilege on three occasions. In each instance the

waiver has been clear and unambiguous. See N.C.G.S. § 15A-1415(e) (2011) (stating

that a criminal defendant who alleges ineffective assistance of prior counsel “shall

be deemed to waive the attorney-client privilege” to the extent that prior counsel

“reasonably believes” revealing these privileged communications is “necessary to

defend against the allegations”); id. § 78C-97(c) (2011) (stating that a student-

athlete who enters into a representation agreement with an agent “will be deemed

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Opinion of the Court

to waive the attorney-client privilege” regarding certain records retained by the

agent); id. § 127A-62(h)(3) (2011) (stating that a defendant who alleges ineffective

assistance of prior counsel in court-martial proceedings “shall be deemed to waive

the attorney-client privilege” to the extent that prior counsel reasonably believes

revealing these privileged communications is “necessary to defend against the

allegations”).3

The text of section 120-133 includes no such clear and unambiguous waiver of

the attorney-client privilege or work-product doctrine. Instead, section 120-133

states only:

Notwithstanding any other provision of law, all

drafting and information requests to legislative employees

and documents prepared by legislative employees for

legislators concerning redistricting the North Carolina

General Assembly or the Congressional Districts are no

longer confidential and become public records upon the

act establishing the relevant district plan becoming law.

Id. § 120-133. There is no reference in this section to either the attorney-client

privilege or work-product doctrine. “[I]t is always presumed that the Legislature

3 In two additional instances the General Assembly has addressed the waiver of the

attorney-client privilege more obliquely but nevertheless without ambiguity. In section 7A-

450(d) the privilege is waived for indigent persons to the extent that if the “person . . .

becomes financially able to secure legal representation and provide other necessary

expenses of representation, he must inform the counsel appointed by the court to represent

him of that fact . . . . and counsel must promptly inform the court of that information.”

N.C.G.S. § 7A-450(d) (2011). Such information is specifically excluded by the statute from

the protection of the privilege. Id. In addition, section 44-50.1(a) mandates that “[if] the

person distributing settlement or judgment proceeds [from a personal injury action] is an

attorney, the accounting [of disbursements] required by . . . section [44-50.1] is not a breach

of the attorney-client privilege.” N.C.G.S. § 44-50.1(a) (2011).

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Opinion of the Court

acted with full knowledge of prior and existing law.” Ridge Cmty. Investors, Inc. v.

Berry, 293 N.C. 688, 695, 239 S.E.2d 566, 570 (1977). Necessarily, this presumption

must include the common law. See N.C.G.S. § 4-1. In contrast, the General

Assembly has set a clear limitation on the attorney-client privilege in the Public

Records Act. N.C.G.S. § 132-1.1(a) (2011). There the legislature placed a three-year

restriction on the length of time that a confidential communication between an

attorney and a public client—such as “any public board, council, commission or

other governmental body of the State or of any county, municipality or other

political subdivision or unit of government”—may remain unavailable for public

inspection. Id.

Plaintiffs argue that the phrase “[n]otwithstanding any other provision of

law” in section 120-133 waives “any privileges” regarding redistricting legislation.

Nonetheless, we begin by observing that the statute does not define the term

“provision” in Article 17. “In the absence of a contextual definition, courts may look

to dictionaries to determine the ordinary meaning of words within a statute.”

Perkins v. Ark. Trucking Servs., Inc., 351 N.C. 634, 638, 528 S.E.2d 902, 904 (2000).

Black’s Law Dictionary defines “provision” as “[a] clause in a statute, contract, or

other legal instrument.” Black’s Law Dictionary 1345 (9th ed. 2009) (emphasis

added). This definition suggests that the General Assembly’s use of the word

“provision” was meant to refer only to other statutory clauses and not to common

law doctrines such as the attorney-client privilege and work-product doctrine.

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Plaintiffs’ counsel conceded as much during oral argument. This interpretation is

bolstered by the fact that the General Assembly repeatedly has demonstrated that

it knows how to be explicit when it intends to repeal or amend the common law.

See, e.g., N.C.G.S. § 48A-1 (2011) (“The common-law definition of minor insofar as it

pertains to the age of the minor is hereby repealed and abrogated.”); id. § 50-6

(2011) (“Notwithstanding the provisions of G.S. 50-11, or of the common law, a

divorce under this section shall not affect the rights of a dependent spouse with

respect to alimony which have been asserted in the action or any other pending

action.”); id § 160A-626(b) (2011) (“The Authority may contract with any railroad to

allocate financial responsibility for passenger rail services claims, . . .

notwithstanding any other statutory, common law, public policy, or other

prohibition against same . . . .”); see also id. § 36C-8-816.1(g) (2011) (recognizing

that the phrase “provision of law” does not refer to the common law by stating:

“Nothing in this section shall be construed to abridge the right of any trustee who

has a power to appoint property in further trust that arises under the terms of the

original trust or under any other section of this Chapter or under another provision

of law or under common law.”).

We read section 120-133 in the context of the entire article in which it

appears. See In re D.S., 364 N.C. 184, 187, 694 S.E.2d 758, 760 (2010). Doing so

militates against the conclusion that the General Assembly intended to waive its

attorney-client privilege and work-product doctrine. As we have noted in other

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cases, the title of an act may be an indication of legislative intent. See, e.g., State v.

Flowers, 318 N.C. 208, 215, 347 S.E.2d 773, 778 (1986) (relying on the title of

N.C.G.S. § 15A-136 to support the Court’s conclusion that the statute addresses a

matter of venue). Section 120-133 appears in Chapter 120, Article 17 of the General

Statutes and is entitled “Confidentiality of Legislative Communications.” In light of

this title, we may reasonably infer that Article 17 was intended to govern a specific

class of communications. Indeed, a North Carolina House of Representatives

Resolution introduced in 1983, shortly before Article 17 was enacted, requested a

Legislative Research Commission study pertaining to confidentiality of “legislative

communications.” See H.R. Res. 1461, 1983 Gen. Assemb., Reg. Sess. (N.C. 1983).

As such, Article 17 governs an important aspect of the General Assembly’s internal

operations. In contrast to the Public Records Act, which was designed to disclose

documentary material of State government agencies or subdivisions to facilitate

public inspection and examination, Article 17 was enacted to protect legislative

communications from disclosure so as to preserve the integrity of the legislative

process. Compare N.C.G.S. § 132-1(b) (2011) (stating that “public records and

public information . . . are the property of the people” and “it is the policy of this

State that the people may obtain copies of their public records and public

information”) with id. §§ 120-131, -131.1 (2011) (emphasizing that specified

legislative communications “are confidential” or “shall be kept confidential”). In

fact, according to a 1984 Legislative Research Commission report, Article 17 was

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Opinion of the Court

created to address concerns that the General Assembly’s common law legislative

privilege could be eroded by an expansive reading of the Public Records Act. See

N.C. Legislative Research Comm’n, Confidentiality of Legislative Communications,

1983 Gen. Assemb. (1984 Reg. Sess.) 2 (June 7, 1984) (“[S]ince its enactment in

1935, the public records law had been read much more broadly than originally

intended.”). We also note that the General Assembly’s specific use of the term

“confidential” thirteen times throughout Article 17, see, e.g., N.C.G.S. § 120-130(a), -

131(a), -131.1(a), (a1) (2011) (stating, for example, “is confidential,” “are

confidential,” and “shall be kept confidential”), demonstrates that Article 17 was

enacted to shield legislative communications from disclosure.

Operationally, Article 17 places a veil of confidentiality over several specific

legislative communications: (1) drafting and information requests made to

legislative employees by legislators, N.C.G.S. § 120-130 (2011); (2) documents

produced by legislative employees upon the request of legislators, id. § 120-131

(2011); and (3) requests from legislative employees to employees in other State

agencies for assistance in the preparation of fiscal notes and evaluation reports, id.

§ 120-131.1 (2011). Article 17 also prohibits legislative employees from disclosing

confidential information obtained in the legislative context. Id. § 120-132 (2011).

Moreover, Article 17 expressly states that these legislative communications are not

public records pursuant to the Public Records Act. See id. §§ 120-130(d), -131(b), -

131.1(a1).

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Opinion of the Court

Section 120-133 provides a narrow exception to the protections generally

established in Article 17 to help ensure the State’s compliance with the

requirements of the Voting Rights Act. See 42 U.S.C. § 1973c (2012) (outlining the

preclearance procedure); 28 C.F.R. § 51.27 (2012) (listing the “[r]equired contents”

of a “submitted change affecting voting”); id. § 51.28 (2012) (listing supplemental

contents for submissions). In effect, section 120-133 permits “all drafting and

information requests to legislative employees and documents prepared by

legislative employees for legislators concerning redistricting” to become “public

records” for this limited purpose. N.C.G.S. § 120-133. We observe that, in contrast

to the other sections of Article 17, section 120-133 makes no reference to the Public

Records Act. We presume that the General Assembly “carefully chose each word

used” in drafting the legislation. N.C. Dep’t of Corr. v. N.C. Med. Bd., 363 N.C. 189,

201, 675 S.E.2d 641, 649 (2009). The General Assembly could have referenced the

Public Records Act in section 120-133, but chose not to do so. This omission

demonstrates that the General Assembly intended for its redistricting

communications to be made public in accordance with the narrow scope of section

120-133, rather than the broad scope of the Public Records Act. Given the limited

purpose of section 120-133 as read within the full context of Article 17, we can

discern no clear legislative intent by the General Assembly to waive the common

law attorney-client privilege or work-product doctrine.

As a part of our analysis of section 120-133, we must also emphasize that this

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Opinion of the Court

Court operates within a “tripartite system of government.” Bacon v. Lee, 353 N.C.

696, 712, 549 S.E.2d 840, 851, cert. denied, 533 U.S. 975, 150 L. Ed. 2d 804 (2001).

“The legislative, executive, and supreme judicial powers of the State government

shall be forever separate and distinct from each other.” N.C. Const. art. I, § 6.

“[T]he principal function of the separation of powers[ ] . . . is to maintain the

tripartite structure of the . . . Government—and thereby protect individual liberty—

by providing a safeguard against the encroachment or aggrandizement of one

branch at the expense of the other.” Bacon, 353 N.C. at 715, 549 S.E.2d at 853

(alterations in original) (quotation marks omitted). As such, “the fundamental law

guarantees to the Legislature the inherent right to discharge its functions and to

regulate its internal concerns in accordance with law without interference by any

other department of the government.” Person v. Bd. of State Tax Comm’rs, 184 N.C.

499, 503, 115 S.E. 336, 339 (1922). “All power which is not expressly limited by the

people in our State Constitution remains with the people, and an act of the people

through their representatives in the legislature is valid unless prohibited by that

Constitution.” State ex rel. Martin v. Preston, 325 N.C. 438, 448-49, 385 S.E.2d 473,

478 (1989). The General Assembly can waive its common law rights in addition to

its statutory rights, and whether it chooses to do so is not within the purview of this

Court. Nevertheless, we will not lightly assume such a waiver by a coordinate

branch of government. Therefore, without a clear and unambiguous statement by

the General Assembly that it intends to waive its attorney-client privilege or work-

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Opinion of the Court

product doctrine, we are compelled to exercise judicial restraint and defer to the

General Assembly’s judgment regarding the scope of its legislative confidentiality.

Such a clear and unambiguous statement is notably absent from section 120-133.

Accordingly, we must conclude that the General Assembly did not intend to waive

the attorney-client privilege or work-product doctrine with respect to redistricting

litigation when it enacted section 120-133.

For the foregoing reasons, we reverse the three-judge panel’s conclusion of

law that the General Assembly waived the attorney-client privilege and work-

product doctrine for pre-enactment communications and documents through section

120-133; however, we affirm the panel’s conclusion that the attorney-client privilege

and work-product doctrine apply to relevant post-enactment communications and

documents. This case is remanded to the three-judge panel for additional

proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; and REMANDED.

Justice BEASLEY did not participate in the consideration or decision of this

case.

Justice HUDSON dissenting.

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DICKSON V. RUCHO

HUDSON, J., dissenting

Because I am concerned that in its opinion the majority has abandoned the

principle that confidentiality is the basis for attorney-client privilege, I respectfully

dissent. While the majority’s extensive analysis of the history and purpose of the

attorney-client privilege and Article 17 is interesting, it fails to address the

fundamental premise that the attorney-client privilege applies only to confidential

communications. In N.C.G.S. § 120-133, the General Assembly has explicitly

stripped confidentiality from redistricting communications upon enactment of the

redistricting law. For many years, our law has established that without

confidentiality, no attorney-client privilege can apply.

It is well established that the attorney-client privilege “protects confidential

communications made by a client to his attorney.” State v. Fair, 354 N.C. 131, 168,

557 S.E.2d 500, 525 (2001) (emphasis added) (citation omitted), cert. denied, 535

U.S. 1114, 122 S. Ct. 2332 (2002). Importantly, “the attorney-client privilege covers

only confidential communications.” State v. Brown, 327 N.C. 1, 20, 394 S.E.2d 434,

446 (1990) (emphasis added) (citation omitted). Even communications between

attorney and client made in public or in front of others can lose their confidential

nature and thus the protection of the privilege. See State v. Van Landingham, 283

N.C. 589, 602, 197 S.E.2d 539, 547 (1973). Confidentiality is a prerequisite to

application of the attorney-client privilege—information that is not confidential

simply is not subject to the privilege.

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DICKSON V. RUCHO

HUDSON, J., dissenting

Defendants seek to protect much of their legislative redistricting work from

public scrutiny under the cloak of attorney-client privilege; however, the relevant

statutory language could not be clearer in indicating that the privilege is

inapplicable here, making waiver irrelevant. The pertinent language of the statute

reads: “Notwithstanding any other provision of law, all drafting and information

requests to legislative employees and documents prepared by legislative employees

for legislators concerning redistricting . . . are no longer confidential and become

public records upon the act establishing the relevant district plan becoming law.”

N.C.G.S. § 120-133 (2011) (emphasis added).

There is nothing unclear or ambiguous about the statutory phrase “are no

longer confidential.” This Court has long held that “when the language of a statute

is clear and unambiguous, there is no room for judicial construction, and the courts

must give it its plain and definite meaning.” Lanvale Props., LLC v. Cnty. of

Cabarrus, ___ N.C. ___, ___, 731 S.E.2d 800, 809-10 (2012) (citations and quotation

marks omitted). The unequivocal statutory language here can be summed up quite

simply: as of 7 November 2011, the dates that this redistricting plan finally became

law, all prior “drafting and information requests” and “documents” concerning

redistricting ceased to be confidential. Therefore, these requests and documents

cannot be covered by the attorney-client privilege, which applies only to confidential

communications. This case does not concern a broad waiver of various privileges—

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HUDSON, J., dissenting

the nonconfidential communications in question are simply beyond the protection of

the attorney-client privilege, even if they once were protected.

The majority spends its entire opinion in a confusing and unnecessary

attempt to prove a negative—that the phrase “attorney-client privilege” does not

appear in the text of the statute and therefore, the privilege cannot be considered

waived or abrogated thereby. Meanwhile, the majority never addresses, let alone

explains, how communications that are “no longer confidential” (a phrase that

actually is in the statutory text) can be covered by a common law privilege that has

never applied to nonconfidential communications. The only way to reach this

conclusion is by suggesting that the word “confidential” in the statute means

something other than “confidential.” And as the majority points out, we presume

that the legislature “carefully chose each word used,” N.C. Dep’t of Corr. v. N.C.

Med. Bd., 363 N.C. 189, 201, 675 S.E.2d 641, 649 (2009), and “that the Legislature

acted with full knowledge of prior and existing law,” Ridge Cmty. Investors, Inc. v.

Berry, 293 N.C. 688, 695, 239 S.E.2d 566, 570 (1977). Therefore, we must presume

that the General Assembly deliberately used the words “are no longer confidential”

with full knowledge that a requisite element of the common law attorney-client

privilege is that the communications are, and remain, confidential.4

4 If, as the majority suggests, section 120-133 was written as a “narrow exception”

solely intended to “ensure compliance with the requirements of the Voting Rights Act,”

surely the General Assembly could and would have said so. Courts “are without power to

interpolate, or superimpose, provisions and limitations not contained [in the statute].”

State v. Davis, 364 N.C. 297, 302, 698 S.E.2d 65, 68 (2010) (citations omitted).

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DICKSON V. RUCHO

HUDSON, J., dissenting

Even the authorities cited by the majority repeatedly and explicitly refer to

confidentiality as the basis for this privilege. See Swidler & Berlin v. United States,

524 U.S. 399, 403, 118 S. Ct. 2081, 2084 (1998) (noting that “[t]he attorney-client

privilege is one of the oldest recognized privileges for confidential communications”);

In re Miller, 357 N.C. 316, 328, 584 S.E.2d 772, 782 (2003) (stating that “this

protection for confidential communications is one of the oldest and most revered in

law”); N.C.G.S. §§ 120-129 to -139 (2011) (titled “Confidentiality of Legislative

Communications”); N.C.G.S. § 132-1.1(a) (2011) (exempting certain “Confidential

Communications” from the definition of “public records” for three years).

In this opinion the majority has either repudiated the long-standing rule that

only confidential communications are entitled to the protection of the attorney-

client privilege, which is inconsistent with all prior authority; or, it has rewritten

N.C.G.S. § 120-133 to say, instead of “are no longer confidential,” that redistricting

communications “continue to be confidential,” which is inconsistent with our role as

a reviewing court rather than a legislative body. As a result, the majority has

unnecessarily muddled the law in this area to reach its result, and made any future

cases in this area of law unpredictable.

Because I conclude that the attorney-client privilege does not apply here, I

find it necessary to briefly analyze what the statute renders nonconfidential—

“drafting and information requests” and “documents” “concerning redistricting.”

N.C.G.S. § 120-133. While the statute does not define “drafting and information

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HUDSON, J., dissenting

requests,” it does provide a very specific and quite broad definition of “documents.”

For the purposes of this statute, “document” means “all records, papers, letters,

maps, books, photographs, films, sound recordings, magnetic or other tapes,

electronic data-processing records, artifacts, or other documentary material

regardless of physical form or characteristics.” Id. § 120-129(1) (2011). While the

statute does not explicitly use the term “e-mail,” I conclude that this statutory

definition that includes “letters . . . regardless of physical form or characteristics”

necessarily includes electronic mail, which is what plaintiffs seek to discover here.

Moreover, the statute expressly applies to outside counsel for members of the

General Assembly. The definition of “[l]egislative employee” expressly includes

“counsel to members and committees of either house of the General Assembly . . .

who are paid by State funds.” Id. § 120-129(2) (2011).

In sum, the plain and unambiguous terms of the statute provide that all

documents (including e-mails) concerning redistricting, even those between

legislators and outside counsel, ceased to be confidential upon final enactment of

the law on 7 November 2011. Because N.C.G.S. § 120-133 renders these

communications “no longer confidential” upon enactment of the districts (and

because this litigation commenced after enactment of the law), the attorney-client

privilege cannot apply.

While the majority offers no analysis of the work-product doctrine, I see no

reason to believe that N.C.G.S. § 120-133 has any effect on the application of that

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HUDSON, J., dissenting

doctrine here because work-product doctrine is not premised upon the

confidentiality of communications. Work-product doctrine is “designed to protect

the mental processes of the attorney,” specifically his “impressions, opinions, and

conclusions or his legal theories and strategies.” State v. Hardy, 293 N.C. 105, 126,

235 S.E.2d 828, 841 (1977). This Court has stated that work-product doctrine is

“not a privilege,” but rather a “qualified immunity” that “extends to all materials

prepared in anticipation of litigation or for trial.” Willis v. Duke Power Co., 291

N.C. 19, 35, 229 S.E.2d 191, 201 (1976) (citation, emphasis, and quotation marks

omitted).5 It is important not to overstate this protection, however, as the phrase

“prepared in anticipation of litigation” does not mean “prepared while anticipating

litigation.” The fact that redistricting litigation is virtually inevitable every ten

years does not cloak every redistricting document with work-product protection.

While work-product protection is broad for those materials prepared for litigation, it

does not extend to any and all materials prepared in a situation in which litigation

is likely. As the Fourth Circuit has stated, only those materials prepared

specifically “because of” litigation are protected, not those that are created “with the

general possibility of litigation in mind.” Nat’l Union Fire Ins. Co. v. Murray Sheet

Metal Co., 967 F.2d 980, 984 (4th Cir. 1992).

5Other cases have referred to the doctrine as a “qualified privilege” while retaining

the parameters of the protection described in Willis. E.g. Hardy, 293 N.C. at 126, 235

S.E.2d at 840.

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DICKSON V. RUCHO

HUDSON, J., dissenting

In addition, “[m]aterials prepared in the ordinary course of business are not

protected.” Willis, 291 N.C. at 35, 229 S.E.2d at 201 (citation omitted); See Nat’l

Union Fire Ins., 967 F.2d at 984. Maps, tables, plans, and other materials and

discussions related to the actual writing of the redistricting legislation are obviously

prepared in the ordinary course of business of the legislature. Even an analysis of

the constitutional framework for redistricting would seem to me to be within the

ordinary course of a legislature’s fulfilling its constitutional responsibility to rewrite

the districting legislation. Thus, any documents that relate to the substance of the

redistricting legislation (decisions on where to draw district lines, analysis of census

data, etc.) should not be covered by work-product protection. Communications

regarding strategic preparation for preclearance litigation, for example, might well

be covered, and the trial court can address such matters as document production

moves forward.

Finally, the work-product doctrine gives only a “qualified immunity,” not an

absolute shield. Willis, 291 N.C. at 35, 229 S.E.2d at 201. “Upon a showing of

‘substantial need’ and ‘undue hardship’ involved in obtaining the substantial

equivalent otherwise, plaintiff may be allowed discovery.” Id. at 36, 229 S.E.2d at

201. Because the materials necessary to show whether the legislature violated the

basic rules of redistricting as set forth by the U.S. Supreme Court may well lie

among those documents now claimed as privileged, plaintiffs may have a reasonable

claim to an exception to work-product protection. This determination should be left

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HUDSON, J., dissenting

to the trial court. Here, as in Willis, “a large portion of the materials in defendant’s

. . . files may be subject to the trial preparation immunity. The record is insufficient

for us to determine the extent to which this may be the case.” Id.

In its order here, the trial court ruled that N.C.G.S. § 120-133 requires

defendants to produce certain material pertaining to the redistricting process

without regard to attorney-client privilege, legislative privilege, or work-product

doctrine. The order states that “because the record before the Court at this time

does not permit the Court to rule with any specificity which documents might be

excluded from the scope of § 120-133 . . . the Court can only suggest that the parties

consider and agree among themselves a reasonable means of identifying categories

of documents that ought to remain confidential.” In my opinion, the trial court

erred in leaving responsibility for these determinations entirely in the hands of the

parties; the trial court should conduct an in camera review and resolve any issues

on which the parties cannot agree. See In re Miller, 357 N.C. at 336, 584 S.E.2d at

787 (stating that “the responsibility of determining whether the attorney-client

privilege applies belongs to the trial court”). To the extent there is any argument

about whether a particular communication meets the statutory definition of

“document” or whether it is “concerning redistricting,” the only appropriate remedy

consistent with the rules of Civil Procedure and prior case law is an in camera

review by the trial court. “If . . . there is disagreement about whether the order

covers certain questionable documents or communications, the superior court must

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HUDSON, J., dissenting

conduct an in camera review to determine the extent of the order as to those

documents or communications.” State v. Buckner, 351 N.C. 401, 411-12, 527 S.E.2d

307, 314 (2000). Here, it is the trial court’s responsibility to determine whether

disputed materials are “documents” within the meaning of the statute, whether

they are “concerning redistricting,”6 and whether work-product doctrine protects

such documents (or portions thereof) nonetheless. I would so hold and remand for

the trial court to proceed accordingly.

In conclusion, the majority has analyzed at length an issue that is not really

presented here while failing to address the substantial issues presented on appeal.

I would hold that documents listed in N.C.G.S. § 120-133 are not subject to

attorney-client privilege because, following enactment of the redistricting legislation

on 7 November 2011, those documents are not confidential. I would reverse the

trial court’s order insofar as it found a broad waiver of privilege and remand for in

camera review of any and all disputed documents. Those that relate to the

legislative process of redistricting and were confidential before enactment should be

open to discovery. Should defendants assert work-product protection of any

material, any such claims should also be subject to in camera review and a ruling by

the trial court.

For the reasons stated here, I respectfully dissent.

6 Obviously, any materials that are not “documents” or are not “concerning

redistricting” would still be eligible for attorney-client privilege if they meet the common

law requirements of that privilege.

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