Peter Lee v. City of Los Angeles

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETER LEE, individual; MIRI PARK, No. 15-55478

individual; HO SAM PARK,

individual; GENEY KIM, individual; D.C. No.

YONAH HONG, individual, 2:12-cv-06618-

Plaintiffs-Appellants, CBM-JCG

v.

CITY OF LOS ANGELES,

Defendant-Appellee.

STANLEY HAVERILAND, individual; No. 15-55502

THEODORE THOMAS, individual;

HORACE PENNMAN, individual; JULIA D.C. No.

SIMMONS, individual; HEATHER 2:12-cv-06618-

PRESHA, individual; SALLY STEIN, CBM-JCG

individual,

Plaintiffs-Appellants,

OPINION

v.

CITY OF LOS ANGELES,

Defendant-Appellee.

2 LEE V. CITY OF LOS ANGELES

Appeal from the United States District Court

for the Central District of California

Consuelo B. Marshall, Senior District Judge, Presiding

Argued and Submitted January 9, 2017

Pasadena, California

Filed November 19, 2018

Before: Jacqueline H. Nguyen * and Paul J. Watford,

Circuit Judges, and Mark W. Bennett, ** District Judge.

Opinion by Judge Nguyen

SUMMARY ***

Civil Rights

The panel affirmed the district court’s protective order

and its order granting summary judgment in favor of the City

of Los Angeles in an action alleging that the City was

motivated predominantly by racial considerations in

drawing the boundaries of its current Council Districts for its

2012 redistricting ordinance.

*

Judge Nguyen was drawn to replace Judge Reinhardt on the panel

following his death. Judge Nguyen has read the briefs, reviewed the

record, and listened to the oral argument.

**

The Honorable Mark W. Bennett, United States District Judge for

the Northern District of Iowa, sitting by designation.

***

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

LEE V. CITY OF LOS ANGELES 3

The panel held that, although the evidence showed that

race was a motivation in drawing Council District 10,

plaintiffs failed to raise a genuine issue of material fact as to

whether race was the predominant factor motivating the

legislature’s decision as to the Council Districts’ final

boundaries. The panel held that even viewed in the light

most favorable to plaintiffs, the record failed to show that the

successive boundary amendments were driven

predominantly by racial considerations. Instead, the panel

held that the City Council Redistricting Commission’s final

report and recommendations showed that, overall, the

Commission sought to rebalance the populations in each

Council District, while preserving communities and unifying

as many Neighborhood Councils as possible in a single

Council District. The panel further held that the

circumstantial evidence, demographic data and expert

analyses failed to create a genuine dispute on racial

predominance in Council District 10.

The panel agreed with the district court that legislative

privilege protected local officials from being deposed and

questioned regarding any legislative acts, motivations, or

deliberations pertaining to the 2012 redistricting ordinance.

The panel held that the factual record in this case fell short

of justifying such a “substantial intrusion” into the

legislative process.

COUNSEL

Rex S. Heinke (argued), John A. Karaczynski, Hyongsoon

Kim, and Patrick E. Murray, Akin Gump Strauss Hauer &

Feld LLP, Los Angeles, California; Ekwan E. Rhow, Bird

Marella Boxer Wolpert Nessim Drooks Lincenberg & Rhow

4 LEE V. CITY OF LOS ANGELES

P.C.; for Plaintiffs-Appellants Peter Lee, Miri Park, Ho Sam

Park, Geney Kim, and Yonah Hong.

Leo James Terrell, Law Offices of Leo James Terrell, Los

Angeles, California, for Plaintiffs-Appellants Stanley

Haveriland, Theodore Thomas, Horace Pennman, Julia

Simmons, Heather Presha, and Sally Stein.

Robin B. Johansen (argued) and Thomas A. Willis, Remcho

Johansen & Purcell LLP, Oakland, California; Harit U.

Trivedi, Deputy City Attorney; Valerie L. Flores, Managing

Assistant City Attorney; Michael N. Feuer, City Attorney;

Office of the City Attorney, Los Angeles, California; for

Defendant-Appellee.

OPINION

NGUYEN, Circuit Judge:

At least once every ten years, the City of Los Angeles

(the “City”) must redraw the boundaries of its Council

Districts in accordance with the requirements of its City

Charter. Unsurprisingly, this decennial exercise can ignite

intense debate and political maneuvering. These debates

often center around “communities of interest,” which are

frequently but not exclusively defined along racial or ethnic

lines, and which the City must take into account in its

redistricting. In Los Angeles, certain communities have

been divided across two or more Council Districts for

decades even when they have been historically concentrated

in certain areas of the City. Here, for example, Koreatown

in Los Angeles is the largest Korean community in the

United States, but, because it has been split into multiple

LEE V. CITY OF LOS ANGELES 5

City Council districts, the community has encountered

“difficulty getting elected officials to address [its] needs.”

Even as the redistricting process endeavors to respect the

integrity of these communities of interest, the City has

recognized that it is “inevitable . . . that some interests will

be advanced more than others by the choice of a particular

district configuration.” The City Council (and the

Commission charged with advising it) must make these

tough calls, recognizing that not all communities will be

satisfied with the outcome. While the City Council may

consider the passionate advocacy of these local

communities, they must ultimately adhere to the strictures of

the United States and California Constitutions and the City

Charter. Thus, the City Council generally may not act with

race as a predominant motivating factor. Cooper v. Harris,

137 S. Ct. 1455, 1463 (2017). Doing so would be

presumptively unlawful under the Equal Protection Clause

of the Fourteenth Amendment, unless the City can meet the

demanding burden of showing that such action was narrowly

tailored to serve a compelling interest. Id. at 1464.

In this appeal, we must decide whether Plaintiffs have

presented sufficient evidence to survive summary judgment

on the claim that the City was motivated predominantly by

racial considerations in drawing its current Council Districts.

That is, we consider whether the City primarily sought to

maximize the voting power of certain racial groups over

others when drawing Council Districts and subordinated all

other considerations to that priority. On this record, we

conclude that Plaintiffs have failed to raise a genuine issue

of material fact on whether racial considerations

predominated the City’s redistricting process. We further

agree with the district court that legislative privilege protects

local officials from being deposed. We therefore affirm the

6 LEE V. CITY OF LOS ANGELES

district court’s protective order and its order granting

summary judgment in favor of the City.

I. Background

A. Factual Background

The Los Angeles City Council Redistricting

Commission was created after Los Angeles voters adopted

the current Los Angeles City Charter in 1999. The purpose

of the Commission is to advise the Los Angeles City Council

on the drawing of new Council District (alternatively, “CD”)

boundaries. These boundaries are drawn every ten years

after each federal census with the goal of ensuring that each

Council District contain “as nearly as practicable, equal

portions of the total population of the City” as shown in the

most recent census data. To the extent feasible, the

boundaries are to be drawn to “keep neighborhoods and

communities intact, utilize natural boundaries or street lines,

and be geographically compact.” In accordance with the

City Charter, a Commission was appointed to propose new

boundaries after the 2010 census. Since the previous

redistricting in 2002, changes in population had caused

imbalances across Council Districts that required

rebalancing.

1. The Commission’s Initial Steps

The Commission began the redistricting process by

holding several preliminary meetings between September

27, 2011 and December 5, 2011. At these initial meetings,

the Commission was presented with the existing Council

District boundaries along with population and demographic

data from the 2010 Census. The Commission then held a

series of public hearings throughout the City between

December 5, 2011, and January 10, 2012. One of the issues

LEE V. CITY OF LOS ANGELES 7

raised at these hearings was whether the Wilshire Center-

Koreatown Neighborhood Council (“Koreatown”) should

continue to be split across multiple Council Districts or

united into a single Council District. At the time, Koreatown

fell within at least three Council Districts: CDs 4, 10, and 13.

The majority of public participants at the hearings spoke in

favor of joining Koreatown into a single Council District.

On January 11, 2012, the Commission held a meeting at

which the Chair of the Commission proposed dividing the

Commission into three ad hoc committees corresponding to

three regions: (1) the San Fernando Valley; (2) West and

Southwest Los Angeles; and (3) East and Southeast Los

Angeles. Each committee would meet on its own and be

responsible for drawing an initial map of the Council

Districts within its assigned region. The Commission voted

to approve this proposal.

2. The Ad Hoc Committees Draw the Initial Council

District Boundaries

The committee assigned to West and Southwest Los

Angeles (the “West/Southwest Committee”) was

responsible for drawing five Council Districts, including CD

10. CD 10 is west of downtown Los Angeles and split in

half by the I-10 (Santa Monica Freeway). At the time of the

2012 redistricting, the 2010 Census data indicated that CD

10 was about 4.9% below its required population size. Its

registered voters were 49.1% African American, and its

Citizen Voting Age Population (“CVAP”) percentages were

36.8% African American, 28.2% Latino, 17.1% Asian, and

15.9% White.

At the West/Southwest Committee’s first meeting,

Commissioner Chris Ellison, who had been appointed to the

Commission by City Council President Herb Wesson (CD

8 LEE V. CITY OF LOS ANGELES

10’s councilmember), prepared his proposed boundaries for

CD 10. These boundaries encompassed majority African

American neighborhoods that had previously been in CD 8,

such as Leimert Park and the “Dons” portion of Baldwin

Hills. They also excluded from CD 10 a substantial portion

of the “Palms” neighborhood (which had a minority of

African American residents) and split Koreatown’s

population between CD 10 and CD 13. In presenting his

proposed boundaries, Ellison stated that he sought to

increase the percentage of registered African American

voters in CD 10 to over 50%. He later reiterated this

intention in an email:

Being a historical African American

opportunity district, we found it necessary to

increase the AA population. We attempted to

protect the historical African American

incumbents in this district by increasing the

black voter registration percentage and

CVAP #s accordingly. As you can discern on

the attachment, we were able to increase the

numbers to 50.12% and 42.8%, respectively.

This was a significant increase in black voters

in CD 10 which would protect and assist in

keeping CD 10 a predominantly African-

American opportunity district.

He continued:

We agreed to move the western portion of CD

10 (Palms) into CD 5 and 11. This area is

approximately 50% white voter registration

or CVAP, 20% Latino CVAP and

approximately 11% AA voter registration.

This move would allow CD 10 to divest itself

LEE V. CITY OF LOS ANGELES 9

of this diverse populated area, and increase

the AA population to the South.

After Ellison’s presentation, other Commissioners

proposed alternative boundaries. Ellison’s proposed

boundaries and the boundaries proposed by Commissioner

Helen B. Kim received the most votes from the

West/Southwest Committee with three votes each, but

neither received a majority. Because both Ellison’s and

Kim’s proposals received the same number of votes, the

West/Southwest Committee should have submitted both

proposals to a larger “Dispute Resolution” subcommittee to

“stitch[] together” a compromise from the various proposals.

However, this did not occur, and instead only Ellison’s

proposal was presented to the Dispute Resolution

subcommittee. 1 As a result, the West/Southwest Committee

ultimately presented only Ellison’s proposal to the full

Commission for approval.

3. The Commission Considers the Proposed Boundaries

Although the West/Southwest Committee formally

presented Ellison’s proposal to the Commission,

Commissioner Kim presented an alternative set of

boundaries to the Commission that would have placed

Koreatown entirely within CD 13. The Commission rejected

1

The record does not provide a clear explanation as to why Ellison’s

map, but not Kim’s map, moved forward: whether it was a result of

“suppression,” or, alternatively, a misunderstanding by the initial

Valley/West Dispute Resolution Committee that the Kim map had “not

gone through the proper process.” In any case, the record indicates that

once the first Dispute Resolution Committee had met to resolve

boundaries for the Valley/West region, those boundaries were effectively

“locked in” for the subsequent East/West Dispute Resolution

Committee.

10 LEE V. CITY OF LOS ANGELES

Kim’s proposal. Because it was the largest neighborhood in

Los Angeles, the Commission did not find it practical or

feasible to maintain Koreatown within a single Council

District without creating “major disruptions to other

communities and Council Districts throughout the City.”

Instead, the Commission incorporated Ellison’s proposal

into a complete draft Council District map, which it released

for public comment and review.

After considering the public feedback, the Commission

debated and approved 42 out of 80 proposed adjustments.

The Commission then placed these amended boundaries

before the public for another round of comment and review. 2

This led to yet another round of amendments wherein the

Commission approved 5 of 14 proposed adjustments. The

Commission then approved this “final” set of boundaries on

a 16–5 vote, which was forwarded to the City Council with

additional adjustments for the City Council to consider.

The Commission’s final proposal increased the African

American CVAP in CD 10 from 36.8% to 43.1%, and it

increased the percentage of African American registered

voters in CD 10 from 43.2% to 50.6%. The White CVAP in

CD 10 decreased from 15.6% to 11.1%, and the Asian

CVAP decreased from 17.1% to 16.3%.

4. The City Council Deliberates and Promulgates the Final

Council District Boundaries

After the City Council received the Commission’s final

proposal, it held three public hearings throughout the City to

2

Over the course of this entire process, the Commission held a total

of 22 public testimony hearings and 10 business meetings, which over

5,000 people attended and which produced over 6,500 pieces of written

and verbal testimony.

LEE V. CITY OF LOS ANGELES 11

further review and revise it. Based on these hearings, City

Council members ended up proposing 25 additional

adjustments to the Commission’s proposed boundaries. The

City’s Chief Legislative Analyst reviewed these proposed

changes along with the Commission’s original proposal and

recommended adopting the Commission’s proposed

boundaries with 18 of the 25 proposed adjustments.

According to the Legislative Analyst, adoption of these

18 adjustments would resolve concerns raised during the

public hearings.

On March 16, 2012, the City Council adopted the

Commission’s proposal with the 18 additional adjustments.

On June 20, 2012, the City Council passed the final

redistricting ordinance, which was signed and published two

days later. CD 10’s final boundaries increased African

American CVAP from 36.8% to 40.5%, and decreased

White CVAP from 15.9% to 12.3% and Asian CVAP from

17.1% to 16.3%.

Afterwards, Council President Wesson made the

following statements to the Baptist Ministers’ Conference in

July 2012:

One, it has been since November, so brothers

and sisters, it was me against twelve other

members on the Council. I had no backup. I

had no faction. And I did the very best I

could with what I had. And I was able to

protect the most important asset that we as

black people have. And that’s to make sure

that a minimum of two of the council peoples

will be black for the next thirty years.

We as African Americans make up only 9%

of the population. 9%. If we didn’t all live

12 LEE V. CITY OF LOS ANGELES

clustered together, we would not have one

council district. Not one. The Asians have

16% of the population. They don’t have one

district. Why? Because they live all over. So

it’s important for us to harness our resources

because the most important asset again that

we have as people is to make sure we have a

black vote or two on that council. And that

was my priority.

B. Procedural History

On July 31, 2012, Peter Lee, Miri Park, Ho Sam Park,

Geney Kim, and Yonah Hong filed a complaint in federal

district court alleging that the City violated the U.S. and

California Constitutions and the City Charter in drawing CD

10. On February 26, 2013, Stanley Haveriland, Theodore

Thomas, Horace Pennman, Julia Simons, Heather Presha,

and Sally Stein filed a similar complaint in federal district

court bringing the same claims against the City for CD 10,

but also challenging the boundaries for CDs 8 and 9. The

district court consolidated these cases on August 21, 2013.

In the course of litigation, the City moved for a

protective order prohibiting Plaintiffs from questioning City

officials regarding any legislative acts, motivations, or

deliberations pertaining to the 2012 redistricting ordinance.

The City also sought to specifically prohibit Plaintiffs from

deposing Mayor Eric Garcetti, Council President Wesson,

City Councilmember Jose Huizar, and former City

Councilmember Jan Perry. The district court granted the

City’s motion and issued a protective order.

On February 24, 2015, the district court granted

summary judgment in favor of the City as to Plaintiffs’

federal constitutional claim and declined to exercise

LEE V. CITY OF LOS ANGELES 13

supplemental jurisdiction over their remaining claims, which

it dismissed without prejudice. Plaintiffs appeal both the

summary judgment order and the issuance of the protective

order. 3

II. Jurisdiction and Standard of Review

We have jurisdiction under 28 U.S.C. § 1291. We

review de novo a district court’s order granting summary

judgment. Fresno Motors, LLC v. Mercedes Benz USA,

LLC, 771 F.3d 1119, 1125 (9th Cir. 2014). “Summary

judgment . . . is appropriate only where there is no genuine

issue of material fact and the moving party is entitled to

judgment as a matter of law.” Hunt v. Cromartie, 526 U.S.

541, 549 (1999) (Cromartie I).

We generally review protective orders entered under a

district court’s inherent authority for abuse of discretion.

Wharton v. Calderon, 127 F.3d 1201, 1205 (9th Cir. 1997).

However, “[a] district court by definition abuses its

discretion when it makes an error of law.” Koon v. United

States, 518 U.S. 81, 100 (1996). Because the application of

a legal privilege is “essentially a legal matter” that is

reviewed de novo, Al-Haramain Islamic Found., Inc. v.

Bush, 507 F.3d 1190, 1196 (9th Cir. 2007), we apply that

standard here to the district court’s application of the

legislative privilege.

3

Because we do not rely on it in this opinion, we DENY the City’s

motion requesting judicial notice as moot.

14 LEE V. CITY OF LOS ANGELES

III. Discussion

A. Equal Protection Claim

The Equal Protection Clause of the Fourteenth

Amendment provides that “[n]o State shall . . . deny to any

person within its jurisdiction the equal protection of the

laws.” U.S. Const., amend. XIV, § 1. “Its central purpose

is to prevent the States from purposefully discriminating

between individuals on the basis of race.” Shaw v. Reno,

509 U.S. 630, 642 (1993) (Shaw I). This includes

“separating . . . citizens into different voting districts on the

basis of race” without “sufficient justification.” Cooper,

137 S. Ct. at 1463 (quoting Bethune-Hill v. Va. State Bd. of

Elections, 137 S. Ct. 788, 797 (2017)). Claims that voting

districts have been drawn on race-based lines are evaluated

under a two-step analysis: (1) the plaintiffs must first prove

that “race was the predominant factor motivating the

legislature’s decision to place a significant number of voters

within or without a particular district”; and (2) if the

plaintiffs do so, the burden shifts to the defendant “to prove

that its race-based sorting of voters serves a ‘compelling

interest’ and is ‘narrowly tailored’ to that end.” Id. at 1463–

64 (quoting Bethune-Hill, 137 S. Ct. at 797). The district

court granted summary judgment after finding that the

plaintiffs failed to raise a genuine dispute at the first step of

the analysis.

Proving that race was the predominant factor in drawing

district boundaries “entails demonstrating that the legislature

‘subordinated’ other factors . . . to ‘racial considerations.’”

Id. (quoting Miller v. Johnson, 515 U.S. 900, 916 (1995)).

What matters is “the actual considerations that provided the

essential basis for the lines drawn, not post hoc justifications

the [legislative body] in theory could have used but in reality

did not.” Bethune-Hill, 137 S. Ct. at 799. Plaintiffs may

LEE V. CITY OF LOS ANGELES 15

make this showing with direct or circumstantial evidence.

Cooper, 137 S. Ct. at 1464.

In proving that race was the predominant factor, it is

unnecessary to show an actual conflict between the enacted

plan and “traditional redistricting principles.” Bethune-Hill,

137 S. Ct. at 799. “Race may predominate even when a

reapportionment plan respects traditional principles,” id. at

798—for example, when a legislative body uses race as the

predominant criterion to advance those principles, see

Cooper, 137 S. Ct. at 1464 n.1. Given that traditional

redistricting principles are “numerous and malleable,” a

legislative body “could construct a plethora of potential

maps that look consistent with traditional, race-neutral

principles.” Bethune-Hill, 137 S. Ct. at 799. “But if race for

its own sake is the overriding reason for choosing one map

over others, race still may predominate.” Id. Still, the

Supreme Court has recently reiterated that the “good faith of

[the legislative body] must be presumed,” and the burden of

proof rests with the challenger to demonstrate that race

predominated the districting process. Abbott v. Perez,

138 S. Ct. 2305, 2324 (2018) (quoting Miller, 515 U.S. at

915).

Plaintiffs argue that race was in fact the overriding

motivation behind CD 10’s boundaries. They contend that

Council President Wesson used his powerful and prominent

position to ensure that CD 10 would become a majority

African American Council District. Wesson claimed credit

for acting to preserve African American seats on the City

Council after the redistricting process concluded. He

explicitly stated that it had been his “priority” to “make sure

we have a black vote or two on that council.”

In light of Wesson’s statements, Plaintiffs draw

particular significance from two facts: (1) Wesson’s

16 LEE V. CITY OF LOS ANGELES

appointment of Christopher Ellison, a man with no prior

redistricting experience, to the Redistricting Commission,

and (2) the division of the Commission into ad hoc

committees for the initial drawing of Council District

boundaries. According to Plaintiffs, the explicit purpose of

the ad hoc committees was to avoid public scrutiny, and

Ellison was appointed specifically to pursue Wesson’s race-

based agenda. Outside public view, and with fewer

Commissioners against whom he needed to contend, Ellison

could exercise greater control over the proceedings and more

effectively pursue his (and Wesson’s) goals. Indeed,

Plaintiffs assert that “[t]he Ad Hoc Committees were the

most important part of the redistricting process.” By getting

the first crack at drawing the Council Districts, these

committees enjoyed the advantage of setting the terms of

future debate. Although the Commission and the City

Council might later amend a committee’s proposal on the

margins, it would be difficult if not impossible to completely

scrap a proposal and redraw the boundaries anew.

At the West/Southwest Committee’s first meeting,

Ellison had the Commission’s Technical Director display a

map of CD 10 with racial demographic data superimposed

over it. He then had the Technical Director redraw CD 10 to

maximize the percentage of African American registered

voters. Ellison explained the changes in his proposed map

in terms of how it would increase the African American

voting population in CD 10. He explicitly stated that “[w]e

attempted to protect the historical African American

incumbents in this district by increasing the black voter

registration percentage and CVAP #s accordingly.”

This evidence certainly shows that race was a motivation

in drawing CD 10. For Ellison and Wesson, it may have

even been the only motivation. Ellison never offered any

LEE V. CITY OF LOS ANGELES 17

justification other than race for his proposed boundaries. But

the relevant inquiry is whether “race was the predominant

factor motivating the legislature’s decision” as to the final

boundaries. Cooper, 137 S. Ct. at 1463 (emphases added).

And here, Plaintiffs have not made the requisite showing to

raise a genuine dispute of fact. Had Ellison been the final

decision maker, then on this record Plaintiffs may have been

able to make a compelling showing of predominance.

However, Ellison and Wesson were only two people in a

process that incorporated multiple layers of decisions and

alterations from the entire Commission, as well as the City

Council.

Nor was Ellison’s proposal adopted “as is.” After his

proposal was forwarded to the Commission, the boundaries

underwent additional review and changes. First, the

Commission released its proposed Council Districts

(including Ellison’s proposed boundaries for CD 10) for

public comment and review. After considering the public

feedback, the Commission amended the proposed

boundaries. For CD 10, the Commission voted to place

additional neighborhoods into the District, putting all of

Little Bangladesh and around 70% of Koreatown 4 into CD

10. The Commission then placed these amended boundaries

before the public again for additional comment and review.

Afterwards, the Commission further amended its

boundaries 5 and approved a “final” version. The

4

The actual percentage of Koreatown that the Commission voted to

place into CD 10 depends on the definition used, e.g., 70% if defined as

the Wilshire Center-Koreatown Neighborhood Council, but 100% if

defined by the City of Los Angeles’ community renaming policy.

5

Although not for CD 10.

18 LEE V. CITY OF LOS ANGELES

Commission forwarded this “final” version to the City

Council with additional recommendations that would further

alter CD 10’s boundaries from what Ellison originally

proposed. 6

Next, the City Council held its own public hearings

regarding the proposed Council Districts and the

Commission’s recommendations. Members of the City

Council then proposed their own adjustments to the

Commission’s proposal; three of these proposals would

affect CD 10. The City’s Chief Legislative Analyst

reviewed these proposed changes along with the

Commission’s original proposal. Ultimately, the Legislative

Analyst recommended adopting the Commission’s proposal

with 18 of the proposed adjustments, including the proposed

changes to CD 10. Finally, on March 16, 2012, the City

Council adopted the Legislative Analyst’s recommended

Council District boundaries.

Even viewed in the light most favorable to Plaintiffs, the

record fails to show that these successive amendments were

driven predominantly by racial considerations. Instead, the

Commission’s final report and recommendations show that,

overall, the Commission sought to rebalance the populations

in each Council District, while preserving communities and

unifying as many Neighborhood Councils as possible in a

single Council District. According to the Commission’s

report, 53 of 95 Neighborhood Councils had been divided

across more than one Council District, and 13 of the 53 were

divided across more than two Council Districts. Under the

Commission’s final proposed boundaries, the number of

6

These recommendations would have kept businesses in the

communities of Little Bangladesh, Little Ethiopia, and Koreatown

within CD 10.

LEE V. CITY OF LOS ANGELES 19

divided Neighborhood Councils was reduced from 53 to 29,

and the number of Neighborhood Councils divided across

more than two Council Districts was reduced from 13 to 3.

A memorandum to the Commission from its staff reflects

these priorities. According to the memorandum, the

amendments pertaining to Koreatown and its adjacent areas

were adopted in response to public testimony expressing a

desire to keep neighborhoods such as Little Ethiopia,

Koreatown, and Little Bangladesh whole. In choosing to

place Leimert Park and Baldwin Hills in CD 10, the

Commission was responding to public testimony requesting

that the entire Empowerment Congress West Area

Neighborhood Development Council (of which Leimert

Park and Baldwin Hills are a part) be placed in one Council

District. Some of these neighborhoods had been divided

across more than one Council District for at least forty years.

Although Koreatown, as defined as the Wilshire Center-

Koreatown Neighborhood Council, ultimately could not be

brought into a single Council District, the Commission did

succeed in reducing the split from three Council Districts to

two. 7

As for the amendments proposed by City Council

members, the record lacks substantive evidence to show that

they were proposed predominantly because of race, rather

than in response to concerns raised during the public

hearings. Plaintiffs allude to Council President Wesson’s

“huge sway” over the drawing of CD 10’s boundaries, but

aside from appointing Ellison to the Commission, they fail

to point to any evidence showing how Wesson used his

7

Under a narrower definition of Koreatown as discussed above, see

supra note 4, the Commission succeeded in uniting Koreatown into a

single Council District.

20 LEE V. CITY OF LOS ANGELES

power and influence to pursue a race-based redistricting

agenda. Wesson stated that his “priority” was to “make sure

[they] have a black vote or two on that council,” but he

indicated in those same remarks that he was alone in

prioritizing race in drawing the Council Districts. Wesson

said that it was “[him] against twelve other members on the

Council. [He] had no backup. [He] had no faction.” These

remarks tend to show that Wesson did not exert as much

influence over the proceedings as he would have liked.

Absent any additional evidence, Ellison’s and Wesson’s

own subjective motivations are insufficient to make

plaintiff’s case that race predominated over the City

Council’s deliberations.

The circumstantial evidence also fails to create a genuine

dispute on racial predominance. CD 10 is one of the most

compact districts in Los Angeles, and its boundaries

generally follow the boundaries of the Los Angeles

Neighborhood Councils or other geographic markers.

Moreover, CD 10 is not any more bizarrely shaped than it

was with its previous boundaries. 8 See Appendix. This is a

far cry from the cases in which the Supreme Court found the

shape of voting districts to be indicative of racial

considerations on their face. See, e.g., Bush v. Vera,

517 U.S. 952, 965–66 (1996) (describing a “compact, albeit

irregularly shaped, core” with “narrow and bizarrely shaped

tentacles . . . extending primarily to the north and west”);

Miller, 515 U.S. at 908–09 (describing a “sparsely populated

rural core” connected by “narrow corridors” to “four

discrete, widely spaced urban centers”); Shaw I, 509 U.S. at

635–36 (describing two districts, one with a “hook shape[]”

8

Expert analysis shows that 88.53% of CD 10’s current boundaries

either follow the Neighborhood Council boundaries or CD 10’s original

boundaries before redistricting.

LEE V. CITY OF LOS ANGELES 21

with “finger-like extensions” and another that winds “in

snakelike fashion” to encompass African American

neighborhoods).

The demographic data and expert analyses fail to raise a

genuine dispute on racial predominance as well. Not only is

the increase in CD 10’s African American CVAP from

36.8% to 40.5% relatively small, but looking at only the

initial and final numbers also obscures what occurred in

between. The Commission’s proposal to the City Council

originally increased African American CVAP to 43.1%. The

City Council’s final, approved version therefore reflects a

decrease in CD 10’s African American CVAP in

comparison to the Commission’s proposal. By placing most

of Koreatown, which is predominantly Latino and Asian in

population, in CD 10, the City Council diluted rather than

concentrated African American voting power in that district.

Moreover, the boundary segment analysis conducted by

Plaintiffs’ expert indicates that the current CD 10 does not

appreciably concentrate African Americans inside CD 10

any more than the former CD 10 did.

Finally, the remaining procedural irregularities noted by

Plaintiffs fail to suggest that race predominated over the

drawing of Council Districts. Plaintiffs identify two

Commissioners who were replaced after allegedly

expressing reservations about the Commission’s proposal.

However, turnover on the Commission was not

uncommon—six Commissioners were replaced between

September 2011 and February 2012. The record does not

clearly show that the two aforementioned Commissioners

had concerns specifically about racial line drawing, as

opposed to the overall proposal put forth by Ellison.

Plaintiffs also take issue with the Commission’s use of

ad hoc committees, but the Commission followed a similar

22 LEE V. CITY OF LOS ANGELES

procedure to draw boundaries in 2002. Admittedly, the

record does not provide a clear explanation on exactly why

the West/Southwest Committee chose to forward Ellison’s

proposed boundaries to the Commission rather than Kim’s,

but Kim was able to present her proposal before the full

Commission anyway. The Commission rejected Kim’s

proposal based on concerns that placing Koreatown in a

single Council District would create major disruptions to

other neighborhoods and Council Districts throughout the

City. And, contrary to Plaintiffs’ assertions, the use of ad

hoc committees did not exclude the public from the

redistricting process. The record indicates that the public

was consulted continually throughout the redistricting

process.

In sum, we conclude that Plaintiffs failed to raise a

triable issue of fact as to whether the City was motivated

predominantly by race in drawing CD 10, and the district

court properly granted summary judgment in favor of the

City. 9

B. Legislative Privilege Claim

Plaintiffs contend that the district court erred in barring

the depositions of Ellison, Wesson, and other officials

involved in the redistricting process. First, according to

Plaintiffs, the legislative privilege does not apply at all to

state and local officials. We disagree.

9

The plaintiffs in the Haveriland action appeal the district court’s

summary judgment order as to CDs 8 and 9. Because the Haveriland

plaintiffs merely joined in “the same arguments and analyses that were

made in the Lee Appellants’ Opening Brief,” their appeal fails for the

same reason.

LEE V. CITY OF LOS ANGELES 23

The legislative privilege has deep historical roots that the

Supreme Court has traced back to “the Parliamentary

struggles of the Sixteenth and Seventeenth Centuries.”

Tenney v. Brandhove, 341 U.S. 367, 372 (1951). In Tenney,

the Court reviewed a civil rights suit against members of a

California state senate committee and a local city mayor,

ultimately finding that such a suit could not proceed. Id. at

369. As the Court explained:

In order to enable and encourage a

representative of the public to discharge his

public trust with firmness and success, it is

indispensably necessary, that he should enjoy

the fullest liberty of speech, and that he

should be protected from the resentment of

every one, however powerful, to whom the

exercise of that liberty may occasion offense.

Id. at 373 (citation omitted). The Court’s analysis drew on

“political principles already firmly established in the States,”

as reflected in numerous state constitutions that had

historically embraced just such a privilege for their own

legislators. Id. at 373–75. Because the defendants had not

“exceeded the bounds of legislative power” and “were acting

in a field where legislators traditionally have power to act,”

the Court held that they were immune from suit. 10 Id. at

378–79.

While Tenney’s holding rested upon a finding of

immunity, its logic supports extending the corollary

10

While the privilege, as applied to federal officials, is embedded

directly in the Constitution, its extension to state and local officials is a

matter of federal common law. See United States v. Gillock, 445 U.S.

360, 372 n.10 (1980).

24 LEE V. CITY OF LOS ANGELES

legislative privilege from compulsory testimony to state and

local officials as well. Like their federal counterparts, state

and local officials undoubtedly share an interest in

minimizing the “distraction” of “divert[ing] their time,

energy, and attention from their legislative tasks to defend

the litigation.” See Eastland v. U.S. Servicemen’s Fund,

421 U.S. 491, 503 (1975). The rationale for the privilege—

to allow duly elected legislators to discharge their public

duties without concern of adverse consequences outside the

ballot box—applies equally to federal, state, and local

officials. 11 “Regardless of the level of government, the

exercise of legislative discretion should not be inhibited by

judicial interference . . . .” Bogan v. Scott-Harris, 523 U.S.

44, 52 (1998). We therefore hold that state and local

legislators may invoke legislative privilege. 12

Plaintiffs next argue that, even assuming the privilege

applies to state and local officials, it is only a qualified right

that should be overcome in this case. Plaintiffs have failed

to persuade us that the privilege was improperly applied

here.

Although the Supreme Court has not set forth the

circumstances under which the privilege must yield to the

need for a decision maker’s testimony, it has repeatedly

stressed that “judicial inquiries into legislative or executive

motivation represent a substantial intrusion” such that

calling a decision maker as a witness “is therefore ‘usually

11

We recognize, however, that certain other concerns addressed by

the legislative privilege are specific to federal legislators, such as the

separation of powers principles that undergird the Speech and Debate

Clause of the Constitution. See Gillock, 445 U.S. at 370, 372 n.10.

12

The privilege also extends to legislative aides and assistants. See

Jeff D. v. Otter, 643 F.3d 278, 290 (9th Cir. 2011).

LEE V. CITY OF LOS ANGELES 25

to be avoided.’” Vill. of Arlington Heights v. Metro. Hous.

Dev. Corp., 429 U.S. 252, 268 n.18 (1977) (quoting Citizens

to Preserve Overton Park v. Volpe, 401 U.S. 402, 420

(1971)).

In Village of Arlington Heights, the plaintiff brought an

Equal Protection challenge against local officials, alleging

that their refusal to rezone a parcel of land for redevelopment

was motivated by racial discrimination. Id. at 254. While

the Court acknowledged that “[t]he legislative or

administrative history may be highly relevant,” it

nonetheless found that even “[i]n extraordinary instances

. . . such testimony frequently will be barred by privilege.”

Id. at 268 (citing Tenney, 341 U.S. 367). Applying this

precedent, we have likewise concluded that plaintiffs are

generally barred from deposing local legislators, even in

“extraordinary circumstances.” City of Las Vegas v. Foley,

747 F.2d 1294, 1298 (9th Cir. 1984) (citing Vill. of Arlington

Heights, 429 U.S. at 268).

We recognize that claims of racial gerrymandering

involve serious allegations: “At the heart of the

Constitution’s guarantee of equal protection lies the simple

command that the Government must treat citizens ‘as

individuals, not “as simply components of a racial . . .

class.”’” Miller, 515 U.S. at 911 (quoting Metro Broad., Inc.

v. FCC, 497 U.S. 547, 602 (O’Connor, J., dissenting)). Here,

Defendants have been accused of violating that important

constitutional right.

But the factual record in this case falls short of justifying

the “substantial intrusion” into the legislative process. See

Vill. of Arlington Heights, 429 U.S. at 268 n.18. Although

Plaintiffs call for a categorical exception whenever a

constitutional claim directly implicates the government’s

intent, that exception would render the privilege “of little

26 LEE V. CITY OF LOS ANGELES

value.” See Tenney, 341 U.S. at 377. Village of Arlington

Heights itself also involved an equal protection claim

alleging racial discrimination—putting the government’s

intent directly at issue—but nonetheless suggested that such

a claim was not, in and of itself, within the subset of

“extraordinary instances” that might justify an exception to

the privilege. 429 U.S. at 268. Without sufficient grounds

to distinguish those circumstances from the case at hand, we

conclude that the district court properly denied discovery on

the ground of legislative privilege.

AFFIRMED.

LEE V. CITY OF LOS ANGELES 27

APPENDIX

Current CD 10 Boundaries

28 LEE V. CITY OF LOS ANGELES

Previous CD 10 Boundaries