# LULAC Texas v. Hughes

> Court of Appeals for the Fifth Circuit · May 17, 2023

URL: https://www.frixlaw.com/law-library/cases/9395478

## Case

- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** May 17, 2023
- **Precedential status:** Published
- **Opinion:** Opinion
- **Nature of suit:** Civil Rights
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9395478

## How later opinions describe it (automated extraction)

- discussing the holding in Tenney
- discussing drafting and provisions of the amendments

## Opinion text

Case: 22-50435 Document: 00516754264 Page: 1 Date Filed: 05/17/2023

United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit

FILED
May 17, 2023
No. 22-50435 Lyle W. Cayce
Clerk

La Union Del Pueblo Entero, et al.,

Plaintiffs,

versus

Gregory W. Abbott, in his Official Capacity as Governor of Texas,
et al.,
Defendants,

LULAC Texas; Vote Latino; Texas Alliance for Retired
Americans; Texas AFT; United States of America,

Plaintiffs—Appellees,
versus

Senator Bryan Hughes; Senator Paul Bettencourt;
Representative Briscoe Cain; Representative Andrew
Murr,

Appellants.

Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:21-CV-844
USDC No. 1:21-CV-786
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No. 22-50435

Before Richman, Chief Judge, and Wiener and Willett, Circuit
Judges.
Don R. Willett, Circuit Judge:
After the Texas Legislature amended the Election Code in 2021, the
United States and others sued, alleging the changes were racially
discriminatory. When the plaintiffs sought discovery from individual, non-
party state legislators, those legislators withheld some documents, citing
legislative privilege. The district court largely rejected the legislators’
privilege claims, and they filed this interlocutory appeal. We REVERSE.

I
The Texas Legislature recently amended the Election Code as it
relates to voter registration, voting by mail, poll watchers, and other aspects
of election integrity and security. 1 The United States, LULAC Texas, and
dozens of other plaintiffs sued (together, “Plaintiffs”). They argued that the
Legislature acted with racially discriminatory intent, and thus that the
amendment violates the Constitution and the Voting Rights Act. 2 The
district court consolidated many of the suits. Plaintiffs then sought discovery
from individual, non-party legislators related to the circumstances
surrounding the amendment’s proposal and passage. The legislators
produced some documents, but they withheld others, citing legislative
privilege. Plaintiffs moved to compel production. The district court rejected
most of the legislators’ privilege claims and ordered them to produce about
220 documents. But the district court stayed that order while the legislators
pursued this interlocutory appeal.

1
See An Act Relating to Election Integrity and Security, S.B. 1, 87th Leg., 2d Spec.
Sess. (2021); La Union del Pueblo Entero v. Abbott, 29 F.4th 299, 304, 307 (5th Cir. 2022)
(discussing drafting and provisions of the amendments).
2
See U.S. Const. amend. XIV, § 1; 52 U.S.C. § 10301(a).

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II
Our appellate jurisdiction generally extends only to “final decisions of
the district courts.” 3 But as the Supreme Court explained in Cohen v.
Beneficial Industrial Loan Corporation, courts have “long given” this
restriction “a practical rather than a technical construction.” 4 Under that
construction, we have jurisdiction over “‘a narrow class of decisions . . .’
immediately appealable as collateral orders even if no final judgment has been
rendered.” 5 Orders are immediately appealable under this rule only if they
“(1) conclusively determine the disputed question, (2) resolve an important
issue completely separate from the merits of the action, and (3) [are]
effectively unreviewable on appeal.” 6 “[T]he decisive consideration is
whether delaying review until the entry of final judgment ‘would imperil a
substantial public interest’ or ‘some particular value of a high order.’” 7
Another constraint is that we do not apply this rule case-by-case or in an
“individualized” manner. 8 Instead, “our focus is on ‘the entire category to
which a claim belongs’” and on “the class of claims[] taken as a whole.” 9
The class at issue in this appeal consists of orders denying non-party state-

3
Vantage Health Plan, Inc. v. Willis-Knighton Med. Ctr., 913 F.3d 443, 448 (5th Cir.
2019) (quoting 28 U.S.C. § 1291).
4
337 U.S. 541, 546 (1949).
5
Vantage Health Plan, Inc., 913 F.3d at 448 (quoting Digit. Equip. Corp. v. Desktop
Direct, Inc., 511 U.S. 863, 867 (1994)).
6
Id. (quoting Henry v. Lake Charles Am. Press, L.L.C., 566 F.3d 164, 171 (5th Cir.
2009)).
7
Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 107 (2009) (quoting Will v.
Hallock, 546 U.S. 345, 352–53 (2006)).
8
Id. (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 473 (1978)).
9
Id. (quoting Digit. Equip., 511 U.S. at 868).

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legislators’ assertions of legislative privilege. 10 We agree that the orders in
this class are immediately appealable.
This class satisfies “the three traditional Cohen conditions.” 11 The
order’s conclusiveness is apparent, among other reasons, because “failure to
comply with it may result in sanctions against” the legislators. 12 The class
also “involves important questions” 13 such that “the cost of allowing
immediate appeal” is justified. 14 The importance derives from the purpose
of legislative privilege, which is not to protect against disclosure in general,
but to foster the “public good” by protecting lawmakers from “deterrents to
the uninhibited discharge of their legislative duty.” 15 Requiring legislators to
negotiate protective orders or to suffer contempt proceedings would
diminish that protection. For the same reason, this class of claims is not
“adequately vindicable” at a later stage of the litigation. 16 For one thing,
litigation itself distracts lawmakers from the job that voters sent them to do.
They cannot get that time back. But even setting that aside, once the
legislators produce documents, an appellate court cannot “remedy the

10
See Leonard v. Martin, 38 F.4th 481, 488 (5th Cir. 2022) (defining the “class of
orders at issue” as “those denying a nonparty’s motion to quash a subpoena on undue
burden grounds”).
11
Mohawk, 558 U.S. at 107 (referencing Cohen, 337 U.S. at 546).
12
Whole Woman’s Health v. Smith, 896 F.3d 362, 367 (5th Cir. 2018).
13
Mohawk, 558 U.S. at 107 (citation omitted). Cohen’s second condition “insists
upon ‘important questions separate from the merits.’” Id. (quoting Swint v. Chambers Cnty.
Comm’n, 514 U.S. 35, 42 (1995)) (emphasis added). Despite Mohawk’s directive toward
categorical rules, determining whether a question is “separate from the merits” will
typically require case-by-case analysis. We express no view about the case-by-case aspect
of any future privilege claims that otherwise fall within the class we address today.
14
Id. at 108.
15
Tenney v. Brandhove, 341 U.S. 367, 377 (1951).
16
Mohawk, 558 U.S. at 107 (quoting Digit. Equip., 511 U.S., at 878).

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improper disclosure of privileged material in the same way [it can] remedy a
host of other erroneous evidentiary rulings: by vacating an adverse judgment
and remanding for a new trial in which the protected material and its fruits
are excluded from evidence.” 17 As non-parties, the legislators cannot move
for a new trial. And even if they could, a new trial cannot retract privileged
information that has been shared into the public domain. For all those
reasons, we have interlocutory jurisdiction under Cohen.
The class of claims also satisfies Mohawk’s formulation, which allows
interlocutory jurisdiction when delaying review would harm “a substantial
public interest” or “some particular value of a high order.” 18 Delaying
review for this class of claims would imperil both of those interests. The
public has a substantial interest in ensuring that elective office remains an
invitation to draft legislation, not defend privilege logs. Freedom from
constant distraction is a high-order value. That is especially so for this class,
which consists solely of claims from non-parties who “lack appellate
remedies available to the contenders in litigation.” 19
It should come as no surprise, then, that our jurisdiction has long
extended to adjacent classes of claims. In Overby v. United States Fidelity and
Guarantee Company, we considered a dispute between a bank and a surety
company. 20 The surety company sought to discover certain documents in the
bank’s possession, but the Acting Secretary of the United States Treasury
filed a “formal claim of privilege” over the documents. 21 We held that the

17
Id. at 109.
18
Id. (quoting Will v. Hallock, 546 U.S. 345, 352–53 (2006)).
19
Vantage Health Plan, 913 F.3d at 448.
20
224 F.2d 158, 161 (5th Cir. 1955).
21
Id.

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district court’s denial of privilege was immediately appealable under the
collateral order doctrine, “even though the main suit between the bank and
the surety ha[d] not been concluded.” 22 Why? Because “[a]fter such
production, there would be no further point to the claim of privilege, it would
be irretrievably breached and beyond the protection of an appellate court.” 23
Likewise, in Carr v. Monroe Manufacturing Co., we held that
“discovery orders may be appealable where a governmental privilege is
asserted and the government is not a party to the suit.” 24 We reasoned that
“[i]n such cases,” our exercise of jurisdiction is warranted because “the
asserted governmental interest may be ‘irretrievably breached’ by disclosure,
and the government has no remedy on appeal from a final judgment in the
original action.” The governmental interest is no less breached “where the
matter sought to be discovered is held by one of the parties on the
government’s behalf.” 25 And just days ago, in Jackson Municipal Airport
Authority v. Harkins, we held that “appellate jurisdiction exist[ed]” over a
class of claims involving legislators who were themselves parties in that
case. 26
Plaintiffs argue that Mohawk bars interlocutory jurisdiction. There,
the Supreme Court held that the collateral-order doctrine does not cover a
private litigant’s assertion of attorney–client privilege. 27 This case is different
in all three respects: here we have governmental (not private) non-parties

22
See id. at 162 & n.3 (collecting cases).
23
Id.
24
431 F.2d 384, 387 (5th Cir. 1970).
25
Id. (quoting Overby, 224 F.2d at 162).
26
No. 21-60312, 2023 WL 3333607, at *2 (5th Cir. May 10, 2023).
27
558 U.S. at 114.

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(not litigants) asserting legislative privilege (not attorney–client privilege).
Indeed, Mohawk “express[ed] no view on” how the collateral-order doctrine
applies to “governmental privileges.” 28 We have held, too, that “Mohawk
does not speak to the predicament of third parties, whose claims to
reasonable protection from the courts have often been met with respect.” 29
Nothing in Mohawk forbids jurisdiction here. Rather, Mohawk is relevant
because it explains how to determine which classes of claims are immediately
appealable. That test favors jurisdiction over this class of claims. Plaintiffs
see Mohawk differently, but we disagree, as explained below.
For instance, Plaintiffs suggest that “[t]he absence of . . .
constitutional values” means that no “high order” issues are at stake here.
But constitutional values cannot be the litmus test, for we already “allow[]
immediate appeal of orders that unseal a nonparty’s confidential business
documents.” 30 And even if some constitutional value were required,
federalism and comity both fit the bill, and both are at stake when a federal
court orders state lawmakers to produce documents. Plaintiffs also say that
the legislators’ privilege claims are inseparable from the underlying case’s
merits, because the order compels documents that “bear directly on” the
merits. That argument misstates Cohen’s second factor, which requires
separate “issue[s].” 31 Here, the underlying merits issue is whether the
amendment violates federal law, while the issue in this appeal is whether the
legislators can claim privilege. Those are separate issues.

28
Id. at 113 n.4.
29
Smith, 896 F.3d at 368.
30
Leonard v. Martin, 38 F.4th 481, 487 (5th Cir. 2022).
31
Id. at 486 (quoting Henry v. Lake Charles Am. Press, L.L.C., 566 F.3d 164, 171 (5th
Cir. 2009)).

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Finally, Plaintiffs point us to decisions from our sister circuits. We
doubt that Overby and Carr leave us much room to import new law. Rather,
we agree with the Eleventh Circuit, which is bound by our pre-1981
precedent, 32 and which has held that Mohawk was “not the kind of ‘clearly
on point’ Supreme Court precedent” that would justify disregarding the line
of Fifth Circuit cases allowing immediate appeal of orders directing non-
parties to produce material for which they assert a governmental privilege. 33
Mohawk, that court concluded, “said nothing about . . . [legislative]
privilege[] . . . or any governmental privilege for that matter. Nor did it alter
the scope of the collateral order doctrine.” 34 Our jurisdiction here is secure.

III
We review discovery orders “for abuse of discretion.” 35 “The district
court’s legal conclusions should be reviewed de novo, and its factual findings
should not be disturbed unless they are clearly erroneous.” 36
“[L]egislative privilege . . . is an evidentiary privilege[] governed by
federal common law, as applied through Rule 501 of the Federal Rules of
Evidence.” 37 We begin by defining the privilege’s scope—that is, the many
actions and documents that are within “the legislative process itself” and

32
See Walker v. City of Calhoun, 901 F.3d 1245, 1258 n.7 (11th Cir. 2018).
33
In re Hubbard, 803 F.3d 1298, 1306 (11th Cir. 2015) (quoting Garrett v. Univ. of
Ala. at Birmingham Bd. of Trustees, 344 F.3d 1288, 1292 (11th Cir. 2003)).
34
Id.
35
Smith, 896 F.3d at 369 (citing Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812,
817 (5th Cir. 2004)).
36
Id. (quoting Marceaux v. Lafayette City-Par. Consol. Gov’t, 731 F.3d 488, 491 (5th
Cir. 2013)).
37
Jefferson Cmty. Health Care Ctrs., Inc. v. Jefferson Par. Gov’t, 849 F.3d 615, 624
(5th Cir. 2017) (internal quotation marks omitted).

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that the common-law privilege therefore traditionally protects. 38 We next
hold that the legislators here did not waive the privilege by communicating
with individuals who are outside the Legislature. We conclude by explaining
why the privilege does not yield in this case.

A
State lawmakers can invoke legislative privilege to protect actions that
occurred within “the sphere of legitimate legislative activity” 39 or within
“the regular course of the legislative process.” 40 “[T]he privilege is not
limited to the casting of a vote on a resolution or bill; it covers all aspects of
the legislative process.” 41 As part of that process, lawmakers routinely
“[m]eet[] with persons outside the legislature—such as executive officers,
partisans, political interest groups, or constituents—to discuss issues that
bear on potential legislation.” 42 “Consequently, some communications with
third parties, such as private communications with advocacy groups, are
protected by legislative privilege . . . .” 43 These cases teach, and we agree,
that the legislative privilege’s scope is necessarily broad.
While our analysis begins with the privilege’s scope, it does not end
there. Records are not protected from production just because they are
within the privilege’s scope. Instead, like other privileges, the legislative

38
Hubbard, 803 F.3d at 1308.
39
Tenney, 341 U.S. at 376.
40
United States v. Helstoski, 442 U.S. 477, 489 (1979) (internal quotation marks
omitted).
41
Jackson Mun. Airport Auth. v. Harkins, No. 21-60312, 2023 WL 3333607, at *5
(5th Cir. May 10, 2023) (internal quotation marks omitted).
42
Almonte v. City of Long Beach, 478 F.3d 100, 107 (2d Cir. 2007).
43
Jackson Mun. Airport Auth., No. 21-60312, 2023 WL 3333607, at *5 (internal
quotation marks omitted).

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privilege is “qualified” by exceptions that serve “the normally predominant
principle of utilizing all rational means for ascertaining the truth.” 44
The district court properly concluded that the documents at issue
“are subject to legislative privilege.” Likewise, on appeal, the parties agree
that the legislators have properly invoked the privilege. That is, they agree
that the documents fall within the privilege’s scope. For their part, the
legislators rely on the privilege for each of the disputed documents. Plaintiffs,
too, do not argue that the documents are non-legislative. Instead, they argue
only that the privilege either “was waived” or “must yield.”

B
The legislators did not waive the legislative privilege when they
“communicated with parties outside the legislature, such as party leaders
and lobbyists.” The district court’s contrary holding flouts the rule that the
privilege covers “legislators’ actions in the proposal, formulation, and
passage of legislation.” 45 An exception for communications “outside the
legislature” would swallow the rule almost whole, because “[m]eeting with
‘interest’ groups . . . is a part and parcel of the modern legislative procedures
through which legislators receive information possibly bearing on the
legislation they are to consider.” 46
Even glimpsing at Plaintiffs’ objections to the privilege log reveals as
much. For example, Plaintiffs say that one of the legislators waived the
privilege for hand-written notes that reveal his mental impressions—because
the notes appear on a document that he received from a third party. Plaintiffs

44
Jefferson Cmty. Health Care Ctrs., 849 F.3d at 624 (quoting Perez v. Perry, No.
SA-11-CV-360-OLG-JES, 2014 WL 106927, at *1 (W.D. Tex. Jan. 8, 2014)).
45
Hubbard, 803 F.3d at 1308.
46
Bruce v. Riddle, 631 F.2d 272, 280 (4th Cir. 1980).

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also say that the legislators waived the privilege for correspondence that they
solicited from constituents, or for advice that they solicited from the office of
the Secretary of State. A privilege that protected so little of the lawmaking
process would not rightly be called “legislative.” We see Plaintiffs’ “waiver”
argument not as an exception, but as an indirect attack on the privilege’s
scope. We reject that approach.
Plaintiffs’ contrary arguments lack merit. For instance, Plaintiffs say
that a non-waivable privilege would be anomalous. But this argument errs by
assuming that the legislative privilege is non-waivable. On the contrary,
“legislative privilege as to certain documents is waived when the Legislator
publicly reveal[s] those documents.” 47 But that is not what happened here.
The privilege log shows that the legislators did not send privileged
documents to third parties outside the legislative process; instead they
brought third parties into the process. That decision did not waive the
privilege. The very fact that Plaintiffs need discovery to access these
documents shows that they have not been shared publicly. On the other hand,
if the legislators had shared the documents publicly, then they could not rely
on the privilege to prevent Plaintiffs from introducing those documents as
evidence. But here, where the documents have been shared with some third
parties—but haven’t been shared publicly—the waiver argument fails.
Plaintiffs also point us to district court opinions holding that the
privilege’s purpose is to buttress the separation of powers by protecting
lawmakers from the other branches’ threats of prosecution and conviction.
Under this view, a federal court’s meddling in the state legislature does not
strictly violate the separation of powers, and therefore there is no cause for
alarm. But check and balances are not the privilege’s only purpose. It also

47
Jackson Mun. Airport Auth., No. 21-60312, 2023 WL 3333607, at *5.

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serves the “public good” by allowing lawmakers to focus on their jobs rather
than on motions practice in lawsuits. 48
Plaintiffs also criticize the legislators for drawing on caselaw involving
either the Constitution’s Speech or Debate Clause or legislative immunity
(rather than legislative privilege). As for the first point, the legislative
privilege that protects state lawmakers “is similar in origin and rationale to
that accorded Congressmen under the Speech or Debate Clause.” 49 Even if
the federal privilege yields to fewer exceptions than the state privilege, we
see no reason to differentiate between state and federal lawmakers when
determining what counts as “legitimate legislative activity.” 50 In other
words, the legislative privilege’s scope is similar for state and federal
lawmakers—even if the privilege for state lawmakers has more exceptions.
So too for legislative immunity, which the Supreme Court has often analyzed
in parallel to legislative privilege. 51 Both concepts involve the core question
whether a lawmaker may “be made to answer—either in terms of questions
or in terms of defending . . . from prosecution.” 52 While the parallel between
them may not run to the horizon, we follow the Supreme Court’s lead in
drawing on both strands even though this case involves a privilege from
disclosure rather than an immunity from suit or liability.

48
Tenney, 341 U.S. at 377.
49
Sup. Ct. of Va. v. Consumers Union of U.S., Inc., 446 U.S. 719, 732 (1980).
50
Tenney, 341 U.S. at 376.
51
See, e.g., Gravel v. United States, 408 U.S. 606, 616 (1972).
52
Id. (emphasis added).

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C
Nor is this one of those “extraordinary instances” 53 in which the
legislative privilege must “yield[].” 54 The legislative privilege gives way
“where important federal interests are at stake, as in the enforcement of
federal criminal statutes.” 55 According to the Supreme Court, “in protecting
the independence of state legislators, Tenney and subsequent cases on official
immunity have drawn the line at civil actions.” 56 We have thus recognized
that the legislative privilege “is qualified.” 57 While “important federal
interests” 58 may be at stake in criminal as well as “extraordinary” 59 civil
cases, the qualifications do not subsume the rule. The privilege would be of
little value if legislators “could be subjected to the cost and inconvenience
and distractions of a trial upon a conclusion of the pleader, or to the hazard
of a judgment against them based upon a jury’s speculation as to motives.” 60
This holds true even when constitutional rights are at stake. “The
claim of an unworthy purpose does not destroy the privilege.” 61 A court
proceeding that probes legislators’ subjective intent in the legislative process
is a “deterrent[] to the uninhibited discharge of their legislative duty.” 62 The

53
Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 268 (1977).
54
See United States v. Gillock, 445 U.S. 360, 373 (1980).
55
Id.
56
Id.
57
Jefferson Cmty. Health Care Ctrs., 849 F.3d at 624 (internal quotation marks
omitted).
58
Gillock, 445 U.S. at 373.
59
Vill. of Arlington Heights, 429 U.S. at 268.
60
Tenney, 341 U.S. at 377.
61
Id.
62
Id.

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Supreme Court explained in Tenney that “[t]he reason for the privilege is
clear.” 63 “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.” 64 “Regardless of
the level of government, the exercise of legislative discretion should not be
inhibited by judicial interference . . . .” 65 “[I]t [i]s not consonant with our
scheme of government for a court to inquire into the motives of legislators,”
and courts are not to facilitate an expedition seeking to uncover a legislator’s
subjective intent in drafting, supporting, or opposing proposed or enacted
legislation. 66
Even for allegations involving racial animus or retaliation for the
exercise of First Amendment rights, the Supreme Court has held that the
legislative privilege stands fast. In Bogan v. Scott-Harris, 67 a city employee
sued the mayor, a city council member, and other city officials under 42
U.S.C. § 1983, contending that they eliminated her position out of “racial
animus and a desire to retaliate against her for exercising her First
Amendment rights in filing the complaint against [a colleague].” 68 The city
employee won a partial jury verdict.69 The First Circuit affirmed the

63
Id. at 374.
64
Id.
65
Bogan v. Scott-Harris, 523 U.S. 44, 52 (1998).
66
Tenney, 341 U.S. at 377.
67
523 U.S. 44.
68
Id. at 47.
69
Id.

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judgment against the Mayor and the city council member. But the Supreme
Court reversed. 70 It held that the city officials were absolutely immune from
suit under § 1983, because “the common law accord[s] [them] the same
absolute immunity it accord[s] legislators at other levels of government.” 71
In discussing “absolute legislative immunity,” the Supreme Court also noted
that it had previously extended that immunity to an interstate regional
planning agency because of the purposes of legislative immunity and the
importance of such immunity in advancing the “public good.” 72
Further, the Ninth Circuit has held that “plaintiffs are generally
barred from deposing local legislators, even in ‘extraordinary
circumstances.’” 73 In Lee v. City of Los Angeles, the plaintiffs contended “that
race was in fact the overriding motivation behind [the redrawing of a city’s
voting district] boundaries.” 74 The plaintiffs sought to depose local officials,
but the Ninth Circuit held that the legislative privilege applied. 75 That court
“recognize[d] that claims of racial gerrymandering involve serious
allegations,” and also that the “[d]efendants ha[d] been accused of violating
that important constitutional right,” 76 because “‘[a]t 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

70
Id. at 47–48, 56.
71
Id. at 49.
72
Bogan, 523 U.S. at 53 (quoting Lake Country Ests., Inc. v. Tahoe Reg’l Plan. Agency,
440 U.S. 391, 404 (1979)).
73
Lee v. City of Los Angeles, 908 F.3d 1175, 1187–88 (9th Cir. 2018) (quoting City of
Las Vegas v. Foley, 747 F.2d 1294, 1298 (9th Cir. 1984)).
74
Id. at 1183.
75
Id. at 1188.
76
Id.

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of a racial . . . class.’” 77 Still, the Ninth Circuit declined to recognize an
“exception whenever a constitutional claim directly implicates the
government’s intent,” because “that exception would render the privilege
‘of little value.’” 78
Plaintiffs’ attempt to require state legislators to produce documents is
far closer on the continuum of legislative immunity and privilege to the suits
under 42 U.S.C. § 1983 at issue in Tenney and Bogan than it is to the criminal
prosecution under federal law at issue in Gillock. In Tenney, there was an
“important federal interest[]” at stake: the vindication of civil rights under
§ 1983. 79 The issue in Tenney was “whether state legislators were immune
from civil suits for alleged violations of civil rights under 42 U.S.C.
§ 1983.” 80 But despite the important federal rights that § 1983 aims to
vindicate, the Supreme Court explained that the legislative privilege did not
yield to those interests. “We cannot believe that Congress—itself a staunch
advocate of legislative freedom—would impinge on a tradition so well
grounded in history and reason by covert inclusion in the general language of
§ 1983.” 81 The Supreme Court held that “a state legislator’s common-law
absolute immunity from civil suit survived the passage of the Civil Rights Act
of 1871.” 82 By the same token, a state legislator’s common-law absolute
immunity from civil actions precludes the compelled discovery of documents
pertaining to the state legislative process that Plaintiffs seek here.

77
Id. (quoting Miller v. Johnson, 515 U.S. 900, 911 (1995)).
78
Id. (quoting Tenney, 341 U.S. at 377).
79
Gillock, 445 U.S. at 373.
80
Id. at 371.
81
Id. at 372 (alteration adopted) (quoting Tenney, 341 U.S. at 376).
82
Id. (discussing the holding in Tenney).

16
Case: 22-50435 Document: 00516754264 Page: 17 Date Filed: 05/17/2023

No. 22-50435

Finally, Plaintiffs’ reliance on Jefferson Community Health Care
Centers, Inc. v. Jefferson Parish Government 83 is misplaced. That decision
stated that “[w]hile the common-law legislative immunity for state
legislators is absolute, the legislative privilege for state lawmakers is, at best,
one which is qualified.” 84 But that case provides no support for the idea that
state legislators can be compelled to produce documents concerning the
legislative process and a legislator’s subjective thoughts and motives. There,
a Louisiana parish sought to evict a health care center from property that the
parish owned. 85 We rejected the city council members’ arguments for a
legislative privilege that would have barred the court from even deciding
whether to issue injunctive relief. 86 We said only that “[a]t any rate, even
assuming that the councilmembers’ reasons for passing the resolutions are
privileged in the sense that they cannot be directly compelled to disclose
them, this evidentiary privilege cannot bar the adjudication of a claim.” 87 We
held only that a claim for injunctive relief could proceed. That holding says
nothing about cases like this one. 88
We REVERSE.

83
849 F.3d 615.
84
Id. at 624 (quoting Perez, No. SA-11-CV-360, 2014 WL 106927, at *2).
85
Id. at 619.
86
Id. at 624.
87
Id.
88
Because we hold that the legislative privilege protects the documents at issue,
we need not (and do not) address the other privileges that the legislators asserted.

17

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9395478. Public record. Not legal advice.