reversing denial of legislative privilege to defendant Republican Committees for communications with the Texas Legislature
How later courts described this case
- reversing denial of legislative privilege to defendant Republican Committees for communications with the Texas Legislature
- describing ruling ordering non-legislators to submit to depositions and produce non-privileged documents
Written by the judges who cited it.
The opinion
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United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
February 16,
No. 23-50201 2024
____________
Lyle W. Cayce
Clerk
La Union del Pueblo Entero; Friendship-West Baptist
Church; Southwest Voter Registration Education
Project; Texas Impact; Mexican American Bar
Association of Texas; Texas Hispanics Organized for
Political Education; JOLT Action; William C.
Velasquez Institute; James Lewin; Fiel Houston,
Incorporated,
Plaintiffs—Appellees,
versus
Gregory W. Abbott, in his Official Capacity as Governor of Texas, et
al.,
versus
Senator Paul Bettencourt; Representative Briscoe
Cain,
Appellants.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:21-CV-844
______________________________
1
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Before Smith, Graves, and Wilson, Circuit Judges.
Jerry E. Smith, Circuit Judge:
Appellees 1 (collectively “LUPE”) seek to discover, from defendant-
intervenor Harris County Republican Party (“HCRP”), documents and
communications sent to or exchanged with the Texas Legislature and various
members of the Texas executive branch regarding Texas Senate Bill 1
(“S.B. 1”). Defendants 2 (collectively “state defendants”) and non-party
appellants 3 (collectively “legislators”) maintain that some of those materials
are protected from discovery by legislative privilege.
The district court concluded the legislative privilege did not apply.
Because that was error and an abuse of discretion, we reverse.
I.
In 2021, the Texas Legislature enacted S.B. 1, 4 relating to “voter reg-
istration, voting by mail, poll watchers, and other aspects of election integrity
and security.” La Union del Pueblo Entero v. Abbott, 68 F.4th 228, 231–32 (5th
Cir. 2023) (“Hughes” 5). LUPE sued, taking aim at S.B. 1, alleging that
(1) S.B. 1’s amendments chill voter registration and (2) S.B. 1 was enacted
_____________________
1
La Union del Pueblo Entero; Friendship-West Baptist Church; Southwest Voter
Registration Education Project; Texas Impact; Mexican American Bar Association of
Texas; Texas Hispanics Organized for Political Education; JOLT Action; William C. Vel-
asquez Institute; Fiel Houston, Incorporated; and James Lewin.
2
The State of Texas, the Secretary of State of Texas in his official capacity, and
the Attorney General of Texas in his official capacity, and several county law enforcement
and election officials.
3
Senator Bettencourt and Representative Cain.
4
See An Act Relating to Election Integrity and Security, S.B. 1, 87th Leg., 2d Spec.
Sess. (2021).
5
That decision is often referred to as Hughes because Senator Hughes was the first-
named non-party legislator appellant who was claiming legislative privilege.
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No. 23-50201
with an intent to discriminate against racial minorities. 6 Initially, the only
named defendants were the state defendants. HCRP was added as a
defendant-intervenor after the district court granted its renewed motion to
intervene in May 2022. Shortly after HCRP was joined, LUPE sought docu-
ments and communications that HCRP had sent to or exchanged with the
Texas Legislature and various members of the Texas executive branch
regarding S.B. 1.
In November 2022, LUPE moved to compel HCRP to produce those
materials. Following a hearing, the district court ordered HCRP to “produce
documents responsive to Plaintiffs’ requests for production, subject to the
objections sustained at the hearing” and the HCRP’s “assertions of priv-
ilege.” In response to LUPE’s deposition requests, HCRP designated Alan
Vera, the chair of the HCRP Ballot Security Committee, as its document
custodian.
LUPE took Vera’s deposition on February 27, 2023. At that deposi-
tion, Vera testified that he had communicated extensively on behalf of HCRP
with legislators and legislative staff regarding S.B. 1 from June 2020 through
September 2021. But Vera declined to testify when the scope of the question
appeared potentially to encompass Vera’s communications with the legisla-
tors or legislative staff in response to a legislative inquiry. Office of Attorney
General (“OAG”) attorneys representing the state defendants also objected
to those questions on the ground of legislative privilege.
Vera’s deposition was the first time the parties became aware that
Vera held potentially privileged documents on his personal email and per-
_____________________
6
Nearly three dozen plaintiffs then filed five lawsuits taking aim at S.B. 1. Those
suits have been consolidated under one lead cause number. LUPE is part of that consoli-
dated plaintiff class.
3
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No. 23-50201
sonal computer. LUPE, upon so learning, held Vera’s deposition open and
filed a motion to compel HCRP “to conduct a search for and produce all rel-
evant documents in response to Plaintiffs’ Requests for Production . . . ,
including documents in Mr. Vera’s personal email address and personal com-
puter,” and “to provide deposition testimony in response to Plaintiffs’ ques-
tions regarding [HCRP’s] communications with legislators and legislative
staff.”
The district court, following a hearing on LUPE’s motion, rejected
Vera’s and OAG attorneys’ invocations of legislative privilege. It then
ordered (1) Vera to submit to another deposition and (2) Vera and HCRP to
produce documents responsive to LUPE’s requests for production. The leg-
islators appeal the denial of legislative privilege.
II.
There are three jurisdictional issues we must resolve before turning to
the merits of the appeal: First, whether the legislators, as non-parties, have
standing to appeal. Second, whether the collateral order doctrine applies.
Last, whether the order on appeal is moot. 7
A. Non-Party Standing
LUPE contends the legislators lack standing to bring this appeal be-
cause they are not parties to the case. The legislators agree that non-parties
generally cannot appeal an order or judgment. See Castillo v. Cameron Cnty.,
238 F.3d 339, 349 (5th Cir. 2001). They observe that that general rule per-
mits of an exception: A non-party may appeal “if the decree affects his
_____________________
7
Although “there is no mandatory sequencing of jurisdictional issues,” we begin
with standing because it is “logically antecedent” to mootness. Acheson Hotels, LLC v.
Laufer, 144 S. Ct. 18, 23 (2023) (Thomas, J., concurring) (cleaned up).
4
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No. 23-50201
interests.” Id.
Three factors guide our determining whether the legislators qualify
for that exception: (1) “whether the nonparties actually participated in the
proceedings below,” (2) whether “the equities weigh in favor of hearing the
appeal,” and (3) whether “the nonparties have a personal stake in the out-
come.” Id. at 350 (cleaned up).
1. Participation
The legislators have participated adequately in the district court
proceedings.
The legislators had previously been served with third-party
subpoenas—seeking the same documents and communications at issue in this
appeal—by plaintiffs in the consolidated district court proceedings. In re-
sponding to those subpoenas, the legislators invoked legislative privilege and
involved themselves in the district court proceedings. As noted by the dis-
trict court, the legislators sent “a letter asserting various objections including
legislative privilege” and attended “numerous meet-and-confer sessions.” 8
The legislators also filed briefing and attended hearings where they explained
that the legislative privilege applied and was not waived. Extensive is the
legislators’ efforts in defending their claims of legislative privilege.
LUPE posits we should disregard the legislators’ efforts in opposing
those third-party subpoenas, theorizing that the only relevant proceedings
that should be examined for purposes of the first factor are the exact proceed-
ings giving rise to the order on appeal. Observing that the non-parties in Cas-
tillo “brought the very motion that was denied in the order that [was] being
_____________________
8
Order, La Union del Pueblo Entero v. Abbott, No. 5:21-cv-00844-XR, ECF No. 425,
at 2 (W.D. Tex. May 25, 2022) (cleaned up).
5
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No. 23-50201
appealed,” 238 F.3d at 350, LUPE asserts that the legislators did not partici-
pate in the district court proceedings at all, in that they did not personally
invoke the privilege at Vera’s deposition or attend the subsequent hearing.
LUPE’s theory misinterprets Castillo. True, the non-party in Castillo
brought “the very motion that was denied in the order that [was] being
appealed.” Id. Indeed, that was one of the reasons Castillo concluded there
was “no question . . . the [non-party] has been an active participant in the
proceedings.” Id. But that was not the only basis for the Castillo court’s
conclusion. Also considered was the non-party’s participation in proceed-
ings other than the order on appeal. 9 Thus, Castillo cuts against LUPE’s
theory and suggests that non-parties need not participate in the same pro-
ceedings concerning the order on appeal.
Nor can LUPE’s interpretation of Castillo be squared with subsequent
Fifth Circuit caselaw. Take, for example, Maiz v. Virani, 311 F.3d 344 (5th
Cir. 2002), which dealt with an appeal brought by two non-party companies
challenging a turnover order divesting them of property allegedly worth tens
of millions of dollars, see id. at 339. Maiz held those two companies had
standing to appeal the turnover order even though “there [wa]s simply no
indication that [non-party] appellants requested relief from the district court
or intended to have any direct involvement in the Receivership proceed-
ings.” Id. at 339, 341. That was because those two non-parties “allege[d] an
actual injury and thus have a personal stake in this appeal. [That] is sufficient
. . . to grant them an exception to the general rule that a non-party should not
be allowed to appeal the district court’s judgment.” Id. at 339 (citations
_____________________
9
Id. (“From the time the plaintiffs first amended their complaint to just two days
before the continuance of the injunctions, the State was a named party to the proceedings.
In fact, the State brought the very motion that was denied in the order that is being
appealed.”).
6
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No. 23-50201
omitted). LUPE’s interpretation cannot be squared with Maiz.
The first factor is satisfied because the legislators have participated
adequately in the proceedings in the district court.
2. Equitable Considerations
There are two reasons the equities weigh in favor of allowing the legis-
lators to appeal:
First, it is well established that “a non-party may appeal orders for dis-
covery if he has no other effective means of obtaining review.” United States
v. Chagra, 701 F.2d 354, 359 (5th Cir. 1983). Such is the situation here. This
appeal is the only mechanism for the legislators to obtain appellate review of
the order denying their claims of legislative privilege. The district court, by
denying the legislators’ privilege claims, has ordered the production of
potentially privileged documents. But once such production has occurred,
“there would be no further point to the claim of privilege” because “it would
be irretrievably breached and beyond the protection of an appellate court.” 10
Equity favors this appeal because the legislators have no other mechanism to
vindicate their potentially meritorious claims of legislative privilege.
Second, denials of legislative privilege affect interests far beyond those
held by the legislators and the plaintiffs in this case. That privilege, “so well
grounded in history and reason,” is necessary “to enable and encourage a
representative of the public to discharge his public trust with firmness and
success.” Tenney v. Brandhove, 341 U.S. 367, 373, 376 (1951). Erroneous
denials of legislative privilege threaten both the public’s “substantial interest
in ensuring that elective office remains an invitation to draft legislation” and
_____________________
10
Hughes, 68 F.4th at 234 (quoting Overby v. U.S. Fid. & Guar. Co., 224 F.2d 158,
162 (5th Cir. 1955)); see also id. at 233 (noting the legislators cannot “retract privileged
information that has been shared into the public domain”).
7
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No. 23-50201
the legislators’ interest in “[f]reedom from constant distraction”—a high-
order value. Hughes, 68 F.4th at 233.
Consequently, the equities favor the legislators’ ability to appeal the
order denying their claims of legislative privilege.
LUPE maintains the contrary is true for three reasons: (1) the legis-
lators waited too long to appeal; (2) its discovery requests were served on
HCRP and do not impose cost and burden on the legislators; and (3) post-
judgment review would adequately protect the legislators’ interests. LUPE’s
three contentions do not change our conclusion:
There is no merit to LUPE’s first contention—that the legislators
waited too long to appeal. According to LUPE, the legislators had thirty days
to appeal from December 9, 2022—the day the district court granted in part
and denied in part LUPE’s motion to compel discovery responses from mul-
tiple defendant-intervenors.
The procedural history reveals the absurdity of LUPE’s first conten-
tion. Vera was not served with a notice of deposition until February 23, 2023,
and his deposition took place four days later on February 27. It was not until
that deposition that the parties even knew Vera had potentially privileged
material stored on his personal email and personal computer. LUPE is asking
the legislators to do the impossible—that is, to claim privilege and take an
appeal months before they even knew the deponent’s identity or that he held
potentially privileged documents.
Moreover, LUPE’s first contention proves too much. When taken to
its logical conclusion, LUPE’s position would require legislators to claim leg-
islative privilege—against any discovery order, served on any party—based
on nothing more than pure speculation that privileged material may lie within
its scope. Legislators would be required constantly to monitor the status of
all discovery proceedings in all pending cases, or else, forfeit their ability to
8
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No. 23-50201
claim legislative privilege. That turns the legislative privilege on its head:
The privilege is designed to allow “lawmakers to focus on their jobs rather
than on motions practice in lawsuits.” Hughes, 68 F.4th at 233, 237. LUPE’s
position would make legislators full-time motions practitioners.
LUPE’s second contention is as meritless as the first. Its assertion
that its discovery request does not impose cost or burden on legislators is
foreclosed squarely by Hughes.
To start, LUPE identifies only one of the two purposes served by the
legislative privilege. True, one purpose is to protect legislators from the cost,
burden, and inconvenience of trial. But that’s not all. Equally important is
the privilege’s function to guard against “judicial interference” by protecting
legislators from courts’ seeking to “inquire into the motives of legislators”
and “uncover a legislator’s subjective intent in drafting, supporting, or
opposing proposed or enacted legislation.” Id. at 238 (citations omitted).
While LUPE’s discovery request may be directed at HCRP, the mate-
rials it seeks go to the content of the legislators’ communications. Discovery
requests that reveal such communications, even if served on non-legislators,
nonetheless burden—and therefore deter—legislators from “the uninhibited
discharge of their legislative duty.” Id. (quoting Tenney, 341 U.S. at 377). It
is therefore no less burdensome to the privilege’s purpose of protecting “the
exercise of legislative discretion . . . [from] judicial interference.” Id. (quot-
ing Bogan v. Scott-Harris, 523 U.S. 44, 52 (1998)).
Worse still, LUPE’s second contention is inconsistent with its first.
LUPE’s first contention burdens legislators with the massive cost, inconveni-
ence, and distraction of surveilling the status of all discovery proceedings in
all pending cases merely to preserve their claims of legislative privilege. But
that cost, inconvenience, and distraction vanish under LUPE’s second
contention—LUPE asserts that the discovery requests don’t burden the leg-
9
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No. 23-50201
islators at all because they were served on HCRP. So even a legislator who
invests the time and effort to identify cases implicating the privilege would
nonetheless be stymied from appealing its denial.
Put together, LUPE’s first and second contentions yield an under-
standing of legislative privilege that protects communications with third par-
ties in name only. And that cannot be, for Hughes holds that the legislative
privilege’s scope extends to legislators’ communications with third parties.
See id. at 236. We reject what is, in essence, “an indirect attack on the
privilege’s scope.” Id.
Hughes also forecloses LUPE’s last contention. There, the court ex-
plained that denials of legislative privilege could not be meaningfully re-
viewed on appeal because “there would be no further point to the claim of
privilege” once a non-party’s “privileged information . . . has been shared
into the public domain.” Id. at 233–34 (citation omitted). LUPE’s notion—
that post-judgment appellate review sufficiently protects the legislators’
interests—fails.
3. Personal Stake
The third Castillo factor—whether the party seeking appellate review
has a personal stake in the outcome—is also met. LUPE seeks to discover
documents and communications HCRP sent to or exchanged with the Texas
Legislature and various members of the state executive branch regarding
S.B. 1. The legislators can potentially assert legislative privilege over those
documents because they may have been created, reviewed, or produced
“within ‘the sphere of legitimate legislative activity’ or within ‘the regular
course of the legislative process.’” Hughes, 68 F.4th at 235 (quoting Tenney,
341 U.S. at 376, and United States v. Helstoski, 442 U.S. 477, 489 (1979)).
In response, LUPE asserts the legislators “surrendered whatever
interest they might have in the confidentiality of these documents when they
10
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No. 23-50201
shared them with private parties who are not members or employees of the
Legislature.”
LUPE’s assertion is incorrect. In Hughes, this court held that the leg-
islative privilege protects the “many actions and documents” legislators
take, review, or produce “within ‘the legislative process itself.’” 68 F.4th
at 235 (quoting In re Hubbard, 803 F.3d 1298, 1308 (11th Cir. 2015)); see also
Tenney, 341 U.S. at 372. That means the legislative privilege covers material
provided by or to third parties involved in the legislative process, Hughes,
68 F.4th at 237; see also In re N.D. Legis. Assembly, 70 F.4th 460, 464 (8th Cir.
2023), because all of these actions occur “within ‘the regular course of the
legislative process,’” Hughes, 68 F.4th at 235 (quoting Helstoski, 442 U.S.
at 489 (1979)). The legislators’ communications do not lose their protected
character merely because they are stored with a third party. Consequently,
the legislators have a personal interest in the privileged documents stored on
Vera’s personal computer and personal email.
In sum, we hold that the legislators have standing to bring this appeal.
B. Interlocutory Review
This court’s appellate jurisdiction generally extends only to “final
decisions of the district courts.” Id. at 232 (quoting Vantage Health Plan, Inc.
v. Willis-Knighton Med. Ctr., 913 F.3d 443, 448 (5th Cir. 2019)); see also
28 U.S.C. § 1291. But “we have jurisdiction over a narrow class of decisions
immediately appealable as collateral orders even if no final judgment has been
rendered.” Id. (cleaned up).
A collateral order is immediately appealable if it meets the three condi-
tions in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949). They
are whether the order “(1) conclusively determine[s] the disputed question,
(2) resolve[s] an important issue completely separate from the merits of the
action, and (3) [is] effectively unreviewable on appeal.” Vantage Health Plan,
11
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913 F.3d at 448 (quoting Henry v. Lake Charles Am. Press, L.L.C., 566 F.3d
164, 171 (5th Cir. 2009)). Ultimately, “the 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.’” Mohawk Indus.,
Inc. v. Carpenter, 558 U.S. 100, 107 (2009) (quoting Will v. Hallock, 546 U.S.
345, 352–53 (2006)).
We do not determine whether an order is immediately appealable on
a case-by-case basis or in an individualized manner. See Hughes, 68 F.4th
at 232. Instead, “our focus is on ‘the entire category to which a claim
belongs’” and on “the class of claims[] taken as a whole.” Id. (alteration in
original) (quoting Mohawk, 558 U.S. at 107).
There are two reasons the district court’s order satisfies the Cohen and
Mohawk requirements:
First, the Hughes court, after considering the three Cohen factors, held
that the class of “orders denying non-party state-legislators’ assertions of
legislative privilege . . . are immediately appealable.” Id. The order on
appeal fits within that class. 11
Tellingly, the Cohen analysis for this order is indistinguishable from
the one conducted in Hughes: The first Cohen factor is met because HCRP
could be sanctioned for failing to comply with the district court’s order com-
pelling production of Vera’s documents. Id. at 233. Likewise, the order
meets the second Cohen factor since the issue of privilege does not decide the
legality of various provisions of S.B. 1. See id. And the issue is important
because denials of legislative privilege—especially if unreviewable—would
deter lawmakers from the uninhibited discharge of their legislative duty and
_____________________
11
Vera claimed privilege on behalf of the legislators. See infra part III.A.
12
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No. 23-50201
diminish the public good. See id. Last, the denial of legislative privilege is
effectively unreviewable on appeal. As discussed supra part II.A.2, this
appeal is the only mechanism for the legislators to obtain appellate review of
the denial of legislative privilege. Once HCRP has produced the potentially
privileged documents, “there would be no further point to the claim of priv-
ilege” because “it would be irretrievably breached and beyond the protection
of an appellate court.” Hughes, 68 F.4th at 234 (quoting Overby, 224 F.2d
at 162); see also id. at 233 (noting the legislators can’t “retract privileged
information that has been shared into the public domain”).
LUPE says this order is distinguishable from Hughes because it was
directed at HCRP and not the legislators themselves. That is not a meaning-
ful distinction. This order is no less conclusive than was the one in Hughes.
Indeed, the district court’s order expressly contemplates increased sanctions
and contempt of court. The identity of the party being sanctioned is unre-
lated to the likelihood that sanctions will be imposed. Additionally, the issue
raised on appeal is no less important because HCRP’s release of privileged
documents into the public domain is equally damaging to the interests and
values advanced by the legislative privilege.
Second, the legislative privilege implicates “‘a substantial public inter-
est’ or ‘some particular value of a high order.’” Id. at 233 (quoting Mohawk,
558 U.S. at 109). Specifically, “[t]he 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.” Id. Those interests would be imperiled absent the availability of
interlocutory appeal because denials of non-party claims of legislative priv-
ilege are effectively unreviewable at later stages of litigation.
Consequently, this court has appellate jurisdiction over the legis-
lators’ appeal.
13
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No. 23-50201
C. Mootness
Mootness is a jurisdictional matter “since it implicates the Article III
requirement that there be a live case or controversy.” United States v. Sose-
bee, 59 F.4th 151, 154 (5th Cir. 2023) (cleaned up). A case on appeal is moot
“only when it is impossible for a court to grant any effectual relief whatever
to the prevailing party.” Id. (cleaned up) (emphasis added). A case is not
moot so long as the parties have “a concrete interest, however small, in the
outcome of the litigation.” Id. (cleaned up).
Vera unexpectedly passed away while this appeal was pending. The
legislators contend that moots the appeal. They claim LUPE sought docu-
ments Vera held for the purpose of deposing him about his communications
with legislators and their staff. That purpose, the legislators aver, vanished
upon Vera’s passing.
But that’s not the only reason LUPE sought those documents. In
addition to assisting them in preparing for Vera’s deposition, LUPE believes
those documents might shed light on the Texas Legislature’s motivations for
passing S.B. 1. Vera’s death does not affect the potential relevance of those
documents and does not render the district court’s order moot.
Furthermore, the order survives Vera’s passing because it was dir-
ected at “Mr. Vera and the HCRP.” 12 Vera’s death does not eliminate
HCRP’s obligation to produce documents that Vera sent on HCRP’s behalf
using his personal email account. HCRP’s obligation exists independently of
Vera’s: The district court expressly ordered HCRP to search and produce
all relevant documents, including those “located on Mr. Vera’s personal
_____________________
12
Order, La Union del Pueblo Entero v. Abbott, No. 5:21-cv-00844-XR, ECF
No. 561, at 9 (W.D. Tex. Mar. 9, 2023).
14
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No. 23-50201
computer and email account.” 13
The legislators nonetheless maintain that HCRP’s obligation cannot
be separated from Vera’s. They speculate the district court contemplated
that Vera would produce the material in both his individual capacity and his
capacity as an agent of HCRP. That speculation is not supported by the rec-
ord. At the hearing on the motion to compel, the district court contemplated
the possibility that someone other than Vera would search his personal com-
puter and email. The court’s order merely requires an agent of HRCP—and
not Vera himself—to conduct the search. Consequently, the order is not
moot.
III.
Having assured ourselves of appellate jurisdiction, we turn to the
merits.
Discovery orders are reviewed for abuse of discretion. See Hughes,
68 F.4th at 235. “The district court’s legal conclusions should be reviewed
de novo, and its factual findings should not be disturbed unless they are
clearly erroneous.” Id. (citation omitted).
A. Invoking the Privilege
The legislative privilege is personal to the legislator. See Gravel v.
United States, 408 U.S. 606, 616 (1972). According to LUPE, that means no
one present at Vera’s deposition could have invoked the legislative privilege.
Not so.
The legislative privilege “covers all aspects of the legislative pro-
cess.” Hughes, 68 F.4th at 235 (cleaned up). But the complexity of the mod-
ern legislative process makes it impossible for legislators “to perform their
_____________________
13
Id. at 5.
15
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No. 23-50201
legislative tasks without the help of aides and assistants,” Gravel, 408 U.S.
at 616, which is why the Supreme Court has long recognized that legislators’
aides and assistants can invoke legislative privilege, see id.
Yet it remains the case that neither aides nor assistants independently
possess a claim to the legislative privilege. Their ability to invoke the privi-
lege comes not from their positions as “aides” or “assistants.” Instead, it
depends on whether the act for which they invoke privilege was done at the
direction of, instruction of, or for a legislator. 14 Aides and assistants can
invoke privilege only over acts meeting that conditional, for those acts occur
within the legislative process and “would be immune legislative conduct if
performed by the [legislator] himself.” Id. at 622.
Accordingly, there is no reasoned basis to draw the line at aides and
assistants. 15 As Hughes recognized, “communications ‘outside the legisla-
ture’” such as “private communications with advocacy groups” is “part and
parcel of the modern legislative procedures through which legislators receive
information possibly bearing on the legislation they are to consider.”
68 F.4th at 236 (cleaned up). Those acts—even if performed by third parties
brought into the legislative process—“occur[] within ‘the sphere of legiti-
mate legislative activity.’” Id. at 235 (quoting Tenney, 341 U.S. at 376). Con-
sequently, when a legislator brings third parties into the legislative process,
those third parties may invoke the privilege on that legislator’s behalf for acts
_____________________
14
See Gravel, 408 U.S. at 622 (“[T]he privilege available to the aide is confined to
those services that would be immune legislative conduct if performed by the [legislator]
himself.”).
15
See id. at 620 (surveying caselaw and noting that “[n]one adopted the simple
proposition that immunity was unavailable to congressional or committee employees
because they were not Representatives or Senators); see also id. at 619–20 (observing
“committee counsel was deemed protected to some extent by legislative privilege”) (citing
Dombrowski v. Eastland, 387 U.S. 82, 84 (1967)).
16
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No. 23-50201
done at the direction of, instruction of, or for the legislator.
Vera is a third party brought into the legislative process itself. See id.
at 235, 237. The legislators sought his comments on draft language for bills
that eventually became S.B. 1. Vera also provided feedback on proposed pro-
visions on bills that eventually became S.B. 1. He also emailed senators with
suggested language to include in S.B. 1. Much like the services of a legislative
aide or assistant conducting legislative acts at the behest of a legislator,
Vera’s acts “occurred within ‘the sphere of legitimate legislative activity,’”
id. at 235 (quoting Tenney, 341 U.S. at 376), and are part of “the modern
legislative process,” Gravel, 408 U.S. at 616. Vera could therefore invoke
the legislative privilege for those acts since they were undertaken at the dir-
ection of, instruction of, or for a legislator.
At the deposition, Vera carefully declined to testify when the scope of
the question appeared potentially to encompass his communications with the
legislators or legislative staff in response to a legislative inquiry. 16 Thus, Vera
properly invoked legislative privilege to the extent that his invocations con-
cerned acts that were done at the direction of, instruction of, or for a
legislator.
In addition to Vera, OAG attorneys present at the deposition raised
objections on the basis of legislative privilege. Although those OAG attor-
neys represent both the state defendants and the legislators, they attended
the deposition only in their capacity as counsel for the state defendants. In
light of the subject matter of the deposition, only Vera’s acts occurred within
_____________________
16
It is unclear whether the legislators instructed Vera to invoke the legislative privi-
lege on their behalf. That ambiguity is of no moment, however, for aides and assistants may
invoke the privilege without the prior authorization of a legislator. Gravel contemplates
that situation, expressly noting that “an aide’s claim of privilege can be repudiated and thus
waived by the [legislator].” 408 U.S. at 622 n.13.
17
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No. 23-50201
the scope of the legislative process. Thus, the OAG attorneys could not have
invoked legislative privilege at Vera’s deposition.
B. Scope of the Privilege
The scope of the legislative privilege is “necessarily broad.” Hughes,
68 F.4th at 236. Extending well beyond voting for or against a particular piece
of legislation, the legislative privilege covers “all aspects of the legislative
process,” including material prepared for a legislator’s understanding of leg-
islation and materials the legislator possesses related to potential legislation.
Id. at 235–36. 17
The privilege extends to material provided by or to third parties
involved in the legislative process, id. at 237, because all of those actions
occur “within ‘the regular course of the legislative process,’” id. at 235
(quoting Helstoski, 442 U.S. at 489 (1979)). 18 That makes sense, given that
lawmakers routinely “meet with persons outside the legislature—such as
executive officers, partisans, political interest groups, or constituents—to
discuss issues that bear on potential legislation as part of the regular course
of the legislative process.” Id. at 235–36 (cleaned up).
The legislative privilege applies to documents shared, and communi-
cations made, between the legislators and Vera. That includes Vera’s emails,
which contain the legislators’ communications with a third party who was
brought into the legislative process. See id. at 235, 237. Vera’s emails are
_____________________
17
Cf. Almonte v. City of Long Beach, 478 F.3d 100, 103 (2d Cir. 2007) (“[L]egislative
immunity applies not only to . . . vote[s] . . ., but also to any discussions and agreements
. . . prior to the vote, regardless of whether those discussions and agreements took place
in secret.”).
18
Including, for example, “communications with third parties, such as private
communications with advocacy groups.” Hughes, 68 F.4th at 236; see also In re N.D. Legis.
Assembly, 70 F.4th at 464.
18
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No. 23-50201
“part and parcel of the modern legislative process through which legislators
receive information possibly bearing on the legislation they are to consider.”
Id. at 236 (quoting Bruce v. Riddle, 631 F.2d 272, 280 (4th Cir. 1980)).
Because they were created, transmitted, and considered within the legislative
process itself, they are protected by legislative privilege.
LUPE’s attempt to distinguish this case from Hughes fails. In its view,
Hughes addressed only whether legislators themselves could be compelled to
produce documents they shared with third parties. LUPE claims this case is
“fundamentally different” because the question presented is “whether legis-
lators can prevent private parties from producing documents that are in the
private parties’ possession, after legislators willingly relinquished control
over those documents.”
LUPE’s distinction relies on a faulty premise. The legislators did not
willingly relinquish control over Vera’s emails. That is because the legisla-
tors brought Vera into the legislative process to conduct legitimate legislative
acts. His emails were created, transmitted, and considered within the legis-
lative process itself, so the legislators have not waived their claims of privi-
lege. Put another way, waiver has not occurred because those emails have
not been publicly released outside of the legislative process. See id. at 237.
C. When the Privilege Yields
The legislative privilege “must yield” in “extraordinary instances.”
Hughes, 68 F.4th at 237 (cleaned up). That includes cases “where important
federal interests are at stake,” such as the “enforcement of federal criminal
statutes,” United States v. Gillock, 445 U.S. 360, 373 (1980), and “extra-
ordinary civil cases,” Hughes, 68 F.4th at 237–38. But those “qualifications
do not subsume the [legislative privilege].” Id. at 238. The mere fact that
“constitutional rights are at stake” or that there is a “claim of unworthy pur-
pose does not destroy the privilege.” Id. “Even for allegations involving
19
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No. 23-50201
racial animus . . . the Supreme Court has held that the legislative privilege
stands fast.” Id.
LUPE contends that the legislative privilege must yield. We disagree.
LUPE’s claims are largely indistinguishable from those underlying the dis-
pute in Hughes. Both allege S.B.1 violates sections 2 and 208 of the Voting
Rights Act (“VRA”) and the First and Fourteenth Amendments of the U.S.
Constitution. Hughes held that the legislative privilege should not yield in the
face of such claims, see 68 F.4th at 238–39, and that holding applies to this
case in full force. 19
And even if we assume, arguendo, that Hughes’s holding does not
apply, we alternatively hold that this is not a case in which the legislative
privilege must yield. To determine whether this is an extraordinary civil case
to which the privilege yields, we must determine whether this case is “closer
on the continuum of legislative . . . 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 in Gillock.” Hughes, 68 F.4th at 240.
At one end of the continuum is Gillock, which dealt with a federal
criminal prosecution; it is the only binding case that held the legislative privi-
lege yielded. 445 U.S. at 373. At the other end is Tenney and Bogan, both of
which involve private plaintiffs’ claims under 42 U.S.C. § 1983 for alleged
civil rights violations. 20 In neither of those cases did the privilege yield—
notwithstanding “the important federal rights that § 1983 aims to vindicate.”
Hughes, 68 F.4th at 239 (citations omitted).
Three characteristics distinguish Gillock from Tenney and Bogan:
_____________________
19
“[W]e are bound by the Supreme Court and our own caselaw.” Garcia v. United
States, 986 F.3d 513, 531 n.66 (5th Cir. 2021).
20
See Tenney, 341 U.S. at 371; Bogan, 523 U.S. at 47.
20
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No. 23-50201
First, at stake in Gillock was an important federal interest beyond a constitu-
tional or statutory claim involving racial animus. Second, Gillock was decided
in the context of a federal criminal prosecution—that is, an action brought by
the United States as a sovereign enforcing its laws. Last, for the dispute in
Gillock, the marginal benefit gained from vindicating the important federal
interest exceeded the speculative losses resulting from the marginal intrusion
into the state legislative process.
Those three characteristics, in turn, inform the definition of an
“extraordinary civil case” in which the legislative privilege “must yield.”
See id. at 237–38 (cleaned up). A civil case is extraordinary if it satisfies three
elements:
First, the civil case must implicate important federal interests beyond
a mere constitutional or statutory claim. Per Tenney and Bogan, civil cases
involving only civil rights claims are not extraordinary. See Tenney, 341 U.S.
at 371; Bogan, 523 U.S. at 47; see also Hughes, 68 F.4th at 239.
Second, the civil case must be more akin to a federal criminal prose-
cution than to a case in which a private plaintiff seeks to vindicate his own
rights. Gillock highlights two characteristics that are common in federal crim-
inal prosecutions but rare in civil suits. The first characteristic concerns who
is entitled to bring suit. Only the United States, acting as a sovereign, is
entitled to bring federal criminal prosecutions. Similarly circumscribed
should be the cause of action for an extraordinary civil case. The second
characteristic concerns the relief that may be sought. A successful federal
criminal prosecution provides for unique relief (i.e., incapacitation) that
could not be sought by private litigants. Likewise, a civil case is more likely
extraordinary if the cause of action provides additional and unique relief—
above and beyond what may be sought by typical private plaintiffs.
Third, the civil case cannot be brought so frequently that it would, in
21
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No. 23-50201
effect, destroy the legislative privilege. “Our Federalism” demands that we
remain sensitive to “the legitimate interests of both State and National Gov-
ernments” and refrain from “unduly interfer[ing] with the legitimate activi-
ties of the States.” Younger v. Harris, 401 U.S. 37, 44 (1971). Exceptions to
the legislative privilege must not be created at the expense of our “proper
respect for state functions,” id., such as its “impact on [a state legislator’s]
exercise of his legislative function,” Gillock, 445 U.S. at 373. 21
Of those three elements, LUPE’s case satisfies none. The first ele-
ment is not satisfied because LUPE merely alleges that “the Texas Legisla-
ture enacted S.B. 1 with an intent to discriminate against racial minorities.”
LUPE’s case thus fails to implicate any important federal interest beyond
constitutional or statutory claims of racial animus.
Nor is the second factor satisfied. LUPE’s case shares neither of the
characteristics common to federal criminal prosecutions. Take, for example,
LUPE’s racial-animus claim under section 2 of the VRA. The Supreme
Court has long allowed private plaintiffs and the United States to bring VRA
section 2 suits. 22 Private plaintiffs entitled to file VRA section 2 suits are
legion—in stark contrast to federal criminal prosecutions. 23 Moreover, nei-
ther LUPE nor the United States is entitled to any relief beyond what is
available in other private plaintiffs’ VRA section 2 suits. Any judicial relief
granted for successfully litigating a section 2 claim—say, for example, an
_____________________
21
See also Hughes, 68 F.4th at 238 (noting “the privilege would be of little value”
if courts classified so many cases as extraordinary that legislators would constantly “be sub-
jected to the cost and inconvenience and distractions of a trial upon a conclusion of the
pleader, or to hazard a judgment against them based upon a jury’s speculation as to
motives” (quoting Tenney, 341 U.S. at 377)).
22
See, e.g., Brnovich v. Democratic Nat’l Comm., 141 S. Ct. 2321, 2334 (2021). But
see Ark. State Conf. NAACP v. Ark. Bd. of Apportionment, 86 F.4th 1204 (8th Cir. 2023).
23
For this reason, LUPE’s case also fails to satisfy the third element.
22
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No. 23-50201
injunction of a racially-gerrymandered electoral map—is inherently non-
excludable and necessarily accrues to all affected voters regardless of whether
the lawsuit is brought by the United States or by LUPE or any other private
plaintiff. Even VRA section 2 suits brought by the United States in its sover-
eign capacity, which we recognize is no mere plaintiff,24 are not extraordinary
civil cases in which the privilege must yield. That same conclusion neces-
sarily follows for LUPE—a mere private plaintiff.
In sum, this is not “one of those ‘extraordinary instances’ in which
the legislative privilege must ‘yield.’” Hughes, 68 F.4th at 237 (cleaned up).
IV.
In summary: The legislators have standing to bring this appeal as non-
parties, and we have jurisdiction under the collateral order doctrine. Neither
this appeal nor the district court’s order is moot.
The district court’s order is reversible error. The legislative privilege
was properly invoked; protects documents shared and communications made
between the legislators and Vera; and does not yield under the circumstances
here presented.
The order denying legislative privilege is REVERSED.
_____________________
24
See Berger v. United States, 295 U.S. 78, 88 (1935) (“The United States Attorney
is the representative not of an ordinary party to a controversy but of a sovereignty.”).
23
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James E. Graves, Jr., Circuit Judge, dissenting:
I disagree with the majority’s conclusion that the district court
committed error or abused its discretion in finding that legislative privilege
did not apply to the discovery at issue here. Because I would affirm the
district court, I respectfully dissent for the reasons stated herein.
In August 2021, the Texas Legislature passed Senate Bill 1 (S.B. 1),
which amended various provisions of the Texas Election Code related to
voter registration, voting by mail, poll watching, and other election matters.
S.B. 1 also led to the filing of lawsuits by numerous plaintiffs, including La
Union del Pueblo Entero (LUPE), against various Texas officials, both state
and local, on the basis that S.B. 1 violated the Voting Rights Act of 1965, the
Civil Rights Act of 1964, the U.S. Constitution, and various other provisions
of law. The lawsuits were then consolidated. The consolidated litigation has
resulted in multiple interlocutory appeals. Of relevance here:
In October 2021, various local and national Republican committees,
including the Harris County Republican Party, (collectively “HCRP”)
sought to intervene in the case. The district court found that the committees
had not established a legally protectable interest or that the state defendants’
representation would be inadequate. This court reversed and remanded on
appeal, essentially agreeing with the committees’ argument raised for the
first time on appeal that their interest in S.B. 1’s provisions concerning party-
appointed poll watchers warranted intervention. See La Union del Pueblo
Entero v. Abbott, 29 F.4th 299, 306 (5th Cir. March 25, 2022) (LUPE I).
As a result, the committees’ renewed motion to intervene in May
2022 was granted by the district court. The district court also amended the
scheduling order to track proposals offered by the parties. The plaintiffs
(collectively “LUPE”) sought to compel the production of various
documents from the committees and sought additional depositions.
Case: 23-50201 Document: 00517066915 Page: 25 Date Filed: 02/16/2024
Specifically, LUPE asked the district court to order HCRP to respond to
requests 1 and 3 and to provide deposition testimony related to the party’s
communications regarding S.B. 1 with Texas legislators, legislative staff, and
certain executive branch agencies. At a hearing in November of 2022, HCRP
agreed multiple times to produce the documents, said it was “happy” to do
it, and said that it did not believe any of the documents were privileged, which
is presumably why a privilege log was not initially produced. However, in its
subsequent production, HCRP produced 61 documents – only 7 of which
were responsive to the first request – and claimed that no other responsive
documents were identified. LUPE sent a deficiency letter to HCRP in early
2023 asking HCRP to expand their search.
LUPE also served HCRP with notices to depose Alan Vera and others,
including HCRP Chairman Cindy Siegel, pursuant to Rule 30 of the Federal
Rules of Civil Procedure. See Fed. R. Civ. P. 30(b)(1), (6). Vera, a
Republican Party volunteer, was a named document custodian, chair of the
HCRP Ballot Security Committee and a lobbyist who had communicated
with legislators and their staff regarding S.B. 1 and other matters significant
to the party. Vera typically used his personal email address and personal
computer for these communications, but he also used his telephone and
retained written notes. Additionally, Vera had repeatedly provided feedback
on S.B. 1 to various individuals and legislators, including Texas Senator Paul
Bettencourt and Representative Briscoe Caine, who are the third-party
legislators bringing this appeal. Pursuant to his original deposition, Vera
testified that he did not search for any of those documents, nor did he give
anyone access to his computer to do so.
On March 9, 2023, the district court granted the motion, finding that
legislative privilege did not apply. Specifically, the district court ordered
Vera to submit to another deposition, and for Vera and HCRP to produce the
relevant documents under requests 1 and 3. Bettencourt and Caine
25
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(collectively “legislators”), who are not parties and had neither intervened
nor objected to the request, filed a third-party notice of appeal on March 20,
2023. Meanwhile, Vera, who had not yet been re-deposed, suddenly died at
the Texas Capitol in May of 2023 as he was preparing to testify about election
legislation, as he had done repeatedly for many years.
On May 17, 2023, this court decided La Union del Pueblo Entero v.
Abbott, 68 F.4th 228 (5th Cir. 2023) (LUPE II/Hughes). 1 In LUPE II/Hughes,
the League of United Latin American Citizens (LULAC) plaintiffs sought
discovery directly from the non-party legislators, as opposed to outside
parties here. The legislators largely refused and asserted legislative privilege.
The district court rejected most of the privilege claims and ordered the
legislators to produce the documents, but the court also stayed the order
while the legislators filed an interlocutory appeal. This court then reversed
the district court, concluding that legislative privilege applied because
requiring the legislators to respond or comply with those subpoenas would
undermine the purpose of the privilege.
The majority now extends legislative privilege a step farther and
concludes that it applies to outside parties in this appeal, regardless of the
content of the documents involved.
I. Whether the legislators have appellate standing.
The law is well-settled that, typically, a person must either be a party
or first move to intervene or quash to bring an appeal. See United States ex
rel. Eisenstein v. City of New York, 556 U.S. 928, 933 (2009); Marino v. Ortiz,
484 U.S. 301, 304 (1988); Louisiana v. Jack, 244 U.S. 397, 402 (1917); see
also Fed. R. App. P. 3(c)(1)(A). Moreover, the Supreme Court has cautioned
_____________________
1
The majority refers to this decision as Hughes, so I will refer to it as LUPE
II/Hughes in an effort to avoid confusion.
26
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that, “the better practice is for such a non-party to seek intervention for
purposes of appeal.” Marino, 484 U.S. at 304.
However, there is a limited exception for nonparties to appeal. As the
majority recites, there are three factors to be considered to determine the
application of that exception: (1) whether the nonparties actually participated
in the proceedings below; (2) whether the equities weigh in favor of hearing
the appeal; and (3) whether the nonparties have a personal stake in the
outcome. See Castillo v. Cameron Cnty., 238 F.3d 339, 349 (5th Cir. 2001).
The majority’s weighing of the factors is wrong.
* Participation
The majority concludes that the legislators adequately participated in
the district court proceedings by asserting legislative privilege in a letter,
filing “briefing,” and attending hearings. I disagree. Further, the record
does not support the majority’s conclusion that “[e]xtensive is the
legislators’ efforts in defending their claims of legislative privilege.”
To reiterate, no party filed this appeal. The legislators are not parties.
They did not intervene or move to intervene. See Fed. R. App. P. 3(c)(1)(A).
Additionally, as LUPE asserts, they did not actively participate in the
proceedings from which they seek to appeal. They also did not object. The
“briefing” to which the majority refers was the legislators’ letter response to
a motion to compel filed by the LULAC plaintiffs addressed in LUPE
II/Hughes. One response to a separate motion in a massive case does not
constitute “briefing” nor establish active participation for purposes of this
appeal, and the majority fails to cite any authority to establish that it does.
The majority also states that the district court noted, “the legislators
sent ‘a letter asserting various objections including legislative privilege’ and
attended ‘numerous meet-and-confer sessions.’” This reference is to the
second page of the district court’s order granting the LULAC plaintiffs’
27
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motion to compel. However, after recounting that counsel for the legislators
sent the plaintiffs a letter, the district court said: “After numerous meet-and-
confer sessions, the Parties were unable to resolve their disagreements
concerning the State Legislators’ assertions of privilege.” Order, La Union
del Pueblo Entero v. Abbott, No. 5:21-cv-00844-XR, ECF No. 425, at 2 (W.D.
Tex. May 25, 2022) (emphasis added). Importantly, the legislators are not
parties. That sentence does not say the non-parties or the third-parties or the
legislators participated in numerous meet-and-confer sessions. It says “the
Parties” did and “were unable to resolve their disagreements” concerning
the legislators’ assertions, and it was on an entirely different motion and
order that were the subject of a previous appeal before this court. See LUPE
II/Hughes, 68 F.4th at 228.
The majority goes on to say that LUPE misinterprets Castillo, which
involved a non-party who actually brought the motion that was denied by the
order on appeal. Id., 238 F.3d at 349. The majority states that in Castillo,
“[a]lso considered was the non-party’s participation in proceedings other
than the order on appeal. Thus, Castillo cuts against LUPE’s theory and
suggests that non-parties need not participate in the same proceedings
concerning the order on appeal.” (Emphasis original). But Castillo neither
says nor suggests such a conclusion. Moreover, even if Castillo had made any
such suggestion, it would be that non-parties need not participate in the exact
proceedings concerning the appeal if they were previously a named party who
actively participated throughout the proceedings. See Castillo, 238 F.3d at
350. Not only was the non-party here never a named party, but there was
only one letter in response to an earlier motion.
The majority also cites Maiz v. Virani, 311 F.3d 334 (5th Cir. 2002), as
further support for the claim that Castillo suggests something that it does not.
Maiz involved judgment creditors and the use of the Texas turnover statute
to strip corporations of assets without prior adjudication to pierce the
28
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corporate veils. This court reversed and remanded, concluding that “the
Texas turnover statute cannot be utilized to adjudicate the substantive
property rights of the two non-judgment debtor corporations in this case
without a prior judicial determination which pierces their corporate veils.”
Id. at 336. But the connection between the corporations and the action,
importantly, does not exist here, as the legislators are not corporations being
stripped of tens of millions of dollars via the Texas turnover statute.
The majority also states that “[t]he legislators had previously been
served with third-party subpoenas—seeking the same documents and
communications at issue in this appeal—by plaintiffs in the consolidated
district court proceedings.” The majority’s emphasis on “same” is unclear.
It is also unclear how the majority determined that these are all “the same
documents and communications,” particularly since even the appellants only
loosely assert that there may be some of the same documents. Further, the
appellees assert that the legislators failed to serve a privilege log, which would
be relevant for the majority to make such a determination. In the case of
reversal, the appellees ask this court to remand to the district court to
consider, in the first instance, to what extent any fact-based information
should be disclosed in light of any privilege log produced. The requirement
of a privilege log and the applicability of legislative privilege pertaining to
documents and communications shared with third parties are issues in
Jackson Municipal Airport Authority v. Harkins, 21-60312, 2023 WL 5522213
(5th Cir. Aug. 25, 2023), which is currently before this court on rehearing en
banc. See Harkins, 78 F.4th 844 (5th Cir. Aug. 29, 2023). 2
_____________________
2
I am recused in this matter, as is Judge Wilson. However, based on the majority’s
handling of the issues here, this matter should likely be stayed pending the en banc court’s
resolution of Harkins.
29
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Under this factor, the legislators have failed to establish that they have
actually participated. This conclusion is also consistent with authority from
other circuits. See Habelt v. iRhythm Tech., Inc., 83 F.4th 1162, 1165-67 (9th
Cir. 2023) (No standing to appeal where Habelt filed initial complaint but did
not participate in case after the appointment of the lead plaintiff); see also
United States ex rel. Alexander Volkhoff, LLC v. Janssen Pharmaceutica N.V.,
945 F.3d 1237, 1241-42 (9th Cir. 2020) (“We have allowed nonparties to
appeal when they were significantly involved in the district court
proceedings”) (emphasis added); Doe v. Public Citizen, 749 F.3d 246 (4th
Cir. 2014) (A non-party may appeal, in relevant part, where he “participated
in the proceedings actively enough to make him privy to the record.”)
(emphasis added) (quoting Kenny v. Quigg, 820 F.2d 665, 668 (4th Cir.
1987)).
* Equities
The majority states that the equities weigh in favor of allowing the
legislators to appeal for two reasons, (1) this appeal is the only means for
obtaining relief and (2) denials of legislative privilege affects interests far
beyond this case. I disagree.
The majority recites a quote from United States v. Chagra, 701 F.2d
354 (5th Cir. 1983) that “a non-party may appeal orders for discovery if he
has no other effective means of obtaining review.” Id. at 359. But Chagra
can be distinguished.
Chagra involved the access of the press to a pretrial bail reduction
hearing in a criminal trial for the murder of a federal judge in San Antonio.
Id. at 355-56. The defendant asked the court to close the hearing because
evidence adduced there, if published, would prejudice his right to a fair trial.
Id. at 356. The magistrate closed a portion of the hearing and ordered the
transcript sealed. The magistrate then reopened proceedings but announced
30
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that he intended to hear additional matters in camera the next morning. A
couple of newspapers objected the next day. Chagra again moved to close a
portion of the hearing regarding a prior statement he had given. After hearing
arguments from the newspapers, the magistrate again closed the hearing.
The newspapers then asked the district court to vacate the magistrate’s order
and to unseal the transcripts. Id. at 356-57. The district court heard
arguments on the newspapers’ motions and concluded that there was not
sufficient evidence to support the closing of the courtroom. The district
scheduled a later hearing to accept evidence on the closure order. At the
subsequent hearing, “[t]he newspapers were afforded a full opportunity to
participate.” Id. at 357. The district court ultimately ruled that the closure
order was justified. The newspapers appealed to this court.
In a paragraph setting out various provisions of general law, this court
included the proposition quoted by the majority. Id. at 359 (citing United
States v. Nixon, 418 U.S. 683, 692 (1974) and Branch v. Phillips Petroleum Co.,
638 F.2d 873, 877-79 (5th Cir. 1981). In Branch, this court said that: “The
theory of allowing an appeal rests on the proposition that forced disclosure
would irretrievably breach the claim of privilege and render an appeal from
final judgment meaningless....” Id. at 878 (quoting Cates v. LTV Aerospace
Corp., 480 F.2d 620, 622 (5th Cir. 1973)). Significantly, this court then
pointed out that the Supreme Court rejected that argument in United States
v. Ryan, 402 U.S. 530 (1971).
In Ryan, the Supreme Court said:
We think that respondent’s assertion misapprehends
the thrust of our cases. Of course, if he complies with the
subpoena he will not thereafter be able to undo the substantial
effort he has exerted in order by [sic] comply. But compliance
is not the only course open to respondent. If, as he claims, the
subpoena is unduly burdensome or otherwise unlawful, he may
31
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refuse to comply and litigate those questions in the event that
contempt or similar proceedings are brought against him.
Should his contentions be rejected at that time by the trial
court, they will then be ripe for appellate review.
Id. at 532 (internal marks and citations omitted).
These cases clearly establish that this is not the legislators only means
of review.
The majority quotes LUPE II/Hughes for the proposition that the
legislators “cannot ‘retract privileged information that has been shared into
the public domain.’” Id., 68 F.4th at 234 (internal citation omitted).
However, again, the legislators have another option. Moreover, LUPE
II/Hughes is easily distinguished as the discovery there was sought directly
from individual, non-party state legislators. Id. at 231. The discovery here is
sought from the HCRP. The majority dismisses that fact, saying it “ is not a
meaningful distinction.” But it absolutely is a meaningful distinction because
the HCRP is not entitled to legislative privilege. Also, the majority cites no
basis in the law or the record for its conclusion that any communication
between a legislator and any outside party regarding any aspect of S.B. 1 is
entitled to legislative privilege without qualification.
Additionally, the majority’s reliance on LUPE II/Hughes is misplaced,
as the analysis it cites was pertaining to whether this court had appellate
jurisdiction to consider the interlocutory appeal, not whether the non-party
legislators had standing to appeal. See id. at 232-34 (citing Cohen v. Beneficial
Indus. Loan Corp., 337 U.S. 541 (1949). Significantly, LUPE II/Hughes did
not address the Castillo factors for non-party standing to appeal.
The equities weigh against hearing the appeal.
* Personal Stake
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The majority concludes that the legislators are able to establish a
personal stake in the outcome. I disagree.
LUPE asserts that the legislators surrendered whatever interest they
might have had in the confidentiality of the documents when they shared
them with multiple people outside the Legislature. The majority disagrees
and points to LUPE II/Hughes. However, again, the discovery in LUPE
II/Hughes was sought directly from the legislators. I do not dispute that the
legislators may not have surrendered their interest in the confidentiality of
documents they maintained in their possession. But the discovery here is
sought from third parties and includes documents the third parties produced
independently. The majority cites no authority that allows the extension of
legislative privilege to any such materials. The legislators are unable to
establish a personal stake. Thus, they are without standing to bring this
appeal.
But the majority does not stop there. The majority cites Gravel v.
United States, 408 U.S. 606, 616 (1972), for the proposition that legislative
privilege may extend to the legislators’ aides and assistants and quotes the
following: “[T]he privilege available to the aide is confined to those services
that would be immune legislative conduct if performed by the [legislator]
himself.” Id. at 622. The majority then relies on Gravel to conclude that,
“there is no reasoned basis to draw the line at aides and assistants.” I submit
that Gravel supplied the reasoned basis by logically allowing the privilege to
extend only to a congressional employee or subordinate. Id. at 618, 620, 637
n. 3, 663. There is no authority for the majority’s perversion of legislative
privilege by expanding its application, based exclusively on speculation and
without so much as a privilege log, to include any random party volunteer or
operative who ever communicated with a legislator on a given topic.
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For these reasons, I would affirm the district court. Accordingly, I
respectfully dissent.
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