Reply Brief — Joseph B. Scarnati, III, In His Capacity as Senate President Pro Tempore, Appellant v. Louis Agre, et al.

No. 17-1368

In The

Supreme Court of the United States

JOSEPH B. SCARNATI, III

IN HIS CAPACITY AS PENNSYLVANIA

SENATE PRESIDENT PRO TEMPORE,

Appellant,

V.

LOUIS AGRE, ET AL.,

Appellees.

On Appeal from the

United States District Court

for the Eastern District of Pennsylvania

RESPONSE IN OPPOSITION TO MOTIONS

TO DISMISS OR AFFIRM

Jason Torchinsky

Counsel of Record

Shawn T. Sheehy

Phillip M. Gordon

Holtzman Vogel

Josefiak Torchinsky PLLC

45 North Hill Drive

Suite 100

Warrenton, VA 20186

(540) 341-8808

(540) 341-8809 (Fax)

Jtorchinsky@hvjt.law

Brian S. Paszamant

Jason A. Snyderman

Michael D. Silberfarb

Blank Rome LLP

130 North 18th Street

Philadelphia, PA 19103

(215) 569-5500

(215) 569-5555 (Fax)

Paszamant@BlankRome.com

Counsel for Appellant

LANTAGNE LEGAL PRINTING

801 East Main Street Suite 100 Richmond, Virginia 23219 (800) 847-0477

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... ii

I.

INTRODUCTION ............................................... 1

II.

ARGUMENT ....................................................... 3

A. This Court Has Jurisdiction To

Consider The Appeal ..................................... 3

B.

This Court Should Remand To The

District Court To Allow For Appeal

To The Circuit Court If It Lacks

Jurisdiction ................................................ 5

C.

This Case Is Not Moot ............................... 8

D. Appellant Scarnati Has Standing ....................... 10

III. CONCLUSION ................................................. 12

ii

TABLE OF AUTHORITIES

CASES

Agre v. Wolf,

284 F. Supp. 3d 591 (E.D. Pa. 2018) ..................... 5

Deposit Guaranty Nat. Bank. v. Roper,

445 U.S. 326 (1980) ................................................ 7

Donovan v. Association for Retarded Citizens,

454 U.S. 389 (1982) ............................................ 6, 7

FEC v. Wis. Right to Life, Inc.,

551 U.S. 449 (2007) .............................................. 10

Goldstein v. Cox,

396 U.S. 471 (1970) ................................................ 4

Gunn v. Univ. Committee to End the War in

Viet Nam,

399 U.S. 383 (1970) ................................................ 4

Lewis v. BT Inv. Managers, Inc.,

447 U.S. 27 (1980) .................................................. 3

MTM, Inc. v. Baxley,

420 U.S. 799 (1975) ............................................ 5, 6

Mengelkoch v. Industrial Welfare Com.,

393 U.S. 83 (1968) .............................................. 5, 6

Mitchell v. Donovan,

398 U.S. 427 (1970) ............................................ 5, 6

iii

Mohawk Indus. v. Carpenter,

558 U.S. 100 (2009) ............................................ 4, 7

Republican Caucus of Pa. House of

Representatives v. Vieth,

537 U.S. 801 (2002) ................................................ 4

Roe v. Wade,

410 U.S. 113 (1973) ................................................ 3

U.S. v. SCRAP,

412 U.S. 669 (1973) .............................................. 10

United States v. Gillock,

445 U.S. 360 (1980) ................................................ 2

Vieth v. Pennsylvania,

67 F. App'x 95 (3d Cir. 2003) ................................. 4

White v. Regester,

412 U.S. 755 (1973) ................................................ 3

Wilson v. Port Lavaca,

391 U.S. 352 (1968) ............................................ 5, 6

STATUTES

28 U.S.C. §1252 ........................................................... 6

28 U.S.C. §1253 ........................................................... 3

28 U.S.C. §1291 ........................................................... 6

1

I.

INTRODUCTION

Appellant Senator Joseph B. Scarnati, III, in

his official capacity as President Pro Tempore of the

Pennsylvania Senate (“Appellant”) submits this

Brief in opposition to the Motions to Dismiss

Appellant’s Jurisdictional Statement (“JS”) filed by

Plaintiffs (“Plaintiff/Appellees”) and Executive

Defendants (“Executive-Appellees”).1

The speech or debate privilege, which predates the founding of the country, has a

straightforward purpose: It allows legislators to

investigate all facts underpinning legislation without

fear that the sources they rely upon could be utilized

by opponents for political purposes. See JS at 17-20.

Plaintiff/Appellees do not dispute the privilege’s

continued existence, nor do they call for its

elimination. Rather, they ask this Court to adopt a

“balancing test” under which, anytime a federal

court finds an undefined “important federal interest”

at stake, the privilege would be qualified, and any

documents considered by a legislator—which would

otherwise be protected from disclosure—would then

become discoverable. See Plaintiff/Appellees’ Motion

to Dismiss or Affirm (“MTD”) at 20-25, 28-29.

The

problem

with

Plaintiff/Appellees’

proposed balancing test—a test that has been

incorrectly adopted by various lower federal courts—

is that, in practice, it eviscerates the privilege.

Under the test, the privilege is qualified or

eliminated any time a federal judge decides that the

legislation at issue touches on an “important federal

1 Capitalized terms used herein but not defined are ascribed

the meaning given to them in the JS.

2

interest”—a term undefined by Plaintiff/Appellees or

any court that has adopted it. And a state legislator

considering legislation on any topic cannot know in

advance whether the sources she considers will one

day be disclosed. The legislator is thus forced to

assume that any information considered about any

legislation could later be publicly revealed—and the

legislative process is necessarily chilled.2

The issue raised in the JS—whether and to

what extent the speech or debate privilege can be

qualified— has arisen in virtually every redistricting

case in the past twenty years, including at least two

cases currently pending before this Court. And,

whether the privilege is upheld has almost always

played a critical part in the panels’ determination of

whether to grant injunctions. Yet, there has been no

consistency in how district courts overseeing

redistricting cases have applied the privilege. JS at

23-24 (detailing the substantial split of authority).

While Plaintiff/Appellees insist that the balancing test is

supported by this Court’s precedent, in fact this Court has

never applied such a test, and it has only found the privilege to

be qualified a single time: in the criminal context, when the

federal government sought discovery from a state senator

accused of violating federal bribery laws. See United States v.

Gillock, 445 U.S. 360 (1980). In dicta, the Court noted that the

privilege could be qualified in that case because the criminal

accusations touched on an “important federal interest.” Id. at

373. From this single phrase—repeated six separate times in

the MTD—Plaintiff/Appellees make several unsupported

claims. They claim that Gillock substantially weakened the

privilege; that the evidentiary privilege is weaker than the

corollary immunity; and that the privilege should always be

subject to a balancing test. See MTD 20-25. But, in the nearly

forty years since Gillock was decided, this Court has never

issued an opinion supporting any of these claims—nor has it

found that the privilege (or the corollary immunity) can be

qualified in any context other than in a criminal case.

2

3

Nonetheless, Appellees urge the Court to

refuse to even consider what they correctly refer to

as the “weighty privilege issues” raised in this

Appeal—not on substantive grounds—but based on

jurisdiction, mootness and standing. For the reasons

set forth herein, Appellees’ procedural arguments

should be rejected.

II.

ARGUMENT

A. This Court Has Jurisdiction To

Consider The Appeal

Appellees urge the Court to dismiss the

Appeal for lack of jurisdiction under 28 U.S.C. §1253

because the Orders being challenged do not result

directly in the granting or denial of an injunction.

Executive Appellees’ Motion to Dismiss (“EMTD”) at

5-7; MTD 7-9. This argument must be rejected.

Section 1253 provides that this Court has direct

appellate jurisdiction to consider the propriety of an

order granting or denying an injunction in actions

“required by an Act of Congress to be heard and

determined by a district court of three judges.”

Although the language of §1253 speaks only to this

Court having jurisdiction to consider appeals in

which an injunction is granted or denied, the Court

regularly exerts jurisdiction to consider final orders

addressing issues that are intertwined with an order

granting or denying an injunction. See Lewis v. BT

Inv. Managers, Inc., 447 U.S. 27, 35 & n.5 (1980);

Roe v. Wade, 410 U.S. 113, 123 (1973); White v.

Regester, 412 U.S. 755, 760 (1973).

Appellees respond to this precedent by citing to

a handful of cases in which the Court held,

4

unremarkably, that absent a final order granting or

denying an injunction, the Court lacks jurisdiction to

consider any direct appeal under §1253. See e.g.,

Goldstein v. Cox, 396 U.S. 471, 478-79 (1970) (no

jurisdiction to consider denial of summary judgment

where court had not issued order granting or denying

injunction); Gunn v. Univ. Committee to End the War

in Viet Nam, 399 U.S. 383, 390 (1970) (absent order

granting an injunction, the court lacks jurisdiction

over §1253 appeal).3 But these cases do not limit the

Court’s jurisdiction to consider issues in a case where

an injunction has been granted or denied (as in the

instant matter), so long as those issues are closely tied

to the merits of the injunction sought.

There can be little doubt that the Orders

challenged here are closely tied to the Panel’s denial

of the injunction; in fact, they are inseparable from it.

And it is the Court’s order denying Plaintiff/Appellees’

request for an injunction that made the Orders final

and appealable. Mohawk Indus. v. Carpenter, 558 U.S.

100, 107-09 (2009) (discovery orders related to

privilege are not final and appealable until final

judgment). And, as the Opinions of two of the three

members of the Panel make clear, the privileged

information that Appellant and Speaker Turzai were

3 Plaintiff/Appellees cite to Republican Caucus of Pa. House of

Representatives v. Vieth, 537 U.S. 801 (2002) for the proposition

that §1253 does not confer jurisdiction on this Court over direct

appeals from orders related to privilege.

While

Plaintiff/Appellees claim that the circumstances in Vieth are

“identical” to those here, they are not. Id. Vieth involved an

attempt by an appellant to file a direct appeal on a discovery

issue prior to a three-judge panel’s injunction order. Vieth v.

Pennsylvania, 67 F. App’x 95, 97-98 (3d Cir. 2003). Because

there was no final order at the time the discovery order was

appealed, the Court had no jurisdiction to consider it.

5

forced to disclose played central roles in each of the

Panel members’ decisions. Agre v. Wolf, 284 F. Supp.

3d 591, 645 & n.28 (E.D. Pa. 2018) (Shwartz, J.

concurring) (partisan intent was a substantial

component of the 2011 Plan); id. at 675 (Baylson, J.

dissenting) (relying on privileged information when

finding that the 2011 Plan violated the Elections

Clause). Moreover, throughout the trial below,

Appellees argued that the privileged information that

is the subject of the Orders was critical support for

their proposed injunction. Trial Tr. vol. 8, 40:9-42:13,

46:2-47:24, 49:2-10, 47:25-48:12, 49:11-24, 12/7/2017,

ECF No. 198-1. For these reasons, this Court has

jurisdiction over the Appeal.

B.

This Court Should Remand To The

District Court To Allow For Appeal

To The Circuit Court If It Lacks

Jurisdiction

If the Court finds, however, it does not have

jurisdiction under §1253, it should remand the case

with direction to permit the filing of an appeal to the

Third Circuit. In cases where this Court has found

that an appellant lacks jurisdiction under §1253 or

analogous statutes, the Court has consistently

“vacat[ed] the judgment below and remand[ed] the

case to the District Court so that it may enter a fresh

decree from which a timely appeal may be taken to

the Court of Appeals.” Wilson v. Port Lavaca, 391

U.S. 352, 352 (1968); see also MTM, Inc. v. Baxley,

420 U.S. 799, 804 (1975); Mitchell v. Donovan, 398

U.S. 427, 431-32 (1970); Mengelkoch v. Industrial

Welfare Com., 393 U.S. 83, 84 (1968). In these cases,

the Court remanded despite the fact that the

6

appellant, like Appellant here, did not file a “safety

appeal” in the circuit court. See id.

Plaintiff/Appellees argue that the Court

should not remand because Appellant should have

followed “established procedures for obtaining

review.” MTD at 10. Among the procedures

suggested by Plaintiff/Appellees is that Appellant

could have refused to comply with the Orders and

accepted sanctions or subjected himself to contempt.

MTD at 11. Alternatively, Plaintiff/Appellees suggest

that remand should be denied because Appellant

could have sought mandamus or a stay of the

proceedings below. Id. But this Court has never held

that remand is contingent upon a party exposing

itself to contempt or sanctions, nor should it. If it

did, every party with a case pending in front of a

three-judge panel would be encouraged to violate

discovery orders or seek immediate relief therefrom.

Donovan v. Association for Retarded Citizens,

454 U.S. 389 (1982), the only case Plaintiff/Appellees

cite where a request for remand was denied, does not

help them. In Donovan, appellants, after

unsuccessfully defending the constitutionality of a

statute at the district court level, were unequivocally

entitled to appeal directly to this Court but chose to

appeal to the circuit court, which did not have

jurisdiction. Id. at 389-90 (citing 28 U.S.C. §1252

(providing for direct appellate jurisdiction to this

Court) and 28 U.S.C. §1291 (if this Court has

jurisdiction to consider a direct appeal, then the

circuit court lacks jurisdiction)). After the appeal

was denied by the circuit court, appellants appealed

to this Court, which vacated the circuit court’s order

for want of jurisdiction and denied the appeal as

7

untimely. Donovan, 454 U.S. at 390. The Court also

refused to remand to the district court because of

appellants’ “failure … to follow the clear commands of

[§§ 1252 and 1291].” Id. at 390-91. In contrast, the

appellate procedures set forth in §1253, the statute at

issue here, are not clear, which is why the Court has

remanded every case in which a party incorrectly

appealed under that statute. See supra, at 6-7.

Plaintiff/Appellees have identified no reason why the

Court should depart from its established course.

Next, Plaintiff/Appellees argue that the Court

should not remand the decision because the circuit

court lacks jurisdiction to consider a direct appeal on

discovery issues. See MTD at 12. But in so arguing,

Plaintiff/Appellees misstate the holding of Mohawk,

which held only that a direct appeal of a discovery

order cannot be sought until after a final order on the

merits. 558 U.S. at 108-9 (“We routinely require

litigants to wait until after final judgment to vindicate

valuable rights, including rights central to our

adversarial system”). Here, unlike in Mohawk, the

Panel had issued a final order on the merits when the

JS was filed. Accordingly, a direct appeal was proper.

Finally, Plaintiff/Appellees argue that remand

is inappropriate because “as the prevailing party

below, Scarnati may not appeal from the final

judgment.” MTD at 12 (citing Deposit Guaranty Nat.

Bank. v. Roper, 445 U.S. 326, 333 (1980)).

Plaintiff/Appellees are once again wrong. Roper held

that an “appeal may be permitted from an adverse

ruling collateral to the judgment on the merits at the

behest of the party who has prevailed on the merits,

so long as that party retains a stake in the appeal

satisfying the requirements of Article III.” Roper,

8

445 U.S. at 334. Here, Appellant has standing to

bring the Appeal, so Roper is inapposite.

For these reasons, if the Court finds that it

does not have jurisdiction to review this Appeal, it

should vacate the Panel’s decision and remand to the

Panel for a new Order.

C.

This Case Is Not Moot

Appellees also argue that the case is moot

because the Court cannot grant effectual relief. MTD

at 13-14; EMTD at 7-9. In support of this argument,

Appellees rely on: (i) Appellant’s successful defense of

the 2011 Plan below; (ii) the Plan’s invalidation by the

Pennsylvania Supreme Court; and (iii) the public

release of certain of the disclosed privileged materials.

But these events do not prevent the Court from

considering the Appeal. Rather, under the wellestablished exception to the mootness doctrine, the

Court can consider the Appeal because it is capable of

repetition yet evading review. JS at 37.

Executive-Appellees make no attempt to argue

that

this

exception

is

inapplicable,

and

Plaintiff/Appellees only challenge the existence of one

of the exception’s two prongs. They argue that the

issues identified in the JS will not evade review

because “future litigants who ‘reflect upon their

appellate options’ will quickly identify several means

of securing intermediate appellate review,” such as

filing for mandamus, seeking interlocutory review or

violating the order and accepting a contempt charge.

MTD at 14. But none of these options provide

definitive appellate protection. Seeking interlocutory

review or mandamus requires satisfying an

9

exceptionally high burden of proof. And, the notion

that a party should subject himself to contempt

charges merely to attempt to establish appellate

rights is absurd.

Perhaps recognizing the illusory nature of the

aforementioned

“appellate

options,”

Plaintiff/Appellees further argue that a “future

litigant who loses at final judgment will be able to

present the issue on direct appeal to a circuit court.”

MTD at 14. In other words, Plaintiff/Appellees argue

that a legislator could only challenge a ruling

requiring him to produce privileged information if his

objection to producing such information is overruled

and the district court ultimately rules against him on

the merits. But, this is impractical at best, because

decisions regarding the qualification of the speech or

debate privilege most often arise in redistricting

cases—where plaintiffs’ challenges are almost always

denied—legislators will rarely, if ever, have that

opportunity. Thus, the avenues of appeal identified by

Plaintiff/Appellees do not provide an effective means

to challenge an adverse privilege ruling.

Empirical evidence bears this out. In the 30

years since the first district court applied Gillock to

qualify the speech or debate privilege in a civil case,

state legislators have regularly been required to

disclose privileged information. See JS at 24. And,

despite all of Plaintiff/Appellees’ confidence in the

availability of an appeal, the substantive issue of

whether the speech or debate privilege can be

qualified in redistricting cases has never reached

this Court. The issues raised in this appeal will

continue to evade review until this Court resolves

10

the issue; it is not moot. See FEC v. Wis. Right to

Life, Inc., 551 U.S. 449, 462-64 (2007).

D.

Appellant Scarnati Has Standing

Plaintiff/Appellees also claim that Appellant

lacks standing to bring this appeal because two of the

Orders being challenged, those dated November 22,

2017 and November 28, 2017, addressed motions

made by only Speaker Turzai, not Appellant. MTD at

16-18. This contention must be rejected for several

reasons. First, there is no dispute that Appellant has

standing to challenge the Panel’s November 9, 2017

Order, which required Appellant to produce privileged

documents over his objection. JS at 8-9. That alone

establishes standing to pursue this Appeal, regardless

of whether he can appeal the other Orders. U.S. v.

SCRAP, 412 U.S. 669, 689 n. 14 (1973) (“We have

allowed important interests to be vindicated by

plaintiffs with no more at stake in the outcome of an

action than a fraction of a vote, a $5 fine and costs,

and a $1.50 poll tax”) (citations omitted).

Moreover, even though Appellant was not an

express party to the November 22 and November 28,

2017 Orders, he still possesses standing to appeal

them. The aforementioned November 9, 2017 Order,

which was undoubtedly applicable to Applicant,

established the law of the case “that the legislative

privilege is a qualified privilege that may be pierced”

and that it “does not shield communications thirdparties … nor protect facts and data considered in

connection with redistricting”. While Appellant was

not a movant bringing about the November 22, 2017

and November 28, 2017 Orders, those Orders flow

inexorably from the November 9, 2017 Order. For

11

example, the November 22, 2017 Order begins by

noting that the motion it denied “would arguably

extend to” discovery already covered in its November

9, 2017 Order. Similarly, the November 28, 2017

Order notes that counsel had apparently

misinterpreted its prior Orders, which were meant to

be “a ruling on any assertion of legislative privilege”.

App. 342-45. If Appellant has standing to challenge

one of the Orders, which he clearly does, he has

standing to challenge them all.

Finally,

Plaintiff/Appellees

argue

that

Appellant “waived” his standing to appeal the

November 22, 2018 Order denying Speaker Turzai’s

motion seeking a protective order precluding his

deposition.

MTD

at

17.

In

support,

Plaintiff/Appellees note Appellant’s withdrawal of

his motion to quash his noticed deposition following

entry of the Order denying Speaker Turzai’s motion.

This argument must be rejected. Appellant’s motion

to quash was substantively identical to Speaker

Turzai’s motion. With denial of Speaker Turzai’s

motion, Appellant knew he would be forced to sit for

a deposition and therefore withdrew his plainly

futile motion.4 Clearly, Appellant would not have

been subject to a deposition and required to reveal

privileged information but for the November 22,

2018 Order. Thus, Appellant has standing to

challenge the November 22, 2018 Order.

4 The notion that Appellant was required to continue to litigate

his motion when the panel already rejected an identical Motion

from Speaker Turzai flies in the face of judicial economy—a

particularly important consideration here where the parties

were operating under an incredibly compressed and expedited

schedule (63 days from Complaint to trial).

12

III.

CONCLUSION

For the reasons set forth herein, the Motions

should be denied.

Dated: May 11, 2018

Respectfully submitted,

HOLTZMAN VOGEL

JOSEFIAK

TORCHINSKY PLLC

BLANK ROME

/s/ Jason Torchinsky

JASON B. TORCHINSKY

Counsel of Record

SHAWN T. SHEEHY

PHILIP M. GORDON

45 N. Hill Dr., Suite 100

Warrenton, VA 20186

Phone: 540-341-8808

Facsimile: 540-341-8809

JTorchinsky@hvjt.law

/s/ Brian S. Paszamant

BRIAN S. PASZAMANT

JASON A. SNYDERMAN

MICHAEL D. SILBERFARB

One Logan Square

130 N. 18th St.

Philadelphia, PA 19103

Phone: 215-569-5791

Facsimile: 215-832-5791

Paszamant@blankrome.com

Attorneys for Appellant

Senator Joseph B. Scarnati, III