Petition for Writ of Certiorari — In Re Warren Petersen, et al., Petitioners
Supreme Court briefAug 20, 2024
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No.
In the
Supreme Court of the United States
IN RE WARREN PETERSEN, ET AL.
ON PETITION FOR A WRIT OF MANDAMUS
TO THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
PETITION FOR A WRIT OF MANDAMUS
JAMES OTIS LAW GROUP
D. John Sauer
Counsel of Record
Justin D. Smith
Michael E. Talent
Kenneth C. Capps
13321 N. Outer Forty Rd.
Suite 300
St. Louis, Missouri 63017
(314) 562-0031
John.Sauer@james-otis.com
August 20, 2024
i
QUESTIONS PRESENTED
(1) Whether, in a private civil action challenging the
constitutionality of a state law, the leaders of a state
legislature
waive
the
legislative
privilege’s
protections, including for legislative motives, when
they exercise their statutory right to intervene to
defend the law.
(2) Whether, in a private civil action challenging the
constitutionality of a state law, the leaders of a state
legislature waive the Morgan doctrine’s protections
for high-ranking officials when they exercise their
statutory right to intervene to defend the law.
ii
PARTIES TO THE PROCEEDING
Petitioners (intervenor-defendants in the district
court, and mandamus petitioners in the court of
appeals) are Warren Petersen, President of the
Arizona State Senate; and Ben Toma, Speaker of the
Arizona House of Representatives.
Respondent in this Court is the United States
District Court for the District of Arizona.
Respondents also include Jane Doe, by her next
friends and parents Helen Doe and James Doe; and
Megan Roe, by her next friends and parents Kate Roe
and Robert Roe (collectively plaintiffs in district court,
and real parties in interest in the court of appeals).
Respondents also include Thomas C. Horne, in his
official capacity as State Superintendent of Public
Instruction; Laura Toenjes, in her official capacity as
Superintendent of the Kyrene School District; Kyrene
School District; The Gregory School; and the Arizona
Interscholastic
Association,
Inc.
(collectively
defendants in district court, and real parties in
interest in the court of appeals).
iii
RELATED PROCEEDINGS
United States District Court (D. Arizona):
x Doe v. Horne, No. CV-23-00185 (June 20, 2024)
United States Court of Appeals (9th Cir.):
x In re Petersen, No. 24-4335 (order issued Aug.
8, 2024)
x Doe v. Horne, No. 23-16026 c/w No. 23-16030
(9th Cir.) (argued Mar. 14, 2024)
iv
TABLE OF CONTENTS
QUESTIONS PRESENTED ........................................ i
PARTIES TO THE PROCEEDING ........................... ii
RELATED PROCEEDINGS ..................................... iii
TABLE OF CONTENTS ............................................ iv
TABLE OF AUTHORITIES....................................... vi
OPINIONS BELOW .................................................... 1
JURISDICTION .......................................................... 1
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED .................................... 2
INTRODUCTION ........................................................ 2
STATEMENT OF THE CASE .................................... 5
REASONS FOR GRANTING THE PETITION ....... 11
I. The President and Speaker Have No Other
Adequate Means to Attain Relief ................... 12
II. The District Court Clearly and Indisputably
Erred by Ordering Discovery of Legislative
Motives from High-Ranking Legislators ....... 13
A. The district court clearly and indisputably
erred by disregarding the legislative
privilege and ordering discovery of
legislative motives ..................................... 14
B. The district court clearly and indisputably
erred by disregarding the Morgan doctrine
and ordering depositions of high-ranking
legislators .................................................. 28
III.The Writ Is Appropriate Under the
Circumstances. ............................................... 30
CONCLUSION .......................................................... 32
APPENDIX
v
Order of the United States Court of Appeals
for the Ninth Circuit Denying Petition
for Mandamus and Motion for Stay
Pending Appeal, Ct. App. Doc. 9.1
(August 8, 2024) .................................................. 1A
Order of the United States District Court
for the District of Arizona Granting
Plaintiffs’ Motion to Compel, D. Ct. Doc. 211
(June 20, 2024) .................................................... 3A
Order of the United States District Court
for the District of Arizona Denying
Intervenor-Defendants’ Motion for Stay
Pending Appeal, D. Ct. Doc. 218
(July 12, 2024) ................................................... 21A
Order of the United States District Court
for the District of Arizona Granting
Plaintiffs’ Motion to Extend Fact Discovery,
D. Ct. Doc. 224 (July 30, 2024) ......................... 25A
Constitutional and Statutory Provisions .............. 27A
U.S. CONST. Art. I, § 6, cl. 1 .............................. 27A
ARIZ. CONST. Art. IV, pt. 2, § 7 ......................... 27A
ARIZ. CONST. Art. IV, pt. 2, § 8 ......................... 27A
A.R.S. § 12-1841 ................................................ 27A
A.R.S. § 15-120.02 ............................................. 29A
vi
TABLE OF AUTHORITIES
Cases
Page(s)
Am. Trucking Ass’ns, Inc. v. Alviti,
14 F.4th 76 (1st Cir. 2021) ................................... 18
Arizona v. California,
283 U.S. 423 (1931) .......................................... 3, 15
Arizona State Legislature v. Arizona Indep.
Redistricting Comm’n,
576 U.S. 787 (2015) ................................................ 6
Berger v. N.C. State Conference of the NAACP,
597 U.S. 179 (2022) ........................... 4-5, 24-26, 31
Blankenship v. Fox News Network, LLC,
2020 WL 7234270 (S.D. W. Va. Dec. 8, 2020) ..... 29
Brown & Williamson Tobacco Corp. v. Williams,
62 F.3d 408 (D.C. Cir. 1995) .......................... 20, 22
Calder v. Michigan,
218 U.S. 591 (1910) .............................................. 15
Cheney v. United States Dist. Court,
542 U.S. 367 (2004) .................................. 11, 13, 31
City of Las Vegas v. Foley,
747 F.2d 1294 (9th Cir. 1984) .............................. 21
Coffin v. Coffin,
4 Mass. 1 (1808) ..................................................... 2
Dep’t of Com. v. New York,
139 S. Ct. 953 (2019) ............................................ 12
Eastland v. U.S. Servicemen’s Fund,
421 U.S. 491 (1975) ............................... 2, 16-17, 28
Ex parte McCardle,
74 U.S. 506 (1868) ................................................ 14
Feldman v. Bd. of Educ.,
2010 WL 383154 (D. Colo. Jan. 28, 2010) ........... 29
vii
Fletcher v. Peck,
10 U.S. 87 (1810) .............................................. 2, 14
Gravel v. United States,
408 U.S. 606 (1972) ................................... 15, 17-18
Gregory v. Ashcroft,
501 U.S. 452 (1991) .............................................. 26
Hamilton v. Kentucky Distilleries & Warehouse Co.,
251 U.S. 146 (1919) .......................................... 2, 14
Hollingsworth v. Perry,
558 U.S. 183 (2010) .................................. 11, 13, 31
In re Clinton,
973 F.3d 106 (D.C. Cir. 2020) .............................. 30
In re F.D.I.C.,
58 F.3d 1055 (5th Cir. 1995) ................................ 30
In re Grand Jury Subpoenas,
571 F.3d 1200 (D.C. Cir. 2009) ............................ 20
In re Hubbard,
803 F.3d 1298 (11th Cir. 2015) .......................19-20
In re North Dakota Legislative Assembly,
70 F.4th 460 (8th Cir. 2023) .......................... 19, 21
In re Off. of the Utah Att’y Gen.,
56 F.4th 1254 (10th Cir. 2022) ............................ 30
In re Paxton,
60 F.4th 252 (5th Cir. 2023) ................................ 30
In re Sealed Case,
80 F.4th 355 (D.C. Cir. 2023) .............................. 20
In re United States,
583 U.S. 29 (2017) ................................................ 12
In re U.S. Dep’t of Educ.,
25 F.4th 692 (9th Cir. 2022) ................................ 30
viii
Jud. Watch, Inc. v. Schiff,
998 F.3d 989 (D.C. Cir. 2021) .............................. 20
La Union del Pueblo Entero v. Abbott,
68 F.4th 228 (5th Cir. 2023) ................................ 18
La Union del Pueblo Entero v. Abbott,
93 F.4th 310 (5th Cir. 2024) .......................... 19, 23
Lake Country Ests., Inc. v. Tahoe Reg’l Plan. Agency,
440 U.S. 391 (1979) .......................................... 2, 14
League of United Latin Am. Citizens v. Abbott,
2022 WL 2866673 (W.D. Tex. July 6, 2022) ...28-29
Lee v. City of Los Angeles,
908 F.3d 1175 (9th Cir. 2018) .............................. 21
Mayor of Phila. v. Educational Equality League,
415 U.S. 605 (1974) ........................................ 25, 31
McCray v. United States,
195 U.S. 27 (1904) ................................................ 14
McNamee v. Massachusetts,
2012 WL 1665873 (D. Mass. May 10, 2012)........ 29
MINPECO, S.A. v. Conticommodity Servs., Inc.,
844 F.2d 856 (D.C. Cir. 1988) .............................. 20
Moriah v. Bank of China Ltd.,
72 F. Supp. 3d 437 (S.D.N.Y. 2014) ..................... 29
Musgrave v. Warner,
104 F.4th 355 (D.C. Cir. 2024) .......................20-21
Palmer v. Thompson,
403 U.S. 217 (1971) .............................................. 16
Pernell v. Florida Bd. of Governors of State Univ.,
84 F.4th 1339 (11th Cir. 2023) ...................... 16, 20
Powell v. Ridge,
247 F.3d 520 (3d Cir. 2001) ............................26-27
ix
Senate Permanent Subcomm. on Investigations v.
Ferrer,
856 F.3d 1080 (D.C. Cir. 2017) .......................22-24
Supreme Ct. of Virginia v. Consumers Union of U. S.,
Inc.,
446 U.S. 719 (1980) .............................................. 17
Tenney v. Brandhove,
341 U.S. 367 (1951) ................... 2, 12, 14, 16-17, 28
Toma v. Fontes,
2024 WL 3198827 (Ariz. Ct. App. June 27, 2024) 6
United States v. Biaggi,
853 F.2d 89 (2d Cir. 1988) ................................... 22
United States v. Brewster,
408 U.S. 501 (1972) ........................................ 15, 18
United States v. Des Moines Nav. & Ry. Co.,
142 U.S. 510 (1892) .............................................. 15
United States v. Gillock,
445 U.S. 360, 370 (1980) ...................................... 21
United States v. Helstoski,
442 U.S. 477 (1979) ............................... 3, 22-23, 26
United States v. Johnson,
383 U.S. 169 (1966) .......................................... 2, 17
United States v. Morgan,
313 U.S. 409 (1941) ........................................ 13, 28
United States v. O’Brien,
391 U.S. 367 (1968) .............................................. 16
United States v. Rayburn House Off. Bldg.,
497 F.3d 654 (D.C. Cir. 2007) .................. 13, 17, 20
Vill. of Arlington Heights v. Metro. Hous. Dev. Corp.,
429 U.S. 252 (1977) .......................................... 3, 29
x
Constitutional and Statutory Provisions
28 U.S.C. § 1254(1) ...................................................... 1
28 U.S.C. § 1651 .......................................................... 1
ARIZ. CONST. art. IV, pt. 2 § 7 ..............................16-17
ARIZ. CONST. art. IV, pt. 2 § 8 ..................................... 6
Ariz. House of Representatives Rule 4(K) .................. 6
ARIZ. REV. STAT. § 12-1841 ................................ 3, 5, 24
ARIZ. REV. STAT. § 15-120.02 ....................................... 6
Ariz. State Senate Rule 2(N) ...................................... 6
Sup. Ct. R. 10(a) ........................................................ 27
U.S. CONST. art. I, § 6 ................................................ 16
Other Authorities
2 WORKS OF JAMES WILSON (James De Witt Andrews
ed. 1896) ......................................................... 12, 17
H.R. Journal, 55th Ariz. Leg., 2d Sess. (2022) ........... 6
H.R. Journal, 56th Ariz. Leg., 1st Sess. (2023) .......... 7
S. Journal, 55th Ariz. Leg., 2d Sess. (2022) ............... 6
S. Journal, 56th Ariz. Leg., 1st Sess. (2023) .............. 7
Story, COMMENTARIES ON THE CONSTITUTION § 866 . 17
In the
Supreme Court of the United States
IN RE WARREN PETERSEN, ET AL.
ON PETITION FOR A WRIT OF MANDAMUS
TO THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
PETITION FOR A WRIT OF MANDAMUS
President of the Arizona State Senate Warren
Petersen (the “President”) and Speaker of the Arizona
House of Representatives Ben Toma (the “Speaker”)
respectfully petition for a writ of mandamus to the
United States District Court for the District of
Arizona. In the alternative, the President and
Speaker respectfully request that the Court treat this
petition as a petition for a writ of certiorari to review
the judgment of the United States Court of Appeals
for the Ninth Circuit in this case.
OPINIONS BELOW
The order of the court of appeals is unreported and
reprinted at Pet. App. 1A-2A. The order of the district
court is available at 2024 WL 3083467 and reprinted
at Pet. App. 3A-20A.
JURISDICTION
The judgment of the court of appeals was entered
on August 8, 2024. The jurisdiction of this Court is
invoked under 28 U.S.C. § 1651 or, in the alternative,
28 U.S.C. § 1254(1).
2
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
Relevant texts for the following are found in the
Addendum:
U.S. CONST. art. I, § 6
ARIZ. CONST. art. IV, pt. 2 § 7
ARIZ. CONST. art. IV, pt. 2 § 8
ARIZ. REV. STAT. § 12-1841
ARIZ. REV. STAT. § 15-120.02
INTRODUCTION
For more than 300 years, the legislative privilege
has been indispensable to legislative independence.
United States v. Johnson, 383 U.S. 169, 178 (1966).
The legislative privilege “reinforc[es] the separation of
powers,” id., and “support[s] the rights of the people,
by enabling their representatives to execute the
functions of their office without fear of prosecutions,
civil or criminal,” Tenney v. Brandhove, 341 U.S. 367,
373-74 (1951) (quoting Coffin v. Coffin, 4 Mass. 1, 27
(1808)). As applied to discovery, the legislative
privilege creates an “absolute bar” to compelled
disclosure from legislators.
Eastland v. U.S.
Servicemen’s Fund, 421 U.S. 491, 503 (1975).
In addition, from the Founding to the present, the
legislative privilege and respect for an equal branch of
government have prevented inquiry into legislative
motives. See, e.g., Lake Country Ests., Inc. v. Tahoe
Reg’l Plan. Agency, 440 U.S. 391, 405 (1979); Fletcher
v. Peck, 10 U.S. 87, 131 (1810). “No principle of our
constitutional law is more firmly established than
that this court may not, in passing upon the validity
of a statute, inquire into the motives of Congress.”
Hamilton v. Kentucky Distilleries & Warehouse Co.,
3
251 U.S. 146, 161 (1919) (collecting cases). State
legislators receive the same absolute protection: “[N]o
inquiry may be made concerning the motives or
wisdom of a state Legislature acting within its proper
powers.” Arizona v. California, 283 U.S. 423, 455 n.7
(1931) (collecting cases). That is so even in Equal
Protection cases. See Vill. of Arlington Heights v.
Metro. Hous. Dev. Corp., 429 U.S. 252, 268 n.18
(1977).
Despite this clear, unbroken line of authority, the
district court ordered depositions and document
production to probe the motives of the President of the
Arizona State Senate and the Speaker of the Arizona
House of Representatives.
The district court’s
decision stems from two erroneous premises: (1) that
legislative motive evidence is discoverable, and (2)
that “[a] waiver of legislative privilege need not be
explicit or unequivocal.” Pet. App. 8A, 10A. The court
then held the President and Speaker waived their
privilege by intervening to defend state law. That is,
the district court found waiver absent an “explicit and
unequivocal renunciation of the protection,” United
States v. Helstoski, 442 U.S. 477, 491 (1979), because
the President and Speaker exercised a statutory right
to defend state law in their capacities as President
and Speaker, ARIZ. REV. STAT. § 12-1841(A), (D). The
court disregarded the fact that the President and
Speaker intervened after the state Attorney General
disqualified her office from defending the law. Pet.
App. 11A. The district court then applied its per se
waiver rule to the Morgan doctrine. Id. at 14A-15A.
The rule that the district court created, which the
Ninth Circuit sanctioned via its denial of the
President’s and Speaker’s writ, applies to no other
intervening litigants. In practical effect, it punishes,
4
and thus discourages, state legislators from
intervening as authorized by state law to defend state
statutes in federal court. The district court’s per se
waiver rule effectively denies only legislators the
ability to intervene, and so “evince[s] disrespect for a
State’s chosen means of diffusing its sovereign
powers” and “turn[s] a deaf federal ear to voices the
State has deemed crucial to understanding the full
range of its interests” and whose participation “also
serves important national interests.” Berger v. N.C.
State Conference of the NAACP, 597 U.S. 179, 191–92
(2022).
There is no reason for this rule. The discovery
sought here would not be discoverable in the First,
Fifth, Eighth, Eleventh, and D.C. Circuits, because
those circuits categorically shield legislative motive
from discovery. Indeed, in almost every case except
legislator intervention, the Ninth Circuit does as well.
By contrast, the only circuit authority on the other
side is a single Third Circuit case that is
distinguishable as to procedural context and
reasoning. To the extent that it is relevant here, the
Third Circuit’s opinion contradicts the vast weight of
authority. There is no justification for a per se
exemption from the rule against probing legislative
motives for cases of intervention. “[A] State’s chosen
representatives should be greeted in federal court
with respect, not adverse presumptions.” Id. at 197.
Similarly, the district court’s rejection of the Morgan
doctrine’s application was erroneous and in conflict
with decisions from the Fifth and D.C. Circuits.
This Court’s review is necessary to reaffirm the
vitality of the legislative privilege and the ability of
States to determine who may speak and defend their
laws in federal court, without suffering penalties
5
which other litigants do not face. The Court should
grant the petition for a writ of mandamus, or, in the
alternative, grant the petition for a writ of certiorari.
STATEMENT OF THE CASE
1. “Within wide constitutional bounds, States are
free to structure themselves as they wish.” Berger,
597 U.S. at 183.
That structuring includes
authorizing “multiple officials to defend their
practical interests” in federal court. Id. at 184.
Arizona has designated three state officials to
defend the constitutionality of a state law: (1) the
state’s Attorney General; (2) the Speaker of the
Arizona House of Representatives; and (3) the
President of the Arizona State Senate. ARIZ. REV.
STAT. § 12-1841(A), (D). Parties alleging a statute’s
unconstitutionality must serve the Attorney General,
the Speaker, and the President with the relevant legal
filing. Id. at § 12-1841(A), (B). Those officials “shall
be entitled to be heard.” Id. at § 12-1841(A). At their
discretion, any of these three officials “may intervene
as a party, may file briefs in the matter or may choose
not to participate … .” Id. at § 12-1841(D). Any of
these three officials who is not timely served with the
required notice may move to vacate any judicial
finding of unconstitutionality. Id. at § 12-1841(C).
Thus, the people of Arizona “have authorized the
leaders of their legislature to defend duly enacted
state statutes against constitutional challenge.”
Berger, 597 U.S. at 200.
2.
The Arizona State Legislature has
independently empowered its leaders to defend
legislative interests. “The Arizona Legislature … is
an institutional plaintiff” and it may “assert[] an
institutional injury … after authorizing votes in both
of its chambers … .” Arizona State Legislature v.
6
Arizona Indep. Redistricting Comm’n, 576 U.S. 787,
802 (2015).
The State Senate and House of Representatives
shall each “choose its own officers” and “determine its
own rules of procedure.” ARIZ. CONST. art. IV, pt. 2
§ 8. Pursuant to this constitutional authority, each
chamber has adopted virtually identical rules that
“authorize” the President and the Speaker “to bring or
assert in any forum on behalf of the [Senate/House]
any claim or right arising out of any injury to the
[Senate’s/House’s] powers or duties under the
constitution or laws of this state.” Ariz. State Senate
Rule 2(N); Ariz. House of Representatives Rule 4(K).
When claims “fall within that authorization—that is
the end of the matter so far as the judiciary is
concerned.” Toma v. Fontes, 2024 WL 3198827, at *5
(Ariz. Ct. App. June 27, 2024).
3. In March 2022, Arizona enacted the Save
Women’s Sports Act (the “Act”). See ARIZ. REV. STAT.
§ 15-120.02. The Act requires public schools—and
private schools that compete against public schools—
to designate sports teams as “males,” “men,” or “boys”;
“females,” “women,” or “girls”; or “coed” or mixed”;
“based on the biological sex of the students who
participate on the team or in the sport.” Id. at § 15120.02(A). “Athletic teams or sports designated for
“females”, “women” or “girls” may not be open to
students of the male sex.” Id. at § 15-120.02(B).
The Senate passed the Act by a 16-13 margin. S.
Journal, 55th Ariz. Leg., 2d Sess., at 91 (2022). The
House passed the Act by a 31-24 margin. H.R.
Journal, 55th Ariz. Leg., 2d Sess., at 299 (2022). The
7
Act took effect in September 2022. D. Ct. Doc. 127,
¶ 73. 1
In January 2023, Warren Petersen and Ben Toma
became the President of the Senate and Speaker of the
House of Representatives, respectively. S. Journal,
56th Ariz. Leg., 1st Sess., at 3 (2023); H.R. Journal,
56th Ariz. Leg., 1st Sess. at 4 (2023). Both served as
legislators, but not as President or Speaker, when the
Act passed.
4. In April 2023, Plaintiffs Jane Doe and Megan
Roe (“Plaintiffs”) filed suit in the District of Arizona
seeking a declaration that enforcement of the Act
violated their rights under the Equal Protection
Clause, Title IX, the Americans with Disabilities Act,
and Section 504 of the Rehabilitation Act. D. Ct. Doc.
1.
The merits of Plaintiffs’ challenge are not
presented here; the preliminary injunction issued by
the district court remains pending in the court of
appeals. See Doe v. Horne, No. 23-16026 c/w No. 2316030 (9th Cir.) (argued Mar. 14, 2024).
Plaintiffs sued four school-related defendants but
only one state official, the State Superintendent of
Public Instruction. D. Ct. Doc. 1, at ¶ 9. Just four
days after Plaintiffs filed their complaint—and just
one day after Plaintiffs served the State
Superintendent, D. Ct. Doc. 17—the Attorney General
of Arizona notified the State Superintendent that her
office was disqualified from representing the State
Superintendent in the lawsuit, D. Ct. Doc. 19-1.
Despite authority to do so, the Attorney General
refused to pay for the State Superintendent’s counsel
to defend the lawsuit. D. Ct. Doc. 40, at 3.
1
D. Ct. Doc. citations are to documents filed in Doe v. Horne,
4:23-cv-00185-JGZ (D. Ariz.).
8
After the Attorney General declined to defend the
Act, the President and Speaker sought intervention in
their official capacities pursuant to Ariz. Rev. Stat.
§ 12-1841 and chamber rules to defend the
constitutionality of the Act. D. Ct. Doc. 19. At the
time of intervention, the State Superintendent had
not appeared in the litigation, and Plaintiffs had not
alleged discriminatory motives by the Arizona State
Legislature or any of its members. See D. Ct. Docs. 1,
3. The district court initially granted “permissive
intervention on a limited basis to allow the Legislators
to present argument and evidence in opposition to
Plaintiffs’
pending
Motion
for
Preliminary
Injunction.” D. Ct. Doc. 79, at 1. The court later
“allow[ed] [the President and Speaker] to represent
their interests in the entirety of this action” and
granted them party status. D. Ct. Doc. 142, at 1; see
also D. Ct. Doc. 111, at 2.
5. The President and Speaker have defended the
Act along with the State Superintendent, but their
strategies have sometimes diverged. The President
and Speaker moved to dismiss Plaintiffs’ claims under
the Americans with Disabilities Act and Section 504
of the Rehabilitation Act, D. Ct. Doc. 146; the State
Superintendent filed an answer instead, D. Ct. Doc.
39. The President and Speaker attached three expert
declarations to their opposition to the preliminary
injunction, D. Ct. Docs. 38-3, 38-4, 38-5; the State
Superintendent adopted the President’s and
Speaker’s experts while he retained and prepared his
own two experts, D. Ct. Doc. 73. The President and
Speaker sought a stay of the preliminary injunction
from the district court before they pursued appellate
relief, D. Ct. Doc. 132; the State Superintendent did
not. The President and Speaker served discovery on
9
Plaintiffs, D. Ct. Doc. 191-2, Ex. 7, D. Ct. Doc. 198-1,
Ex. 1; the State Superintendent did not.
6. Discovery commenced with Rule 26(a)(1) initial
disclosures. No party’s initial disclosures identified
the President or Speaker as a witness. D. Ct. Doc.
198-1, ¶ 13; D. Ct. Doc. 198-1, Ex. E (Plaintiffs’ initial
disclosures).
Six months into discovery, Plaintiffs informed the
parties that they did not “plan to take any depositions
of any fact witnesses from any of the Defendants in
this litigation.” D. Ct. Doc. 191-2, Ex. 9, at 3. Though
no fact witness or party they sued merited a
deposition, Plaintiffs demanded to depose the
President and Speaker. D. Ct. Doc. 191-2, Ex. 9, at 34. Plaintiffs have admitted that the only purpose for
these depositions is to explore the President’s and
Speaker’s legislative motives relating to the
challenged law. D. Ct. Doc. 191, at 9; Pet. App. 7A.
Plaintiffs also propounded written discovery on the
President and Speaker. D. Ct. Doc. 191-2, Exs. 1, 2.
The President and Speaker answered requests not
protected by the legislative privilege or another
privilege. D. Ct. Doc. 198-1, Exs. B, C. Since the
legislative record already was public, D. Ct. Doc. 1912, Ex. 7, at 16, the President and Speaker produced
hundreds of emails from constituents concerning the
Act. D. Ct. Doc. 191-2, Ex. 7, at 16. In all, the
President and Speaker produced roughly 99 percent
of the responsive documents, withholding only five
documents out of more than 400, totaling just 14
pages. D. Ct. Doc. 198-1, at ¶ 7. All five withheld
documents are communications sent by legislators or
legislative staff. D. Ct. Doc. 191-2, Ex. 5 (documents
3, 6, 14, 15, and 18).
10
7.
The President and Speaker objected to
depositions and production of the remaining five
documents on legislative privilege and Morgan
doctrine grounds. D. Ct. Doc. 191-2, Ex. 7. Plaintiffs
eventually moved for an order compelling the
President and Speaker to provide this discovery, D.
Ct. Doc. 191, which the district court granted on June
20, 2024, Pet. App. 3A-20A.
In ordering this discovery, the district court
concluded that legislative motive evidence is relevant
in Equal Protection cases. Id. at 7A-9A. As to
legislative privilege, the district court started by
saying the legislative privilege is qualified and
waivable, and that such “[a] waiver ... need not be
explicit or unequivocal.” Id. at 9A-10A (emphasis
added). The court then concluded the President and
Speaker “waived their legislative privilege by
voluntarily participating in this lawsuit and putting
their intent at issue” by defending the law against
Plaintiffs’ Equal Protection challenge. Id. at 10A-13A.
Likewise, the district held the Morgan doctrine
inapplicable because the President and Speaker
“voluntarily joined this lawsuit.” Id. at 14A-15A.
The President and Speaker asked the district court
to stay its decision pending appellate review, or in the
alternative, to grant an administrative stay to allow
the President and Speaker to seek relief from the
court of appeals. D. Ct. Doc. 212. The district court
denied the motion. Pet. App. 21A-24A.
8. On July 16, 2024, the President and Speaker
filed their mandamus petition in the court of appeals,
together with a motion for stay. Ct. App. Docs. 1, 4. 2
2
Ct. App. Doc. citations are to documents filed in In re
Petersen, 24-4335 (9th Cir.).
11
The President and Speaker asked the court of appeals
for a writ to “prevent their depositions and production
of five documents protected by the legislative
privilege.” Ct. App. Doc. 1, at 1.
On August 8, 2024, the court of appeals denied the
petition and stay. Pet. App. 2A. In a single-sentence
explanation, the court of appeals concluded that
“Petitioners have not demonstrated a clear and
indisputable right to the extraordinary remedy of
mandamus.” Id.
REASONS FOR GRANTING THE PETITION
The issuance of a writ of mandamus to a lower
court is warranted when a party establishes that “(1)
‘no other adequate means [exist] to attain the relief he
desires,’ (2) the party’s ‘right to issuance of the writ is
“clear and indisputable,”’ and (3) ‘the writ is
appropriate
under
the
circumstances.’”
Hollingsworth v. Perry, 558 U.S. 183, 190 (2010) (per
curiam) (quoting Cheney v. United States Dist. Court,
542 U.S. 367, 380-81 (2004)) (brackets in original).
The district court’s decision meets all three criteria by
compelling intrusive discovery into legislative
motives—in defiance of centuries of clear and
consistent precedent by this Court—merely because
legislative branch leaders exercised their statutory
right to defend a law’s constitutionality. This Court
should issue a writ of mandamus directly to the
district court correcting these errors. See id. (stating
that this Court may “issue the writ of mandamus
directly to a federal district court.”).
In the alternative, the Court should treat this
application as a petition for certiorari and grant it to
review the Ninth Circuit’s denial of the President’s
and Speaker’s mandamus petition. In rejecting the
writ, the Ninth Circuit affirmed the district court’s
12
reasoning, which is inconsistent with the precedents
of this Court, and in conflict with decisions of the
First, Fifth, Eighth, Eleventh, and District of
Columbia Circuits on important, recurring issues of
legislative privilege, as well as in conflict with
decisions of the Fifth and District of Columbia
Circuits on the Morgan doctrine. This Court can—
and if it does not issue mandamus itself, should—
construe this petition as a petition for a writ of
certiorari, grant the petition, and reverse the court of
appeals’ refusal to grant mandamus relief. This Court
has granted such relief to block discovery of privileged
documents, In re United States, 583 U.S. 29, 31 (2017)
(granting petition for writ of certiorari), and to
prevent a high-ranking official’s deposition, Dep’t of
Com. v. New York, 139 S. Ct. 953 (2019) (granting
petition for writ of certiorari before judgment).
I. The President and Speaker Have No Other
Adequate Means to Attain Relief
Without relief from this Court, the district court’s
order is effectively unreviewable on appeal from final
judgment. Since the Glorious Revolution, it has been
recognized that for legislators to “enjoy the fullest
liberty of speech,” it is “indispensably necessary” that
they “should be protected from the resentment of
every one, however powerful, to whom the exercise of
that liberty may occasion offense.” Tenney, 341 U.S.
at 373 (quoting 2 WORKS OF JAMES WILSON 38 (James
De Witt Andrews ed. 1896)). That includes “a possibly
hostile judiciary.” Johnson, 383 U.S. at 181.
Yet if the district court’s order compelling the
President and Speaker to sit for depositions and
produce documents protected by the legislative
privilege is allowed to take effect, the President and
Speaker will be required to sit for depositions probing
13
their motives and thought processes, internal
legislative discussions and documents will be revealed
to adverse parties, the legislative privilege will be
pierced, and the judiciary will have the opportunity to
pass judgment on the legislators’ motives and
deliberations.
“It would be difficult—if not
impossible—to reverse the harm” from these
disclosures. Hollingsworth, 558 U.S. at 195. “[T]he
possibility of compelled disclosure may therefore chill
the exchange of views with respect to legislative
activity,” and “[t]his chill runs counter to the …
purpose of” the privilege. United States v. Rayburn
House Off. Bldg., 497 F.3d 654, 661 (D.C. Cir. 2007).
In the same vein, there is no reversing violations
of the Morgan doctrine—as Morgan itself shows.
There, because the deposition had already occurred,
this Court was left to disapprove that it had happened
instead of provide relief. See United States v. Morgan,
313 U.S. 409, 422 (1941). An officer who “should never
have been subjected to” a deposition, id., can receive
effectual relief only if he or she is never made subject
to a deposition.
These circumstances “remove this case from the
category of ordinary discovery orders where
interlocutory appellate review is unavailable … .”
Cheney, 542 U.S. at 381.
II. The District Court Clearly and Indisputably
Erred by Ordering Discovery of Legislative
Motives from High-Ranking Legislators
The President’s and Speaker’s right to their
privileges is “clear and indisputable.” Hollingsworth,
558 U.S. at 190 (citation omitted). Based on its
conclusion that legislative motive “is at issue due to
the very nature of the claim,” the district court
ordered the President and Speaker to sit for
14
depositions and produce documents protected by the
legislative privilege because “[t]his discovery may
shed light on whether the Arizona legislature acted
with a constitutionally permissible purpose in
enacting [the Act].” Pet. App. 8A, 12A. The district
court specifically approved Plaintiffs’ request “to
question the Intervenor-Defendants regarding their
motives for passing [the Act].” Id. at 8A. This order
contradicts centuries of settled authority zealously
guarding the legislative privilege and rests on
reasoning incompatible with that of numerous other
circuits.
A. The
district
court
clearly
and
indisputably erred by disregarding the
legislative
privilege
and
ordering
discovery of legislative motives.
1. Respect for the legislative privilege and the bar
against inquiry into legislative motives go hand-inhand. The district court clearly erred by authorizing
discovery of legislative motives.
“No principle of our constitutional law is more
firmly established than that this court may not, in
passing upon the validity of a statute, inquire into the
motives of Congress.” Hamilton, 251 U.S. at 161
(collecting cases). Since Chief Justice Marshall’s
opinion in Fletcher v. Peck, 10 U.S. at 131, it has
“remained unquestioned” “that it was not consonant
with our scheme of government for a court to inquire
into the motives of legislators.” Lake Country Ests.,
Inc., 440 U.S. at 405 (quoting Tenney, 341 U.S. at 377);
see also McCray v. United States, 195 U.S. 27, 59
(1904) (“It being thus demonstrated that the motive or
purpose of Congress in adopting the acts in question
may not be inquired into … .”); Ex parte McCardle, 74
15
U.S. 506, 514 (1868) (“We are not at liberty to inquire
into the motives of the legislature.”).
Inquiry into state legislators’ motives is likewise
prohibited. The Court has been clear: “[N]o inquiry
may be made concerning the motives or wisdom of a
state Legislature acting within its proper powers.”
Arizona, 283 U.S. at 455 n.7 (citing cases). The Court
has “never allowed” inquiry into state legislator
motives. United States v. Des Moines Nav. & Ry. Co.,
142 U.S. 510, 544–45 (1892) (rejecting challenge to
Iowa law based on alleged improper legislative
motives). So long as the legislature followed regular
processes, inquiry into state legislators’ “knowledge,
negligence, methods, or motives” for legislation is
forbidden. Calder v. Michigan, 218 U.S. 591, 598
(1910) (rejecting challenge to Michigan law based on
alleged improper legislative motives).
“No inquiry,” Arizona, 283 U.S. at 455 n.7, means
no discovery. See Gravel v. United States, 408 U.S.
606, 628–29 (1972) (forbidding questioning of any
witness “concerning the motives and purposes behind
the Senator’s conduct, or that of his aides, at that
meeting”). The district court thus clearly erred by
compelling discovery of legislative motives. Pet. App.
12A-13A. Contrary to the district court’s conclusion
that legislative motive is subject to discovery, id. at
8A, this Court has repeatedly and explicitly held that
the legislative privilege “protects against inquiry into
acts that occur in the regular course of the legislative
process and into the motivation for those acts.”
United States v. Brewster, 408 U.S. 501, 525 (1972).
It does not matter that this case involves an Equal
Protection challenge. “It is a familiar principle of
constitutional law that this Court will not strike down
an otherwise constitutional statute on the basis of an
16
alleged illicit legislative motive.” United States v.
O’Brien, 391 U.S. 367, 383 (1968). In fact, “no case in
this Court has held that a legislative act may violate
equal protection solely because of the motivations of
the men who voted for it.” Palmer v. Thompson, 403
U.S. 217, 224 (1971). The pitfalls of using such
evidence are well-established. “What motivates one
legislator … is not necessarily what motivates scores
of others to enact it.” O’Brien, 391 U.S. at 383-84. The
legislative privilege “is insurmountable in private
civil actions under section 1983” and does not hinge
on “a subjective judgment of the case’s importance.”
Pernell v. Florida Bd. of Governors of State Univ., 84
F.4th 1339, 1344 (11th Cir. 2023) (citing decisions by
four circuits rejecting arguments that the legislative
privilege can be overcome).
Though the district court attempted to excuse its
decision by distinguishing between probative value
and discoverability, Pet. App. 8A-9A, O’Brien and
Palmer demonstrate that legislative motive evidence
has no probative value and thus is not discoverable.
“The claim of an unworthy purpose does not destroy
the privilege.” Tenney, 341 U.S. at 377. “If the mere
allegation that a valid legislative act was undertaken
for an unworthy purpose would lift the protection of
the [Speech or Debate] Clause, then the Clause simply
would not provide the protection historically
undergirding it.” Eastland, 421 U.S. at 508–09.
2. The legislative privilege is a rare privilege with
constitutional status at the federal, see U.S. CONST.
art. I, § 6, and state levels, ARIZ. CONST. art. IV, pt. 2
§ 7. Indeed, it has a deep-rooted history in Western
legal tradition. “Since the Glorious Revolution in
Britain, and throughout United States history, the
[legislative] privilege has been recognized as an
17
important protection of the independence and
integrity of the legislature.” Johnson, 383 U.S. at 178
(citing Story, COMMENTARIES ON THE CONSTITUTION
§ 866 and 2 WORKS OF JAMES WILSON 37—38
(Andrews ed. 1896)). Demonstrating its importance,
the Framers approved the legislative privilege in the
Speech or Debate Clause “without discussion and
without opposition,” 3 id. at 177 (citations omitted),
and this Court extended it to state legislators
litigating in federal court as a matter of federal
common law, Tenney, 341 U.S. at 373-74. In civil
actions, the legislative privilege for state legislators is
coterminous with the protections provided by the
Speech or Debate Clause. Supreme Ct. of Virginia v.
Consumers Union of U. S., Inc., 446 U.S. 719, 733
(1980) (citations omitted).
The legislative privilege creates an “absolute bar”
to compelled disclosure from legislators. Eastland,
421 U.S. at 503; Rayburn House Off. Bldg., 497 F.3d
at 660. It is “incontrovertible” that the legislative
privilege protects a legislator “from questioning
elsewhere than in the [legislature],” and he or she
“may not be made to answer—either in terms of
questions or in terms of defending himself from
prosecution—for the events that occurred” in the
legislature. Gravel, 408 U.S. at 615-16.
It is indisputable that Plaintiffs seek material
protected by the legislative privilege. They “seek to
question the [President and Speaker] regarding their
motives for passing [the Act]” and “seek to discover
information pertaining to the legislative history of
3
Almost all states, including Arizona, have adopted
comparable provisions. See Tenney, 341 U.S. at 375 n.5 (citing
state constitutions); ARIZ. CONST. art. IV, pt. 2 § 7.
18
[the Act] and the governmental purpose served by the
law.” Pet. App. 8A. These topics are clearly within
the legislative privilege’s protection for “acts that
occur in the regular course of the legislative process
and into the motivation for those acts.” Brewster, 408
U.S. at 525; see also Gravel, 408 U.S. at 624 (“anything
‘generally done in a session of the House by one of its
members in relation to the business before it’”)
(citation omitted).
3. In the First, Fifth, Eighth, Eleventh, and
District of Columbia Circuits, the material sought by
Plaintiffs would be privileged from discovery. The
Ninth Circuit’s refusal to do the same here is
erroneous and splits with at least five other circuits.
The First Circuit issued mandamus to block
depositions and documents sought from the speaker of
the Rhode Island House of Representatives and
another state representative relating to “legislative
acts and underlying motives.” Am. Trucking Ass’ns,
Inc. v. Alviti, 14 F.4th 76, 87 (1st Cir. 2021). While
agreeing that “interrogating the State Officials could
shed light on and provide context concerning their
subjective motivations and public comments,” id. at
89, the court held that “the need for the discovery ... is
simply too little to justify such a breach of comity.” Id.
at 90.
The Fifth Circuit applied legislative privilege to
block discovery of more than 200 documents from
Texas state legislators relating to challenged
legislation. La Union Del Pueblo Entero v. Abbott
(LUPE I), 68 F.4th 228, 232, 239–40 (5th Cir. 2023).
“[C]ourts are not to facilitate an expedition seeking to
uncover a legislator’s subjective intent in drafting,
supporting, or opposing proposed or enacted
legislation,” the court reasoned. Id. at 238. Later in
19
the same case, the Fifth Circuit rejected discovery into
“documents shared, and communications made,”
between Texas state legislators and a third party
about challenged legislation. La Union del Pueblo
Entero v. Abbott (LUPE II), 93 F.4th 310, 323 (5th Cir.
2024).
LUPE II cited an Eighth Circuit decision: In re
North Dakota Legislative Assembly, 70 F.4th 460 (8th
Cir. 2023), vacated as moot sub nom. Turtle Mountain
Band v. North Dakota Legislative Assembly, 2024 WL
3259672 (U.S. July 2, 2024). There, the Eighth Circuit
issued mandamus prohibiting discovery seeking
“documents and testimony from legislators and an
aide concerning acts undertaken with respect to the
enactment of redistricting legislation in North
Dakota” that were protected by the legislative
privilege. Id. at 463–64. The Eighth Circuit rejected
the district court’s use of a balancing test to determine
whether to require deposition testimony “in lieu of the
ordinary rule that inquiry into legislative conduct is
strictly barred by the privilege.” Id. at 465. “Even
where ‘intent’ is an element of a claim, statements by
individual legislators are an insufficient basis from
which to infer the intent of a legislative body as a
whole.” Id.
Likewise, the Eleventh Circuit held that
subpoenas seeking documents from the president of
the Alabama Senate and the speaker of the Alabama
House of Representatives should be quashed because
the subpoenas’ “sole reason for existing was to probe
the subjective motivations of the legislators who
supported” the challenged legislation. In re Hubbard,
803 F.3d 1298, 1310 (11th Cir. 2015). The legislative
privilege, the court found, “applies with full force
against requests for information about the motives for
20
legislative votes and legislative enactments.” Id. The
Eleventh Circuit reaffirmed that principle in Pernell,
84 F.4th at 1344. Chief Judge Pryor, pointing to cases
from this Court, Alviti, LUPE I, North Dakota, and
Hubbard, aptly summarized the law: The privilege “is
insurmountable in private civil actions under section
1983.” Id. at 1344–45.
The District of Columbia Circuit, likewise, has
blocked discovery sought from federal legislators or
legislative committees on at least seven occasions in
analogous contexts. See Musgrave v. Warner, 104
F.4th 355, 365 (D.C. Cir. 2024); In re Sealed Case, 80
F.4th 355, 373 (D.C. Cir. 2023); Jud. Watch, Inc. v.
Schiff, 998 F.3d 989, 993 (D.C. Cir. 2021); In re Grand
Jury Subpoenas, 571 F.3d 1200, 1203 (D.C. Cir. 2009);
Rayburn House Off. Bldg., 497 F.3d at 663; Brown &
Williamson Tobacco Corp. v. Williams, 62 F.3d 408,
421 (D.C. Cir. 1995); MINPECO, S.A. v.
Conticommodity Servs., Inc., 844 F.2d 856, 863 (D.C.
Cir. 1988). Finding the “bar on compelled disclosure
is absolute,” the court emphasized that “a key purpose
of the privilege is to prevent intrusions in the
legislative process and that the legislative process is
disrupted by the disclosure of legislative material,
regardless of the use to which the disclosed materials
are put.” Rayburn House Off. Bldg., 497 F.3d at 660.
The judiciary “may not compel verbal testimony
concerning legislative acts, [and] they may not force
Members to hand over documentary evidence of those
acts.” In re Sealed Case, 80 F.4th at 365. The court
also held that a private party “is no more entitled to
compel congressional testimony—or production of
documents—than it is to sue congressmen.” Brown &
Williamson Tobacco Corp., 62 F.3d at 421. Indeed, the
legislative privilege “protects any document that
21
‘comes into the hands of congress[members]’ by way of
‘legislative acts or the legitimate legislative sphere.’”
Musgrave, 104 F.4th at 364 (citation omitted) (second
quotation marks omitted).
To be sure, the D.C. Circuit’s cases involve the U.S.
Congress and thus “the separation of powers
doctrine,” while this case involves state legislators.
United States v. Gillock, 445 U.S. 360, 370 (1980). But
that does not matter in the civil context. Where, as
here, state legislators invoke the privilege in a civil
case, the scope of the privilege is equal “to that
accorded Members of Congress under the
Constitution.” In re N.D. Legislative Assembly, 70
F.4th at 463.
Indeed, the Ninth Circuit’s order even conflicts
with its own circuit precedent. In other contexts, that
court has blocked depositions and discovery sought
from legislators to probe their motives. See Lee v. City
of Los Angeles, 908 F.3d 1175, 1187-88 (9th Cir. 2018);
City of Las Vegas v. Foley, 747 F.2d 1294, 1296, 1299
(9th Cir. 1984).
The district court’s decision allowing discovery of
legislative motives is thus “a major departure from
the precedent rejecting the use of legislative motives.”
Foley, 747 F.2d at 1298. The district court clearly
erred by granting discovery of legislative motives, and
the Ninth Circuit clearly erred in refusing to issue
mandamus—and, indeed, split with better-reasoned
decisions of five other circuits that would have barred
this discovery.
4. To avoid the overwhelming authority from
multiple circuits applying the legislative privilege to
Plaintiffs’ discovery requests, the district court
fashioned, and the Ninth Circuit approved, a rule that
intervention automatically waives the privilege. This
22
is an unprincipled distinction out of step with this
Court’s precedents. It in no way distinguishes this
case from numerous others, including those discussed
above, applying the privilege in this context. It is
clear error.
When it comes to the legislative privilege, “[t]he
ordinary rules for determining the appropriate
standard of waiver do not apply in this setting.”
Helstoski, 442 U.S. at 491. Indeed, the privilege may
well be unwaivable. See id. At a minimum, any
waiver must be an “explicit and unequivocal
renunciation of the protection.” Id.
“Explicit and unequivocal renunciation” is a high
bar. In Helstoski, this Court ruled that a legislator
had not waived his privilege even though he
voluntarily testified eight times to a grand jury and
produced documents. Id. at 482. Following Helstoski,
circuit courts in both civil and criminal cases have
rejected legislative privilege waiver arguments. See,
e.g., Senate Permanent Subcomm. on Investigations v.
Ferrer, 856 F.3d 1080, 1086-87 (D.C. Cir. 2017) (filing
lawsuit not waiver); Brown & Williamson Tobacco
Corp., 62 F.3d at 421 n.11 (radio interview not
waiver); United States v. Biaggi, 853 F.2d 89, 103 (2d
Cir. 1988) (trial testimony not waiver).
The district court simply ignored Helstoski, saying
“[a] waiver of legislative privilege need not be explicit
or unequivocal.” Pet. App. 10A. That determination
infected the court’s subsequent analysis, as it did not
identify any “explicit or unequivocal renunciation” of
the legislative privilege by the President or Speaker.
Id. at 10A-13A. Rather, the district court’s analysis
centered on the President’s and Speaker’s act of
intervention. See id.
23
Voluntarily participating in a judicial action, such
as by intervention, is not an “explicit and unequivocal
renunciation” of legislative immunity. See Senate
Permanent Subcomm. on Investigations, 856 F.3d at
1086-87. In an action initiated by a legislative
subcommittee, for example, a private party pointed to
the lawsuit’s filing to argue that “the Subcommittee
necessarily accepted an implicit restriction on the
Speech or Debate Clause by seeking to enlist the
judiciary’s assistance in enforcing its subpoena.” Id.
at 1087. This “argument lacks merit,” ruled the D.C.
Circuit.
Id.
The court reasoned that the
subcommittee had not “invite[d] the courts’
interference
with
constitutionally
protected
legislative activity.” Id. Similarly, a legislator’s
voluntary participation before a grand jury on
multiple occasions did not waive his legislative
privilege. See Helstoski, 442 U.S. at 482. And the
Fifth Circuit upheld the legislative privilege for
documents possessed by an intervenor-defendant,
LUPE II, 93 F.4th at 314, 325—a conflict with the
lower courts’ reasoning here.
Indeed, the district court’s rule makes no sense on
its own terms. Because privileges are always asserted
in litigation, the mere fact of engaging in litigation
cannot be sufficient to find waiver. A plaintiff does
not, for example, waive attorney-client privilege by
filing a lawsuit. It follows that legislators do not
waive legislative privilege by intervening in a lawsuit.
Furthermore, finding waiver simply because of the
fact of intervention vitiates this Court’s recent holding
in Berger, that federal courts should respect and
permit state legislators to intervene in their official
capacity to defend their State’s interests when
authorized to do so. A blanket rule that the legislative
24
privilege is automatically waived when the President
and Speaker exercise their statutory right to defend
the constitutionality of state law “risk[s] turning a
deaf federal ear to voices the State has deemed crucial
to understanding the full range of its interests.”
Berger, 597 U.S. at 191. Arizona has chosen the
President and Speaker to defend the constitutionality
of state law. ARIZ. REV. STAT. § 12-1841(A), (D). 4
Thus, Arizona’s interests “will be practically impaired
or impeded if its duly authorized representatives are
excluded from participating in federal litigation
challenging state law.” Berger, 597 U.S. at 191. Yet
foisting upon the President and Speaker the Hobson’s
choice of surrendering their legislative privilege to
defend state law, or deserting state law to preserve
their legislative privilege, does just that; it provides
powerful incentive discouraging intervention that no
other litigant faces.
Moreover, this waiver rule will “tempt litigants to
select as their defendants those individual officials
they consider most sympathetic to their cause or most
inclined to settle favorably and quickly.” Id. at 19192. This case presents the perfect example. Just four
days into this litigation, the Attorney General
disqualified her entire office, D. Ct. Doc. 19-1; turned
over the law’s defense to the only state official named
in the lawsuit (the State Superintendent), id.; and
refused to pay for the State Superintendent’s counsel
to defend the lawsuit, despite authority to do so. D.
Ct. Doc. 40, at 3. At the time the President and
4
Nothing in Ariz. Rev. Stat. § 12-1841 “provides that the
[President or Speaker] forfeits its constitutional protections by
seeking” intervention.
Senate Permanent Subcomm. on
Investigations, 856 F.3d at 1087.
25
Speaker exercised their statutory intervention right,
the State Superintendent had not appeared, and no
state official was defending the Act. Once he had
appeared, the different litigation strategies between
him and the President and Speaker “illustrate[] how
divided state governments sometimes warrant
participation by multiple state officials in federal
court.” Berger, 597 U.S. at 198.
In short, the President’s and Speaker’s
intervention avoided the “risk [of] a hobbled litigation
rather than a full and fair adversarial testing of the
State’s interests and arguments.” Berger, 597 U.S. at
192. The district court’s per se waiver rule penalizes
that decision, and so increases the risk federal courts
decide the constitutionality of state laws in litigation
between “friendlies,” or between plaintiffs and underresourced State officials, thus undermining vital state
sovereign interests.
In addition to state interests, the district court’s
rule disregards national concerns. “Respecting the
States’ ‘plans for the distribution of governmental
powers’ also serves important national interests.” Id.
(alterations omitted) (quoting Mayor of Phila. v.
Educational Equality League, 415 U.S. 605, 615 n.13
(1974)). For example, far from balancing federal
authority, see id., a per se waiver rule as applied to
intervention would let the federal government engage
in the same defendant-shopping as a private plaintiff.
Thus, the federal government could use the courts to
chip away at state sovereignty, denying States the
ability “to accommodate government to local
conditions and circumstances” and to function as
“laboratories of ‘innovation and experimentation’ from
which the federal government itself may learn and
from which a ‘mobile citizenry’ benefits.” Id. (quoting
26
Gregory v. Ashcroft, 501 U.S. 452, 458 (1991)).
Finally, penalizing intervention by authorized State
agents—no less than denying intervention—increases
“the risk of setting aside duly enacted state law based
on an incomplete understanding of relevant state
interests.” Id.
Furthermore, lower courts’ reasoning is uniquely
applied to the legislative branch. No court decision
has been found in which an executive branch actor—
for example, the United States Department of Justice,
a state attorney general, a governor, or a government
agency—waived
the
executive
privilege
or
deliberative process privilege by intervening. No
court decision has been found in which intervention or
appellate participation by a judge waived judicial
immunity or privilege. The lower courts’ rulings
uniquely disfavor legislative bodies. The legislative
privilege “preserve[s] the constitutional structure of
separate, coequal, and independent branches of
government” that is the foundation of the American
political experience, at both the federal and state
level. Helstoski, 442 U.S. at 491. “The English and
American history of the privilege suggests that any
lesser standard would risk intrusion by the Executive
and the Judiciary into the sphere of protected
legislative activities.” Id. By weakening the privilege,
the Ninth Circuit and the district court disregarded
the lessons learned in the Glorious Revolution and
affirmed throughout centuries.
In the face of that precedent, the district court
offered only one circuit-level case: Powell v. Ridge, 247
F.3d 520 (3d Cir. 2001). But Powell was not a waiver
case; it held that the denial of legislative immunity
does not give rise to immediate appeal under the
collateral-order doctrine. See id. at 522. Powell
27
reasoned that “the Legislative Leaders build from
scratch a privilege which would allow them to
continue to actively participate in this litigation by
submitting briefs, motions, and discovery requests of
their own, yet allow them to refuse to comply with
and, most likely, appeal from every adverse order.”
Id. at 525.
That “privilege ... does not exist,”
according to the Third Circuit. Id.
The Third Circuit’s decision can thus be
understood as rejecting a claim of testimonial
privilege plus immediate appellate review. Moreover,
while the legislators in Powell intervened to provide
their “unique perspective[s]” to the court, 247 F.3d at
522 (quotations omitted), the Third Circuit’s opinion
did not say that State law authorized the
intervention—an important distinction given Berger.
Powell is thus, at best, only tangential support for
the Ninth Circuit’s affirmation of the automatic
waiver rule the district court created. But in all
events, it highlights the need for this Court’s review.
Reading Powell broadly brings it in square conflict
with the precedents described above, resulting in a 52 circuit split on the ability of plaintiffs to receive
discovery into legislative motives in situations like
this case. Certiorari review is therefore appropriate
even if mandamus does not issue—as it should. See
Sup. Ct. R. 10(a).
***
The President and Speaker retain their legislative
privilege when they intervene in federal court to
defend state law. The district court clearly erred by
ruling otherwise.
28
B. The
district
court
clearly
and
indisputably erred by disregarding the
Morgan
doctrine
and
ordering
depositions of high-ranking legislators.
1. The district court also clearly erred by not
applying the Morgan doctrine to deny Plaintiffs’
deposition requests. The Morgan doctrine stems from
this Court’s decision in United States v. Morgan, 313
U.S. 409 (1941). There, a district court authorized the
Secretary of Agriculture’s deposition over the
government’s objection; the Court ruled that the
Secretary of Agriculture “should never have been
subjected to this examination.”
Id. at 422.
Separation-of-powers considerations motivated the
conclusion that “it was not the function of the court to
probe the mental processes of the Secretary.” Id.
(citation omitted).
“Just as a judge cannot be
subjected to such a scrutiny, so the integrity of the
administrative process must be equally respected.”
Id. (internal citation omitted).
The same respect is afforded to the legislative
process. “Our cases make clear that in determining
the legitimacy of a congressional act we do not look to
the motives alleged to have prompted it.” Eastland,
421 U.S. at 508 (citations omitted). Judicial review
“should not go beyond the narrow confines of
determining” whether the legislature “exceeded the
bounds of legislative power” by an “obvious …
usurpation of functions exclusively vested in the
Judiciary or the Executive.” Tenney, 341 U.S. at 378.
The Morgan doctrine applies to high-ranking
legislators, as the district court conceded. Pet. App.
14A (citing League of United Latin Am. Citizens v.
Abbott (LULAC), 2022 WL 2866673, at *2 (W.D. Tex.
July 6, 2022)). In LULAC, the court applied the
29
Morgan doctrine to block the deposition of the speaker
of the Texas House of Representatives. Id. at *2-3. As
LULAC noted, every known federal court decision
“applied the Morgan framework to deposition
subpoenas targeted at legislative officials.” Id. at *2
(citing Blankenship v. Fox News Network, LLC, 2020
WL 7234270, at *6-8 (S.D. W. Va. Dec. 8, 2020) (U.S.
Senators); Moriah v. Bank of China Ltd., 72 F. Supp.
3d 437, 438 (S.D.N.Y. 2014) (former U.S. House
Majority Leader); McNamee v. Massachusetts, 2012
WL 1665873, at *1–2 (D. Mass. May 10, 2012) (U.S.
Representative and his former Chief of Staff);
Feldman v. Bd. of Educ., 2010 WL 383154, at *1–2 (D.
Colo. Jan. 28, 2010) (U.S. Senator)). “The United
States has not directed the Court to any cases
reaching the contrary conclusion; nor has the Court’s
independent research uncovered any such authority.”
Id. at *2.
Thus, every federal court to address the issue
concluded the Morgan doctrine applied to highranking legislators and blocked depositions. It is
undisputed that the President and Speaker are highranking legislators. Neither Plaintiffs nor the courts
below identified any “extraordinary instances” that
might demand testimony from the President or
Speaker, and “even then such testimony frequently
will be barred by privilege.” Vill. of Arlington Heights,
429 U.S. at 268. The district court clearly erred by not
blocking the depositions of the President and Speaker
under the Morgan doctrine.
2. In three unsupported sentences, the district
court concluded the Morgan doctrine did not apply
solely because the President and Speaker “voluntarily
joined this lawsuit.” Pet. App. 14A-15A. According to
the district court, “[t]he purposes underpinning the
30
Morgan doctrine simply do not apply when state
legislators intentionally insert themselves as a party
to the litigation.” Id.
The district court cited no authority to support its
conclusions, see id., and no case has been found in
which intervention waived the Morgan doctrine. The
Ninth Circuit’s order upholding the district court’s
decision conflicts with a decision by the D.C. Circuit,
in which a high-ranking official successfully blocked a
deposition ordered after she intervened in the case. In
re Clinton, 973 F.3d 106, 109 (D.C. Cir. 2020) (writ of
mandamus granted to intervenor former Secretary of
State). The Ninth Circuit’s order that joining the
litigation subjects the President and Speaker to a
deposition also runs counter to a Fifth Circuit decision
that “reject[ed] the proposition that an administrative
agency subjects its high-level officials to discovery
when it brings a declaratory judgment action intended
to give effect to an agency decision.” In re F.D.I.C., 58
F.3d 1055, 1062 (5th Cir. 1995). And by ordering
depositions of the President and Speaker because they
are now parties, the Ninth Circuit’s order is at odds
with decisions of the Fifth and Tenth Circuits, and
even itself, applying the Morgan doctrine to block
depositions of high-ranking officials. See In re Paxton,
60 F.4th 252, 259 (5th Cir. 2023) (Texas Attorney
General); In re Off. of the Utah Att’y Gen., 56 F.4th
1254, 1264 (10th Cir. 2022) (Utah Attorney General);
In re U.S. Dep’t of Educ., 25 F.4th 692, 706 (9th Cir.
2022) (former Secretary of Education).
III.
The Writ Is Appropriate Under the
Circumstances.
A writ of mandamus is “appropriate under the
circumstances” because of the “importance of the
issues at stake” and the district court’s clear errors.
31
Hollingsworth, 558 U.S. at 190. The district court’s
order authorizes inquiry into legislative motives and
adopts a rule that the President and Speaker waive
their legislative privilege whenever they exercise
their statutory right to intervene in defense of state
law. Pet. App. 8A, 10A. Because loss of the privilege
will impact future decisions by legislators to intervene
in defense of state laws, the district court’s ruling
“evince[s] disrespect for a State’s chosen means of
diffusing its sovereign powers among various
branches and officials.” Berger, 597 U.S. at 191.
A writ is appropriate to address these
extraordinary rulings.
“Accepted mandamus
standards are broad enough to allow a court of appeals
to prevent a lower court from interfering with a
coequal branch’s ability to discharge its constitutional
responsibilities.” Cheney, 542 U.S. at 382 (citation
omitted). Writs also are warranted when the issue
would “threaten the separation of powers.” Id. at 381.
While the district court’s ruling applies to a state
legislative branch, its reasoning is equally applicable
to intervention by Congress, and thus threatens both
principles of federalism and the separation of powers.
In addition, Arizona’s “interests will be practically
impaired or impeded if its duly authorized
representatives are excluded from participating in
federal litigation challenging state law.” Berger, 597
U.S. at 191. “Respecting the States’ ‘plans for the
distribution of governmental powers’ also serves
important national interests.” Id. at 192 (alterations
omitted) (quoting Mayor of Phila., 415 U.S. at 615
n.13).
These issues raise “question[s] of public
importance,” Hollingsworth, 558 U.S. at 190, and
make the writ appropriate under these circumstances.
32
CONCLUSION
The Court should issue a writ of mandamus to the
district court, ordering it to halt depositions and
document productions from the President and
Speaker. In the alternative, the Court should treat
this petition as a petition for a writ of certiorari, grant
the petition, and reverse the court of appeals’ decision
denying the petition for a writ of mandamus below.
August 20, 2024
Respectfully submitted,
JAMES OTIS LAW GROUP
D. John Sauer
Counsel of Record
Justin D. Smith
Michael E. Talent
Kenneth C. Capps
13321 N. Outer Forty Rd.
Suite 300
St. Louis, Missouri 63017
(314) 562-0031
John.Sauer@james-otis.com
APPENDIX
APPENDIX
Order of the United States Court of Appeals
for the Ninth Circuit Denying Petition
for Mandamus and Motion for Stay
Pending Appeal, Ct. App. Doc. 9.1
(August 8, 2024) .................................................. 1A
Order of the United States District Court
for the District of Arizona Granting
Plaintiffs’ Motion to Compel, D. Ct. Doc. 211
(June 20, 2024) .................................................... 3A
Order of the United States District Court
for the District of Arizona Denying
Intervenor-Defendants’ Motion for Stay
Pending Appeal, D. Ct. Doc. 218
(July 12, 2024) ................................................... 21A
Order of the United States District Court
for the District of Arizona Granting
Plaintiffs’ Motion to Extend Fact Discovery,
D. Ct. Doc. 224 (July 30, 2024) ......................... 25A
Constitutional and Statutory Provisions .............. 27A
U.S. CONST. Art. I, § 6, cl. 1 .............................. 27A
ARIZ. CONST. Art. IV, pt. 2, § 7 ......................... 27A
ARIZ. CONST. Art. IV, pt. 2, § 8 ......................... 27A
A.R.S. § 12-1841 ................................................ 27A
A.R.S. § 15-120.02 ............................................. 29A
1A
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
_______________
No. 24-4335
D.C. No. 4:23-cv-185
District of Arizona, Tucson
_______________
In re: WARREN PETERSEN, Senator, President of
the Arizona State Senate; BEN TOMA,
Representative, Speaker of the Arizona House of
Representative.
_______________
WARREN PETERSEN, Senator, President of the
Arizona State Senate and BEN TOMA,
Representative, Speaker of the Arizona House of
Representative,
Petitioners.
v.
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF ARIZONA, TUCSON,
Respondent.
HELEN DOE, parent and next friend of Jane Doe; et
al.,
Real Parties in Interest.
_______________
ORDER
_______________
Before: SCHROEDER, M. SMITH, and HURWITZ,
Circuit Judges.
2A
Petitioners have not demonstrated a clear and
indisputable right to the extraordinary remedy of
mandamus. See In re Mersho, 6 F.4th 891, 897 (9th
Cir. 2021) (“To determine whether a writ of
mandamus should be granted, we weigh the five
factors outlined in Bauman v. United States District
Court.”); Bauman v. U.S. Dist. Court, 557 F.2d 650
(9th Cir. 1977). The petition is denied.
The motion (Docket Entry No. 4) to stay is denied
as moot.
DENIED.
3A
WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
_______________
No. CV-23-00185-TUC-JGZ
_______________
Helen Doe, et al.,
Plaintiffs,
v.
Thomas C Horne, et al.,
Defendants.
_______________
ORDER
_______________
Pending before the Court are Plaintiffs’ Motion to
Compel Discovery as to Intervenor-Defendants (Doc.
191) and Motion for a Protective Order (Doc. 196).1
Both motions are fully briefed. (Doc. 191, 198, 200,
196, 199, 201.) For the following reasons, the Court
will grant the Motion to Compel and grant in part and
deny in part the Motion for Protective Order.
I. BACKGROUND
The Plaintiffs filed suit on April 17, 2023, alleging
that A.R.S. § 15-120.02, a law that prohibits
transgender girls from competing on girls’ school
1
The Plaintiffs also filed a Second Motion for Extension of
Time to Complete Discovery. (Doc. 205.) The Court granted this
request during oral argument on May 7, 2024. (Doc. 207.)
4A
sports teams, violates their rights under the Equal
Protection Clause, Title IX, the Americans with
Disabilities Act (ADA), and Section 504 of the
Rehabilitation Act (RA). (Doc. 1.) Plaintiffs named five
defendants in their Complaint: (1) Thomas C. Horne,
in his official capacity as State Superintendent of
Public Instruction; (2) Laura Toenjes, in her official
capacity as Superintendent of the Kyrene School
District; (3) the Kyrene School District; (4) the
Gregory School; and (5) the Arizona Interscholastic
Association (AIA). 2 (Id.)
Before any defendant made an appearance,
Senator Warren Peterson, President of the Arizona
State Senate, and Representative Ben Toma, Speaker
of the Arizona House of Representatives, filed a
Motion to Intervene pursuant to Rule 24 of the
Federal Rules of Civil Procedure. (Doc. 19.) The Court
initially granted President Peterson and Speaker
Toma limited intervention and allowed them to
present arguments and evidence in opposition to the
Plaintiffs’ Motion for Preliminary Injunction. (Doc.
79.) Later, the Court amended its decision and
allowed President Peterson and Speaker Toma to
participate fully as a party in the litigation. (Doc. 111,
142.)
The Intervenor-Defendants have fully participated
in this action. On September 12, 2023, in lieu of an
answer, Intervenor-Defendants filed a motion to
dismiss the complaint for failure to state a claim. (Doc.
146 at 10.) Since October 2023, the IntervenorDefendants have actively participated in discovery.
2
Laura Toenjes and the Kyrene School District filed a
Stipulation in lieu of Answer, informing the Court that they will
not be active participants in this case. (Doc. 59 at 2.)
5A
On October 30, 2023, the Plaintiffs served nine
Interrogatories and nine Requests for Production on
the Intervenor-Defendants. (Doc. 191 at 8.) On
November 13, 2023, the Intervenor-Defendants
served twenty-one Requests for Admissions, ten
Interrogatories, and five Requests for Production on
each Plaintiff. (Id.) The Intervenor-Defendants also
served three Requests for Production and twelve
Interrogatories on AIA. (Id.)
The pending motions center on the IntervenorDefendants’ objections to Plaintiffs’ discovery
requests. In their November 29, 2023 responses, the
Intervenor-Defendants objected to several Requests
for Production on the basis of legislative privilege and
deliberative process privilege. (Id.) On February 8,
2024, the Intervenor-Defendants objected to
Plaintiffs’ requests to depose them on the basis of
legislative privilege, the Morgan doctrine, and
relevance. (Doc. 191-2 at 95-97.)
After the parties conferred, the Plaintiffs filed the
instant Motion to Compel requesting that the Court
order the Intervenor-Defendants to produce the
documents at issue and to submit to depositions. (Doc.
191.) In their opposition, the Intervenor-Defendants
stated that if this Court grants the Plaintiffs’ Motion
to Compel, they will seek to depose minor Plaintiffs
Jane Doe and Megan Roe. (Doc. 199 at 1.) In response,
the Plaintiffs filed their Motion for Protective Order
requesting that the Court preclude the IntervenorDefendants from deposing the minor Plaintiffs, or, in
the alternative, set reasonable limits on any
depositions. (Doc. 196.)
Oral argument on the Motions was held on May 7,
2024. (Doc. 207.) At the hearing, the parties informed
the Court that many disputes had been resolved and
6A
issues remain only with respect to the production of
five documents, 3 the proposed depositions of the
Intervenor-Defendants, and the proposed depositions
of the minor Plaintiffs. (Id.) The parties requested
that the Court conduct an in-camera review of the five
contested documents. The Court granted the parties’
request and has reviewed the documents in camera.
II. DISCUSSION
A. Motion to Compel
The Intervenor-Defendants oppose the Plaintiffs’
discovery requests, arguing that (1) neither the five
documents at issue nor their potential testimony are
relevant to the Plaintiffs’ claims; (2) the documents
are protected from disclosure under legislative
privilege; (3) Document 15 is also protected by the
deliberative process privilege; and (4) the IntervenorDefendants cannot be deposed due to legislative
privilege and the Morgan doctrine. (See Doc. 198.)
1. Legal Standards
Federal Rule of Civil Procedure 26(b)(1) permits a
party to discover information about “any
nonprivileged matter that is relevant to any party's
claim or defense.” Fed. R. Civ. P. 26(b)(1). The party
seeking to compel discovery has the initial burden of
establishing that the discovery sought is relevant. Mi
Familia Vota v. Hobbs, 343 F.R.D. 71, 81 (D. Ariz.
2022). This “is a relatively low bar.” Id. A party
asserting an evidentiary privilege “has the burden to
3
The five documents (3, 6, 14, 15, and 18) are described in the
Intervenor-Defendants’ Privilege Log and consist of emails to
Arizona legislators about the enactment of A.R.S. § 15-120.02,
one with “talking points” about the Save Women’s Sports Act.
(Doc. 191-2 at 55-60.)
7A
demonstrate that the privilege applies to the
information in question.” Puente Arizona v. Arpaio,
314 F.R.D. 664, 667 (D. Ariz. 2016).
2. Relevance
The Plaintiffs argue that the contested documents
and the information sought through depositions are
highly relevant in determining the IntervenorDefendants’ intent in drafting and supporting A.R.S.
§ 15-120.02. (Doc. 191 at 14.) The Plaintiffs state that
“the ‘heart’ of this case is determining the [law’s]
constitutionality, which may involve a determination
of what the legislators’ motives were in passing
[A.R.S. § 15-120.02].” (Id. at 12.) The Plaintiffs assert
the discovery requests are “reasonably calculated to
uncover ‘[w]hat motivated the Arizona legislature to
act.’” (Id. at 14 (quoting Mi Familia Vota v. Hobbs, 682
F. Supp. 3d 769, 784-85 (D. Ariz. 2023).)
“Legislative motive is relevant in Equal Protection
claims.” Vision Church v. Vill. of Long Grove, 226
F.R.D. 323, 326 (N.D. Ill. 2005); see also Mi Familia
Vota v. Hobbs, 682 F. Supp. 3d at 784–85 (explaining
that the legislature’s purpose in enacting state voting
laws was “at the heart” of plaintiffs’ Equal Protection
challenge); Grossbaum v. Indianapolis-Marion
County Bldg. Auth., 100 F.3d 1287, 1292 (7th Cir.
1996) (“In an Equal Protection Clause analysis . . .
courts often inquire into the motives of legislators or
other government actors.”); Bethune-Hill v. Virginia
State Bd. of Elections, 114 F. Supp. 3d 323, 339 (E.D.
Va. 2015) (proof of legislative intent is “relevant and
extremely important as direct evidence.”). Courts
have recognized the relevance of discovering
legislative materials in Equal Protection cases. See
Bethune-Hill, 114 F. Supp. 3d at 339 (“[A]ny
documents containing the opinions and subjective
8A
beliefs of legislators or their key advisors would be
relevant to the broader inquiry into legislative
intent.”); Harris v. Ariz. Indep. Redistricting Comm'n,
993 F. Supp. 2d 1042, 1071 (D. Ariz. 2014) (“Motive is
often most easily discovered by examining the
unguarded acts and statements of those who would
otherwise attempt to conceal evidence of
discriminatory intent.”); Vill. of Arlington Heights v.
Metro. Hous. Dev. Corp., 429 U.S. 252, 268 (1977)
(“[C]ontemporary statements by members of the
decisionmaking body, minutes of its meetings, or
reports” may be relevant to determining legislative
intent).
The Court concludes that the discovery Plaintiffs
seek is relevant to their Equal Protection claim.
Plaintiffs seek to discover information pertaining to
the legislative history of A.R.S. § 15-120.02 and the
governmental purpose served by the law. (Doc. 191 at
14.) The email correspondence between legislators
directly relates to the adoption of A.R.S. § 15-120.02.
Id. The Plaintiffs seek to question the IntervenorDefendants regarding their motives for passing A.R.S.
§ 15-120.02. Id. This discovery may shed light on
whether the Arizona legislature acted with a
constitutionally permissible purpose in enacting
A.R.S. § 15-120.02.
The Intervenor-Defendants argue that the
discovery sought is not relevant because the
motivation of one legislator cannot be attributed to
the whole. (Doc. 198 at 5 (“The statements of a
handful of lawmakers” are generally insufficient to
show discriminatory intent because they “may not be
probative of the intent of the legislature as a whole.”)
(quoting United States v. Carillo-Lopez, 68 F.4th
1133, 1140 (9th Cir. 2023).) However, whether a
9A
document is discoverable and whether it constitutes
probative evidence are two different inquiries guided
by different principles. Carillo-Lopez considers the
probative value of particular types of evidence of
legislative intent; it does not address whether
evidence of legislative intent is discoverable. See
Carillo-Lopez, 68 F.4th at 1140-41. Of course “courts
must use caution when seeking to glean a legislature’s
motivations from the statements of a handful of
lawmakers,” but “that does not mean evidence of an
individual legislator’s motive is irrelevant to the
question of the legislature’s motive.” Mi Familia Vota,
343 F.R.D. at 88; see also Mi Familia Vota, 682 F.
Supp. 3d at 785 (the fact that statements by
individual lawmakers may alone be insufficient to
establish the motivation of the legislature does not
eliminate the relevance of such statements); BethuneHill, 114 F. Supp. 3d at 339–40 (“[I]t may be true that
‘the individual motivations’ of particular legislators
may be neither necessary nor sufficient for Plaintiffs
to prevail,” but “that does not mean that the ‘evidence
cannot constitute an important part’ of the case
presented.).
3. Legislative Privilege
Legislative privilege is a qualified privilege that
shields legislators from the compulsory evidentiary
process. Mi Familia Vota, 682 F. Supp. 3d at 782; see
also Lee v. City of Los Angeles, 908 F.3d 1175, 1187
(9th Cir. 2018) (holding that depositions of local
legislators are barred by legislative privilege even in
“extraordinary circumstances.”); City of Las Vegas v.
Foley, 747 F.2d 1294, 1299 (9th Cir. 1984) (holding
that a corporation’s effort to depose city officials to
determine their individual motives for enacting a
zoning ordinance was precluded under legislative
10A
privilege). Legislative privilege is a personal one and
may be asserted or waived by each individual state
legislator. Favors v. Cuomo, 285 F.R.D. 187, 211
(E.D.N.Y. 2012). A waiver of legislative privilege need
not be explicit or unequivocal, rather, waiver can
occur when a party testifies as to otherwise privileged
matters, shares privileged communications with
outsiders, or through a party’s litigation conduct in a
civil case. See Favors, 285 F.R.D. at 212; Singleton v.
Merrill, 576 F. Supp. 3d 931, 942 (N.D. Ala. 2021).
The Court concludes that the IntervenorDefendants waived their legislative privilege by
voluntarily participating in this lawsuit and putting
their intent at issue. The Court finds Mi Familia Vota
v. Fontes, 2023 WL 8183557 (D. Ariz. Sept. 14, 2023)
persuasive. There, two legislators voluntarily
intervened in a lawsuit to defend the state voting
laws. Id. at *2. In rejecting the legislators’ objections
to producing documents and sitting for depositions,
the court concluded that the legislators could not
“actively participate in this litigation yet avoid the
burden of discovery regarding their legislative
activities.” Id. The court explained that “the only
reasonable inference from the Legislators’ litigation
conduct is that they have decided to forego [legislative
privilege] in pursuit of an opportunity to defend in
court their decisions as legislators.” Id. at *3 (quoting
Singleton, 576 F. Supp. 3d at 941).
As was the case in Mi Familia Vota v. Fontes, the
Intervenor-Defendants “are not seeking immunity
from this suit,” but rather seek to “actively participate
in this litigation while avoiding the burden of
discovery regarding their legislative activities.” See
2023 WL 8183557 at *2 (quoting Powell v. Ridge, 247
F.3d 520, 525 (3rd Cir. 2001). As in Mi Familia Vota,
11A
the Plaintiffs did not seek discovery from the
Intervenor-Defendants until they intervened in this
action. In moving to intervene, the IntervenorDefendants emphasized their “unique interest in
defending the constitutionality of laws duly enacted
by the Arizona legislature.” (Doc. 19 at 1.) Finally, like
Mi Familia Vota, the Intervenor-Defendants put their
legislative intent at issue in their assertions that (1)
the law does not discriminate on the basis of
transgender status, (Doc. 82 at 13), and (2) the
purpose of the law is to “redress past discrimination
against women in athletics” and “promote equality of
athletic opportunity between the sexes” in school
sports. (Doc. 19 at 12).
The Intervenor-Defendants argue that Mi Familia
Vota is distinguishable. They claim they had a
heightened interest in intervening in this case
because the Arizona Attorney General disqualified
herself from defending A.R.S. § 15-120.02. The
Intervenor-Defendants also argue that they did not
put their motives at issue and that the Plaintiffs have
not alleged discriminatory intent in this suit. (Doc.
198 at 6, 8.) These arguments are unpersuasive.
Whether the Intervenor-Defendants had an
interest or a heightened interest in intervention is of
no moment. They intervened in this litigation
voluntarily. Under Arizona law, the Speaker and
President are “entitled to be heard” “[i]n any
proceeding in which a state statute … is alleged to be
unconstitutional.” A.R.S. § 12-1841(A). The Speaker
and President may, in their discretion, (1) intervene
as a party, (2) file briefs in the lawsuit, or (3) “choose
not to participate” in the lawsuit. A.R.S. § 12-1841(D)
(emphasis added). The Intervenor-Defendants chose
12A
to intervene. 4 Furthermore, although Attorney
General Mayes disqualified herself from defending
the law, she authorized Defendant Horne, a named
defendant in the Plaintiffs’ Complaint, to defend the
law. 5 At the time intervention was granted,
Defendant Horne had already retained counsel, filed
several motions, answered the complaint, and
confirmed his intention to vigorously defend this
lawsuit. (See Doc. 20, 21, 24, 31, 39, 42, 57, 58, 66, 67,
71, 72, 73.)
Whether the Plaintiffs alleged in their Complaint
that the legislature acted with discriminatory intent
is similarly irrelevant. Legislative purpose and motive
is at issue due to the very nature of the claim. In this
Equal Protection challenge, the government must
establish that its sex-based classification is
substantially related to an important government
objective. See Craig v. Boren, 429 U.S. 190, 197 (1976);
Karnoski v. Trump, 926 F.3d 1180, 1200–01 (9th Cir.
2019). The Intervenor-Defendants assert that the law
is substantially related to “redress[ing] past
discrimination against women in athletics” and
“promot[ing] equality of athletic opportunity between
the sexes” in school sports. (Doc. 82 at 12.) Plaintiffs
4
While the Intervenor-Defendants have not yet filed an
answer in this case, as was the case in Mi Familia Vota, they did
file a Motion to Intervene (Doc. 19), Response to the Plaintiffs’
Motion for Preliminary Injunction (Doc. 82), and a Motion to
Dismiss Plaintiffs’ claims (Doc. 146).
5
Under A.R.S. § 41-192(E), in the event that the attorney
general is disqualified, “the state agency is authorized to make
expenditures and incur indebtedness to employ attorneys to
provide the representation or services.”
13A
properly seek evidence in discovery to evaluate the
support for the Intervenor-Defendants’ assertions.
4. Deliberative Process Privilege
The
Intervenor-Defendants
argue
that
deliberative process privilege provides an additional
basis for precluding the disclosure of Document 15.
(Doc. 198 at 15-17.)
Deliberative process privilege is a form of
executive privilege that shields from disclosure
“documents
reflecting
advisory
opinions,
recommendations and deliberations comprising part
of a process by which governmental decisions and
policies are formulated.” United States Fish & Wildlife
Serv. v. Sierra Club, Inc., 592 U.S. 261, 267 (2021)
(quoting NLRB v. Sears, Roebuck & Co., 421 U. S. 132,
150 (1975)) (emphasis added). The purpose of
deliberative process privilege is to protect government
agencies from being “forced to operate in a fishbowl.”
Id. (quoting EPA v. Mink, 410 U.S. 73, 87 (1973)).
Deliberative process privilege does not apply here
because it is an executive privilege rendering
executive agencies immune from normal disclosure or
discovery in civil litigation.
5. The Morgan Doctrine
The Intervenor-Defendants argue that the Morgan
doctrine provides an independent basis for denying
the Plaintiffs’ deposition requests. (Doc. 198 at 12-15.)
The Morgan doctrine specifies that a party may
not involuntarily depose “a high-ranking government
official” absent “exceptional circumstances.” United
States v. Morgan, 313 U.S. 409 (1941). Judges
“generally only consider subjecting a high-ranking
government official to a deposition if the official has
first-hand knowledge related to the claims being
14A
litigated and other persons cannot provide the
necessary information.” Freedom from Religion
Found., Inc. v. Abbott, 2017 WL 4582804, at *11 (W.D.
Tex. Oct. 13, 2017). The purpose of the Morgan
doctrine is to allow high ranking government officials
to serve in their official capacities without being
“unduly entangled in civil litigation.” In re Gold King
Mine Release in San Juan Cnty., 2021 WL 3207351,
at *2 (D.N.M. Mar. 20, 2021).
The Intervenor-Defendants cite League of United
Latin Am. Citizens v. Abbott, 2022 WL 2866673, at *2
(W.D. Tex. July 6, 2022), to support their assertion
that the Morgan doctrine protects them from being
deposed. In Abbott, the plaintiffs alleged that the
redistricting plans adopted by the Texas Legislature
violated the Equal Protection Clause and sought to
depose the Speaker, General Counsel, and
Parliamentarian
of
the
Texas
House
of
Representatives about their motives. Id. at *2. The
court held that the Morgan doctrine prevented
plaintiffs from deposing the state legislators because
“[c]ourts are supposed to insulate high-ranking
government officials ‘from the constant distraction of
testifying in lawsuits’ in part because we need the
government to function.’” Id. (quoting Jackson Mun.
Airport Auth. v. Reeves, 2020 WL 5648329, at *3 (S.D.
Miss. Sept. 22, 2020).
The Morgan doctrine does not apply here because
the Intervenor-Defendants voluntarily joined this
lawsuit. There is no need to insulate the IntervenorDefendants from the distraction of this lawsuit
because they requested to participate in the action.
The purposes underpinning the Morgan doctrine
simply do not apply when state legislators
15A
intentionally insert themselves as a party to the
litigation.
In conclusion, the Court holds that (1) the
discovery sought by the Plaintiffs is relevant to their
Equal Protection claim; (2) the Intervenor-Defendants
waived their legislative privilege; (3) deliberative
process privilege does not apply to Document 15; and
(4) the Morgan doctrine does not protect IntervenorDefendants from being deposed. Accordingly, the
Intervenor-Defendants must produce documents 3, 6,
14, 15 and 18 and submit to deposition.
B. Motion for Protective Order
Plaintiffs move for a protective order to prevent
Intervenor-Defendants
from
deposing
minor
6
Plaintiffs. (Doc. 196 at 2.) In the alternative,
Plaintiffs request that the Court set reasonable limits
on such depositions. (Id.) The Court will allow
Intervenor-Defendants to depose minor Plaintiffs but
impose limitations.
1.
Intervenor-Defendants
minor Plaintiffs.
may
depose
Plaintiffs’
counsel
argues
that
allowing
Intervenor-Defendants to depose minor Plaintiffs
would subject them to “embarrassment, oppression, or
undue burden.” (Doc. 196 at 5.) Plaintiffs’ counsel also
argues that Intervenor-Defendants can obtain
6
Intervenor-Defendants asserted that if Plaintiffs are
permitted to depose them, then they will seek to depose the
minor Plaintiffs. (Doc. 199 at 1.) At hearing on the motions,
Intervenor-Defendants stated that they had refrained from
deposing Plaintiffs believing it would subject the legislators to
being deposed. Intervenor-Defendants explain that if the Court
orders their depositions, they wish to proceed with deposing the
minor Plaintiffs.
16A
relevant information by deposing the minor Plaintiffs’
mothers. (Id.) Intervenor-Defendants respond that “it
is well settled that a defendant has the right to depose
the plaintiff.” (Doc. 199 at 3.) Intervenor-Defendants
argue that depositions of the minor Plaintiffs are
permissible under Rule 26 because the information
sought is relevant and non-privileged. (Id.)
Federal Rule of Civil Procedure 26(b)(1) permits a
party to discover information about “any matter, not
privileged, which is relevant to the subject matter
involved in the pending action” regardless of its
admissibility at trial. Fed. R. Civ. P. 26. Additionally,
Rule 30(a)(1) provides that “[a] party may, by oral
questions, depose any person, including a party,
without leave of court” subject to the restrictions set
forth therein. Fed. R. Civ. P. 30. Depositions are
ordinarily allowed unless it is clear the information
sought has no possible bearing on the matter at hand.
Thomas v. Cate, 715 F. Supp. 2d 1012, 1031 (E.D. Cal.
2010).
The court may proscribe or limit discovery to
prevent abuse. See Fed. R. Civ. P. 26(c). Under Rule
26(c), upon a showing of good cause, a court may “issue
an order to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or
expense.” The court has broad discretion to decide
when a protective order is appropriate and what
degree of protection is required. Seattle Times Co. v.
Rhinehart, 467 U.S. 20, 36 (1984). The court considers
all factors to determine whether the totality of the
circumstances justifies the entry of a protective order.
Roberts v. Clark Cnty. Sch. Dist., 312 F.R.D. 594, 603
(D. Nev. Jan. 11, 2016).
The Court concludes that Intervenor-Defendants
may depose the minor Plaintiffs. See Edgin on behalf
17A
of I.E. v. Blue Valley USD 220, 2021 WL 1750861, at
*2 (D. Kan. May 4, 2021) (permitting the deposition of
a minor stating “it's highly unusual to entirely
preclude a deposition, particularly of a named party
in the case.”); Hamilton v. Southland Christian Sch.,
Inc., 2011 WL 13143561, at *3 (M.D. Fla. Apr. 18,
2011) (“The great weight of the decisions permit a
deposition when children are parties or witnesses to
the claims in dispute, with reasonable restrictions.”);
Kuyper v. Board of County Com'rs of Weld County,
2010 WL 4038831, *1–2 (D. Colo. Oct. 14, 2010)
(allowing deposition of seven year old victim of assault
four years earlier by violent foster child placed in
victim's home, in suit against county); Graham v. City
of New York, 2010 WL 3034618, *4–5 (E.D. N.Y. Aug.
3, 2010) (allowing deposition to proceed “cautiously
and sensitively” of seven year old child who three
years earlier had witnessed police forcibly remove his
father from the car, handcuff him, and place him in a
police vehicle, leaving child alone, in civil rights suit
against police); Gray v. Howlett Lumber Co., 2007 WL
2705748 (Mass. Super. Aug. 9, 2007) (allowing
deposition of ten-year-old child, who was principal
witness to death of sibling which was the basis for the
suit, while imposing reasonable restrictions); In re
Transit Management of Southeast Louisiana, Inc., 761
So.2d 1270 (La. 2000) (allowing deposition despite
seven-year-old child’s physician’s opinion that
deposition would cause considerable mental stress, in
personal injury action). While the Court agrees that
Intervenor-Defendants’
depositions
of
minor
Plaintiffs may go forward, the Court will impose
reasonable limitations.
2. Intervenor-Defendants shall comply
with the court-imposed limitations.
18A
If the minor Plaintiffs are to be deposed, Plaintiffs’
counsel proposes three limitations:
1. Intervenor-Defendants
cannot
pursue
questioning concerning either the legitimacy or
the appropriateness of the minor Plaintiffs’
medical and/or mental health treatment;
2. Intervenor-Defendants cannot refer to the
minor Plaintiffs’ medical records and letters
from mental health providers or ask questions
about the contents of those records/letters; and
3. Intervenor-Defendants cannot ask questions
referencing sexual abuse, assault, or
misconduct.
(Doc. 196 at 7-8.)
Intervenor-Defendants oppose Plaintiffs’ proposed
limitations stating that the limitations would
preclude Intervenor-Defendants from obtaining
relevant and non-privileged information. (Doc. 199 at
3.) However, at hearing, Intervenor-Defendants could
not identify any relevant information that that would
be precluded by Plaintiffs’ first and third limitations. 7
7
When asked at oral argument to provide examples of some
questions that the first limitation would prevent, IntervenorDefendants responded: (1) You (minor Plaintiff) mentioned that
you had difficulty concentrating and thinking, can you just tell
us about that? (2) You say gender dysphoria interferes with your
neurological functioning, can you explain what that means? (May
7, 2024, Hearing, Unofficial Transcript at 50 ¶¶ 3-6.) IntervenorDefendants’ proffered questions would not be precluded by the
first limitation because the questions do not relate to the
legitimacy or the appropriateness of the minor Plaintiffs’ medical
and/or mental health treatment. As Intervenor-Defendants have
not identified any relevant information that would be precluded
by the first condition, Intervenor-Defendants are precluded from
questioning Plaintiffs about the legitimacy and/or the
appropriateness of their medical and/or mental health
19A
Thus, the Court will impose proposed limitations 1
and 3.
With respect to limitation 2, IntervenorDefendants and Defendant AAIA did identify relevant
information that they might seek in follow up
questions to the minor Plaintiffs. 8 Consequently, the
Court will allow Intervenor-Defendants to reference
the minor Plaintiffs’ medical records and letters from
mental health providers to the extent that it is
necessary to confirm or clarify the record.
III. CONCLUSION
For the foregoing reasons,
IT IS ORDERED Plaintiffs’ Motion to Compel
(Doc. 191) is granted.
IT IS FURTHER ORDERED Plaintiffs’ Motion
for Protective Order (Doc. 196) is granted in part
treatment. As the Court previously noted, the “appropriateness
of medical treatment for gender dysphoria is not at issue in this
case.” (Doc. 127 at 17.)
8
Intervenor-Defendants stated that while they do not intend
to reference Plaintiffs’ medical records, it may become necessary
if “somebody denies something and we have to bring it up just to
get everyone on the same page.” (May 7, 2024, Hearing,
Unofficial Transcript at 51 ¶¶ 11-13.) When asked for examples
of the types of questions that this limitation might interfere with,
Intervenor-Defendants proffered: (1) How tall are you (minor
Plaintiff) compared to other people in your grade? (2) What
percentile is that vis-à-vis your peers? (3) Do you think being tall
gives you an advantage when you are running or playing
basketball? (May 7, 2024, Hearing, Unofficial Transcript at 51
¶25; 52 ¶¶ 1-4.) The Court finds that this line of questioning may
be relevant to Intervenor-Defendants’ defenses, specifically,
whether A.R.S. § 15-120.02 is substantially related to an
important government interest. See Karnoski, 926 F.3d at 1200–
01; Craig, 429 U.S. at 197.
20A
and denied in part. Intervenor-Defendants may
depose minor Plaintiffs, subject to the following
limitations:
1. Intervenor-Defendants shall not question
minor Plaintiffs about the legitimacy or the
appropriateness of the Plaintiffs’ medical
and/or mental health treatment.
2. Intervenor-Defendants may reference the
minor Plaintiffs’ medical records and/or letters
from mental health providers only to the extent
that it is necessary to confirm or clarify the
record.
3. Intervenor-Defendants shall not ask the minor
Plaintiffs any questions regarding sexual
abuse, assault, or misconduct.
IT IS FURTHER ORDERED re-setting the
remaining case deadlines as follows:
1. Plaintiffs’ Disclosure of Rule 26(a)(2) Expert
Witnesses Material: August 12, 2024;
2. Close of Fact Discovery: August 20, 2024
3. Disclosure of Lay Witnesses: August 20, 2024
4. Defendants’ Disclosure of Rule 26(a)(2) Expert
Witnesses Material: September 11, 2024
5. Rebuttal Expert Opinions: October 25, 2024
6. Close of Expert Discovery: December 30, 2024
7. Dispositive Motions: January 28, 2025.
Dated this 20th day of June, 2024.
/s/ Jennifer Zipps
Jennifer G. Zipps
United States District Judge
21A
WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
_______________
No. CV-23-00185-TUC-JGZ
_______________
Helen Doe, et al.,
Plaintiffs,
v.
Thomas C Horne, et al.,
Defendants.
_______________
ORDER
_______________
On June 20, 2024, this Court granted Plaintiffs’
Motion to Compel Discovery and ordered IntervenorDefendants to produce certain documents and sit for
depositions. (Doc. 211.) On June 21, 2024, IntervenorDefendants filed a Motion for Stay Pending Appeal
stating their intention to seek a Writ of Mandamus
from the Ninth Circuit Court of Appeals. (Doc. 212.) If
their Motion for Stay is denied, IntervenorDefendants request this Court grant a 21-day
administrative stay to allow time for the Ninth Circuit
to consider a motion for stay and request for
administrative stay. (Id.) Plaintiffs oppose the
Motion. (Doc. 214.) For the following reasons, the
Court will deny Intervenor-Defendants’ Motion for
22A
Stay Pending Appeal and Request for Administrative
Stay.
Mandamus is a “drastic” remedy reserved for
“extraordinary situations.” Bauman v. U.S. Dist. Ct.,
557 F.2d 650, 654 (9th Cir. 1977). A petitioner must
demonstrate that the “right to issuance of the writ is
clear and indisputable.” Bozic v. U.S. Dist. Ct. (In re
Bozic), 888 F.3d 1048, 1052 (9th Cir. 2018). The Ninth
Circuit considers five factors when examining a
petition for issuance of a writ of mandamus: whether
(1) Petitioners have “no other adequate means, such
as a direct appeal, to attain the relief ... desire[d]”; (2)
Petitioners “will be damaged or prejudiced in a way
not correctable on appeal”; (3) the “district court's
order is clearly erroneous as a matter of law”; (4) the
“order is an oft-repeated error, or manifests a
persistent disregard of the federal rules”; and (5) the
“order raises new and important problems, or issues
of law of first impression.” Bauman, 557 F.2d at 65455. The absence of factor three will always defeat a
petition for mandamus. Sussex v. U.S. Dist. Ct. (In re
Sussex), 781 F.3d 1065, 1071 (9th Cir. 2015).
When considering whether to grant a stay pending
appeal, “a court considers four factors: (1) whether the
stay applicant has made a strong showing that he is
likely to succeed on the merits; (2) whether the
applicant will be irreparably injured absent a stay; (3)
whether issuance of the stay will substantially injure
the other parties interested in the proceeding; and (4)
where the public interest lies.” Nken v. Holder, 556
U.S. 418, 426 (2009) (internal quotation omitted). “[A]
movant’s failure to satisfy the stringent standard for
demonstrating a substantial likelihood of success on
the merits is an arguably fatal flaw for a stay
23A
application.” M.M.V. v. Barr, 459 F. Supp. 3d 1, 4
(D.D.C. 2020).
The Intervenor-Defendants have not made a
substantial showing that they are likely to succeed on
a request for the extraordinary relief of mandamus. In
granting Plaintiffs’ Motion to Compel, the Court
concluded that: (1) the Intervenor-Defendants waived
their legislative privilege by intervening in this
litigation and putting their motives at issue, and (2)
the Morgan Doctrine, which protects high ranking
government officials from being unduly entangled in
civil litigation, does not apply to prevent IntervenorDefendants from being deposed where they
voluntarily intervened. (See Doc. 211.) The
Intervenor-Defendants disagree, re-urging the
arguments presented in their Objection to Plaintiffs’
Motion to Compel. (See Docs. 198, 212.) These
arguments have been addressed by the Court and
found to be without merit.
Intervenor-Defendants are unlikely to succeed on
their claim that Legislative Privilege shields
Intervenor-Defendants from producing certain
documents and being deposed. As IntervenorDefendants acknowledge, (Doc. 212 at 3 nt. 1), in a
similar case brought by the same IntervenorDefendants, the Ninth Circuit ultimately concluded
that the district court did not clearly err in
determining that the legislators waived their
legislative privilege by intervening in the action. See
In re Toma, 2023 WL 8167206, at *1 (9th Cir. Nov. 24,
2023) (unpublished) (reasoning that the district court
could not clearly err where no Ninth Circuit authority
prohibited the course taken by the district court).
Intervenor-Defendants are unlikely to succeed on
their claim that the Morgan Doctrine shields
24A
Intervenor-Defendants from being deposed. The
Morgan doctrine serves to protect high ranking
officials from being “unduly entangled” in civil
litigation. In re Gold King Mine Release in San Juan
Cnty., 2021 WL 3207351, at *2 (D.N.M. Mar. 20,
2021). The underlying rationale of protecting high
ranking officials from being forced to participate in
litigation is not applicable where the high ranking
officials request to and voluntarily insert themselves
as a party to a litigation and actively request
discovery from other parties. Though IntervenorDefendants argue that intervention does not affect the
Morgan doctrine’s application, they cite no relevant
caselaw that would suggest this Court clearly erred in
reaching its conclusion. See In re U.S. Dep't of Educ.,
25 F.4th 692, 698 (9th Cir. 2022) (“[T]he district court
has erred when [the Ninth Circuit] has already
directly addressed the question at issue or when
similar cases from [the Ninth Circuit], cases from the
Supreme Court, cases from other circuits, the
Constitution, or statutory language definitively show
us that a mistake has been committed.”). Accordingly,
IT IS ORDERED that Intervenor-Defendant’s
Motion for Stay Pending Appeal and Request for
Administrative Stay (Doc. 212) is denied.
Dated this 12th day of July, 2024.
/s/ Jennifer Zipps
Jennifer G. Zipps
United States District Judge
25A
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
TUCSON DIVISION
_______________
Case No. 4:23-cv-00185-JGZ
_______________
Jane Doe, by her next friend and parents Helen Doe
and James Doe; and Megan Roe, by her next friend
and parents, Kate Roe and Robert Roe,
Plaintiffs,
v.
Thomas C Horne in his official capacity as State
Superintendent of Public Instruction; Laura Toenjes,
in her official capacity as Superintendent of the
Kyrene School District; Kyrene School District; The
Gregory School; and Arizona Interscholastic
Association Inc.,
Defendants,
Warren Petersen, in his official capacity as President
of the Arizona State Senate, and Ben Toma, in his
official capacity as Speaker of the Arizona House of
Representatives,
Intervenor-Defendants.
_______________
ORDER GRANTING PLAINTIFFS’
MOTION TO EXTEND FACT DISCOVERY
(THIRD REQUEST)
_______________
26A
Pending before the Court is the Plaintiffs’ Third
Motion for an Extension of Time to Complete Fact
Discovery. (Doc. 223.) No Party objects to the
extension. Having considered the Motion, and good
cause appearing,
IT IS ORDERED that Plaintiffs’ Third Motion for
an Extension of Time to Complete Fact Discovery
(Doc. 223) is granted. The new case deadlines are as
follows:
Plaintiffs’ Disclosure of Rule 26(a)(2) Expert
Witnesses Material: September 11, 2024
Close of Fact Discovery: September 19, 2024
Disclosure of Lay Witnesses: September 19, 2024
Defendants’ Disclosure of Rule 26(a)(2) Expert
Witnesses Material: October 11, 2024
Rebuttal Expert Opinions: November 22, 2024
Close of Expert Discovery: January 29, 2025
Dispositive Motions: February 27, 2025
Dated this 29th day of July, 2024.
/s/ Jennifer Zipps
Jennifer G. Zipps
United States District Judge
27A
CONSTITUTIONAL AND STATUTORY
PROVISIONS
U.S. CONST. Art. I, § 6, cl. 1
The Senators and Representatives … shall in all
Cases, except Treason, Felony and Breach of the
Peace, be privileged from Arrest during their
Attendance at the Session of their respective
Houses, and in going to and returning from the
same; and for any Speech or Debate in either
House, they shall not be questioned in any other
Place.
ARIZ. CONST. Art. IV, pt. 2, § 7
No member of the legislature shall be liable in any
civil or criminal prosecution for words spoken in
debate.
ARIZ. CONST. Art. IV, pt. 2, § 8
Each house, when assembled, shall choose its own
officers, judge of the election and qualification of
its own members, and determine its own rules of
procedure.
ARIZ. REV. STAT. § 12-1841
Parties; notice of claim of unconstitutionality
A. When declaratory relief is sought, all persons
shall be made parties who have or claim any
interest which would be affected by the
declaration, and no declaration shall prejudice the
rights of persons not parties to the proceeding. …
In any proceeding in which a state statute,
ordinance, franchise or rule is alleged to be
unconstitutional, the attorney general and the
speaker of the house of representatives and the
president of the senate shall be served with a copy
of the pleading, motion or document containing the
28A
allegation at the same time the other parties in the
action are served and shall be entitled to be heard.
B. If a pleading, motion or document containing
the allegation is served on the attorney general
and the speaker of the house of representatives
and the president of the senate pursuant to
subsection
A,
a
notice
of
claim
of
unconstitutionality shall be attached to the
pleading, motion or document …
C. If the attorney general or the speaker of the
house of representatives and the president of the
senate are not served in a timely manner with
notice pursuant to subsection A, on motion by the
attorney general, the speaker of the house of
representatives or the president of the senate the
court
shall
vacate
any
finding
of
unconstitutionality and shall give the attorney
general, the speaker of the house of
representatives or the president of the senate a
reasonable opportunity to prepare and be heard.
D. This section shall not be construed to compel
the attorney general, the speaker of the house of
representatives or the president of the senate to
intervene as a party in any proceeding or to permit
them to be named as defendants in a proceeding.
The attorney general, the speaker of the house of
representatives or the president of the senate, in
the party’s discretion, may intervene as a party,
may file briefs in the matter or may choose not to
participate in a proceeding that is subject to the
notice requirements of this section.
29A
ARIZ. REV. STAT. § 15-120.02
Interscholastic
and
intramural
athletics;
designation of teams; biological sex; cause of
action; definition
A. Each interscholastic or intramural athletic
team or sport that is sponsored by a public school
or a private school whose students or teams
compete against a public school shall be expressly
designated as one of the following based on the
biological sex of the students who participate on
the team or in the sport:
1. “Males”, “men” or “boys”.
2. “Females”, “women” or “girls”.
3. “Coed” or “mixed”.
B. Athletic teams or sports designated for
“females”, “women” or “girls” may not be open to
students of the male sex.
C. This section does not restrict the eligibility of
any student to participate in any interscholastic or
intramural athletic team or sport designated as
being for “males”, “men” or “boys” or designated as
“coed” or “mixed”.
D. A government entity, any licensing or
accrediting
organization
or
any
athletic
association or organization may not entertain a
complaint, open an investigation or take any other
adverse action against a school for maintaining
separate interscholastic or intramural athletic
teams or sports for students of the female sex.
E. Any student who is deprived of an athletic
opportunity or suffers any direct or indirect harm
as a result of a school knowingly violating this
section has a private cause of action for injunctive
30A
relief, damages and any other relief available
under law against the school.
F. Any student who is subject to retaliation or
another adverse action by a school or an athletic
association or organization as a result of reporting
a violation of this section to an employee or
representative of the school or the athletic
association or organization, or to any state or
federal agency with oversight of schools in this
state, has a private cause of action for injunctive
relief, damages and any other relief available
under law against the school or the athletic
association or organization.
G. Any school that suffers any direct or indirect
harm as a result of a violation of this section has a
private cause of action for injunctive relief,
damages and any other relief available under law
against the government entity, the licensing or
accrediting organization or the athletic association
or organization.
H. All civil actions must be initiated within two
years after the alleged violation of this section
occurred. A person or organization that prevails on
a claim brought pursuant to this section is entitled
to monetary damages, including damages for any
psychological, emotional or physical harm
suffered, reasonable attorney fees and costs and
any other appropriate relief.
I. For the purposes of this section, “school” means
either:
1. A school that provides instruction in any
combination of kindergarten programs or
grades one through twelve.
2. An institution of higher education.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.