Opposition Brief — Ryan v. Powell

No. oosss4(?) is

ie JUL 13 2001

Supreme Court of the AnitednStategex

~

MATTHEW J. RYAN, ET AL.,

Petitioners,

Vv.

DAVID POWELL, ET AL.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Third Circuit

BRIEF IN OPPOSITION

Patricia A. Brannan William T. Coleman, Jr.*

HOGAN & HARTSON L.L.P. Stephen J. Harburg

555 13™ Street, N.W. O’MELVENY & MYERS LLP

Washington, D.C. 20004 555 13™ Street, N.W.

(202) 637-8686 Washington, D.C. 20004

(202) 383-5325

James J. Rodgers Michael Churchill

Lynn R. Rauch Thomas K. Gilhool

DILWORTH PAXSON LLP PUBLIC INTERESTLAW_ .-

3200 Mellon Bank Center CENTER OF PHILADELPHIA

1735 Market Street 125 South Ninth Street

Philadelphia, PA 19103 Philadelphia, PA 19107

(215) 575-7000 (215) 627-7100

Kenneth L. Trujillo

Richard Feder

Jane Lovitch Istvan

CITY OF PHILADELPHIA

LAW DEPARTMENT

1515 Arch Street, 17" Floor

Philadelphia, PA 19102

(215) 683-5013

*Counsel of Record Counsel for Respondents

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1

RULE 29.6 STATEMENT

All Respondents are individuals, governmental bodies, or

membership organizations. None of the incorporated membership

organizations has a parent company or nonwholly owned

subsidiary corporation.

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TABLE OF CONTENTS

Page

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et) | 2

A. Procedural Background ................0:csessecesseeeees 2

B. Facts Underlying Discovery Requests............ -

REASONS FOR DENYING THE WRIT...........:cc0:ceeeee0es 5

I. THE THIRD CIRCUIT’S DECISION IS

CONSISTENT WITH THE ACCEPTED

RULE THAT DISCOVERY ORDERS ARE

NOT APPEALABLE UNDER ’~ THE

COLLATERAL ORDER DOCTRINE................. 6

A. There Is Nothing About The Third

Circuit’s Refusal To Involve Itself In

Discovery In An Ongoing Case That

Warrants This Court’s Review ...........:.csceee 6

B. There Is No Applicable Privilege From

Discovery For These State Legislators............ 12

II. THE “DANGER” PETITIONERS FORETELL

IS ILLUSORY AND FAILS TO JUSTIFY

THE EXERCISE BY THIS COURT OF ITS

DISCRETIONARY REVIEW .............:ccessesseeseeeees 16

A. The Third Circuit’s Ruling Will Not Have

The Far Reaching Impact Petitioners

oo aiachiaeneniaioene 16

B. Petitioners Created The Situation They

cc uieioteneumeenens 17

C. Petitioners’ Anti-Waiver Argument Is Not

SN I i ich ah ineseertcneniniledenovemeraianeancsance 18

Ee IIS ccicnnsisserenevnscsctinecesceecsscrecasasenapeccnscsescceseocesens 19

ill

TABLE OF AUTHORITIES

Page

CASES:

Agromayor v. Colberg, 738 F.2d 55 (1" Cir. 1984)........ 11

A-Mark Auction Galleries, Inc. vv. American

Numismatic Ass'n, 233 F.3d 895 (5" Cir. 2000) ......... 4

Anthony v. Baker, 955 F.2d 1395 (10™ Cir. 1992) .......... 11

Auriemma v. Montgomery, 860 F.3d 273 (7 Cir.

Para ish ncticiaicenasekcasedepakiphdeiiddicdlchameaataiclealnstedienaesioatbanensaasaiess 11

Bacher v. Allstate Ins. Co., 211 F.3d 52 (3™ Cir.

SAID vic vinssinsiciniiieaiieerishisalinsiciinipainiiatinntitiaiieaiaisoasanididicmamaniin passim

Bines v. Kulaylat, 215 F.3d 381 (3™ Cir. 2000) ............-. 11

Bogan v. Scott-Harris, 523 U.S. 44 (1998).......cccssseeee 13

Boughton v. Cotter, 10 F.3d 746 (10" Cir. 1993)........... 9

Brown v. Griesenauer, 970 F.2d 431 (8" Cir. 1992)....... 11

Brown & Williamson Tobacco Corp. v. Williams, 62

Fe as MNEs BR dcintctharinantninipenibiasivietbabesenss 14

Burtnick v. McLean, 76 F.3d 611 (4 Cir. 1996) ............ 15

Campaign for Fiscal Equity v. New York, 719

N.Y.S.24 475 (N.Y. Sup. Ct. 2001)........scccoscosessesscsees 16

Chateaubriand v. Gaspard, 97 F.3d 1218 (9" Cir.

SST icisstsisAiclisatiacciahibdecsteadilpbicdaiabidbebinsiaindibnananiadaiasdaniasinaiion 11

Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541

Ea sscriccabsscnsisislsesicrelasieleemanicinieaniiaaadiaiibaaabdidaaniisanihasiiances 7

Coleman v. American Red Cross, 979 F.2d 1135 (6"

Eps SID cssiibiccncsidanpnsisconsecsestnsbescennanelideteinlapetmelabbaaiiianini 9

Cunningham vy. Hamilton County, 527 U.S. 198

Sere iiaiasissaesinnn tesdionsisiaipaoneabhcanitiadiolaaahidahaibaiaancicataieniis 7,8

Dellwood Farms, Inc. v. Cargill, Inc., 128 F.3d 1122

eee SR 9

Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S.

ite ieee

iV

TABLE OF AUTHORITIES -- Continued

Page

Dombrowski v. Eastland, 387 U.S. 82 (1967) ..........0006 14

Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491

Fie ie cniscciihuinstianasciiindshciadidieisdindidamtaaibinnnddaiimnbs Kilda. 14

Ellis v. Coffee County Bd. of Registrars, 981 F.2d

PCRS Gs Se iaiiniactcciemsebitstnianaancccae 11

F.D.I.C. v. Ogden Corp., 202 F.3d 454 (1* Cir. 2000)... 9

Front Royal & Warren County Indus. Park v. Town

of Front Royal, 865 F.2d 77 (4 Cir. 1989) ......c.sesses0-- 11

Goldberg v. Town of Rocky Hill, 973 F.2d 70 (2™ Cir.

PUPUNIAT icisnistsisninninabidssiplasadditataiade chasiamiidenaroiaglaiaiaa dls, 11

Government of Virgin Islands v. Lee, 775 F.2d 514

CP TO ac 14, 15

Gravel v. United States, 408 U.S. 606 (1972)...........000 15

Helstoski v. Meanor, 442 U.S. 500 (1979)..........cccccee0ee 11

In re Grand Jury, 821 F.2d 946 3" Cir. 1987), cert.

denied, 484 U.S. 1025 (1988) 00... ceeesescssssscesesesenees 15

In re Kessler, 109 F.3d 1015 (D.C. Cir. 1996) ...............

In re United States v. Peck, 680 F.2d 9 (2™ Cir. 1982)... 9

Iowa Beef Processors, Inc. v. Bagley, 601 F.2d 949

Oe i iiniciiccs ncnticoencni ee 9

Lauro Lines, S.L.R. v. Chasser, 490 U.S. 495 (1989)..... 11

Liberty Mutual Ins. Co. v. Louisiana Dept. of Ins., 62

PIT Ch CO vs ecctionas 11

Lunderstadt v. Colafella, 885 F.2d 66 (3 Cir. 1989)..... 14

Marchetti v. Bitterolf, 968 F.2d 963 (9 Cir. 1992)......... 9

MINPECO, S.A. v. Conticommodity Services, Inc.,

BAG F 2G G56 GOL. Cay, FIG B) iio cicccsnccacncesccccsncnsncogeeees 14

Mitchell v. Forsyth, 472 U.S. 511 (1985) .......ccsescceeeeee 11

Nixon v. Fitzgerald, 457 U.S. 731 (1982)...........scceceeees 11

Powell v. Ridge, 247 F.3d 520 (3™ Cir. 2001) «00... passim

Vv

TABLE OF AUTHORITIES -- Continued

Page

Powell v. Ridge, 189 F.3d 387 (3™ Cir. 1999) ..........00000+ 3,4

Prince v. Hicks, 198 F.3d 607 (6" Cir. 1999) ..........s000 11

Quantum Corp. v. Tandon Corp., 940 F.2d 642 (Fed.

Che. SGD iccssaccnssntsstsasinnntnsiiecnicisnitilienetabiaaitiiamagiinatinhesns 9

Ridge v. Powell, 528 U.S. 1046 (1999).........cccccccseeseeseees 3

Ryan v. Powell, 528 U.S. 1046 (1999)........cccccsesseseeeeees 3

Shapp v. Sloan, 391 A.2d 595 (Pa. 1978) .......c0secseseseeees 5

Simmons v. City of Racine, PFC (Police and Fire

Comm'n), 37 F.3d 325 (7 Cir. 1994) ......cscsssssssseseesees 4

Supreme Court of Virginia v. Consumers Union of the

fee | ee 13

Tenney v. Brandhove, 341 U.S. 367 (1951) ........cc.sceeseees 13

United States v. Gillock, 445 U.S. 360 (1980)............04+ 15

United States v. Helstoski, 442 U.S. 477 (1979).........04+ 15

United States v. Ryan, 402 U.S. 530 (1971) .......ccccccseeeee 8

Van Cauwenberghe v. Biard, 486 U.S. 517 (1988) ........ 11

CONSTITUTIONAL PROVISIONS:

Speech or Debate Clause of the Constitution of the

I IR, FA, Fi, Bi vse rscccnseteentsitrinsenpenicemnnnnns 14, 15

STATUTES:

GE UL. BOR cccscsntecscncssnssttnicaensnisiebicniaaliesntimideninniitid 2, 13

42 U.B.C. GRABOCE te DOG B IT wccessccsccesecntnsvenscesnsscctninsces 2,3

RULES AND REGULATIONS:

Supprtemnn Camtt BaIEO BD .cceccsecnssenectnscernsiersienrenenemntenpennens

SE CIR. GIG GR ccectessininscitnnititaiattiniiainpiinasin

Federal Rule of Civil Procedure 12................ccccccceeeeeeeees

IN THE

Supreme Court of the Anited States

No. 00-1854

MATTHEW J. RYAN, ETAL.,

Petitioners,

Vv.

DAVID POWELL, ET AL.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Third Circuit

BRIEF IN OPPOSITION

INTRODUCTION

Petitioners -- four leaders of the Pennsylvania General

Assembly (“Petitioners” or “Legislative Leaders”) who

voluntarily intervened as defendants and who have

participated fully as parties to this action -- seek review of

the judgment of the Court of Appeals for the Third Circuit

dismissing their interlocutory appeal from a discovery order.

Petitioners cannot demonstrate that the Third Circuit’s

application of the collateral order doctrine, in finding the

District Court’s order compelling discovery unreviewable,

conflicts with prior decisions of this Court or of other courts

of appeals. Petitioners instead argue the merits of their self-

styled discovery “privilege” based on legislative immunity

from liability. In asking this Court to review the dismissal of

2

their appeal from a discovery order, Petitioners effectively

seek an expansive ruling which would insulate state

legislators from discovery even in suits into which they

voluntarily intervene and show every intention of actively

participating as defendants.

The cavalier argument of these Petitioners -- that they may

articulate their views when it suits their purpose, but invoke a

discovery shield when it does not -- presents no compelling

issue for this Court’s review, will have no national

significance and is not worthy of this Court’s consideration.

Petitioners’ bid to have the courts of appeals resolve their

interlocutory discovery disputes must be declined.

COUNTERSTATEMENT

A. Procedural Background

Plaintiffs filed the underlying action in March 1998,

asserting that Pennsylvania’s method of funding public

education had racially discriminatory effects, known in

advance, in Philadelphia and other predominantly minority

school districts in violation of the regulations adopted by the

United States Department of Education implementing Title

VI of the Civil Rights Act of 1964, 42 U.S.C. §§2000d to

2000d-7, see 34 C.F.R. §100.3(b), and under 42 U.S.C.

§1983. The action was brought by students and parents,

organizations, and School District of Philadelphia (“School

District”) and City of Philadelphia officials initially only

against the Governor, Secretary of Education, State Treasurer

and Chair of the State Board of Education of Pennsylvania

(“Executive Branch Defendants’), and seeks only declaratory

and injunctive relief.

In May 1998, Legislative Leaders voluntarily moved to

intervene, in order, as they admit, to “give voice to the

[General Assembly’s] concerns and arguments” and to

“articulate to the Court the umique perspective of the

legislative branch of the Pennsylvania government.” Petition

3

for a Writ of Certiorari (“Petition”) at 5-6, 23. Shortly after

their Motion to Intervene was granted, Petitioners filed a

Motion for Judgment on the Pleadings or to Dismiss the

Complaint, and later filed a Supplemental Motion for

Judgment on the Pleadings, both pursuant to Rule 12 of the

Federal Rules of Civil Procedure. None of their Rule 12

arguments was premised on legislative immunity.

The District Court granted the Rule 12 motions, dismissing

plaintiffs’ Complaint on November 18, 1998. On appeal, the

Third Circuit reversed and remanded. Powell v. Ridge, 189

F.3d 387 (3™ Cir. 1999).! In reinstating the Complaint, the

Third Circuit rejected various arguments offered in support

of the Rule 12 motions on the ground that such points could

be tested only upon a developed record, following discovery.

See id. at 394, 396. The Court specifically contemplated that

plaintiffs would seek discovery relevant to their allegations

that defendants “had knowledge of such [racially disparate]

effects each time prior to taking action which achieved these

results.” App. 49a-50a; see Powell, 189 F.3d at 393 nl

(anticipating that with discovery the complaint contains

allegations which would permit plaintiffs to make a case

directly under 42 U.S.C. §2000d).

Accordingly, plaintiffs pursued discovery, including

requests for production of documents and interrogatories

served upon the four intervenors, by name, seeking basic

information relating to formulas for funding public education

and changes therein over time, the distribution of federal

funds for public education in Pennsylvania, knowledge of the

racially discriminatory formulas prior to taking action, and

harm to students by virtue of discriminatory funding. (App.

| Petitioners, who had briefed and argued in the Third Circuit,

filed a petition for certiorari to this Court, independently of a

petition filed by the Executive Branch defendants. This Court

denied both petitions. Ryan v. Powell, 528 U.S. 1046 (1999);

Ridge v. Powell, 528 U.S. 1046 (1999).

4

78a-136a.) Petitioners’ initial response was a complete

refusal to produce any documents whatsoever and a series of

objections on various grounds that provided no information

regarding the extent of responsive documents in their

possession or under their control. Jd. After communications

among counsel, Petitioners searched their files to determine

what documents they had that were responsive to the

document requests. (App. 145a-148a.) They ultimately

produced only 56 pages of documents, claiming that the

remainder of the responsive documents were protected from

discovery based upon a blanket “legislative privilege.”

Unable to resolve the discovery dispute as to the

purportedly privileged information, plaintiffs filed a Motion

to Compel. (App. 137a-144a.) The District Court granted

the Motion, rejecting Petitioners’ arguments concerning their

purported legislative privilege and noting that the Third

Circuit had “stressed the importance of Plaintiffs’ ability to

conduct discovery. See Powell v. Ridge, 189 F.3d 387, 396-

97, 399, 400 (3d Cir. 1999).” (App. 149a.)

Legislative Leaders appealed to the Third Circuit, which

entertained letter briefs on the issue of appealability of the

District Court’s discovery order as well as merits briefs and

oral argument. On April 6, 2001, the Third Circuit dismissed

the appeal on the basis that the District Court’s discovery

order was not immediately appealable under the collateral

order doctrine. App. 1a-22a, Powell v. Ridge, 247 F.3d 520

(3° Cir. 2001). Legislative Leaders thereupon filed their

Petition seeking review by this Court.

B._ Facts Underlying Discovery Requests

The School District educates children in_ grades

kindergarten-12, with a student body of nearly 80% African-

American, Hispanic, Asian and other minorities. (App. 35a.)

Non-white enrollment in public schools in the rest of

Pennsylvania as a whole is only approximately 11%. Jd.

The minority students in Philadelphia public schools

5

comprise nearly 50% of the total minority public school

population in Pennsylvania. Jd.

The Commonwealth funds public education through an

annually changing statutory system that depends upon a

combination of locally generated revenues authorized by the

Commonwealth, state funds and certain federal funds. (App.

45a.) Federal K-12 education funds are appropriated to

school districts through Commonwealth legislative and

gubernatorial actions. See Shapp v. Sloan, 391 A.2d 595 (Pa.

1978).

Plaintiffs allege, and have sought discovery to prove, that

the Commonwealth’s criteria and methods of funding public

education are racially discriminatory with regard to

Philadelphia and other predominantly minority school

districts. Funding per child is less in the predominantly

minority School District than per child in those otherwise

similarly situated districts that educate predominantly white

students, and racial disparities in per child spending also have

increased over time. (App. 45a-50a.) These funding

decisions were made each time with knowledge in advance

that they were discriminatory and had adversely harmed

minority children. (App. 40a-50a.)

REASONS FOR DENYING THE WRIT

Petitioners present no “compelling reasons” for this Court

to grant this Petition for a Writ of Certiorari. Supreme Court

Rule 10. The ruling below presents a commonplace decision

by a court of appeals not to involve itself in discovery

disputes in an ongoing district court litigation. Contrary to

Petitioners’ assertion, this case presents neither a conflict

with a decision of this Court or other courts of appeals nor an

unsettled question of federal law concerning the well-

established principle that appeals from discovery orders are

not appealable as collateral orders. Straining to create the

illusion of a circuit split, Petitioners treat the issue as one

regarding the availability of immunity (rather than

6

discovery), and in the process base their argument on a

fundamental misconception of both the nature of the order

being appealed as well as the nature and scope of legislative

immunity.

I. THE THIRD CIRCUIT’S DECISION IS

CONSISTENT WITH THE ACCEPTED RULE

THAT DISCOVERY ORDERS ARE NOT

APPEALABLE UNDER THE COLLATERAL

ORDER DOCTRINE

A. There Is Nothing About the Third Circuit’s

Refusal To Involve Itself In Discovery In An

Ongoing Case That Warrants This Court’s

Review

Petitioners contend that this Court should grant certiorari to

hear this unremarkable discovery dispute because the Third

Circuit’s decision allegedly conflicts “with decisions of this

Court and all other circuits, including the Third Circuit.”

Petition at 19. Petitioners are incorrect, because the Third

Circuit’s decision is entirely consistent with the universally

accepted rule that discovery orders are not appealable under

the collateral order doctrine. The alleged “conflict” is

Petitioners’ own creation, which ignores the actual basis of

the Third Circuit’s decision.

The issue decided by the Court of Appeals was

straightforward: whether a district court’s discovery order

that compels a party to produce documents, and rejects the

party’s inventive claim of privilege from discovery, is

immediately appealable as a collateral order. The Third

Circuit held that “the collateral order doctrine does not reach

appeals of discovery orders ‘beyond the narrow categories of

trade secrets and traditionally recognized privileges, such as

attorney-client and work product.’” App. 6a, Powell, 247

F.3d at 524 (citations omitted; emphasis in original). The

Third Circuit explained that “[u]nderlying these narrow

exceptions to the general rule of non appealability is a

concern that where confidential information is sought, there

7

is no way, absent immediate appeal of the order requiring

disclosure, to ‘unscramble the egg scrambled by the

disclosure.” App. 7a, Powell, 247 F.3d at 524 (citation

omitted). No such confidentiality concerns are present here.

In fact, Petitioners “explicitly disavow any such

[confidentiality] interest.” App. 6a-7a, Powell, 247 F.3d at

524.

Because the purported privilege invoked by Petitioners “is

not even suggested by any reasonable reading of applicable

case law,” let alone “traditionally recognized,” the Third

Circuit dismissed Petitioners’ interlocutory appeal for lack of

jurisdiction. App. 1la-12a, Powell, 247 F.3d at 526-27. In

reaching its conclusion, the Third Circuit relied heavily upon

this Court’s opinions in Cunningham v. Hamilton County,

527 U.S. 198 (1999), and Digital Equip. Corp. v. Desktop

Direct, Inc., 511 U.S. 863 (1994), as well as on its own prior

decision in Bacher v. Allstate Ins. Co., 211 F.3d 52 (3" Cir.

2000). These cases apply this Court’s decisions concerning

the collateral order doctrine, which are based in the seminal

case of Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541

(1949).

In Digital Equipment, for instance, this Court held that an

order vacating a dismissal predicated on the parties’

settlement agreement did not involve a potential loss of

sufficiently “important” rights, and therefore did not satisfy

an essential component of the Cohen test: that the decision

must be effectively unreviewable upon appeal from a final

judgment. Digital Equip., 511 U.S. at 865. In Digital

Equipment, Justice Souter, writing for a unanimous Court,

observed that many types of interlocutory orders must remain

unappealable despite the fact that review of a final judgment

may not provide a perfect remedy to the allegedly aggrieved

party:

[E]rroneous evidentiary rulings, grants or denials of

attorney disqualification, and restriction of the rights of

8

intervening parties, may burden litigants in ways that are

only imperfectly reparable by appellate reversal of a final

district court judgment; and other errors, real enough, will

not seem serious enough to warrant reversal at all, when

reviewed after a long trial on the merits. In still other

cases, an erroneous district court decision will, as a

practical matter, sound the “death knell” for many

plaintiffs’ claims that might have gone forward if prompt

error correction had been an option. But if immediate

appellate review were available every such time,

Congress's final decision rule would end up a pretty puny

one, and so the mere identification of some interest that

would be “irretrievably lost” has never sufficed to meet

the third Cohen requirement.

Id. at 872 (citations omitted; emphasis added). See also

Cunningham, 527 U.S. at 202-10 (order imposing sanctions

on party’s attorney for discovery abuse not immediately

appealable as collateral order); * United States v. Ryan, 402

U.S. 530, 532 (1971) (subpoenaed party may not appeal

denial of motion to quash subpoena, but must either obey or

refuse to do so and appeal if subsequently cited for

contempt).

In its decision below, the Third Circuit also stressed that its

dismissal of Petitioners’ appeal was consistent with “the

approach taken by the other courts of appeals.” App. 6a,

Powell, 247 F.3d at 524. Indeed, contrary to Petitioners’

claim here that the Third Circuit stands alone, courts of

appeals repeatedly have held that the collateral order doctrine

does not apply to permit an immediate appeal from orders

2 In Bacher, the Third Circuit found Cunningham instructive

because “the Court’s statement in Cunningham that we should not

apply the collateral order doctrine on a ‘case-by-case’ basis

indicates that we should not attempt to carve out case-by-case

exceptions to the general rule that discovery orders are not

immediately appealable.” 211 F.3d at 57.

9

compelling the production of documents, or from similar

discovery orders. See F.D.I.C. v. Ogden Corp., 202 F.3d

454, 458 & n. 2 (1" Cir. 2000); In re United States v. Peck,

680 F.2d 9, 11 (2" Cir. 1982); A-Mark Auction Galleries,

Inc. v. American Numismatic Ass'n, 233 F.3d 895, 899 6"

Cir. 2000); Coleman v. American Red Cross, 979 F.2d £335,

1138 (6" Cir. 1992); Simmons v. City of Racine, PFC (Police

and Fire Comm'n), 37 F.3d 325, 327 (7" Cir. 1994); Iowa

Beef Processors, Inc. v. Bagley, 601 F.2d 949, 953 (8" Cir.

1979); Marchetti v. Bitterolf, 968 F.2d 963, 967 (9" Cir.

1992); Boughton v. Cotter, 10 F.3d 746, 749-50 (10" Cir.

1993); In re Kessler, 109 F.3d 1015, 1016 (D.C. Cir. 1996);

Quantum Corp. v. Tandon Corp., 940 F.2d 642, 644 (Fed.

Cir. 1991).

The rule that discovery orders are not immediately

appealable as collateral orders “is true even of discovery

orders issued over an objection that the information at issue

is privileged,” Simmons, supra, 37 F.3d at 327 (collecting

cases), and even where the privilege asserted is that of

governmental immunity. Peck, supra, 680 F.2d at 9 (refusing

to make exception to general rule in case where United States

Attorney General objected to discovery request under claim

of executive privilege). Indeed, if there is any “conflict”

between the Third Circuit and its sister courts of appeals, it is

that the Third Circuit is generally more willing to consider

interlocutory appeals of discovery orders, since other courts

of appeals do not apply the collateral order doctrine to permit

appeals of discovery orders where trade secrets or

“traditionally recognized” privileges are involved. See

Bacher, 211 F.3d at 54; Dellwood Farms, Inc. v. Cargill,

Inc., 128 F.3d 1122, 1125 (7™ Cir. 1997) (“[A] discovery

order is not deemed collateral even if it is an order denying a

claim of privilege. We so held emphatically in [two prior

cases] and this is the view of other circuits as well, with the

partial exception of the Third Circuit”) (citations omitted).

10

Having no rebuttal for the well-settled tenet that discovery

orders are not immediately appealable as collateral orders,

Petitioners do not attempt to dispute it. Instead, they ignore

the basis for the Third Circuit’s decision as well as the

authorities the Court found persuasive, or relegate such

authorities to footnotes and string cites. The Third Circuit’s

decision is entirely consistent with the case law of this Court

and every court of appeals that has decided the issue. 3

Petitioners attempt to escape the mountain of adverse

precedent -- and conjure up a “conflict” of authority -- by

citing a series of inapposite decisions that deal with

governmental immunity as a defense, not to discovery, but to

liability.4 The cases relied upon by Petitioners do not

involve discovery orders. Rather, each case cited by

Petitioners concerns an attempt to escape potential liability

3 Petitioners also contend that the Third Circuit’s decision is

inconsistent with its own prior decisions, Petition at 19-22, which

surely is no basis for this Court to exercise its discretionary

jurisdiction. In advancing this argument, the Petition fails to

discuss Bacher, the case that the Third Circuit found to be

dispositive. Indeed, the Petition’s only reference to Bacher is

found in a string cite in footnote 11 (in which its holding is

misstated).

4 The Third Circuit carefully considered the protections

afforded to legislators by virtue of absolute legislative immunity

and recognized the appealability of orders denying such immunity

claims on the merits. See App. 7a, Powell, 247 F.3d at 524, citing

cases. While legislators under other circumstances may be entitled

to immunity, their invocation of immunity for the sole purpose of

insulating themselves from discovery; in a case which they

willingly joined, while otherwise remaining active litigants, is

hardly commonplace. “A proper invocation of legislative

immunity would typically call for the dismissal of a legislator from

a lawsuit.” App. 9a, Powell, 247 F.3d at 525. See also App. 10a,

Powell, 247 F.3d at 526 (dismissal is the “logical” and

“appropriate result where legislative immunity applies” and “best

furthers the underlying goals of the doctrine”).

11

under a claim of governmental immunity. See Mitchell v.

Forsyth, 472 U.S. 511 (1985) (former Attorney General

claimed absolute or qualified immunity from damages in

civil lawsuit); Nixon v. Fitzgerald, 457 U.S. 731 (1982)

(former President claimed absolute immunity in civil action

for money damages); Helstoski v. Meanor, 442 U.S. 500

(1979) (congressman claimed indictment violated Speech or

Debate Clause of United States Constitution). 5

Simply put, the decisions cited by Petitioners -- almost all

of which involve orders denying motions to dismiss or for

summary judgment -- have no relevance to the appealability

of the District Court’s discovery order in this case. As the

Court explained in Lauro Lines, S.L.R. v. Chasser, 490 U.S.

495 (1989): “after Mitchell, [t]he critical question ... is

whether ‘the essence’ of the claimed right is a right not to

stand trial.” Jd. at 500 (brackets and ellipses in original)

(quoting Van Cauwenberghe v. Biard, 486 U.S. 517, 524

5 Likewise, the cases cited in footnote 12 of the Petition all

involve the appealability of an order rejecting an immunity defense

on the merits. See Agromayor v. Colberg, 738 F.2d 55 (1" Cir.

1984) (order denying motion to dismiss); Goldberg v. Town of

Rocky Hill, 973 F.2d 70 (2™ Cir. 1992) (same); Bines v. Kulaylat,

215 F.3d 381 (3 Cir. 2000) (order denying summary judgment);

Front Royal & Warren County Indus. Park v. Town of Front

Royal, 865 F.2d 77 (4" Cir. 1989) (order striking absolute

immunity defense); Liberty Mutual Ins. Co. v. Louisiana Dept. of

Ins., 62 F.3d 115 (5" Cir. 1995) (order appealable where it

implicitly rejected defendant’s qualified immunity defense);

Prince v. Hicks, 198 F.3d 607 (6" Cir. 1999) (order denying

motion to dismiss); Auriemma v. Montgomery, 860 F.3d 273 (7

Cir. 1988) (same); Brown v. Griesenauer, 970 F.2d 431 (8" Cir.

1992) (same); Chateaubriand v. Gaspard, 97 F.3d 1218 (9™ Cir.

1996) (order denying motion for summary judgment); Anthony v.

Baker, 955 F.2d 1395 (10 Cir. 1992) (order denying motion to

dismiss and for partial summary judgment); Ellis v. Coffee County

Bd. of Registrars, 981 F.2d 1185 (11" Cir. 1993) (order denying

summary judgment).

“ee

12

(1988)). Here, Petitioners claim a right to participate actively

as parties in the trial and other aspects of the case, but only

when it serves their purposes to do so. The Third Circuit

properly rejected this argument, and distinguished many of

the cases cited by Petitioners:

Despite their understanding of legislative immunity’s

broad parameters, however, Legislative Leaders are not

seeking immunity from this suit which, it must be

remembered, they voluntarily joined. Nor are the

Legislative Leaders seeking any kind of wholesale

protection from the burden of defending themselves.

Instead, 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.... [T]he privilege they propose would

enable them to seek discovery, but not respond to it; take

depositions, but not be deposed; and testify at trial, but

not be cross-examined.

App. 8a, Powell, 247 F.3d at 525.

No authority recognizes a privilege that would permit state

officials voluntarily to participate in litigation under such

lopsided terms. The Third Circuit followed the standard

course followed by the federal courts in dismissing

Petitioners’ interlocutory appeal of a district court’s

discovery order.

B. There Is No Applicable Privilege From Discovery

For These State Legislators

While this Court need not even consider the existence, or

more precisely the nonexistence, of the “privilege”

Petitioners assert here, even if the Third Circuit’s majority

decision is construed as turning on the merits of Petitioners’

assertion of privilege, rather than on the appealability of a

ee ee

13

discovery order, there is no viable ground for recognizing

such a privilege, particularly in the context of this case.

Petitioners posit that this is a case of “great national

importance” that could have widespread consequences for

the “accomplishment of legislative duties.” Petition at 12.

Yet, they have failed to identify any other case in which a

governmental entity or official sought to intervene in

litigation while at the same time shielding itself from all

discovery. Instead, Petitioners wrongly equate the concepts

of immunity from discovery with immunity from liability

and rely on an inapposite line of cases from Tenney v.

Brandhove, 341 U.S. 367 (1951), through Bogan v. Scott-

Harris, 523 U.S. 44 (1998), which address legislative

immunity from liability, not from discovery.

In Tenney, this Court discussed and found applicable only

immunity from liability, not immunity from discovery. See

also Supreme Court of Virginia v. Consumers Union of the

U.S., 446 U.S. 719, 732 (1980) (“state legislators enjoy

common law immunity from liability for their legislative

acts”; not considering immunity from discovery) (italics

added). Tenney itself recognized the distinction between

legislators who are sued as defendants and those, like

Petitioners, who affirmatively involve themselves in court

proceedings. 341 U.S. at 378 (“[T]his is a case in which the

defendants are members of a legislature. Legislative

privilege in such a case deserves greater respect than where

an official acting on behalf of the legislature is sued or the

legislature seeks the affirmative aid of the courts to assert a

privilege.”) (emphasis added). Petitioners similarly stretch

Bogan beyond its actual meaning. Bogan does not hold that

legislators are immune from discovery in civil suits; Bogan is

devoid of discussion of discovery issues. Rather, the issue

there was whether immunity from liability under §1983

extends to local legislators. The Court’s analysis focused on

the reasons for immunity from liability for legislative activity

itself.

14

Petitioners also attempt to rely on cases providing

immunity from discovery to members of the federal Congress

pursuant to the Speech or Debate Clause in the Constitution

of the United States. Art. 1, §6. Speech or Debate Clause

protections, however, do not apply here, where a federal

court is applying a federal statute to state legislators. As the

Third Circuit commented in Lunderstadt v. Colafella, 885

F.2d 66, 73 (3 Cir. 1989), which involved state legislators,

“(t]he Speech or Debate Clause of the United States

Constitution is by its terms applicable only to members of the

United States Senate and House of Representatives.”

(Emphasis added.) Similarly, in Government of Virgin

Islands v. Lee, 775 F.2d 514, 519 (3 Cir. 1985), the Court

stated that the “Speech or Debate Clause of the United States

Constitution ... is the legislative immunity provision for our

national representatives.” (Emphasis added.) See also

authority relied upon by Petitioners: Eastland v. US.

Servicemen's Fund, 421 U.S. 491 (1975) (suit against United

States Senate subcommittee members regarding propriety of

subcommittee investigation and issuance of federal

subpoenas); Dombrowski v. Eastland, 387 U.S. 82 (1967)

(United States Senate subcommittee members sued);

MINPECO, S.A. v. Conticommodity Services, Inc., 844 F.2d

856, 857 (D.C. Cir. 1988) (“[t]his case presents questions of

congressional immunity under the Constitution’s Speech or

Debate Clause’’).

6 Any hint by Petitioners that the law of the Third Circuit -- in

declining to extend the full reach of the federal Speech or Debate

Clause to state legislators -- may be different than other circuits,

thus justifying a Writ in this case, is of no moment. For example,

Brown & Williamson Tobacco Corp. v. Williams, 62 F.3d 408, 420

(D.C. Cir. 1995), upon which Petitioners rely, explicitly

recognized that its decision “[was] limited to discussing Congress’

Speech or Debate Clause privilege.” Jd. at 423. The lone case

Petitioners cite suggesting (in the context of a decision

determining whether summary judgment was properly granted)

that legislative immunity provides a privilege from discovery for

15

Petitioners quote United States v. Helstoski, 442 U.S. 477,

491 (1979), for the separation of powers proposition that

“{ljegislative immunity is intended ‘to preserve the

constitutional structure of separate, coequal, and independent

branches of government.”” Petition at 14. They overlook,

however, that the separation of powers concerns

underpinning the Speech or Debate Clause for members of

Congress are not implicated in this case, since state officials

are not part of a coequal branch of the federal government.

See United States v. Gillock, 445 U.S. 360, 370 (1980)

(“under our federal structure, we do not have the struggles

for power between the federal and state systems such as

inspired the need for the Speech or Debate Clause as a

restraint on the Federal Executive to protect federal

legislators”); and In re Grand Jury, 821 F.2d 946, 954 (3

Cir. 1987), cert. denied, 484 U.S. 1025 (1988) (“The interest

in preventing intrusion, [Gillock] held, provides no support

for a privilege for state legislators in federal cases because

the Federal Government has supremacy over state

legislatures in areas where the Constitution grants it power to

act.... “federal interference in the state legislative process is

not on the same constitutional footing with the interference

of one branch of the Federal Government in the affairs of a

coequal branch’”’) (quoting Gillock, 445 U.S. at 370). See

also Virgin Islands, 775 F.2d at 520 (“the central role of such

immunity is ‘to prevent intimidation of legislators by the

Executive and accountability before a possibly hostile

judiciary’”’) (quoting Gravel v. United States, 408 U.S. 606,

617 (1972)) (emphasis added). No such concern applies

here.

state legislators states that this “privilege may be waived.” See

Burtnick v. McLean, 76 F.3d 611, 613 (4 Cir. 1996). See also

App. 8a, Powell, 247 F.3d at 525 (Burtnick is “in direct contrast to

this case,” since target sought “to extricate himself ... completely

from legal entanglements”).

16

Il. THE “DANGER” PETITIONERS FORETELL IS

ILLUSORY AND FAILS TO JUSTIFY THE

EXERCISE BY THIS COURT OF ITS

DISCRETIONARY REVIEW

A. The Third Circuit’s Ruling Will Not Have The Far

Reaching Impact Petitioners Contend

Petitioners claim that if the Third Circuit’s decision to

dismiss their appeal is allowed to stand, state legislators

nationwide -- as well as legislators in United States territories

-- will be subject to untold harm and disruption. This claim

ignores the nature and scope of the decision of which

Petitioners seek review. As the Third Circuit made clear

when it dismissed Petitioners’ appeal, it lacked jurisdiction

and therefore did not reach the merits. A decision that the

courts of appeals will not entertain a stream of discovery

disputes from four legislators 7 who voluntarily joined the

case can hardly be said to hamper the ability of all state and

territorial legislators to carry out their legislative activities. ®

7 The discovery at issue was directed only to the four

Legislative Leaders who voluntarily intervened in this action.

There is no issue presented concerning the other, more than 250,

Pennsylvania legislators.

8 Petitioners urge that allowing the courts of appeals not to

review discovery orders somehow will result in courts prescribing

educational funding formulas. Petition at 12. Their citation to

Campaign for Fiscal Equity v. New York, 719 N.Y.S.2d 475 (N.Y.

Sup. Ct. 2001), is entirely misplaced. That decision was on the

merits, after trial, and had nothing to do with discovery and

legislative privilege. Even if Campaign for Fiscal Equity were

somehow relevant to the issue here, Petitioners mischaracterize the

scope of the state court’s order in that case. The court did not

dictate the manner in which the educational funding formula -

which was determined to violate the New York Constitution as

well as Title VI regulations -- had to be revised. Rather, the Court

left it to the legislature “in the first instance, [to] take steps to

reform the current system.” 719 N.Y.S.2d at 549.

17

B. Petitioners Created The Situation They Face

Even if the sweeping privilege from discovery these four

state legislators seek in this federal statutory case were

arguably available, this would not be an appropriate case for

this Court to consider the application of such a privilege. In

this case, a handful of state legislators have voluntarily

intervened, participated fully, and then claimed that they are

completely insulated from providing any discovery on the

basis of some hybrid immunity born from their desire to

avoid the “distraction and burdens” of being embroiled in the

litigation process into which they invited themselves.

Petitioners “chose to participate.” Petition at 27.

Since intervening, Petitioners’ proactive approach has been

to involve themselves completely in every phase of litigation,

including serving discovery on plaintiffs. Petitioners’ own

conduct, therefore, is in stark contrast to legislators who have

been sued and have from the outset attempted to disentangle

themselves from litigation. See App. 8a-9a, Powell, 247 F.3d

at 525 (Petitioners “have failed to come up with even one

case which hints at the existence of the privilege they press.

Every case Petitioners cite to support their alleged privilege

features, in direct contrast to this case, a defendant or a target

of a subpoena seeking to extricate himself or herself

completely from various legal entanglements”). As the Third

Circuit observed from Petitioners’ briefs and oral argument:

Unlike the reluctant participants in the cases upon which

they rely, the Legislative Leaders voluntarily installed

themselves as defendants. And, unlike the reluctant

participants in those cases, the Leaders wish to remain as

defendants and participate as long as this case is around;

at no time, we note, have they invoked legislative

immunity as a basis for any of their various motions to

dismiss. This is simply not a case of legislators caught

up in litigation in which they do not wish to be involved.

Rather, these are self-made defendants who seek to turn

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18

what has heretofore been the shield of legislative

immunity into a sword.

App. 9a, Powell, 247 F.3d at 525. Petitioners wish to be

heard (Petition at 5-6, 23; and App. 3a, Powell, 247 F.3d at

522 [Legislative Leaders seek to “give voice” and “articulate

... the[ir] unique perspective”’]) on their terms, but refuse to

disclose in discovery what they will say, and have said, on

the issues raised in this case. Their unprecedented effort

should not be aided by the Court.

C. Petitioners’ Anti-Waiver Argument Is Not Before

The Court

Petitioners’ claim that the Third Circuit construed their

intervention as a waiver of some privilege is unavailing.

Petition at 22-23 and n. 13. The Third Circuit did “not

decide ... whether the very act of intervening has waived the

privilege.” App. lla, Powell, 247 F.3d at 527 n. 4 (emphasis

added). A concurring opinion expressed a view on the

subject of waiver, but that was not part of the majority’s

holding. See App. 20a-21a, Powell, 247 F.3d at 531 (Roth, J.

concurring) (rejecting Petitioners’ suggestion that by

“intervening [they] did not waive their privilege because any

such waiver was not sufficiently explicit,” remarking that “I

cannot conceive ... of a more explicit waiver of immunity

than willingly submitting oneself to the jurisdiction of a

federal district court”). In any event, contrary to Petitioners’

representation that they “explicitly reserved the right to assert

the privilege at issue here” when they intervened (Petition at

6), at that time the “then-proposed intervenors referred to

immunity only in passing when they stated, in a footnote in

their brief, that they do not waive any ‘speech or debate

immunity’ they may have.” App. 4a n. 1, Powell, 247 F.3d

at 522-23 n. 1. Petitioners’ intervention papers were devoid

of any reference to any legislative privilege against

discovery.

19

CONCLUSION

For all of the foregoing reasons, the Petition for a Writ of

Certiorari should be denied.

Respectfully submitted,

Patricia A. Brannan William T. Coleman, Jr.*

HOGAN & HARTSON L.L.P. Stephen J. Harburg

555 13™ Street, N.W. O’MELVENY & MYERS LLP

Washington, D.C. 20004 555 13" Street, N.W.

(202) 637-8686 Washington, D.C. 20004

(202) 383-5325

James J. Rodgers

Lynn R. Rauch

DILWORTH PAXSON LLP

3200 Mellon Bank Center

1735 Market Street

Philadelphia, PA 19103

(215) 575-7000

Counsel for the President of the Board of Education and the

Board of Education of the School District of Philadelphia;

the Superintendent of the School District of Philadelphia and

the School District of Philadelphia; and Gregory and

Catherine Luzak, Shelean Parks, Yvette Bland and Fu-Zhen

Xie

Michael Churchill

Thomas K. Gilhool

PUBLIC INTEREST LAW CENTER OF PHILADELPHIA

125 South Ninth Street

Philadelphia, PA 19107

(215) 627-7100 ¢

Counsel for David Powell, Patrice Everage, Julia A. Davis,

Geraldine Newton, Maria M. Rivera, Mary E. Miller, the

Black Clergy of Philadelphia and Vicinity, Philadelphia

Branch NAACP, ASPIRA, Inc. of Pennsylvania, Parents

Union for Public Schools, Citizens Committee on Public

Education in Philadelphia, and Parents United for Better

Public Schools

20

Kenneth I. Trujillo, City Solicitor

Richard Feder

Jane Lovitch Istvan

CITY OF PHILADELPHIA

LAW DEPARTMENT

1515 Arch Street, 17th Floor

Philadelphia, PA 19102

(215) 683-5013

Counsel for the Mayor of Philadelphia and the City of

Philadelphia

* Counsel of Record

Dated: July 13, 2001