# Opposition Brief — Ryan v. Powell

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1939%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2001
- **Citation:** 534 U.S. 823

## Text

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

nV vy

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.

~
~

\

i

TABLE OF CONTENTS
Page
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ITT TTI coals calinssieincesdeseneneenanbeicestenonahsnnescoseseosse |
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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1939%3A3. Public record. Not legal advice.