Opinion
Index No. 611872/2023
06-07-2024
Hazel Coads; STEPHANIE M. CHASE; MARVIN AMAZAN, et al., Plaintiffs, v. Nassau County; the NASSAU COUNTY LEGISLATURE; et al., Defendants. NEW YORK COMMUNITIES FOR CHANGE, MARIA JORDAN AWALOM, et al., Plaintiffs, v. COUNTY OF NASSAU, THE NASSAU COUNTY LEGISLATURE, et al., Defendants.
Plaintiffs: Mejias Milgrim Alvarado & Lindo, P.C. Defendants Nassau County and Nassau County Legislature: Misha Tseytlin, Esq. Bennet J Moskowitz, Esq. Troutman Pepper Hamilton Sanders LLP Defendants Nassau County Board of Elections and Commissioner Joseph Kearny: Matthew M. Rozea, Esq. Office of the County Attorney Defendant Board of Elections Commissioner James Scheuerman: Ryan E. Cronin, Esq. New York Communities for Change, et al. v County of Nassau, et al. (602316/2024): Plaintiffs: Perry M. Grossman, Esq. Terry T. Ding, Esq. New York Civil Liberties Union Evan Glassman, Esq. STEPTOE LLP Frederick Brewington, Esq. Davide J. Kahne, Esq. Law Offices of Frederick K. Brewington Adriel I. Cepeda, Esq. American Civil Liberties Union Cesar Z. Ruiz, Esq. LATINOJUSTICE PRLDEF Ronak Dinesh Patel, Esq. Jerry G. Vattamala, Esq. Asian American Legal Defense & Education Fund Defendants Nassau County, Nassau County Legislature, County Executive Bruce Blakeman, Michael C. Pulitzer, and Howard Kopel: Misha Tseytlin, Esq. Bennet J Moskowitz, Esq. Troutman Pepper Hamilton Sanders LLP Defendants Nassau County Board of Elections and Commissioner Joseph Kearny: Matthew M. Rozea, Esq. Office of the County Attorney Defendant Board of Elections Commissioner James Scheuerman: Ryan E. Cronin, Esq. Non-Parties Francis X. Moroney and Richard Nicolello: Sophia Nicoletta Dauria, Esq. Troutman Pepper Hamilton Sanders LLP
Plaintiffs:
Mejias Milgrim Alvarado & Lindo, P.C.
Defendants Nassau County and Nassau County Legislature:
Misha Tseytlin, Esq.
Bennet J Moskowitz, Esq.
Troutman Pepper Hamilton Sanders LLP
Defendants Nassau County Board of Elections and Commissioner Joseph Kearny:
Matthew M. Rozea, Esq.
Office of the County Attorney
Defendant Board of Elections Commissioner James Scheuerman:
Ryan E. Cronin, Esq.
New York Communities for Change, et al. v County of Nassau, et al. (602316/2024):
Plaintiffs:
Perry M. Grossman, Esq.
Terry T. Ding, Esq.
New York Civil Liberties Union
Evan Glassman, Esq.
STEPTOE LLP
Frederick Brewington, Esq.
Davide J. Kahne, Esq.
Law Offices of Frederick K. Brewington
Adriel I. Cepeda, Esq.
American Civil Liberties Union
Cesar Z. Ruiz, Esq.
LATINOJUSTICE PRLDEF
Ronak Dinesh Patel, Esq.
Jerry G. Vattamala, Esq.
Asian American Legal Defense & Education Fund
Defendants Nassau County, Nassau County Legislature,
County Executive Bruce Blakeman, Michael C. Pulitzer, and Howard Kopel:
Misha Tseytlin, Esq.
Bennet J Moskowitz, Esq.
Troutman Pepper Hamilton Sanders LLP
Defendants Nassau County Board of Elections and Commissioner Joseph Kearny:
Matthew M. Rozea, Esq.
Office of the County Attorney
Defendant Board of Elections Commissioner James Scheuerman:
Ryan E. Cronin, Esq.
Non-Parties Francis X. Moroney and Richard Nicolello:
Sophia Nicoletta Dauria, Esq.
Troutman Pepper Hamilton Sanders LLP
PAUL I. MARX, J.S.C.
The papers filed electronically on NYSCEF in New York Communities for Change, et al. v County of Nassau, et al., Index No. 602316/2024 ("Action 2"), and numbered 84-88, 120-135, 138, and 140 were read in connection with the motion by: (1) non-party Francis X. Moroney to (a) quash a non-party subpoena duces tecum and ad testificandum, (b) for a protective order, and (c) for such other and further relief as this Court deems just and proper (Motion # 7); and (2) non-party Richard Nicolello for the same relief as to the subpoena issued to him (Motion # 8).
Upon reading the foregoing papers, it is hereby ORDERED that these motions are consolidated for disposition, and, because both Actions 1 and 2 have been joined for discovery purposes, the following disposition applies equally to Action 1, to the extent applicable.
BACKGROUND
Both Actions 1 and 2 challenge on different grounds the 2023 redistricting map for the Nassau County Legislature (the "Legislature"), which became effective on February 28, 2023 (the "2023 Map"). Plaintiffs in Action 1, Hazel Coads, other named residents and registered voters in Nassau County, and the Nassau Democratic County Committee, filed suit against Nassau County (the "County"); the Legislature; the County Board of Elections ("Board of Elections"); Joseph J. Kearny, in his official capacity as a commissioner of the Board of Elections; and James P. Scheuerman, in his official capacity as a commissioner of the Board of Elections. Plaintiffs in Action 1 challenge the 2023 Map, inter alia, as favoring the Republican Party and disfavoring the Democratic Party, in violation of Section 34 of the New York State Municipal Home Rule Law ("Home Rule Law"), as specifically enumerated in the Complaint. In essence, Plaintiffs therein allege that Defendants engaged in partisan gerrymandering.
Plaintiffs in Action 2, New York Communities for Change, and named Latina, Afro-Latina, and Latino residents and registered voters in the County, commenced an action against the County; the Legislature; the Board of Elections; Bruce Blakeman, in his official capacity as County Executive; Michael C. Pulitzer, in his official capacity as Clerk of the Legislature; Howard J. Kopel, in his capacity as Presiding Officer of the Legislature; and Joseph J. Kearny and James P. Scheuerman, in their official capacities as commissioners of the Board of Elections. Plaintiffs therein allege that the 2023 Map was drawn with the intent to dilute the votes of Black, Latino, and Asian voters within Nassau County, and in violation of the John R. Lewis Voting Rights Act of New York ("NYVRA") codified under New York Election Law § 17-206, and Section 34 of the New York Municipal Home Rule Law. In effect, Plaintiffs therein allege that Defendants engaged in racial gerrymandering.
The instant motions were filed in Action 2 by non-parties, Francis X. Moroney, Chairperson of the Temporary Redistricting Advisory Commission ("TDAC"), and by Richard Nicolello, then Presiding Officer of the Legislature, during the redistricting process which led to enactment of the 2023 Map.
After the population statistics from the 2020 federal decennial census were released, the Legislature created the TDAC to "recommend one or more plans to the [C]ounty Legislature for dividing the county into legislative districts for the election of county legislators." Nassau Cnty. Charter, § 113(2). The Legislature maintained the authority to "reject, adopt, revise or amend the redistricting plan recommended by the [TDAC] or adopt any other redistricting plan, provided that any plan adopted by the County Legislature shall meet all constitutional and statutory requirements". Id. § 114.
The County Charter provides that the TDAC "shall consist of eleven members, who shall serve without compensation, appointed as follows: one member, who shall be chairperson and who shall not be a voting member, appointed by the County Executive, five members appointed by the presiding officer and five members appointed by the minority leader." Id. § 113(1)(a). Francis Moroney was appointed as Chairperson by the County Executive. The other ten voting members who were appointed by the Presiding Officer and the Minority Leader were not County legislators.
The County Charter provides that the TDAC "is authorized to hire experts, counsel, consultants and staff as provided for in the budget of the County Legislature and as the temporary districting advisory commission deems necessary." Id. § 113(2).
In addition to the foregoing, the County Charter states, in relevant part, that:
3. The temporary districting advisory commission shall take all action by not less than six affirmative votes of its members. The temporary districting advisory commission shall conduct all meetings in accordance with applicable law and may hold public hearings to develop a redistricting plan.
4. No later than ten months before the general election of the County Legislature, the temporary districting advisory commission shall transmit its recommendations and any and all plans for dividing the county into districts to the County Legislature. All recommendations from the temporary districting advisory commission shall be available for public inspection at the office of the clerk of the County Legislature. (Id. at § 113(3) - 113(4))
In his capacity as Chairperson of the TDAC during the subject redistricting process, Mr. Moroney conducted meetings, held public hearings, and, critically, recommended redistricting plans to Richard Nicolello, the then Presiding Officer of the Legislature. The TDAC submitted two maps to the Legislature, one drawn by the Republican Commissioners and another drawn by the Democratic Commissioners.
Nicolello rejected the redistricting maps presented by the TDAC. He then hired the law firm, Troutman Pepper Hamilton Sanders LLP ("Troutman"), to help him draw a new map which complied with all applicable legal requirements. Troutman hired a redistricting expert, Dr. Sean Trende, to assist Troutman with redrawing the legislative map for the County. The redrawn map was released to the public on February 9, 2023, after which the Legislature held public hearings. As part of the legislative review, Troutman published two memoranda analyzing and explaining that the redrawn map complies with applicable constitutional and statutory law. One of Troutman's attorneys, Misha Tseytlin, Esq. testified at a public legislative hearing about the proposed map. After receiving feedback from the legislators, the public, and Dr. Trende, Mr. Nicolello made several revisions to the map. On February 27, 2023, the Legislature adopted the final iteration of the map through Local Law 1, which was signed into law on February 28, 2023. These Actions followed. They are at the initial stages of discovery.
Non-party Dr. Sean Trende has a pending motion to quash a subpoena issued to him. Motion sequence No. 10, NYSCEF Doc ## 142-147, 157, 162-180, and 189.
Misha Tseytlin, Esq. is counsel for Defendants in these Actions. Mr. Tseytlin has a pending motion to quash a subpoena issued to him. Motion sequence No. 9, NYSCEF Doc ## 148-156, 158, 190-196, and 198.
Plaintiffs served separate subpoenas duces tecum and ad testificandum ("Subpoena(s)") upon Mr. Moroney and Mr. Nicolello, which commanded them to appear for a deposition and to produce "[a]ll documents and communications exchanged between [each of them] and any Defendant concerning the Redistricting Process or any other redistricting plan proposed or considered during the Redistricting Process" and "[a]ll documents and communications concerning whether and/or to what extent the Redistricting Plan or any other redistricting plan proposed or considered" was required to include districts comprised of majority "racial, ethnic, or language-minority groups." NYSCEF Doc ## 86 (Moroney) and 91 (Nicolello).
Mr. Moroney and Mr. Nicolello served responses and objections to those requests on Plaintiffs, and separately moved to quash the non-party Subpoenas served upon them, for a protective order, and for such other and further relief as this Court deems just and proper.
Although the Subpoenas, as titled, encompass requests for document production, the movants state in their motion papers that each seeks to quash the Subpoenas only to the extent that they demand appearance for deposition. Neither Mr. Moroney nor Mr. Nicolello seeks to quash the demands in the Subpoenas for documents. NYSCEF Doc # 88 (Moroney); Doc # 93 n 1 (Nicolello).
By letter dated April 29, 2024, Defendants joined in both motions. NYSCEF Doc # 138.
DISCUSSION
Non-parties, Mr. Moroney and Mr. Nicolello, each separately seeks to quash the Subpoenas served on them on the ground that the redistricting process being challenged in these Actions is inherently legislative activity, which is protected from disclosure by the common law legislative privilege. Although both non-parties claim the benefit of the legislative privilege, only Mr. Nicolello is a legislator. Mr. Moroney is a not a legislator. Therefore, movants do not have the same interests at stake, and both may not be entitled to the same protection. Furthermore, Mr. Nicolello moves to quash the Subpoena served on him on the further grounds that his deposition testimony is barred by the attorney-client and work product privileges. Accordingly, each motion will be treated separately.
Standard of Review
CPLR 3101(a)(4) permits a party to an action to obtain discovery from a nonparty of "matter material and necessary in the prosecution or defense of an action" in possession of a nonparty, provided the nonparty is apprised of the "circumstances or reasons such disclosure is sought or required." U.S. Bank Tr., N.A. v Carter, 204 A.D.3d 727, 729 [2nd Dept 2022]. The contours of this rule were considered in Kapon v Koch, 23 N.Y.3d 32 [2014], wherein the New York Court of Appeals reaffirmed its prior holding that "[a]n application to quash a subpoena should be granted '[o]nly where the futility of the process to uncover anything legitimate is inevitable or obvious'... or where the information sought is 'utterly irrelevant to any proper inquiry' ". Id. at 34 (quoting Anheuser-Busch, Inc. v Abrams, 71 N.Y.2d 327, 331-332 [1988], citing Matter of Edge Ho Holding Corp., 256 NY 374, 382 [1931] and Matter of La Belle Creole Intl., S.A. v Attorney-General of State of NY, 10 N.Y.2d 192, 196 [1961], quoting Matter of Dairymen's League Coop. Assn., Inc. v Murtagh, 274 A.D. 591, 595 [1948], affd 299 NY 634 [1949]). The person who is "moving to vacate the subpoena [bears] the burden of establishing that the subpoena should be vacated under such circumstances." Id. (citing Matter of Dairymen's League Coop. Assn., 274 A.D. at 595-596; see also Ledonne v Orsid Realty Corp., 83 A.D.3d 598, 599 [1st Dept 2011]). "Should the nonparty witness meet the burden, 'the subpoenaing party must then establish that the discovery sought is 'material and necessary' to the prosecution or defense of an action, i.e., that it is relevant'." Ferolito v Arizona Beverages USA, LLC, 119 A.D.3d 642, 643 [2nd Dept 2014] (citing Kapon, supra at 34); U.S. Bank Tr., N.A. v Carter, supra at 730 (internal citations omitted).
Neither Mr. Moroney nor Mr. Nicolello asserts that the information sought is "utterly irrelevant". Instead, they each claim that they are protected from compelled testimony due to the legislative privilege, and, in Mr. Nicolello's case, other evidentiary privileges as well.
Legislative Immunity and Legislative Privilege
In addressing these motions, the Court wades into the somewhat murky waters of the jurisprudence of legislative immunity and legislative privilege. Although these doctrines are fairly well-developed in federal law, they continue to be considerably less so in the various states, including New York. The New York Court of Appeals has addressed legislative immunity (as applied to State legislators), but it has not addressed its corollary, legislative privilege. For the most part, the same holds true for the Appellate Divisions, and the trial courts in New York, where case law applying these doctrines is similarly sparse. There are no New York State court decisions applying legislative privilege to local legislators, and none applying these doctrines in the redistricting context. Federal court decisions form the bulk of the case law, because those courts have had to grapple with the proper application of these doctrines in cases in federal court applying federal law to state government officials claiming entitlement to the privilege.
Legislative immunity and legislative privilege have their origins or roots in common law. In New York, they have been codified in the Speech or Debate Clause of the New York Constitution, which in turn derives from, and is similarly worded as, the Speech or Debate Clause of the United States Constitution. The Speech or Debate Clause of the New York Constitution provides that "[f]or any speech or debate in either house of the legislature, the members shall not be questioned in any other place." (NY Const., art. III, § 11.). It entitles State legislators (and their staff) to full protection - absolute immunity from criminal prosecution or civil suit for damages for their legislative acts. Legislative privilege, the corollary to immunity, protects a State legislator from compelled testimony or production of evidence in connection with legitimate legislative acts.
The Speech or Debate Clause of the United States Constitution reads, "for any Speech or Debate in either House, [the Senators and Representatives] shall not be questioned in any other Place." U.S. Const. art. I, § 6.
These doctrines may take different paths when applied by federal courts in federal question cases brought against state government officials, or where a party seeks to compel such officials to provide documentary or testimonial evidence, than when they are applied by state courts in cases brought against state government officials of the legislative and executive branch under state law, or involving such officials in discovery being conducted in state court. One of the reasons the doctrines have been applied differently in federal court is that the Supremacy Clause of the United States Constitution underlies federal question actions involving state officials. As the Third Circuit Court of Appeals explained in In re Grand Jury, 821 F.2d 946, 954 [3rd Cir 1987], the underpinnings of any "privilege [applied to] state legislators in federal cases [is the fact that] the Federal Government has supremacy over state legislatures in areas where the [United States] Constitution grants it power to act." Nevertheless, federal case law is persuasive, and it provides guideposts for the Court as it charts a course through these murky waters.
Although neither movant has asserted, or indeed, can assert, legislative immunity, since neither has been sued in these Actions, the Court begins with a review of New York cases applying such immunity, because it is the foundation for legislative privilege.
Legislative Immunity
The New York Court of Appeals first addressed the doctrine of legislative immunity in People v Ohrenstein, 77 N.Y.2d 38 [1990], when presented with the question in that case, inter alia, "whether defendants [state legislators and others could] be prosecuted criminally for having placed on the Senate payroll "no-show" employees-persons who did no work and were not expected to do anything to earn their salaries." Id. at 43. In applying the Speech or Debate Clause of the New York Constitution to determine whether defendants were immune from criminal prosecution, the court found that the Speech or Debate Clause was intended to grant "at least as much protection as the immunity granted by the comparable provision of the Federal Constitution (New York State Constitutional Convention Committee, Problems Relating to Legislative Organization and Powers, at 57 [1938])." Id. at 53. With that as its premise, the Court then recounted various precepts developed by the United States Supreme Court regarding legislative immunity, presumably with the intent that these federal principles could be applied to State legislators. In doing so, the Court of Appeals sought to determine whether the acts by the State legislators at issue in that case fell outside the scope of Speech or Debate Clause protection.
Defendants were Manfred Ohrenstein, a Democratic Senator and the Minority Leader of the State Senate; his chief of staff, Francis Sanzillo; Senator Howard Babbush; and Joseph Montalto, who was seeking to regain his Senate seat.
The Ohrenstein inquiry has a peculiar resonance today as the current United States Supreme Court grapples with similar issues related to the scope of the President's executive privilege.
Acknowledging the United States Supreme Court's holding that legislative immunity does not extend to everything that a legislator does in their role as a legislator, the Court of Appeals in Ohrenstein sought to define what constitutes a legislative act subject to the provision of legislative immunity, delineating certain contexts to which such immunity extends:
Whether a challenged action constitutes legislative activity is also the foundational inquiry for applying legislative privilege.
Legislative acts have been defined as those which are an integral part of the legislative process, and have been held to include votes and speeches on the floor of the House as well as the underlying motivations for these activities (Hutchinson v Proxmire, ; United States v Johnson, 383 U.S. 169; United States v Brewster, 408 U.S. 501). The immunity also extends to committee meetings and hearings which do not occur on the floor of the House and may be asserted by a legislator on behalf of staff members (Doe v McMillan, 412 U.S. 306; Gravel v United States, 408 U.S. 606). (Ohrenstein, supra at 54)
The Court of Appeals stated that "[i]t also appears that the immunity may apply to some personnel decisions relating to the hiring and firing of certain employees of the Legislature but the scope of the immunity here is uncertain." Ohrenstein, supra at 54 (citing Davis v Passman, 442 U.S. 228).
The Court of Appeals next distinguished those instances where a legislator's acts would not be protected, stating that the Speech or Debate Clause does not extend to such activity as community outreach, press releases, and unlawful conduct:
it does not extend to acts which a legislator performs to secure support in the community or to insure reelection, such as giving speeches in the community, issuing newsletters and press releases, or arranging for the publication of books (Hutchinson v Proxmire, supra; Gravel v United States, supra). In addition, no immunity attaches to an agreement to accept a bribe or the acceptance of an unlawful gratuity, even though the conduct relates to a vote or other legislative act which is entitled to immunity, so long as the prosecution is not based on the legislative act or the motives underlying it (United States v Brewster, supra). (Ohrenstein, supra at 54)
Thus, the Court of Appeals flatly refused to extend coverage to acts such as acceptance of bribes and improper gratuities, finding them to be clearly beyond the outer limit of legislative acts which are entitled to protection. Ultimately, the Court of Appeals concluded that "no matter how far the immunity may extend under the State Constitution, it cannot be said that it was intended to provide a sanctuary for legislators who would defraud the State by knowingly placing on its payroll employees who were never intended to do anything but receive State moneys." Id. at 54.
Nearly two decades later, in Maron v Silver, 14 N.Y.3d 230 [2010], the New York Court of Appeals again, though briefly, considered the immunity conferred upon members of the State Legislature by the Speech or Debate Clause in the New York Constitution. The high court, addressing "the legislative defendants' primary defense that both houses of the Legislature and their leaders are immune from any such claim [concerning alleged state constitutional violations in connection with their failure to increase judicial compensation] under the Speech or Debate Clause," held that "such immunity [does not] appl[y] to either house of the Legislature as a whole, and therefore, it does not apply to the Assembly or the Senate [ and] [f]or the same reason, the State may not assert this defense." Id. at 256-57. The Court of Appeals reiterated its determination in Ohrenstein that the Speech or Debate Clause of the New York Constitution provides state legislators as much protection as provided to members of Congress by the Federal Constitution. The high court then recognized the United States Supreme Court's determination in United States v Brewster, 408 U.S. 501 [1972], that the Federal Speech or Debate Clause" 'protects against inquiry into acts that occur in the regular course of the legislative process and into the motivation for those acts' ". Maron, supra at 256 (quoting United States v Brewster, supra at 525 (emphasis added)). The Court of Appeals declined to extend Speech or Debate Clause protection in Maron, because the Clause does not "state that such immunity applies to either house of the Legislature as a whole, and therefore, it does not apply to the Assembly or the Senate." Id. at 257. Moreover, the high court found that because the State defendants made statements in contexts other than the legislative and executive chambers about why judicial salaries had not been increased, id. (citing e.g., Ohrenstein, 77 N.Y.2d at 54 (issuance of press releases and newsletters deemed not protected legislative acts); Matter of Rivera v Espada, 98 N.Y.2d 422, 428 [2002] (same); Hutchinson v Proxmire, 443 U.S. 111 [1979]), the Clause was not implicated because the court did not "need [to] inquire 'into acts [which] occur[red] in the regular course of the legislative process' or the Legislature's motives for such acts." Id. (quoting United States v Brewster, supra at 525. As a result, there was no "danger of the Judiciary intruding upon the independence of the legislative branch." Id.
"In order to insure that Congressmen are not held liable for legislative acts, the [Federal] Speech or Debate Clause mandates an evidentiary privilege that prohibits evidence of a Congressman's acts from being used in a proceeding against him. See United States v Helstoski, 442 U.S. 477, 488-89 [1979]. Because "hostile questioning by the executive branch before a possibly hostile judiciary," may also impinge on legislative independence, In re Grand Jury Investigation ("Eilberg"), 587 F.2d 589, 597 [3rd Cir 1978], the speech or debate privilege is also testimonial and protects a Congressman or his aides from judicial questioning about his legislative acts, Gravel [ v United States, 408 U.S. 606, 615-16 [1972]]; Eilberg, 587 F.2d at 596." In re Grand Jury, 821 F.2d 946, 953 [3rd Cir 1987].
Moving on to decisions of the Appellate Division, in Matter of Straniere v Silver, 218 A.D.2d 80 [3rd Dept 1996], aff'd 89 N.Y.2d 825 [1996], the Third Department considered the application of the New York State Constitution's Speech or Debate Clause in an Article 78 proceeding brought by a State Assemblyman against the Speaker of the State Assembly and others, challenging the determination that a home rule message was required for legislation which proposed the secession of Staten Island. The respondents moved to dismiss the petition as barred by the Speech or Debate Clause. Much of the dispute centered on whether a home rule determination constituted a legislative act. The court found that it was a legislative act, and it rejected the petitioners' argument that the protections afforded by the Speech or Debate Clause were not triggered until committee deliberations began. The court stated that "[m]any important legislative activities entitled to Speech or Debate Clause immunity, including the drafting of bills and the reference of bills to committee, occur prior to this stage of the legislative process." Id. at 84. The court also rejected the "petitioners' argument that the Speech or Debate Clause does not shield erroneous determinations by legislators and their staffs [b]ecause 'judgments of legality or constitutionality obviously involve 'questioning' of legislative acts, courts may not strip acts taken in the legislative process of their constitutional immunity by finding that the acts are substantively illegal or unconstitutional". Id. (internal citations omitted). The court held that "[j]udicial review must be limited to determining whether the action constitutes a legitimate legislative activity [and that] the court's review must end" once it determines "that the action is within the purview of legitimate legislative activity ". Id. at 85. Having made that determination, the court dismissed the proceeding.
What emerges from Ohrenstein, Maron, and Straniere is that the State Speech or Debate Clause renders State legislators absolutely immune from suit challenging legitimate legislative activity. The question which remains unanswered by the New York Court of Appeals is what protection is accorded to local legislators to whom the State Speech or Debate Clause is not applicable. That question was addressed by the Appellate Division, Fourth Department in Felder v Foster, 71 A.D.2d 71 [4th Dept 1979].
Felder involved a class action brought against Monroe County legislators after the county legislature adopted a budget which provided no funds for public assistance payments to be made to recipients denominated as "home relief singles". Plaintiffs were recipients of "home relief singles", who brought the action on behalf of similarly situated individuals against the County legislators, the County Manager, the Director of the County Department of Social Services, the Commissioner of the New York State Department of Social Services, alleging a claim pursuant to the federal civil rights statute, 42 USC § 1983, for violations of the Equal Protection Clause of the United States Constitution. The plaintiffs also alleged claims under the equal protection clause of the New York Constitution, and the Social Services Law of New York. The Appellate Division considered the question yet to be answered by the New York Court of Appeals whether "legislative immunity applies to regional and local legislatures as well as Federal and State Legislatures." Felder, supra at 76. The Felder court relied upon the United States Supreme Court's holding in Lake Country Estates v Tahoe Planning Agency, 440 U.S. 391 [1979], that the members of the Tahoe Regional Planning Authority, who were sued by property owners challenging their enactment of a land use ordinance, were "entitled to absolute immunity from federal damages liability", to the extent that they "were acting in a capacity comparable to that of members of a state legislature ". 440 U.S. at 406. The Appellate Division found the reasoning of Lake Country Estates that regional legislators should not be "subjected to the cost and inconvenience and distractions of a trial upon a conclusion of the pleader, or to the hazard of a judgment against them based upon a jury's speculation as to motives", 440 U.S. at 405, equally applicable to "county legislators who were acting in their legislative capacities." Felder, supra at 76. Thus, the court held that the county legislators were entitled to absolute immunity.
In Lake Country Estates, the United States Supreme Court was careful to note that "[w]hatever potential damages liability regional legislators may face as a matter of state law, we hold that petitioners' federal claims do not encompass the recovery of damages from the members of TRPA [Tahoe Regional Planning Agency] acting in a legislative capacity." 440 U.S. at 405.
The United States Supreme Court held similarly in Bogan v Scott-Harris, 523 U.S. 44 [1998], that: "the common law accorded local legislators the same absolute immunity it accorded legislators at other levels of government, and because the rationales for such immunity are fully applicable to local legislators, we now hold that local legislators are likewise absolutely immune from suit under § 1983 for their legislative activities." Id. at 49 (emphasis added). The Court continued, stating that:
The rationales for according absolute immunity to federal, state, and regional legislators apply with equal force to local legislators. Regardless of the level of government, the exercise of legislative discretion should not be inhibited by judicial interference or distorted by the fear of personal liability. See Spallone v United States, 493 U.S. 265, 279, 110 S.Ct. 625, 634, 107 L.Ed.2d 644 (1990) (noting, in the context of addressing local legislative action, that "any restriction on a legislator's freedom undermines the 'public good' by interfering with the rights of the people to representation in the democratic process"); see also Kilbourn v Thompson, 103 U.S., at 201-204 (federal legislators); Tenney [v Brandhove, 341 U.S. 367, 377] (state legislators); Lake Country Estates [, Inc. v Tahoe Regional Planning Agency, 440 U.S. 391, 405] (regional legislators). Furthermore, the time and energy required to defend against a lawsuit are of particular concern at the local level, where the part-time citizen-legislator remains commonplace. See Tenney, supra, at 377, 71 S.Ct., at 788-89 (citing "the cost and inconvenience and distractions of a trial"). And the threat of liability may significantly deter service in local government, where prestige and pecuniary rewards may pale in comparison to the threat of civil liability. See Harlow v Fitzgerald, 457 U.S. 800, 816, 102 S.Ct. 2727, 2737, 73 L.Ed.2d 396 [1982]. (Bogan, supra at 52 (emphasis added)
It is thus well established that county legislators, as relevant here, are entitled to absolute immunity, which derives from the common law, from civil liability for their legislative acts within "the sphere of legitimate legislative activity", Bogan, supra at 46, in both federal and state courts.
"Moreover, legislative immunity has been held to apply to non-legislators whose 'acts [are] both: (1) substantively legislative, i.e., acts that involve policy making; and (2) procedurally legislative, i.e., passed by means of established legislative procedures'." Favors v Cuomo, 285 FRD 187, 209 [EDNY 2012] (quoting State Employees Bargaining Agent Coalition v Rowland, 494 F.3d 71, 89-90 [2nd Cir 2007]). A stated rationale for doing so is that "[a] modern-day legislature, of course, cannot operate strictly through the efforts of its members." Rodriguez v Pataki, 280 F.Supp.2d 89, 95 [SDNY 2003]. Consequently, the doctrine has been made "applicable to legislative staff members, officers, or other employees of a legislative body, although it is considered 'less absolute' as applied to these individuals". Id. (quoting Marylanders for Fair Representation v Schaefer, 144 FRD 292, 298 [D Md 1992] (citing Dombrowski v Eastland, 387 U.S. 82, 85 [1967], and Tenney, supra, 341 U.S. at 378).
Legislative Privilege
Legislative privilege, a corollary of legislative immunity, protects "legislators and their staff from compelled disclosure of documentary and testimonial evidence with respect to actions within the scope of legitimate legislative activity." Favors v Cuomo, supra at 209. While there is universal recognition that legislators at all levels of government are entitled to absolute immunity from suit for legislative actions within the scope of legitimate legislative activity, legislative privilege, which concerns the evidentiary protections that flow from such immunity, is subject to much more disagreement among the courts over its scope.
The first reported case in New York to address legislative privilege was Lincoln Bldg. Associates v Barr, 1 Misc.2d 511 [NY Mun Ct 1955], a summary proceeding to recover possession of real property, wherein the landlord challenged the constitutionality of the Emergency Business Space Rent Control Law, as applied to office space. The landlord subpoenaed the Majority Leader of the New York State Assembly and the Chairman of the Temporary State Commission to Study Rents and Rental Conditions (the "Temporary State Commission" or "Commission") to testify at trial on his behalf. The Majority Leader responded to the subpoena and testified at trial; however, at a certain point in the questioning, he claimed "a privilege and immunity from testifying with regard to two lines of inquiry." Id. at 513. Represented by the Attorney General of the State of New York, the Majority Leader invoked the Speech or Debate Clause of the New York State Constitution.
The two lines of inquiry were whether the Chairman of the Temporary State Commission had conducted a survey of office space since the Commission met in 1953, and whether the Commission staff and office had been disbanded.
The court in Lincoln Bldg. Associates determined that the lines of inquiry were "directed to matters of fact pertinent and relevant to the issues involved." Id. at 513. The court stated that in applying the privilege under the State Speech or Debate Clause, which it noted was an issue of "first impression in this State", there must be "[s]ome circumscription". Id. at 514. The court reasoned that "otherwise the immunity granted would be greater than needed and set legislators apart as a privileged group-[an] end entirely inimical to the basic concepts of our democratic way of life." Id. The court further stated that "utterances not partaking precisely of the legislative character should also be qualifiedly privileged. So that, if there is an absence of malice and the presence of good faith, they, too, should immunize the legislator." Id. at 514-15. Based upon this reasoning, the court overruled the legislator's claim of privilege and directed him to answer. Notably, while the court laid out its rationale for the decision, it did not discuss, or even cite, any of the cases it considered. The court merely stated that "[its decision] was based upon full consideration of all arguments and available precedents ". Lincoln Bldg. Associates, supra at 516.
This is an interesting point given that the Clause was put into the United States and New York Constitutions specifically to "set legislators apart as a privileged group" to be protected from interference or overreaching by the other two branches of government. It is also interesting in hindsight, because the legislative privilege has been extended to other government officials performing legislative acts, and even to the agent of a legislator or other official performing legislative acts on their behalf.
Thus, we have no clues regarding those "precedents", "which is itself an odd choice of phrase, given that it was an issue of first impression. In addition, the court expressly stated that it "ha[d], of course, omitted all reference to out of State precedents." Lincoln Bldg. Associates, supra at 516. We are hard pressed to know just what the court considered, let alone relied upon, besides its own ruminations, in reaching its conclusions.
Another early case which considered the legislative privilege under the Speech or Debate Clause of the New York State Constitution was Abrams v Richmond County S.P.C., 125 Misc.2d 530 [Sup Ct, Richmond County 1984]. The action was brought by the Attorney General of the State of New York against the Richmond County Society for the Prevention of Cruelty to Children ("RCSPCC"), alleging that it violated certain state laws by not engaging or functioning in any substantive manner after its formation. The defendant moved to dismiss the action, and the Attorney General cross-moved for further discovery into RCSPCC's activities allegedly performed by it on behalf of the New York State Select Committee on Crime. RCSPCC asserted legislative privilege pursuant to the State Speech or Debate Clause. The court, relying solely on Lincoln Bldg, held that the defendant could not invoke the legislative privilege. The court stated that "if the legislator to be questioned is not a party to the pending action, and no criminal or civil actions are pending against him as to his testimony, then the privilege does not exist." 126 Misc.2d at 535. The court reasoned that if the privilege did not exist for the legislator, the directors and agents of RCSPCC could not invoke it, because the privilege was derivative as to them.
Neither Lincoln Bldg. Associates nor Abrams is on point. Both courts considered the legislative privilege provided under the State Speech or Debate Clause, not common law legislative privilege, which is being asserted here by a county legislator and his agent. Decisions of these courts are not binding precedent; they may provide only persuasive authority, if at all. Moreover, Lincoln Bldg. Associates rests upon a weak foundation, because the court did not discuss any of the case law it considered to reach its decision. Abrams, too, has a similarly shaky foundation, because it relied solely on Lincoln Bldg. Associates. Accordingly, the Court views these decisions as questionable, and declines to follow either of them.
Two more recent New York cases which applied the legislative privilege during the discovery phase of an action, diverge completely from Lincoln Bldg. Associates and Abrams, and take a different path. These decisions, Humane Society of New York v City of New York, 188 Misc.2d 735 [Sup Ct, New York County 2001], and Campaign for Fiscal Equity v State of New York, 179 Misc.2d 907, 687 N.Y.S.2d 227 [Sup Ct, New York County 1999], aff'd 265 A.D.2d 277 [1st Dept 1999], were cited and discussed in the motion papers. Neither Humane Society of New York nor Campaign for Fiscal Equity considered either Lincoln Bldg. Associates or Abrams. Instead, these recent decisions turned to federal law to guide their inquiry into the issue whether legislative privilege prohibited depositions and production of background documents and data by executive branch officials performing legislative activity. However, neither of the recent cases involved legislators or legislative staff directly, although Campaign for Fiscal Equity relied on the State Speech and Debate Clause derivatively. Neither case involved redistricting.
In Campaign for Fiscal Equity, supra, the State sought review of a judicial hearing officer's ("JHO") denial of a motion for a protective order sought by a non-party witness who was being deposed in connection with a challenge to the State's funding for public schools in New York City. The JHO rejected the State's claims that the questions being propounded to the witness, Ruth Henahan, an employee of the State Education Department, would educe information that was protected by the New York State Constitution's Speech or Debate Clause, or by common law legislative immunity. Upon review, the trial court extended the protections of the State Speech or Debate Clause to the witness in connection with the work she performed at the behest of State legislators involved in drafting legislation related to funding for public schools. The court stated that the State Speech or Debate Clause allows State legislators or their agents to" 'conduct investigations and obtain information without interference from the courts, at least when these activities are performed in a procedurally regular fashion." Id., 687 N.Y.S.2d at 230 (citing Brown & Williamson Tobacco Corp. v Williams, 62 F.3d 408, 416; see United States v Swindall, 971 F.2d 1531, 1545, cert. denied 510 U.S. 1040; Urbach v Farrell, 229 A.D.2d 275, appeal dismissed 90 N.Y.2d 888). The court determined that the privilege was properly asserted by the employee based upon the legislative nature of the work she performed for State legislators. Id. "Additionally, documents or data that the witness produced at the behest of legislators [were] also protected as such documents could reveal the various policy options considered by individual legislators." Id. (citing Brown & Williamson, supra, (" '[d]ocumentary evidence can certainly be as revealing as oral communications)). The court held that the work that Ms. Henahan did for the State legislators or their staff concerning the creation, consideration and enactment of legislation was "privileged and may not be sought through discovery." Id., 687 N.Y.S.2d at 231.
The court stated that Ms. Henahan could be questioned about the State aid modeling system, "an important, if not crucial, tool used by the Legislature in determining public school funding allocation." Campaign for Fiscal Equity, 687 N.Y.S.2d at 231. The court determined that the "[p]laintiffs [were] entitled to know how the State aid modeling system worked and what it could show legislators... [and] any nonlegislative uses, if any ". Id. The court held that Ms. Henahan could claim only common law immunity in connection with her contacts with executive branch officials. The court's reasoning was that Ms. Henahan, in acting on behalf of officials of the Division of the Budget ("DOB"), which was engaged in proposing a budget for State funding of public schools, was entitled to the same degree of common law legislative immunity as DOB. The court recognized that it was "derivative immunity [which] is described as 'less absolute' than the [DOB] official's ", but it nonetheless extended absolute protection, because the plaintiffs did not proffer any reason why the witness should be entitled to less immunity than DOB. 179 Misc.2d at 232 (citing Dombrowski v Eastland, 387 U.S. 82, 85 [1967]). It is worth noting that the constitutional protection the court afforded to the witness was also derivative of State legislator's State Speech or Debate privilege, but the court did not hold that it was "less absolute" than the State legislators'.
In a brief decision affirming the trial court, the Appellate Division held that the legislative privilege under the New York State Constitution's Speech or Debate Clause was properly invoked by the state employee "with respect to her contacts with State legislators and their staff[, because she worked] closely with legislators in the formulation of budgetary legislation, and thus, the privilege in question was properly invoked by her to safeguard the legislative function from judicial interference inimical to the legislature's constitutional stature and performance as a separate, co-equal branch of government". Campaign for Fiscal Equity, Inc. v State, supra, 265 A.D.2d at 279 (citing Gravel v United States, 408 U.S. 606, 618 [1972]; see also, Straniere v Silver, supra, 218 A.D.2d at 83).
This Court respectfully disagrees with the portion of the Supreme Court and Appellate Division decisions in Campaign for Fiscal Equity which extended constitutional protection under the State Speech or Debate Clause to an executive branch employee. Notwithstanding the fact that the employee performed work for a State legislator, the Speech or Debate Clause, by its terms, is applicable only to "the members" of the State Legislature, as stated by the court in Humane Society of New York, supra, 188 Misc.2d at 738; see also Lake Country Estates, Inc. v Tahoe Regional Planning Agency, supra, 440 U.S. at 404 ("The Speech or Debate Clause of the United States Constitution is no more applicable to the members of state legislatures than to the members of TRPA"). The trial court acknowledged as much, but then stated that "by judicial gloss, [it had been applied] to the staff that assist them." Campaign for Fiscal Equity, supra, 687 N.Y.S.2d at 230. The staff to which the State Speech or Debate Clause has been extended is to legislative staff, not to the executive branch working with State legislators. Consequently, the court should have applied the common law legislative privilege to Ms. Henahan's actions on behalf of the State legislator, just as it did in connection with her legislative actions and communications with staff from the Division of Budget.
In Humane Society of New York v City of New York, supra, 188 Misc.2d 735, the plaintiff challenged an amendment made by the New York City Board of Health to the New York City Health Code. The plaintiff moved for leave to take the deposition of members of the Board of Health and the general counsel to the Department of Health, and for discovery of documents. The plaintiff claimed that the discovery was necessary because of" 'a bad-faith motivation by defendants' ". Id. at 736. The court stated that the "Speech or Debate Clause applies by its terms only to "members" of the Legislature. Id. at 738 However, the court held that "a similar common-law legislative privilege is applicable to government officials in the executive branch when engaged in legislative activities." Id. (citing Campaign for Fiscal Equity v State of New York, supra, 179 Misc.2d at 910-911, 687 N.Y.S.2d at 231-32). The court noted that "no New York case appears to have considered the applicability of this common-law privilege to the adoption of legislative-type rules by an agency such as the Board of Health ". Id. at 739. The court held that the privilege was applicable, and that it prohibited the depositions sought by the plaintiff, as well as the production of background documents and data. Id. at 740. The court rejected the plaintiff's argument that the disclosure was required by good government concerns and the discovery of governmental wrong-doing, because the plaintiff had not provided any" objective evidence tending to show that the impetus for the legislation was illicit bias or prejudice." Id. at 741 (emphasis in original). Instead, the Court found that "the plaintiff relie[d] solely on speculation that the members of the Board of Health acted from bias against him or against pet ferrets in enacting the regulation[; therefore,] the requested discovery [was not] authorized." Id. The court's holding suggests that a party seeking such discovery may overcome the privilege if they provide objective evidence to show illicit bias or prejudice.
It is important to clarify that a county legislator is not entitled to the protection of the New York Constitution's Speech or Debate Clause. The protection afforded to a county legislator is derived exclusively from common law legislative immunity.
Thus, recent New York state court decisions which have applied legislative privilege have given it broad application to protect against production of documentary evidence and deposition testimony aimed at inquiry into acts which are within the sphere of legitimate legislative activity.
Parties' Contentions
Both movants assert that the redistricting process which is being challenged in these Actions is inherently a legislative activity. Richard Nicolello, then Presiding Officer of the Legislature at the time the challenged redistricting Map was enacted, moves to quash the Subpoena served on him on the ground that "any possible testimony regarding [his] knowledge as Presiding Officer would violate the well-recognized legislative privilege." Nicolello Memorandum of Law at 2, NYSCEF Doc # 93. Francis Moroney moves to quash the Subpoena served on him on the ground that it seeks testimony regarding his knowledge as Chairperson of TDAC in connection with TDAC's role in the redistricting process, which would similarly violate the well-recognized common law legislative privilege. Moroney Memorandum of Law in Support at 2, NYSCEF Doc # 88.
As previously stated, because the movants hold different positions, Mr. Nicolello being a legislator and Mr. Moroney being a non-legislator, the Court will address the motions separately. The Court will begin with Mr. Nicolello, as the common law legislative privilege is directly applicable to him in his role as a County legislator performing legislative activity related to redistricting.
Richard Nicolello's Motion
Mr. Nicolello, as the Presiding Officer of the Legislature during the subject redistricting process, asserts that he is fully entitled to claim the protection of the common law legislative privilege because his actions constitute legislative activities. He asserts that he engaged the Troutman law firm to provide legal guidance on the redistricting process, including drafting various maps proposed to the Legislature for consideration and the 2023 Map which was eventually voted into law and enacted. Mr. Nicolello contends that Plaintiffs cannot compel his testimony at a deposition which seeks to question him about such legislative activities and his communications with other County legislators and individuals who were engaged and involved in the Legislature's redistricting process. Mr. Nicolello relies upon Humane Society of New York, which stated that" 'legislative immunity not only protects state [and local] legislators from civil liability, it also functions as an evidentiary and testimonial privilege' ". 188 Misc.2d at 739 (quoting Miles-Un-Ltd., Inc. v Town of New Shoreham, 917 F.Supp. 91, 98 [DNH 1996], citing Marylanders for Fair representation, Inc. v Schaefer, 144 FRD 292, 297 [D Md 1992]). Again relying on Humane Society of New York, Mr. Nicolello asserts that the privilege generally protects a legislator's deliberations and motivations in enacting legislation from compelled disclosure. Humane Society of New York, supra at 739 (citing Ohrenstein, supra, 77 N.Y.2d at 54). Mr. Nicolello requests that the Subpoena served upon him should be quashed, because it only seeks testimony about internal deliberations and legislative information which is protected from disclosure by the common law legislative privilege, and, in some instances, attorney-client and work product privilege. Nicollello Memorandum of Law in Support at 7, NYSCEF Doc # 93.
Plaintiffs contend that common law legislative privilege, which they assert is all that either movant may lay claim to, is qualified, and that "[i]t must yield to the need for disclosure where, as here, intentional discrimination is alleged and significant public rights are at stake." Plaintiffs' Opposition at 1, NYSCEF Doc ## 104 and 120. Plaintiffs urge the Court to adopt the approach of the federal courts which have held that the common law legislative privilege is qualified, and thereby subject to a balancing test to determine whether the privilege must yield to allow discovery in allegedly illegal redistricting cases, such as this one. Plaintiffs contend that the factors the federal courts have espoused for conducting such balancing clearly weigh in favor of allowing the deposition to proceed. They assert that a number of courts in redistricting cases have granted discovery over claims of legislative privilege, among them, Harkenrider v Hochul, Decision, E2022-0116CV, NYSCEF Doc # 126 [Sup Ct, Steuben County March 3, 2022], wherein the court "permit[ted] discovery of the Respondents [New York State Governor and State legislators] as to whether or not the map-drawing process was directed and controlled by one political party or the legislative leaders of one political party." Harkenrider, supra at 3, NYSCEF Doc # 114.
Plaintiffs submitted identical opposition papers which address both motions.
Plaintiffs provided a copy of the trial court's March 3, 2022, decision in Harkenrider, which is attached to their papers as Exhibit I, NYSCEF Doc # 114. Plaintiffs also provide a second trial court decision in that case, dated March 9, 2022, which granted expedited limited discovery in accordance with the court's March 3, 2022 Decision. NYSCEF Doc # 115.
Neither Mr. Nicolello and Defendants, who joined in his motion, nor Plaintiffs, who oppose it, dispute that the legislative privilege applies to Mr. Nicolello, and that the Subpoena falls within its scope. Cf. Gravel, 408 U.S. at 628-29 (holding that the Speech or Debate Clause's legislative privilege prohibited questioning a Senator about one of his legislative acts; "the motives and purposes behind" the act; "communications between the Senator and his aides" related to the act; and his "preparation for" the act). There is no dispute that the legislative privilege may be invoked at the discovery stage, and not just at trial. Plaintiffs do not seriously dispute that the privilege may apply even if the legislator is not a party to these Actions. Finally, Plaintiffs do not dispute that the Subpoena seeks evidence of Mr. Nicolello's legislative acts and underlying motives, although Plaintiffs also assert that, even if the privilege bars inquiry into those areas, the deposition should still go forward as to "Nassau County demographics, communications with outside parties, and the County's history of voting discrimination." Opposition at 2, NYSCEF Doc # 120. Thus, the only questions concern the scope of the common law legislative privilege, as applied here, and whether it should be qualified.
What Plaintiffs overlook with respect to their alternative claim is that movants are not the only sources for obtaining that information, and therefore, their alternative does not cut in favor of eking out those areas from coverage by the privilege. Early in their opposition papers, Plaintiffs assert: "The testimony sought is not only uniquely within the Witnesses' knowledge but also 'material and necessary' to the prosecution of this action, and therefore subject to 'full disclosure' under CPLR 3101 (a)." Opposition at 1, NYSCEF Doc # 120. That statement is true, however, only with respect to the movants' motivations and intent underlying their legislative acts.
This Court holds that county legislators are entitled to the same degree of legislative privilege which is given to legislators at other levels of government. The Court reaches that determination based upon the Appellate Division First Department's affirmance in Campaign for Fiscal Equity, supra, 265 A.D.2d 277, which accorded broad protection to an executive branch employee performing legislative activities for State legislators and a State agency. The scope of the legislative privilege in New York turns upon the legislative nature of the activity sought to be protected from inquiry or disclosure under the privilege. The Court applies the New York Court of Appeals' position that State legislators should be given the same broad protection as members of Congress, and extrapolates from the United States Supreme Court's holding in Bogan, that the rationales for providing absolute immunity to legislators at other levels of government are fully applicable to local legislators. Bogan, supra, 523 U.S. at 49-50. Thus, county legislators are entitled to the same degree of legislative privilege which is given to legislators at other levels of government.
The Court declines Plaintiffs' invitation to apply a qualified legislative privilege, as did the court in Rodriguez v Pataki, 280 F.Supp.2d 89 [SDNY 2003], which Plaintiffs cite in support. At first glance, Rodriguez, a redistricting case decided by a federal court sitting in New York seems to provide a road map for the Court to follow here. Rodriguez involved considering how legislative privilege applied in an action by private citizens challenging the New York Legislature's 2002 State Senate and Congressional redistricting plans. The action was removed from state court, and it was consolidated with a separate federal court action challenging the same plans. The citizen plaintiffs alleged that the redistricting plans published by the New York Legislature's Advisory Task Force on Demographic Research and Reapportionment ("LATFOR"), which was created to assist the Legislature with the task of redistricting the State legislative and Congressional districts, violated the Equal Protection Clause of the Fourteenth Amendment and Section 2 of the Voting Rights Act, thereby raising federal law claims. Id. at 93. The plaintiffs and plaintiff-intervenors moved to compel the production of" 'all documents relating to the analysis and process employed by [the d]efendants' in developing the 2002 Senate and Congressional redistricting plans, as well as responses to their interrogatories concerning these subjects." Id. at 92. Defendants opposed, asserting legislative privilege.
Rodriguez began its analysis by adopting the premise established in In re Grand Jury, 821 F.2d 946, 957 [3rd Cir 1987], that the common law legislative privilege as applied to state legislators in federal court" 'must be qualified, not absolute, and must therefore depend on a balancing of the legitimate interests on both sides.'" Rodriguez, supra at 95 (quoting In re Grand Jury, 821 F.2d at 957). However, looking to the decision in In re Grand Jury to better understand the Rodriguez court's rationale for applying a qualified privilege, it becomes apparent that the legal underpinning lies in the fact that "the Federal Government has supremacy over state legislatures in areas where the [United States] Constitution grants it power to act." In re Grand Jury, supra at 954. The concern for one branch of the federal government to not interfere in the affairs of a coequal branch are not implicated in federal court cases involving state legislators. Because such" 'federal interference in the state legislative process is not on the same constitutional footing' ", the court in In re Grand Jury, and thereafter Rodriguez, applied a qualified privilege to the state legislators against whom federal law claims were asserted in federal court. Id. Giving full deference to federal interests, the federal courts in In re Grand Jury and Rodriguez, determined that the state actors should be accorded only a qualified privilege, and the courts used a five factor balancing test to weigh the relative concerns.
By contrast, this Court is presented here with a discovery dispute between private parties (including a non-governmental entity) in Actions which raise only state law claims against County government officials and County legislators. Thus, the issues and concerns which led the court in Rodriguez and In re Grand Jury to apply a qualified legislative privilege are not present in this case, where the Supremacy Clause and the federalism concerns it embodies are not implicated. Moreover, this approach is inconsistent with recent decisions of New York state courts, notably, Campaign for Fiscal Equity, supra, notwithstanding that those cases did not directly involve legislators. Plaintiffs proffer no other basis to apply a qualified legislative privilege, and the balancing test that accompanies it, therefore, the Court declines to employ it here.
The balancing approach applied in United States v Gillock, 445 U.S. 360, 373 [1980], which held that the state privilege must yield to the federal interest in the case of criminal prosecution, is similarly inapplicable to the circumstances here, again due to the Supremacy Clause. Gillock dealt with state legislators in federal court; obviously, it did not involve state legislators in state court. Furthermore, it was a criminal proceeding, and should be limited as such, rather than applying it to a civil case.
The Court declines to follow Lincoln Bldg., because, as discussed earlier, it does not reveal the legal authority which undergirds the decision; nor is it precedent.
The Court also declines to follow Harkenrider, because it relied on Rodriguez in applying a qualified legislative privilege to direct discovery against the New York State Governor and State legislators. Moreover, the trial court's decision in that case, due to the exigency with which it was required to act, was never put into effect-no depositions of state officials were actually conducted-and the trial court's ruling was never tested through appeal.
Plaintiffs argue, again predicated upon their contention that a qualified legislative privilege should be applied here, that the privilege should yield because there is evidence that the redistricting process was tainted by intentional racial discrimination and partisan bias. They rely on the holding in Humane Society that while good government concerns alone are insufficient to set aside the privilege, it may fall prey to" objective evidence tending to show that the impetus for the legislation was illicit bias or prejudice." 188 Misc.2d at 740-41 (emphasis in original). Plaintiffs also rely for support on Harkenrider, which allowed discovery against state officials based on allegations that the process of creating districting map was driven by partisan bias.
Although the Court has given the full privilege to Mr. Nicolello, it is mindful that the privilege applies to legitimate legislative activity. Consequently, the Court will entertain the suggestion (or qualified holding) in Humane Society which states that the privilege is less than absolute where "objective evidence" of "illicit bias or prejudice" is proffered. Id. Therefore, the Court will consider the examples Plaintiffs put forth of alleged discriminatory intent and partisan bias.
Plaintiffs contend that there are at least six examples of allegations and evidence of discriminatory intent and partisan bias which warrant setting aside the privilege and allowing Mr. Nicolello's deposition to proceed. The following six examples of discriminatory intent and partisan bias, which are enumerated in their opposition papers, were proffered:
Surely, Plaintiffs recognize that allegations cannot substitute, or supplant the need, for objective evidence.
The Court here omits the citations to the Complaint and various exhibits, which Plaintiffs provide in their opposition papers.
(1) Mr. Nicolello's mapmakers represented that they need not draw any majority-minority districts in Nassau County, contradicting a longstanding bipartisan consensus and robust evidence in the legislative record that conditions in the County were such that the FVRA and NYVRA required the drawing of majority-minority districts to prevent racial vote dilution;
(2) The Legislature's unexplained decision in 2023 to disregard protections for coalition districts contradicts the position that Mr. Moroney and Mr. Nicolello embraced, and the Legislature adopted, in 2013. These shifting positions evince an intent to evade protections for voters of color;
(3) Troutman misrepresented both the NYVRA and the FVRA in stating that legal protections against racial vote dilution applied only to "single minority group[s]" and not to coalitions of minority groups with cohesive voter preferences;
(4) Mr. Nicolello abruptly discarded both maps proposed by the TDAC and replaced them with his own map while refusing to disclose to the Democratic legislators the analyses he referenced extensively to assert that the map is lawful and fair;
(5) A partisan-fairness analysis conducted by Dr. Daniel Magleby, a professor of political science, revealed that Mr. Nicolello's map is "an extreme partisan gerrymander" that "demonstrates more bias against Democratic voters than the vast majority of 10,000" maps neutrally generated by a computer; and
(6) Notwithstanding the Republican TDAC Commissioners' lip service to compliance with the FVRA and NYVRA, the map they drew and advanced by the Rules Committee was an unconstitutional racial gerrymander. After being called out on this racial gerrymander, the Legislature applied a different strategy to diluting the votes of voters of color in the adopted map and continued the purpose of enacting a map that favors Republicans. (Opposition at 11-12, NYSCEF Doc # 120)
Plaintiffs assert that Mr. Nicolello cannot claim the protection of the legislative privilege in the face of such evidence of discriminatory intent and partisan bias.
Mr. Nicolello argues that Plaintiffs' purported evidence of discriminatory intent and partisan bias is not relevant to the issue of legislative privilege, but even if these examples were relevant, they do not show improper intent. As to the first example, Mr. Nicolello asserts that he sought to follow Dr. Trende's conclusion "that there was no justification for drawing any additional districts based on race," and that doing so would be "unconstitutional," NYSCEF No.35 at 28 (emphasis added). Mr. Nicolello characterizes this item as merely indicating a good-faith disagreement among experts. Next, Mr. Nicolello asserts that the second example, that he disregarded protections for coalition districts, merely reflects a legal dispute over whether such districts are constitutionally required under the Equal Protection Clause of the United States and New York State Constitutions. As to the third example Plaintiffs listed, Mr. Nicolello asserts that it indicates differing interpretations of the NYVRA, which does not in any way reflect discriminatory intent or bias. As to Plaintiffs' fourth example, that Mr. Nicolello rejected the partisan maps prepared by the Democratic and Republican cohorts of TDAC, Mr. Nicolello argues that, in fact, it shows that he was not acting with partisan intent. As to Plaintiffs' fifth example, Mr. Nicolello argues that it shows only that Dr. Daniel Magleby and Dr. Scott Trende employed different analyses, and it does not show discriminatory intent. As to Plaintiffs' sixth and final example, Mr. Nicolello asserts that his rejection of the map drawn by the Republican TDAC Commissioners is inconsistent with Plaintiffs' claims of his allegedly improper intent.
The Court finds that Plaintiffs' examples do not constitute objective evidence of discriminatory intent and partisan bias. Further, the probative value of the discovery Plaintiffs seek is of little value to establish what the NYVRA requires-"a method of election, having the effect of impairing the ability of members of a protected class to elect candidates of their choice or influence the outcome of elections, as a result of vote dilution". Election Law Section 17-206(2)(a) (emphasis added). Intent is not an element of that claim. Even if it were, there is the inherent challenge of using an individual lawmaker's motives, notwithstanding that Mr. Nicolello was the architect of the 2023 Map, to try to establish that the Legislature as a whole enacted the 2023 Map with any particular purpose. Such evidence "is often less reliable and therefore less probative than other forms of evidence bearing on legislative purpose ". Am. Trucking Associations, Inc. v Alviti, 14 F4th 76, 90 [1st Cir 2021]. As the First Circuit noted, "[t]he Supreme Court has warned against relying too heavily on such evidence. See United States v O'Brien, 391 U.S. 367 [1968] ("What motivates one legislator to make a speech about a statute is not necessarily what motivates scores of others to enact it, and the stakes are sufficiently high for us to eschew guesswork."); cf. Va. Uranium, Inc. v Warren, - U.S. -, 139 S.Ct. 1894, 1907-08 [2019] (plurality opinion) ("Trying to discern what motivates legislators individually and collectively invites speculation and risks overlooking the reality that individual Members of Congress often pursue multiple and competing purposes, many of which are compromised to secure a law's passage and few of which are fully realized in the final product[,]... [and] risk[s] displacing the legislative compromises actually reflected in the statutory text."). The Court rejects Plaintiffs' examples as furnishing a sufficient basis, at least at this juncture, to set aside or qualify the common law legislative privilege to which Mr. Nicolello is entitled in his role as a County legislator performing presumptively legitimate legislative acts in connection with redistricting.
Accordingly, the Court holds that Mr. Nicolello is entitled to the full common law legislative privilege, which provides him protection from compelled deposition testimony regarding the legitimate legislative acts he performed in connection with redistricting.
Waiver
Having determined that Mr. Nicolello is fully protected by the common law legislative privilege from being compelled to testify at a deposition about his work on the County's redistricting plans and the final map that was enacted, the Court turns to the issue of waiver.
Plaintiffs contend that Mr. Nicolello waived any privileges he may have otherwise been entitled to regarding the challenged redistricting process when he authorized Troutman to publicly issue memoranda about the legal and factual bases for the proposed maps, and allowed counsel to testify at a public legislative hearing about the proposed map which was later adopted. Opposition at 19-20, NYSCEF Doc # 120. Loudon House LLC v Town of Colonie, 123 A.D.3d 1409, 1411 [3rd Dept 2014] (holding that where counsel testifies at the invitation of their governmental client, their "oral presentation... may well constitute a waiver of the [attorney-client] privilege"); Empire Chapter of Associated Builders & Contractors, Inc. v New York State, 211 A.D.3d 1155, 1158-59 [3rd Dept 2022] (finding waiver where the agency authorized disclosures that "virtually parroted the [underlying] study's analysis and findings"). Relying upon, and quoting from, Loudon House, supra, Plaintiffs assert that "a client who voluntarily testifies to a privileged matter, who publicly discloses such matter or who permits his... attorney to testify regarding the matter is deemed to have impliedly waived the attorney-client privilege." Opposition at 19 (quoting Loudon House, supra at 1411 (citation omitted); see Gartner v New York State Atty Gen's Off., 160 A.D.3d 1087, 1092 [3rd Dept 2018] ("Attorney communications and work product generally do not retain their confidential status if copies were disclosed to, or made by, third parties" (citation omitted)); Favors, supra, 285 FRD at 211-12 (noting that the legislative privilege "may be waived or asserted by each individual legislator," and that waiver "need not be explicit" and can occur via public disclosure (citation omitted)). Plaintiffs argue that Mr. Nicolello cannot wield these privileges as both a sword and shield to selectively disclose information favorable to the map while withholding other unfavorable information. They contend that Mr. Nicolello cannot assert privilege to refuse to testify about the information he authorized Troutman to disclose during the legislative hearings on the redrawn map, and that doing so opened the door to a much broader inquiry.
Mr. Nicolello argues in reply that Troutman's testimony at the public hearing and publication of its memoranda did not waive any privileges. He argues that Plaintiffs overstate the extent of any waiver that could have resulted from the testimony and memoranda, asserting that Plaintiffs seek to use the waiver too expansively. He contends that to the extent there was a waiver, it is limited to the content of the document Troutman "parroted" at the hearing. Mr. Nicolello asserts that Plaintiffs have not shown that he has only disclosed "cherry-picked information to the public" and "self-serving communications", while claiming privilege as to information which potentially undermines his claim that the 2023 Map is lawful. He argues that, as a result, Plaintiffs cannot show that he waived any applicable privileges.
The Court holds that Mr. Nicolello waived his legislative privilege to the extent of the information contained in Troutman's memoranda and Mr. Tseytlin's testimony. Legislative privilege, like legislative immunity, "is a personal one and may be waived or asserted by each individual legislator." Marylanders for Fair Representation, Inc. v Schaefer, supra, 144 FRD at 298. Thus, Mr. Nicolello can be questioned during deposition solely limited to the publicly disclosed information. Mr. Nicolello cannot be questioned on any other matters, such as information concerning the prior maps submitted by TDAC, which he rejected, or his reasons for rejecting those maps. Notwithstanding his waiver, Mr. Nicolello cannot be questioned as to his motivations or deliberations concerning creation of the 2023 Map, any iterations thereof, or any prior maps that were presented to him. The Court declines to extend the waiver to other facets of the redistricting process which were not discussed in the Troutman memoranda or at the hearing. It is the Court's view that doing so would completely gut the legislative privilege. The Court adheres to the view expressed by the United States Supreme Court that the legislative privilege is to be carefully guarded. Lake Country Estates, 440 U.S. at 404-05 ("[l]egislators are immune from deterrents to the uninhibited discharge of their legislative duty, not for their private indulgence but for the public good. One must not expect uncommon courage even in legislators"). Significantly, as the Court went on to state: "[t]he holding of this Court in Fletcher v Peck, 6 Cranch 87, 130, 3 L.Ed. 162, that it was not consonant with our scheme of government for a court to inquire into the motives of legislators, has remained unquestioned." Lake Country Estates, 440 U.S. at 405.
Accordingly, Mr. Nicolello's motion for a protective order is GRANTED only to the extent that his waiver of the legislative privilege through the Troutman memoranda and counsel's testimony at the legislative hearing shall subject him to a deposition which shall be strictly limited to the information that has already been publicly disclosed through those means. The Court will make itself available to rule on any objections which are asserted on Mr. Nicolello's behalf by his counsel during the deposition.
Nicolello's Claims of Attorney-Client and Work Product Privilege
Mr. Nicolello asserts that his testimony will implicate the attorney-client privilege and work product doctrine, because he hired and consulted with Troutman and the redistricting expert the firm retained, Dr. Trende, to assist Mr. Nicolello with redrawing a map that complied with the law.
Attorney-Client Privilege
"Where, as here, a witness has been served with a subpoena ad testificandum, 'a claim of privilege cannot be asserted until the witness appears and is presented with a question that implicates protected information'." Empire Wine & Spirits LLC v Colon, 145 A.D.3d 1157, 1158-59 [3rd Dept 2016] (citing Matter of Holmes v Winter, 22 N.Y.3d 300, 319 [2013], cert denied 572 U.S. 1135 [2014]; see Matter of Beach v Shanley, 62 N.Y.2d 241, 248 [1984]; 4-2304 Weinstein-Korn-Miller, NY Civ Prac ¶ 2304.13). Assertion of attorney-client privilege does not provide a blanket prohibition against deposition testimony. "[T]he long established rule is that privilege may not be used as a ground to quash a subpoena ad testificandum in advance of compliance. Simply stated, privileges may not be asserted in advance of questions actually propounded." New York State Comm'n on Gov't Integrity v Congel, 156 A.D.2d 274, 280 [1st Dept 1989] (citing 2A Weinstein-Korn-Miller, NY Civ Prac para. 2304.13; see also, e.g., Matter of Pennock v Lane, 18 A.D.2d 1043 [3rd Dept 1963]; People v Slochowsky, 116 Misc.2d 1069 [Sup Ct, Kings County 1982]). "The proper procedure requires that the subpoena be obeyed and objections to specific questions interposed. If the objections cannot be resolved informally, appropriate review can be sought on a record that permits an informed determination of the issues." Seelig v Shepard, 152 Misc.2d 699, 703 [Sup Ct, New York County 1991].
Should Mr. Nicolello wish to assert attorney-client privilege during his limited deposition, he may, of course, assert the privilege if and when questions intruding on privileged areas are put to him. It is "[o]nly in this context [that] an intelligent appraisal [can] be made as to the legitimacy of the claim of privilege'." Empire Wine & Spirits LLC, supra at 1158 (quoting Matter of Pennock, supra at 1044; see Desai v Blue Shield of Northeastern NY, 128 A.D.2d 1021, 1022 [1987]; Ocean-Clear, Inc. v Continental Cas. Co., 94 A.D.2d 717, 718-719 [1983]). The parties may contact the Court during the deposition for a ruling on any such objection.
Work Product Privilege
Mr. Nicolello asserts work product privilege to shield any questioning about his communications with Dr. Trende and his work product. He asserts that because Troutman retained Dr. Trende, a social scientist and expert in redistricting, in anticipation of litigation about the 2023 Map, his communications and work product are exempt from disclosure. Indeed, he asserts that communications between himself and Dr. Trende are protected by both the attorney-client privilege and work product doctrine, because Dr. Trende is an adjunct to counsel's "strategic thought process". Mr. Nicolello states that" 'an expert who is retained as a consultant to assist in analyzing or preparing the case... [is] generally seen as an adjunct to the lawyer's strategic thought processes, thus qualifying for complete exemption from disclosure under [CPLR] 3101(c).'" Memorandum of Law in Support at 9 (citing Santariga v McCann, 161 A.D.2d 320, 321 [1st Dept 1990] (internal quotation omitted); see Oakwood Realty Corp. v HRH Constr. Corp., 51 A.D.3d 747, 749 [2nd Dept 2008] (adopting and applying Santariga 's holding on this issue)), NYSCEF Doc # 93. Mr. Nicolello further states that any documents created by Dr. Trende are protected from disclosure because they" 'would not have existed but for the litigation consultancy.'" Id. (citing Delta Fin. Corp. v Morrison, 827 N.Y.S.2d 601, 607 [Sup Ct, Nassau County 2006]).
The Court declines to quash the Subpoena based upon the work product privilege in advance of Mr. Nicolello's deposition. As with Mr. Nicolello's assertion of attorney-client privilege, he may assert the work product doctrine, either singly or in combination with attorney-client privilege, if and when questions are put to him which intrude on areas subject to the privilege(s).
Francis Moroney's Motion
Mr. Moroney moves to quash the Supoena seeking to compel his testimony concerning the redistricting process being challenged in these Actions. Mr. Moroney asserts that in his capacity as Chairperson of TDAC during the subject redistricting process, he engaged in legislative activities to assist the Legislature in redrawing the County's legislative districts. He states that such activities included conducting meetings, holding public hearings, and recommending redistricting plans to the Presiding Officer of the Legislature. Mr. Moroney argues that because the TDAC was created by the Nassau County Charter to recommend redistricting plans to the Legislature seeking to enact a legislative redistricting map, an undeniably core duty of the Legislature, and TDAC "conducted 'legislative-type' actions in support of the Legislature's core legislative duties," the legislative privilege extends to his, and the TDAC's, legislative activities. Moroney Memorandum of Law in Support at 8 (citing Humane Society, supra, 188 Misc.2d at 739), NYSCEF Doc # 88. Mr. Moroney contends that these inherently legislative activities are protected by the common law legislative privilege, and that a deposition seeking to inquire into such legislative activities and his communications with other members of TDAC, the Presiding Officer and other County legislators, as well as other individuals involved in the Legislature's redistricting process should be precluded.
Plaintiffs assert that "Mr. Moroney is not entitled to even a qualified legislative privilege because his role in redistricting as a non-legislator did not constitute protected legislative activity." Opposition at 1, NYSCEF Doc ## 104 and 120. Plaintiffs argue that Mr. Moroney's work as a member of the TDAC does not qualify for the protection of the legislative privilege, because neither he, nor the other members of the TDAC, were legislators. Plaintiffs liken Mr. Moroney's and the TDAC's role to that of the New York State Legislative Task Force on Demographic Research and Reapportionment ("LATFOR"), a similar entity created by the New York Legislature to assist it with redistricting, which was denied the protection of legislative privilege in Rodriguez, supra.
Plaintiffs again rely upon the trial court's decision in Harkenrider, which held that "[m]embers of the [Independent Redistricting Commission] and at least two members of LATFOR" who "are not legislators.... do not enjoy legislative immunity or legislative privilege". Exhibit I, Harkenrider March 3, 2022 Decision at 2, NYSCEF Doc # 130. Plaintiffs assert that Mr. Moroney's role with the TDAC does not entitle him to withhold discovery based on legislative privilege. Opposition at 17.
The Court declines to adopt the rationale of Rodriguez and Harkenrider, finding that Mr. Moroney is clearly an agent of the Legislature, and as such, under New York law, he is entitled to protection from questioning about his legislative acts performed in connection with creating redistricting maps for the Legislature's consideration and possible enactment. In doing so, the Court adopts the reasoning of Campaign for Fiscal Equity and extends the privilege to Moroney for his legislative actions undertaken in that capacity. The privilege is properly applied to Mr. Moroney, pursuant to Campaign for Fiscal Equity, based upon the legislative nature of the work he performed for County legislators. The creation of redistricting maps for consideration by the Legislature is quintessentially legislative. The work that Mr. Moroney and TDAC performed for the County legislators was central to the consideration and enactment of legislation adopting a redistricting map. The functions performed by TDAC go far beyond the "technical assistance" provided by LATFOR in Rodriguez. Mr. Moroney's legislative activity in connection with creating redistricting maps is privileged and may not be sought through discovery. Campaign for Fiscal Equity, supra, 687 N.Y.S.2d at 232. Accordingly, Mr. Moroney's motion to quash the Subpoena and for a protective order is granted.
CONCLUSION
It is hereby ORDERED that Richard Nicolello's motion to quash the Subpoena served upon him and for a protective order is GRANTED, to the extent that he may only be deposed as to the information which was already publicly disclosed through the Troutman memoranda and counsel's testimony at the legislative hearing in connection with the redistricting map that was enacted; and it is further
ORDERED that any assertion of attorney-client privilege or work product privilege must be asserted by Mr. Nicolello during his limited deposition, if and when questions intruding on such privileged areas are put to him. The parties may seek rulings from the Court on the objections during the course of the deposition by calling the chambers of the undersigned; and it is further
ORDERED that Francis X. Moroney's motion to quash the Subpoena and for a protective order is GRANTED, and he shall not be subject to deposition.
The foregoing shall constitute the Decision and Order of the Court.