Montgomery County v. Schooley

WILNER, Chief Judge. In an action filed in the Circuit Court for Montgomery County, appellees challenged the councilmanic redistricting plan adopted by the County Council following the 1990 census. We are not concerned here with the validity of that plan, which has yet to be determined by the circuit court, but only with a discovery matter that arose during the litigation. The plaintiffs sought to take the deposition of a member of the County Council, Isiah Leggett; the County moved for a protective order blocking that deposition; the court denied the motion; and the County appealed.

The two issues before us are (1) whether the County may appeal the denial of its motion, and (2) if so, whether the court erred in its ruling. I. PROCEDURAL BACKGROUND The Montgomery County Charter provides for a County Council of nine persons. Four of those persons are elected from the County at large. The other five are elected from councilmanic districts, the boundaries of which are to be redetermined every ten years following the national census.

The redistricting process is set forth in § 104 of the Charter. Essentially, it provides for the appointment of a bi-partisan Commission on Redistricting to prepare a “plan of councilman ¹⁰⁹ ic districts,” and to present that plan, together with a report explaining it, to the County Council. The Council is required to hold a public hearing on the plan within 30 days after receiving it, and “[i]f within ninety days following presentation of the commission’s plan no other law reestablishing the boundaries of the councilmanic districts has been enacted, then the plan, as submitted, shall become law.” In accordance with this procedure, a Commission was appointed following the 1990 census. On or about November 1, 1991, the Commission presented its plan and an explanatory report to the Council.

Submitted with the plan and report were two minority reports presenting redistricting boundaries that were different than those recommended by a majority of the Commission. At the request of the Council’s two Republican members, these minority reports were put into legislative form and, on November 7, 1991, they were introduced as bills. One of them was Bill No. 56-91. The challenge mounted by appellees arises from what occurred to Bill No. 56-91.

Upon its presentation on November 7, Councilman Hanna offered amendments to the bill deleting the councilmanic districts contained in the bill and, with certain exceptions, replacing them with boundary descriptions similar to those proposed by the Commission. In the view of the County, the Hanna amendments were ultimately adopted and the bill, as so amended, was passed by the Council and signed by the County Executive. In their four-count complaint for declaratory and injunctive relief, appellees contended, essentially, that (1) the Hanna amendments were not validly adopted, and (2) if the bill did contain those amendments, it was unconstitutional. The first contention, as set forth in the complaint, was premised on the assertions that (1) at the November 7 meeting of the Council, the Hanna proposals were not presented as formal written amendments but were merely orally described; (2) although the Council held its mandatory public hearing on the Commission report and Bill No. 56-91 on November 26, 1991, the Hanna proposals were “not noticed for public hear ¹¹⁰ ing and never became the subject of a public hearing” as required by the County Charter and the Council’s own Rule; (3) the Council held a “work session” on December 3,1991, but no attempt was made at that session to amend Bill No. 56-91; and (4) although on December 10,1991, the Council purported to approve Bill No. 56-91 “as previously amended,” in fact the bill had not been amended.

From this, appellees urged that the bill actually passed by the Council and signed by the County Executive was the original version of Bill No. 56-91, exclusive of the Hanna amendments. 1 In May, 1992, the defendants — the County, the County Executive, the County Council, and the County election board — having previously answered the complaint, moved for summary judgment. In June, the parties were notified that a hearing on those motions was scheduled for September 28, 1992. On September 4, appellees noted the deposition of Councilman Leggett, who apparently had served as President of the Council during its consideration of Bill No. 56-91, to take place September 24 “for the purpose of discovery, or for use as evidence, or both.” The County filed a motion for protective order, alleging that “[t]he deposition of a council-member regarding issues surrounding the enactment of legislation should not be permitted, as it would violate the legislative privilege afforded to Mr. Leggett as a member of the County Council” and that Leggett’s deposition “is not reasonably calculated to lead to the discovery of admissible evidence.” ¹¹¹ In their response to the County’s motion, appellees contended that (1) the County had no standing to raise Mr. Leggett’s legislative privilege, (2) the legislative privilege should not, in any event, prevent them from obtaining information relevant to the case, and (3) they were not seeking information as to “legislative intent” but rather information “about the procedural aspects of the enactment” of the legislation. In that last regard, they asserted that they sought from Mr. Leggett evidence “corroborating among other things claims that there were ‘factors present, not of record, which influenced the Council.’ ” Rather than blocking the deposition entirely, they argued, the proper approach would be to allow Mr. Leggett, who neither sought a protective order on his own nor opposed the County’s request for one, to assert his legislative privilege on a question-by-question basis, as he saw fit.

It appears that the court agreed with one or more of these arguments, for, on September 24, 1992, it denied the County’s motion and directed that the deposition proceed. The County filed an immediate appeal and, we are told, the deposition has been postponed pending this appeal.

II

APPEALABILITY Appellees have moved to dismiss this appeal on the ground that the County has not been aggrieved by the court’s order. The sole basis of the motion for protective order was Mr. Leggett’s legislative privilege which, they say, is personal to him and which he could interpose either through his own motion for protective order or by refusing to answer specific questions. Because the County, in their view, had no right to assert vicariously Mr. Leggett’s privilege, it cannot be harmed by the rejection of its motion. The argument is essentially one of “standing,” although appellees do not use that word in articulating it.

In support, they cite Kreatchman v. Ramsburg, 224 Md. 209 , 167 A.2d 345 (1961); Jabine v. Priola, 45 Md.App. 218 , 412 A.2d 1277 (1980); and Harris v. Brinkley, 33 Md.App. 508 , 365 A.2d 304 (1976). ¹¹² Those cases simply express the well-established principle that only persons with a legally cognizable interest in the proceeding are entitled to appeal from judgments entered by a trial court. None of them addressed the issue here. The Court of Appeals did address that issue, however, in a manner wholly inconsistent with appellees’ position, in Public Service Comm’n v. Patuxent Valley, 300 Md. 200 , 477 A.2d 759 (1984). The substantive issue there was whether individual members of the Public Service Commission could be required to appear for pre-trial depositions in an action for judicial review of a Commission order.

The petitioners in that action noted the depositions of the Commissioners, the Commission moved for a protective order, and, when the motion was denied, the Commission and the State appealed. The threshold question was whether they had the right to appeal the denial of the motion. The Court viewed that preliminary question in terms of whether the order itself was appealable under the collateral order doctrine. The standing issue did not escape its attention, however.

After stating at 205, 477 A.2d 759 that “[t]he threshold question is whether the Commission and the State may appeal from the trial court’s discovery order,” it held, in a footnote to that statement: “This question relates to the finality of the order and not to the standing of the Commission and the State. Even though the discovery order was directed to the individual commissioners, who were not parties to the judicial review action ... Maryland Rule 2-403(a) gives a party to the action standing to seek a protective order in a situation such as this. It follows, therefore, that a party to the action would have standing to appeal from a ruling denying the requested protective order and directing that the subject individuals appear for depositions.” See also Dept. of Social Services v. Stein, 328 Md. 1, 12 , 612 A.2d 880 (1992).

This conclusion, though stated in a footnote, is not mere obiter dicta, for, if the Commission and the State did not have ¹¹³ proper standing, the appeal would have had to be dismissed, despite a finding that, qualitatively, the order satisfied the criteria for appealability under the collateral order doctrine. The appeal was not dismissed; the motion to dismiss was denied. We see no distinction between Patuxent Valley and this case on this point. The County was a party below; it was authorized by Md.Rule 2-403 to seek a protective order; and it therefore has standing to appeal the denial of its motion.

The motion to dismiss the appeal is denied.

III

THE MERITS The County’s motion for protective order was grounded on two theories: (1) legislative privilege; and (2) that Mr. Leggett’s testimony would be inadmissible to show the Council’s legislative intent, and that, accordingly, his deposition would not lead to the discovery of admissible evidence. A. Legislative Privilege (1) In General Members of Congress and members of the Maryland General Assembly have a separate Constitutional immunity from being called upon, in any official non-legislative forum, to defend their conduct in legislative proceedings. Article I, § 6 of the U.S. Constitution provides that “for any Speech or Debate in either House [Senators and Representatives] shall not be questioned in any other Place.” A similar provision, applicable to members of the General Assembly, has appeared in the Maryland Constitution since 1776. 2 Article 10 of the ¹¹⁴ current Maryland Declaration of Rights states that “freedom of speech and debate, or proceedings in the Legislature, ought not to be impeached in any Court of Judicature.” Article III, § 18 of the State Constitution adds that “[n]o Senator or Delegate shall be liable in any civil action, or criminal prosecution, whatever, for words spoken in debate.” These Constitutional clauses trace their immediate history to the English Bill of Rights of 1689, although there is evidence of a much earlier origin. See discussion in Holmes v. Farmer, 475 A.2d 976, 981 (R.I.1984).

They have long been regarded as “an important protection of the independence and integrity of the legislature” and, in this country, as also reinforcing the core doctrine of separation of powers. United States v. Johnson, 383 U.S. 169, 178 , 86 S.Ct. 749, 754 , 15 L.Ed.2d 681 (1966); also Blondes v. State, 16 Md.App. 165 , 294 A.2d 661 (1972), appeal after remand, 19 Md.App. 714 , 314 A.2d 746 , rev’d on other grounds, 273 Md. 435 , 330 A.2d 169 (1975). The State privilege is to be read in pari materia with the Federal (Blondes, 16 Md.App. at 175 , 294 A.2d 661 ), and thus both are to be “read broadly to effectuate [their] purposes” {Johnson, 383 U.S. at 180 , 86 S.Ct. at 755 ) and to protect not only words spoken in debate “but anything ‘generally done in a session of the House by one of its members in relation to the business before it.’ ” Johnson at 179 , 86 S.Ct. at 755 , quoting from Kilboum v. Thompson, 103 U.S. 168, 204 , 26 L.Ed. 377 (1881). Members of local legislative bodies in Maryland, like the Montgomery County Council, are not directly within the ambit of either the State or Federal Constitutional immunity provisions, which apply only to the members of legislative bodies mentioned within them.

The doctrine articulated in those provisions has, however, been regarded as applicable to members of local and regional legislative bodies (as well as to State ¹¹⁵ legislatures, in addition to any specific State Constitutional provision) as a matter of common law — the “common law doctrine of official immunity.” Thillens, Inc. v. Community Currency Exchange, 729 F.2d 1128, 1129 (7th Cir.), cert. dismissed, 469 U.S. 976 , 105 S.Ct. 375 , 83 L.Ed.2d 342 (1984). The source, nature, and scope of this common law privilege are not altogether clear and, to some extent, may depend on the context in which the privilege is asserted. When invoked in defense of a Federal criminal prosecution, for example, the common law privilege has been held to be inapplicable— “trumped” by the Supremacy Clause in the U.S. Constitution. United States v. Gillock, 445 U.S. 360 , 100 S.Ct. 1185 , 63 L.Ed.2d 454 (1980).

When there is no such paramount Federal interest, however, the privilege has been respected by both Federal and State courts. In Lake Country Estates v. Tahoe Planning Agcy., 440 U.S. 391, 403 , 99 S.Ct. 1171, 1178 , 59 L.Ed.2d 401 (1979), the Court observed that the privilege had its roots in the parliamentary struggles of 16th and 17th century England and that “such immunity was consistently recognized in the common law and was taken as a matter of course by our Nation’s founders.” See also Bruce v. Riddle, 631 F.2d 272 (4th Cir.1980); Baker v. Mayor and City Council of Baltimore, 894 F.2d 679 (4th Cir.), cert. denied, 498 U.S. 815 , 111 S.Ct. 56 , 112 L.Ed.2d 31 (1990); Hollyday v. Rainey, 964 F.2d 1441 (4th Cir.), cert. denied, — U.S.-, 113 S.Ct. 636 , 121 L.Ed.2d 567 (1992). In Baker , the Court, citing Bruce, declared it “beyond dispute that municipal legislators enjoy the protection of immunity when acting in the sphere of legitimate legislative activity.” Id. at 681 . Subject to the consequences of the Supremacy Clause, that immunity, conferred as a matter of common law, appears to be co-extensive in scope with the Constitutional immunity enjoyed by members of Congress and the Maryland General Assembly.

In Bruce v. Riddle, supra, 631 F.2d at 279 , the Fourth Circuit Court of Appeals referred to it as an “absolute” immunity. ¹¹⁶ In various cases, the Supreme Court has construed the Federal provision as immunizing members of Congress against both criminal and civil liability based on their legislative conduct, whether the action is for prospective relief or damages. Eastland v. United States Servicemen’s Fund, 421 U.S. 491 , 95 S.Ct. 1813 , 44 L.Ed.2d 324 (1975). Indeed, it goes even farther. In Supreme Court of Va. v. Consumers Union, 446 U.S. 719, 731-32 , 100 S.Ct. 1967, 1974 , 64 L.Ed.2d 641 (1980), the Court, quoting in part from earlier cases, observed: “The purpose of this immunity is to insure that the legislative function may be performed independently without fear of outside interference....

To preserve legislative independence, we have concluded that ‘legislators engaged “in the sphere of legitimate legislative activity” ... should be protected not only from the consequences of litigation’s results but also from the burden of defending themselves.’ ” (Emphasis added.) This last statement, first made in Dombrowski v. Eastland, 387 U.S. 82, 85 , 87 S.Ct. 1425, 1427 , 18 L.Ed.2d 577 (1967), construing the privilege as protecting a legislator against both the consequences of litigation and the burden of even having to defend himself in a court proceeding, has resulted in the privilege being regarded as both a bar to proceedings seeking to establish liability against the legislator and as a testimonial privilege. The Supreme Court held as much in Gravel v. United States, 408 U.S. 606 , 92 S.Ct. 2614 , 33 L.Ed.2d 583 , reh. denied, 409 U.S. 902 , 93 S.Ct. 98 , 34 L.Ed.2d 165 (1972). Gravel arose from a grand jury investigation into possible criminal conduct arising from the release of classified Defense Department documents (the “Pentagon Papers”). The Government subpoenaed a staff aide to U.S. Senator Mike Gravel.

Senator Gravel intervened and moved to quash the subpoena and to require the Government to specify the questions it intended to ask the aide. One of the areas of inquiry was a Senate subcommittee meeting convened and chaired by Senator Gravel at which the classified documents were read and placed in the public record. The U.S. Court of Appeals for ¹¹⁷ the First Circuit had approved a protective order precluding the questioning of the Senator or his aide, but not third parties, about Senator Gravel’s conduct at that subcommittee meeting. Although the Supreme Court vacated that order, essentially as being too broad, it said, at 615-16, 92 S.Ct. at 2622 : “[Senator Gravel’s] insistence is that the Speech or Debate Clause at the very least protects him from criminal or civil liability and from questioning elsewhere than in the Senate, with respect to the events occurring at the subcommittee hearing at which the Pentagon Papers were introduced into the public record.

To us this claim is incontrovertible--- We have no doubt that Senator Gravel may not be made to answer — either in terms of questions or in terms of defending himself from prosecution — for the events that occurred at the subcommittee meeting.” (Emphasis added.) It would seem from this pronouncement that a legislator, even if not a party to the action and thus not subject to any direct consequence of it, cannot be compelled to explain, other than before the