sen. bramble motion to quash

8/9/2019 Sen. Bramble motion to quash

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John L. Fellows (4212)RuthAnne Frost (13214)

Christine R. Gilbert (13840)

OFFICE OF LEGISLATIVE RESEARCH AND GENERAL COUNSELW210 State Capitol Complex

Salt Lake City, Utah 84114

Telephone: (801) 538-1032

Facsimile: (801) 538-1712Email: [email protected]

[email protected]

[email protected]

Attorneys for Non-Party Senator Curtis S. Bramble

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH

CENTRAL DIVISION

UTAH REPUBLICAN PARTY,

Plaintiff,

CONSTITUTION PARTY OF UTAH, a

registered political party of Utah,

Plaintiff and Intervenor,

vs.

GARY R. HERBERT, in his official capacityas Governor of Utah, and SPENCER J. COX,

in his official capacity as Lieutenant Governor

of Utah,

Defendants.

SENATOR CURTIS S. BRAMBLE’S

MOTION TO QUASH SUBPOENAS AND

MEMORANDUM IN SUPPORT

Case No.: 2:14-cv-00876-DN

Chief Judge David Nuffer

Magistrate Judge Dustin B. Pead

Pursuant to Rules 7 and 45 of the Federal Rules of Civil Procedure and DUCivR 7-1, Senator

Curtis S. Bramble (“Senator Bramble”), by and through his undersigned counsel, hereby moves the

Court for an order quashing the two subpoenas duces tecum issued by Plaintiff Utah Republican Party

Case 2:14-cv-00876-DN-DBP Document 97 Filed 04/09/15 Page 1 of 13


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In this case, Plaintiff similarly attempts to uncover Senator Bramble’s motivations in

discharging his public responsibilities as a state senator.

4

Plaintiff’s document request, attached

to both subpoenas, makes this clear. Plaintiff seeks, “All communications between January 1,

2013, and the present, with persons associated or affiliated with the Count My Vote initiative,

including but not limited to communications related to the withdrawal of that initiative by

organizers in approximately March 2014.” Exhibits A & B. Plaintiff further requests, “All

communications between January 1, 2013, and the present, related to what became known as the

‘compromise’ that led to SB54, enacted in the 2014 Session [o]f [t]he Utah Legislature.” Id.

Any knowledge, documents, electronically stored information, or objects that Senator

Bramble has that relate to the Count My Vote initiative or to S.B. 54 were obtained in his

capacity as a sitting legislator, while preparing, negotiating, and evaluating proposed legislation.

Bramble Decl., ¶¶ 5-7. Under federal common law, legislative privilege is an absolute bar to

compelling the testimony and documents that Plaintiff seeks in the subpoenas. Therefore, the

court should quash the hearing subpoena and the deposition subpoena.

2.

The Speech or Debate Clause of the Utah Constitution Confers a LegislativePrivilege Identical to Federal Common Law.

The information that Plaintiff seeks in the subpoenas is also privileged under Utah’s

Speech or Debate Clause, Article VI, Section 8 of the Utah Constitution, which provides that

“for words used in any speech or debate in either house, [members of the Legislature] shall not

be questioned in any other place.”5 Like the federal government and forty-three other states,

Utah has adopted the common law legislative immunity and legislative privilege doctrines into

its constitution through a Speech or Debate Clause. William M. Howard, Construction and

4 Senator Bramble is a current member of the Utah Senate, and has served as a state senator

continuously since January 2001. Bramble Decl., ¶ 1.5 Utah’s Speech or Debate Clause is nearly identical to the federal Speech or Debate Clause.



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Application of Federal and State Constitutional and Statutory Speech or Debate Provisions, 24

A.L.R. 6th 255 (2013).

While there is little case law interpreting Utah’s Speech of Debate Clause, Riddle v. Perry,

2002 UT 10, 40 P.3d 1128, suggests that Utah courts would look to federal case law in interpreting

the clause. In Riddle, the Utah Supreme Court addressed whether legislative privilege extends to

a witness in a legislative proceeding and ultimately held that it did. Id. at ¶¶ 7-8. In making its

ruling, the Utah Supreme Court relied extensively upon United States Supreme Court cases

interpreting the common law legislative principle of legislative privilege. See e.g., Id. at ¶ 8

(repeatedly quoting and citing Tenney v. Brandhove, 341 U.S. 367 (1951)). Therefore, if presented

with the issue, a Utah state court would almost certainly conclude that legislative privilege under

Utah’s Speech or Debate Clause is equally as comprehensive as legislative privilege under federal

common law or the federal Speech or Debate Clause.6

Accordingly, the Utah Speech or Debate Clause is also an absolute bar to compelling the testimony

and documents that Plaintiff seeks in the subpoenas.

3.

Quashing the Subpoenas is Consistent with the Underlying Purpose ofLegislative Privilege.

Legislative privilege serves two critical purposes, both of which support the overarching

policy of protecting “the integrity of the legislative process by insuring the independence of

individual legislators.” See Eastland , 421 U.S. at 502. First, legislative privilege protects “the

rights of the people, by enabling their representatives to execute the functions of their office

without fear of prosecutions . . . . ” or “‘the resentment of every one, however powerful, to whom

6 Additionally, Utah courts routinely rely on federal precedent when interpreting a state

constitutional provision that is substantially similar to its federal counterpart. See e.g., Wood v.

Univ. of Utah Med. Ctr., 2002 UT 134, ¶ 29, 67 P.3d 436 (applying federal law to interpret the

Utah Due Process Clause); State v. Daniels, 2002 UT 2, ¶ 42, 40 P.3d 611 (applying federal law

to interpret Utah’s ex post facto clause); State v. Anderson, 910 P.2d 1229, 1238 (Utah 1996)

(applying federal law to interpret Article I, Section 14 of the Utah Constitution).



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the exercise of [the representative’s liberty of speech] may occasion offence.’” Tenney, 341 U.S.

at 373-74 (quoting James Wilson, II Works of James Wilson 38 (Andrew ed. 1896)). Second,

legislative privilege preserves separation of powers by preventing “intimidation of legislators by

the Executive and accountability before a possibly hostile judiciary.” Eastland , 421 U.S. at 502.

Compelling Senator Bramble to provide testimony and documents relating to his work on

the creation and passage of S.B. 54 will severely undermine his independence as a legislator and

chill his ability to effectively represent the rights and interests of his constituents. It will also

compromise the principles of separation of powers because Senator Bramble would be called to

testify and produce documents relating to his legitimate legislative activities before the judiciary.

To preserve the integrity and independence of the legislative process, the court should quash the

subpoenas.

B. The Information that Plaintiff Seeks in its Subpoenas is Improper Because it isNot Relevant to the Claims in this Case.

The court should also quash the hearing subpoena and the deposition subpoena because

Plaintiff’s inquiry into Senator Bramble’s purpose and intent in sponsoring S.B. 54 is improper and

unnecessary. Plaintiff asserts that, as applied, S.B. 54 violates its First Amendment rights to

freedom of speech and freedom of association. See e.g., Compl. ¶¶ 9, 110, 115. Senator Bramble’s

individual motivation and understanding is not relevant to this question for two reasons: (1)

principles of statutory construction dictate that the court should only consider the plain language

of an unambiguous statute when determining its constitutionality; and (2) even if legislative history

were relevant, Senator Bramble’s motivations do not represent the collective intent of the

Legislature.

The Supreme Court has made clear that the “law as passed is the will of the majority of

both houses, and the only mode in which that will is spoken is in the act itself . . . .” Aldridge v.

Williams, 44 U.S. (3 How.) 9, 24 (1845) (emphasis added). Statements by legislators “do not have

the force of law, for the Constitution is quite explicit about the procedure that Congress must



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follow in legislating.” American Hosp. Ass’n v. NLRB, 499 U.S. 606, 615 (1991). For that reason,

“[i]n analyzing a statute, [the Court] begin[s] by examining the text . . . not by ‘psychoanalyzing

those who enacted it . . . .’” Carter v. United States, 530 U.S. 255, 271 (2000).

Senator Bramble’s motivations have no bearing on whether the law is constitutional. It is

only appropriate to look to the plain language of the law to determine its constitutionality.7 Any

negotiations that led to the passage of S.B. 54 are not law and are not subject to judicial

consideration. Moreover, even if the court determines that it is appropriate to consider legislative

history in this case, Senator Bramble’s individual thoughts and motivations do not constitute

legislative history. The Utah Legislature consists of 104 individual members and no single

member can speak to the intent of the whole. The actual legislative history, to the extent it is

relevant, is publically available.8

The court should quash the hearing subpoena and the deposition subpoena because the

testimony and documents that they seek are not relevant to Plaintiff’s claims.

C. Plaintiff Failed to Follow the Procedural Requirements of Rule 45 of the FederalRules of Civil Procedure.

The hearing subpoena and the deposition subpoena are procedurally deficient for two reasons.

First, Rule 45 of the Federal Rules of Civil Procedure states that “[i]f the subpoena commands the

production of documents, electronically stored information, or tangible things . . . before trial, then

before it is served on the person to whom it is directed, a notice and a copy of the subpoena must

7 “[The federal court] interpret[s] state laws according to state rules of statutory

construction” Ward v. Utah, 398 F.3d 1239, 1248 (10th Cir. 2005) (citation omitted)

(interpreting a Utah statute). A Utah federal court would “’therefore interpret [a Utah] statute based on its plain language.’” Id. (quoting O'Keefe v. Utah State Retirement Bd., 956 P.2d 279,

281 (Utah 1998)). “When the language of the statute is plain, other interpretive tools are not

needed. However, if the language is ambiguous, the court may look beyond the statute tolegislative history and public policy to ascertain the statute's intent.” Martinez v. Media- Paymaster Plus/Church of Jesus Christ of Latter-Day Saints, 2007 UT 42, ¶ 47, 164 P.3d 384

(citations omitted).8 See http://le.utah.gov/~2014/bills/static/SB0054.html (last visited April 8, 2015).


http://le.utah.gov/~2014/bills/static/SB0054.htmlhttp://le.utah.gov/~2014/bills/static/SB0054.html


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be served on each party.” Fed. R. Civ. P. 45(a)(4). Rules 45 also provides that a person shall have

14 days to respond to a subpoena. Fed. R. Civ. P. 45(d)(2).

Plaintiff has run afoul of both provisions. Counsel for Defendants confirmed that they did

not receive notice or a copy of either subpoena before the subpoenas were served on Senator

Bramble. Additionally, Plaintiff served the hearing subpoena on Senator Bramble seven days

before the date of compliance rather than the requisite 14 days.

Even setting aside the issues of privilege and relevance, which oblige the court to quash

the subpoenas, with such short notice, it is impossible for Senator Bramble to appear at the hearing

on April 10th. He will be out of town on a previously scheduled trip.

V. CONCLUSION

For the foregoing reasons, Senator Bramble respectfully requests the court quash the hearing

subpoena and the deposition subpoena.

Dated this 9th day of April, 2015.

OFFICE OF LEGISLATIVE RESERCH

AND GENERAL COUNSEL

/s/ Christine R. Gilbert

John L. FellowsRuthAnne Frost

Christine R. Gilbert

Attorneys for Non-Party Senator Curtis S.

Bramble



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CERTIFICATE OF SERVICE

I certify that on April 9th, 2015, the foregoing SENATOR CURTIS S. BRAMBLE’S

MOTION TO QUASH SUBPOENAS AND MEMORANDUM IN SUPPORT was

electronically filed with the Clerk of the Court using the CM/ECF system, which sent

notification to:

Marcus R. Mumford

Michelle Mumford

Mumford PC

405 South Main Street, Suite 975

Salt Lake City, Utah 84111Telephone: (801) 428-2000

Email: [email protected]@gmail.com

Attorneys for Plaintiff Utah Republican Party

Collin R. Simonsen

Gregory M. Simonsen

Fetzer Simonsen Booth & Jenkins PC50 West Broadway, Suite 1200

Salt Lake City, Utah 84101Telephone: (801) 328-0266Email: [email protected]

[email protected]

Attorneys for Intervenor Plaintiff Constitution Party of Utah

Parker Douglas

Utah Federal SolicitorDavid N. Wolf

Thomas D. Roberts

Kyle J. KaiserAssistant Utah Attorneys GeneralOffice of the Utah Attorney General

350 North State Street, Suite 230

P.O. Box 142320Salt Lake City, Utah 84114-2320

Telephone: (801) 538-9600

Email: [email protected]



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[email protected]@utah.gov

[email protected]

Attorneys for Defendants

/s/ Christine R. Gilbert



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Case 2:14-cv-00876-DN-DBP Document 97-1 Filed 04/09/15 Page 1 of 6


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Exhibit C



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John L. Fellows (4212)RuthAnne Frost (13214)

Christine R. Gilbert (13840)

OFFICE OF LEGISLATIVE RESEARCH AND GENERAL COUNSELW210 State Capitol Complex

Salt Lake City, Utah 84114

Telephone: (801) 538-1032

Facsimile: (801) 538-1712Email: [email protected]

[email protected]

[email protected]

Attorneys for Non-Party Senator Curtis S. Bramble

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH

CENTRAL DIVISION

UTAH REPUBLICAN PARTY,

Plaintiff,

CONSTITUTION PARTY OF UTAH, a

registered political party of Utah,

Plaintiff and Intervenor,

vs.

GARY R. HERBERT, in his official capacityas Governor of Utah, and SPENCER J. COX,

in his official capacity as Lieutenant Governor

of Utah,

Defendants.

DECLARATION OF SENATOR CURTIS S.

BRAMBLE

Case No.: 2:14-cv-00876-DN

Chief Judge David Nuffer

Magistrate Judge Dustin B. Pead



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I Curtis S. Bramble, declare and state as follows:

1. I am over 18 years of age and competent to testify to the following matters.

2. I am a member of the Utah Senate, having first been elected as a state senator in 2000. I have

served as a state senator continuously since January 2001, representing District 16, covering

part of Utah County and part of Wasatch County.

3. I was the legislative sponsor of S.B. 54, Elections Amendments, passed during the 2014

General Session of the Legislature. I understand that this bill and communications related to

this bill are the subject of the present subpoenas.

4. On April 3, 2015, I was served with a subpoena via John Fellows, General Counsel to the Utah

Legislature. The subpoena was issued by attorneys for the plaintiff in this case. The subpoena

commands me to provide certain documents relating to S.B. 54 and to appear to testify at a

deposition on April 16, 2015, in Salt Lake City.

5.

Also on April 3, 2015, I was served with a subpoena via John Fellows, General Counsel to the

Utah Legislature, by attorneys for the plaintiff in this case, commanding me to provide certain

documents and appear at a hearing in federal district court in Salt Lake City on April 10, 2015.

6. All the knowledge I presently have that is responsive to the subpoenas is knowledge I acquired

in my capacity as a legislator while performing legislative functions, including preparing,

negotiating, and evaluating proposed legislation.

7. All the documents I presently have that are responsive to the subpoenas were produced or

acquired exclusively in my capacity as a legislator while performing legislative functions,

including preparing, negotiating, and evaluating proposed legislation.



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8. If called to testify concerning S.B. 54, my testimony would convey information acquired

exclusively in my capacity as a legislator and as the legislative sponsor of the bill.

9. If called to testify concerning any communication I had with any individual associated or

affiliated with the Count My Vote Initiative regarding that initiative, my testimony would

convey information acquired exclusively in my capacity as a legislator familiarizing myself

with an issue in preparation to sponsor or vote on legislation.

10. It is my understanding that minutes of public meetings, tape recordings, and video recordings

relating to S.B. 54 are available online at le.utah.gov, and that they are public documents.

11. I am unavailable to attend the hearing on April 10, 2015, as I am leaving town the day before.

I declare under penalty of perjury that the foregoing is true and correct. Executed on

this 9th day of April, 2015.

/s/ Curtis S. Bramble

Curtis S. Bramble



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sen. bramble motion to quash

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