texas response to motion to compel

8/2/2019 Texas Response to Motion to Compel

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

STATE OF TEXAS Case No. 1:12-cv-00128RMC-DST-RLW

Plaintiff,

vs.

ERIC H. HOLDER, JR., in his official

Capacity as Attorney General of

the United States

Defendant.

TEXAS RESPONSE TO MOTION TO COMPEL

The United States continues to suggest that a States claim of

evidentiary privilege can never prevail in a section 5 preclearance proceeding.

See Memorandum of Points and Authorities in Support of the Attorney

Generals Motion to Compel (Doc. 93.1) (DOJ Brief) at 2 (The intensely

fact-driven inquiry required under Section 5 and the gravity of the interests

at stake demand thorough consideration of all the available evidence.)

(emphasis added). But the Supreme Courts decision in Northwest Austin

Municipal Utility District No. One v. Holder, 129 S. Ct. 2504 (2009), requires

an approach that is far more solicitous of the States interest in preserving

the confidential communications of its elected officials. Requiring Texas to

obtain preclearance from the Attorney General or from a federal court

before it can implement a duly enacted law is already an affront to state

Case 1:12-cv-00128-RMC-DST-RLW Document 98 Filed 04/30/12 Page 1 of 26


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sovereigntyespecially when the Supreme Court has already held that

photo-identification requirements are constitutional and nondiscriminatory.

See Crawford v. Marion County Election Bd., 553 U.S. 181 (2008). A ruling

that conditions Texass request for preclearance on the disclosure of every

confidential communication related to SB 14 would push section 5 beyond

any conceivable post-Northwest Austin boundary on federal power. The

States objections are grounded in well-established evidentiary privileges, and

the Court should deny the motion to compel.

I. Texas Has Properly Asserted the Deliberative-Process Privilege.

Texas has asserted the deliberative-process privilege over 89

documents from the office of the Governor. The deliberative-process privilege

covers documents reflecting advisory opinions, recommendations and

deliberations comprising part of a process by which governmental decisions

and policies are formulated. Dept of Interior v. Klamath Water Users

Protective Assn, 532 U.S. 1, 8 (2001) (citation and internal quotation marks

omitted). As the Supreme Court has explained:

The deliberative process privilege rests on the obvious

realization that officials will not communicate candidly among

themselves if each remark is a potential item of discovery and

front page news, and its object is to enhance the quality of

agency decisions . . . by protecting open and frank discussion

among those who make them within the Government.

Id. at 8-9 (citation and internal quotation marks omitted).

DOJ does not deny that the disputed documents fall within the

description of the privilege inKlamath Water Users, nor does DOJ deny that



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these documents qualify as predecisional and deliberative under the

deliberative-process rulings of the D.C. Circuit. See DOJ Brief at 6; see also

In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997); Senate of Puerto Rico v.

U.S. Dept of Justice, 823 F.2d 574, 585 (D.C. Cir. 1987); cf. Declaration (Exh.

5). But DOJ asserts that the deliberative-process privilege does not apply if

the cause of action is directed at the governments intent. DOJ Brief at 7

(quoting Elkins v. District of Columbia, 250 F.R.D. 20, 27 (D.D.C. 2008)). On

this view, the deliberate-process privilege can never be invoked when a state

law is challenged on the ground that it was enacted with an unlawful

purpose. As DOJ sees matters, a litigants mere allegation of improper

purpose allows him to rummage through all of the state executives

confidential communications related to his decision to sign or veto the law.

DOJ notes that In re Subpoena Duces Tecum Served on the Office of the

Comptroller, 145 F.3d 1422 (D.C. Cir. 1998), states that the deliberative-

process privilege is not appropriately asserted . . . when a plaintiff's cause of

action turns on the government's intent, and contends that this ruling shuts

down any possible claim of deliberate-process privilege in section 5

preclearance proceedings. Id. at 1424. But In re Subpoena Duces Tecum does

not extend as far as DOJ claims.

First, the D.C. Circuit clarified its holding on petition for rehearing,

and insisted that the deliberative-process privilege may still be asserted

when a litigant challenges agency action as arbitrary and capricious under



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the APA. See In re Subpoena Duces Tecum Served on the Office of the

Comptroller, 156 F.3d 1279, 1280 (D.C. Cir. 1998). As the D.C. Circuit

explained:

When a party challenges agency action as arbitrary and

capricious the reasonableness of the agency's action is judged in

accordance with its stated reasons. Citizens to Preserve Overton

Park, Inc. v. Volpe, 410 U.S. 402 (1971). Agency deliberations

not part of the record are deemed immaterial. See Camp v.

Pitts, 411 U.S. 138 (1973); United States v. Morgan, 313 U.S.

409 (1941). That is because the actual subjective motivation of

agency decisionmakers is immaterial as a matter of lawunless

there is a showing of bad faith or improper behavior. See

Saratoga Dev. Corp. v. United States, 21 F.3d 445, 457-58 (D.C.

Cir. 1994); Overton Park, 401 U.S. at 420. (Where there is no

administrative record to review, the party challenging the

agency action may inquire into the decisionmaking process in

order to create such a record, but it does not necessarily follow

that the party can also probe subjective motivations.)

Whether or not under those circumstances it is accurate to refer

to the agency's decisionmaking process as collateral, it is clear

that the ordinary APA cause of action does not directly call into

question the agencys subjective intent. And our holding that

the deliberative process privilege is unavailable is limited tothose circumstances in which the cause of action is directed at the

agency's subjective motivation.

Id. at 127980. DOJ does not cite the D.C. Circuits opinion on petition for

rehearing, but it represents a significant qualification on the language that

DOJ quotes from the earlier opinion. Only when a cause of action is directed

at the subjective motivations of an agency will an assertion of deliberative-

process privilege be precluded.

But section 5 does not require a State to prove the subjective

motivation of the governor who signed the law. The States burden is to



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demonstrate only that the qualification, prerequisite, standard, practice, or

procedure neither has the purpose nor will have the effect of denying or

abridging the right to vote on account of race or color. 42 U.S.C. 1973c(a)

(emphasis added). Section 5 looks to the purpose of the lawnot to the

subjective motivations of the individual legislators who voted for the law or

the governor who signed it. And the purpose of the law is to be determined

by publicly available evidence (such as committee hearings and floor debate)

indicating what the statute is designed to accomplish. A Title VII

employment-discrimination suit brought against a government agency is a

cause of action directed at the subjective motivations of government actors; a

section 5 preclearance proceeding is not. Otherwise a State would be unable

to carry its burden of proof under section 5 without demonstrating every

single legislators personal reasons for supporting the law. And DOJ would

be unable to administratively preclear any States change in voting laws

without demanding this type of thought-process evidence from all members of

the legislature, as well as the governor who signed the law. Yet DOJ

routinely preclears changes in voting laws without demanding evidence of the

mental states of public officials who voted for or signed off on the new law.

Second, even if this Court believed that the opinions in In re Subpoena

Duces Tecum might be construed broadly to block Texas from asserting the

deliberative-process privilege in this case, the Supreme Courts opinion in

Northwest Austin precludes such a construction of these D.C. Circuit rulings.



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Northwest Austin recognized that section 5 imposes substantial federalism

costs and expressed serious misgivings about the constitutionality of 5.

129 S.Ct. at 2511. But rather than invalidate section 5 on its face, the

Northwest Austin Court instructed the lower federal courts to interpret and

apply the section 5 preclearance regime in a manner that mitigates its

constitutionally questionable intrusions into state sovereigntyeven if that

requires courts to bend the statutory language of section 5. Id. at 2514.

It cannot be denied that a holding that renders the deliberative-process

privilege categorically inapplicable to section 5 preclearance proceedings will

aggravate section 5s intrusions on state prerogatives. It is bad enough that

Texas has been forbidden to implement SB 14 for almost a yeareven though

SB 14 is clearly constitutional under the Supreme Courts ruling in Crawford

v. Marion County Election Board, 553 U.S. 181 (2008), and even though no

court has found that SB 14 conflicts with any provision of federal law or is

likely to violate federal law. It is far worse for Texas to be told that it cannot

have SB 14 considered for preclearance unless the governors office discloses

every confidential communication related to that lawcommunications that

would ordinarily be shielded from disclosure in litigation under the

deliberative-process privilege. Throughout its brief, DOJ expresses dismay at

the notion that a preclearance decision would rest solely on the publicly

available evidence of a statutes purpose. See, e.g., DOJ Brief at 5. But

courts typically resolve unconstitutional purpose challenges to state



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legislation by relying exclusively on the public record without demanding

that legislators or executive-branch officials disclose internal communications

or memoranda. See, e.g., Minnesota v. Clover Leaf Creamery Co., 449 U.S.

456, 471 n.15 (1981); Loving v. Virginia, 388 U.S. 1, 11 (1967), Hunter v.

Underwood, 471 U.S. 222 (1985); Weinberger v. Wiesenfeld, 420 U.S. 636

(1975); Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520,

534 (1993); Larson v. Valente, 456 U.S. 228, 25455 (1982); Edwards v.

Aguillard, 482 U.S. 578 (1987); McCreary County v. ACLU of Kentucky, 545

U.S. 844 (2005). And this is the only way that section 5s preclearance regime

can be saved from a declaration of unconstitutionality. It cannot be that the

disclosures of confidential communications in section 5 proceedings extend

beyond the disclosures required in conventional cases, in which a plaintiff

sues and alleges that a law was enacted with an unconstitutional motivation

or purpose.

DOJ also suggests that if the deliberative-process privilege applies in

this case, it should yield to the federal governments showing of need. See

DOJ Brief at 6, 9; see also In re Sealed Case, 121 F.3d at 737 (noting that the

deliberative-process privilege is a qualified privilege that can be overcome

by a sufficient showing of need.). DOJs analysis on this point is cursory; it

offers only a conclusory assertion that the qualified privilege would yield to

the documents critical relevance, the absence of other candid evidence that

the State is willing to produce without protracted litigation, the seriousness



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of the instant litigation, and the role of the federal government as statutory

defendant. See DOJ Brief at 9. DOJ does not offer any theory that

distinguishes a sufficient showing of need from an insufficient one, and its

reference to the seriousness of the instant litigation implies that it

envisions no scenario in which a State could successfully assert the

deliberative-process privilege in section 5 preclearance proceedings. See DOJ

Brief at 9; see alsoid. at 2 (The intensely fact-driven inquiry required under

Section 5 and the gravity of the interests at stake demand thorough

consideration of all the available evidence.) (citation and internal quotation

marks omitted). But this Court has already rejected DOJs suggestion that

every section 5 preclearance proceeding qualifies as an extraordinary

instance that categorically overrides state legislative privilege. See Order

(Doc. 84) at 23. It should similarly reject DOJs efforts to eliminate the

deliberate-process privilege from all section 5 preclearance proceedings.

II. Northwest Austin Compels This Court to Construe State

Legislative Privilege Broadly in Section 5 Preclearance Proceedings.

As this Court recognized in its Order of April 20, 2012, the proper

scope of the state legislative privilege remain[s] somewhat uncertain.

Order (Doc. 84) at 2. Given this uncertainty, it is prudent for the State to

preserve the privilege by appropriately asserting itand if this Court

compels discovery the State will proceed accordingly. But if the State

voluntarily answers these discovery requests, then the defendants will claim

that the State waived the privilege. In addition, the Supreme Courts opinion



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in Northwest Austin requires courts to minimize the intrusions on state

sovereignty caused by section 5s constitutionally dubious preclearance

regime. This requires courts to apply the state legislative privilege as

broadly as possible in section 5 preclearance proceedings. States should not

have to disclose their legislators confidential communications as a condition

for courts to consider preclearing their laws.

DOJ contends that the state legislative privilege should not extend to

communications between a legislator and state executive-branch officials, but

DOJ overstates the extent to which existing judicial authority supports that

proposition. DOJ, for example, cites Hutchinson v. Proxmire, 443 U.S. 111

(1979), to support its contention that the state legislative privilege cannot

protect documents held by state executive agencies. But Hutchison involves

only the Speech and Debate Clauses immunity from prosecution or civil

liability, rather than the evidentiary privilege associated with the Speech and

Debate Clause. Hutchinson says that nothing in history or in the explicit

language of the Clause suggests any intention to create an absolute privilege

from liability or suit for defamatory statements made outside the Chamber.

Id. at 127 (emphasis added). DOJ quotes the Supreme Court out of context

when it asserts that the Speech or Debate privilege does not extend to

statements outside the Chamber. DOJ Brief at 10 (quoting Hutchinson v.

Proxmire, 443 U.S. 111, 127 (1979)). The Hutchison opinion was talking

about liability from suit for statements made outside the chamber; it has



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nothing to say about the discoverability of documents held outside the

chamber.

Indeed, none of the cases that DOJ cites explicitly considers and rejects

the notion that confidential communications between a legislator and agency

officials related to pending legislation are privileged from discovery. DOJ

notes that it is unaware of any cases in which the Speech or Debate privilege

or a state legislative privilege has been invoked to protect documents outside

the possession of a legislative official, let alone upheld. DOJ Brief at 12.

But neither is there any case (of which we are aware) that holds the opposite,

and given this absence of controlling authority the constitutional-avoidance

mandate ofNorthwest Austin comes into play. Declaring that the States can

win judicial preclearance of a law only if they disclose every confidential

communication between a state legislator and agency officials related to that

law will aggravate the intrusions on state sovereignty caused by a section 5

regime that already pushes the constitutional boundaries of federal power.

After Northwest Austin, courts must take every step to alleviate these

constitutionally dubious burdens on States that fall within section 5s

outdated coverage formula.

Even if this Court is unwilling to extend the rubric of state legislative

privilege to cover these confidential communications between legislators and

agency officials, or even if the affected legislator is willing to waive the

privilege, this Court should nevertheless block DOJs efforts to obtain these



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communications under Rule 26(b)(2)(C)(iii). The protections from unduly

burdensome discovery in Rule 26(b)(2)(C) do not require a finding of

evidentiary privilege, but allow courts to limit discovery whenever the

burden or expense of the proposed discovery outweighs its likely benefit.

FED. R. CIV. P. 26(b)(2)(C)(iii). Here, the burdens imposed on Texas are of

constitutional significance, as they force Texas to disclose confidential

communications as a condition for allowing one of its duly enacted laws to go

into effect. DOJ describes the States interest in avoiding these compelled

disclosures as a weak comity interest, but that dismissive characterization

cannot be squared with Northwest Austin (a decision that DOJ nowhere cites

or acknowledges in its brief). This Court cannot so blithely disregard

Northwest Austin in weighing the competing interests in these discovery

disputes.

III. The Communications Between the Texas Legislative Council andthe Individual Legislators Are Subject to the Attorney-Client

Privilege.

The Texas Legislative Council is a non-partisan agency of the

legislative branch of state government. TEX.GOVT CODE 323.001(a). Its

membership comprises the Lieutenant Governor, the Speaker of the State

House of Representatives, the Chair of the State House Administration

Committee, six senators and five House members. Id. 323.001(b). Its

statutory duties include assist[ing] the legislature in drafting proposed

legislation. Id. 323.006(a)(7). The Council also may perform other



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services or functions for either house of the legislature or other legislative

agencies upon agreement with the house or agency. Id. 323.006(b).

The Texas Legislative Council employs approximately 50 attorneys.

See Declaration of Jeff Archer (Exh. 1) (Archer Declaration) 3. By statute,

[c]ommunications . . . between a member of the legislature or the lieutenant

governor or an assistant or employee of the council that relate to a request by

the official for information, advice, or opinions from an assistant or employee

of the council are confidential. TEX.GOVT CODE 323.017 (emphasis added).

In addition [i]nformation, advice, and opinions given privately by an

assistant or employee of the council to a member of the legislature, or the

lieutenant governor, acting in the persons official capacity, are confidential.

Id. (emphasis added). Council employees have no authority to waive the

confidentiality protections prescribed by Texas statute. But the member or

lieutenant governor may choose to disclose all or a part of the

communications, information, advice, or opinions to which this section

applies, and such a disclosure does not violate the law of this state. Id.

The Council relies on confidentiality to discharge its statutory

responsibilities as a department of the Texas Legislature. See Archer

Declaration 7; Declaration of Senator Tommy Williams (Exh. 2) (Williams

Declaration) 5. Legislators will not seek its assistance if they believe

Council communications could conceivably become public in court

proceedings or through Public Information Act requests. Williams



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Declaration 5. This need for confidentiality, when combined with

Northwest Austins admonition to minimize section 5s intrusions on state

sovereignty, should lead this Court to recognize an evidentiary privilege for

these confidential communications under FED.R.EVID.501.

DOJ denies that any privilege can attach to the attorney-client

communications involving legislators and Council employees, and specifically

disclaims the possibility of an attorney-client relationship between Council

attorneys and legislators. But an attorney-client privilege will apply when:

(1) the asserted holder of the privilege is or sought to become a

client; (2) the person to whom the communication was made (a)

is a member of the bar of a court or his subordinate and (b) in

connection with this communication is acting as a lawyer; (3) the

communication relates to a fact of which the attorney was

informed (a) by his client (b) without the presence of strangers

(c) for the purpose of securing primarily either (i) an opinion of

law or (ii) legal services or (iii) assistance in some legal

proceeding, and (d) not for the purpose of committing a crime or

tort; and (4) the privilege has been (a) claimed and (b) not

waived by the client.

Cobell v. Norton, 226 F.R.D. 67, 87 (D.D.C. 2005) (quoting Alexander v. FBI,

193 F.R.D. 1, 4 (D.D.C. 2000)); Alexander v. FBI, 192 F.R.D. 42, 45 n. 2

(D.D.C. 2000);Alexander v. FBI, 186 F.R.D. 154, 161 (D.D.C. 1999) (citing In

re Sealed Case, 737 F.2d 94, 98-99 (D.C. Cir. 1984))). The relationship of

client and lawyer arises when: (1) a person manifests to a lawyer the person's

intent that the lawyer provide legal services for the person; and . . . (a) the

lawyer manifests to the person consent to do so . . . . RESTATEMENT (THIRD)

OF THE LAW GOVERNING LAWYERS 14 & cmt. c (2000) (cited in discussion by



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Goldstein v. SEC, 451 F.3d 873, 878 (D.C. Cir. 2006)). The clients subjective

beliefs play an integral role in ascertaining whether an attorney-client

relationship exists. See, e.g., In re Lieber, 442 A.2d 153, 156 (D.C. 1982).

Legislators who seek assistance from Legislative Council attorneys in

drafting legislation manifest the intent that Council attorneys provide legal

services. See, e.g., Williams Declaration 3.1 Legislative Council attorneys

are not mere scriveners: Legislative drafting is a lawyers job, not because

lawyers have any exceptional facility with words but because mastery of

existing law is called for at every stage in the performance of a legislative

drafting assignment. Harry W. Jones, Bill-Drafting Services in Congress

and the State Legislatures, 65 HARV. L. REV. 441, 441-42 (1952). Drafting

legal opinions and legislation parallels the drafting of any legal document

and unquestionably represents the practice of law. See TEX. GOVT CODE

81.101(a) (practice of law means a service including the giving of

advice or the rendering of any service requiring the use of legal skill or

knowledge the legal effect of which under the facts and conclusions

involved must be carefully determined.); cf.In re Devaney, 870 A.2d 53, 57

(D.C. 2005) (drafting codicil is a legal service); In re Amalgamated Dev. Co.,

375 A.2d 494, 499 (D.C. 1977) (drafting patent application is a legal service).

1 See also Declaration of Representative Dennis Bonnen (Exh. 3); Declaration of

Representative David Simpson (Exh. 4); Declaration of Representative Patricia Harless (Exh.

6). The State of Texas is still awaiting declarations from several individual legislators. If

requested by the Court, Texas will supplement the record with additional declarations to

establish the privilege as to each legislator.



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By establishing a legal division within the Legislative Council to draft

legislation, Texas has followed the example of many states and the federal

government. See Jones, Bill-Drafting Services, supra, at 451 (The present

writers preference is for a separate legislative counsels office, directly

responsible to the legislature, like the congressional office and the offices in

California, Massachusetts, New Jersey, New York and a few other states.).

The legal character of the work that these offices perform is beyond serious

dispute. See, e.g., Reed Dickerson, Professionalizing Legislative Drafting: A

Realistic Goal?, 60 A.B.A. J. 562, 563-64 (1974); Charles B. Nutting, The

Professional Responsibility of Draftsmen, 47 A.B.A. J. 1014, 1014 (1961). For

instance, the Office of Legislative Counsel for the United States House of

Representatives asserts that its attorneys provide drafting and other legal

services, and all communications with the Office are confidential and

subject to the attorney-client relationship.2

It is no accident that legislators

direct their bill drafting requests to Council attorneys rather than non-

attorney Council employees. See, e.g., Williams Declaration 3. The

legislators making these requests seek legal advice. See id.; Archer

Declaration 3. And by performing the drafting assignments that legislators

request of them, Council attorneys manifest consent to provide the requested

legal services. SeeArcher Declaration 3; Williams Declaration 3.

2 Office of Legislative Counsel for the United States House of Representatives, About Us,

http://www.house.gov/legcoun/about.shtml (last visited Apr. 30, 2012).



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The protections available under Texas statute also inform the

subjective beliefs of individual legislators regarding confidentiality. Texas

legislators believe that their communications with Legislative Council will

never become public. Williams Declaration 3. This belief is reasonable

because that protection is explicit in the Texas Government Code. TEX.GOVT

CODE 323.017 speaks to whether Texas legislators make their

communications confidentiallythat is, without the presence of strangers.

Cobell, 226 F.R.D. at 87; see also Convertino v. U.S. Dept of Justice, 674 F.

Supp. 2d 97, 110 (D.D.C. 2009) (In order for documents sent through e-mail

to be protected by the attorney-client privilege there must be a subjective

expectation of confidentiality that is found to be objectively reasonable.).

The relationship between legislators and Council attorneys is one in

which the legislators [are] or s[eek] to become [clients] of Legislative

Council attorneys. Cf. Cobell, 226 F.R.D. at 87. This is so because legislators

and Council attorneys manifest an intent to create an attorney-client

relationship through their interactions. See RESTATEMENT (THIRD) OF THE

LAW GOVERNING LAWYERS 14 & cmt. c (2000); Archer Declaration 5;

Declaration of Senator Tommy Williams 3. But the communications

between legislators and Council attorneys also satisfy the remaining

elements of the attorney-client privilege. Council attorneys are members of

the bar. Archer Declaration 3. They act as lawyers in connection with

many of the communications at issue (bill files and legal opinions). Archer



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Declaration 9. The attorney-client communications relate to facts

communicated to the Council attorneys by legislators for the purpose of

securing primarily an opinion of law or legal services. Id. Legislators do not

make the communications for the purpose of committing a crime or tort.

Archer Declaration 6; Williams Declaration 4. They have also claimed all

applicable privileges and have not waived them. Archer Declaration 10;

Williams Declaration 2, 8.

Communications to a legislative agency, such as the Council, also

constitute quintessential legislative acts protected by the legislative privilege.

See Gravel v. United States, 408 U.S. 606, 615-16 (1972); Jewish War

Veterans v. Gates, 506 F. Supp. 2d 30, 53 (D.D.C. 2007) (What, then, are the

legislative acts protected by the Speech or Debate Clause? [It] at the least

includes delivering an opinion, uttering a speech, or haranguing in debate;

proposing legislation; voting on legislation; making, publishing, presenting,

and using legislative reports; authorizing investigations and issuing

subpoenas; and holding hearings and introducing material at Committee

hearings. . . . [O]ther acts . . . are indisputably legislative in nature, such as

the actual drafting of legislation or negotiating with other Members over it.)

(internal citations omitted); Archer Declaration 4; Williams Declaration

7. Attorney involvement is not necessary for the legislative privilege to

attach. See Gravel, 408 U.S. at 616-17 (1972) (privilege extends to aides).



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The Legislative Council exists for no reason other than to assist

legislators in discharging the duties of their elected offices. Archer

Declaration 3, 6. Legislative Council communications made for the

purpose of advancing legislative acts are therefore protected from disclosure

by the legislative privilege. This is true for all documents reflecting

communications between legislators and Legislative Council employees even

if those employees are not attorneys. Archer Declaration 4.

The bill files that make up the bulk of Council documents responsive to

DOJs discovery requests result directly from the confidences in the attorney-

client and legislative relationships. Without these confidences, the bill files

would not exist, and legislators would rely solely on their own staff to draft

legislation. After Northwest Austin, this Court cannot condition the States

request for preclearance on a discovery ruling that disrupts the trusted

relationship between state legislators and the Texas Legislative Council.

DOJ relies heavily on a vacated district-court panel opinion from the

Texas redistricting litigation, which rejected a claim of an attorney-client

relationship between state legislators and the Texas Legislative Council. See

Texas v. United States, 279 F.R.D. 24 (D.D.C. 2012), vacated, No. 1:11-cv-

01303 (Doc. 136) (D.D.C. Jan. 6. 2012). District-court panel decisions do not

represent binding precedent in this court, so the previous panels analysis

should be followed only to the extent it is persuasive. Here is the relevant

discussion from the earlier panel opinion:



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Texas declares that the Texas Legislative Council has an

attorney-client relationship with all members of the

Legislature. Texas Resp. at 8. It seeks to protect three

memoranda prepared by Attorney David Hanna which

contain[ed] legal analysis of the proposed redistricting plans

which clearly reflect material, mental impressions, opinion,conclusions, strategy, and analyses developed in anticipation of

possible legal disputes. Id. at 7. The argument reflects what

appears to be customary and habitual thinking that assumes a

legal privilege between the Legislature and the legal division of

the Council. The Court can find none. The Texas Government

Code expresses no such relationship or expectation. Texas does

not explain why it agrees that the three map-drawers could not

have an attorney-client relationship with the entire Legislature

but the lawyers at the Texas Legislative Council do have an

attorney-client relationship with every one of the individual

members of the State House and Senate. Without the threshold

evidence of an attorney-client relationship, In re Sealed Case,

737 F.2d at 9899, there can be no privilege. Texas offers no

evidence to satisfy the elements of an attorney-client

relationship between the Council and the Legislature.

279 F.R.D. at 34 (footnote omitted). In a footnote, the Court added the

following remarks:

While Texas argues that the statute provides strong evidencethat the legislators believed their communications with [the

Texas Legislative Council] to be protected by the attorney-client

and legislative privileges, Texas Resp. at 89, the statute says

no such thing and the habits of the years do not transform

confidentiality to avoid public inquiry into attorney-client

privilege when demanded as part of litigation.

Id. at 35 n.14.

We respectfully submit that these excerpts from the vacated panel

opinion from the Texas redistricting litigation are not persuasive on this

point, and even if they were persuasive, they would not control here. First,

the panel opinions analysis is conclusory; it never explains why the affidavits



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that Texas offered failed to provide threshold evidence of an attorney-client

relationship. Although the panel opinion notes that the Texas Government

Code expresses no such [privileged] relationship or expectation, the

existence or non-existence of an evidentiary privilege under state law does

not control whether a privilege should be recognized as a matter of federal

common law under Fed. R. Evid. 501. Id. at 34. Second, the panel opinion

does not consider or discuss whether Northwest Austin requires an approach

that is more solicitous of the States interest in preserving the confidentiality

of communications between the legislators. Finally, the States perceived

failure to provide threshold evidence of an attorney-client relationship in

the redistricting litigation does not preclude the State from attempting to

make the necessary showing in this litigation, and the State has done so by

its thorough description of the relationship between the state legislators and

the Texas Legislative Council.

CONCLUSION

The motion to compel should be denied.



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Respectfully submitted.

GREG ABBOTT

Attorney General of Texas

DANIEL T. HODGE

First Assistant Attorney General

/s/ Jonathan F. Mitchell

JONATHAN F. MITCHELL

Solicitor General

ADAM W. ASTON

ARTHUR C. DANDREA

Assistant Solicitors General

209 West 14th Street

P.O. Box 12548

Austin, Texas 70711-2548

(512) 936-1695



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CERTIFICATE OF SERVICE

I certify that on April 30, 2012, I served the following via CM/ECF or

email on the following counsel of record:

Elizabeth Stewart Westfall, David J. Freeman, Bruce I. GearU.S. DEPARTMENT OF JUSTICE

Civil Rights Division, Voting Section

950 Pennsylvania Avenue, NW

NWB-Room 7202

Washington, DC 20530

(202) 305-7766/Fax: (202) 307-3961

Email: [email protected]



Jennifer Lynn Maranzano

U.S. DEPARTMENT OF JUSTICE

950 Pennsylvania Avenue, NW


(202) 305-0185

Email:[email protected]

Counsel for the United States

Chad W. Dunn

BRAZIL & DUNN

4201 FM 1960 West, Suite 530Houston, TX 77068

(281) 580-6310


J. GERALD HEBERT

191 Somerville Street, #405

Alexandria, VA 22304

Telephone: 703-628-4673


Counsel for Eric Kennie, Anna Burns, Michael Montez, Penny Pope, Marc

Veasy, Jane Hamilton, David De La Fuente, Lorraine Birabil, Daniel Clayton,and Sergio Deleon

JOHN K. TANNER3743 Military Road, NW


202-503-7696




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23

MOFFATT LAUGHLIN McDONALD

NANCY GBANA ABUDU

KATIE OCONNOR

American Civil Liberties Union Foundation, Inc.

230 Peachtree Street, NWSuite 1440

Atlanta, Georgia 30303-1227

(404) 523-2721/(404) 653-0331 (fax)




LISA GRAYBILL

REBECCA ROBERTSON

American Civil Liberties Union Foundation of Texas

1500 McGowan StreetHouston, Texas 77004

(713) 942-8146



PENDA HAIR

KUMIKI GIBSON

Advancement Project

1220 L Street, NW, Suite 850

Washington, DC 20005(202) 728-9557



Counsel for Texas Legislative Black Caucus, the League of Women Voters of

Texas, the Justice Seekers, Reverend Peter Johnson, Reverend Ronald Wright

and Donald Wright

Mark A. Posner

LAWYERS' COMMITTEE FOR CIVIL RIGHTS

1401 New York Avenue, NW, Suite 400

Washington, DC 20005(202) 307-1388


Ezra D. Rosenberg Pro Hac Vice

Michelle Hart Yeary

DECHERT LLP

902 Carnegie Center, Suite 500



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Princeton, NJ 08540

(609) 955-3200/Fax: (609) 955-3259



Ian Vandewalker Pro Hac ViceMyrna Perez

Wendy Weiser

THE BRENNAN CENTER FOR JUSTICE AT NYU LAW SCHOOL

161 Avenue of the Americas, Floor 12

New York, NY 10013-1205

Tel: (646) 292-8362

Fax: (212) 463-7308




Myrna Perez Pro Hac Vice

Ian Vandewalker Pro Hac Vice

THE BRENNAN CENTER FOR JUSTICE AT

NYU LAW SCHOOL

161 Avenue of the Americas, Floor 12

New York, NY 10013-1205

(646) 292-8329 / (212)463-7308 (fax)



Victor L. Goode

NAACP National Headquarters

4805 Mt. Hope Dr.

Baltimore, Maryland 21215-3297

(410) 580-5120 (phone)


Robert S. Notzon

The Law Office of Robert Notzon

1507NuecesSt.

Austin, Texas 78701(512) 474.7563 (phone)


Jose Garza

Law Office of Jose Garza

7414 Robin Rest Dr.



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San Antonio, Texas 98209

(210) 392-2856 (phone)


Counsel for Texas State Conference of NAACP Branches, Mexican American

Legislative Caucus of the Texas House

of Representatives

Ryan Haygood Pro Hac Vice

Natasha M. Korgaonkar

Leah C. Aden

Debo P. Adegbile

Dale E. Ho

NAACP Legal Defense and

Educational Fund, Inc.

99 Hudson Street, Suite 1600

New York, New York 10013

(212) 965-2200 / (212) 226-7592 (fax)







FRIED, FRANK, HARRIS, SHRIVER & JACOBSON LLP

Douglas H. FlaumMichael B. de Leeuw

One New York Plaza

New York, New York 10004-1980

(212) 859-8000

Email: [email protected]: [email protected]


Counsel for Texas League of Young Voters Education Fund, Imani Clark,

KiEssence Culbreath, Demariano Hill, Felicia Johnson, Dominique Monday,

and Brianna Williams

Nina Perales

MEXICAN AMERICAN LEGAL DEFENSE & EDUCATIONAL FUND, INC.

110 Broadway, Suite 300

San Antonio, TX 78205

(210) 224-5476 / 210-224-5382 (fax)




26/26

Counsel for Mi Familia Vota Education Fund, Southwest Voter Registration

Education Project, Nicole Rodriguez, Victoria Rodriguez

/s/ Jonathan F. MitchellJONATHAN F. MITCHELL

Solicitor General of Texas


texas response to motion to compel

Documents