Gary W., Etc., et al., Plaintiffs-appellees, v. the State of Louisiana, Department of Health and Humanresources, Defendant- Appellant, 861 F.2d 1366 (5th Cir. 1987)

A magistrate refused to allow the state to depose the special master who presided over the remedial phase of a class action. The district court sustained the magistrate's ruling, and the state appeals. Finding that the special master was not subject to being deposed, we affirm.Background

The rights of mentally retarded, emotionally disturbed, and other children placed in out-of-state institutions were made the subject of a class action against the State of Louisiana. In Gary W. v. Louisiana, 437 F. Supp. 1209 (E.D. La. 1976), the court issued an order protecting these children. In September 1978, the district court appointed a special master to ensure compliance with the protective order during the remedial phase. We affirmed that appointment, Gary W. v. Louisiana, 601 F.2d 240 (5th Cir. 1979), observing that the special master's assigned functions as fact finder, monitor, and hearing officer were clearly detailed in the court's order of reference and were consistent with Rule 53 of the Federal Rules of Civil Procedure, which governs the appointment of masters.¹ 

Dr. Brenda Lyles was appointed special master on January 1, 1987. On August 25, 1987 she issued a formal recommendation concerning the abuse and neglect of Gary W. classmembers. The following week the office of special master terminated and Dr. Lyles was appointed director of an independent monitoring unit.² 

The state objected to Dr. Lyles' recommendations; the classmembers urged their adoption. In accordance with Rule 53³  and the district court's order of reference,⁴  a hearing was scheduled before a magistrate to determine whether Dr. Lyles' recommendations should be adopted, modified, rejected, or recommitted.

In December 1987 Dr. Lyles began the preparation of a report on incidents of abuse and neglect to be submitted to the magistrate at the hearing on the recommendations she had made as special master. Seeking to discover the substance of this report, the state noticed Dr. Lyles' deposition and issued a subpoena and a subpoena duces tecum to her. The classmembers moved to quash. The magistrate quashed the subpoenas because of Dr. Lyles' special relationship with the court. The district court affirmed that ruling. Dr. Lyles completed her report and, as ordered by the magistrate, distributed copies to the parties before the scheduled hearing. Following the hearing the magistrate ordered implementation of Dr. Lyles' formal recommendations. The state appeals the ruling on the motion to quash.

Analysis

As a general rule, any individual competent to be a witness may be compelled to testify as to facts within his or her knowledge that are relevant to a matter before the court. See Fed.R.Evid. 601, 602; see also Blair v. United States, 250 U.S. 273, 39 S. Ct. 468, 63 L. Ed. 979 (1919); Standard Packaging Corp. v. Curwood, Inc., 365 F. Supp. 134 (N.D. Ill. 1973). There are exceptions to this rule; for example, " [t]he judge presiding at [a] trial may not testify in that trial as a witness." Fed.R.Evid. 605. In addition, the courts have recognized an exemption from compulsory testimony when necessary "to protect the integrity and individual responsibility of governmental officials whose duties involve the exercise of judicial and quasi-judicial authority." Curwood, 365 F. Supp. at 135.

The Supreme Court addressed this principle, referred to as the "mental processes rule," in United States v. Morgan, 313 U.S. 409, 61 S. Ct. 999, 85 L. Ed. 1429 (1941). In Morgan, the Secretary of Agriculture issued an order setting maximum rates to be charged by market agencies for stockyard services. When the market agencies sued to set aside the Secretary's order, the district court authorized the deposition and trial testimony of the Secretary. Noting that the Secretary should not have been subjected to such examinations, the Supreme Court stated:

[The Secretary's] testimony shows that he dealt with the enormous record in a manner not unlike the practice of judges in similar situations, and that he held various conferences with the examiner who heard the evidence. Much was made of his disregard of a memorandum from one of his officials who, on reading the proposed order, urged considerations favorable to the market agencies. But the short of the business is that the Secretary should never have been subjected to this examination. The proceeding before the Secretary "has a quality resembling that of a judicial proceeding." Such an examination of a judge would be destructive of judicial responsibility. We have explicitly held in this very litigation that "it was not the function of the court to probe the mental processes of the Secretary." Just as a judge cannot be subjected to such a scrutiny, so the integrity of the administrative process must be equally respected.

Morgan, 313 U.S. at 422, 61 S. Ct. at 1004 (citations omitted).

In Bank of Commerce of Laredo v. City National Bank of Laredo, 484 F.2d 284 (5th Cir. 1973), cert. denied, 416 U.S. 905, 94 S. Ct. 1609, 40 L. Ed. 2d 109 (1974), the plaintiff sought to set aside a national bank charter granted to a competitor by the Comptroller of the Currency. The district court refused to allow the plaintiff to depose or serve interrogatories on the Comptroller. In affirming, we concluded:

The preponderant weight of judicial precedent bars plaintiffs from deposing the Comptroller or requiring him to answer interrogatories. The Supreme Court recently affirmed this policy in Camp v. Pitts [411 U.S. 138, 93 S. Ct. 1241, 36 L. Ed. 2d 106 (1973) ], stating that "the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court."

484 F.2d at 287 (citations omitted).

Although Morgan and Laredo involved compelled testimony of agency officials, the mental processes rule has been applied to prevent the involuntary testimony of judicial and quasi-judicial officers. The Supreme Court noted same inferentially in Morgan, 313 U.S. at 422, 61 S. Ct. at 1004. In United States v. Dowdy, 440 F. Supp. 894 (W.D. Va. 1977), the trial court quashed a subpoena that would have required a judge to appear as a witness in the defendant's perjury prosecution. The court reasoned:

While a judge enjoys no special privilege from being subpoenaed as a witness, it is imperative when he is called to testify as to action taken in his judicial capacity, to carefully scrutinize the grounds set forth for requiring his testimony. Should a judge be vulnerable to subpoena as to the basis of every action taken by him, the judiciary would be open to "frivolous attacks upon its dignity and integrity, and ... interruption of its ordinary and proper functioning." [United States v.] Valenti, 120 F. Supp. 80 (D.N.J. 1954).... The Supreme Court recognized this need to prevent disruption of the judicial process in United States v. Morgan [313 U.S. 409, 61 S. Ct. 999, 85 L. Ed. 1429 (1940) ] ... Later, in Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S. Ct. 814, 28 L. Ed. 2d 136 (1971), the court indicated that such an examination of an administrative decision-maker would be permitted, where administrative findings existed, only with a strong showing of bad faith or improper behavior. Following this principle, courts have refused to issue subpoenas for oral testimony of the decision-makers as to the basis for their opinions absent extreme and extraordinary circumstances.

Dowdy, 440 F. Supp. at 896 (citations omitted); see also United States v. Abell, 552 F. Supp. 316, 325 n. 2 (D. Me. 1982) (judge); United States v. Cross, 516 F. Supp. 700, 707 (M.D. Ga. 1981) (judge), aff'd., 742 F.2d 1279 (11th Cir. 1984); Curwood, 365 F. Supp. at 136 (patent examiner).

Dr. Lyles was performing a quasi-judicial function when, as special master, she submitted her formal recommendation.⁵  See In Re Gilbert, 276 U.S. 6, 48 S. Ct. 210, 72 L. Ed. 441 (1928) (master assumed the duties and obligations of a judicial officer). An examination of her mental processes in making that recommendation would have been inappropriate and the magistrate and district court correctly prevented such.

The judgment of the district court is AFFIRMED.