In Re: North Dakota Legislative Assembly v., No. 23-1600 (8th Cir. 2023)
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Several current or former members of the North Dakota Legislative Assembly and a legislative aide petitioned for writ of mandamus, seeking relief from orders of the district court directing them to comply with subpoenas for documents or testimony in a civil case brought against the State of North Dakota.
The Eighth Circuit denied the writ and directed the district court to quash the subpoenas for petitioner Devlin to testify and for petitioners Holmberg, Wardner, Poolman, Nathe, Devlin, and Ness to produce documents and other information. The court concluded that the district court’s conclusion to the contrary was based on a mistaken conception of the legislative privilege. In its order enforcing the document subpoenas, the district court reasoned that legislative privilege did not apply because the subpoena sought communications between legislators and third parties. The legislative privilege, however, is not limited to a bar on the inquiry into communications among legislators or between legislators and their aides. The privilege is not designed merely to protect the confidentiality of deliberations within a legislative body; it protects the functioning of the legislature more broadly. Communications with constituents, advocacy groups, and others outside the legislature are a legitimate aspect of legislative activity. The use of compulsory evidentiary processes against legislators and their aides to gather evidence about this legislative activity is thus barred by the legislative privilege.
Court Description: [Colloton, Author, with Benton and Kelly, Circuit Judges] Petition for a Writ of Mandamus. Several current or former members of the North Dakota Legislative Assembly and a legislative aide seek relief from district court orders directing them to comply with subpoenas for documents or testimony in a civil case brought against the state alleging violations of Section 2 of the Voting Rights Act. Petitioners assert a claim of legislative privilege and the conditions for assertion of the privilege are plainly satisfied here; the writ is granted in part, and the district court is directed to quash the subpoenas for petitioner Devlin to testify and for petitioners Holmberg, Wardner, Poolman, Nathe, Devlin, and Ness to produce documents and other information; the petition is denied as to the subpoena for petitioner Jones to produce documents as the district court enforced that subpoena on the alternative ground that Jones waived his legislative privilege by testifying at a preliminary injunction hearing in another case concerning redistricting. Judge Kelly, concurring in part and dissenting in part. [ June 05, 2023 ]
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