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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION UNITED STATES OF AMERICA Plaintiff V. DONALD W. HILL, et al., Defendants. § § § § § § § §
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CITY OF DALLAS’ MEMORANDUM OF POINTS AND AUTHORITIES RESPECTING ATTORNEY-CLIENT AND LEGISLATIVE DELIBERATION PRIVILEGES
OFFICE OF THE CITY ATTORNEY CITY OF DALLAS, TEXAS PETER B. HASKEL Assistant City Attorney Texas Bar No. 09198900 1500 Marilla Street, 7BN Dallas, Texas 75201 Telephone: 214-670-3519 Facsimile: 214-670-0622 [email protected] ATTORNEYS FOR THE CITY OF DALLAS, TEXAS
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TABLE OF CONTENTS
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BACKGROUND .............................................................................................................................2
ARGUMENT 1................................................................................................................................2 The City is entitled to invoke the attorney client privilege for communications between its officials and employees, on the one part, and attorneys for the City, on the other part, to the same extent that business corporations could do so.
ARGUMENT II .............................................................................................................................11 City Council Members and Board Members cannot be questioned about their thought processes relating to legislative conduct under the legislative deliberation privilege .
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TABLE OF AUTHORITIES Cases AHF Community Development, LLC v. City of Dallas, ___ F.R.D.___, 2009 WL 348190 (N.D. Tex., February 12, 2009)........................................... 4 Bannum v. City of Beaumont, 236 F. Supp. 2d 633 (E.D. Tex. 2002) ......................................................................... 12, 13, 14 Bogan v. Scott-Harris, 523 U.S. 44 (1998) ............................................................................................................. 12, 13 Bryan v. City of Madison, 213 F. 3d 267 (5th Cir. 2000)................................................................................................... 13 Citibank, N.A. v. Andros, 666 F.2d 1192 (8th Cir. 1981).................................................................................................... 5 City of Brookside Village v. Comeau, 633 S.W.2d 790 (Tex. 1982).................................................................................................... 12 City of Pharr v. Tippitt, 616 S.W.2d 173 (Tex.1981)..................................................................................................... 12 City of Round Rock v. Smith, 687 S.W.2d 300 (Tex. 1985).................................................................................................... 12 Commodity Futures Trading Comm’n v. Weintraub, 471 U.S. 343 (1985) ................................................................................................................. 11 Cunningham v. Chapel Hill, ISD, 438 F. Supp. 2d 718 (E.D. Tex. 2006) ............................................................................... 11, 12 Dallas Merchant’s & Concessionaire’s Assoc. v. City of Dallas, 852 S.W.2d 489 (Tex. 1993)...................................................................................................... 8 Denius v. Dunlap, 209 F.3d 944 (7th Cir. 2000)...................................................................................................... 3 Fisher v. United States, 425 U.S. 391 (1976) ................................................................................................................... 4 Forwood v. City of Taylor, 147 Tex. 161 S.W.2d 282 (Tex. 1948)....................................................................................... 8 Hughes v. Tarrant County Tex., 948 F. 2d 918 (5th Cir. 1991)................................................................................................... 13
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Hunt v. Blackburn, 28 U.S. 464 (1888) ..................................................................................................................... 4 In re Anderson, 163 S.W.3d 136 (Tex. App. – San Antonio 2005, orig. proceeding)......................................... 8 In re City of Dallas, No. 05-03-00516-CV, 2003 WL 21000387 (Tex. App. – Dallas May 5, 2003, no pet.)............................................................................................................................................. 8 In re Grand Jury Investigation (Doe II), 399 F.3d 527 (2nd Cir. 2005)......................................................................................... 3, 6, 7, 9 In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910 (8th Cir. 1997).................................................................................................. 6, 9 In re Grand Jury Subpoena, 886 F.2d 135 (6th Cir. 1989)..................................................................................................... 7 In re Grand Jury Subpoena, 419 F.3d 329 (5th Cir. 2005).......................................................................................... 9, 10, 11 In re Hampers, 651 F.2d 19 (1st Cir. 1981) ........................................................................................................ 7 In re Lindsey, 158 F.3d 1263 (D.C. Cir. 1998) ................................................................................................. 6 In re Perry, 60 S.W. 3d 857, 860 (Tex. 2001).............................................................................. 13 In re Witness Before Special Grand Jury 2000-2, 288 F.3d 289 (7th Cir. 2002)...................................................................................................... 6 Jaffee v. Redmond, 518 U.S. 1 (1996) ....................................................................................................................... 4 Lipscomb v. Randall, 985 S.W.2d 601 (Tex. App. – Fort Worth 1999, pet. denied).................................................... 8 Mayhew v. Town of Sunnyvale, 964 S.W.2d 922 (Tex. 1998).................................................................................................... 12 Minton v. St. Bernard Parish Sch. Bd., 803 F. 2d 129 (5th Cir. 1986)................................................................................................... 13 Swidler & Berlin v. United States, 524 U.S. 399 (1998) ................................................................................................................... 4
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United States v. Edwards, 303 F.3d 606 (5th Cir. 2002)...................................................................................................... 9 United States v. Sells Eng'g, Inc., 463 U.S. 418 (1983) ................................................................................................................... 7 Upjohn Co. v. United States, 449 U.S. 383 (1981) ................................................................................................................... 3 Weatherford v. City of San Marcos, 157 S.W.3d 473 (Tex. App.-Austin 2004, pet. denied) ........................................................... 12 Willy v. Administrative Review Bd., 423 F.3d 483 (5th Cir. 2005)...................................................................................................... 5 Statutes TEX. GOV’T CODE § 22.004 ............................................................................................................ 8 TEX. GOV’T CODE § 22.109 ............................................................................................................ 8 TEX. GOV’T CODE CH. 81 ................................................................................................................ 9 Other Authorities Dallas, Tex., Charter ch. VII, § 3................................................................................................ 2, 7 Dallas, Tx., Charter ch. III ............................................................................................................ 11 Dallas, Tx., Charter ch. III, § 1 ..................................................................................................... 11 Dallas, Tx., Charter ch. VII, § 2.............................................................................................. 2, 7, 8 Dallas, Tx., Code § 12A-33(b)(3)............................................................................................... 2, 7 TEX. DISCIPLINARY R. OF PROF’L CONDUCT 1.05 ........................................................................... 9 Rules FED. R. EVID. 501............................................................................................................................ 5 TEX. R. EVID. 503............................................................................................................................ 8 Treatises Jack B. Weinstein & Vivian M. Berger, 3 WEINSTEIN'S FEDERAL EVIDENCE § 503.02 (J.M. McLaughlin ed. 2005) .............................. 5
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John Mixon, James L. Dougherty, Jr. & Brenda N. McDonald, TEXAS MUNICIPAL ZONING LAW, § 7.104 (3d. ed.1999) ......................................................... 12 Restatement (Third) of Law Governing Lawyers § 74 (2000) ....................................................... 5 Constitutional Provisions TEX. CONST. art. XI, § 5. ................................................................................................................. 8
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CITY OF DALLAS’ MEMORANDUM OF POINTS AND AUTHORITIES RESPECTING ATTORNEY-CLIENT AND LEGISLATIVE DELIBERATION PRIVILEGES
TO THE HONORABLE JUDGE OF SAID COURT: The City of Dallas, Texas, a home-rule Texas municipal corporation (the “City”) is not a party to this proceeding. However, present and former City officials and employees have been subpoenaed to testify as trial witnesses in this case and have been included on parties’ trial witness lists. In that sense, the City is a person from whom discovery may be had. As the City stated in open court on August 3, 2009, the City might need to object some of the questions that may be posed to present and former city officials and employees to the extent that such questions elicit information for which the City might assert privileges. The instant memorandum is
submitted in compliance with the Court’s request for briefing on applicable privileges. As the undersigned counsel advised the Court on August 3, 2009, a specific briefing is impossible because the City does not know in advance what specific questions may be asked or about what subjects witnesses may be asked, nor does the City yet know which witnesses any party may call to testify about potentially privileged subjects. Hence, as counsel informed the Court the City would do, the City provides this memorandum of points and authorities on the applicability to this trial of the two privileges most likely to be implicated here: The attorneyclient privilege and the legislative deliberations privilege. In an order in this case dated June 25, 2008, filed under seal (ECF Doc. No. 309), the Court has already recognized the City’s interest in protecting information in documents under the attorney-client privilege in this case.1
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No purpose appears to be served by keeping that order sealed.
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Background The Dallas City Attorney is the chief legal officer of the City. His duties and powers are enumerated in Chapter VII of the City Charter of the City of Dallas, Texas (“City Charter”) and in various provisions of the Dallas City Code and uncodified ordinances and resolutions promulgated by the City Council. Important components of the City Attorney’s duties are to: • be the legal adviser to the city manager, the council, or any committee thereof, all official boards and commissions and all city officers and employees with respect to any legal question involving an official duty or any legal matter pertaining to the affairs of the City of Dallas when deemed for the best interest of the city, to advise or represent officers and employees of the city in litigation in matters arising out of the official conduct of their office or duties or in the course of their employment; perform such other duties as the council may direct or request. provide City officials and employees with ethics opinions pursuant to Section 12A-33 of the City Code, which also provides in pertinent part that such employee or official can rely on the City Attorney’s written opinion if, among other things, “the person waives the attorney-client privilege with respect to the written advisory opinion.”
•
• •
Dallas, Tx., Charter ch. VII, §§ 3(7), (12), (13) (emphasis added); Dallas, Tx., Code § 12A-33(b)(3) (emphasis added). The City Attorney is head of the City’s Legal Department, commonly called the City Attorney’s Office (“CAO”), which is comprised of staff, including assistant city attorneys. “All powers and duties imposed on the city attorney may be exercised and performed by any assistant city attorney under the direction of the city attorney.” Dallas, Tx., Charter ch. VII, § 2.
Madeleine B. Johnson was the City Attorney for the period June 7, 1999 through April 1, 2005.
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From April 1, 2005, through June 7, 2005, Thomas P. Perkins, Jr. was the Interim City Attorney and since June 8, 2005 he has been the City Attorney. ARGUMENT I. The City is entitled to invoke the attorney client privilege for communications between its officials and employees, on the one part, and attorneys for the city, on the other part, to the same extent that business corporations could do so. A. Federal Common Law protects the fundamental attorney-client privilege of the City and of City Officials in the context of a federal criminal trial. Under the doctrine of attorney-client privilege, confidential communications between a client and an attorney for the purpose of obtaining legal advice are privileged. A court cannot compel revelation of these communications through discovery or testimony in civil or criminal matters. Denius v. Dunlap, 209 F.3d 944, 952 (7th Cir. 2000) (emphasis added). It is crucial that government officials, who are expected to uphold and execute the law and who may face criminal prosecution for failure to do so, be encouraged to seek out and receive fully informed legal advice. Upholding the privilege furthers a culture in which consultation with government lawyers is accepted as a normal, desirable and even indispensable part of conducting business. Abrogating the privilege undermines that culture and thereby impairs the public interest. In re Grand Jury Investigation (Doe II), 399 F.3d 527, 534 (2nd Cir. 2005). The attorney-client privilege is the oldest of the privileges for confidential communications known to common law; deeply rooted in our country’s history and jurisprudence. See Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). Abrogating the attorney-client privilege in any context, including the local government context, runs contrary to the extended history of the privilege in the United States, contravenes public policy applicable to federal courts sitting in Texas, and goes against the Fifth Circuit’s appreciation of the importance of this privilege. More than 100 years ago, the United States Supreme Court recognized the importance of the attorney-client privilege in spite of any possible costs. In Hunt v. Blackburn,
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128 U.S. 464 (1888), the Court explained that the privilege “is founded upon necessity; in the interest and administration of justice, of the aid of persons having knowledge of the law and skilled in its practice, which assistance can only be safely and readily availed of when free from the consequences or the apprehension of disclosure.” Although the privilege has a potential cost, it is “rooted in the imperative need for confidence and trust.” Jaffee v. Redmond, 518 U.S. 1, 10 (1996) (citation omitted). “The loss of evidence admittedly caused by the privilege is justified in part by fact that without the privilege, the client may not have made such communications in the first place.” Swidler & Berlin v. United States, 524 U.S. 399, 408 (1998). The privilege protects not just communications of an attorney’s advice to a client, but also a client’s factual “disclosures necessary to obtain informed legal advice which might not have been made absent the privilege.” Fisher v. United States, 425 U.S. 391, 403 (1976). Neither the Supreme Court, the Fifth Circuit, nor any court of this district has ever refused to recognize a local government’s or local official’s attorney-client privilege in the context of a federal criminal proceeding (although courts have of course sometimes found waiver of the privilege or applied a recognized exception to the privilege). For the applicability of the attorney-client privilege to the City of Dallas in the federal civil trial context, and the application of the normal waiver principles, see generally AHF Community Development, LLC v. City of Dallas, __ F.R.D.___, 2009 WL 348190 (N.D. Tex., February 12, 2009) (Fitzwater, C.J.). In 1975, Congress rejected specific proposed Federal Rules of Evidence respecting separate privileges, opting instead for Federal Rule of Evidence 501, which allows federal courts to develop the federal common law of privileges in light of “reason and experience.” Significantly, Rule 501 expressly recognizes that privileges under federal common law are
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available to a “person, government, State, or political subdivision thereof.” FED. R. EVID. 501 (emphasis added). It is widely recognized that the Supreme Court’s proposed rules (“Supreme Court Standards”) provide an accurate restatement of the federal common law of evidence as of the Standards’ publication in 1972. “[Supreme Court Standard 503] restates, rather than modifies, the common-law lawyer-client privilege. Thus, it has considerable utility as a guide to the federal common law.” Jack B. Weinstein & Vivian M. Berger, 3 WEINSTEIN'S FEDERAL
EVIDENCE § 503.02 (J.M. McLaughlin ed. 2005).2 Supreme Court Standard 503(a)(1) expressly recognized that the “client” for purposes of the federal attorney-client privilege included “a person, public officer, or corporation, association, or other organization or entity, either public or private,” with no exception or limitation on the availability of the attorney-client privilege. Supreme Court Standard 503(a)(1) (emphases added). There is no exception provided for grand jury process, search warrants, or other criminal proceedings. See 3 Weinstein & Berger, supra at § 503.01 (reproducing text of standard). Clearly under federal common law both local Moreover,
governments and their officials could claim the attorney-client privilege.
communications with government lawyers were treated no differently under Standard 503 than were communications with other attorneys. Id. (reproducing text of S. Ct. Standard 503(a)(2), defining “lawyer” for purposes of the attorney-client privilege as “a person authorized, or reasonably believed by the client to be authorized, to practice law in any state or nation”).
See Citibank, N.A. v. Andros, 666 F.2d 1192, 1195 (8th Cir. 1981) (“Despite Congress’ failure to enact the proposed rules on privileges, courts have continued to look to the proposed rules as a source for defining the federal common law of attorney-client privilege”); see also Willy v. Administrative Review Bd., 423 F.3d 483, 496 (5th Cir. 2005) (citing S. Ct. Standard 503(d) as authority respecting scope of attorney-client privilege); Restatement (Third) of Law Governing Lawyers § 74 (2000) (“attorneyclient privilege extends to a communication of a governmental organization ...”).
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Although another circuit’s court of appeals has held that a federal grand jury subpoena overrode a local government privilege, it did so under specific facts, and the holding was wrong. See In re Witness Before Special Grand Jury 2000-2 (Ryan), 288 F.3d 289, 291 (7th Cir. 2002). Two key factors that were present in Ryan are absent here: First, in Ryan there was a perceived reticence of local government attorneys to disclose information about crimes. Id. at 290-91; see Ross v. City of Memphis, 423 F.3d 596, 603 n.2 (6th Cir. 2005) (upholding City’s privilege in civil case, while noting that untrustworthy attorney was significant factor in Ryan outcome); see also In re Lindsey, 158 F.3d 1263, 1278 (D.C. Cir. 1998), cert. denied sub nom. Office of the President v. Office of the Independent Counsel, 525 U.S. 996 (1998) (White House Counsel could invoke President’s attorney-client privilege against federal grand jury subpoena except that counsel was obligated to disclose his own knowledge of crimes). Second, the client claiming the privilege in Ryan was a governmental department that wanted to waive its privileges. Ryan, 288 F.3d at 291-92. Another factor that has influenced some courts to override governmental
attorney-client privilege claims was the idea that federal agencies should not withhold information from a federal grand jury – a factor not present here. See, e.g., In re Lindsey,158 F.3d at 1278; In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 921 (8th Cir. 1997). The public interest is best served by encouraging officials to consult their attorneys when in doubt as to how to comply with applicable laws and the Court therefore must not eviscerate the attorney-client privilege and must continue to allow it to extend to those communications, even against federal grand jury process. This better-reasoned approach is the one adopted in the Second and Sixth Circuits, which have properly upheld the privilege in principle as between local officials and their government attorneys in the face even of federal grand jury process. See In re Doe II, supra, (but criminal-fraud exception found); In re Grand Jury Subpoena (Doe I),
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886 F.2d 135, 139 (6th Cir. 1989) (however, city lost the right to use the privilege when the meeting minutes became public under state law). Because a federal grand jury has “extraordinary powers of investigation,” United States v. Sells Eng'g, Inc., 463 U.S. 418, 423 (1983), a local government’s attorney-client privilege should be entitled to at least the same deference during a federal criminal trial as during a grand jury investigation. In the absence of dispositive Supreme Court or Fifth Circuit authority, federal courts sitting in Texas should give great weight to Texas privilege policies in determining whether a traditional privilege should be recognized; and as a matter of comity this deference should be particularly strong when a political subdivision of the State and the officials of that governmental unit assert the privilege. See Doe II, 399 F.3d at 527 (deference to Connecticut law protecting communications between governor and his official attorney). In addition to the deference to local laws espoused by the Second Circuit, the First Circuit has recognized the important of state law as the primary factor in that court’s four-part test for recognizing state privileges. See In re Hampers, 651 F.2d 19, 21-23 (1st Cir. 1981).3 The City Attorney is the attorney for each City officer and official, as well as for the City and its Council, and other City agencies and departments. As noted above, the City Attorney is expressly designated by the City Charter to advise City officers among other official clients. Dallas, Tx., Charter, ch. VII, § 3(7)). Moreover, his advice to officers in providing Ethics Opinions is expressly made subject to the attorney-client privilege to be held by the officerclients. Dallas, Tx., Code § 12A-33(b)(3). Assistant City Attorneys have the same powers and
The four Hampers factors are: (1) Would the courts of the state recognize such a privilege? (2) Is the state's asserted privilege intrinsically meritorious in the court's independent judgment? (3) Should such a privileged relationship be sedulously fostered? and (4) Is the injury that would inure to the relation by the disclosure of the communication greater than the benefit thereby granted?
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duties and the City Attorney, Dallas, Tx., Charter ch. VII, § 2, so their communications with City officials are likewise privileged. The above-cited charter and code provisions are well within the City’s home-rule legislative powers and have the force of law: It was the purpose of the Home-Rule Amendment [to the Texas Constitution[4] … to bestow upon accepting cities and towns of more than 5000 population full power of self-government, that is, full authority to do anything the legislature could theretofore have authorized them to do. The result is that now it is necessary to look to the acts of the legislature not for grants of power to such cities but only for limitations on their powers. Forwood v. City of Taylor, 147 Tex. 161, 214 S.W.2d 282, 286 (Tex. 1948) (citing TEX. CONST. art. XI, § 5); see also Dallas Merchant’s & Concessionaire’s Assoc. v. City of Dallas, 852 S.W.2d 489, 490-91 (Tex. 1993). Lipscomb v. Randall, 985 S.W.2d 601, 605 (Tex. App. – Fort Worth 1999, pet. denied). Texas case law also explicitly recognizes that local governments and their officials are entitled to communicate under the privilege with their official attorneys. See In re Anderson, 163 S.W.3d 136, 140-42 (Tex. App. – San Antonio 2005, orig. proceeding) (San Antonio City Attorney waived City’s attorney-client privilege by failing to follow state court procedures for claiming it); In re City of Dallas, No. 05-03-00516-CV, 2003 WL 21000387 (Tex. App. – Dallas May 5, 2003, no pet.) (mem.op.) (attorney-client privilege attached to documents involving efforts of city attorney for defendant in negotiating contracts, where he acted as both attorney and negotiator). Further, Texas Rule of Evidence 503 is identical in relevant parts to the above-quoted passages of Supreme Court Standard 503 – Texas governments and officials are “clients” and Texas government attorneys are “attorneys” for purposes of the attorney-client privilege. Texas Rule 503 is adopted with the express authority of the Legislature by the Texas Supreme Court (TEX. GOV’T CODE § 22.004) and Court of Criminal Appeals (TEX. GOV’T CODE § 22.109) by
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TEX. CONST. art. XI, § 5.
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express delegation of power from the Legislature. Additionally, the Texas Supreme Court has adopted mandatory disciplinary rules involving punishment extending to disbarment that forbid Texas attorneys’ disclosure of confidential client information. See TEX. DISCIPLINARY R.
OF
PROF’L CONDUCT 1.05. These rules also have the force of law under the State’s integrated bar system. See State Bar Act, TEX. GOV’T CODE
CH.
81. Thus the duty of Texas government
lawyers not to divulge privileged information is embodied in State law – a factor that the Second Circuit considered in In re Doe II, 399 F.3d at 534. For these reasons, the Court should recognize and protect the attorney-client privilege of the City and its officials respecting their communications with the City Attorney’s Office here. The Government may assert the so-called “crime-fraud” exception to the attorney-client privilege as to communications that the City may assert to be privileged. However, the
exception cannot apply to communications intended to conceal past offenses – it only excepts communications aimed at furthering continuing or future misconduct. See United States v. Edwards, 303 F.3d 606, 618 (5th Cir. 2002); quoted with approval, In re Grand Jury Subpoenas, 561 F.3d 408, 412 (5th Cir. 2009). “The government bears the burden of establishing a prima facie case that the attorney-client relationship was intended to further criminal or fraudulent activity.” In re Grand Jury Subpoena, 419 F.3d 329, 335 (5th Cir. 2005) (internal quotation marks and citation omitted). “Allegations in pleadings are not evidence and are not sufficient to make a prima facie showing that the crime-fraud exception applies.” Id. at 336 (internal
quotation marks and citation omitted). The Fifth Circuit has refined this prima facie standard, breaking it into two separate components: First there must be a prima facie showing of a violation sufficiently serious to defeat the attorney work-product privilege. Second, the court
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must find some valid relationship between the communication at issue and the prima facie violation. The first part of the test is alternatively stated as requiring a showing that the client was engaged in ongoing fraudulent activity when the work product was sought or produced. The second part of the test is alternatively stated as requiring a showing that the work product material reasonably relates to the fraudulent activity. Id. at 346 (internal quotation marks and citations omitted). The City does not believe that the Government or any defendant can adduce evidence sufficient to meet that burden. Without access to specific questions, the City cannot of course in this memorandum refute in advance any specific grounds upon which the Government may rely for the crime-fraud exception. However, we note here: a. b. The fraud involved in the communication to the attorney must be serious; That fraud must have a material, not merely incidental, relationship to the underlying crime that the Government is investigating; c. The City Attorney’s role in providing ethics and conflict-of–interest opinions does not extend to opining as to legality of conduct under the criminal law. At most, the opinion would extend to whether an official could participate in certain hearings or votes, or engage in certain outside business activities, without violating state or city ethics laws and rules. Thus, if the Government’s theory in respect of the crime-fraud exception is that a suspect lied to the City Attorney in order to be permitted to vote on a matter, the Government should also have to demonstrate that the official’s vote was decisive and that it directly related to the conduct that the Investigation is targeting. [T]he proper scope of the crime-fraud exception must necessarily be limited to those attorney-client communications and work products reasonably related to the
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furtherance of the ongoing or future crime or fraud at issue. Otherwise, to put it simply, the crime-fraud exception swallows the privilege rule. Id. at 347. To the extent if any that the City Attorney’s Office work-product may be elicited by questions at this trial, the principles applicable to such work-product’s admissibility and discoverability will in the main be the same as those applicable to the attorney-client privilege. Id. The attorney-client privilege of an organization belongs to the organization, not to any individual. See Commodity Futures Trading Comm’n v. Weintraub, 471 U.S. 343, 358 (1985). II City Council Members and Board Members cannot be questioned about their thought processes relating to legislative conduct under the legislative deliberation privilege. “The testimonial privilege is an inherent aspect of the legislative immunity that applies to local legislators under the Speech and Debate Clause of the United States Constitution.” Cunningham v. Chapel Hill, ISD, 438 F. Supp. 2d 718, 723 (E.D. Tex. 2006). The duties and powers of the Dallas City Council are predominantly legislative. These duties are specified in several provisions scattered throughout the City Charter and City Code, both available online via links from www.dallascityattorney.org, and in Texas statutes, but of particular relevance is City Charter Chapter III. Most pertinently, “[e]xcept as otherwise
provided by [the] Charter, all powers conferred on the city shall be exercised by a city council to be composed of 15 members,” including the Mayor. Dallas, Tx., Charter ch. III, § 1. Thus, the City Council is the legislature of the City, as is also established by plentiful evidence already admitted during the court of this trial and is generally known in this district.
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Further, land use decisions of the City Plan & Zoning Commission, including zoning and platting, are legislative. See Weatherford v. City of San Marcos, 157 S.W.3d 473, 483–484 (Tex. App.-Austin 2004, pet. denied); City of Pharr v. Tippitt, 616 S.W.2d 173, 175-76 (Tex.1981); see also John Mixon, James L. Dougherty, Jr. & Brenda N. McDonald, TEXAS MUNICIPAL ZONING LAW, § 7.104 (3d. ed.1999) ("[a]doption or rejection of a PDD by ordinance amendment is, by current Texas and Fifth Circuit law, a legislative act"). Zoning is a governmental function that allows "a municipality, in the exercise of its legislative discretion, to restrict the use of private property." City of Brookside Village v. Comeau, 633 S.W.2d 790, 792 (Tex. 1982); see Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 933 (Tex. 1998) ("Zoning decisions are vested in the discretion of municipal authorities; courts should not assume the role of a super zoning board."); City of Round Rock v. Smith, 687 S.W.2d 300, 302-03 (Tex. 1985) ("plat approval is a governmental function"). Of course, City Council land use actions based on Plan & Zoning Commission Recommendations are by definition also legislative. For example, a City Council’s denial of an application for a specific use permit has been held to be a legislative function. See Bannum v. City of Beaumont, 236 F. Supp. 2d 633, 634 (E.D. Tex. 2002). The principle that legislators are absolutely immune from liability for their legislative activities has long been recognized in Anglo-American law. Bogan v. Scott-Harris, 523 U.S. 44, 48 (1998). The Supreme Court has held that this immunity applies to local legislators such as City Council members. Id. at 49. When a local legislator such as a city council member is shielded from liability by legislative immunity, evidentiary and testimonial privileges preclude any party from deposing the local legislator or otherwise compelling testimony about legislative actions taken in the sphere of legitimate legislative activity. Cunningham v. Chapel Hill ISD,
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438 F. Supp. 2d 718, 722 (E.D. Tex. 2006); Bannum v. City of Beaumont, supra, 236 F. Supp. 2d at 634; see also Minton v. St. Bernard Parish Sch. Bd., 803 F. 2d 129, 135 (5th Cir. 1986). Not all actions taken by an official with legislative duties are protected by legislative immunity. The immunity protects only those duties that are functionally legislative. Hughes v. Tarrant County Tex., 948 F. 2d 918, 920 (5th Cir. 1991). “Whether an act is legislative turns on the nature of the act, rather than on the motive or intent of the official performing it.” Bogan, 523 U.S. at 54. Relying on Hughes, 948 F. 2d at 920 the Texas Supreme Court has held that a function is legislative, and thus protected by immunity, if it “reflects a discretionary, policymaking decision of general application, rather than an individualized decision based upon particular facts.” In re Perry, 60 S.W. 3d 857, 860 (Tex. 2001)(citing Bogan, 523 U.S. at 54). Likewise, the Fifth Circuit has developed two “general guidelines” for determining “whether a particular activity is legislative rather than administrative and therefore protected by immunity.” Bryan v. City of Madison, 213 F. 3d 267, 273 (5th Cir. 2000). The Fifth Circuit described these guidelines as follows: The first test focuses on the nature of the facts used to reach the given decision. If the underlying facts on which the decision is based are legislative facts, such as generalizations concerning a policy or state of affairs, then the decision is legislative. If the facts used in the decisionmaking are more specific, such as those that relate to particular individuals or situations, then the decision is administrative. The second test focuses on the particularity of the impact of the state action. If the action involves establishment of a general policy, it is legislative; if the action single[s] out specific individuals and affect[s] them differently from others, it is legislative. Hughes, 948 F. 2d at 921; Bryan, 213 F. 3d at 273. The “more the general community is affected by the action, the more likely it is a legislative act.” Bannum, 236 F. Supp. 2d at 635. In Bannum, the Court held that the City Council’s denial of Bannum’s application for a specific use permit for operation of a halfway house at a proposed location was legislative
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because it revolved around a debate over public safety and “reflected a discretionary, policymaking decision implicating the city and specific communities.” Bannum, 236 F. Supp. 2d at 636. The Bannum Court concluded, therefore, that Bannum was precluded from taking the depositions of the Council members by the testimonial privilege attached to legislative immunity. Id. at 637. The privilege clearly belongs to the local government, not just to the local councilmember, because it is the local government’s interest in protecting the democratic process, not the local legislator’s personal interests, that justifies recognition of the privilege. As the Cunningham court explained: To [refuse to apply the privilege to local government legislators], would undoubtably have a chilling effect on local legislative bodies and their members. Denying local legislators the protection of the testimonial privilege would likely dissuade some citizens from volunteering for such local legislative bodies and would surely hinder the free flow of discussion that is such an integral part of the democratic legislative process employed by these and all other legislative bodies in this country. 438 F. Supp. 2d at 722–723. Therefore, the city should be allowed to assert the privilege even if a present or former legislator might wish to waive it. In particular, a former official should not be empowered to waive a governmental unit’s present privilege.
Respectfully submitted, OFFICE OF CITY ATTORNEY CITY OF DALLAS, TEXAS
By: /s/ Peter B. Haskel PETER B. HASKEL Assistant City Attorney TXNB 09198900
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Dallas City Attorney’s Office 1500 Marilla, Room 7BN Dallas TX 75201 214-670-3519 214-670-0622 (FAX) [email protected] ATTORNEYS FOR CITY OF DALLAS, TEXAS
CERTIFICATE OF SERVICE I hereby certify that on August 4, 2009, I electronically filed the foregoing memorandum of points and authorities with the clerk of the court for the U.S. District Court, Northern District of Texas, using the electronic case filing system of the court. Upon information and belief, the electronic case filing system sent a “Notice of Electronic Filing” to all attorneys of record who have consented in writing to accept this Notice as service of this document by electronic means.
/s/ Peter B. Haskel
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION UNITED STATES OF AMERICA Plaintiff V. DONALD W. HILL, et al., Defendants. § § § § § § § §
3:07-CR-289-M
CITY OF DALLAS’ MEMORANDUM OF POINTS AND AUTHORITIES RESPECTING ATTORNEY-CLIENT AND LEGISLATIVE DELIBERATION PRIVILEGES
OFFICE OF THE CITY ATTORNEY CITY OF DALLAS, TEXAS PETER B. HASKEL Assistant City Attorney Texas Bar No. 09198900 1500 Marilla Street, 7BN Dallas, Texas 75201 Telephone: 214-670-3519 Facsimile: 214-670-0622 [email protected] ATTORNEYS FOR THE CITY OF DALLAS, TEXAS
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TABLE OF CONTENTS
PAGE
BACKGROUND .............................................................................................................................2
ARGUMENT 1................................................................................................................................2 The City is entitled to invoke the attorney client privilege for communications between its officials and employees, on the one part, and attorneys for the City, on the other part, to the same extent that business corporations could do so.
ARGUMENT II .............................................................................................................................11 City Council Members and Board Members cannot be questioned about their thought processes relating to legislative conduct under the legislative deliberation privilege .
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TABLE OF AUTHORITIES Cases AHF Community Development, LLC v. City of Dallas, ___ F.R.D.___, 2009 WL 348190 (N.D. Tex., February 12, 2009)........................................... 4 Bannum v. City of Beaumont, 236 F. Supp. 2d 633 (E.D. Tex. 2002) ......................................................................... 12, 13, 14 Bogan v. Scott-Harris, 523 U.S. 44 (1998) ............................................................................................................. 12, 13 Bryan v. City of Madison, 213 F. 3d 267 (5th Cir. 2000)................................................................................................... 13 Citibank, N.A. v. Andros, 666 F.2d 1192 (8th Cir. 1981).................................................................................................... 5 City of Brookside Village v. Comeau, 633 S.W.2d 790 (Tex. 1982).................................................................................................... 12 City of Pharr v. Tippitt, 616 S.W.2d 173 (Tex.1981)..................................................................................................... 12 City of Round Rock v. Smith, 687 S.W.2d 300 (Tex. 1985).................................................................................................... 12 Commodity Futures Trading Comm’n v. Weintraub, 471 U.S. 343 (1985) ................................................................................................................. 11 Cunningham v. Chapel Hill, ISD, 438 F. Supp. 2d 718 (E.D. Tex. 2006) ............................................................................... 11, 12 Dallas Merchant’s & Concessionaire’s Assoc. v. City of Dallas, 852 S.W.2d 489 (Tex. 1993)...................................................................................................... 8 Denius v. Dunlap, 209 F.3d 944 (7th Cir. 2000)...................................................................................................... 3 Fisher v. United States, 425 U.S. 391 (1976) ................................................................................................................... 4 Forwood v. City of Taylor, 147 Tex. 161 S.W.2d 282 (Tex. 1948)....................................................................................... 8 Hughes v. Tarrant County Tex., 948 F. 2d 918 (5th Cir. 1991)................................................................................................... 13
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Hunt v. Blackburn, 28 U.S. 464 (1888) ..................................................................................................................... 4 In re Anderson, 163 S.W.3d 136 (Tex. App. – San Antonio 2005, orig. proceeding)......................................... 8 In re City of Dallas, No. 05-03-00516-CV, 2003 WL 21000387 (Tex. App. – Dallas May 5, 2003, no pet.)............................................................................................................................................. 8 In re Grand Jury Investigation (Doe II), 399 F.3d 527 (2nd Cir. 2005)......................................................................................... 3, 6, 7, 9 In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910 (8th Cir. 1997).................................................................................................. 6, 9 In re Grand Jury Subpoena, 886 F.2d 135 (6th Cir. 1989)..................................................................................................... 7 In re Grand Jury Subpoena, 419 F.3d 329 (5th Cir. 2005).......................................................................................... 9, 10, 11 In re Hampers, 651 F.2d 19 (1st Cir. 1981) ........................................................................................................ 7 In re Lindsey, 158 F.3d 1263 (D.C. Cir. 1998) ................................................................................................. 6 In re Perry, 60 S.W. 3d 857, 860 (Tex. 2001).............................................................................. 13 In re Witness Before Special Grand Jury 2000-2, 288 F.3d 289 (7th Cir. 2002)...................................................................................................... 6 Jaffee v. Redmond, 518 U.S. 1 (1996) ....................................................................................................................... 4 Lipscomb v. Randall, 985 S.W.2d 601 (Tex. App. – Fort Worth 1999, pet. denied).................................................... 8 Mayhew v. Town of Sunnyvale, 964 S.W.2d 922 (Tex. 1998).................................................................................................... 12 Minton v. St. Bernard Parish Sch. Bd., 803 F. 2d 129 (5th Cir. 1986)................................................................................................... 13 Swidler & Berlin v. United States, 524 U.S. 399 (1998) ................................................................................................................... 4
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United States v. Edwards, 303 F.3d 606 (5th Cir. 2002)...................................................................................................... 9 United States v. Sells Eng'g, Inc., 463 U.S. 418 (1983) ................................................................................................................... 7 Upjohn Co. v. United States, 449 U.S. 383 (1981) ................................................................................................................... 3 Weatherford v. City of San Marcos, 157 S.W.3d 473 (Tex. App.-Austin 2004, pet. denied) ........................................................... 12 Willy v. Administrative Review Bd., 423 F.3d 483 (5th Cir. 2005)...................................................................................................... 5 Statutes TEX. GOV’T CODE § 22.004 ............................................................................................................ 8 TEX. GOV’T CODE § 22.109 ............................................................................................................ 8 TEX. GOV’T CODE CH. 81 ................................................................................................................ 9 Other Authorities Dallas, Tex., Charter ch. VII, § 3................................................................................................ 2, 7 Dallas, Tx., Charter ch. III ............................................................................................................ 11 Dallas, Tx., Charter ch. III, § 1 ..................................................................................................... 11 Dallas, Tx., Charter ch. VII, § 2.............................................................................................. 2, 7, 8 Dallas, Tx., Code § 12A-33(b)(3)............................................................................................... 2, 7 TEX. DISCIPLINARY R. OF PROF’L CONDUCT 1.05 ........................................................................... 9 Rules FED. R. EVID. 501............................................................................................................................ 5 TEX. R. EVID. 503............................................................................................................................ 8 Treatises Jack B. Weinstein & Vivian M. Berger, 3 WEINSTEIN'S FEDERAL EVIDENCE § 503.02 (J.M. McLaughlin ed. 2005) .............................. 5
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John Mixon, James L. Dougherty, Jr. & Brenda N. McDonald, TEXAS MUNICIPAL ZONING LAW, § 7.104 (3d. ed.1999) ......................................................... 12 Restatement (Third) of Law Governing Lawyers § 74 (2000) ....................................................... 5 Constitutional Provisions TEX. CONST. art. XI, § 5. ................................................................................................................. 8
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CITY OF DALLAS’ MEMORANDUM OF POINTS AND AUTHORITIES RESPECTING ATTORNEY-CLIENT AND LEGISLATIVE DELIBERATION PRIVILEGES
TO THE HONORABLE JUDGE OF SAID COURT: The City of Dallas, Texas, a home-rule Texas municipal corporation (the “City”) is not a party to this proceeding. However, present and former City officials and employees have been subpoenaed to testify as trial witnesses in this case and have been included on parties’ trial witness lists. In that sense, the City is a person from whom discovery may be had. As the City stated in open court on August 3, 2009, the City might need to object some of the questions that may be posed to present and former city officials and employees to the extent that such questions elicit information for which the City might assert privileges. The instant memorandum is
submitted in compliance with the Court’s request for briefing on applicable privileges. As the undersigned counsel advised the Court on August 3, 2009, a specific briefing is impossible because the City does not know in advance what specific questions may be asked or about what subjects witnesses may be asked, nor does the City yet know which witnesses any party may call to testify about potentially privileged subjects. Hence, as counsel informed the Court the City would do, the City provides this memorandum of points and authorities on the applicability to this trial of the two privileges most likely to be implicated here: The attorneyclient privilege and the legislative deliberations privilege. In an order in this case dated June 25, 2008, filed under seal (ECF Doc. No. 309), the Court has already recognized the City’s interest in protecting information in documents under the attorney-client privilege in this case.1
1
No purpose appears to be served by keeping that order sealed.
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Background The Dallas City Attorney is the chief legal officer of the City. His duties and powers are enumerated in Chapter VII of the City Charter of the City of Dallas, Texas (“City Charter”) and in various provisions of the Dallas City Code and uncodified ordinances and resolutions promulgated by the City Council. Important components of the City Attorney’s duties are to: • be the legal adviser to the city manager, the council, or any committee thereof, all official boards and commissions and all city officers and employees with respect to any legal question involving an official duty or any legal matter pertaining to the affairs of the City of Dallas when deemed for the best interest of the city, to advise or represent officers and employees of the city in litigation in matters arising out of the official conduct of their office or duties or in the course of their employment; perform such other duties as the council may direct or request. provide City officials and employees with ethics opinions pursuant to Section 12A-33 of the City Code, which also provides in pertinent part that such employee or official can rely on the City Attorney’s written opinion if, among other things, “the person waives the attorney-client privilege with respect to the written advisory opinion.”
•
• •
Dallas, Tx., Charter ch. VII, §§ 3(7), (12), (13) (emphasis added); Dallas, Tx., Code § 12A-33(b)(3) (emphasis added). The City Attorney is head of the City’s Legal Department, commonly called the City Attorney’s Office (“CAO”), which is comprised of staff, including assistant city attorneys. “All powers and duties imposed on the city attorney may be exercised and performed by any assistant city attorney under the direction of the city attorney.” Dallas, Tx., Charter ch. VII, § 2.
Madeleine B. Johnson was the City Attorney for the period June 7, 1999 through April 1, 2005.
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From April 1, 2005, through June 7, 2005, Thomas P. Perkins, Jr. was the Interim City Attorney and since June 8, 2005 he has been the City Attorney. ARGUMENT I. The City is entitled to invoke the attorney client privilege for communications between its officials and employees, on the one part, and attorneys for the city, on the other part, to the same extent that business corporations could do so. A. Federal Common Law protects the fundamental attorney-client privilege of the City and of City Officials in the context of a federal criminal trial. Under the doctrine of attorney-client privilege, confidential communications between a client and an attorney for the purpose of obtaining legal advice are privileged. A court cannot compel revelation of these communications through discovery or testimony in civil or criminal matters. Denius v. Dunlap, 209 F.3d 944, 952 (7th Cir. 2000) (emphasis added). It is crucial that government officials, who are expected to uphold and execute the law and who may face criminal prosecution for failure to do so, be encouraged to seek out and receive fully informed legal advice. Upholding the privilege furthers a culture in which consultation with government lawyers is accepted as a normal, desirable and even indispensable part of conducting business. Abrogating the privilege undermines that culture and thereby impairs the public interest. In re Grand Jury Investigation (Doe II), 399 F.3d 527, 534 (2nd Cir. 2005). The attorney-client privilege is the oldest of the privileges for confidential communications known to common law; deeply rooted in our country’s history and jurisprudence. See Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). Abrogating the attorney-client privilege in any context, including the local government context, runs contrary to the extended history of the privilege in the United States, contravenes public policy applicable to federal courts sitting in Texas, and goes against the Fifth Circuit’s appreciation of the importance of this privilege. More than 100 years ago, the United States Supreme Court recognized the importance of the attorney-client privilege in spite of any possible costs. In Hunt v. Blackburn,
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128 U.S. 464 (1888), the Court explained that the privilege “is founded upon necessity; in the interest and administration of justice, of the aid of persons having knowledge of the law and skilled in its practice, which assistance can only be safely and readily availed of when free from the consequences or the apprehension of disclosure.” Although the privilege has a potential cost, it is “rooted in the imperative need for confidence and trust.” Jaffee v. Redmond, 518 U.S. 1, 10 (1996) (citation omitted). “The loss of evidence admittedly caused by the privilege is justified in part by fact that without the privilege, the client may not have made such communications in the first place.” Swidler & Berlin v. United States, 524 U.S. 399, 408 (1998). The privilege protects not just communications of an attorney’s advice to a client, but also a client’s factual “disclosures necessary to obtain informed legal advice which might not have been made absent the privilege.” Fisher v. United States, 425 U.S. 391, 403 (1976). Neither the Supreme Court, the Fifth Circuit, nor any court of this district has ever refused to recognize a local government’s or local official’s attorney-client privilege in the context of a federal criminal proceeding (although courts have of course sometimes found waiver of the privilege or applied a recognized exception to the privilege). For the applicability of the attorney-client privilege to the City of Dallas in the federal civil trial context, and the application of the normal waiver principles, see generally AHF Community Development, LLC v. City of Dallas, __ F.R.D.___, 2009 WL 348190 (N.D. Tex., February 12, 2009) (Fitzwater, C.J.). In 1975, Congress rejected specific proposed Federal Rules of Evidence respecting separate privileges, opting instead for Federal Rule of Evidence 501, which allows federal courts to develop the federal common law of privileges in light of “reason and experience.” Significantly, Rule 501 expressly recognizes that privileges under federal common law are
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available to a “person, government, State, or political subdivision thereof.” FED. R. EVID. 501 (emphasis added). It is widely recognized that the Supreme Court’s proposed rules (“Supreme Court Standards”) provide an accurate restatement of the federal common law of evidence as of the Standards’ publication in 1972. “[Supreme Court Standard 503] restates, rather than modifies, the common-law lawyer-client privilege. Thus, it has considerable utility as a guide to the federal common law.” Jack B. Weinstein & Vivian M. Berger, 3 WEINSTEIN'S FEDERAL
EVIDENCE § 503.02 (J.M. McLaughlin ed. 2005).2 Supreme Court Standard 503(a)(1) expressly recognized that the “client” for purposes of the federal attorney-client privilege included “a person, public officer, or corporation, association, or other organization or entity, either public or private,” with no exception or limitation on the availability of the attorney-client privilege. Supreme Court Standard 503(a)(1) (emphases added). There is no exception provided for grand jury process, search warrants, or other criminal proceedings. See 3 Weinstein & Berger, supra at § 503.01 (reproducing text of standard). Clearly under federal common law both local Moreover,
governments and their officials could claim the attorney-client privilege.
communications with government lawyers were treated no differently under Standard 503 than were communications with other attorneys. Id. (reproducing text of S. Ct. Standard 503(a)(2), defining “lawyer” for purposes of the attorney-client privilege as “a person authorized, or reasonably believed by the client to be authorized, to practice law in any state or nation”).
See Citibank, N.A. v. Andros, 666 F.2d 1192, 1195 (8th Cir. 1981) (“Despite Congress’ failure to enact the proposed rules on privileges, courts have continued to look to the proposed rules as a source for defining the federal common law of attorney-client privilege”); see also Willy v. Administrative Review Bd., 423 F.3d 483, 496 (5th Cir. 2005) (citing S. Ct. Standard 503(d) as authority respecting scope of attorney-client privilege); Restatement (Third) of Law Governing Lawyers § 74 (2000) (“attorneyclient privilege extends to a communication of a governmental organization ...”).
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Although another circuit’s court of appeals has held that a federal grand jury subpoena overrode a local government privilege, it did so under specific facts, and the holding was wrong. See In re Witness Before Special Grand Jury 2000-2 (Ryan), 288 F.3d 289, 291 (7th Cir. 2002). Two key factors that were present in Ryan are absent here: First, in Ryan there was a perceived reticence of local government attorneys to disclose information about crimes. Id. at 290-91; see Ross v. City of Memphis, 423 F.3d 596, 603 n.2 (6th Cir. 2005) (upholding City’s privilege in civil case, while noting that untrustworthy attorney was significant factor in Ryan outcome); see also In re Lindsey, 158 F.3d 1263, 1278 (D.C. Cir. 1998), cert. denied sub nom. Office of the President v. Office of the Independent Counsel, 525 U.S. 996 (1998) (White House Counsel could invoke President’s attorney-client privilege against federal grand jury subpoena except that counsel was obligated to disclose his own knowledge of crimes). Second, the client claiming the privilege in Ryan was a governmental department that wanted to waive its privileges. Ryan, 288 F.3d at 291-92. Another factor that has influenced some courts to override governmental
attorney-client privilege claims was the idea that federal agencies should not withhold information from a federal grand jury – a factor not present here. See, e.g., In re Lindsey,158 F.3d at 1278; In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 921 (8th Cir. 1997). The public interest is best served by encouraging officials to consult their attorneys when in doubt as to how to comply with applicable laws and the Court therefore must not eviscerate the attorney-client privilege and must continue to allow it to extend to those communications, even against federal grand jury process. This better-reasoned approach is the one adopted in the Second and Sixth Circuits, which have properly upheld the privilege in principle as between local officials and their government attorneys in the face even of federal grand jury process. See In re Doe II, supra, (but criminal-fraud exception found); In re Grand Jury Subpoena (Doe I),
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886 F.2d 135, 139 (6th Cir. 1989) (however, city lost the right to use the privilege when the meeting minutes became public under state law). Because a federal grand jury has “extraordinary powers of investigation,” United States v. Sells Eng'g, Inc., 463 U.S. 418, 423 (1983), a local government’s attorney-client privilege should be entitled to at least the same deference during a federal criminal trial as during a grand jury investigation. In the absence of dispositive Supreme Court or Fifth Circuit authority, federal courts sitting in Texas should give great weight to Texas privilege policies in determining whether a traditional privilege should be recognized; and as a matter of comity this deference should be particularly strong when a political subdivision of the State and the officials of that governmental unit assert the privilege. See Doe II, 399 F.3d at 527 (deference to Connecticut law protecting communications between governor and his official attorney). In addition to the deference to local laws espoused by the Second Circuit, the First Circuit has recognized the important of state law as the primary factor in that court’s four-part test for recognizing state privileges. See In re Hampers, 651 F.2d 19, 21-23 (1st Cir. 1981).3 The City Attorney is the attorney for each City officer and official, as well as for the City and its Council, and other City agencies and departments. As noted above, the City Attorney is expressly designated by the City Charter to advise City officers among other official clients. Dallas, Tx., Charter, ch. VII, § 3(7)). Moreover, his advice to officers in providing Ethics Opinions is expressly made subject to the attorney-client privilege to be held by the officerclients. Dallas, Tx., Code § 12A-33(b)(3). Assistant City Attorneys have the same powers and
The four Hampers factors are: (1) Would the courts of the state recognize such a privilege? (2) Is the state's asserted privilege intrinsically meritorious in the court's independent judgment? (3) Should such a privileged relationship be sedulously fostered? and (4) Is the injury that would inure to the relation by the disclosure of the communication greater than the benefit thereby granted?
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duties and the City Attorney, Dallas, Tx., Charter ch. VII, § 2, so their communications with City officials are likewise privileged. The above-cited charter and code provisions are well within the City’s home-rule legislative powers and have the force of law: It was the purpose of the Home-Rule Amendment [to the Texas Constitution[4] … to bestow upon accepting cities and towns of more than 5000 population full power of self-government, that is, full authority to do anything the legislature could theretofore have authorized them to do. The result is that now it is necessary to look to the acts of the legislature not for grants of power to such cities but only for limitations on their powers. Forwood v. City of Taylor, 147 Tex. 161, 214 S.W.2d 282, 286 (Tex. 1948) (citing TEX. CONST. art. XI, § 5); see also Dallas Merchant’s & Concessionaire’s Assoc. v. City of Dallas, 852 S.W.2d 489, 490-91 (Tex. 1993). Lipscomb v. Randall, 985 S.W.2d 601, 605 (Tex. App. – Fort Worth 1999, pet. denied). Texas case law also explicitly recognizes that local governments and their officials are entitled to communicate under the privilege with their official attorneys. See In re Anderson, 163 S.W.3d 136, 140-42 (Tex. App. – San Antonio 2005, orig. proceeding) (San Antonio City Attorney waived City’s attorney-client privilege by failing to follow state court procedures for claiming it); In re City of Dallas, No. 05-03-00516-CV, 2003 WL 21000387 (Tex. App. – Dallas May 5, 2003, no pet.) (mem.op.) (attorney-client privilege attached to documents involving efforts of city attorney for defendant in negotiating contracts, where he acted as both attorney and negotiator). Further, Texas Rule of Evidence 503 is identical in relevant parts to the above-quoted passages of Supreme Court Standard 503 – Texas governments and officials are “clients” and Texas government attorneys are “attorneys” for purposes of the attorney-client privilege. Texas Rule 503 is adopted with the express authority of the Legislature by the Texas Supreme Court (TEX. GOV’T CODE § 22.004) and Court of Criminal Appeals (TEX. GOV’T CODE § 22.109) by
4
TEX. CONST. art. XI, § 5.
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express delegation of power from the Legislature. Additionally, the Texas Supreme Court has adopted mandatory disciplinary rules involving punishment extending to disbarment that forbid Texas attorneys’ disclosure of confidential client information. See TEX. DISCIPLINARY R.
OF
PROF’L CONDUCT 1.05. These rules also have the force of law under the State’s integrated bar system. See State Bar Act, TEX. GOV’T CODE
CH.
81. Thus the duty of Texas government
lawyers not to divulge privileged information is embodied in State law – a factor that the Second Circuit considered in In re Doe II, 399 F.3d at 534. For these reasons, the Court should recognize and protect the attorney-client privilege of the City and its officials respecting their communications with the City Attorney’s Office here. The Government may assert the so-called “crime-fraud” exception to the attorney-client privilege as to communications that the City may assert to be privileged. However, the
exception cannot apply to communications intended to conceal past offenses – it only excepts communications aimed at furthering continuing or future misconduct. See United States v. Edwards, 303 F.3d 606, 618 (5th Cir. 2002); quoted with approval, In re Grand Jury Subpoenas, 561 F.3d 408, 412 (5th Cir. 2009). “The government bears the burden of establishing a prima facie case that the attorney-client relationship was intended to further criminal or fraudulent activity.” In re Grand Jury Subpoena, 419 F.3d 329, 335 (5th Cir. 2005) (internal quotation marks and citation omitted). “Allegations in pleadings are not evidence and are not sufficient to make a prima facie showing that the crime-fraud exception applies.” Id. at 336 (internal
quotation marks and citation omitted). The Fifth Circuit has refined this prima facie standard, breaking it into two separate components: First there must be a prima facie showing of a violation sufficiently serious to defeat the attorney work-product privilege. Second, the court
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must find some valid relationship between the communication at issue and the prima facie violation. The first part of the test is alternatively stated as requiring a showing that the client was engaged in ongoing fraudulent activity when the work product was sought or produced. The second part of the test is alternatively stated as requiring a showing that the work product material reasonably relates to the fraudulent activity. Id. at 346 (internal quotation marks and citations omitted). The City does not believe that the Government or any defendant can adduce evidence sufficient to meet that burden. Without access to specific questions, the City cannot of course in this memorandum refute in advance any specific grounds upon which the Government may rely for the crime-fraud exception. However, we note here: a. b. The fraud involved in the communication to the attorney must be serious; That fraud must have a material, not merely incidental, relationship to the underlying crime that the Government is investigating; c. The City Attorney’s role in providing ethics and conflict-of–interest opinions does not extend to opining as to legality of conduct under the criminal law. At most, the opinion would extend to whether an official could participate in certain hearings or votes, or engage in certain outside business activities, without violating state or city ethics laws and rules. Thus, if the Government’s theory in respect of the crime-fraud exception is that a suspect lied to the City Attorney in order to be permitted to vote on a matter, the Government should also have to demonstrate that the official’s vote was decisive and that it directly related to the conduct that the Investigation is targeting. [T]he proper scope of the crime-fraud exception must necessarily be limited to those attorney-client communications and work products reasonably related to the
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furtherance of the ongoing or future crime or fraud at issue. Otherwise, to put it simply, the crime-fraud exception swallows the privilege rule. Id. at 347. To the extent if any that the City Attorney’s Office work-product may be elicited by questions at this trial, the principles applicable to such work-product’s admissibility and discoverability will in the main be the same as those applicable to the attorney-client privilege. Id. The attorney-client privilege of an organization belongs to the organization, not to any individual. See Commodity Futures Trading Comm’n v. Weintraub, 471 U.S. 343, 358 (1985). II City Council Members and Board Members cannot be questioned about their thought processes relating to legislative conduct under the legislative deliberation privilege. “The testimonial privilege is an inherent aspect of the legislative immunity that applies to local legislators under the Speech and Debate Clause of the United States Constitution.” Cunningham v. Chapel Hill, ISD, 438 F. Supp. 2d 718, 723 (E.D. Tex. 2006). The duties and powers of the Dallas City Council are predominantly legislative. These duties are specified in several provisions scattered throughout the City Charter and City Code, both available online via links from www.dallascityattorney.org, and in Texas statutes, but of particular relevance is City Charter Chapter III. Most pertinently, “[e]xcept as otherwise
provided by [the] Charter, all powers conferred on the city shall be exercised by a city council to be composed of 15 members,” including the Mayor. Dallas, Tx., Charter ch. III, § 1. Thus, the City Council is the legislature of the City, as is also established by plentiful evidence already admitted during the court of this trial and is generally known in this district.
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Further, land use decisions of the City Plan & Zoning Commission, including zoning and platting, are legislative. See Weatherford v. City of San Marcos, 157 S.W.3d 473, 483–484 (Tex. App.-Austin 2004, pet. denied); City of Pharr v. Tippitt, 616 S.W.2d 173, 175-76 (Tex.1981); see also John Mixon, James L. Dougherty, Jr. & Brenda N. McDonald, TEXAS MUNICIPAL ZONING LAW, § 7.104 (3d. ed.1999) ("[a]doption or rejection of a PDD by ordinance amendment is, by current Texas and Fifth Circuit law, a legislative act"). Zoning is a governmental function that allows "a municipality, in the exercise of its legislative discretion, to restrict the use of private property." City of Brookside Village v. Comeau, 633 S.W.2d 790, 792 (Tex. 1982); see Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 933 (Tex. 1998) ("Zoning decisions are vested in the discretion of municipal authorities; courts should not assume the role of a super zoning board."); City of Round Rock v. Smith, 687 S.W.2d 300, 302-03 (Tex. 1985) ("plat approval is a governmental function"). Of course, City Council land use actions based on Plan & Zoning Commission Recommendations are by definition also legislative. For example, a City Council’s denial of an application for a specific use permit has been held to be a legislative function. See Bannum v. City of Beaumont, 236 F. Supp. 2d 633, 634 (E.D. Tex. 2002). The principle that legislators are absolutely immune from liability for their legislative activities has long been recognized in Anglo-American law. Bogan v. Scott-Harris, 523 U.S. 44, 48 (1998). The Supreme Court has held that this immunity applies to local legislators such as City Council members. Id. at 49. When a local legislator such as a city council member is shielded from liability by legislative immunity, evidentiary and testimonial privileges preclude any party from deposing the local legislator or otherwise compelling testimony about legislative actions taken in the sphere of legitimate legislative activity. Cunningham v. Chapel Hill ISD,
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438 F. Supp. 2d 718, 722 (E.D. Tex. 2006); Bannum v. City of Beaumont, supra, 236 F. Supp. 2d at 634; see also Minton v. St. Bernard Parish Sch. Bd., 803 F. 2d 129, 135 (5th Cir. 1986). Not all actions taken by an official with legislative duties are protected by legislative immunity. The immunity protects only those duties that are functionally legislative. Hughes v. Tarrant County Tex., 948 F. 2d 918, 920 (5th Cir. 1991). “Whether an act is legislative turns on the nature of the act, rather than on the motive or intent of the official performing it.” Bogan, 523 U.S. at 54. Relying on Hughes, 948 F. 2d at 920 the Texas Supreme Court has held that a function is legislative, and thus protected by immunity, if it “reflects a discretionary, policymaking decision of general application, rather than an individualized decision based upon particular facts.” In re Perry, 60 S.W. 3d 857, 860 (Tex. 2001)(citing Bogan, 523 U.S. at 54). Likewise, the Fifth Circuit has developed two “general guidelines” for determining “whether a particular activity is legislative rather than administrative and therefore protected by immunity.” Bryan v. City of Madison, 213 F. 3d 267, 273 (5th Cir. 2000). The Fifth Circuit described these guidelines as follows: The first test focuses on the nature of the facts used to reach the given decision. If the underlying facts on which the decision is based are legislative facts, such as generalizations concerning a policy or state of affairs, then the decision is legislative. If the facts used in the decisionmaking are more specific, such as those that relate to particular individuals or situations, then the decision is administrative. The second test focuses on the particularity of the impact of the state action. If the action involves establishment of a general policy, it is legislative; if the action single[s] out specific individuals and affect[s] them differently from others, it is legislative. Hughes, 948 F. 2d at 921; Bryan, 213 F. 3d at 273. The “more the general community is affected by the action, the more likely it is a legislative act.” Bannum, 236 F. Supp. 2d at 635. In Bannum, the Court held that the City Council’s denial of Bannum’s application for a specific use permit for operation of a halfway house at a proposed location was legislative
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because it revolved around a debate over public safety and “reflected a discretionary, policymaking decision implicating the city and specific communities.” Bannum, 236 F. Supp. 2d at 636. The Bannum Court concluded, therefore, that Bannum was precluded from taking the depositions of the Council members by the testimonial privilege attached to legislative immunity. Id. at 637. The privilege clearly belongs to the local government, not just to the local councilmember, because it is the local government’s interest in protecting the democratic process, not the local legislator’s personal interests, that justifies recognition of the privilege. As the Cunningham court explained: To [refuse to apply the privilege to local government legislators], would undoubtably have a chilling effect on local legislative bodies and their members. Denying local legislators the protection of the testimonial privilege would likely dissuade some citizens from volunteering for such local legislative bodies and would surely hinder the free flow of discussion that is such an integral part of the democratic legislative process employed by these and all other legislative bodies in this country. 438 F. Supp. 2d at 722–723. Therefore, the city should be allowed to assert the privilege even if a present or former legislator might wish to waive it. In particular, a former official should not be empowered to waive a governmental unit’s present privilege.
Respectfully submitted, OFFICE OF CITY ATTORNEY CITY OF DALLAS, TEXAS
By: /s/ Peter B. Haskel PETER B. HASKEL Assistant City Attorney TXNB 09198900
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Dallas City Attorney’s Office 1500 Marilla, Room 7BN Dallas TX 75201 214-670-3519 214-670-0622 (FAX) [email protected] ATTORNEYS FOR CITY OF DALLAS, TEXAS
CERTIFICATE OF SERVICE I hereby certify that on August 4, 2009, I electronically filed the foregoing memorandum of points and authorities with the clerk of the court for the U.S. District Court, Northern District of Texas, using the electronic case filing system of the court. Upon information and belief, the electronic case filing system sent a “Notice of Electronic Filing” to all attorneys of record who have consented in writing to accept this Notice as service of this document by electronic means.
/s/ Peter B. Haskel
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