Opinion
Case No. 00-1951-CJV-JAL
August 14, 2001
ORDER
This Cause comes before the Court on Miami-Dade County Commissioner Jimmy Morales' Motion for Protective Order, filed May 18, 2001. (D.E. 69.) Plaintiff filed a Response on June 12, 2001 (D.E. 82) and Commissioner Morales filed a Reply on June 22, 2001. (D.E. 91.) A hearing on the matter was held on July 17, 2001. Subsequent to the hearing and with the Court's permission, a Supplemental Memorandum of Law was filed by Commissioner Morales on July 23, 2001. (D.E. 104.)
On June 23, 2000, Plaintiff M Securities and Investments, Inc. d/b/a Howard Gary Company filed an 11-Count Amended Complaint against Miami-Dade County, Florida and various other Defendants alleging, inter alia, Equal Protection violations under the Federal Constitution and under Florida law (Counts I and II), a Due Process violation (Count III), and violations of 42 U.S.C. § 1983 and § 1981 (Counts IV and V). (D.E. 10.) Among the allegations pertiment to the instant Motion for Protective Order is Plaintiffs contention that the Budget, Finance and Public Trust Committee improperly voted in 1996 to recommend removing Plaintiff from the participation list of underwriters used for certain bond issues. Plaintiff alleges that as a result of this improper recommendation, he was not chosen to be part of an underwriting team for the Series 1996 Revenue Bonds, as enacted by the Miami-Dade County Commission in Resolution No. 1187-96. Plaintiff presently seeks to depose Commissioner Jimmy Morales ("Morales"), who was chairman of the Budget, Finance and Public Trust Committee, which recommended the bond underwriting team at issue in this case. Commissioner Morales has moved for a protective order on the basis that legislative immunity precludes discovery into his motives and purposes in recommending the enactment of the Resolution.
The doctrine of legislative immunity stems from the speech and debate clause embodied in Article I § 6 of the United States Constitution, which protects national legislators from suits. Yeldell v. Cooper Green Hosp. Inc., 956 F.2d 1056, 1060 (11th Cir. 1992). This privilege was extended to state legislators for actions taken "in the sphere of legitimate legislative activity" in the Supreme Court case of Tenney v. Brandhove, 341 U.S. 367, 376 (1951), and further expanded in this Circuit to include local legislators in Hernandez v. City of Lafayette, 643 F.2d 1188 (5th Cir. Unit A June 1981). See also DeSisto College, Inc. v. P. Line, 888 F.2d 755, 764-65 (11th Cir. 1989); Baytree of Inverarry Realty Partners v. City of Lauderhill, 873 F.2d 1407, 1409 (11th Cir. 1989); Espanola Way Corp. v. Meyerson, 690 F.2d 827, 829 (11th Cir. 1982).
The Eleventh Circuit adopted as precedent all Fifth Circuit opinions issued before November 3, 1981. See Bonner v. City of Pritchard, 661 F.2d 1206 (11th Cir. 1981). The Hernandez opinion was issued in June 1981, and is therefore binding precedent in the Eleventh Circuit.
Legislative immunity attaches when legislators engage "in legislative activity." DeSisto College Inc., 888 F.2d at 765 (11th Cir. 1989). Under Eleventh Circuit law, engaging in legislative activity means any "conduct in furtherance of [the legislator's] duties." Id. (citing Hernandez, 643 F.2d at 1193). The nature of the legislative act "determines whether legislative immunity shields the individual from suit." Yeldell, 956 F.2d at 1062. Protected acts are those that are "an integral part of the deliberative and communicative processes by which [legislators] participate in . . . proceedings with respect to the legislation." Smith v. Lomax, 43 F.3d 402, 405 (11th Cir. 1995). These acts include activities such as voting, speech making on the floor, preparing committee reports, and participating in committee investigations and proceedings. Yeldell, 956 F.2d at 1062; DeSisto, 888 F.2d at 765.
Plaintiff argues that the cases cited by counsel for Commissioner Morales are inapplicable because those cases apply only where the legislative officer is sued, and not where a Commissioner is a "witness" to the legislative proceedings. The Court finds Plaintiffs distinction inapplicable to this case, as Commissioner Morales was acting within the ambit of the legislative immunity doctrine's protection, as defined by this Circuit's case law and as defined by the law on legislative immunity in general. In the present case, the Miami-Dade County Code required the Miami-Dade County Commission to select an underwriting team. See § 2-10.6(f), Miami-Dade County Code. Prior to enacting the Resolution at issue, the Commission sought the recommendation of the Budget, Finance, and Public Trust Committee. The actions taken by the Budget, Finance, and Public Trust Committee, as well as the Commission, are all protected under the rubric of legislative immunity, as the actions taken were part of the "deliberative and communicative processes by which legislators participate in proceedings" to pass or reject legislation. Smith, 45 F.3d at 405; DeSisto College, 888 F.2d at 765; Yeldell, 956 F.2d at 1062.
Plaintiff further argues that legislative immunity does not protect against testimonial discovery. The Court is unpersuaded by this argument. "Legislative immunity not only protects state legislators from civil liability, it also functions as an evidentiary and testimonial privilege. Thus, a state legislator acting "within the sphere of legitimate legislative activity' may not be a party to a civil suit concerning those activities . . . nor may he be required to testify regarding those same actions." Marylanders for Fair Representation, Inc. v. Shaefer, 144 F.R.D. 292, 297-98 (D. Md. 1992); see also Burtnick v. Mclean, 76 F.3d 611, 613 (4th Cir. 1996) (holding that members of a Board of Estimates in a discrimination case pursuant to 42 U.S.C. § 1981 and 1983 were privileged not to testify — "[Plaintiffs] attempt to establish a prima facie case will have to be accomplished without the testimony of the members of the Board . . .
Finally, the Court finds Plaintiffs reliance on United States v. Nixon misplaced, as that case involved: (1) a criminal prosecution; (2) the application of an executive privilege as opposed to a legislative privilege, and (3) the prosecutor in Nixon provided a "demonstrated, specific need for evidence," all factors materially different than the case at hand. United States v. Nixon, 418 U.S. 683, 713 (1974).
Accordingly, after careful review of the record and of argument of counsel, and being otherwise fully advised in the premises, it is hereby
ORDERED AND ADJUDGED that Commissioner Jimmy Morales' Motion for Protective Order (D.E. 69) is GRANTED.