                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-6-2001

Powell v. Ridge
Precedential or Non-Precedential:

Docket 00-1711




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Filed April 6, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-1711

DAVID POWELL; SHELEAN PARKS; PA TRICE EVERAGE;
JULIA A. DAVIS; YVETTE BLAND; GERALDINE NEWTON;
MARIA M. RIVERA; MARY E. MILLER; GREGOR Y LUZAK;
CATHERHINE LUZAK; FU ZHEN XIE; BLACK CLERGY OF
PHILADELPHIA AND VICINITY; PHILADELPHIA BRANCH
NAACP; ASPIRA, INC. OF PENNSYLVANIA; P ARENTS
UNION FOR PUBLIC SCHOOLS; CITIZENS COMMITTEE
ON PUBLIC EDUCATION IN PHILADELPHIA; PARENTS
UNITED FOR BETTER SCHOOLS, INC.; DAVID W .
HORNBECK, SUPERINTENDENT, The School District of
Philadelphia; FLOYD W. ALSTON, PRESIDENT , Board of
Education of the School District of Philadelphia; BOARD
OF EDUCATION OF THE SCHOOL DISTRICT OF
PHILADELPHIA; THE SCHOOL DISTRICT OF
PHILADELPHIA; EDWARD G. RENDELL, MAYOR, City of
Philadelphia; CITY OF PHILADELPHIA

PHILADELPHIA FEDERATION OF TEACHERS LOCAL 3;
TED KIRSCH, PRESIDENT, GUARDIAN AD LITEM,
       Intervenors in D.C.

v.

THOMAS J. RIDGE, Governor of the Commonwealth of
Pennsylvania; JAMES P. GALLAGHER, DR., Chairperson
Commonwealth of Pennsylvania State Board of Education;
EUGENE W. HICKOK, DR., Secretary of Education;
BARBARA HAFER, Treasurer;

MATTHEW J. RYAN; ROBERT C. JUBELIRER; JESS M.
STAIRS; JAMES J. RHOADES,
       Intervenors in D.C.,
       Appellants
ON APPEAL FROM THE UNITED STATES DISTRICT
COURT FOR THE EASTERN DISTRICT
OF PENNSYLVANIA
D.C. Civil No. 98-CV-1223
District Judge: The Honorable Herbert J. Hutton

Argued: January 18, 2001

Before: ROTH, BARRY, Cir cuit Judges and SHADUR,*
District Judge

(Filed: April 6, 2001)

       John P. Krill, Jr., Esquire (Ar gued)
       Linda J. Shorey, Esquire
       Julia M. Glencer, Esquire
       Kirkpatrick & Lockhart
       240 North Third Street
       Harrisburg, Pennsylvania 17101

        Attorney for Appellants Matthew J.
       Ryan, Robert C. Jubelirer, Jess M.
       Stairs and James J. Rhoades

       James J. Rodgers, Esquire
        (Argued)
       Lynn R. Rauch, Esq.
       Dilworth, Paxson, Kalish
        & Kauffman
       1735 Market Street
       3200 The Mellon Bank Center
       Philadelphia, Pennsylvania 19103

       Patricia A. Brannan, Esquire
       Hogan & Hartson
       555 13th Street, N.W.
       Washington, D.C. 20004-1109
_________________________________________________________________

* The Honorable Milton I. Shadur, United States District Judge for the
Northern District of Illinois, sitting by designation.

                               2
William T. Coleman, Jr., Esquir e
Stephen J. Harburg, Esquire
O'Melveny & Myers
555 13th Street, N.W.
Suite 500 West
Washington, D.C. 20004

 Attorneys for Appellees Shelean
Parks, Yvette Bland, Gregory
Luzak, Catherine Luzak, Fu Zhen
Xie, Floyd W. Alston, President,
Board of Education of the School
District of Philadelphia, David W.
Hornbeck, Superintendent, The
School District of Pennsylvania,
Board of Education School District,
Philadelphia, and School District of
Philadelphia,

Michael Churchill, Esquire
Public Interest Law Center of
 Philadelphia
125 South 9th Street, Suite 700
Philadelphia, PA 19107

 Attorneys for Appellees David
Powell, Patrice Everage, Julia A.
Davis, Geraldine Newton, Maria M.
Rivera, Mary E. Miller, Black Clergy
of Philadelphia and Vicinity,
Philadelphia Branch NAACP,
Aspira, Inc. of Pennsylvania,
Parents Union for Public Schools,
Citizens Committee on Public
Education in Philadelphia, and
Parents United for Better Schools,
Inc.

                        3
Jane L. Istvan, Esquire
City of Philadelphia
Law Department
1515 Arch Street, One Parkway
Philadelphia, PA 19102

 Attorneys for Appellees Edward G.
Rendell, Mayor, City of
Philadelphia, and City of
Philadelphia

Ralph J. Teti, Esquire
Willig, Williams & Davidson
1845 Walnut Street
24th Floor
Philadelphia, PA 19103

 Attorneys for Appellees
Philadelphia Federation of Teachers
Local 3, and Ted Kirsch, President,
Guardian ad litem

Edward F. Mannino, Esquire
Akin, Gump, Strauss, Hauer
 & Feld
2005 Market Street
One Commerce Square, Suite 2200
Philadelphia, PA 19103

 Attorneys for Appellees Thomas
Ridge, Governor of the
Commonwealth of Pennsylvania,
James P. Gallagher, Dr.,
Chairperson Commonwealth of
Pennsylvania State Board of
Education, Eugene W. Hickok, Dr.,
Secretary of Education and
Barbara Hafer, Treasurer

                        4
OPINION OF THE COURT

BARRY, Circuit Judge:

Appellants suggest that we recognize a for m of legislative
immunity heretofore unknown in the law, one which can
best be described as "partial legislative immunity." Thus,
and it is not disputed, the immunity appellants assert
would enable them to seek discovery, but not r espond to it;
take depositions, but not be deposed; and testify at trial,
but not be cross examined. Moreover , appellants
presumably believe that when they come upon an aspect of
the litigation they find disagreeable, as they find the
discovery order at issue here to be, they will be able to
pursue an interlocutory appeal in this Court. W e disagree,
and will dismiss this interlocutory appeal for lack of
jurisdiction.

I.

In March 1998, suit was filed by students and parents,
organizations, school district and city officials of the City of
Philadelphia, and the City itself (hereinafter"appellees")
alleging that the formula used by the Commonwealth of
Pennsylvania to allocate certain federal education monies
violated the regulations adopted by the U.S. Department of
Education implementing Title VI of the Civil Rights Act, 42
U.S.C. SS 2000d-2000d-7. See 34 C.F .R. S 100.3(b). More
specifically, the complaint alleged that the Commonwealth's
criteria and methods of funding public education yield
racially discriminatory results in Philadelphia and other
predominantly minority school districts. Injunctive and
declaratory relief was sought against members of the state's
executive branch, including the Governor , the Secretary of
Education, the State Treasurer , and the Chair of the State
Board of Education.

In early May 1998, several leaders of the Pennsylvania
General Assembly (the "Legislative Leaders") moved to
intervene in the suit, citing their financial and legal
interests in the litigation and the need to"articulate to the

                               5
Court the unique perspective of the legislative branch of the
Pennsylvania government." App. at 48a. 1 That motion was
unopposed, and was granted by the District Court. In their
brief in support of intervention, the Legislative Leaders
explicitly concurred in the motion to dismissfiled by the
executive department defendants two days earlier; shortly
thereafter, the legislators filed their own motion to dismiss
or for judgment on the pleadings; and shortly after that,
they filed yet another motion for judgment on the
pleadings. The District Court dismissed the complaint for
failure to state a claim. We reversed, emphasizing that the
validity of appellees' claims could be tested only on a
developed record and rejecting the Legislative Leaders'
argument that plaintiffs lacked standing to maintain each
count of their complaint. Powell v. Ridge, 189 F.3d 387 (3d
Cir. 1999). Notably, we did not mention legislative
immunity, be it partial or absolute, because it was, at least
at that time, a non-issue. The Legislative Leaders and the
executive branch defendants filed separate petitions for
certiorari to the Supreme Court of the United States. Both
petitions were denied. Ryan v. Powell, 528 U.S. 1046
(1999); Ridge v. Powell, 528 U.S. 1046 (1999).

The District Court, taking the cue from us, thereafter
entered a scheduling order and appellees accordingly
sought discovery from all defendants, both executive and
legislative. The Legislative Leaders objected, asserting, for
the first time, "legislative privilege." After a meeting between
counsel for both sides, however, the Legislative Leaders
agreed to search their files to deter mine what documents
they possessed which would fall under the discovery
requests. Ultimately they reported finding two boxes of
documents, only 56 pages of which they deemed to be not
privileged. Appellees then filed a Motion to Compel, which
was granted, although because of a miscommunication
between counsel, the Legislative Leaders' response to the
motion was not received until after the District Court
entered its order. That response, which included a
multitude of objections to the discovery requests including
_________________________________________________________________

1. Then then-proposed intervenors referred to immunity only in passing
when they stated, in a footnote in their brief, that they do not waive any
"speech or debate immunity" they may have. App. at 37a.

                               6
"legislative privilege," was, however, considered by the
Court in connection with the Legislative Leaders' motion for
reconsideration. The Court gave the objections short shrift,
finding that our prior decision stressed the"importance of
Plaintiffs' ability to conduct discovery" and, in light of this
"mandate," denied the motion for reconsideration. The
Legislative Leaders have now appealed the or der granting
the Motion to Compel.2

II.

"As a general rule, discovery orders ar e not final orders of
the district court for purposes of obtaining appellate
jurisdiction under 28 U.S.C. S 1291." In re Ford Motor Co.,
110 F.3d 954, 958 (3d Cir. 1997) (citing Hahnemann Univ.
Hosp. v. Edgar, 74 F.3d 456, 461 (3d Cir . 1996)). The
collateral order doctrine excepts from this prohibition a
narrow range of interlocutory decisions. In re Montgomery
County, 215 F.3d 367, 373 (3d Cir . 2000) (citing Cohen v.
Beneficial Indus. Loan Corp., 337 U.S. 541 (1949)). To come
within the doctrine, an interlocutory decision must
conclusively determine the disputed issue, the issue must
be completely separate from the merits of the action, and
the decision must be effectively unreviewable on appeal
from a final judgment. Id. (citing Coopers & Lybrand v.
Livesay, 437 U.S. 463, 468 (1978)).

Just recently, in Bacher v. Allstate Ins. Co., 211 F.3d 52
(3d Cir. 2000), we discussed the applicability of the
collateral order doctrine to discovery or ders. In Bacher, the
_________________________________________________________________

2. Appellees contend that the Legislative Leaders should have appealed
the denial of their Motion for Reconsideration rather than the order
granting the Motion to Compel. Without pausing to decide that issue, we
note that "decisions on the merits are not to be avoided on grounds of
technical violations of procedural rules," Polonski v. Trump Taj Mahal
Associates, 137 F.3d 139, 144 (3d Cir . 1998), cert. denied, 525 U.S. 823
(1996). This Court will exercise appellate jurisdiction over orders not
specified in the notice of appeal where "(1) there is a connection between
the specified and unspecified orders; (2) the intention to appeal the
unspecified order is apparent; and (3) the opposing party is not
prejudiced and has a full opportunity to brief the issues." Id. (citations
and internal quotations omitted). Each of those conditions is met here.

                               7
defendant insurance carrier contended that "sensitive"
information regarding previous settlements ought to be
privileged from discovery. Id. at 55. W e found that in light
of Cunningham v. Hamilton County, 527 U.S. 198 (1999),
Digital Equipment Corp. v. Desktop Direct, Inc., 511 U.S. 863
(1994), and the approach taken by other courts of appeals
-- which, we noted, prohibit immediate r eview of discovery
orders even when privilege issues are involved -- the
collateral order doctrine does not reach appeals of discovery
orders "beyond the narrow categories of trade secrets and
traditionally recognized privileges, such as attorney-client
and work product." Bacher, 211 F .3d at 57 (emphasis added).3
Underlying these narrow exceptions to the general rule of
non appealability is a concern that wher e confidential
information is sought, there is no way, absent immediate
appeal of the order requiring disclosur e, to "unscramble the
egg scrambled by the disclosure." For d, 110 F.3d at 963. It
bears mention that even if legislative immunity in its
traditionally recognized form wer e similarly bottomed on
confidentiality, which it is not, the Legislative Leaders
explicitly disavow any such interest.

It is beyond argument that absolute legislative immunity
represents a traditionally recognized privilege, and orders
denying legislative immunity have often been r eviewed
under the collateral order doctrine. Absolute immunity,
after all, creates not only protection fr om liability, but also
a right not to stand trial. Montgomery County , 215 F.3d at
373 (citing Mitchell v. Forsyth, 472 U.S. 511, 525 (1985)).
"Thus, interlocutory review of the Appellants' absolute
immunity claims is necessary to preserve the pr otections
such immunity affords." Id. In light of such clear case law,
the jurisdictional hurdle discussed in Bacher would not
_________________________________________________________________

3. We even more recently examined an interlocutory appeal of a discovery
order in Pearson v. Miller, 211 F .3d 57 (2000). Writing only a few days
after the Bacher decision, we found jurisdiction under the collateral
order doctrine. Id. at 64-65. Pearson is clearly distinguishable from what
is at issue here. The information sought in Pearson was confidential and
the privilege asserted was based upon specific confidentiality provisions
of three state statutes. Id. at 62-63. The Legislative Leaders, by
contrast,
do not assert a privilege under state law nor any interest in
confidentiality.

                               8
stand in the way of a legislator asserting facts giving rise to
a colorable claim of legislative immunity.

This is not such a case. Although Bacher found that the
collateral order doctrine "should apply to broad categories
of interlocutory orders, without concer n for the individual
circumstances of particular cases," Bacher, 211 F.3d at 56
(citing Digital Equipment, 511 U.S. at 868), the Legislative
Leaders stray far beyond the bounds of traditional
legislative immunity, territory they surely r ecognize.
Legislative immunity, they explain, is a doctrine which
"protects state legislators absolutely fr om liability for their
legislative activities. It also provides legislators with
protection from the burden of defending themselves when
engaged in the sphere of legitimate legislative activity."
Appellants' Br. at 14-15 (citations and inter nal quotations
omitted). Furthermore, they add, legislative immunity
"protects against disruption to the legislative process,
which civil discovery invariably precipitates." Id. at 44,
n.14. All of this, of course, is correct.

Despite their understanding of legislative immunity's
broad parameters, however, the Legislative Leaders are not
seeking immunity from this suit which, it must be
remembered, they voluntarily joined. Nor are the Legislative
Leaders seeking any kind of wholesale protection from the
burden of defending themselves. Instead, the Legislative
Leaders build from scratch a privilege which would allow
them to continue to actively participate in this litigation by
submitting briefs, motions, and discovery requests of their
own, yet allow them to refuse to comply with and, most
likely, appeal from every adverse order . As we noted at the
outset, and as the Legislative Leaders conceded at oral
argument, the privilege they propose would enable them to
seek discovery, but not respond to it; take depositions, but
not be deposed; and testify at trial, but not be cr oss-
examined. In short, they assert a privilege that does not
exist.

Not surprisingly, the Legislative Leaders have failed to
come up with even one case which hints at the existence of
the privilege they press. Moreover , every case which they do
cite to support this privilege features, in dir ect contrast to
this case, a defendant or a target of a subpoena seeking to

                               9
extricate himself or herself completely fr om various legal
entanglements. See, e.g., Burtnick v. McLean, 76 F.3d 611
(4th Cir. 1996); Brown & W illiamson Tobacco Corp. v.
Williams, 62 F.3d 408 (D.C. Cir . 1995); MINPECO, S.A. v.
Conticommodity Services, Inc., 844 F.2d 856 (D.C. Cir.
1988); Miller v. Transamerican Press, Inc., 709 F.2d 524
(9th Cir. 1983); 2BD Assoc. Limited v. County
Commissioners for Queen Anne's Co., 896 F . Supp. 528 (D.
Md. 1995); Marylanders for Fair Representation, Inc. v.
Schaefer, 144 F.R.D. 292 (D. Md. 1992); Campaign for
Fiscal Equity v. New York, 179 Misc. 2d 907 (N.Y. Sup. Ct.
1999).

Unlike the reluctant participants in the cases upon which
they rely, the Legislative Leaders voluntarily installed
themselves as defendants. And, unlike the reluctant
participants in those cases, the Leaders wish to r emain as
defendants and participate as long as this case is around;
at no time, we note, have they invoked legislative immunity
as a basis for any of their various motions to dismiss. This
is simply not a case of legislators caught up in litigation in
which they do not wish to be involved. Rather , these are
self-made defendants who seek to turn what has heretofore
been the shield of legislative immunity into a swor d.

A proper invocation of legislative immunity would
typically call for the dismissal of a legislator fr om the
lawsuit. Cases cited by the parties abound with examples of
this complete remedy rather than the piecemeal remedies
sought here. See, e.g., Supr eme Court of Virginia v.
Consumers Union of the United States, 446 U.S. 719, 733-
34 (1980) (stating that if legislative immunity applied,
"defendants in that suit could successfully have sought
dismissal on the grounds of absolute legislative immunity")
(emphasis added); Eastland v. United States Servicemen's
Fund, 421 U.S. 491, 511 n.17 (1975) (while immunity does
not absolve legislators of the responsibility of filing a motion
to dismiss, such motions must be swiftly r esolved); Powell
v. McCormack, 395 U.S. 486, 505-06 (1969) (citing prior
cases in which the Court dismissed actions against
members of Congress under the protection of the Speech
and Debate Clause); Mitchell, 472 U.S. at 525 ("the essence
of absolute immunity is its possessor's entitlement not to

                               10
have to answer for his conduct in a civil damages action.");
Larsen v. Senate of the Commonwealth, 152 F .3d 240, 254
(3d Cir. 1998) (legislators' motion to dismiss granted for
acts taken in legislative capacity).

Not only is dismissal of the legislator the logical and
eminently appropriate result where legislative immunity
applies, it also is the remedy which best furthers the
underlying goals of the doctrine. As we have observed,
"[l]egislative immunity must be applied pragmatically, and
not by labels. Thus, without attempting to draw a line for
all cases, we examine whether [the] request for prospective
relief 8 [can] be accorded consistent with the policies
underlying legislative immunity." Larsen, 152 F.3d at 253.
We, too, need not attempt to set out the pr ecise parameters
of legislative immunity for cases yet to come. W e find it
manifestly clear, however, that absolute legislative immunity
was at the heart of cases such as Larsen. The privilege
described by the Legislative Leaders would not pr otect them
absolutely from the burdens of this litigation and, therefore,
is outside the bounds of traditional legislative immunity.
"Legislators are immune from deterr ents to the uninhibited
discharge of their legislative duty, not for their private
indulgence but for the public good." T enney v. Brandhove,
341 U.S. 367, 377 (1951). See also United States v.
Brewster, 408 U.S. 501, 517 (1972) (shield of legislative
immunity "does not extend beyond what is necessary to
preserve the integrity of the legislative pr ocess"); United
States v. Nixon, 418 U.S. 683, 710 (1974) (cautioning that
privileges "are not lightly created nor expansively
construed").

The opinion concurring in the judgment only because, in
its view, Larsen establishes our jurisdiction, would open the
doors of our Court, albeit briefly, where the"privilege"
invoked has, in the words of the distinguished author of
that opinion, "no basis in law" and has "never been
recognized by this, or any other, court . . . ." Conc. Op. at
13. Those doors must open, in her view, because we cannot
in the course of our jurisdictional analysis even peek to see
whether we are presented with a traditionally recognized
privilege as that would involve touching on the merits. But
if this view were to prevail, Bacher would be rendered

                               11
4. The corollary to our finding of no jurisdiction under Bacher is that
the
Legislative Leaders have not, at least as of yet, invoked absolute
legislative immunity. Neither the District Court nor this Court,
therefore,
has been presented with the question -- and, given our lack of
jurisdiction, we do not decide -- whether such immunity would be
available to voluntary intervenors such as the Legislative Leaders, or
whether the very act of intervening has waived the privilege.
meaningless; indeed, a confined examination of at least
certain underlying facts was necessary in Bacher and would
inevitably be necessary in applying Bacher. In any event, it
appears that, under the concurring opinion itself, a peek at
the merits would be in order, for it concludes that our
collateral order jurisdiction is trigger ed by calling the
privilege " `legislative' . . . in a case involving legislators
acting in a legislative capacity," Conc. Op. at 14, a
paradigm merits determination.

Because the purported privilege the Legislative Leaders
invoke is assuredly not only not "traditionally recognized,"
but is not even suggested by any reasonable r eading of the
applicable case law, Bacher requir es that we dismiss this
interlocutory appeal for lack of jurisdiction.4 We note that,
as in any civil case, the Legislative Leaders r emain
protected by the District Court's power to limit discovery
which is unreasonably cumulative, more easily obtainable
from another source, or unduly bur densome. Fed. R. Civ.
Proc. 26(b)(2).

                               12
ROTH, Circuit Judge, Concurring:

I agree with the Majority that the asserted legislative
immunity from discovery has no basis in law and must be
denied. The immunity asserted is unprecedented in its
scope and breadth. The four Legislative Leaders, who
knowingly and voluntarily intervened as defendants in this
litigation and wish to remain as such, ar gue that they
should enjoy all the rights associated with being parties to
federal litigation while bearing none of the bur dens or
responsibilities. I have found nothing to support the idea
that a state legislator who remains a party to civil litigation
is immune from compliance with discovery. Indeed, not
only has such a privilege never been recognized by this, or
any other, court, but it might conceivably violate an
opposing party's due process rights wer e we to recognize it.

In my view, however, the lack of merit in the Legislative
Leaders' claim of immunity does not mean, as the Majority
holds, that we do not have jurisdiction to hear the appeal
under the Collateral Order Doctrine of Cohen v. Beneficial
Indus. Loan Corp., 337 U.S. 541 (1949), and its progeny.
Rather, the lack of merit means that the claim of immunity
should be denied for just that reason -- it lacks merit. It is
established law in this Circuit that the denial of a claim of
legislative immunity is immediately reviewable under
Cohen. See Larsen v. Senate of the Commonwealth of
Pennsylvania, 152 F.3d 240, 245 (3d Cir . 1998). In my view,
Larsen establishes our jurisdiction here to review the merits
of the claimed immunity.

It is true that the Legislative Leaders raise their claimed
privilege in a different context -- as immunity from
discovery while remaining parties to the civil action, not as
immunity from liability or from having to be parties to the
action at all. See, e.g., Supr eme Court of Virginia v.
Consumers Union of the United States, Inc., 446 U.S. 719,
732-33 (1980). But that does not, as the Majority holds,
change the fact that the Legislative Leaders assert a
privilege that is a by-product of their status as legislators,
just as their recognized immunity from liability and from
having to defend themselves is a by-product of their status
as legislators. See id. Clearly, the immunity that the
Legislative Leaders claim is "legislative." The merits of their

                               13
claimed privilege must be irrelevant to our jurisdictional
analysis.

In my view, the Majority errs by conflating a merits
analysis into its jurisdictional conclusion. The Majority
recognizes that the Legislative Leaders claim that their
immunity falls within the "legislative immunity" rubric, that
the Legislative Leaders claim "a form of legislative immunity
. . . ." Majority at 5. When the Majority subsequently states
that the claimed immunity is "heretofor e unknown in the
law," Majority at 5, and that the Legislative Leaders "assert
a privilege that does not exist", id. at 9, that sounds to me
like a decision on the merits. The Majority's conclusion that
we lack jurisdiction appears to rest on the following
reasoning: A claim of legislative immunity in a new context,
which lacks merit, ceases to be a traditionally r ecognized
privilege and is not reviewable under our decision in Bacher
v. Allstate Ins. Co., 211 F.3d 52, 57 (3d Cir. 2000) (holding
that the collateral order doctrine should not be extended
beyond the narrow categories of trade secr ets and
traditionally recognized privileges). But this begs a
question: If the asserted privilege is not "legislative"
privilege because it is not a "colorable claim" or is not
raised in the appropriate context, what is it?

I believe that simply labeling the defense as "legislative"
privilege, in a case involving legislators acting in a
legislative capacity, is sufficient to trigger our collateral
order jurisdiction, opening the door to immediate appellate
review of the denial of such a claim, r egardless of the fact
that the "legislative" immunity arises in a new or different
context or may lack merit. To my mind, our jurisdiction in
the instant case is compelled by our decision in Larsen,
where we expressly held that we had collateral order
jurisdiction over the denial of claims of legislative
immunity. See Larsen, 152 F.3d at 245.

Moreover, the District Court's or der compelling the
Legislative Leaders to comply with discovery fits within the
three-prong analytical framework that we have established
for determining whether an order is r eviewable under
Cohen: 1) it conclusively resolves the question of whether
the Legislative Leaders must comply with discovery; 2) it
resolves an important issue, immunity fr om discovery of

                                14
legislators who are parties to a case, that is separate from
the merits of the case; and 3) it effectively is unreviewable
on appeal from a final judgment because the Legislative
Leaders would be required to comply with discovery before
they can later assert their immunity. See In r e Ford Motor
Co., 110 F.3d 954, 958 (3d Cir. 1997). Particular emphasis
should be placed on the last prong, granting jurisdiction
over those orders that would be effectively unreviewable on
appeal from a final judgment, see Cunningham v. Hamilton
County, 527 U.S. 198, 204 (1999); Digital Equip. Corp. v.
Desktop Direct, Inc., 511 U.S. 863, 867 (1994); Ford Motor
Corp., 110 F.3d at 958, meaning that the legal and practical
value of the asserted privilege would be destr oyed if not
vindicated prior to trial. See Lauro Lines SRL v. Chasser,
490 U.S. 495, 498-99 (1989).

The Majority relies on our decision in Bacher, supra. But
that decision is not as limiting as the Majority suggests.
Bacher does not stand for the proposition that a
traditionally recognized privilege over which we would have
collateral order jurisdiction, such as legislative immunity,
ceases to be a traditionally recognized privilege merely
because it is raised in a new context and ther efore ceases
to be a colorable or meritorious claim of that privilege.
Bacher did not involve a claim of a particular , identifiable
privilege but was a case in which a party to a civil action
attempted to appeal a run-of-the-mill discovery or der. The
defendant there merely sought to avoid complying with
simple discovery requests on the ground that the
information sought (the amounts of past settlements paid)
was confidential and not relevant and its disclosure would
violate public policy, see Bacher, 211 F .3d at 53, but not
because any privilege or immunity was implicated. Our
conclusion that we lacked jurisdiction was not a new
limitation on the collateral order doctrine but rather a
consistent application of the long-standing rule that simple
discovery orders are not final or ders subject to immediate
review. See Bacher, 211 F.3d at 53 (quoting Ford Motor Co.,
110 F.3d at 958). Here, by contrast, the Legislative Leaders
assert a defined, specific, well-established, traditionally
recognized privilege or immunity, albeit with a twist. But
that twist, regardless of its effect on the merits of the
privilege claim, does not affect our jurisdiction and does not

                               15
turn this case into Bacher -- the claimed privilege remains
legislative, it remains traditionally r ecognized, and it
therefore should remain immediately r eviewable.

Nor, as the Majority suggests, see Majority at 12, does
Bacher require us to conduct a confined examination of the
merits of the claimed privilege, only of the nature of the
privilege, that is, of the type of immunity asserted. I suggest
no differently. As I see it, we must look at the record,
determine the nature or type of immunity asserted, and
evaluate whether it is a traditionally recognized privilege,
such as legislative immunity; this is precisely what Bacher
commands. But looking at whether the immunity asserted
is legislative, meaning asserted by legislators based on their
official activity, and thus traditionally r ecognized, is not a
merits determination. I have not taken "a peek at the
merits," Majority at 12, just at the natur e of the privilege
asserted. Only after concluding that the asserted privilege
is legislative and that we therefore have collateral order
jurisdiction, do I even broach the necessarily separate and
distinct question of whether that claim of legislative
immunity has merit in its current context.

I am concerned with the impact that this ruling may have
on future cases. It is not contested that plaintiffs could
challenge the legality of legislative decisions by suing the
executive officers charged with carrying out those
decisions.* Further, it is clear that plaintiffs could sue
municipalities for legislative actions and the municipalities
themselves are not entitled to legislative immunity. See
Carver v. Foerster, 102 F.3d 96, 104 (3d Cir. 1996). It also
is clear that the individual legislators could not be named
as defendants in such a case, or could be dismissed at an
early stage if the suit were based upon their legislative
_________________________________________________________________

* It is worth noting that not all the Legislative Leaders' activities in
funding education could be deemed legislative; some activities could be
deemed executive and legislative immunity would not attach to such
activities. See Carver v. Foerster, 102 F .3d 96, 101 (3d Cir. 1996) (an
officer's executive or administrative actions ar e separate from
legislative
actions). For example, the record r eflects that two of the Legislative
Leaders are ex officio members of the Pennsylvania Board of Education,
an executive department; any actions in that r ole properly should be
deemed executive.

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activities. See Bogan v. Scott-Harris, 523 U.S. 44, 52-54
(1998); Supreme Court, 446 U.S. at 733-34. But we have
not addressed whether a non-party legislator would be
legislatively immune from being made to comply with
subpoenas for discovery in a civil action.

The Fourth Circuit has decided this issue, holding that
non-party legislators cannot be made to testify or provide
evidence as to their legislative activities or their motives.
See Burtnick v. McLean, 76 F.3d 611, 613 (4th Cir. 1996);
Berkley v. Common Council of the City of Charleston , 63
F.3d 295, 303 n.9 (4th Cir. 1995) (en banc) (suggesting, but
not holding, that prior law indicates that members of the
council would be privileged from testifying). W e have, on the
other hand, noted that the intent-based inquiry that is part
of certain doctrines in constitutional law necessarily means
that judicial inquiry into legislative motive is not per se
forbidden in such cases. See Carver, 102 F .3d at 104; see
also Village of Arlington Heights v. Metr opolitan Hous. Dev.
Corp., 429 U.S. 252, 268 n.18 (1977) (stating that in some
extraordinary circumstances, the members of a legislative
body might be called to testify about legislative actions,
although this is usually to be avoided). We also have held
that a state legislator may be subpoenaed to pr ovide
evidence to a grand jury of which the legislator is not the
target. See In re Grand Jury (Granite Purchases), 821 F.2d
946, 958 (3d Cir. 1987).

The immunity of a non-party legislator from civil
discovery thus is an open issue in this Circuit, one that we
may be called upon to resolve at some point. But suppose
that case were to arise and the District Court were to reject
the claimed privilege and order the non-party legislator to
comply with the subpoena and provide testimony and
discovery. Would we have jurisdiction immediately to review
that order? As I read today's decision, the answer is no. I
see no way to distinguish the future case fr om the instant
case. A privilege from discovery by a non-party legislator
would be as new in this Circuit as the privilege that the
Legislative Leaders seek to assert in the instant case; it
would not be a traditionally recognized privilege, foreclosing
our immediate review under the Majority's r eading of
Bacher. We could not distinguish this future case from the

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instant one by saying that those legislators ar e asserting a
legislative privilege (that is, a privilege that they possess by
virtue of and in connection with their positions and
activities as legislators) and that legislative immunity is a
traditionally recognized privilege, because the Legislative
Leaders here assert a privilege that unquestionably is
"legislative" under such a definition. The only possible
distinction between the instant case and the futur e case is
that the latter might have more merit than the former, that
it might be a colorable application of legislative immunity.
But such consideration of the merits of a privilege must be
irrelevant to the question of our jurisdiction.

If legislative privilege from civil discovery exists, either for
a party, as in the instant case, or for a non-party as it may
arise in the future, it exists to protect legislators from the
burden of having to respond to discovery and of having to
deal with the distractions and disruptions that discovery
imposes on their ability to carry out their gover nmental
functions. See Supreme Court, 446 U.S. at 733; Larsen, 152
F.3d at 245; see also Mitchell v. Forsyth , 472 U.S. 511, 529-
30 (1985) (same with respect to qualified executive
immunity). But a privilege from discovery (assuming,
arguendo, it exists in either situation) is worthless if it
cannot be vindicated prior to the legislators being forced to
comply with discovery. Yet the Majority's approach
effectively renders any possible claim of a legislative
discovery privilege unreviewable until after discovery has
been obtained. I cannot agree with such a limitation on our
appellate jurisdiction.

Because I find that we do have jurisdiction over the
Legislative Leaders' appeal, my next step would be to reach
the merits of the claimed privilege. I would r eject the
privilege on its merits. In this regard, much of my
reasoning is similar to that of the Majority. Indeed, that
suggests to me that the Majority is, in fact, conducting a
merits analysis of the immunity claim and, in ef fect,
rejecting the Legislative Leaders' claim on that basis.

The Legislative Leaders knowingly, willingly, and
voluntarily entered this case by intervening as defendants.
They explicitly wish to remain as defendants. And they
repeatedly insist that they should be tr eated the same as all

                               18
other defendants, as if they had been named in the original
filing, entitled to all the privileges and rights of parties to
civil litigation. It follows, I believe, that they waived any
immunity from discovery by the decision to enter and
remain in the case and to assert their rights as defendants.

The Legislative Leaders have pointed to no case in which
a legislator who is a party to a civil action has been held to
be immune from discovery. Every case the Legislative
Leaders cite in their briefs and at oral argument involves
attempts to take discovery in a civil case fr om legislators
who are not parties to the case. See Burtnick, 76 F.3d at
613; Brown & Williamson Tobacco Corp. v. Williams, 62
F.3d 408, 421 (D.C. Cir. 1995). As discussed supra, we
have not determined whether such immunity exists in this
Circuit and I offer no opinion as to whether such privilege
should exist. But none of these cases supports the
proposition that a legislator who chooses to become a party
to a civil action is immune from discovery.

The party/non-party distinction is critical. Legislative
immunity is intended to protect legislators fr om having to
divert their time, energy, and attention fr om their legislative
tasks in order to defend themselves or to pr ovide evidence
in a civil action. It protects legislators fr om the potential
harassment, disruption, and distraction that would come
with the burden of having to defend themselves and/or
provide evidence. See Supreme Court , 446 U.S. at 733;
Grand Jury, 821 F.2d at 958. But the pr ophylactic function
of the immunity is undermined once the Legislative Leaders
choose to join the case. They have willingly subjected
themselves to any disruptions and distractions that go with
being party to civil litigation. They cannot now claim that
they should be protected from the disruptions and
distractions that they voluntarily undertook.

The Legislative Leaders attempt to downplay the
significance of their intervention. Although they certainly
recognize that legislative immunity may be waived, see
Government of the Virgin Islands v. Lee, 775 F.2d 514, 520
n.7 (3d Cir. 1985) (noting that criminal defendant
legislator's claim that he was impermissibly deposed was
"unpersuasive" where the deposition was voluntary and the
defendant waived any privilege); Burtnick, 76 F.3d at 613

                               19
(holding that non-party's privilege from being compelled to
testify could be waived), the Legislative Leaders suggested
at oral argument that intervening did not waive their
privilege because any such waiver was not sufficiently
explicit. I cannot conceive, however, of a more explicit
waiver of immunity than willingly submitting oneself to the
jurisdiction of a federal district court. If the Legislative
Leaders had been named as defendants in the first instance
and had failed to assert their legislative immunity as an
affirmative defense, they unquestionably could be deemed
to have waived that immunity. Intervening places them in
the identical position.

I find helpful the analysis of the District Court in an
analogous situation, in May v. Cooperman , 578 F. Supp.
1308 (D. N.J. 1984), aff'd in part, appeal dismissed in
relevant part, 780 F.2d 240 (3d Cir. 1985). In May, four
members of the New Jersey legislature, r epresenting that
body, intervened as defendants in a S 1983 action to defend
the constitutionality of a state statute because the
executive refused to defend it. After the law was struck
down, the District Court assessed attorneys' fees against
the legislative defendants, under 42 U.S.C. S 1988; the
legislators argued that they were absolutely immune from
an award of attorneys' fees for their legislative activity. The
District Court rejected this argument, holding that the
legislators had interjected themselves into the lawsuit by
intervening and becoming parties, thereby waiving their
legislative immunity from incidents of suit, such as
attorneys' fees. See May, 578 F . Supp. at 1316-17. The
District Court distinguished prior immunity cases, such as
Supreme Court, because the New Jersey legislators had
chosen to intervene and assume defense of the statute. See
id. at 1317.

Similarly, compliance with discovery, and being
compelled to comply with requests for documents,
information, and testimony, are incidents of suit.
Regardless of whether the Legislative Leaders would have
been immune from such incidents as non-parties, it is clear
that they surrendered any immunity fr om discovery by
voluntarily and willingly entering and remaining in the
action as party defendants.

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I close by emphasizing that my analysis and the
Majority's analysis are very similar in denying the asserted
legislative immunity from discovery. The dif ference is that
the Majority concludes that the lack of merit takes the
immunity outside the bounds of legislative immunity and
divests us of collateral order doctrine jurisdiction. I
conclude that, because the asserted immunity is
"legislative," we have collateral order jurisdiction. The lack
of merit to the claim of immunity means the claim should
be denied on its merits. I would affirm the judgment of the
District Court because the Legislative Leaders have waived
any immunity from discovery. They are as subject to
production of documents and of testimony as is any other
party.

For the above reasons, I concur only in the judgment of
the Court.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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