                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-9-2003

Vieth v. Comm of PA
Precedential or Non-Precedential: Non-Precedential

Docket 02-1580




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                                                    NOT PRECEDENTIAL

               UNITED STATES COURT OF APPEALS
                    FOR THE THIRD CIRCUIT


                            No. 02-1580


       RICHARD VIETH; NORMA JEAN VIETH; SUSAN FUREY

                                  v.

COMMONWEALTH OF PA; MARK S. SCHW EIKER, In his official capacity
   as Governor of Pennsylvania; KIM PIZZINGRILLI, In her official
      capacity as Secretary of the Commonwealth of Pennsylvania;
    RICHARD FILLING, In his official capacity as Commissioner of
      the Bureau of Commissions, Elections, and Legislation of the
    Pennsylvania Department of State; ROBERT C. JUBELIRER, In
       his official capacity as Lieutenant Governor of Pennsylvania
    and President of the Pennsylvania Senate; MATTHEW J. RYAN,
           In his official capacity as Speaker of the Pennsylvania
                           House of Representatives

         REPUBLICAN CAUCUS OF THE PENNSYLVANIA
         HOUSE OF REPRESENTATIVES (Intervenor in D.C.)

              Republican Caucus of the Pennsylvania House
                          of Representatives,
                                         Appellant


       APPEAL FROM THE UNITED STATES DISTRICT COURT
         FOR MIDDLE THE DISTRICT OF PENNSYLVANIA
                       D.C. Civil No. 01-cv-02439
            District Judge: The Honorable Sylvia H. Rambo


              Submitted Under Third Circuit LAR 34.1(a)
                           April 7, 2003
           Before: BECKER * , Chief Judge, BARRY and BRIGHT, ** Circuit Judges


                                    (Filed: May 9, 2003)


                                         OPINION
                                        __________


BARRY, Circuit Judge

         As a result of the 2000 census, Pennsylvania lost two congressional seats and was

required to adopt a redistricting plan. This appeal arises out of a challenge to the General

Assembly’s first such plan, which was signed into law on January 7, 2002. Appellant, the

House Republican Caucus of the Pennsylvania General Assembly (“Caucus”), was

permitted to intervene in the underlying case for the limited purpose of supporting a

motion to quash a subpoena duces tecum served on a third party. After the motion to

quash was denied, the Caucus filed this appeal. We will dism iss the appeal as moot.




                                              I.

         Plaintiffs, three registered Democrats, sued defendants, the Commonwealth of

Pennsylvania and various state officials, alleging that Act 1, the redistricting plan



   *
       Judge Becker completed his term as Chief Judge on May 4, 2003.
   **
      The Honorable Myron H. Bright, United States Circuit Judge for the Eighth Circuit,
sitting by designation.

                                              2
adopted in January of 2002, was unconstitutional. A district court of three judges

(Nygaard, C.J.; Rambo and Yohn, D.J.’s) was convened pursuant to 28 U.S.C. § 2284 (a),

which provides for such a panel “when an action is filed challenging the constitutionality

of the apportionment of congressional districts.” 28 U.S.C. § 2284 (a). An order issued

setting an expedited discovery schedule and scheduling an evidentiary hearing for March

11, 2002.

       On February 8, 2002, plaintiffs’ counsel served a subpoena duces tecum on the

Custodian of Records of Carnegie Mellon University (“CMU”), seeking the following

documents:

               (1) the contract between (a) the Pennsylvania House Republican
       Caucus and/or John Perzel and/or any related entity and (b) Carnegie
       Mellon University, the Pittsburgh Supercomputing Center, or any related
       individual or person relating to a demographic analysis of census data; and
       (2) all communications, including request for maps or data, between
       Beverly Clayton and/or the Office of Sponsored Research (and its
       employees) and the Pennsylvania House Republican Caucus, any member
       of that Caucus, and/or any employee or representative of any member
       pertaining to that contract.

According to plaintiffs, “[t]he purpose of the subpoena was to obtain further evidence

supporting the fact, as had been reported in the press and testified to at the

Commonwealth Court hearing, that CMU had performed highly sophisticated census

analysis that underlies the meanderings of the Congressional boundaries established by

Act 1.” Plaintiffs’ Memorandum of Law in Opposition to Motion to Quash Subpoena or

for Protective Order at 1-2.


                                              3
         On February 19, 2002, defendants Lieutenant Governor Robert C. Jubelirer and

Speaker of the House of Representatives Matthew J. Ryan (the “Presiding Officers”) filed

a motion to quash the subpoena or, in the alternative, for a protective order. On February

22, 2002, the Caucus was granted permission to intervene to support the Presiding

Officers’ motion to quash. That same day, the motion to quash was denied.

         The Presiding Officers, along with the Caucus, filed a motion to stay the order

denying the motion to quash pending appeal, and the Caucus filed a timely notice of

appeal to this Court. On February 25, 2002, CMU produced most of the documents

requested and the motion for a stay was subsequently withdrawn.

         On March 11th and 12th of 2002, the three-judge panel held an evidentiary hearing

and on April 8, 2002 determined that Act 1 violated the dictates of one person-one vote

and enjoined its implementation. The panel granted the Pennsylvania General Assembly

three weeks to submit a plan that would remedy the constitutional deficiencies it had

found.

         On April 17, 2002, the General Assembly enacted a revised congressional

redistricting plan, Act 34, which the governor signed into law the next day. Act 34

repealed Act 1 and replaced it with Act 34's boundaries. Defendants then petitioned the

panel to stay its decision regarding Act 1 and to allow the 2002 congressional elections to

proceed under Act 1's boundaries, which the panel agreed to do. As a result, Act 34 was

not in effect for the congressional elections that took place in November of 2002. Act 34


                                              4
is scheduled to govern the next round of congressional elections in November of 2004,

however.

       Plaintiffs filed a motion challenging Act 34 and seeking to impose remedial

districts or hold remedial hearings; defendants subsequently moved for sum mary

judgment. On January 24, 2003, the three-judge panel upheld the new redistricting plan,

finding that it satisfied the one person-one vote requirement, that a possible violation of

the state constitution did not change the result, and that the plan did not involve illegal

gerrymandering. Plaintiffs have appealed that decision to the Supreme Court of the

United States.




                                              II.

       All that is before us on this appeal is the February 22, 2002 order denying the

motion to quash. This appeal is properly before us, despite the fact that a three-judge

panel was convened in this case. “Except as otherwise provided by law, any party may

appeal to the Supreme Court from an order granting or denying, after notice and hearing,

an interlocutory or permanent injunction in any civil action, suit or proceeding required

by an Act of Congress to be heard and determined by a district court of three judges.” 28

U.S.C. § 1253. The discovery order at issue in this appeal was not, of course, an order

granting or denying injunctive relief and so appeal to the Supreme Court would have been




                                              5
inappropriate.1 As for an appeal to our Court, the Caucus was not required to wait until

the case proceeded to judgment before appealing the denial of its motion to quash because

the order denying the motion was “a final order as to [it].” In re Grand Jury, 111 F.3d

1066, 1076 (3d Cir. 1997).

       We turn, then, to the question of mootness, given that the subpoenaed documents

have been produced. Plaintiffs, we note, have declined to participate in this appeal. In a

letter to us, dated December 16, 2002, they explained that because the three-judge panel

had already issued its decision without the subpoenaed documents having been offered

into evidence, the outcome of this appeal would have no impact on them. The Caucus, on

the other hand, explained in its letter to us of March 12, 2003 that it wishes to continue to

pursue this appeal, despite the fact that the underlying case is “over,” “because the issue

of legislative privilege in connection with non-parties and discovery was one we were

encountering in other cases.” The Caucus also noted that the case was not actually over,

because of the pending Supreme Court appeal.

       In the above-mentioned letter and in its brief on appeal, the Caucus makes two

arguments as to why this appeal is not moot, and one for why, if it is, an exception to the

mootness doctrine should apply. First, the Caucus argues that the case is not moot

because conceivably the Supreme Court could reverse the January 24, 2003 order of the




   1
    The Caucus nonetheless appealed the order denying the motion to quash to the
Supreme Court. The Court dismissed the appeal for want of jurisdiction.

                                              6
three-judge panel and remand for further proceedings. This argument fails because the

dispute over the motion to quash centered on the release of documents to plaintiffs, not

their evidentiary use. Should the case be remanded, and should a dispute then arise over

the evidentiary use of the docum ents, that dispute will be for the three-judge panel to

resolve in the first instance. See In re Federal Grand Jury Proceedings, 89-10 (MIA), 938

F.2d 1578, 1580 (11th Cir. 1991)(holding that attorney-client privilege challenge to

attorney’s testimony before grand jury was moot as attorney had already testified, and

that appeals court could not issue an advisory opinion regarding the admissibility of the

testimony at trial).

       The Caucus argues, next, that the case is not moot because while it might not be

possible for us “to return the parties to the status quo ante,” it is still possible to “fashion

some form of meaningful relief.” Church of Scientology of Cal. v. United States, 506

U.S. 9, 12-13 (1992). The availability of even a less-than-fully-satisfactory remedy is

sufficient to prevent a case from being moot. Id. at 13. “Such relief need not have been

requested in the pleadings. Rather, ‘it is the court's obligation to grant the relief to which

the prevailing party is entitled whether it has been specifically demanded or not.’”

Reschini v. First Fed. Sav. and Loan Ass'n of Indiana, 46 F.3d 246, 249 (3d Cir.

1995)(quoting Kirby v. United States Dep't of Hous. & Urban Dev., 745 F.2d 204, 207

(3d Cir.1984)).

       The Caucus suggests that meaningful relief is still available because we could


                                                7
order plaintiffs to destroy the documents they received from CMU. This is the remedy

suggested in Church of Scientology. But that case is quite different from this case. L.

Ron Hubbard, founder of the Church of Scientology, was being investigated by the

Internal Revenue Service (“IRS”). In connection with the investigation, the IRS served a

summons on a state-court clerk seeking the production of, among other things, two tapes

of conversations between Church officials and their attorneys. The IRS then commenced

a proceeding to enforce the summons, the lower court ordered compliance, and the

Church appealed. W hile the appeal was pending, copies of the tapes were turned over to

the IRS. As a result, the Court of Appeals dismissed the appeal as moot. The Supreme

Court vacated the dismissal:

              Taxpayers have an obvious possessory interest in their records.
       When the Government has obtained such materials as a result of an
       unlawful summons, that interest is violated and a court can effectuate relief
       by ordering the Government to return the records. Moreover, even if the
       Government retains only copies of the disputed materials, a taxpayer still
       suffers injury by the Government's continued possession of those materials,
       namely, the affront to the taxpayer's privacy. A person's interest in
       maintaining the privacy of his "papers and effects" is of sufficient
       importance to merit constitutional protection . . . .

Church of Scientology, 506 U.S. at 12-13.

       The Caucus does not claim to have a possessory interest in the documents retained

by CMU and the existence and significance of any privacy interest is at best unclear.

“‘[U]nlike privileges such as attorney-client, physician-patient, or priest-penitent, the

purpose of which is to prevent disclosures which would tend to inhibit the development of


                                              8
socially desirable confidential relationships, the Speech or Debate privilege is at its core a

use privilege.’” Gov’t of the Virgin Islands v. Lee, 775 F.2d 514, 523 (3d Cir.

1985)(quoting In re Grand Jury (Intervenor A), 587 F.2d 589, 596 (3d Cir. 1978)). See

also Powell v. Ridge, 247 F.3d 520, 524 (3d Cir. 2001)(noting that legislative immunity is

not “bottomed on confidentiality”).

       Moreover, none or almost none of the purposes of the legislative privilege would

be served by ordering destruction of the documents. The primary purpose of the

privilege is to “protect the integrity of the legislative process by insuring the

independence of individual legislators.” United States v. Brewster, 408 U.S. 501, 507

(1972). The privilege enables legislators to function independently, “without regard to

the distractions of private civil litigation or the perils of criminal prosecution.” Brown &

Williamson Tobacco Corp. v. Williams, 62 F.3d 408, 415 (D.C. Cir. 1995). It prevents

“‘intimidation of legislators by the Executive and accountability before a possibly hostile

judiciary’” and shields the legislature from delay and disruption. Larsen v. Senate of the

Commonwealth of Pa., 152 F.3d 240, 250 (3d Cir. 1998)(quoting Eastland v. United

States Servicemen’s Fund, 421 U.S. 491, 502 (1975). Here, any threat to the integrity of

the legislative process caused by CMU’s compliance with the subpoena has already

occurred. Destroying the documents would not remedy past delay, distraction, disruption




                                               9
or intimidation or in any other way effectuate meaningful relief. 2

       The Caucus presses on, arguing that even if this case is technically moot, we

should nonetheless decide it on the merits because it fits within the “capable of repetition,

yet evading review” exception to the mootness doctrine. That exception, however, is

limited to cases which have two elements: “(1) the challenged action was in its duration

too short to be fully litigated to its cessation or expiration and (2) there is a reasonable

likelihood that the same complaining party would be subjected to the same action again.”

Doe v. Delie, 257 F.3d 309, 313 (3d Cir. 2001)(citations omitted).

       It is not enough to merely conclude, as the Caucus does, that “the issue of

legislative immunity in the discovery context” is capable of repetition. As for this case,

there is no more than a theoretical possibility that CMU will again be subpoenaed and

ordered to produce documents relating to the work it did on the 2000 census. In any

event, if it were to be subpoenaed, there is no reason to believe that review will be

evaded.

       In sum, we lack jurisdiction over this appeal because it is moot. The appeal will be

dismissed.




TO THE CLERK OF THE COURT:


   2
    We note that the Caucus asserts but does not explain why destruction of the
documents would serve as a partial remedy for the harm it has allegedly suffered. If it
had offered more in the way of explanation, the calculus might be different.

                                              10
Kindly file the foregoing Opinion.




                           /s/ Maryanne Trump Barry
                           Circuit Judge




                                     11
