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John L. Fellows (4212)RuthAnne Frost (13214)
Christine R. Gilbert (13840)
OFFICE OF LEGISLATIVE RESEARCH AND GENERAL COUNSELW210 State Capitol Complex
Salt Lake City, Utah 84114
Telephone: (801) 538-1032
Facsimile: (801) 538-1712Email: [email protected]
Attorneys for Non-Party Senator Curtis S. Bramble
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
UTAH REPUBLICAN PARTY,
Plaintiff,
CONSTITUTION PARTY OF UTAH, a
registered political party of Utah,
Plaintiff and Intervenor,
vs.
GARY R. HERBERT, in his official capacityas Governor of Utah, and SPENCER J. COX,
in his official capacity as Lieutenant Governor
of Utah,
Defendants.
SENATOR CURTIS S. BRAMBLE’S
MOTION TO QUASH SUBPOENAS AND
MEMORANDUM IN SUPPORT
Case No.: 2:14-cv-00876-DN
Chief Judge David Nuffer
Magistrate Judge Dustin B. Pead
Pursuant to Rules 7 and 45 of the Federal Rules of Civil Procedure and DUCivR 7-1, Senator
Curtis S. Bramble (“Senator Bramble”), by and through his undersigned counsel, hereby moves the
Court for an order quashing the two subpoenas duces tecum issued by Plaintiff Utah Republican Party
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In this case, Plaintiff similarly attempts to uncover Senator Bramble’s motivations in
discharging his public responsibilities as a state senator.
4
Plaintiff’s document request, attached
to both subpoenas, makes this clear. Plaintiff seeks, “All communications between January 1,
2013, and the present, with persons associated or affiliated with the Count My Vote initiative,
including but not limited to communications related to the withdrawal of that initiative by
organizers in approximately March 2014.” Exhibits A & B. Plaintiff further requests, “All
communications between January 1, 2013, and the present, related to what became known as the
‘compromise’ that led to SB54, enacted in the 2014 Session [o]f [t]he Utah Legislature.” Id.
Any knowledge, documents, electronically stored information, or objects that Senator
Bramble has that relate to the Count My Vote initiative or to S.B. 54 were obtained in his
capacity as a sitting legislator, while preparing, negotiating, and evaluating proposed legislation.
Bramble Decl., ¶¶ 5-7. Under federal common law, legislative privilege is an absolute bar to
compelling the testimony and documents that Plaintiff seeks in the subpoenas. Therefore, the
court should quash the hearing subpoena and the deposition subpoena.
2.
The Speech or Debate Clause of the Utah Constitution Confers a LegislativePrivilege Identical to Federal Common Law.
The information that Plaintiff seeks in the subpoenas is also privileged under Utah’s
Speech or Debate Clause, Article VI, Section 8 of the Utah Constitution, which provides that
“for words used in any speech or debate in either house, [members of the Legislature] shall not
be questioned in any other place.”5 Like the federal government and forty-three other states,
Utah has adopted the common law legislative immunity and legislative privilege doctrines into
its constitution through a Speech or Debate Clause. William M. Howard, Construction and
4 Senator Bramble is a current member of the Utah Senate, and has served as a state senator
continuously since January 2001. Bramble Decl., ¶ 1.5 Utah’s Speech or Debate Clause is nearly identical to the federal Speech or Debate Clause.
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Application of Federal and State Constitutional and Statutory Speech or Debate Provisions, 24
A.L.R. 6th 255 (2013).
While there is little case law interpreting Utah’s Speech of Debate Clause, Riddle v. Perry,
2002 UT 10, 40 P.3d 1128, suggests that Utah courts would look to federal case law in interpreting
the clause. In Riddle, the Utah Supreme Court addressed whether legislative privilege extends to
a witness in a legislative proceeding and ultimately held that it did. Id. at ¶¶ 7-8. In making its
ruling, the Utah Supreme Court relied extensively upon United States Supreme Court cases
interpreting the common law legislative principle of legislative privilege. See e.g., Id. at ¶ 8
(repeatedly quoting and citing Tenney v. Brandhove, 341 U.S. 367 (1951)). Therefore, if presented
with the issue, a Utah state court would almost certainly conclude that legislative privilege under
Utah’s Speech or Debate Clause is equally as comprehensive as legislative privilege under federal
common law or the federal Speech or Debate Clause.6
Accordingly, the Utah Speech or Debate Clause is also an absolute bar to compelling the testimony
and documents that Plaintiff seeks in the subpoenas.
3.
Quashing the Subpoenas is Consistent with the Underlying Purpose ofLegislative Privilege.
Legislative privilege serves two critical purposes, both of which support the overarching
policy of protecting “the integrity of the legislative process by insuring the independence of
individual legislators.” See Eastland , 421 U.S. at 502. First, legislative privilege protects “the
rights of the people, by enabling their representatives to execute the functions of their office
without fear of prosecutions . . . . ” or “‘the resentment of every one, however powerful, to whom
6 Additionally, Utah courts routinely rely on federal precedent when interpreting a state
constitutional provision that is substantially similar to its federal counterpart. See e.g., Wood v.
Univ. of Utah Med. Ctr., 2002 UT 134, ¶ 29, 67 P.3d 436 (applying federal law to interpret the
Utah Due Process Clause); State v. Daniels, 2002 UT 2, ¶ 42, 40 P.3d 611 (applying federal law
to interpret Utah’s ex post facto clause); State v. Anderson, 910 P.2d 1229, 1238 (Utah 1996)
(applying federal law to interpret Article I, Section 14 of the Utah Constitution).
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the exercise of [the representative’s liberty of speech] may occasion offence.’” Tenney, 341 U.S.
at 373-74 (quoting James Wilson, II Works of James Wilson 38 (Andrew ed. 1896)). Second,
legislative privilege preserves separation of powers by preventing “intimidation of legislators by
the Executive and accountability before a possibly hostile judiciary.” Eastland , 421 U.S. at 502.
Compelling Senator Bramble to provide testimony and documents relating to his work on
the creation and passage of S.B. 54 will severely undermine his independence as a legislator and
chill his ability to effectively represent the rights and interests of his constituents. It will also
compromise the principles of separation of powers because Senator Bramble would be called to
testify and produce documents relating to his legitimate legislative activities before the judiciary.
To preserve the integrity and independence of the legislative process, the court should quash the
subpoenas.
B. The Information that Plaintiff Seeks in its Subpoenas is Improper Because it isNot Relevant to the Claims in this Case.
The court should also quash the hearing subpoena and the deposition subpoena because
Plaintiff’s inquiry into Senator Bramble’s purpose and intent in sponsoring S.B. 54 is improper and
unnecessary. Plaintiff asserts that, as applied, S.B. 54 violates its First Amendment rights to
freedom of speech and freedom of association. See e.g., Compl. ¶¶ 9, 110, 115. Senator Bramble’s
individual motivation and understanding is not relevant to this question for two reasons: (1)
principles of statutory construction dictate that the court should only consider the plain language
of an unambiguous statute when determining its constitutionality; and (2) even if legislative history
were relevant, Senator Bramble’s motivations do not represent the collective intent of the
Legislature.
The Supreme Court has made clear that the “law as passed is the will of the majority of
both houses, and the only mode in which that will is spoken is in the act itself . . . .” Aldridge v.
Williams, 44 U.S. (3 How.) 9, 24 (1845) (emphasis added). Statements by legislators “do not have
the force of law, for the Constitution is quite explicit about the procedure that Congress must
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follow in legislating.” American Hosp. Ass’n v. NLRB, 499 U.S. 606, 615 (1991). For that reason,
“[i]n analyzing a statute, [the Court] begin[s] by examining the text . . . not by ‘psychoanalyzing
those who enacted it . . . .’” Carter v. United States, 530 U.S. 255, 271 (2000).
Senator Bramble’s motivations have no bearing on whether the law is constitutional. It is
only appropriate to look to the plain language of the law to determine its constitutionality.7 Any
negotiations that led to the passage of S.B. 54 are not law and are not subject to judicial
consideration. Moreover, even if the court determines that it is appropriate to consider legislative
history in this case, Senator Bramble’s individual thoughts and motivations do not constitute
legislative history. The Utah Legislature consists of 104 individual members and no single
member can speak to the intent of the whole. The actual legislative history, to the extent it is
relevant, is publically available.8
The court should quash the hearing subpoena and the deposition subpoena because the
testimony and documents that they seek are not relevant to Plaintiff’s claims.
C. Plaintiff Failed to Follow the Procedural Requirements of Rule 45 of the FederalRules of Civil Procedure.
The hearing subpoena and the deposition subpoena are procedurally deficient for two reasons.
First, Rule 45 of the Federal Rules of Civil Procedure states that “[i]f the subpoena commands the
production of documents, electronically stored information, or tangible things . . . before trial, then
before it is served on the person to whom it is directed, a notice and a copy of the subpoena must
7 “[The federal court] interpret[s] state laws according to state rules of statutory
construction” Ward v. Utah, 398 F.3d 1239, 1248 (10th Cir. 2005) (citation omitted)
(interpreting a Utah statute). A Utah federal court would “’therefore interpret [a Utah] statute based on its plain language.’” Id. (quoting O'Keefe v. Utah State Retirement Bd., 956 P.2d 279,
281 (Utah 1998)). “When the language of the statute is plain, other interpretive tools are not
needed. However, if the language is ambiguous, the court may look beyond the statute tolegislative history and public policy to ascertain the statute's intent.” Martinez v. Media- Paymaster Plus/Church of Jesus Christ of Latter-Day Saints, 2007 UT 42, ¶ 47, 164 P.3d 384
(citations omitted).8 See http://le.utah.gov/~2014/bills/static/SB0054.html (last visited April 8, 2015).
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be served on each party.” Fed. R. Civ. P. 45(a)(4). Rules 45 also provides that a person shall have
14 days to respond to a subpoena. Fed. R. Civ. P. 45(d)(2).
Plaintiff has run afoul of both provisions. Counsel for Defendants confirmed that they did
not receive notice or a copy of either subpoena before the subpoenas were served on Senator
Bramble. Additionally, Plaintiff served the hearing subpoena on Senator Bramble seven days
before the date of compliance rather than the requisite 14 days.
Even setting aside the issues of privilege and relevance, which oblige the court to quash
the subpoenas, with such short notice, it is impossible for Senator Bramble to appear at the hearing
on April 10th. He will be out of town on a previously scheduled trip.
V. CONCLUSION
For the foregoing reasons, Senator Bramble respectfully requests the court quash the hearing
subpoena and the deposition subpoena.
Dated this 9th day of April, 2015.
OFFICE OF LEGISLATIVE RESERCH
AND GENERAL COUNSEL
/s/ Christine R. Gilbert
John L. FellowsRuthAnne Frost
Christine R. Gilbert
Attorneys for Non-Party Senator Curtis S.
Bramble
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CERTIFICATE OF SERVICE
I certify that on April 9th, 2015, the foregoing SENATOR CURTIS S. BRAMBLE’S
MOTION TO QUASH SUBPOENAS AND MEMORANDUM IN SUPPORT was
electronically filed with the Clerk of the Court using the CM/ECF system, which sent
notification to:
Marcus R. Mumford
Michelle Mumford
Mumford PC
405 South Main Street, Suite 975
Salt Lake City, Utah 84111Telephone: (801) 428-2000
Email: [email protected]@gmail.com
Attorneys for Plaintiff Utah Republican Party
Collin R. Simonsen
Gregory M. Simonsen
Fetzer Simonsen Booth & Jenkins PC50 West Broadway, Suite 1200
Salt Lake City, Utah 84101Telephone: (801) 328-0266Email: [email protected]
Attorneys for Intervenor Plaintiff Constitution Party of Utah
Parker Douglas
Utah Federal SolicitorDavid N. Wolf
Thomas D. Roberts
Kyle J. KaiserAssistant Utah Attorneys GeneralOffice of the Utah Attorney General
350 North State Street, Suite 230
P.O. Box 142320Salt Lake City, Utah 84114-2320
Telephone: (801) 538-9600
Email: [email protected]
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[email protected]@utah.gov
Attorneys for Defendants
/s/ Christine R. Gilbert
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Exhibit C
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John L. Fellows (4212)RuthAnne Frost (13214)
Christine R. Gilbert (13840)
OFFICE OF LEGISLATIVE RESEARCH AND GENERAL COUNSELW210 State Capitol Complex
Salt Lake City, Utah 84114
Telephone: (801) 538-1032
Facsimile: (801) 538-1712Email: [email protected]
Attorneys for Non-Party Senator Curtis S. Bramble
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
UTAH REPUBLICAN PARTY,
Plaintiff,
CONSTITUTION PARTY OF UTAH, a
registered political party of Utah,
Plaintiff and Intervenor,
vs.
GARY R. HERBERT, in his official capacityas Governor of Utah, and SPENCER J. COX,
in his official capacity as Lieutenant Governor
of Utah,
Defendants.
DECLARATION OF SENATOR CURTIS S.
BRAMBLE
Case No.: 2:14-cv-00876-DN
Chief Judge David Nuffer
Magistrate Judge Dustin B. Pead
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I Curtis S. Bramble, declare and state as follows:
1. I am over 18 years of age and competent to testify to the following matters.
2. I am a member of the Utah Senate, having first been elected as a state senator in 2000. I have
served as a state senator continuously since January 2001, representing District 16, covering
part of Utah County and part of Wasatch County.
3. I was the legislative sponsor of S.B. 54, Elections Amendments, passed during the 2014
General Session of the Legislature. I understand that this bill and communications related to
this bill are the subject of the present subpoenas.
4. On April 3, 2015, I was served with a subpoena via John Fellows, General Counsel to the Utah
Legislature. The subpoena was issued by attorneys for the plaintiff in this case. The subpoena
commands me to provide certain documents relating to S.B. 54 and to appear to testify at a
deposition on April 16, 2015, in Salt Lake City.
5.
Also on April 3, 2015, I was served with a subpoena via John Fellows, General Counsel to the
Utah Legislature, by attorneys for the plaintiff in this case, commanding me to provide certain
documents and appear at a hearing in federal district court in Salt Lake City on April 10, 2015.
6. All the knowledge I presently have that is responsive to the subpoenas is knowledge I acquired
in my capacity as a legislator while performing legislative functions, including preparing,
negotiating, and evaluating proposed legislation.
7. All the documents I presently have that are responsive to the subpoenas were produced or
acquired exclusively in my capacity as a legislator while performing legislative functions,
including preparing, negotiating, and evaluating proposed legislation.
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8. If called to testify concerning S.B. 54, my testimony would convey information acquired
exclusively in my capacity as a legislator and as the legislative sponsor of the bill.
9. If called to testify concerning any communication I had with any individual associated or
affiliated with the Count My Vote Initiative regarding that initiative, my testimony would
convey information acquired exclusively in my capacity as a legislator familiarizing myself
with an issue in preparation to sponsor or vote on legislation.
10. It is my understanding that minutes of public meetings, tape recordings, and video recordings
relating to S.B. 54 are available online at le.utah.gov, and that they are public documents.
11. I am unavailable to attend the hearing on April 10, 2015, as I am leaving town the day before.
I declare under penalty of perjury that the foregoing is true and correct. Executed on
this 9th day of April, 2015.
/s/ Curtis S. Bramble
Curtis S. Bramble
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