United States District Court, D. Maryland
PULTE HOME CORPORATION and SHILOH FARM INVESTMENTS, LLC, Plaintiffs,
MONTGOMERY COUNTY, MARYLAND, et al, Defendants.
Timothy J. Sullivan United States Magistrate Judge
case is a civil rights action brought by Pulte Home
Corporation and Shiloh Farm Investments, LLC (collectively,
"Pulte") against Montgomery County, Maryland
("County") and the Maryland-National Capital Park
and Planning Commission ("MNCPPC") (collectively,
"Defendants"). The action centers on the
Defendants' enactment of land use legislation that
adversely affected Pulte's interests in approximately 541
acres of land that it owns in Clarksburg, Maryland. Pulte
alleges that the Defendants violated its constitutional
rights to due process and equal protection, and that the
Defendants' actions amounted to a taking of private
property requiring just compensation. Judge Hazel entered a
scheduling order on January 28, 2016 (ECF No. 59) and
discovery has been ongoing since that time. The current
discovery deadline is January 25, 2018. (ECF No. 164.)
Several motions related to discovery disputes are pending
before the Court. This memorandum addresses the motions
filed at ECF Nos. 113 and 116, which concern Pulte's
efforts to obtain discovery from the County and the
County's objection to those efforts on the basis of the
legislative and executive privileges.
16, 2016, Judge Hazel issued a letter order denying the
motions for protective order filed by the Defendants. (ECF
No. 81.) In their motions (ECF Nos. 70 & 71), the
Defendants sought a protective order shielding them from
discovery on the basis of the legislative and executive
privileges. At that time, however, no discovery requests had
been propounded on the Defendants. Judge Hazel found that the
Defendants' assertions of the legislative and executive
privileges could not be decided preemptively, where no
discovery requests had been propounded, and denied the
motions for protective order. Citing E.E.O.C. v.
Washington Suburban Sanitary Comm'n, 631 F.3d 174,
181 (4th Cir. 2011) [hereinafter Washington
Suburban], Judge Hazel also noted that the assertion of
a “blanket privilege” would be inappropriate, and
that only documents related to “legislative
activities” could be protected by the legislative
privilege. (ECF No. 81 at 2.)
two weeks after Judge Hazel issued his letter order, Pulte
propounded document production requests on the Defendants.
(See ECF No. 113-2 at 1.) Pulte sought documents
from nine current County Councilmembers, four former County
Councilmembers, three County Council staff persons, the
County Executive, and one member of the County
Executive's staff (collectively, “the
custodians”). (Id. at 2.) The document
requests cover a wide range of subjects, but they are all
concerned with the purportedly unconstitutional actions taken
by the Defendants in this case. The County has again asserted
the legislative and executive privileges on behalf of the
custodians. Both the County and Pulte have complied
with the requirements of Local Rule 104.7 and
104.8. The Court has had the benefit of the
parties' oral arguments, which were presented during a
motions hearing held on January 12, 2017. (ECF Nos. 129 &
130.) Pulte's motion to compel (ECF No. 113) and the
County's cross-motion for protective order (ECF No. 116)
are both ripe for decision.
The Legislative and Executive Privileges
Rule 26, “[p]arties may obtain discovery regarding any
nonprivileged matter that is relevant to any party's
claim or defense and proportional to the needs of the case,
” whether or not the information would be admissible in
evidence. Fed.R.Civ.P. 26(b)(1). To that end, Rule 34 permits
a party to obtain from any other party documents or
electronically stored information from which relevant
information can be obtained. Fed.R.Civ.P. 34(a)(1)(A). If a
party refuses to produce documents responsive to a document
production request, Rule 37 permits the requesting party to
move for an order compelling the production of such
discovery. Fed.R.Civ.P. 37(a)(3)(B). Conversely, a party
withholding documents may move for a protective order
precluding the discovery sought by the requesting party.
federal court, claims of legislative privilege related to
acts done in a state or local legislative capacity are
governed by federal common law. See Bethune-Hill v.
Virginia State Bd. of Elections, 114 F.Supp.3d 323, 333
(E.D. Va. 2015); Lee v. Virginia State Bd. of
Elections, No. 15-357, 2015 WL 9461505, at *3 (E.D. Va.
Dec. 23, 2015). The same is true of claims of executive
privilege raised in cases before a federal court by federal
question jurisdiction. See Jones v. Murphy, 256 F.R.D.
510, 515 n.5 (D. Md. 2008), aff'd, No.
CCB-05-1287, 2009 WL 604937 (D. Md. Feb. 23, 2009).
legislative privilege has its roots in the parallel concept
of legislative immunity, under which the Speech or Debate
Clause provides immunity from suit to federal legislators.
Washington Suburban, 631 F.3d at 180. Legislative
immunity guarantees the right “of legislators to be
free from arrest or civil process for what they do or say in
legislative proceedings.” Id. (citing
Tenney v. Brandhove, 341 U.S. 367, 372 (1951)).
Legislative immunity has been extended broadly.
Washington Suburban, 631 F.3d at 181 (collecting
cases). It covers state and local legislators, even if the
body to which the legislators belong lacks immunity for its
legislative acts. Id. It also “covers all
those properly acting in a legislative capacity, not just
actual officeholders.” Id. “The
determination of legislative immunity is based on the
function being fulfilled-not the title of the actor claiming
immunity.” McCray v. Maryland Dept. of
Transp., 741 F.3d 480, 485 (4th Cir. 2014).
have recognized that important public policies buttress the
doctrine of legislative immunity. Id. Legislative
immunity “provides legislators with the breathing room
necessary” to make choices on difficult decisions,
uninhibited by judicial interference and the fear of personal
liability. Id. It allows legislators to “focus
on their public duties” instead of attending to the
distractions and costs of lawsuits, and “increases the
caliber of our elected officials by preventing the threat of
liability from significantly deterring service.”
legislative privilege “is related to, but distinct
from, the concept of legislative immunity.” N.
Carolina State Conference v. McCrory, No. 13-658, 2015
WL 12683665, at *3 (M.D. N.C. Feb. 4, 2015) (quoting
Favors v. Cuomo, 285 F.R.D. 187, 209 (E.D.N.Y.
2012)). It exists to “safeguard . . . legislative
immunity and to further encourage the republican values it
promotes.” Washington Suburban, 631 F.3d at
181. The legislative privilege extends to discovery, thus
allowing legislators and their staff “to focus on their
public duties by removing the costs and distractions
attending lawsuits, ” and shielding them from
“political wars of attrition in which their opponents
try to defeat them through litigation rather than at the
ballot box.” Id.; see also Burtnick v.
McLean, 76 F.3d 611, 613 (4th Cir. 1996). Where a
plaintiff seeks “to compel information from legislative
actors about their legislative activities, ” the
legislative privilege protects them from compliance.
Washington Suburban, 631 F.3d at 181.
“civil suits brought by private plaintiffs to vindicate
private rights, ” the legislative privilege is
absolute. Bethune-Hill, 114 F.Supp.3d at
335. It is also broad in application. It protects against
discovery into all acts that occur in the “sphere of
legitimate legislative activity.” See Baker v.
Mayor and City Council of Baltimore, 894 F.2d 679, 681
(4th Cir. 1990); Washington Suburban, 631 F.3d at
181. The privilege is a shield against the compelled
production of documents and deposition testimony. See
id.; see also Brown & Williamson Tobacco Corp.
v. Williams, 62 F.3d 408, 421 (D.C. Cir. 1995).
Accordingly, once a court determines that a party's
discovery requests seek information about acts that took
place in the “sphere of legitimate legislative
activity, ” the legislative privilege will act as a bar
to the compelled production of discovery.
core arguments presented by Pulte and the County in support
of their respective motions to compel and for protective
order are as follows. Pulte argues that the legislative
privilege does not apply to the discovery it seeks because
the custodians' activity was not legitimate or
legislative. It was not legitimate because the legislators
purportedly violated a local ethics law. It was not
legislative because the challenged acts were, by and large,
ministerial and administrative. And, to the extent that the
acts were legitimate and legislative, some of the discovery
predates those acts, so it cannot be protected by the
legislative privilege. Pulte also argues that even if the
legislative privilege did apply, it has been waived by the
custodians' disclosures to third parties. The County
argues that the privileges it asserts are broad, that all of
the challenged acts were done in the “sphere of
legitimate legislative activity, ” that the executive
actors are also protected by the executive privilege, and
that the doctrine of third party waiver does not
apply. Each of these arguments is addressed
Pulte Seeks Discovery About Legislative Activities
argues that the County's broad assertion of the
legislative privilege is improper because many of the
requested documents relate to non-legislative activities. For
example, citing Front Royal & Warren Cnty. Indus.
Park Corp. v. Town of Front Royal, 865 F.2d 77, 79 (4th
Cir. 1989), Pulte states that as a matter of law, the denial
or approval of a water and sewer change application is not a
legislative action. (ECF No. 113-2 at 16.) Similarly, Pulte
argues that master plan amendments are not legislative acts
because they merely “serve as a guide, ” see
W. Montgomery Cnty. Citizens Ass'n v. Maryland-Nat'l
Capital Park & Planning Comm'n, 522 A.2d 1328,
1334 (Md. 1987), and do not carry the force of law as do
zoning ordinances. (ECF No. 113-26 at 13.) In addition, as
the master plan amendment at issue was passed by resolution,
Pulte interprets it as a signal that the amendment was not a
legislative act. Id. Pulte also notes that its
discovery requests seek documents reaching back as far as
January 1, 2003, at least six years before the first of the
Defendants' challenged acts occurred. (Id.)
Given that such documents would predate the legislative
activity at issue, they necessarily could not be shielded
from discovery by the legislative privilege. (Id.)
Pulte seeks discovery related to all of these acts and argues
that the legislative privilege does not apply.
County argues that the acts alleged in Pulte's Complaint
were all legislative in nature, and therefore protected from
disclosure by the legislative privilege. (ECF No. 116-4 at
12.) The Court of Appeals of Maryland has noted that planning
and zoning actions are legislative when they “decide
questions of law and policy and discretion” and have
“broad, community-wide implications, which encompass
considerations affecting the entire planning area or zoning
district.” Kenwood Gardens Condominiums, Inc. v.
Whalen Properties, LLC, 144 A.3d 647, 659-60 (Md. 2016).
The County argues that its actions-concerning the water and
sewer change request, the zoning changes, and the master plan
amendment-all decided questions of law and policy, were
within the County's discretion, and have broad
implications that impact the entire community.
regard to Pulte's water and sewer change request, the
County states that the Front Royal case is
inapposite. (ECF NO. 116-4 at 13.) In Front Royal, a
court had previously ordered a municipality to provide sewer
service to certain landowners, thus removing any discretion
the municipality might otherwise have had to act on the
request for sewer service. 865 F.2d at 79. Because discretion
is a hallmark of legislative activity, its absence in
Front Royal was dispositive. Here, the County
retained discretion to act on Pulte's water and sewer
change request, and there is no suggestion that it had
previously been ordered by a court to grant the request, as
had been the case in Front Royal.
the County's amendment to the 1994 Master Plan, the
County states that Pulte's reliance on the W.
Montgomery case is misplaced. (ECF No. 116-4 at 14-15.)
This is so because W. Montgomery cited with approval
cases that found master planning to be a legislative process.
(Id.) And in any event, Maryland law has changed
since that time, with the General Assembly's passage of a
law that requires each local jurisdiction “to implement
the provisions of its local comprehensive plan” through
acts that are “consistent with the plan.”
(Id.) The County notes that this law specifically
abrogated the holding of Trail v. Terrapin Run, 943
A.2d 1191 (Md. 2008), which Pulte cites in its memorandum.
(Id.) Because municipalities must make zoning
decisions that are consistent with their master plans, the
master plans are not advisory; they have the binding force of
law. (Id.) And finally, the County notes that
amending a master plan by resolution does not make the master
plan or its amendment non-legislative. The Court of Appeals
recognized as much in Kenwood Gardens, where a
resolution that allowed a planned unit development was found
to be legislative in nature. 144 A.3d at 661.
thorough consideration, I find that the documents which Pulte
seeks are all related to legislative acts. With respect to
each act, the County is vested with considerable discretion.
The acts also had community-wide implications. Whether they
were passed by resolution or some other mechanism, they bear
the hallmarks that characterize legislative
acts. Pulte's challenge to the County's
assertion of the legislative privilege on the basis of the
acts not being “legislative” is without merit.
reject Pulte's challenge to the assertion of the
privilege for documents that predate the legislation in
question. The legislative privilege extends to all acts that
occur within the sphere of legitimate legislative activity.
Pulte has pointed to no authority to suggest that it may only
be asserted with respect to acts that are the subject of
specific legal challenges. In this way, Pulte far too
narrowly construes the privilege. Pulte's discovery
requests seek information about the legislative activities of
the County in general. Even if some of those activities
predate the actions that are challenged in this lawsuit, they
remain legislative activities and are thereby protected by
the legislative privilege. Furthermore, to the extent that
documents exist that are not related to legislative
activities, it is not clear how such documents would be
relevant to the claims or defenses in this case. See
generally In re Hubbard, 803 F.3d 1298, 1311 (11th Cir.
2015) (“None of the relevant information sought in this
case could have been outside of the legislative
The Legislative Activities Were Legitimate
argues that it is entitled to discovery regarding the
County's activities that violated a Montgomery County
ethics law and were therefore illegitimate. (ECF No. 113-2 at
17-18.) Pulte contends that the County violated the law in
two ways. First, by engaging in off-the-record
communications, the custodians violated the law's
prohibition against decision-makers considering “any
communication made outside of the record regarding any matter
that must be decided on the basis of a record after an
application is filed or a proceeding is otherwise
initiated.” Mont. Cnty. Public Ethics Law §
19A-15(b)(1). Second, by engaging in communications after the
close of the public comment period, the County violated
Pulte's rights to procedural due process. According to
Pulte, these “illegal” acts remove the
custodians' activities from the sphere of legitimate
legislative activity. Because the legislative privilege only
applies to “legitimate” legislative activities,
Pulte concludes that these communications are illegitimate
and therefore not privileged.
County disagrees with Pulte's interpretation of the
Public Ethics Law and, more generally, the type of
legislative activities that might qualify as
“illegitimate.” (ECF No. 116-4 at 17-18.)
According to the County, Pulte misconstrues a section of the
Public Ethics Law that applies only to “quasi-judicial
proceedings decided on a record.” (ECF No. 113-6 at
30.) Applying the provision to legislative decisions, the
County notes, “would result in restricting a
legislator's ability to communicate with constituents,
interested parties (such as Pulte representatives) or
subject-matter experts, all of whom are critical components
of the legislative process.” (ECF No. 116-4 at 17.)
Requiring legislation to “occur in a vacuum”
would be inconsistent with the “free flow of written
and oral communications . . . that is a normal, everyday part
of the legislative process.” (Id.)
not necessary for the Court to reach whether the County ran
afoul of the Public Ethics Law or Pulte's procedural due
process rights by engaging in off-the-record communications
or considering communications made after the close of the
public comment period. Even assuming that the custodians'
activities were in violation of the Public Ethics Law or
Pulte's procedural due process rights, this would be
insufficient to render the actions
“illegitimate.” If Pulte's argument were
taken to its logical conclusion, the legislative privilege
would be obsolete. This is so because whenever a procedural
irregularity was alleged in a case, any resulting legislative
actions could be deemed illegitimate, thus obviating the
objective of the legislative privilege. If that occurred, the
result would be that the legislative privilege would never
apply in cases challenging legislative actions.
support of its claim that the Public Ethics Law applies to
legislative decisions as well as quasi-judicial proceedings,
Pulte cites Sugarloaf Citizens Ass'n, Inc. v.
Gudis, 573 A.2d 1325, 1329 (Md. 1990). But
Sugarloaf involved a different issue: a council
member's vote on a piece of legislation despite a
financial conflict of interest. And in any event, the court
in Sugarloaf declined to enforce the Public Ethics
Law because it found that the law's enforcement provision
was unconstitutional. Pulte has not cited any authority where
a court has found that a legislative action was
“illegitimate” because of the violation of a law
in Kenwood Gardens, which is cited by the County
(ECF No. 116-4 at 5), the court held that even assuming that
a councilmember committed an ethical violation in a
legislative act, so long as the legislative body “was
acting within its legal boundaries, ” the
legislator's improper motivations would not be subject to
judicial review. 144 A.3d at 663. Although Sugarloaf
and Kenwood Gardens are not controlling authority,
they demonstrate the reluctance of courts to overindulge in
judicial review of legislative decisions, even where
purportedly unethical conduct by legislators is alleged.
County's legislative actions were not rendered
illegitimate because of any of the ethical and procedural
violations that Pulte alleges. The actions were well within
the legal boundaries in which the County was permitted to
act, and were therefore legitimate. Accordingly, Pulte's
contention that the ...