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Maryland Restorative Justice Initiative v. Hogan

United States District Court, D. Maryland

September 27, 2017

HOGAN, et al., Defendants.


          J. Mark Coulson, United States Magistrate Judge.

         This case concerns a challenge to the constitutionality of Maryland's parole system as applied to individuals who received sentences of life imprisonment with parole for homicide offenses committed as juveniles. The Maryland Restorative Justice Initiative (“MRJI”) filed suit on behalf of Calvin McNeill, Nathaniel Foster, and Kenneth Tucker (collectively, “Plaintiffs”) against four Maryland officials in their official capacities: Governor Larry Hogan; David Blumberg, Chair of the Maryland Parole Commission; Stephen Moyer, Secretary of the Maryland Department of Public Safety and Correctional Services; and Dayena M. Corcoran, Commissioner of the Maryland Division of Correction, (collectively, the “State”).

         This case has been referred to me for resolution of all discovery and related scheduling matters pursuant to 28 U.S.C. § 636 and Local Rule 301. (ECF No. 85). Now pending before the Court is Plaintiffs' Motion to Compel, complaining of the State's insufficient and incomplete answers to discovery requests. (ECF No. 84). The Court has reviewed Plaintiffs' Motion to Compel, the State's Opposition to Plaintiffs' Motion to Compel, and Plaintiffs' Reply in Support of its Motion to Compel. Id. The Court held a hearing on the issues on September 26, 2017. For the reasons stated below, Plaintiffs' Motion to Compel is granted in part and denied in part.

         I. Timeframe of Relevant Discovery (Interrogatory Nos. 3, 4, 6, 12; Request Nos. 1, 3-8)

         Plaintiffs argue that the State must provide discovery materials dating back to 1995, “the year then-Governor Parris Glendening announced that he was unwilling to grant parole to individuals serving life sentences.” (Pl. Mot. to Compel, ECF No. 84-3 at 13). Plaintiffs assert that since Governor Glendening adopted this “life means life” policy, other administrations have carried this forward, either explicitly or in practice.

         The State responds by pointing out that it has already agreed to provide discovery dating back to 2004, the first year in which any of the named defendants held office in Maryland, and that the “proper focus of this case should be the State's current policies and procedures regarding the parole of juvenile lifers” because Plaintiffs “have requested only prospective declaratory and injunctive relief.” (Def. Opp., ECF No. 84-7 at 5).

         The Court agrees with the State. Even if, for the sake of argument, current policy was influenced by prior administrations, it is the policy itself and its current implementation by these specific defendants that is at issue in this case. By agreeing to provide more than a dozen years of information, the State's position is reasonable and proportional to the needs of the case, and is therefore compliant with the Federal Rules of Civil Procedure. Fed.R.Civ.P. 26(b)(1) (“Parties 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[.]”).

         II. Executive Privilege (Interrogatory Nos. 3, 4, 10; Request Nos. 5, 6, 8, 9)

         At oral argument, the State clarified that, with one categorical exception, [1] it does not object to producing documents relating to parole decisions during the relevant timeframe because such decisions do not contain “recommendations” in the strictest sense to the Governor, but instead reflect an approval by the Parole Commission that is then sent to the Governor for his sign-off. However, the State differentiates documents related to commutations from those related to parole decisions because the former do, in fact, contain a formal recommendation by the Parole Commission to the Governor. As to those documents, the State has agreed to produce all information, except the recommendation itself, [2] for any commutation files that have been acted upon by the Governor but will not produce any files for commutation decisions currently pending before the Governor (of which there are seventeen (17)). The State relies on executive privilege in support of its position.

         In cases before a federal court based on federal question jurisdiction, executive privilege is governed by federal common law. Pulte Home Corp. v. Montgomery Cnty., No. CIV. GJH- 14-3955, 2017 WL 2361167, *2 (D. Md. May 31, 2017); Jones v. Murphy, 256 F.R.D. 510, 515 n.5 (D. Md. 2008) (applying federal common law to claims of executive privilege “because the state [of Maryland] and federal laws of executive privilege do not conflict” and are substantially similar). Part of the executive privilege is the deliberative process privilege.

         The focus of the deliberative process privilege is protecting against disclosure of “letters, memoranda or similar internal government documents containing confidential opinions, deliberations, advice or recommendations from one governmental employee or official to another official for the purpose of assisting the latter official in the decision-making function.” Johnson v. Baltimore City Police Dept., No. CIV. ELH-12-2519, 2013 WL 497868, *6 (D. Md. Feb. 7, 2013) (internal citations omitted). In order for an objection based on the deliberative process privilege to apply, a document must be both predecisional and deliberative. “Predecisional documents are those prepared in order to assist an agency decisionmaker in arriving at his decision and deliberative documents are those that reflect the give-and-take of the consultative process by revealing the manner in which the agency evaluates possible alternative policies or outcomes.” Solers, Inc. v. IRS, 827 F.3d 323, 329 (4th Cir. 2016). Any factual material that may be segregated from the deliberative document and that does not reveal the deliberative process is not subject to the protection and must be disclosed. Freeman v. U.S. Dept. of Justice, 723 F.Supp. 1115, 1121 (D. Md. 1988).

         Plaintiffs argue that: (1) the State has not asserted executive privilege with sufficient particularity; (2) even if executive privilege applies to the Parole Commission's recommendation, it does not apply to factual information within the files; and (3) executive privilege, even if it applies, is not absolute. (Pl. Mot. to Compel, ECF No. 84-3 at 4-12).

         The Court disagrees with Plaintiffs' first contention. It is clear that the redacted recommendations in the commutation files are those of the type contemplated by Johnson, supra. The deliberative process privilege clearly applies to the specific recommendation the Parole Commission submits to the Governor prior to the Governor's final commutation decision. Each recommendation letter is prepared by the Parole Commission to assist the Governor, as decisionmaker, in arriving at a final decision for each offender. Moreover, the letter represents the manner in which the Parole Commission and the Governor evaluate possible alternative outcomes in each offender's case. The redacted versions of the letters (as exemplified in ECF No. 84-12) offered by the State are sufficient to protect the information to which the deliberative process privilege applies and still properly provide the discovery that Plaintiffs requested, with respect to cases in which the Governor has already made a commutation decision.[3]

         The Court agrees with Plaintiff's second contention, to a point. Factual information generally does not fall within the deliberative process privilege. As to those commutation decisions that have already been made, the Court expects (and the State seems to agree based on its position at oral argument) that the State will produce ...

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