and sixty eight attorney benjamin please introduce yourself for the record for seed with your argument good morning and they please the court nicole benjamin on behalf of non parties former governor  speaker there are down house of representatives nicholas matty l o former representative stephen and she and the defendants the rhode island department of transportation and the rhode island turnpike in bridge of the wordy with the court's permission i'd like to reserve two minutes for  privileged and the nd is that the roadworks act the challenge statute here is a neutral statute but notwithstanding those findings the district court concluded that the privileges must be breached the district court erred in denying the motions to quassia eight subpoenas in three ways st the district court erred by concluding that the legislative privilege is a qualified privilege in a drum and commerce clause challenge to a facially neutral statute now if this court concludes as it should that the legislative privilege is absolute in a dormant commerce clause case it means that reach the remaining claimed errors if however it concludes that the legislative privilege is qualified in a dormant co clause case the district court further erred by concluding that the subpoenaed evidence is relevant in deciding whether a statute was enacted with a discriminatory purpose under the dormant commerce clause and lastly the district court erred concluding that state officials communications with the public opened the door to discovery of all other otherwise privileged communications and documents concerning the roadworks act now as to the st issue the and ninety one and that appeal is premised on a recognized exception to the final judgment rule for governmental officials who have been aggrieved of a governmental privilege and separate from that all of the parties have this court for writ of advisory mandamus under the rights act and they have done that in recognition there is case law that recognizes and particularly case law from this circuit in the in re grand jury subpoena decision that recognizes that though typically a party that is aggrieved of a decision related to privilege may be held in contempt and then seek its appellate rights in the case of governmental officials there are concerns about requiring a governmental official who has a heightened duty to uphold the law to at the same time be held in contempt and violate the law before being afforded of their their right to an appeal so so we have briefed both issues the appellate issue spoken to mohawk since mohawk as was issued it's our right that is correct the only court today that is has come close to addressing this issue is the th circuit in the in ray hubbard case which recognized the decision in rosner may of last year that is correct your honor but not with respect to the specific issues that are here and to answer your honor's question about the petition for writ of advisory mandamus and the standard for that w seeking we are not seeking a writ of that supervisory mandamus and i agree with your honor that that is a a more challenging standard what we are seeking here is a rate of advisory mandamus which is the rate that was addressed by the court in the in re grand jury subpoena case and the standard for issuance of a writ of advisory mandamus requires three findings one is that the issue is one that is unsettled and it's of substantial public importance that the issue is likely to of review would impair the opportunity for effective review and it's on that last problem that we tied back to the issues we were addressing earlier about the concerns about governmental officials coming forward and violating a court order to be afforded their either appellate right or here a right to mandamus relief so for those reasons we have brought this case before this court in two jurisdictionally proper ways both through the effective review component yes if these parties were forced to comply with the discovery order then it turned out being lost forever once those the disclosure of the documents in the testimony occurs and nd that the whole purpose behind the legislative privilege is to prevent intrusion into the legislative process and if the can decide to go into contempt or not they choose not to who they want to but there is an opportunity to test it at the early stage if they don't do it at the early stage then it's evaluated after there's an analysis of whether or not the documents are admissible ultimately this will really talk about the discovery stage right now we are talking about the discovery stage but that is precisely the unseemly result that the court this court  re grand jury subpoena was concerned about the end family result of requiring someone in the position of hear it the governor or the speaker of the house of representatives to violate a court order to be afforded their appellate rights mandamus the issues that run across eight subpoenas are identical so if the court were to take up the issue of the propriety of the court's decision regarding the state officials the decision there would be equally political to the issues that are at stake with respect to the c t m smith's subpoenas but with respect to the absolute privilege in till now no court has ever held other than this district court that the legislative privilege is a qualified privilege it is a qualified privilege in a dormant commerce clause case and in fact the only other district court to directly address this issue is a district court from this circuit it's the district of new hampshire in the mile but let's assume this guy had there is a regulation law like the one that you have they have makes it more difficult for out of state not more difficult  transport certain kinds of fish products from the south they are only you know generally done by vietnamese refugees from say louisiana it let's assume that the governor and the speaker of the house say the reason that we want to impose this extra burden is that we're tired of having people from southeast asia come through our space and we're going to make it more difficult for them to do that and to do business from questions of race of course but wouldn't it also were for german commerce clause so under the dome of commerce clause the legislative privilege still in that circumstance would be an absolute privilege and the reason for that is because the courts have drawn a distinction between cases that are civil cases brought by private parties to vindicate private rights and those cases in those circumstances the courts have said the privilege is absolute and in those cases where the court has said the privileges qualified are federal criminal prosecutions and also those cases where there are important federal interest that cause comedy to yield so that in addressing that nd question whether important federal yield the courts have said that not every constitutional claim is sufficiently important to cause comedy to yield and not every case that involves a claim of discriminatory purpose is sufficiently has it sufficiently important federal interest that cause comedy to yield rather the court's look to the claim itself and we point to the court two examples of redistricting in voting rights cases and those cases the courts have concluded present important federal interests and they've reached that conclusion for three reasons one those are the types of cases that the department of justice has enforcement authority over so congress has already made the determination that those cases that the governor said what the press said she said what's wrong with pinning down whether the governor said or not by asking the governor what did you say to their reporter there are several things that are wrong with that the st of which is that in a dormant commerce clause case that type of evidence is not the evidence that the court considers because the court considers what the intent of the legislature as a whole  disagree with you on that if the if the if the key proponent of of legislation it publicly speaks on the purpose of the legislation why should to be away from bringing that information before the court for several reasons one by the governor speaking to the public the governor has not waived the privilege particularly as to other members of the legislature so by the time  governor was an airplane waiver for the governor as to as to the statements that the governor made we have not maintained that that statement is something that is protected by privilege but to the extent that the  looking to get underneath that and seek other documents and information that would be tantamount to a conclusion of a subject matter waiver any governmental let me understand and so they can yes it's all right with you if they just ask the governor what was it you said to  reporter i wouldn't go as far as to say it is all right to ask the governor because the privilege does protect the governor from being deposed but that we have not maintained that the statement itself is protected by privilege what we ha said is that anything inquiring about the context for example of that statement is protected by privilege but there's no i think you're doing more than that you're saying it should be admitted into evidence because  have made that argument a in that is not an issue that is currently before the court but that is an argument that has been made to the dishes so you're saying one of those hearsay so it can't come in but to you can't ask the governor directly so you never get it in his little nifty well the rationale for that though is that this court and many other courts have looked at what can be considered when deciding the issue of discriminatory purpose and has said that we look to the statute as a whole at least in one significant respect discriminatory against out of state traders so so there we there we have that so the governor and legislature would only know if it was that those were the effects based on what the outside consultant told them i doubt the governor of the legislature could sit down and do all the math so why don't we want to put into evidence what it was that i think it c d n told three public officials would be the effect and then because if they did know it then you've got a decent argument on purpose if you're the plainest but if they didn't know it you've got a pretty good argument and lack of purpose for the defendants c t m smith's reports and the other reports of consultant the final report have been made available both to the public and to the plaintiffs here what the plaintiffs are seeking are the communications underlying those final reports of the lead up and the analysis that goes into reaching some of those conclusions that that's where you'd find out if they were look if you looked at all the c d n stuff and you've got an original report or original estimate and then you thought someone saying we want to shift that to the other state congress more how do you do that and they say here's how you do it here's the final four it seems that those interim reports and those conversations leading up to that with the c t m to one from c d s alone would be pretty relevant well what i think is important is what the united states supreme court has said most recently on the dormant commerce clause and what it said in the when case is that the commerce clause regulates affects not motives and it does not require courts to inquire into either voters or legislators reasons for enacting a law that might have a discriminatory effect so let's make sure i understand that correctly then you're saying plainest proved discriminatory effect they when they don't need to prove any corpus that's correct your honor and in this court in the alliance of automobile manufacturers case reference in a footnote that there had been a question in the law about whether discriminatory purpose standing alone would be sufficient to make out a dormant commerce clause case the supreme court answers that question in the comptroller versus when decision from two thousand and fifteen where it says that the commerce clause regulates affects not motives now i understand that i am out of time i'm happy to answer any further questions winning start with a point that was raised by judge crowder which i think goes to one of the key unusual features of this case and really illustrates why the legislative privilege should not be absolute and that is that one of the things that happened in case is that the governor of rhode island and various rhode islanders later spoke publicly you know on an on the record about their intent in proposing an acting the roadworks legislation which is an issue here and they said effect  so many words that they propose the structure that the robber extols because they wanted to impose disproportionate burdens on interstate truckers and basically export some of rhode island's towing burden across state lines in a way which district court we didn't leave before this court has written think it was really directly relevant but the state has acknowledged and acknowledges in its brief to this court that intense goes into making our going to commerce clause claim we certainly agree that if we supreme court's decisions in the baucus case that intense discriminatory intent also establishes the dome's commerce clause that stay with that because i'm having real trouble understanding that in other words the proposition is there is legislation is passed it has no discriminatory effect on interstate commerce who then cares what the purpose is you could have every legislator for saying they were trying to affect interstate commerce but they mes so there's no commerce clause violation well before i'll answer the question around a bit like if i can just explain that even if that were true we think that evidence of discriminatory intent would be highly relevant to us here that strongly suggest that in fact it did have this raiment or impact and so we think that intent and and and effect sort of go together in that sense i guess i would also say just in terms of this group three in ten standing alone that the legislature can adopt statutes for a variety of reasons that have a burden on interstate commerce whether or not that's a discriminatory burden i think the intent reveals that the fact that became her structure was  for purposes of testing a question of privilege whether or not there's a sufficient critical mass to justify true ssion into that legislative history you've got to have something that shows intent or should it something that shows a fact or should and you need both of them before you can go forward on this now if that's the case then there is some relevance to asking questions about intent it may be informing the judge who makes the determination at the discovery stage but it really is a fact that we're talking about ultimately and that's where i think i have a little bit of a problem which is to say yes there is a disparity burden on interstate and unreasonable burden on interstate that is to say they do a lot more damage on the roads when they've got big rigs and you might expect them to pay more for passing through the state as opposed to short hauls by people with a single reg so i'm not sure you even gotten to that point of showing that there's a discriminatory  but ultimately your honor we it is our burden to establish that there was a discriminatory impact and we need to live a discriminatory intent and the will that we will do that we have expert records are now being compiled there is a schedule that judge smith's established in the are both aid directly relevant to our claims and that the we have satisfied the qualified legislative privilege test that it's generally apply across the country i mean he found that you know we are not i think this is responsive to your  question why don't we are not engaging in a fishing expedition here and the public statements that were made by these scum these government officials about their intent to discriminate against interstate commerce and again intent i think is relevant both by itself and demonstrates c discriminatory impact that this legislation has ok so statements were bet we're back to the question that this is simply a discovery dispute or this is simply a question of predicates for waiving the privilege or preaching i guess is the term that judge smith used i think that's right i think at this point in the case and the issue that is now before this court specifically is limited to the discovery question and we believe that direction it was absolutely correct but with five minutes remaining the oath and finding that the legislative privilege is qualified and is not absolute that's what the u s supreme court held in the lock case we think that's what every federal court of appeals to address the question has  frustrated by preaching the privilege in the circumstance of the of the case judge smith carefully applied that standard here and found that they the state interests were not significant or not would not be materially adversely affected by pretty privilege and that there key need for the evidence that we are seeking to obtain from the state officials here can you speak to the question of whether or not you're seeking something broader than simply what is affecting the defending champs in this case that is to say a human title to everything that this branch if that's what it is covers everything that they had legislature had before anybody in the legislature had before it or does it just simply a fact the speaker and the governor direction of the ply this five part test what's of a pretty heavy thumb on the scales against disclosure i mean everybody recognizes judgement than that it's only in the extraordinary case that the privilege is going to be breached and we have to make a showing as to why as to the perspective on the new meaning of the legislation and that's why we have since chosen to seek to dispose of them and to get their their information we do not think that every member of the general assembly who voted on behalf of the legislation could be as useful as effective could have information that is as directly relevant as those key members gente the governor who devised the legislation well there's a larger question that's raised by judge hobson and that is whether or not you think you're going to spend your time asking every legislator what they believe or don't believe cannot really entitle to anything more than the persons who actually we had that privilege i public assertion are you we don't suggest that they those were cases in which there was structured a discovery inquiry to see whether or not people who had not said anything publicly were prepared to waive their privileges most of them were not in so they were permitted to inquire your holding up open the possibility that you might if it's useful to you if you think it's useful to you i think your honor that if we were to do that we would have to make a showing as to why satisfying that again the the pretty discriminatory it's discriminating standard that the courts apply to determine whether the privilege should be breach would have to demonstrate that as to each each member of the general something we're not suggesting that we're going to move beyond the official that we're talking about now these officials chose to spoke publicly about their intent to discriminate they think that getting information directly from if we're talking about the intent of the state officials getting out information directly from them is the most primitive and compelling way or the step in what they actually can do to do how is that going to be i mean to likely find anything else that's not in the c d n files well i think it may well be that there are sort of intragovernmental communications saying that we would like to modify the legislation in this way or that way because that will have the effect of further imposing a has to be known to the defend a n c in this case that is to say these intergovernmental communications would have had to been known to these defendants rather than somewhere some general understanding of pressing the mandamus issue as a jurisdictional issue before us it had to understand what you think is going to happen under these circumstances that is to say is it your position  absolute or qualified and whether or not that's settled or not we think it's likely really settled that is that it is qualified and not absolute and i think an appropriate way for the court to resolve the mandamus question therefore would be to resolve that by saying that in absolute is not very helpful we're really looking at the question of whether or not this is one of those constitutional rights that there is a public significance and certainly that's the case with voting rights perhaps that's the case here under certain circumstances with the commerce clause odd but not really talking about labels so much as whether under these circumstances it can be waged to get this kind of information categorically unavailable that will often make it impossible to enforce the equal protection clause to enforce the commerce clause to enforce federal constitutional claims in which the intent of the legislature is key to establishing in the element the violation  and we think the courts have generally rejected that and whether it's in a voting rights case a jury mander case to the commerce clause case other form of equal protection case such as the strip court's arlington heights decision involving racially discriminatory expulsion mute reintroduce yourself on the record nicole benjamin on behalf of the appellant's and the petitioners again i'd like to come back to the issue of the reach of the ruling that is being requested from the court and that issue ties back to the  th circuit's decision in south carolina versus campbell the th circuit concluded that it was reversible error to permit the testimony of sixteen members of the legislature only sixteen members when there was one thousand six hundred and fifty nine  members of that legislature on their intentions in passing a particular statute and what the court said there is a good nana fest lee impossible to determine with certainty the motivation of a legislative body by resorting to the utterances of individual members there are even statements made by sponsors and authors of the act so here where it is being asserted that we are only seeking information related to the is that the plaintiffs are only seeking information related to the sponsors  legislature and that doesn't appear to be the suggestion here the suggestion here is that it is some evidence not dispositive incidents but some evidence having to go to intent which may inform the question of the fact of what we're starting in a relatively small or at least i am at a relatively small level got treated offended sphere three name defendants and then we've got somebody who provides some background information that may or may not have been available to them so we're not talking about their wholesale kind of take out to legislators and say they are the legislation so i respectfully disagree that this is the type of evidence that may be considered in deciding discriminatory purpose but even if the court were to conclude that it was the question becomes is this the sort of evidence that is sufficient to cast aside a long settled legislative privilege and the court in the government suppliers reeses baha case this  southern district of indiana considered a similar question that was a dormant commerce clause case and it was alleged that the evidence that was being sought from the governmental officials there was necessary to the prosecution of the claim there however the court said that it would not breach in that case what was the deliberative process privilege that was being alleged under the same five factor balancing test that the court is considering here and there the court said despite the occasional supreme court reference to motive in a dormant commerce clause case no opinion has yet held that such evidence is relevant let alone dispositive so the court said it was not enough to cause it to set aside what otherwise would be a well founded legislative privilege or a day or in that case the deliberative process privilege and the last point i'd like to come back to is the point the judge made in terms of the importance of motive versus affects and we did not cite this case  nine maryland sixty two and the court just like the observation that judge chaotic made this morning said it is difficult to conceive of a truly separate category of purposeful discrimination that doesn't fit into the categories of facial discrimination or discrimination in effect it is difficult to imagine a case in which a state legislature intended to discriminate against interstate commerce but either didn't make that clear in the statute itself or failed to achieve that purpose and didn't discriminate in effect so for those reasons we respectfully request that the court reversed the district court's rulings and with instructions to the eight subpoenas at issue thank you