UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

Federal Election Commission, )

Plaintiff )

)

) Case No. 04-4003 

)

Friends of Lane Evans; Samuel Gilman; )

17th District Victory Fund; Christopher )

Hance; Rock Island Democratic Central )

Committee; and John Gianulis, )

Defendants )

ORDER

Now before the Court is the Defendants’ Motion to Compel (#24), and the Plaintiff’s Motion

for Protective Order (#23). Both motions are fully briefed, and a hearing was held on February 3,

2005, at which time these motions were taken under advisement. I have carefully considered both

the written and the oral arguments made by the parties. For the following reasons, the motion to

compel is denied, and the motion for protective order is allowed.

The FEC filed suit against Friends of Lane Evans, 17th District Victory Fund, the Rock Island

Democratic Central Committee, and the treasurers of those three entities in their official capacities.

In the complaint, the FEC alleges that the Victory Fund and the Rock Island Democratic Central

Committee were created for the purpose of raising funds in excess of federal campaign limits for

Evans’ re-election campaign (Friends of Lane Evans), in violation of the Federal Election Campaign

Act. Additional violations of the Act are also alleged, such as failure to register or providing

inaccurate information in registration. 

In the defendants’ answer, they deny the material factual allegations and raise a number

of affirmative defenses. Two of the defenses play a part in these motions: that the FEC’s

interpretation of the Act is arbitrary and capricious and that its enforcement of the Act in this suit

is arbitrary and capricious. Both of these defenses are based on defendants’ theory that this

prosecution constitutes selective enforcement of the Act. Defendants written discovery (the subject

E-FILED

 Tuesday, 08 February, 2005 11:19:32 AM

 Clerk, U.S. District Court, ILCD

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of their Motion to Compel), and the Notice of Deposition (the subject of the FEC’s Motion for

Protective Order) reflect the defendants effort to obtain discovery relevant to those defenses. 

DEFENDANTS’ MOTION TO COMPEL DISCOVERY REQUESTS #24

In this motion, defendants ask that the FEC be compelled to provide answers to

interrogatories and requests for admission, as well as responding to document requests served on

December 3. This discovery is relevant only to the defenses that are dependent on the

defendants’ theory that this is a case of selective enforcement. 

There are two types of cases dealing with “selective enforcement.” One line of cases

involves a plaintiff asserting an equal protection claim of selective enforcement against a defendant.

In such cases, selective enforcement is the heart of the plaintiff’s claim. That line of cases is not

helpful here. 

Relevant to the instant case is the line of cases in which a defendant raises selective

enforcement as a “defense.” In the latter situation, a defendant in essence says, “I didn’t do what

the plaintiff says I did, but even if I did, it isn’t fair that I get prosecuted and others who broke the

same law don’t.” That reasoning is similar to that of a driver pulled over for speeding: why didn’t

you stop all the other cars that were going over the limit? It may be true that other cars were

speeding, but that does nothing to prove that the officer issuing the ticket had an improper

motivation. 

Here, the heart of the claim is the Commission’s allegation that the defendants violated the

Act. Proof of selective enforcement will not negate the Commission’s allegations - in other words,

it will not serve as a defense to the charges - and so is peripheral to the issues raised in this

litigation. 

Precisely because this issue when raised as a defense is peripheral, the Supreme Court has

articulated a very demanding standard for proceeding on such a defense. In U.S. v. Armstrong, 517

U.S. 456 (1996), the Supreme Court considered a criminal defendant’s request for discovery in

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support of his claim of selective prosecution. The Supreme Court noted that selective enforcement

is not a “defense” to the merits of a charge but rather is an “independent assertion that the

prosecutor has brought the charge for reasons forbidden by the Constitution.” Id. at 464. The

Court began by recognizing that a presumption of regularity attaches to a prosecutor’s decision to

prosecute. This presumption applies equally to the administrative promulgation of rules, National

Nutritional Foods Ass’n v. FDA, 491 F.2d 1141, 1145 (2d Cir. 1974). 

This presumption of regularity must be overcome by a defendant before the defendant is

permitted to obtain discovery on the question of selective enforcement. In order to overcome the

presumption, the defendant must meet a “rigorous standard” for the elements of a claim of selective

enforcement. Armstrong, 517 U.S. at 468. See also, National Nutritional Foods, 491 F.2d at 1145-

46 (preliminary showing of bad faith or improper motive required before a litigant may depose an

FDA commissioner). Absent definitive evidence of prohibited motive, discovery that focuses on the

state of mind and/or the discretion of the prosecutor (or, as here, the agency charged with

enforcement of the Act), is not permitted.

See also, Des Plaines v. Metropolitan Sanitary Dist. of Chicago, 552 F.2d 736, 739 (7th Cir.

1977)(“exploration of the “mental processes of administrative decision-makers is usually to be

avoided”); Grant v. Shalala, 989 F.2d 1332, 1344 (3d Cir. 1993)(attempts to “probe the thought and

decision making processes of judges and administrators are generally improper”); FEC v. LegiTech., 75 F.3d 704, 709 (D.C.Cir. 1996)(Commission’s decision to bring suit under the Act, 2 U.S.C.

437g(a)(6), is not subject to judicial review.); In re Sealed Case, 131 F.3d 208, 214 (D.C.Cir. 1997);

AT&T Co. v. EEOC, 270 F.3d 973, 975 (D.C.Cir. 2001)(after an administrative agency files suit, the

decision to file suit is not a final decision or final agency action under the APA, and defendant must

simply defend itself against the suit); U.S. v. Sage Pharmaceuticals,Inc., 210 F.3d 475, 480 (5th

Cir. 2000)(“a claim that the FDA’s action is arbitrary and capricious is not a defense to an

enforcement proceeding”).

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In addition to that bar of defendant’s attempted discovery, the Seventh Circuit has held that

pre-decisional and deliberative information is privileged. United States v. Farley, 11 F.3d 1385,

1389 (7th Cir. 1993). As the Farley court noted:” [I]f communications such as these were exposed

the candor of government staff would be tempered with a concern for appearances...to the

detriment of the decision making process.” Id. quoting U.S. v. Nixon, 418 U.S. 683, 705 (1974). 

This privilege may be overcome only where there has been a “sufficient showing of a particularized

need” that outweighs the reasons for confidentiality. Farley, 11 F.3d at 1389. Because the issue

of selective enforcement raised as a defense is peripheral to the issues in any given case, it is

unlikely that such a showing could be made, at least prior to the showing required to obtain

discovery. Suffice it to say that no such showing has been made here.

I find that the defendants have not met the “rigorous standard” necessary to obtain the

discovery they are seeking. In fact, the defendants have provided nothing other than theory. 

Having failed to meet the requisite rigorous showing, they are not entitled to Rule 26 discovery from

the Commission on this peripheral matter. Alternatively, the information being sought is generally

privileged. For both reasons, the propounded discovery is improper and the defendants’ motion

to compel is denied.

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The parties agreed to postpone this deposition, which was originally noticed for

February 12, until they could fully brief these two motions and the court had the

opportunity to rule. 

5

PLAINTIFF’S MOTION FOR PROTECTIVE ORDER #23

The FEC asks for a protective order quashing the Notice of Deposition1

 of an FEC

representative regarding specified topics shown on an attachment to the Notice. The first topic

identifies ten specific Matters Under Review (MURs) as well as other MURs falling within two

categories: those “involving DNC and Clinton Gore 96" and those “alleging excessive in-kind party

committee expenditures to benefit federal candidates.” In addition, the Notice of Deposition states

as a topic “the circumstances surrounding the FEC’s issuance of the Leadership PAC Regulations,

Final Rules and transmittal of regulations to Congress.

This deposition would relate solely to the selective enforcement defenses. Because I have

concluded that the defendants are not entitled to discovery at this time on the peripheral defenses

of selective enforcement, I conclude that the protective order sought by the Commission should be

granted. For the same reasons as stated above, the decision making process leading up to this

lawsuit is not at issue, nor are cases involving other FEC investigations or charges, at least not

until defendants make the showing required to conduct discovery about selective enforcement. 

Accordingly, the plaintiff’s motion for protective order is allowed. The Notice of Rule 30(b)(6)

Deposition of the Federal Election Commission is quashed and shall not re-issue pending further

order of this Court. 

ENTER this 8th day of February 2005.

s/ John A. Gorman

JOHN A. GORMAN

UNITED STATES MAGISTRATE JUDGE 

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