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. e du/thir dc ir c uit_2001/70Filed April 6, 2001

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 00-1711

DAVID POWELL; SHELEAN PARKS; PA TRICE EVERAGE; JULIA A. DAVIS; YVETTE BLAND; GERALDINE NEWTON; MARIA M. RIVERA; MARY E. MILLER; GREGOR Y LUZAK; CATHERHINE LUZAK; FU ZHEN XIE; BLACK CLERGY OF PHILADELPHIA AND VICINITY; PHILADELPHIA BRANCH NAACP; ASPIRA, INC. OF PENNSYLVANIA; P ARENTS
UNION FOR PUBLIC SCHOOLS; CITIZENS COMMITTEE ON PUBLIC EDUCATION IN PHILADELPHIA; PARENTS UNITED FOR BETTER SCHOOLS, INC.; DAVID W . HORNBECK, SUPERINTENDENT, The School District of Philadelphia; FLOYD W. ALSTON, PRESIDENT , Board of Education of the School District of Philadelphia; B OARD

OF EDUCATION OF THE SCHOOL DISTRICT OF PHILADELPHIA; THE SCHOOL DISTRICT OF PHILADELPHIA; EDWARD G. RENDELL, MAYOR, City of Philadelphia; CITY OF PHILADELPHIA

PHILADELPHIA FEDERATION OF TEACHERS LOCAL 3;
TED KIRSCH, PRESIDENT, GUARDIAN AD LITEM,

Intervenors in D.C.

v.

THOMAS J. RIDGE, Governor of the Commonwealth of Pennsylvania; JAMES P. GALLAGHER, DR., Chairperson Commonwealth of Pennsylvania State Board of Educati on; EUGENE W. HICKOK, DR., Secretary of Education;

BARBARA HAFER, Treasurer;

MATTHEW J. RYAN; ROBERT C. JUBELIRER; JESS M. STAIRS; JAMES J. RHOADES, Intervenors in D.C., AppellantsON APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE EASTERN DISTRICT

OF PENNSYLVANIA

D.C. Civil No. 98-CV-1223 District Judge: The Honorable Herbert J. Hutton

Argued: January 18, 2001

Before: ROTH, BARRY, Cir cuit Judges and SHADUR,* District Judge

(Filed: April 6, 2001)

John P. Krill, Jr., Esquire (Ar gued) Linda J. Shorey, Esquire Julia M. Glencer, Esquire Kirkpatrick & Lockhart

240 North Third Street Harrisburg, Pennsylvania 17101

Attorney for Appellants Matthew J. Ryan, Robert C. Jubelirer, Jess M.

Stairs and James J. Rhoades

James J. Rodgers, Esquire (Argued) Lynn R. Rauch, Esq. Dilworth, Paxson, Kalish

& Kauffman

1735 Market Street

3200 The Mellon Bank Center Philadelphia, Pennsylvania 19103

Patricia A. Brannan, Esquire
Hogan & Hartson 555 13th Street, N.W. Washington, D.C. 20004-1109

___________________________________________________ ______________

* The Honorable Milton I. Shadur, United States Dis trict Judge for the Northern District of Illinois, sitting by designati on.

2William T. Coleman, Jr., Esquir e

Stephen J. Harburg, Esquire O'Melveny & Myers 555 13th Street, N.W.

Suite 500 West Washington, D.C. 20004

Attorneys for Appellees Shelean Parks, Yvette Bland, Gregory Luzak, Catherine Luzak, Fu Zhen Xie, Floyd W. Alston, President,

Board of Education of the School District of Philadelphia, David W. Hornbeck, Superintendent, The School District of Pennsylvania, Board of Education School District, Philadelphia, and School District of Philadelphia,

Michael Churchill, Esquire

Public Interest Law Center of Philadelphia 125 South 9th Street, Suite 700 Philadelphia, PA 19107

Attorneys for Appellees David Powell, Patrice Everage, Julia A. Davis, Geraldine Newton, Maria M. Rivera, Mary E. Miller, Black Clergy of Philadelphia and Vicinity, Philadelphia Branch NAACP, Aspira, Inc. of Pennsylvania, Parents Union for Public Schools,

Citizens Committee on Public Education in Philadelphia, and Parents United for Better Schools,

Inc.

3Jane L. Istvan, Esquire

City of Philadelphia
Law Department 1515 Arch Street, One Parkway Philadelphia, PA 19102

Attorneys for Appellees Edward G. Rendell, Mayor, City of Philadelphia, and City of Philadelphia

Ralph J. Teti, Esquire Willig, Williams & Davidson

1845 Walnut Street

24th Floor Philadelphia, PA 19103

Attorneys for Appellees Philadelphia Federation of Teachers Local 3, and Ted Kirsch, President,

Guardian ad litem

Edward F. Mannino, Esquire Akin, Gump, Strauss, Hauer

& Feld

2005 Market Street One Commerce Square, Suite 2200 Philadelphia, PA 19103

Attorneys for Appellees Thomas Ridge, Governor of the Commonwealth of Pennsylvania, James P. Gallagher, Dr., Chairperson Commonwealth of Pennsylvania State Board of Education, Eugene W. Hickok, Dr., Secretary of Education and Barbara Hafer, Treasurer

4OPINION OF THE COURT

BARRY, Circuit Judge:

Appellants suggest that we recognize a for m of leg islative immunity heretofore unknown in the law, one which c an best be described as "partial legislative immunity. " Thus, and it is not disputed, the immunity appellants ass ert would enable them to seek discovery, but not r espo nd to it; take depositions, but not be deposed; and testify a t trial, but not be cross examined. Moreover , appellants presumably believe that when they come upon an aspe ct of the litigation they find disagreeable, as they find the discovery order at issue here to be, they will be a ble to pursue an interlocutory appeal in this Court. W e d isagree, and will dismiss this interlocutory appeal for lack of jurisdiction.

I.

In March 1998, suit was filed by students and paren ts, organizations, school district and city officials o f the City of Philadelphia, and the City itself (hereinafter"appe llees") alleging that the formula used by the Commonwealth of Pennsylvania to allocate certain federal education monies violated the regulations adopted by the U.S. Depart ment of Education implementing Title VI of the Civil Rights Act, 42 U.S.C. SS 2000d-2000d-7. See 34 C.F .R. S 100.3(b). More specifically, the complaint alleged that the Common wealth's criteria and methods of funding public education yi eld racially discriminatory results in Philadelphia and other predominantly minority school districts. Injunctive and declaratory relief was sought against members of th e state's executive branch, including the Governor , the Secr etary of Education, the State Treasurer , and the Chair of t he State

Board of Education.

In early May 1998, several leaders of the Pennsylva nia General Assembly (the "Legislative Leaders") moved to intervene in the suit, citing their financial and l egal interests in the litigation and the need to"articul ate to the

5Court the unique perspective of the legislative bra nch of the

Pennsylvania government." App. at 48a. 1 That motio n was unopposed, and was granted by the District Court. I n their brief in support of intervention, the Legislative L eaders explicitly concurred in the motion to dismissfiled by the executive department defendants two days earlier; s hortly thereafter, the legislators filed their own motion to dismiss or for judgment on the pleadings; and shortly after that, they filed yet another motion for judgment on the pleadings. The District Court dismissed the complai nt for failure to state a claim. We reversed, emphasizing that the validity of appellees' claims could be tested only on a developed record and rejecting the Legislative Lead ers' argument that plaintiffs lacked standing to maintai n each count of their complaint. Powell v. Ridge, 189 F.3d 387 (3d Cir. 1999). Notably, we did not mention legislative immunity, be it partial or absolute, because it was , at least at that time, a non-issue. The Legislative Leaders and the executive branch defendants filed separate petition s for certiorari to the Supreme Court of the United State s. Both petitions were denied. Ryan v. Powell, 528 U.S. 104 6 (1999); Ridge v. Powell, 528 U.S. 1046 (1999).

The District Court, taking the cue from us, thereaf ter entered a scheduling order and appellees accordingl y sought discovery from all defendants, both executiv e and legislative. The Legislative Leaders objected, asse rting, for the first time, "legislative privilege." After a me eting between counsel for both sides, however, the Legislative Le aders agreed to search their files to deter mine what doc uments they possessed which would fall under the discovery requests. Ultimately they reported finding two boxe s of documents, only 56 pages of which they deemed to be not privileged. Appellees then filed a Motion to Compel , which was granted, although because of a miscommunication between counsel, the Legislative Leaders' response to the

motion was not received until after the District Co urt entered its order. That response, which included a multitude of objections to the discovery requests i ncluding

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1. Then then-proposed intervenors referred to immun ity only in passing when they stated, in a footnote in their brief, tha t they do not waive any "speech or debate immunity" they may have. App. at 37a.

6"legislative privilege," was, however, considered b y the

Court in connection with the Legislative Leaders' m otion for reconsideration. The Court gave the objections shor t shrift, finding that our prior decision stressed the"import ance of Plaintiffs' ability to conduct discovery" and, in l ight of this "mandate," denied the motion for reconsideration. T he Legislative Leaders have now appealed the or der gr anting the Motion to Compel.2

II.

"As a general rule, discovery orders ar e not final orders of the district court for purposes of obtaining appell ate jurisdiction under 28 U.S.C. S 1291." In re Ford Mo tor Co., 110 F.3d 954, 958 (3d Cir. 1997) (citing Hahnemann Univ. Hosp. v. Edgar, 74 F.3d 456, 461 (3d Cir . 1996)). The collateral order doctrine excepts from this prohibi tion a narrow range of interlocutory decisions. In re Mont gomery County, 215 F.3d 367, 373 (3d Cir . 2000) (citing C ohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949)). To come within the doctrine, an interlocutory decision must conclusively determine the disputed issue, the issu e must be completely separate from the merits of the actio n, and the decision must be effectively unreviewable on ap peal from a final judgment. Id. (citing Coopers & Lybran d v. Livesay, 437 U.S. 463, 468 (1978)).

Just recently, in Bacher v. Allstate Ins. Co., 211 F.3d 52 (3d Cir. 2000), we discussed the applicability of t he collateral order doctrine to discovery or ders. In Bacher, the

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2. Appellees contend that the Legislative Leaders s hould have appealed

the denial of their Motion for Reconsideration rath er than the order granting the Motion to Compel. Without pausing to d ecide that issue, we

note that "decisions on the merits are not to be av oided on grounds of technical violations of procedural rules," Polonski v. Trump Taj Mahal Associates, 137 F.3d 139, 144 (3d Cir . 1998), cert . denied, 525 U.S. 823 (1996). This Court will exercise appellate jurisdic tion over orders not specified in the notice of appeal where "(1) there is a connection between the specified and unspecified orders; (2) the inten tion to appeal the unspecified order is apparent; and (3) the opposing party is not prejudiced and has a full opportunity to brief the issues." Id. (citations and internal quotations omitted). Each of those con ditions is met here.

7defendant insurance carrier contended that "sensiti ve"

information regarding previous settlements ought to be privileged from discovery. Id. at 55. W e found tha t in light of Cunningham v. Hamilton County, 527 U.S. 198 (199 9), Digital Equipment Corp. v. Desktop Direct, Inc., 51 1 U.S. 863 (1994), and the approach taken by other courts of a ppeals -- which, we noted, prohibit immediate r eview of d iscovery orders even when privilege issues are involved -- t he collateral order doctrine does not reach appeals of discovery orders "beyond the narrow categories of trade secre ts and traditionally recognized privileges, such as attorn ey-client and work product." Bacher, 211 F .3d at 57 (emphasi s added).3 Underlying these narrow exceptions to the general r ule of non appealability is a concern that wher e confiden tial information is sought, there is no way, absent imme diate appeal of the order requiring disclosur e, to "unsc ramble the egg scrambled by the disclosure." For d, 110 F.3d a t 963. It bears mention that even if legislative immunity in its traditionally recognized form wer e similarly botto med on confidentiality, which it is not, the Legislative L eaders explicitly disavow any such interest.

It is beyond argument that absolute legislative imm unity represents a traditionally recognized privilege, an d orders denying legislative immunity have often been r evie wed

under the collateral order doctrine. Absolute immun ity, after all, creates not only protection fr om liabil ity, but also a right not to stand trial. Montgomery County , 215 F.3d at 373 (citing Mitchell v. Forsyth, 472 U.S. 511, 525 (1985)). "Thus, interlocutory review of the Appellants' abso lute immunity claims is necessary to preserve the pr ote ctions such immunity affords." Id. In light of such clear case law, the jurisdictional hurdle discussed in Bacher would not

___________________________________________________ ______________

3. We even more recently examined an interlocutory appeal of a discovery order in Pearson v. Miller, 211 F .3d 57 (2000). Wr iting only a few days after the Bacher decision, we found jurisdiction un der the collateral order doctrine. Id. at 64-65. Pearson is clearly di stinguishable from what is at issue here. The information sought in Pearson was confidential and the privilege asserted was based upon specific conf identiality provisions of three state statutes. Id. at 62-63. The Legislat ive Leaders, by

contrast, do not assert a privilege under state law nor any i nterest in confidentiality.

8stand in the way of a legislator asserting facts gi ving rise to

a colorable claim of legislative immunity.

This is not such a case. Although Bacher found that the collateral order doctrine "should apply to broad ca tegories of interlocutory orders, without concer n for the i ndividual circumstances of particular cases," Bacher, 211 F.3 d at 56 (citing Digital Equipment, 511 U.S. at 868), the Le gislative Leaders stray far beyond the bounds of traditional legislative immunity, territory they surely r ecogn ize. Legislative immunity, they explain, is a doctrine w hich "protects state legislators absolutely fr om liabil ity for their legislative activities. It also provides legislator s with protection from the burden of defending themselves when engaged in the sphere of legitimate legislative act ivity." Appellants' Br. at 14-15 (citations and inter nal q uotations omitted). Furthermore, they add, legislative immuni ty "protects against disruption to the legislative pro cess, which civil discovery invariably precipitates." Id. at 44, n.14. All of this, of course, is correct.

Despite their understanding of legislative immunity 's broad parameters, however, the Legislative Leaders are not seeking immunity from this suit which, it must be remembered, they voluntarily joined. Nor are the Le gislative Leaders seeking any kind of wholesale protection fr om the burden of defending themselves. Instead, the Legisl ative Leaders build from scratch a privilege which would allow them to continue to actively participate in this li tigation by submitting briefs, motions, and discovery requests of their own, yet allow them to refuse to comply with and, m ost likely, appeal from every adverse order . As we not ed at the outset, and as the Legislative Leaders conceded at oral argument, the privilege they propose would enable t hem to seek discovery, but not respond to it; take deposit ions, but not be deposed; and testify at trial, but not be cr ossexamined. In short, they assert a privilege that do es not
exist.

Not surprisingly, the Legislative Leaders have fail ed to come up with even one case which hints at the exist ence of the privilege they press. Moreover , every case whi ch they do cite to support this privilege features, in dir ect contrast to this case, a defendant or a target of a subpoena se eking to

9extricate himself or herself completely fr om vario us legal

entanglements. See, e.g., Burtnick v. McLean, 76 F. 3d 611 (4th Cir. 1996); Brown & W illiamson Tobacco Corp. v. Williams, 62 F.3d 408 (D.C. Cir . 1995); MINPECO, S .A. v. Conticommodity Services, Inc., 844 F.2d 856 (D.C. C ir. 1988); Miller v. Transamerican Press, Inc., 709 F.2 d 524 (9th Cir. 1983); 2BD Assoc. Limited v. County Commissioners for Queen Anne's Co., 896 F . Supp. 5 28 (D. Md. 1995); Marylanders for Fair Representation, Inc . v. Schaefer, 144 F.R.D. 292 (D. Md. 1992); Campaign fo r Fiscal Equity v. New York, 179 Misc. 2d 907 (N.Y. S up. Ct. 1999).

Unlike the reluctant participants in the cases upon which they rely, the Legislative Leaders voluntarily inst alled themselves as defendants. And, unlike the reluctant participants in those cases, the Leaders wish to r emain as defendants and participate as long as this case is around; at no time, we note, have they invoked legislative immunity as a basis for any of their various motions to dism iss. This is simply not a case of legislators caught up in li tigation in which they do not wish to be involved. Rather , the se are self-made defendants who seek to turn what has here tofore been the shield of legislative immunity into a swor d.

A proper invocation of legislative immunity would typically call for the dismissal of a legislator fr om the lawsuit. Cases cited by the parties abound with exa mples of this complete remedy rather than the piecemeal reme dies sought here. See, e.g., Supr eme Court of Virginia v. Consumers Union of the United States, 446 U.S. 719, 733- 34 (1980) (stating that if legislative immunity app lied, "defendants in that suit could successfully have so ught dismissal on the grounds of absolute legislative im munity") (emphasis added); Eastland v. United States Service men's Fund, 421 U.S. 491, 511 n.17 (1975) (while immunity does not absolve legislators of the responsibility of fi ling a motion to dismiss, such motions must be swiftly r esolved) ; Powell v. McCormack, 395 U.S. 486, 505-06 (1969) (citing p rior cases in which the Court dismissed actions against members of Congress under the protection of the Spe ech and Debate Clause); Mitchell, 472 U.S. at 525 ("the essence of absolute immunity is its possessor's entitlement not to

10have to answer for his conduct in a civil damages a ction.");

Larsen v. Senate of the Commonwealth, 152 F .3d 240 , 254 (3d Cir. 1998) (legislators' motion to dismiss gran ted for acts taken in legislative capacity).

Not only is dismissal of the legislator the logical and eminently appropriate result where legislative immu nity applies, it also is the remedy which best furthers the underlying goals of the doctrine. As we have observ ed, "[l]egislative immunity must be applied pragmatical ly, and not by labels. Thus, without attempting to draw a l ine for all cases, we examine whether [the] request for pro spective relief 8 [can] be accorded consistent with the poli cies underlying legislative immunity." Larsen, 152 F.3d at 253. We, too, need not attempt to set out the pr ecise p arameters of legislative immunity for cases yet to come. W e find it manifestly clear, however, that absolute legislativ e immunity was at the heart of cases such as Larsen. The privi lege described by the Legislative Leaders would not pr o tect them absolutely from the burdens of this litigation and, therefore, is outside the bounds of traditional legislative im munity. "Legislators are immune from deterr ents to the uni nhibited discharge of their legislative duty, not for their private indulgence but for the public good." T enney v. Bra ndhove, 341 U.S. 367, 377 (1951). See also United States v. Brewster, 408 U.S. 501, 517 (1972) (shield of legis lative immunity "does not extend beyond what is necessary to preserve the integrity of the legislative pr ocess" ); United States v. Nixon, 418 U.S. 683, 710 (1974) (cautioni ng that privileges "are not lightly created nor expansively
construed").

The opinion concurring in the judgment only because , in its view, Larsen establishes our jurisdiction, woul d open the doors of our Court, albeit briefly, where the"privi lege" invoked has, in the words of the distinguished auth or of that opinion, "no basis in law" and has "never been recognized by this, or any other, court . . . ." Co nc. Op. at 13. Those doors must open, in her view, because we cannot in the course of our jurisdictional analysis even p eek to see whether we are presented with a traditionally recog nized privilege as that would involve touching on the mer its. But if this view were to prevail, Bacher would be rend ered

114. The corollary to our finding of no jurisdiction under Bacher is that

the Legislative Leaders have not, at least as of yet, i nvoked absolute legislative immunity. Neither the District Court no r this Court, therefore, has been presented with the question -- and, given our lack of jurisdiction, we do not decide -- whether such immu nity would be available to voluntary intervenors such as the Legi slative Leaders, or whether the very act of intervening has waived the privilege. meaningless; indeed, a confined examination of at l east certain underlying facts was necessary in Bacher a nd would inevitably be necessary in applying Bacher. In any event, it appears that, under the concurring opinion itself, a peek at the merits would be in order, for it concludes that our collateral order jurisdiction is trigger ed by call ing the privilege " `legislative' . . . in a case involving legislators acting in a legislative capacity," Conc. Op. at 14, a paradigm merits determination.

Because the purported privilege the Legislative Lea ders invoke is assuredly not only not "traditionally rec ognized," but is not even suggested by any reasonable r eadin g of the applicable case law, Bacher requir es that we dismi ss this interlocutory appeal for lack of jurisdiction.4 We note that, as in any civil case, the Legislative Leaders r ema in protected by the District Court's power to limit di scovery which is unreasonably cumulative, more easily obtai nable from another source, or unduly bur densome. Fed. R. Civ. Proc. 26(b)(2).

12ROTH, Circuit Judge, Concurring:

I agree with the Majority that the asserted legisla tive immunity from discovery has no basis in law and mus t be denied. The immunity asserted is unprecedented in i ts scope and breadth. The four Legislative Leaders, wh o knowingly and voluntarily intervened as defendants in this litigation and wish to remain as such, ar gue that they should enjoy all the rights associated with being p arties to federal litigation while bearing none of the bur de ns or responsibilities. I have found nothing to support t he idea that a state legislator who remains a party to civi l litigation is immune from compliance with discovery. Indeed, n ot only has such a privilege never been recognized by this, or any other, court, but it might conceivably violate an opposing party's due process rights wer e we to rec ognize it.

In my view, however, the lack of merit in the Legis lative Leaders' claim of immunity does not mean, as the Ma jority holds, that we do not have jurisdiction to hear the appeal

under the Collateral Order Doctrine of Cohen v. Ben eficial Indus. Loan Corp., 337 U.S. 541 (1949), and its pro geny. Rather, the lack of merit means that the claim of i mmunity should be denied for just that reason -- it lacks m erit. It is

established law in this Circuit that the denial of a claim of legislative immunity is immediately reviewable unde r Cohen. See Larsen v. Senate of the Commonwealth of Pennsylvania, 152 F.3d 240, 245 (3d Cir . 1998). In my view, Larsen establishes our jurisdiction here to review the merits of the claimed immunity.

It is true that the Legislative Leaders raise their claimed privilege in a different context -- as immunity fro m discovery while remaining parties to the civil acti on, not as immunity from liability or from having to be partie s to the action at all. See, e.g., Supr eme Court of Virgini a v. Consumers Union of the United States, Inc., 446 U.S . 719, 732-33 (1980). But that does not, as the Majority h olds, change the fact that the Legislative Leaders assert a privilege that is a by-product of their status as l egislators, just as their recognized immunity from liability an d from having to defend themselves is a by-product of thei r status as legislators. See id. Clearly, the immunity that the Legislative Leaders claim is "legislative." The mer its of their

13claimed privilege must be irrelevant to our jurisdi ctional

analysis.

In my view, the Majority errs by conflating a merit s analysis into its jurisdictional conclusion. The Ma jority recognizes that the Legislative Leaders claim that their immunity falls within the "legislative immunity" ru bric, that the Legislative Leaders claim "a form of legislativ e immunity . . . ." Majority at 5. When the Majority subsequen tly states that the claimed immunity is "heretofor e unknown i n the law," Majority at 5, and that the Legislative Leade rs "assert a privilege that does not exist", id. at 9, that so unds to me like a decision on the merits. The Majority's concl usion that we lack jurisdiction appears to rest on the followi ng reasoning: A claim of legislative immunity in a new context, which lacks merit, ceases to be a traditionally r e cognized privilege and is not reviewable under our decision in Bacher v. Allstate Ins. Co., 211 F.3d 52, 57 (3d Cir. 2000 ) (holding

that the collateral order doctrine should not be ex tended beyond the narrow categories of trade secr ets and traditionally recognized privileges). But this begs a question: If the asserted privilege is not "legisla tive" privilege because it is not a "colorable claim" or is not raised in the appropriate context, what is it?

I believe that simply labeling the defense as "legi slative" privilege, in a case involving legislators acting i n a legislative capacity, is sufficient to trigger our collateral order jurisdiction, opening the door to immediate a ppellate review of the denial of such a claim, r egardless o f the fact that the "legislative" immunity arises in a new or different context or may lack merit. To my mind, our jurisdic tion in the instant case is compelled by our decision in La rsen, where we expressly held that we had collateral orde r jurisdiction over the denial of claims of legislati ve immunity. See Larsen, 152 F.3d at 245.

Moreover, the District Court's or der compelling th e Legislative Leaders to comply with discovery fits w ithin the three-prong analytical framework that we have estab lished for determining whether an order is r eviewable und er Cohen: 1) it conclusively resolves the question of whether the Legislative Leaders must comply with discovery; 2) it resolves an important issue, immunity fr om discove ry of

14legislators who are parties to a case, that is sepa rate from

the merits of the case; and 3) it effectively is un reviewable on appeal from a final judgment because the Legisla tive Leaders would be required to comply with discovery before they can later assert their immunity. See In r e Fo rd Motor Co., 110 F.3d 954, 958 (3d Cir. 1997). Particular e mphasis should be placed on the last prong, granting jurisd iction over those orders that would be effectively unrevie wable on appeal from a final judgment, see Cunningham v. Ham ilton County, 527 U.S. 198, 204 (1999); Digital Equip. Co rp. v. Desktop Direct, Inc., 511 U.S. 863, 867 (1994); For d Motor Corp., 110 F.3d at 958, meaning that the legal and practical value of the asserted privilege would be destr oyed if not vindicated prior to trial. See Lauro Lines SRL v. C hasser, 490 U.S. 495, 498-99 (1989).

The Majority relies on our decision in Bacher, supr a. But that decision is not as limiting as the Majority su ggests. Bacher does not stand for the proposition that a traditionally recognized privilege over which we wo uld have collateral order jurisdiction, such as legislative immunity, ceases to be a traditionally recognized privilege m erely

because it is raised in a new context and ther efor e ceases to be a colorable or meritorious claim of that priv ilege. Bacher did not involve a claim of a particular , id entifiable privilege but was a case in which a party to a civi l action attempted to appeal a run-of-the-mill discovery or der. The defendant there merely sought to avoid complying wi th simple discovery requests on the ground that the information sought (the amounts of past settlements paid)

was confidential and not relevant and its disclosur e would violate public policy, see Bacher, 211 F .3d at 53, but not because any privilege or immunity was implicated. O ur conclusion that we lacked jurisdiction was not a ne w limitation on the collateral order doctrine but rat her a consistent application of the long-standing rule th at simple discovery orders are not final or ders subject to i mmediate review. See Bacher, 211 F.3d at 53 (quoting Ford Mo tor Co., 110 F.3d at 958). Here, by contrast, the Legislativ e Leaders assert a defined, specific, well-established, tradi tionally recognized privilege or immunity, albeit with a twi st. But that twist, regardless of its effect on the merits of the privilege claim, does not affect our jurisdiction a nd does not

15turn this case into Bacher -- the claimed privilege remains

legislative, it remains traditionally r ecognized, and it therefore should remain immediately r eviewable.

Nor, as the Majority suggests, see Majority at 12, does Bacher require us to conduct a confined examination of the merits of the claimed privilege, only of the nature of the privilege, that is, of the type of immunity asserte d. I suggest no differently. As I see it, we must look at the re cord, determine the nature or type of immunity asserted, and evaluate whether it is a traditionally recognized p rivilege, such as legislative immunity; this is precisely wha t Bacher commands. But looking at whether the immunity asser ted is legislative, meaning asserted by legislators bas ed on their official activity, and thus traditionally r ecogniz ed, is not a merits determination. I have not taken "a peek at t he merits," Majority at 12, just at the natur e of the privilege asserted. Only after concluding that the asserted p rivilege is legislative and that we therefore have collatera l order jurisdiction, do I even broach the necessarily sepa rate and distinct question of whether that claim of legislat ive immunity has merit in its current context.

I am concerned with the impact that this ruling may have on future cases. It is not contested that plaintiff s could challenge the legality of legislative decisions by suing the executive officers charged with carrying out those decisions.* Further, it is clear that plaintiffs co uld sue municipalities for legislative actions and the muni cipalities themselves are not entitled to legislative immunity . See Carver v. Foerster, 102 F.3d 96, 104 (3d Cir. 1996) . It also is clear that the individual legislators could not be named as defendants in such a case, or could be dismissed at an early stage if the suit were based upon their legis lative

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* It is worth noting that not all the Legislative L eaders' activities in funding education could be deemed legislative; some activities could be deemed executive and legislative immunity would not attach to such activities. See Carver v. Foerster, 102 F .3d 96, 1 01 (3d Cir. 1996) (an

officer's executive or administrative actions ar e separate from legislative actions). For example, the record r eflects that tw o of the Legislative Leaders are ex officio members of the Pennsylvania Board of Education, an executive department; any actions in that r ole properly should be

deemed executive.

16activities. See Bogan v. Scott-Harris, 523 U.S. 44, 52-54

(1998); Supreme Court, 446 U.S. at 733-34. But we h ave not addressed whether a non-party legislator would be legislatively immune from being made to comply with subpoenas for discovery in a civil action.

The Fourth Circuit has decided this issue, holding that non-party legislators cannot be made to testify or provide evidence as to their legislative activities or thei r motives. See Burtnick v. McLean, 76 F.3d 611, 613 (4th Cir. 1996); Berkley v. Common Council of the City of Charleston , 63 F.3d 295, 303 n.9 (4th Cir. 1995) (en banc) (sugges ting, but not holding, that prior law indicates that members of the council would be privileged from testifying). W e h ave, on the other hand, noted that the intent-based inquiry tha t is part

of certain doctrines in constitutional law necessar ily means that judicial inquiry into legislative motive is no t per se forbidden in such cases. See Carver, 102 F .3d at 1 04; see also Village of Arlington Heights v. Metr opolitan Hous. Dev. Corp., 429 U.S. 252, 268 n.18 (1977) (stating that in some extraordinary circumstances, the members of a legis lative body might be called to testify about legislative a ctions, although this is usually to be avoided). We also ha ve held that a state legislator may be subpoenaed to pr ovi de evidence to a grand jury of which the legislator is not the target. See In re Grand Jury (Granite Purchases), 8 21 F.2d 946, 958 (3d Cir. 1987).

The immunity of a non-party legislator from civil discovery thus is an open issue in this Circuit, on e that we may be called upon to resolve at some point. But su ppose that case were to arise and the District Court were to reject the claimed privilege and order the non-party legis lator to comply with the subpoena and provide testimony and discovery. Would we have jurisdiction immediately t o review that order? As I read today's decision, the answer is no. I see no way to distinguish the future case fr om the instant case. A privilege from discovery by a non-party leg islator would be as new in this Circuit as the privilege th at the Legislative Leaders seek to assert in the instant c ase; it would not be a traditionally recognized privilege, foreclosing our immediate review under the Majority's r eading of Bacher. We could not distinguish this future case f rom the

17instant one by saying that those legislators ar e a sserting a

legislative privilege (that is, a privilege that th ey possess by virtue of and in connection with their positions an d activities as legislators) and that legislative imm unity is a traditionally recognized privilege, because the Leg islative Leaders here assert a privilege that unquestionably is "legislative" under such a definition. The only pos sible

distinction between the instant case and the futur e case is that the latter might have more merit than the form er, that it might be a colorable application of legislative immunity. But such consideration of the merits of a privilege must be irrelevant to the question of our jurisdiction.

If legislative privilege from civil discovery exist s, either for a party, as in the instant case, or for a non-party as it may arise in the future, it exists to protect legislato rs from the burden of having to respond to discovery and of hav ing to deal with the distractions and disruptions that dis covery imposes on their ability to carry out their gover n mental functions. See Supreme Court, 446 U.S. at 733; Lars en, 152 F.3d at 245; see also Mitchell v. Forsyth , 472 U.S . 511, 529- 30 (1985) (same with respect to qualified executive immunity). But a privilege from discovery (assuming

, arguendo, it exists in either situation) is worthle ss if it cannot be vindicated prior to the legislators being forced to comply with discovery. Yet the Majority's approach effectively renders any possible claim of a legisla tive discovery privilege unreviewable until after discov ery has been obtained. I cannot agree with such a limitatio n on our appellate jurisdiction.

Because I find that we do have jurisdiction over th e Legislative Leaders' appeal, my next step would be to reach the merits of the claimed privilege. I would r ejec t the privilege on its merits. In this regard, much of my reasoning is similar to that of the Majority. Indee d, that suggests to me that the Majority is, in fact, condu cting a merits analysis of the immunity claim and, in ef fe ct, rejecting the Legislative Leaders' claim on that ba sis.

The Legislative Leaders knowingly, willingly, and voluntarily entered this case by intervening as def endants. They explicitly wish to remain as defendants. And t hey repeatedly insist that they should be tr eated the same as all

18other defendants, as if they had been named in the original

filing, entitled to all the privileges and rights o f parties to civil litigation. It follows, I believe, that they waived any immunity from discovery by the decision to enter an d remain in the case and to assert their rights as de fendants.

The Legislative Leaders have pointed to no case in which a legislator who is a party to a civil action has b een held to be immune from discovery. Every case the Legislativ e Leaders cite in their briefs and at oral argument i nvolves attempts to take discovery in a civil case fr om le gislators who are not parties to the case. See Burtnick, 76 F .3d at 613; Brown & Williamson Tobacco Corp. v. Williams, 62 F.3d 408, 421 (D.C. Cir. 1995). As discussed supra, we have not determined whether such immunity exists in this Circuit and I offer no opinion as to whether such p rivilege should exist. But none of these cases supports the proposition that a legislator who chooses to become a party to a civil action is immune from discovery.

The party/non-party distinction is critical. Legisl ative immunity is intended to protect legislators fr om h aving to divert their time, energy, and attention fr om thei r legislative tasks in order to defend themselves or to pr ovide evidence in a civil action. It protects legislators fr om th e potential harassment, disruption, and distraction that would come with the burden of having to defend themselves and/ or provide evidence. See Supreme Court , 446 U.S. at 7 33; Grand Jury, 821 F.2d at 958. But the pr ophylactic function of the immunity is undermined once the Legislative Leaders choose to join the case. They have willingly subjec ted themselves to any disruptions and distractions that go with being party to civil litigation. They cannot now cl aim that they should be protected from the disruptions and distractions that they voluntarily undertook.

The Legislative Leaders attempt to downplay the significance of their intervention. Although they c ertainly recognize that legislative immunity may be waived, see Government of the Virgin Islands v. Lee, 775 F.2d 5 14, 520 n.7 (3d Cir. 1985) (noting that criminal defendant legislator's claim that he was impermissibly depose d was "unpersuasive" where the deposition was voluntary a nd the defendant waived any privilege); Burtnick, 76 F.3d at 613

19(holding that non-party's privilege from being comp elled to

testify could be waived), the Legislative Leaders s uggested at oral argument that intervening did not waive the ir privilege because any such waiver was not sufficien tly explicit. I cannot conceive, however, of a more exp licit waiver of immunity than willingly submitting onesel f to the jurisdiction of a federal district court. If the Le gislative

Leaders had been named as defendants in the first i nstance and had failed to assert their legislative immunity as an affirmative defense, they unquestionably could be d eemed to have waived that immunity. Intervening places th em in the identical position.

I find helpful the analysis of the District Court i n an analogous situation, in May v. Cooperman , 578 F. S upp. 1308 (D. N.J. 1984), aff'd in part, appeal dismisse d in relevant part, 780 F.2d 240 (3d Cir. 1985). In May, four members of the New Jersey legislature, r epresentin g that body, intervened as defendants in a S 1983 action t o defend the constitutionality of a state statute because th e executive refused to defend it. After the law was s truck down, the District Court assessed attorneys' fees a gainst the legislative defendants, under 42 U.S.C. S 1988; the legislators argued that they were absolutely immune from an award of attorneys' fees for their legislative a ctivity. The District Court rejected this argument, holding that the legislators had interjected themselves into the law suit by intervening and becoming parties, thereby waiving t heir legislative immunity from incidents of suit, such a s attorneys' fees. See May, 578 F . Supp. at 1316-17. The District Court distinguished prior immunity cases, such as Supreme Court, because the New Jersey legislators h ad

chosen to intervene and assume defense of the statu te. See

id. at 1317.

Similarly, compliance with discovery, and being compelled to comply with requests for documents, information, and testimony, are incidents of suit. Regardless of whether the Legislative Leaders would have been immune from such incidents as non-parties, it is clear that they surrendered any immunity fr om discovery by voluntarily and willingly entering and remaining in the action as party defendants.

20I close by emphasizing that my analysis and the

Majority's analysis are very similar in denying the asserted legislative immunity from discovery. The dif ferenc e is that the Majority concludes that the lack of merit takes the immunity outside the bounds of legislative immunity and divests us of collateral order doctrine jurisdictio n. I conclude that, because the asserted immunity is "legislative," we have collateral order jurisdictio n. The lack of merit to the claim of immunity means the claim s hould be denied on its merits. I would affirm the judgmen t of the District Court because the Legislative Leaders have waived any immunity from discovery. They are as subject to production of documents and of testimony as is any other party.

For the above reasons, I concur only in the judgmen t of

the Court.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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