2001 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-6-2001

Powell v. Ridge

Precedential or Non-Precedential:

Docket 00-1711

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Recommended Citation

"Powell v. Ridge" (2001). 2001 Decisions. Paper 70.

http://digitalcommons.law.villanova.edu/thirdcircuit_2001/70
Filed 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; BOARD 

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 Education; 

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., 

 Appellants 
ON 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 District Judge for the 

Northern District of Illinois, sitting by designation. 

 2 
 William 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. 

 3 
 Jane 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 

 4 
OPINION OF THE COURT 

BARRY, Circuit Judge: 

Appellants suggest that we recognize a for m of legislative 

immunity heretofore unknown in the law, one which can 

best be described as "partial legislative immunity." Thus, 

and it is not disputed, the immunity appellants assert 

would enable them to seek discovery, but not r espond to it; 

take depositions, but not be deposed; and testify at trial, 

but not be cross examined. Moreover , appellants 

presumably believe that when they come upon an aspect of 

the litigation they find disagreeable, as they find the 

discovery order at issue here to be, they will be able to 

pursue an interlocutory appeal in this Court. W e disagree, 

and will dismiss this interlocutory appeal for lack of 

jurisdiction. 

I. 

In March 1998, suit was filed by students and parents, 

organizations, school district and city officials of the City of 

Philadelphia, and the City itself (hereinafter"appellees") 

alleging that the formula used by the Commonwealth of 

Pennsylvania to allocate certain federal education monies 

violated the regulations adopted by the U.S. Department 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 Commonwealth's 

criteria and methods of funding public education yield 

racially discriminatory results in Philadelphia and other 

predominantly minority school districts. Injunctive and 

declaratory relief was sought against members of the state's 

executive branch, including the Governor , the Secretary of 

Education, the State Treasurer , and the Chair of the State 

Board of Education. 

In early May 1998, several leaders of the Pennsylvania 

General Assembly (the "Legislative Leaders") moved to 

intervene in the suit, citing their financial and legal 

interests in the litigation and the need to"articulate to the 

 5 
Court the unique perspective of the legislative branch of the 

Pennsylvania government." App. at 48a. 1 That motion was 

unopposed, and was granted by the District Court. In their 

brief in support of intervention, the Legislative Leaders 

explicitly concurred in the motion to dismissfiled by the 

executive department defendants two days earlier; shortly 

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 complaint 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 Leaders' 

argument that plaintiffs lacked standing to maintain 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 petitions for 

certiorari to the Supreme Court of the United States. Both 

petitions were denied. Ryan v. Powell, 528 U.S. 1046 

(1999); Ridge v. Powell, 528 U.S. 1046 (1999). 

The District Court, taking the cue from us, thereafter 

entered a scheduling order and appellees accordingly 

sought discovery from all defendants, both executive and 

legislative. The Legislative Leaders objected, asserting, for 

the first time, "legislative privilege." After a meeting between 

counsel for both sides, however, the Legislative Leaders 

agreed to search their files to deter mine what documents 

they possessed which would fall under the discovery

requests. Ultimately they reported finding two boxes 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 Court 

entered its order. That response, which included a 

multitude of objections to the discovery requests including 

_________________________________________________________________ 

1. Then then-proposed intervenors referred to immunity only in passing 

when they stated, in a footnote in their brief, that they do not waive any 

"speech or debate immunity" they may have. App. at 37a. 

 6 
"legislative privilege," was, however, considered by the 

Court in connection with the Legislative Leaders' motion for 

reconsideration. The Court gave the objections short shrift, 

finding that our prior decision stressed the"importance of 

Plaintiffs' ability to conduct discovery" and, in light of this 

"mandate," denied the motion for reconsideration. The 

Legislative Leaders have now appealed the or der granting 

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 appellate 

jurisdiction under 28 U.S.C. S 1291." In re Ford Motor 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 prohibition a 

narrow range of interlocutory decisions. In re Montgomery 

County, 215 F.3d 367, 373 (3d Cir . 2000) (citing Cohen 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 issue must 

be completely separate from the merits of the action, and 

the decision must be effectively unreviewable on appeal 

from a final judgment. Id. (citing Coopers & Lybrand 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 the 

collateral order doctrine to discovery or ders. In Bacher, the 

_________________________________________________________________ 

2. Appellees contend that the Legislative Leaders should have appealed 

the denial of their Motion for Reconsideration rather than the order 

granting the Motion to Compel. Without pausing to decide that issue, we 

note that "decisions on the merits are not to be avoided 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 jurisdiction over orders not 

specified in the notice of appeal where "(1) there is a connection between 

the specified and unspecified orders; (2) the intention 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 conditions is met here. 

 7 
defendant insurance carrier contended that "sensitive" 

information regarding previous settlements ought to be 

privileged from discovery. Id. at 55. W e found that in light 

of Cunningham v. Hamilton County, 527 U.S. 198 (1999), 

Digital Equipment Corp. v. Desktop Direct, Inc., 511 U.S. 863 

(1994), and the approach taken by other courts of appeals 

-- which, we noted, prohibit immediate r eview of discovery 

orders even when privilege issues are involved -- the 

collateral order doctrine does not reach appeals of discovery 

orders "beyond the narrow categories of trade secrets and 

traditionally recognized privileges, such as attorney-client 

and work product." Bacher, 211 F .3d at 57 (emphasis added).3 

Underlying these narrow exceptions to the general rule of 

non appealability is a concern that wher e confidential 

information is sought, there is no way, absent immediate 

appeal of the order requiring disclosur e, to "unscramble the 

egg scrambled by the disclosure." For d, 110 F.3d at 963. It 

bears mention that even if legislative immunity in its 

traditionally recognized form wer e similarly bottomed on 

confidentiality, which it is not, the Legislative Leaders 

explicitly disavow any such interest. 

It is beyond argument that absolute legislative immunity 

represents a traditionally recognized privilege, and orders 

denying legislative immunity have often been r eviewed 

under the collateral order doctrine. Absolute immunity, 

after all, creates not only protection fr om liability, 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' absolute 

immunity claims is necessary to preserve the pr otections 

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). Writing only a few days 

after the Bacher decision, we found jurisdiction under the collateral 

order doctrine. Id. at 64-65. Pearson is clearly distinguishable from what 

is at issue here. The information sought in Pearson was confidential and 

the privilege asserted was based upon specific confidentiality provisions 

of three state statutes. Id. at 62-63. The Legislative Leaders, by 

contrast, 

do not assert a privilege under state law nor any interest in 

confidentiality. 

 8 
stand in the way of a legislator asserting facts giving 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 categories 

of interlocutory orders, without concer n for the individual 

circumstances of particular cases," Bacher, 211 F.3d at 56 

(citing Digital Equipment, 511 U.S. at 868), the Legislative 

Leaders stray far beyond the bounds of traditional 

legislative immunity, territory they surely r ecognize. 

Legislative immunity, they explain, is a doctrine which 

"protects state legislators absolutely fr om liability for their 

legislative activities. It also provides legislators with 

protection from the burden of defending themselves when 

engaged in the sphere of legitimate legislative activity." 

Appellants' Br. at 14-15 (citations and inter nal quotations 

omitted). Furthermore, they add, legislative immunity 

"protects against disruption to the legislative process, 

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 Legislative 

Leaders seeking any kind of wholesale protection from the 

burden of defending themselves. Instead, the Legislative 

Leaders build from scratch a privilege which would allow 

them to continue to actively participate in this litigation by 

submitting briefs, motions, and discovery requests of their 

own, yet allow them to refuse to comply with and, most 

likely, appeal from every adverse order . As we noted at the 

outset, and as the Legislative Leaders conceded at oral 

argument, the privilege they propose would enable them to 

seek discovery, but not respond to it; take depositions, but 

not be deposed; and testify at trial, but not be cr ossexamined. In short, they assert a privilege that does not 

exist. 

Not surprisingly, the Legislative Leaders have failed to 

come up with even one case which hints at the existence of 

the privilege they press. Moreover , every case which they do 

cite to support this privilege features, in dir ect contrast to 

this case, a defendant or a target of a subpoena seeking to 

 9 
extricate himself or herself completely fr om various 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. Cir. 

1988); Miller v. Transamerican Press, Inc., 709 F.2d 524 

(9th Cir. 1983); 2BD Assoc. Limited v. County 

Commissioners for Queen Anne's Co., 896 F . Supp. 528 (D. 

Md. 1995); Marylanders for Fair Representation, Inc. v. 

Schaefer, 144 F.R.D. 292 (D. Md. 1992); Campaign for 

Fiscal Equity v. New York, 179 Misc. 2d 907 (N.Y. Sup. Ct. 

1999). 

Unlike the reluctant participants in the cases upon which 

they rely, the Legislative Leaders voluntarily installed 

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 dismiss. This 

is simply not a case of legislators caught up in litigation in 

which they do not wish to be involved. Rather , these are 

self-made defendants who seek to turn what has heretofore 

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 examples of 

this complete remedy rather than the piecemeal remedies 

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 applied, 

"defendants in that suit could successfully have sought 

dismissal on the grounds of absolute legislative immunity") 

(emphasis added); Eastland v. United States Servicemen's 

Fund, 421 U.S. 491, 511 n.17 (1975) (while immunity does 

not absolve legislators of the responsibility of filing a motion 

to dismiss, such motions must be swiftly r esolved); Powell 

v. McCormack, 395 U.S. 486, 505-06 (1969) (citing prior 

cases in which the Court dismissed actions against 

members of Congress under the protection of the Speech 

and Debate Clause); Mitchell, 472 U.S. at 525 ("the essence 

of absolute immunity is its possessor's entitlement not to 

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

Larsen v. Senate of the Commonwealth, 152 F .3d 240, 254 

(3d Cir. 1998) (legislators' motion to dismiss granted for 

acts taken in legislative capacity). 

Not only is dismissal of the legislator the logical and 

eminently appropriate result where legislative immunity 

applies, it also is the remedy which best furthers the 

underlying goals of the doctrine. As we have observed, 

"[l]egislative immunity must be applied pragmatically, and 

not by labels. Thus, without attempting to draw a line for 

all cases, we examine whether [the] request for prospective 

relief 8 [can] be accorded consistent with the policies 

underlying legislative immunity." Larsen, 152 F.3d at 253. 

We, too, need not attempt to set out the pr ecise parameters 

of legislative immunity for cases yet to come. W e find it 

manifestly clear, however, that absolute legislative immunity 

was at the heart of cases such as Larsen. The privilege 

described by the Legislative Leaders would not pr otect them 

absolutely from the burdens of this litigation and, therefore, 

is outside the bounds of traditional legislative immunity. 

"Legislators are immune from deterr ents to the uninhibited 

discharge of their legislative duty, not for their private 

indulgence but for the public good." T enney v. Brandhove, 

341 U.S. 367, 377 (1951). See also United States v.

Brewster, 408 U.S. 501, 517 (1972) (shield of legislative 

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) (cautioning that 

privileges "are not lightly created nor expansively

construed"). 

The opinion concurring in the judgment only because, in 

its view, Larsen establishes our jurisdiction, would open the 

doors of our Court, albeit briefly, where the"privilege" 

invoked has, in the words of the distinguished author of 

that opinion, "no basis in law" and has "never been

recognized by this, or any other, court . . . ." Conc. Op. at 

13. Those doors must open, in her view, because we cannot 

in the course of our jurisdictional analysis even peek to see 

whether we are presented with a traditionally recognized 

privilege as that would involve touching on the merits. But 

if this view were to prevail, Bacher would be rendered 

 11 
4. The corollary to our finding of no jurisdiction under Bacher is that 

the 

Legislative Leaders have not, at least as of yet, invoked absolute 

legislative immunity. Neither the District Court nor this Court, 

therefore, 

has been presented with the question -- and, given our lack of 

jurisdiction, we do not decide -- whether such immunity would be 

available to voluntary intervenors such as the Legislative Leaders, or 

whether the very act of intervening has waived the privilege. 

meaningless; indeed, a confined examination of at least 

certain underlying facts was necessary in Bacher and 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 calling 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 Leaders 

invoke is assuredly not only not "traditionally recognized," 

but is not even suggested by any reasonable r eading of the 

applicable case law, Bacher requir es that we dismiss this 

interlocutory appeal for lack of jurisdiction.4 We note that, 

as in any civil case, the Legislative Leaders r emain 

protected by the District Court's power to limit discovery 

which is unreasonably cumulative, more easily obtainable 

from another source, or unduly bur densome. Fed. R. Civ. 

Proc. 26(b)(2). 

 12 
ROTH, Circuit Judge, Concurring: 

I agree with the Majority that the asserted legislative 

immunity from discovery has no basis in law and must be 

denied. The immunity asserted is unprecedented in its 

scope and breadth. The four Legislative Leaders, who 

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 parties to 

federal litigation while bearing none of the bur dens or 

responsibilities. I have found nothing to support the idea 

that a state legislator who remains a party to civil litigation 

is immune from compliance with discovery. Indeed, not 

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 recognize it. 

In my view, however, the lack of merit in the Legislative 

Leaders' claim of immunity does not mean, as the Majority 

holds, that we do not have jurisdiction to hear the appeal 

under the Collateral Order Doctrine of Cohen v. Beneficial 

Indus. Loan Corp., 337 U.S. 541 (1949), and its progeny. 

Rather, the lack of merit means that the claim of immunity 

should be denied for just that reason -- it lacks merit. It is 

established law in this Circuit that the denial of a claim of 

legislative immunity is immediately reviewable under 

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 from 

discovery while remaining parties to the civil action, not as 

immunity from liability or from having to be parties to the 

action at all. See, e.g., Supr eme Court of Virginia v. 

Consumers Union of the United States, Inc., 446 U.S. 719, 

732-33 (1980). But that does not, as the Majority holds, 

change the fact that the Legislative Leaders assert a 

privilege that is a by-product of their status as legislators, 

just as their recognized immunity from liability and from 

having to defend themselves is a by-product of their status 

as legislators. See id. Clearly, the immunity that the 

Legislative Leaders claim is "legislative." The merits of their 

 13 
claimed privilege must be irrelevant to our jurisdictional 

analysis. 

In my view, the Majority errs by conflating a merits 

analysis into its jurisdictional conclusion. The Majority 

recognizes that the Legislative Leaders claim that their 

immunity falls within the "legislative immunity" rubric, that 

the Legislative Leaders claim "a form of legislative immunity 

. . . ." Majority at 5. When the Majority subsequently states 

that the claimed immunity is "heretofor e unknown in the 

law," Majority at 5, and that the Legislative Leaders "assert 

a privilege that does not exist", id. at 9, that sounds to me 

like a decision on the merits. The Majority's conclusion that 

we lack jurisdiction appears to rest on the following 

reasoning: A claim of legislative immunity in a new context, 

which lacks merit, ceases to be a traditionally r ecognized 

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 extended 

beyond the narrow categories of trade secr ets and 

traditionally recognized privileges). But this begs a 

question: If the asserted privilege is not "legislative" 

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 "legislative" 

privilege, in a case involving legislators acting in a 

legislative capacity, is sufficient to trigger our collateral 

order jurisdiction, opening the door to immediate appellate 

review of the denial of such a claim, r egardless of the fact 

that the "legislative" immunity arises in a new or different 

context or may lack merit. To my mind, our jurisdiction in 

the instant case is compelled by our decision in Larsen, 

where we expressly held that we had collateral order 

jurisdiction over the denial of claims of legislative 

immunity. See Larsen, 152 F.3d at 245. 

Moreover, the District Court's or der compelling the 

Legislative Leaders to comply with discovery fits within the 

three-prong analytical framework that we have established 

for determining whether an order is r eviewable under 

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 discovery of 

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

the merits of the case; and 3) it effectively is unreviewable 

on appeal from a final judgment because the Legislative 

Leaders would be required to comply with discovery before 

they can later assert their immunity. See In r e Ford Motor 

Co., 110 F.3d 954, 958 (3d Cir. 1997). Particular emphasis 

should be placed on the last prong, granting jurisdiction 

over those orders that would be effectively unreviewable on 

appeal from a final judgment, see Cunningham v. Hamilton 

County, 527 U.S. 198, 204 (1999); Digital Equip. Corp. v. 

Desktop Direct, Inc., 511 U.S. 863, 867 (1994); Ford 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. Chasser, 

490 U.S. 495, 498-99 (1989). 

The Majority relies on our decision in Bacher, supra. But 

that decision is not as limiting as the Majority suggests. 

Bacher does not stand for the proposition that a 

traditionally recognized privilege over which we would have 

collateral order jurisdiction, such as legislative immunity, 

ceases to be a traditionally recognized privilege merely 

because it is raised in a new context and ther efore ceases 

to be a colorable or meritorious claim of that privilege. 

Bacher did not involve a claim of a particular , identifiable 

privilege but was a case in which a party to a civil action 

attempted to appeal a run-of-the-mill discovery or der. The 

defendant there merely sought to avoid complying with 

simple discovery requests on the ground that the 

information sought (the amounts of past settlements paid) 

was confidential and not relevant and its disclosure would 

violate public policy, see Bacher, 211 F .3d at 53, but not 

because any privilege or immunity was implicated. Our 

conclusion that we lacked jurisdiction was not a new 

limitation on the collateral order doctrine but rather a 

consistent application of the long-standing rule that simple 

discovery orders are not final or ders subject to immediate 

review. See Bacher, 211 F.3d at 53 (quoting Ford Motor Co., 

110 F.3d at 958). Here, by contrast, the Legislative Leaders 

assert a defined, specific, well-established, traditionally 

recognized privilege or immunity, albeit with a twist. But 

that twist, regardless of its effect on the merits of the 

privilege claim, does not affect our jurisdiction and does not 

 15 
turn 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 asserted. I suggest 

no differently. As I see it, we must look at the record, 

determine the nature or type of immunity asserted, and 

evaluate whether it is a traditionally recognized privilege, 

such as legislative immunity; this is precisely what Bacher 

commands. But looking at whether the immunity asserted 

is legislative, meaning asserted by legislators based on their 

official activity, and thus traditionally r ecognized, is not a 

merits determination. I have not taken "a peek at the 

merits," Majority at 12, just at the natur e of the privilege 

asserted. Only after concluding that the asserted privilege 

is legislative and that we therefore have collateral order 

jurisdiction, do I even broach the necessarily separate and 

distinct question of whether that claim of legislative 

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 plaintiffs could 

challenge the legality of legislative decisions by suing the 

executive officers charged with carrying out those 

decisions.* Further, it is clear that plaintiffs could sue 

municipalities for legislative actions and the municipalities 

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 legislative 

_________________________________________________________________ 

* It is worth noting that not all the Legislative Leaders' 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, 101 (3d Cir. 1996) (an 

officer's executive or administrative actions ar e separate from 

legislative 

actions). For example, the record r eflects that two 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. 

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

(1998); Supreme Court, 446 U.S. at 733-34. But we have 

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 their 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) (suggesting, but 

not holding, that prior law indicates that members of the 

council would be privileged from testifying). W e have, on the 

other hand, noted that the intent-based inquiry that is part 

of certain doctrines in constitutional law necessarily means 

that judicial inquiry into legislative motive is not per se 

forbidden in such cases. See Carver, 102 F .3d at 104; 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 legislative 

body might be called to testify about legislative actions, 

although this is usually to be avoided). We also have held 

that a state legislator may be subpoenaed to pr ovide 

evidence to a grand jury of which the legislator is not the 

target. See In re Grand Jury (Granite Purchases), 821 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, one that we 

may be called upon to resolve at some point. But suppose 

that case were to arise and the District Court were to reject 

the claimed privilege and order the non-party legislator to 

comply with the subpoena and provide testimony and 

discovery. Would we have jurisdiction immediately to 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 legislator 

would be as new in this Circuit as the privilege that the 

Legislative Leaders seek to assert in the instant case; 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 from the 

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instant one by saying that those legislators ar e asserting a 

legislative privilege (that is, a privilege that they possess by 

virtue of and in connection with their positions and 

activities as legislators) and that legislative immunity is a 

traditionally recognized privilege, because the Legislative 

Leaders here assert a privilege that unquestionably is 

"legislative" under such a definition. The only possible 

distinction between the instant case and the futur e case is 

that the latter might have more merit than the former, 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 exists, 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 legislators from the 

burden of having to respond to discovery and of having to 

deal with the distractions and disruptions that discovery 

imposes on their ability to carry out their gover nmental 

functions. See Supreme Court, 446 U.S. at 733; Larsen, 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 worthless 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 legislative 

discovery privilege unreviewable until after discovery has 

been obtained. I cannot agree with such a limitation on our 

appellate jurisdiction. 

Because I find that we do have jurisdiction over the 

Legislative Leaders' appeal, my next step would be to reach 

the merits of the claimed privilege. I would r eject the 

privilege on its merits. In this regard, much of my

reasoning is similar to that of the Majority. Indeed, that 

suggests to me that the Majority is, in fact, conducting a 

merits analysis of the immunity claim and, in ef fect, 

rejecting the Legislative Leaders' claim on that basis. 

The Legislative Leaders knowingly, willingly, and 

voluntarily entered this case by intervening as defendants. 

They explicitly wish to remain as defendants. And they 

repeatedly insist that they should be tr eated the same as all 

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

filing, entitled to all the privileges and rights of parties to 

civil litigation. It follows, I believe, that they waived any 

immunity from discovery by the decision to enter and 

remain in the case and to assert their rights as defendants. 

The Legislative Leaders have pointed to no case in which 

a legislator who is a party to a civil action has been held to 

be immune from discovery. Every case the Legislative 

Leaders cite in their briefs and at oral argument involves 

attempts to take discovery in a civil case fr om legislators 

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 privilege 

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. Legislative 

immunity is intended to protect legislators fr om having to 

divert their time, energy, and attention fr om their legislative 

tasks in order to defend themselves or to pr ovide evidence 

in a civil action. It protects legislators fr om the 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 733; 

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 subjected 

themselves to any disruptions and distractions that go with 

being party to civil litigation. They cannot now claim 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 certainly 

recognize that legislative immunity may be waived, see 

Government of the Virgin Islands v. Lee, 775 F.2d 514, 520 

n.7 (3d Cir. 1985) (noting that criminal defendant 

legislator's claim that he was impermissibly deposed was 

"unpersuasive" where the deposition was voluntary and the 

defendant waived any privilege); Burtnick, 76 F.3d at 613 

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

testify could be waived), the Legislative Leaders suggested 

at oral argument that intervening did not waive their 

privilege because any such waiver was not sufficiently 

explicit. I cannot conceive, however, of a more explicit 

waiver of immunity than willingly submitting oneself to the 

jurisdiction of a federal district court. If the Legislative 

Leaders had been named as defendants in the first instance 

and had failed to assert their legislative immunity as an 

affirmative defense, they unquestionably could be deemed 

to have waived that immunity. Intervening places them in 

the identical position. 

I find helpful the analysis of the District Court in an 

analogous situation, in May v. Cooperman , 578 F. Supp. 

1308 (D. N.J. 1984), aff'd in part, appeal dismissed in 

relevant part, 780 F.2d 240 (3d Cir. 1985). In May, four 

members of the New Jersey legislature, r epresenting that 

body, intervened as defendants in a S 1983 action to defend 

the constitutionality of a state statute because the 

executive refused to defend it. After the law was struck 

down, the District Court assessed attorneys' fees against 

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 activity. The 

District Court rejected this argument, holding that the 

legislators had interjected themselves into the lawsuit by 

intervening and becoming parties, thereby waiving their 

legislative immunity from incidents of suit, such as 

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 had 

chosen to intervene and assume defense of the statute. 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. 

 20 
I close by emphasizing that my analysis and the 

Majority's analysis are very similar in denying the asserted 

legislative immunity from discovery. The dif ference 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 jurisdiction. I 

conclude that, because the asserted immunity is 

"legislative," we have collateral order jurisdiction. The lack 

of merit to the claim of immunity means the claim should 

be denied on its merits. I would affirm the judgment 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 judgment of 

the Court. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 21