ATA and Rhode Island argue merits of government privilege in toll lawsuit

September 2, 2020

Tyson Fisher


The American Truck Association has replied to Gov. Gina Raimondo’s and two other Rhode Island lawmakers’ attempt to invoke government privilege, with the state countering ATA’s reply in a heated back-and-forth argument.

On Aug. 24, ATA filed opposition to Gov. Raimondo, House Speaker Nicholas Mattiello and Senior Deputy Majority Leader Stephen Ucci’s motion to squash subpoenas in the truck-only toll lawsuit. One week later, Rhode Island replied to that opposition, leaving a Rhode Island federal court to decide which party’s argument holds merit.

ATA argues against government privilege

Opposing the attempt to avoid subpoenas, ATA pointed to the district court’s denial of Rhode Island’s motion for judgement. In that order, the court ruled that material relating to the intent of the government officials in publicizing the RhodeWorks tolls is relevant.

Specifically, if officials cannot testify, then the court will have to use statements in news reports as evidence. Regardless, ATA argued, Rhode Island has made no attempt to narrow which materials requests in the subpoenas would address their concerns regarding government privilege.

In fact, ATA argued that rather than “meet and confer,” the state is trying to quash all discovery. ATA stated that it is “willing to discuss reasonable narrowing of requests” that could be considered burdensome. However, Rhode Island has made no indication of doing so.

Furthermore, federal law invokes government privilege for testimony when the public good associated with the exclusion of the testimony overrides the arguments in favor. ATA argued that Rhode Island “has not come close to overcoming this presumption that favors the production of probative evidence.”

ATA also argued that government privilege is not absolute in dormant Commerce Clause cases as suggested by the state. The trucking association cited past federal cases that included discovery from officials in Commerce Clause cases. Addressing the state’s argument that courts are strongly against questions about officials’ motives, ATA argued that their intent is “highly relevant” and that constitutional issues “are of the utmost seriousness.”

Rhode Island has argued that now is not a good time, considering the pandemic.

ATA addressed that concern.

“Again, we recognize the governor’s significant responsibilities at this time,” ATA stated. “But there is no basis to believe that a properly circumscribed and time-limited deposition, scheduled with sensitivity to the governor’s schedule, would be unmanageable. And in that regard, the state’s accusation that ‘Plaintiffs have chosen to move this case forward in the middle of a global pandemic’ is especially dubious.

“As we previously have noted in response to a similar argument, the case is moving forward now only because the state filed an ultimately unsuccessful motion under the Tax Injunction Act that had the effect of delaying the litigation for almost two years. Had it not done so, this suit likely would have reached final judgment long ago.”

Rhode Island doubles down on government privilege arguments

Replying to ATA’s opposition, Rhode Island reiterated how it has demonstrated that the district court has recognized an absolute government privilege in dormant Commerce Clause cases, expressly held that questions about legislative motive should not be asked, and said questions about public statements of state officials regarding reasons for supporting certain legislation have no place in a dormant Commerce Clause case.

The state argued that ATA’s rejection of those arguments is based on claims that cases cited by Rhode Island are either old or wrongly decided, and it does not mean they are inapplicable. Defendants first claimed that ATA had misread at least one case. Rhode Island then pointed out that ATA resorts to cases outside of the Rhode Island district court or First Circuit to prove its point.

“Then, because cases decided by courts in the First Circuit do not serve their position, plaintiffs resort to reliance on out-of-jurisdiction redistricting and voting rights cases,” Rhode Island argued. “But as the (government officials) explained in their moving papers, the legislative privilege is absolute in civil cases, except in cases such as redistricting and voting rights cases where the corrective mechanisms built into our republican system of government are ill-suited to address the threat of legislative self-entrenchment.”

Rhode Island then accused ATA of essentially grasping at straws.

First, the state argued that ATA misstates the holdings of court decisions. Second, Rhode Island accused ATA of omitting unfavorable language. Third, ATA is “inserting bracketed language that does not appear anywhere in the court’s decision,” the state claimed. Lastly, the state alleged that ATA is cherry-picking language, but, upon further examination, the court’s actual language did not support ATA’s claims.

The state again brought up the COVID-19 pandemic when justifying government privilege. Specifically, Rhode Island argued that complying with the subpoena would hinder the officials’ ability to address the pandemic.

“At bottom, plaintiffs have come forth with nothing to support their extraordinary request that this court invade the legislative and deliberative process privileges and require the (government officials) to search for documents that plaintiffs hope will suggest that some participant at some stage in the deliberative and legislative processes had some improper or discriminatory purpose in mind,” Rhode Island stated. “Such discovery would serve no purpose other than to invite speculation about the actual intentions of the General Assembly as a whole in enacting RhodeWorks. Nor have plaintiffs come forth with anything to support their request to depose the governor, the Speaker and Rep. Ucci in the middle of a global pandemic that requires their utmost attention to the public’s health, safety and welfare.”