Court rules Rhode Island governor must testify in toll lawsuit

October 28, 2020

Tyson Fisher


Rhode Island Gov. Gina Raimondo and other state officials will have to give testimony in the American Trucking Associations’ toll lawsuit, a federal court ruled.

On Oct. 23, Judge William E. Smith of the U.S. District Court in Rhode Island denied Rhode Island’s motion to quash subpoenas for Raimondo, Speaker Nicholas Mattiello and Rep. Stephen Ucci. The state officials attempted to invoke government privilege to evade subpoenas filed by ATA in July.

Specifically, Raimondo and her colleagues claimed legislative privilege and undue burden, with Raimondo adding deliberative process privilege. Legislative privilege protects lawmakers’ statements made in their capacity as a lawmaker, including statements published in papers. The trio of officials also argued that setting time aside for depositions causes an undue burden while they deal with a pandemic. Lastly, deliberative process privilege protects information that is part of the decision-making process at the executive level.

However, the court found “that the interests at play require breaching the privileges, and that compliance with the subpoenas would not be unduly burdensome.”

Legislative privilege is not absolute

In his decision, Judge Smith acknowledged there are two schools of thought regarding legislative privilege: absolute and qualified.

Rhode Island argued that legislative privilege is absolute, with the exception of few categories of cases. On the other hand, ATA argued that legislative privilege is inherently qualified and should be determined on a case-by-case basis. The court concluded that case law better supports qualified privilege rather than absolute.

Although the privilege is more absolute for federal lawmakers, Judge Smith ruled that privileges for state lawmakers is “undeniably weaker.”

In the denial, the court poked holes in the absolutist argument. Specifically, the argument allows for an exemption where federal interests are at stake.

“By definition, that is a qualified privilege,” Judge Smith stated.

Essentially, it comes down to a balancing act between protecting lawmakers and five factors favoring disclosure:

  1. Relevance of the evidence sought to be protected.
  2. Availability of other evidence.
  3. Seriousness of the litigation and the issues involved.
  4. Role of the government in the litigation.
  5. Possibility of future timidity by government employees who will be forced to recognize that their secrets are violable.

Regarding relevance, the court said that if ATA “can show a sufficient link between evidence of legislative intent obtained through these subpoenas and the resulting RhodeWorks legislation – a high bar to meet – the evidence will be relevant.” However, ATA needs to show more than just a possibility. This is where statements made to the media come into play.

“Here, based on the public statements of the individual movants, the discovery requests are not fishing expeditions; rather, they are legitimate attempts to fully examine and contextualize what appear to be patent statements of discriminatory intent,” Smith wrote.

Furthermore, the court pointed out how ATA claims that Raimondo “spearheaded the drafting of the legislation,” and that her, Mattiello and Ucci’s intent “has greater relevance than that of other legislative actors.”

Although media statements are available as evidence, which the court will admit absent any testimony, they are simply not enough. Smith argued that those quotes can be taken out of context. Testimony will supply “helpful context.”

The question of seriousness was not much of a question, as Smith used Raimondo’s words in her own motion to state the seriousness of a Commerce Clause action. One subsection of her motion to quash subpoenas is titled “The Litigation is Serious but the Evidence Sought Does Not Bear on the Ultimate Disposition of Plaintiffs’ Claims.”

In terms of the role of government, Rhode Island argued the three officials simply voted for and signed RhodeWorks, suggesting a minimal role. However, ATA argued they “played outsized roles in the development as passage of RhodeWorks.”

“The court finds that their public statements emphasizing the burden placed on out-of-state truckers make their roles more ‘direct’ than simply voting for or signing the bill,” Smith concluded.

Lastly, there is a question if disclosure of nonpublic legislative materials can lead to fear of clear communication. In this case, the officials were speaking publicly already, not in private.

“Here, however, the movants clearly were not concerned with shielding their intentions from prying eyes; in fact, they publicly emphasized their desire to burden out-of-staters,” Smith states.

Deliberative process privilege not applicable

In order to invoke the deliberative process privilege, Raimondo had to show that submitting to the subpoena would reveal information that was “pre-decisional” to the adoption of RhodeWorks and related to the process by which RhodeWorks was formulated, i.e. deliberative.

According to court documents, determining deliberative process privilege uses the same five-factor test as legislative privilege.

“Thus, the deliberative process privilege rises, and in this case falls, on the same considerations,” Smith stated.

Raimondo and company do not face undue burden

Although precedent discourages calling high-ranking government officials as witnesses, it also allows depositions where the official has firsthand knowledge of the claim that no one else could have.

In this case, ATA is looking into the intentions of the officials. As pointed out by the court, Raimondo, Mattiello and Ucci “clearly have first-hand knowledge that cannot be fully supplied from anyone else.”

Regarding Raimondo’s claims of being too busy dealing with the pandemic, the court said it will make sure it keeps that in consideration when scheduling depositions. The typical seven-hour time limit is likely far more than necessary, Smith stated.

With the court denying attempts to avoid subpoenas, ATA can now move forward obtaining testimony from Raimondo and other officials.  LL