Gov. Raimondo invokes government privileges in ATA toll lawsuit
August 13, 2020
Just two weeks after Rhode Island Gov. Gina Raimondo and two other state officials were subpoenaed in the truck-only toll lawsuit, the three officials are attempting to invoke government privileges to avoid the orders.
On Aug. 6, Raimondo, House Speaker Nicholas Mattiello and Senior Deputy Majority Leader Stephen Ucci filed a motion to quash the subpoenas. According to court documents, the officials are asserting legislative and deliberative process privileges.
Raimondo’s attorneys argue that federal courts have recognized the common law doctrine of state legislative privilege.
Raimondo also argues that even if plaintiffs discover a document suggesting any sort of discrimination when drafting RhodeWorks, it would not prove anything.
“Plaintiffs’ subpoenas seek to open the inner offices of government to a searching review for documents and communications that might suggest that some state official, individual legislator, staffer, agency employee or anyone else for that matter had some improper or discriminatory purpose in mind during the deliberative and legislative processes leading up to the enactment of the RhodeWorks Act,” Raimondo’s attorneys argue.
“Even if such a searching review was successful in unearthing from the depths of the drawers of a staffer the proverbial needle in a haystack – a document or communication suggesting that a single participant in the deliberative and legislative processes had an improper or discriminatory purpose in mind – such a document would fall far short of demonstrating that the RhodeWorks Act was enacted with a discriminatory purpose and would serve only to invite speculation about the intentions of the legislature as a whole.”
Raimondo also argues that if privileges do not apply for some documents, the undue burden it will cause should prevail. In fact, she uses the COVID-19 pandemic as part of that reasoning.
Stating her case, the governor refers to her role as chief executive officer of the state and commander-in-chief during the ongoing global COVID-19 pandemic as a reason to avoid “producing documents and appearing for a deposition at this time.”
Subpoenas filed in court on July 23 order Raimondo and others to produce certain documents by Friday, Aug. 14. The subpoenas also order them to appear for a deposition on Sept. 4. Now that the state officials are challenging the subpoenas, those orders will be on hold while the American Trucking Associations and the state litigate the merits of the claims.
Raimondo’s move to avoid testimony and to produce documents was expected. In July, Judge William E. Smith of the Rhode Island District Court told ATA that statements from the officials in news articles alone would not be enough. Rather, testimony will be needed to support those printed statements.
In an attempt to dismiss the case, the state of Rhode Island suggested that government privileges precluded Raimondo and other officials from handing over documents or giving testimony. Judge Smith declined to rule on the matter. At the time, the issue had yet to be brought before the court other than as a hypothetical. However, Smith did state that courts have held that privilege for state legislators under common law is limited. Furthermore, the court will apply federal common law, not state law, when deciding on the claims. The court will look into the following factors when making that decision:
- Relevance of the evidence sought to be protected.
- Availability of other evidence.
- Seriousness of the litigation and the issues involved.
- Role of the government in the litigation.
- Possibility of future timidity by government employees who will be forced to recognize that their secrets are violable.
As of publication, ATA has not yet replied to the motion to quash subpoenas.