Canaan Christian Church v. Montgomery Cnty.
Canaan Christian Church v. Montgomery Cnty.
Opinion of the Court
Before this Court are Plaintiffs Burtonsville Associates and Burtonsville Crossing, LLC's Motion to Compel Responses to Discovery (ECF No. 52) ("Plaintiffs' Motion") and Defendants' Cross-Motion for Protective Order (ECF No. 54) ("Defendants' Motion"), collectively the "Motions." The Court has reviewed the Motions, related memoranda and applicable law. No hearing is deemed necessary. See Local Rule 105.6 (D. Md.). For the reasons presented below, the Court DENIES Plaintiffs' Motion and GRANTS Defendants' Motion.
I. Analysis
A. Defendants Have Asserted Privileges In A Manner That Is Procedurally Correct.
Plaintiffs contend that Defendants have made assertions of privilege in a conclusory fashion, failing to set forth specific facts in support thereof. Pls.' Mem. In Supp., at 3-4 (ECF No. 52-1). Defendants have complied with the letter and spirit of the Federal Rules of Civil Procedure and this Court's Local Rules.
Federal Rule of Civil Procedure 26 requires Defendants to (1) "expressly make the claim" of privilege; and, (2) "to describe the documents, communications, or tangible things not produced or disclosed-and *763do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim." Fed. R. Civ. P. 26(b)(5)(A)(i-ii). See also Local Rules, Discovery Guideline 10.d.iii.
In their reply briefing, Plaintiffs rightly abandon this issue. Defendants have asserted legislative and executive privileges in a manner that sufficiently identifies the categories of information they view as non-discoverable.
B. Defendants Have Established The Existence Of Legislative Privilege
1. The Burtonsville Crossing Neighborhood Plan and Zoning Text Amendment are Legislative Acts.
Maryland requires each local jurisdiction to have a comprehensive land use master plan, and to make zoning decisions consistent with their master plans, said plans having the "binding force of law." Pulte Home Corp. v. Montgomery Cty., Case No. GJH-14-3955,
In Pulte, this Court wrestled with nearly identical issues regarding water and sewer change applications, and master plan amendments. The Court determined both acts to be legislative in nature. "Planning and zoning actions are legislative when they 'decide questions of law and policy and discretion' and have broad community-wide implications, which encompass considerations affecting the entire planning area or zoning district."
Plaintiffs readily concede that the Burtonsville Crossing Neighborhood Plan ("BCNP" or the "Plan") and Zoning Text Amendment ("ZTA") 12-13 are "legislative in nature." Pls.' Mem. in Opp'n, at 20 (ECF No. 56). Defendants set the context for this litigation as being driven by community-wide concerns for the preservation of drinkable water from the Rocky Gorge Reservoir and its tributaries. The foundation for their position rests on the statements set forth in the BCNP. Defs.' Opp'n, at 3 (ECF No. 54-1). The succinct issue here is that Plaintiffs submitted change requests for sewer service which were denied. Plaintiffs dispute the legislative quality of the denial of these change requests.
The BCNP speaks to deep concerns about "declining water quality, sensitive tributary headwaters, high impervious levels, and sewer and water service." Without doubt, the BCNP represents the comprehensive land use master plan for the Burtonsville area. In furtherance of the Plan, the County Council lowered the impervious cap in the Rural Cluster ("RC") zones and declined requested extensions of sewer service beyond a circumscribed envelope. The Plan recommended "no public sewer service should be permitted for any use." Explanation is also provided for the rejection of the 10% impervious cap established by other guidelines, given the environmental sensitivity of the area, as well as the favorable results when an 8% cap *764had been employed elsewhere. See Defs.' Mot., Ex. 3, p. 45.
2. Defendants' Actions Regarding Plaintiffs' Change Requests are Legislative Acts.
In 2003, the County Council adopted a "Ten Year Comprehensive Water Supply & Sewerage Systems Plan" ("Water & Sewer Plan" or "WSP"). Defs.' Mot., Ex. 5. This too was a legislative act. The WSP has been amended over the years. This Court determined long ago that amending a water and sewer plan is also a legislative act. Kent Island Joint Venture v. Smith,
Plaintiffs sought a change request under the PIF policy. Plaintiffs' sewer change requests were not favored by the Planning Board, County Executive, Council Staff, nor the Council Committee on Transportation, Infrastructure, Energy & Environment. The County Council adopted the recommendations of these entities and denied Plaintiffs' requests. Plaintiffs claim this was not a legislative act, and therefore not protected by privilege. Defendants assert the County Council had the discretion to deny the request and did so in accordance with the master plan. One of the County's Senior Legislative Analysts commented that the PIF policy allows for changes to the master plan, but "in cases where a master plan has established specific water/sewer restrictions for certain areas ... the Executive, Planning Board, and Council Staff concur that these specific Master Plan recommendations supersede consideration via the PIF policy." Defs.' Mot., Ex. 13, pp. 7-8. Another footnote stated the obvious, that Plaintiffs could build a facility on the land so long at it complied with the zoning requirements.
As to whether the action here was legislative or administrative, the parties agree that Alexander v. Holden,
If the underlying 'facts relate to particular individuals or situations' and the decision impacts specific individuals or 'singles out specifiable individuals' the decision is administrative." On the other hand, the decision is legislative if the facts involve 'generalizations concerning a policy or state of affairs' and the 'establishment of a general policy' affecting the larger population.
According to the WSP, p. 1-23, when a change request is considered within a service envelope, it is described as an "administrative" matter to be addressed by the Maryland Department of Environmental Protection. When a change request is sought by the owners or purchasers of property outside of the service envelope, the decision to grant or deny the request is within the purview of the County Council. This latter scenario is applicable to the subject property here.
Defendants note that the PIF policy is a subpart of the WSP, which by definition is primarily concerned with the impact of water and sewer decisions upon a community at large, and the Burtonsville area in particular. The purpose of the process is to allow the Council to consider the big picture, with input from the affected community. Plaintiffs' suggestion that their change requests converted the nature of this process into a non-legislative endeavor is misplaced. In addition to this Court's decision in Kent Island, several state court *765decisions in Maryland support Defendants' view.
Defendants rely on Gregory v. Board of Cty. Comm'rs of Frederick Cty.,
Most recently, this Court in Pulte considered the implication of master plan amendments, zoning changes, and water and sewer change requests. It was determined that regardless of the methodology employed, the action at hand was legislative in nature. Clearly, this Court cannot now give countenance to the contention that Defendants' refusal to grant the change requests were tantamount to the mere "enforcement of pre-existing policy" or "enforcement rather than rule-making." Pls.' Mem. in Supp., at 8. On these facts, the denial of Plaintiffs' change request is a legislative act.
This Court does not find helpful the case of Moxley v. Town of Walkersville,
As the Council looked more to the BCNP for guidance, its decision is better classified as a legislative act. The Council followed the recommendation set forth in the planning document, namely, that there should be no exceptions to the sewer standards in light of the sensitivity of the water conditions of the Rocky Gorge Reservoir and the expressed objections of residents that may be affected. This policy decision is steeped in legislative thought and function which led to the creation of the BCNP. I agree with the conclusion reached in Pulte, that the County's actions with respect to the water and sewer change requests are legislative in nature.
C. Defendants' Assertions Of Privilege Are Not Required To Yield To Plaintiffs' Claims Under the Religious Land Use and Institutionalized Persons Act ("RLUIPA").
1. The present claims relate to a private commercial dispute, not "important federal interests."
Plaintiffs contend that this case is merely "about a religious organization seeking to build a house of worship that *766will meet its religious needs." Pls.' Mem. in Opp'n, at 21. In their effort to avoid the effect of legislative privilege, Plaintiffs seek to classify their claims as asserting an "important public interest or federal civil right." Pls.' Mem. in Supp., at 9. Plaintiffs attempt to distinguish the Pulte decision by observing that the present claims are not based upon the private concerns of a developer.
Defendants contend that certain custodians enjoy absolute immunity. Defs.' Opp'n, at 25-28. Defendants rely on EEOC v. Washington Suburban Sanitary Comm'n,
Redistricting, voting rights and criminal cases are considered "important federal interest" cases which do not allow for absolute immunity. Instructive are the conclusions reached by a three judge panel of this Court slightly more than one year ago. Writing for the Court, Circuit Judge Niemeyer pointed out that in redistricting cases the notion of absolute legislative privilege is rejected. Benisek v. Lamone,
Unlike the cases involving redistricting or criminal prosecutions of legislators, the present case involves private parties trying to bring to fruition a commercial transaction. Plaintiffs attempt to elevate their grievances into the special category defined as "important federal interests" by noting that their claims assert violations of a federal statute and the federal constitution. The Court believes that the phrase "important federal interest" means more. Otherwise anytime a litigant merely alleged a violation of the Constitution, federal law, or a federal regulation, then the legislative privilege would vanish. When the courts have spoken of redistricting, voting rights cases or criminal prosecutions of those who make the laws, they are identifying very unique categories of litigation that have far broader impact than the litigants themselves. Here, the only tangible benefit of a successful prosecution is the ability for the sale of land to occur and the building of a house of worship with sewer service. At its core, this is very much a private commercial land dispute.
A closer look at the Pulte decision reveals a very similar fact pattern. In Pulte, the plaintiffs asserted violations of the state and federal constitutions, as well as state and federal statutes. Here, Plaintiffs also assert violations of the federal constitution, as well as federal statutes. While significant, said allegations are still in essence claims of a more private nature, sounding in private grievances for government conduct.
The alleged misconduct here is not of the sort which targets religious practices and beliefs as was the case in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,
The universe of cases is very small in which a sufficiently "important federal interest" has resulted in a court finding that legislative privilege must yield. See Benisek, Bethune-Hill v. Virginia State Bd. of Elections,
2. Balancing of Factors to Determine if a Legislative Privilege Should Yield.
Defendants concede that in "important federal interest" cases courts will temper the protections of the legislative and executive privileges, moving from a declaration of absolute privilege, to an assessment on the applicability of a qualified privilege. While the Court agrees with Defendants that Plaintiffs are merely private parties suing to vindicate private rights, the Court will nonetheless look at the balancing of factors typically required in "important federal interest" cases. In doing so, the Court will employ the analysis set forth in Bethune-Hill.
Defendants urge the Court to use a balancing test from N. Carolina State Conference v. McCrory, 1:13 CV 658,
As stated in Bethune-Hill and Benisek, the Court looks to five factors, namely: 1) the relevance of the evidence; 2) the availability of other evidence; 3) the seriousness of the litigation and the issues involved; 4) the role of government; and 5) the purpose of the privilege (i.e. the extent to which the discovery would impede legislative action regarding communications between and among legislators). Bethune-Hill, at 339-42 ; Benisek at 575-77.
The first three factors aim to capture the federal interest at stake-courts are more likely to require disclosure of communications that are highly relevant, difficult to obtain elsewhere, and will assist in the enforcement of public rights-while the final two factors reflect our comity interest in minimizing intrusion into the State's legislative process.
Benisek, at 575. With this formula in mind, the Court will now consider each factor.
a. The Relevance of the Evidence
Defendants rely on case law for the contention that "ordinarily" the courts are not concerned with the motivations of legislative action. See Kenwood Gardens,
Defendants note that Plaintiffs make no effort to identify the documents or information sought, despite having received nearly 20,000 pages from public legislative records. Nonetheless, "the availability of alternate evidence does not render the evidence sought here irrelevant by any measure." Bethune-Hill, at 341, (quoting Veasey v. Perry, No. 2:13-CV-193,
b. The Availability of Other Evidence
As with the first factor, Plaintiffs set forth the need to obtain more direct evidence of the intent of those who participated in the legislative process. As it relates to the legislative privilege, courts have said " '[i]n some extraordinary instances[,] the members [of a legislative body] might be called to the stand at trial to testify concerning the purpose of the official action,' while recognizing that 'even then such testimony frequently will be barred by privilege.' " Benisek, at 574, (quoting Arlington Heights, at 268,
c. Seriousness of the Litigation and the Issues Involved
Again, Plaintiffs rely on the fact that the present litigation is not akin to the issues presented in Pulte, denying that this suit is brought by private parties seeking a private remedy. Defendants understandably consider this as a mere commercial dispute affecting private interests.
Defendants support their view by setting forth the long history of how the subject properties were classified before the involvement of Plaintiff Canaan. At present, the Court is not aware of any procedural irregularity or undue influence affecting the legislative process. Equally true, Plaintiffs have no burden to demonstrate such in order to obtain the requested discovery. However, the unrebutted proffers of the history regarding the subject properties show a long-standing concern regarding sewer service going as far back as the Fairland Master Plan of 1997. Long before the involvement of Plaintiff Canaan or even the New Hope Church, the County repeatedly refused to extend sewer service for the area. The 2012 BCNP only strengthened the County's resolve to maintain the status quo.
Plaintiff Canaan came to have an interest in the subject property with full knowledge of these restrictions, but *769claims a discriminatory animus when the change requests were denied. As stated in Andon, LLC v. City of Newport News, Va.,
d. The Role of Government
Plaintiffs note that the critical determinations in this lawsuit were made by Defendant Montgomery County Council. They also elected not to sue the councilmembers in their individual capacities, acknowledging that in doing so it would increase the need for legislative privilege, citing Benisek,
Defendants principally rely on Schlitz v. Commonwealth of Va.,
e. The Purpose of the Privilege
One express purpose of the legislative privilege is to allow lawmakers and staff to focus on public duties by removing the costs and distractions of attending lawsuits. Washington Suburban,
In summation, in balancing the quantity and quality of factors, the Court is of the view that the more qualitative advantage is in favor of Defendants. Accordingly, Defendants assertion of legislative privilege is appropriate.
D. Defendants Have No Obligation To Provide Information That Is Privileged, And No Duty To Provide Information That Is Not Relevant To The Motives Of Those Engaged In The Legislative Process.
The core issue in this case is the motivation of those acting upon Plaintiffs' change requests. Information beyond this issue is far less important, if relevant at all. It is undisputed that Defendants have produced discovery from seventeen custodians who have been identified in this litigation. Defs.' Opp'n, at 28. The only issue in the present discovery dispute, is Defendants' assertion of privilege at it relates to the County Executive, members of the County Council, and their respective staff. "The legislative privilege is strongest as applied to communications among legislators and between legislators and their immediate aides." Bethune-Hill, at 343, (citing Gravel,
Defendants rely on the Court's statement in Pulte that, "to the extent that documents exist that are not related to legislative activities, it is not clear how such documents would be relevant to the claims or defenses in this case." Pulte, at *5. In Pulte , as well as the present case, the dominating issue is whether those involved in the legislative process were motivated by religious animus. Information in discovery that does not address this issue *770is largely irrelevant. Defendants enjoy an absolute privilege as the allegations here do not involve "important federal interests." The federal court for the Eleventh Circuit provided a more extensive discussion.
Because the only remaining claim in AEA's lawsuit struck at the heart of the legislative privilege, and none of the information sought could have been outside the privilege, there was no need for the lawmakers to peruse the subpoenaed documents, to specifically designate and describe which documents were covered by the legislative privilege, or to explain why the privilege applied to those documents.... It was enough to point out, as the lawmakers did, that the only purpose of the subpoenas was to further AEA's inquiry into the lawmakers' motivations for Act 761 and that their legislative privileges exempted them from such inquiries.
In re Hubbard,
The present situation is no different. Nothing in the present record supports the notion that Defendants engaged in any activity that was not legislative. Likewise, there is no indicia of religious targeting as was seen in case of Church of the Lukumi Babalu Aye, Inc. Moreover, in the public hearings regarding the change requests, the record does not reflect religious outrage by legislators or those offering testimony from the community. Quite the contrary, several entities expressly noted their lack of concern or objection to the presence of a house of worship or religious institution on the properties. The only concern was the impact on an area designated for no further sewer service. Defs.' Reply, Ex. A.
E. The County Executive Possesses Legislative and Executive Privileges.
1. The County Executive has a legislative privilege on these facts.
To the extent that the County Executive and staff are cloaked with legislative immunity, his motivations are also of no import. The courts do not render meaningless legislative enactments that are otherwise facially constitutional based merely upon alleged improper motives. See United States v. O'Brien,
Within 5 days following the introduction of any text amendment, a copy must be transmitted to the county planning board for review as set forth below. A copy of the text amendment must also be transmitted to the county executive within 5 days following introduction. The county executive may furnish comments and information as the county executive deems pertinent to the proposed text amendment.
Montgomery County Code, 2004 Zoning Ordinance, § 59-H-9.2.
The Court has no reservation in concluding that the County Executive was functioning within the legislative process for the issues currently before the Court. Defendants have satisfied all the factors, namely: 1) the actor must be a government *771official or someone working on his behalf; 2) the act itself must fall within the sphere of legitimate legislative activity; and 3) the act's proximity to the legislative arena. Marylanders for Fair Representation, at 299. Here, the County Executive is a government official, the activity was squarely part of the legitimate legislative activity. The work of developing the master plan, and amending it by any process was central to the legislative arena. The same result was previously reached by this Court in Pulte.
2. The County Executive has executive privilege generally.
The executive privilege enjoys a legal alias called the deliberative process privilege. The courts have identified three purposes of the privilege, specifically to: 1) allow for the free discussion of alternatives within an agency; 2) eliminate public confusion resulting from a premature release of internal agency discussions that are not in final form; and 3) protect against the chilling affect that could occur if officials were judged on matters before reaching a final opinion or decision. City of Va. Beach v. Dep't of Commerce,
It is beyond credible argument to suggest that the materials sought in discovery here are not "predecisional and deliberative" and therefore covered by the privilege. "Predecisional documents are 'prepared in order to assist an agency decisionmaker in arriving at his decision.' " City of Va. Beach, at 1253 (citing Renegotiation Bd. v. Grumman Aircraft Eng'g Corp.,
Defendants have been sufficiently specific in asserting this privilege. State and federal case law states that the executive privilege is a "presumptive privilege, with the burden upon those seeking to compel disclosure." Hamilton v Verdow,
A more stringent review of the applicability of the executive privilege might ordinarily be required. Typically, Defendants *772very well might need to submit a privilege log identifying each document sought to be withheld, along with sufficient information for the Court to determine if the designation of privilege is correct. However here, the same materials held by the County Executive enjoy the benefit of being protected under the legislative privilege. To require the preparation of a privilege log serves no good purpose, and runs afoul of the federal discovery rules regarding the "just, speedy and inexpensive determination of every action and proceeding." Fed. R. Civ. P. 1.
In summary, the County Executive can properly assert both legislative and executive privileges for the materials at hand. In either instance, the Court finds the claim of privilege applicable.
II. CONCLUSION
Based on the foregoing, the Court finds Defendants' assertions of legislative and/or executive privilege to be applicable to the facts of this case. Accordingly, Plaintiff's Motion is DENIED, and Defendants' Motion is GRANTED.
Plaintiffs also contend that ZTA 12-13 was "targeted at the pending New Hope Church Sewer Request," and "adopted to target religious land uses." Compl. ¶¶ 171, 180, (ECF No. 1).
Defendants agree that here, not all information enjoys absolute privilege, and have accordingly produced discovery materials from seventeen custodians. Defs.' Opp'n, at 28.
Reference
- Full Case Name
- Canaan Christian CHURCH v. MONTGOMERY COUNTY, MARYLAND
- Cited By
- 3 cases
- Status
- Published