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ACORN v. County of Nassau

September 25, 2007


The opinion of the court was delivered by: Wall, Magistrate Judge


By letter dated January 3, 2007, plaintiffs moved to compel certain deposition testimony and documents from defendants the Incorporated Village of Garden City and the Garden City Board of Trustees (collectively, "Garden City"), their employees, and consultants. See Docket Entry ("DE") [58]. The Garden City defendants submitted opposition, DE [60], and a conference before the undersigned was held at which the court requested additional briefs from the parties. DE [64]. Those submissions have been received and reviewed by the court.

This case involves the rezoning of the former "Social Services site" located at 101 County Seat Drive in Garden City. Plaintiffs seek discovery regarding Garden City's "true reasons for blocking the proposed zoning that would have permitted construction of more affordable multi-family housing, and whether justifications enunciated were simply a pretext for discriminatory animus." See Letter Motion, DE [58] at 2. Defendant Garden City seeks to assert "legislative privilege" on behalf of members of the Board of Trustees, as well as Michael Filippon, the Garden City Building Superintendent, Robert Schoelle, the Garden City Village Administrator, and personnel from the firm of Buckhurst, Fish and Jacquemart, Inc. ("BFJ"), retained by Garden City as a land use/zoning specialist. See Letter in Opp., DE [60] at 2.

The issue of the extent to which legislative privilege is available in this case first arose during the deposition of Frank Fish of BFJ. During that proceeding, Garden City asserted the legislative privilege on several occasions, at which point Mr. Fish's attorney directed him not to answer. Mr. Fish's attorney at one point stated that the legislative privilege "is not our privilege to assert, and we are respecting Garden City's right to raise the privilege and holding off on answering any questions until so directed." Fish Dep. at 45:9-13. In their motion to compel, plaintiffs indicate that Mr. Fish was instructed not to answer questions about the following issues:

1. BFJ's development of zoning proposals for the site;

2. Garden City's objections to BFJ's proposed zoning, and the basis for these objections by both Garden City and its residents;

3. involvement by local community organizations in the rezoning of the site;

4. Garden City's rezoning of the property previously owned by Doubleday & Co.; and

5. Garden City's hiring of a public relations consultant regarding the Social Services site rezoning.

Garden City's position is that testimony regarding any non-public communications between or among Board members and BFJ personnel, Mr. Fillippon, and/or Mr. Schoelle are protected from disclosure by legislative privilege. Garden City has indicated that it will, consistent with this position, instruct all witnesses not to answer such questions until it has received direction from the court. Plaintiffs have moved to compel the testimony of Mr. Fish as well as testimony from future deponents on the grounds that the legislative privilege does not apply, or if it does apply, that it has been waived. For the following reasons, plaintiffs' motion is granted in part and denied in part.


Since this case arises under the Fair Housing Act and thus involves federal questions, any asserted privilege "shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience." Fed. R. Evid. 501. Generally, testimonial privileges are not favored because they "contravene the fundamental principle that 'the public . . . has the right to every man's evidence.'" Trammel v. United States, 445 U.S. 40, 50 (1980)(quoting United States v. Bryan, 339 U.S. 323, 331 (1950)). Garden City asserts legislative privilege as to any testimony or document production that would reveal the deliberative process underlying the decision made by the Board regarding the re-zoning of the Social Services site.

The concept of legislative privilege arises from, and is often discussed interchangeably with, the concept of legislative immunity. Legislative immunity, which provides absolute immunity from suit, has been extended to protect local legislators from suit for acts taken in their legislative capacity. Searingtown Corp. v. Incorporated Village of North Hills, 575 F. Supp. 1295, 1298 (E.D.N.Y. 1981).*fn1 As to legislative privilege, "the purpose in preventing inquiry into motivation of legislative acts is to shield legislators from civil proceedings which disrupt and question their performance of legislative duties to enable them to devote their best efforts and full attention to the 'public good.'" Id. at 1298-99 (citations omitted).The Supreme Court has, however, "rejected the notion that the common law immunity of state legislators gives rise to a general evidentiary privilege." Manzi v. DiCarlo, 982 F. Supp. 125, 129 (E.D.N.Y. 1997)(citing United States v. Gillock, 445 U.S. 360, 374 (1980)). The legislative privilege is qualified, not absolute, "'and must therefore depend on a balancing of the legitimate interests on both sides.'" Rodriguez v. Pataki, ...

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