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Fish v. Kobach

United States District Court, D. Kansas

April 17, 2017

STEVEN WAYNE FISH, et al., Plaintiffs,
v.
KRIS KOBACH, in his official capacity as Secretary of State for the State of Kansas, Defendant.

          ORDER

          JAMES P. O’HARA U.S. MAGISTRATE JUDGE.

         This voting-rights case, which challenges the Kansas documentary proof of citizenship (“DPOC”) law,[1] is before the court on plaintiffs’ motion to compel defendant Kansas Secretary of State Kris Kobach to produce two documents responsive to their Sixth Request for Production of Documents (ECF No. 272). Defendant objected to producing the documents on three bases: (1) the Sixth Request is beyond the scope of the limited additional discovery permitted by the court on plaintiffs’ preemption claim; (2) the information in the documents, even if responsive to the request, is not relevant to plaintiffs’ preemption claim; and (3) the documents are protected from production by certain privileges. On April 5, 2017, the undersigned U.S. Magistrate Judge, James P. O’Hara, issued an order overruling defendant’s scope objection and ordering defendant to submit the two documents for in camera review.[2] The undersigned has reviewed the documents and is now prepared to rule on defendant’s relevance objection and privilege assertions. Because parts of the two documents are unquestionably relevant, and because defendant has not demonstrated a privilege protects them from disclosure, plaintiffs’ motion to compel is granted.

         I. Background

         Plaintiffs allege the National Voter Registration Act (“NVRA”) preempts Kansas’s DPOC requirement as applied to the federally mandated voter-registration form that’s a required part of any driver’s license application or renewal.[3] Section 5 of the NVRA provides the voter-registration form “may require only the minimum amount of information necessary to . . . enable State election officials to assess the eligibility of the applicant and to administer voter registration and other parts of the election process.”[4] Section 5 further mandates the form include an attestation, signed under penalty of perjury, that the applicant meets “each eligibility requirement (including citizenship).”[5]

         In May 2016, the presiding U.S. District Judge, Julie A. Robinson, entered a preliminary injunction temporarily barring defendant’s enforcement of Kansas’s DPOC requirement.[6] Judge Robinson found plaintiffs had made a strong showing that the Kansas DPOC law, as enforced, did not meet § 5’s provision that a voter-registration form require only the “minimum amount of information necessary” to enable state officials to assess an applicant’s citizenship (as criteria for voting eligibility).[7] Defendant filed an interlocutory appeal of Judge Robinson’s opinion to the Tenth Circuit Court of Appeals.

         On October 19, 2016, the Tenth Circuit affirmed Judge Robinson’s preliminary injunction ruling and clarified the standards that apply to § 5 claims.[8] The Tenth Circuit ruled that § 5’s attestation requirement

is the presumptive minimum amount of information necessary for state election officials to carry out their eligibility-assessment and registration duties. As it pertains to the citizenship requirement, the presumption ordinarily can be rebutted (i.e., overcome) only by a factual showing that substantial numbers of noncitizens have successfully registered to vote under the NVRA’s attestation requirement.[9]

         Thus, the Circuit recognized a presumption under the NVRA that the attestation requirement satisfies the minimum-information principle, but permitted states to rebut the presumption by showing that “a substantial number of noncitizens have successfully registered”[10] notwithstanding the requirement, such “that attestation falls below the minimum necessary to carry out [the state’s] eligibility-assessment and registration duties.”[11] The question then arose as to what happens if a state like Kansas is able to rebut the presumption: Is a DPOC regime definitively deemed adequate to satisfy the minimum-information principle? In a footnote (“Footnote 14”), the Tenth Circuit stated that the question remains open, but suggested that the state likely would have to satisfy a second step by showing “that nothing less than DPOC is sufficient to meet [the eligibility-assessment and registration] duties.”[12]

         Based on the Tenth Circuit’s opinion, defendant asked the court to reopen discovery[13]“for the limited purpose of allowing the State to attempt to rebut [the] newly created presumption.”[14] Judge Robinson granted that request, reasoning, “it is now clear that Secretary Kobach must rebut a presumption that attestation of citizenship is the minimum amount of information necessary for Kansas to carry out its assessment of eligibility and its registration duties, and that he must do so by showing that ‘a substantial number of noncitizens have successfully registered to vote under the attestation requirement.’”[15] Judge Robinson further stated that if defendant could meet this first step, then “an inquiry ‘into whether DPOC is the minimum amount of information necessary for Kansas to carry out its eligibility-assessment and registration duties would . . . be appropriate.’”[16]

         As discussed in the undersigned’s April 5, 2017 order, the court then reopened discovery on both prongs of the § 5 analysis discussed in Footnote 14 of the Circuit’s opinion:

(1) whether a substantial number of noncitizens have successfully registered to vote in Kansas under the NVRA’s attestation-of-citizenship requirement (showing that attestation falls below the minimum necessary for Kansas to carry out its eligibility-assessment and registration duties); and
(2) whether DPOC is the minimum amount of information necessary for Kansas to carry out its eligibility-assessment and registration duties.[17]

         As part of this limited, reopened discovery, plaintiffs served the Sixth Request, which seeks “all documents and communications regarding potential amendments or changes to the National Voter Registration Act affecting how officials may assess the eligibility of a voter registration applicant.”[18] The parties identified two documents arguably responsive to this request: (1) a draft of a possible future amendment to the NVRA that was created by Secretary Kobach and shared by him with Garrett Roe, an attorney in the Office of the Kansas Secretary of State and co-counsel in this case, and Bryan Caskey, head of the elections division in the Office of the Kansas Secretary of State (“the draft amendment”); and (2) a document created by Secretary Kobach to share with then President-elect Trump referencing a possible amendment to the NVRA, which was photographed by the Associated Press in late November 2016 as Secretary Kobach was walking into a meeting with Mr. Trump (“the photographed document”).

         As noted above, defendant objected to producing the documents on scope and relevance grounds, and further asserted the documents are privileged. Specifically, defendant argues the draft amendment is protected by the attorney-client and deliberative-process privileges, and the photographed document is protected by the executive privilege. The court overruled defendant’s scope objection in the April 5, 2017 order. The court now considers defendant’s relevance objection and privilege claims.

         II. Relevance Objection

         The court set forth the relevance standards it would apply to the instant discovery dispute, considering the limited scope of reopened discovery, in its earlier order. The court explained that Fed. R. Civ. P. 26(b)(1) sets broad parameters for discovery and ruled the court would deem relevant any information that “‘bears on, or . . . reasonably could lead to other matter that could bear on,’” either of the two prongs of the § 5 analysis determinative of plaintiffs’ preemption claim.[19] The court specifically noted that if a document suggests defendant may have sought to change the eligibility-assessment standards or procedures mandated by the NVRA or, relatedly, suggested a means other than attestation (such as DPOC) to assess voter eligibility, the document would be deemed relevant. Such information would bear on-or could lead to other information that could bear on-whether defendant can meet his burden under the NVRA’s current standards of demonstrating that a substantial number of noncitizens registered to vote in Kansas or whether, instead, defendant cannot meet that standard so is attempting to change it.[20] Similarly, such information would bear on-or could lead to other information that could bear on-whether defendant can meet his burden under the Tenth Circuit’s contemplated second-step of demonstrating DPOC is the least-restrictive method for evaluating voter eligibility, or whether, again, defendant cannot meet that standard so is attempting to change it.[21]

         The court has conducted an in camera review of the two responsive documents. Despite defendant’s representations to the contrary,[22] the court concludes both documents contain exactly the type of information contemplated by the court as relevant. To be clear, neither of these documents conclusively proves defendant sought to amend the NVRA to alleviate defendant’s burdens under § 5 as interpreted by the Tenth Circuit in October 2016. But, at a minimum, both “bear on” (and reasonably could lead to other information bearing on) that question and, therefore, on whether defendant can meet the current standards that will be determinative of plaintiffs’ preemption claim in this case. Defendant’s relevance objection to the Sixth Request therefore is overruled.[23]

         III. Attorney-Client Privilege Assertion Over the Draft Amendment

         Of course, even if relevant, a document need not be produced in discovery if it’s protected by a privilege.[24] Defendant asserts the attorney-client privilege applies to the draft document showing possible proposed amendments to the NVRA. The document was created by Secretary Kobach and shared by him only with two members of the Secretary of State’s Office-Mr. Roe, an attorney in the office and co-counsel in this case, and Mr. Caskey, the head of the office’s elections division.

         Because this litigation arises out of a federal statutory scheme, federal law governs the application of the attorney-client privilege.[25] Under federal common law, the essential elements of the attorney-client privilege are: (1) where legal advice of any kind is sought (2) from a professional legal advisor in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal advisor, (8) except if the protection is waived.[26] Although this description suggests that the privilege only operates to protect a client’s communications to a lawyer, the Tenth Circuit recognizes that a lawyer’s communication to a client is also protected if it is “related to the rendition of legal services and advice.”[27] “A party claiming the attorney-client privilege must prove its applicability, which is narrowly construed.”[28]

         The court has reviewed the draft amendment in camera. On its face, the document doesn’t evidence a request for, or the giving of, legal advice. Nor does defendant’s privilege log indicate the document contains or requests legal advice.[29] Turning then to defendant’s response brief, he doesn’t directly address whether the document contains or seeks legal advice, but only makes the general statement: “When seeking input on hypothetical, future draft alterations to the NVRA, which necessarily include input on the legal effect of those changes, the appropriate individuals would be . . . Garrett Roe, attorney of the Office of the Kansas Secretary of State, and Bryan Caskey, the head of the Elections Division of the Office of the Kansas Secretary of State.”[30]

         This statement is insufficient to satisfy defendant’s burden of demonstrating the document was disclosed for the purpose of imparting, or receiving, legal advice. Giving the statement its broadest interpretation, defendant could be asserting that Secretary Kobach (as a client) was seeking legal advice on the legal effect of his draft hypothetical amendments to the NVRA from Mr. Roe (his attorney) and Mr. Caskey (who is not an attorney). But the court isn’t required to guess at defendant’s privilege assertions. And even were defendant’s vague statement read this broadly, defendant doesn’t explain why he was seeking legal advice from Mr. Caskey, a non-lawyer. Defendant cites caselaw holding that the attorney-client privilege isn’t waived by the presence of a non-attorney agent of either the client or attorney, but defendant makes no argument that Mr. Caskey is an agent of either client or attorney in this instance. Unlike in High Point SARL v. Sprint Nextel Corp., a case cited by defendant, he hasn’t asserted the confidential document was shared with a non-attorney for the purpose of facilitating an attorney’s legal analysis.[31] In the end, given the content and limited context provided for the draft amendment, the court is left with insufficient information to determine that it is protected by the attorney-client privilege. Defendant hasn’t satisfied his burden of proving the attorney-client privilege applies, and thus his objection on that basis is overruled.

         IV. Deliberative-Process Privilege Assertion Over the Draft Amendment

         Next, defendant argues the draft amendment is protected by the deliberative-process privilege. The deliberative-process privilege shields from production “documents reflecting advisory opinions, recommendations and deliberations compromising part of a process by which governmental decisions and policies are formulated” by federal government agencies.[32] Defendant notes the deliberative-process privilege has been codified at 5 U.S.C. § 552(b)(5), as an exemption to the Freedom of Information Act. The privilege “rests on the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news, and its object is to enhance the quality of agency decisions by protecting open and frank discussion among those who make them within the Government.”[33] “It further serves to prevent the premature disclosure of proposed policies, and avoids ‘misleading the public by dissemination of documents suggesting reasons and rationales for a course of action which were not in fact the ultimate reasons for the agency’s action.’”[34]

         Defendant asserts that, as the state official charged by the NVRA with administering that federal statute in Kansas, the “Secretary of State and his deputies have an interest in suggesting future amendments to the NVRA.”[35] Thus, defendant argues, their internal discussions about amending the NVRA are protected by the deliberative-process privilege.

         The court respectfully disagrees. The obvious problem with defendant’s argument is that the deliberative-process privilege he asserts protects the pre-decisional deliberations of federal government agencies.[36] Defendant hasn’t cited a case in which the privilege was accorded to state agencies or officials. To the contrary, caselaw indicates that the privilege is “limited to authorities ‘of the Government of the United States.’”[37] Thus, only the “head of the relevant federal agency . . . [or] [t]he government official to whom authority is delegated may assert the privilege.”[38] Defendant hasn’t suggested that the Office of the Kansas Secretary of State is a federal agency, or a delegate of a federal agency, tasked with proposing congressional amendments to the NVRA. The court acknowledges defendant may have a legitimate interest in the language of the NVRA because he is tasked with administering it in Kansas. But he hasn’t demonstrated such an interest entitles him to assert this privilege applicable to federal agencies. Thus, defendant hasn’t satisfied his burden of demonstrating the deliberative-process privilege applies.[39] His objection on that basis therefore is overruled.

         V. Executive-Privilege Assertion Over the Photographed Document

         Secretary Kobach asserts the photographed document that he presented to then President-elect Trump is protected by the executive (or “presidential”) privilege. In United States v. Nixon,[40] the Supreme Court recognized “the presumptive confidentiality of Presidential communications”[41] as a qualified privilege. This “privilege of confidentiality of Presidential communications derives from the supremacy of the Executive Branch within its assigned area of constitutional responsibilities.”[42] The Supreme Court stated the privilege is necessary because a “President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately.”[43]

         Defendant states that, though not acting in his capacity as Kansas Secretary of State, he presented the photographed document to President-elect Trump as a member of the “transition team” that “aids the President-elect in preparing policies and assuming his official duties as President as efficiently as possible.”[44] Defendant asserts communications between a President-elect and his transition team are entitled to protection because “[a]llowing this document to be discoverable would jeopardize the right of the President-elect to have confidential and frank communications within his transition team.”[45]

         Defendant’s argument for withholding the photographed document under the executive privilege is unpersuasive. First, Secretary Kobach’s communication was made to a president-elect, not to a sitting president. Although a president-elect by statute and policy may be accorded security briefings and other transitional prerogatives, he or she has no constitutional power to make any decisions on behalf of the Executive Branch. No court has recognized the applicability of the executive privilege to communications made before a president takes office. If that were the law, it would mean that ...


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