LEE v. CITY OF LOS ANGELES 1175 - Berkeley Law · LEE v. CITY OF LOS ANGELES 1177 Cite as 908 F.3d 1175 (9th Cir. 2018) though district’s final boundaries increased African American

1175LEE v. CITY OF LOS ANGELESCite as 908 F.3d 1175 (9th Cir. 2018)

matter jurisdiction and REMAND to thedistrict court to review the denial.

,

Peter LEE, individual; Miri Park, indi-vidual; Ho Sam Park, individual; Ge-ney Kim, individual; Yonah Hong, in-dividual, Plaintiffs-Appellants,

v.

CITY OF LOS ANGELES,Defendant-Appellee.

Stanley Haveriland, individual; Theo-dore Thomas, individual; HoracePennman, individual; Julia Simmons,individual; Heather Presha, individu-al; Sally Stein, individual, Plaintiffs-Appellants,

v.

City of Los Angeles, Defendant-Appellee.

No. 15-55478, No. 15-55502

United States Court of Appeals,Ninth Circuit.

Argued and Submitted January 9,2017 Pasadena, California

Filed November 19, 2018

Background: Registered voters broughtactions against city, alleging that city’sredistricting plan for city council districtsviolated United States and California Con-stitutions and city charter. After actionswere consolidated, the United States Dis-trict Court for the Central District of Cali-fornia, No. 2:12-cv-06618-ICBMM-JCG,Consuelo B. Marshall, Senior DistrictJudge, 88 F.Supp.3d 1140, granted sum-mary judgment in favor of city. Votersappealed.

Holdings: The Court of Appeals, Nguyen,Circuit Judge, held that:

(1) city was not motivated predominantlyby race in redrawing boundaries of citycouncil district, and thus, city’s redis-tricting plan did not violate the EqualProtection Clause, and

(2) legislative privilege protected city offi-cials from being deposed and ques-tioned regarding legislative acts, moti-vations, or deliberations pertaining tocity’s redistricting plan.

Affirmed.

1. Constitutional Law O3285

A city council generally may not actwith race as a predominant motivatingfactor when redrawing the boundaries ofits council districts; doing so would bepresumptively unlawful under the EqualProtection Clause of the FourteenthAmendment, unless the city can meet thedemanding burden of showing that suchaction was narrowly tailored to serve acompelling interest. U.S. Const. Amend.14, § 1.

2. Federal Courts O3604(4)

The Court of Appeals reviews de novoa district court’s order granting summaryjudgment.

3. Federal Civil Procedure O2470,2470.4

Summary judgment is appropriateonly where there is no genuine issue ofmaterial fact and the moving party is enti-tled to judgment as a matter of law.

4. Federal Courts O3565, 3591

The Court of Appeals generally re-views protective orders in the discoverycontext entered under a district court’sinherent authority for abuse of discretion;however, a district court by definitionabuses its discretion when it makes anerror of law.

1176 908 FEDERAL REPORTER, 3d SERIES

5. Federal Courts O3591The application of a legal privilege in

the discovery context is essentially a legalmatter that is reviewed de novo.

6. Constitutional Law O3251, 3285The central purpose of the Equal Pro-

tection Clause is to prevent the Statesfrom purposefully discriminating betweenindividuals on the basis of race; this in-cludes separating citizens into differentvoting districts on the basis of race withoutsufficient justification. U.S. Const.Amend. 14, § 1.

7. Constitutional Law O3285Claims that voting districts have been

drawn on race-based lines in violation ofthe Equal Protection Clause are evaluatedunder a two-step analysis: (1) the plaintiffsmust first prove that race was the predom-inant factor motivating the legislature’s de-cision to place a significant number of vot-ers within or without a particular district;and (2) if the plaintiffs do so, the burdenshifts to the defendant to prove that itsrace-based sorting of voters serves a com-pelling interest and is narrowly tailored tothat end. U.S. Const. Amend. 14, § 1.

8. Constitutional Law O3285On a claim that voting districts have

been drawn on race-based lines in violationof the Equal Protection Clause, provingthat race was the predominant factor indrawing district boundaries entails demon-strating that the legislature subordinatedother factors to racial considerations.U.S. Const. Amend. 14, § 1.

9. Constitutional Law O3285In determining whether race was a

predominant factor in drawing voting dis-tricts on an Equal Protection Clause claim,what matters is the actual considerationsthat provided the essential basis for thelines drawn, not post hoc justifications thelegislative body in theory could have usedbut in reality did not. U.S. Const. Amend.14, § 1.

10. Election Law O633(3)On a claim that voting districts have

been drawn on race-based lines in violationof the Equal Protection Clause, plaintiffsmay show that race was a predominantfactor in drawing district boundaries withdirect or circumstantial evidence. U.S.Const. Amend. 14, § 1.

11. Constitutional Law O3285In proving that race was the predomi-

nant factor in drawing voting districtboundaries on an Equal Protection Clauseclaim, it is unnecessary to show an actualconflict between the enacted plan and tra-ditional redistricting principles. U.S.Const. Amend. 14, § 1.

12. Constitutional Law O3285Race may predominate in drawing

voting district boundaries, as required toprevail on an Equal Protection Clauseclaim, even when a reapportionment planrespects traditional principles, for exam-ple, when a legislative body uses race asthe predominant criterion to advance thoseprinciples. U.S. Const. Amend. 14, § 1.

13. Constitutional Law O3285Given that traditional redistricting

principles are numerous and malleable, alegislative body could construct a plethoraof potential maps that look consistent withtraditional, race-neutral principles; but ifrace for its own sake is the overridingreason for choosing one map over others,race still may predominate in drawing vot-ing district boundaries, as required to pre-vail on an Equal Protection Clause claim.U.S. Const. Amend. 14, § 1.

14. Constitutional Law O3285 Municipal Corporations O80

City was not motivated predominantlyby race in redrawing boundaries of citycouncil district, and thus, city’s redistrict-ing plan for city council districts did notviolate the Equal Protection Clause; al-


though district’s final boundaries increasedAfrican American citizen voting age popu-lation and redistricting commissioner didnot offer any justification other than racefor his proposed boundaries, commission-er’s proposal underwent additional reviewand changes, successive amendments toproposal were driven by commission’s goalof rebalancing populations in each districtwhile unifying neighborhood councils, andcity council diluted African American vot-ing power by placing area that was pre-dominantly Latino and Asian in populationin district. U.S. Const. Amend. 14, § 1.

15. Public Employment O221, 931In order to enable and encourage a

representative of the public to dischargehis public trust with firmness and success,it is indispensably necessary, that heshould enjoy the fullest liberty of speech,and that he should be protected from theresentment of every one, however power-ful, to whom the exercise of that libertymay occasion offense.

16. States O28(2)While the legislative privilege, as ap-

plied to federal officials, is embedded di-rectly in the Constitution, its extension tostate and local officials is a matter of fed-eral common law.

17. Municipal Corporations O170 States O28(2)

State and local legislators may invokelegislative privilege.

18. States O28(2)The legislative privilege extends to

legislative aides and assistants.

19. Municipal Corporations O170Legislative privilege protected city of-

ficials from being deposed and questionedregarding legislative acts, motivations, or

deliberations pertaining to city’s redistrict-ing plan for city council districts in actionchallenging the plan on Equal Protectiongrounds, even though city was accused ofviolating important constitutional right.U.S. Const. Amend. 14, § 1.

Appeal from the United States DistrictCourt for the Central District of Califor-nia, Consuelo B. Marshall, Senior DistrictJudge, Presiding, D.C. No. 2:12-cv-06618-CBM-JCG

Rex S. Heinke (argued), John A. Karac-zynski, Hyongsoon Kim, and Patrick E.Murray, Akin Gump Strauss Hauer &Feld LLP, Los Angeles, California; EkwanE. Rhow, Bird Marella Boxer WolpertNessim Drooks Lincenberg & Rhow P.C.;for Plaintiffs-Appellants Peter Lee, MiriPark, Ho Sam Park, Geney Kim, and Yo-nah Hong.

Leo James Terrell, Law Offices of LeoJames Terrell, Los Angeles, California, forPlaintiffs-Appellants Stanley Haveriland,Theodore Thomas, Horace Pennman, JuliaSimmons, Heather Presha, and Sally Stein.

Robin B. Johansen (argued) and ThomasA. Willis, Remcho Johansen & PurcellLLP, Oakland, California; Harit U.Trivedi, Deputy City Attorney; Valerie L.Flores, Managing Assistant City Attorney;Michael N. Feuer, City Attorney; Office ofthe City Attorney, Los Angeles, California;for Defendant-Appellee.

Before: Jacqueline H. Nguyen * andPaul J. Watford, Circuit Judges, and MarkW. Bennett,** District Judge.

* Judge Nguyen was drawn to replace JudgeReinhardt on the panel following his death.Judge Nguyen has read the briefs, reviewedthe record, and listened to the oral argument.

** The Honorable Mark W. Bennett, UnitedStates District Judge for the Northern Districtof Iowa, sitting by designation.


OPINION

NGUYEN, Circuit Judge:

At least once every ten years, the Cityof Los Angeles (the ‘‘City’’) must redrawthe boundaries of its Council Districts inaccordance with the requirements of itsCity Charter. Unsurprisingly, this decenni-al exercise can ignite intense debate andpolitical maneuvering. These debates oftencenter around ‘‘communities of interest,’’which are frequently but not exclusivelydefined along racial or ethnic lines, andwhich the City must take into account inits redistricting. In Los Angeles, certaincommunities have been divided across twoor more Council Districts for decades evenwhen they have been historically concen-trated in certain areas of the City. Here,for example, Koreatown in Los Angeles isthe largest Korean community in the Unit-ed States, but, because it has been splitinto multiple City Council districts, thecommunity has encountered ‘‘difficulty get-ting elected officials to address [its]needs.’’

[1] Even as the redistricting processendeavors to respect the integrity of thesecommunities of interest, the City has rec-ognized that it is ‘‘inevitable TTT that someinterests will be advanced more than oth-ers by the choice of a particular districtconfiguration.’’ The City Council (and theCommission charged with advising it) mustmake these tough calls, recognizing thatnot all communities will be satisfied withthe outcome. While the City Council mayconsider the passionate advocacy of theselocal communities, they must ultimatelyadhere to the strictures of the UnitedStates and California Constitutions and theCity Charter. Thus, the City Council gen-erally may not act with race as a predomi-nant motivating factor. Cooper v. Harris,––– U.S. ––––, 137 S.Ct. 1455, 1463, 197L.Ed.2d 837 (2017). Doing so would bepresumptively unlawful under the EqualProtection Clause of the Fourteenth

Amendment, unless the City can meet thedemanding burden of showing that suchaction was narrowly tailored to serve acompelling interest. Id. at 1464.

In this appeal, we must decide whetherPlaintiffs have presented sufficient evi-dence to survive summary judgment onthe claim that the City was motivated pre-dominantly by racial considerations indrawing its current Council Districts. Thatis, we consider whether the City primarilysought to maximize the voting power ofcertain racial groups over others whendrawing Council Districts and subordinat-ed all other considerations to that priority.On this record, we conclude that Plaintiffshave failed to raise a genuine issue ofmaterial fact on whether racial consider-ations predominated the City’s redistrict-ing process. We further agree with thedistrict court that legislative privilege pro-tects local officials from being deposed. Wetherefore affirm the district court’s protec-tive order and its order granting summaryjudgment in favor of the City.

I. Background

A. Factual Background

The Los Angeles City Council Redis-tricting Commission was created after LosAngeles voters adopted the current LosAngeles City Charter in 1999. The purposeof the Commission is to advise the LosAngeles City Council on the drawing ofnew Council District (alternatively, ‘‘CD’’)boundaries. These boundaries are drawnevery ten years after each federal censuswith the goal of ensuring that each CouncilDistrict contain ‘‘as nearly as practicable,equal portions of the total population ofthe City’’ as shown in the most recentcensus data. To the extent feasible, theboundaries are to be drawn to ‘‘keepneighborhoods and communities intact, uti-lize natural boundaries or street lines, andbe geographically compact.’’ In accordance


with the City Charter, a Commission wasappointed to propose new boundaries afterthe 2010 census. Since the previous redis-tricting in 2002, changes in population hadcaused imbalances across Council Districtsthat required rebalancing.

1. The Commission’s Initial Steps

The Commission began the redistrictingprocess by holding several preliminarymeetings between September 27, 2011 andDecember 5, 2011. At these initial meet-ings, the Commission was presented withthe existing Council District boundariesalong with population and demographicdata from the 2010 Census. The Commis-sion then held a series of public hearingsthroughout the City between December 5,2011, and January 10, 2012. One of theissues raised at these hearings was wheth-er the Wilshire Center-Koreatown Neigh-borhood Council (‘‘Koreatown’’) shouldcontinue to be split across multiple CouncilDistricts or united into a single CouncilDistrict. At the time, Koreatown fell withinat least three Council Districts: CDs 4, 10,and 13. The majority of public participantsat the hearings spoke in favor of joiningKoreatown into a single Council District.

On January 11, 2012, the Commissionheld a meeting at which the Chair of theCommission proposed dividing the Com-mission into three ad hoc committees cor-responding to three regions: (1) the SanFernando Valley; (2) West and SouthwestLos Angeles; and (3) East and SoutheastLos Angeles. Each committee would meeton its own and be responsible for drawingan initial map of the Council Districtswithin its assigned region. The Commis-sion voted to approve this proposal.

2. The Ad Hoc Committees Drawthe Initial Council District

Boundaries

The committee assigned to West andSouthwest Los Angeles (the ‘‘West/South-west Committee’’) was responsible for

drawing five Council Districts, includingCD 10. CD 10 is west of downtown LosAngeles and split in half by the I-10 (SantaMonica Freeway). At the time of the 2012redistricting, the 2010 Census data indicat-ed that CD 10 was about 4.9% below itsrequired population size. Its registeredvoters were 49.1% African American, andits Citizen Voting Age Population(‘‘CVAP’’) percentages were 36.8% AfricanAmerican, 28.2% Latino, 17.1% Asian, and15.9% White.

At the West/Southwest Committee’sfirst meeting, Commissioner Chris Ellison,who had been appointed to the Commis-sion by City Council President Herb Wes-son (CD 10’s councilmember), prepared hisproposed boundaries for CD 10. Theseboundaries encompassed majority AfricanAmerican neighborhoods that had previ-ously been in CD 8, such as Leimert Parkand the ‘‘Dons’’ portion of Baldwin Hills.They also excluded from CD 10 a substan-tial portion of the ‘‘Palms’’ neighborhood(which had a minority of African Americanresidents) and split Koreatown’s popula-tion between CD 10 and CD 13. In pre-senting his proposed boundaries, Ellisonstated that he sought to increase the per-centage of registered African Americanvoters in CD 10 to over 50%. He laterreiterated this intention in an email:

Being a historical African American op-portunity district, we found it necessaryto increase the AA population. We at-tempted to protect the historical AfricanAmerican incumbents in this district byincreasing the black voter registrationpercentage and CVAP #s accordingly.As you can discern on the attachment,we were able to increase the numbers to50.12% and 42.8%, respectively. Thiswas a significant increase in black votersin CD 10 which would protect and assist


in keeping CD 10 a predominantly Afri-can-American opportunity district.

He continued:We agreed to move the western portionof CD 10 (Palms) into CD 5 and 11. Thisarea is approximately 50% white voterregistration or CVAP, 20% LatinoCVAP and approximately 11% AA voterregistration. This move would allow CD10 to divest itself of this diverse populat-ed area, and increase the AA populationto the South.

After Ellison’s presentation, other Com-missioners proposed alternative bound-aries. Ellison’s proposed boundaries andthe boundaries proposed by CommissionerHelen B. Kim received the most votesfrom the West/Southwest Committee withthree votes each, but neither received amajority. Because both Ellison’s and Kim’sproposals received the same number ofvotes, the West/Southwest Committeeshould have submitted both proposals to alarger ‘‘Dispute Resolution’’ subcommitteeto ‘‘stitch[ ] together’’ a compromise fromthe various proposals. However, this didnot occur, and instead only Ellison’s pro-posal was presented to the Dispute Reso-lution subcommittee.1 As a result, theWest/Southwest Committee ultimatelypresented only Ellison’s proposal to thefull Commission for approval.

3. The Commission Considersthe Proposed Boundaries

Although the West/Southwest Commit-tee formally presented Ellison’s proposalto the Commission, Commissioner Kim

presented an alternative set of boundariesto the Commission that would have placedKoreatown entirely within CD 13. TheCommission rejected Kim’s proposal. Be-cause it was the largest neighborhood inLos Angeles, the Commission did not findit practical or feasible to maintain Korea-town within a single Council District with-out creating ‘‘major disruptions to othercommunities and Council Districtsthroughout the City.’’ Instead, the Com-mission incorporated Ellison’s proposalinto a complete draft Council District map,which it released for public comment andreview.

After considering the public feedback,the Commission debated and approved 42out of 80 proposed adjustments. The Com-mission then placed these amended bound-aries before the public for another roundof comment and review.2 This led to yetanother round of amendments wherein theCommission approved 5 of 14 proposedadjustments. The Commission then ap-proved this ‘‘final’’ set of boundaries on a16–5 vote, which was forwarded to the CityCouncil with additional adjustments forthe City Council to consider.

The Commission’s final proposal in-creased the African American CVAP inCD 10 from 36.8% to 43.1%, and it in-creased the percentage of African Ameri-can registered voters in CD 10 from 43.2%to 50.6%. The White CVAP in CD 10 de-creased from 15.6% to 11.1%, and theAsian CVAP decreased from 17.1% to16.3%.

1. The record does not provide a clear expla-nation as to why Ellison’s map, but not Kim’smap, moved forward: whether it was a resultof ‘‘suppression,’’ or, alternatively, a misun-derstanding by the initial Valley/West DisputeResolution Committee that the Kim map had‘‘not gone through the proper process.’’ Inany case, the record indicates that once thefirst Dispute Resolution Committee had metto resolve boundaries for the Valley/West re-

gion, those boundaries were effectively‘‘locked in’’ for the subsequent East/West Dis-pute Resolution Committee.

2. Over the course of this entire process, theCommission held a total of 22 public testimo-ny hearings and 10 business meetings, whichover 5,000 people attended and which pro-duced over 6,500 pieces of written and verbaltestimony.


4. The City Council Deliberates andPromulgates the Final Council

District Boundaries

After the City Council received theCommission’s final proposal, it held threepublic hearings throughout the City tofurther review and revise it. Based onthese hearings, City Council membersended up proposing 25 additional adjust-ments to the Commission’s proposedboundaries. The City’s Chief LegislativeAnalyst reviewed these proposed changesalong with the Commission’s original pro-posal and recommended adopting theCommission’s proposed boundaries with 18of the 25 proposed adjustments. Accordingto the Legislative Analyst, adoption ofthese 18 adjustments would resolve con-cerns raised during the public hearings.

On March 16, 2012, the City Counciladopted the Commission’s proposal withthe 18 additional adjustments. On June 20,2012, the City Council passed the finalredistricting ordinance, which was signedand published two days later. CD 10’s finalboundaries increased African AmericanCVAP from 36.8% to 40.5%, and decreasedWhite CVAP from 15.9% to 12.3% andAsian CVAP from 17.1% to 16.3%.

Afterwards, Council President Wessonmade the following statements to the Bap-tist Ministers’ Conference in July 2012:

One, it has been since November, sobrothers and sisters, it was me againsttwelve other members on the Council. Ihad no backup. I had no faction. And Idid the very best I could with what Ihad. And I was able to protect the mostimportant asset that we as black peoplehave. And that’s to make sure that aminimum of two of the council peopleswill be black for the next thirty years.We as African Americans make up only9% of the population. 9%. If we didn’t alllive clustered together, we would nothave one council district. Not one. TheAsians have 16% of the population. They

don’t have one district. Why? Becausethey live all over. So it’s important forus to harness our resources because themost important asset again that we haveas people is to make sure we have ablack vote or two on that council. Andthat was my priority.

B. Procedural History

On July 31, 2012, Peter Lee, Miri Park,Ho Sam Park, Geney Kim, and YonahHong filed a complaint in federal districtcourt alleging that the City violated theU.S. and California Constitutions and theCity Charter in drawing CD 10. On Febru-ary 26, 2013, Stanley Haveriland, TheodoreThomas, Horace Pennman, Julia Simons,Heather Presha, and Sally Stein filed asimilar complaint in federal district courtbringing the same claims against the Cityfor CD 10, but also challenging the bound-aries for CDs 8 and 9. The district courtconsolidated these cases on August 21,2013.

In the course of litigation, the Citymoved for a protective order prohibitingPlaintiffs from questioning City officialsregarding any legislative acts, motivations,or deliberations pertaining to the 2012 re-districting ordinance. The City also soughtto specifically prohibit Plaintiffs from de-posing Mayor Eric Garcetti, Council Presi-dent Wesson, City Councilmember JoseHuizar, and former City CouncilmemberJan Perry. The district court granted theCity’s motion and issued a protective or-der.

On February 24, 2015, the district courtgranted summary judgment in favor of theCity as to Plaintiffs’ federal constitutionalclaim and declined to exercise supplemen-tal jurisdiction over their remaining claims,which it dismissed without prejudice.Plaintiffs appeal both the summary judg-


ment order and the issuance of the protec-tive order.3

II. Jurisdiction and Standardof Review

[2, 3] We have jurisdiction under 28U.S.C. § 1291. We review de novo a dis-trict court’s order granting summary judg-ment. Fresno Motors, LLC v. MercedesBenz USA, LLC, 771 F.3d 1119, 1125 (9thCir. 2014). ‘‘Summary judgment TTT is ap-propriate only where there is no genuineissue of material fact and the moving partyis entitled to judgment as a matter of law.’’Hunt v. Cromartie, 526 U.S. 541, 549, 119S.Ct. 1545, 143 L.Ed.2d 731 (1999) (Cro-martie I ).

[4, 5] We generally review protectiveorders entered under a district court’s in-herent authority for abuse of discretion.Wharton v. Calderon, 127 F.3d 1201, 1205(9th Cir. 1997). However, ‘‘[a] district courtby definition abuses its discretion when itmakes an error of law.’’ Koon v. UnitedStates, 518 U.S. 81, 100, 116 S.Ct. 2035,135 L.Ed.2d 392 (1996). Because the appli-cation of a legal privilege is ‘‘essentially alegal matter’’ that is reviewed de novo, Al-Haramain Islamic Found., Inc. v. Bush,507 F.3d 1190, 1196 (9th Cir. 2007), weapply that standard here to the districtcourt’s application of the legislative privi-lege.

III. Discussion

A. Equal Protection Claim

[6, 7] The Equal Protection Clause ofthe Fourteenth Amendment provides that‘‘[n]o State shall TTT deny to any personwithin its jurisdiction the equal protectionof the laws.’’ U.S. Const., amend. XIV, § 1.‘‘Its central purpose is to prevent theStates from purposefully discriminating

between individuals on the basis of race.’’Shaw v. Reno, 509 U.S. 630, 642, 113 S.Ct.2816, 125 L.Ed.2d 511 (1993) (Shaw I ).This includes ‘‘separating TTT citizens intodifferent voting districts on the basis ofrace’’ without ‘‘sufficient justification.’’Cooper, 137 S.Ct. at 1463 (quoting Be-thune-Hill v. Va. State Bd. of Elections,––– U.S. ––––, 137 S.Ct. 788, 797, 197L.Ed.2d 85 (2017) ). Claims that votingdistricts have been drawn on race-basedlines are evaluated under a two-step analy-sis: (1) the plaintiffs must first prove that‘‘race was the predominant factor motivat-ing the legislature’s decision to place asignificant number of voters within orwithout a particular district’’; and (2) if theplaintiffs do so, the burden shifts to thedefendant ‘‘to prove that its race-basedsorting of voters serves a ‘compelling in-terest’ and is ‘narrowly tailored’ to thatend.’’ Id. at 1463–64 (quoting Bethune-Hill, 137 S.Ct. at 797). The district courtgranted summary judgment after findingthat the plaintiffs failed to raise a genuinedispute at the first step of the analysis.

[8–10] Proving that race was the pre-dominant factor in drawing district bound-aries ‘‘entails demonstrating that the legis-lature ‘subordinated’ other factors TTT to‘racial considerations.’ ’’ Id. (quoting Millerv. Johnson, 515 U.S. 900, 916, 115 S.Ct.2475, 132 L.Ed.2d 762 (1995) ). What mat-ters is ‘‘the actual considerations that pro-vided the essential basis for the linesdrawn, not post hoc justifications the [leg-islative body] in theory could have usedbut in reality did not.’’ Bethune-Hill, 137S.Ct. at 799. Plaintiffs may make thisshowing with direct or circumstantial evi-dence. Cooper, 137 S.Ct. at 1464.

3. Because we do not rely on it in this opinion,we DENY the City’s motion requesting judi-

cial notice as moot.


[11–13] In proving that race was thepredominant factor, it is unnecessary toshow an actual conflict between the enact-ed plan and ‘‘traditional redistricting prin-ciples.’’ Bethune-Hill, 137 S.Ct. at 799.‘‘Race may predominate even when a reap-portionment plan respects traditional prin-ciples,’’ id. at 798—for example, when alegislative body uses race as the predomi-nant criterion to advance those principles,see Cooper, 137 S.Ct. at 1464 n.1. Giventhat traditional redistricting principles are‘‘numerous and malleable,’’ a legislativebody ‘‘could construct a plethora of poten-tial maps that look consistent with tradi-tional, race-neutral principles.’’ Bethune-Hill, 137 S.Ct. at 799. ‘‘But if race for itsown sake is the overriding reason forchoosing one map over others, race stillmay predominate.’’ Id. Still, the SupremeCourt has recently reiterated that the‘‘good faith of [the legislative body] mustbe presumed,’’ and the burden of proofrests with the challenger to demonstratethat race predominated the districting pro-cess. Abbott v. Perez, ––– U.S. ––––, 138S.Ct. 2305, 2324, 201 L.Ed.2d 714 (2018)(quoting Miller, 515 U.S. at 915, 115 S.Ct.2475).

[14] Plaintiffs argue that race was infact the overriding motivation behind CD10’s boundaries. They contend that CouncilPresident Wesson used his powerful andprominent position to ensure that CD 10would become a majority African Ameri-can Council District. Wesson claimed cred-it for acting to preserve African Americanseats on the City Council after the redis-tricting process concluded. He explicitlystated that it had been his ‘‘priority’’ to‘‘make sure we have a black vote or two onthat council.’’

In light of Wesson’s statements, Plain-tiffs draw particular significance from twofacts: (1) Wesson’s appointment of Christo-pher Ellison, a man with no prior redis-tricting experience, to the Redistricting

Commission, and (2) the division of theCommission into ad hoc committees for theinitial drawing of Council District bound-aries. According to Plaintiffs, the explicitpurpose of the ad hoc committees was toavoid public scrutiny, and Ellison was ap-pointed specifically to pursue Wesson’srace-based agenda. Outside public view,and with fewer Commissioners againstwhom he needed to contend, Ellison couldexercise greater control over the proceed-ings and more effectively pursue his (andWesson’s) goals. Indeed, Plaintiffs assertthat ‘‘[t]he Ad Hoc Committees were themost important part of the redistrictingprocess.’’ By getting the first crack atdrawing the Council Districts, these com-mittees enjoyed the advantage of settingthe terms of future debate. Although theCommission and the City Council mightlater amend a committee’s proposal on themargins, it would be difficult if not impos-sible to completely scrap a proposal andredraw the boundaries anew.

At the West/Southwest Committee’sfirst meeting, Ellison had the Commis-sion’s Technical Director display a map ofCD 10 with racial demographic data super-imposed over it. He then had the TechnicalDirector redraw CD 10 to maximize thepercentage of African American registeredvoters. Ellison explained the changes in hisproposed map in terms of how it wouldincrease the African American voting pop-ulation in CD 10. He explicitly stated that‘‘[w]e attempted to protect the historicalAfrican American incumbents in this dis-trict by increasing the black voter regis-tration percentage and CVAP # s accord-ingly.’’

This evidence certainly shows that racewas a motivation in drawing CD 10. ForEllison and Wesson, it may have even beenthe only motivation. Ellison never offeredany justification other than race for hisproposed boundaries. But the relevant in-


quiry is whether ‘‘race was the predomi-nant factor motivating the legislature’s de-cision’’ as to the final boundaries. Cooper,137 S.Ct. at 1463 (emphases added). Andhere, Plaintiffs have not made the requi-site showing to raise a genuine dispute offact. Had Ellison been the final decisionmaker, then on this record Plaintiffs mayhave been able to make a compelling show-ing of predominance. However, Ellison andWesson were only two people in a processthat incorporated multiple layers of deci-sions and alterations from the entire Com-mission, as well as the City Council.

Nor was Ellison’s proposal adopted ‘‘asis.’’ After his proposal was forwarded tothe Commission, the boundaries under-went additional review and changes. First,the Commission released its proposedCouncil Districts (including Ellison’s pro-posed boundaries for CD 10) for publiccomment and review. After considering thepublic feedback, the Commission amendedthe proposed boundaries. For CD 10, theCommission voted to place additionalneighborhoods into the District, putting allof Little Bangladesh and around 70% ofKoreatown 4 into CD 10. The Commissionthen placed these amended boundaries be-fore the public again for additional com-ment and review. Afterwards, the Commis-sion further amended its boundaries 5 andapproved a ‘‘final’’ version. The Commis-sion forwarded this ‘‘final’’ version to theCity Council with additional recommenda-tions that would further alter CD 10’sboundaries from what Ellison originallyproposed.6

Next, the City Council held its own pub-lic hearings regarding the proposed Coun-cil Districts and the Commission’s recom-

mendations. Members of the City Councilthen proposed their own adjustments tothe Commission’s proposal; three of theseproposals would affect CD 10. The City’sChief Legislative Analyst reviewed theseproposed changes along with the Commis-sion’s original proposal. Ultimately, theLegislative Analyst recommended adopt-ing the Commission’s proposal with 18 ofthe proposed adjustments, including theproposed changes to CD 10. Finally, onMarch 16, 2012, the City Council adoptedthe Legislative Analyst’s recommendedCouncil District boundaries.

Even viewed in the light most favorableto Plaintiffs, the record fails to show thatthese successive amendments were drivenpredominantly by racial considerations. In-stead, the Commission’s final report andrecommendations show that, overall, theCommission sought to rebalance the popu-lations in each Council District, while pre-serving communities and unifying as manyNeighborhood Councils as possible in asingle Council District. According to theCommission’s report, 53 of 95 Neighbor-hood Councils had been divided acrossmore than one Council District, and 13 ofthe 53 were divided across more than twoCouncil Districts. Under the Commission’sfinal proposed boundaries, the number ofdivided Neighborhood Councils was re-duced from 53 to 29, and the number ofNeighborhood Councils divided acrossmore than two Council Districts was re-duced from 13 to 3.

A memorandum to the Commission fromits staff reflects these priorities. Accordingto the memorandum, the amendments per-taining to Koreatown and its adjacent ar-

4. The actual percentage of Koreatown thatthe Commission voted to place into CD 10depends on the definition used, e.g., 70% ifdefined as the Wilshire Center-KoreatownNeighborhood Council, but 100% if definedby the City of Los Angeles’ community renam-ing policy.

5. Although not for CD 10.

6. These recommendations would have keptbusinesses in the communities of Little Ban-gladesh, Little Ethiopia, and Koreatown with-in CD 10.


eas were adopted in response to publictestimony expressing a desire to keepneighborhoods such as Little Ethiopia, Ko-reatown, and Little Bangladesh whole. Inchoosing to place Leimert Park and Bald-win Hills in CD 10, the Commission wasresponding to public testimony requestingthat the entire Empowerment CongressWest Area Neighborhood DevelopmentCouncil (of which Leimert Park and Bald-win Hills are a part) be placed in oneCouncil District. Some of these neighbor-hoods had been divided across more thanone Council District for at least fortyyears. Although Koreatown, as defined asthe Wilshire Center-Koreatown Neighbor-hood Council, ultimately could not bebrought into a single Council District, theCommission did succeed in reducing thesplit from three Council Districts to two.7

As for the amendments proposed byCity Council members, the record lackssubstantive evidence to show that theywere proposed predominantly because ofrace, rather than in response to concernsraised during the public hearings. Plain-tiffs allude to Council President Wesson’s‘‘huge sway’’ over the drawing of CD 10’sboundaries, but aside from appointing Elli-son to the Commission, they fail to point toany evidence showing how Wesson usedhis power and influence to pursue a race-based redistricting agenda. Wesson statedthat his ‘‘priority’’ was to ‘‘make sure[they] have a black vote or two on thatcouncil,’’ but he indicated in those sameremarks that he was alone in prioritizingrace in drawing the Council Districts. Wes-son said that it was ‘‘[him] against twelveother members on the Council. [He] hadno backup. [He] had no faction.’’ Theseremarks tend to show that Wesson did notexert as much influence over the proceed-

ings as he would have liked. Absent anyadditional evidence, Ellison’s and Wesson’sown subjective motivations are insufficientto make plaintiff’s case that race predomi-nated over the City Council’s deliberations.

The circumstantial evidence also fails tocreate a genuine dispute on racial predo-minance. CD 10 is one of the most compactdistricts in Los Angeles, and its bound-aries generally follow the boundaries ofthe Los Angeles Neighborhood Councils orother geographic markers. Moreover, CD10 is not any more bizarrely shaped than itwas with its previous boundaries.8 See Ap-pendix. This is a far cry from the cases inwhich the Supreme Court found the shapeof voting districts to be indicative of racialconsiderations on their face. See, e.g., Bushv. Vera, 517 U.S. 952, 965–66, 116 S.Ct.1941, 135 L.Ed.2d 248 (1996) (describing a‘‘compact, albeit irregularly shaped, core’’with ‘‘narrow and bizarrely shaped tenta-cles TTT extending primarily to the northand west’’); Miller, 515 U.S. at 908–09, 115S.Ct. 2475 (describing a ‘‘sparsely populat-ed rural core’’ connected by ‘‘narrow corri-dors’’ to ‘‘four discrete, widely spaced ur-ban centers’’); Shaw I, 509 U.S. at 635–36,113 S.Ct. 2816 (describing two districts,one with a ‘‘hook shape[ ]’’ with ‘‘finger-likeextensions’’ and another that winds ‘‘insnakelike fashion’’ to encompass AfricanAmerican neighborhoods).

The demographic data and expert anal-yses fail to raise a genuine dispute onracial predominance as well. Not only isthe increase in CD 10’s African AmericanCVAP from 36.8% to 40.5% relativelysmall, but looking at only the initial andfinal numbers also obscures what occurredin between. The Commission’s proposal tothe City Council originally increased Afri-can American CVAP to 43.1%. The City

7. Under a narrower definition of Koreatownas discussed above, see supra note 4, the Com-mission succeeded in uniting Koreatown intoa single Council District.

8. Expert analysis shows that 88.53% of CD10’s current boundaries either follow theNeighborhood Council boundaries or CD 10’soriginal boundaries before redistricting.


Council’s final, approved version thereforereflects a decrease in CD 10’s AfricanAmerican CVAP in comparison to theCommission’s proposal. By placing most ofKoreatown, which is predominantly Latinoand Asian in population, in CD 10, theCity Council diluted rather than concen-trated African American voting power inthat district. Moreover, the boundary seg-ment analysis conducted by Plaintiffs’ ex-pert indicates that the current CD 10 doesnot appreciably concentrate African Amer-icans inside CD 10 any more than theformer CD 10 did.

Finally, the remaining procedural irreg-ularities noted by Plaintiffs fail to suggestthat race predominated over the drawingof Council Districts. Plaintiffs identify twoCommissioners who were replaced afterallegedly expressing reservations aboutthe Commission’s proposal. However, turn-over on the Commission was not uncom-mon—six Commissioners were replacedbetween September 2011 and February2012. The record does not clearly showthat the two aforementioned Commission-ers had concerns specifically about racialline drawing, as opposed to the overallproposal put forth by Ellison.

Plaintiffs also take issue with the Com-mission’s use of ad hoc committees, but theCommission followed a similar procedureto draw boundaries in 2002. Admittedly,the record does not provide a clear expla-nation on exactly why the West/SouthwestCommittee chose to forward Ellison’s pro-posed boundaries to the Commission rath-er than Kim’s, but Kim was able to presenther proposal before the full Commissionanyway. The Commission rejected Kim’sproposal based on concerns that placingKoreatown in a single Council Districtwould create major disruptions to other

neighborhoods and Council Districtsthroughout the City. And, contrary toPlaintiffs’ assertions, the use of ad hoccommittees did not exclude the public fromthe redistricting process. The record indi-cates that the public was consulted contin-ually throughout the redistricting process.

In sum, we conclude that Plaintiffs failedto raise a triable issue of fact as to wheth-er the City was motivated predominantlyby race in drawing CD 10, and the districtcourt properly granted summary judgmentin favor of the City.9

B. Legislative Privilege Claim

Plaintiffs contend that the district courterred in barring the depositions of Ellison,Wesson, and other officials involved in theredistricting process. First, according toPlaintiffs, the legislative privilege does notapply at all to state and local officials. Wedisagree.

[15, 16] The legislative privilege hasdeep historical roots that the SupremeCourt has traced back to ‘‘the Parliamen-tary struggles of the Sixteenth and Seven-teenth Centuries.’’ Tenney v. Brandhove,341 U.S. 367, 372, 71 S.Ct. 783, 95 L.Ed.1019 (1951). In Tenney, the Court re-viewed a civil rights suit against membersof a California state senate committee anda local city mayor, ultimately finding thatsuch a suit could not proceed. Id. at 369, 71S.Ct. 783. As the Court explained:

In order to enable and encourage a rep-resentative of the public to discharge hispublic trust with firmness and success, itis indispensably necessary, that heshould enjoy the fullest liberty ofspeech, and that he should be protectedfrom the resentment of every one, how-ever powerful, to whom the exercise ofthat liberty may occasion offense.

9. The plaintiffs in the Haveriland action ap-peal the district court’s summary judgmentorder as to CDs 8 and 9. Because the Haveri-land plaintiffs merely joined in ‘‘the same

arguments and analyses that were made inthe Lee Appellants’ Opening Brief,’’ their ap-peal fails for the same reason.


Id. at 373, 71 S.Ct. 783 (citation omitted).The Court’s analysis drew on ‘‘politicalprinciples already firmly established in theStates,’’ as reflected in numerous stateconstitutions that had historically em-braced just such a privilege for their ownlegislators. Id. at 373–75, 71 S.Ct. 783.Because the defendants had not ‘‘exceededthe bounds of legislative power’’ and ‘‘wereacting in a field where legislators tradition-ally have power to act,’’ the Court heldthat they were immune from suit.10 Id. at378–79, 71 S.Ct. 783.

[17, 18] While Tenney’s holding restedupon a finding of immunity, its logic sup-ports extending the corollary legislativeprivilege from compulsory testimony tostate and local officials as well. Like theirfederal counterparts, state and local offi-cials undoubtedly share an interest in min-imizing the ‘‘distraction’’ of ‘‘divert[ing]their time, energy, and attention fromtheir legislative tasks to defend the litiga-tion.’’ See Eastland v. U.S. Servicemen’sFund, 421 U.S. 491, 503, 95 S.Ct. 1813, 44L.Ed.2d 324 (1975). The rationale for theprivilege—to allow duly elected legislatorsto discharge their public duties withoutconcern of adverse consequences outsidethe ballot box—applies equally to federal,state, and local officials.11 ‘‘Regardless ofthe level of government, the exercise oflegislative discretion should not be inhib-ited by judicial interference TTTT’’ Boganv. Scott-Harris, 523 U.S. 44, 52, 118 S.Ct.966, 140 L.Ed.2d 79 (1998). We thereforehold that state and local legislators mayinvoke legislative privilege.12

[19] Plaintiffs next argue that, even as-suming the privilege applies to state andlocal officials, it is only a qualified rightthat should be overcome in this case.Plaintiffs have failed to persuade us thatthe privilege was improperly applied here.

Although the Supreme Court has not setforth the circumstances under which theprivilege must yield to the need for adecision maker’s testimony, it has re-peatedly stressed that ‘‘judicial inquiriesinto legislative or executive motivation rep-resent a substantial intrusion’’ such thatcalling a decision maker as a witness ‘‘istherefore ‘usually to be avoided.’ ’’ Vill. ofArlington Heights v. Metro. Hous. Dev.Corp., 429 U.S. 252, 268 n.18, 97 S.Ct. 555,50 L.Ed.2d 450 (1977) (quoting Citizens toPreserve Overton Park v. Volpe, 401 U.S.402, 420, 91 S.Ct. 814, 28 L.Ed.2d 136(1971) ).

In Village of Arlington Heights, theplaintiff brought an Equal Protection chal-lenge against local officials, alleging thattheir refusal to rezone a parcel of land forredevelopment was motivated by racialdiscrimination. Id. at 254, 97 S.Ct. 555.While the Court acknowledged that ‘‘[t]helegislative or administrative history maybe highly relevant,’’ it nonetheless foundthat even ‘‘[i]n extraordinary instances TTT

such testimony frequently will be barredby privilege.’’ Id. at 268, 97 S.Ct. 555 (cit-ing Tenney, 341 U.S. 367, 71 S.Ct. 783).Applying this precedent, we have likewiseconcluded that plaintiffs are generallybarred from deposing local legislators,

10. While the privilege, as applied to federalofficials, is embedded directly in the Constitu-tion, its extension to state and local officials isa matter of federal common law. See UnitedStates v. Gillock, 445 U.S. 360, 372 n.10, 100S.Ct. 1185, 63 L.Ed.2d 454 (1980).

11. We recognize, however, that certain otherconcerns addressed by the legislative privilege

are specific to federal legislators, such as theseparation of powers principles that under-gird the Speech and Debate Clause of theConstitution. See Gillock, 445 U.S. at 370, 372n.10, 100 S.Ct. 1185.

12. The privilege also extends to legislativeaides and assistants. See Jeff D. v. Otter, 643F.3d 278, 290 (9th Cir. 2011).


even in ‘‘extraordinary circumstances.’’City of Las Vegas v. Foley, 747 F.2d 1294,1298 (9th Cir. 1984) (citing Vill. of Arling-ton Heights, 429 U.S. at 268, 97 S.Ct. 555).

We recognize that claims of racial gerry-mandering involve serious allegations: ‘‘Atthe heart of the Constitution’s guaranteeof equal protection lies the simple com-mand that the Government must treat citi-zens ‘as individuals, not ‘‘as simply compo-nents of a racial TTT class.’’ ’ ’’ Miller, 515U.S. at 911, 115 S.Ct. 2475 (quoting MetroBroad., Inc. v. FCC, 497 U.S. 547, 602, 110S.Ct. 2997, 111 L.Ed.2d 445 (O’Connor, J.,dissenting) ). Here, Defendants have beenaccused of violating that important consti-tutional right.

But the factual record in this case fallsshort of justifying the ‘‘substantial intru-sion’’ into the legislative process. See Vill.of Arlington Heights, 429 U.S. at 268 n.18,

97 S.Ct. 555. Although Plaintiffs call for acategorical exception whenever a constitu-tional claim directly implicates the govern-ment’s intent, that exception would renderthe privilege ‘‘of little value.’’ See Tenney,341 U.S. at 377, 71 S.Ct. 783. Village ofArlington Heights itself also involved anequal protection claim alleging racial dis-crimination—putting the government’s in-tent directly at issue—but nonethelesssuggested that such a claim was not, inand of itself, within the subset of ‘‘extraor-dinary instances’’ that might justify an ex-ception to the privilege. 429 U.S. at 268, 97S.Ct. 555. Without sufficient grounds todistinguish those circumstances from thecase at hand, we conclude that the districtcourt properly denied discovery on theground of legislative privilege.

AFFIRMED.


APPENDIX

Current CD 10 Boundaries


APPENDIX—Continued

Previous CD 10 Boundaries

,

NATIONAL ASSOCIATION OF AFRI-CAN AMERICAN-OWNED MEDIA, aCalifornia Limited Liability Compa-ny; Entertainment Studios Networks,Inc., a California Corporation, Plain-tiffs-Appellees,

v.CHARTER COMMUNICATIONS,

INC., a Delaware Corporation,Defendant-Appellant.

Documents

LEE v. CITY OF LOS ANGELES 1175 - Berkeley Law · LEE v. CITY OF LOS ANGELES 1177 Cite as 908 F.3d 1175 (9th Cir. 2018) though district’s final boundaries increased African American