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Refusal to Quash Subpoenas Ruled 'Abuse of Discretion' by 11th Circ.

By Jonathan R. Tung, Esq. on October 20, 2015 8:12 PM

In a case that is somewhat reminiscent of Citizens United, which revolves around the amorphous notion what constitutes valid speech, the 11th Circuit just ruled that a lower court abused its discretion when it did not quash subpoena's against state officials and granted them the benefit of doubt of privilege.

The subpoenas were directed at lawmakers; they alleged that the Act violated the First Amendment rights of the Alabama Education Association (AEA) because of alleged bad faith.

Abuse of Discretion

The dispute originally started with the application of Alabama Law (Act 761) to the direction of payroll deductions. A number of teachers in the state sought to direct a portion of payroll deductions to political organizations -- an action that the statute specifically prohibits. AEA's complaint not only alleged that the Act is unconstitutional, but also that the facts supported bad faith motivations by the governor and other witnesses who were not defendants in the suit. When AEA filed subpoenas, the defendants demurred their motion to quash was denied. This was, according to the Appeals Court, an Abuse of Discretion.

Precedent

The 11th Circuit has previously held that the "prohibition alone" of Act 761 does not violate the First Amendment. In the words of the 11th Circuit, "[Act 761 is] not unconstitutionally overbroad or impermissibly vague." Thus, the question of base constitutionality has been settled.

However, AEA alleged that the act was not "alone" and that the motivation of the lawmakers was to retaliate against the AEA for its political stances on policies concerning Alabama education. The lawmakers asserted privilege and the 11th Circuit agreed.

Improper Citation; Wrong Standard

The 11th Circuit agreed with the defendants and also noted that the lower court improperly applied a Third Circuit decision that imposed a four pronged element analysis for asserting a governmental privilege. In the opinion of the 11th Circuit panel, two applications of the test were contrary to applicable precedent, and the other two prongs were "inappropriate given the circumstances."

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