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Wilson v. Allen County Council

United States District Court, N.D. Indiana

March 27, 2018

CALVIN WILSON, DAVID BLUME, and ASIA MARSHALL, individually and on behalf of all other similarly situated persons, Plaintiffs,
v.
ALLEN COUNTY COUNCIL, ALLEN ALLEN COUNTY BOARD OF COMMISSIONERS, and ALLEN COUNTY PUBLIC DEFENDER BOARD, Defendants.

          OPINION AND ORDER

          THERESA L. SPRINGMANN CHIEF JUDGE.

         This matter is before the Court on the Plaintiffs' Motion [ECF No. 88] to Amend/Correct their Brief [ECF No. 85] in Opposition to the Defendants' Motion to Dismiss [ECF No. 82] the Plaintiff's Third Amended Complaint [ECF No. 45].

         BACKGROUND

         Plaintiffs Calvin Wilson, David Blume, and Asia Marshall, on behalf of themselves and others similarly situated, have brought this class action against Defendants, the Allen County Council, the Allen County Board of Commissioners, and the Allen County Public Defender Board, seeking declaratory and injunctive relief pursuant to 42 U.S.C. § 1983. The Plaintiffs allege that the Defendants have failed to provide effective assistance of counsel to indigent defendants charged with committing misdemeanor crimes in the courts of Allen County, Indiana, in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Section 13(a) of Article 1 of the Indiana State Constitution. On September 15, 2017, the Defendants filed a Motion to Dismiss the Plaintiff's Third Amended Complaint [ECF No. 82] and on September 25, 2017, the Plaintiffs filed their Response [ECF No. 84]. On September 28, 2017, the Plaintiffs filed a Motion to Amend/Correct their Brief in Opposition [ECF No. 88] to te Motion to Dismiss, the Defendants responded [ECF No. 92], and the Plaintiffs replied [ECF No. 93].

         As detailed in their Motion to Amend, the Plaintiffs seek to amend their response brief in opposition to the Defendants' Motion to Dismiss by adding one new paragraph and two documents. (Pls' Proposed Am. Br. in Opp. to Defs.' Mot. to Dismiss 13-14, ECF No. 88-1.) One of these documents in a letter (the Letter) from Derrick Mason, identified as a Senior Staff Attorney at the Indiana Public Defender Commission (IPDC), confirming the IPDC's approval of a request from the Allen County Public Defender (ACPD) to hire additional staff. (Aug. 18, 2017 Ltr., ECF No. 88-1.) The Defendants oppose the Motion to Amend, and the inclusion of the attached proposed amended response brief and Letter in the record, arguing that the Letter is protected and excluded under the deliberative process privilege.[1]

         ANALYSIS

         The deliberative process privilege protects communications that are part of the decision-making process of a governmental agency. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150- 152 (1975). “Since frank discussion of legal and policy matters is essential to the decision-making process of a governmental agency, communications made prior to and as a part of an agency determination are protected from disclosure.” United States v. Farley, 11 F.3d 1385, 1389 (7th Cir. 1993) (citing id. at 151.) 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.'” Anderson v. Marion Cty. Sheriff's Dep't, 220 F.R.D. 555, 560 (S.D. Ind. 2004) (citation omitted). The burden to show the privilege applies rests on the party asserting the privilege “both to its existence and its applicability.” King v. Internal Revenue Serv., 684 F.3d 517, 519 (7th Cir. 1982); Allen v. Chi. Transit Auth., 198 F.R.D. 495, 501 (N.D. Ill. 2001).

         However, there are limitations to the privilege. “For the privilege to apply at all, the document-or communication-must be ‘pre-decisional' and ‘deliberative.'” Marion Cty. Sheriff's Dep't, 220 F.R.D. at 560 (citation omitted). The Seventh Circuit has held that “pre-decisional” means that a document or communication “is actually antecedent to the adoption of an agency policy.” Enviro Tech Int'l v. E.P.A., 371 F.3d 370, 375 (7th Cir. 2004) (internal quotation marks and citation omitted). Accordingly, communications made subsequent to an agency decision are not protected. Farley, 11 F.3d at 1389. The Seventh Circuit has also held that “deliberative” means that the document or communication “is actually related to the process by which policies are formulated.” Enviro Tech Int'l Inc., 371 F.3d at 375. Therefore, “the deliberative process privilege typically does not justify the withholding of purely factual material.” Id. at 374. Courts have held that the privilege is narrow and “the privilege should be invoked only in the context of communications designed to directly contribute to the formulation of important public policy.Anderson, 220 F.R.D. at 560-61 (internal quotation marks and citation omitted) (emphasis in original). Moreover, the deliberative process privilege may be overcome where there is a sufficient showing of a particularized need that outweighs the reasons for confidentiality. Farley, 11 F.3d at 1389.

         The Court finds that that deliberative process privilege does not extend to the Letter at issue. First, on its face, the Letter appears to be a confirmation authorizing personnel (or shifting personnel into different positions). It begins by acknowledging that:

The Public Defender Commission is in receipt of your [Mr. Hammond's] letter stating that Allen County is interested in having six (6) deputy public defenders handling exclusively misdemeanor caseloads and hiring an additional three (3) paralegals/investigators . . . . Per our conversation, the pay and compensation for the misdemeanor deputy public defenders . . . would be the same as the other deputy public defenders . . . .

(Aug. 18, 2017 Ltr.) The Letter goes on to state that the pay rate for the misdemeanor deputy defenders is comparable to the other full time attorneys. The language does not appear to reflect any sort of deliberation, let alone deliberation “related to process by which policies are formulated.” Enviro Tech Int'l, 371 F.3d at 375; see also United States v. Lake Cty. Bd. of Comm'rs, 233 F.R.D. 523, 528 (N.D. Ind. 2005) (“[T]he Court doubts that the deliberative process . . . privilege[] ever [was] intended to prohibit inquiry into routine personnel decisions.”). Rather, the language in the Letter indicates that it is an authorization, or confirmation “per [a] conversation, ” for the ACPD's hiring of staff. (Aug. 18, 2017 Ltr.)

         The Defendants take issue with the last paragraph of the Letter, in which Mr. Mason writes:

Six (6) full time and adequately staffed misdemeanor attorneys provides Allen County with sufficient legal support to handle up to 2400 misdemeanor cases under current guidelines. This would appear to be enough to handle the annual caseload as reported in 2016. In other words, I am pleased to say that such a proposal would appear to make misdemeanor representation in Allen County in compliance with current Commission Standards and Guidelines. Please let me know if you need anything further.

(Id.) The Defendants argue that this language “constitutes an advisory opinion concerning potential hiring decisions.” (Defs.' Resp. 5, ECF No. 92.) However, the plain text of this language does not appear to constitute an advisory opinion that is part of agency deliberation.[2]Rather, Mr. Mason's statement that the hiring would be in compliance with IPDC guidelines is a factual statement. And, even if the language is advisory in ...


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