Marshall v. Bramer

110 F.R.D. 232, 1985 U.S. Dist. LEXIS 15327
CourtDistrict Court, W.D. Kentucky
DecidedOctober 2, 1985
DocketCiv. A. No. 85-0836-L(J)
StatusPublished
Cited by5 cases

This text of 110 F.R.D. 232 (Marshall v. Bramer) is published on Counsel Stack Legal Research, covering District Court, W.D. Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Marshall v. Bramer, 110 F.R.D. 232, 1985 U.S. Dist. LEXIS 15327 (W.D. Ky. 1985).

Opinion

MEMORANDUM AND ORDER

JOHNSTONE, Chief Judge.

Plaintiffs Phillip and Martha Marshall bring this action under 42 U.S.C. §§ 1985(3) and 1986 seeking injunctive relief and damages for defendants’ alleged conspiracy to burn their home and violate their civil rights. Three of the defendants are named in the complaint; the others are unknown. All are alleged members of the Ku Klux Klan or one of the Klan’s associated organizations. Plaintiffs are a black couple who lived in the all white Louisville community of Sylvania when their home was destroyed by arsonists. They claim that defendants burned the home in an effort to drive them from the neighborhood. Juris[233]*233diction over this action exists under 28 U.S.C. §§ 1331 and 1343.

Alex Young, a Sylvania policeman who is not a party to this action, was served with a Subpoena Duces Tecum on behalf of plaintiffs, which required Young to appear on September 30, 1985, with:

1. All records, membership lists, can-celled checks, post office records, printed literature, rubber address stamps, and other documents in his possession or under his control relating to the Confederate Officers Patriotic Society, the Ku Klux Klan, and any racist organization of which he is or has been affiliated with during the past five (5) years.

2. All records in his control or possession pertaining to a Post Office Box 91116, Fern Creek, Kentucky, including any cancelled checks or receipts for rent payment for said Post Office Box.

Now before the court is Young’s motion to quash the Subpoena Duces Tecum or in the alternative a motion for protective order. In support of his motion, Young claims that the production of Klan membership lists would inhibit the first amendment rights of association of Young and other members whose names would be disclosed. Moreover, the subpoena seeks documents and information not relevant to the action.

Rule 26(b)(1) of the Federal Rules of Civil Procedure sets forth the scope of discovery. “Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action____” Rule 26(b)(1) Fed. Rules Civ.Pro. The material sought need not be admissible at trial. It need only appear “reasonably calculated to lead to the discovery of admissible evidence.” Id. The material sought by plaintiffs from Young is relevant to the action. Young is a confessed member or past member of the Klan and other racist organizations. Plaintiffs complaint states that the named defendants and other unidentified members of the Klan and or the Confederate Officers Patriotic Society (COPS) conspired to violate plaintiffs’ civil rights. The requested membership lists and other documents could lead plaintiffs to the identity of the unknown co-conspirators. Klan and COPS literature could be relevant to a determination of whether the intent of the conspirators in their alleged arson was to violate plaintiffs’ civil rights. Thus, the subpoena seeks “matter that bears on, or that reasonably could lead to other matters that could bear on any issue that is or may be in the case.” Such matter is relevant and within the scope of discovery as defined in Rule 26(b)(1). Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S.Ct. 2380, 2389, 57 L.Ed.2d 253 (1978).

However, the court’s inquiry does not end with a determination of relevance. Rule 26(b)(1) provides that relevant information is admissible if. it is not privileged, and here Young claims that plaintiffs seek material which is protected by the right to freedom of association.

The Supreme Court has firmly established that “rights of association are within the ambit of the constitutional protections afforded by the First and Fourteenth Amendments.” Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539, 543, 83 S.Ct. 889, 892, 9 L.Ed.2d 929 (1963); see also Bates v. City of Little Rock, 361 U.S. 516, 80 S.Ct. 412, 4 L.Ed.2d 480 (1960); NAACP v. State of Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958). Freedom association may be restrained if groups engaged in political advocacy are compelled to disclose the identity of their members. Thus, the guarantee of free association encompasses the right to privacy in one’s associations. Gibson, 372 U.S. at 543, 83 S.Ct. at 892.

Most cases that address freedom of association concern a state or state agency which has tried to compel an organization to submit a list of its members. See e.g. NAACP v. State of Alabama, 357 U.S) at 449, 78 S.Ct. at 1163; People of State of New York ex rel. Bryant v. Zimmerman, 278 U.S. 63, 49 S.Ct. 61, 73 L.Ed. 184 (1928). In those cases the Court recognized that the state may have an interest in [234]*234seeking disclosure of organizations’ members. Id. The proper test to be applied to reconcile the competing interests of the government and the organization is whether the state can “convincingly show a substantial relation between the information sought and a subject of compelling state interest.” Gibson, 372 U.S. at 546, 83 S.Ct. 893-94.

Although the instant action concerns subpoena of membership lists in discovery, the test applied to determine whether the lists must be disclosed is essentially the same as that articulated in the above Supreme Court eases. There must be a showing that the identities of the organization’s members are reasonably relevant to the party’s investigation of illegal activity and that the interest in disclosure is sufficiently compelling to outweigh the constitutionally protected interests of the members of the organization. Savola v. Webster, 644 F.2d 743 (8th Cir.1981); Australia/Eastern U.S.A. v. United States, 537 F.Supp. 807, 810 (D.D.C.1982). “[FJorced disclosure of first amendment activities creates a chilling effect which must be balanced against the interests in obtaining the information.” Australia/Eastern U.S.A., 537 F.Supp. at 810. Accordingly, it is the duty of this court to measure the plaintiffs’ need for the information sought against the first amendment rights of Young and other Klan members. See Hastings v. North East Independent School District, 615 F.2d 628 (5th Cir.1980).

The plaintiffs have an exceedingly strong interest in obtaining the membership lists of the Klan and other racist organizations.

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Bluebook (online)
110 F.R.D. 232, 1985 U.S. Dist. LEXIS 15327, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marshall-v-bramer-kywd-1985.