The opinion of the court was delivered by: Decker, Senior District Judge.
MEMORANDUM OPINION AND ORDER
This case concerns the Aurora Parc housing project (Aurora
Parc) in Aurora, Illinois. Plaintiff, Shape of Things to Come,
Inc. (STC), served a subpoena duces tecum on the office of U.S.
Representative Thomas Corcoran (Rep. Corcoran), seeking the
production of all documents in Rep. Corcoran's files which relate
to Aurora Parc. Rep. Corcoran opposes production of some, but not
all, of those documents. The case is before the court on STC's
motion to compel their production.
STC is entitled under Fed.R.Civ.P. 26(b) to discover "any
matter, not privileged, which is relevant to the subject matter
involved in the pending action. . . ." Questions of relevancy and
privilege are usually for the court. E.g. Community Savings and
Loan Assn. v. Federal Home Loan Bank Board, 68 F.R.D. 378, 381
(E.D.Wis. 1975). Securing documents from a member of the U.S.
House of Representatives, however, triggers a different
Rule L of the House of Representatives requires Rep. Corcoran
to notify the Speaker whenever he receives a subpoena "for the
production or disclosure of any documents relating to the
official functions of the House. . . ." House Rule L (Exhibit 2
to Rep. Corcoran's Opposition to Motion to Compel). Rep. Corcoran
notified the Speaker of STC's subpoena by letter. 130 Cong.Rec.H.
11 (daily ed., January 23, 1984). The rule also requires a
determination "whether the issuance of the subpoena or other
judicial order is a proper exercise of the court's jurisdiction,
is material and relevant, and is consistent with the privileges
and rights of the House." Id. at 2. Rep. Corcoran may make this
determination himself or he may seek a ruling from the court, but
he must inform the Speaker before he submits these matters to the
court. Id. He must report the determination, by whomever made, to
the Speaker. Id. Rep. Corcoran must comply with the subpoena if
it satisfies the three conditions, unless the House resolves
Article 1, § 5, cl. 2 of the United States Constitution
empowers the House of Representatives to adopt its rules. The
rules have the force of law, Randolph v. Willis, 220 F. Supp. 355,
358 (S.D.Cal. 1963), and Congressmen must abide by them. Yellin
v. United States, 374 U.S. 109, 114, 83 S.Ct. 1828, 1832, 10
L.Ed.2d 778 (1963). The rules are subject only to constitutional
restrictions. United States v. Ballin, 144 U.S. 1,
5, 12 S.Ct. 507, 509, 36 L.Ed. 321 (1892). STC raises no
constitutional objection to Rule L.
This motion raises questions of relevancy and privilege.
Neither issue is properly before the court. Rep. Corcoran is
empowered to decide whether the material sought from him is
relevant to this case and whether production is consistent with
his rights and privileges as a member of the House. Until he
informs the Speaker and properly seeks a ruling from this court,
the court cannot, consistent with House Rule L, decide these
questions. Cf. Randolph v. Willis, 220 F. Supp. at 359-360 ("[I]t
would be an unwarranted interference with the powers conferred by
the Constitution upon the legislative branch of the government
for any court to presume to dictate [a determination left to a
House Committee under the House rules]."). Rep. Corcoran has
expressly reserved the right to determine whether any of the
material sought is privileged. 130 Cong.Rec.H. 11 (daily ed.,
January 23, 1984); Rep. Corcoran's Supplemental Memorandum in
Opposition to Motion to Compel at 4. He invites the court to
decide the relevancy issue but apparently has not informed the
Speaker of his intention to do so. Neither question is,
therefore, properly before the court.
Due deference to the Rules of the House of Representatives
requires the court to deny STC's motion to compel production at
this time. Rep. Corcoran must follow Rule L and either decide
whether the documents sought are privileged and inform the House
of his determination, or inform the Speaker of his intention to
seek a judicial determination. STC served this subpoena in
January, 1984. Rep. Corcoran has already searched for the
documents and classified them. See Rep. Corcoran's Supplemental
Memorandum in Opposition to Motion to Compel at 2. The court sees
no reason why Rep. Corcoran cannot comply with Rule L promptly.
The court accordingly sets this case for a status hearing on
Thursday, July 12, 1984, at 10:00 o'clock A.M., at which time
counsel for Rep. Corcoran can report his progress to the court.
For the reasons stated above, the court denies plaintiff's
motion to compel production and sets this case for a status
hearing on Thursday, July 12, 1984, at 10:00 A.M.
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