Dickson v. Rucho, 366 NC 332 , 366 N.C. 332 ( 2013 )

MARGARET DICKSON, ALICIA CHISOLM, ETHEL CLARK, MATTHEW A.
McLEAN, MELISSA LEE ROLLIZO, C. DAVID GANTT, VALERIA TRUITT,
ALICE GRAHAM UNDERHILL, ARMIN JANCIS, REBECCA JUDGE, ZETTIE
WILLIAMS, TRACEY BURNS-VANN, LAWRENCE CAMPBELL, ROBINSON O.
EVERETT, JR., LINDA GARROU, HAYES McNEILL, JIM SHAW, SIDNEY E.
DUNSTON, ALMA ADAMS, R. STEVE BOWDEN, JASON EDWARD COLEY,
KARL BERTRAND FIELDS, PAMLYN STUBBS, DON VAUGHAN, BOB
ETHERIDGE, GEORGE GRAHAM, JR., THOMAS M. CHUMLEY, AISHA DEW,
GENEAL GREGORY, VILMA LEAKE, RODNEY W. MOORE, BRENDA MARTIN
STEVENSON, JANE WHITLEY, I.T. (“TIM”) VALENTINE, LOIS WATKINS,
RICHARD JOYNER, MELVIN C. McLAWHORN, RANDALL S. JONES, BOBBY
CHARLES TOWNSEND, ALBERT KIRBY, TERRENCE WILLIAMS, NORMAN C.
CAMP, MARY F. POOLE, STEPHEN T. SMITH, PHILIP A. BADDOUR, and
DOUGLAS A. WILSON v. ROBERT RUCHO, in his official capacity only as the
Chairman of the North Carolina Senate Redistricting Committee; DAVID LEWIS,
in his official capacity only as the Chairman of the North Carolina House of
Representatives Redistricting Committee; NELSON DOLLAR, in his official
capacity only as the Co-Chairman of the North Carolina House of Representatives
Redistricting Committee; JERRY DOCKHAM, in his official capacity only as the Co-
Chairman of the North Carolina House of Representatives Redistricting Committee;
PHILIP E. BERGER, in his official capacity only as the President Pro Tempore of
the North Carolina Senate; THOM TILLIS, in his official capacity only as the
Speaker of the North Carolina House of Representatives; THE STATE BOARD OF
ELECTIONS; and THE STATE OF NORTH CAROLINA
NORTH CAROLINA STATE CONFERENCE OF BRANCHES OF THE NAACP,
LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DEMOCRACY NORTH
CAROLINA, NORTH CAROLINA A. PHILIP RANDOLPH INSTITUTE, REVA
McNAIR, MATTHEW DAVIS, TRESSIE STANTON, ANNE WILSON, SHARON
HIGHTOWER, KAY BRANDON, GOLDIE WELLS, GRAY NEWMAN, YVONNE
STAFFORD, ROBERT DAWKINS, SARA STOHLER, HUGH STOHLER, OCTAVIA
RAINEY, CHARLES HODGE, MARSHALL HARDY, MARTHA GARDENHIGHT,
BEN TAYLOR, KEITH RIVERS, ROMALLUS O. MURPHY, CARL WHITE, ROSA
BRODIE, HERMAN LEWIS, CLARENCE ALBERT, JR., EVESTER BAILEY,
ALBERT BROWN, BENJAMIN LANIER, GILBERT VAUGHN, AVIE LESTER,
THEODORE MUCHITENI, WILLIAM HOBBS, JIMMIE RAY HAWKINS,
HORACE P. BULLOCK, ROBERTA WADDLE, CHRISTINA DAVIS-McCOY,
JAMES OLIVER WILLIAMS, MARGARET SPEED, LARRY LAVERNE BROOKS,
CAROLYN S. ALLEN, WALTER ROGERS, SR., SHAWN MEACHEM, MARY
GREEN BONAPARTE, SAMUEL LOVE, COURTNEY PATTERSON, WILLIE O.
SINCLAIR, CARDES HENRY BROWN, JR., and JANE STEPHENS v. THE
STATE OF NORTH CAROLINA; THE NORTH CAROLINA STATE BOARD OF
ELECTIONS; THOM TILLIS, in his official capacity as Speaker of the North
Carolina House of Representatives; and PHILIP E. BERGER, in his official capacity
as President Pro Tempore of the North Carolina Senate
DICKSON V. RUCHO
Opinion of the Court
No. 201PA12
(Filed 25 January 2013)
Evidence — attorney-client privilege — redistricting — no waiver by
statute
Section 120-133 of the North Carolina General Statutes does not waive
the right of legislators to assert the attorney-client privilege or work-product
doctrine in litigation concerning redistricting where the statute is silent on
the issue. Any waiver of such well-established legal principles must be clear
and unambiguous and this statute in no way mentions, let alone explicitly
waives, the attorney-client privilege or work-product doctrine. The phrase
“notwithstanding any other provision of law” in the statute lacks a contextual
definition; the ordinary meaning of “provision,” determined by reference to a
Black's Law Dictionary, refers to a statue.
Justice BEASLEY did not participate in the consideration or decision of this
case.
Justice HUDSON dissenting.
Appeal pursuant to N.C.G.S. § 120-2.5 from an order entered on 20 April
2012 by a three-judge panel of the Superior Court, Wake County appointed by the
Chief Justice pursuant to N.C.G.S. § 1-267.1, allowing plaintiffs’ motion to compel
production of certain documents. On 11 May 2012, the Supreme Court of North
Carolina issued an order expediting hearing of the appeal. Heard in the Supreme
Court on 10 July 2012.
Poyner Spruill LLP, by Edwin M. Speas, Jr., for Dickson plaintiff-appellees;
and Edwin M. Speas, Jr., Southern Coalition for Social Justice by Anita S.
Earls, and Ferguson Stein Chambers Gresham & Sumter, P.A. by Adam
Stein, for NC NAACP plaintiff-appellees.
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Opinion of the Court
Ogletree, Deakins, Nash, Smoak & Stewart, P.C., by Thomas A. Farr and
Phillip J. Strach, for legislative defendant-appellants; and Roy Cooper,
Attorney General, by Alexander McC. Peters and Susan K. Nichols, Special
Deputy Attorneys General, for all defendant-appellants.
Bussian Law Firm, PLLC, by John A. Bussian, for North Carolina Press
Association, Inc.; and Brooks, Pierce, McLendon, Humphrey & Leonard,
L.L.P., by Mark J. Prak, for North Carolina Association of Broadcasters, Inc.,
amici curiae.
Stevens Martin Vaughn & Tadych, PLLC, by Hugh Stevens, for The North
Carolina Open Government Coalition, Inc., amicus curiae.
JACKSON, Justice.
In this appeal we consider whether section 120-133 of the North Carolina
General Statutes waives the right of legislators to assert the attorney-client
privilege or work-product doctrine in litigation concerning redistricting. Because
any waiver of such well-established legal principles must be clear and
unambiguous, we conclude that the statute’s silence on such waivers renders the
statute ambiguous as to this issue. After further analysis, we conclude that the
General Assembly did not intend to waive either the attorney-client privilege or
work-product doctrine when it enacted section 120-133. While we acknowledge that
the General Assembly may choose to waive its legal rights, we are unwilling to infer
such a sweeping waiver unless the General Assembly leaves no doubt about its
intentions. Accordingly, we affirm in part and reverse in part the order of the three-
judge panel for the reasons stated below.
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Opinion of the Court
On 27 and 28 July 2011, the North Carolina General Assembly enacted new
redistricting plans for the North Carolina House of Representatives, North Carolina
Senate, and United States House of Representatives pursuant to Article II, Sections
3 and 5 of the North Carolina Constitution and Title 2, sections 2a and 2c of the
United States Code. During the legislative process leading up to and following
enactment, the defendant members of the General Assembly, including Senate
President Pro Tempore Philip Berger, House Speaker Thom Tillis, Senate
Redistricting Chair Robert Rucho, and House Redistricting Chair David Lewis,
received legal advice from lawyers employed by the Attorney General of North
Carolina and two private law firms, Ogletree, Deakins, Nash, Smoak & Stewart,
P.C. (“Ogletree Deakins”) and Jones Day. Like the lawyers who are employed by
the Attorney General, the Ogletree Deakins and Jones Day attorneys were paid
with State funds.
On 2 September 2011, the Attorney General filed an action to preclear the
redistricting plans in the United States District Court for the District of Columbia
pursuant to Section five of the Voting Rights Act of 1965, North Carolina v. Holder,
No. 1:11-CV-01592 (D.D.C. Sept. 2, 2011), and simultaneously sought
administrative preclearance from the United States Attorney General. The
redistricting plans were precleared administratively by the United States Attorney
General on 1 November 2011. As a result, the federal district court dismissed as
moot the State’s preclearance action on 8 November 2011.
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Opinion of the Court
On 1 November 2011, the General Assembly also alerted the United States
Department of Justice that an error in the computer software program used to draw
the redistricting plans had caused certain areas of the state to be omitted from the
original plans. The General Assembly passed legislation on 7 November 2011 to
cure this technical defect. The United States Attorney General precleared the
revised plans on 8 December 2011.
Meanwhile, plaintiffs, the North Carolina State Conference of Branches of
the NAACP, League of Women Voters of North Carolina, Democracy North
Carolina, North Carolina A. Philip Randolph Institute, and individual registered
voters, filed separate suits on 3 and 4 November 2011, challenging the
constitutionality of the redistricting plans and seeking a preliminary injunction to
prevent defendants from conducting elections using the redistricting plans. In
accordance with section 1-267.1 of the North Carolina General Statutes, the Chief
Justice appointed a three-judge panel to hear both actions.
On 19 December 2011, the panel consolidated the cases. On the same day
defendants filed their answers and moved to dismiss the suit. Thereafter, on 20
January 2012, the panel entered an order denying plaintiffs’ motion for a
preliminary injunction. The panel also entered an order on 6 February 2012
allowing in part and denying in part defendants’ motion to dismiss.
Most relevant to the issues before us, on 8 and 17 November 2011, plaintiffs
served requests for production of documents on defendants pursuant to Rule 34 of
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Opinion of the Court
the North Carolina Rules of Civil Procedure. These requests sought production of a
variety of communications concerning enactment of the redistricting plans. After
receiving an extension of time to respond, on 13 January 2012, defendants served
written responses to plaintiffs’ discovery requests, in which they objected to the
production of certain categories of documents based upon the attorney-client
privilege, legislative privilege, or work-product doctrine. On 24 February 2012,
defendants amended their objections, providing additional information regarding
their privilege claims. Specifically, defendants identified the following
communications as privileged:
1. Emails to and from Tom Farr, Phil Strach, Alec
Peters, and Tiare Smiley to or from Bob Rucho,
David Lewis, Thom Tillis, Phil Berger or their
legislative staff members[1] acting on their behalf or
at their direction regarding legal advice on the
impact of census data on redistricting plans.
2. Emails to and from Tom Farr, Phil Strach, Alec
Peters, and Tiare Smiley to or from Bob Rucho,
David Lewis, Thom Tillis, Phil Berger or their
legislative staff members acting on their behalf or
at their direction regarding legal requirements for
a fair process under section 5 of the Voting Rights
Act.
3. Emails to and from Tom Farr, Phil Strach, Alec
Peters, and Tiare Smiley to or from Bob Rucho,
David Lewis, Nelson Dollar, Thom Tillis, Phil
Defendants also stated that the term “legislative staff members” was limited to: (1)
1
Jason Kay, General Counsel for Representative Tillis; (2) Tracy Kimbrell, General Counsel
for Senator Berger; (3) Jim Blaine, Chief of Staff for Senator Berger; and (4) Brent
Woodcox, redistricting counsel for Senators Berger and Rucho.
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Opinion of the Court
Berger or their legislative staff members acting on
their behalf or at their direction regarding legal
advice in preparation for meetings of the House and
Senate Redistricting Committees.
4. Emails to and from Tom Farr, Phil Strach, Michael
Carvin, Michael McGinley, Alec Peters, and Tiare
Smiley to or from Bob Rucho, David Lewis, Nelson
Dollar, Thom Tillis, Phil Berger or their legislative
staff members acting on their behalf or at their
direction regarding legal requirements for
legislative and congressional districts.
5. Emails to and from Tom Farr, Phil Strach, Michael
Carvin, Michael McGinley, Alec Peters, and Tiare
Smiley to or from Bob Rucho, David Lewis, Nelson
Dollar, Thom Tillis, Phil Berger or their legislative
staff members acting on their behalf or at their
direction regarding legal advice regarding any
public statements about redistricting or proposed
redistricting plans.
6. Emails to and from Tom Farr, Phil Strach, Michael
Carvin, Michael McGinley, Alec Peters, and Tiare
Smiley to or from Bob Rucho, David Lewis, Thom
Tillis, Phil Berger or their legislative staff members
acting on their behalf or at their direction
regarding legal advice on the preclearance process
for redistricting plans.
7. Emails to and from Tom Farr, Phil Strach, Michael
Carvin, Michael McGinley, Alec Peters, and Tiare
Smiley to or from Bob Rucho, David Lewis, Nelson
Dollar, Thom Tillis, Phil Berger or their legislative
staff members acting on their behalf or at their
direction regarding legal advice for the redistricting
session of the General Assembly.
On 29 February 2012, plaintiffs filed a motion to compel discovery, seeking
production of, among other things, “all communications between legislators and core
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Opinion of the Court
staff and all lawyers or consultants paid with state funds, and unredacted invoices
and time sheets.” In support of their motion, plaintiffs cited section 120-133 of the
North Carolina General Statutes, which reads:
Notwithstanding any other provision of law, all
drafting and information requests to legislative employees
and documents prepared by legislative employees for
legislators concerning redistricting the North Carolina
General Assembly or the Congressional Districts are no
longer confidential and become public records upon the
act establishing the relevant district plan becoming law.
N.C.G.S. § 120-133 (2011).2 Plaintiffs argued that section 120-133 constitutes a
“broad and unambiguous” waiver by the General Assembly of “any privileges”
relating to redistricting communications once the relevant act becomes law.
Plaintiffs contended that section 120-133 compelled the production of documents
prepared by defendants’ counsel, including lawyers from the Attorney General’s
Office and private firms.
On 11 April 2012, defendants responded to plaintiffs’ motion, denying that
section 120-133 waives, or even addresses, the common law attorney-client privilege
or work-product doctrine or that the statute applies to the Attorney General’s
Office. Defendants’ response included an engagement letter executed in 1991 by
2The term “legislative employee” is defined to include “consultants and counsel to
members and committees of either house of the General Assembly or of legislative
commissions who are paid by State funds.” N.C.G.S. § 120-129(2) (2011). However, the
term “legislative employee” excludes “members of the Council of State.” Id. In addition, the
term “document[s]” is defined to include “all records, papers, letters, maps . . . or other
documentary material regardless of physical form or characteristics.” N.C.G.S. § 120-129(1)
(2011).
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Daniel T. Blue, Jr., who then was serving as Speaker of the North Carolina House
of Representatives, and outside counsel James E. Ferguson, II of Ferguson, Stein,
Watt, Wallas, Adkins & Gresham, P.A (“Ferguson Stein”). In the letter, Ferguson
Stein agreed to provide legal advice to the North Carolina House of Representatives
concerning redistricting. The letter stated that “[b]ecause communications between
the firm and members of the House are privileged attorney-client communications,
N.C.G.S. §[ ]120-133 shall not apply to communications, including written
communications, between any attorneys in the firm and any member of the North
Carolina House of Representatives.”
On 20 April 2012, the three-judge panel entered a written order allowing
plaintiffs’ motion to compel. Most significantly, the panel concluded:
20. Although certain communications by and
between members of the General Assembly and legal
counsel pertaining to redistricting plans may have
originally been cloaked with privilege, the General
Assembly, by enacting N.C. Gen. Stat. § 120-133,
expressly waived any and all such privileges once those
redistricting plans were enacted into law.
21. This waiver is clear and unambiguous; it is
applicable “notwithstanding any other provision of law.”
The waiver applies regardless of whether the privilege is
claimed under a theory of attorney-client privilege, the
work-product doctrine or legislative privilege.
Accordingly, the panel stated that “[a]ll drafting and information requests . . . to
legislative employees” and “[d]ocuments . . . prepared by legislative employees”
concerning the redistricting plans were “ ‘no longer confidential’ ” and became “
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Opinion of the Court
‘public record’ ” when the redistricting plans were enacted. (underlining omitted).
The panel concluded that counsel from Ogletree Deakins, Jones Day, and any
legislative staff attorneys “were ‘legislative employees’ ” because they “served as
‘consultants and counsel’ ” to members of the General Assembly and were paid with
State funds. The panel stated that this waiver of confidentiality “d[id] not extend to
documents or communications to or from attorneys who were . . . members of the
North Carolina Attorney General’s staff because the Attorney General, [as] a
member of the Council of State, is not a ‘legislative employee’ and neither are his
staff attorneys.”
The panel also concluded that any documents prepared “solely in connection
with the redistricting litigation” remain confidential pursuant to the attorney-client
privilege or work-product doctrine; however, the panel did not identify the specific
documents to which the attorney-client privilege or work-product doctrine would
apply. Instead, it invited the parties to negotiate “a reasonable means of identifying
categories of documents that ought to remain confidential.”
Defendants appealed to this Court as of right pursuant to section 120-2.5 of
the North Carolina General Statutes. See Pender Cnty. v. Bartlett, 361 N.C. 491,
497, 649 S.E.2d 364, 368 (2007) (interpreting “N.C.G.S. § 120-2.5 to mean that any
appeal from a three-judge panel dealing with apportionment or redistricting
pursuant to N.C.G.S. § 1-267.1 is direct to” the Supreme Court of North Carolina),
aff’d sub. nom. Bartlett v. Strickland, 556 U.S. 1, 173 L. Ed. 2d 173 (2009).
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Defendants also asked the three-judge panel to stay its discovery order during the
pendency of this appeal. The panel issued a temporary stay, but set an expiration
date of 11 May 2012. Consequently, defendants filed a motion for temporary stay
and petition for writ of supersedeas with this Court on 4 May 2012. On 11 May
2012, we allowed defendants’ motion for temporary stay and petition for writ of
supersedeas and expedited the hearing of this appeal.
Before this Court plaintiffs argue that they are entitled to all pre-enactment
communications and documents relating to redistricting pursuant to section 120-
133 of the North Carolina General Statutes. Plaintiffs contend that section 120-133
is unambiguous and by its plain language waives the right of legislators to assert
the attorney-client privilege or work-product doctrine for communications and
documents made during redistricting. In contrast, defendants argue that, strictly
construed, section 120-133 only operates as a narrow waiver of legislative
confidentiality that is codified in Article 17, Chapter 120 of the North Carolina
General Statutes. Defendants therefore contend that section 120-133 does not
waive their right to invoke the attorney-client privilege or work-product doctrine for
communications and documents made before enactment of the redistricting plans.
The parties agree that the attorney-client privilege and work-product doctrine apply
to relevant post-enactment communications and documents.
This matter presents a question of statutory interpretation, which we review
de novo. In re Vogler Realty, Inc., __ N.C. __, __, 722 S.E.2d 459, 462 (2012). “The
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primary rule of construction of a statute is to ascertain the intent of the legislature
and to carry out such intention to the fullest extent.” Burgess v. Your House of
Raleigh, Inc., 326 N.C. 205, 209, 388 S.E.2d 134, 137 (1990). When there is no
reference whatsoever to the attorney-client privilege in the statute, a clear and
unambiguous waiver is absent, meaning the common law right to assert the
privilege prevails. See N.C.G.S. § 4-1 (2011) (“All such parts of the common law as
were heretofore in force and use within this State . . . and which has not been
otherwise provided for in whole or in part, not abrogated, repealed or become
obsolete, are hereby declared to be in full force within this State.”). After carefully
reviewing the parties’ arguments, we conclude that section 120-133 cannot
reasonably be construed to waive these common law doctrines because the section
in no way mentions, let alone explicitly waives, the attorney-client privilege or
work-product doctrine.
“The attorney-client privilege is one of the oldest recognized privileges for
confidential communications. The privilege is intended to encourage full and frank
communication between attorneys and their clients and thereby promote broader
public interests in the observance of law and the administration of justice.” Swidler
& Berlin v. United States, 524 U.S. 399, 403, 141 L. Ed. 2d 379, 384 (1998) (citations
and quotation marks omitted). As such, “[t]he public’s interest in protecting the
attorney-client privilege is no trivial consideration . . . . The privilege has its
foundation in the common law and can be traced back to the sixteenth century.” In
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re Miller, 357 N.C. 316, 328, 584 S.E.2d 772, 782 (2003) (citations omitted).
Although the privilege “is well-grounded in the jurisprudence of this State,” id.; see
also N.C.G.S. § 4-1, we emphasize that the privilege “has not been statutorily
codified,” in re Miller, 357 N.C. at 329, 584 S.E.2d at 783.
“[W]hen the relationship of attorney and client exists, all confidential
communications made by the client to his attorney on the faith of such relationship
are privileged and may not be disclosed.” Id. at 328, 584 S.E.2d at 782 (citations
and quotation marks omitted). Given that the privilege advances complete and
frank communications, it “encourag[es] clients to make the fullest disclosure to their
attorneys [and] enables the latter to act more effectively, justly and expeditiously.”
Id. at 329, 584 S.E.2d at 782 (citations and quotation marks omitted).
We are unaware of—and neither plaintiffs nor defendants have identified—
any decisions by this Court fully abrogating the attorney-client privilege in any
context as plaintiffs advocate here; however, the General Assembly itself has
abrogated the attorney-client privilege on three occasions. In each instance the
waiver has been clear and unambiguous. See N.C.G.S. § 15A-1415(e) (2011) (stating
that a criminal defendant who alleges ineffective assistance of prior counsel “shall
be deemed to waive the attorney-client privilege” to the extent that prior counsel
“reasonably believes” revealing these privileged communications is “necessary to
defend against the allegations”); id. § 78C-97(c) (2011) (stating that a student-
athlete who enters into a representation agreement with an agent “will be deemed
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to waive the attorney-client privilege” regarding certain records retained by the
agent); id. § 127A-62(h)(3) (2011) (stating that a defendant who alleges ineffective
assistance of prior counsel in court-martial proceedings “shall be deemed to waive
the attorney-client privilege” to the extent that prior counsel reasonably believes
revealing these privileged communications is “necessary to defend against the
allegations”).3
The text of section 120-133 includes no such clear and unambiguous waiver of
the attorney-client privilege or work-product doctrine. Instead, section 120-133
states only:
Notwithstanding any other provision of law, all
drafting and information requests to legislative employees
and documents prepared by legislative employees for
legislators concerning redistricting the North Carolina
General Assembly or the Congressional Districts are no
longer confidential and become public records upon the
act establishing the relevant district plan becoming law.
Id. § 120-133. There is no reference in this section to either the attorney-client
privilege or work-product doctrine. “[I]t is always presumed that the Legislature
3 In two additional instances the General Assembly has addressed the waiver of the
attorney-client privilege more obliquely but nevertheless without ambiguity. In section 7A-
450(d) the privilege is waived for indigent persons to the extent that if the “person . . .
becomes financially able to secure legal representation and provide other necessary
expenses of representation, he must inform the counsel appointed by the court to represent
him of that fact . . . . and counsel must promptly inform the court of that information.”
N.C.G.S. § 7A-450(d) (2011). Such information is specifically excluded by the statute from
the protection of the privilege. Id. In addition, section 44-50.1(a) mandates that “[if] the
person distributing settlement or judgment proceeds [from a personal injury action] is an
attorney, the accounting [of disbursements] required by . . . section [44-50.1] is not a breach
of the attorney-client privilege.” N.C.G.S. § 44-50.1(a) (2011).
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acted with full knowledge of prior and existing law.” Ridge Cmty. Investors, Inc. v.
Berry, 293 N.C. 688, 695, 239 S.E.2d 566, 570 (1977). Necessarily, this presumption
must include the common law. See N.C.G.S. § 4-1. In contrast, the General
Assembly has set a clear limitation on the attorney-client privilege in the Public
Records Act. N.C.G.S. § 132-1.1(a) (2011). There the legislature placed a three-year
restriction on the length of time that a confidential communication between an
attorney and a public client—such as “any public board, council, commission or
other governmental body of the State or of any county, municipality or other
political subdivision or unit of government”—may remain unavailable for public
inspection. Id.
Plaintiffs argue that the phrase “[n]otwithstanding any other provision of
law” in section 120-133 waives “any privileges” regarding redistricting legislation.
Nonetheless, we begin by observing that the statute does not define the term
“provision” in Article 17. “In the absence of a contextual definition, courts may look
to dictionaries to determine the ordinary meaning of words within a statute.”
Perkins v. Ark. Trucking Servs., Inc., 351 N.C. 634, 638, 528 S.E.2d 902, 904 (2000).
Black’s Law Dictionary defines “provision” as “[a] clause in a statute, contract, or
other legal instrument.” Black’s Law Dictionary 1345 (9th ed. 2009) (emphasis
added). This definition suggests that the General Assembly’s use of the word
“provision” was meant to refer only to other statutory clauses and not to common
law doctrines such as the attorney-client privilege and work-product doctrine.
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Plaintiffs’ counsel conceded as much during oral argument. This interpretation is
bolstered by the fact that the General Assembly repeatedly has demonstrated that
it knows how to be explicit when it intends to repeal or amend the common law.
See, e.g., N.C.G.S. § 48A-1 (2011) (“The common-law definition of minor insofar as it
pertains to the age of the minor is hereby repealed and abrogated.”); id. § 50-6
(2011) (“Notwithstanding the provisions of G.S. 50-11, or of the common law, a
divorce under this section shall not affect the rights of a dependent spouse with
respect to alimony which have been asserted in the action or any other pending
action.”); id § 160A-626(b) (2011) (“The Authority may contract with any railroad to
allocate financial responsibility for passenger rail services claims, . . .
notwithstanding any other statutory, common law, public policy, or other
prohibition against same . . . .”); see also id. § 36C-8-816.1(g) (2011) (recognizing
that the phrase “provision of law” does not refer to the common law by stating:
“Nothing in this section shall be construed to abridge the right of any trustee who
has a power to appoint property in further trust that arises under the terms of the
original trust or under any other section of this Chapter or under another provision
of law or under common law.”).
We read section 120-133 in the context of the entire article in which it
appears. See In re D.S., 364 N.C. 184, 187, 694 S.E.2d 758, 760 (2010). Doing so
militates against the conclusion that the General Assembly intended to waive its
attorney-client privilege and work-product doctrine. As we have noted in other
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cases, the title of an act may be an indication of legislative intent. See, e.g., State v.
Flowers, 318 N.C. 208, 215, 347 S.E.2d 773, 778 (1986) (relying on the title of
N.C.G.S. § 15A-136 to support the Court’s conclusion that the statute addresses a
matter of venue). Section 120-133 appears in Chapter 120, Article 17 of the General
Statutes and is entitled “Confidentiality of Legislative Communications.” In light of
this title, we may reasonably infer that Article 17 was intended to govern a specific
class of communications. Indeed, a North Carolina House of Representatives
Resolution introduced in 1983, shortly before Article 17 was enacted, requested a
Legislative Research Commission study pertaining to confidentiality of “legislative
communications.” See H.R. Res. 1461, 1983 Gen. Assemb., Reg. Sess. (N.C. 1983).
As such, Article 17 governs an important aspect of the General Assembly’s internal
operations. In contrast to the Public Records Act, which was designed to disclose
documentary material of State government agencies or subdivisions to facilitate
public inspection and examination, Article 17 was enacted to protect legislative
communications from disclosure so as to preserve the integrity of the legislative
process. Compare N.C.G.S. § 132-1(b) (2011) (stating that “public records and
public information . . . are the property of the people” and “it is the policy of this
State that the people may obtain copies of their public records and public
information”) with id. §§ 120-131, -131.1 (2011) (emphasizing that specified
legislative communications “are confidential” or “shall be kept confidential”). In
fact, according to a 1984 Legislative Research Commission report, Article 17 was
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Opinion of the Court
created to address concerns that the General Assembly’s common law legislative
privilege could be eroded by an expansive reading of the Public Records Act. See
N.C. Legislative Research Comm’n, Confidentiality of Legislative Communications,
1983 Gen. Assemb. (1984 Reg. Sess.) 2 (June 7, 1984) (“[S]ince its enactment in
1935, the public records law had been read much more broadly than originally
intended.”). We also note that the General Assembly’s specific use of the term
“confidential” thirteen times throughout Article 17, see, e.g., N.C.G.S. § 120-130(a), -
131(a), -131.1(a), (a1) (2011) (stating, for example, “is confidential,” “are
confidential,” and “shall be kept confidential”), demonstrates that Article 17 was
enacted to shield legislative communications from disclosure.
Operationally, Article 17 places a veil of confidentiality over several specific
legislative communications: (1) drafting and information requests made to
legislative employees by legislators, N.C.G.S. § 120-130 (2011); (2) documents
produced by legislative employees upon the request of legislators, id. § 120-131
(2011); and (3) requests from legislative employees to employees in other State
agencies for assistance in the preparation of fiscal notes and evaluation reports, id.
§ 120-131.1 (2011). Article 17 also prohibits legislative employees from disclosing
confidential information obtained in the legislative context. Id. § 120-132 (2011).
Moreover, Article 17 expressly states that these legislative communications are not
public records pursuant to the Public Records Act. See id. §§ 120-130(d), -131(b), -
131.1(a1).
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Section 120-133 provides a narrow exception to the protections generally
established in Article 17 to help ensure the State’s compliance with the
requirements of the Voting Rights Act. See 42 U.S.C. § 1973c (2012) (outlining the
preclearance procedure); 28 C.F.R. § 51.27 (2012) (listing the “[r]equired contents”
of a “submitted change affecting voting”); id. § 51.28 (2012) (listing supplemental
contents for submissions). In effect, section 120-133 permits “all drafting and
information requests to legislative employees and documents prepared by
legislative employees for legislators concerning redistricting” to become “public
records” for this limited purpose. N.C.G.S. § 120-133. We observe that, in contrast
to the other sections of Article 17, section 120-133 makes no reference to the Public
Records Act. We presume that the General Assembly “carefully chose each word
used” in drafting the legislation. N.C. Dep’t of Corr. v. N.C. Med. Bd., 363 N.C. 189,
201, 675 S.E.2d 641, 649 (2009). The General Assembly could have referenced the
Public Records Act in section 120-133, but chose not to do so. This omission
demonstrates that the General Assembly intended for its redistricting
communications to be made public in accordance with the narrow scope of section
120-133, rather than the broad scope of the Public Records Act. Given the limited
purpose of section 120-133 as read within the full context of Article 17, we can
discern no clear legislative intent by the General Assembly to waive the common
law attorney-client privilege or work-product doctrine.
As a part of our analysis of section 120-133, we must also emphasize that this
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Opinion of the Court
Court operates within a “tripartite system of government.” Bacon v. Lee, 353 N.C.
696, 712, 549 S.E.2d 840, 851, cert. denied, 533 U.S. 975, 150 L. Ed. 2d 804 (2001).
“The legislative, executive, and supreme judicial powers of the State government
shall be forever separate and distinct from each other.” N.C. Const. art. I, § 6.
“[T]he principal function of the separation of powers[ ] . . . is to maintain the
tripartite structure of the . . . Government—and thereby protect individual liberty—
by providing a safeguard against the encroachment or aggrandizement of one
branch at the expense of the other.” Bacon, 353 N.C. at 715, 549 S.E.2d at 853(alterations in original) (quotation marks omitted). As such, “the fundamental law
guarantees to the Legislature the inherent right to discharge its functions and to
regulate its internal concerns in accordance with law without interference by any
other department of the government.” Person v. Bd. of State Tax Comm’rs, 184 N.C.
499, 503, 115 S.E. 336, 339 (1922). “All power which is not expressly limited by the
people in our State Constitution remains with the people, and an act of the people
through their representatives in the legislature is valid unless prohibited by that
Constitution.” State ex rel. Martin v. Preston, 325 N.C. 438, 448-49, 385 S.E.2d 473,
478 (1989). The General Assembly can waive its common law rights in addition to
its statutory rights, and whether it chooses to do so is not within the purview of this
Court. Nevertheless, we will not lightly assume such a waiver by a coordinate
branch of government. Therefore, without a clear and unambiguous statement by
the General Assembly that it intends to waive its attorney-client privilege or work-
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Opinion of the Court
product doctrine, we are compelled to exercise judicial restraint and defer to the
General Assembly’s judgment regarding the scope of its legislative confidentiality.
Such a clear and unambiguous statement is notably absent from section 120-133.
Accordingly, we must conclude that the General Assembly did not intend to waive
the attorney-client privilege or work-product doctrine with respect to redistricting
litigation when it enacted section 120-133.
For the foregoing reasons, we reverse the three-judge panel’s conclusion of
law that the General Assembly waived the attorney-client privilege and work-
product doctrine for pre-enactment communications and documents through section
120-133; however, we affirm the panel’s conclusion that the attorney-client privilege
and work-product doctrine apply to relevant post-enactment communications and
documents. This case is remanded to the three-judge panel for additional
proceedings consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; and REMANDED.
Justice BEASLEY did not participate in the consideration or decision of this
case.
Justice HUDSON dissenting.
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DICKSON V. RUCHO
HUDSON, J., dissenting
Because I am concerned that in its opinion the majority has abandoned the
principle that confidentiality is the basis for attorney-client privilege, I respectfully
dissent. While the majority’s extensive analysis of the history and purpose of the
attorney-client privilege and Article 17 is interesting, it fails to address the
fundamental premise that the attorney-client privilege applies only to confidential
communications. In N.C.G.S. § 120-133, the General Assembly has explicitly
stripped confidentiality from redistricting communications upon enactment of the
redistricting law. For many years, our law has established that without
confidentiality, no attorney-client privilege can apply.
It is well established that the attorney-client privilege “protects confidential
communications made by a client to his attorney.” State v. Fair, 354 N.C. 131, 168,
557 S.E.2d 500, 525 (2001) (emphasis added) (citation omitted), cert. denied, 535
U.S. 1114, 122 S. Ct. 2332 (2002). Importantly, “the attorney-client privilege covers
only confidential communications.” State v. Brown, 327 N.C. 1, 20, 394 S.E.2d 434,
446 (1990) (emphasis added) (citation omitted). Even communications between
attorney and client made in public or in front of others can lose their confidential
nature and thus the protection of the privilege. See State v. Van Landingham, 283
N.C. 589, 602, 197 S.E.2d 539, 547 (1973). Confidentiality is a prerequisite to
application of the attorney-client privilege—information that is not confidential
simply is not subject to the privilege.
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HUDSON, J., dissenting
Defendants seek to protect much of their legislative redistricting work from
public scrutiny under the cloak of attorney-client privilege; however, the relevant
statutory language could not be clearer in indicating that the privilege is
inapplicable here, making waiver irrelevant. The pertinent language of the statute
reads: “Notwithstanding any other provision of law, all drafting and information
requests to legislative employees and documents prepared by legislative employees
for legislators concerning redistricting . . . are no longer confidential and become
public records upon the act establishing the relevant district plan becoming law.”
N.C.G.S. § 120-133 (2011) (emphasis added).
There is nothing unclear or ambiguous about the statutory phrase “are no
longer confidential.” This Court has long held that “when the language of a statute
is clear and unambiguous, there is no room for judicial construction, and the courts
must give it its plain and definite meaning.” Lanvale Props., LLC v. Cnty. of
Cabarrus, ___ N.C. ___, ___, 731 S.E.2d 800, 809-10 (2012) (citations and quotation
marks omitted). The unequivocal statutory language here can be summed up quite
simply: as of 7 November 2011, the dates that this redistricting plan finally became
law, all prior “drafting and information requests” and “documents” concerning
redistricting ceased to be confidential. Therefore, these requests and documents
cannot be covered by the attorney-client privilege, which applies only to confidential
communications. This case does not concern a broad waiver of various privileges—
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HUDSON, J., dissenting
the nonconfidential communications in question are simply beyond the protection of
the attorney-client privilege, even if they once were protected.
The majority spends its entire opinion in a confusing and unnecessary
attempt to prove a negative—that the phrase “attorney-client privilege” does not
appear in the text of the statute and therefore, the privilege cannot be considered
waived or abrogated thereby. Meanwhile, the majority never addresses, let alone
explains, how communications that are “no longer confidential” (a phrase that
actually is in the statutory text) can be covered by a common law privilege that has
never applied to nonconfidential communications. The only way to reach this
conclusion is by suggesting that the word “confidential” in the statute means
something other than “confidential.” And as the majority points out, we presume
that the legislature “carefully chose each word used,” N.C. Dep’t of Corr. v. N.C.
Med. Bd., 363 N.C. 189, 201, 675 S.E.2d 641, 649 (2009), and “that the Legislature
acted with full knowledge of prior and existing law,” Ridge Cmty. Investors, Inc. v.
Berry, 293 N.C. 688, 695, 239 S.E.2d 566, 570 (1977). Therefore, we must presume
that the General Assembly deliberately used the words “are no longer confidential”
with full knowledge that a requisite element of the common law attorney-client
privilege is that the communications are, and remain, confidential.4
4 If, as the majority suggests, section 120-133 was written as a “narrow exception”
solely intended to “ensure compliance with the requirements of the Voting Rights Act,”
surely the General Assembly could and would have said so. Courts “are without power to
interpolate, or superimpose, provisions and limitations not contained [in the statute].”
State v. Davis, 364 N.C. 297, 302, 698 S.E.2d 65, 68 (2010) (citations omitted).
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DICKSON V. RUCHO
HUDSON, J., dissenting
Even the authorities cited by the majority repeatedly and explicitly refer to
confidentiality as the basis for this privilege. See Swidler & Berlin v. United States,
524 U.S. 399, 403, 118 S. Ct. 2081, 2084 (1998) (noting that “[t]he attorney-client
privilege is one of the oldest recognized privileges for confidential communications”);
In re Miller, 357 N.C. 316, 328, 584 S.E.2d 772, 782 (2003) (stating that “this
protection for confidential communications is one of the oldest and most revered in
law”); N.C.G.S. §§ 120-129 to -139 (2011) (titled “Confidentiality of Legislative
Communications”); N.C.G.S. § 132-1.1(a) (2011) (exempting certain “Confidential
Communications” from the definition of “public records” for three years).
In this opinion the majority has either repudiated the long-standing rule that
only confidential communications are entitled to the protection of the attorney-
client privilege, which is inconsistent with all prior authority; or, it has rewritten
N.C.G.S. § 120-133 to say, instead of “are no longer confidential,” that redistricting
communications “continue to be confidential,” which is inconsistent with our role as
a reviewing court rather than a legislative body. As a result, the majority has
unnecessarily muddled the law in this area to reach its result, and made any future
cases in this area of law unpredictable.
Because I conclude that the attorney-client privilege does not apply here, I
find it necessary to briefly analyze what the statute renders nonconfidential—
“drafting and information requests” and “documents” “concerning redistricting.”
N.C.G.S. § 120-133. While the statute does not define “drafting and information
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HUDSON, J., dissenting
requests,” it does provide a very specific and quite broad definition of “documents.”
For the purposes of this statute, “document” means “all records, papers, letters,
maps, books, photographs, films, sound recordings, magnetic or other tapes,
electronic data-processing records, artifacts, or other documentary material
regardless of physical form or characteristics.” Id. § 120-129(1) (2011). While the
statute does not explicitly use the term “e-mail,” I conclude that this statutory
definition that includes “letters . . . regardless of physical form or characteristics”
necessarily includes electronic mail, which is what plaintiffs seek to discover here.
Moreover, the statute expressly applies to outside counsel for members of the
General Assembly. The definition of “[l]egislative employee” expressly includes
“counsel to members and committees of either house of the General Assembly . . .
who are paid by State funds.” Id. § 120-129(2) (2011).
In sum, the plain and unambiguous terms of the statute provide that all
documents (including e-mails) concerning redistricting, even those between
legislators and outside counsel, ceased to be confidential upon final enactment of
the law on 7 November 2011. Because N.C.G.S. § 120-133 renders these
communications “no longer confidential” upon enactment of the districts (and
because this litigation commenced after enactment of the law), the attorney-client
privilege cannot apply.
While the majority offers no analysis of the work-product doctrine, I see no
reason to believe that N.C.G.S. § 120-133 has any effect on the application of that
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HUDSON, J., dissenting
doctrine here because work-product doctrine is not premised upon the
confidentiality of communications. Work-product doctrine is “designed to protect
the mental processes of the attorney,” specifically his “impressions, opinions, and
conclusions or his legal theories and strategies.” State v. Hardy, 293 N.C. 105, 126,
235 S.E.2d 828, 841 (1977). This Court has stated that work-product doctrine is
“not a privilege,” but rather a “qualified immunity” that “extends to all materials
prepared in anticipation of litigation or for trial.” Willis v. Duke Power Co., 291
N.C. 19, 35, 229 S.E.2d 191, 201 (1976) (citation, emphasis, and quotation marks
omitted).5 It is important not to overstate this protection, however, as the phrase
“prepared in anticipation of litigation” does not mean “prepared while anticipating
litigation.” The fact that redistricting litigation is virtually inevitable every ten
years does not cloak every redistricting document with work-product protection.
While work-product protection is broad for those materials prepared for litigation, it
does not extend to any and all materials prepared in a situation in which litigation
is likely. As the Fourth Circuit has stated, only those materials prepared
specifically “because of” litigation are protected, not those that are created “with the
general possibility of litigation in mind.” Nat’l Union Fire Ins. Co. v. Murray Sheet
Metal Co., 967 F.2d 980, 984 (4th Cir. 1992).
5Other cases have referred to the doctrine as a “qualified privilege” while retaining
the parameters of the protection described in Willis. E.g. Hardy, 293 N.C. at 126, 235
S.E.2d at 840.
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DICKSON V. RUCHO
HUDSON, J., dissenting
In addition, “[m]aterials prepared in the ordinary course of business are not
protected.” Willis, 291 N.C. at 35, 229 S.E.2d at 201 (citation omitted); See Nat’l
Union Fire Ins., 967 F.2d at 984. Maps, tables, plans, and other materials and
discussions related to the actual writing of the redistricting legislation are obviously
prepared in the ordinary course of business of the legislature. Even an analysis of
the constitutional framework for redistricting would seem to me to be within the
ordinary course of a legislature’s fulfilling its constitutional responsibility to rewrite
the districting legislation. Thus, any documents that relate to the substance of the
redistricting legislation (decisions on where to draw district lines, analysis of census
data, etc.) should not be covered by work-product protection. Communications
regarding strategic preparation for preclearance litigation, for example, might well
be covered, and the trial court can address such matters as document production
moves forward.
Finally, the work-product doctrine gives only a “qualified immunity,” not an
absolute shield. Willis, 291 N.C. at 35, 229 S.E.2d at 201. “Upon a showing of
‘substantial need’ and ‘undue hardship’ involved in obtaining the substantial
equivalent otherwise, plaintiff may be allowed discovery.” Id. at 36, 229 S.E.2d at
201. Because the materials necessary to show whether the legislature violated the
basic rules of redistricting as set forth by the U.S. Supreme Court may well lie
among those documents now claimed as privileged, plaintiffs may have a reasonable
claim to an exception to work-product protection. This determination should be left
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HUDSON, J., dissenting
to the trial court. Here, as in Willis, “a large portion of the materials in defendant’s
. . . files may be subject to the trial preparation immunity. The record is insufficient
for us to determine the extent to which this may be the case.” Id.In its order here, the trial court ruled that N.C.G.S. § 120-133 requires
defendants to produce certain material pertaining to the redistricting process
without regard to attorney-client privilege, legislative privilege, or work-product
doctrine. The order states that “because the record before the Court at this time
does not permit the Court to rule with any specificity which documents might be
excluded from the scope of § 120-133 . . . the Court can only suggest that the parties
consider and agree among themselves a reasonable means of identifying categories
of documents that ought to remain confidential.” In my opinion, the trial court
erred in leaving responsibility for these determinations entirely in the hands of the
parties; the trial court should conduct an in camera review and resolve any issues
on which the parties cannot agree. See In re Miller, 357 N.C. at 336, 584 S.E.2d at
787 (stating that “the responsibility of determining whether the attorney-client
privilege applies belongs to the trial court”). To the extent there is any argument
about whether a particular communication meets the statutory definition of
“document” or whether it is “concerning redistricting,” the only appropriate remedy
consistent with the rules of Civil Procedure and prior case law is an in camera
review by the trial court. “If . . . there is disagreement about whether the order
covers certain questionable documents or communications, the superior court must
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HUDSON, J., dissenting
conduct an in camera review to determine the extent of the order as to those
documents or communications.” State v. Buckner, 351 N.C. 401, 411-12, 527 S.E.2d
307, 314 (2000). Here, it is the trial court’s responsibility to determine whether
disputed materials are “documents” within the meaning of the statute, whether
they are “concerning redistricting,”6 and whether work-product doctrine protects
such documents (or portions thereof) nonetheless. I would so hold and remand for
the trial court to proceed accordingly.
In conclusion, the majority has analyzed at length an issue that is not really
presented here while failing to address the substantial issues presented on appeal.
I would hold that documents listed in N.C.G.S. § 120-133 are not subject to
attorney-client privilege because, following enactment of the redistricting legislation
on 7 November 2011, those documents are not confidential. I would reverse the
trial court’s order insofar as it found a broad waiver of privilege and remand for in
camera review of any and all disputed documents. Those that relate to the
legislative process of redistricting and were confidential before enactment should be
open to discovery. Should defendants assert work-product protection of any
material, any such claims should also be subject to in camera review and a ruling by
the trial court.
For the reasons stated here, I respectfully dissent.
6 Obviously, any materials that are not “documents” or are not “concerning
redistricting” would still be eligible for attorney-client privilege if they meet the common
law requirements of that privilege.
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