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Unmasking the Motives of Government Decisionmakers: a Subpoena for Your Thoughts Louis S NORTH CAROLINA LAW REVIEW Volume 63 | Number 5 Article 3 6-1-1985 Unmasking the Motives of Government Decisionmakers: A Subpoena for Your Thoughts Louis S. Raveson Follow this and additional works at: http://scholarship.law.unc.edu/nclr Part of the Law Commons Recommended Citation Louis S. Raveson, Unmasking the Motives of Government Decisionmakers: A Subpoena for Your Thoughts, 63 N.C. L. Rev. 879 (1985). Available at: http://scholarship.law.unc.edu/nclr/vol63/iss5/3 This Article is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina Law Review by an authorized administrator of Carolina Law Scholarship Repository. For more information, please contact [email protected]. UNMASKING THE MOTIVES OF GOVERNMENT DECISIONMAKERS: A SUBPOENA FOR YOUR THOUGHTS? Louis S. RAVESONt I. THE ROLE OF PURPOSE IN CONSTITUTIONAL LITIGATION ....... 883 II. THE BASES FOR A DECISIONMAKER'S PRIVILEGE ............... 889 A. The Speech or Debate Clause .............................. 889 1. The Historical Development of the Clause .............. 893 2. Judicial Interpretation ................................. 897 3. Evaluation ............................................ 914 B. Administrative Privileges................................... 927 C. Waiver ................................................... 936 III. DETERMINING THE CLAIM OF PRIVILEGE ...................... 943 A. What is UnconstitutionalPurpose? .......................... 948 B. Proof of a Decisionmaking Body's Unconstitutional Motivation ............................................... 965 C. Probative Value ........................................... 967 1. Individual Decisionmakers' Testimony About Institutional Intent ................................................ 973 2. Evidence of Individual Decisionmakers' Motives ......... 981 D. Need for the Evidence ..................................... 984 IV. CONCLUSION ................................................. 991 Since the early 1970s, the Supreme Court has held in a variety of contexts that the motive of the legislature in passing a law is critical in determining the law's constitutionality. The speech or debate clause of the Constitution, however, prevents the use of evidence of legislative acts when such use would intimidate legislators in performing their legisla- tive function. Thus, if this privilege were appliedas an absolute privilege in this context, it potentially could disable a court's inquiry into legisla- tive intent and could prohibit the questioning of decisionmakers, them- selves, about their motives. Professor Raveson argues that the speech or debate clause privilege is intended to guaranteethe separationofpowers, and that the Supreme Court already considered these separationofpow- t Assistant Professor of Law, Rutgers University School of Law-Newark. B.A. 1972, Anti- och; J.D. 1976, Rutgers University-Newark. The author would like to express his deep appreciation for the insights, editorial suggestions, and continuous support of Nancy Goldhill, John Thurber, Jody Keltz, Roger Ashodian, colleagues on the faculty of Rutgers Law School: Steven Gifts, Jonathan Hyman, Arthur Kinoy, Eric Neisser, and Nadine Taub, and the many students who de- voted long hours to the production of this Article, particularly Milton Fatt, Kenneth Fingerhut, John Grele, Louie Nikolaidis, and Charles O'Brien. NORTH CAROLINA LAW REVIEW [Vol. 63 ers concerns in determining that judicial inquiry into legislative motive was necessary in certain cases. Nevertheless, although the privilege should not be absolute, the need for legislative independence cannot be ignored entirely; in determining whether to admit evidence subject to the privilege, courts must balance the interest in legislative autonomy against the need for and probative value of such evidence on a case-by- case basis. Professor Raveson discusses the factors courts must weigh in making this determination, including the type of evidence involved, the particularlegal definition of unconstitutionalpurpose used, whether the evidence is of institutional or individual intent, and the availability of other evidence. By weighing these and otherfactors, courts can accom- modate their obligation to examine legislative intent with a healthy de- gree of legislativefreedom. In determining the constitutionality of official acts, the judicial significance of the motives1 of government decisionmakers has had a tortured history.2 The Supreme Court has held that legislative motivation is irrelevant, 3 while contem- poraneously striking down laws because their purpose was impermissible.4 As recently as 1971 the Court, in Palmer v. Thompson,5 held that evidence of deci- sionmakers' motives should not be considered in adjudicating the constitutional- ity of a governmental action. This refusal to consider motivation was based largely on the Court's perception that proving government officials' intent would be extremely difficult and that invalidating a law which would be "valid as soon as the legislature . repassed it for different reasons," would be futile.6 In addition, commentators have identified another concern that the Court surely must have considered, based on its understanding of the separation of powers: judicial review of motivation involves a significant intrusion into the integrity 7 and independence of decisionmaking institutions. Since Palmer, however, the Court has embraced enthusiastically reviewing the purpose for which an official act was taken as a critical factor in determining the action's constitutionality,8 In a variety of contexts the Court has held that if 1. The terms "motive," "purpose," and "intent" are used interchangeably in this Article to mean the results decisionmakers "desire to achieve by the operation of their decision." See infra note 421. 2. See Eisenberg, DisproportionateImpact and Illicit Motive: Theories of ConstitutionalAdju- dication, 52 N.Y.U. L. REv. 36, 39 (1977); Ely, Legislative and Administrative Motivation in Consti- tutional Law, 79 YALE L.J 1205, 1207 (1970) (confusion surrounding role of motive has reached "disaster proportions"). 3. See, eg., Palmer v. Thompson, 403 U.S. 217 (1971); United States v. O'Brien, 391 U.S. 367 (1968). 4. See, eg., Epperson v. Arkansas, 393 U.S. 97 (1968); Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963). 5. 403 U.S. 217 (1971). 6. Id. at 224-25; United States v. O'Brien, 391 U.S. 367, 383-84 (1968). 7. See, eg., A. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS 208-21 (1962); Note, Equal Protection, 82 HARV. L. REv. 1065, 1093-94 (1969); infra notes 51-55 and accompanying text. 8. At least one commentator has voiced a fear that the Court might too readily accept illicit motivation as the critical factor for determining the unconstitutionality of a governmental action. See J. ELY, DEMOCRACY AND DisTRusr: A THEORY OF JUDICIAL REvIEW 145 (1980) ("It would be a tragedy of the first order were the Court to expand its burgeoning awareness of the relevance of 1985] INQUIRY INTO DECISIONMAKER MOTIVE constitutionally impermissible motives influenced a decision, that decision itself is unconstitutional. 9 In these areas of constitutional adjudication, deci- sionmaker motive has become the touchstone of unconstitutionality. Accord- ingly, the focus of both courts and commentators has shifted from whether purpose is relevant to how it can be proved.10 As predicted earlier by the Court, determining whether unconstitutional motivation is present has proved difficult. Proving the intent of an individual itself is often an arduous task, and ascertaining the motives that may have af- fected the decision of a collective body can be even more demanding. A number of methodologies for proving impermissible motives have been suggested by the Court'" and commentators. 12 Not surprisingly, most of these proposals have considered whether decisionmakers can be questioned about their reasons for having taken an official action. Testimony and discovery from decisionmakers is an obvious and potentially rich source of evidence of decisionmaker purpose; few, if any, means of proving intent are better than examining those whose intent is at issue. Such evidence has been considered by numerous courts and in many cases has contributed to findings of unconstitutional motivation. 13 This Article examines whether and to what extent government decisionmakers should be privileged to refuse to submit to discovery to testify about their motives for an official action. Decisionmakers undoubtedly should be protected from free and hostile cross-examination on their processes of deliberation 14 and should be shielded from unnecessarily intimidating external influences that threaten the independence and integrity of the officials' judgment. A number of privileges afford government officials such protection. Although the various privileges that may be invoked by federal and state legisla- tors and administrators differ considerably in scope, all are designed to protect the functional independence of decisionmaking processes and guard them against improper influence. The most potent of these privileges is the speech or motivation into the thoroughly mistaken notion that a denial of a constitutional right doesn't count as such unless it was intentional."); see also Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252 (1977) (requiring proof of racially discriminatory intent or purpose for equal protection clause violation); Washington
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