5000 Warrington, pt. 5
The City’s Motion for Summary Judgment I wrote about in my last post was denied. So this case will go to trial!! It was originally scheduled for trial on June 2nd, but an emergency motion for continuance was filed the day before and it was rescheduled to July 28th.
There have been some other pre-trial motions filed. The City filed a Motion in Limine to Preclude Evidence and Testimony of Legislative Intent. I don’t know what it says and I am not going to pay to pull that one from the docket… this blog is just a hobby and I don’t want to pay for a document I’m not actually that interested in reading!
I did, however, get a copy of the City’s Motion to Quash the Notices to Attend. Plaintiff - the neighbor to this project site who’s opposing the rezoning - served Notices to Attend on Councilmember Gauthier and her director of equitable development Andrew Goodman. The City does not want them to have to appear as witnesses in this trial so they filed a motion to quash the notices.
The City’s argument is basically:
The Court already ruled that CM Gauthier and Goodman did not have to appear for depositions because of legislative privilege, therefore that’s the law of the case and they don’t have to testify at trial either.
Forcing them to testify is contrary to the Pennsylvania Constitution’s Speech and Debate Clause, which bars discovery into the motivation for legislative acts.
Johanningsmeier’s response is:
The Court shouldn’t issue a blanket Order that the CM and her aide don’t have to attend trial, and instead rule based on Plaintiff’s examinations of the witnesses.
The “law of the case” argument is bad because the Court’s prior discovery order only applied to depositions, the court compelled the production of documents over an objection based on legislative privilege, so it’s not clear legislative privilege is an absolute bar to testimony at trial.
Legislative privilege doesn’t apply to communications between a legislator and third parties.
I think this third argument is actually the strongest one - the discovery produced shows that CM Gauthier’s office had a lot of communications with the developer’s counsel and neighborhood groups about the zoning’s effect, and I think that’s fair game to explore at the time of trial. Interestingly, there weren’t emails from the CM herself, so there’s not as strong of an argument she’d have anything to testify about. But her assistant who wrote all of the emails could be compelled to testify about those third party communications at trial.
I will not be attending this trial if it goes forward on 7/28 (my due date for baby #2 is at the end of July!!) but if there’s post-trial briefing/submissions of findings of fact & conclusions of law, I’ll try to get those to get a sense of how this played out!
Here are the Motion & Response: