In Re: Raimondo v.

United States Court of Appeals
For the First Circuit
No. 20-2120

AMERICAN TRUCKING ASSOCIATIONS, INC.; CUMBERLAND FARMS, INC.;
M&M TRANSPORT SERVICES, INC.; NEW ENGLAND MOTOR FREIGHT, INC.,

Plaintiffs, Appellees,

v.

PETER ALVITI, JR., in his official capacity as Director of the
Rhode Island Department of Transportation; RHODE ISLAND TURNPIKE
AND BRIDGE AUTHORITY,

Defendants,

GINA M. RAIMONDO, Governor of the State of Rhode Island;
NICHOLAS A. MATTIELLO, Speaker of the Rhode Island House of
Representatives; STEPHEN R. UCCI, Member of the Rhode Island
House of Representatives,

Interested Parties, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

[Hon. William E. Smith, U.S. District Judge]

No. 20-2168

In re: GINA M. RAIMONDO, Governor of the State of Rhode Island;
NICHOLAS MATTIELLO, Speaker of the Rhode Island House of
Representatives; STEPHEN R. UCCI, Member of the Rhode Island
House of Representatives; PETER ALVITI, in his official capacity
as Director of the Rhode Island Department of Transportation;
and RHODE ISLAND TURNPIKE AND BRIDGE AUTHORITY,

Petitioners.

PETITION FOR A WRIT OF MANDAMUS
 Before

Thompson and Kayatta, Circuit Judges,
and Woodlock, District Judge.*

Nicole J. Benjamin, with whom John A. Tarantino, Patricia K.
Rocha, R. Bart Totten, Adler Pollock & Sheehan P.C., Michael W.
Field, Keith David Hoffman, and R.I. Office of Attorney General
were on brief, for appellants.
Nicole J. Benjamin, with whom John A. Tarantino, Patricia K.
Rocha, R. Bart Totten, Adler Pollock & Sheehan P.C., Michael W.
Field, Keith David Hoffman, and R.I. Office of Attorney General,
were on brief, for Rhode Island Senate, amicus curiae.
Charles A. Rothfeld, with whom Evan M. Tager, Reginald R.
Goeke, Colleen M. Campbell, Mayer Brown LLP, Richard Pianka, and
ATA Litigation Center were on brief, for appellees.
Nicole J. Benjamin, with whom John A. Tarantino, Patricia K.
Rocha, R. Bart Totten, Adler Pollock & Sheehan P.C., Michael W.
Field, Keith David Hoffman, and R.I. Office of Attorney General
were on brief, for petitioners.

September 21, 2021

* Of the District of Massachusetts, sitting by designation.
 KAYATTA, Circuit Judge. We consider in these

consolidated cases an interlocutory appeal and a petition for

mandamus, each asking that we reverse a decision of the district

court refusing to quash subpoenas seeking discovery from Rhode

Island public officials and a state consultant.1 The proponents

of the discovery are trucking interests who assert that the

discovery is reasonably calculated to provide evidence that Rhode

Island elected officials aimed to discriminate against interstate

commerce in charging bridge tolls. The targets of the proposed

discovery assert that principles of legislative privilege preclude

the discovery. We decline the request to allow an interlocutory

appeal of the district court's order. We also decline to issue a

writ of mandamus regarding the district court's refusal to quash

the discovery subpoenas served on the state's consultant,

CDM Smith. At the same time, we will issue a writ of advisory

mandamus reversing the decision to allow the discovery sought from

Rhode Island's former governor, from the former speaker of Rhode

1 Had the public officials -- none of whom currently hold
office -- appeared in their official capacities, we would have
typically replaced them with the current office holders
automatically. See Fed. R. App. P. 43(c)(2). However, there is
some ambiguity over whether they were issued subpoenas in their
official or individual capacities, especially since plaintiffs
have sought both depositions and documents. Because it appears
not to make any difference, given our disposition, and because no
participant in these cases has sought any changes, we have retained
the caption as it was when the cases were filed in this court.

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Island's legislature, and from a former state representative. Our

reasoning follows.

I.

A.

The Rhode Island Bridge Replacement, Reconstruction, and

Maintenance Fund Act of 2016 ("RhodeWorks"), R.I. Gen. Laws §§ 42-

13.1-1 – 42-13.1-17, authorizes the assessment of tolls in exchange

for "the privilege of traveling on Rhode Island bridges to provide

for replacement, reconstruction, maintenance, and operation of

Rhode Island bridges," id. § 42-13.1-4(a). In enacting

RhodeWorks, the legislature found that twenty-three percent of

bridges in the state were structurally deficient and that other

existing funding sources were insufficient to correct the

deficiencies. Id. § 42-13.1-2(2), (4), (7).

American Trucking Associations, Inc., together with

several trucking companies2 (all "American Trucking"), challenges

two features of RhodeWorks. First, American Trucking complains

that RhodeWorks allows tolls to be assessed only against "large

commercial trucks," id. § 42-13.1-4(a), which are defined as

vehicles falling between Class 8 (single trailer, three or four

axles) and Class 13 (multiple trailers, seven or more axles) of

the Federal Highway Administration vehicle classification

2 Cumberland Farms, Inc., M&M Transport Services, Inc., and
New England Motor Freight, Inc.

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schedule, id. § 42-13.1-3(3), while simultaneously prohibiting the

assessment of tolls against passenger vehicles, id. § 42-13.1-5,

as well as any future act authorizing the assessment of tolls

against passenger vehicles unless such act has been approved by a

majority of electors voting in a statewide referendum, id. § 42-

13.1-4(a).

Second, American Trucking points out that RhodeWorks

imposes statutory caps on the number of tolls that can be assessed

against any single truck per facility and per day. Specifically,

RhodeWorks provides that: (1) trucks cannot be charged more than

"once per toll facility, per day in each direction," id. § 42-

13.1-4(b); (2) trucks "making a border-to-border through trip" on

I-95 cannot be charged more than $20 in each direction, id. § 42-

13.1-4(c); and (3) trucks cannot be charged more than $40 per day,

id. § 42-13.1-4(d).3 American Trucking alleges that, according to

a report prepared by CDM Smith, the toll caps increase the share

of the total costs borne by out-of-state trucks from fifty-five

percent to sixty percent.

In arguing that these aspects of RhodeWorks are

unlawfully discriminatory, American Trucking highlights in its

3 Within those limits, the toll amount per facility is set
by the Rhode Island Department of Transportation through notice-
and-comment procedures, id. § 42-13.1-4(a), and is to be based on
"the costs of replacement, reconstruction, maintenance, and
operation of Rhode Island's system of bridges and/or any portion
or portions thereof," id. § 42-13.1-8.

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Complaint that the Rhode Island Department of Transportation

(RIDOT) first considered increasing the fuel tax to cover its

bridge-related expenses but rejected that proposal because such a

tax would have been "borne primarily by Rhode Island businesses

and consumers." A tolling program, by contrast, would "shift[] a

segment of the cost . . . onto semi-tractor trailer trucks that

pass through the state without stopping." American Trucking next

points to the following statement purportedly made by former

Governor Raimondo, as reported in a local newspaper:

The reason I prefer the tolling proposal [to
the diesel-tax proposal] is because the
majority of the burden is on out-of-state
truckers and out-of-state companies who are
using -- and I would say abusing -- our
roads. . . . I don't like putting the burden
squarely on the people and businesses of Rhode
Island. . . . If you increase the diesel tax,
it's every fisherman, every restaurant, every
dry cleaner that delivers, every florist that
delivers . . . . It really hits every Rhode
Island business.

Along similar lines, a member of former Governor Raimondo's staff

reportedly stated that "[t]he Governor has made it very clear she

does not want to put the burden on the backs of Rhode Island

families . . . . A significant share of the revenue will be raised

from out-of-state users."

Later, former Governor Raimondo also reportedly

indicated that she favored truck-only tolling because "the

majority of [revenue] would come from out of state." And shortly

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before the legislation was amended to exempt smaller trucks,

American Trucking alleges that former Governor Raimondo stated,

"We are willing to sit down with local companies and say, 'Is there

a way we can make this less burdensome for local Rhode Island

companies?' We're at the table discussing it."

In connection with their critique of RhodeWorks's

design, American Trucking asserts that the drafters were aware of

and intended to achieve the cost-shifting effects of the toll caps,

citing that: (1) former House Speaker Nicholas Mattielo

reportedly stated, "People should know that 60 percent of the money

[for tolls] is going to come from out of state"; (2) former

Representative Stephen Ucci reportedly stated, "The tolling relies

on 60 percent revenue from out of state trucks who would have never

paid to come through this state"; and (3) RIDOT Director Peter

Alviti, when asked about the toll caps during a state legislative

hearing, reportedly stated, "That's part of the mitigation that

we put in place. That local businesses[,] they benefit."4

Tolling under RhodeWorks began in June 2018. The

following month, American Trucking filed this action against the

Rhode Island Turnpike and Bridge Authority and RIDOT Director

4 The complaint also alleges that RhodeWorks is
discriminatory because, shortly after its enactment, the Rhode
Island legislature passed a law granting subsidies to local
trucking companies. However, American Trucking has not reasserted
this allegation in its briefs before us.

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Alviti in his official capacity ("the RIDOT defendants"),

contending that RhodeWorks facially violates the dormant Commerce

Clause of the United States Constitution and seeking to permanently

enjoin the collection of RhodeWorks tolls.

B.

Following a previous appeal on an unrelated

jurisdictional issue, see Am. Trucking Ass'ns, Inc. v. Alviti, 944

F.3d 45 (1st Cir. 2019), American Trucking moved for a preliminary

injunction against the collection of RhodeWorks tolls. After

extensive briefing, the district court denied the motion for a

preliminary injunction, finding that American Trucking had not

established a sufficient likelihood of success on the merits. Am.

Trucking Ass'ns, Inc. v. Alviti, C.A. No. 18-378-WES, 2020 WL

5443551, at *7–8 (D.R.I. Sept. 10, 2020). The district court

explained, in relevant part, that the record was insufficiently

developed to show that RhodeWorks discriminated against interstate

commerce in either purpose or effect. Id. at *4, *6. In so

holding, the district court specifically rejected American

Trucking's argument that the statements by RhodeWorks' sponsors

revealed a patently discriminatory legislative purpose, finding

that the statements (if admissible) were "largely selective and

presented without context." Id. at *4.

American Trucking thereafter sought to enforce subpoenas

seeking documents and deposition testimony from several non-party

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drafters and sponsors of RhodeWorks -- Governor Raimondo, Speaker

Mattiello, and Representative Ucci ("the State Officials") -- to

bolster its discriminatory-intent claims. Specifically, the

subpoenas sought materials relating to: (1) any efforts to

mitigate the economic impact on Rhode Island citizens; (2) the

expected or actual impact of the toll caps on in-state vs. out-

of-state truckers; (3) the expected or actual impact of tolling

only certain classes of trucks on in-state vs. out-of-state

truckers; (4) the potential impact on interstate commerce;

(5) alternative methods for raising funds; (6) drafts of

RhodeWorks and related, failed bills, including mark-ups,

comments, red-lines, revisions, etc.; (7) communications between

the former Governor and legislators regarding RhodeWorks or other

methods of raising funds; and (8) the public statements made by

the movants and others. The State Officials each moved to quash

the subpoenas on the grounds that the legislative privilege

shielded them from the discovery sought. Former Governor Raimondo

also invoked the deliberative-process privilege.

American Trucking later issued subpoenas to CDM Smith as

well, seeking: (1) deposition testimony and documents regarding

the contractual relationship between RIDOT and CDM Smith; (2) the

data and analysis collected and produced by CDM Smith; and

(3) communications between RIDOT and CDM Smith about RhodeWorks.

The defendants moved to quash the CDM Smith subpoenas, asserting

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that CDM Smith's work was "essentially and inextricably linked" to

the legislative and deliberative processes leading to the

enactment of RhodeWorks. Thus, the defendants argued, the

legislative and deliberative-process privileges protected

CDM Smith to the same extent as the State Officials.

The district court denied all four motions to quash,

finding in relevant part that American Trucking's interest in the

discovery was greater than the State Officials' and the RIDOT

defendants' interests in preventing disclosure. See Am. Trucking

Ass'ns, Inc. v. Alviti, 496 F. Supp. 3d 699, 715 (D.R.I. 2020).

The district court subsequently refused to certify its denial for

interlocutory appeal under 28 U.S.C. § 1292(b). See Am. Trucking

Ass'ns, Inc. v. Alviti, C.A. No. 18-378-WES, 2020 WL 7212149, at

*4 (D.R.I. Dec. 7, 2020). Following that refusal, the non-party

State Officials filed an interlocutory appeal. They also

separately petitioned this court for a writ of advisory mandamus

directing the district court to quash the subpoenas. The RIDOT

defendants joined the mandamus petition, but not the direct appeal.

We consolidated both proceedings.

II.

A.

We begin by considering our appellate jurisdiction. See

Calvary Chapel of Bangor v. Mills, 984 F.3d 21, 26 (1st Cir. 2020).

In general, "one to whom a subpoena is directed may not appeal the

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denial of a motion to quash that subpoena but must either obey its

commands or refuse to do so and contest the validity of the

subpoena if he is subsequently cited for contempt on account of

his failure to obey." United States v. Ryan, 402 U.S. 530, 532

(1971); see also Alexander v. United States, 201 U.S. 117, 121–22

(1906). Contrary to the State Officials' argument, "there is no

special exception to [this] rule in cases involving claims of

legislative or executive privilege." Corporacion Insular de

Seguros v. Garcia, 876 F.2d 254, 257 (1st Cir. 1989); accord In re

Grand Jury Subpoena, 909 F.3d 26, 27 (1st Cir. 2018) (recognizing

that a non-party state agency ordinarily must defy a subpoena and

incur a contempt order to perfect an appeal).

The State Officials assert that we may nevertheless

exercise appellate jurisdiction pursuant to an Eleventh Circuit

case holding that "one who unsuccessfully asserts a governmental

privilege may immediately appeal a discovery order where he is not

a party to the lawsuit." In re Hubbard, 803 F.3d 1298, 1305 (11th

Cir. 2015). However, our opinion in Garcia rejected the line of

cases on which In re Hubbard relied. See 876 F.2d at 257–58 &

n.2. That decision binds this panel. See United States v. Lewis,

963 F.3d 16, 23 (1st Cir. 2020) (explaining that the law of the

circuit must be followed unless undermined or called into doubt by

subsequent authority). Accordingly, this Court has no

jurisdiction to conduct an interlocutory review of the district

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court's denial of the State Officials' motions to squash their

subpoenas.

B.

In the alternative, the State Officials and the RIDOT

defendants seek a writ of advisory mandamus. Although mandamus is

"not a substitute" for a jurisdictionally proper appeal, it can be

an appropriate "vehicle for obtaining immediate judicial review of

nonfinal orders that would otherwise escape timely scrutiny." In

re Recticel Foam Corp., 859 F.2d 1000, 1005 (1st Cir. 1988).

Advisory mandamus is available in those extraordinary cases that

present (1) an unsettled question of law (2) of substantial public

importance (3) that is likely to recur, and (4) that is otherwise

unappealable or unsusceptible to effective review or relief later

on.5 See In re Grand Jury Subpoena, 909 F.3d at 28 (citing United

States v. Pleau, 680 F.3d 1, 4 (1st Cir. 2012) (en banc)).

1.

As to the State Officials, we think this is one such

extraordinary case. First, the petition raises unsettled legal

questions about the scope of the legislative privilege as applied

5This case does not involve "[t]he more commonly sought
writ . . . of supervisory mandamus," which is available only when
a district court issues a "palpably erroneous" order concerning
"the limits of judicial power" that creates a "special risk of
irreparable harm" to the party seeking mandamus. In re Grand Jury
Subpoena, 909 F.3d at 28 (quoting United States v. Horn, 29 F.3d
754, 769 (1st Cir. 1994)).

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to state lawmakers, both in general and in the context of the

dormant Commerce Clause. We have never addressed these questions,

and the lower courts have developed divergent approaches to

answering them. See id. (finding a question unsettled because it

was "unsettled in this circuit," and other circuits were split);

Edward H. Cooper, 16 Fed. Prac. & Proc. Juris. § 3935.3 (3d ed.)

(suggesting that mandamus may be used to resolve a discovery issue

if there is "substantial uncertainty and confusion in the district

courts").

Second, the degree to which state officials may be

subjected to discovery in civil cases alleging violations of the

federal constitution raises important questions about the

appropriate balance of power between the states and the federal

government. See In re Grand Jury Subpoena, 909 F.3d at 29 (noting

"heightened federalism concerns" as a factor weighing in favor of

exercising advisory mandamus jurisdiction over a state

government's claim of privilege); cf. Horn, 29 F.3d at 770 (finding

substantial importance because the question presented related to

"the relationship between the Judicial Branch and the Executive

Branch").

Third, we are confident that the questions presented are

likely to recur, especially if we deny review. In just the past

four years, three other circuits have considered the standard

governing state lawmakers' claims of legislative privilege. See

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Lee v. City of Los Angeles, 908 F.3d 1175, 1187–88 (9th Cir. 2018);

Jefferson Cmty. Health Care Ctrs., Inc. v. Jefferson Parish Gov't,

849 F.3d 615, 624 (5th Cir. 2017); In re Hubbard, 803 F.3d at 1311.

And the parties cite to more than a dozen district court cases

addressing the issue. See In re Grand Jury Subpoena, 909 F.3d at

28 (finding a likelihood of repetition based on "the fact that

multiple circuits have already weighed in on the subject").

American Trucking asserts that if we narrow our focus to

the dormant Commerce Clause context, questions of legislative

privilege are considerably rarer. But at least one other district

court in this circuit has recently considered claims of

discriminatory purpose under the dormant Commerce Clause. See,

e.g., Portland Pipe Line Corp. v. City of South Portland, 332 F.

Supp. 3d 264, 303–08 (D. Me. 2018). We have little doubt that it

will become increasingly common to subpoena state lawmakers in

connection with such claims if we do not review the district

court's order at this juncture. See In re Grand Jury Subpoena,

909 F.3d at 28 (predicting that the district court's ruling might

increase the likelihood of recurrence). Given this backdrop,

exercising advisory mandamus jurisdiction to review the district

court's order denying the State Officials' motions to quash will

"assist other jurists, parties, or lawyers" in addressing similar

issues. Horn, 29 F.3d at 770 (quoting In re Bushkin Assocs., Inc.,

864 F.2d 241, 247 (1st Cir. 1989)).

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 Finally, as we recognized in In re Grand Jury Subpoena,

the ordinary course of perfecting an appeal by incurring a contempt

order is sometimes "less readily available" to state actors than

to private parties. 909 F.3d at 29. Our controlling precedent

effectively deems that interest insufficient to create a

categorical exception that would allow an appeal of discovery

orders by right, Garcia, 876 F.2d at 257–58 & n.2, but it still

merits some weight in the calculus of deciding whether to exercise

mandamus review, In re Grand Jury Subpoena, 909 F.3d at 29.

For all four of these reasons collectively, we conclude

that exercising advisory mandamus jurisdiction to review the

district court's order as to the State Officials is appropriate.

2.

As to the order allowing discovery from the State's

consultant, CDM Smith, the second factor weighs much less heavily

in favor of mandamus review. Simply put, concerns of comity and

federalism are less pointed when the discovery is aimed in the

first instance at a private party. Relatedly, as a private party,

CDM Smith can more readily obtain review by first incurring a

finding of contempt. To the extent it is unwilling to do so

because it does not share the state's interest in confidentiality,

that is simply another ramification of the fact that the

information has already been given to a private third party. We

therefore regard the questions posed by the CDM Smith subpoena as

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falling more into the ordinary case in which mandamus is

unavailable to review "[d]ecisions regarding the scope of

discovery." In re Insurers Syndicate for Joint Underwriting of

Medico-Hosp. Pro. Liab. Ins., 864 F.2d 208, 211 (1st Cir. 1988)

(quoting In re Recticel Foam Corp., 859 F.2d at 1006).

Accordingly, we decline to review the claim of legislative

privilege with respect to the information sought by the CDM Smith

subpoenas.

III.

We turn next to the merits of the State Officials'

argument that the district court erred in denying their motions to

quash. We review de novo the denial of a motion to quash to the

extent that it turns on purely legal questions, and for abuse of

discretion otherwise. See In re Porsche Automobil Holding SE, 985

F.3d 115, 120 (1st Cir. 2021).

Because much of the parties' briefing revolves around

the scope of the legislative privilege generally, we start by

setting out an overview of the legal framework governing claims of

legislative privilege and the closely related doctrine of

legislative immunity, and then we address the State Officials'

specific claims in this case.

A.

The Speech or Debate Clause of the U.S. Constitution,

Art. I, § 6, cl. 1, provides in relevant part that "for any Speech

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or Debate in either House, [Senators and Representatives] shall

not be questioned in any other Place." The Supreme Court has

interpreted this clause as granting federal lawmakers absolute

immunity from civil and criminal liability for their legislative

acts. See Kilbourn v. Thompson, 103 U.S. 168, 201, 204–05 (1880);

United States v. Johnson, 383 U.S. 169, 180 (1966). The Speech or

Debate Clause also establishes an absolute evidentiary privilege

that protects federal lawmakers from having evidence of their

legislative acts introduced in a proceeding against them, see

Johnson, 383 U.S. at 182–85, and from being compelled to testify

about their legislative acts before a grand jury, see United States

v. Gravel, 408 U.S. 606, 615–16 (1972).6

The "central role" of the Speech or Debate Clause is "to

prevent intimidation of legislators by the Executive and

accountability before a possibly hostile judiciary." Id. at 617.

In this way, the clause protects Congress from interference by its

coequal branches and thereby "reinforc[es] the separation of

powers so deliberately established by the Founders." Eastland v.

U.S. Servicemen's Fund, 421 U.S. 491, 502 (1975) (quoting Johnson,

383 U.S. at 178). But the clause also protects legislators from

6 The terms "immunity" and "privilege" have at times been
used interchangeably. See, e.g., Gravel, 408 U.S. at 620.
However, following the Supreme Court's lead in United States v.
Gillock, 445 U.S. 360, 368–73 (1980), we use "immunity" only when
discussing potential liability and "privilege" only when referring
to evidentiary issues.

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proceedings that "divert their time, energy, and attention from

their legislative tasks," id. at 503, otherwise "delay and disrupt

the legislative function," id., or "deter[] . . . the uninhibited

discharge of their legislative duties," Barr v. Matteo, 360 U.S.

564, 575 (1959) (quoting Tenney v. Brandhove, 341 U.S. 367, 377

(1951)). The Supreme Court has described these latter concerns as

relating to "legislative independence." Gillock, 445 U.S. at 369,

371.

Assertions of legislative immunity and privilege by

state lawmakers stand on different footing. For starters, they

are governed by federal common law rather than the Speech or Debate

Clause, which by its terms applies only to federal legislators.

See Lake Country Ests., Inc. v. Tahoe Reg'l Plan. Agency, 440 U.S.

391, 403–05 (1979); Gillock, 445 U.S. at 366–67 & n.5. And the

common-law legislative immunity and privilege are less protective

than their constitutional counterparts. See Gillock, 445 U.S. at

372–73 (legislative immunity); id. at 366–67, 374 (legislative

privilege). That is because the separation-of-powers rationale

underpinning the Speech or Debate Clause does not apply when it is

a state lawmaker claiming legislative immunity or privilege. See

id. at 370 (explaining that "we do not have the struggles for power

between the federal and state systems such as inspired the need

for the Speech or Debate Clause" because "the Supremacy Clause

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dictates that federal [law] will prevail over competing state

exercises of power").

Still, "principles of comity command careful

consideration." Id. at 373. And the interests in legislative

independence served by the Speech or Debate Clause remain relevant

in the common-law context. See id. at 372 (explaining that

"sensitivity to interference with the functioning of state

legislators" justifies granting state lawmakers absolute immunity

from civil liability for their legislative acts); Lake Country

Ests., 440 U.S. at 405 (quoting Tenney, 341 U.S. at 377). For

these reasons, federal courts will often sustain assertions of

legislative privilege by state legislatures except when "important

federal interests are at stake," such as in a federal criminal

prosecution. Gillock, 445 U.S. at 373; see also Village of

Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 268

(1977) (indicating that state or local lawmakers "might be called

to the stand" in a civil case to testify about legislative purpose

only in "some extraordinary instances," and "even then such

testimony frequently will be barred by privilege").

B.

Turning to the State Officials' assertion of legislative

privilege in this case, we note the issues that are not in dispute.

First, no party disputes that the subpoenas issued to the State

Officials sought evidence of the State Officials' legislative acts

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and underlying motives. Similarly, no party disputes that, if the

legislative privilege applies, the discovery requested by those

subpoenas falls within its scope. Cf. Gravel, 408 U.S. at 628–29

(holding that the Speech or Debate Clause's legislative privilege

prohibited questioning a Senator about one of his legislative acts;

"the motives and purposes behind" the act; "communications between

the Senator and his aides" related to the act; and his "preparation

for" the act). Second, the parties agree that the former Governor,

though not a member of the state legislature, possessed whatever

legislative privilege that the state legislators possessed. Cf.

Bogan v. Scott-Harris, 523 U.S. 44, 54–55 (1998) (holding that

local executive officials could invoke legislative immunity with

respect to their legitimate legislative acts); accord Nat'l Ass'n

of Social Workers v. Harwood, 69 F.3d 622, 630 (1st Cir. 1995)

(explaining that "the prophylaxis of the Clause also extends to

legislative acts performed by non-legislators"). Finally, the

parties do not appear to seriously dispute that the legislative

privilege may be invoked at the discovery stage (not just at

trial); that the privilege can shield state lawmakers from having

to produce documents; or that, in some cases, the privilege may

apply even if the state lawmakers are not defendants in the action.

Thus, the only question is whether the district court committed an

error of law or exceeded the scope of its discretion in determining

that American Trucking's interest in obtaining evidence of the

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State Officials' subjective motives outweighed the comity

considerations implicated by the subpoenas.

To start, no representative of the federal government

asserts any interest in overbearing the assertion of the

legislative privilege in this case. We have before us neither a

federal criminal case nor a civil case in which the federal

government is a party. See Gillock, 445 U.S. at 373 (holding that

a federal criminal prosecution was important enough to overcome a

state lawmaker's assertion of legislative privilege); In re

Hubbard, 803 F.3d at 1309 n.10 (suggesting that discovery may be

more searching in "[a]n official federal investigation into

potential abuses of federal civil rights" by state officials than

in "a private lawsuit attacking a facially valid state statute by

attempting to discover the subjective motivations of some of the

legislative leaders and the governor who supported it"). Both

courts of appeals that have considered a private party's request

for such discovery in a civil case have found it barred by the

common-law legislative privilege. See In re Hubbard, 803 F.3d at

1311–12; Lee, 908 F.3d at 1186–88.

So American Trucking is reduced to arguing that the

discovery in this private civil action nevertheless implicates

important federal interests because the federal government has an

interest in uncovering and restraining violations of the dormant

Commerce Clause. Certainly this lawsuit does implicate the federal

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interest in enforcing the dormant Commerce Clause, as the district

court found. See Am. Trucking Ass'ns, 496 F. Supp. 3d at 714.

And the Supreme Court has recently reiterated that the dormant

Commerce Clause "reflect[s] a 'central concern of the Framers that

was an immediate reason for calling the Constitutional Convention:

the conviction that in order to succeed, the new Union would have

to avoid the tendencies toward economic Balkanization that had

plagued relations among the Colonies and later among the States

under the Articles of Confederation.'" Tenn. Wine & Spirits

Retailers Ass'n v. Thomas, 139 S. Ct. 2449, 2461 (2019) (quoting

Granholm v. Heald, 544 U.S. 460, 472 (2005)).

But American Trucking's argument suggests a broad

exception overriding the important comity considerations that

undergird the assertion of a legislative privilege by state

lawmakers. Many cases in federal courts assert violations of

federal law by state legislators who are not joined as parties to

the litigation. Were we to find the mere assertion of a federal

claim sufficient, even one that addresses a central concern of the

Framers, the privilege would be pretty much unavailable largely

whenever it is needed.

We need not reject altogether the possibility that there

might be a private civil case in which state legislative immunity

must be set to one side because the case turns so heavily on

subjective motive or purpose. This is not such a case, however,

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because proof of the subjective intent of state lawmakers is

unlikely to be significant enough in this case to warrant setting

aside the privilege. Cf. In re Hubbard, 803 F.3d at 1312 (quashing

the subpoena because "the First Amendment does not support . . .

a challenge to an otherwise constitutional statute based on the

subjective motivations of the lawmakers who passed it").

The district court reasoned that the evidence sought by

American Trucking's subpoenas would shed light on the State

Officials' intent in drafting RhodeWorks, which is "relevant to

the dormant Commerce Clause." Am. Trucking Ass'ns, 496 F. Supp.

3d at 712–13. And, in the district court's view, the discovery

sought would provide necessary context for the public statements

made by the State Officials and their staff regarding RhodeWorks,

which otherwise "appear[ed] to be patent statements of

discriminatory intent." Id. at 713. But see Am. Trucking Ass'ns,

2020 WL 5443551, at *4 (finding that the public statements, without

context, could not establish a likelihood of success on the merits

of American Trucking's discriminatory-intent claim).7

We certainly agree that interrogating the State

Officials could shed light on and provide context concerning their

subjective motivations and public comments. And in theory it is

7 The public statements speak of placing much or most of the
RhodeWorks tolling burden on out-of-staters, but they do not admit
that such a burden is disproportionate to the relevant use of the
bridges by out-of-staters.

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often said that a violation of the dormant Commerce Clause might

be based on either discriminatory purpose or effect. See Chem.

Waste Mgmt. v. Hunt, 504 U.S. 334, 344 n.6 (1992) (stating that "a

finding that state legislation constitutes 'economic

protectionism' may be made on the basis of either discriminatory

purpose or discriminatory effect" (cleaned up) (quoting Bacchus

Imports, Ltd. v. Dias, 468 U.S. 263, 270 (1984))); S.C. State

Highway Dep't v. Barnwell Bros., Inc., 303 U.S. 177, 184 n.2 (1938)

(similar). But it is difficult to conceive of a case in which a

toll that does not discriminate in effect could be struck down

based on discriminatory purpose. It is also equally difficult to

conceive of a toll that has a substantial discriminatory effect,

yet is saved by the mere absence of proof that the effect was

intended. See Comptroller of Treasury of Md. v. Wynne, 575 U.S.

542, 561 n.4 (2015) ("The Commerce Clause regulates effects, not

motives, and it does not require courts to inquire into voters' or

legislators' reasons for enacting a law that has a discriminatory

effect."). Neither party presents us with an example of either

such case. And we are not the first to notice that "a law motivated

wholly by a protectionist intent might fail to produce significant

discriminatory effects." Kathleen M. Sullivan & Gerald Gunther,

Constitutional Law 275 (15th ed. 2004); see also All. of Auto.

Mfrs. v. Gwadosky, 430 F.3d 30, 36 n.3 (1st Cir. 2005) ("[T]here

is some reason to question whether a showing of discriminatory

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purpose alone will invariably suffice to support a finding of

constitutional invalidity under the dormant Commerce Clause.").

The Supreme Court has "repeatedly . . . focused [its]

Commerce Clause analysis on whether a challenged scheme is

discriminatory in 'effect,'" and "emphasized that 'equality for

the purposes of . . . the flow of commerce is measured in dollars

and cents, not legal abstractions.'" Associated Indus. of Mo. v.

Lohman, 511 U.S. 641, 654 (1994) (third alteration in original)

(first quoting Bacchus Imports, 468 U.S. at 270, and then quoting

Halliburton Oil Well Cementing Co. v. Reily, 373 U.S. 64, 70

(1963)); see also City of Philadelphia v. New Jersey, 437 U.S.

617, 626–27 (1978) (abandoning a search for the legislature's

"ultimate purpose" because the challenged legislation was

discriminatory "on its face and in its plain effect").

"Discrimination, like interstate commerce itself, is a practical

conception[]" that must be proven by evidence of "substantial

distinctions and real injuries." Gregg Dyeing Co. v. Query, 286

U.S. 472, 481 (1932). Indeed, in American Trucking Associations

v. Scheiner, the most factually analogous precedent cited by

American Trucking in its motion for a preliminary injunction, the

Court found that the challenged regulation was discriminatory

based on proof of its effects alone. 483 U.S. 266, 286 (1987);

accord Trailer Marine Transp. Corp. v. Rivera Vazquez, 977 F.2d 1,

11 (1st Cir. 1992). Thus, evidence that will likely bear on the

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presence or absence of discriminatory effects in the actual results

of RhodeWorks toll collections is more probative and more readily

discoverable than evidence relating to legislative intent.

To the extent that discriminatory intent is relevant,

the probative value of the discovery sought by American Trucking

is further reduced by the inherent challenges of using evidence of

individual lawmakers' motives to establish that the legislature as

a whole enacted RhodeWorks with any particular purpose. The

Supreme Court has warned against relying too heavily on such

evidence. See United States v. O'Brien, 391 U.S. 367, 384 (1968)

("What motivates one legislator to make a speech about a statute

is not necessarily what motivates scores of others to enact it,

and the stakes are sufficiently high for us to eschew guesswork.");

cf. Va. Uranium, Inc. v. Warren, 139 S. Ct. 1894, 1907–08 (2019)

(plurality opinion) ("Trying to discern what motivates legislators

individually and collectively invites speculation and risks

overlooking the reality that individual Members of Congress often

pursue multiple and competing purposes, many of which are

compromised to secure a law's passage and few of which are fully

realized in the final product[,] . . . [and] risk[s] displacing

the legislative compromises actually reflected in the statutory

text."). Thus, when evaluating whether a state statute was

motivated by an intent to discriminate against interstate

commerce, we ordinarily look first to "statutory text, context,

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and legislative history," as well as to "whether the statute was

'closely tailored to achieve the [non-discriminatory] legislative

purpose'" asserted by the state. Family Winemakers of Cal. v.

Jenkins, 592 F.3d 1, 13 (1st Cir. 2010) (quoting Gwadosky, 430

F.3d at 38). To be clear, we do not hold that evidence of

individual legislators' motives is always irrelevant per se; we

mean only to point out that it is often less reliable and therefore

less probative than other forms of evidence bearing on legislative

purpose, and this case does not appear to present a contrary

example.

In sum, even assuming that a state's legislative

privilege might yield in a civil suit brought by a private party

in the face of an important federal interest, the need for the

discovery requested here is simply too little to justify such a

breach of comity. At base, this is a case in which the proof is

very likely in the eating, and not in the cook's intentions.

IV.

For the foregoing reasons, the State Officials'

interlocutory appeal is dismissed for lack of jurisdiction. The

petition for a writ of advisory mandamus is denied as to the CDM

subpoena, but granted as to the State Officials. The writ shall

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issue in accordance with this opinion directing the district court

to reverse its denial of the State Officials' motions to quash.8

8 Because we find that the legislative privilege applies, we
need not address the former governor's argument that the
deliberative-process privilege independently bars the discovery
sought.

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