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Johnson v. Russ

United States District Court, W.D. Texas, Waco Division

March 21, 2017

MILTON JOHNSON, Cross-Plaintiff,
v.
BRYAN F. RUSS, JR., Cross-Defendant.

          ORDER

          ROBERT PITMAN UNITED STATES DISTRICT JUDGE

         Before the Court are Cross-Defendant Bryan Russ's Motion for a Protective Order (Dkt. 21), Cross-Plaintiff Milton Johnson's Motion to Compel and Response in Opposition to Motion for Protective Order (Dkt. 22), and Russ's Response to Plaintiff's Motion to Compel, (Dkt. 25). Based on its review of these filings, the relevant case law, and the record in this case, the Court issues the following Order.

         I. Background

         This case arises out of allegations that officials for the City of Hearne (“the City”) were misappropriating city funds. In response, Cross-Plaintiff Milton Johnson and several other residents of the City organized an initiative petition to require a forensic audit of the City's finances. Johnson alleges that he and the other residents gathered 517 signatures in total, 318 of which Johnson collected personally. The petition and signatures were submitted to the City on March 21, 2016.

         According to Johnson, the city secretary normally forwards initiative petitions to the county elections administrator, who then verifies the signatures. In this case, however, Johnson alleges the petition was intercepted by Defendant Bryan Russ, the city attorney. According to Johnson, Russ initially declined to forward the petition to the county elections administrator, but rather kept it in his own possession in his private office.

         On April 6, 2016, the City filed a declaratory judgment action in state court alleging that the proposed initiative-which would have allowed the Robertson County District Attorney to direct the audit and determine who would conduct it-improperly vested control of City business outside City officials and thus was not required to be placed on the ballot for vote. The City sought the following relief:

(A) A judicial declaration that the proposed initiative extends beyond mere legislation and encroaches on the administrative duties of the Home Rule, City of Hearne;
(B) A judicial declaration that there is no contractual or statutory authority for the Robertson County District Attorney to handle the business and affairs of the City of Hearne with respect to conducting audits;
(C) A judicial declaration that the proposed initiative is prohibited by the terms of the City Charter wherein the initiative is an attempt to appropriate public funds.

(Pl.'s Pet. for Decl. J., Dkt. 1-2, at 4).

         Johnson alleges that on April 7, 2016, the day after the suit was filed, Russ delivered the petition to the county elections administrator, but sent only the 318 signatures Johnson had collected-omitting 199 other signatures. Johnson further contends that on the following day, April 8, 2016, the county elections administrator hand-delivered a letter to Russ stating that there were only 318 signatures on the petition, an insufficient number to place the initiative on the ballot. Johnson alleges that Russ's failure to forward all of the petition signatures prevented the petition from being placed on the election ballot and that he did not learn that the petition would not be placed on the ballot until late April, when it was too late to correct. Finally, Johnson alleges that ordinarily petition organizers would have been informed of a deficiency regarding their petition, such as a lack of signatures, by the City of Hearne, but that, in this case, Russ intentionally concealed the deficiency to ensure that it would not be remedied and that the petition would not end up on the ballot.

         Upon learning that he had not been informed of the deficiency in the petition, Johnson countersued the City, Russ, and the law firm where Russ serves as a partner, Palmos, Russ, McCullough, & Russ, LLP. Johnson's counterclaim, filed on April 21, 2016, alleges violations of his First and Fourteenth Amendment rights under 42 U.S.C. § 1983. Russ and his firm removed the case to federal court on July 15, 2016. Soon thereafter, Johnson and the City settled their claims. On September 23, 2016, Russ and his firm filed a motion to dismiss Johnson's counter-claims. On January 10, 2017, acting on the recommendation of the Magistrate Judge, the Court denied the motion to dismiss with respect to Russ, but granted it with respect to his law firm. Accordingly, the only remaining claims in this litigation are those are asserted by Counter-Plaintiff Johnson and Counter-Defendant Russ.

         After the parties began discovery, Russ filed a motion for a protective order on February 3, 2017. He argues that Johnson's second set of interrogatories “seek confidential communications made between representatives of the client, the City of Hearne, and the attorney, [Russ], ” (Def.'s Opp. Mot. Protective Order, Dkt. 21, at ¶ 2), and answered three of the interrogatories subject to that objection. Johnson responded to Russ's motion and filed a motion to compel interrogatory responses on February 14, 2017. He argues that the interrogatories do not request privileged information because they ask about non-legal services, such as Russ's role in document delivery. Further, he argues that any information Russ contends is privileged falls within the crime-fraud exception to attorney-client privilege, and that some of Russ's answers were non-responsive. These two related discovery motions are presently before the Court.

         II. ...


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