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Adler Pollock & Sheehan Prevails before First Circuit on Petition for Writ of Advisory Mandamus in Tolling Litigation

In circumstances that it determined were “extraordinary,” United States Court of Appeals for the First Circuit issued a writ of advisory mandamus and quashed subpoenas for documents and testimony to former Governor Gina M. Raimondo, former Speaker of the Rhode Island House of Representatives Nicholas Mattiello and former Representative Stephen Ucci.

The subpoenas were issued by the American Trucking Associations in connection with their constitutional challenge to the 2016 enactment of the Rhode Island Bridge Replacement, Reconstruction, and Maintenance Fund Act, which authorizes the tolling of tractor trailer trucks traveling on Rhode Island bridges.

Nicole Benjamin, on behalf of AP&S, and the Rhode Island Office of the Attorney General argued that the subpoenas called for documents and testimony protected by the legislative and deliberative process privileges.  The trucking association claimed that the evidence sought would shed light on the intentions of state officials in enacting the tolling legislation and, in particular, that it would show that the legislation was enacted with the intention of discriminating against interstate commerce.

The First Circuit recognized that interrogating the state officials could shed light on their subjective motivations but concluded that the interest in such evidence was not sufficient to overcome the legislative privilege.  The constitutional challenge at issue – a claim under the dormant Commerce Clause – is focused on whether the challenged scheme is discriminatory in effect.  While such a challenge also may be based on discriminatory intent, the Court determined “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.”  Accordingly, the Court quashed the subpoenas.

The case continues to proceed before the district court where discovery is ongoing.  The First Circuit’s decision is available here.

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