The MOTION TO QUASH SUBPEONA states: The named individuals contend the subpoenas attack their legislative independence. Further the subpoenas subject them to unnecessary and burdensome disclosure requirements that detract from their representative functions.
In the now infamous Myrtle Beach SuperBlock court trial, scheduled in Federal Court beginning today, every member of Myrtle Beach City Council has collectively filed a motion to quash the subpoena requiring them to testify. Mayor Brenda Bethune is scheduled to testify on behalf of the city.
The official trial Danny Group, LLC, Blazian Promotions & Company, LLC, and Hector Melendez versus the John Pedersen and the City of Myrtle Beach is scheduled to begin today at 9 a.m. The Federal Court trial could run as many as ten days.
Israeli National Noam Pyade purchased multiple parcels of land from merchants who claimed they were harassed by the City of Myrtle Beach. The properties were later sold to City of Myrtle Beach at a $10 million profit for Pyade.
Specific testimony about the former board member of the Downtown Redevelopment Corporation, Noam Pyade, was of particular interest to the plaintiffs. As Pyade is an Israeli National, who after receiving payment from the City of Myrtle Beach has now relocated back to Israel, plaintiffs can not compel him to testify.
The response states: In supplemental discovery responses Plaintiffs stated the witnesses will be called to testify about the facts and circumstances in this case, but more specifically, their agreement to pay $10 million in profit to alleged “nuisance” businesses in December 2021. In addition, Plaintiffs state Mike Lowder will be called to testify about his security company doing business with Noam Pyade, the owner of the nuisance properties that the City of Myrtle Beach agreed to pay $10 million in profit in 2021. All of Plaintiffs alleged injuries occurred in 2017. The testimony Plaintiffs seek occurred approximately four years after the Plaintiffs alleged injuries. Such testimony is not relevant to the issues in the above captioned lawsuit.
The motion also states: The named individuals contend the subpoenas attack their legislative independence. Further the subpoenas subject them to unnecessary and burdensome disclosure requirements that detract from their representative functions.
Pyade is an Israeli who lived briefly in the City of Myrtle Beach making large land acquisitions. Somehow, Pyade knew exactly which properties were of most value to the city. At the time of these purchases, Pyade was initially 34 years old. Merchants questioned how an immigrant with no known financial history had the means to make such purchases.
Pyade also served on the board of the City Associated Myrtle Beach Downtown Redevelopment Corporation.
Sources inform MyrtleBeachSC News that Pyade is currently running for public elected office in Israel.
THE MOTION TO QUASH SUBPEONA READS
Individuals Michael Chestnut, Jackie Hatley, John Krajc, Clyde H. “Mike” Lowder, Philip N. Render, and Gregg Smith hereby give notice and move the court to quash the subpoenas served on them by Plaintiffs for the above captioned lawsuit, compelling individuals Michael Chestnut, Jackie Hatley, John Krajc, Clyde H. “Mike” Lowder, Philip N. Render, and Gregg Smith ‘s to appear from March 20-24, 2023 at a trial of the above captioned lawsuit. (Exhibit A).
In support of the motion, those individuals
would show the following to the court:
- All of the named individuals are City Council members for the City of Myrtle Beach. Thosebindividuals have limited protection from appearing at trial in the above captioned lawsuit on the
grounds of legislative immunity and/or legislative privilege. - Plaintiffs’ complaint in the above captioned actiondoes not contain any allegations of individual acts performed by any of the named individuals. Plaintiffs’ claims are brought under 42 USC §1983 for unconstitutional policies or customs of the City of Myrtle Beach and for tortious interference with contracts under the South Carolina Tort Claims Act.
- Plaintiffs’ claims are for acts of the City of Myrtle Beach that occurred before Jackie Hatley, John Krajc, and, Gregg Smith were elected to serve on City Council for the City of Myrtle Beach.
- Any knowledge of official customs or policies of the City of Myrtle Beach of Michael Chestnut, Clyde H. “Mike” Lowder, or Philip N. Render, was obtained by them while performing legislative functions on behalf of the City of Myrtle Beach.
- In supplemental discovery responses Plaintiffs stated the witnesses will be called to testify about the facts and circumstances in this case, but more specifically, their agreement to pay $10 million in profit to alleged “nuisance” businesses in December 2021. In addition, Plaintiffs state Mike Lowder will be called to testify about his security company doing business with Noam Pyade, the owner of the nuisance properties that Mr. Lowder agreed to pay $10 million in profit in 2021. All of Plaintiffs alleged injuries occurred in 2017. The testimony Plaintiffs seek occurred approximately four years after the Plaintiffs alleged injuries. Such testimony is not relevant to the issues in the above captioned lawsuit. (Exhibit B)
- If the Court were to decide the subpoenas should not be quashed, Michael Chestnut, Jackie Hatley, John Krajc, Clyde H. “Mike” Lowder, Philip N. Render, and Gregg Smith respectfully request that that the Court exercise its discretion under Rule 45 FRCP to limit the subpoenas by requiring the Plaintiffs to give each individual at least six hours’ notice of the specific time when they will be required to appear at the trial. In addition the individuals request that they be required to attend the trial only for such time as they are needed to testify.
- Michael Chestnut, Jackie Hatley, John Krajc, Clyde H. “Mike” Lowder, Philip N. Render, and Gregg Smith are informed and believe that Plaintiffs have served the subpoenas requiring the witnesses to be present at trial for four days for improper purposes. They are informed and believe they are entitled to sanctions pursuant Rule 45 FRCP.
DISCUSSION – LEGISLATIVE PRIVILEGE
The Fourth Circuit, has held that “[w]hile legislative privilege is undoubtedly robust, the Supreme Court’s decisions make clear that the privilege does not absolutely protect state legislative officials from discovery into communications made in their legislative capacity.” Benisek v. Lamone, 241 F. Supp. 3d 566, 574 (D. Md. 2017).
Drawing on these principles, courts ruling on claims of legislative privilege in redistricting cases have frequently adopted a five-factor standard that facilitates case-by-case evaluation of the competing interests at stake. This standard, which derives from cases on deliberative-process privilege for executive actors, requires a court evaluating a claim of legislative privilege to take into account the relative weight of: (1) the relevance of the evidence sought, (2) the availability of other evidence, (3) the seriousness of the litigation, (4) the role of the municipality, as opposed to individual legislators, in the litigation, and (5) the extent to which the discovery would impede legislative action. S.C. State Conf. of NAACP v. McMaster, 584 F. Supp. 3d 152, 161 (D.S.C. 2022).
(1) the relevance of the evidence sought.
All of the expected testimony from the named individuals comes from acts that occurred in 2021, approximately four years after the alleged injuries occurred in the above captioned lawsuit. Such evidence is not relevant to Plaintiffs’ claims under 42 USC §1983 or their claims for tortious interference with a contract.
(2) the availability of other evidence.
Other evidence of the acts of the City of Myrtle Beach is contained in the City’s official minutes of the council meetings where those acts occurred. A town council has the express duty to keep minutes of its proceedings which shall be a public record. S.C.Code Ann. § 5–7–250(b)(1976).
Municipal records properly authenticated or verified are the only competent evidence of the proceedings of the transactions of the governing body. 5 E. McQuillan, The Law of Municipal Corporations § 14.05 (3d ed. 1989).
Parol evidence cannot be admitted to explain, enlarge, or contradict minutes of the proceeding of a town council unless the minutes are incomplete or ambiguous. Id. § 14.07.
Otherwise, parol evidence could render official minutes uncertain and unreliable so that the minutes would fail to afford dependable evidence of the proceedings of the municipal body. See Berkeley Elec. Co-op., Inc. v. Town of Mount Pleasant,
308 S.C. 205, 208, 417 S.E.2d 579, 581 (1992)
While the litigation may be serious for the individual Plaintiffs, the above captioned litigation does not rise to the seriousness of redistricting cases where the Courts have been required to “smoke out” the motives of state legislators accused of gerrymandering legislative districts based on improper racial motives. See S.C. State Conf. of NAACP v. McMaster, 584 F. Supp. 3d 152 (D.S.C. 2022)
The role of the municipality, as opposed to individual legislators, in the litigation, None of the named individuals are alleged to have an individual role in the above captioned litigation.
Any acts that were done were done by the City of Myrtle Beach based on a majority vote of the City Council. Subjective evidence of the reasons for a decision by an individual legislator to vote is not proper for any of the issues in the above captioned lawsuit.
Further, Plaintiffs do not seek damages against any of the named individuals.
The extent to which the discovery would impede legislative action. Legislative privilege “guard[s] legislators from the burdens of compulsory process” and protects their independence. The court must be wary of any intrusion which subjects legislators to unnecessary and burdensome disclosure requirements and detracts from their representative functions. S.C. State Conf. of NAACP v. McMaster, 584 F. Supp. 3d 152, 165 (D.S.C. 2022).
The named individuals contend the subpoenas attack their legislative independence. Further the subpoenas subject them to unnecessary and burdensome disclosure
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