From: Joseph H. Hart, Judge, 126th District Court, Travis County, Texas

Re: Cause No. 96-07354: Dan Morales, in His Official Capacity as Texas Attorney General and the State of Texas vs. John C. Van Kirk, aka John C. Van Kirk, Carolyn Jackson Carney, et al.

June 26, 1997

Dear Counsel,

The question presented to me is whether Mrs. Carney should be compelled to disclose the membership list of the unincorporated association know as the Republic of Texas. I hold that she should not.

Mrs. Carney urges that the information is privileged as a result of the members' rights of privacy and association protected by the First Amendment to the United States Constitution. Once the privilege has been raised, the state has the burden of establishing a constitutionally permissible basis justifying disclosure. Ex parte Lowe, 887 S.W. 2nd 1 (Tex 1994). The state must show "so cogent an interest in obtaining amd making public the membership lists as to justify the substantial abridgment of associational freedom which such disclosures will affect." Id. [citing Bases v. City of Little Rock, 361 U.S. 516, 524-25, 80 S. Ct. 412, 416-17 (1960)]. The "state must show convincingly a substantial relation between the information sought and a subject of overriding and compelling state interests." Id [citing Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 543-46, 83 S. Ct. 889, 891-93 (1963).]

I agree with the state that curtailing the illegal activity of some members of the Republic of Texas is a significant and legitimate state concern. The question, however, is whether disclosure of the whole membership is justified when there is no evidence that more than a small minority of the members have engaged in such activity. There may be a number of complex motivations which impell an individual to sign himself or herself with the Republic of Texas. The mere presence of an individual's name on the organization's membership rolls is insufficient to impute to that person the organizations's illegal goals or the illegal actions of a few. See Families Unidas v. Briscoe, 619 F. 2d 391, 400-01 (5th Cir. 1980). The requested discovery subjects members who may not have participated in or approved of the organizations's illegal activities to public recrimination. With respect to these people, disclosure bears no relation to the state interests in deterrring the illegal activity. It "sweeps too broadly, and therefore cannot stand. It fails to take store of the individual members against whom it operates." Id.

The state urges that Mrs. Carney has waived any privilege or exemption from discovery by not timely seeking relief from the Court through responses, objections or a motion for protective order. I do not condone the manner in which Mrs. Carney has responded to the discovery request; in most situations I would tend to agree with the state's position. However, the effect of finding waiver in this case would not be to punish Mrs. Carney, but the members themselves whose privacy will be invaded by the disclosure. I find that they should not be prejudiced by Mrs. Carney's actions and hold that the First Amendment privilege is not waived.

Mrs. Carney should not be detained further solely for the failure to produce the Republic of Texas membership list.

Thank you,

(signature)

Joseph H. Hart, Judge