UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

Transcription

1 Case 2:11-cv JTM-JCW Document 309 Filed 08/16/12 Page 1 of 69 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA ROY FERRAND, LUTHER SCOTT, JR., and LOUISIANA STATE CONFERENCE OF THE NAACP, for themselves and all other persons similarly situated, CIVIL ACTION NO. 2: JTM - JCW v. TOM SCHEDLER in his official capacity as the Louisiana Secretary of State, RUTH JOHNSON, in her official capacity as Secretary of the Louisiana Department of Children & Family Services, and BRUCE D. GREENSTEIN, in his official capacity as Secretary of the Louisiana Department of Health & Hospitals, MEMORANDUM IN OPPOSITION TO MOTION FOR PARTIAL SUMMARY JUDGMENT (DOC 112) AND MOTION FOR SUMMARY JUDGMENT (DOC 241) MAY IT PLEASE THE COURT: This summary judgment is remarkable for the number of material facts in dispute. Virtually every fact advanced in support of the motion is at issue. Moreover, the plaintiffs evidence is in large part characterized by confusion, deception, misstatement and outright falsehoods. Nor is it clear what relief plaintiffs seek on summary judgment. The only relief provided by statute is declaratory, a declaration of the relationship and obligations of the parties to each other, FRCP 57, 28 U.S.C. 2201, and injunctive, FRCP 65, the terms of which -1-

2 Case 2:11-cv JTM-JCW Document 309 Filed 08/16/12 Page 2 of 69 are no where specified. Plaintiffs appears to seek a general pronouncement that these defendant did some things wrong in implementing the NVRA. I. Standard for Summary Judgment District courts shall grant summary judgment where the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. FRCP 56 (a). The evidence, as well as the inferences that may be drawn from the evidence must be viewed in the light most favorable to the party that opposing the motion for summary judgment. Little v. Liquid Air Corp., 952 F.2d 841, 847 (5 Cir 1992). Summary judgment will not lie if the dispute about a material fact is genuine, that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. As to materiality, the substantive law will identify which facts are material. Only a dispute over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. O Connor v. Smith, 427 Fed. Appx. 359 (5 Cir 2011). If the evidence would permit a reasonable trier of fact to find for the nonmoving party, then summary judgment should not be granted. Anaya v. Traylor Bros., Inc., 478 F. 3d 251, 253, (5 Cir 2007). rd Hurd v. Williams, 755 F.3d 306, 308 (3 Cir. 1985), holds that inadmissible lay opinion may not considered on summary judgment. For summary judgment, a declaration by an expert witness must meet two tests: (1) The opinion expressed must be admissible at -2-

3 Case 2:11-cv JTM-JCW Document 309 Filed 08/16/12 Page 3 of 69 trial under FRE 702 (expert s qualification) and FRE 703 (factual basis for the opinion) (see Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592, (1993)); and (2) The affidavit must also meet the requirement that it contain facts that would be admissible in evidence ; and, if offered in opposition to a motion, that it contain specific facts showing rd a genuine issue for trial. [See In re Paoli R.R. Yard PCB Litig., 916 F.2d 829, 832 (3 Cir. th 1990); Christophersen v. Allied-Signal Corp., 939 F.2d 1106, 1114 (5 Cir. 1991).] The expert must back up his or her opinion with specific facts: Expert opinion is admissible and may defeat summary judgment if it appears the affiant is competent to give an expert opinion and the factual basis for the opinion is stated in the affidavit, even though the underlying factual details and reasoning upon which the opinion is based are not. Bulthuis v. Rexall th Corp., 789 F.2d 1315, 1318 (9 Cir. 1985) (emphasis added); Major League Baseball nd Properties, Inc. v. Salvino, Inc., 542 F.3d 290, 311 (2 Cir. 2008). Expert declarations that contain nothing but conclusory allegations on the ultimate legal issue are not sufficient to th defeat summary judgment. Evers v. General Motors Corp., 770 F.2d 984, 986 (11 Cir. 1985); see M & M Med. Supplies & Servs., Inc. v. Pleasant Valley Hosp., 981 F.2d 160, 164 th (4 Cir. 1992); In re Segerstrom,, 247 F.3d 218, 227 (5th Cir. 2001); Major League Baseball nd Properties, Inc. v. Salvino, Inc., 542 F.3d 290, 311 (2 Cir. 2008). II. Standing and Subject Matter Jurisdiction A. General Principles The courts of the United States have an obligation to assure themselves of litigants -3-

4 Case 2:11-cv JTM-JCW Document 309 Filed 08/16/12 Page 4 of 69 standing under Article III of the U.S. Constitution. Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 180 (2000). Even if constitutional standing is not raised by the parties, the court must, where necessary, raise it sua sponte. SEC v. Forex Asset Management, LLC, 242 F.3d 325, 328 (5 Cir. 2001). This is so because the Federal Judiciary s authority to exercise judicial review and interpret the Constitution on the necessity to do so in the course of the judicial function of deciding cases. Marbury v. Madison, 5 U.S. 137 (1803). The case or controversy requirement under Article III assumes particular importance in ensuing that the Federal Judiciary respects the proper and properly limited role of the courts. Allen v. Wright, 468, U.S. 737, 750 (1984). If a dispute is not a proper case or controversy, the courts have no business deciding it or expounding the law in the course of doing so. No principle is more fundamental to the judiciary s proper role in our system of government than the constitutional limitation of federal court jurisdiction to actual cases or controversies. Raines v. Byrd, 521 U.S. 811, 818 (1997). The case or controversy requirement thus plays a critical role, and Article III standing enforces the Constitution s case or controversy requirement. DaimlerChrysler Corporation v. Charlotte Cuno, et al, 547 U.S. 332, (2006). Article III standing enforces the case or controversy requirement. Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 11 (2004). Plaintiff s bear the burden of proving standing in order to invoke the court s jurisdiction under Art III s case or controversy requirement. -4-

5 Case 2:11-cv JTM-JCW Document 309 Filed 08/16/12 Page 5 of 69 The inducible constitutional minimum of standing contains three elements. First, that plaintiffs must have suffered an injury in fact, an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of - - the injury has to be fairly traceable to the challenged action of the defendant. Third, it must be likely as opposed to merely speculation that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, (1992). The party invoking federal jurisdiction bears the burden of establishing these elements. At the pleading stage, general factual allegations of injury resulting from the defendant s conduct may suffice, for on a motion to dismiss we presum[e] that general allegations embrace those specific facts that are necessary to support the claim. In response to a summary judgment motion, however, the plaintiff can no longer rest on such Mere allegations, but must set forth by affidavit or other evidence specific facts, which for purposes of the summary judgment motion will be true. And at the final stage, those facts (if controverted) must be supported adequately by the evidence adduced at trial. Lujan, 561 [internal citations omitted] Lujan established that at the summary stage, a party may not rely upon allegations in the complaint to prove standing. The Fifth Circuit followed the Lujan rule in that regard in th Ford v. Nylcare Health Plans of the Gulf Coast, Inc., 301 F.3d 329 (5 Cir 2002). At the summary judgment stage, the plaintiff can no longer rest on mere allegations but must set forth by affidavit or other evidence specific facts validating his right to standing. Ford,

6 Case 2:11-cv JTM-JCW Document 309 Filed 08/16/12 Page 6 of 69 At the pleadings stage of the proceedings or upon a motion to dismiss, the general allegations of injury resulting from defendants conduct may suffice to establish standing. But, at the summary judgment stage, each element of standing must be supported in the same way as any other matter on which the plaintiffs bear the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation. Lujan, supra; Inclusive Communities Project, Inc. v. Texas Department of Housing and Community Affairs, 749 F. Supp.2d 486 (D.C.,N.D. Tex.,2010). Plaintiff must prove standing on summary judgment just as any other element of the case. Lujan, 561. In order to carry their burden on summary judgment, plaintiffs must show with evidentiary support that no genuine dispute of material fact exists with respect to plaintiffs standing. FRCP 56(a). While Judge Africk determined that the allegations of the complaint were sufficient to withstand a challenge of standing on a 12(b)(6) motion, [Doc 71] plaintiffs may not rely upon mere allegations at the summary judgment stage. Lujan, supra. At the summary judgment stage, the plaintiff can no longer rest on mere allegations but must set forth by affidavit or other specific facts validating his right to standing. Ford v. Nylcare, at , citing Lujan 504 U.S. at 561. Where plaintiffs fail to prove on summary judgment that no material factual dispute exists with respect to any element for plaintiffs standing, summary judgment cannot be granted in that party s favor because the basis for the exercise of the court s jurisdiction has not been shown. -6-

7 Case 2:11-cv JTM-JCW Document 309 Filed 08/16/12 Page 7 of 69 In order to determine whether there is a genuinely disputed issue of material fact on standing, FRCP 56(a) requires that the court examine the record for factual issues on each of the three elements of standing - - (1) whether the plaintiff suffered on injury in fact - - invasion of an interest that is both concrete and particularized and actual ir imminent, (2) a causal connection between the injury and the challenged action of the defendant, and (3) it must be likely, as opposed to speculative, that the injury will be redressed by a favorable th decision. ACORN v. Fowler, 178 F.3d 350, 356 (5 Cir 1989). With respect to standing of the remaining individual plaintiff, Luther Scott, Jr., plaintiffs must show with evidentiary support that there is no genuine dispute of material fact that defendants conduct aggrieved or caused him injury, which would be redressed by the relief sought in the litigation. Ford v. Nylcare Health Plans of the Gulf Coast, Inc., 301 F.3d 329, 333 (5 Cir. 2002). The plaintiff bears the burden of proving that he was aggrieved gg9(b). th See also Acorn v. Fowler, 178 F.2d 350, 357 (5 Cir. 1999), where the Fifth Circuit recognized that the consideration of standing at the pleading stage and the consideration of standing at a summary judgment stage are not the same, and identified what an organizational plaintiff must in part prove: At the pleading stage, general allegations of injury resulting from the defendant s conduct may suffice, for on a motion to dismiss we presum[e] that general allegations embrace those specific facts that are necessary to support the claim. *** by a violation of the NVRA in order to prove statutory standing under 42 U.S.C

8 Case 2:11-cv JTM-JCW Document 309 Filed 08/16/12 Page 8 of 69 When the defendant moves for summary judgment because of lack of standing, however, the plaintiff must submit affidavits and comparable evidence that indicate that genuine issue of fact exists on the standing issue. *** Therefore, to demonstrate standing, ACORN must point to specific summary judgment evidence showing that it was directly affected by Louisiana s alleged NVRA violations. (Citations omitted) B. Individual Standing of Luther Scott, Jr. Luther Scott, Jr. lacks standing under 42 U.S.C gg9(b) as a person aggrieved by a violation of the Act. The plaintiffs evidence that Luther Scott, Jr. was aggrieved or injured by defendants conduct is so tainted by false attestation and material misrepresentation that it is not worthy of belief. When plaintiffs initially moved for summary judgment, they omitted evidence of standing. Defendants pointed out the deficiency in plaintiffs filing, and plaintiffs then filed Declarations designed to support standing. The Declaration of Luther Scott, Jr., shown to be executed on March 4, 2012, was filed on March 12, 2012 as Doc The Declaration was filed pursuant to 28 U.S.C under penalty of perjury. Luther Scott, Jr. signed the Declaration attesting, I declare under penalty of perjury that the foregoing is true and correct. Scott blatantly violated his attestation that the foregoing is true and correct by making statements that are demonstrably false in his Declaration. Instances of Scott infidelity to objective facts include: 1. In No. 4 of the Declaration, Scott attests, I was last registered to vote at a -8-

9 Case 2:11-cv JTM-JCW Document 309 Filed 08/16/12 Page 9 of 69 current address when I lived in New Orleans before Hurricane Katrina in This attestation was made on March 4, 2012 and filed into the record by the plaintiffs on March 12, This attestation is false. The Declaration of Angie Rogers, Commissioner of Elections for the State of Louisiana (Doc 178-4, 179-3) reflects that Luther Scott, Jr. filed voter registration applications first on May 23, 2008 and second on August 10, 2008 and became registered to vote on June 10, The applications are attached to Ms. Roger s Declaration as Exhibit A and Exhibit B, and his registration is shown on Exhibit C printed from the ERIN voter registration system maintained by the Secretary of State. Scott admitted in his deposition that the 2008 registration was at his then current address at 510 St. Patrick Street. Depo. of Luther Scott, Jr. May 10, 2012, SOSEx1, pp Scott tried to explain away the gap between his Declaration and the fact that he was registered to vote at a current address as recently as 2008 as a lapse of memory. However, this explanation is no more credible that Scott s Declaration. It suits the situation. 2. In No. 6 of his Declaration, Scott attests, I have not declined to register to vote in writing during the benefits application or renewal process. The fact is that on 12/19/11, he did exactly that. The Supplemental Response to Request for Production of Documents No. 9 by the Department of Children and Family Services contains an Application for Assistance for the Supplemental Nutrition Assistance Program (SNAP) on a Louisiana Department of Children and Family Services form, signed by Luther Scott, giving an address of

10 Case 2:11-cv JTM-JCW Document 309 Filed 08/16/12 Page 10 of 69 Gravier Street, N.O. (SOSEx3) Page 13 of that application is a voter declination form. It asks, If you are not registered to vote where you live now, would you like to apply to register to vote? Luther Scott checked the NO box, signed the declination and dated it 12/19/11. This declination to register was signed only three months before Scott executed the Declaration in which he attested under penalty of perjury that he did not decline to register to vote in writing during his benefits application. Further, on 9/1/09, Luther Scott filled out and signed an Application for Assistance for Food Stamps on a Louisiana Department of Social Services, Office of Family Support form (Doc in the court record) giving an address of 1301 S. Derbigny Street. Page 14 of the application (page 17 of Doc 178-3) is another voter declination form. It was signed by Luther Scott and dated 9/1/09. While he did not check the YES or the NO box, the NVRA and the form itself provide that the failure to check either box constitutes a declination to register. No. 6 of the Declaration is both provably false and material to the case. It is of no avail for the plaintiffs to argue that they did not use the false or perjurious portions of the Declaration as evidence. At best, Luther Scott, Jr. has one of the worst memories on record with regard to key parts of his Declaration; at worst, the Declaration was fabricated for the purpose of proving standing, and the plaintiffs got caught filing a Declaration that is false at least in part. Just as importantly, the plaintiffs have not even at this late date informed the court that the Declaration attests to facts that are not true. Instead, plaintiffs continue to urge -10-

11 Case 2:11-cv JTM-JCW Document 309 Filed 08/16/12 Page 11 of 69 the court to rely on parts of the Declaration for purposes of their summary judgment motion. Whether Scott should be advised separately on any potential criminal exposure resulting from his failure to give the court true and correct information under penalty of perjury is not a judgment for Schedler to make, but at some point, that may become a concern for the court In Declaration No. 11, Scott declared, I did not decline to register to vote in writing during the benefits application process referring to his food stamps application in Again, on 9/1/09, Luther Scott filled out and signed an Application for Assistance for Food Stamps on a Louisiana Department of Social Services, Office of Family Support form (Doc in the court record) giving an address of 1301 S. Derbigny Street. Page 14 of the application (page 17 of Doc 178-3) is another voter declination form. It was signed by Luther Scott and dated 9/1/09. While he did not check the YES or the NO box, the NVRA and the form provide that the failure to check either box constitutes a declination to register by operation of law. 4. In Declaration No. 12, Scott declared, At no time in the application for benefits or renewal of benefits has anyone asked him if he would like to register to vote. 1 The filing of false unsworn statements in a declaration made pursuant to 28 U.S.C. Section 1746 has been determined to subject the person filing such false statements to criminal charges for perjury under 18 U.S.C. Section 1623(a) and other statutes. United States v. Gomez- Vigil, 929 F.2d 254 (6 Cir. 1991). Because the facts in this case so closely approach those outlined in Gomez-Vigil, the potential exposure to criminal prosecution is more than speculative. -11-

12 Case 2:11-cv JTM-JCW Document 309 Filed 08/16/12 Page 12 of 69 To the contrary, Doc (Supplemental Response to Request No. 8 by Department of Children and Family Services) contains an intake note by staff member sbanks in connection with Scott s application for benefits on 9/1/09. The note reflects, inter alia discussed voters registration. Bolstering s. banks intake note is p. 14 of the application, the top portion of which offers Scott the opportunity to register to vote in conjunction with his application for benefits. The subject form is signed by Scott showing that the form was presented to him as indicated in the sbanks intake note. Scott cannot reasonably claim that he was aggrieved in the sense that the defendants impaired his opportunity to register to vote or register at his current address. The truth is that Scott has declined to register to vote during the benefits application process as shown above and has then adamantly refused to register when given the opportunity ever since. It is instructive to consider Scott s continuing refusal to register in the past year. To review the number of times that Scott has been given the opportunity to register to vote and the number of times that he has declined: 1. As noted above, Scott executed a declination form and declined to register on 9/1/09. On that occasion, Luther Scott filled out and signed an Application for Assistance for Food Stamps on a Louisiana Department of Social Services, Office of Family Support form (Doc in the court record) giving an address of 1301 S. Derbigny Street. Page 14 of the application (page 17 of Doc 178-3) is another voter declination form. It was signed -12-

13 Case 2:11-cv JTM-JCW Document 309 Filed 08/16/12 Page 13 of 69 by Luther Scott and dated 9/1/09. While he did not check the YES or the NO box, the NVRA and the form provide that the failure to check either box constitutes a declination to register. 2. On June 23, 2011, shortly after this suit was filed, Amy Colby, Executive counsel for the Department of Children and Family Services, sent a letter to Scott s attorney inviting Scott to apply to register, offering assistance with the registration and enclosing with the letter a mail in voter registration form. (Doc in the case record). Scott did not fill out the form or try to use it to register. This is how he tried to explain away his refusal to register in response to Ms. Colby s letter in the deposition that he gave on May 10, 2012 (SOSEx1): EXAMINATION BY MR. JONES: Q. This is a Voter Registration form. Do you understand that this is what the documents are that I have just shown you? A. Yes. Q. Do you know what a Voter Registration form is? A. Do I know what it is or what it looks like? What are you saying? Q. Do you know what it looks like? A. Yes. Q. And have you been offered or given or seen a Voter Registration form since 2008? Q. Have you seen a blank Voter Registration form -13-

14 Case 2:11-cv JTM-JCW Document 309 Filed 08/16/12 Page 14 of 69 since 2008? A. I have seen one, yes. Q. Where did you see one? MS. KORGANONKAR: Objection. MR. JONES: As to where he has seen a Voter Registration form? I m sorry, but I MS. KORGAONKAR: You can answer. THE WITNESS: One was given to my lawyer after this, and he showed it to me. EXAMINATION BY MR. JONES: Q. When you say after this, you mean after suit was filed? A. After this thing came up, they give it to him, and he give it to me. Q. Did you fill it out? A. No, I haven t. Q. Why not? A. It should have been something I got at the Food Stamps office at the time, but I didn t. I had been there a year, and I never received or knew about one at the Food Stamps office, so I haven t filled it out. Q. Do you want to register to vote? A. Of course. -14-

15 Case 2:11-cv JTM-JCW Document 309 Filed 08/16/12 Page 15 of 69 Q. Did you understand that you could have filled out that form and registered to vote by using it? A. Yes. Q. And you chose not to? A. I still haven t done it so far, not that I chose not to. SOSEx1, pp Scott declined to register, again, on 12/19/2011 on his own accord. The Supplemental Response to Request for Production of Documents No. 9 by the Department of Children and Family Services contains an Application for Assistance for the Supplemental Nutrition Assistance Program (SNAP) on a Louisiana Department of Children and Family Services form, signed by Luther Scott, giving an address of 1803 Gravier Street, N.O. (SOSEx3) Page 13 of that application is a voter declination form. It asks, If you are not registered to vote where you live now, would you like to apply to register to vote? Luther Scott checked the NO box, signed the declination and dated it 12/19/11. This declination to register was signed only three months before Scott executed the Declaration, attesting under penalty of perjury, that he did not decline to register to vote in writing during his benefits application. 3. On May 10, 2012, during his deposition, Scott was offered yet another opportunity to register to vote. During the examination by Celia Alexander, counsel for DCFS, Mr. Scott declined to register, incredibly enough, on advice of his counsel. EXAMINATION BY MS. ALEXANDER: Q. Mr. Scott, we have a Voter Registration card with us -15-

16 Case 2:11-cv JTM-JCW Document 309 Filed 08/16/12 Page 16 of 69 today from the Department of Children and Family Services. Would you like to complete that Voter Registration card today? MS. KORGAONKAR: Objection. I am going to ask you not to answer that question. MS. COLBY: Based on what? MS. KORGAONKAR: I don t think it s relevant to this case. MS. ALEXANDER: Well, an objection to relevance doesn t keep him from answering the question. He can answer it so we can move on. MS. KORGAONKAR: I am going to instruct you not to answer that. EXAMINATION BY MS. ALEXANDER: Q. So, Mr. Scott, are you refusing to answer a question that asked you whether or not you would like to complete the Voter Registration card today? A. Pardon me, ma am? Q. Are you refusing to answer the question of whether or not you would like to complete a Voter Registration card today? A. Am I refusing to answer the question of whether or not Q. Yes. A. Yes, I guess you could say that. SOSEx1, pp

17 Case 2:11-cv JTM-JCW Document 309 Filed 08/16/12 Page 17 of 69 Scott testified further: EXAMINATION BY MS. ALEXANDER: Q. As an agent for the Department, I am extending you the opportunity to register to vote. Would you like to register to vote? MS. KORGAONKAR: Objection. Same objection as before. You don t have to answer that question. MS. ALEXANDER: I just wanted that to be clear on the record. I think that s all we have for the Department. Thank you, Mr. Scott. SOSEx1, p Again, at his second deposition on July 31, 2012, Scott was given yet another opportunity to complete a voter registration form, and again, he declined. SOSEx2. EXAMINATION BY MS. ALEXANDER: Q. Mr. Scott, I am Celia Alexander with DCFS, the Department of Children and Family Services. At your previous deposition, we asked questions related to voter registration and your opportunity to register to vote with the Department, so I am going to continue with that line of questioning, okay? A. Okay. Q. We presented you originally with a voter registration card, and I would like to again present that to you for your review. MR. HO: Are you marking this? MS. ALEXANDER: That s already been entered, if I am correct, as DCFS 1 or 2. EXAMINATION BY MS. ALEXANDER: -17-

18 Case 2:11-cv JTM-JCW Document 309 Filed 08/16/12 Page 18 of 69 Q. Mr. Scott, have you seen a voter registration card before? A. Yes ma am, I have. Q. As an agent of the department, I am extending you the opportunity to register to vote through the Department. Would you like to register to vote today? A. Yes, if it would not - - if you can guarantee me some kind of assurance that it would not affect the statement and the outcome of what s happening here today. Q. So your answer is yes, you would like to register to vote? A. I would like to register to vote. Q. Would you like me to assist you with that right now or would you like to do that before we leave? A. No, I will do it later. Q. Okay. So before you leave, I will assist you, and we can step to the back of the courtroom and go through the voter registration card. A. But you haven t assured me that this isn t going to deter the outcome of this. That was my question. Now, if I fill this out now, what will be the outcome of me filling this out at this time? That was my reason for not doing it the last time. I don t know the outcome, you know, whether because I fill this out means that I don t need to be here in this proceeding or whatever. That was my reason for not doing it then. Q. All right. A. Now, can you assure me of that? Q. My position with the Department is to offer you the opportunity to register to vote as an agent with the -18-

19 Case 2:11-cv JTM-JCW Document 309 Filed 08/16/12 Page 19 of 69 Department. If you have legal questions, I am going to refer you to your counsel for any responses to any legal questions that you have. They will be able to discuss that with you. A. But you cannot assure me of that? Q. I cannot answer any questions, but I can offer you the opportunity to register to vote, and that s what I am extending to you today. A. Okay. Well, I will accept this, and I will fill it out at my convenience, then. Q. So you would not like to register to vote today and do not want my assistance? A. Only if you can assure me that this is not going to affect the case, ma am. Until I have some assurance, I will just take this under advisement, and I will fill it out, but not necessarily at this moment this day. Q. Okay. So you won t fill it out today. Thank you. Just a follow-up question. Had you been presented with that card before by your attorneys that was sent to you - - directed to your attorneys through DCFS? A. Yes, ma am, I saw one that you guys - - I m sorry - - that your department gave him, yes. SOSEx2, pp The Second Declaration of Angie Rogers, Louisiana Commissioner of Elections (SOSEx12) reflects that as of August 13, 2012, Luther Scott, Jr. still had not filed the voter register application form given to him on July 31, 2012 at his deposition. Scott would rather be a plaintiff in this lawsuit than register to vote. In no sense was Scott aggrieved or injured by any purported violation of the NVRA. -19-

20 Case 2:11-cv JTM-JCW Document 309 Filed 08/16/12 Page 20 of 69 Scott and his lawyers tried to manufacture a grievance, but the factual components needed for their end product did not exist. Scott attested, falsely, that he was last registered to vote at a current address prior to Katrina in This was not true. He registered in 2008 at his then current address. In 2009, he signed, dated and submitted a declination form declining to register in connection with his food stamps application for benefits. On 12/19/2011, he signed, dated and submitted a second declination form in connection with his application for SNAP benefits. He declined the opportunity again in June 2011 when legal counsel for DCFS sent an application form with an offer to assist to Scott s attorney. In May 2012, when given the opportunity to register at his deposition by legal counsel for DCFS, he again declined. At his second deposition on July 23, 2012, he was offered the opportunity to register and declined. The Second Declaration of Angie Rogers, Louisiana Commission of Elections (SOSEx12) reflects that as of August 13, 2012, Scott still had not filed the voter registration form given to him at the July 31, 2012 deposition. In his second deposition, when his lawyers could not interfere with his testimony, Scott told the truth. He refuses to register because he wants to be a plaintiff in this lawsuit. Plaintiffs have the burden to prove that there is no issue of material fact as to Scott s standing. On the credible evidence before the court, they failed miserably in carrying that burden. Rather, on the evidence, there is no issue of material fact that Scott lacks the requisite statutory standing under 42 U.S.C. Section 1973-gg9(b). He was not aggrieved by a violation of the NVRA. Maybe he was aggrieved by his own ill choices or bad legal -20-

21 Case 2:11-cv JTM-JCW Document 309 Filed 08/16/12 Page 21 of 69 advice, but he was not aggrieved by the defendants conduct. C. Standing of the Louisiana State Conference of the NAACP With respect to the standing of the unincorporated association plaintiff, Louisiana State Conference of the NAACP, early on in this proceeding, Schedler sought to have the complaint dismissed on the lack of standing of the Louisiana State Conference of the NAACP to bring this suit. Judge Africk, then presiding, denied the motion to dismiss the NAACP s claims due to lack of standing (Doc 71, p. 7). Judge Africk there noted that in the Complaint (Doc 1), the NAACP does not allege that any of the individual members have suffered any injury due to the Defendants actions, the NAACP must demonstrate that it has standing to sue as an organization. The Court then reviewed the allegations of the Complaint to determine only if organizational standing was there sufficiently alleged to allow the case to proceed. See Doc. 71, pp. 6-7: The Court examines plaintiffs complaint to determine if the NAACP alleges that it has expended such wasted resources. [G]eneral factual allegations of injury resulting from the defendant s conduct may suffice, for on a motion to dismiss we presum[e] that general allegations embrace those specific facts that are necessary to support the claim. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (quoting Lujan v. National Wildlife Federation, 497 U.S. 871, 889 (1990)). In their complaint, plaintiffs have alleged that [v]oter registration and education is a core component of the Louisiana NAACP s mission and central to the accomplishment of its 2 objections. As such, the NAACP conducts voter registration drives in low-income and minority Louisiana communities, and allocates volunteers and resources to areas with the greatest 2 R. Doc. No. 1, p

22 Case 2:11-cv JTM-JCW Document 309 Filed 08/16/12 Page 22 of 69 need. Due to defendants alleged non-compliance with the NVRA, the NAACP alleges that it must send volunteers to assist people with voter registration and education who should 3 have been offered those services by defendants. If defendants provided the NVRA-mandated voter registration services, the NAACP maintains that it could reallocate volunteers to other activities altogether, including disaster-related activities or 4 after-school tutoring programs. Defendants do not dispute that the NAACP allocates resources to these activities. As the Fifth Circuit recognized in Fowler, having to expend these wasted resources on additional voter registration initiatives is traceable to defendants failure to comply with the NVRA, and this injury would be redressed by a decision in the NAACP s favor requiring defendants to comply. The NAACP has demonstrated that it satisfies the injury requirement and that it has standing to sue. See Lujan v. Defenders of Wildlife, 504 U.S. 555, (1992). Judge Africk, in deciding the motion to dismiss in this case, 2011WL , left a road map as to what the defendant must prove to establish Article III standing in this case. Judge Africk did not decide that standing had been proven, he merely decided that, upon considering the factual allegations of the Complaint, accepting all well pleaded facts as true, and liberally construing in the light most favorable to plaintiffs, that the motion to dismiss the Louisiana State Conference of the NAACP claims should be denied at that stage. Judge Africk s decision on the motion to dismiss did not dispense with the requirement that standing must be proven by facts at trial (or on a motion for summary judgment) in order to entitle the Louisiana State Conference of the NAACP to relief. 3 R. Doc. No. 1, p R. Doc. No. 1, p

23 Case 2:11-cv JTM-JCW Document 309 Filed 08/16/12 Page 23 of 69 In its opposition to plaintiffs Motion For Partial Summary Judgment (Doc 112), Schedler raised the issue of Article III standing and pointed out that plaintiffs had neglected to present any evidence or Statement of Uncontested Material Fact that would tend to prove standing. While plaintiffs argued in their reply memorandum that they do not bear the burden of proving their standing as an essential element of summary judgment, the Fifth Circuit has taken a different view and specifically held in Ford v. Nylcare Health Plans of the Gulf th Coast, Inc., 301 F.3d 329 (5 Cir. 2002), that a plaintiff must prove Article III standing on summary judgment. The party invoking federal jurisdiction bears the burden of proof in establishing all necessary elements. The failure to establish standing deprives the federal courts of jurisdiction to hear the suit. Ford, at p. 332, citing Rivera v. Wyeth-Ayerst Labs., th 283 F.3d 315, 319 (5 Cir. 2002). Article III Standing is a threshold issue that must be proved in the same manner as any other element of the case. Article III Standing must be addressed before all other issues because it determines the Court s fundamental power even to hear the suit. Ford, 332. Constitutional standing is a threshold issue that must be addressed before examining issues of prudential standing. Ford, 332, citing Joint Stock Soc y v. UDV N. Am., Inc., 266 F.3d rd 164, 175 (3 Cir. 2001). Schedler specifically raised plaintiffs lack of standing in the Answer to the complaint. (Doc 80, Second Defense). Art. III standing cannot be waived since it is required for the court to have jurisdiction over the case. Standing must be proved, -23-

24 Case 2:11-cv JTM-JCW Document 309 Filed 08/16/12 Page 24 of 69 and the plaintiff has the burden of proving it. While Schedler s earlier motion to dismiss based upon standing was denied because the allegations of the Complaint were sufficient to withstand a 12(b)(6) challenge, the plaintiff on summary judgment cannot rely upon mere allegations of standing but must affirmatively prove standing as any other fact. Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). Schedler suggests that the Court s grant of the motion for partial summary judgment is in error for failure to contain proof of standing. The Court is here urged to reexamine/reconsider that previous grant and reverse same as the evidence is fraught with issues as to standing. Judge Africk merely found that the Louisiana State Conference of the NAACP had alleged in its Complaint sufficient allegations to survive the motion to dismiss. In reviewing the factual allegations, Judge Africk was careful to note that [G]eneral factual allegations...may suffice, for on a motion to dismiss we presum[e] that general allegations embrace those specific facts that are necessary to support the claim, citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (quoting Lujan v. National Wildlife Federation, 497 U.S. 871, 889 (1990)). standing: Judge Africk outlined the relevant allegations of the Complaint with respect to In their complaint, plaintiffs have alleged that [v]oter registration and education is a core component of the Louisiana NAACP s mission and central to the accomplishment of its objectives. As such, the NAACP conducts voter registration -24-

25 Case 2:11-cv JTM-JCW Document 309 Filed 08/16/12 Page 25 of 69 drives in low-income and minority Louisiana communities, and allocates volunteers and resources to areas with the greatest need. Due to defendants alleged non-compliance with the NVRA, the NAACP alleges that it must send volunteers to assist people with voter registration and education who should have been offered those services by defendants. If defendants provided the NVRA-mandated voter registration services, the NAACP maintains that it could reallocate volunteers to other activities altogether, including disaster-related activities or after-school tutoring programs. Judge Africk noted that Defendants did not dispute that the NAACP allocate resources to these activities. However, that lack of dispute for only for purposes of the motion to dismiss challenge to standing, whether the plaintiff had alleged sufficient allegations to survive the challenge on the face of the pleadings, accepting all well pleaded allegations as true. Defendants do dispute, both for the purpose of the motion for summary judgment and trial, whether the Louisiana State Conference of the NAACP has expended resources on voter registration activities. That is the first of the several elements the plaintiffs must prove to establish standing and its right to any relief. Judge Africk outlined what the Louisiana State Conference of the NAACP plaintiff must prove in order to prove standing in this case. Consequently, organizations like the [Louisiana State Conference of the] NAACP only have to demonstrate that they have constitutional, or Article III, standing, a plaintiff must allege [and later prove]: (1) an injury in fact; (2) fairly traceable to the defendant s actions; and (3) cupable from being addressed by a favorable decision from the court. 2011WL , p. 3. * * * In essence, plaintiffs must demonstrate that they have personally suffered some actual or threatened injury as a result -25-

26 Case 2:11-cv JTM-JCW Document 309 Filed 08/16/12 Page 26 of 69 of the putatively illegal conduct of the defendant, that the injury fairly can be traceable to the challenged action, and that the injury is likely to be redressed by a favorable decision. 2011WL , p. 4 Judge Africk correctly notes that the Complaint does not allege that any of its individual members have suffered an injury due to the defendants actions and notes that the Louisiana State Conference of the NAACP must demonstrate that it has standing to sue as an organization and Consequently, the [Louisiana State Conference of the] NAACP must show the organization, itself, satisfies the injury requirement. 2011WL , p. 4. Against this backdrop, the Court should evaluate the evidence offered in support of and in opposition to the motion for summary judgment, not only to determine if there are sufficient issues of material fact to deny relief at the summary judgment stage due to lack of standing but also with an eye to determining whether the plaintiff so lacks standing that its claim should be dismissed. (1) Injury in fact? The Complaint allegations of injury in fact are of wasted resources, such as those found by the Fifth Circuit to serve as the basis of organizational standing in Ass n of Comm. th Org. v. Fowler, 178 F.3d 350, 361 (5 Cir. 1999):...expended resources registering voter in low registration areas who would have already registered if the appellees had complied with the requirement under the NVRA that Louisiana must make voter registration material available at public aid offices. Thus, a portion of the resources ACORN has spent and currently -26-

27 Case 2:11-cv JTM-JCW Document 309 Filed 08/16/12 Page 27 of 69 spends on voter registration drives counteracts Louisiana s alleged failure to implement the Act. It is these wasted resources, which ACORN could have put to use registering voters that the NVRA, even properly implemented, would not have reached (or which ACORN could have put toward any other use it wished), that provide ACORN with standing to pursue its claim in its complaint, that Louisiana has failed to comply with [the NVRA], on its own behalf. quoted by Judge Africk at 2011 WL , pp The plaintiff, Louisiana State Conference of the NAACP, fails on this first prong. The evidence offered in support of and in opposition to the motion for summary judgment fails to establish that the Louisiana State Conference of the NAACP expended any resources at all in conducting any voter registration drives, or that it even conducted any voter registration drives. The only evidence offered on this point is the Declaration of Edward Taylor, III, a declaration fraught with challenges to its correctness, its authorship, and its truthfulness. However, when measured against the evidence (or actually the lack of evidence) provided by the Louisiana State Conference of the NAACP in (SOSEx9) of the conduct by the Louisiana State Conference of the NAACP of any voter registration drives or expenditure of any resources therefor, the Louisiana State Conference of the NAACP must be found to have failed to prevail on this issue. Not only are there issues of material fact, but there is no proof at all. The failure to prevail on this issue makes discussion of the other 2 prongs of proof required for standing moot. (2) Fairly traceable to the defendant s actions? -27-

28 Case 2:11-cv JTM-JCW Document 309 Filed 08/16/12 Page 28 of 69 Because the Louisiana State Conference of the NAACP has no injury, no wasted resources, there is nothing that can be measured as fairly traceable to actions of the Louisiana Secretary of State. What they complain about did not happen to them. The Secretary of State s duties as chief election official under the NVRA are to coordinate responsibilities. See SOSEx11, 12, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30 and 31 detailing and exemplifying actions taken by the Secretary of State in discharge of that responsibility. Thus, not only is there no injury to the Louisiana State Conference of the NAACP established by the record, there is no evidence of any failure to discharge that duty causing any harm to the plaintiff. Furthermore, the jurisprudence hold that it is not sufficient to declare in the abstract that a violation by the Secretary of State occurred. What plaintiff seeks to prove for the fact of NVRA violations are a Numbers Game, fraught with issues of fact and faulty analysis, with no showing that those numbers, even if they establish anything, are attributable to actions of the Secretary of State. (3) Capable of being redressed by a favorable decision from the court? No injury established, therefore nothing traceable to actions of the Secretary of State, thus nothing to redress. D. The Evidence Submitted By Louisiana State Conference of NAACP In Support of Standing Plaintiffs only argument with respect to standing of the Louisiana State Conference of the NAACP is cited in a footnote in its memorandum (Doc , fn 1, pp. 3-4): -28-

29 Case 2:11-cv JTM-JCW Document 309 Filed 08/16/12 Page 29 of 69 Plaintiff Louisiana NAACP has standing to bring its claims in this matter. The Louisiana NAACP has devoted resources to registering voters in light of Defendants failure to provide voter registration services to public assistance benefits clients. Ferrand v. Schedler, No , 2011 WL , at *4 (E.D. La. July 21, 2011); Doc. 1, Compl. 107 et seq.; Doc , Pls. Partial Summ. J. Reply Br., at 27; Doc. 190, Pls. Partial Summ. J. Surreply Br., at 3. Plaintiff Louisiana NAACP s allegations of standing are supported by a sworn declaration, which this Court has ruled does not state conclusory facts. Ex. 1, Tr. of Oral Argument at 3:20, Ferrand v. Schedler, No , 2012 WL (E.D. La. Apr. 20, 2012). The only evidence cited in the footnote 1 is the sworn declaration, the Declaration of Edward W. Taylor, III (Doc and Doc 185-1), such compromising the sum total of evidence submitted in support of standing of the Louisiana State Conference of the NAACP. 1. Declaration of Edward Chipps Taylor At first blush, this Court noted that it felt that Taylor s Declaration did not state conclusory facts. Schedler respects the Court s ruling in that regard, but the record is clear that the Louisiana State Conference of the NAACP has no evidence to substantiate Taylor s statements, if the statements are Taylor s at all, from all appearances an unlikely assumption. See generally Schedler s response to plaintiffs statement of material fact No. 29 in Statement of Defendant Schedler of Genuine Issues In Opposition to Plaintiffs Motion For Summary Judgment, finding genuine issues of material fact with every statement in the Taylor declaration, except the first two regarding his name and residence. Since the declaration was filed with the Court, counsel for plaintiffs admitted to -29-

30 Case 2:11-cv JTM-JCW Document 309 Filed 08/16/12 Page 30 of 69 defense counsel (but has never informed the Court) that the declaration contains a couple of points in Reverend Taylor s Declaration that are incorrect.... (SOSEx5, p. 9) When asked about inaccuracies in the declaration, Taylor stated that there was one statement that was incorrect (SOSEx5, pp ), in statement Number 3 on the first page, incorrectly stating the length of his membership in the Louisiana State Conference of the NAACP. The statement by counsel that there are more than one (a couple of) incorrect statements in the declaration, the admission by the declarant of only one correction, and the failure to notify 5 the Court of any inaccuracies at all create issues of material fact on the veracity of the entire declaration of Taylor. Also materially at issue is the identity of the individual or individuals who composed the Taylor declaration. Taylor refused to answer, on advice of counsel, based on attorney client privilege, when he learned that something alleged in his declaration was incorrect (SOSEx5, pp ), although he does note that the decision of incorrectness was not his, I didn t decide. (SOSEx5, 81:3) Taylor likewise refused to answer when he first saw the declaration, on an assertion of attorney client communications and work product. (SOSEx5, pp ). In rapid succession thereafter he then refused to answer the following questions: Q. Who prepared the Declaration? * * * 5 Plaintiff counsel notified defense counsel of inaccuracies in the Taylor declaration on June 6, Plaintiff counsel have yet to notice the Court of inaccuracies; and continue to cite the Taylor Declaration to the Court, uncorrected, as late as July 3,

31 Case 2:11-cv JTM-JCW Document 309 Filed 08/16/12 Page 31 of 69 A. Who wrote the statements that are contained in the Declaration? * * * Q. Did you write the statements that are in this Declaration? Did you compose them? Are they your words? Each time the objection was that the answer to these questions would divulge attorney client communication and work product. (SOSEx5, p. 83). These privilege claims can lead to no other conclusion than the Declaration was not prepared, drafted or written by Taylor, but by some unidentified attorney. Taylor does admit he signed the Declaration on March 30, 2012 and at first states he did not totally read it when he signed it, but later thinks better of that answer and its implications and then states he did totally read it. (SOSEx5, pp ) When asked whether use of different terms in the statement was intentional, the plaintiffs attorney again objected on the ground of divulgence of work product, another indication that the declaration was drafted by an attorney, not Taylor. (SOSEx5, p. 87) Also, when asked questions about topics discussed in the Declaration, Taylor took it upon himself to refer to the Declaration before answering (SOSEx5, p. 97), suggesting perhaps that the statements contained therein might not be his own. See also SOSEx5, pp And when asked the innocuously usual question asked of a declarant, When you made the statements in the Declaration, what records did you review, if any, when you make the Declaration (SOSEx5, pp ), plaintiff counsel instructed Taylor not to answer on the basis of attorney client privilege and stated that the answer reflects the thoughts and -31-