Case 2:11-cv JTM-JCW Document 413 Filed 10/11/12 Page 1 of 12 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA

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1 Case 2:11-cv JTM-JCW Document 413 Filed 10/11/12 Page 1 of 12 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA LUTHER SCOTT, JR., and LOUISIANA STATE CONFERENCE OF THE NAACP, Plaintiffs, Civil Action No. 2:11-cv JTM-JCW Section H 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, Defendants. PLAINTIFFS MEMORANDUM IN OPPOSITION TO DEFENDANT SECRETARY OF STATE S MOTION IN LIMINE, OBJECTIONS TO MATERIALITY OF EXHIBITS, AND OBJECTIONS TO FACTS LISTED AS UNCONTESTED FACTS IN THE PRE-TRIAL ORDER Plaintiffs file this opposition to Defendant Schedler s motion in limine, Doc. 376, seeking to bar or limit the admissibility of fifty-one of Plaintiffs trial exhibits and to exclude 154 of the 196 facts listed as Uncontested (the Uncontested Facts ) in the proposed Amended and Superseding Pre-Trial Order signed by all parties and filed on October 5 (the Amended Pre- Trial Order, Doc. 373). Defendant Schedler s evidentiary arguments are without merit, and his motion should be denied in its entirety. 1

2 Case 2:11-cv JTM-JCW Document 413 Filed 10/11/12 Page 2 of 12 ARGUMENT I. EVIDENCE AND UNCONTESTED FACTS REGARDING THE METHOD OF CODING AND COUNTING PUBLIC ASSISTANCE VOTER REGISTRATION APPLICATIONS ARE RELEVANT ON THE ISSUE OF REMEDY AND SHOULD BE ADMITTED AT TRIAL Defendant Schedler seeks to exclude thirty of Plaintiffs trial exhibits and four Uncontested Facts on the ground that they are irrelevant because they relate to the coding and counting of voter registrations by public assistance agencies. See Doc. 376, Def. Secretary of State s Mot. in Limine, Objection to Materiality of Exhibits and Objections to Facts Listed as Uncontested Facts in the Pre-Trial Order (Doc. 373) ( Schedler Motion ), I-1 to I-2, II-3. These exhibits and facts are clearly relevant, as they directly relate to the nature of the remedy sought by Plaintiffs. The injunctive relief requested by Plaintiffs would establish some level of record-keeping and reporting obligations as part of Defendants NVRA compliance. See Doc. 372, Pls. Proposed Findings of Fact, Proposed Conclusions of Law, and Proposed Injunctive Remedy ( Pls. Proposals ), It is well-settled that this Court may and should impose such requirements where necessary to ensure that its injunctive relief is followed. See Louisiana v. United States, 380 U.S. 145 (1965) ( It also was certainly an appropriate exercise of the District Court s discretion to order reports to be made every month concerning the registration of voters in these 21 parishes.... ); Franks v. Bowman Transp. Co., 495 F.2d 398, 421 (5th Cir. 1974), rev d in part on other grounds, 424 U.S. 747 (1976) (finding error where the district court had declined to impose a reporting requirement). In fact, the primary purpose for which Plaintiffs seek to introduce evidence regarding current coding, counting, and reporting policies is to allow this Court to craft less onerous relief than has been granted in similar cases in other jurisdictions. By demonstrating the current coding, counting, and reporting procedures that Defendants already 2

3 Case 2:11-cv JTM-JCW Document 413 Filed 10/11/12 Page 3 of 12 have in place, Plaintiffs seek to make it easier for the Court to precisely tailor its injunctive relief without need for a more burdensome approach, such as appointing a special master. Cf. Young v. Pierce, 822 F.2d 1368, 1372 (5th Cir. 1987) (noting appointment of special master for purpose of monitoring and reporting HUD s desegregation efforts in case brought under Title VI of the Civil Rights Act). Further, the evidence that Defendant Schedler seeks to exclude shows that the Secretary of State is not currently complying with his obligations under the NVRA, and therefore it is relevant to both violations of the NVRA, and a prospective remedy. The Secretary of State is already obligated to report all voter registration applications received statewide that were received from or generated by... public assistance agencies. 11 C.F.R (b)(6) (emphasis added). The Secretary of State has failed to do so, reporting only applications received from public assistance agencies. Uncontested Fact (emphasis added). If any injunctive relief granted by this Court is to be effective, Defendant Schedler must also be ordered to comply with this law as part of that remedy. 2 Contrary to Defendant Schedler s assertion, Plaintiffs should not be precluded from seeking enforcement of the Secretary of State s reporting obligations under 11 C.F.R (b)(6) because this provision was not mentioned in the Complaint. Plaintiffs seek Defendant Schedler s compliance with his legal obligations in order to effect the relief sought in this suit, and accordingly there was no need for Plaintiffs to plead violations of Defendants reporting obligations. 3 But even if Plaintiffs were required to plead such a violation to obtain the 1 All statements of fact contained in the Uncontested Fact section of the Amended and Superseding Pre-Trial Order, Doc. 373, are cited herein as Uncontested Fact. 2 This component of the remedy sought is particularly important because a majority of public assistance transactions occur vio remote means, see Uncontested Facts 11, 21-28, and the most effective means of tracking voter registration applications distributed during remote transactions is to code the forms when they are distributed to the applicant or recipient, not when the form is returned by the applicant or recipient. 3 The Complaint specifically seeks a remedy of injunctive relief... required to remedy the Defendants 3

4 Case 2:11-cv JTM-JCW Document 413 Filed 10/11/12 Page 4 of 12 relief sought, Plaintiffs could nevertheless amend their pleadings, and leave to do so must be freely granted. Fed. R. Civ. P. 15(a)(2), 15(b)(1). 4 Finally, this allegation regarding the Secretary of State s obligations under 11 C.F.R (b)(6) can be found within the Amended Pre-Trial order, which Defendant Schedler has signed. See Doc. 373, Amended Pre-Trial Order, at 89. The Fifth Circuit has made clear that, [i]t is a well-settled rule that a joint pretrial order signed by both parties supersedes all pleadings and governs the issues and evidence to be presented at trial. Elvis Presley Enters., Inc. v. Capece, 141 F.3d 188, 206 (5th Cir. 1998). II. FACTS AND EXHIBITS PERTAINING TO REMOTE TRANSACTIONS SHOULD BE ADMITTED FOLLOWING THIS COURT S ORDER THAT SECTION 7 OF THE NVRA APPLIES TO SUCH TRANSACTIONS Defendant Schedler seeks the exclusion of several exhibits and Uncontested Facts regarding remote transactions. See Schedler Motion I-3 to I-4, II-6. Defendant Schedler claims that such facts are inadmissible unless the applicability of the NVRA to so-called remote transactions... remains in issue at trial. Id. I-3. This argument has no merit. The legal question of the NVRA s applicability to remote transactions is no longer at issue in this case. This Court has already expressly ruled that Section 7 of the NVRA applies regardless of whether the transaction is done in person or remotely. Doc. 212, Order and Reasons, 21. This order is now the law of the case, and becomes a binding precedent to be followed in successive stages of the same litigation. F.D.I.C. v. McFarland, 243 F.3d 876 (5th Cir. 2001). Further, the Court has yet to determine and has indeed expressly deferred decision on violation of the NVRA and to secure ongoing compliance with the NVRA. See Doc. 1, Compl Defendant Schedler erroneously asserts that the reporting requirements of 11 C.F.R. 8.7 go beyond the private right of action provided for in 42 U.S.C. 1973gg-9(b). Insofar as 11 C.F.R. 8.7 was promulgated by the Election Assistance Commission ( EAC ) pursuant to its authority under 42 U.S.C. 1973gg-7(a)(1), any violation of EAC regulations is a violation of [the NVRA]. 42 U.S.C. 1973gg-9(b)(1). 4

5 Case 2:11-cv JTM-JCW Document 413 Filed 10/11/12 Page 5 of 12 whether the Defendants actually violated the NVRA with respect to remote transactions. Doc. 212, Order and Reasons, 21. Accordingly, facts relating to remote transactions are indisputably relevant at trial and should be admitted. Moreover, several of these exhibits including but not limited to Plaintiffs Exhibits 15, 31, , and 174 are relevant to other issues to be presented at trial. 5 III. DEFENDANT SCHEDLER MUST REMAIN BOUND BY THOSE FACTS THAT HE STIPULATED TO IN THE AMENDED PRE-TRIAL ORDER Defendant Schedler, having signed the parties Amended Pre-Trial Order containing 196 Uncontested Facts, now seeks to contest 125 of those facts, arguing that they are inadmissible as against Defendant Schedler. Doc. 376, Schedler Motion II-1. This end-run around the facts to which he has already stipulated should not be countenanced by this Court. The admissibility of such facts does not rely upon the Federal Rules of Evidence, and so Defendant Schedler s eleventh-hour motion to exclude previously stipulated facts is without merit. Defendant Schedler argues that these facts are admissions of DCFS and DHH are therefore inadmissible hearsay with respect to the Secretary of State. Doc. 376, Schedler Motion II-2. However, the Uncontested Facts are not admissions at all, but are instead stipulations of the parties that supersede[] all pleadings and govern[] the issues and evidence to be presented at trial. Elvis Presley Enters., 141 F.3d at 206; see also 6A Charles Alan Wright, Arthur R. Miller, Mary Kay Kane, & Richard L. Marcus, Fed. Prac. & Proc. Civ ( Wright & Miller, Fed. Prac. & Proc. ) ( [W]hen an admission or agreement concerning a factual issue is made at the pretrial conference and is incorporated in the court s pretrial order, that issue stands as fully determined as if it had been adjudicated after the taking of testimony at trial.... ). 5 Plaintiffs Ex. 15 relates to DHH training policies, Plaintiffs Exs. 15 & 31 demonstrate that DHH had sought legal advice from SOS, and Plaintiffs Exs & 174 relate to issues with PHAME, the software used by DHH caseworkers. 5

6 Case 2:11-cv JTM-JCW Document 413 Filed 10/11/12 Page 6 of 12 Defendant Schedler cannot renege on what was agreed to in the Amended Pre-Trial Order, since stipulations entered into freely and fairly are not to be set aside except to prevent manifest injustice. Chatzicharalambus v. Petit, 430 F. Supp. 1087, 1090 (E.D. La. 1977). Where, as here, Defendant Schedler does not and cannot seek to argue that the facts stipulated to are factually untrue or would cause manifest injustice, 6 there are no grounds to release him from his agreed-upon and negotiated stipulations. Cf. Holcolm v. Aetna Life Ins. Co., 225 F.2d 577, 580 (10th Cir. 1958) ( [T]he court has the power to compel the parties to agree to all facts concerning which there can be no real issue. ). Allowing Defendant Schedler to change course and contest the majority of the uncontested facts that he himself agreed to would defeat the very purpose behind this Court s instruction to the parties to file an amended pre-trial order. At the September 27 Pre-Trial Conference, this Court instructed the parties to attempt once more to agree on uncontested facts in a good-faith effort to shorten this trial. After appearing to comply with this Court s instructions, Defendant Schedler now seeks to, in effect, withdraw his agreement and to require Plaintiffs to prove nearly every fact in the Amended Pre-Trial Order at trial, openly flouting this Court s directive and constituting a waste of the Court s and the parties resources. This would also greatly prejudice Plaintiffs, who have spent the past two weeks preparing for a streamlined trial consistent with the agreed-upon Amended Pre-Trial Order. Furthermore, even if this Court were not bound by the parties stipulations and were to consider the admissibility of the Uncontested Facts under the Rules of Evidence, these facts would still be found admissible, since they are both relevant to and admissible against the 6 Indeed, Defendant Schedler now takes issue with such uncontroversial facts as DCFS currently administers a public assistance program known as the Child Care Assistance Program ( CCAP ), Uncontested Fact 9, and DHH currently administers the Medicaid public assistance benefits program in Louisiana. Uncontested Fact 20. 6

7 Case 2:11-cv JTM-JCW Document 413 Filed 10/11/12 Page 7 of 12 Secretary of State. Violations of the NVRA by DHH and DCFS are relevant to the Secretary of State insofar as he is the chief State election official [and is] responsible for the coordination of State responsibilities under the [NVRA], 42 U.S.C. 1973gg-8, and are therefore admissible against him. Fed. R. Evid Furthermore, any such uncontested facts are not hearsay with respect to the Secretary of State, insofar as his signature on the Amended Pre-Trial Order, which signifies that such facts are Uncontested, renders them an adoptive admission. Fed. R. Evid. 801(d)(2). IV. PARTIES MAY QUOTE FROM DEPOSITION TRANSCRIPTS IN STIPULATIONS AND, HAVING AGREED TO STIPULATED FACTS, DEFENDANT SCHEDLER CANNOT NOW WITHDRAW HIS AGREEMENT Defendant Schedler s attempts to exclude Uncontested Facts that quote or reference deposition transcripts, Doc. 376, Schedler Motion, II-4, are similarly meritless. As with other Uncontested Facts, Defendant Schedler has already stipulated to these facts and is bound by them at trial without regard to the Federal Rules of Evidence. See 6A Wright & Miller, Fed. Prac. & Proc. 1527, supra. Just as the parties may agree to introduce depositions in lieu of testimony notwithstanding the Federal Rules of Evidence, see, e.g., Doc. 373, Amended Pre- Trial Order, at 149, the parties may also stipulate to facts that rely upon deposition testimony. Moreover, Defendant Schedler raised several objections to the form and substance of facts proposed to be included in the pre-trial order, but did not, at any time, voice an objection to quoting or referencing deposition testimony. Had he voiced such an objection, Plaintiffs would have endeavored to revise those facts to his satisfaction. Having remained silent when the Amended Pre-Trial Order was being crafted, and having subsequently signed it, Defendant Schedler is now estopped from objecting to the form of uncontested facts to which he has already stipulated. 7

8 Case 2:11-cv JTM-JCW Document 413 Filed 10/11/12 Page 8 of 12 V. DEFENDANT SCHEDLER CANNOT ALLEGE THAT THE AGREED- UPON STIPULATIONS ARE AMBIGUOUS Defendant Schedler argues that several Uncontested Facts are ambiguous and [their] content is vague and unclear... and [they are] likely to result in confusion. Doc. 376, Schedler Motion II-5. As an initial matter, if Defendant Schedler had been dissatisfied with the form or substance of some of the Uncontested Facts, he should have attempted to work with Plaintiffs to arrive at mutually acceptable language, or even have contested them prior to signing the Amended Pre-Trial Order. Having agreed that the facts in question are uncontested, Defendant Schedler is now bound by them. See 6A Wright & Miller, Fed. Prac. & Proc. 1527, supra. Further, Defendant Schedler is estopped from claiming that several of the facts in question should be excluded because of their phrasing. Several of them (including at least Uncontested Facts ) resulted from specific negotiation among the parties. Notably, the language of Uncontested Fact 94, to which Defendant Schedler now objects, was actually proposed by counsel for Defendant Schedler. VI. DEFENDANT SCHEDLER S ATTEMPT TO EXCLUDE FACTS AS OUTSIDE THE SCOPE OF THE NVRA IS WITHOUT MERIT Defendant Schedler argues that several uncontested facts are immaterial because they relate to activities that are not required by the NVRA. See Doc. 376, Schedler Motion II-2. This position is simply incorrect, and necessarily relies on a misunderstanding of the issues in this case and the requirements of the NVRA. Uncontested Facts 151, 152, 168, 169, and 170 relate to the manner in which DCFS and DHH track and report their voter registration activities. For the reasons discussed above, this is relevant to the nature of the remedy sought by Plaintiffs. See supra, Section I. Uncontested Fact 30 relates to whether DCFS required its staff to distribute a voter 8

9 Case 2:11-cv JTM-JCW Document 413 Filed 10/11/12 Page 9 of 12 preference form during change of address transactions. This is relevant to whether DCFS distribute[d] such a form with each... change of address form. See 42 U.S.C. 1973gg- 5(a)(6)(B). Uncontested Facts 44 and 45 relate to whether DHH distributed a voter registration application unless the applicant, in writing, decline[d] to register to vote. 42 U.S.C. 1973gg- 5(a)(6)(A)(ii). Uncontested Fact 138 relates to whether DHH instructed its employees to provide each applicant who does not decline to register to vote the same degree of assistance with regard to the completion of the registration form as is provided by the office with regard to the completion of its own forms. 42 U.S.C. 1973gg-5(a)(6)(C). While Uncontested Fact 150 does not, on its face, refer explicitly to the requirements of the NVRA, it is nevertheless admissible. Uncontested Fact 150 states: Before May 2011, DCFS policy did not require that any notation be placed in the case log regarding voter registration. This fact is important for at least two reasons. First, it demonstrates that DCFS supervisors did not have a reliable means by which to ensure that DCFS employees were, in fact, offering voter registration services. Second, it provides information about how DCFS has functioned over the last decade, which may provide context for testimony and exhibits. For at least these reasons, Uncontested Fact 150 is both relevant and admissible. VII. PLAINTIFFS EXHIBIT 232 IS ADMISSIBLE, AND DEFENDANT SCHEDLER S AUTHENTICITY OBJECTION SHOULD BE OVERRULED Plaintiffs Exhibit 232 is a report published by the Center on Budget and Policy Priorities, bearing the logo of the Center on its front page. The logo of the Center on Budget and Policy Priorities is a trade inscription, affixed in the course of business and indicating origin. 9

10 Case 2:11-cv JTM-JCW Document 413 Filed 10/11/12 Page 10 of 12 Fed. R. Evid. 902(7). Accordingly, this exhibit is self-authenticating, and should be admissible at trial. Id. 7 CONCLUSION For the aforementioned reasons, Plaintiffs respectfully request that this Court deny Defendant Secretary of State s Motion in Limine, Objection to Materiality of Exhibits and Objections to Facts Listed as Uncontested Facts in the Pre-Trial Order, Doc. 376, in its entirety. Respectfully submitted, /s/ Natasha M. Korgaonkar Natasha M. Korgaonkar (nkorgaonkar@naacpldf.org)* Dale E. Ho (dho@naacpldf.org)* Debo P. Adegbile Elise C. Boddie Ryan P. Haygood (rhaygood@naacpldf.org)* NAACP Legal Defense & Educational Fund, Inc. (New York) 99 Hudson Street, Suite 1600 New York, NY *MOTION FOR ADMISSION PRO HAC VICE GRANTED Ronald Lawrence Wilson (cabral2@aol.com) Ronald L. Wilson, Attorney at Law 701 Poydras Street, Suite 4100 New Orleans, LA Michael B. de Leeuw (michael.deleeuw@friedfrank.com)* 7 The Court previously denied Defendant Schedler s motion to strike the same report from Plaintiffs Motion for Partial Summary Judgment, to which it was attached as Exhibit 2. See Doc , Decl. of Dale Ho (listing the report as Ex. 2 to Plaintiffs Motion for Partial Summary Judgment); Doc. 140, Def. Schedler s Mot. to Strike; Doc. 176, Order (denying motion to strike). 10

11 Case 2:11-cv JTM-JCW Document 413 Filed 10/11/12 Page 11 of 12 Israel David Erica Sollie Fried, Frank, Harris, Shriver & Jacobson LLP One New York Plaza New York, NY *MOTION FOR ADMISSION PRO HAC VICE GRANTED Sarah Brannon Niyati Shah Michelle Rupp Project Vote 1350 Eye Street NW, Suite 1250 Washington, DC *MOTION FOR ADMISSION PRO HAC VICE GRANTED Attorneys for Plaintiffs 11

12 Case 2:11-cv JTM-JCW Document 413 Filed 10/11/12 Page 12 of 12 CERTIFICATE OF SERVICE I hereby certify that on the 11th of October, 2012, I electronically filed the foregoing Opposition to Defendant Secretary of State s Motion in Limine, Objection to Materiality of Exhibits and Objections to Facts Listed as Uncontested Facts in the Pre-Trial Order with the Clerk of the Court using the CM/ECF system, which will send a notice of electronic filing to persons electronically noticed. I further certify that I mailed the foregoing document and the notice of electronic filing by first class mail to any non-cm/ecf participant. /s/ Natasha M. Korgaonkar 12 us\yellida\