Case 5:11-cv OLG-JES-XR Document 1110 Filed 06/25/14 Page 1 of 10

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1 Case 5:11-cv OLG-JES-XR Document 1110 Filed 06/25/14 Page 1 of 10 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION SHANNON PEREZ, et al., ) ) Plaintiffs ) ) CIVIL ACTION NO: ) v. ) ) STATE OF TEXAS; RICK PERRY, ) In his official capacity as Governor of the ) State of Texas; DAVID DEWHURST, ) In his official capacity as Lieutenant ) Governor of the State of Texas; JOE ) STRAUS, in his official capacity as ) Speaker of the Texas House of ) Representatives ) Defendants ) PLAINTIFF MALC S RESPONSE IN OPPOSITION TO STATE DEFENDANTS MOTION TO EXCLUDE TESTIMONY OF EXPERT JAMES C. HARRINGTON Plaintiff MALC respectfully requests that this Court deny the State Defendants Motion to exclude the testimony of James C. Harrington. Mr. Harrington s testimony will assist in this Court s evaluation of Plaintiff s claim that Section 2 of the Voting Rights Act requires the development of Hispanic majority and minority majority districts. Mr. Harrington will offer no opinion on the ultimate legal issue before this Court, but rather will offer a glimpse at the historical development of Article III, Section 26 of the Texas Constitution (whole county rule) and the interplay between that provision and other provisions of the Texas Constitution. Moreover, the standards demanded by the Defendants for evaluating the relevance of Mr. Harrington s testimony simply are not applicable under the circumstances of this case. Defendants motion should therefore be denied. 1

2 Case 5:11-cv OLG-JES-XR Document 1110 Filed 06/25/14 Page 2 of 10 Legal Standard Federal Rule of Evidence 702 provides for the admission of expert testimony that assists the trier of fact to understand the evidence or to determine a fact in issue. A court is charged with a gatekeeping function to ensure expert testimony is both reliable and relevant. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597 (1993). Reliability is analyzed under Rule 702, Fed. R. Evid., which requires that: (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. Id. Experts are permitted to render opinions even if based on inadmissible evidence so long as the inadmissible evidence is of the type reasonably relied upon by experts in that field. See Rule 703, Fed. R. Evid.; Daubert, 509 U.S. at 595. Inadmissible facts or data that serve as a basis for the expert s opinion may not be disclosed to the jury by the proponent of the expert testimony unless a court determines that their probative value in assisting the jury to evaluate the expert s opinion substantially outweighs their prejudicial effect. Rule 703, Fed. R. Evid. Further, the expert witness must be qualified by knowledge, skill, experience, training, or education... Rule 702, Fed. R. Evid. A court must exclude an expert witness if it finds that the witness is not qualified to testify in a particular field or on a given subject. Wilson v. Woods, 163 F.3d 935, 937 (5 th Cir. 1999). With non-scientific experts, the Daubert factors (peer review, publication, potential error rate, etc.) simply are not applicable and reliability depends heavily on the knowledge and experience of the expert rather than the methodology or theory behind it. United States v. Hankey, 203 F.3d 1160, 1169 (9 th Cir. 2000). However, Rule 702 does not mandate that an expert be highly qualified in order to testify about a given issue. Differences in expertise bear chiefly on the weight to be assigned to the testimony by the trier of fact, not its 2

3 Case 5:11-cv OLG-JES-XR Document 1110 Filed 06/25/14 Page 3 of 10 admissibility. Huss v. Gayden, 571 F. 3d 442, 452 (5 th Cir. 2009) (citing Daubert, 509 U.S. at 596). Application A. Harrington s Scope of Testimony James C. Harrington, Plaintiff s designated expert, has provided a report on essentially two topics dealing with whole county rule: a) the historical development of Article III, Section 26; and b) the interplay with other provisions of the Texas Constitution. Plaintiffs hope that his expertise and analysis will assist the Court in its analysis of the Plaintiff s claim that Section 2 of the Voting Rights Act requires the addition of Latino opportunity districts in the Midland/Odessa regions of west Texas, the Lubbock region of northwest Texas, and in the Nueces County area of the Texas coastal bend region. Thus, Mr. Harrington was requested to provide testimony regarding the question of whether, in a general sense, Article III, Section 26 of the Texas Constitution is an absolute bar to the creation of minority opportunity districts by answering the question: whether there is a compelling or substantial reason the Texas legislature or a court should not cut county lines in order to create minority-opportunity state election districts should there be a necessity to do so to obtain proper representation. Motion to Exclude, (Doc. 1057), Exhibit A, Harrington Report, , page 1; Harrington Deposition Exhibit 1). For instance, he provides no testimony on whether the so-called Gingles plans offered by the Plaintiffs establish minority opportunity districts. Nor does he attempt to answer in this case whether the requirements of Section 2 require this Court to submerge the requirements of Article III, Section 26, in order to provide relief for a Section 2 violation. Therefore, he was not tasked with answering any of the ultimate legal issues before this Court. Instead, he used his experience and expertise in the development and enforcement of the Texas Constitution and the interaction with other provisions of the Texas Constitution, to 3

4 Case 5:11-cv OLG-JES-XR Document 1110 Filed 06/25/14 Page 4 of 10 assist this Court s ultimate determination regarding how to balance the interplay between Section 2 of the Voting Rights Act and Article III, Section 26 s whole county rule in redistricting. B. Mr. Harrington s Expertise As can be seen from Mr. Harrington s resume and his testimony in his deposition, he is uniquely qualified to assist the Court in its review of the Texas Constitution and its implications in the redistricting issues before this Court. (Exhibit # 1, Harrington Resume). He has a long and compelling history of study and enforcement of the Texas Constitution. Mr. Harrington has authored books in which he provides a comprehensive analysis of the Texas Constitutional protections provided in the Texas Bill of Rights. See The Texas Bill of Rights: A Commentary and Litigation Manual. He has taught numerous courses dealing with the study of the Texas Constitution at the University of Texas School of Law School and St. Mary s University and at the undergraduate and graduate programs at St. Edwards University on the Texas Constitution. 1 He has authored an impressive number of articles on the Texas Bill of Rights and other Texas Constitutional provisions. 2 Finally, he is renowned for his litigation strategies and use of the Texas Bill of Rights and other Texas Constitutional provisions to protect the rights of Texas 1 Adjunct Professor, University of Texas School of Law ( ); (Civil Rights and Advanced Constitutional Law Seminars); Instructor, University of Texas Extension (2002-present), Civil Liberties course Instructor, University of Texas International Student & Scholar Services (2013, ongoing); Adjunct Professor, St. Mary's University Law School ( ); (Disability Law and Texas Constitutional Law Seminars); Adjunct Professor, St. Edward's University (Spring 1993 and 1992, Summer 1991). 2 E.g. The Once and Future Texas Bill Of Rights: A Broader Protection? Framing A Texas Bill Of Rights Argument, State Bar of Texas, Bill of Rights Seminar (2008 and 2007); Legislative Redistricting in : The Texas Bill of Rights v. the Voting Rights Act, 26 ST. MARY'S LAW JOURNAL 33 (1994) (Judith Sanders-Castro, co-author); Framing a Texas Bill of Rights Argument, 24 ST. MARY'S LAW JOURNAL 400 (Fall 1993); Mandatory Pro Bono: It is Constitutional, 30 HOUSTON LAWYER 13 (1993); Free Speech, Press, and Assembly Liberties Under the Texas Bill of Rights and Civil Liberties, 68 TEXAS LAW REVIEW 1101 (1990); Reemergence of Texas Constitutional Protection, 2 EMERGING ISSUES IN STATE CONSTITUTIONAL LAW 101 (Nat'l Assoc. of Attorneys General, Washington, D.C. 1989); Privacy and the Texas Constitution, 13 VERMONT LAW REVIEW 155 (Spring 1988); "Privacy Rights of Employees in Texas," Texas Employment Law. Sterling Press, 1989; "Will Texas Develop its Own Bill of Rights?", Texas Politics Today (4th ed.) (West, 1987); The Texas Bill of Rights and Civil Liberties, 17 TEXAS TECH LAW Review 1487 (1986). 4

5 Case 5:11-cv OLG-JES-XR Document 1110 Filed 06/25/14 Page 5 of 10 farmworkers, Texas students, Texas political activists and to protect the voting rights of minorities. 3 Qualification requires that the witness possess specialized expertise. Rule 702 s qualification requirement has been liberally interpreted. Pineda v. Ford Motor Co. 520 F. 3d 237, 244 (3 rd Cir. 2008). Clearly, Mr. Harrington is qualified by by knowledge, skill, experience, training, or education... Rule 702, Fed. R. Evid. C. Testimony Should be Allowed The State Defendants argue that because Mr. Harrington s methodology in providing his analysis is based on legal research principles it should be excluded. State Defs. Motion to Exclude, Dkt. 1057, p. 1 ( Mr. Harrington s declaration and testimony consist of improper legal opinion testimony. He conducted legal research, wrote a memorandum of law, and is attempting to 3 E.g. -- Eliminating statutory exclusion of farm and ranch laborers from Texas Workers Compensation Act Guadalupe Delgado v. Texas, No. 356,714 (203rd Dist. Court, Travis County, 1984) Puga v. Donna Fruit Co., 634 S.W.2d 677 (Tex. 1982); -- Extending the Texas Equal Rights Amendment to minority voting and redistricting Del Valle ISD v. López, 863 S.W.2d 507 (Tex. App. - Austin 1993, writ denied) Terrazas v. Ramírez, 829 S.W.2d 712 (Tex. 1991) Mena v. Richards, No. C F (Hidalgo County); -- Establishing habeas corpus mechanism to review claims of innocence for persons sentenced to death Holmes v. Third Court of Appeals, 885 S.W.2d 389 (Tex. Crim. App. 1994); -- Protecting rights of those with mental disabilities Opal Petty v. Texas Dep't of Mental Health & Mental Retardation, 778 S.W.2d 156 (Tex. App. -- Austin 1989, writ dism'd w.o.j.) (class action) Texas Dep't of Mental Health & Mental Retardation v. Petty, 848 S.W.2d 680 (Tex. 1992) (individual damage action); -- Banning mandatory polygraph testing of state employees (privacy as fundamental right under Texas Constitution) Texas State Employees Union v. Texas Dep't of Mental Health & Retardation, 746 S.W.2d 203 (Tex. 1987) Woodland v. City of Houston, 731 F.Supp 1304 (S.D. Tex. 1990); -- Protecting union members from retaliatory termination Vásquez v. Bannworths, Inc., 707 S.W.2d 886 (Tex. 1986); -- Securing privacy rights of indigent probationers Basaldúa v. Texas, 558 S.W.2d 2 (Tex. Crim. App. 1977); -- Removing exclusion of farm workers from Texas Unemployment Compensation Act Roberto Camarena v. Texas Employment Comm n, 754 S.W.2d 149 (Tex. 1988); -- Extending free speech and free assembly rights to private shopping malls Nuclear Freeze Campaign v. Barton Creek Shopping Mall, No. 349,268 (126th District, Travis County) Albertson's v. United Farm Workers, AFL-CIO, 856 S.W.2d 836 (Tex. App. - Austin 1993, writ denied) 5

6 Case 5:11-cv OLG-JES-XR Document 1110 Filed 06/25/14 Page 6 of 10 advise the Court how to apply the law to facts in this case. ) Mr. Harrington offered the following to describe his methods: Okay. Well, there are two parts to that report. One is an analysis of county line history -- county line drawing history in Texas. In other words, analysis of legal principals under the Texas constitution. In terms of the first point, the methodology basically was to find anything that was out there about how county lines came into existence in Texas over a period of time and to look to see if there were any specific constitutional requirements for that. The second part, the legal analysis, particularly under the Texas Equal Rights Amendment, of course that's basically done through legal writing and analysis and litigation that we've done in the past under the Texas Equal Rights Amendment. Harrington Depo. pp. 6-7 (Exhibit B, Motion to Exclude, Doc ). His report and testimony in his deposition clearly reveals a two part analysis a historical review of the development of county lines and the station of Article III, Section 26 among the more recently adopted Constitutional provisions protecting against discrimination based on race, ethnicity, gender etc. Id. pp When specifically asked if he was interpreting which law should be applied in this case for the Court, his answer was unequivocal No. Id, p. 18. While Mr. Harrington s analysis indeed contained his opinion of the interplay between Article III, Section 26 and Article I, Sections 3 and 3a, and that under the appropriate circumstances county lines could be opened and had, in fact, been opened in historical redistrictings, he offered no opinion on whether the facts of this case required the opening of a county line in order to comply with Section 2 of the Voting Rights Act. Indeed Mr. Harrington s opinion is shared by the State s expert at the Texas Legislative Council during the redistricting session in 2011, Jeff Archer. 4 4 See Archer Depo. pp ( So in the case of a -- a minority population that votes as a block and is consistently outvoted by polarized voting, by surrounding voters that happened to be on a county line, in the absence of crossover voters in adjacent counties, or some other factor, there could be a scenario -- the ideal scenario would be to isolate a population right on a county line. With it, you have a minority district. There's no way to draw 6

7 Case 5:11-cv OLG-JES-XR Document 1110 Filed 06/25/14 Page 7 of 10 Both opinions however are at odds with the opinion expressed at trial by the Texas House Chairman of the redistricting committee, Representative Burt Solomons: Q. Now, it is your position, isn't it, that you need a 16 federal judge to tell you that the federal Voting Rights Act 17 trumps the Texas Constitution's county line rule; isn't that 18 correct? 19 A. More specifically, U.S. Supreme Court, because the county 20 line rule is not only here in Texas, but it is elsewhere. Trial Transcript, p As the evidence is developed by the Plaintiff, the question of whether the facts of this case require a minority opportunity district, even while county lines are breached, is clearly before the Court. Plaintiff believes the historical development of county lines and the interplay between different State Constitutional provisions and the whole county line provision would assist the Court in its inquiry on Plaintiff s claims. The testimony and analysis is relevant. Defendants reliance on C.P. Interests, Inc. v. California Pool, Inc., 238 F. 3d. 690 (5 th Cir. 2001) is misplaced. While California Pool does articulate the general proposition that no rule permits expert witnesses to offer conclusions of law, e.g. an opinion on an ultimate issue of law. See Fed. R. Evid. 704(a) ( An opinion is not objectionable just because it embraces an ultimate issue. ). Mr. Harrington offers no opinion on the ultimate legal issue before this Court. Moreover, in California Pool the court in fact allowed the testimony by attorney Alan Rosenthal, regarding his legal opinions on questions ultimately put to the jury. 238 F.3d at 698 ( Comparison of Mr. Rosenthal s testimony with the issues to be decided by the jury reveals a districts that give those voters or similar voters opportunity to elect candidates of their choice for that minority district, and that retaining that split would -- in the same way the multi-member districts did, there's the other example, that -- Jingles is the perfect example, federal law supreme. I don't know that the law -- the state law at the time required multi-member districts in -- was it North Carolina, or if it just allowed them. But the practice of multimember districts had to yield to federal law, when you had the insular minority population, the three factors in Jingles; the size, the polarized voting and the political cohesiveness of those minority voters. So in that scenario by itself, I would advise a person to take a long look at that and determine whether that was a Section 2 violation. It could well be a Section 2 violation. ) 7

8 Case 5:11-cv OLG-JES-XR Document 1110 Filed 06/25/14 Page 8 of 10 clear overlap. ) However, since his testimony was only one part of comprehensive case put forth and several other witnesses provided testimony on the issues at hand it was clear that the testimony did not supplant the jury s independent assessment. Id. Indeed, here, Mr. Harrington in fact offers no opinion on the ultimate question before the court. Moreover, this is a case tried to the Court as trier of the facts and lessens the need to shield a jury from hearing potential objectionable evidence. This Court is clearly able to determine the weight to be given Mr. Harrington s analysis without the need for a filter such as its complete exclusion as requested by the State. Further, an expert s opinion that relies in part on the expert s understanding of state law does not improperly usurp the court s role. Hangarter v. Provident Life and Accident Ins. 373 F. 3d 998, 1017 (9 th Cir. 2004)( Caliri s references to California statutory provisions none of which were directly at issue in the case were ancillary to the ultimate issue of bad faith. ) Indeed Court s may allow opinion testimony regarding even on an ultimate issues. See, F. R. Evid Conclusion Mr. Harrington s analysis and testimony is relevant to the issues confronting this court. His opinion, while analyzing legal questions offers no opinion on the ultimate questions before this Court. Mr. Harrington s vast knowledge and expertise with regard to the Bill of Rights in the Texas Constitution, make him uniquely able to assist this Court with its task of evaluating Plaintiff MALC s claims, while balancing those claims with by State policies. State Defendants Motion to exclude Mr. Harrington s testimony should be denied. Dated: June 25, 2014 Respectfully submitted, /s/ Jose Garza JOSE GARZA 8

9 Case 5:11-cv OLG-JES-XR Document 1110 Filed 06/25/14 Page 9 of 10 State Bar No Law Office of Jose Garza 7414 Robin Rest Dr. San Antonio, Texas (210) garzpalm@aol.com JOAQUIN G. AVILA LAW OFFICE P.O. Box Seattle, Washington Texas State Bar # (206) (206) (fax) jgavotingrights@gmail.com Ricardo G. Cedillo State Bar No Mark W. Kiehne State Bar No DAVIS, CEDILLO & MENDOZA, INC. McCombs Plaza, Suite E. Mulberry Avenue San Antonio, Texas Tel.: (210) Fax: (210) rcedillo@lawdcm.com mkiehne@lawdcm.com ATTORNEYS FOR MEXICAN AMERICAN LEGISLATIVE CAUCUS, TEXAS HOUSE OF REP. (MALC) CERTIFICATE OF SERVICE I hereby certify that on the 25 th day of June, 2014, I electronically filed the foregoing using the CM/ECF system which will send notification of such filing to all counsel of record who have registered with this Court s ECF system, and via first class mail to those counsel who have not registered with ECF. /s/ Jose Garza JOSE GARZA 9

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