IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA : : :

Transcription

1 Case 111-cv JEJ Document 41 Filed 03/14/12 Page 1 of 11 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA REVEREND EARL L. HARRIS; NEVIN MINDLIN; AND ERIC JENKINS CIVIL ACTION Plaintiffs, NO. 111-CV-2228 v. (Judge Jones) GOVERNOR THOMAS W. CORBETT, sued in his official capacity; and DAVID UNKOVIC, sued in his official capacity, Defendants. Electronically Filed Document DEFENDANTS BRIEF IN SUPPORT OF MOTION IN LIMINE SEEKING TO EXCLUDE THE TESTIMONY OF JAMES ROXBURY, STEPHEN REED, JEFFREY HASTE, AND FRED REDDIG Defendants respectfully submit this brief in support of their motion to exclude the testimony of James Roxbury, Stephen Reed, Jeffrey Haste, and Fred Reddig pursuant to Federal Rules of Evidence 402, 403, 703, and 802. None of the testimony sought from these witnesses is relevant to the elements of the claims at issue here, and would merely delay trial, confuse the record, and waste judicial resources. Getting through all of Plaintiffs witnesses within the two days allotted by the Court will be difficult enough without wasting judicial time on testimony that has no relevance to the preliminary injunction elements. Additionally, some of the testimony Plaintiffs seek to elicit from these witnesses constitutes inadmissible hearsay. Thus, these witnesses should be excluded from testifying at the hearing.

2 Case 111-cv JEJ Document 41 Filed 03/14/12 Page 2 of 11 I. PROCEDURAL AND FACTUAL STATEMENT On December 1, 2011, Plaintiffs initiated this action against Governor Corbett and Mr. Unkovic, challenging the constitutionality of the amendments to Act 47 under the Equal Protection and Due Process clauses of the Fourteenth Amendment. (Doc. 1.) On February 23, 2012, almost three months after initiating this action, Plaintiffs filed a Motion for a Temporary Restraining Order and Preliminary Injunction seeking to enjoin Defendants from acting under the authority granted to them by Act 47. (Doc. 18.) The Court has scheduled a hearing on Plaintiffs motion for March 21, Pursuant to Court Order (Doc. 27), on March 8, 2012 the parties filed a list of witnesses expected to testify at the injunction hearing. Because Plaintiffs failed to comply with the requirements contained in that Order, the next day the Court ordered Plaintiffs to refile their witness list by 500 p.m. and gave Defendants five days to file motions in limine to that list. (Doc. 38.) At 454 p.m. on Friday, March 9 th, Plaintiffs re-filed their witness list, which contains eleven proposed witnesses. (Doc. 39.) On March 14, 2012, Defendants filed a motion seeking to exclude 4 of those witnesses, as their proposed testimony would be irrelevant and inadmissible. Defendants respectfully submit this brief in support of that motion. 2

3 Case 111-cv JEJ Document 41 Filed 03/14/12 Page 3 of 11 II. QUESTION PRESENTED WHETHER THE IRRELEVANT AND INADMISSIBLE TESTIMONY OF JAMES ROXBURY, STEPHEN REED, JEFFREY HASTE, AND FRED REDDIG SHOULD BE EXCLUDED FROM THE HEARING? III. ARGUMENT A. Standard of Review The Court s ability to decide motions in limine derives from its inherent authority to manage the cases brought before it. Luce v. United States, 469 U.S. 38, 41 n. 4 (1984). An in limine motion is designed to narrow the evidentiary issues for trial and to eliminate unnecessary trial interruptions. Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064, 1069 (3d Cir.1990) (citation omitted). It may also be appropriate for the Court to consider an in limine motion when it is more efficient to rule prior to trial and the motion facilitates more thorough briefing than would likely be available during the course of trial. In re Japanese Elec. Prods. Antitrust Litig., 723 F.2d 238, 260 (3d Cir.1983), rev d on other grounds sub nom., Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986). B. James Roxbury Plaintiffs seek to introduce testimony of James Roxbury limited to the facts and circumstances with regards to the video clip available on the web at and made 3

4 Case 111-cv JEJ Document 41 Filed 03/14/12 Page 4 of 11 reference to at 50 of Plaintiffs Complaint. (Doc. 39 at 10.) According to Plaintiffs complaint, this video is a partial recording of a Pennsylvania Senate Hearing discussing an early draft of the amendments to Act 47. (Doc. 1 at 50.) This video and Mr. Roxbury s testimony should be excluded as inadmissible hearsay and wholly irrelevant to the instant preliminary injunction hearing. Hearsay constitutes any out-of-court statement made by one other than the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Fed.R.Evid. 801(c). Hearsay is generally not admissible at trial, Fed.R.Evid. 802, unless it falls within one of the enumerated exceptions found in Rules 803 and 804. Verbal portions of a video tape can constitute hearsay. U.S. v. Martinez, 588 F.3d 301, (6th Cir. 2009). Even nonverbal conduct of a person, if it is intended by the person as an assertion constitutes hearsay and is inadmissible unless it falls within one of the exceptions. Id. (citing Fed.R.Evid. 801(a); United States v. Sutton, 642 F.2d 1001, 1051 (6th Cir.1980) (excluding defendants nonverbal conduct showing possession and distribution of a large volume of stolen merchandise as impermissible hearsay)). The video contains a discussion by non-parties sought to be offered for the truth of the statement by one unnamed committee member that the intention of certain unspecified amendments to the Senate bill was to narrow the bill s affect to Harrisburg. (Doc. 1 at 50.) The Committee Chair corrected the member and 4

5 Case 111-cv JEJ Document 41 Filed 03/14/12 Page 5 of 11 explained that no such result was intended. Such statements are inadmissible hearsay, which fall under none of the exceptions contained in Rules 803 and The video is also incomplete, as the short clip appears to show only a small portion of the Senate Committee hearing that day. More to the point, this video is wholly irrelevant to the instant hearing. Even if the General Assembly drafted the amendments to Act 47 with the singular intent of targeting Harrisburg, its motivation is of no moment to the special legislation analysis. See Harrisburg School Dist. v. Zogby, 574 Pa. 121, 141 (2003); see also In re City of Harrisburg, Pa, Case No. 111-bk-06938, Doc. 144 at *25-26 (Bankr. M.D. Pa. December 5, 2011) ( The General Assembly may have passed Act 26 with the purpose of barring the City of Harrisburg from seeking bankruptcy relief. The General Assembly s motivation, however, is irrelevant. ) The only relevant issue is whether the class defined in the Act remains open to other Third Class cities admitted to the Act 47 program in the future, which can only be determined by examining of the text of the Act. The proffered video of a small portion of a single Senate Committee hearing on an early version of the Senate bill provides no elucidation on whether Act 47 constitutes special legislation or to any of the elements Plaintiffs must demonstrate in order to obtain 1 The video is not a public record for purposes of the public record exception as the recording was made by a private citizen, not by the Senate itself. Fed.R.Evid. 803(8). 5

6 Case 111-cv JEJ Document 41 Filed 03/14/12 Page 6 of 11 a preliminary injunction. The video is entirely irrelevant to these proceedings and the analysis the Court is asked to undertake. Likewise, any testimony as to the motivation of the laughter heard on the video would be beyond the personal knowledge of Mr. Roxbury and certainly does not indicate an acknowledgement of constitutional infirmity with the Senate Bill. (Doc. 1 at 50.) Rather, it would appear from the video that the laughter was caused by the Committee Chair s attempt to politely correct a fellow committee member s error. Mr. Roxbury cannot testify as to why others laughed and his own laughter. As Mr. Roxbury is proffered to testify solely about this video and facts surrounding this Senate Committee hearing, his testimony is irrelevant, speculative, and constitutes inadmissible hearsay. Thus, his testimony and the proffered video should be excluded. C. Stephen Reed Plaintiffs intend to proffer Stephen Reed, the former Mayor of Harrisburg, to testify on the origin of the incinerator debt, including the necessity of, and the reasons for, securing the partial 2 nd guarantee by Dauphin County as a condition precedent for the issuance of some of the incinerator bonds.... (Doc. 39 at 4.) Any such testimony is irrelevant to these proceedings. 6

7 Case 111-cv JEJ Document 41 Filed 03/14/12 Page 7 of 11 Former Mayor Reed left office on January 4, 2010, over 21 months before enactment of the challenged amendments to Act 47 and 23 months before appointment of Unkovic as receiver for Harrisburg by the Commonwealth Court. Although the size of the current debt and its impact on Harrisburg s current financial health may be relevant to these proceedings, the events of over two years ago regarding the debt s origin have no relevancy or relation to whether the October 20, 2011 amendments to Act 47 violate Plaintiffs constitutional rights. Likewise, the origin of the incinerator debt has no relevancy on whether the receiver s plan will cause Plaintiffs irreparable harm, or whether Harrisburg will be able to continue to provide vital public services should the receiver be enjoined. Rather, such testimony will only draw the Court s focus away from the actual pertinent facts at issue in favor of an unrelated and irrelevant hearing-within-ahearing on the origins of the incinerator debt. Plaintiffs do not seek to elicit any testify (and proffer no indication that former Mayor Reed has any personal knowledge) regarding Harrisburg s current financial state. Because the subject area listed on Plaintiffs witness list as to former Mayor Reed has no bearing or relevancy on any of the actual elements at issue, his testimony should be excluded. 7

8 Case 111-cv JEJ Document 41 Filed 03/14/12 Page 8 of 11 D. Jeffrey Haste and Fred Reddig Plaintiffs seek to call Dauphin County Commissioner Jeffrey Haste and Executive Director Fred Reddig of the Governor s Center for Local Government Services at DCED for the same reason, to testify regarding discussions these men had with the Act 47 team, the Act 47 coordinator and the Governor and his staff (including officials and employees of the Department of Community & Economic Development) with regard to the implicit or explicit threat and or assurance of receivership for the City of Harrisburg during the time that the Act 47 plan for the City of Harrisburg was being drafted, in the event the City of Harrisburg rejected the Final Act 47 Plan.... (Doc. 39 at 9, 11.) Such testimony has numerous fatal infirmities that should preclude its admission. First, this line of questioning is irrelevant. Harrisburg City Council rejected the Act 47 plan and Mayor Thompson s alternate Act 47 plan prior to the enactment of the amendments to Act 47. None of the individuals listed above could have promised the appointment of a receiver during the Act 47 plan process, as no such receivership provision had yet been enacted into law by the General Assembly. This case is a simple challenge to a state statute. Plaintiffs should not be permitted to extend the scope of this preliminary injunction hearing into an inquisition on a conspiracy that does not exists and goes to neither to Plaintiffs two Counts or the motion this hearing was scheduled to address. 8

9 Case 111-cv JEJ Document 41 Filed 03/14/12 Page 9 of 11 Second, as explained above, the intent of the General Assembly is irrelevant to the special legislation analysis. See Zogby, 574 Pa. at 141; In re City of Harrisburg, Pa, Case No. 111-bk-06938, Doc. 144 at * Therefore, even if such promises were made and the General Assembly voted to uphold those promises, Act 47 would nevertheless not constitute a special law or violate any recognized equal protection or due process rights. Third, this line of questioning seeks inadmissible hearsay. Any discussions between either Mssrs. Haste or Reddig, and the Act 47 Coordinator 2 or DCED officials and employees, would constitute out-of-court discussions offered in evidence to prove the truth of the matter asserted (i.e. that if Harrisburg rejected the Act 47 plan a receiver would be appointed), and thus constitute inadmissible hearsay. Only conversations with the Governor himself would fall within an allowable exception to the hearsay bar. However, as discussed above, such testimony is irrelevant to the actual issues to be adjudicated in this proceeding. Therefore, because this line of questioning is irrelevant to whether Plaintiffs are entitled to preliminary injunctive relief and seeks inadmissible hearsay, the testimony of these two witnesses should be excluded. 2 It is unclear who Plaintiffs are referencing when they state the Act 47 team. To the extent they reference individuals who worked with the Act 47 Coordinator, the same objections to this testimony would apply as discussed above. 9

10 Case 111-cv JEJ Document 41 Filed 03/14/12 Page 10 of 11 IV. CONCLUSION For the reasons discussed above, the proffered testimony of James Roxbury, Stephen Reed, Jeffrey Haste, and Fred Reddig is irrelevant and inadmissible. Therefore, this testimony should be excluded from the upcoming preliminary injunction hearing. Respectfully submitted, LINDA L. KELLY Attorney General By s/ Sean A. Kirkpatrick SEAN A. KIRKPATRICK Office of Attorney General Deputy Attorney General 15 th Floor, Strawberry Square Attorney ID Harrisburg, PA Phone (717) GREGORY R. NEUHAUSER Fax (717) Chief Deputy Attorney General Chief, Civil Litigation Section Date March 14, 2012 Counsel for Defendants 10

11 Case 111-cv JEJ Document 41 Filed 03/14/12 Page 11 of 11 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA REVEREND EARL L. HARRIS; NEVIN MINDLIN; AND ERIC JENKINS, Case Number 111-CV-2228 Plaintiffs, v. (Judge Jones) GOVERNOR THOMAS W. CORBETT, sued in his official capacity; and DAVID UNKOVIC, sued in his official capacity, Defendants. CERTIFICATE OF SERVICE Electronically Filed Document I, Sean Kirkpatrick, Deputy Attorney General for the Commonwealth of Pennsylvania, Office of Attorney General, hereby certify that on March 14, 2012, I caused to be served a true and correct copy of the foregoing document via the Electronic Filing System to the following individual Paul A. Rossi, Esquire 873 East Baltimore Pike Suite #705 Kennett Square, PA (Counsel for Plaintiffs) s/ Sean A. Kirkpatrick Sean A. Kirkpatrick Deputy Attorney General 11