IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ROME DIVISION COMMON CAUSE/GEORGIA, et al., ) ) Plaintiffs, ) CIVIL ACTION FILE. v. ) NO. 4:05-CV-201-HLM ) MS. EVON BILLUPS, Superintendent ) of Elections for the Board of Elections ) and Voter Registration for Floyd ) County and the City of Rome, Georgia, ) et al., ) Defendants, ) and ) ) STATE ELECTION BOARD, ) ) Defendant-Intervenor. ) MEMORANDUM OF LAW IN SUPPORT OF STATE DEFENDANTS MOTION TO DISMISS CLARA WILLIAMS AS A PLAINTIFF AND IN RESPONSE TO PLAINTIFFS MOTION FOR LEAVE TO AMEND THE COMPLAINT AND TO REFLECT THE SUBSTITUTION OF A DEFENDANT Plaintiffs have filed a Motion for Leave to Amend the Complaint and have attached to the motion a new complaint nine days before the commencement of trial. 1 The stated purposes of this amendment are to substitute current Secretary of 1 Somewhat curiously, Plaintiffs new Complaint is styled as their First Amendment to Second Amended Complaint for Declaratory and Injunctive Relief, rather than Third Amended Complaint.
State Karen Handel for former Secretary of State Cathy Cox, which State Defendants do not oppose, and to add two new individual Plaintiffs, which State Defendants do oppose. First, State Defendants respectfully submit that the two new individual Plaintiffs cannot be added to the litigation because there is no Plaintiff with standing currently in this litigation to move to add these new Plaintiffs. See Summit Office Park, Inc. v. U.S. Steel Corp., 639 F.2d 1278, 1282 (5th Cir. 1981). 2 Plaintiffs have declined to dismiss Mrs. Clara Williams as a Plaintiff, but it is beyond dispute that she does not have standing. Plaintiffs brief in support of their motion concedes that is the case. (See Pls. Mot. for Leave to Amend [Dkt no. 159] at 3 ( [T]he remaining individual plaintiff Clara Williams lacks standing.... ).) Mrs. Williams has testified that she holds a photo ID card issued by MARTA. (Williams Dep. at 14 (attached as Exhibit 4 to State Defs. Initial Br. Opp n to Pls. Mot. for Prelim. Inj. [Dkt. no. 31]).) The Supreme Court of Georgia has stated definitively in a case challenging the same 2006 Photo ID Act on state law grounds that MARTA is an entity of the State of Georgia, and that the plaintiff in that case, who possessed a photo ID card issued by MARTA, lack[ed] standing 2 The Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit rendered prior to the close of business on September 30, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc). 2
to challenge the Act as an unconstitutional restriction on her right to vote. Perdue v. Lake, 2007 Ga. LEXIS 433, at *5 (Ga. June 11, 2007), reconsideration denied, No. S07A0525 (July 27, 2007). Because Mrs. Williams also possesses a photo ID card issued by MARTA, she too is without standing to challenge the 2006 Photo ID Act, and she must be dismissed as a party plaintiff in this case. Serious questions also exist as to whether the organizational Plaintiffs also lack standing to sue. For an organization to have standing, it must show that (1) its members would have standing to sue individually, (2) the interests that the organization is seeking to protect through the lawsuit are germane to [its] purpose, and (3) neither the claim nor the relief requested requires individual participation by the members of the organization. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 181 (2000) (citing Hunt v. Wash. State Apple Adver. Comm n, 432 U.S. 333, 342-43 (1977)); Fla. Pub. Interest Research Group Citizen Lobby, Inc. v. EPA, 386 F.3d 1070, 1084 (11th Cir. 2004); Nat l Alliance for the Mentally Ill v. Bd. of County Comm rs, 376 F.3d 1292, 1296 (11th Cir. 2004). Here, the Plaintiff organizations before this Court have not made any of the required showings. They have not shown that any member has been injured such that he or she would have standing to bring this action individually, and they have not shown what interests 3
they seek to protect or how such interests are germane to the purpose of the organization. The party invoking federal jurisdiction bears the burden of proving standing, and the requisite showing varies depending upon the stage of the litigation. Bischoff v. Osceola County, 222 F.3d 874, 878 (11th Cir. 2000). Each element of standing must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation. Id. at 878 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)). The parties are now one week from trial, but the organizational Plaintiffs still have provided no basis for the Court to conclude that each of these organizations has any individual member with standing to bring suit. See, e.g., Doe v. Stincer, 175 F.3d 879, 886 (11th Cir. Fla. 1999) ( The right to sue on behalf of its constituents, however, does not relieve [plaintiff] of its obligation to satisfy Hunt s first prong by showing that one of its constituents otherwise had standing to sue.... ). Not even a single individual whose hearsay declaration was previously filed on behalf of Plaintiffs stated that he or she is a member of any of the Plaintiff organizations and 4
has been personally injured by the 2006 Photo ID Act. 3 Moreover, Plaintiffs counsel s own difficulty in finding any new individual Plaintiff until the Eleventh Hour casts doubt on whether any of the organizational Plaintiffs actually has an individual member who has been harmed by the 2006 Photo ID Act. Plaintiffs have also failed to show what interests they seek to protect and how those interests are germane to the purpose of the organizations. Ultimately, the Plaintiff organizations have not demonstrated that they are any different than the organizations in Sierra Club v. Morton, in which the Supreme Court emphasized that mere interest in a problem, no matter how longstanding the interest and no matter how qualified the organization is in evaluating the problem, is not sufficient by itself to render the organization adversely affected or aggrieved.... 405 U.S. 727, 739 (1972). Because it appears that there currently is no valid Plaintiff in this litigation, there is no party who can add the two new individual Plaintiffs. The former Fifth Circuit explained in Summit Office Park, Inc. v. United States Steel Corporation, a case with analogous circumstances to this case, that where a plaintiff never had 3 The only hearsay declarant who raised possible membership in any of the organizations is Ms. Margaret S. Smothers, who states that she is the former Executive Director of the League of Women Voters of Georgia, but Ms. Smothers does not allege any injury to herself. (Smothers Decl. 2 (attached as Exhibit 19 to Pls. Notice of Filing Decls. [Dkt no. 25]).) 5
standing to assert a claim against the defendants, it does not have standing to amend the complaint and control the litigation by substituting new plaintiffs, a new class, and a new cause of action. 639 F.2d at 1282. In Summit, the original plaintiff was left with no cause of action upon which it could recover as the result of an intervening Supreme Court decision. Id. In this case a Georgia Supreme Court decision has left the only Plaintiff, Mrs. Williams, without a cause of action either because she does not have standing. To allow her and a group of organizational Plaintiffs who have failed to show any members who are harmed by the 2006 Photo ID Act to amend the Complaint now would encourage a revolving door theory of representation in which all one must have is a potential lawsuit searching for a sponsor. Id. at 1281-82. It is also clear that the two new parties plaintiff named in the proposed amendment... likewise cannot amend the original complaint. Id. at 1284. They have never before had any connection to this litigation which would allow them to join as Plaintiffs a case which has no existing Plaintiffs for them to join. 4 4 The decision in Delta Coal Program v. Libman, 743 F.2d 852 (11th Cir. 1984), does not limit the applicability of Summit in this particular case. In Delta Coal, new plaintiffs who were co-owners of Delta Coal were allowed to be substituted for the entity pursuant to the real party in interest provisions of Rule 17. Even though the district court concluded that Delta Coal should be dropped from the litigation, it was acceptable for its co-owners to be substituted as the plaintiffs because Delta has (footnote continued on following page) 6
Second, in the alternative, the Court should withhold judgment on Plaintiffs Motion for Leave to Amend until trial commences next Wednesday, August 22. Ever since the stay in this litigation was lifted following the Supreme Court of Georgia s decision in Perdue v. Lake, Plaintiffs indicated that they planned to substitute another individual Plaintiff for Mrs. Williams. Nonetheless, it was not until August 13 only nine days before trial is scheduled to commence that Plaintiffs sought to add the two new individuals as Plaintiffs. Even if the Court is inclined to grant the Motion for Leave to Amend, it would make more sense at this stage of the litigation to wait to decide the motion until the trial commences, and after State Defendants have had the opportunity to depose these individuals, so that a clearer picture exists as to whether these individuals actually have standing to sue such an identity of interest with the individual co-owners that their claims have functionally been before the court since the outset of this litigation. See id. at 857. Importantly, only the formally named plaintiff was being changed, as specifically contemplated by Rule 17, to reflect the individual owners in the place of their business entity. Id. at 856 n.6 (emphasis added). In contrast, Mrs. Williams is not a representative of the new individual Plaintiffs sufficient to pass the minimal test required for invoking the court s jurisdiction. Id. at 855 (citing Sierra Club v. Morton, 405 U.S. 727 (1972)). Likewise, the organizational Plaintiffs (who have never demonstrated that they have any members who are harmed by the 2006 Photo ID Act) are not representatives for the new individual Plaintiffs. In fact, neither of the new individual Plaintiffs claims to be a member of any of the organizational Plaintiffs. As the Delta Coal decision explains, [a] plaintiff's suit may... be subject to dismissal if the substantive statute on which he relies affords no right to relief to either him or to those he represents. Id. 7
or whether the Motion for Leave to Amend is, in fact, futile and should be denied. See Brewer-Giorgio v. Producers Video, Inc., 216 F.3d 1281, 1284 (11th Cir. 2000) ( [A] motion to amend may be denied on numerous grounds such as undue delay, undue prejudice to the defendants, and futility of the amendment. ); see also Foman v. Davis, 371 U.S. 178, 182 (1962) (providing as reasons for denying leave to amend, such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc. ). In any event, if the motion is granted, State Defendants respectfully reserve the right to challenge at trial these individuals standing to sue. This 14th day of August, 2007. Respectfully submitted, THURBERT E. BAKER Attorney General Georgia Bar No. 033887 Department of Law DENNIS R. DUNN State of Georgia Deputy Attorney General 40 Capitol Square, S.W. Georgia Bar No. 234098 Atlanta, GA 30334-1300 Telephone: 404/656-7298 STEFAN E. RITTER Facsimile: 404/657-9932 Senior Assistant Attorney General dennis.dunn@law.state.ga.us Georgia Bar No. 606950 (signatures continued on following page) 8
Troutman Sanders LLP /s/ Mark H. Cohen 5200 Bank of America Plaza MARK H. COHEN 600 Peachtree Street, N.E. Special Assistant Attorney General Atlanta, GA 30308 Georgia Bar No. 174567 Telephone: 404/885-3597 Facsimile: 404/962-6753 mark.cohen@troutmansanders.com Strickland Brockington Lewis LLP /s/ Anne W. Lewis Midtown Proscenium, Suite 2000 ANNE W. LEWIS 1170 Peachtree Street, N.E. Special Assistant Attorney General Atlanta, GA 30309 Georgia Bar No. 737490 Telephone: 678/347-2200 (signed with express permission by Mark H. Cohen) Facsimile: 678-347-2210 awl@sbllaw.net Local Rule 7.1D Certification By signature below, counsel certifies that the foregoing document was prepared in Times New Roman, 14-point font in compliance with Local Rule 5.1C. /s/ Mark H. Cohen MARK H. COHEN 9
CERTIFICATE OF SERVICE The undersigned hereby certifies that the within and foregoing Memorandum of Law in Support of State Defendants Motion to Dismiss Clara Williams and in Response to Plaintiffs Motion for Leave to Amend the Complaint to Add Plaintiffs and to Reflect the Substitution of a Defendant was electronically filed with the Clerk of Court using the CM/ECF system, which will automatically send email notification of such filing to counsel of record. This 14th day of August, 2007. /s/ Mark H. Cohen MARK H. COHEN 1