Motion in Limine Brief in Support of Motion in Affidavit of Lani Guinier in support of above Supplemental and Guinier in Support of above

    UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF LOUISIANA 

  

BARBARA MAJOR, et al., ; Civil Action 

No. 82-1192-H 
Section (c) 

-yS= THREE JUDGE COURT CASE 

CLASS ACTION 

Plaintiffs, 

  

DAVID C. TREEN, etc., et al.,   

Defendants. 

  

MOTION IN LIMINE 

NOW COME the plaintiffs in the above-entitled cause, by and 

through their attorneys, and, pursuant to Rules 104(a), 105, 402, 

403 and '803(8) of the Federal Rules of Evidence (hereinafter Fed. 

Re Evid.) , move this Honorable Court in Limine for an Order pro- 

hibiting defendants or theis attorneys from making by counsel or 

through witnesses any reference to or from introducing in evidence 

at trial a June 18, 1982 letter of no objection from William 

Bradford Reynolds, Assistant Attorney General, United States 

Department of Justice to Kenneth C. DeJean, Esqg., Assistant 

Attorney General, State of Louisiana, regarding Act No. 20 of the 

First Extraordinary Session of the Louisiana Legislature of 1981 

(hereinafter Act No. 20) , and further prohibiting them from re- 

ferring to or introducing into evidence any other records, 

reports, statements, data compilations or factual findings of the 

United States Department of Justice supporting the decision of 

the Assistant Attorney General regarding Act No. 20. In support 

of their motion, plaintiffs state on information and belief as    



    

~follcws: 

1. That the fact that the Assistant Attorney General, United 

States Department of Justice, sent a letter of no objection under 

Section 5 of the Voting Rights Act of 1965, as amended, 42 U.S.C. 

§1973¢c, regarding Act No. 20, is irrelevant to this case. 

2. That the statute expressly provides that review under : 

Section 5 does not bar nor have any effect on an action such as 

this to enjoin the enforcement of Act No. 20 pursuant to the 

United States Constitution or Section 2 of the Voting Rights Act 

of 1965, as amended, June 29, 1982, 42 U.S.C. $1973. 

3. That the review under Section 5 was conducted ex parte 

- as a nonadversary proceeding from which plaintiffs were, at key 

points, excluded. 

HA That even had the review conformed to the standards of 

Section 5 and the Department's duties pursuant to its own regu- 

lations, those standards are different from the standards of re- 

view which this Court must follow under Section 2 of the Voting 

Rights Act. 

5. That the decision by the Assistant Attorney General was 

inconsistent with the investigation, factual findings and 

recommendations of the staff experts and was made for partisan 

and personal reasons that were contrary to the purposes of the 

statute and the regulations of the Department. 

6. That the review process was highly irregular and con- 

‘ducted under circumstances that do not indicate trustworthiness 

or reliability. 

7. That the Assistant Attorney General is not bound by 

statute to give and in fact did not give a reason for his decision 

-2 =    



    

‘not to object. 

8. That any memoranda of the Assistant Attorney General 

purporting to give reasons for his decision were prepared in 

anticipation of litigation and are not reliable, or probative of 

the issues in this case. 

9. That plaintiffs are prohibited from seeking judicial 

review of the decision of the Assistant Attorney General, and 

would be unfairly prejudiced if this Court gave any weight what- 

soever to that decision. 

10. That the letter of no objection and any Department of 

Justice records or reports supporting the decision of the 

- Assistant Attorney General are inadmissible because they are 

irrelevant. 

11. | That even if this Court should find that they have some 

probative value, that value is outweighed by the likelihood of 

confusing the issues in this case and protracting the litigation. 

Further, such evidence is hearsay that does not cons within any 

exception under the Federal Rules of Evidence. 

12. That defendants will not be prejudiced by a ruling ex- 

cluding this evidence because defendants are not precluded from 

attempting to introduce the relevant facts which they provided 

the Assistant Attorney General on which he may have relied. 

RELIEF 

WHEREFORE, plaintiffs pray this Honorable Court enter its 

Order in limine finding the evidence in question irrelevant or, 

if relevant, nonetheless inadmissible, and directing the defendants 

-    



    

» a 
to refrain absolutely from making in person, by counsel or 

through witnesses any reference to and from introducing as 

evidence the June 18, 1982 letter from William Bradford Reynolds 

to Kenneth DeJean or any Department of Justice reports, records, 

statements, data compilations or factual finding supporting the 

decision of the Assistant Attorney General regarding Act No. 20. 

Alternatively, plaintiffs request.an opportunity, through 

appropriate and expedited discovery, to inquire fully into the 

reasons for and the process and circumstances surrounding the 

decision of the Assistant Attorney General not to object to Act 

No. 20. 

Respectfully submitted, 

  

R. JAMES KELLOGG 

WILLIAM P. QUIGLEY 

STEPHEN SCHECKMAN 

STANELY HALPIN 

631 St. Charles Avenue 

New Orlenas, Louisiana 70130 

JACK GREENBERG 

JAMES M. NABRIT, III 

LOWELL JOHNSTON 

LANI GUINIER 

10 Cclumbus Circle 

Suite 2030 
New York, New York 10019 

  

ATTORNEY FOR PLAINTIFFS 

Pated: January 1 , 1983    



    

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF LOUISIANA 

  

BARBARA MAJOR, et al., Civil Action 

Plaintiffs, No. 82-1192-H 
Section (c) 

THREE JUDGE COURT CASE 

CLASS ACTION 

  

DAVID CC. TREEN, etc., et al., 
  

Defendants. 

  

BRIEF IN SUPPORT OF MOTION IN LIMINE 

This is a civil action to enjoin Act. No. 20 of the First 

Extraordinary Session of the Louisiana Legislature of 1981 

(hereinafter Act No. 20) on the grounds that it violates plain- 

tiffs' rights under the United States Constitution and the Voting 

Rights Act of 1965, as amended, 42 U.S.C. §1973, (hereinafter the 

Voting Rights Act). Plaintiffs have alleged in their Complaint 

and Proposed Amended Complaint that Act No. 20 reapportioned 

the electoral districts for representatives to the United States 

House of Representatives in a discriminatory manner with a 

discriminatory result. This case is set for trial on January 31, 

1983. Plaintiffs anticipate that defendants will attempt to in- 

troduce at trial letters, records, reports and memoranda of 

William Bradford Reynolds, Assistant Attorney General, United 

States Department of Justice, regarding his June 18, 1982 decision 

not to object under Section 5 of the Voting Rights Act to Act. No.20. 

Plaintiffs contend that such evidence regarding the decisionof the    



      

|Assistant Attorney General not to object to Act No. 20 is irrele- 

vant to this case. Additionally, whatever minimal probative 

value defendants might assign to this evidence, that value is out- 

weighed by the substantial likelihood of confusing the issues and 

protracting the litigation. Finally, plaintiffs are contesting 

the admissibility of such evidence as unreliable hearsay that does 

not come within any exception under the Federal Rules of Evidence. 

Plaintiffs therefore bring this motion in limine to exclude such 
hol 

evidence. 

  

*/ Motions in limine are a necessary adjunct to the trial court's 
power to limit or exclude evidence. See, Hunter, Federal Trial 
Handbook, "The Motion in Limine," Sec. 11.4. Because pre-trial 
rulings expedite the trial and eliminate surprise, in limine rul- 
ings on the admissibility of evidence are favored by the commenta- 
tors. For example, in their discussion of in limine rulings on 
objections under Rule 403, Wright and Graham, Federal Practice and 
Procedure: Evidence, §5224 at 320-21 (1978) state that: 

  

Courts and commentators generally agree ... 
[that it is desirable to hold] a pretrial 
hearing where the issue is important and 
complex. The use of the motion in limine 
for this purpose should be encouraged. 

See Zenith Radio Corp. v. Matsushita Elec. Ind. Co., 505 F. Supp. 
1125, 1141 (E.D. Pa. 18380) for a collection of cases and com- 

mentators on this issue. 

  

   



  

DOCUMENTARY OR TESTIMONIAL EVIDENCE 

REGARDING THE DECISION OF THE ASSISTANT 

ATTORNEY GENERAL NOT TO OBJECT TO ACT 

NO. 20 IS IRRELEVANT AND THEREFORE 

INADMISSIBLE AT TRIAL 
  

Relevant evidence is "evidence having any tendency to make 

the existence of any fact that is of consequence to the determina- 

tion of the action more probable or less probable than it would be 

without the evidence." Fed. R. Evid. 401. Only evidence that is 

relevant is admissible. Fed. R. Evid. 402. Plainitffs believe 

that the decision of the Assistant Attorney General not to object 

to Act No. 20 has no tendency whatsoever to make the existence of 

any fact that is of consequence to the determination of this action 

more probable or less probable. Evidence of this decision is 

therefore inadmissible in this case. Rule 402. 

The decision of the Assistant Attorney General is not proba- 

tive of the fact at issue in this case for several reasons. First, 

the Voting Rights Act expressly states that the determination of 

the Department of Justice of a voting law change submitted pur- 

suant to the preclearance provisions, 42 U.S.C. §1973b&c, does not 

bar and is not binding on any subsequent judicial action to enjoin 

the enforcement of the change. The statute states: 

Neither an affirmative indication by the 
Attorney General that no objection will 
be made, nor the Attorney General's fail- 
ure to object, ... shall bar a subsequent 
action to enjoin enforcement of such qual- 
ification, prerequisite, standard, practice, 

or procedure. 

The courts have interpreted this provision as precluding all 
* 

judicial review of the Attorney General's discretion and entit- 

ling litigants to a de novo proceeding. City of Rome v. United 
  

  

*/ Pursuant to 28 CFR §51.3, the Attorney General has delegated his 
authority to enforce Section 5 to the Assistant Attorney General, 
Civil Rights Division. : 

=~      



    

States, 450 F. Supp. 378 (D. D.C. 1978), aff'd on other grounds, 
  

446 U.S. 156 (1980); Morris v. Gressette, 432 U.S. 491, 507 n. 24 
  

(1977). 

In a de novo proceeding under the United States Constitution 

and Section 2, the failure of the Assistant Attorney General to 

object is neither "conclusive with respect to the constitutionality 

of the submitted state legislation," Morris v. Gressette, supra. at 
  

505, nor probative since no inquiry is permitted into his reasons 

lor the decision-making process. As Justice Marshall stated in 

dissent in Morris v. Gressette, at 507-8: 
  

The Court holds today that an Attorney General's 
failure to object within 60 days to the implementa- 
tion of a voting law that has been submitted to him 
under §5 of the Voting Rights Act, as amended, 42 
USC §1973c, cannot be questioned in any court. 
Under the Court's ruling, it matters not whether 
the Attorney General fails to object because he 
misunderstands his legal duty, as in this case; 
because he loses the submission; or because he 
seeks to subvert the Voting Rights Act. Indeed, 
the Court today grants unreviewable discretion to 
a future Attorney General to bargain acquiescence 
in a discriminatory change in a covered State's 
voting laws in return for that State's electoral 
votes, Cf. J. Randall & D. Donald, The Civil War 
and Reconstruction 678-701 (2d ed 1961) (settle- 
ment of the election of 1876). (footnote omitted) 

Second, the decision of the Assistant Attorney General not to 

object is irrelevant because the statutory standard of review under 

Section 5 is different than the standards of review under the 

Constitution and Section 2. See Report on S. 1992 of the Senate 

Committee on the Judiciary, S. Rep. No. 417, 97th Cong. 2d Session 

(1982) at 68, 138-139. Moreover, since inguiry into the applica- 

tion by the Assistant Attorney General of the Section 5 standard 

is precluded, Morris v. Gressette, supra, at 507 n. 24, plaintiffs 
  

contend that even if the Court were to discern similarities between 

Section 5 and Section 2 for example, such similarities in the 

-l    



  

statutory standards of review would still not be enlightening as 

to the actual standard applied in this case. The fundamental de- 

fect in admitting evidence of the Assistant Attorney General's 

decision is that neither the court nor plaintiffs are, or can be, 

in the normal course of this litigation, privy to the decision- 

making process. Where all judicial review of the agency exercise 

of discretion or failure to act is precluded, a decision cloaked 

in such mystery is of no probative value and should not be ad- 

mitted. 

*/ This is particularly true since the Court in Morris v. 
Gressette, supra at 503-504, interpreted the statute to preclude 
all judicial review based on the potential severity of the pre- 
clearance process for covered jurisidictions in that review would 
defeat the congressional purpose of providing a speedy way for 
states to gain permission to implement new voting laws, and not 
because the Court assumed that the Attorney General's discretion 
had been exercised properly. See City of Rome v. United States, 
450 F. Supp. at 381. 

  

  

     



    

IT. THE EVIDENCE AT ISSUE IS NOT TRUSTWORTHY 

OR RELIABLE   

This court should exercise its discretion to exclude the 

evidence at issue even if it determines that the evidence is 

relevant. While the issue of admissibility of Department of 

Justice Section 5 preclearance reports, letters and memoranda has 

not heretofore been decided, it is clearly within the court's dis- 

cretion to exclude such evidence. Rosenberg v. Collins, 624 F.2d 
  

659 (5th Cir. 1980) (trial court has broad discretion in ascertain- 

ing admissibility of business records); see also LeRoy v. Sabina   

Belgium World Airlines, 344 F.2d 266 (2nd Cir. 1965), cert den'd   

382 U.S. 878 (fact that report has been prepared by government 

official or agency does not require its admissibility); Dickerson 

Vv. Metropolitan Dade County, 659 F.2d 574, 579 (5th Cir. 1981)   

(it is the trial judge who must find the facts and draw legal con- 

clusions from them). 

The rule governing admissibility in general of government 

agency records and reports is Fed. R. Evid. 803(c) (8). Garcia v. 

Gloor, 618 F.2d 264, 271-2 (5th Cir. 1980) rehearing den'd 625 

F.24 1016, cext. den'd 101 s. Ct. 823.   

Rule 803(c) (8) provides: 

Public records and reports. Records, 
reports, statements, or data compilations, 
in any form, of public offices or agencies, 
setting forth (A) the activities of the 
office or agency, or (B) matters observed 
pursuant to duty imposed by law as to which 
matters there was a duty to report, exclud- 
ing, however, in criminal cases matters 
observed by police officers and other law 
enforcement personnel, or (C) in civil 
actions and proceedings and against the 
Government in criminal cases, factual find- 
ings resulting from an investigation made 
pursuant to authority granted by law, unless 

-6=-    



the sources of information or other 

circumstances indicate lack of trust- 
worthiness. (emphasis added) 

  

  

The trial court is considered the best judge of whether the 

tendered evidence meets the Rule's standard of trustworthiness and 

reliability. Denny v. Hutchinson Sales Corp., 649 F.2d 816 (l0th 
  

Cir. 1981) (trial court properly exercised discretion to exclude 

Colorado Civil Rights Commission determination in housing discrim- 

ination case). The letters, records, reports and memoranda of the 

agency decision herein are only admissible under Rule 803(C) (8) 

should the court in its discretion find they are not untrustworthy 

or unreliable. Falcon v. General Tel. Co. of Southwest, 626 F.2d 
  

369, 382-3 (5th Cir, 1980), rehearing denied 631 F.24 732, re- 

versed and remanded on other grounds, 50 U.S.L.W. 4638 (June 14, 

1982). See also Zenith Radio Corp. v. Matsushita Elec. Ind. Co., 
  

supra at 1147 for enumeration of seven factors, in addition to 

those identified in the Advisory Committee note to Rule 803(8), 

relevant to a trustworthiness determination within the meaning of 

the Rule. Weinstein & Berger, Weinstein's Evidence §803(8) [03] at 

at 200-208 (1979); United States v. Shoupe, 548 F.2d 636, 642 n. 3 
  

{6th Cir, 1977). 

Where the evidence in question is not a product of an adver- 

sary proceeding or where it is based in part on evidence which 

would have been inadmissible if independently offered at trial, 

the court should find the evidence untrustworthy, Fowler v. 

Firestone Tire & Rubber Co., 92 FRD 1 (D.C. Miss. 1980) (National 
  

Highway Traffic Safety Administration Report inadmissible), Meder v. 

Jennings, 637 F.2d 1122 (8th Cir. 1981), Kemen and Co. v. Paul H. 
        Aschkar &§:Co., 382 P.24 689 (9th Cir. 1967): and exercise its      



    

discretion to exclude it. Angelo v. Bacharach Instrument Co., 
  

555 F.2d 1164 (3rd Cir. 1977) (within sound discretion to exclude 

determination letter issued by EEOC following ex parte investiga- 

tion); Zenith Radio Corp. v. Matsushita, supra. 
  

This Circuit's rule that an EEOC investigation report should 

be admitted into evidence, Smith v. Universal, 454 F.2d 184, 156- 
  

58.{(85%th Cir. 1972), is distinguishable. That rule is premised on 

the belief that the EEOC investigation report reflected the de- 

terminations and expertise of an unbiased federal agency and 

there was no reason to suspect any lack of trustworthiness. Smith 

v. Universal, supra at 158. The court there concluded the re- 
  

sources and person hours expended by trained EEOC personnel would 

otherwise be wasted if the results of their investigation were 

excluded. Plaintiffs believe that the decision at issue here, to 

the contrary, neither reflects the determinations of an unbiased 

federal agency nor the analysis and expertise of the professional 

agency staff. See Affidavit of C. Lani Guinier in support of 

Motion in Limine. This Court should, therefore, exercise its 

discretion to exclude the decision and supporting memoranda at 

issue here. Blummer v. Western Intern. Hotels Co., Inc. 656 F.24 
  

502 (9th Cir. 1981). 

In addition, EEOC reports are not considered by the courts in 

a vacuum. Indeed, other Circuits have rejected a per se rule of 

admissibility. See, e.g., Walton v. Eaton Corp., 563 F.2d 66 
  

(3rd Cir. 1977) (en banc), Cox v. Babcock & Wilcox Co., 471 F.2d 
  

13 (4th Cir. 1972); Heard v. Mueller Co., 464 P.24:190 (6th Cir. 
  

1972); Gillin v. Federal Paper Board Co., Inc., 479 F.2d 97 (2nd 
     



    

Cir. 1973). The reports are admissible on a case-by-case basis, 

having been introduced by plaintiffs through the testimony of an 

EEOC investigator who has personal knowledge of the investigation 

and who is available for cross-examination. Fed. R. Evid. 901 & 

902; Gillin v. Federal Paper Board, supra. Compare John McShain, 
  

  

Inc. V. Cessna Aircraft Co., 563 F.2d 632 (3rd Cir. 1977). 
  

Plaintiffs would object if a similar witness were not available 

to authenticate the evidence and to ans wer questions about its 

reliability, since plaintiffs vigorously challenge the reliability 

and trustworthiness of the preclearance decision. Melville Vv. 
  

American Home Assur. Co., 443 F. Supp. 1064 at 1115 (E.D. Pa. 
  

1977), aff'd 584 F.2d 1306 (3rd Cir. 1977) (either must produce 

declarant for purposes of cross-examination or forego use of 

evidence); Swietlowich v. County of Bucks, supra; Weinstein & 
  

Berger, Evidence supra at 803-208 (the trial judge is free to say 
  

"In this particular case and in view of the shaky foundation for 

the conclusions, I will exclude the report unless you produce the 

reporting officer.") 

Finally, plaintiffs assert that defendants will not be pre- 

judiced by the exclusion of this evidence since the facts which 

were provided the Assistant Attorney General can be independently 

introduced at trial. Swietlowich v. County of Bucks, 610 F.2d at 
  

1165 (exclusion of district attorney reports appropriate where 

trial judge had doubts about their trustworthiness and informa- 

tion obtainable in other ways).    



    

III. ADMISSION OF THE EVIDENCE WOULD DELAY 

THE PROCEEDINGS 
  

Federal Rule of Evidence Number 403 provides: 

Although relevant, evidence may be 

excluded if its probative value is 

substantially outweighed by the danger 

of unfair prejudice, confusion of the 

issues, or misleading the jury, or by 

considerations of undue delay, waste 

time, or needless presentation of 

cumulative evidence. (emphasis added) 

  

  

The Advisory Committee's notes following Fed. R. Evid. 403 

call for the Court, in implementing this rule, to "balance the 

probative value of the need for this evidence against the harm 

likely to result from its admission.” Even if the Court finds 

that the evidence at issue is relevant, it should nevertheless 

exercise its discretion to exclude the evidence because of the 

likelihood of confusing the issues and delaying the litigation. 

See Affidavit of C. Lani Guiner in support of Motion in Limine. 

zenith Radio Corp v. Matsushita Electrical Industrial Co., Ltd., 
  

505 F. Supp. supra at 1155 n. 29, 1161 (evidence excluded where 

probative value outweighed by delay in litigating trustworth- 

iness issue; if the evidence is admitted, plaintiffs entitled to 

raise at trial all evidentiary matters that support contention 

that the documents are not trustworthy); City of New York v. 
  

Pullman, Inc., 662 F.2d 910 (2nd Cir. 1981), cert. den'd 102 
  

  

S. Ct. 1038 (excluded staff report of Urban Mass Transit 

Administration; admission would have protracted trial with inquiry 

into collateral issues of report's accuracy). 

If the evidence is admitted, to assist the Court in determ- 

ining the weight to be given such evidence, plaintiffs would need 

an opportunity to discover all the circumstances surrounding the 

-10-    



    

exercise of discretion by the Assistant Attorney General. The 

extent of permissible inquiry into those circumstances would have 

to be litigated, since the Department of Justice has informed 

plaintiffs' attorney (see Affidavit in support of Motion in 

Limine of C. Lani Guinier) that they will oppose enforcement of 

deposition subpoenas F.S. 82-0501 issued by the United States 

District Court for the District of Columbia on the grounds that 

the reasons and analysis underlying the June 18, 1982 decision 

not to interpose an objection are irrelevant and not discoverable. 

The Assistant Attorney General has declined to furnish all the 

reasoning of his staff, for example, or even to stipulate to cer- 

tain facts of the review process, e.g., that his decision not to 

object was contrary to the legal analysis and recommendations of 

his staff. Admission of evidence of the agency decision-making 

process would, therefore, inevitably delay the litigation of this 

case. 

Conclusion 

It is immaterial and unnecessary to the disposition of this 

case, and contrary to the law as set forth in Morris v. Gressette, 
  

supra; City of Rome v. United States, supra; and Harris v. Bell, 
    

562 F.2d 772 (D.C. Cir. 1977) to permit evidence of the exercise 

of the Assistant Attorney General's discretion under Section 5. 

As stated by the Supreme Court in Morris v. Gressette, supra at 
  

506-07: 

Where the discriminatory character of an 
enactment is not detected upon review by 
the Attorney General, it can be challenged 
in traditional constitutional litigation. 
But it cannot be questioned in a suit seek- 
ing judicial review of the Attorney General's 
exercise of discretion under §5, or his 

-1]1~    



    

failure to object within the statutory 
period. 

Evidence of the June 18, 1982 decision not to object is, 

therefore, irrelevant. To allow defendants to introduce this 

evidence and memoranda supporting the exercise of discretion 

would be to allow evidence that is not probative since it cannot 

be examined and since it reflects the application of different 

and possibly no legal standards. 

Such evidence is also inadmissible because it is based on 

a nonadversary proceeding that relied substantially on hearsay 

and from which plaintiffs were, at significant points, excluded. 

Furthermore, if this evidence is allowed, the likelihood of con- 

fusing the issues and protracting the litigation is substantial. 

If the Court is reluctant to exclude the evidence at this 

stage and plaintiffs instead are given an opportunity to discover 

the circumstances surrounding the Assistant Attorney General's 

decision, plaintiffs believe they will be able to show that the 

decision and his memorandum supporting the decision are unrelia- 

ble, and are based primarily on self-serving hearsay. The letters, 

reports, and memoranda of the Department of Justice would, there- 

fore, still be inadmissible under any exceptions for records of 

public agencies to Fed. R. Evid. 802. 

For these reasons plaintiffs move in limine for this Court to 

make an order prohibiting introduction of this evidence by    



    

offer or reference. 

Dated: January ll, 1983 

Respectfully submitted, 

  

R. JAMES KELLOGG 

WILLIAM P. QUIGLEY 

STEPHEN SCHECKMAN 

STANLEY HALPIN 

631 St. Charles Avenue 

New Orleans, Louisiana 70130 

JACK GREENBERG 

JAMES M, NABRIT, 

LOWELL JOHNSTON 

LANI GUINIER 

10 Columbus Circle 

Suite 2030 

New York, New York 10019 

1 

By: 
  

ATTORNEY FOR PLAINTIFFS 

   



    

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF LOUISIANA 

  

BARBARA MAJOR, et al., Civil Action 

No. 82-1192-H 

Section (c) 

-VS-—- THREE JUDGE COURT CASE 

Plaintiffs, 

  

DAVID C. TREEN, etc., et al., CLASS ACTION 
  

Defendants. 

  

STATE OF NEW YORK ) 
Y 33. 

COUNTY OF NEW YORK) 

SUPPLEMENTAL AFFIDAVIT IN SUPPORT OF 
PLAINTIFFS' MOTION IN LIMINE 

C. LANI GUINIER, being duly sworn, deposes and says: 

1. The attached exhibits are copies of documents re- 

viewed on December 16 and 17, 1982 at the offices of the United 

States Department of Justice, Civil Rights Division, Voting 

Section, and pertain to matters referred to in my January 10, 1983 

Affidavit. 

2. Exhibit A is the front and back of a routing slip 

from Gerry Jones (Chief, Voting Section), to Mr. Turner (James P. 

Turner, Deputy Assistant Attorney General, Civil Rights Division); 

dated June 16, 1982, indicating that an objection to the Louisiana 

Congressional Reapportionment is recommended.    



    

® “ 
3. Exhibit B is a routing slip from Gerry Jones that 

was attached to Wm. Bradford Reynolds' Memorandum to the File, 

referred to in paragraphs 3 and 14 of my January 10, 1983 

Affidavit, indicating that Mr. Jones received the Memorandum on 

July 19, 1982, although the Memorandum is dated June 18, 1982. 

  

z is 
Lani Guinier 

Subscribed to and sworn before me 

this 12th day of January, 1983. 

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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF LOUISIANA 

  

BARBARA MAJOR, et al., : Civil Action 

No. 82=1192=H Plaintiffs, Section (2) 

Se ~ THREE JUDGE COURT CASE 

CLASS ACTION 

  

  DAVID C. TREEN, etc., et al. 

Defendants. 

  

AFFIDAVIT OF C. LANI GUINIER IN SUPPORT OF 
PLAINTIFFS' MOTION IN LIMINE 

C. LANI GUINIER, being first duly sworn, deposes and says: 

l. I am an attorney with the NAACP Legal Defense and 

Bducational Fund, Inc., and am one of the attorneys representing 

the plaintiffs in the above-captioned matter. For three years 

beginning October 1977 I was employed by the United States 

Department of Justice as Special Assistant to the Assistant 

Attorney Gsnaual, Civil Rights Division. I am familiar with the 

facts and proceedings heretofore had herein and make this affi- 

davit in support of plaintiffs' Motion in Limine. 

2. On June 24, 1982, James Kellogg, an attorney also 

representing plaintiffs, wrote tc William Bradford Reynolds, 

Assistant Attorney. General, Civil Rights Division, United States 

Department of Justice requesting pursuant to the Freedom of 

Information (FOIA) Act, inter alia, a copy of any memoranda gen- 

erated by the Civil Rights Division regarding the Section 5 sub- 

mission of Act No. 20. In that letter he informed Mr. Reynolds    



  

Ehat trial in this litigation was scheduled within thirty days. 

3. I am informed and believe that Mr. Kellogg received 

a letter dated July 19, 1982 from Mr. Reynolds enclosing a 

Memorandum to the File dated June 18, 1982 and referring the 

balance of his request to Janet Blizard, Director, FOIA Unit, for 

consideration. 

i. Between July 19, 1982 and November 19, 1982, there 

was no further written response to Mr. Kellogg's June 24, 1982 

request, although Mr. Kellogg made several telephone inquiries 

regarding its status. 

5. On November 22 and 23, 1983, I had several telephone 

conversations with Department of Justice staff, including Ms. 

Blizard, wherein I advised them of the plaintiffs' continued need 

for the information on an expedited basis. 

6. On December 6, 1982 I wrote Mr. Reynolds reiterating 

our request under FOIA for inter alia "any memoranda generated by 

the Voting Rights Section analyzing the suBmiseion, Sevimabizing 

the facts of the submission and providing information on which you 

relied to make your decision. If the delay in responding to our 

June 24, 1982 request is due to a claim that any of these memo- 

randa may be'exempt in part or in whole under 5 USC §552(b) (5), we 

wish to call your attention to the principle that memoranda con- 

taining recommendations or conclusions that were adopted by the 

decision maker are not exempt." 

7. On December 9, 1982, I caused to be served a Notice 

of Deposition and Subpoena on several staff of the Department of 

Justice, including Mr. Reynolds. 

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Forme 8 ON December 13, 1982, I agreed in a telephones con- 

versation with Gerald Hebert, attorney, Voting Rights Section, to 

wait to enforce the subpoenas until the Department provided me the 

portion of requested snfdemanion that they would voluntarily re- 

lease. 

9. On December 16 and 17, 1982, pursuant to this agree- 

ment, I examined the public file of the Voting Section, Civil 

Rights Division, United States Department of Justice, regarding 

the submission ander Section 5 of the Voting Rights Act of Act No. 

20 of the First Extraordinary. Session of the Louisiana Legislature 

1lof 1981 (hereinafter Act Na. 20). I was also given access at that 

time to the Division files regarding Act No. 20 except for those 

files which contained "confidential or internal" memoranda. 

10. On January 7, 1983, I received from Gerald W. Jones, 

Chief, Voting Section, a letter with some, but not all, materials 

I had specifically requested as a result of my December 16 and 17 

review and stating that "this response complies fully" with my 

request. 

11. On January 7, 1983 I spoke on the telephone with 

Gerald Hebert, Esqg., and was advised that I had received all the 

material the Department would voluntarily release and that the 

Department will oppose enforcement of deposition subpoenas 

82-0501 on, inter alia, similar grounds to those stated in 

Jones' January 6, 1983 letter, i.e., that information such as the 

|lreasoning, factual inferences and application of legal standards 

by the staff and Assistant Attorney General to the Louisiana 

Congressional submission is not discoverable. I advised Mr. Hebert 

that I believed that the decision of the Assistant Attorney General 

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[mot to-object to Act No. 20 was inconsistent with the analysis and 

recommendations .of the staff who reviewed the submission and had 

primary ‘responsibility for .the investigation. I requested a stip- 

ulation to.that effect. and informed Mr. Hebert that my request for 

such stipulation was based in part on the Department's failure to 

release the recommendations andiconclusions of the staff. He said” 

that the Department would .not stipulate to this information at 

this time. : 

12. Plaintiffs have exercised due diligence in attempt- 

ing to discover the circumstances surrounding the decision of the 

{|Assistant Attorney General not to object to Act No. 20. Neverthe- 

less, plaintiffs have yet to receive all information relevant to 

such inquiry and believe that continuing our efforts will delay the 

litigation of this case. 

13. Having reviewed the portions of Department files and 

memoranda made available to me, I believe the decision of the 

Assistant Attorney General not to interpose an objection to Act 

No. 20 was inconsistent with the recommendations of his staff and 

was the result of an unreliable and untrustworthy decision-making 

process. This belief is consistent withthe law under FOIA and the 

Department's standard practise to disclose the recommendations of 

staff hint are adopted as part of the final decision. On informa- 

tion znd belief, the Puotesstonal SLaft SuPeRViSOES, lawyers and 

investigators who are not political appointees, who have developed 

||an expertise ia the area of voting and who have primary responsibi- 

lity to conduct fact finding under Section 5, all recommended that 

a Section 5 objection be interposed to Act No. 20. 

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== 14: Having. examined .the original of Mr. Reynolds' 

Memorandum:-to-the Filecregarding-the:Louisiana. reapportionment 

dated June-18, 1982, I.believe.that.this memorandum was dated 

July 187.1082 and. shen chatred soirend June 18,.1982 and was pre- 

pared incmid-July 1982,.subsequent. to and in response to plaintiffs 

June 2.4,.1982.:.FOIA cesta ans icivation of this litigation.” 

In his: January 6, 1983:letter, Gerald.Jones, Chief, Voting Section, 

admitted- that the Memorandum:.in question was back dated, and was 

in: fact-typed in mid-July. 

15... Regular procedures. were not followed in the 

|Department's: review ofiAct No.. 20.. For example, a Feb. 2, 1932 

letter Requesting More: Information was. sent to Louisiana by 

Section: Chief. Gerald.-Jones,. stating;: 

According to. information we have gathered to date, 
it-hds been. reported that Governor Treen stated that 
"carving'out a mostly black: [Congressional] district 
may serve the interests of various politicians but it 
does not: serve the: interest of: black people," "black 
voters: are better: served by forming a major part of 
the- population:in: two. districts. than a dominant part of 
one district," and with respect to a plan adopted by 
both: houses. of the: legislature, "Any bill in that form 
is unacteptable and. without: question will be vetoed." 
Please: indicate whether or not. the Governor is accurately 
quoted... If so, please: answer. the following: 

a); With respect to the first statement, please 
submit: all information relied upon by the Governor as the 
basis. for the statement, including all statements of per- 
sons in. the: black: community who are in agreement with the 
Governor's: statenient. Provide the name, address, telephone 
number and. organizational affiliation of representatives of 
the: black: community making such a statement. 

b); With regard to the second statement, please sub- 
mit all information which shows that black citizens in 
Congressional Districts. 1, 2. and 3 have either influenced 
the outcome. of elections in those districts or have formed 
a voting bloc in those districts that requires candidates 
to be responsive to black voters in order to secure a 
winning margin. In addition, submit all information which 
would tend to show that black voters in Districts 1, 2 and 
3 perceive responsiveness tc minority interests by success- 
ful Congressional candidates inthose districts since 1970, 

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.€.g., provide any reputatidn evidence and anecdotal 
reference relied upon by the Governor such as the 
history and voting record of both successful and un- 
sucessful Congressional candidates while holding any 
political office. 

c) With respect to the third statement, please 
state the reasons for the Governor's statement and 
all information relied upon by the Governor as the 
basis for the statement. 

In a most unusual gesture of concern for the feelingsof the 

Governor of Louisiana, Mr. Reynolds ‘had the Assistant Attorney 

General for the State of Louisiana, ‘who received the letter on 

February 5, 1982, return it to him, On February 16, 1982, a second 

and altered letter was then mailed by the Department requesting 

|lerom the State of Louisiana the identical information in all 

respects except as to the references to the Governor's statements 

which were all deleted. Paragraph 10 in the second Request for 

More Information was changed at Mr. Reynolds' request to read 

instead: - 

10. It has been brought to our attention that in 
apportioning the Congressional districts in the New Orleans 
metropolitan area the districts were drawn on the theory 

lat it was preferable for blacks to constitute a substantial 
portion of two districts than to make up a majority in a 
single district. Please submit to us any information used 
as the basis for arriving at that conclusion and the name, 
address, telephone number and organizational affiliation 
of any person advancing or supporting that view. 

In addition, please submit any information which 
shows that black citizens in congressional Districts 1, 2 
and 3 have either influenced the outcome of elections in 
those districts or have formed a voting bloc in those 
districts that requires candidates to be responsibe to 
black voters in order to secure a winning margin. + Include 
all information which would tend to show how black voters 
in Districts 1, 2 and 3 perceive responsiveness to minority 
interests by successful Congressional candidates in those 
districts since 1970. e.g., provide any reputation evidence 
and anecdotal reference relied upon by the Gowernor such as 
the history and voting record of both successful and unsuc- 
cessful = Congressional candidates while holding any political 
office. 

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16. Prior to his decision not to object, the Assistant 

Attorney General met several times with Governor Treen, including. 

an overnibht trip to Louisiana to meet with the Governor. On 

information and belief, Mr. Reynolds received a helicopter ride 

(not veflsoted in his travel logs) courtesy of Governor Treen from 

Baton Rouge: to New Orleans. I am informed and believe that Mr. : 

Reynolds aia not reimburse the State of Louisiana for his travel 

from Baton Scag to New Orleans or for meals or other gratuities 

received from the Governor during this trip. 

17. I believe on the basis of my experience at the 

|Department, my knowledge of Department procedures and regulations, 

and information about Mr. Reynolds' relationship with David Treen, 

Governor cf Louisiana, and defendant in this case, that Mr. 

Reynolds failed to object to Act No. 20 because of personal and 

political considerations unrelated to the purposes of the statute 

he was responsible for enforcing. 

18. For the reasons stated in this Affidavit and in 

Plaintiffs' Motion and Brief in support of Motion in Limine, 

this Court Shouts exclude any’ letters or memoranda supporting the 

decision by the Assistant Attorney General not to object to Act 

No. 20. 

C : Nn Lo 
C. Lani Guinier 
Attorney for Plaintiffs 

  

Sworn to and subscribed before 

me this 10th day of January, 1983. 

rr Notary Public 4 
  

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