Reply to Defendants' Motion to Strike Affidavits Filed in Support of Plaintiffs' Motion for Summary Judgment and Memo in Support of Motion with Certificate of Service

    UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF NORTH CAROLINA 

RALEIGH DIVISION 

Civil Action No. 4.96-CV-104-BO(3) 

MARTIN CROMARTIE, et al., ) 

Plaintiffs, ) 

) REPLY TO DEFENDANTS’ MOTION 

VS. ) TO STRIKE AFFIDAVITS FILED 

) IN SUPPORT OF PLAINTIFES’ 

JAMES B. HUNT, JR., in his official capacity ) MOTION FOR SUMMARY 

as Governor of the State of North Carolina, ) JUDGMENT AND MEMORANDUM 

etal. ) IN SUPPORT OF MOTION 

) Defendants. 
  

Defendants have moved to strike several affidavits filed by Plaintiffs in this action. 

Defendants’ motion is really predicated on the weight and materiality of the evidence presented 

by means of these affidavits, rather than on the admissibility of that evidence or the competency 

of the affiants. Accordingly, the motion to strike should be denied, as will be explained now 

with respect to each affidavit. 

AFFIDAVITS OF J.H. FROELICH, JR., R.O. EVERETT, AND NEIL WILLIAMS 

According to FRE 601, every person is competent to be a witness, except as otherwise 

provided in the Federal Rules. Also there is a limitation that as to the elements of a claim or 

defense as to which state law supplies the rule of decision, competency of a witness shall be 

determined in accordance with state law. FRE 601. However, this limitation is inapplicable 

because the issues of this case involve claims under the Fourteenth and Fifteenth Amendments of 

the United States Constitution; and state law cannot provide a defense with respect to such 

claims. 

Evidence to prove personal knowledge may consist of the witness’ own testimony. FRE 

602. Each of these three affiants makes clear the basis of his extensive personal knowledge of 

 



  

the counties in which they reside and the basis for their knowledge of the racial and political 

demographics of those counties. Likewise, it is apparent from their affidavits that they all have 

personal knowledge as to the absence of any community of interest between Mecklenburg 

County, on the one hand, and Guilford and Forsyth Counties, on the other. 

Under FRE 701, the form of opinions is limited to opinions or inferences which are “a) 

rationally based on the perception of the witness and b) helpful to a clear understanding of the 

witness’ testimony or the determination of a fact at issue.” Plaintiffs submit that the affidavits of 

J.H. Froelich, Jr., R.O. Everett, and Neil Williams make clear that each has personal knowledge 

of facts which rationally support his opinions and inferences that there was a predominately race- 

based motive for the shape of the current Twelfth District and its predecessor. This evidence 

provided by affiants should be helpful to this Court in determining several facts at issue — the 

race-based motive of the General Assembly for drawing the Twelfth District in its current form 

and the spuriousness of claims by the State that the Twelfth District has “functional 

compactness” or is grounded in a genuine community of interest. 

As the Supreme Court made clear in Shaw v. Reno, 113 S.Ct. 2816 (1993), the 

appearance of the Twelfth District as it then existed provided important circumstantial evidence 

as to the General Assembly’s motive for drawing that district. Likewise that appearance — as 

interpreted with the assistance of witnesses like Froelich, Everett and Williams — provides 

convincing evidence as to the motive for drawing the current Twelfth District. Furthermore, 

Plaintiffs would suggest that, in accordance with FRE 404(b) the motive for drawing the current 

Twelfth District also helps reveal the motive of the General Assembly for drawing the current 

First District, which Plaintiffs contend is also race-based. 

FRE 702 states, “If scientific, technical, or other specialized knowledge will assist the 

 



  

trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an 

expert by knowledge, skill, experience, training, or education, may testify thereto in the form of 

an opinion or otherwise.” The Advisory Committee’s Note to Rule 702 makes clear that it 

should be liberally construed, it states, “This rule is broadly phrased. The fields of knowledge 

which may be drawn upon are not limited merely to the ‘scientific’ and ‘technical’ but extend to 

all ‘specialized’ knowledge. Similarly, the expert is viewed, not in a narrow sense, but as a 

person qualified by ‘knowledge, skill, experience, training, or education.” Thus within the scope 

of the rule are not only experts in the strictest sense of the word, e.g., positions, businesses, and 

architects, but also the large group sometimes called ‘skilled’ witnesses, such as bankers or 

landowners testifying to land values.” Plaintiffs submit that, as to some relevant facts, all three 

of these witnesses qualify as experts within Rule 702 because of their knowledge and their 

experience which produced that knowledge. Neil Williams has resided in Mecklenburg County 

some thirty-five years, served as an assistant district attorney there, and ran for Congress in the 

Twelfth District in 1994. That experience is sufficiently unique to have provided him the 

specialized knowledge which Plaintiffs submit will assist this Court in determining at least two 

basic facts at issue — the predominately race-based motive for drawing the Twelfth District and 

the intimate relationship between the present Twelfth District and its predecessor. Similar 

reasoning applies to R.O. Everett, who has resided for almost four decades in Rowan County, 

been a bank executive there for a major bank, and run as a candidate for the General Assembly. 

Finally, J.H. Froelich, a life-long resident of Guilford County, has not only experience in local 

politics, but also in state politics because of his having served as manger for the Democratic 

nominee for governor in 1972. His “specialized knowledge” is likewise helpful for the Court in 

determining the facts at issue. 

 



Affidavit of John Weatherly 

  

With respect to the Defendants’ motion to strike John Weatherly’s affidavit, some of the 

arguments applicable to Froelich, Everett and Williams also apply. He has served several terms 

in the North Carolina General Assembly and has had special interest in the redistricting process. 

His experience includes introduction of a proposed constitutional amendment concerning the 

redistricting process, the introduction of a resolution in early 1997 that was designed to create a 

redistricting commission for the purpose of drawing a new congressional redistricting plan for 

1998 elections, and previously, in the fall of 1996, his service on the General Assembly’s fifteen 

member Election Law Reform Committee established to consider the North Carolina electoral 

process. Moreover, he has had the opportunity to hear other members of the General Assembly 

express their state of mind concerning the 1997 redistricting process; and these statements by 

other legislators fall within the exception to hearsay set out in FRE 803(3). These states of mind 

are important in determining whether the Fourteenth Amendment has been violated. 

One argument set forth in Defendants’ motion to strike John Weatherly’s affidavit is 

remarkable for its total inconsistency with regard to the affidavits of Roy A. Cooper, Ill and W. 

Edwin McMahan that Defendants filed in support of their own motion for summary judgment. 

They contend that under North Carolina law the statements of legislators cannot be introduced 

into evidence to show legislative intent. The inconsistency Is so great that Plaintiffs are filing 

herewith a conditional motion to strike the affidavits of Cooper and McMahan, so that if the 

affidavit of Weatherly is stricken, these other affidavits will be stricken on the same grounds. 

In candor, Plaintiffs should acknowledge that regardless of rules of North Carolina law 

concerning admission of evidence of the intent of legislators, the statements as to intent are 

admissible when, as with respect to Representative Weatherly’s testimony, the statements are 

 



being used to prove existence of a legislative intent which violated the Equal Protection Clause 

  

of the Fourteenth Amendment. FRE 101 provides that the rules for trials in the federal courts are 

those which are prescribed by the Federal Rules of Evidence; and FRE 101 does not purport to 

incorporate state rules of evidence. As has been earlier noted, FRE 601 provides that the 

competency of a witness shall be determined in accordance with state law “with respect to an 

element of a claim or defense as to which state law applies the rule of decision.” FRE 501 

contains a similar provision with respect to privileges and FRE 302 also allows state law to 

supply the rule of decision with respect to “the effect of a presumption.” The attempt by the 

State to bar Representative Weatherly’s affidavit is not authorized by FRE 302, 501 or 601; and 

therefore, under FRE 101, there is no basis for applying it to exclude Weatherly’s affidavit. If 

Weatherly’s affidavit is inadmissible the same conclusion should be reached as to the affidavits 

of Cooper and McMahan; and for this reason Plaintiffs have submitted their conditional motion 

to strike. 

Affidavit of Lee Mortimer 

The arguments that have been previously made with respect to the other affiants apply 

even more strongly with respect to Defendants’ motion to strike Lee Mortimer’s affidavit and 

their contention that he does not qualify as an expert. As has already been noted, FRE 702, 

which concerns testimony by experts, takes a broad view of what constitutes expertise and of 

who may qualify. Lee Mortimer’s affidavit makes it quite clear that his knowledge, skill and 

experience fully qualify him as an expert and that he is uniquely qualified to provide an opinion 

that will be valuable to the Court in deciding the issues before it. Mortimer has personally drawn 

congressional redistricting plans and has written in the field of redistricting. His expertise has 

been recognized by the state itself by his placement on the General Assembly’s fifteen member 

 



Election Law Reform Committee to study and evaluate the electoral process in North Carolina. 

The expert opinions that he has submitted would appear far more relevant to the issues of this 

case and are more firmly based than some of those opinions that have been provided by 

? &¢ Defendants’ “experts.” 

Conclusion 

The affidavits offered by Plaintiffs are factually based and provide evidence that will 

assist the Court in deciding this case. Although their weight and materiality must be determined 

by the Court as it considers all the evidence before it, none of these affidavits should be stricken; 

and the Defendants’ motion should be denied. 

Respectfully submitted, this the Z / day of March, 1998. 

Pla 
  

Robinson O. Everett 

Everett & Everett 

N.C. State Bar No.: 1385 

As Attorney for the Plaintiffs 

P.O. Box 586 

Durham, NC 27702 

Telephone: (919)-682-5691 

Williams, Boger, Grady, Davis & Tittle, P.A. 

Martin B. McGee 

State Bar No.: 22198 

Attorneys for the Plaintiffs 

P.O. Box 810 

Concord, NC 28026-0810 

Telephone: (704)-782-1173  



  

CERTIFICATE OF SERVICE 

I certify that I have, on this the od 4 of March, 1998, served the foregoing Reply to 

Defendants’ Motion to Strike Affidavits Filed in Support of Plaintiffs’ Motion for Summary 

Judgment and Memorandum in Support of Motion on the Defendants by mailing them a copy 

thereof, postage pre-paid, to the following addresses: 

Mr. Edwin M. Speas, Jr., Esq. 

Senior Deputy Attorney General 

North Carolina Department of Justice 

P.O. Box 629 

Raleigh, NC 27602 

Ms. Anita Hodgkiss 

Ferguson, Stein, Wallas, Adkins, Gresham, Sumter, P.A. 

741 Kenilworth Avenue 

Suite 300 

Charlotte, NC 28204 

fH 

  

  

Martin(B. McGee 

Plaintiff for the Attorneys