Correspondence from Edmisten to Leonard; Defendants' Response to Pugh Plaintiffs' Motion for Class Certification; Memorandum in Support of Response to Pugh Plaintiffs' Motion for Class Certification;
Public Court Documents
June 22, 1982

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Case Files, Cromartie Hardbacks. 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, 1998. c8bcf4a9-e00e-f011-9989-002248226c06. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/6fffa34b-54c5-47bc-adc8-40f267c84c5f/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. Accessed June 30, 2025.
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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