Major v. Treen Brief in Support of Motion in Limine

    UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIA}IA

BARBARA MA.fOR, et aI., )
Civil Action

Plaintiffs, ) uo. 82-1192-II
\ Section (c)

-vs- )

. THREE JUDGE COURT CASE
DAVID C. TREEN, etc. r et aI ' cr,Ass AcrroN

t-

Defendants. t

BRIEF IN SUPPORT OF MOTION IN tII4TNE

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

Extraordinary Session of ttre Louisiana Legislature of 1981

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

tiffs! rights under the United States Constitution and the Voti4g

Rights Act of 1955, as amendedt 42 V.S.C. SI973, (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

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

1983. Plaintiffs anticipate that defendants will attempt to in-
troduce at trj.al letters, records, reports and memoranda of
$Iil1iant, Bradford ReynoJ.ds, Assistant Attorney General, United,

States Department of Justice, regiarding his Jr:ne 18, L982 decisior

not to object under Section 5 of the Voting Rights Actto Act. |Ic.20.

Plaintiffs contend that such evid,ence regard,ing the decisionof tlre



Assistant Attorney General not to object to Act No. 20 is irrele-
vant to ttris case. Aaditionally, 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 ttrerefore bring this motion in limine to exclude such*/
evidence. -

y Motions ij limine are a necessary adjunct to the trial courtrs
power to limit or exclude evidence. See, Hunter, Eederal Trial
Handbook, "The Motion io Liminer" Secl-T1.
;ufffi-gs-expedite the trial and eliminate surprise, in limine rul-
ings on the admissibility of evid,ence are favored by ttre conunenta-
tors. For example, in their discussion of in limine ruU.ngs on
objections undei Rule 403, wright and Gratram, ffil practice and
Procedure: Evj.dence, 55224 at 320-21 (1978) state that:

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

See Zenith R6 . r 505 F. Supp.
Ilzs s and com- - -

mentators on this issue.

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DOCUMENTARY OR TESTIMONIAI EVIDENCE
REGARDING TEE DECISION OF THE ASSISTANT
ATTORNEY GENERAL NOT TO OBJECT TO ACT
NO. 20 IS IRRELEVANT AND THEREFORE
INADMISSIBLE AT TRIAL

Relbvant evidence is "evidence having any tendency to make

the existence of any fact that is of consequence to ttte dete:mina-

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 adrnissible. Fed. R. Evid,. 402. Plainitffs believe

ttrat 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 actiqr

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 facts at issue in this case for several reasons. Eirs

the Voting Rights Act expressly states ttrat the determination of

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

suant to the preclearance provisions, 42 U.S.C. 51973bec, does not

bar and is not binding on €rny sr:bsequent 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 mader nor the Attorney Generalrs fail-
ure to object, sha1I bar a subsequent
action to enjoin enforcement of such qual-
ificatj.on, prerequisite, standard, Practicer
or proced,ure.

The courts have interpreted this provision as precluding allvjudicial review of the Attorney General's discretj.on and entit-

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

Attorney General has delegated hi
authority to enforce Section 5 to the Assistant Attorney General,
Civil Rights Division

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I.



tates,

46 u. S.

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

155 (1980); Morris v. Gressette, 432 U.S. 49Lt 507 d. 24

(L977) .

In a de novo proceed,ing under the Unj.ted States Constituti.on

Section 2, the failure of the Assistant Attorney General to

bject is neither'bonclusive with respect to the constitutionality
f the submitted state legislationr" Morris v, Gressetle, supra. a

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

or the d,ecision-rnaking 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 50 days to the implementa-
tion of a voting law that has been sr.rbmitted to him
under 55 of the Voting Rights Actr ES drn€nded, 42
USC SI973c, cannot be questioned in any court.
Under the Courtrs ruling, it matta:s not whether
the Attorney General fails to object because he
misunderstands his legal dutyr as in this casei
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 Staters electoral
votes. Cf. J. Randall s D. Donald, The Civil War
and, Reconstruction 578-701 (2d ed 1951) (settle-
ment of the election of 1876). (footnote omitted)

Second, the d,ecision of the Assistant Attorney General not to
object is irrelevant because the statutory standard cf review unde

Section 5 ls d,ifferent ttran the standards of review under the

Constitution and, Sectj"on 2. See Report on S. L992 of the Senate

Corunittee cn the Judj.ciary, S. Reg. No. 4L7, 97Eh Cong. 2d Session

(1982) at 58, 138-139. Moreover, since inquiry into the applica-

tion by the Assistant Attorney General of the Section 5 standard,

is precluded, Ivlorris v. Gressette, :lrPra,, at 507 n. 24 , plaintif fs

contend that even if the Court were to discern similarides between

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

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statutory standards of review would sti1l not be enlightening as

to the actual standard applied in this case. The fundament,al de-

fect in admitting evidence of the Assistant Attorney Generalrs

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

in the normal course of this litigation, privl; 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.

y This is particularly true since the Court in l"lorris v.
G-ressette, supra at 503:504, interpreted the statffiSeclude
atl judicial review based, on the potentj.al severity of the pre-
clearance process for covered jurisidict,ions in that review would
d,efeat 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 Generalrs discretion
had been exercised properly. See City of Rome v. United Statesr
450 F. Supp. at 381.

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II. TIIE EVIDENCE AT ISSUE IS NOT TRUSTWORTHY
OR RELIABLE

This court should, exercise its discretion to exclude the

evidence at issue even if it dete:mines ttrat th6 evid,ence is
relevant. While the issue of admissibility of Departrnent of
Justice Section 5 preclearance reports, letters and memoranda has

not heretofore been d,ecided, it is clearly within the courtrs.dis-
cretion to exclude such evidence. Rosenberq v. Co1lins, 624 f.2d

659 (Sth Cir. 1980) (trial court has broad, discretion in ascertain

ing adnrissibility of bubiness records); see also LeRoy v. Sabina

Belgium World Airlines, 344 8.2d, 266 (2nd Cir. 1965), cel! 4eni4

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

official or agency does not require its adnj.ssibility); Dickerson

v. Metropolitan Dade Countv, 559 8.2d,574t 579 (5ttr 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, 27L-2 (5th Cir. 1980) rehearing den'd,625

F.2d 1016r c€rt. den'd 101 S. Ct. 823.

Rule 803(c) (8) provides:

puirtic records and reports. Records,
reports, statements, or data compilations,
in any fotm, of pubJ.ic 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 t ot (C) in civil
actions and proceedings and against the
Government in criminal cases, factual find-
ings resulting from an investigation mad,e
pursuant to auttrority granted by law, r:nless

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sources of information or other
ances indicate lack o
ss . ( emDrlas:-s

The trial court is considered the best judge of whettrer the

tendered evid,ence meets the Rule's standard of trustworttriness and

reliability. ., 649 F.2d 815 (10th

Cir. 1981) (trial court properly exercj.sed discretion to exclude

Colorado Civil Rights Corumission d,etermination ln housing discrim-

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

agency decision herein are only adrn:issib.le under Rule 803(C) (8)

should the court in its d,iscretion find they are not untrustworthy

or unreliable. Falcon v. General TeI. Co. of Souttrwest, 626 F.2d

369, 382-3 (5th Cir, 1980) , rehearing denied 631 F.zd 732 r r€-

versed and remanded on other grounds, 50 U.S.L.W. 4538 (June L4,

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

supra at 1147 for enumeratj.on of seven factors, in additj.on to

ttrose identified in the Advisory Corunittee note to RuIe 803(8),

relevant to a trustworthiness determination within the meaning of
ttre Rule. Weinstein & Berger, Weinstein's Evidence 5803(8) t03l at

at 200-208 (L979lt United States v. Shoupe, 548 8.2d.636, 642 n. 3

(5rh cir, 1977) .

Where ttre evidence in question is not a prod,uct of an adver-

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

would have been inadsdssible if independently offered at trialr
the court should find the evidence untrustworthy, Fowler v.

Firestone Tire a Rubber Co., 92 FRD 1 (D.C. l4iss. 1980) (Nati.onal

Ilighway Traffic Safety Administration Report inadmissible), lEder14.

537 F.2d LL82 (8th Cir. 1981), Kamen and Co. v. Paul H.,

&

Jennin

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exercise its



d,iscretion to exclude it. .,

555 F.2d 1154 (3rd Cir. L977) (within sound discretion to exclude

determination letter issued by EEOC following ex parte investiga-

tion) r zenith Radio corp. v. , .w'.
This Circuit's rule ttrat an EEOC investigation report should

be admitted into evidence, Smith v. Universal, 454 P.2d L84, 156-

58 (5th Cir. L972), is distinguishable.. That rule is premised on

ttre belief that the EEOC investigation report reflected the de-

te:minations and expertise of an unbiased fed,eral agency and

there tdas no reason to suspect any lack of trustworttriness. Smith

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

sources and person hours expended by trained EEOC personnel wouLd

othe::wise be wasted, if the results of their investigation $rere

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

the contrary, neither reflects ttre d,eteminations of an unbiased

federaL. agency nor the analysis and, expertise of the professional

agency staff. See Affldavit of C. Lanj, Guinier in support of

Motj.on ln Limine. this Court should, therefore, exercise its

d,iscretion to exclude the decision and supporting memoranda at

issue here. Blurnmer v. Western Intern. Eotels Co., Inc. 656 F.2d

502 (9th Cir. 1981).

In addition, EEOC reports are not considered by tlre courts in
a vacuum. Indeed, other Circuits have rejected a per si rule of
admissibility- EE., 9.9., @., 553 F.zd.66

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

13 (4th Cir. L972)t lleard v. Mueller Co., 464 F.2d I90 (6th Cir.

L972)i ., 479 E.2d 97 (2nd

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

havi,ng been introduced by plaintiffs through the testi-mony of an

EEOC investigator who has personal knowledge of the investigation

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

9O2i Gillin v. Federal Paper Board, ggg.. Compare ,{ohn McShain

. , 563 E'.2d 632 (3rd Cir. L977)

PLaintiffs would, object if a similar witness rdere not available

to authenticate the evidence and to Erns ler questions about its

reliability, since plaintiffs vigorously challenge ttre reliabilitl

and trustworthiness of the preclearance decision. Melville-v.

Ameri-can Home Assur. Co., 443 F. SupP. 1064 at 1115 (8.D. Pa.

L977), aff'd 584 r.2d 1305 (3rd, Cir. L977) (either must produce

declarant for purposes of cross-examination or forego use of

evidence); Swietlowich v. Countv of Bucks, suprai Weinstein a

Berger, Evj.dence supra at 803-208 (the trial judge is free to say

',In this particular case and in vj.ew of the shaky foundation for

the conclusions, I will exclude the report unLess you produce ttre

reporti.ng of f icer.. " )

Finally, plaintiffs assert that defendants will not be pre-

judiced by the exclusion of ttris evidence since the facts which

!'/ere provided the Assistant Attorney General can be independently

introduced at triaL , 610 P-2d at

1165 (exclus:.on of district attorney reports appropriate where

trial judge had doubts about their trustworthiness and informa-

tion obtainable in other ways).

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III. AD!,IISSION OF THE EVIDENCE WOULD DEI.AY
THE PROCEEDINGS

Federal Rule of Evidence Number 403 provides:

Although relevant, evidence maY be
exclud,ed if its Probative value is
Eubstantially outweighed by the danger
of rrnfair prejudice, confuqion of tle
issuesr oE misleading tFe jury, or !I
Eo-n-s r,_ae rations o f lrldue--ge lgL, was te

of
crrmulative evidence. (emPhasis added)

The Ad,visory comtitteers notes following Fed. R. Evid. 403

call for ttre Court, in implementing Uris ru1e, 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 di.scretion to exclude ttre evidence because of the

likelihood of confusing trre issues and delaying the litigation.

see Affidavit of c. Lani Guiner ln support of Motion in Limine'.

zenith Radi.o v. Matsushita Electrical Industrial Co', Ltd' r

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

probative value outweighed by delay in li.tigating'trustworth-:

iness isEue, if the evidence is admitted, plaintiffs entitled to

raise at trial all evidentiary matters that support contention

that the documents are not trustlforthy); Citv of New York v'

E@., E62 P-2d 910 (2nd cir' 1981), cqrt' denrd 102

S.Ct.1038(exclud,edstaffrePortofUrbanMassTrarrsit
Adrninistration;adnissionwouldhaveprotractedtrialwithiquir:y
into collateral issues of reportrs accuracy) '

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

ining the weight to be given such evidence, plaintiffs would

an opPortrinity to Ciscover all the circumstances surroqnding the

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exercise of discretion by the Assistant Attorney C,eneral. The

extent of pe:missible inquiry into those circunstances would have

to be litigated, since the Departrnent of Justice has informed

plaintiffs' attorney (see Affidavit in support of Motion in
LiminE of C. Lani Guinier) ttrat they will oppose enforcernent of
deposition subpoenas F.S. 82-0501 issued by the Unj.ted States

District Court for the District of Colrlnbia on ttre ground,s that
the reasons and analysis und,erlying the June 18, L982 decision

not to interpose an objection are irrelevant and not discoverable

The Assistant Attorney General has declined, to furnish all the

reasonj.ng of his staffrfox exampler o! even to stipulate to cer-

tain facts of the review process, €.g., that his decision not to
object was contrary to the lega1 analysis and recommendations of
his staff. Admission of evidence of the agency decision-making

process would, therefore, inevitably d,e1ay the litigation of this
case

Conclusion

It is immaterial and unnecessary to ttre disposition of this
case, and contrary to the Iaw as set forth in Morris v. Gressette

suprai City of Rome v. United Stat , suprai and llarris v. BeI1,

562 8.2d,772 (D.C. Cir. 1977') to pemit evidence of the exercise

of the Assistant Attorney General's d,iscretion under Sectj.on 5.

P-s stated by the Supreme Court in Morris L Gressetter !!pS at

505-07:

I{here ttre 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 revj.ew of the Attorney General's
exercise of discretj.on under 55, or his

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' , ll
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ll failure to object within the statutoryu period.
I
ll t"idence of the June 18, 1982 decision not to object is,
lt
11 ttrerefore, irrelevant. To allow d,efendants to introduce this
lt

ll evidence and memoranda supporting the exercise of discretion
illl would be to allow evidence that is not probative since it cannot
il

ll U. examined and since it reflects the application of different

ll "tt. 
possibly no lesa1 standards-

ll t"ch evidence is also inadmissible because it ls based on

ll " """"dversary 
proceeding that relied sr:bstantially on hearsay

ll *d from which plaintiffs were, 6t signifi.cant points, exclud,ed,.

ll *r*"rmore , Lf ttris evidence is allowed, ttre likelihood of con-

ll 
t"=t", the issues and, protracting tlre litigation is strbstantial.

ll 
-t the Court is reluctant to exclude the evidence at ttris

ll staSe and plaintiffs instead, are given an opportunity to discover

ll *. circumstances surround,ing the Assistant Attorney General's

ll 
a""isio", plaintiffs believe ttrey will be able to show that the

ll 
aecision and his memorand,um supporting tlre decision are unrelia-

ll 
Ot", and are based primarily on self-serving hearsay. The lettens,

ll 
renorts, and memoranda of the Department of Justice wouldr there-

ll 
fore, sti11 be inadnissible und,er any exceptions for records of

ll public agencies to Fed. R. Evid. 802.

ll For these reasons plaintiffs ntove in limine for ttris court to

ll 
make an order prohibitj.ng introduction of this evidence by

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offer or reference.

Dated,: Januar'lt lI, 1983

Respectfully submitted,

R. JAMES KELLOGG
wrLLrA!{ P. QUIGLEY
STEPHEN SCHECK!{NiI
STA}ILEY HATPIN

531 St. Charles Avenue
New Orleans, Iouisiana 70130

JACK GREENBERG
.,A!{ES M, NABRIT, III
LOT{EI.L JOENSTON
I,ANT. GUINIER

10 Columbus Circle
Suite 2030
New York, New York 100L9

By:
ATTORNEY FOR .PI,AINTIFFS

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