Log Cabin Republicans v. United States of America et al

Filing 180

NOTICE OF MOTION AND MOTION IN LIMINE to Exclude Lay Witness Testimony filed by defendants Donald H Rumsfeld, United States of America. Motion set for hearing on 6/28/2010 at 02:30 PM before Judge Virginia A. Phillips. (Attachments: #1 Plaintiffs Initial Disclosures, #2 Plaintiffs Responses to Defendants First Set of Interrogatories, #3 E-mail string, May 17-20, 2010, #4 E-mail from plaintiffs counsel dated June 7, 2010 (subjects of witnesses testimony), #5 E-mail from plaintiffs counsel dated June 7, 2010 (designations of 30(b)(6) deposition testimony), #6 Plaintiffs Proposed Findings of Fact and Conclusions of Law, #7 Deposition of Jamie Scott Brady, #8 Deposition of Dennis Drogo, #9 Deposition of Paul Gade, #10 Proposed Order)(Simpson, W)

Log Cabin Republicans v. United States of America et al

Doc. 180

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1 TONY WEST Assistant Attorney General 2 ANDRÉ BIROTTE, Jr. United States Attorney 3 JOSEPH H. HUNT VINCENT M. GARVEY 4 PAUL G. FREEBORNE W. SCOTT SIMPSON 5 JOSHUA E. GARDNER RYAN B. PARKER 6 U.S. Department of Justice Civil Division 7 Federal Programs Branch Post Office Box 883 8 Washington, D.C. 20044 Telephone: [phone] Facsimile: [phone] E-mail: [e-mail] 10 Attorneys for Defendants United States 11 of America and Secretary of Defense 12 13 15 16 v. UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA EASTERN DIVISION Plaintiff, ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. CV04-8425 VAP (Ex) DEFENDANTS' NOTICE OF MOTION AND MOTION IN LIMINE TO EXCLUDE LAY WITNESS TESTIMONY DATE: June 28, 2010 TIME: 2:30 p.m. BEFORE: Judge Phillips

14 LOG CABIN REPUBLICANS,

17 UNITED STATES OF AMERICA AND ROBERT M. GATES, Secretary of 18 Defense, 19 20 21 22 23 24 25 26 27 28
DEFENDANTS' NOTICE OF MOTION AND MOTION IN LMINE TO EXCLUDE LAY WITNESS TESTIMONY

Defendants.

Filed herewith: 1. Notice of Motion and Motion in Limine to Exclude Lay Witness Testimony 2. Memorandum of Points and Authorities 3. Attachments 1 through 9 4. Proposed Order

UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

Dockets.Justia.com

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NOTICE OF MOTION AND MOTION IN LIMINE TO EXCLUDE LAY WITNESS TESTIMONY NOTICE IS HEREBY GIVEN that on June 28, 2010, at 2:30 p.m., in the

4 Courtroom of the Honorable Virginia A. Phillips, United States District Judge, 5 Defendants United States of America and the Secretary of Defense (collectively, 6 "Defendants"), by and through counsel, will move in limine to exclude certain lay 7 witness testimony that Plaintiff intends to offer into evidence at trial. The Motion 8 will be based upon these moving papers, the attached Memorandum of Points and 9 Authorities in support of the Motion, and upon such other and further arguments, 10 documents, and grounds as may be advanced in the future. This Motion is made following the conference of counsel pursuant to Local 11 12 Rule 7-3, which took place by telephone on June 8, 2010. 13 Dated: June 18, 2010 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
DEFENDANTS' NOTICE OF MOTION AND MOTION IN LMINE TO EXCLUDE LAY WITNESS TESTIMONY UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

Respectfully submitted, TONY WEST Assistant Attorney General ANDRÉ BIROTTE, JR United States Attorney JOSEPH H. HUNT Director VINCENT M. GARVEY Deputy Branch Director /s/ W. Scott Simpson PAUL G. FREEBORNE W. SCOTT SIMPSON JOSHUA E. GARDNER RYAN B. PARKER

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DEFENDANTS' NOTICE OF MOTION AND MOTION IN LMINE TO EXCLUDE LAY WITNESS TESTIMONY

Trial Attorneys U.S. Department of Justice, Civil Division Federal Programs Branch 20 Massachusetts Ave., N.W. Room 6108 Washington, D.C. 20044 Telephone: [phone] Facsimile: [phone] [e-mail] Attorneys for Defendants United States of America and Secretary of Defense

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UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

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MEMORANDUM OF POINTS AND AUTHORITIES TABLE OF CONTENTS

4 INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 5 6 7 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 I. Plaintiff Failed to Disclose the Identities of Eight 8 of its Lay Witnesses as Required by the Rules . . . . . . . . . . . . . . . . . . 6 9 II. All of the Contemplated Lay Witness Testimony Regarding the Merits Is Irrelevant in this Facial Challenge . . . . . . . . . . . . . . . . . 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 25 26 27 28
DEFENDANTS' NOTICE OF MOTION AND MOTION IN LMINE TO EXCLUDE LAY WITNESS TESTIMONY UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

III. IV. V.

Presenting Testimony by Six Former Service Members Would Constitute "Needless Presentation of Cumulative Evidence" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 The Designated Testimony of the 30(b)(6) Witnesses Is Irrelevant to the Extent it Constitutes the Personal Views of the Witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 At Least Three Specific Areas Inquired into in the 30(b)(6) Depositions Are Irrelevant . . . . . . . . . . . . . . . . . . . . . . . . . 15 A. B. C. Testimony Regarding Research and Developments that Occurred After Enactment of 10 U.S.C. § 654 Is Irrelevant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Testimony Regarding Enlistment Waivers for Convicted Felons Is Irrelevant . . . . . . . . . . . . . . . . . . . . . . . . 17 Testimony Regarding the Experiences of Foreign Militaries Is Irrelevant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

VI.

Certain of the Specific Questions and Answers Designated by the Plaintiff Are Also Inadmissible for Various Reasons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

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TABLE OF AUTHORITIES

PAGE(S) 3 CASES 4 Brazos River Auth. v. GE Ionics, Inc., 469 F.3d 416 (5th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 5 City of Las Vegas v. Foley, 747 F.2d 1294 (9th Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 6 7 Detoy v. City & County of San Francisco, 196 F.R.D. 362 (N.D. Cal. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 8 Equity Lifestyle Props., Inc. v. County of San Luis Obispo, 548 F.3d 1184 (9th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 9 10 FCC v. Beach Communications, 508 U.S. 307 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 8, 10 11 Falchenberg v. New York State Dep't of Educ., 642 F. Supp. 2d 156 (S.D.N.Y. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 12 13 Goldman v. Weinberger, 475 U.S. 503 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11 14 Gonzales v. Carhart, 550 U.S. 124 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 15 16 Great American Ins. Co. v. Vegas Constr. Co., 251 F.R.D. 534 (D. Nev. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 17 Hunt v. Washington State Apple Adver. Comm'n, 432 U.S. 333 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 18 19 MDK, Inc. v. Village of Grafton, 277 F. Supp. 2d 943 (E.D. Wis. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 20 Medic Alert Found. U.S., Inc. v. Corel Corp., 43 F. Supp. 2d 933 (N.D. Ill. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 21 22 Metro Broadcasting, Inc. v. FCC, 497 U.S. 547 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 23 Philips v. Perry, 106 F.3d 1420 (9th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 24 25 Rostker v. Goldberg, 453 U.S. 57 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 26 Sanitation & Recycling Indus., Inc. v. City of New York, 928 F. Supp. 407 (S.D.N.Y. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 27 28
DEFENDANTS' NOTICE OF MOTION AND MOTION IN LMINE TO EXCLUDE LAY WITNESS TESTIMONY UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

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1 Shimozono v. May Dep't Stores Co., No. 00-4261 WJR (AJWx), 2002 WL 34373490 (C.D. Cal. Nov. 20, 2002) . . . . . . . . . . . . . . . . . . . . . . 6 2 Sugar Ass'n, Inc. v. McNeil-PPC, Inc., No. CV 04-10077 DSF (Rzx), 2008 WL 4755611 (C.D. Cal. Jan. 7, 2008) . . . . . . . . . . . . . . . . . . . . . . . . . 5 3 4 Turner Broadcasting Sys., Inc. v. FCC, 520 U.S. 180 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 5 United States v. Bynum, 327 F.3d 986 (9th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 6 7 United States v. Connors, 825 F.2d 1384 (9th Cir. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 8 United States v. Hooton, 662 F.2d 628 (9th Cir. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 9 10 United States v. Ives, 609 F.2d 930 (9th Cir. 1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 11 United States v. Jackson, 84 F.3d 1154 (9th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 12 13 Vance v. Bradley, 440 U.S. 93 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 14 Washington State Grange v. Washington State Republican Party, 552 U.S. 442 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11 15 16 Western & S. Life Ins. Co. v. State Bd. of Equalization, 451 U.S. 648 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 17 Yeti by Molly Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101 (9th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 18 19 20 STATUTES 21 10 U.S.C. § 504 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 17, 18 22 10 U.S.C. § 654 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim 23 24 FEDERAL RULES OF CIVIL PROCEDURE 25 Rule 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim 26 Rule 30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim 27 Rule 32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 19 28 Rule 33 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
DEFENDANTS' NOTICE OF MOTION AND MOTION IN LMINE TO EXCLUDE LAY WITNESS TESTIMONY UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

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1 Rule 37 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 6 2 3 FEDERAL RULES OF EVIDENCE 4 Rule 401 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 5 Rule 402 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 14 6 Rule 403 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 7 8 LEGISLATIVE HISTORY 9 S. Rep. No. 103-112 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 18 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
DEFENDANTS' NOTICE OF MOTION AND MOTION IN LMINE TO EXCLUDE LAY WITNESS TESTIMONY UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

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INTRODUCTION This is a facial constitutional challenge to 10 U.S.C. § 654, known as Don't

3 Ask, Don't Tell ("DADT"), and the Court has previously held that rational basis 4 review applies here. Plaintiff Log Cabin Republicans ("LCR") intends to offer into 5 evidence at trial the testimony of fourteen lay witnesses ­ eleven of them live and 6 three of them by deposition. Six of the proposed witnesses are former military 7 service members who were discharged under DADT; three are current officers of 8 LCR; two are either former officers of LCR or former counsel to the organization; 9 and three (those whose testimony LCR seeks to present by deposition) were 10 designated by Defendants to be deposed under Rule 30(b)(6) of the Federal Rules 11 of Civil Procedure. The testimony of twelve of these lay witness ­ or, alternatively, portions of 12
1 13 their testimony ­ should be excluded for various reasons. First, LCR failed to 14 reveal the identity of eight of these witnesses in either its initial disclosures or its

15 responses to Defendants' interrogatories, and did not otherwise make known the 16 identity of these individuals during discovery. Thus, the testimony of these eight 17 witnesses should be excluded for this reason alone. See Fed. R. Civ. P. 18 26(a)(1)(A)(i), 37(c)(1). 19 Second, since this is a facial constitutional challenge, any "courtroom 20 fact-finding" would be inappropriate, and all evidence on the merits beyond the 21 statute and legislative record should be excluded (that is, all testimony not going 22 solely to LCR's standing). FCC v. Beach Communications, 508 U.S. 307, 315 23 (1993). This is especially true regarding the six former service members, who, 24 based on information provided informally by counsel for LCR, are expected to 25
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26 LCR identified them during discovery, and their testimony goes to standing rather than to the 27 issue of standing, because he was also properly identified to the Defendants. This motion does, 28 however, apply to any merits-related testimony by Mr. Nicholson.
DEFENDANTS' NOTICE OF MOTION AND MOTION IN LMINE TO EXCLUDE LAY WITNESS TESTIMONY UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

Defendants do not move to exclude Terry Hamilton or Philip Bradley as witnesses.

merits. Defendants also do not move to exclude the testimony of Alexander Nicholson on the

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1 offer testimony regarding the circumstances surrounding their discharges under 2 DADT. Since this is a facial challenge to DADT, any testimony regarding the 3 application of the statute to an individual would be irrelevant under Federal Rule 4 of Evidence 402 and should be excluded as such. Third, to the extent the Court 5 were to accept testimony from any former service members, testimony from the six 6 such persons identified by LCR would be cumulative. 7 Fourth, regarding the three 30(b)(6) witnesses, portions of the designated 8 testimony constitute the personal testimony of the witnesses rather than the testi9 mony of the organizational deponent under Rule 30(b)(6) ­ because the questions 10 either exceeded the permissible scope of the deposition notice or explicitly sought 11 the witness's personal views ­ and should be excluded as irrelevant. Fifth, 12 assuming any testimony in this facial challenge were otherwise appropriate, 13 portions of the designated 30(b)(6) testimony are irrelevant for the additional 14 reason that the questions sought information on subjects that have no bearing on 15 the constitutionality of DADT ­ specifically, research and other developments that 16 occurred after Congress enacted the statute; the circumstances in which the U.S. 17 military allows a person to enlist despite a prior felony conviction; and the 18 experiences of foreign militaries that permit open service by gays and lesbians. Finally, certain of the individual questions posed during the 30(b)(6) 19 20 depositions are otherwise objectionable, such as for lack of foundation, and the 21 testimony given in response to those questions should be excluded on that basis. 22 Those specific objections are noted in Attachments 7, 8, and 9 hereto. For these reasons, most of LCR's contemplated lay witness testimony, as set 23 24 forth in greater detail further below, should be excluded from the evidence at trial. 25 26 27 28
DEFENDANTS' NOTICE OF MOTION AND MOTION IN LMINE TO EXCLUDE LAY WITNESS TESTIMONY UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

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BACKGROUND LCR has filed its "Trial Witness List," which includes the following lay

2 3 witnesses (Doc. 173). Based on the summary judgment briefing in this case and 4 on other information provided by counsel for LCR, Plaintiff apparently intends to

5 offer each witness in the capacity indicated below: Mike Almy Former service member 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Jamie Scott Brady Dennis Drogo Paul Gade Jenny Kopfstein Anthony Loverde J. Alexander Nicholson III Joseph Christopher Rocha Stephen Vossler Philip Bradley Craig Engle Jamie Ensley Terry Hamilton C. Martin Meekins Former service member Former service member Former service member Former service member Former service member LCR board member Outside counsel to LCR President of LCR Georgia chapter LCR national chairman Former LCR board member and former outside counsel to LCR 30(b)(6) witness 30(b)(6) witness 30(b)(6) witness

Except for the 30(b)(6) witnesses, only three of these witnesses were

22 identified by name during the discovery period in this case: Alexander Nicholson, 23 who was identified as a potential lay witness in LCR's initial disclosures 24 (Attachment 1 hereto) and in response to Defendants' interrogatory seeking the 25 identify of "each person likely to have information relating to your case" 26 27 includes seven proposed expert witnesses, whose intended testimony is addressed in Defendants' 28 Motion in Limine Regarding Plaintiff's Expert Witnesses.
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In addition to the lay witnesses addressed in this motion, LCR's Trial Witness List

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UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

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1 (Attachment 2 hereto); Terry Hamilton, who was also identified in response to the 2 above-quoted interrogatory; and Philip Bradley, who was identified during Mr. 3 Hamilton's deposition as knowing the identity of "John Doe," the anonymous 4 "member" upon whom LCR relies for standing. Neither under Rule 26(a) or 26(e) 5 nor in response to Defendants' discovery requests did LCR ever identify the other 6 lay witnesses nor state the contemplated subjects of their testimony. In an email on 7 June 7, 2010, after the close of discovery, counsel for LCR stated for the first time 8 that the six former service members listed above were expected to testify "about 9 the circumstances surrounding their discharges pursuant to DADT" (Attachment 4 1 0 hereto). 11 The 30(b)(6) witnesses listed above ­ Jamie Scott Brady, Dennis Drogo, and 12 Paul Gade ­ were identified pursuant to a notice of deposition served by LCR on 13 the Defendants, seeking testimony on seventeen subjects (Doc. 118-2). Ruling on 14 a motion to compel filed by LCR, the Court ordered Defendants to produce one or 15 more persons to testify regarding ten of those subjects, but denied LCR's motion as 16 to the other seven matters (Doc. 127). For example, the Court did not permit LCR 17 to inquire about "Defendants' contention that [DADT] is rationally related to a 18 legitimate purpose," or "[s]tatistics regarding discharges from 1994 through the 19 present pursuant to [DADT]," or "[t]he fiscal effect of [DADT].". 20 Defendants designated three 30(b)(6) witnesses to address the subjects 21 permitted by the Court: Lt. Col. Jamie Scott Brady was designated to address 22 items 1, 2, 3, 4, 7, 10, 15, and 17 in LCR's deposition notice (Doc. 118-2); Dr. Paul 23 Gade was designated to address item 6 (related to "the experience of the armed 24 forces of nations other than the United States with military service by individuals 25 with a homosexual orientation"); and Mr. Dennis Drogo was designated to address 26 item 14 (related to Defendants' implementation of 10 U.S.C. § 504, which permits 27 enlistment of persons convicted of felonies in some circumstances). Plaintiff 28 deposed all three witnesses under Rule 30(b)(6), and has now designated portions
DEFENDANTS' NOTICE OF MOTION AND MOTION IN LMINE TO EXCLUDE LAY WITNESS TESTIMONY

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UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

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1 of the Brady and Drogo depositions, and nearly all of the Gade deposition, for trial 2 under Rule 32(a) (Attachment 5 hereto). 3 4 ARGUMENT LCR failed to identify eight of its witnesses to the Defendants as required by

5 the rules, and those witnesses should be excluded for that reason alone. 6 Additionally, from a more substantive standpoint, the testimony of all of LCR's 7 witnesses, except testimony regarding standing, should be excluded as irrelevant in 8 this facial challenge to a statute. The proponent of evidence bears the burden of 9 showing that it is both relevant and admissible, and LCR cannot do so as to the 10 testimony addressed in this motion. See United States v. Connors, 825 F.2d 1384, 11 1390 (9th Cir. 1987); Sugar Ass'n, Inc. v. McNeil-PPC, Inc., No. CV 04-10077 12 DSF (Rzx), 2008 WL 4755611, at *1 (C.D. Cal. Jan. 7, 2008) (citing Bourjaily v. 13 United States, 483 U.S. 171, 175 (1987)). Furthermore, assuming any extra-legislative evidence were deemed relevant 14 15 here, the testimony of LCR's lay witnesses should be excluded, either entirely or in 16 part, for other reasons as stated in the following tables and as further explained 1 7 below: 18 19 Mike Almy 20 Jenny Kopfstein 21 Anthony Loverde 22 Joseph C. Rocha 23 Stephen Vossler 24 Alexander Nicholson 25 26 27 28 Craig Engle Persons connected with LCR LCR outside counsel Not properly identified; cumulative
UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

Former military service members Not properly identified; cumulative " " " " Testimony regarding discharge irrelevant in facial challenge

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1 Jamie Ensley 2 C. Martin Meekins 3 4 5 6 Jamie Scott Brady 7 Dennis Drogo 8 Paul Gade 9 1 0 I. 11 12

Pres. of Ga. chapter and outside counsel

Not properly identified; cumulative

Former board member Not properly identified; cumulative

30(b)(6) witnesses3 Irrelevant; some testimony also personal Irrelevant; some testimony also personal Some testimony personal or otherwise irrelevant

Plaintiff Failed to Disclose the Identities of Eight of its Lay Witnesses as Required by the Rules Rule 37(c)(1) of the Federal Rules of Civil Procedure provides, "[i]f a party

13 fails to provide information or identify a witness as required by Rule 26(a) or (e), 14 the party is not allowed to use that information or witness to supply evidence on a 15 motion, at a hearing, or at a trial unless the failure was substantially justified or is 16 harmless." Given the express language of this provision, the Ninth Circuit has 17 found these sanctions to be "self-executing" and "automatic" unless the non18 disclosing party shows that its failure to disclose was "substantially justified or 19 harmless." Yeti by Molly Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th 20 Cir. 2001) (quoting advisory committee note to Fed. R. Civ. P. 37); see Shimozono 21 v. May Dep't Stores Co., No. 00-4261 WJR (AJWx), 2002 WL 34373490, at 22 *17-19 (C.D. Cal. Nov. 20, 2002) (excluding trial witnesses not properly 2 3 disclosed). 24 25 26 27 28
In addition to the bases for exclusion referred to in this table regarding the 30(b)(6) witnesses (and in addition to the overall irrelevance of extra-legislative evidence in a facial challenge), Defendants have other objections to specific questions posed to these three witnesses, as noted in Attachments 7, 8, and 9 hereto.
DEFENDANTS' NOTICE OF MOTION AND MOTION IN LMINE TO EXCLUDE LAY WITNESS TESTIMONY UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

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1

Here, there is no justification for LCR's failure to properly and timely

2 identify eight of its eleven lay witnesses (excluding the 30(b)(6) witnesses). Nor 3 can there be any serious question about prejudice: Defendants were denied the 4 opportunity to depose these non-disclosed witnesses during the discovery period, 5 and thus to prepare adequately for their testimony at trial. Accordingly, for this 6 reason alone, the Court should exclude in their entirety the testimony of all 7 witnesses not properly and timely identified. 8 9 Former military service members Other than Alexander Nicholson, LCR did not provide the names of the

10 military service members it intended to call at trial (Mike Almy, Jenny Kopfstein, 11 Anthony Loverdel, Joseph Christopher Rocha, and Stephen Vossler) until May 17, 12 2010, after Defendants had contacted counsel for LCR about the need to conduct a 13 Rule 16 conference (Attachment 3 hereto). Even then, the addresses and telephone 14 numbers required by Rule 26(a)(1)(A)(i) were not provided until June 7, 2010 15 (Attachment 4 hereto). As this Court has said, "where a party fails to disclose the 16 identity of a witness required by either Rule 26(a) or otherwise requested during 17 discovery without substantial justification, the party may not later rely on evidence 18 from that witness . . . to support its claims or defenses" (Doc. 170 at 7-8). Based on pre-motion consultation with counsel for LCR (Attachment 3), 19 20 LCR may argue that these former service members were "identified" in Plaintiff's 21 initial disclosures, which stated that LCR intended to call "[f]ormer service 22 members who have been discharged from the military under DADT" (Attachment 23 1). Rule 26(a) requires, however, that contemplated witnesses be identified by 24 name; thus, a mere reference to a category of witnesses is not sufficient. LCR may 25 also assert that Defendants can now depose these individuals before trial 26 (Attachment 3). But Defendants should not be pressed into taking six depositions 27 while attempting to prepare for trial, as a remedy to LCR's refusal to comply with 28 its discovery obligations under Rules 26(a) and (e) and Rule 33.
DEFENDANTS' NOTICE OF MOTION AND MOTION IN LMINE TO EXCLUDE LAY WITNESS TESTIMONY UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

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1 2

Persons connected with LCR LCR submitted the declarations of Craig Engle, Jamie Ensley, and C. Martin

3 Meekins during the summary judgment briefing (Docs 144, 146, 163), in an effort 4 to establish standing. Those witnesses, however, were never identified under Rule 5 26(a) or in response to Defendants' interrogatories. Defendants acknowledge this 6 Court's holding that Rule 26(a) did not require disclosure of Mr. Meekins (Doc. 7 170), but respectfully continue to believe that these witnesses should have been so 4 8 disclosed. 9 II. 10 11 All of the Contemplated Lay Witness Testimony Regarding the Merits Is Irrelevant in this Facial Challenge All of LCR's contemplated lay witness testimony on the merits should be

12 excluded in this facial challenge to a federal statute pursuant to Federal Rule of 13 Evidence 402. Such testimony would be irrelevant regardless of the applicable 14 standard of review. This Court already has determined that rational basis review is the correct 15 16 standard for LCR's facial constitutional challenge (Doc. 83 at 14-18). In rational 17 basis review of legislative action, the government need only show that the legis18 lature "rationally could have believed" that the statute in question would promote 19 its objectives. Western & S. Life Ins. Co. v. State Bd. of Equalization, 451 U.S. 20 648, 671-72 (1981) (emphasis in original); see Philips v. Perry, 106 F.3d 1420, 21 1424-29 (9th Cir. 1997) (government has no obligation to produce evidence to 22 sustain DADT). A legislative choice subject to the rational basis test "is not 23 subject to courtroom fact-finding and may be based on rational speculation unsup24 ported by evidence or empirical data." FCC v. Beach Communications, 508 U.S. 25 307, 315 (1993) (emphasis added). Rational basis review "is not a license for 26 27 which LCR will remove Craig Engle from its witness list in exchange for Defendants' stipulation 28 to the authenticity and admissibility of the exhibit to Mr. Engle's declaration (Doc. 144).
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4

The parties have reached an agreement in principle, not yet finalized in writing, under

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1 courts to judge the wisdom, fairness, or logic of legislative choices." Id. at 313. 2 Rather, "those challenging the legislative judgment must convince the court that 3 the legislative facts on which the classification is apparently based could not 4 reasonably be conceived to be true by the governmental decisionmaker." Vance v. 5 Bradley, 440 U.S. 93, 111 (1979). "Courtroom fact-finding" in the context of rational basis review is especially 6 7 inappropriate where Congress has made its own express findings based on an 8 extensive legislative record. Courts "must pay close attention to . . . the fact9 finding of Congress" and must give its decisions "great weight" on questions of 10 fact that underlie constitutional issues. Metro Broadcasting, Inc. v. FCC, 497 U.S. 11 547, 569 (1990), overruled on other grounds, Adarand Constructors, Inc. v. Peña, 12 515 U.S. 200 (1995). The Judiciary owes substantial deference to its co-equal 13 Branch's legislative findings, both "out of respect for [Congress'] authority to 14 exercise the legislative power" and because Congress "is far better equipped than 15 the judiciary to amass and evaluate the vast amounts of data bearing upon 16 legislative questions." Turner Broadcasting Sys., Inc. v. FCC, 520 U.S. 180, 17 195-96 (1997) (internal quotation marks omitted). Whether conflicting evidence 18 may exist in the record is irrelevant: "The Constitution gives to Congress the role 19 of weighing conflicting evidence in the legislative process." Id. at 199. In this case, Plaintiff challenges statutory judgments reached after extensive 20 21 congressional hearings. Congress held "detailed hearings" over several days 22 regarding open homosexuality in the military, conducted a field visit to a naval 23 facility, and heard testimony from persons on all sides of the debate. See S. Rep. 24 No. 103-112, at 263, 268-70 (1993), available at 1993 WL 286446, at **181, 25 **187-89. Based on its "weighing [of this] conflicting evidence," see Turner 26 Broadcasting Sys., Inc., 520 U.S. at 199, Congress made fifteen express findings 27 explaining the legislative judgment embodied in the current statute. 10 U.S.C. 28 § 654(a).
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1

Notwithstanding this extensive legislative record and this Court's holding

2 that LCR's challenge is subject to rational basis review, Plaintiff asks the Court to 3 hear and consider testimony on the merits from six former military service 4 members and three 30(b)(6) designees of the Department of Defense. Receiving 5 any such testimony in the context of this case, however, would constitute inappro6 priate "courtroom fact-finding" and would violate well-established principles 7 requiring deference to congressional fact-finding and congressional judgment. See 8 Beach Communications, 508 U.S. at 315. Moreover, given that this is a facial challenge to a statute, any testimony on 9 10 the merits would be inappropriate even if this Court were to apply a heightened 11 level of scrutiny. As the Ninth Circuit has observed, "a facial challenge to the 12 constitutionality of a statute is a question of law," United States v. Bynum, 327 13 F.3d 986, 990 (9th Cir. 2003); thus, "[i]n determining whether a law is facially 14 invalid, [a court] must be careful not to go beyond the statute's facial 15 requirements." Washington State Grange v. Washington State Republican Party, 16 552 U.S. 442, 449-50 (2008); accord MDK, Inc. v. Village of Grafton, 277 17 F. Supp. 2d 943, 947 (E.D. Wis. 2003) ("A facial challenge alleges that the law 18 cannot constitutionally be applied to anyone, no matter what the facts of the 19 particular case may be.") (citing Forsyth County v. Nationalist Movement, 505 U.S. 20 123, 133 n.10 (1992)); Sanitation & Recycling Indus., Inc. v. City of New York, 928 21 F. Supp. 407, 419 n.8 (S.D.N.Y. 1996) ("[A] facial challenge is made in a `factual 22 vacuum'; any factual determinations are irrelevant"). Indeed, the Supreme Court 23 has specifically rejected reliance on evidence outside the statute and legislative 24 history to support a constitutional challenge under heightened review. See 25 Goldman v. Weinberger, 475 U.S. 503, 509-10 (1986) (rejecting expert testimony 26 in First Amendment challenge to military policy regarding the wearing of 27 yarmulka, and holding that such evidence has no relevance in the context of a 28 constitutional challenge to military policy). The Court's holding in Goldman is
DEFENDANTS' NOTICE OF MOTION AND MOTION IN LMINE TO EXCLUDE LAY WITNESS TESTIMONY UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

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1 especially pertinent here, for, like the plaintiff in that case, LCR challenges a 2 policy regarding the military, to which the courts must accord "great deference." 3 Goldman, id. at 507; see Rostker v. Goldberg, 453 U.S. 57, 64-65 (1981) 4 ("[J]udicial deference to . . . congressional exercise of authority is at its apogee 5 when legislative action under the congressional authority to raise and support 6 armies and make rules and regulations for their governance is challenged."). 7 Furthermore, testimony on the merits from the six former military service 8 members on LCR's witness list would be particularly inappropriate here. Counsel 9 for LCR has indicated that these individuals will be called to testify "about the 10 circumstances surrounding their discharges pursuant to DADT" (Attachment 4 11 hereto). Plaintiff's proposed findings of fact and conclusions of law describe four 12 of these former service members and their discharges in detail, asserting that they 13 are "examples of how DADT does not further its stated purposes" (Attachment 6 14 hereto at 35). But no such "examples" are appropriate in a facial challenge to a 15 statute. Testimony regarding how a statute has been applied is patently irrelevant 16 and inappropriate in a facial challenge. For example, whether the application of 17 DADT in a given instance furthers the statute's purposes is irrelevant to the 18 statute's facial validity. As noted already, the Supreme Court has made clear that 19 courts must not "go beyond the statute's facial requirements" in adjudicating facial 20 challenges. Washington State Grange, 552 U.S. at 449-50. "It is neither [the 21 court's] obligation nor within [the court's] traditional institutional role to resolve 22 questions of constitutionality with respect to each potential situation that might 23 develop." Gonzales v. Carhart, 550 U.S. 124, 168 (2007) (considering a facial 24 substantive due process challenge). LCR's intent to present the testimony of former service members "about the 25 26 circumstances surrounding their discharges" also contradicts its own assertion of 27 associational standing in this case. To establish associational standing, LCR must 28 demonstrate as a threshold matter that "neither the claim asserted nor the relief
DEFENDANTS' NOTICE OF MOTION AND MOTION IN LMINE TO EXCLUDE LAY WITNESS TESTIMONY UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

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1 requested requires the participation of individual members [of the plaintiff organi2 zation] in the lawsuit." Hunt v. Washington State Apple Adver. Comm'n, 432 U.S. 3 333, 343 (1977). Although it is unknown whether any of the former service 4 members except Alexander Nicholson is a member of LCR, if Plaintiff believes 5 that deciding its claims requires presenting "as-applied" testimony, then LCR 6 would appear to lack associational standing under the Hunt test. LCR cannot have 7 it both ways: purporting to pursue a facial challenge under associational standing, 8 while at the same time presenting testimony that would be appropriate only in an 9 as-applied challenge. Accordingly, on this basis alone, the Court should exclude in their entirety 10 11 the testimony of Mike Almy, Jenny Kopfstein, Anthony Loverde, Joseph 12 Christopher Rocha, Stephen Vossler, Jamie Scott Brady, Dennis Drogo, and Paul 13 Gade. The Court should also exclude, for the same reason, any testimony of J. 14 Alexander Nicholson III that goes to the merits rather than solely to LCR's 1 5 standing. 16 III. Presenting Testimony by Six Former Service Members Would 17 18 Constitute "Needless Presentation of Cumulative Evidence" Under Federal Rule of Evidence 403, a court may exclude relevant evidence

19 "if its probative value is substantially outweighed by . . . considerations of . . . 20 needless presentation of cumulative evidence." Cumulative evidence is evidence 21 that "replicates other admitted evidence." United States v. Ives, 609 F.2d 930, 933 22 (9th Cir. 1979). A district court has "broad discretion" to exclude cumulative 23 evidence under this Rule. United States v. Hooton, 662 F.2d 628, 636 (9th Cir. 24 1981). 25 In this facial constitutional challenge, LCR seeks to present six witnesses to 26 testify regarding how the challenged statute has been applied to them. Assuming 27 any "as-applied" testimony were appropriate or relevant at all, there is no conceiv28 able reason why the Court would need to hear the stories of six discharged service
DEFENDANTS' NOTICE OF MOTION AND MOTION IN LMINE TO EXCLUDE LAY WITNESS TESTIMONY UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

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1 members. Especially in the context of this facial challenge, such a parade of 2 service members would be a paradigm of the "needless presentation of cumulative 3 evidence." Accordingly, assuming the Court accepts testimony by any of the former 4 5 service members designated as lay witnesses by LCR (Mike Almy, Jenny 6 Kopfstein, Anthony Loverde, J. Alexander Nicholson III, Joseph Christopher 7 Rocha, or Stephen Vossler), only one such witness should be heard regarding the 5 8 application of DADT. 9 IV. 10 11 The Designated Testimony of the 30(b)(6) Witnesses Is Irrelevant to the Extent it Constitutes the Personal Views of the Witnesses Rule 30(b)(6) of the Federal Rules of Civil Procedure allows a party to seek

12 the deposition of a governmental agency or other organization on matters described 13 "with reasonable particularity" in the notice or subpoena. The organization 14 designates one or more persons to testify on its behalf regarding those matters, 15 setting out "the matters on which each person designated will testify." The persons 16 so designated are to "testify about information known or reasonably available to 17 the organization." "The testimony of a Rule 30(b)(6) designee represents the 18 knowledge of the [entity], not of the individual deponents." Great American Ins. 19 Co. v. Vegas Constr. Co., 251 F.R.D. 534, 538 (D. Nev. 2008) (internal quotation 20 marks omitted); accord Brazos River Auth. v. GE Ionics, Inc., 469 F.3d 416, 433 21 (5th Cir. 2006) ("[A] rule 30(b)(6) designee does not give his personal opinions, 22 but presents the [designating entity's] `position' on the topic."). By the same 23 token, if a deposing party asks questions beyond the scope of a Rule 30(b)(6) 24 notice, the answers to those questions do not bind the entity being deposed and are 25
5

26 understand that five of the individuals on LCR's witness list are expected to provide testimony 27 Alexander Nicholson. To the extent the testimony of any of these witnesses is cumulative, it, 28 too, should be excluded on that basis.
DEFENDANTS' NOTICE OF MOTION AND MOTION IN LMINE TO EXCLUDE LAY WITNESS TESTIMONY

Aside from testimony on the merits regarding the application of DADT, Defendants

going to standing ­ that is, Philip Bradley, Craig Engle, Jamie Ensley, Terry Hamilton, and

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1 treated as the "answers or opinions" of the witness as an individual. See Detoy v. 2 City & County of San Francisco, 196 F.R.D. 362, 365-67 (N.D. Cal. 2000); accord 3 Falchenberg v. New York State Dep't of Educ., 642 F. Supp. 2d 156, 164 4 (S.D.N.Y. 2008) ("Questions and answers exceeding the scope of the 30(b)(6) 5 notice will not bind the corporation, but are merely treated as the answers of the 6 individual deponent."). 7 In the three depositions conducted in this case under Rule 30(b)(6), counsel 8 for LCR asked numerous questions outside the permitted area or areas for which 9 each witness had been designated, including questions regarding topics as to which 10 the Court had expressly denied LCR's motion to compel (Doc. 127). For example, 11 Lt. Col. Brady was asked, "Are you aware of any report or study of the number of 12 women officers discharged under Don't Ask, Don't Tell"? (Attachment 7 hereto at 13 40:1-3), which falls under item 12 in the notice of deposition ("Statistics regarding 14 discharges . . . pursuant to [DADT]"), as to which the Court expressly denied 15 LCR's motion to compel (Doc. 127). Additionally, two of the witnesses, Lt. Col. 16 Brady and Dr. Gade, were expressly asked about their "personal" views on a 17 number of matters. For example, Lt. Col. Brady was asked his "personal opinion" 18 about whether knowing that a fellow service member was gay would affect his 19 working relationship with such person or would cause him personal concerns about 20 privacy (Attachment 7 at 248:22-258:6). Under the Federal Rules of Evidence, evidence is irrelevant if it has no 21 22 "tendency to make the existence of any fact that is of consequence to the determi23 nation of the action more probable or less probable." See Fed. R. Evid. 401. 24 "Evidence which is not relevant is not admissible." See Fed. R. Evid. 402. This 25 action is a facial challenge to the constitutionality of the Don't Ask, Don't Tell 26 policy. Thus, the personal views of Defendants' 30(b)(6) designees are of no 27 "consequence to the determination of [this] action." See Medic Alert Found. U.S., 28 Inc. v. Corel Corp., 43 F. Supp. 2d 933, 936 n.2 (N.D. Ill. 1999) ("Information
DEFENDANTS' NOTICE OF MOTION AND MOTION IN LMINE TO EXCLUDE LAY WITNESS TESTIMONY UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

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1 about this incident is outside the scope of plaintiff's Rule 30(b)(6) witness, and no 2 corroborating evidence is presented. It is therefore inadmissible."). Testimony 3 beyond the scope of the areas into which the Court permitted LCR to inquire under 4 Rule 30(b)(6), and testimony responding to questions about a witness's personal 5 views, constitute the witness's personal testimony rather than the testimony of the 6 Defendants and is, therefore, irrelevant and inadmissible. 7 The deposition testimony that should be excluded on this basis is marked in 8 the transcripts attached hereto: Attachment 7 (Jamie Scott Brady), Attachment 8 6 9 (Dennis Drogo), and Attachment 9 (Paul Gade). 10 V. 11 12 At Least Three Specific Areas Inquired into in the 30(b)(6) Depositions Are Irrelevant LCR's designations of testimony from the 30(b)(6) depositions include

13 (1) testimony regarding research and other developments that occurred after the 14 enactment of DADT, (2) testimony regarding the circumstances in which the U.S. 15 military will allow a person to enlist despite a prior felony conviction, and 16 (3) testimony regarding the experiences of foreign militaries in permitting service 17 by openly homosexual service members. Even if evidence beyond the legislative 18 record were otherwise relevant in this case, testimony on each of these three 19 subjects would be irrelevant, for the reasons set forth below. Thus, this testimony 20 should be excluded for these additional reasons. 21 The 30(b)(6) testimony that should be excluded on these bases is marked in 22 Attachments 7, 8, and 9 hereto. All of the designated testimony of Dennis Drogo 23 and Paul Gade falls into either the second or the third category, respectively. 24 25 26 27 28
Given that the present motion does not cite the testimony in these depositions for their content, Defendants believe that Local Rule 32-1 is inapplicable as to this motion. In any event, in light of LCR's designation of the deposition testimony under Fed. R. Civ. P. 32, the original transcripts are currently being marked pursuant to Local Rule 16-2.7 and will be lodged no later than the first day of trial under Local Rule 32-1, unless the Court first grants this motion in l i m i n e.
DEFENDANTS' NOTICE OF MOTION AND MOTION IN LMINE TO EXCLUDE LAY WITNESS TESTIMONY UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

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1 2 3

A.

Testimony Regarding Research and Developments that Occurred After Enactment of 10 U.S.C. § 654 Is Irrelevant

As noted above, this Court has held that rational basis review applies here

4 (Doc. 83 at 14-18). The precedent in this Circuit is very clear that rational basis 5 review of a statute turns on conditions that existed when the law was enacted ­ that 6 is, "whether the enacting body could have rationally believed at the time of 7 enactment that the law would promote its objective." Equity Lifestyle Props., Inc. 8 v. County of San Luis Obispo, 548 F.3d 1184, 1194 (9th Cir. 2008) (emphasis 9 added, internal quotation marks omitted); see United States v. Jackson, 84 F.3d 10 1154, 1161 (9th Cir. 1996) (rejecting challenge to 100:1 difference between sen11 tences for crack and powder cocaine possession notwithstanding that Sentencing 12 Commission had recently recommended eliminating difference). Under rational 13 basis review, "[t]he relevant governmental interest is determined by objective 14 indicators as taken from the face of the statute, the effect of the statute, comparison 15 to prior law, facts surrounding enactment of the statute, the stated purpose, and the 16 record of proceedings." City of Las Vegas v. Foley, 747 F.2d 1294, 1297 (9th Cir. 17 1984). Thus, classifications subject to rational basis review are not subject to 18 challenge based on changed circumstances, and the issue in this case is whether 19 Congress could have believed, when it enacted 10 U.S.C. § 654 in 1993, that the 20 statute was rationally related to legitimate governmental interests. In light of this aspect of rational basis review, any testimony regarding 21 22 research or developments that occurred after the enactment of Section 654 is 23 irrelevant. For example, Lt. Col. Brady was asked extensively about reports and 24 polls that post-dated the enactment of DADT. Similarly, Dr. Gade was asked 25 about any research regarding the experiences of foreign militaries that post-dated 26 enactment of the statute. 27 28
DEFENDANTS' NOTICE OF MOTION AND MOTION IN LMINE TO EXCLUDE LAY WITNESS TESTIMONY UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

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1 2 3 4 5 6 7

B.

Testimony Regarding Enlistment Waivers for Convicted Felons Is Irrelevant

Section 504(a) of Title 10, U.S. Code provides: No person who . . . has been convicted of a felony, may be enlisted in any armed force. However, the Secretary concerned may authorize exceptions, in meritorious cases, for the enlistment of . . . persons convicted of felonies.

8 One of the topics on which LCR sought 30(b)(6) testimony was "[t]he history . . . 9 development . . . adoption, and implementation . . . of the United States Armed 10 Forces' . . . policy regarding moral waivers of prior felony convictions" (Doc. 127) 11 ­ that is, the circumstances in which the military would allow a person to enlist 12 despite a prior felony conviction pursuant to the second sentence of Section 504(a). 13 Defendants designated Mr. Dennis Drogo to address this topic, and the testimony 14 that LCR has now designated from Mr. Drogo's deposition includes this topic. As noted already, the issue in this case is the constitutionality of Congress' 15 16 decision in 1993 to require the discharge of service members who have engaged in 17 homosexual acts or who demonstrate a propensity or intent to engage in homo18 sexual acts. 10 U.S.C. § 654. Resolution of this issue turns on the governmental 19 interests behind that enactment and the statute's relationship to those interests ­ 20 that is, the government's interests in foreclosing continued service by such 21 members and the extent to which the DADT statute serves those interests. 22 In this constitutional analysis, the circumstances under which the military 23 may permit someone to enlist despite a felony conviction are irrelevant, regardless 24 of the standard of review to be applied here. The government's interests in fore25 closing enlistment by convicted felons, as expressed in Section 504, are entirely 26 different from, and unrelated to, the interests on which Congress relied or could 27 have relied in enacting Section 654. Presumably, Plaintiff's intent is to argue that 28 the government should allow gays and lesbians to remain in the military if it allows
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1 some convicted felons to enlist. But that comparison is a policy argument for 2 Congress rather than a constitutional argument for the courts; as a constitutional 3 matter, each statute must be judged on its own terms, based on the governmental 4 interests behind each enactment. Furthermore, any such argument would go to the 5 statutes themselves, and not to the "development . . . adoption, and implementation 6 . . . of the United States Armed Forces' . . . policy" regarding enlistment waivers 7 under Section 504. Accordingly, all of the designated testimony by Dennis Drogo ­ all of which 8 9 deals with this subject ­ should be excluded, without regard to the standard of 10 review applied in this case. 11 12 13 C. Testimony Regarding the Experiences of Foreign Militaries Is Irrelevant During hearings on the bill that became 10 U.S.C. § 654, Congress heard

14 extensive testimony regarding the experiences of foreign militaries in relation to 15 service by gays and lesbians. An entire hearing was devoted to that subject, at 16 which the Senate Armed Services Committee heard testimony from "Dr. Charles 17 Moskos, Professor of Sociology at Northwestern University; Dr. David Segal, 18 Professor of Sociology at the University of Maryland; Dr. Judith Stiehm, 19 [Professor] of Political Science at Florida International University; and Lt. Gen. 20 Calvin Waller, U.S. Army (retired)." See S. Rep. No. 103-112 (1993), at 269, 21 available at 1993 WL 286446, at **188. Having heard that testimony and 22 considered the applicability of foreign military experiences to that of the United 23 States, Congress reached the policy judgment now embodied in the DADT statute. 24 See id. at 288, available at 1993 WL 286446, at **205-06 ("[W]hile the foreign 25 experience is worth monitoring, it does not provide a relevant basis for permitting 26 gays and lesbians to serve openly in the armed forces of the United States."). Notwithstanding that congressional testimony and judgment, item 6 in 27 28 LCR's notice of deposition under Rule 30(b)(6) sought testimony regarding
DEFENDANTS' NOTICE OF MOTION AND MOTION IN LMINE TO EXCLUDE LAY WITNESS TESTIMONY UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

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1 "[r]eports, studies or analyses conducted by or on behalf of Defendants relating to 2 the experience of the armed forces of nations other than the United States with 3 military service by individuals with a homosexual orientation or by individuals 4 who engage in homosexual conduct" (Doc. 118-2). Defendants designated Dr. 5 Paul Gade to address this topic, and LCR has now designated most of Dr. Gade's 6 deposition for trial under Rule 32. 7 Given that Congress considered the experiences of foreign militaries, 8 however, LCR's contemplated presentation of evidence on that subject appears to 9 be simply an attempt to challenge the wisdom of the policy determination 10 embodied in 10 U.S.C. § 654. Congress having already considered evidence on 11 this subject in 1993 ­ evidence that can now be reviewed in the record of the 12 congressional hearings ­ no evidence presented to this Court on the same subject is 13 relevant to the validity of Congress's policy determination. 14 Accordingly, all of the designated testimony by Paul Gade ­ all of which 15 deals with the experiences of foreign militaries ­ should be excluded, regardless of 16 the standard of review to be applied here. 1 7 VI. 18 19 Certain of the Specific Questions and Answers Designated by the Plaintiff Are Also Inadmissible for Various Reasons In addition to the bases set forth above for excluding all or part of the

20 deposition testimony designated by LCR, certain portions of the testimony should 21 be excluded for other reasons specific to the given question and answer. 22 Specifically, certain questions were vague, argumentative, called for speculation, 23 or lacked an adequate foundation regarding the witness's knowledge. The 24 deposition testimony that should be excluded on any such basis is marked, with an 25 indication of the basis or bases for the exclusion, in Attachments 7, 8, and 9 hereto. 26 27 28
DEFENDANTS' NOTICE OF MOTION AND MOTION IN LMINE TO EXCLUDE LAY WITNESS TESTIMONY UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

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Case 2:04-cv-08425-VAP -E Document 180

Filed 06/18/10 Page 27 of 27

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CONCLUSION For the foregoing reasons, Defendants respectfully request that the Court

3 grant Defendants' motion in limine and exclude the above-described testimony of 4 lay witnesses. 5 Dated: June 18, 2010 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
DEFENDANTS' NOTICE OF MOTION AND MOTION IN LMINE TO EXCLUDE LAY WITNESS TESTIMONY UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

Respectfully submitted, TONY WEST Assistant Attorney General ANDRÉ BIROTTE, Jr. United States Attorney JOSEPH H. HUNT Director VINCENT M. GARVEY Deputy Branch Director /s/ W. Scott Simpson PAUL G. FREEBORNE W. SCOTT SIMPSON JOSHUA E. GARDNER RYAN B. PARKER Trial Attorneys U.S. Department of Justice Civil Division Federal Programs Branch Post Office Box 883 Washington, D.C. 20044 Telephone: [phone] Facsimile: [phone] E-mail: [e-mail] Attorneys for Defendants United States of America and Secretary of Defense

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