Log Cabin Republicans v. United States of America et al

Filing 193

NOTICE OF LODGING Proposed Pretrial Conference Order Plaintiff Log Cabin Republicans, Defendants Donald H Rumsfeld, United States of America. (Attachments: #1 [Proposed] Final Pretrial Conference Order)(Woods, Daniel)

Log Cabin Republicans v. United States of America et al

Doc. 193 Att. 1

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DAN WOODS (State Bar No. 78638) WHITE & CASE LLP 633 West Fifth Street, Suite 1900 Los Angeles, CA 90071-2007 Telephone: [phone] Facsimile: [phone] E-mail: [e-mail] Attorneys for Plaintiff Log Cabin Republicans

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA EASTERN DIVISION LOG CABIN REPUBLICANS, a nonprofit corporation, Plaintiff, v. UNITED STATES OF AMERICA and ROBERT M. GATES (substituted for Donald H. Rumsfeld pursuant to Fed. R. Civ. P. 25(d)), SECRETARY OF DEFENSE, in his official capacity, Defendants. Case No. ED CV 04-8425-VAP (Ex) [PROPOSED] FINAL PRETRIAL CONFERENCE ORDER Date: Time: Crtrm: Judge: June 28, 2010 2:30 p.m. 2 Hon. Virginia A. Phillips

Complaint filed: October 12, 2004 Trial Date: July 13, 2010

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Following the pretrial conference in this matter held on June 28, 2010, pursuant to Fed. R. Civ. P. 16 and L.R. 16, IT IS HEREBY ORDERED: 1. (a) (b) (c) The parties are: The Log Cabin Republicans ("LCR"), a non-profit corporation, plaintiff; The United States of America, defendant; and, Robert M. Gates, Secretary of Defense, in his official capacity, defendant. Each of these parties has been served and has appeared. All other parties named in the pleadings and not identified in the preceding paragraph are now dismissed. The pleadings which raise the issues are: (a) (b) (c) 2. The Original Complaint, filed on October 12, 2004; The First Amended Complaint, filed April 28, 2006; and Answer to the First Amended Complaint, filed July 17, 2009. Federal jurisdiction and venue are invoked upon the following

grounds: federal jurisdiction exists pursuant to 28 U.S.C §§ 1331, 1346, and 2201. Other than standing, jurisdiction is not otherwise in dispute. Plaintiff asserts that the following facts support venue in this district: (1) Plaintiff has chapters in Los Angeles, Orange, and Riverside counties; (2) at least one of Plaintiff's homosexual members who serves in the United States Armed Forces resides within the district; and (3) multiple United States Armed Forces military installations that have applied and separated homosexual Americans from the United States Armed Forces pursuant to 10 U.S.C. § 654 and the Regulations promulgated thereunder ("DADT"), are located in this district. Defendants do not concede the facts set forth by Plaintiff but do not contest venue. 3. Plaintiff estimates that trial will take no more than 10 days, with time to be divided equally among the parties. Defendants do not believe that any trial is -1LOSANGELES 867072 (2K)

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necessary. To the extent the Court believes a trial is warranted, moreover, Defendants believe that a trial should last no more than 4 days, and be bifurcated as to standing, discussed below. 4. The trial is to be a non-jury trial. The Court's Minute Order Setting Trial and Pretrial Dates, dated June 3, 2010, instructed each of the parties to lodge Proposed Findings of Fact and Conclusions of Law no later than June 21, 2010. If the parties have further revisions to their Proposed Findings of Fact and Conclusions of Law, each party shall lodge and serve them by e-mail, fax, or personal delivery, as required by L.R. 52-1, at least seven (7) days prior to trial. 5. 6. 7. Plaintiff: (a) Plaintiff plans to pursue the following claims against Defendants: (1) Due Process (including standard of review, military deference, and post-enactment evidence); (2) First Amendment (including standard of review). Plaintiff also addresses the issue of standing. Plaintiff has standing (b) The elements required to establish that Plaintiff has standing are: (1) An association has standing to sue on behalf of its members The following facts are admitted and require no proof: none. The following facts, though stipulated, shall be admitted without The following claims and defenses, and no others, remain to be

prejudice to any evidentiary objection at trial: none. litigated at trial:

when "(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333, 343, 97 S. Ct. 2434, 53 L. Ed. 2d 383 (1977). -2LOSANGELES 867072 (2K)

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(2)

To show standing, a plaintiff must demonstrate: "(1) he suffered

or will suffer an 'injury in fact' that is concrete, particularized, and actual or imminent; (2) the injury is fairly traceable to defendant's challenged action; and (3) the injury is likely, not merely speculative, and will be redressed by a favorable decision." Biodiversity Legal Found. v. Badgley, 309 F.3d 1166, 1171 (9th Cir. 2002); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992). (c) In brief, the key evidence that establishes that Plaintiff has standing is: (1) Lay Witness testimony: (i) John Alexander Nicholson will testify to his membership in LCR and his enlistment and discharge under DADT from the United States Army; (ii) Philip Bradley will testify regarding John Doe's membership in LCR and his current service in the United States Army; and (iii) Jamie Ensley, Terry Hamilton, and C. Martin Meekins will also provide testimony related to standing. The John Doe Declaration provides additional evidence related to standing. (2) Exhibits that include: Ex. Numbers 36, 109, 110, 110A. Claim 1: DADT violates substantive due process. Standard of Review In its ruling on Defendants' Motion for Summary Judgment, the Court declared that it was "inclined [to] apply the standard of review set forth in Witt v. Dep't of the Air Force, 527 F.3d 806, 819 (9th Cir. 2008)." Mot. for Summ. J. Order p. 26. Plaintiff agrees with the Court's inclination and submits that the Witt Standard applies to its due process challenge. The Court, however, has yet to rule on the applicable standard, in part, because supplemental briefing on the issue will not be complete until June 23, 2010. Accordingly, the two potentially applicable standards are included here. The Witt Intermediate Scrutiny Standard (1) "[W]hen the government attempts to intrude upon the personal -3LOSANGELES 867072 (2K)

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and private lives of homosexuals, in a manner that implicates the rights identified in Lawrence, the government must advance an important government interest, the intrusion must significantly further that interest, and the intrusion must be necessary to further that interest." Witt, 527 F.3d at 819. (2) (1) If this test is not met, then DADT is unconstitutional. Rational basis requires a showing that Congress "rationally Active Rational Basis Standard could have believed" that the conditions of the statute would promote its objective. W. & S. Life Ins. Co. v. State Bd. of Equalization, 451 U.S. 648, 671-72, 101 S. Ct. 2070, 68 L. Ed. 2d 514 (1981) (emphasis in original). (2) (3) If the rational basis test is satisfied, then the Court must There must be an actual, and not hypothetical, reason to further determine whether the challenged statute meets additional requirements. DADT's purpose. City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 44850, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985). (4) DADT must be grounded in "sufficient factual context" for the Court to ascertain some relationship between the legislation and its asserted purposes. Romer v. Evans, 514 U.S. 620, 632-33, 134 L. Ed. 2d 855, 116 S. Ct. 1620 (1996). (5) DADT cannot give private biases effect, directly or indirectly. Palmore v. Sidoti, 466 U.S. 429, 433, 104 S. Ct. 1879, 80 L. Ed. 2d 421 (1984). Judicial Deference to Military Affairs (1) "[T]he duty rests on the courts, in time of war as well as in time of peace, to preserve unimpaired the constitutional safeguards of civil liberty." Hamdan v. Rumsfeld, 548 U.S. 557, 588, 126 S. Ct. 2749, 165 L. Ed. 2d 723 (2006). (2) Military-related legislation is subject to a heightened "active" rational basis review. Pruitt v. Cheney, 963 F.2d 1160, 1165-66 (9th Cir. 1991). -4LOSANGELES 867072 (2K)

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Post-Enactment Evidence Is Relevant (1) Constitutional review of Congressional legislation is not limited to examination of evidence available at the time of enactment. The Court may scrutinize post-enactment evidence and evidence of changed circumstances. (2) "Those who drew and ratified the Due Process Clauses ... knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom." Lawrence v. Texas, 539 U.S. 558, 578-79, 156 L. Ed. 2d 508, 123 S. Ct. 2472 (2003). (3) Evidence developed at trial is relevant to determine whether the statute has produced the results that its advocates predicted would occur. Western & Southern Life Ins., 451 U.S. at 652, 673-74. (4) The post-enactment evidence includes empirical studies and statistical data presented by authorities in this field. Id. at 673-74. Due Process Elements (1) Plaintiff's members who serve and served in the United States Armed Forces have constitutional liberties and a right to privacy under the Due Process Clause of the United States Constitution. (2) Homosexual servicemembers' constitutional liberties and right to privacy under the Due Process Clause of the Fifth Amendment encompass and protect intimate, consensual physical acts and relationships with persons of the same gender. Lawrence, 539 U.S. at 578-79. (3) DADT violates homosexual current and former servicemembers' constitutional liberties and right to privacy under the Due Process Clause of the Fifth Amendment by authorizing the government to investigate their private, consensual intimate relationships. (4) DADT further violates homosexual current and former -5LOSANGELES 867072 (2K)

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servicemembers' constitutional liberties and right to privacy under the Due Process Clause of the Fifth Amendment by authorizing the government to discharge homosexuals from the Armed Forces if it is determined that they have engaged in, attempted to engage in, or demonstrated a propensity or intent to engage in private, consensual physical acts with persons of the same gender. (6) As a result of Defendants' implementation and enforcement of DADT, Plaintiff's members have suffered injury and will suffer further irreparable harm to their constitutional rights under the Fifth Amendment if DADT is not declared unconstitutional and defendants are not enjoined from enforcing DADT. (7) (8) (9) Plaintiff's members have no adequate remedy at law. Plaintiff seeks a declaration that DADT is unconstitutional; Plaintiff seeks a preliminary and permanent injunction enjoining Requested Relief

Defendants from enforcing DADT; (10) Plaintiff seeks attorneys' fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412; (11) Plaintiff seeks costs of suit; and (12) Plaintiff seeks any other relief the Court deems just and proper. (c) In brief, the key evidence Plaintiff relies on in support of its due (1) Expert testimony: (i) Nathaniel Frank Ph.D will testify, among process claim is: other things, about the history and implementation of DADT; (ii) Robert MacCoun Ph.D (by deposition) will describe, among other things, unit cohesion and how DADT impacts it; (iii) Melissa Sheridan Embser-Herbert Ph.D and J.D. will testify, among other things, about DADT's disproportionate impact on women servicemembers and Congress's failure to consider such future impact when enacting DADT; (iv) Elizabeth Hillman J.D.Ph.D and former servicemember will testify, among other things, about how DADT's rationales are not based on -6LOSANGELES 867072 (2K)

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evidence and do not apply to women in the military; (v) Former Assistant Secretary of Defense Lawrence Korb will testify, among other things, on the lack of supporting evidence to achieve DADT's purported objective; (vi) Alan Okros Ph.D will testify, among other things, about Canada's policy on homosexual servicemembers and its experience under that policy; and (vii) Aaron Belkin Ph.D will testify, among other things, about the experiences of other countries that permit openly homosexual servicemembers; (2) Lay witness testimony: (i) Joseph Rocha, Jenny Kopfstein, Major Michael Almy, SSgt. Anthony Loverde, J. Alexander Nicholson III, and Stephen J. Vossler will testify regarding discharges of homosexual servicemembers that did not further any government interest; (ii) Col. Jamie Scott Brady (by deposition) will testify regarding a number of issues related to DADT; (iii) Dennis Drogo (by deposition) will testify regarding waivers and admission of felons to the U.S. Armed Forces; and (iv) Paul Gade (by deposition) will testify about the experiences of other countries that permit openly homosexual servicemembers; (3) herewith. Claim 2: DADT violates the First Amendment. Standard of Review (1) By its express terms, DADT impermissibly restricts, punishes, and chills all public and private speech identifying a servicemember as homosexual. Simon & Schuster, Inc., 502 U.S. 105, 118, 123, 112 S. Ct. 501, 116 L. Ed. 2d 476 (1991). DADT provides that "sexual orientation is considered a personal and private matter," and at the same time permits the U.S. Armed Forces to discharge servicemembers for homosexual "conduct." The "conduct," however, includes the statement: "I am a homosexual." This is, undeniably, a restriction on speech; (2) DADT is overbroad in violation of the First Amendment because it punishes and restricts speech that does no more than acknowledge a -7LOSANGELES 867072 (2K)

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permissible status. Virginia v. Hicks, 539 U.S. 113, 118-19, 123 S. Ct. 2191, 156 L. Ed. 2d 148 (2003); Broadrick v. Oklahoma, 413 U.S. 601, 614, 93 S. Ct. 2908, 37 L. Ed. 2d 830 (1973); (3) Restricting a statement of a homosexual identity in civilian life has no rational connection to a compelling governmental interest. Hynes v. Mayor and Counsel of the Borough of Oradell, 425 U.S. 610, 620, 96 S. Ct. 1755, 48 L. Ed. 2d 243 (1976); (4) 2d 40 (1963); (5) DADT impermissibly prohibits homosexuals from participating meaningfully and freely in discussion of governmental affairs and improperly inhibits their ability to debate on public issues. McDonald v. Smith, 472 U.S. 479, 482, 105 S. Ct. 2787, 86 L. Ed. 2d 384 (1985); (6) DADT impermissibly prohibits homosexual servicemembers from contributing to "effective public advocacy . . . enhanced by group association." NAACP v. Alabama, 357 U.S. 449, 460, 78 S. Ct. 1163, 2 L. Ed. 2d 1488 (1958); (7) DADT fails to be viewpoint neutral: "regulations restricting speech on military installations may not discriminate against speech based upon its viewpoint...a regulation is viewpoint based if it suppresses the expression of one side of a particular debate." Nieto v. Flatau, No. 7:08-CV-185-H, --- F. Supp. 2d ---, 2010 WL 2216199, *12 (E.D.N.C. Mar. 31, 2010) (citations omitted). First Amendment Elements (1) Plaintiff's homosexual members who serve, and served, in the United States Armed Forces, including Mr. Nicholson and John Doe, have the constitutional right to free speech and expression and right to petition under the First Amendment of the United States Constitution. -8LOSANGELES 867072 (2K)

DADT is unconstitutionally vague because the speech it

prohibits is unclear. NAACP v. Button, 371 U.S. 415, 432, 83 S. Ct. 3285, 9 L. Ed.

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(2)

DADT violates Plaintiff's members' rights to free speech and

expression and right to petition under the First Amendment by impermissibly restricting, punishing, and chilling all public and private speech that would tend to identify Plaintiff's members and other members of the United States Armed Forces as homosexuals. DADT impermissibly burdens such speech on the basis of the content and viewpoint of such speech. (3) As a result of Defendants' implementation and enforcement of DADT, Plaintiff's members have suffered injury and will suffer further irreparable harm to their constitutional rights under the First Amendment if DADT is not declared unconstitutional and defendants are not enjoined from enforcing DADT. (4) (5) (6) (7) (8) (9) Plaintiff's members have no adequate remedy at law. Plaintiff seeks a declaration that DADT is unconstitutional; Plaintiff seeks a preliminary and permanent injunction enjoining Plaintiff seeks attorneys' fees pursuant to the Equal Access to Plaintiff seeks costs of suit; and Plaintiff seeks any other relief the Court deems just and proper.. Requested Relief

Defendants from enforcing DADT; Justice Act, 28 U.S.C. § 2412;

In brief, the key evidence Plaintiff relies on for its First Amendment (1) Expert testimony: (i) Nathaniel Frank Ph.D will testify, among

other things, about the history and implementation of DADT; (ii) Robert MacCoun Ph.D (by deposition) will describe, among other things, unit cohesion and how DADT impacts it; (iii) Melissa Sheridan Embser-Herbert Ph.D and J.D. will testify, among other things, about DADT's disproportionate impact on women servicemembers and Congress's failure to consider such future impact when enacting DADT; (iv) Elizabeth Hillman J.D.Ph.D and former servicemember will -9LOSANGELES 867072 (2K)

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testify, among other things, about how DADT's rationales are not based on evidence and do not apply to women in the military; (v) Former Assistant Secretary of Defense Lawrence Korb will testify, among other things, on the lack of supporting evidence to achieve DADT's purported objective; (vi) Alan Okros Ph.D will testify, among other things, about Canada's policy on homosexual servicemembers and its experience under that policy; and (vii) Aaron Belkin Ph.D will testify, among other things, about the experiences of other countries that permit openly homosexual servicemembers; (2) Lay witness testimony: (i) Joseph Rocha, Jenny Kopfstein, Major Michael Almy, SSgt. Anthony Loverde, J. Alexander Nicholson III, and Stephen J. Vossler will testify regarding discharges of homosexual servicemembers that did not further any government interest; (ii) Col. Jamie Scott Brady (by deposition) will testify regarding a number of issues related to DADT; (iii) Dennis Drogo (by deposition) will testify regarding waivers and admission of felons to the U.S. Armed Forces; and (iv) Paul Gade (by deposition) will testify about the experiences of other countries that permit openly homosexual servicemembers; (3) herewith. Defendant(s): (a) Defendants do not assert any counterclaims or affirmative defenses under Fed. R. Civ. P. 8(c). Defendants do not, however, believe that Plaintiff can carry its threshold burden of establishing standing and fundamentally disagree with Plaintiff's legal theory and characterization of what is at issue in this challenge. (b), (c) Defendants do not assert any counterclaims or affirmative defenses. Third Party Plaintiffs and Defendants: None. 8. In view of the admitted facts and the elements required to establish the claims, the following issues remain to be tried: see above for Plaintiff's contentions of what remains to be tried. Defendants do not believe a trial is appropriate for all - 10 LOSANGELES 867072 (2K)

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of the reasons set forth in briefing and argument in this case. 9. Plaintiff contends that all discovery is complete. Defendants contend, however, that in the event the Court does not strike the declaration of Mr. Meekins, the Court has not yet ruled upon Defendants' request to depose Mr. Meekins. 10. All disclosures under Fed. R. Civ. P. 26(a)(3) have been made. The parties were unable to reach an agreement as to the exhibits, so each has filed an exhibit list. The parties will continue to work to create a joint exhibit list as required by L.R. 16-6.1. Unless all parties agree that an exhibit shall be withdrawn, all exhibits will be admitted without objection at trial, except those exhibits listed below: Plaintiff does not object to any of Defendants' Exhibits. Defendants object to Exhibit Nos. 2, 6, 9-13, 15-18, 20-23, 25-27, 29-36, 38, 40-41, 43-45, 50-56, 58-67, 69-81, 83, 85-87, 89-90, 95-97, 101, 103-108, 110A, 111-129, 131-157, 159-175, 177-178, 180-195, 197-199, 201- 203, 206, 208-213, 216-238, 240-287, 289-290, 292-336. In addition to the objections to these exhibits, Plaintiff has identified additional exhibits after the submission of defendants' motion in limine. Defendants object to Plaintiff's Exhibit Nos. 337, 338, and 339 on the grounds of relevance and foundation. Defendants also object to Plaintiff's Exhibit No. 340 on the basis of foundation, authentication, and best evidence. The objections and grounds therefor are: Defendants' objections are contained in the chart in docket no. 179-1. 11. Witness lists of the parties have been filed with the Court. Defendants stipulate to the authenticity and admissibility of Exhibit A to the Declaration of Craig Engle (Doc. 144), which is a copy of the Bylaws of LCR, Inc. In exchange for this stipulation, Plaintiff has agreed not to call Mr. Engle as a witness at trial. Only the witnesses identified on the respective lists will be permitted to testify (other than solely for impeachment). It is Defendants' position that while - 11 LOSANGELES 867072 (2K)

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they do not at present anticipate calling witnesses on the question of standing, Defendants reserve the right to call witnesses identified on Plaintiff's witness list regarding that question. Each party intending to present evidence by way of deposition testimony has marked such depositions in accordance with L.R. 16-2.7. For this purpose, the following depositions shall be lodged with the Clerk as required by L.R. 32-1: (a) Col. Jamie Scott Brady, c/o U.S. Department of Justice, Civil Division Federal Programs Branch, P.O. Box 883, Washington D.C. 20044, [phone]; (b) Dennis Drago, c/o U.S. Department of Justice, Civil Division Federal Programs Branch, P.O. Box 883, Washington D.C. 20044, [phone]; (c) Paul Gade, c/o U.S. Department of Justice, Civil Division Federal Programs Branch, P.O. Box 883, Washington D.C. 20044, [phone]; (d) Robert J. MacCoun, University of California, Berkeley, 2607 Hearst Avenue, Berkeley, CA 94720-7320, [phone]. Defendants object to the presentation of testimony by deposition of the following witnesses: Col. Jamie Scott Brady, Dennis Drago, Paul Gade, and Robert J. MacCoun. 12. (a) The following law and motion matters and motions in limine, and no The Court denied Defendants' motion for summary judgment regarding standing, finding triable issues. The Court has yet to rule on the motion as it relates to Plaintiff's substantive due process or First Amendment claims and has requested supplemental briefing on the "application of the Witt standard of review to the DADT Policy." - 12 LOSANGELES 867072 (2K)

others, are pending or contemplated prior to trial:

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(b) (c) (d) 13.

Defendants filed a Motion in Limine to exclude Plaintiff's lay witnesses. Defendants filed a Motion in Limine to exclude Plaintiff's expert witnesses. Defendants filed a Motion in Limine to exclude Plaintiff's exhibits. Plaintiff does not believe bifurcation is necessary. As set forth in

Defendants' Pretrial Memorandum of Contentions of Fact and Law, to the extent a trial is held in this case, Defendants request that the trial be bifurcated and require Plaintiff be required to first carry its burden of establishing associational standing before the merits are reached. 14. The foregoing admissions having been made by the parties, and the parties having specified the foregoing issues remaining to be litigated, this Final Pretrial Conference Order shall supersede the pleadings and govern the course of the trial of this cause, unless modified to prevent manifest injustice. Dated: June ___, 2010 VIRGINIA A. PHILLIPS UNITED STATES DISTRICT JUDGE

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