ProtectMarriage.com - Yes on 8, a Project of California Renewal et al v. Bowen et al

Filing 74

OBJECTIONS by Defendants Timothy Hodson, Eugene Huguenin, Jr, Robert Leidigh, Ray Remy, Debra Bowen, Edmund G. Brown, Jr, Ross Johnson. to plaintiffs' evidence (Morazzini, Zackery)

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EDMUND G. BROWN JR., SBN: 37100 Attorney General of California CHRISTOPHER E. KRUEGER, SBN: 173288 Senior Assistant Attorney General DOUGLAS J. WOODS, SBN: 161531 Supervising Deputy Attorney General SETH E. GOLDSTEIN, SBN: 238228 ZACKERY P. MORAZZINI, SBN: 204237 Deputy Attorneys General 1300 I Street, Suite 125 P.O. Box 944255 Sacramento, CA 94244-2550 Telephone: [phone] Fax: [phone] E-mail: [e-mail] Attorneys for Defendants Debra Bowen, California Secretary of State; Edmund G. Brown Jr., California Attorney General SCOTT HALLABRIN, General Counsel, SBN: 076662 LAWRENCE T. WOODLOCK, SBN: 137676 Fair Political Practices Commission 428 J Street, Suite 800 Sacramento, CA 95814 Telephone: [phone] Fax: [phone] E-mail: [e-mail] Attorneys for Defendants Members of the Fair Political Practices Commission IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

PROTECTMARRIAGE.COM, et al.,

2:09-cv-00058-MCE-DAD

v.

Plaintiff, STATE DEFENDANTS' OBJECTIONS TO PLAINTIFFS' EVIDENCE Date: January 29, 2009 Time: 11:00 a.m. Courtroom: 7, 14th Floor Judge Morrison C. England, Jr. Trial Date: None Set Action Filed: January 7, 2009

DEBRA BOWEN, SECRETARY OF STATE FOR THE STATE OF CALIFORNIA, et al., Defendants.

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OBJECTIONS TO EVIDENCE (2:09-cv-00058-MCE-DAD)

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To supplement their anonymous declarations that primarily allege harm based on protected First Amendment activity, Plaintiff submit dozens of newspaper articles and television news video clips to support their argument that the disclosure of contributors will lead to threats and harassment. All of these exhibits are inadmissible hearsay or double hearsay. Moreover, the articles and video clips are needlessly cumulative, with numerous exhibits discussing the same general allegations. `"Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Fed. R. Evid. 801(c). Hearsay is inadmissible unless it satisfies an exception to the hearsay rule, Fed R. Evid. 802, which these exhibits do not. And, each layer of hearsay included within hearsay must satisfy an exception to the hearsay rule. Fed. R. Evid. 805; see also Larez v. City of Los Angeles, 946 F.2d 630, 642 (9th Cir.1991) (statement by declarant reiterated in newspaper article constitutes double hearsay.) Notably, in a case very similar to this one, the plaintiffs attempted to use newspaper articles as evidence of harassment to get an exemption from disclosure requirements pursuant to Buckley v. Valeo, 424 U.S. 1, 74 (1976), but the state's hearsay objection was sustained. Oregon Socialist Workers 1974 Campaign Committee v. Paulus, 432 F. Supp. 1255, 1262 (D.Or. 1977). The Ninth Circuit Court of Appeals has itself found newspaper articles to be inadmissible hearsay and not the best evidence. Larez, 946 F.2d at 642. Although safety and security concerns are undeniably present in any legitimate claim for an exemption from disclosure requirements, it is worth noting that Plaintiffs' attempt to obtain relief primarily based on media reports appears to be unique. Typically, plaintiffs have shown harassment based on affidavits or declarations, official government reports, or an examination of laws governing unpopular minor parties. See, e.g., Brown v. Socialist Workers '74 Campaign 2
OBJECTIONS TO EVIDENCE (2:09-cv-00058-MCE-DAD)

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Committee (Ohio) 459 U.S. 87, 100 n. 17 (examining Special Master's report), Federal Election Com'n v. Hall-Tyner Election Campaign Committee, 678 F.2d 416, 419, 422 (2d Cir. 1982) (relying on state and federal laws, Senate reports, and affidavits of party members), Wisconsin Socialist Workers 1976 Campaign Committee v. McCann, 433 F.Supp. 540, 547-48 (E.D.Wis. 1977) (relying on affidavits of experts and party members), Doe v. Martin, 404 F.Supp. 753, 75556 (D.C. 1975) (relying on affidavits and Minnesota Ethics Commission report). Also, although Plaintiffs state that some witnesses are unwilling to come forward because of safety concerns (Troupis Decl., 8:15-16), it is difficult to see what additional dangers witnesses would have were they called on to give testimony, as the media reports which use real names and current campaign disclosure lists are already in the public sphere as Plaintiffs contend. The inadmissible hearsay exhibits are also needlessly cumulative. Although Plaintiffs have compiled multiple media reports, they mostly relate to the same few events. For example, twenty-eight of the fifty-eight exhibits discuss the same set of events concerning mostly the same businesses alleging boycotting or blacklisting. 1 And, Exhibits C, D, E, O, Q, R and three video clips all discuss purported threats to the mayor and a religious leader in Fresno, while Exhibits F, G, and O all relate to an alleged incident involving a group trying to conduct a prayer service in San Francisco's Castro District. /// /// /// /// ///

See Troupe Decl., Exs. A, B, N, O, P, AD, AE, AG, AH, AI, AK, AL, AM, AN, AO, AP, AQ, AR, AS, AT, AU, AV, BA, BB, BC, BD, BE, BF. 3
OBJECTIONS TO EVIDENCE (2:09-cv-00058-MCE-DAD)

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Because Plaintiffs' newspaper articles and television news clips are all inadmissible hearsay or double hearsay, they are inadmissible and cannot be used to prove the threats and harassment that Plaintiff have alleged.

Dated: January 22, 2009

Respectfully submitted, EDMUND G. BROWN JR. Attorney General of California CHRISTOPHER E. KRUEGER, Senior Assistant Attorney General DOUGLAS J. WOODS Supervising Deputy Attorney General SETH E. GOLDSTEIN Deputy Attorney General

/s/ Zackery P. Morazzini ZACKERY P. MORAZZINI Deputy Attorney General Attorneys for Defendants Debra Bowen, California Secretary of State; Edmund G. Brown Jr., California Attorney General Fair Political Practices Commission SCOTT HALLABRIN, General Counsel LAWRENCE T. WOODLOCK

/s/ Lawrence T. Woodlock LAWRENCE T. WOODLOCK Attorneys for Defendants Members of the Fair Political Practices Commission

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OBJECTIONS TO EVIDENCE (2:09-cv-00058-MCE-DAD)