Michigan State A. Philip Randolph Institute et al v. Johnson

Filing 138

OPINION AND ORDER OVERRULING IN PART AND SUSTAINING IN PART DEFENDANT'S EVIDENTIARY OBJECTIONS [130, 131, 132]. Signed by District Judge Gershwin A. Drain. (TBan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MICHIGAN STATE A. PHILIP RANDOLPH
INSTITUTE, MARY LANSDOWN, ERIN
COMARTIN, DION WILLIAMS and
COMMON CAUSE,

Case No. 16-cv-11844
UNITED STATES DISTRICT COURT JUDGE
GERSHWIN A. DRAIN

Plaintiffs,
v.

UNITED STATES MAGISTRATE JUDGE
MONA K. MAJZOUB

RUTH JOHNSON, in her official capacity
as Michigan Secretary of State,
Defendant.
/
OPINION AND ORDER OVERRULING IN PART AND SUSTAINING IN PART
DEFENDANT’S EVIDENTIARY OBJECTIONS [130, 131, 132]
I.

Introduction
On January 30, 2018, in anticipation of trial, the Court scheduled a hearing

date for any evidentiary objections. See Dkt. No. 128. Then, on February 12,
2018, the Defendant—Ruth Johnson in her official capacity as Michigan Secretary
of State (the “Secretary”)—filed three evidentiary motions regarding Plaintiffs’
proposed trial exhibits. See Dkt. Nos. 130–132. The Plaintiffs did not object to
any of the Secretary’s evidence.
The Defendant filed Motions to Strike Plaintiffs’ expert witnesses Professor
Daphne Ntiri and Dr. Theodore Allen, or alternatively, objections to these experts’

reports. See Dkt. Nos. 130–31. The Defendant also filed a motion objecting to
other of Plaintiffs’ trial exhibits, including news articles and deposition testimony
from current or former Michigan State legislators.

See Dkt. No. 132.

The

Plaintiffs responded to these motions on February 16, 2018, and the Defendant has
not submitted a reply. See Dkt. Nos. 135–37.
Presently before the Court are the Defendant’s Motions to Strike, or
objections to the expert reports of, Plaintiffs’ expert witnesses Professor Ntiri and
Dr. Allen [130, 131], and the Defendant’s evidentiary objections [132]. The Court
will decide these motions without a hearing pursuant to Eastern District of
Michigan Local Rule 7.1(f)(2). For the reasons detailed below, the Court holds
that all of the contested evidence is admissible, except for a December 2017
Detroit Free Press article. The Court will SUSTAIN the Defendant’s objection on
this December 2017 article. As for the other evidence, however, the Court will
DENY the Secretary’s Motions to Strike two of Plaintiffs’ expert witnesses and
will OVERRULE the Secretary’s evidentiary objections.
II.

Discussion
The Secretary raises three categories of objections to the Plaintiffs’ offered

evidence. First, she moves to strike, and objects to testimony by, Plaintiffs’ expert
witnesses Professor Ntiri and Dr. Allen. Dkt. Nos. 130, 131. Second, she opposes
the admission of several news articles. See Dkt. No. 132. Third, and finally, she
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objects to deposition testimony (and related exhibits) from certain current or
former Michigan State legislators. See id.
The Court will address each category of objection in turn.
A.

Expert Witnesses

The Defendant opposes the introduction of testimony, expert reports, or both
from Plaintiffs’ expert witnesses Professor Ntiri and Dr. Allen. See Dkt. Nos. 130,
131. Relying on Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), the
Secretary first contends that Ntiri lacks knowledge of voting procedures and
regulations, and therefore, is not qualified to offer expert testimony. Dkt. No. 130,
pp. 2–3 (Pg. ID 2857–58). Second, she maintains that Dr. Allen’s analysis is
inadmissible under Federal Rule of Evidence 702 because his findings are not
“based on sufficient facts or data” and are not “the product of reliable principles
and methods.” See Dkt. No. 131, pp. 17–18 (Pg. ID 2965–66). The Court is
unpersuaded.
As the Plaintiffs correctly observe, Daubert is intended to shield juries from
unreliable and misleading expert testimony. It does not have the same force in
bench trials. Indeed, “[t]he ‘gatekeeper’ doctrine was designed to protect juries
and is largely irrelevant in the context of a bench trial.” Deal v. Hamilton Cty. Bd.
of Ed., 392 F.3d 840, 852 (6th Cir. 2004). “[T]he very reason for suspending the
Rules of Evidence in [suppression] hearings in the first place,” the Sixth Circuit
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emphasized, “is to allow the impartial judge, who is less prone to persuasion by
misleading expert testimony than a jury, to weigh the competing evidence offered
by the parties.” United States v. Stepp, 680 F.3d 651, 669 (6th Cir. 2012) (citing
Deal, 392 F.3d at 852). Even more recently, a district court in the Sixth Circuit
determined that “[i]n the context of a bench trial, however, Daubert and its
progeny are largely irrelevant[.]” Ne. Ohio Coal. for the Homeless v. Husted, Case
No. 2:06-cv-896, 2016 WL 1047130, at *1 (S.D. Ohio Mar. 16, 2016) (citing Deal,
392 F.3d at 852). As a result, that court concluded it would “exercise its discretion
to consider what amount of weight to give whatever expert opinion.” Id. (citing
Deal, 392 F.3d at 852).
The proper course of action for this Court, therefore, is to admit the evidence
and then afford it whatever weight the Court deems appropriate. Accordingly, the
Court will deny the Secretary’s Motions to Strike Professor Ntiri and Dr. Allen as
witnesses, and will overrule the Secretary’s objections to these experts’ reports.
B.

News Articles

The Secretary argues that several news articles offered by the Plaintiffs are
inadmissible. The Court disagrees, except for one disputed article that is indeed
inadmissible.

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1.

Objection Based on Foundation

First, the Secretary contests the admission of Plaintiffs’ Exhibit 25, 1 a July
2017 report from 24/7 Wall St. outlining the most segregated metropolitan areas in
America. Dkt. No. 137-8. The report identifies Detroit, Warren and Dearborn,
Michigan as the most segregated metropolitan area in the United States. Id. at pp.
21–22 (Pg. ID 3345–46). The analysis lacks foundation under Rule 901 of the
Federal Rules of Evidence, according to the Defendant, because the article does
not explain the source of the data presented. Dkt. No. 132, p. 7 (Pg. ID 3174).
This argument is unavailing.
Rule 901 provides that “[t]o satisfy the requirement of authenticating or
identifying an item of evidence, the proponent must produce evidence sufficient to
support a finding that the item is what the proponent claims it is.” The report
meets this standard, as it details its method for pinpointing segregated areas. Dkt.
No. 137-8, pp. 20–21 (Pg. ID 3345–46). For example, the report notes that its
findings reflect “census tracts with at least 500 residents in the 100 largest
metropolitan areas,” and its “[p]opulation data are based on five-year estimates
through 2015 from the U.S. Census Bureau’s American Community Survey.” Id.
at p. 21 (Pg. ID 3346). The report also accounted for segregation by income, again
based on Census Bureau data. See id.
1

The exhibit numbers used in this Opinion and Order follow those in the Joint
Final Pretrial Order.
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Because the report adequately explains its methodology, it satisfies Rule
901. The Court will accordingly overrule the Defendant’s objection to this report.
2.

Objections Based on Hearsay and Relevance

Second, the Secretary unsuccessfully challenges the admission of other
articles on hearsay and relevance grounds. Specifically, the Court will overrule the
Defendant’s objections to the following articles:
(1) Plaintiffs’ Exhibit 7, a December 2012 Detroit Free Press article
regarding statements by Ronald Weiser, then Finance Chairman of the
Republican National Committee, and now Chairman of the Michigan
Republican Party; 2
(2) Plaintiffs’ Exhibit 8, a 2004 Associated Press article regarding
remarks by then Republican, Michigan State Representative John
Pappageorge;3
(3) Plaintiffs’ Exhibit 26, a 2016 New York Times article about
Betsey DeVos (then a private citizen, but now United States Secretary
of Education), and her alleged influence on Michigan State
regulations affecting Detroit public schools;4 and
(4) Plaintiffs’ Exhibit 27, a Detroit Free Press article covering Betsy
DeVos’s campaign contributions prior to her appointment as
Education Secretary. 5

2

See Dkt. No. 1-17.
See Dkt. No. 1-18.
4
Kate Zernike, How Trump’s Education Nominee Bent Detroit to Her Will on
Charter
Schools,
N.Y.
TIMES,
Dec.
12,
2016,
https://www.nytimes.com/2016/12/12/us/politics/betsy-devos-how-trumpseducation-nominee-bent-detroit-to-her-will-on-charter-schools.html.
5
Stephen Henderson, Editorial, Devos Family Showers GOP with Contributions
FREE
PRESS,
Sept.
3,
2016,
After
DPS
Vote,
DETROIT
https://www.freep.com/story/opinion/columnists/stephenhenderson/2016/09/03/charter-devos-money-michigan/89774760/.
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3

Hearsay statements are those that “(1) the declarant does not make while
testifying at the current trial or hearing; and (2) a party offers in evidence to prove
the truth of the matter asserted in the statement.” FED. R. EVID. 801(c).
Additionally, at trial, irrelevant evidence is inadmissible. FED. R. EVID. 402.
“Evidence is relevant if: (a) it has any tendency to make a fact more or less
probable than it would be without the evidence; and (b) the fact is of consequence
in determining the action.” United States v. Collins, 799 F.3d 554, 577–78 (6th
Cir. 2015) (quoting FED. R. EVID. 403). There is “an ‘extremely liberal’ standard
for relevancy.” Id. (quoting United States v. Whittington, 455 F.3d 736, 738 (6th
Cir. 2006)).
Plaintiffs’ Exhibits 7 and 8 are not hearsay; Plaintiffs do not offer these
exhibits for their truth. Instead, the articles relate to whether there have been racial
appeals in Michigan political campaigns, consistent with the Gingles factors
analyzed under Section 2 of the Voting Rights Act (“VRA”). See Thornburg v.
Gingles, 478 U.S. 30 (1986). For this reason, Plaintiffs’ Exhibits 7 and 8 are not
hearsay and are relevant.
As for Plaintiffs’ Exhibits 26 and 27, the Defendant argues these exhibits are
inadmissible because 42 U.S.C. § 1983 requires unlawful conduct by a state actor,
and the individuals involved in the articles are not state actors, the named

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Defendant, or members of the state legislature. See Dkt. No. 132, pp. 7–8 (Pg. ID
3174–75). The Secretary is mistaken.
This evidence is relevant to a Gingles consideration under Section 2 of the
VRA, namely whether state legislators have been responsive to the particularized
needs of their minority constituents. Accordingly, Plaintiffs’ Exhibits 26 and 27
are admissible.
The Defendant is correct, however, about the inadmissibility of a December
2017 Detroit Free Press article. 6 The article describes allegedly “odious ideas” of
the Republican Party. Id. Plaintiffs offer the article as evidence of racial appeals
in political campaigns, a Gingles consideration under Section 2 of the VRA. Dkt.
No. 137, p. 8 (Pg. ID 3207).
But, this article is not relevant. It contains generalizations regarding the
Republican Party without connecting these conclusions to specific events, and
reflects only one person’s opinion. The article, then, does not make it more or less
likely that racial appeals have occurred in political campaigns. Consequently, the
Court will sustain the Defendant’s objection to this article.

6

See Stephen Henderson, Editorial, Beyond Roy Moore? GOP’s Association with
Odious Ideas Doesn’t Stop with Alabama Senate, DETROIT FREE PRESS, Dec. 14,
2017,
https://www.freep.com/story/opinion/columnists/stephenhenderson/2017/12/14/roy-moore-gop-support/951058001/. The article was not
listed as an exhibit in the Joint Final Pretrial Order. Yet the Plaintiffs confirmed
that they intend to offer this evidence. See Dkt. No. 137, p. 8 (Pg. ID 3207).
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C.

Legislators’ Deposition Testimony and Accompanying Exhibits

Lastly, the Defendant asks the Court to exclude deposition testimony, and
accompanying exhibits, from the following current or former Michigan State
legislators: (1) Senator Marty Knollenberg, the sponsor of Senate Bill 13; (2)
Senator David Robertson, former Chair of the Committee on Elections and
Government Reform; (3) Senate Majority Leader Arlan Meekhof; and (4) Lisa
Posthumus Lyons, former Chair of the House Committee on Elections. See Dkt.
No. 132.

The Secretary makes two arguments about why this evidence is

inadmissible. None are persuasive.
First, she argues that testimony from individual legislators is not relevant
because a single legislator’s testimony cannot show the entire legislature’s
motivation. Id. at p. 10 (Pg. ID 3177). Next she contends that this testimony does
not demonstrate legislative intent as Plaintiffs offer evidence in the form of text
messages and emails, and not an official record (e.g. legislative or administrative
history). Id. at pp. 10–11 (Pg. ID 3177–78).
Yet these arguments address the weight of the evidence, not whether the
evidence is admissible. The Defendant cites in support, for example, N.C. State
Conference of NAACP v. McCrory, 831 F.3d 204, 229 (4th Circuit 2016), cert.
denied, ––– U.S. ––––, 137 S. Ct. 1399, 198 L. Ed. 2d 220 (2017) (mem.). There,
although the Fourth Circuit found “that statements from only a few legislators, or
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those made by legislators after the fact, are of limited value,” it did not conclude
that these statements were irrelevant. Id. Likewise, the Sixth Circuit implicitly
acknowledged as relevant “[a] racially tinged statement by one legislator” made
during a committee meeting. Ne. Ohio Coal. for the Homeless v. Husted, 837 F.3d
612, 637 (6th Cir. 2016).
Based on the above analysis, the Court will admit the disputed deposition
testimony and related exhibits of current or former Michigan State legislators.
III.

Conclusion
The Defendant has filed three evidentiary motions in opposition to evidence

offered by the Plaintiffs. The Secretary moved to strike Plaintiffs’ expert witnesses
Professor Ntiri and Dr. Allen, or to exclude these experts’ reports from the
evidence presented at trial [130, 131]. The Secretary also filed a motion objecting
to other evidence, including news articles and deposition testimony from current or
former Michigan State legislators. The Court will DENY the Defendant’s Motions
to Strike Plaintiffs’ expert witnesses [130, 131]. The Court will also OVERRULE
the Secretary’s evidentiary objections, except for the objection to the December
2017 Detroit Free Press article [130, 131, 132]. The Court will SUSTAIN the
Defendant’s objection to that article.
IT IS SO ORDERED.

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Dated: March 7, 2018

/s/Gershwin A. Drain
GERSHWIN A. DRAIN
United States District Judge

CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
March 7, 2018, by electronic and/or ordinary mail.
/s/ Tanya Bankston
Deputy Clerk

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