Witt v. Department of the Air Force et al

Filing 144

MEMORANDUM in Support of Exclusion of Certain Exhibits by Defendants Department of the Air Force, Donald H Rumsfeld, Mary L Walker, Michael W Wynne. (Diederich, Bryan)

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Judge Ronald B. Leighton

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA MAJOR MARGARET WITT Plaintiff, v. UNITED STATES DEPARTMENT OF THE AIR FORCE, et al. Defendants. ) ) ) ) ) ) ) ) ) ) ) )

No. C06-5195 RBL DEFENDANTS' MEMORANDUM IN SUPPORT OF EXCLUSION OF CERTAIN EXHIBITS AND TESTIMONY

The Court should exclude from evidence three exhibits1 concerning potential changes to the statute and implementing regulations popularly known as the "Don't Ask, Don't Tell" (DADT) policy. These documents are inadmissible as irrelevant hearsay. See Fed. R. Evid. 402. Defendants request for similar reasons that the Court rule that Secretary of Defense Robert Gates need not appear personally in this Court to testify at trial about the same facts. Plaintiffs have proposed that the Court admit into evidence three documents concerning statements made by Secretary Gates and others regarding the DADT policy. Two (Ex. 63 & 64) are transcripts of Congressional hearings at which Secretary Gates discussed the current study considering potential mechanisms for implementing a repeal of the DADT statute. See Ex. 63 at

Plaintiff originally asked for the admission of proposed Exhibits 63, 64, 65 and 80. Proposed exhibits 65 and 80 appear to be the same document. Defendants understand that plaintiff now seeks the admission of proposed exhibit 80, but not 65.
(C06-5195) DEFS.' MEM. IN SUPPORT OF EXCLUSION OF CERTAIN EXS. AND TESTIMONY- 1
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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WITT-003461; Ex. 64 at WITT-003497. One (Ex. 80) is a transcript of a press conference at which Secretary Gates discussed recent changes to the regulations implementing DADT. The Court should excluded as irrelevant plaintiff's proposed evidence regarding subsequent actual or potential changes to the DADT policy because they do not show that any fact of consequence is more or less likely. Campbell v. Wood, 18 F.3d 662, 685 (9th Cir. 1994). First, evidence that the Department of Defense is considering how to implement a change should the law be repealed does not make any fact of consequence in this case more or less likely. Defendants understand that plaintiff believes that the fact that the Department of Defense has begun a study about how a repeal of DADT could be implemented is evidence that her discharge was not necessary because an alternative policy is possible. But the study remains pending, and Congress has made no ultimate determination regarding repeal.2 Second, the fact that the Department of Defense has changed the DADT implementing regulations is not relevant to any matter at issue in this case. Plaintiff apparently believes that the recent changes to the implementing regulations demonstrate that the application of the policy to her beforehand was not necessary. That the Department of Defense has changed the way that the policy is implemented in 2010 does not prove that the policy as implemented in the past was not necessary to advance the undisputedly important interests of military cohesion, morale, order and discipline. If one accepted plaintiff's view, any policy would be unconstitutional if the government could conceivably choose to later amend or repeal that policy.3 Congress may (or it may not) choose to change or repeal the DADT policy at some point in the future. The fact that such a change is possible does not mean that the policy as applied in the past was not a constitutionally permissible choice. The Court should not permit plaintiff to bring in irrelevant As the President has stated previously, the Administration does not support the DADT statute as a matter of policy and supports its repeal. This cannot be the law. In Goldman v. Weinberg, 475 U.S. 503 (1986), for example, the Supreme Court upheld the military's ban on the wearing of yarmulkes by military members in light of the military's important interests in order, discipline and uniformity. 475 U.S. at 508-09. Congress later decided to change the rule to allow such apparel. See 10 U.S.C. § 774. The fact that Congress ultimately decided to pursue different policy choices does not mean that the application of the original policy was unconstitutional. The Supreme Court had already held that it was constitutional. So too here.
(C06-5195) DEFS.' MEM. IN SUPPORT OF EXCLUSION OF CERTAIN EXS. AND TESTIMONY- 2
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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evidence to support this incorrect application of constitutional principles.4 To the extent that the documents are deemed relevant and admissible, defendants suggest that an appropriate approach is to admit the documents instead of requiring the Secretary of Defense to testify at trial. CONCLUSION For the forgoing reasons, defendants respectfully request that the Court exclude Exhibits 63, 64, and 80 from evidence. Dated: September 3, 2010 Respectfully submitted, TONY WEST Assistant Attorney General VINCENT M. GARVEY Deputy Branch Director /s/ Bryan R. Diederich PETER J. PHIPPS BRYAN R. DIEDERICH STEPHEN J. BUCKINGHAM United States Department of Justice Civil Division, Federal Programs Branch Tel: [phone] Fax: [phone] E-mail: [e-mail] Mailing Address: Post Office Box 883, Ben Franklin Station Washington, D.C. 20044 Courier Address: 20 Massachusetts Ave., N.W. Washington, D.C. 20001 Attorneys for Defendants

Of Counsel: LT. COL. TODI CARNES 1777 N. Kent Street, Suite 11400 Rosslyn, VA 22209-2133 [phone]

The proposed exhibits are inadmissible under Federal Rule of Evidence 802. Secretary Gates's statements reported in the documents may be admissible hearsay as admissions of a party opponent, but the documents themselves are hearsay. See Fed. R. Evid. 805; see also, e.g., Larez v. City of Los Angeles, 946 F.2d 630, 642 (9th Cir. 1991) (press report of defendant's statements constitute hearsay); Kallstrom v. City of Columbus, 165 F. Supp. 2d 686, 693 (S.D. Ohio 2001) (news transcript is "classic hearsay"); United States v. North, 713 F. Supp. 1450 (D.D.C. 1989) (Congressional hearing transcripts are hearsay). Nevertheless, while the documents are technically hearsay, defendants agree that they appear to be accurate records of what the Secretary actually said.
(C06-5195) DEFS.' MEM. IN SUPPORT OF EXCLUSION OF CERTAIN EXS. AND TESTIMONY- 3
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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UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON AT TACOMA CERTIFICATE OF SERVICE I hereby certify that on September 3, 2010, I electronically filed the foregoing Defendants' Memorandum in Support of Exclusion of Certain Exhibits and Testimony, with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following persons:

James E. Lobsenz, Esq. Carney Badley Spellman, P.S. 701 Fifth Avenue, Suite 3600 Seattle, WA 98104 Tel: [phone] Fax: [phone] E-mail: [e-mail]

Sarah A. Dunne, Esq. American Civil Liberties Union of Washington 901 Fifth Avenue, Suite 630 Seattle, WA 98164 Tel: [phone] E-mail: [e-mail] Sher S. Kung, Esq. American Civil Liberties Union of Washington 901 Fifth Avenue, Suite 630 Seattle, WA 98164 Tel: [phone] E-mail: [e-mail]

/s/ Bryan R. Diederich BRYAN R. DIEDERICH United States Department of Justice Civil Division, Federal Programs Branch P.O. Box 883, Ben Franklin Station Washington, DC 20044 Tel: [phone] Fax: [phone] E-mail: [e-mail] Attorney for Defendants