Witt v. Department of the Air Force et al

Filing 146

MEMORANDUM Regarding Admissibility of Trial Exhibits 63, 64, and 80 by Plaintiff Margaret Witt. (Dunne, Sarah)

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Pl.'s Memo. Re Admissibility of Trial Exs. 63, 64, and 80 (Case no. C06-5195) ­ Page 1 CLU OF WASHINGTON FOUNDATION 901 Fifth Avenue, Suite 630 Seattle, Washington 98164 [phone]

Honorable Ronald B. Leighton

UNITED STATES DISTRICT COURT WESTERN WASHINGTON AT TACOMA DIVISION

MAJOR MARGARET WITT, Plaintiff, v. UNITED STATES DEPARTMENT OF THE AIR FORCE; et al., Defendants.

Case No. C06-5195-RBL PLAINTIFF'S MEMORANDUM REGARDING ADMISSIBILITY OF TRIAL EXHIBITS 63, 64, AND 80.

Plaintiff understands that Defendants object to the admission of trial exhibits 63, 64, and 80 on two grounds, relevance under Rule 402 and hearsay under Rule 802 of the Federal Rules of Evidence. The three proposed trial exhibits contain admissions by Defendant Secretary Robert Gates concerning the Don't Ask Don't Tell policy which is at issue in this case. Because these trial exhibits are relevant and not hearsay, the Court should admit them at trial. A. The Three Proposed Trial Exhibits Contain Relevant Evidence: Admissions By Defendant Secretary Gates Concerning the Don't Ask Don't Tell Policy and the Feasibility of Allowing Open Service By Gay and Lesbian U.S. Servicemembers. Relevant evidence "means evidence having the tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than

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t would be without the evidence." FED.R.EVID. 401. Pursuant to Rule 402, all relevant evidence is admissible. Trial Exhibit 63 is a transcript of the hearing held on February 2, 2010 before the Armed Services Committee for the U.S. Senate. The witnesses included Defendant Secretary Gates and the subject of the hearing included the Don't Ask, Don't Tell policy (DADT). (Dunne Decl. Ex. A at 5.) At the hearing, Secretary Gates testified concerning DADT and stated, among other things, that he "fully support[s] the president's decision" to repeal DADT, that the question before the Department of Defense (DoD) is not "whether the military prepares to make this change but how we must," that DoD will create a working group to design an implementation plan as to how to repeal DADT; and that the implementation plan is also being created so that DoD is "prepared to begin to implement any change in the law." (Id. at 49-50, 55.) Secretary Gates also testified directly about this case and acknowledged to Congress that DoD will ensure that new rules and procedures are created given the Ninth Circuit decision. (Id. at 52.) This transcript contains significant party admissions, or direct evidence, that contradict arguments made by Defendants (Dkt 118 at 3, 11-12; Dkt 141 at 11-12; and Dkt 142 at 4;) that there is no less restrictive alternative to discharging Major Witt due to her sexual orientation and that Defendants cannot logistically implement the Ninth Circuit's ruling in this case. Defendants have also asserted that discovery into the views of unit members is irrelevant (Dkt 131 at 13-14). But Defendant Secretary Gates testified in front of the U.S. Senate committee that "we can't possibly evaluate the impact on unit cohesion, on morale, on retention, on recruitment and so on unless we encourage people to tell us exactly what they think and exactly what their views are, honestly, and as forthrightly as possible." (Dunne Decl. Ex. A at 56.) This is highly relevant evidence contradicting Defendants' assertions. Most critically, Secretary Gates further conceded that the military has made assertions justifying the DADT policy "that have been made for which we have no basis in fact." (Id. at 60.) Trial Exhibit 64 is a transcript of the hearing held on February 3, 2010 before the Armed Services Committee for the U.S. House of Representatives. The witnesses included Defendant Secretary Gates and the hearing included testimony concerning the Don't Ask, Don't Tell policy (DADT). (Dunne Decl. Ex. B at 66.) At the hearing, Secretary Gates voluntarily interjected and A
Pl.'s Memo. Re Admissibility of Trial Exs. 63, 64, and 80 (Case no. C06-5195) ­ Page 2 CLU OF WASHINGTON FOUNDATION 901 Fifth Avenue, Suite 630 Seattle, Washington 98164 [phone]

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tated in reference to the DADT policy and changing institutions that "stupid was trying to impose a policy from the top without any regard for the view of the people who were going to be affected." (Id. at 87.) Secretary Gates also reiterated how important it was to survey servicemembers and their families when assessing the "impact on unit cohesion, on morale, [and] on retention." (Id.) Trial Exhibit 80 is a transcript of a press conference held by the DoD on March 25, 2010 with Secretary Gates and Admiral Mike Mullen which addressed DADT. During the press conference, Secretary Gates explained the changes to the DoD regulations concerning DADT that he recently approved. (Dunne Decl. Ex. C at 132.) His statements confirm that the U.S. military can make changes to personnel regulations relating to DADT within 45 days. When asked whether the current study being undertaken by the DoD concerned whether to implement a repeal of DADT or how to "actually implement" a repeal of DADT, Secretary Gates answered: "The study is about how you would implement it." (Id. at 135.) Put simply, these are admissions by the head of the DoD that the institution can successfully make changes to its personnel regulations and that there are less restrictive alternatives than discharge for allowing a gay or lesbian servicemember to serve openly within the U.S. military. Because the three proposed Trial Exhibits (63, 64 and 80) all contain relevant evidence pertaining to issues at the heart of this case, the Court should admit them as evidence. B. A Statement Made By a Party is Not Hearsay. Rule 801(d)(2) states in relevant part that "A statement is not hearsay if. . .[t]he statement is offered against a party and is (A) the party's own statement, in either an individual or a representative capacity." United States v. Matlock, 415 U.S. 164, 172 (1974) (holding that the out-of-court statements by a party "would surmount all objections based on the hearsay rule" and "would be admissible for whatever inferences the trial judge could reasonably draw"); see also Matylinsky v. Budge, 577 F.3d 1083, 1094 (9th Cir. 2009) (finding that statements made by a defendant party offered against the defendant are excluded from the definition of hearsay under Rule 801(d)(2)(A)). Secretary Gates is a defendant party in this lawsuit. (Dkt. 60 at 1-2.) Put simply, Secretary Gates' testimony in front of Congress during the two committee hearings and his A
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tatements made at a DoD press conference constitute admissions by a party-opponent and accordingly, are not hearsay pursuant to Rule 801(d)(2). Matylinsky, 577 F.3d at 1094. CONCLUSION For the reasons set forth above, Plaintiff respectfully requests that the Court deny Defendants' request to exclude proposed Trial Exhibits 63, 64, and 80.

DATED this 3rd day of September, 2010.

Respectfully submitted,

ACLU OF WASHINGTON FOUNDATION By: /s/ Sarah A. Dunne___________ Sarah A. Dunne, WSBA#34869 Sher Kung, WSBA#42077 ACLU of Washington Foundation 901 Fifth Avenue, Suite 630 Seattle, WA 98164 [e-mail] [e-mail] Jim Lobsenz, WSBA #8787 Carney Badley Spellman 700 Fifth Avenue, Suite 5800 Seattle, WA 98104 [phone] [e-mail] Attorneys for Plaintiff

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Pl.'s Memo. Re Admissibility of Trial Exs. 63, 64, and 80 (Case no. C06-5195) ­ Page 4

CLU OF WASHINGTON FOUNDATION 901 Fifth Avenue, Suite 630 Seattle, Washington 98164 [phone]

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Pl.'s Memo. Re Admissibility of Trial Exs. 63, 64, and 80 (Case no. C06-5195) ­ Page 5 CLU OF WASHINGTON FOUNDATION 901 Fifth Avenue, Suite 630 Seattle, Washington 98164 [phone]

CERTIFICATE OF SERVICE I hereby certify that on September 3, 2010, I electronically filed this Plaintiff's Memorandum Regarding Admissibility of Trial Exhibits 63, 64, 65 and 80 with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following: Peter Phipps [e-mail] Marion J. Mittet [e-mail] Bryan R. Diederich [e-mail] Stephen J. Buckingham [e-mail]

Attorneys for Defendants DATED this 3rd day of September, 2010.

AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON FOUNDATION By: /s/ Sarah A. Dunne Sarah A. Dunne, WSBA #34869 901 Fifth Avenue #630 Seattle, WA 98164 Tel. [phone] [e-mail]