Wednesday, October 21, 2009
Here is yesterday's filing. I'm going to be posting some of the documents I've filed in the past couple of weeks, which are about how my case s affected by the court of appeals finding that voter ID is unconstitutional.
I've asked for an injunction for November's election, asked that court certify the state constitutional questions,and sought to amend the complaint to add a section 23 claim.
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION Robbin Stewart, ) Plaintiff, ) ) vs. ) 1:08-cv-586-LJM-TAB ) ) MARION COUNTY, et al. )
STATEMENT IN RESPONSE TO COUNTY’S MOTION TO JOIN MOTION TO STAY
The County has filed a motion to join the State‟s pending motion to stay. While the county‟s motion to join may be granted, or denied as moot, the motion to stay should be denied, for the reasons addressed in yesterday‟s filing. The County‟s motion adds nothing to that discussion, and cites no case, rule, or policy argument in favor of a stay at this time.
The County‟s motion does contain cases, rules, and policy arguments, but they are not directed to whether a stay should issue. Instead, they would have been relevant in a memo in opposition to granting an injunction. Perhaps this is the County‟s statement concerning the injunction; it isn‟t clear. I briefly discuss below the County‟s arguments, but it is important to remember that they are irrelevant to whether a stay should issue, and instead are only relevant to the merits of the pending motion for injunction.
The County makes two arguments. The first is based on a misconstruction of the word “reliance” in the Indiana rules. The second is based on a false statement of the Eire doctrine. The County says, “under the Erie Doctrine, this Court is only bound by opinions from Indiana‟s
2
highest court.” That this is a false statement of law is supported by the cases the County cites.
LWV is not yet final, and the lack of finality is relevant, but not dispositive, to the court‟s assessment of some likelihood of success on the merits, or a finding that the complaint raises serious questions going to the merits. Rule 65 directs the actions of the parties in a case when that case is not yet final. It does not say anything about an injunction in a separate case in a different court, and in no way constrains the ability and jurisdiction of this court to enjoin the use of voter ID in the election that is now less than a month away.
In, Kutsugeras v. AVCO Corp., 973 F.2d 1341, 1346 (7th Cir. 1992), a federal court relied on a state appellate court decision, following the Eire doctrine.
Farrell, then, is no anomaly in Wisconsin law. It applies well-settled principles in a new context. AVCO's claim that it need not be followed because it is not a decision from Wisconsin's Supreme Court is meritless. In this diversity action, we are constrained to determine the issues presented herein as we believe the Wisconsin courts would under the circumstances. In Affiliated FM Insurance Co. v. Trane Co., 831 F.2d 153, 155 (7th Cir.1987), we stated, "Under the principles of Erie v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), a federal court must apply the state law as declared by the highest state court or otherwise by the intermediate appellate court of the state." See also Phelps v. Sherwood Medical Industries, 836 F.2d 296, 306 (7th Cir.1987). We see no evidence to suggest that the Supreme Court of Wisconsin disapproves of Farrell 's logic.
The County is making the same argument that the 7th Circuit found meritless.
The County states, “It is only bound by opinions of Indiana‟s intermediate appellate court when „there is no good reason to believe that the state‟s highest court would reject those decisions.‟ Phelps v. Sherwood Medical Industries, 836 F.2d 296, 306 (7th Cir. 1987).” But this is not the rule, and is not what Phelps states or holds. Inserting the word “only” makes a claim that Phelps does not support. Instead, the burden is on Defendants to show that the state supreme court will reject the decisions. The LVW decision is in harmony with a long line of Indiana case protecting the right to vote, as cited in the LWV appellate brief. It is also consistent with Collins
3
v Day, which limits the use of Article I section 23, but does not remove it from the Indiana Constitution. Because the classes at issue in LWV involved fundamental voting rights, and the voter ID program unduly burdened those rights unequally the court found that the usual presumption in favor of legislative enactments was overcome. LWV is the best available evidence of what the Indiana Supreme Court will do on appeal if transfer is granted. Because LWV is not final, it would be inappropriate, for example, to seek a declaratory judgment based on LWV. However, it is completely appropriate in seeking a temporary injunction. Injunction does not require certainty or finality – it is a temporary measure to limit harm while the case proceeds. Here there is no evidence that the Indiana Supreme Court disapproves of LWV. We can speculate. It is an interesting case. But there is as yet no evidence.
What Phelps actual held was, “[w]hile the Indiana Supreme Court has not specifically passed on all the issues discussed in this opinion, there is no good reason to believe that the state's highest court would reject those decisions by the intermediate court, and consequently this Court may treat the Indiana Court of Appeals' decisions cited in this opinion as authoritatively stating the law of Indiana.”
Here, this court may treat the Indiana Court of Appeals‟ decision as authoritatively stating the law in Indiana, at least tentatively for the purposes of issuing a temporary injunction to preserve the status quo against Defendants plans to conduct an illegal election and again violate Plaintiff‟s fundamental voting rights. Frankly, I am surprised that Elizabeth White has allowed her name to be associated with this filing, which misstates the law in an effort to deceive the court, on a topic not even related to what the motion is supposed to be about. Whether or not the Court allows the County to join the motion to stay, the stay should be denied, and the court should rule on the pending motions on their merits. Time is of the essence. The election approaches. It will not
4
burden the County if the TRO and injunction is granted – they need only refrain from doing something illegal under Indiana law. However, the longer it takes the court to reach a decision, the more that imposes a burden on the County, of coordinating the election officials. A last minute decision would be somewhat disruptive. The Court can accommodate that concern by issuing the TRO now, so that election staff will be alerted to the issue and be able to make late changes depending on how the court rules on the injunction.
Respectfully submitted,
/s/ Robbin Stewart.
_______________ P.O.Box 29164 Cumberland IN 46229-0164 317.375.0931 gtbear@gmail.com I hereby certify that on or by October 20, 2009, a copy of the foregoing was sent via electronic filing, to the following.
David A. Arthur INDIANA OFFICE OF THE ATTORNEY GENERAL David.Arthur@atg.in.gov Eric James Beaver INDIANA OFFICE OF THE ATTORNEY GENERAL eric.beaver@atg.in.gov Jonathan Lamont Mayes CITY OF INDIANAPOLIS, OFFICE OF CORPORATION COUNSEL jmayes@indygov.org Richard G. McDermott CITY OF INDIANAPOLIS, OFFICE OF CORPORATION COUNSEL
/s/ Robbin Stewart
I've asked for an injunction for November's election, asked that court certify the state constitutional questions,and sought to amend the complaint to add a section 23 claim.
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION Robbin Stewart, ) Plaintiff, ) ) vs. ) 1:08-cv-586-LJM-TAB ) ) MARION COUNTY, et al. )
STATEMENT IN RESPONSE TO COUNTY’S MOTION TO JOIN MOTION TO STAY
The County has filed a motion to join the State‟s pending motion to stay. While the county‟s motion to join may be granted, or denied as moot, the motion to stay should be denied, for the reasons addressed in yesterday‟s filing. The County‟s motion adds nothing to that discussion, and cites no case, rule, or policy argument in favor of a stay at this time.
The County‟s motion does contain cases, rules, and policy arguments, but they are not directed to whether a stay should issue. Instead, they would have been relevant in a memo in opposition to granting an injunction. Perhaps this is the County‟s statement concerning the injunction; it isn‟t clear. I briefly discuss below the County‟s arguments, but it is important to remember that they are irrelevant to whether a stay should issue, and instead are only relevant to the merits of the pending motion for injunction.
The County makes two arguments. The first is based on a misconstruction of the word “reliance” in the Indiana rules. The second is based on a false statement of the Eire doctrine. The County says, “under the Erie Doctrine, this Court is only bound by opinions from Indiana‟s
2
highest court.” That this is a false statement of law is supported by the cases the County cites.
LWV is not yet final, and the lack of finality is relevant, but not dispositive, to the court‟s assessment of some likelihood of success on the merits, or a finding that the complaint raises serious questions going to the merits. Rule 65 directs the actions of the parties in a case when that case is not yet final. It does not say anything about an injunction in a separate case in a different court, and in no way constrains the ability and jurisdiction of this court to enjoin the use of voter ID in the election that is now less than a month away.
In, Kutsugeras v. AVCO Corp., 973 F.2d 1341, 1346 (7th Cir. 1992), a federal court relied on a state appellate court decision, following the Eire doctrine.
Farrell, then, is no anomaly in Wisconsin law. It applies well-settled principles in a new context. AVCO's claim that it need not be followed because it is not a decision from Wisconsin's Supreme Court is meritless. In this diversity action, we are constrained to determine the issues presented herein as we believe the Wisconsin courts would under the circumstances. In Affiliated FM Insurance Co. v. Trane Co., 831 F.2d 153, 155 (7th Cir.1987), we stated, "Under the principles of Erie v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), a federal court must apply the state law as declared by the highest state court or otherwise by the intermediate appellate court of the state." See also Phelps v. Sherwood Medical Industries, 836 F.2d 296, 306 (7th Cir.1987). We see no evidence to suggest that the Supreme Court of Wisconsin disapproves of Farrell 's logic.
The County is making the same argument that the 7th Circuit found meritless.
The County states, “It is only bound by opinions of Indiana‟s intermediate appellate court when „there is no good reason to believe that the state‟s highest court would reject those decisions.‟ Phelps v. Sherwood Medical Industries, 836 F.2d 296, 306 (7th Cir. 1987).” But this is not the rule, and is not what Phelps states or holds. Inserting the word “only” makes a claim that Phelps does not support. Instead, the burden is on Defendants to show that the state supreme court will reject the decisions. The LVW decision is in harmony with a long line of Indiana case protecting the right to vote, as cited in the LWV appellate brief. It is also consistent with Collins
3
v Day, which limits the use of Article I section 23, but does not remove it from the Indiana Constitution. Because the classes at issue in LWV involved fundamental voting rights, and the voter ID program unduly burdened those rights unequally the court found that the usual presumption in favor of legislative enactments was overcome. LWV is the best available evidence of what the Indiana Supreme Court will do on appeal if transfer is granted. Because LWV is not final, it would be inappropriate, for example, to seek a declaratory judgment based on LWV. However, it is completely appropriate in seeking a temporary injunction. Injunction does not require certainty or finality – it is a temporary measure to limit harm while the case proceeds. Here there is no evidence that the Indiana Supreme Court disapproves of LWV. We can speculate. It is an interesting case. But there is as yet no evidence.
What Phelps actual held was, “[w]hile the Indiana Supreme Court has not specifically passed on all the issues discussed in this opinion, there is no good reason to believe that the state's highest court would reject those decisions by the intermediate court, and consequently this Court may treat the Indiana Court of Appeals' decisions cited in this opinion as authoritatively stating the law of Indiana.”
Here, this court may treat the Indiana Court of Appeals‟ decision as authoritatively stating the law in Indiana, at least tentatively for the purposes of issuing a temporary injunction to preserve the status quo against Defendants plans to conduct an illegal election and again violate Plaintiff‟s fundamental voting rights. Frankly, I am surprised that Elizabeth White has allowed her name to be associated with this filing, which misstates the law in an effort to deceive the court, on a topic not even related to what the motion is supposed to be about. Whether or not the Court allows the County to join the motion to stay, the stay should be denied, and the court should rule on the pending motions on their merits. Time is of the essence. The election approaches. It will not
4
burden the County if the TRO and injunction is granted – they need only refrain from doing something illegal under Indiana law. However, the longer it takes the court to reach a decision, the more that imposes a burden on the County, of coordinating the election officials. A last minute decision would be somewhat disruptive. The Court can accommodate that concern by issuing the TRO now, so that election staff will be alerted to the issue and be able to make late changes depending on how the court rules on the injunction.
Respectfully submitted,
/s/ Robbin Stewart.
_______________ P.O.Box 29164 Cumberland IN 46229-0164 317.375.0931 gtbear@gmail.com I hereby certify that on or by October 20, 2009, a copy of the foregoing was sent via electronic filing, to the following.
David A. Arthur INDIANA OFFICE OF THE ATTORNEY GENERAL David.Arthur@atg.in.gov Eric James Beaver INDIANA OFFICE OF THE ATTORNEY GENERAL eric.beaver@atg.in.gov Jonathan Lamont Mayes CITY OF INDIANAPOLIS, OFFICE OF CORPORATION COUNSEL jmayes@indygov.org Richard G. McDermott CITY OF INDIANAPOLIS, OFFICE OF CORPORATION COUNSEL
/s/ Robbin Stewart
