GAUTAM DUTTA, ESQ. (State Bar No. 199326) Fremont, · PDF file · 2011-08-20exhibit...

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NOTICE OF NINTH CIRCUIT ORDER

GRANTING APPELLANT JULIUS GALACKI’S

REQUEST FOR JUDICIAL NOTICE

GAUTAM DUTTA, ESQ. (State Bar No. 199326) 39270 Paseo Padre Parkway # 206 Fremont, CA 94538 Telephone: 415.236.2048 Email: [email protected] Fax: 213.405.2416 Attorney for Plaintiffs MICHAEL CHAMNESS, DANIEL FREDERICK, and RICH WILSON

IN THE UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

MICHAEL CHAMNESS, DANIEL FREDERICK, and RICH WILSON

Plaintiffs,

vs.

DEBRA BOWEN, in only her official capacity as California Secretary of State; DEAN LOGAN, in only his official capacity as Registrar-Recorder / County Clerk of the County of Los Angeles; and DOES 1-10;

Defendants,

ABEL MALDONADO, an individual; CALIFORNIA INDEPENDENT VOTER PROJECT; and CALIFORNIANS TO DEFEND THE OPEN PRIMARY;

Intervenors-Defendants

CASE NO. 2:11-CV-01479 ODW (FFMx)

NOTICE OF NINTH CIRCUIT ORDER GRANTING APPELLANT JULIUS GALACKI’S REQUEST FOR JUDICIAL NOTICE

HEARING DATE: Aug. 22, 2011

(Plaintiffs’ Motion for Summary Judgment)

HEARING TIME: 2:30 pm JUDGE: Hon. Otis D. Wright,

II__________ COURTROOM: 11_

TO THE COURT AND ALL PARTIES OF RECORD:

Please take notice that yesterday afternoon, the Ninth Circuit issued an order

(attached as Exhibit 1) that granted (1) Appellant Julius Galacki’s Aug. 5, 2011

Case 2:11-cv-01479-ODW -FFM Document 143 Filed 08/19/11 of 2 Page ID #:1787

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- 2 - NOTICE OF NINTH CIRCUIT ORDER

GRANTING APPELLANT JULIUS GALACKI’S

REQUEST FOR JUDICIAL NOTICE

Request for Judicial Notice (attached as Exhibit 2), and (2) Appellant Julius

Galacki’s Aug. 18, 2011 Request for Judicial Notice (attached as Exhibit 3). In so

doing, the Ninth Circuit took judicial notice of the following documents:

1. Linda Hall’s Request to File an Amicus Letter, which was filed with

the California Court of Appeal (First District) on April 7, 2011 (Exhibit 71 to Appellant Julius Galacki’s Aug. 5, 2011 Request for Judicial Notice, attached as Exhibit 2 to this Notice).

.

2. California Court of Appeal’s April 18, 2011 denial of Linda Hall’s request to file an amicus letter (Exhibit 69 to Appellant Julius Galacki’s Aug. 5, 2011 Request for Judicial Notice, attached as Exhibit 2 to this Notice).

3. A document containing official correspondence, dated August 3, 2010 and August 11, 2010, between the offices of Secretary of State Debra Bowen and then-Lieutenant Governor and now-Intervenor Abel Maldonado (Exhibit 72 to Appellant Julius Galacki’s Aug. 5, 2011 Request for Judicial Notice, attached as Exhibit 2 to this Notice).

4. Aug. 15, 2011 letter sent by the California Citizens Redistricting

Commission to Secretary of State Debra Bowen (Exhibit 1 to Appellant Julius Galacki’s Aug. 18, 2011 Request for Judicial Notice, attached as Exhibit 3 to this Notice).

DATED: Aug. 19, 2011

By: /s/ GAUTAM DUTTA, ESQ.

Attorney for Plaintiffs


Case 2:11-cv-01479-ODW -FFM Document 143 Filed 08/19/11 of 2 Page ID #:1788

EXHIBIT 1 TO THE NOTICE OF NINTH CIRCUIT ORDER

GRANTING APPELLANT JULIUS GALACKI’S REQUEST

FOR JUDICIAL NOTICE

Case 2:11-cv-01479-ODW -FFM Document 143-1 Filed 08/19/11 Page 1 of 1 Page ID #:1789

AT/MOATT

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL CHAMNESS; et al.,

Plaintiffs,

v.

ABEL MALDONADO; et al.,

Defendants - Appellees.,

and

JULIUS GALACKI,

Intervenor - Appellant.

No. 11-56303

D.C. No. 2:11-cv-01479-ODW

Central District of California,

Los Angeles

ORDER

Before: SCHROEDER and GRABER, Circuit Judges.

Appellant’s motions for judicial notice are granted. Appellant’s emergency

motion for summary reversal is denied.

The previously established briefing schedule remains in effect.

FILEDAUG 18 2011

MOLLY C. DWYER, CLERKU.S. COURT OF APPEALS

Case: 11-56303 08/18/2011 ID: 7863437 DktEntry: 14 Page: 1 of 1Case 2:11-cv-01479-ODW -FFM Document 143-2 Filed 08/19/11 Page 1 of 1 Page ID #:1790



FOR JUDICIAL NOTICE


- 1 -

No. 11-56303

IN THE UNITED STATES COURT OF APPEALS


__________


Plaintiffs,

JULIUS GALACKI

Intervenor-Applicant / Appellant,

-v.-

DEBRA BOWEN, in only her official capacity as California Secretary of State, and

DEAN LOGAN, in only his official capacity as Registrar-Recorder / County Clerk of Los

Angeles County,

Defendants / Appellees

ABEL MALDONADO, CALIFORNIA INDEPENDENT VOTER PROJECT,

CALIFORNIANS TO DEFEND THE OPEN PRIMARY,

Intervenors-Defendants / Appellees

___________

ON APPEAL FROM A CENTRAL DISTRICT OF CALIFORNIA ORDER DENYING

JULIUS GALACKI’S MOTION TO INTERVENE

___________

REQUEST FOR JUDICIAL NOTICE BY JULIUS GALACKI IN SUPPORT OF

EMERGENCY MOTION FOR EXPEDITED APPEAL

___________

GAUTAM DUTTA

Attorney for Appellant Julius Galacki

Gautam Dutta, Attorney-at-Law

39270 Paseo Padre Pkwy # 206

Fremont, CA 94538

415.236.2048

213.405.2416 fax

[email protected]

Case: 11-56303 08/05/2011 ID: 7846241 DktEntry: 4-1 Page: 1 of 6Case 2:11-cv-01479-ODW -FFM Document 143-4 Filed 08/19/11 Page 1 of 6 Page ID #:1792

- 2 -

I. Documents for Which Judicial Notice Is Requested

Pursuant to Federal Rule of Evidence 201, Appellant Julius Galacki

respectfully asks the Court to take judicial notice of the following documents

in support of his Emergency Motion for Expedited Appeal. Each document

has been attached as an Exhibit to the accompanying Aug. 4, 2011

Declaration of Gautam Dutta:

A. Exhibit 71: Linda Hall’s Request to File an Amicus

Letter, which was filed with the California Court of

Appeal (First District) on April 7, 2011.

B. Exhibit 69: California Court of Appeal’s April 18, 2011

denial of Linda Hall’s request to file an amicus letter.

C. Exhibit 72: A document that I received from counsel

for Intervenor Maldonado on August 18, 2010. As

stated in a sworn statement by counsel for Intervenor

Maldonado (at p. 28), that document contains official

correspondence, dated August 3, 2010 (at pp. 30-36) and

August 11, 2010 (at pp. 37-77), between the offices of

Secretary of State Debra Bowen and then-Lieutenant

Governor and now-Intervenor Abel Maldonado. This

document was originally attached as Exhibit 2 to the

First Amended Complaint.1

II. The Court May Take Judicial Notice under FRE 201

The Court may take judicial notice of any fact that is “capable of

accurate and ready determination by resort to sources whose accuracy

1 In its earlier ruling denying Plaintiffs’ Motion for Preliminary Injunction, the trial

court declined to take judicial notice of this document. However, a preliminary injunction “is not a preliminary injunction on the ultimate merits.” Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1423 (9

th Cir. 1984). In this light, Plaintiffs’

May 6, 2011 Motion for Summary Judgment asks the trial court to take judicial notice of this document.


- 3 -

cannot reasonably be questioned.”2 Toward that end, a court must take

judicial notice if requested by a party and supplied with the necessary

information.3

As a general rule, a court “may presume that public records are

authentic and trustworthy.”4 If a party wishes to challenge the authenticity

of public records, it must carry the “burden” of producing “enough negative

factors to persuade a court that a report should not be permitted.”5

The Court may take judicial notice of matters of record in other court

proceedings “both within and without the federal judicial system, if those

proceedings have a direct relation to matters at issue.”6 Here, Exhibits 69

and 71 consist of documents that were filed in a state court that will soon

consider many of the same constitutional issues raised by this case. Because

both documents have a “direct relation” to the matters at issue, they are both

admissible.

In addition, the Court may take notice of the inter-governmental

correspondence contained in Exhibit 72, because they constitute party

2 Federal Rule of Evidence §201(b).

3 Id. §201(b); see also United States v. Ritchie, 342 F.3d 903, 909 (9

th Cir. 2003).

4 Gilbrook v. City of Westminster, 177 F.3d 839, 858 (9

th Cir. 1999).

5 Id. at 858 (quoting Johnson v. City of Pleasanton, 982 F.2d 350, 352 (9

th Cir.

1992)). 6 United States ex rel.Robinson Rancheria Citizens Council v. Borneo, 971 F.2d

244, 248 (9th Cir. 1992) (internal citation omitted).


- 4 -

admissions that are admissible under the exception to the hearsay rule.7 The

statement made by Secretary of State Bowen’s legislative staff is admissible

and not subject to the hearsay rule, because (a) the staff member was

authorized by Secretary of State Bowen to make the statement on her behalf,

and (b) the staff member made the statement within the scope of her official

duties.8

Furthermore, both sets of correspondence are indisputably public

records. As a general rule, a court “may presume that public records are

authentic and trustworthy.”9 According to the California Public Records

Act, a public record consists of “any writing containing information relating

to the conduct of the public’s business prepared, owned, used, or retained by

any state or local agency regardless of physical form or characteristic.”10

Quoting an opinion from the Attorney General, one Court of Appeal made it

emphatically clear that virtually every government record is a public record:

This definition [of public record] is intended to cover every

conceivable kind of record that is involved in the governmental

process and will pertain to any new form of record-keeping

instrument as it is developed. Only purely personal information

unrelated to “the conduct of the public's business” could be

considered exempt from this definition, i.e., the shopping list

phoned from home, the letter to a public officer from a friend

which is totally void of reference to governmental activities.11

7 Federal Rules of Evidence §801(d)(2).

8 Id. §801(d)(2)(C) (authorized-party exception to hearsay rule); id. §803(8)

(public-records exception to hearsay rule). 9 Gilbrook v. City of Westminster, 177 F.3d 839, 858 (9

th Cir. 1999).

10 Gov’t Code 6252(e) (emphases added).

11 San Gabriel Tribune v. Superior Court, 192 Cal.Rptr. 415, 422, 143 Cal.App.3d

762, 774 (Cal.App.Ct. 1983) (emphases added).


- 5 -

If a party wishes to challenge the authenticity of public records, it must carry

the “burden” of producing “enough negative factors to persuade a court that

a report should not be permitted.”12

Here, it is beyond question that both sets of correspondence contained

in Exhibit 72 are public documents, because they consist of government

communications that are not personal in nature. Furthermore, both sets of

correspondence are readily available to and easily verifiable by Defendant

Bowen and Intervenor Maldonado, for they do not dispute that one of

Defendant Bowen’s aides sent that correspondence to one of Intervenor

Maldonado’s aides.13

Indeed, Defendant Bowen herself has “admit[ted] that

on August 3 and 11, 2010, employees of the Secretary of State

communicated with employees of then-Lieutenant Governor Abel

Maldonado regarding SB 6, and that copies of two emails from employees

of the Secretary of State are attached to the [first amended] complaint as

Exhibit 2.”14

Secretary Bowen and Intervenors may claim that Exhibit 72 is not

admissible, because it allegedly contains disputed facts. However, no facts

here are in dispute.15

It is undisputed that one of Defendant Bowen’s top

legislative aides, Nichole Becker, stated in the correspondence that (1) SB

6’s Vote Counting Ban gives voters and candidates the “illusion” that write-

12

Gilbrook, supra, 177 F.3d at 858 (quoting Johnson v. City of Pleasanton, 982 F.2d 350, 352 (9

th Cir. 1992)).

13 Defendant Bowen’s Apr. 4, 2011 Answer to First Amended Complaint ¶19;

Defendant Bowen’s May 23, 2011 Objections to Plaintiffs’ Request for Judicial Notice ¶¶10, 11; Intervenor Maldonado’s May 23, 2011 Objections to Evidence Cited in Support of Plaintiffs’ Motion for Summary Judgment ¶¶10, 11. 14

Defendant Bowen’s Apr. 4, 2011 Answer to First Amended Complaint ¶19 (emphases added). 15

Cf. Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th

Cir. 2001) (court may not take judicial notice of a fact “subject to reasonable dispute”) (quoting Federal Rule of Evidence §201(b)).


- 6 -

in candidacies would be allowed and write-in votes would be counted, and

(2) SB 6’s Party Preference Ban is not “permissible” because it bans

candidates from using the ballot label of “Independent”.16

Accordingly, the Court may take judicial notice of both sets of

correspondence between the offices of Secretary of State Bowen and

Intervenor Maldonado.

Mr. Galacki respectfully asks the Court to take judicial notice of all of

the documents listed above.

Executed on August 4, 2011, in Fremont, California.

DATED: Aug. 4, 2011


16

August 4, 2011 Declaration of Gautam Dutta, Exh. 72, at 36 & 32.




FOR JUDICIAL NOTICE


- 1 -

No. 11-56303



__________


Plaintiffs,

JULIUS GALACKI


-v.-



Angeles County,





___________



___________

REQUEST FOR JUDICIAL NOTICE BY JULIUS GALACKI IN SUPPORT OF

EMERGENCY MOTION FOR SUMMARY REVERSAL

___________

GAUTAM DUTTA



39270 Paseo Padre Parkway # 206

Fremont, CA 94538

415.236.2048

213.405.2416 fax

[email protected]


- 2 -

I. Document for Which Judicial Notice Is Requested

Pursuant to Federal Rule of Evidence 201, Appellant Julius Galacki

respectfully asks the Court to take judicial notice of the following document,

which has been attached as Exhibit 1 to the accompanying Declaration of

Gautam Dutta: Aug. 15, 2011 letter sent by the California Citizens

Redistricting Commission to Secretary of State Debra Bowen. I obtained

that copy from the former’s website at

http://wedrawthelines.ca.gov/downloads/meeting_handouts_082011/crc_201

10815_1final_cover.pdf (last visited Aug. 16, 2011).

II. The Court May Take Judicial Notice under FRE 201

The Court may take judicial notice of any fact that is “capable of

accurate and ready determination by resort to sources whose accuracy

cannot reasonably be questioned.”1 Toward that end, a court must take

judicial notice if requested by a party and supplied with the necessary

information.2

As a general rule, a court “may presume that public records are

authentic and trustworthy.”3 If a party wishes to challenge the authenticity

1 Federal Rule of Evidence §201(b).

2 Id. §201(b); see also United States v. Ritchie, 342 F.3d 903, 909 (9

th Cir. 2003).

3 Gilbrook v. City of Westminster, 177 F.3d 839, 858 (9

th Cir. 1999).


- 3 -

of public records, it must carry the “burden” of producing “enough negative

factors to persuade a court that a report should not be permitted.”4

Accordingly, the Court may take judicial notice of correspondence

between the California Citizens Redistricting Commission and Secretary of

State Debra Bowen.

Mr. Galacki respectfully asks the Court to take judicial notice of the

document listed above.




4 Id. at 858 (quoting Johnson v. City of Pleasanton, 982 F.2d 350, 352 (9

th Cir.

1992)).


- 1 -

No. 11-56303



__________


Plaintiffs,

JULIUS GALACKI


-v.-



Angeles County,





___________



___________

DECLARATION OF GAUTAM DUTTA IN SUPPORT OF

APPELLANT JULIUS GALACKI’S REQUEST FOR JUDICIAL NOTICE

___________

GAUTAM DUTTA



39270 Paseo Padre Parkway # 206

Fremont, CA 94538

415.236.2048

213.405.2416 fax

[email protected]


- 2 -

I, Gautam Dutta, declare as follows:

1. I am an attorney licensed to practice in the State of California.

I have been a member of the State Bar of California since 1998 (State Bar

No. 199326), and am also admitted to practice before this Court. I represent

Appellant Julius Galacki in this appeal.

2. I have attached, as Exhibit 1, a true and accurate copy of the

Aug. 15, 2011 letter sent by the California Citizens Redistricting

Commission to Secretary of State Debra Bowen. I obtained that copy from

the former’s website at

http://wedrawthelines.ca.gov/downloads/meeting_handouts_082011/crc_201

10815_1final_cover.pdf (last visited Aug. 18, 2011).


- 3 -

I declare under penalty of perjury and the laws of the United States

that the foregoing is true and correct and are based on my personal

knowledge, except for matters stated on information and belief; and, as to

those matters, I believe them to be true. If called as a witness, I could

competently testify thereto.





EXHIBIT 1 TO THE DECLARATION OF GAUTAM DUTTA


901 P Street, Suite 154A, Sacramento, CA 95814

August 15, 2011

The Hon. Debra Bowen

California Secretary of State

1500 11th

Street

Sacramento, California 95814

Dear Secretary Bowen:

The California Citizens Redistricting Commission (Commissioner) was established

pursuant to the procedures set forth by Proposition 11, the Voters First Act, and

Proposition 20, the Voters First Act for Congress, the provisions of which are now found

in Section 2 of Article XXI of the California Constitution and at Government Code

Section 8252. These constitutional and statutory provisions set forth the Commission’s

responsibilities with respect to drawing the boundary lines for the California Assembly,

Senate, Board of Equalization and Congressional districts (the Maps).

The Voters First Act for Congress requires the Commission to certify the Maps, and

prepare a final report, and cause them to be provided to your office by August 15, 2011.

Accordingly, this letter confirms that the Commission has timely completed these

responsibilities and hereby provides the Secretary of State’s Office with the following:

1. State Assembly. Resolution of August 15, 2011 certifying the statewide

California Assembly maps were approved by the Commission in the manner

required by Section 2 of Article XXI of the California Constitution; a copy of the

statewide Assembly map; copies of the 80 individual Assembly districts; and a

“disc” labeled crc_20110815_assembly_certified_statewide.zip SHA-1:

323d2c56df6bf3ad6b3b4e58fd7c5d0338a476b8 containing the unique data files

for the Assembly districts, from which the statewide and individual district maps

are created.

2. State Senate. Resolution of August 15, 2011 certifying the statewide California

Senate maps were approved by the Commission in the manner required by

Section 2 of Article XXI of the California Constitution; a copy of the statewide

Senate map; copies of the 40 individual Senate districts; and a “disc” labeled

crc_20110815_senate_certified_statewide.zip SHA-1:


14cd4e126ddc5bdce946f67376574918f3082d6b containing the unique data files

for the Senate districts, from which the statewide and individual district maps are

created.

3. State Board of Equalization. Resolution of August 15, 2011 certifying the

statewide California Board of Equalization maps were approved by the

Commission in the manner required by Section 2 of Article XXI of the California

Constitution; a copy of the statewide Board of Equalization map; copies of the

four individual Board of Equalization districts; and a “disc” labeled

crc_20110815_boe_certified_statewide.zipSHA-1:

3dd8d0f1325818b92429f987c03668ba036ece1d containing the unique data files

for the Board of Equalization districts from which the statewide and individual

district maps are created.

4. Congressional Districts. Resolution of August 15, 2011 certifying the statewide

California Congressional districts were approved by the Commission in the

manner required by Section 2 of Article XXI of the California Constitution; a

copy of the statewide Congressional map; copies of the 53 individual

Congressional districts; and a “disc” labeled

crc_20110815_congress_certified_statewide.zip SHA-1:

1893c0695a42454a202f5b1ef433abff6b491db9 containing the unique data files

for the Congressional districts from which the statewide and individual district

maps are created.

5. Final Report. A copy of the final report prepared as required by Section 2(h),

Article XXI of the California Constitution.

It has been an honor for the Commission to serve the people of the State of California.

Sincerely,

_________________________________

Vincent Barabba

Acting Chair

On Behalf of the California Citizens

Redistricting Commission

________________________________

Gabino Aguirre

Acting Vice Chair

On Behalf of the California Citizens

Redistricting Commission


GAUTAM DUTTA, ESQ. (State Bar No. 199326) Fremont, · PDF file · 2011-08-20exhibit...

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