Court filings concerning motion to add and/or substitute class representatives, motion in Limine to prohibit testimony by Office of Desegregation Management, and motion to compel PCSSD compliance with Plan 2000, Section F (discipline)

District Court, motion to add and/or substitute class representatives; District Court, notice of deposition; District Court, the Joshua intervenors' response Little Rock School District's (LRSD's) motion to compel; District Court, motion in Limine to prohibit testimony by Office of Desegregation Management; District Court, memorandum brief in support of motion in Limine to prohibit testimony by Office of Desegregation Management; District Court, Pulaski County Special School District (PCSSD) motion for enlargement of time; District Court, three orders; District Court, Joshua intervenors' response to the Little Rock School District's (LRSD's) motion in Limine to prohibit testimony by the Office of Desegregation Management and the Joshua intervenors' motion to quash the deposition subpoenas; District Court, two orders; District Court, motion to disqualify; District Court, order; District Court, response to Pulaski Association of Classroom Teachers (PACT) motion to compel compliance; District Court, memorandum of the Pulaski County Special School District (PCSSD) in opposition to Pulaski Association of Classroom Teachers (PACT) and Pulaski Association of Support Staff (PASS) motion to compel Pulaski County Special School District (PCSSD) compliance with Plan 2000, Section F (discipline); District Court, reply of Knight intervenors to Pulaski County Special School District's (PCSSD's) response to Pulaski Association of Classroom Teachers' (PACT's) motion to compel; District Court, brief in support of reply to response to Pulaski Association of Classroom Teachers' (PACT's) motion to compel compliance; District Court, two orders; District Court, notice of filing, Arkansas Department of Education (ADE) project management tool This transcript was create using Optical Character Recognition (OCR) and may contain some errors. FILED U.S. DISTRICT COURT EASTERN DISTRICT ARKANSAS IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS NOV O 9 2001 WESTERN DMSION ~,;:MES W. McCORMACK, CLERK LITTLE ROCK SCHOOL DISTRICT CASE NO. 4:82CV00866S~ED PULASKI COUNT SPECIAL SCHOOL RECEI VS. DISTRICT, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. NO\! 13 2001 Qtf.\tl~ IBl:..l..-miiifi-ll1l11~11. MOTION TO ADD AND/OR SUBSTITUTE CLASS REPRESENTATIVES PL.AIN'HFlERK DEFENDANTS INTER VEN ORS INTER VEN ORS Come now the Joshua Intervenors, by and through undersigned, for their Motion to Add and/or Substitute Class Representatives, who respectfully move the Court for leave to add additional class representatives. For cause, the Joshua Intervenors respectfully show the Court: 1. That the Little Rock School District, through its counsel, Christopher John Heller and John Clay Fendley, have .ra ised the issue the identity of the Joshua class representatives; 2. Joshua herein addresses the inference of inadequacy of representation by the Plaintiff by submitting additional parents of school age children of A.fric,an American descent as class representatives; 3. Donna Stone and Dennis Stone are respectfully submitted as additional class representatives on behalf of their minor children: Denise, age 14; Dennis Jr., age 11 and Danielle, age 5; 4. Danielle Stone is enrolled in the kindergarten program at Franklin Elementary; Dennis Jr. is in the 5th grade at Franklin and Denise is in the 9th grade at Hall High School; 5. The Intervenor class members are adequate representatives of the class who understand the lawsuit herein and the obligations of class representation. They verify that they will represent the interests of the class as in the additional or substitute class representatives; 6. There is no prejudice to the Plaintiff by the addition or substitution of the proposed class representatives; and 7. The Joshua Intervenors have discussed this matter with Plaintiffs counsel and said counsel does not object to this addition. WHEREFORE, premises considered, the Joshua Intervenors respectfully request that the Court add Donna Stone and Dennis Stone as additional and/or substitute class representatives on behalf of the Joshua class. Respectfully submitted, John W. Walker, P.A. 1723 Broadway Little Rock, AR 72206 501-374-3758 501-374-4187 (fax) . j J( 1 By ~'lJv -'QVt(i/1-li_ J?hn W. Walker . VERIFICATION We, Donna Stone and Dennis Stone, are familiar with the Joshua litigation in this case and wish for the litigation to continue because, in our opinions, the Joshua interests have yet to be satisfied. The allegations above in the Motion to Add and/or Substitute Class Representatives are correct in our opinion. We have had the obligations of class representation explained to us by class counsel, John W. Walker, Esquire; understand those obligations; and we are prepared to further and fully represent the interests of not only our three children, but the interests of other children who are similarly situated and within the d finition oft class herein. DENNIS STONE, SR. CERTIFICATE OF SERVICE I hereby state that a copy of the foregoing motion has been sent to all counsel of record on this~day of ~001. UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DMSION RECEIVED NOV 13 2001 OfftCEOF IIIIIIEUl10N DIORING LITTLE ROCK SCHOOL DISTRICT PLAINTIFF V. NO. 4:82CV00866 SWW PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL MRS.LORENEJOSlflJA,ETAL KATHERINE KNIGHT, ET AL DEFENDANTS INTERVENORS INTERVENORS NOTICE OF DEPOSITION TO: Mr. Gene Jones Office of Desegregation Monitoring 1 Union National Plaza 124 West Capitol, Suite 1895 Little Rock, Arkansas 72201 Ms. Ann Marshall Office of Desegregation Monitoring 1 Union National Plaza 124 West Capitol, Suite 1895 Little Rock, Arkansas 72201 Ms. Margie Powell Office of Desegregation Monitoring 1 Union National Plaza 124 West Capitol, Suite 1895 Little Rock, Arkansas 72201 PLEASE TAKE NOTICE that at beginning at 9:00 a.m. on Wednesday, November 14, 2001, at the law offices of Friday, Eldredge & Clark, LLP, 400 West Capitol Avenue, Suite 2000, Little Rock, Arkansas, that the undersigned will take the depositions upon oral examination of Gene Jones, Ann Marshall and Margie Powell, pursuant to Federal Rules of Civil Procedure before a notary public or other officer duly authorized to administer oaths. You are notified to appear at such time and place and take part in the examination as you may be advised. F,\IIOME\BBrown\Fendley\LRSD\dcsegregation\DepoNotii:e2.wpd Respectfully submitted, John C. Fendley, Jr. FRIDAY, ELDREDGE & CLARK 400 West Capitol A venue, Suite 2000 Little Rock, Arkansas 72201 TEL: (501) 376-2011 FAX: (501) 376-2147 Attorneys for Plaintiff By, ifal-- 4w.a4t 71 ohnC. Fendley, Jr. -2- CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing pleading has been served by facsimile and U.S. mail on this 9th day of November 2001 upon: Mr. John W. Walker John W. Walker, P.A. 1723 Broadway Little Rock, Arkansas 72201 Mr. Sam Jones Wright, Lindsey & Jennings 2200 Worthen Bank Bldg. 200 West Capitol Little Rock, Arkansas 72201 Mr. Steve Jones Jack, Lyon & Jones, P.A. 425 W. Capitol, Suite 3400 Little Rock, Arkansas 72201-3472 Mr. Richard Roachell Roachell Law Firm 11800 Pleasant Ridge Road, Suite 146 P.O.Box 17388 Little Rock, Arkansas 72222-7388 F:IHOMEIBBrown\Fendley\LRSD\deaegrcgation\DepoNotice2.wpd -3- Ms. Ann Marshall Desegregation Monitor 1 Union National Plaza 124 W. Capitol, Suite 1895 Little Rock, Arkansas 72201 Ms. Sammye Taylor Office of the Atttorney General 323 Center Street 200 Tower Building Little Rock, Arkansas 72201 Dr. Ken James Superintendent Little Rock School District 810 W Markham Little Rock, AR 72202 AO 88 (Rev. 11191) Subpoena in a Civil Case UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DMSION LITTLE ROCK SCHOOL DISTRICT PLAINTIFF V. NO. 4:82CV00866 SWW PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL DEFENDANTS MRS. LORENE JOSHUA, ET AL INTERVENORS KATHERINE KNIGHT, ET AL INTERVENORS SUBPOENA DUCES TECUM TO: MS. MARGIE POWELL Office of Desegregation Monitoring 1 Union National Plaza 124 West Capitol Suite 1895 Little Rock, Arkansas 72201 YOU ARE COMMANDED to appear in the United States District Court at the place, date, and time specified below to testify in the above case. PLACE OF TESTIMONY COURTROOM DATE AND TIME X YOU ARE COMMANDED to appear at the place, date and time specified below to testify at the talcing of a deposition in the above case. PLACE OF DEPOSmON Friday, Eldredge & Clark, LLP 400 West Capitol A venue, Suite 2000 Little Rock, Arkansas 72201 DATE AND TIME Wednesday,Novemberl4,2001 l :00 p.m. (until completed) [X] YOU ARE COMMANDnD to produce and permit inspection and copying of the following documents or objects at the place, date, and time specified below (list documents or objects): See the attached Exhibit "A". PLACE Friday, Eldredge & Clark, .LLP 400 West Capitol A venue, Suite 2000 Little Rock, Arkansas 72201 DATE AND TIME Wednesday,November14,2001 1:00 p.m. (until completed) D YOU ARE COMMANDED to permit inspection of the following premises at the date and time specified below. A Any organization not a party to this suit that is subpoenaed for the talcing of a deposition shall designate one or more officers, directors, or wmanaging agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the erson will testi . Federal Rules of Civil Procedure, 30 6 . ISSUING OFFICER SIGNATURE AND TITLE (INDICATE IF ATTORNEY FOR PLAINTIFF OR DEFENDANl) DATE ISSUING OFFICER'S NAME, ADDRESS AND PHONE NUMBER John C. Fendley, Jr. Friday, Eldredge & Clark, LLP .f.00 West Capitol Avenue, Suite 200 ...,ittle Rock, Arkansas 72201 (501) 376-2011 (See Rule 45, Federal Rules of Civil Procedure, Paru C & D on Revme) AO 88 (Rev. 11/9 1) Subpoena in a Civil Case PROOF OF SERVICE DATE SERVED SERVED ON (PRINT NAME) SERVED BY (PRINT NAME) DECLARATION OF SERVER PLACE MANNER OF SERVICE TITLE I declare under penalty of perjury under the laws of the United States of America that the foregoing information contained in the Proof of Service is true and correct. AExecuted on _________ _ - DATE SIGNATURE OF SERVER ADDRESS OF SERVER Rule 45, Federal Rula of Civil Procedure, P1rta C & D: (c) PROTECTION OF PERSONS SUBJECT TO SUBPOENAS. - (1) A party or 10 attorney rt1pooslble (or the luu1oce and service of a subpoena sb1ll t1~ rt1pooslble steps to avoid Imposing undue burden or t1peme on a person ubJect to that subpoena. The court on btb1lf of which the subpoena was luued shall enforce this duty 10d Impose upon the party or attorney In breach of 1h11 duty an appropriate sanction, which may Include, but Is not limited to, lost earnings and a reasonable attorney's fee. (l)(A) A person commanded to produce and permit lmpectloo and copylo1 of de1l1nated boolul, papen, documents or taneJble tblop, or Inspection or premlst1 need not appear lo person 11 the place of production or Inspection uolts1 commanded to appear for depolilloo, beartn1 or trial. (8) Subject to para1npb (d)(l) of this rule, a person commanded to produce and permlt Inspection and copyto1 may, within 14 days alter service of the subpoena or before the time specified for compliance II such time ls lt11 than 14 days alter service, serve upon the party or attorney designated In the subpoena written objection to Inspection or copytn1 of any or au of the deslpated materials or of tbe premilea. II objection Is made, the party servln1 the subpoena shall not be entitled to lmpect and copy the materials or Inspect the premlsea ucept punuant to ID order of the court by which the subpoena was luued. II objection bas betu made, tbe party servln1 the subpoena may, upon notice to the penoo commanded to produce, move at any time for an order to compel the production. Such an order to compel production shall protect any penon who ii not a party or an officer of a party from sl1n10caot e,cpeose resullln1 from the Inspection 10d copyln1 commanded. (3)(A) On timely motion, tbe court by which a subpoena was luued shall quash or modify the subpoena If It (I) falls to allow reasonable time (or compliance; (U) requires a person who Is not a party or an officer of a party to travel to I place more than 100 mllt1 from the place where that person resides, Is employed or reaul1rly transacts buslnt11 lo person, ucept that, subject to the provisions of clause (c)(3)(8)(111) of this rule, such a penon may In order to attend trial be commanded to travel from any such place within tbe state In which the trial Is held, or (IU) requlrt1 disclosure of prlvile&ed or other protected matter and no exception or waiver applies, or (iv) subjects a person to undue burden. (8) II a subpoena (l) requires dilclosure of a trade secret or other confideodal resnrcb, development, or commercial Information, or (U) requires disclosure of an unretaioed expert's opinion or information not describing specific events or occurrences in dispute and resulting from tbe expert's study made not at the request of any party, or (IU) requlrt1 a person who Is not I party or an officer of a party to incur substaotl1l upeose to travel more tban 100 mllt1 to attend trial, the court may, to protect a person subject to or affected by the 1ubpoen1, quaab or modify the subpoena or, II the party in whose behalf the subpoena Is luued shows a substantial need for the testimony or material that cannot be otherwise met without undue bard1blp and a11ure1 that the penoo to whom the subpoena iJ addressed will be reasonably compeuated, the court may order appanoce or production only upon specified condldons. (d) DUTIES IN RESPONDING TO SUBPOENA. (1) A person respoodio1 to a subpoena to produce documents shall produce them II Ibey are ~I in the u111al coune of bu1lnt11 or shall oreaniu and label them to correspond with the cateaortes in the demand. (2) Whoo information subject to a subpoena Is withheld on a claim that Is prlvileeed or subject to protection as trial preparation materials, the claim shall be made A expre11iy and shall be supported by a description of the nature of the documents, communications, or tbinp not produced that Is sufficient to enable the demandin1 party to contest the .cblm. Exhibit "A" Please produce the following: All documents pertaining to communications between the Office of Desegregation Monitoring and Judge Susan Webber Wright or her law clerks pertaining to LRSD's Revised Desegregation and Education Plan and/or LRSD's compliance therewith from January 21, 1998, to the present, not previously made available to the parties in this case. Incorporating the definitions set forth below, the documents to be produced include, but are not limited to, notes of any meetings between anyone from ODM and Judge Susan Webber Wright, briefing documents prepared by anyone from ODM for Judge Susan Webber Wright, calendar entries which reflect the dates and times of meetings between employees of ODM and Judge Susan Webber Wright; any email communications between the ODM and Judge Susan Webber Wright and any other documents in any form which reflect the substance of communications between the ODM and Judge Susan Webber Wright which have not been previously made available to the parties in this case. Definitions "Document" shall mean any original written, typewritten, handwritten, printed or electronically recorded material, as well as all tapes, disks, non-duplicate copies and transcripts thereof, now or at any time in your possession, custody or control; and, without limiting the generality of the foregoing definition, but for the purposes of illustration only, "document" includes notes, correspondence, memoranda, business records (stored electronically or otherwise), e-mails, diaries, calendars, address and telephone records, photographs, tape recordings and videotapes. "Pertaining to" shall mean constituting, embodying, arising out of, incident to, referring to, mentioned, bearing upon, reflecting, evidencing, affecting, concerning, providing evidence for, or relating to the transaction, individual, entity, act, object, conference, contention, communication, allegation or activity identified. "Communication" shall mean every manner or means of disclosure, transfer or exchange, and every disclosure, transfer or exchange of information whether orally or by document or whether face to face, by telephone, U.S. mail, e-mail, personal delivery, or otherwise. "Office of Desegregation Monitoring" or "ODM" shall include all persons employed by or otherwise working on behalf of the Office of Desegregation Monitoring, United States District Court, Eastern District of Arkansas. FILED ' U.S. DISTRICT COURT EASTERN DISTRICT ARKANSAS IN THE UNITED STATES DISTRICT COURT NOV O 9 2001 EASTERN DISTRICT OF ARKANSAS WESTERN DMSION ~~:MES W. McCORMACK, CLERK LITTLE ROCK SCHOOL DISTRICT DEP CLEHK PLAINTIFF ; t,~ ' fn - --;-;;- 'I .. ~'!'I\ U'I ..,.,_.,., vs CASE NO. 4:82CV-fl!CEIVED PULASKI COUNTY SPECIAL SCHOOL DISTRICT, ET AL. NOV 13 2001 OFFICE OF DEFENDANT MRS. LORENE JOSHUA, ET AL. KATHERINE WRIGHT KNIGHT DESEG~TION MONITORINBINTER VEN ORS THE JOSHUA INTERVENORS' RESPONSE LRSD'S MOTION TO COMPEL INTER VENO RS On or about October 26, 2001 , District counsel, John Clay Fendley and John Christopher Heller, moved to compel the Joshua Intervenors to answer and otherwise respond to interrogatories and requests for production of documents that it had served on Joshua on or about August 11 , 2001. The Joshua Intervenors responded to the LRSD's discovery requests on September 24, 2001. The responses, Joshua believes, were full and complete. The first set ofLRSD interrogatories was followed by a second set at which point Joshua requested and the Court granted a hearing upon Joshua's motion for relief On October 2, 2001 , the Court addressed both sets of interrogatories and made considl!rable reference to both sets either upon reference thereto by counsel for the respective parties or upon her own inquiry. At the_time of the proceeding, the Court did not have before her the extensiye responses made by Joshua to the first set ofLRSD interrogatorles. The ODM, 1 however, did have those responses. At the conclusion of the hearing, the Court quashed the LRSD interrogatories which had not been answered. Joshua submits that, at least by implication, the Court quashed any challenge to the first set of interrogatories as well because Little Ro~k argued during the hearing that many ofJoshua responses to the first set of interrogatories were unresponsive. Because the Court did not have all of the Joshua responses before her, and because the LRSD motion to compel did not attach the Joshua exhibits which accompanied Joshua' s first answers to discovery, the exhibits (See Attachment 1) are now being submitted to the court so that it can make its own determination of whether Joshua's responses were sufficient under the circumstances of the issue then before the Court, i.e. whether the March 15, 2001 Compliance Report submitted by LRSD justified and warranted a declaration of unitary status for the LRSD. Joshua notes that LRSD sought information that it already had which had been provided by Joshua such as the "addresses" for the monitors identified. See its Exhibit 3 to this motion. Counsel verbally informed Messrs. Fendley and Heller that counsel's business address was the address of the monitors. In the motion to compel, Messrs. Fendley and Heller note that the responses were unverified and had been noted in the September 27th letter to counsel. A review of the September 27th letter by counsel did not disclose a request for verification. Counsel notes though that pleadings signed by counsel have the same force as verified pleadings in that counsel is an officer of the court and is obliged to submit only truthful responses to court required mqumes. Finally, Joshua requests the court to review the transcript of the October 2, 2001 proceeding in the event that the Court is persuaded that the objections to Joshua's responses are 2 the Motion to. Compel be denied. Respectfully submitted, John W. Walker, P.A. 1 723 Broadway Little Rock, AR 72206 501-374-3758 501-374-4187 BrW-~ CERTIFICATE OF SE~ I do hereby state that a copy of the foregoing response has been delivered to all counsel of record including the ODM on this '_!f:f5__day ofNovember, 2001 (JblM~ --------- ------ FRIDAY ELDREDGE & CLARK HERSCHEL H. PRIOAY ( 1922-1994) WILLIAM H. SUTTON, P.A. BYRON M. EISEMAN, JR., P.A. JOE J). BELL, P.A. A. BUTTRY, P.A. lCK S. URSERY, P.A. E. DAVIS, JR., P.A. J S C. CLARK, JR., P.A. THOMAS P. LEGGETT, P.A. JOKN DEWEY WATSON, P.A. PAUL B. BENHAM HI, P.A. LARRY W. BURKS, P.A. A. WYCKLIPP NISBET, JR., P.A. JAMES EDWARD HARRIS, P.A. J. PHILLIP MALCOM, P.A. JAMES M. SIMPSON, P.A. JAMES M. SAXTON, P.A. J. SHEPHERD RUSSELL UI, P.A. DONALD H. BACON, P.A. WILLIAM THOMAS BAXTER, P.A. BARRY E. COPLIN, P.A. RICHARD D, TAYLOR, P.A. JOSEPH 8 . HURST, JR., P.A. ELIZABETH ROBBEN MURRAY. P.A. CHRISTOPHER HELLER, P.A. LAURA HENSLEY SMITH, P.A. ROBERTS. SHAPER, P.A. WILLIAM M. GRIFFIN lU, P.A. MICHAELS. MOOR..E, P.A. DIANE S. MACKEY, P.A. WALTER M. EBEL Ill, P.A. KEVIN A. CRASS, P.A. WILLIAM A. WADDELL, JR., P.A. SCOTT J. LANCASTER, P.A. M. GAYLE CORLEY, P.A. ROBERT B. BEACH, JR., P.A. J. LEE BROWN, P.A. JAMES C. BAKER, JR., P.A. H.ARRY A. LIGHT, P.A. SCOTT H. TUCK.ER, P.A. GUY ALTON WADE, P.A. PRICE C. GARDNER, P.A. TONIA P. JONES, P.A. DAVID 0 . WILSON, P.A. HAND DELIVERED Ms. Ann Marshall Desegregation Monitor One Union National Plaza 124 West Capitol, Suite 1895 Little Rock, AR 72201 Re: ODM Depositions Dear Ann: <, ATTORNEYS AT LAW A LIMITED LIABILITY PARTNERSHIP www.frldayflrm.com 2000 REGIONS CENTER 400 WEST CAPITOL LITTLE ROCK, ARKANSAS 72201-3493 TELEPHONE 501-376-2011 FAX 501-376-2147 3425 NORTH FUTRALL DRIVE, SUITE 103 FAYETTEVILLE, ARKANSAS 72703-811 TELEPHONE 501-695-2011 FAX 501-895-21.7 208 NORTH FIFTH STREET BLYTHEVILLE, ARKANSAS 72315 TELEPHONE 870-782-2898 FAX 870-7822Q18 November 9, 2001 JEFFREY H. MOORE, P.A. DAVID M. GRAF, P.A. CARLA GUNNELS SPAINHOUR, P.A. JOHN C. FENDLEY, JR., P.A. JON ANN ELIZABETH CONIGLIO, P.A. R. CHRISTOPHER LAWSON, P.A. GREGORY 0 . TAYLOR, P.A. TONY L. WILCOX, P.A. FRANC. HICK.MAN, P.A. BETTY J, DEMORY, P.A. LYNDA M. JOHNSON, P.A. JAMES W. SMITH, P.A. CLIFFORD W. PLUNKETT, P.A. DANIELL. HERRINGTON, P.A. MARVIN L. CHILDERS K. COLEMAN WESTBROOK, JR. ALLISON J. CORNWELL ELLEN M. OWENS JASON B. HENDREN BRUCE 8 , TIDWELL MICHAEL E. KARNEY KELLY MURPHY MCQUEEN RECEIVED NOV ./3 2001 OfRCEOF ~MOIIIORflli JOSEPH P. MCKAY ALEXANDRA A. IFRAH JAY T. TAYLOR MARTIN A. KASTEN BRYAN W. DUKE JOSEPH G. NICHOLS ROBERT T. SMJTH RYAN A. BOWMAN TIMOTHY C. EZELL T. MICHELLE ATOR KAREN S. HALBERT SARAH M. COTTON PHILIP 8. MONTGOMERY KRISTEN S. RIGGINS ALAN G. BRYAN OP COUNSEL S.S. CLARK WILLIAM L. TERRY WILLIAM L. PATTON, JR. H.T. LARZELERE, P.A. JOHN C. ECHOLS, P.A. A.O. MCALLISTER CHRISTOPHER HELLER LITTLE ROCK TEL 501-370-1501 FAX 5012445344 htllerCfec.n,t Please find enclosed copies of our Motion in Limine and Brief, which were filed today, as well as Deposition Notices and Subpoenas for yourself and members of your staff. As you can see from our Motion in Limine, we believe that the people in your office should not be allowed to testify in this proceeding. The purpose of the depositions is not to learn what a particular witnesses' testimony might be in court, but only to determine whether the court has received extra-judicial infonnation on the merits of the case from the Office of Desegregation Monitoring. We believe we are required to investigate the possibility of extra-judicial communications on the merits of this case before the hearing continues on November 19, 2001. We therefore have little flexibility in the scheduling of the depositions but, if Tuesday or Thursday would be more convenient for you than Wednesday, we would be amenable to rescheduling for one of those days. Finally, please let me know whether you will accept service of the enclosed subpoenas or if it will be necessary for us to secure service in accordance with the Federal Rules of Civil Procedure. I Ms. Ann Marshall November 9, 2001 Page2 CJH/bk Enclosures cc w/enc. via fax: Hon. Susan Webber Wright Mr. John W. Walker Mr. Richard Roachell Mr. Samuel Jones Mr. Mark Hagameier Mr. Steve Jones Dr. Ken James IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DMSION LITTLE ROCK SCHOOL DISTRICT V. CASE NO. 4:82CV00866SWW PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. MOTION IN LIMINE TO PROHIBIT TESTIMONY BY OFFICE OF DESEGREGATION MONITORING RECEIVED NOV t..3 2001 DEFENDANTS INTERVENORS INTERVENORS Comes the Little Rock School District ("LRSD"), by its undersigned attorneys, and for its motion in limine to prohibit testimony by the Office of Desegregation Monitoring ("ODM"), states: 1. Counsel for the Joshua Intervenors has given notice that three members of the ODM will be called as witnesses for the Intervenors at the hearing on unitary status. 2. The ODM was created as an arm of the court for the purpose of monitoring the implementation of the settlement agreement. Pursuant to that purpose, the ODM (i) operates under a budget approved by the court and subject to the court's broad discretion, (ii) has access to school district personnel and to information concerning the school districts, (iii) reports to the court and to the parties regarding progress with the requirements of the Districts' desegregation plans, (iv) serves a collaborative function in identifying and facilitating discussion among the parties with regard to desegregation remedies, and ( v) facilitates agreement between the Joshua Intervenors and the LRSD with regard to compliance issues under the Revised Desegregation and Education Plan. 3. It is contrary to the purpose and function of the ODM for its members to testify as witnesses on adversarial issues between the parties, particularly the issue of unitary status. Testimony by ODM members regarding the factual predicates for unitary status will be perceived as either hostile or favorable to particular parties. It will be the duty of counsel to cross-examine the ODM witnesses for bias or impeachment. In short, appearing as a witness on the issue of unitary status is contrary to the ODM's long-standing and historic function as an agent of the court and destructive of its collaborative and facilitating role with the parties. 4. If the members of the ODM are permitted to appear as witnesses on the issue of unitary status, then the LRSD has a due process right, supported by Rule 706(a) of the Federal Rules of Evidence ("FRE"), to depose them with regard to their expected testimony and to cross-examine them at the hearing. The LRSD will be entitled to explore (i) whether the ODM witnesses have formed conclusions or opinions regarding the LRSD's request for unitary status, (ii) the basis for those conclusions or opinions, and (iii) the witnesses ' credibility. 5. The issue of credibility will place the parties in the untenable and unfair position of asking the court to disbelieve witnesses who (i) represent the remedial arm of the court itself, and (ii) have had more than a decade of experience in working with the court and the parties in the role of monitor and facilitator. The working relationship over that period of time includes numerous ex parte contacts between the ODM and the court. 6. The court stated at the hearing held on June 29, 2001 (i) that counsel for the Joshua Intervenors was free to call the members of the ODM as witnesses "to the extent ... they have knowledge on the matters at issue," and (ii) that the court had spoken informally with an ODM staff member and that the court had no objection to such member sharing with the parties "the information she has." (Transcript of 6/29/01 Hearing, 27-28) These statements by the court necessarily indicate a belief that the ODM has evidence which is relevant to the issue of unitary status and that is not 2 merely cumulative of evidence that may be presented independently by the parties. 7. The LRSD is aware of a recent statement by the Federal Monitor in a public forum to the effect that the LRSD "is not ready for unitary status." This circumstance indicates that the Federal Monitor (i) has formed an opinion or conclusion that is not strictly within the ODM' s charge to act as a monitor for the court and a facilitator for the parties, and (ii) has aligned herself publicly and to a significant degree with the position of the Joshua Intervenors on the issue of unitary status. 8. Independently of the ODM witnesses' testimony on the merits, it is material to the LRSD's case whether the ODM and the court have had ex parte discussions on the issue ofunitary status or related issues. If such discussions have occurred, issues arise concerning (i) whether the court has acquired personal knowledge of disputed evidentiary facts, within the meaning of 28 U.S.C. 455(b )(1 ), (ii) whether the impartiality of the court might reasonably be questioned, within the meaning of 28 U.S.C. 455(a), and (iii) whether the court has considered ex parte communications on the merits or on procedures affecting the merits, within the meaning of Canon 3A(4) of the Code of Conduct for United States Judges. 9. The LRSD reserves it right to investigate whether there have been ex parte communications between the ODM and the court on any and all matters affecting the LRSD's right to an impartial hearing on its request for unitary status, and if so, to seek an appropriate remedy. WHEREFORE, the LRSD prays that the court prohibit testimony by members of the ODM at the hearing on the LRSD's request for unitary status, and for all other just and proper relief. 3 Respectfully submitted, Little Rock School District, Robert S. Shafer Christopher Heller and John C. Fendley, Jr. FRIDAY, ELDREDGE & CLARK 2000 Regions Center 400 West Capitol Little Rock, Arkansas 72201-3493 (501) 376-2011 CERTIFICATE OF SERVICE I certify that a copy of the foregoing has been served on the following persons by mail on November 9, 2001 : Mr. John W. Walker JOHN W. WALKER, P.A. 1 723 Broadway Little Rock, AR 72201 Mr. Sam Jones Wright, Lindsey & Jennings 2200 Worthen Bank Bldg. 200 West Capitol Little Rock, AR 72201 Mr. Steve Jones JACK, LYON & JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, AR 72201-3472 Mr. Richard Roachell Roachell Law Firm 11800 Pleasant Ridge Road, Suite 146 Post Office Box 17388 Little Rock, Arkansas 72222-7388 4 Ms. Ann Marshall (Hand Delivered) Desegregation Monitor 1 Union National Plaza 124 W. Capitol, Suite 1895 Little Rock, AR 72201 Mr. Mark Hagameier Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, AR 72201 F:\HOME\BRENDAK\lrsd\descgmotion in limine.wpd 5 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT V. CASE NO. 4:82CV00866SWW PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. MEMORANDUM BRIEF IN SUPPORT OF MOTION IN LIMINE TO PROHIBIT TESTIMONY BY OFFICE OF DESEGREGATION MONITORING PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS The ODM was created under the court's inherent equitable powers, at the direction of the Eighth Circuit, to replace the Office of Metropolitan Supervisor. Little Rock School District v. Pulaski County Special School District, 921 F.2d 1371 , 1394 (8th Cir. 1990). The purpose of the ODM is to function as an "agent" of the court for the ongoing "supervision or monitoring" of the settlement agreement. Id. at 1386, 1388. Indeed, the Eighth Circuit has made clear that the ODM's monitoring of the parties' compliance with the settlement agreement is equivalent to monitoring by the court itself under its retained jurisdiction to oversee implementation of the settlement agreement. Id. at 1390; compare Jenkins v. State of Missouri, 890 F.2d 65, 67-68 (8th Cir. 1989) (noting that the creation of a desegregation monitoring committee at the remedial stage was within the court's inherent equitable powers). The only intimation of a testimonial role for the ODM in the opinions of the Eighth Circuit is with regard to its budgetary process. In Little Rock School District v. Pulaski County Special School District, 971 F.2d 160, 166 (8th Cir. 1992), the Eighth Circuit held that the parties were entitled to review the ODM's proposed budget and to submit recommendations and objections to the court. The Eighth Circuit noted that there might be "rare occasions when issues are of such importance that an evidentiary hearing is required," id., but such a heari