Compliance court orders

RECEIVED UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION NOV 13 2001 OFFICE OF DESEGREGATION MONITORING 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 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. Margie Powell 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 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. Respectfully submitted, John C. Pendley, Jr. FRIDAY, ELDREDGE & CLARK 400 West Capitol Avenue, Suite 2000 Little Rock, Arkansas 72201 TEL: (501)376-2011 FAX: (501)376-2147 Attorneys for Plaintiff By: :ndley, Jr. F:\HOME\BBrown\Fcndley\LRS D\desegrcgation'Dqx)Notk:e2.wpd -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 9* day of November 2001 upon: Mr. John W. Walker John W. Walker, P.A. 1723 Broadway Little Rock, Arkansas 72201 Ms. Arm Marshall Desegregation Monitor 1 Union National Plaza 124 W. Capitol, Suite 1895 Little Rock, Arkansas 72201 Mr. Sam Jones Wright, Lindsey & Jennings 2200 Worthen Bank Bldg. 200 West Capitol Little Rock, Arkansas 72201 Ms. Sammye Taylor Office of the Atttomey General 323 Center Street 200 Tower Building 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 Dr. Ken James Superintendent Little Rock School District 810 W Markham Little Rock, AR 72202 F \HOME\BBrown\Fendky\LRSD\desegrcgation\DepoNotice2 wpd -3- '. Fendley, Jr. AO 88 (Rey. 11/91) Subpoena in a Civil Case UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION 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 TO: SUBPOENA DUCES TECUM 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 taking of a deposition in the above case. PLACE OF DEPOSITION Friday, Eldredge & Clark, LLP 400 West Capitol Avenue, Suite 2000 Little Rock, Arkansas 72201 DATE AND TIME Wednesday, November 14, 2001 1:00 p.m. (until completed) [X] YOU ARE COMMANDED 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 Avenue, Suite 2000 Little Rock, Arkansas 72201 DATE AND TIME Wednesday, November 14, 2001 1:00 p.m. (until completed) I I YOU ARE COMMANDED to permit inspection of the following premises at the date and time specified below. PREMISES DATE AND TIME Any organization not a party to this suit that is subpoenaed for the taking of a deposition shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify. Federal Rules of Civil Procedure, 30(b)(6). ISSUING OFFICER SIGNATURE AND TITLE (INDICATE IF ATTORNEY FOR PLAINTIFF OR DEFENDANT) , Attorney for Plaintiff DATE November 9, 2001ISSUING OFFICER'S NAME, ADDRESS AND PHONE NUMBER John C. Fendley, Jr. Friday, Eldredge & Clark, LLP 400 West Capitol Avenue, Suite 200 Little Rock, Arkansas 72201 (501)376-2011 AO 88 (Rev. 11/91) Subpoena in a Civil Case (See Rule 45, Federal Rules of Civil Procedure, Parts C & D on Reverse) PROOF OF SERVICE DATE PLACE SERVED ON (PRINT NAME) SERVED BY (PRINT NAME) SERVED MANNER OF SERVICE TITLE DECLARATION OF SERVER 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. Executed on DATE SIGNATURE OF SERVER ADDRESS OF SERVER(Rule 45, Federal Rules of Civil Procedure, Parts C & D: (c) PROTECTION OF PERSONS SUBJECT TO SUBPOENAS. (0 A party or an attorney responsible for the issuance and service of a subpoena shall take responsible steps to avoid imposing undue burden or expense on a person subject to that subpoena. The court on behalf of which the subpoena was issued shall enforce this duty and impose upon the party or attorney in breach of this duty an appropriate sanction, which may include, but is not limited to, lost earnings and a reasonable attorney's fee. axA) A person commanded to produce and permit inspection and copying of designated books, papers, documents or tangible things, or inspection of premises need not appear in person at the place of production or inspection unless commanded to appear for deposition, hearing or trial. (B) Subject to paragraph (dX2) of this rule, a person commanded to produce and permit inspection and copying may, within 14 days after service of the subpoena or before the time specified for compliance if such time is less than 14 days after service, serve upon the party or attorney designated in the subpoena written objection to inspection or copying of any or all of the designated materials or of the premises. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the materials or inspect the premises except pursuant to an order of the court by which the subpoena was issued. If objection has been made, the party serving the subpoena may, upon notice to the person commanded to produce, move at any time for an order to compel the production. Such an order to compel production shall protect any person who is not a party or an officer of a party from signiflcant expense resulting from the inspection and copying commanded. (3XA) On timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it 0) (ii) fails to allow reasonable time for compliance
requires a person who is not a party or an officer of a party to travel to a place more than 100 miles from the place where that person resides, is employed or regularly transacts business In person, except that, subject to (B) (Hi) (iv) If a subpoena (0 (ii) the provisions of clause (cX3XBXiii) of this rule, such a person may in order to attend trial be commanded to travel from any such place within the state in which the trial is held, or requires disclosure of privileged or other protected matter and no exception or waiver applies, or subjects a person to undue burden. requires disclosure of a trade secret or other confidential research, development, or commercial information, or requires disclosure of an unretained expert's opinion or information not describing specific events or occurrences in dispute and resulting from the expert's study made not at the request of any party, or (iii) requires a person who is not a party or an offlcer of a party to incur substantial expense to travel more than 100 miles to attend trial, the court may, to protect a person subject to or affected by the subpoena, quash or modify the subpoena or, if the party in whose behalf the subpoena is issued shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship and assures that the person to whom the subpoena is addressed will be reasonably compensated, the court may order appearance or production only upon specified conditions. (d) DUTIES IN RESPONDING TO SUBPOENA. (1) correspond with the categories in the demand. A person responding to a subpoena to produce documents shall produce them as they are kept in the usual course of business or shall organize and label them to (2) When information subject to a subpoena is withheld on a claim that is privileged or subject to protection as trial preparation materials, the claim shall be made expressly and shall be supported by a description of the nature of the documents, communications, or things not produced that is sufficient to enable the demanding party to contest the claim.Exhibit "A' II 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 mea n 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.AO 8S (Rev. 11/91) Subpoena in a Civil Case UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT PLAINTIFF V. PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL NO. 4:82CV00866 SWW__*_ RECEIVED NOV 1 3 ?001 DEFENDANTS MRS. LORENE JOSHUA, ET AL INTERVENORS KATHERINE KNIGHT, ET AL UlTlbL u. DESEGREGATION MONITOm INTERVENORS SUBPOENA DUCES TECUM TO: MS. ANN MARSHALL 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 taking of a deposition in the above case. PLACE OF DEPOSITION Friday, Eldredge & Clark, LLP 400 West Capitol Avenue, Suite 2000 Little Rock, Arkansas 72201 DATE AND TIME Wednesday, November 14, 2001 9:00 a.m. (until completed) [XI YOU ARE COMMANDED 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 Avenue, Suite 2000 Little Rock, Arkansas 72201 DATE AND TIME Wednesday, November 14, 2001 9:00 a.m. (until completed) YOU ARE COMMANDED to permit inspection of the following premises at the date and time specified below. PREMISES DATE AND TIME Any organization not a party to this suit that is subpoenaed for the taking of a deposition shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify. Federal Rules of Civil Procedure, 30(b)(6). ISSUING OFFICER SIGNATURE AND TITLE (INDICATE IF ATTORNEY FOR PLAINTIFF OR DEFENDANT) , Attorney for Plaintiff DATE November 9, 2001ISSUING OFFICER'S NAME. ADDRESS AND PHONE NUMBER John C. Fendley, Jr. Friday, Eldredge & Clark, LLP 400 West Capitol Avenue, Suite 200 Little Rock, Arkansas 72201 (501)376-2011 AO 88 (Rev. 11Z9I) Subpoena in a Civil Case (See Rule 45. Federal Rules of Civil Procedure, Parts C & D on Reverse) PROOF OF SERVICE DATE PLACE SERVED ON (PRINT NAME) SERVED BY (PRINT NAME) SERVED MANNER OF SERVICE TITLE DECLARATION OF SERVER 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. Executed on DATE SIGNATURE OF SERVER ADDRESS OF SERVERRule 45, Federal Rules of Civil Procedure, Parts C & D: (c) PROTECTION OF PERSONS SUBJECT TO SUBPOENAS. (1) A party or an attorney responsible for the issuance and service of a subpoena shall take responsible steps to avoid imposing undue burden or expense on a person subject to that subpoena. The court on behalf of which the subpoena was issued shall enforce this duty and impose upon the party or attorney in breach of this duty an appropriate sanction, which may include, but is not limited to, lost earnings and a reasonable attorney's fee. (2XA) A person commanded to produce and permit inspection and copying of designated books, papers, documents or tangible things, or inspection of premises need not appear in person at the place of production or inspection unless commanded to appear for deposition, hearing or trial. (B) Subject to paragraph (dX2) of this rule, a person commanded to produce and permit inspection and copying may, within 14 days after service of the subpoena or before the time specifled for compliance if such time is less than 14 days after service, serve upon the party or attorney designated in the subpoena written objection to inspection or copying of any or all of the designated materials or of the premises. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the materials or inspect the premises except pursuant to an order of the court by which the subpoena was issued. If objection has been made, the party serving the subpoena may, upon notice to the person commanded to produce, move at any time for an order to compel the production. Such an order to compel production shall protect any person who is not a party or an officer of a party from significant expense resulting from the inspection and copying commanded. (3XA) On timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if It (I) () fails to allow reasonable time for compliance
requires a person who is not a party or an officer of a party to travel to a place more than 100 miles from the place where that person resides, is employed or regularly transacts business in person, except that, subject to (B) (iii) (iv) If a subpoena (I) 00 the provisions of clause (cXJXBXUO of this rule, such a person may in order to attend trial be commanded to travel from any such place within the state in which the trial is held, or requires disclosure of privileged or other protected matter and no exception or waiver applies, or subjects a person to undue burden. requires disclosure of a trade secret or other confldential research, development, or commercial information, or requires disclosure of an unretained expert's opinion or information not describing specific events or occurrences in dispute and resulting from the expert's study made not at the request of any party, or (iii) requires a person who is not a party or an officer of a party to Incur substantial expense to travel more than 100 miles to attend trial, the court may. to protect a person subject to or affected by the subpoena, quash or modify the subpoena or, if the party in whose behalf the subpoena is issued shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship and assures that the person to whom the subpoena is addressed will be reasonably compensated, the court may order appearance or production only upon specified conditions. (d) DUTIES IN RESPONDING TO SUBPOENA. (1) correspond with the categories in the demand. A person responding to a subpoena to produce documents shall produce them as they are kept io the usual course of business or shall organize and label them to (2) When information subject to a subpoena is withheld on a claim that is privileged or subject to protection as trial preparation materials, the claim shall be made expressly and shall be supported by a description of the nature of the documents, communications, or things not produced that is sufficient to enable the demanding party to contest the claim.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 mea n 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.G. Friday Eldredge & Clark HERSCHEL H. FRIDAY (1922-1994) WILLIAM H. SUTTON, P A. BYRON M. EISEMAN, JR., P.A. JOE D. BELL, P.A. JAMES A. BUTTRY, P.A. FREDERICK S. URSERY, P.A. OSCAR E. DAVIS. JR.. P.A. JAMES C. CLARK. JR.. P.A. THOMAS P. LEGGETT, P.A. JOHN DEWEY WATSON, P.A. PAUL B. BENHAM HI. P.A. LARRY W. BURKS. P.A. A. WYCKLIFF 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 Ill. P.A. DONALD H. BACON. F A. WILLIAM THOMAS BAXTER. P.A. BARRY E. COPLIN, P.A. RICHARD D. TAYLOR. P.A JOSEPH B HURST. JR., P.A. ELIZABETH ROBBEN MURRAY. P.A. CHRISTOPHER HELLER. P.A. LAURA HENSLEY SMITH. P A. ROBERT S. SHAPER. P.A. WILLIAM M. GRIFFIN HI. P.A. MICKAEL S. MOORE. P.A. DIANE S. MACKEY. P.A. WALTER M. EBEL III, 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. HARRY A. LIGHT, P.A. SCOTT H. TUCKER. P.A. GUY ALTON WADE. P.A. PRICE C. GARDNER, P.A. TONIA P. JONES, P.A. DAVID D. WILSON. P.A. ATTORNEYS AT LAW A LIMITED LIABILITY PARTNERSHIP www.fridayfirm.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 72703-4811 TELEPHONE 501-885-2011 FAX 501-695-2147 JEFFREY H. MOORE. P.A. DAVID M. GRAF, P.A. CARLA GUNNELS SPAINHOUR. P.A. JOHN C. FENDLEY, JR.. P.A. JONANN ELIZABETH CONIGLIO. P.A. R. CHRISTOPHER LAWSON. P.A. GREGORY D. TAYLOR, P.A. TONY L. WILCOX. P.A. FRAN C. HICKMAN, P.A. BETTY J DEMORY, P.A. LYNDA M. JOHNSON, P.A. JAMES W. SMITH. P.A. CLIFFORD W. PLUNKETT. P.A. DANIEL L. HERRINGTON, P.A. MARVIN L. CHILDERS K. COLEMAN WESTBROOK, JR. ALLISON J. CORNWELL ELLEN M. OWENS JASON B. HENDREN BRUCE B. TIDWELL MICHAEL E, KARNEY KELLY MURPHY MCQUEEN JOSEPH P. MCKAY ALEXANDRA A. IFRAH JAY T. TAYLOR MARTIN A. KASTEN BRYAN W. DUKE JOSEPH G. NICHOLS ROBERT T. SMITH RYAN A. BOWMAN TIMOTHY C. EZELL T. MICHELLE ATOR KAREN S. HALBERT SARAH M. COTTON PHILIP B. MONTGOMERY KRISTEN S. RIGGINS ALANG. BRYAN OF COUNSEL B.S. CLARK WILLIAM L. TERRY WILLIAM L. PATTON. JR. H.T. LARZELERE, P.A. JOHN C, ECHOLS. P.A. A D- MCALLISTER 208 NORTH FIFTH STREET BLYTHEVILLE, ARKANSAS 72315 TELEPHONE 870-762-2898 FAX 870-762-2918 November 9, 2001 CHRISTOPHER HELLER LITTLE ROCK TEL 501-370-1508 FAX 501-244-5344 hellerQfec.nat HAND DELIVERED Ms. Aim Marshall Desegregation Monitor One Union National Plaza RECEIVED NOV 2001 124 West Capitol, Suite 1895 Little Rock, AR 72201 OffICEOf DESESREGmMOIOyHG Re: ODM Depositions Dear Ann: 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 information 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.RECEIVED KOV ' 2001 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION QiRGtOfr 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 TO: NOTICE OF DEPOSITION Mr. Gene Jones 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 1 Ms. Ann Marshall 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. Respectfully submitted, John C. Pendley, Jr. FRIDAY, ELDREDGE & CLARK 400 West Capitol Avenue, Suite 2000 Little Rock, Arkansas 72201 TEL: (501)376-2011 FAX: (501)376-2147 Attorneys for Plaintiff By
C. Fendley, Jr. 4- F:\HOME\BBrown\Fendley\LRSD\dcsegrcgalion\DepoNotice2 wpd -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 9* day of November 2001 upon: Mr. John W. Walker John W. Walker, P.A. 1723 Broadway Little Rock, Arkansas 72201 Ms. Ann Marshall Desegregation Monitor 1 Union National Plaza 124 W. Capitol, Suite 1895 Little Rock, Arkansas 72201 Mr. Sam Jones Wright, Lindsey & Jennings 2200 Worthen Bank Bldg. 200 West Capitol Little Rock, Arkansas 72201 Ms. Sammye Taylor Office of the Atttomey General 323 Center Street 200 Tower Building 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 Dr. Ken James Superintendent Little Rock School District 810 W Markham Little Rock, AR 72202 Jl C. Fendley, Jr. F:\HOME\BBrown\Fcndley\LRSD\desegregation\DepoNotice2.wpd -3- IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT PLAINTIFF V. CASE NO. 4:82CV00866SWW PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1,ETAL. DEFENDANTS MRS. LORENE JOSHUA, ET AL. INTERVENORS KATHERINE KNIGHT, ET AL. INTERVENORS MEMORANDUM BRIEF IN SUPPORT OF MOTION IN LIMINE TO PROHIBIT TESTIMONY BY OFFICE OF DESEGREGATION MONITORING The ODM was created under the courts 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 ODMs 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 courts 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 wereentitled to review the ODMs 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 hearing clearly would be limited to issues involving the budgetary needs of the ODM and the allocation of its funds. Since its creation, the ODMs primary function has been to monitor the school districts progress in meeting the requirements of the settlement agreement. See Order entered 1/18/91, Docket No. 1418 (vesting the ODM with the authority "to monitor the school districts compliance with the settlement plans and settlement agreement"). The ODM discharges this obligation through periodic reports to the court and the parties, typically drawing upon statistical and other information provided by the school districts. The ODM also facilitates collaboration among the parties by serving as a conduit for informal communication and information-sharing. See Order entered 10/24/94, Docket No. 2319 (charging the ODM with "coordinating among the parties the plan modification process" for a proposed change in the Desegregation Facilitators title and duties)
and Order entered 12/27/96, docket No. 2901 (authorizing the ODM to "participate in negotiations as a facilitator" with regard to proposed modifications to the LRSD desegregation plan). The ODMs collaborative function was given formal expression in Section 8.2.4 of the LRSDs Revised Desegregation and Education Plan, dated January 16, 1998, which requires the ODM to attempt to facilitate agreement between the LRSD and a party seeking to resolve a compliance issue. The ODM cannot fulfill its functions of encouraging collaboration among the parties or facilitating agreement on compliance issues if it adopts a partisan position or is perceived as partisan. If the members of the ODM are called to testify, then the parties have a fundamental right to cross-examine them. See Reilly v. United States, 863 F.2d 149, 159 (1st Cir. 1988) (noting that 2the parties had no right to cross-examine a technical advisor appointed by the court, provided that 'the advisor was not an evidentiary source"). Likewise, making reports available to the parties regarding the ODM witnesses findings and allowing depositions in advance of the hearing would be important procedural safeguards. Id. at 156 (noting that depositions and cross-questioning are inapposite if a court advisor makes no findings and supplies no evidence)
compare PRE 706(a) (setting procedural requirements for expert witnesses appointed by the court, including advising the parties of the witness findings, submitting to depositions, and being subject to cross-examination by each party, including the party calling the witness). Indeed, due process requires an evidentiary hearing before evidence supplied by the ODM or any other source may become the basis for findings of fact by the court. JuanF.v. lPe/cA:er, 37 F.3d 874, 880(2d Cir. 1994)
^A:er5 v. Ohio Department of Liquor Control, 902 F.2d 477, 479 (6th Cir. 1990). The LRSD will be at a significant disadvantage if it opposes the ODM witnesses testimony. yet it appears to have no other option. The Federal Monitor has already stated publicly that the LRSD "is not ready for unitary status." Such a statement lies near the heart of the ultimate issue and cannot go unreported or unchallenged if the ODM becomes an evidentiary source at all. Since the Federal Monitor is an appointee of the court, not as an expert witness or technical advisor, but as an agent for "supervision or monitoring," Little Rock School District v. Pulaski County Special School District, 921 F.2d at 1388, to oppose the Federal Monitor is very nearly to oppose the court itself. The ODM has further been clothed with neutrality by a decade of experience in interacting with the court and with the parties on an impartial basis. It is not to be expected that the court can impartially weigh a conflict in the evidence between its own agent and the LRSDs witnesses. Therefore, the ODM must be strictly circumscribed to its non-partisan, non-testimonial role. See In re Kansas City 3Star Co., 73 F.3d 191,193,196 (Sth Cir. 1996) (noting that a desegregation monitoring committee was an II arm of the court" whose authority "must be strictly monitored and carefully tailored to match the requirements of its mission"). Finally, the change in the ODMs role from monitor to witness, which was alluded to by the court at the hearing on June 29,2001 and which has been raised formally by the Joshua Intervenors decision to name three ODM members as witnesses, raises serious questions concerning the courts impartiality. In Edgar v. K.L., 93 F.3d 256 (7th Cir. 1996), the Seventh Circuit disqualified a district judge in litigation challenging the constitutionality of the Illinois mental health system. The Seventh Circuit found that at least one ex parte meeting between the court and the members of a court- appointed panel of mental health experts had addressed the merits of the case. The Court noted that the "discussions in chambers were calculated, material, and wholly unnecessary" and that two members of the panel had become partisan by their public criticisms of the states mental health system. 93 F.3d at 259-260
compare Association of Mexican-American Educators v. State of California, 231 F.3d 572,591 (9th Cir. 2000) (finding no evidence that the district court relied upon a court-appointed technical advisor as "a source of evidence")
and Liddell v. Board of Education of City of St. Louis, 105 F.3d 1208, 1211-1212 (Sth Cir. 1997) (noting a ruling by the district court that court-ordered negotiations between a settlement coordinator and the parties "would be confidential from the court and outside parties" and that the coordinator "would not recommend to the court how the case should be resolved"). The district judge in Edgar v. K.L. was disqualified on the basis of 28 U.S.C. 455(a) and (b)(1), which requires disqualification when the impartiality of the court might reasonably be questioned, or when the court has acquired personal knowledge of disputed evidentiary facts, respectively, and Canon 3A(4) of the Code of Conduct for United States 4Judges, which prohibits a judge from considering ex parte communications on the merits or on procedures affecting the merits. 175 F.R.D. 363, 367 (1998). CONCLUSION The LRSD seeks only an impartial hearing on its request for recognition of its achievements in complying with its desegregation obligations and its attainment of unitary status. Such a hearing cannot be had in fairness to the LRSD if the historic role of the ODM is now changed from that of a monitor and facilitator to that of a material adverse witness. For this reason, and for the reasons set forth above, the LRSD requests the court to prohibit testimony by the ODM at the hearing on the LRSDs request for unitary status. 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 By- TSt^her Helie^j^^^^NA 81083 5CERTIFICATE 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. 1723 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 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 Christopher Heller F:\HOME\BRENDAK\lrsd\deseg-mcmorandum wpd 6 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION NOV/ J ?00l LITTLE ROCK SCHOOL DISTRICT PLAINTIFF V. CASE NO. 4:82CV00866SWW PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1,ETAL. DEFENDANTS MRS. LORENE JOSHUA, ET AL. INTERVENORS KATHERINE KNIGHT, ET AL. INTERVENORS MOTION IN LIMINE TO PROHIBIT TESTIMONY BY OFFICE OF DESEGREGATION MONITORING 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 courts 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 ODMs 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 LRSDs 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 2merely 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 ODMs 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 LRSDs case whether the ODM and the court have had ex parte discussions on the issue of unitary 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 LRSDs 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 LRSDs request for unitary status, and for all other just and proper relief. 3Respectfully 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 Byf 'hristopher Heller, AR car No7 81083 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. 1723 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 4Ms. 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 Christopher Heller F:\HOME\BRENDAK\lnd\dcscg-motion in limine, wpd 5 FILED IN THE UNITED STATES DISTRICT COURT NOV 14 2001 EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION JAMES By
___: ! W. McCqRMACK, CLEF CLERK sw LITTLE ROCK SCHOOL DISTRICT, Plaintiff, vs. PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. Let al.. Defendants, MRS. LORENE JOSHUA, et al., Intervenors, KATHERINE KNIGHT, et al.. Intervenors. * * * * * * * * * * * No. 4:82CV00866 SWW RECEIVED NOV 16 200! Office OF OESEGREGOiMQSRGftijia ORDER Now before the Court is the motion of the Little Rock School District to compel responses by Joshua Intervenors to LRSDs first set of interrogatories and requests for production, as well as Joshuas response. The Court previously addressed these discovery issues in relation to LRSDs second set of interrogatories and requests for production in the October 2, 2001 hearing on Joshuas motion for definition and clarification of the issues. For the same reasons set forth in that hearing, LRSDs motion to compel is hereby DENIED. LRSD is once again reminded that the hearings scheduled on November 19 and 20, 2001, concern Joshuas objections to the March 15, 2001 Compliance Report, in which the LRSD represented to the Court that the district had achieved unitary status. There is no reason to obfuscate the issue by complaining about Joshuas activities- Joshuas activities are not relevant unless such activities relate to the trustworthiness of evidence presented by Joshua. The Court looks forward to the LRSDs presenting evidence on November 19 and 20,2001, that the representations made in the Compliance Report are accurate and truthful, particularly as to the I 3^5 4 0issues of program evaluation and student discipline. IT IS SO ORDERED THIS UNITED STATES DISTRICT COURT DAY OF NOVEMBER, 2001 THIS DOCUMENT ENTERED ON DOCKET SHEET IN COMPLIANCE WITH RULE 58 AND/OR 79(a) FRCP BY. 2 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION U.S OraTWCT COURT eastern district ARKANSAS NOV 1 4 2001 JAMES yv McCOHMACK, CLERK LITTLE ROCK SCHOOL DISTRICT, Plaintiff, vs. PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. l,etal.. Defendants, MRS. LORENE JOSHUA, et al.. Intervenors, KATHERINE KNIGHT, et al.. Intervenors. * * * * * * * * * * * * * By
No. 4:82CV00866 SWW NOV 16 21ISI ORDER On November 13, 2001, the Court held a hearing in this matter to address the Little Rock School Districts November 9, 2001, motion in limine to prohibit testimony by Office of Desegregation Monitoring. The Court received the Joshua Intervenors November 13, 2001, response in opposition and motion to quash the deposition subpoenas shortly before that hearing. On the basis of the motions and response, and the arguments made at the hearing, the Court issues the following Order consistent with the Courts rulings at the November 13,2001 hearing. The LRSD requests that the ODM monitors be excluded as witnesses on adversarial issues, particularly the issue of unitary status now before the Court. The LRSD further seeks to depose certain ODM monitors to investigate whether there have been ex parte communications between the ODM and the Court concerning LRSDs request for unitary status. The LRSDs motion in limine to exclude the ODM monitors as witnesses is hereby denied. The Court regards the ODM monitors as employees charged with assisting the Court in performing its monitoring function, as directed by the Court of Appeals. The ODM monitors 3 5 3 9 have testified in this case on several occasions,' and the Court has relied upon their written reports and their testimony in many rulings. Some of these reports have benefitted the LRSD, which has been released from monitoring in several areas. LRSD has never questioned the accuracy or thoroughness of any reports, and in the most recent hearings LRSD witnesses testified to the usefulness of these reports and that the recommendations in the report on discipline had been followed. In the eyes of the Court, the testimony of the ODM monitors concerning their monitoring activities and information derived therefrom does not differ from the ODMs published reports which may be entered into the record. The testimony is subject to cross examination and the reports are subject to challenge by the parties. Even though the ODM has served the Court extremely well in this case, the Court will not decide the pending motion for unitary status, or any other motion, on the basis of any opinions of the ODM monitors, none of whom are lawyers. While the ODM may work for the Court, and thus the Court may engage in ex parte communications with the ODM concerning monitoring duties, the Court does not rely on the ODM to assist the Court in finding the relevant law and deciding the districts compliance therewith. The Court assures the parties that it does not decide motions on the basis of conversations with the ODM monitors. The ODM monitors work for the Court but do not speak for it. Much like the Courts law clerk is charged with the special responsibilities of assisting the Court in ferreting out the applicable law and preparing orders and opinions in this case, the ODM is charged with the special responsibility of assisting 'By way of example, ODM personnel have previously testified in this case as follows: Ann Marshall, 01-21-92, 06-30-98
Melissa Guldin, 01-23-92, 05-29-92, 03-29-93, 04-19-93, 01- 27-94
Bill Mooney, 06-23-95, 08-11-95
Bob Morgan, 12-18-91, 06-23-95
Margie Powell, 03- 19-93, 04-19-93, 11-17-93, 01-26-94, 06-30-98
Horace Smith, 01-22-92, 03-19-93, 04-19-93, 11-17-93
Connie Tanner, 04-19-93, 06-09-93, 01-27-94. 2the Court in performing its monitoring duties. While the Court may rely on ODM to make recommendations to the parties as a result of its monitoring, the Court does not rely on ODM to make recommendations concerning the disposition of this case. The Court decides the motions in this case in light of the applicable law and solely upon the record in the case, which, in this hearing, may or may not depending on the parties decisions as to the evidence to be presented include the testimony of the ODM monitors and the ODMs reports. In the eleven years that this judge has presided in this case, no party before now has publicly accused the Court or the ODM of bias. In the interest of maintaining impartiality in this hotly contested matter, the Court directed the desegregation monitor to provide any information she had to both sides if she provided it to either side. The Court is well aware that any witness may be biased. If the ODM personnel testify in this case, they may be treated like any other witness, and the parties may impeach their testimony and/or demonstrate such bias if and when appropriate. The Court wishes to make clear that although the Court has engaged in ex parte communications with the ODM desegregation monitor concerning her monitoring duties, the Court is not relying on ODM-produced information on the student discipline and program evaluation issues now before the Court. If the ODM monitors might be called as witnesses, the LRSD may take their depositions as requested, and the Court would waive its privilege as to any information on student discipline and program evaluation provided the Court by ODM. As previously stated, the Court notes that it is not relying on the ODM in this proceeding- rather, the burden rests upon Joshua to demonstrate a failure in compliance by LRSD with the Revised Desegregation and Education Plan. Although in this instance the ODM has published no report. 3the ODM may still have information pertinent to the issues before the Court. However, it is up to the parties, if they so desire, to elicit this information and to bring it before the Court as part of the record. The Court does not, and will not, seek out any such information independently. In conclusion, the LRSDs motion in limine is hereby DENIED
and Joshuas motion to quash is also hereby DENIED. There is no need to obfuscate the issue before the Court by, this time, pointing a finger at the Court or the ODM. Once again, the Court must direct the LRSD to focus on presenting evidence that its representations made in the March 15, 2001 Compliance Report are accurate and truthful, particularly as to the issues of program evaluation and student discipline. The Court looks forward to hearing this evidence on November 19-20, 2001. IT IS SO ORDERED THIS DAY OF NOVEMBER, 2001 hi: JUD UNITED STATES DISTRICT COURT THIS DOCUMENT ENTERED ON DOCKET SHEET IN COMPLIANCE WITH RULE 58 AND/OR 79(a) FRCP ON .BY V\ ?------------ 4 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT PLAINTIFF V. CASE NO. 4:82CV00866SWW PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1,ETAL DEFENDANTS MRS. LORENE JOSHUA, ET AL INTERVENORS KATHERINE KNIGHT, ET AL INTERVENORS AFFIDAVIT OF DR. LINDA BROWN I, Linda Brown, after being duly sworn, state under oath: I am the Principal of Parkview Arts and Science Magnet High School in the Little Rock School District and have been since July, 1998. I am also a member of Trinity Episcopal Cathedral. I attended Trinity Episcopal Cathedrals annual meeting in January 2001 and heard Judge Susan Webber Wright address the meeting. I have read the February 9,2001 article in The Insider Section of the Arkansas Times Newspaper. That article acurately describes Judge Wrights remarks at Trinity Episcopal Cathedrals annual meeting. Further the affiant sayeth not. lown STATE OF ARKANSAS) ) SS. COUNTY OF PULASKI) SUBSCRIBED AND SWORN to before me, a Notary Public, on this ^U^ay of November, 2001. My Commission Expires: & sr EXHIBIT si RE^ ^'7.3 NOV 16 2001 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION OFFICE 0. LITTLE ROCK SCHOOL DISTRICT PLAINTIFF V. CASE NO. 4:82CV00866SWW PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1,ETAL DEFENDANTS MRS. LORENE JOSHUA, ET AL INTERVENORS KATHERINE KNIGHT, ET AL INTERVENORS AFFIDAVIT OF DR. DON STEWART I, Don Stewart, after being duly sworn, state under oath: I am the Chief Financial Officer of the Little Rock School District and have been since February 2000. On January 16,1998, the Little Rock School District Board of Directors approved the Little Rock School Districts Revised Desegregation and Education Plan. LRSDs Revised Desegregation and Education Plan was subsequently approved by the District Court. The Revised Plan states that the Little Rock School District would be declared unitary and released from federal court supervision at the end of the 2000-2001 school year if the District substantially complied with the terms of the Plan. Soon after the LRSD Board of Directors approved the Revised Desegregation and Education Plan, the District established a Compliance Committee. I was a member of that Committee. The responsibility of the Committee was to assure the Districts compliance with the Revised Plan. The Committee developed a compliance plan and a compliance handbook and, with few exceptions, met on a weekly basis to determine the status of LRSDs compliance and to resolve any compliance issues. The Revised Desegregation and Education Plan required that LRSD report to the District Court the status of its compliance on March 15, 2001. The Compliance Committee was charged J exhibit f 1with the responsibility to prepare the required compliance report. During the time the Committee was in the process of preparing that report, I had a conversation with federal monitor Ann Marshall. Ms. Marshall expressed to me her belief that the Little Rock School District was not ready for unitary status because some aspects of the Districts operation needed further attention. Further the affiant sayeth not. STATE OF ARKANSAS) ) SS. COUNTY OF PULASKI) SUBSCRIBED AND SWORN to before me, a Notary Public, on this of November, 2001. 03 'Q. iires: F: \H0ME\BRENDAK\lr8d\des-affidavit-Stewart .wpd otary Public -2- (2^ /\ioTARyV i ^esa^ fee'I IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT PLAINTIFF V. CASE NO. 4:82CV00866SWW PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1,ETAL DEFENDANTS MRS. LORENE JOSHUA, ET AL INTERVENORS KATHERINE KNIGHT, ET AL INTERVENORS AFFIDAVIT OF BONNIE LESLEY I, Bonnie Lesley, after being duly sworn, state under oath: I am the Associate Superintendent for Instruction of the Little Rock School District and have been in this position since June 1998. Ann (Brown) Marshall has, over the past three years, been very helpful to me in my role both as an Associate Superintendent and as a member of the Compliance Team. She provided me with background information, history, and frequent advice. both substantive and process. In at least three conversations in the last several months, Ms. Marshall has expressed to me several opinions relating to the Districts position for unitary status. She told me that the three-year period of the plan was too short to accomplish all the necessary changes. She told me that the District might regret losing the protection of the federal court, especially as it relates to finances. And she most recently told me that she believed we should withdraw from our pursuit of unitary status and go back and "do it right." When I asked her what she thought we had not done, she said. "program evaluation - page 148." (I understood this to be a reference to page 148 of the March 2001 Compliance Report.) In this last conversation, it was my impression that she wanted me to relay that advice to my superintendent and to the attorneys, which I did. EXHIBIT IFurther the affiant sayeth not. ,esle
STATE OF ARKANSAS) ) SS. COUNTY OF PULASKI) SUBSCRIBED AND SWORN to before me, a Notary Public, on this of November, 2001. Notary Public My Commi^jsjPft^xpires: X X **nnH*** F:\HOME\BRENDAK\lrsd\des-affidavit-lesley.wpd -2-RECEIVtu IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION NOV16Z001 QfDKOF OBtSRESROM**'* LITTLE ROCK SCHOOL DISTRICT PLAINTIFF V. CASE NO. 4
82CV00866SWW PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1,ETAL DEFENDANTS MRS. LORENE JOSHUA, ET AL INTERVENORS KATHERINE KNIGHT, ET AL INTERVENORS AFFIDAVIT OF SUE STRICKLAND I, Sue Strickland, after being duly sworn, state under oath: I am a member of the Little Rock School District Board of Directors and have been since September 1994. I have served as President, Vice President and Secretary of the Little Rock School District Board of Directors. On January 16,1998, the Little Rock School District Board of Directors approved the Little Rock School Districts Revised Desegregation and Education Plan. LRSDs Revised Desegregation and Education Plan was subsequently approved by the District Court. The Revised Plan states that the Little Rock School District would be declared unitary and released from federal court supervision at the end of the 2000-2001 school year if the District substantially complied with the terms of the Plan. The Revised Desegregation and Education Plan required that the District file a report in the District Court on the status of its compliance with the Plan on March 15, 2001. During the time LRSD was preparing the report which would show that the District had substantially complied with its Revised Desegregation and Education Plan, I had a conversation with federal monitor Ann Marshall. She told me that I should not let our Superintendent, Dr.^ Les Camine, pursue unitary status because the District was not ready for it and if we tried to get it we would only make Judge Susan Webber Wright mad. 1 1 s X EXHIBIT 4Further the affiant sayeth not. >ue Stricfcfand STATE OF ARKANSAS) ) SS. COUNTY OF PULASKI) SUBSCRIBED AND SWORN to before me, a Notary Public, on this /t^^day of November, 2001. My Commission Expires: V Fs \HOME\BRENDAK\ lrsd\des-affidavit-Strickland, wpd -2- otary Public B Multi-Page TM IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT, et. al., PLAINTIFFS, VS. PULASKI COUNTY SPECIAL SCHOOL DISTRICT, DEFENDANT, LORENE JOSHUA, et. al., INTERVENORS, KATHERINE W. KNIGHT, et. al.. INTERVENORS. -X ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) X LR-C-82-866 received 16 ^soi - -o- - BE IT REMEMBERED that the above-entitled proceedings came on to be heard on Tuesday, November 13, 2001 before the HONORABLE SUSAN WEBBER WRIGHT, United States District Judge. - -o- - LRSD: Motion to take depositions of ODM. Motion in limine. --O-- COURT REPORTER: WAUNZELLE P. PETRE, CCR Debbye L. Petre, CCR Post Office Box 1027 Little Rock, Arkansas 72203-1027 PETRES STENOGRAPH SERVICE (501) 376-14112 APPEARANCES: ON BEHALF OF LITTLE ROCK SCHOOL DISTRICT: CHRISTOPHER HELLER, ESQUIRE JOHN C. FENDLEY, ESQUIRE Friday, Eldredge & Clark 400 West Capitol, Suite 2000 Little Rock, Arkansas 72201 ON BEHALF OF PULASKI COUNTY SPECIAL SCHOOL DISTRICT: M. SAMUEL JONES, III, ESQUIRE Wright, Lindsey & Jennings 200 West Capitol Avenue, Suite 2200 Little Rock, Arkansas 72201 ON BEHALF OF NORTH LITTLE ROCK SCHOOL DISTRICT: STEPHEN W. JONES, ESQUIRE JAMES A. CARNEY, ESQUIRE Jack, Lyon & Jones 425 West Capitol Avenue, Suite 3400 Little Rock, Arkansas 72201 ON BEHALF OF JOSHUA INTERVENORS: JOHN W. WALKER, ESQUIRE JOY SPRINGER, (NON-ATTORNEY) John W. Walker, P.A. 1723 South Broadway Little Rock, Arkansas 72206 ROBERT PRESSMAN, ESQUIRE Attorney at Law 22 Locust Avenue Lexington, Massachusetts 02173 ON BEHALF OF KNIGHT INTERVENORS: RICHARD ROACHELL, ESQUIRE (Not Present) Roachell Law Firm 401 West Capitol Avenue, Fifth Floor Little Rock, Arkansas 72201 PETRE'S STENOGRAPH SERVICE (501) 376-14113 APPEARANCES: (Continued.) ON BEHALF OF THE STATE OF ARKANSAS: MARK HAGEMEIER, ESQUIRE Assistant Attorneys General Office of Attorney General 200 Tower Building 323 Center Street, Little Rock, Arkansas Suite 200 72201 ON BEHALF OF THE OFFICE OF DESEGREGATION MONITORING: ANN MARSHALL, Federal Monitor POLLY RAMER, Office Manager HORACE SMITH MELISSA GULDIN MARJIE POWELL GENE JONES (Not Present) Office of Desegregation Monitoring 124 West Capitol Street, Little Rock, Arkansas Suite 1900 72201 - -o- - PETRE'S STENOGRAPH SERVICE (501) 376-14114 INDEX * * WITNESS: Page: (None Present.) - -o- - EXHIBITS * * it k (None Marked.) - -o- - Reporter's Certificate 29 - -o- - PETRE'S STENOGRT^H SERVICE (501) 376-14111 5 PROCEEDINGS 2 3 * TUESDAY, NOVEMBER 13, 2001 4 5 THE MARSHAL: Please rise. The United 6 States District Court is in session. The 7 Honorable Susan Webber Wright presiding. 8 You may be seated. 10 11 12 THE COURT: Good afternoon. ALL : Afternoon. THE COURT: matters. I think we are here on two One involves the issue of whether 9 13 the LRSD will take the depositions of the 14 monitors tomorrow. And the other involves 15 the Motion in Limine filed by LRSD, is that 16 correct ? 17 18 19 MR. WALKER: THE COURT: motion, Yes, Your Honor. All right. I have read the and I read the response. Now, does 20 anyone have anything else to add? 21 MR. HELLER: Your Honor, I have just a 22 brief response. 23 -24 THE COURT: All right. MR. HELLER: Does the Court wants us to 25 argue the issue or just say whether or not we PETRE'S STENOGRAPH SERVICE (501) 376-14116 10 11 12 rest on our briefs, but I would like to say that we don't seek to prohibit the testimony of the Office of Desegregation Monitoring unless the Court allows their depositions. We very specifically said we believe the monitors' testimony in this matter is inappropriate, depositions. whether or not we take their And we've specifically said that we wanted to take their depositions for another purpose, not to determine whether or not court, or what their testimony might be in but to determine whether or not there 1 2 3 4 5 6 7 8 9 13 had been an ex parte communications on the 14 merits with the Court. 15 16 So, I thought we made that clear in the deposition subpoenas. that was our only 17 purpose for the depositions. 18 THE COURT: Well, let me just say now. 19 I have ex parte conversations with the 20 21 22 23 24 25 monitors, as I do with my law clerks, and I always have. I have always decided the case the motions on the merits. And in this instance, in your motion you seem to say that the Court must have evidence that it is going to consider and has personal PETRE'S STENOGRAPH SERVICE (501) 376-14117 1 knowledge of evidence in the case, which is 2 not true. 3 All of the evidence I am considering so 4 far. on the issues before the Court, is the 5 6 7 evidence that you've presented. and that is your Compliance Report and also. the evidence Joshua has submitted, that Joshua did not get 10 11 12 13 14 through monitors really. from the monitors. If Joshua got it I am not aware of it being part of the record in this case. I am aware that both sides had approached Ms. Marshall about the possibility of talking to her. And my instructions to her, and I think I said this on the record. 8 9 15 was that if she has information that you want 16 her to share with you. she should not do it 17 except when both of you are present. In 18 other words. she should share it with both 19 sides. 20 And that does not mean that I know what 21 information she has, because Joshua, unlike 22 other proceedings where I have relied on 23 -24 25 monitoring reports and all, Joshua, in this case, because of the terms of the settlement. has the burden of proof. PETRE'S STENOGRAPH SERVICE (501) 376-14118 1 And so, I have not been acquainted with, 2 or I shouldn't say acquainted with, I have 3 not been familiar with any information the 4 monitors might have. And she has Ms. 5 Marshall had told me that you all had asked 6 her, and I said. "Don't talk to them unless 7 you talk to both of them, because this is an 8 adversary proceeding". 9 And I would never gather information and 10 consider it without making it part of the 11 record of this case. That is wrong. that is 12 something a judge should never do, and I 13 think that in the 11 years that I have had 14 this case. I have decided the merits of the 15 issues before the Court on the record and not 16 on conversations I have had with the 17 18 monitors. For one thing. one I talk with. Ms. Marshall is the She is not a lawyer. none 19 of the monitors are lawyers. 20 I am the one who has to decide the case. 21 that is what I am paid to do. that is what I 22 am supposed to do. 23 Just as I have conversations with my law -_24 clerk about what they are doing, I have 25 conversation with Ms. Marshall about her PETRE'S STENOGRAPH SERVICE (501) 376-1411 I1 monitoring activities, but when it comes to 9 2 evidence that is relevant to this issue, 3 I don't know what evidence she has, except the 4 evidence that Joshua has entered. 5 if I did. I wouldn't consider it. 6 7 8 And even Now, as far as her being a witness, she has been a witness. she has been a witness many or several times. I don't know how 9 recently, but she and the other monitors have 10 been. And they are usually, when they are 11 witnesses, they have submitted reports and we 12 are basing court decisions on their evidence, 13 and I don't intend to do that. 14 I am not even sure that Mr. Walker is 15 going to call any of the monitors, but they 16 have been on his witness list for a long 17 time. And I presume that they are on the 18 witness list now that he has rested, but they 19 20 21 22 are for rebuttal purposes. Mr. Walker, is that why? MR. WALKER: is that correct. I have two and a half hours, as I understood, to use as I please, 23 Your Honor. -,24 25 THE COURT: MR. WALKER: Well, you have to be But it will basically be PETRE'S STENOGRAPH SERVICE (501) 376-14111 10 for cross-examination and rebuttal. 2 THE COURT: And you know, rebuttal has 3 to be rebuttal of something he didn't 4 anticipate. So, as far as ex parte 5 conversations, I will tell you right now. 6 I have ex parte conversations with Ms. 7 Marshall, as I do with other people who work 8 for the Court. 9 And I think that the law would be that 10 would be, you know. that those conversations 11 are privileged. but I certainly do not go 12 behind the scenes and consider evidence that 13 is not in the record, that is not subject to 14 cross - examination. That is why we have these 15 lengthy hearings. 16 And I don't know, you know, what else to 17 say about it. And if she has some evidence. 18 I told her to share it with both of you, not 19 just to share it with one side. in the 20 interest of being fair. I don't know whether 21 she has any, because she was not charged in 22 your plan with monitoring your compliance. 23 All the objections come from someone -2 4 25 else, and so she is not a party to the litigation and her burden was not to come PETRE'S STENOGRAPH SERVICE (501) 376-14111 forward with evidence. And so, as far as I 2 know and she certainly 3 with any to me. The only 4 considered is what Joshua 5 presented. 6 MR. HELLER: 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 -.24 25 11 hasn't come forward evidence I and you have Your Honor, first of all, it is not fair to say that the monitors have been on Joshua's witness list for any extended period initial witness which the Court required Joshua Court, of time. They were on an list of about 50 people. pared down in a hearing, and to tell the parties and the who he really intended to call. And at that point, the monitors were deleted from the witness list. and at that point I wrote Ann Marshall to say. "Since you won't be a witness, we won't have to meet with you." resolved. But we So, are several things. that is how that was concerned. Your Honor, about First of all, that ODM has had a role in this case. as a facilitator and collaborator. in addition to the monitoring role. The monitoring been very well described. It is PETRE'S STENOGRAPH SERVICE (501) 376-1411 formal role hasn't described12 1 generally in the executive orders and in this 2 Court's orders. But there are 10 THE COURT: Well, I think it is described also in the New Plan, isn't it, that they will remain available, as a resource? MR. HELLER: Well, the New Plan says in Section Eight, Your Honor, that concerning Joshua's obligations to bring issues of plan non-compliance forward. The only steps in 3 4 5 6 7 8 9 11 that process after he brings them to the 12 School District's attention is to go to ODM 13 for facilitation. 14 And that is a role. if you look at the 15 orders throughout the decade concerning the 16 Pulaski County School District for 17 development of our revised plan and other 18 situations. The monitor has played in some 19 situations a facilitating role and has to in 20 others. 21 And there is nothing in the Eighth 22 Circuit decision converting the Office of 23 Supervisor to the Office of Desegregation -2 4 Monitoring, which suggests the testimonial 25 role. PETRE'S STENOGRAPH SERVICE (501) 376-1411 I1 2 13 And we believe. in fact, there is discussion in some of the other cases. 3 Jenkins and Lavelle about the role of the 4 monitors and it has to be strictly 5 circumscribed to fulfill their function. 6 And we believe the job can be conformed without 7 them having to take a testimonial role, and 8 they had done that for years prior to the 9 time they testified in Pulaski County in the 10 unitary status hearing. 11 THE COURT
Well, hold it. Now, we have 12 had monitors testify numerous times, haven't 13 we? It's not just in the unitary status 14 hearing. We have had them testify as fact 15 witnesses with respect to compliance 16 17 18 MR. WALKER: THE COURT: MR. WALKER: Your Honor, I have on numerous occasions. You probably remember the 19 Court's use of Mr. Mooney with respect to 20 Little Rock's budget issues. Most of the 21 testimony began with Little Rock being the 22 23 -2 4 25 party before the Court. THE COURT: This is before No, they have both been before the Court. MR. WALKER: Well, I understand, but for PETRE'S STENOGRAPH SERVICE (501) 376-1411 I1 14 the longest period it was Little Rock, and 2 you recall them having the Board Members come 3 and sit in? 4 THE COURT: Oh, yes, I do remember that. 5 yes . 6 7 MR. WALKER: All right. Well, then all the monitors. or virtually all of the 8 monitors had occasions to have something to 9 say to the Court at one time or another, and 10 it was in Little Rock. 11 MR. HELLER: Well, Your Honor, my 12 position is that the job that was set out in 13 the Eight Circuit's Order and this Court's 14 Order, the monitors can be done without their 15 testimony. 16 They can provide reports to the parties 17 and the Court, and I think that is their 18 19 primary function. They can work as facilitator. and if issues come to the 20 attention of the parties or the Court that 21 require a hearing. then we can have a hearing 22 and resolve those things. 23 And the problem with the monitors 24 becoming witnesses is that it puts the 25 parties in a very difficult position. because PETRE'S STENOGRAPH SERVICE (501) 376-141115 1 the monitors have been described repeatedly, 2 as an arm of the Court. 3 I think in one transcript the Court 4 says, "The monitors are a part of the Court". 5 And at another place, just before Ann 6 Marshall's testimony in the PCSSD hearings. 7 the Court says. "People tend to think that 8 when the monitor speaks she speaks for me. 9 10 11 but she doesn't." common perception. for the parties. And I think that's a So, it creates a problem 12 And I think in the way communication is 13 perceived in the public, if the parties are 14 required to oppose the people. who are 15 described as an arm of the Court, hired by 16 the Court, and in whom the Court has placed 17 its confidence over the last decade. 18 THE COURT: Well, this is the first time 19 any party in this litigation has called into 20 question whether the monitor should testify. 21 22 23 -J24 25 as to what she finds in her monitoring. can't testify. no one in the Office of Desegregation Monitoring can testify. whether the District is unitary. suggest that. She as to I have to PETRE'S STENOGRAPH SERVICE (501) 376-141110 11 12 13 14 15 16 I don't know why she shouldn't be able to testify, as to what she has found, if anything, with respect to the representations that the Little Rock School District has made in it's Compliance Report, to the extent that the office has information about that. And again, if they have specific information they have not shown it to me. and the reason is we are pursuing it from a different direction. I emphasize to all concerned that this was Joshua, who has to carry the burden of proof, and it is Joshua's evidence. Now, i f Ms . Marshall has some evidence, she has not shared it with me. I don't have it, and the only thing I am going to look at 1 2 3 4 5 6 7 8 9 16 is what has been presented and received in 17 this Court. 18 And the Court now, she might have 19 20 21 22 23 -J2 4 25 some, any. I have not specifically asked her for I just said, "If you have anything. share it with both parties at the same time." That has been the extent of my involvement. because I put the burden, as I should, I believe, under the plan. on Joshua. therefore, I don't believe I am Now, PETRE'S STENOGRAPH SERVICE (501) 376-14111 17 going to overrule your request that the 2 monitor be excluded. The monitor will be 3 4 5 6 7 8 treated like any other witness. You are free to impeach the monitor. You claim in your motion she has made statements or a statement against your client, and you may impeach her and put that on the record, to see if that is her if 9 she made that statement, and if she is biased 10 11 against your client on that basis. you are entitled to do that. I think if you have a 12 good faith basis for asking her that 13 question. 14 Now, keep in mind that I am not even 15 certain that Mr. Walker will call them, that 16 is up to him. All of the evidence I have 17 looked at so far has been Joshua's evidence. 18 and mostly from your School District 19 employees. 20 And I want you and Mr. Pendley to focus 21 on evidence to show the Court that what you 22 have presented to the Court on March 15 with 23 24 respect to your compliance was truthful. accurate, and honest
specifically with and 25 respect to the evaluations and the discipline. PETRE'S STENOGRAPH SERVICE (501) 376-141118 1 Those are the two areas we are focusing 2 on. That is what I am going to be focusing 3 on, not on what Ms. Marshall said or 4 anything, but she hasn't I don't need to 5 talk with her about this, all I need to do is 6 focus on the evidence in this hearing and the 7 hearings we've had previously and the ones 8 that we will have next week. 9 That is the focus of the Court. 10 And I don't think I am going to need her 11 testimony to make a decision. And I don't 12 think that but if Mr. Walker wants to get 13 her testimony into the record, he may. 14 15 Now, with respect to her deposition. you want to if she is going to be a if 16 witness and you want to take her deposition, 17 I think that is fine. And you may ask her 18 about ex parte communications, except those 19 to the extent that she might have given me 20 evidence. 21 But usually, any ex parte -- anything 22 like that is going to be absolutely 23 privi1eged. But if you want her to share 24 with you any evidence she has given me, I 25 will say I waive the privilege. PETRE'S STENOGRAPH SERVICE (501) 376-14111 MR. HELLER: So, I can assume, Your 2 Honor, is that doesn't really provide us an 3 adequate way to get at the problem if, in 4 fact, there have been ex 5 in which the monitor has 6 evidence on the merits. 7 THE COURT: Well, I 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 19 parte conversations. provided the Court tell you what. I don't know how else to deal with this. I know that years and years ago, when I believe there was an Arkansas Democrat reporter. that right. was it remember I was all had had some major Democrat reporter? IS MS . MARSHALL: Business. THE COURT: It I thought it Anyway, office, wanted of me is some then a Democrat reporter? laid up from surgery. surgery. Was it a I I I believe it was Arkansas was Arkansas Business? was the Arkansas Democrat. reporter went to Ms. Marshall's it was Ms. Brown's office, and to see all her records. And my direction to her was show him all your records. to you or you privileged. I but any communications from to me, don't show him. look upon her just as I PETRE'S STENOGRAPH SERVICE (501) 376-1411 That1 would a law clerk, in 2 3 4 5 6 7 8 9 10 20 terms of the privilege of the communication. But if she had anything else, you know, to show that reporter, show him. ever came of it. And nothing She showed him the whole. you know, all of her files and everything else. And you know, I would tell her the same thing. tell you the same thing, the Democrat Gazette is here. look at whatever she has. She has been very thorough in her 11 reports. 12 Usually when an issue is before the 13 14 15 16 17 18 19 20 21 Court, it is something that she has investigated and reported. and we have an opportunity for you to object and all. am and I not intending to rely on her for that. am going to place the burden on Joshua. so. if you want to depose her. right with me. Now, Ms . And that's all I think Mr. Jones is not here, but Powell is. I think you wanted to depose I 22 Gene Jones, Marjie Powell, and Ann Marshall, 23 is that right? 24 25 MR. HELLER: THE COURT: Yes, Your Honor. And that is fine with me. PETRE'S STENOGRAPH SERVICE (501) 376-14111 2 3 4 5 6 7 8 21 If they might be witnesses, I will certainly permit you to depose them. MR. HELLER: Let me just say, Your Honor, the Court's description of the monitor. as similar to your law clerk. we think is exactly correct. And I think the case law IS clear that a law clerk can never be deposed and can never be a witness. in a 10 11 case before the THE COURT: correct, except Court. Well, that is absolutely in this case. The Eighth 9 12 Circuit has told me to appoint a monitor. I 13 14 did, that . and the Eighth Circuit directed me to do And I will recite into the record now 15 all the times that Ann Marshall and someone 16 in her office has testified in this matter. 17 The record will reflect that on January 18 19 21, 1992, and on June 30, testified. Also, Ms. 1998 Ms. Marshall Guldin testified on 20 January 23rd, 1992, May 29, 1992, March 19, 21 1993, April 19, 1993 and January 27, 1994. 22 23 24 Bill Mooney testified June 23, August 11, 1995 . December 18, 1995 and Bob Morgan testified 1991 and June 23rd, 1995. 25 Marjie Powell testified March 19, ' 93 , PETRE'S STENOGRAPH SERVICE (501) 376-14111 2 3 4 5 6 22 April 19, '93, November 17, '93, January 26, ' 94 and June 3 0, Horace Smith testified January 22nd, '92, March 19, '93, April 19, '93, and November 17, Connie Hickman Tanner, testified April 19, '93, June 6, ' 93 ' 98 . ' 93 . and January 27, '94. 7 Again, anything that I frankly don't 8 even know whether Ms. Marshall has any 9 personal knowledge about the issues that are 10 before the Court today. If she does, she may 11 testify about them. 12 And I know that this case is unusual, 13 14 but I've received her testimony before. have received it and I I've received stuff from 15 her before that was very favorable to the 16 District, and in fact you have been released 17 from some of our supervision based on her 18 - that was based on her reports to this 19 Court. And I don't know how her testimony 20 differs from her monitoring reports in terms 21 of its evidentiary value. 22 And you know, the Court has considered 23 evidence when it went in favor of the 24 25 District, some Intervenors. even against the Joshua So, this is the way I have PETRE'S STENOGRAPH SERVICE (501) 376-141123 1 handled it in the past, but I can assure you 2 I will decide any motion before the Court 3 solely on the record, not on conversations 4 that I have with my law clerk or with her. 5 or with Ms. Marshall that is. 6 I don't know how else to handle it. 7 If it need be. the Eighth Circuit I am sure. can 8 give me guidance with respect to the 9 procedures I should follow. 10 I have always tried to stay on the record with the parties. 11 and I will continue to do that. I don't have 12 ex parte conversations with the parties, but 13 I do with the monitor. 14 And so, my ruling is you may take the 15 16 depositions. Mr. Walker, are you available for deposition - I mean. are you available. 17 if they want to depose Ms. Marshall? 18 MR. WALKER: Yes, I am. I am available 19 tomorrow. 20 21 THE COURT: MR. WALKER: All right. Anyway I had understood that that 22 was the date that Mr. Heller wanted to take 23 24 her deposition. Your Honor, Your Honor, this I think. what Mr. Heller is really saying. 25 if you look at the last paragraph, the next PETRE'S STENOGRAPH SERVICE (501) 376-141124 1 to last paragraph of Mr. Heller's motion, he 2 is really asking the Court to recuse. 3 And his statement to the Court indicated that by 4 analogy to a law clerk, that that was the 5 Court's general view. he picked up on that. 6 I think that he should be man enough on 7 the record to reflect that he is really 8 asking the Court to recuse. And that way we 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 can address that issue. I don't think that we are here on the depositions tomorrow, they are to be taken. to afford him an if opportunity to inquire outside of the facts of this case about various things that are unrelated to this motion into the relationship of the monitor. THE COURT: I just said that any evidence that Ann Marshall has given me about the motions before the Court, which are your objections to the discipline and the evaluations, you know, she can give to him. MR. WALKER: THE COURT: Well, Your Honor I have your evidence, which is before the Court, but I don't anticipate receiving any, you know, I don't - I call Ms. Marshall, as sometimes a witness when I have 9 PETRE'S STENOGRAPH SERVICE (501) 376-141125 1 an issue, or call one of her monitors, and I 2 didn't anticipate calling them in this 3 matter. I frankly did not. 4 And sometimes I ask her for evidence and 5 documents and what have you before a hearing. 6 and I didn't, because I am counting on 7 because Mr. Walker has the burden of 8 proof. I can't make it clearer than that. 9 And it is up to Mr. Walker whether he wants 10 to call her. 11 MR. WALKER: Your Honor, my only concern 12 13 14 15 16 17 18 is that Mr. Heller not be in a position where tomorrow, anyway. he asks about the various communications and conversations that Ms. Brown or any of her staff have had directly with you. THE COURT: all the time. Well, I think we we talk You know, we get on the 19 telephone, and we talk a lot about this case. 20 21 22 about her monitoring activities. know, all of that is privileged. is privileged. And so, you All of that 23 But to the extent that she has provided 24 25 me with evidence about your case. her to show it to you. I direct because I don't PETRE'S STENOGRAPH SERVICE (501) 376-14111 2 3 4 26 remember what it was. Maybe she has given me something, and I don't remember it. MR. WALKER: That's fine, Your Honor. THE COURT: And I don't intend to rely 5 on anything she says or any opinion she has. 6 because I have always said it is up to 7 Joshua, you know, the compliance report was 8 filed as scheduled. and the Little Rock 9 School District at that point was 10 presumptively in compliance until someone 11 carries the burden of proof, to show that 12 they are not. 13 14 Mr. Walker filed his objections. now we are in the midst of whether and so of 15 finding whether his objections are well 16 taken. And all of this. pursuing Ms. 17 Marshall or the Court or anything like that. 18 trying to point the finger at me, when you 19 should be trying to determine whether, in 20 21 fact, you have evidence to support your compliance statement of March 15, 2001, 22 particularly with respect to those two 23 areas. That is what I am going to be looking 24 at . 25 And I anticipate that you will have PETRE'S STENOGRAPH SERVICE (501) 376-14111 27 evidence to show me that what you presented 2 3 4 5 is accurate, as I said earlier. Are there any other issues? MR. HELLER: No, Your Honor. MR. WALKER: No, Your Honor. 6 COUNSEL: (Indicated no or no response.) 7 THE COURT: If you want to take her 8 deposition or the deposition of Ms. Powell, 9 that is fine. Mr. Jones is out of town. she 10 tells me. 11 MS. MARSHALL: He is out of the state. 12 Your Honor. 13 14 15 16 17 18 19 20 21 22 THE COURT: All right. MS. MARSHALL: can be located. THE COURT: MR. WALKER: I have no idea where he Okay. Your Honor, we will not impose an objection for us taking Mr. Jones' deposition after Court on Monday, if they want to do that, that's the 19th. THE COURT: All right. And keep in mind. this is not I am not going to 23 receive testimony in this hearing from a 24 monitor on that monitor's opinion on unitary 25 status . That is improper. and I would not do PETRE'S STENOGRAPH SERVICE (501) 376-141110 11 12 13 14 28 that. That is up to me to decide. I don't receive opinions like that, that is strictly a judicial determination. And keep in mind the monitors are not lawyers. And I am not even sure the extent to which the monitors are aware of what is going on in other courts, because their job is just to determine compliance with your plans, plural. And that is what they do, they just try to find out whether you are doing what you had promised to do in your Consent Decrees. And unitary status is something entirely different. And I am very aware of that, and 1 2 3 4 5 6 7 8 9 15 I know that is why I am paid, although 16 nothing extra. I might add. 17 Anything else? 18 19 20 21 MR. HELLER: THE COURT: MR. WALKER: (THEREUPON, No, Your Honor. All right. No, Your Honor. at 3:00 p.m., the taking of 22 the above-entitled hearing was concluded.) 23 - -o- - 24 25 PETRE'S STENOGRAPH SERVICE (501) 376-141129 CERTIFICATE STATE OF ARKANSAS SS . : COUNTY OF HEMPSTEAD ) ) ) I, Waunzelle P. Petre, Certified Court Reporter and notary public in and for the County of Hempstead, State of Arkansas, do hereby certify that the foregoing is a full. true and correct transcript of the proceedings had in the entitled and numbered cause on the date hereinabove set forth. The said proceedings were reduced to typewritten form by me or under my supervision and the same fully. truly and correctly reflects the proceedings had. WHEREFORE, I have subscribed my signature and affixed my notarial seal as such notary public at the City of Hope, County of Hempstead, State of Arkansas, this 15th day of November 2001. K iQiuui JU TV T TXT rz rn T T n WAUNZELLE IE . PETRE, CCR NOTARY PUBLIC IN ANIX-.FOR SGUNTYT^ ARKANSAS HEMPS TE, LS CERT ICATE #119 i I I My Commission Expires: . December 19, 2009 . , PETRE'S STENOGRAPH SERVICE (501) 376-1411Page 1 1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT PLAINTIFF VS. CASE NO. 4:82CV00866SWW 6 7 PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL DEFENDANTS 8 9 10 MRS. LORENE JOSHUA, ET AL RECEIVED INTERVENORS KATHERINE KNIGHT, ET AL NOV 1 6 2001 INTERVENORS 11 12 13 UfriCt Or OeSEGREGATiON MOWTOflINQ k k k k k k Jr Jr k * k k * * * * * * * -k * * 14 ORAL DEPOSITION OF ANN MARSHALL 15 (Taken November 14, 2001) 16 k k k k Jr k k k k k k k k k k k k k k k k k k k k k Jr k 17 18 APPEARTVNCES: 19 20 21 22 On Behalf of the Plaintiff MR. CHRIS HELLER and MR. CLAY FENDLEY Friday, Eldredge & Clark 400 West Capitol, Suite 2000 Little Rock, Arkansas 23 24 25 I? EXHiBIT 1 2 3 On Behalf of North Little Rock School District MR. J. ALLEN CARNEY Jack, Lyon & Jones 425 West Capitol, Suite 3400 Little Rock, Arkansas 72201 Page 2 4 5 6 7 8 9 On Behalf of Intervenors Mrs. Lorene Joshua, et al MR. JOHN WALKER Attorney at Law 1723 Broadway Street Little Rock, Arkansas 72201 ALSO PRESENT: JOY SPRINGER, TAMMY DOWNS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 to 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 4 ANSWERS AND DEPOSITION OF ANN MARSHALL, a witness produced at the request of the Plaintiff, taken in the above-styled and numbered cause on Wednesday, the 14th day of November, 2001, before Jerry R. Lawson, CCR, a Notary Public in and for Jefferson County, Arkansas, commencing at 2:40 p.m., at the offices of Friday, Eldredge & Clark, 400 West Capitol, Suite 2000, Little Rock Arkansas 72201, pursuant to the agreement hereinafter set forth. STIPULATIONS IT IS STIPULATED AND AGREED BY and between the parties through their respective counsel that the deposition of ANN MARSHALL may be taken for any and all purposes according to the Federal Rules of Civil Procedure. Page 3 Page 5 1 2 3 4 5 6 1 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 INDEX TOPIC Stipulations PAGE 4 Witness Sworn In: Ann Marshall Examination by Mr. Heller Examination by Mr. Walker Further Examination by Mr. Heller Further Examination by Reporter's Certificate Mr. Walker 5 5 118 125 129 133 EXHIBITS Exhibit 1 Exhibit 2 Exhibit 3 Eidiibit 4 Exhibit 5 Exhibit 6 23 23 23 24 24 80 (Exhibits Attached Following Transcript.) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PROCEEDINGS WHEREUPON, ANN MARSHALL, having been called for examination by counsel for the Plaintiff, and having first been duly sworn, was examined and testified as follows: EXAMINATION BY MR. HELLER: Q. Would you tell us your name and address, please, Ms. Marshall. A. Ann Marshall, 1 Riviera Circle, Little Rock, Arkansas. Q. Okay. And how are you employed? A. Im a desegregation monitor for Judge Susan Webber Wright. Q. Would you review for us briefly your education. A. I have an undergraduate from Hendrix College in English. I have an advanced degree in volunteer management from the Arkansas Public Administration Consortium. I'm certified in planning and training with the Institute of Cultural Affairs. I'm a certified master trainer with the National Association of Partners in Education, which is headquartered in Washington, D C. Q. Do you have any other certifications relating to 2 (Pages 2 to 5)Page 6 I 2 3 4 5 6 7 8 <) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the field of education? A. Not that are current Q, Have you previously been certified in the field of education? A Q A Q A Q Yes. What certifications did you hold? English. Okay. And you're certified to teach English? Yes. And would you review briefly your employment history. A. How long do you want me to go how far would you like for me to go back? Q. Well, let's- A. Do you want me to start now and go backwards? Q. Let's start at the beginning of the things related to education. A. I taught English and science in Forrest City from approximately 1970 to 1972. 1 moved to Little Rock and was the -- no, I'm sorry, that's incorrect. 1 was an order editor for Eaton Hoisting Equipment in Forrest City for approximately a year and a half. Then I moved to Little Rock, and 1 was the first woman employed as an epidemiologist in the field of venereal disease for the State Health Department. 1 2 3 4 5 6 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 8 Q. Prior to the time you assumed your position as the director of the Office of Desegregation Monitoring, what was your highest salary, approximately? A. 1 don't recall. Are you saying as an associate in the -- Q. Well, let's say A. Office of Metropolitan Supervisor? Q. before you went to work for the Office of the Metropolitan Supervisor, what was the highest paying job you held? A. Probably coordinator of Volunteers in Public Schools and Partners in Education. Q. And approximately what did that pay? A. I have no recollection, Chris. I could - somewhere probably in the high 4O's. I'm not sure. It's been a long time. Q. And do you recall what your beginning salary was with the Office of Metropolitan Supervisor? A. No, I don't. Q. Okay. Do you recall what your beginning salary was as director of the Office of Desegregation Monitoring? A. I believe it was ninety-eight five in that - perhaps ninety-eight. 1 don't recall exactly. But that's close. Page? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Then I joined the Little Rock School District as the coordinator of Volunteers in Public Schools. I was in that position until approximately 1984, '85, when 1 was employed by the Arkansas Department of Education as a coordinator to develop the Arkansas School Volunteer Program. I remained in that position for about a year. 1 returned to the Little Rock School District as coordinator of Volunteers in Public Schools. Also during that time, I was coordinator of Partners in Education. I was employed by Mr. Revelle as an associate monitor in the Office of Metropolitan Supervisor beginning in 1989. '88 or '89. And since that time with the conversion of the office to the Office of Desegregation Monitonng, I've been employed steadily, assuming the position of monitor in April of 1991. Q. Okay. Did you teach in Forrest City for one year or two years? A. Approximately a year and a half. Q. Okay, And which school or school district did you A. Forrest Academy. Q. teach in? A. It was Forrest Academy. It was a private school. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 9 Q. So, you've never worked as a school administrator, principal or assistant principal or anything like that? A. Ive worked as an administrator in a school district by virtue of my employment, on the administrative salary scale, in Partners in Education, but I have not been a principal or an assistant principal. Q. Have you received any training from the Arkansas Department of Education related to their new ACTAP system and benchmark exams or Smart Start or anything related to that new state curriculum standards and benchmarks? A. Training can you be a little bit more specific? Q. Well, was there any formal training that you attended to learn about the ACTAP standards or the benchmark exams? A. I think the sessions that 1 attended would be more accurately called awareness sessions. To me, there is a distinction behveen awareness and training. But 1 did attend a session that was to begin to help people understand what was coming. Q. Do you know whether or not ADE offers any formal training related to the implementation of ACTAP, the benchmark exams or the ciuriculum standards? 3 (Pages 6 to 9)Page 10 Page 12 1 2 3 4 5 (> 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Yes, they do for the for the State's teachers and administrators. Q. Has anyone in your office received such training? A. I believe that Gene Jones has attended sessions. Q. How would you describe your relationship with Judge Wright? A. She's my supervisor. Q. Do you ever see Judge Wright socially? A. As far as--well, 1 see her at lunch. We share lunch. She's in - it's her custom to take staff members to lunch for their birthdays, and I'm asked to join that. She and I attend the same church
and so we occasionally will see each other at services, although she tends to go to the early service and I tend to go to the later one. Q. Okay. Have you been to her home or has she been to your home? A, I was she's never been to my home. 1 was in her home approximately maybe eight or nine years ago. It's been a long time. Q. And has Judge Wright ever been to your offices? A. She's been to the new offices one time, to see them. And before that in our old offices when we were over at the River Market, she was also there one time, to see just to see what we've done with the space. 1 2 3 4 5 6 1 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 telling you what to do, because I'm not representing you. But I would suggest to you tliat's not within the scope of what she told Cliris that he could talk about. THE REPORTER: She told what? MR. WALKER: Chris that he could inquire into. THE REPORTER: Thank you. MR. HELLER: Well, unless I heard incorrectly A. I said "no." Q. (By Mr. Heller) Have you ever asked the judge for legal or personal advice on any matters? A. Never. Q. Have you ever made any public appearances with her or worked on any speeches for her or anything like that? A. I don't know if we are where we're supposed to be
but I certainly don't mind telling you, no. Q A. Q. A. How would you define your job? Hard. Could you give us the expanded version? Sometimes harder than others. My role is to assist the Court in monitoring the school case. Q. And how do you go about that? 1 2 3 4 5 6 1 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 11 Q. Besides your office and her chambers, what places have you been together with the judge? A. Q A. Q To lunch. Do you consider Judge Wright to be a friend? A colleague. Do you ever discuss family or personal matters with her? A. Well, I think that the judge was clear yesterday that what passes between us is privileged. So, I guess I would hesitate to go there. Q. Well, I'm not asking you what may have been said in that regard but only whether or not you and the judge have such discussions. A. In general terms. She has a school-age child and I have school-age children. So, comments in a general nature. Q. Did she discuss with you her decision about whether or not to put her child in private school? MR. WALKER: Objection - A. No. MR. WALKER: - to that. I don't think that would be a proper subject for inquiry, and I would just flag that for presentation to the judge for inquiry. And I would suggest to you I'm not 1 2 3 4 5 6 1 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 13 A. Well, a number of approaches. Primarily we monitor in three main modes. We review a number of documents that are produced by the school districts, some on a routine basis, others may be exceptional in nature. We make visits to the schools, and we - we observ'e. We look around. .And thirdly, we will talk to individuals. Sometimes those people call us, unsolicited phone calls. But those are the three primary modes by which we collect infonmation. Sometimes we will target a specific topic by virtue of perhaps a provision in the desegregation plan, an issue that has become prominent by one means or another. And then oftentimes we will make a formal written report to the Court. And, of course, you've had you've seen a number of those documents. Q. What's the purpose of assisting the Court in monitoring a school case? A. To enable the Court to fulfill MR. WALKER: Just a - A. its charge. MR. WALKER: -moment. I'm going to object to that, too. Tliat - that is something that the Court can only determine and the Court of Appeals and that's already specifically reduced to writing. 4 (Pages 10 to 13)Page 14 Page 16 1 2 3 4 5 6 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Now, if there is another purpose that Ms. Brown Marshall has identified and reduced to writing and the Court has agreed on and it's pretty clear, then I don't think that there would be any objection to her answering that. But other than that, I think that that's a question properly a question more properly directed to the Court. Q. (By Mr. Heller) Let me tell you this, Ms. Brown, since I believe that before we went on the record - I'm sorry, Ms. Marshall -- before we went on the record, you said you had not been deposed before, correct? A. I don't ever remember having been deposed. Q. Okay. Well, the way this works is Mr. Walker can make objections for the record, but you will still be required to answer the question unless you personally decide not to. But he's not your lawyer. MR. WALKER: That's right. A. I understand that. Q. (By Mr. Heller) 1 suppose he can advise you not to answer a question, but it's up to us whether or not to do that, so -- A. Well, 1 really don't -- MR. WALKER: Ms. Marshall - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 had -- I'm that's been so long. But I started to say I think that it was perhaps based on that of the Metropolitan Supervisor, but I don't have direct knowledge of that. Q. Okay. Do you know so, are you saying that this job description you're referring to was in existence when you assumed the office? A. No, not the same job description. It was certainly modified after the Eighth Circuit's ruling, and and 1 don't have any direct knowledge. Q. Okay. How is your job described in that document? A. I haven't looked at it in years, and I didn't review it for today. I didn't anticipate that question. (5. Is it a document that Judge Wright has approved in any way, to your knowledge? A. As far as I know, it's it came from her office. Q. Have you ever discussed your job description with Judge Wright? A. Q A. Q Years ago when 1 was hired, yes. Has your job description changed over the years? You mean the written document? Well, first the written document, has that when Page 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. know the protocol. MR. WALKER: --1 would --1 would ask on that kind of question you recess the deposition to let the Court answer that question or be directed, because you're not represented by counsel. But you have to of course, like he says, you have to exercise your own choice. A. 1 do know that the judge is available should we need a ruling
but candidly, this is a new procedure for me and I don't understand the - I don't know the protocol. Q. (By Mr. Heller) Well, my only question is that you described your job as assisting the Court in monitoring the school case
and my question is: To what end? What's the -- what's the purpose of that work? A. In order to supply information to the parties and to the Court that can be helpful, particularly in promoting compliance with the commitments that the parties have made. Q. Okay. Do you have a written job description? A. Q. A. Ido. Where did that come from? 1 believe that it was a modification of what 1 2 3 4 5 6 1 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 17 is the last time the written document was changed'.^ A. I don't know that it has changed. Q. Has it changed in die last five years, to your knowledge? A. I don't believe so. Q. Do you ever have discussions with Judge Wright about exactly what your job is and what you're trying to accomplish? A. Well, certainly we'd discuss what it is that my job is. She is my supervisor, and 1 report to her. Q. Well, can you relate any discussions you've had about what your job is with Judge Wright? A. No. I guess perhaps I don't understand your question. I'm not trying to be coy. I'm just trying to understand what you're saying. Q. Well, I'm trying to understand what the understanding is between you and Judge Wright about what your job is. And if it's accurately described in a written job description, if you can tell me about that
or if it's not, you can tell me about whatever discussions you've had with the judge. A. I believe that it's correctly embodied in the job description. And I don't have that with me, but it's something that's available. Q. Well, is there anything that you recall about it 5 (Pages 14 to 17)1 Page 18 or can relate now about the understanding between you 2 with Judge Wright about what your job is? 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. WALKER
Well, let me say one other thing. As I understand it, this is about to get information in preparation for the hearing on Monday. It is not to deal with the question of disqualification, since Mr. Heller was not ambitious enough, if if courageous enough to make a motion to recuse the Court. So, 1 ask, Ms. Brown, that you limit your questions or - or that you call the judge to see whether your questions should be limited to matters that relate to the evidentiary hearing that is set for the 19th and the 20th. If he wishes to challenge the Court and her authority based on her personal relationship with you or anjlJiing else, he'll have ample time beyond the time to prepare that we are supposed to be spending getting prepared for this hearing on Monday. MR. HELLER: Well, if you'll read the deposition subpoena, it's limited to matters concerning Ms. Brown's relationship to the Page 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 disqualify the Court. MR. HELLER
You are not required to sit here. MR. WALKER: So, I suggest that we recess the hearing and call the judge. I suggest we do that. MR. HELLER: There's no reason to. MR. WALKER: Ms. Brown, do you mind Ms. Marshall, do you mind doing that? THE WITNESS: Well, actually considering what I've just told you, this varies considerably from what I had been given to understand by you yesterday. So, perhaps that will be best thing to do. MR. WALKER
The deposition notice says one thing and what Mr. Heller said in court is another thing, and they both have to be taken together. And the Court MR. HELLER: You're absolutely incorrect. I pointed out to the Court that you were wrong when you suggested that I wanted to take these depositions about what their testimony might be. I pointed out in court -- and it will show up in the transcript -- that we specifically asked to Page 19 Page 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Court, not what her testimony might be on Monday. And that's what we intend to pursue. A. From our conversations jesterday, Chris, what I understood you intended to ask me was about documents that 1 had shared with the Court, which I've prepared. Any other area, I have not reviewed. Q. (By Mr. Heller) Okay. Well, I -- and I understand that, and I'm just asking you for as much as you can remember about these issues. And we're certainly going to talk about the documents, but our purpose is to talk about the communications generally and the relationship generally behveen your office and Judge Wright. MR. WALKER: Well, let us - I would like to suggest that we recess the hearing and call the judge. My understand is that we weren't to be wasting time on matters that the Court is not going to be addressing at this hearing. Even though she said you could depose her, I don't tliink I want to be sitting in a room listening to you take the time that we're supposed to be spending preparing for trial on the 19th and 20th, trying to for you to find ways to try to 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 take these depositions concerning the communications between the Court and the monitor's office. MR. WALKER: Well, that's concerning the hearing on Monday
and she said very clearly on the issues that are before the Court on on Monday and Tuesday, she can only Ms. Brown's -- or Ms. Marshall's testimony can only relate to the issues that she told us both that we could present. THE WITNESS: Well, I'm happy to share what documents I found, Chris
but my understanding was that that was the thrust of your inquiry. And since I don't I'm not represented by any counsel and I'm not eager to be in the middle of a disagreement between you hvo, maybe the best thing would be to call Judge Wright. MR. HELLER: Well, let's -- before we do that, let's at least take a look at the documents that you've brought with you in response to the deposition subpoena. ,. Two that I've sent to the Court and these A. actually went to Julie, and I sent those today and they were the conununication that -- thank you, Tammy -- 1 6 (Pages 18 to 21)1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 22 got from you. saying that the documents still weren't ready, so I informed Julie. Whether those were shared with the judge. I truly do not know. But I did send them to the Court, because we're responsible for organizing the documents and I can't get my work done without them, so I notified my boss. In July, Chris, you sent me a letter, which you copied to the parties
and I shared that with the Court. MR. FENDLEY: Do you want to mark these separately? MR. HELLER: No, I want to take a look at them first. A. And I shared with the Court the response that I sent to you, Chris, with the errors that we had discovered in the compliance report. That, of course, also went to all counsel and to Dr. James
and I notified her that we had, by means of a - of a copy of this letter, that we had shared this information with you-all. And then on the 23rd of July, which is the same day, I sent a letter to Dr. James, which I didn't copy to anybody
but 1 did ultimately share that with the Court, because 1 was very frustrated in my monitoring by not being able to procure 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Page 24 (Marshall Exhibit No. 4 was marked for identification.) MR. HELLER: And the July 23rd letter to Dr. Ken James from Arm Marshall will be No. 5. (Marshall Exhibit No. 5 was marked for identification.) (By Mr. Heller) Are those all the documents that you've brought here in response A. Yes. Q. to our request? A. Yes. Q. Have you ever provided any other written document to the Court that hasn't been provided to the parties? A. This is it. When you say "ever," within the last recent time
but I have - I can recall nothing that has been shared with the Court that has not been shared with you-all and ultimately been a part of the record at no time. That's not my -- that's not the way I work. Q. Insofar as you can recall, these are the only written documents that you've provided the Court in the last several years
is that fair to say? A. Yes, other than what's been public. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 23 THE WITNESS: And I dont know if you need these or not, Jerry. MR. HELLER: Well. let's go ahead and mark these as exhibits to the deposition in the order in which youve provided them, starting with let's make No. 1 the Q. (By Mr. Heller) Is this the first one, the one with the the longer of the two? A. Yes, that's the first one. Q. Okay. MR. HELLER: Let's make this first E-mail document Exhibit 1. (Marshall Exhibit No. 1 was marked for identification.) MR. HELLER: The second one will be E?diibit 2. (Marshall Exhibit No. 2 was marked for identification.) MR. HELLER: Then the letter to Ann Marshall, dated July 16, 2001, will be No. 3. (Marshall E.xhibit No. 3 was marked for identification.) MR. HELLER: Tlie response from Ann Marshall, dated July 23rd, 2001, will be No. 4. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 25 Q. What do you mean by "what's been public"? A. Just exactly what I said a minute ago. that either I have reported to the Court in a published report or its been part of the record. Q. What work is it that you're trying to get done that you need our exhibits to do? A. Because we are the repository for many court records and and actually 1 think that's really a matter of space. But we are very organized, and we organize the library. And so, documents that might accumulate in the Court's chambers are sent to us. When we received the voluminous number of documents for the summer hearings, you-all delivered them to us and then we organized them for the Court. As a matter of fact, they are very unwieldy, and I'm sure you can appreciate that, because it was so many papers. You know, we've even joked about the the time that I measured them and it was ox er 7 feet. Its now over 9 feet. But we organized them into notebooks so that they would be readily accessible for the Court and for you-all, too. As a matter of fact, Polly said - she suggested that you might want to organize them in notebooks rather than just individual documents. And so. to finish that job. to expedite the proceedings and 1 (Pages 22 to 25)Page 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 hopefully make it easier on all of us, we're trying to organize them. And that's why we didn't have this proceeding over there, because our table is full of documents that we're trying to get organized, so we know what we have. And, for example, you've given a list of exhibits
and we're comparing that list with the documents that we have to find out what might be missing. Q. And what do you do once you've made your review- of those documents? Do you have any communication with the Court about the documents? A. We they've been organized
and they're all there, or if documents are missing I'm not saying they're not at this time, I don't know that we have documents missing. Just to let them know that they're in an organized order and we have them there with our little trolleys and boxes. Q. Do you have a routine that you follow to prepare for hearings in this case in your office? A. A general routine. It may vary from hearing to hearing. This hearing we've had little to do, because the burden of proof has been on Mr. Walker. Q. Do you usually meet with the judge before any hearing in this case? A. Sometimes. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 28 upon me to let my supervisor know that I am about my work. Q, Have you ever said to anyone that part of your job is to help the judge, quote, "prepare," closed quote, for court? A. I may have. Q. Well, do you understand that to be part of your job? A. That's what I do as part of my job when I can, like organizing documents. But I --1 don't have any legal training
and so, legal matters are beyond my ken. Q. Well, I'm certainly not talking about legal matters
but my question is whether or not you have discussions with the judge concerning factual matters before or during any of the hearings in this case. MR. WALKER: Just a moment. I think that's another one of those questions that you should ask the judge. A. I think that's a little afield. I don't discuss MR. WALKER: Well, let me say this. From time to time, the judge has said on the record when I've asked if Ms. Brown should to give me this or give me that, to check the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 27 Q. It seems like you always enter the courtroom from the chambers. Is that part of the routine that you at least have some visit with the Court before the A. Pleasantries. Q. hearings? A. To be she is my boss
and so, 1 always want to be polite and speak. But many times there's absolutely nothing that passes between us about the proceedings. You know, it's, "Hi, how's your job?" Q. Have there been times when you have had substantive discussions about the issues with Judge Wright before a hearing? A. Q A. Q We've discussed monitoring issues many times. What do you mean by "monitoring issues"? The substance of my monitoring. That's my job. Do you mean that you've discussed the findings you've made during the course of your work? A. Those are published
and once they've been published, yes. 1 mean, there are certainly times that - that - 1 mean, the best e.xample that 1 can give you right now was being Ihistrated and not being able to get the evaluation documents from Little Rock, communicating that to the judge in the form of a copy of the letter that 1 have written, and just to keep her posted about my efforts. 1 think it is incumbent 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 29 record or do this or that. So, I think that that's the kind of thing that you should ask the judge. And she said that in public court. A. And, you know, that's routine is that type of thing. Nothing that's -- that's not part of how it is that we evolve on business together. Q. (By Mr. Heller) Do you recall the hearing held May 4 of this year concerning Pulaski County's plan for implementation at middle schools? A. There was a hearing, yes. Q. One of the first things that happened at that hearing was that Judge Wright talked to Sam Jones about
a chart that she intended to put in the record. Do you recall that discussion? A. I'm sorry, can you refresh my memory? Q. Okay. I'll read to you from page 9 of the transcript. "The Office of Desegregation Monitoring has reviewed the materials, and so have 1, but not as carefully, of course, as ODM. But they have met with me
and so, 1 am now prepared to hear any evidence that you have in support of your motion. Before I do that, though, I want to share with you and I don't know whether Ms. Marshall has shared with you - some charts that her office has prepared with respect to this." 8 (Pages 26 to 29)Page 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q A. was. Does that help you remember - Yes. what we were talking about? And 1 but 1 don't even remember what the chart Q. Okay. A. But that -- that was entered into the record. Q. All right. And my question is: What discussion about the case preceded the hearing that would allow Judge Wright to have a document at the very start of the hearing that she intended to introduce into evidence? MR. WALKER: 1 believe that's the kind of question that you would have to ask the judge. Ms. Bro^vn, I'd ask that you call the judge, because he's now just asking about the judge's conduct not yours. So, I would suggest that we interrupt this hearing and call Judge Wright. And I think the questions should be flagged, the last series of questions for sure, and any others that you have. Q. (By Mr. Heller) Would you be more comfortable if we did that, Ms. Brown, rather than proceed along these 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 32 with Clay Pendley, Allen Carney, Tammy Downs, Joy Springer, John Walker, Ann Marshall and our court reporter. THE COURT: Can 1 put you on a speakerphone, because Julie, the law clerk, is in here. MR. HELLER: Sure. THE COURT: Just a second. All right. MR. HELLER: Your Honor, we've had an issue raised by Mr. Walker and Ms. Marshall seems to be concerned as well -- about the scope of the deposition. So, we thought it would be time to seek some clarification from you. 1 am asking about matters related to ODM's communications with the Court and was asking some particular questions about communications in your chambers related to the subject matter of the various hearings that have been held in this case. Mr. Walker says those are things 1 should not be able to inquire into. I've said that 1 thought I'd explained to everyone that the purpose of the deposition was to explore those types of things, rather than issues related to what Page 31 Page 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 lines? A. As I said, 1 don't want to be in the middle of your disagreement. So, perhaps that would be the best course. Q. I don't you know, I don't want to go beyond what the judge has authorized us to do here. I understood the purpose of the deposition was to allow us to explore issues related to communications you've had with the judge. The judge said something yesterday about privileges. Mr. Walker seems to think this deposition is limited in ways that I don't think it is or should be limited. So, maybe the best thing to do is -- A. Yes, as a matter -- Q. to discuss it with Judge Wright. A. of clarification, I think that that would be the best course. MR. HELLER: I'll put it on the speakerphone so that you can transcribe it. (Short recess was taken.) (The following teleconference with Judge Wright was had, to wit:) THE COURT: Hello. MR. HELLER: Hello, Judge Wright. This is Chris Heller and you are on a speakerphone 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Ms. Browns testimony might be. So, that's our standoff at this point. THE COURT: Yesterday 1 told you that Ms. Marshall and 1 talk a lot about her monitoring, about her activities
and so, 1 think that for the record you're trying to make, for the purposes you're trying to make it, my acknowledgment of that would be sufficient. Again, 1 regard her as an employee who is assisting me in my task of monitoring the compliance that the consent decrees. I'm charged with monitoring and she's charged with helping me do it. MR. HELLER: Well - THE COURT: 1 will acknowledge that, in fact, we talk about the about the school case a lot. We have -- she does have conversations with me, and you call them ex parte. 1 look upon it the same way 1 do if 1 talk to a probation officer who works for the Court before I sentence someone or I talk to a law clerk before 1 sign an order. And so, to me that is the hpe of relationship 1 have with her, although in her 9 (Pages 30 to 33)Page 34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 case 1 talk about her monitoring activities. I'm not going to permit you, in essence, that we have conversations outside the hearing of the parties. MR. HELLER: Well, we're trying to determine. Your Honor -- and maybe this is within the scope of what the Court's acknowledging - but we're trying to determine whether the conversations are about things like the budget and the staff or whether they touch on the merits of the issues before the Court. And that's the reason - THE COURT: Well, to the extent that they're and not just pure questions of law. I mean, 1 don't -1 don't talk about questions pure questions of law to her, but 1 do talk about her monitoring activities. But that's all I'm going to say, and that's all that she needs to say. I mean, we talk on an ongoing basis about what she's monitoring, what she might do next, areas of concern and that sort of thing. We talk about her budget, her staff, all of those things. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 36 have. And while it may later be appropriate, we're preparing for the proceeding on Monday and Tuesday. And if he wants to file a motion with respect to the impropriety of her working for you or her talking to you or anything like that or you're continuing on the case, that ought to be direct instead of indirect as it is appearing - appearing here to be. THE COURT: And 1 think that he's trying to make a record, and I think that my my statement is - you know, if it's something that he wants a record he can use. And I, of course, try to try to be fair to the parties, and I direct her to try to be fair to the parties. MR. HELLER: Well, if there aren't any other issues at the moment. Your Honor, we'll continue the deposition. THE WITNESS: May I ask a question? MR. HELLER: Yes. Just one moment. Ann Marshall wo
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