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Gonzalez V. Douglas Trial Transcript of Proceedings, Day 2

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Gonzalez V. Douglas Trial Transcript of Proceedings, Day 2 Seattle University School of Law Seattle University School of Law Digital Commons Fred T. Korematsu Center for Law and Equality Centers, Programs, and Events 6-27-2017 Gonzalez v. Douglas Trial Transcript of Proceedings, Day 2 Steven A. Reiss Weil Gotshal & Manges LLP Luna N. Barrington Weil Gotshal & Manges LLP David Fitzmaurice Weil Gotshal & Manges LLP Richard M. Martinez Law Office of Richard M. Martinez Robert Chang Fred T. Korematsu Center for Law & Equality James W. Quinn JW Quinn ADR, LLC Follow this and additional works at: https://digitalcommons.law.seattleu.edu/korematsu_center Part of the Civil Rights and Discrimination Commons Recommended Citation Reiss, Steven A.; Barrington, Luna N.; Fitzmaurice, David; Martinez, Richard M.; Chang, Robert; and Quinn, James W., "Gonzalez v. Douglas Trial Transcript of Proceedings, Day 2" (2017). Fred T. Korematsu Center for Law and Equality. 77. https://digitalcommons.law.seattleu.edu/korematsu_center/77 This Report is brought to you for free and open access by the Centers, Programs, and Events at Seattle University School of Law Digital Commons. It has been accepted for inclusion in Fred T. Korematsu Center for Law and Equality by an authorized administrator of Seattle University School of Law Digital Commons. For more information, please contact [email protected]. 1 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE DISTRICT OF ARIZONA 3 NOAH GONZÁLEZ; JESÚS ) Case No. 4:10-cv-00623-AWT GONZÁLEZ, his father and ) 4 next friend, et al., ) ) 5 Plaintiffs, ) ) Tucson, Arizona 6 vs. ) June 27, 2017 ) 9:07 a.m. 7 DIANE DOUGLAS, ) Superintendent of Public ) 8 Instruction, in her ) Official Capacity; et ) 9 al., ) ) 10 Defendants. ) ____________________________ ) 11 12 13 Before the Honorable A. Wallace Tashima 14 15 Transcript of Proceedings 16 Bench Trial Day 2 17 18 Proceedings reported and transcript prepared by: 19 A. Tracy Jamieson, RDR, CRR 20 Federal Official Court Reporter Evo A. DeConcini U.S. Courthouse 21 405 West Congress, Suite 1500 Tucson, Arizona 85701 22 (520)205-4266 23 Proceedings reported by stenographic machine shorthand; transcript prepared using court reporting software. 24 25 UNITED STATES DISTRICT COURT 2 1 APPEARANCES 2 On Behalf of the Plaintiffs: 3 Weil, Gotshal & Manges, LLP STEVEN A. REISS, ESQ. 4 DAVID FITZMAURICE, ESQ. LUNA N. BARRINGTON, ESQ. 5 767 Fifth Avenue New York, NY 10153-0119 6 (212) 310-8000 7 Law Office of Richard M. Martinez 8 RICHARD M. MARTINEZ P.O. Box 43250 9 Tucson, AZ 85733-3250 (520) 609-6352 10 11 JW Quinn ADR, LLC JAMES W. QUINN, ESQ. 12 120 W. 45th Street, 38th Floor New York, NY 10036 13 (646) 766-0073 14 Seattle University School of Law Ronald A. Peterson Clinic 15 Robert S. Chang, Esq. 1215 E. Columbia St., Law Annex 16 Seattle, Washington 98122-4130 (206) 398-4025 17 18 On Behalf of Defendants: 19 Office of the Attorney General Leslie Kyman Cooper, Assistant Attorney General 20 1275 W. Washington Street Phoenix, AZ 85007-2997 21 (602) 542-8349 22 Ellman & Weinzweig, LLC Robert Ellman, Esq. 23 330 E. Thomas Road Phoenix, AZ 85012 24 (480) 630-6490 25 UNITED STATES DISTRICT COURT 3 1 INDEX OF EXAMINATIONS 2 3 WITNESSES: PAGE 4 JOHN HUPPENTHAL 5 Direct Examination By Mr. Reiss (Resumed) 33 6 Cross-Examination By Ms. Cooper 106 7 INDEX OF EXHIBITS 8 9 No. Page 10 118 90 11 155 118 12 229 88 13 14 15 16 17 18 19 20 21 22 23 24 25 UNITED STATES DISTRICT COURT 4 1 P R O C E E D I N G S 2 (Proceedings commenced at 9:07 a.m. as follows:) 3 THE COURT: Good morning. All be seated. The first 4 order of business today before we get back to our witness, 5 Mr. Huppenthal, I am going to rule on these, I think the two 6 pending motions, and I don't think it should delay it further 7 because obviously they could affect the further examination of 8 this and other witnesses. 9 So I wasn't going to allow any argument. I think one 10 side or other requested argument, but the two motions pending 11 are the plaintiffs' motion to amend the pretrial order and the 12 defendants' request to take judicial notice. So if you want 13 to, I'll give each side up to, I'd say, what, 10 minutes to 14 argue either or both motions. Either side want to argue, add 15 anything to their papers on this? 16 MR. REISS: Your Honor, with respect to the state's 17 request to take judicial notice, we have no objection. 18 THE COURT: No objection? 19 MR. REISS: No objection. 20 THE COURT: Let me see what my -- okay. Then if it's 21 not objected, the defendants' request to take judicial notice 22 and the documents are listed in the request, and I think they 23 all have to do with documents concerning the Tucson School 24 District, the Board and actions of the Board. Plus, an order 25 from the Fisher case, which is pending in this Court, in this UNITED STATES DISTRICT COURT 5 1 very courtroom. So that motion is granted without opposition. 2 What remains is the defendants' request -- excuse 3 me -- the plaintiffs' motion to amend the pretrial order. 4 Anybody want to speak to that? 5 MR. REISS: Mr. Fitzmaurice will do that, with the 6 Court's permission. 7 THE COURT: That's fine. 8 MR. REISS: Thank you, Your Honor. 9 MR. FITZMAURICE: Good morning, Your Honor. 10 THE COURT: Good morning. 11 MR. FITZMAURICE: So as you noted, there's an 12 outstanding motion for plaintiffs to amend the joint pretrial 13 order, which was submitted several weeks ago. There are two 14 parts to this motion. 15 The first part is that some of the amendments are 16 actually on consent, so the parties have met and conferred, and 17 we've agreed to drop previously contested exhibits. So we're 18 happy to prepare a stipulation to the Court to identify what 19 exact order of exhibits we no longer object to. 20 THE COURT: Are those the ones around the 189 and so 21 forth? 22 MR. FITZMAURICE: Excuse me, Your Honor? 23 THE COURT: I say are they the Exhibits 189 and 190, 24 around there, or are you speaking of something else? 25 MR. FITZMAURICE: No, they're something else, Your UNITED STATES DISTRICT COURT 6 1 Honor. They are -- the second part of the motion, that's what 2 you're going to, Your Honor, is that we -- plaintiffs have 3 added some new exhibits which defendants do not consent to. So 4 I'm more than happy to address that now. 5 Those exhibits essentially we spoke a lot about, about 6 a few of them yesterday. Some of them are legislative 7 materials. 8 THE COURT: You're talking about the material listed 9 in the defendants' request on Pages 2 and 3, right, 1 through 10 8? Those are all, you could say, legislative materials, school 11 board materials. 12 MR. FITZMAURICE: Specifically, Your Honor, I am 13 talking about Plaintiffs' Exhibits 163 to 188, and these 14 essentially are recent contemporary statutes to HB2281 that 15 then Senator Huppenthal voted in favor of, specifically, 16 SB10 -- 17 THE COURT: I'm sorry, 163 to what? 18 MR. FITZMAURICE: Plaintiffs' Exhibits 163 to 188. 19 And these exhibits are both the official records of the 20 legislation themselves -- 21 THE COURT: These are the ones all relating to 22 legislative bills, right? 23 MR. FITZMAURICE: Yes. 24 THE COURT: To which either Mr. Huppenthal, well, 25 maybe was not the sponsor of, but voted -- UNITED STATES DISTRICT COURT 7 1 MR. FITZMAURICE: Voted in favor of, yes. So, Your 2 Honor, you're right. They're both the official versions of the 3 bills themselves and then Senator Huppenthal's voting record. 4 THE COURT: Now, what's the showing of -- you know, 5 you have to make, under the rule, to -- never mind the 6 substance of what's in the bills and so forth, what's your 7 excuse for getting at these so late? 8 MR. FITZMAURICE: Well, Your Honor, these are -- 9 THE COURT: One week before trial. 10 MR. FITZMAURICE: Well, Your Honor, these are 11 legislative materials, so these are judicial -- 12 THE COURT: They've been available, I assume, publicly 13 ever since the legislative sessions, right? 14 MR. FITZMAURICE: Precisely, which is why, Your Honor, 15 they're judicially noticeable under Rule 201D at any time in 16 the proceedings. 17 THE COURT: Well, wait a minute. You want to amend 18 the pretrial order, right? 19 MR. FITZMAURICE: Yes, Your Honor. 20 THE COURT: So the first thing is should you be able 21 to amend the pretrial order? 22 MR. FITZMAURICE: Well, Your Honor -- 23 THE COURT: What do you have to show to amend the 24 pretrial order? What's the showing required? 25 MR. FITZMAURICE: Well, Your Honor, we have to show UNITED STATES DISTRICT COURT 8 1 that there's no manifest injustice. 2 THE COURT: Beyond that. 3 MR. FITZMAURICE: Excuse me, Your Honor? 4 THE COURT: Beyond that. 5 MR. FITZMAURICE: I mean, beyond that -- 6 THE COURT: Don't you have to show some kind of cause 7 for your delay? 8 MR. FITZMAURICE: I mean -- 9 THE COURT: You don't think you have to? 10 MR. FITZMAURICE: I mean, for judicial notice, Your 11 Honor, the rule says -- 12 THE COURT: No, but this is a motion to amend the 13 pretrial order, isn't it? 14 MR.
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