Opinion
CIVIL ACTION NO. 3:00-C V-2543-D
November 29, 2000
PLAINTIFFS' APPENDIX IN SUPPORT OF THEIR APPLICATION FOR PRELIMINARY INJUNCTION
James A. Jones, JONES ASSOCIATES, P.C., Dallas, TX; William K. Berenson, LAW OFFICES OF WILLIAM K. BERENSON, P.C., Fort Worth, Texas; Prof. Sanford V. Levinson, University of Texas School of Law, Austin, Texas; Charles W. McGarry, LAW OFFICE OF CHARLES McGARRY, Dallas, Texas, ATTORNEY FOR PLAINTIFFS.
APPENDICES
1. Defendant Richard B. Cheney's Response and Objections to First Combined Set of Interrogatories and Requests for Admissions to Defendant Richard B. Cheney
2. Certified Tax Appraisal Record
3. Certified Voting History Report
4. Certified Voting History Report
5. Affidavit of Ann Huebner
6. Response of Defendant Governor George W. Bush and Richard B. Cheney to the Court's Order of November 22, 2000
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION
STEPHEN B. JONES, LINDA D. LYDIA and CAROLINE FRANCO, as Texas registered voters,
Plaintiffs, v. CIVIL ACTION NO.
GEORGE W. BUSH, RICHARD B. 3:00-CV2543-D CHENEY, ERNIE ANGELO, GAYLE WEST, BETTY R. HINES, JAMES B. RANDALL, HELEN QUIRAM, HENRY W. TEICH, Jr., WILLIAM EARL JUETT, HALLY B. CLEMENTS, HOWARD PEBLEY, Jr., ADAIR MARGO, TOM F. WARD, Jr., CARMEN P. CASTILLO, CHUCK JONES, MICHAEL PADDIE, JAMES DAVIDSON WALKER, JOSEPH J. O'NEIL, III, BETSY LAKE, ROBERT J. PEDEN, JIM HAMLIN, MARY E. COWART, SUE DANIEL, JAMES R. BATSELL, LOYCE McCARTER, MICHAEL DUGAS, NEAL J. KATZ, MARY CEVERHA, CLYDE MOODY SIEBMAN, RANDALL TYE THOMAS, CRUZ G. HERNANDEZ, JOHN ABNEY CULBERSON, STAN STANART, and KEN CLARK,
Defendants.
DEFENDANT RICHARD B. CHENEY'S RESPONSE AND OBJECTIONS TO PLAINTIFFS' FIRST COMBINED SET OF INTERROGATORIES AND REQUESTS FOR ADMISSIONS TO DEFENDANT RICHARD D. CHENEYPursuant to Rules 26, 33, and 36 of the Federal Rules of Civil Procedure, and this Court's Order of November 27, 2000, Defendant Richard B. Cheney, ("Respondent") hereby responds to Plaintiffs' First Combined Set of Interrogatories and Requests for Admissions.
GENERAL OBJECTIONS
A. Respondent objects to each Request and Interrogatory that seeks information protected by the attorney-client privilege, the work product doctrine, or any other applicable privilege.
B. Respondent objects to each instruction, definition, request, and Interrogatory to the extent that it seeks to impose on him any obligations or responsibilities other than those mandated by the Federal Rules of Civil Procedure or the Rules or Orders of this Court.
C. Respondent objects to each Request and Interrogatory because they seek information that is not reasonably calculated to lead to admissible evidence relevant to the asserted fact issue in this case: that is, will Respondent be an inhabitant of the State of Texas on December 18, 2000 at the time the defendant Texas Electors cast their ballots for President and Vice President of the United States?
D. Respondent objects to each Request and Interrogatory on the grounds that this is a non-justiciable controversy, brought by plaintiff wholly lacking in standing.
E. The objections stated above are hereby incorporated by reference to each and every instruction, definition, Request and Interrogatory.
F. The response, hereto have been provided on twenty-four hours notice. They are made to the best of the Respondent's knowledge, information and belief at a time in which he has been charged with the responsibility to supervise the transition of government in Washington. Accordingly, be reserves the right to amend any answers if time permits and additional, material information comes to light.
INTERROGATORIES Interrogatory No. 1
Identify by name of state and dates of inhabitance every state of which you contend you have been an inhabitant at any time during the time period January 1, 1996 to the present.
ANSWER:
Respondent objects to Interrogatory No. 1 to the extent that the term "inhabitance" is not defined. Notwithstanding and without waiving said objection. Respondent states that he maintained a residence and was employed in the State of Texas from January 1996 to July 2000. On or about July 21, 2000, Respondent declared his intention to return to his home state of Wyoming. Respondent thereafter registered to vote in the State of Wyoming, obtained his driver's license in that state and put his Texas residence up for sale.
Interrogatory No. 2
If you have changed the state of your inhabitance since January 1, 1996, please state all facts upon which you rely to support your allegation that you are/were an inhabitant of the subsequent state(s).
ANSWER:
Respondent objects to Interrogatory No. 2 to the extent it fails to define "inhabitance." Respondent further objects to this "contention interrogatory" to the extent that it purports to reverse the role and burdens of persuasion played upon plaintiffs and defendants in this case. It is the plaintiffs who have made "allegations." Respondent has moved to dismiss on the grounds that the controversy is not properly before this Article III Court. Notwithstanding and without waiving said objections, material facts relevant to any factual inquiry include:
(i) Respondent is registered to vote in the State of Wyoming and has voted in two elections in Teton County since July 2000.
(ii) Respondent holds a driver's license issued by the State of Wyoming. At the time he obtained his license the State of Wyoming invalidated his previous license, which was issued by the State of Texas. The Texas license was perforated with the word "VOID" and is now unusable.
(iii) On or about July 25, 2000, Respondent was requested by the United States Secret Service to designate his primary residence for purposed of Secret Service protection. He designated his home in Jackson Hole, Wyoming.
(iv) Respondent retired from the Halliburton Corporation on August 16, 2000. Since his retirement, he has not been employed in the State of Texas.
(v) During Respondent's tenure at Halliburton, he maintained a house in Dallas, Texas. Since August 2000, the house has been shown for sale both privately and publicly. The house is currently under a contract for sale.
Interrogatory No. 3
Identify (by type of vehicle, make and model) all vehicles (automobiles, boats, motorcycles) currently owned or leased by you and/or your spouse and. for each:
a) identify the state(s) in which such vehicle(s) have been registered by (or on behalf of) you and/or your spouse;
b) identify the date(s) of registration of each vehicle in each state; and,
c) state the physical location (by city and state) of each such vehicle during the past thirty days.ANSWER:
Respondent has a lease and/or ownership interest in the following vehicles:
• One Mercedes-Benz automobile registered in the State of Virginia in 1997. This automobile has been located in and around the State of Virginia and Washington, D.C. during the past thirty days.
• One Jeep Cherokee registered in the State of Wyoming in 1993. This automobile has been located in the State of Wyoming during the past thirty days.
• One Lexus automobile registered in the State of Texas in 1994. This automobile has been located in the State of Colorado since on or about November 11, 2000.
• One Cadillac automobile registered in the State of Texas in 1995. This automobile has been located in the State of Texas during the past thirty days.
Interrogatory No. 4
Identify all states in which you have held a drivers license within the past one year and the dates you held such license(s).ANSWER:
Respondent has held drivers' licenses in the State of Texas and Wyoming. Respondent obtained his Wyoming driver's license on or about July 21, 2000 at which time his Texas license was invalidated and perforated with the word "VOID." Respondent's Wyoming license is the only valid license he currently possesses.
Interrogatory No. 5
Identify by type of card and cardholder all credit cards held by you and/or your spouse and state the billing address of each for the dine period January 1, 2000 through November 27, 2000.
ANSWER:
Credit card statements are delivered to Respondent's former assistant at Halliburton. Since July 2000, the statements have been forwarded to Respondent in Virginia, Wyoming and on the campaign trail. As noted, the assistant is currently relocating to Washington, D.C. and the billing address for credit card statements will be changed accordingly.
Interrogatory No. 6
[As modified by the court:] State the mailing address for each magazine to which you personally subscribed during the time period January 1, 2000 through November 27, 2000.
ANSWER:
Magazines have been delivered to Respondent's house in Dallas, former office at Halliburton and to his townhouse in McLean, Virginia.
Interrogatory No. 8
State the address listed on your personal income tax return for the tax year 1999.
ANSWER:
500 North Akard Street #3600 Dallas, Texas 75201
Interrogatory No. 9
State your address listed on your quarterly estimated tax payment (Form 1040-ES) due September 15, 2000.ANSWER:
None. No such form was filed.
Interrogatory No. 10
State all reasons you terminated your employment with Halliburton.
ANSWER:
Respondent retired from the Halliburton Corporation to accept the nomination of the Republican Party to run for the office of Vice President of the United States.
Interrogatory No. 11
Identify the date you "re-registered to vote in Wyoming."
ANSWER:
Respondent re-registered to vote in the State of Wyoming on or about July 21, 2000.
Interrogatory No. 14
Identify all real property in which you own an interest including, without limitation, description, address, city, county, state, and approximate square footage of all improvements on such property.
ANSWER:
Respondent holds interests in a home in Jackson Hole, Wyoming, a house in Highland Park Texas; a townhouse in McLean, Virginia; and an undeveloped lot in McLean, Virginia.
REQUESTS FOR ADMISSIONS Request for Admission No. 1
As of November 27, 2000, you had not, nor had anyone on your behalf, notified the Chief Appraiser of the Dallas Central Appraisal District in writing that your right to a homestead exemption on your home located at 3812 Euclid Avenue, Highland Park, Texas, had ended.
RESPONSE:
Admitted. Notice of a change in entitlement to the homestead exemption is not required to be filed until May 2001.
Request for Admission No. 2
[As modified by the court:] During the time period January 1, 2000 and November 27, 2000, you did not file a change-of-address form with the United States Post Office.
RESPONSE:
Admitted in part and denied in part. In July 2000, the U.S. Postal Service was notified to rescind a previous order on file in Teton County, Wyoming to forward Respondent's mail to Dallas, Texas. Additionally, since July 2000, mail directed to respondent in Texas was delivered to or otherwise collected by a former assistant who has routinely forwarded it to Respondent in Virginia, Wyoming or on the campaign trail. The assistant is in the process of relocating to Washington, D.C. and further instructions will be filed shortly with the U.S. Postal Service.
Request for Admission No. 3
You have publicly referred to your house in Jackson Hole, Wyoming as a "vacation home" or words to that effect.
RESPONSE:
Respondent has no current recollection of referring to his residence in Jackson Hole as his vacation home.
28 U.S.C. § 1746 Declaration
I declare under penalty of perjury that the foregoing statements of fact that are contained in the responses to interrogatories are true and correct. Executed this 29th day of November, 2000.
Richard B. Cheney
CERTIFICATE OF AUTHENTICITY OF OFFICIAL RECORDS
BEFORE ME, the undersigned official on this day appeared, W. KENNETH NOLAN, who is personally known to me, and first being duly sworn according to law upon his oath deposed and said:
My name is W. KENNETH NOLAN, I am over 18 years of age I have never been convicted of a crime, and I am fully competent to make this affidavit I have personal knowledge of the facts stated herein, and they are all true and correct.
I am custodian of the records of the DALLAS CENTRAL APPRAISAL DISTRICT. Attached hereto are 3 pages of duplicate copies of official records from the District's Appraisal records. These said pages of records are kept by the Appraisal District in the regular course of business, and it was the regular course of business of the Appraisal District for a representative of the District with knowledge of the act, event, condition, opinion, or diagnosis, recorded to make the record; and the record was made at or near the time of receipt of same or reasonably soon thereafter. The records attached hereto are exact duplicates of the originals.
W. KENNETH NOLAN CUSTODIAN OF THE RECORDS
SUBSCRIBED AND SWORN TO BEFORE ME ON THE 15 day of Nov. 2000, to certify which witness my hand and official seal.
Helen Davis NOTARY PUBLIC in and for the State of Texas
VOTING HISTORY REPORT RICHARD BRUCE CHENEY
Registered Address: 3812 EUCLID DALLAS TX 75205
Voter-ID: 02478867 Registered: 12-04-1995 Status: Canceled — Registered Elsewhere
B4 POLL X 1227 11/03/1998 GOVERNOR/CITY COP 89 POLL X 1196 11/05/1996 RESIDENTIAL
State of TEXAS County of DALLAS
I, Bruce Sherbet, Elections Administrator, hereby certify the foregoing to be a true and correct copy of the voting record of RICHARD BRUCE CHENEY as it appears on record in my office.
Witness may hand and seal on November 28, 2000
Bruce Sherbet Elections Administrator
Voter Edit Screen Print
Voter ID: 02478867
Name : CHENEY, RICHARD BRUCE Status : 1
Address: 3812 EUCLID City : HPDA DALLAS Zip : 75205
Precinct : 1227-0
Mailing Address: 500 N AKARD SUITE 3600 DALLAS TX 75201
Gender: U Date of Birth : 01-30-1941 Register Date : 12-04-1995 Issue Date : 01/01/2000
SS# : — — Driver Lic : — — Change Date : — —
Military : NO Overseas : NO Felon : NO Homeless : NO Withheld : NO Federal : NO Disabled : NO Jury Exempt : NO
Last Activity: Last Card Req: Last Voted: 11/03/1998 Last Change: 08/02/2000 Election Worker: NO
Voter's Districts:
CYHP00 CITY COUNCIL DIST HP00 CL-02 COLLEGE DISTRICT 02 COMM01 COMMISSIONER DIST 1 CD-26 CONGESSIONAL DISTRICT 26 ED-D0 ELECTION WIDE JP-1 JUSTICE OF THE PEACE 1 LD-108 LEGISLATIVE DISTRICT 108 SHHP00 SCHOOL DISTRICT HP00 SB-12 STATE SCHOOL BOARD 12 SS-08 STATE SENATE 08 WDPC WATER DISTRICT C HP/UP
Change History Report for CHENEY, RICHARD BRUCE 02478867
DATE OPERATOR CHANGE NOTES 08/02/2000 ECOX [change date] from '' to '08/02/2000' TETON, WYOMING 09:49:09 [change code] from '' to '16' [mail_addr3] from 'DALLAS, TX' to 'DALLAS TX' [dtlastchng] from '12/08/1997' to '08/02/2000' [status] from 'A' to '1' 07/25/2000 VOTER [last vote] from '//' to '11/03/1998' Voting History Change 16:20:46 12/03/1999 changedbySQ [issue_date] from '01-JAN-98' to '01/01/2000' Voter Card Requested — mass 07:04:40 mailing for voters with regdate = 12-02-1999 12/08/1997 ESSADMIN [unknown] from 'unknown' to 'See notes' Precinct number changed by 00:00:00 redistricting or by correction 12/13/1995 ESSADMIN [unknown] from 'unknown' to 'See notes' New Voter 00:00:00 ** End of Report **VOTING HISTORY REPORT LYNNE ANN CHENEY
Registered Address : 3812 EUCLID DALLAS TX 75205
Voter-ID: 02536383 Registered: 05-15-1996 Status: Canceled — Registered Elsewhere
B4 POLL X 1227 11/03/1998 GOVERNOR/CITY COP
State of TEXAS County of DALLAS
I, Bruce Sherbet, Elections Administrator, hereby certify the foregoing to be a true and correct copy of the voting record of LYNNE ANN CHENEY as it appears on record in my office.
Witness my hand and seal on November 28, 2000.
Bruce Sherbet Elections Administrator
Change History Report for CHENEY, LYNNE ANN 02536383
DATE OPERATOR CHANGE NOTES 09/05/2000 JWEST [change date] from '' to '09/05/2000' TETON 10:38:22 [change code] from '' to '16' [dtlastchng] from '12/08/1997' to '09/05/2000' [status] from 'A' to '1' 08/14/2000 TPHILLIPS [last vote] from '//' to '11/03/1998' Voting History Change 07:04:40 12/03/1999 changedbySQ [issue_date] from '01-JAN-98' to '01/01/2000' Voter Card Requested — mass 07:04:40 mailing for voters with regdate = 12-02-1999 12/08/1997 ESSADMIN [unknown] from 'unknown' to 'See notes' Precinct number changed by 00:00:00 redistricting or by correction 12/13/1996 ESSADMIN [unknown] from 'unknown' to 'See notes' New Voter 00:00:00 ** End of Report **Voter Edit Screen Print
Voter ID: 02536383
Name : CHENEY, LYNNE ANN Status : 1
Address: 3812 EUCLID City : HPDA DALLAS Zip : 75205
Precinct : 1227-0 Gender: U Date of Birth : 08-14-1941 Register Date : 05-15-1996 Issue Date : 01/01/2000 SS# : — — Driver Lic : Change Date : — —
Military : NO Overseas : NO Felon : NO Homeless : NO Withheld : NO Federal : NO Disabled : NO Jury Exempt : NO
Last Activity: Last Card Req: Last Voted: 11/03/1998 Last Change: 09/05/2000 Election Worker: NO
Voter's Districts:
CYHP00 CITY COUNCIL DIST HP00 CL-02 COLLEGE DISTRICT 02 COMM01 COMMISSIONER DIST 1 CD-26 CONGESSIONAL DISTRICT 26 ED-00 ELECTION WIDE JP-1 JUSTICE OF THE PEACE 1 LD-108 LEGISLATIVE DISTRICT 108 SHHP00 SCHOOL DISTRICT HP00 SB-12 STATE SCHOOL BOARD 12 SS-08 STATE SENATE 08 WDPC WATER DISTRICT C HP/UP
AFFIDAVIT OF ANN HUBENER, GRI
STATE OF TEXASCOUNTY OF DALLAS
Before me, the undersigned authority, personally appeared Ann Hubener, who after being duly Sworn, stated as follows:
1. My name is Ann Hubener. I reside in Duncanville, Dallas County. Texas. I am a United States citizen, over 21 years of age
2. I possess knowledge of the matters set forth below and they are true and correct to the best of my knowledge utilizing the North Texas Real Estate Information Systems, Inc.
3. I am a Texas real estate broker licensee and have been since 1971. My license number is 0162413. I am a Graduate of the Real Estate Institute (GRI). I am also a Master Business Broker. I am a member of the Greater Dallas Association of Realtors. I am not an appraiser.
4. I am an associate at Henry S. Miller, Realtors. My business address is 407 North Cedar Ridge, Suite 100, Duncanville, TX 75116.
5. Henry S. Miller, Realtors is the exclusive listing agent for the residence owned by Richard B. Cheney and wife located at 3812 Euclid Avenue in Highland Park, Dallas, Texas. I have not personally inspected this property.
6. Mr. And Mrs. Cheney listed this residence with Henry S. Miller, Realtors on November 16, 2000.
7. The property is being presented as "owner occupied".
8. The property is not under contract of sale at this time.
9. According to the North Texas Real Estate Information Systems, Inc. (NTREIS), the official listing systems for all properties in North Texas, the listing price for this home is $3,100,000.00. A true and correct copy of this is attached hereto as Exhibit "A" and is incorporated herein by reference for all purposes. The home has three bedrooms, four 1/2 bathrooms, is one story, has 4,679 square feet and was built in 1971. It has no pool.
10. The average selling time for a property in the immediate neighborhood has been 130 days. This is using sales for the last twelve (12) months.
11. The range of sales prices per square foot for this same period and in the same area has been from $357.32 per square foot to $522.61 per square foot.
12. This residence is being offered at $662.53 per square foot. Based on the above criteria my opinion is the property may be overpriced and will not sell quickly.
13. According to the Dallas Central Appraisal District information, which Is attached hereto as Exhibit "B" (4 pages) and is incorporated by reference for all purposes. It evidences Mr. Cheney received the Texas general homestead exemption in 2000.
Ann Hubener, GRI
SUBSCRIBED AND SWORN TO BEFOARE ME on this 27 day of November, 2000.
Bernice Farmer Notary Public in and for the State of Texas
Bernice Farmer Notary's printed name
My commission expires: 8-26-03
EXHIBIT "B"
Dallas Central Appraisal District
Residential Property
Account Number: 60084500240110000
PROPERTY LOCATION DATA
Street Address: 3812 EUCLID AVE Mapsco: 35-Q Neighborhood Code: V08
Yahoo! Maps
VALUATION DATA
Tax Year: 2000 Certified Tax Agent: n/a Total Improvement Value: $538,270.00 Total Land Value: $1,125,000.00 2000 Certified Total Market Value $1,663,270.00 Special Assessment: $0.00 Capped Homestead Value: $0.00
OWNERSHIP DATA
Owner Name: CHENEY RICHARD B Address: LYNNE V CHENEY Street: 3812 EUCLID AVE City: HIGHLAND PARK State: TX Zip: 752053102
LEGAL DESCRIPTION
Legal Line 1: HIGHLAND PARK Legal Line 2: BLK 24 LT 11 Legal Line 3: Legal Line 4: VOL95216/1326 DD110195 CO-DALLAS Legal Line 5: 0845002401100 16908450024 Deed Transfer Date: 19951103
IMPROVEMENT DATA
Building Foundation Class: 24 Type: SL Bath Full: 4
CDU: V Exterior Wall Bath Half: 1 1: BV Number of Exterior Wall Basement: NO Stories: A 2: Kitchen: 1 Living Area: 4679 Roof Type: FL Pool: 0 Year Built: 1971 Roofing Material: TG Sauna: 0 Age: 29 Air Wet Bar: 0 Construction: Conditioning: CF
Frame Type: FR Heating: CF
Fireplace: 2
Additional Improvements
Servants Quarters Garage/Carport Area: 0 Garage/Carport 1 Garage/Carport 2 Dep: 0
G/C: 2 0
Area: 805 0
Depreciation: 0 0
Location: AT
Construction: BK
Floor: CF
Accessory Buildings
Building Description Area Building 1: 0 Building 2: 0 Building 3: 0
LAND DATA
SPTB Code: All
Market Adjusted Zoning: Dimensions: Price Flag: Unit Price: Adjustment: Price: C 0 R $15,000.00 0 $15,000.00 0 $0.00 000 $0.00
Non-Agricultural Land Value: Agricultural Land Value:
VALUATION METHODS
Cost Approach:
Living Area: 4679
Depreciation:
Depreciated Value of Living Area: 30
TAXING JURISDICTIONS
Entity Type Entity Name 2000 Tax Rate City: City of Highland Park (.002462000) County: Dallas County (.002016670) College: Dallas Co. Community College (.000500000) Hospital: Parkland Hospital (.002540000) School: Highland Park Isd (.015830000) Special District: 0
EXEMPTION DATA
Taxing General Over Disabled Disabled Taxable Jurisdiction Homestead 65 Person Vet Value City $332,654.00 $0.00 $0.00 $0.00 $1,330,616.00 County $332,654.00 $0.00 $0.00 $0.00 $1,330,616.00 College $332,654.00 $0.00 $0.00 $0.00 $1,330,616.00 Hospital $332,654.00 $0.00 $0.00 $0.00 $1,330,616.00 School $347,654.00 $0.00 $0.00 $0.00 $1,315,616.00 Special District 1 $0.00 $0.00 $0.00 $0.00 $0.00
Totally
Exempt: Over 55 Surviving Spouse:
PROPERTY HISTORY
Market Values 1999 1998 1997 1996 1995 Improvement $575,120.00 $662,780.00 $662,780.00 $328,960.00 $305,960.00 Land $960,000.00 $787,500.00 $660,000.00 $660,000.00 $660,000.00 Market $1,535,120.00 $1,450,280.00 $1,322,780.00 $988,960.00 $965,960.00 Cap-Hmstd $0.00 $0.00 $0.00 $0.00 $0.00 Spec. Asmt. $0.00 $0.00 $0.00 $0.00 $0.00 Taxable Values 1999 1998 1997 1996 1995 County Taxable $1,228,096.00 $1,160,224.00 $1,058,224.00 $791,168.00 $703,768.00 City Taxable $1,228,096.00 $1,160,224.00 $1,058,224.00 $791,168.00 $722,768.00 School Taxable $1,213,096.00 $1,145,224.00 $1,043,224.00 $786,168.00 $757,768.00 Spec Dist — Taxable $0.00 $0.00 $0.00 $0.00 $0.00 Hosp — Taxable $1,228,096.00 $1,160,224.00 $1,058,224.00 $791,168.00 $703,768.00 College — Taxable $1,228,096.00 $1,160,224.00 $1,058,224.00 $791,168.00 $722,768.00IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION
STEPHEN B. JONES, LINDA D. LYDIA and CAROLINE FRANCO, as Texas registered voters,Plaintiffs, v. CIVIL ACTION NO.
GEORGE W. BUSH, RICHARD B. 3:00-CV2543-D CHENEY, ERNIE ANGELO, GAYLE WEST, BETTY R. HINES, JAMES B. RANDALL, HELEN QUIRAM, HENRY W. TEICH, Jr., WILLIAM EARL JUETT, HALLY B. CLEMENTS, HOWARD PEBLEY, Jr., ADAIR MARGO, TOM F. WARD, Jr., CARMEN P. CASTILLO, CHUCK JONES, MICHAEL PADDIE, JAMES DAVIDSON WALKER, JOSEPH J. O'NEIL, III, BETSY LAKE, ROBERT J. PEDEN, JIM HAMLIN, MARY E. COWART, SUE DANIEL, JAMES R. BATSELL, LOYCE McCARTER, MICHAEL DUGAS, NEAL J. KATZ, MARY CEVERHA, CLYDE MOODY SIEBMAN, RANDALL TYE THOMAS, CRUZ G. HERNANDEZ, JOHN ABNEY CULBERSON, STAN STANART, and KEN CLARK,
Defendants.
RESPONSE OF DEFENDANTS GOVERNOR GEORGE W. BUSH AND RICHARD B. CHENEY TO THE COURT'S ORDER OF NOVEMBER 22, 2000
Governor George W. Bush ("Governor Bush") and Richard B. Cheney ("Secretary Cheney") respond as follows to this Court's Order dated November 22, 2000:
I. INTRODUCTION
In its Order dated November 22, 2000, the Court orders the defendants to respond to Plaintiffs' request for (1) expedited discovery, including a deposition of Secretary Cheney on or before December 1, 2000, and (2) an expedited preliminary injunction hearing no later than December 12, 2000, combined with the trial on the merits of this case pursuant to Rule 65(a)(2), Fed.R.Civ.P. As discussed in more detail below, Governor Bush and Secretary Cheney respond that:
1. They have filed a Motion to Dismiss that, they believe, will dispose of this entire action on the face of the pleadings. No discovery should be allowed pending the resolution of their Motion;
2. If discovery is allowed (which it should not be), then it should be limited to written discovery only. It should not include the oral deposition of Secretary Cheney because any evidence the Plaintiffs arguably require is available through less intrusive means; and
3. If this Court proceeds with a preliminary injunction hearing (which it should not for the reasons stated in the Motion to Dismiss), then the hearing should not be combined with a trial on the merits. Instead, any preliminary injunction application should be decided based on the papers and written evidence as set forth in the Court's first November 22, 2000 order.
II. DISCUSSION
A. Accelerated discovery should not be allowed .Governor Bush and Secretary Cheney have filed a joint Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) on the grounds that: (i) Plaintiffs lack standing to assert the claims that are the subject of this suit; (ii) the Court lacks subject matter jurisdiction under the political question doctrine; and (iii) Plaintiffs have failed to state a claim for which relief can be granted. These are pure issues of law for which no discovery is required, and Governor Bush and Secretary Cheney believe that the Court's resolution of these issues will dispose of the entire case. Accordingly, Governor Bush and Secretary Cheney urge the Court not to allow any discovery pending a resolution of their Motion to Dismiss. See, e.g., Petrus v. Bowen, 833 F.2d 583 (5th Cir. 1987) ("A trial court has broad discretion and inherent power to stay discovery until preliminary questions that may dispose of the case are determined.").
B. Secretary Cheney should not be required to give an oral deposition .
If the Court allows discovery, then it should only allow limited written discovery specifically tailored to facts that are directly relevant to this case, and it should not allow an oral deposition of Secretary Cheney. As courts have repeatedly recognized, there is an extraordinary potential for abuse in depositions of high-ranking public officials and prominent private citizens. See, e.g., In re F.D.I.C., 58 F.3d 1055, 1060 (5th Cir. 1995) (discussing high ranking public officials); Baine v. General Motors Corp., 141 F.R.D. 332, 334 (M.D. Ala. 1991) (discussing corporate executives).
Although the Plaintiffs have alleged that Secretary Cheney is an "inhabitant" of Texas, not Wyoming, they have not identified any discovery they need from any of the defendants with respect to this claim, nor have they stated why they legitimately need to depose Secretary Cheney with respect to this claim. On the contrary, almost all the evidence relevant to the determination whether Secretary Cheney is an inhabitant of Texas or Wyoming is objectively verifiable, public information. For example, it is publicly available information that Secretary Cheney:
1. Grew up in Wyoming and was elected to Congress from Wyoming for six terms;
2. Has had a house in Wyoming for more than 20 years;
3. Moved to Dallas in 1995 to accept a position as CEO of Halliburton, but resigned from that position several months ago;
4. Has publicly announced that he and his wife are making their house in Jackson Hole, Wyoming their new permanent home;
5. Has put his house in Dallas up for sale;
6. Has re-registered to vote in Wyoming and voted in Wyoming during the most recent elections;
7. Has obtained a Wyoming drivers license; and
8. Has canceled his Texas voters registration and drivers license.
There is simply no legitimate need to impose upon Secretary Cheney for an oral deposition to verify these and similar facts. Further, there can be no legitimate issue about Secretary Cheney's intent in changing his inhabitance. At a minimum, to the extent the Court believes that there is any legitimate testimony that Plaintiffs need from Secretary Cheney, it is discoverable by less intrusive means, e.g. interrogatories.
C. The preliminary injunction hearing, if any, should be based on the papers and it should not be consolidated with a trial on the merits .
If this Court were to proceed to hear the request for preliminary injunctive relief, which the defendants believe the Court should not do, then such request can be heard on the basis of affidavits and other papers as stated by this Court in its first November 22, 2000 order. Plaintiffs can make no showing of need for oral testimony. There is absolutely no basis for Plaintiffs to claim that there is an issue of credibility in this matter and Plaintiffs have not suggested there is. Further, the facts are uncontested and uncontestable.
With respect to the issue of consolidation, Governor Bush and Secretary Cheney agree that, generally speaking, consolidation of a hearing on the request for preliminary injunction with the trial on the merits is often appropriate. However, in this matter, Plaintiffs have created an urgency for themselves that should not unduly burden the defendants. The defendants in this matter, if it is to proceed, are entitled to a reasonable amount of time to prepare for a final trial on the merits. Plaintiffs have delayed many months in bringing this action and seeking relief. Conducting a trial on the merits in the short amount of time available is unreasonable to the defendants. In fact, at the present time, the vast number of the defendants most recently named have not been served, and hailing them before the Court will be time consuming. These circumstances are all of Plaintiffs own making. Plaintiffs, at most, should be entitled to pursue their request for a preliminary injunction in accordance with the procedure specified in the Court's first November 22, 2000 order. A trial on the merits should be set in due course after determination of the request for preliminary injunction, if this matter is to proceed at all.
WHEREFORE, PREMISES CONSIDERED, Governor Bush and Secretary Cheney respectfully request that the Plaintiffs' Complaint be dismissed, that all costs of court be taxed against the Plaintiffs, and that Governor Bush and Secretary Cheney receive such other and further relief to which they are justly entitled.
Respectfully subitted,
Harriet E. Miers Texas State Bar No. 000000067 Roger B. Cowie Texas State Bar No. 00783886 Evmn B. Fitzrnaurice Texas State BarNo. 24012629 LOCKE LIDDELL SAn LU? 2200 Ross Avenue, Suite 2200 Dallas, Texas 75201-6776 Telephone: 214 740-8000 Facsimile: 214 740-8800
ATTORNEYS FOR GOVERNOR GEORGE W. BUSH
Barry F. McNeil Texas State Bar No. 13829500 Robin P. Hartmann Texas State Bar No, 09168000 Stacy L. Brainin Texas State BarNo. HAYNES BOONE LLP 3100 NationsBank Plaza Dallas, Texas 75202 Telephone: (214) 651-5000 Facsimile: (214) 651-5940
ATTORNEYS FOR RICHARD B. CHENBY
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing pleading was served upon the Plaintiffs' counsel and all other counsel of record via telecopier on this the 27th day of November, 2000.
Harriet E. Miers