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THOMAS C. HORNE Firm Bar No. 014000 Attorney General Kevin D. Ray, No. 007485 Leslie Kyman Cooper, No. 012782 Jinju Park, No. 026023 Assistant Attorneys General 1275 West Washington Street Phoenix, Arizona 85007 Telephone: (602) 542-8349 Facsimile: (602) 364-0700 E-mail: EducationHealth@azag.gov Attorneys for Plaintiff, the State of Arizona ex rel. Attorney General Thomas C. Horne

SUPERIOR COURT OF ARIZONA

MARICOPA COUNTY STATE OF ARIZONA ex rel. Attorney General Thomas C. Horne,

Plaintiff, vs. MARICOPA COUNTY COMMUNITY COLLEGE DISTRICT BOARD,

Defendant, ABEL BADILLO, BIBIANA VAZQUEZ, and BIBIANA CANALES

Intervenors-Defendants.

Case No. CV2013-009093 ARIZONA’S MOTION TO EXCLUDE MCCCD’S EXPERT WITNESS ROXANA BACON (Oral Argument Requested) (Assigned to the Honorable Arthur Anderson)

ABEL BADILLO, BIBIANA VAZQUEZ, and BIBIANA CANALES

Counter-Plaintiffs, vs. STATE OF ARIZONA ex rel. Attorney General Thomas C. Horne,

Counter-Defendant.

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Motion

Plaintiff State of Arizona ex rel. Attorney General Thomas C. Horne (Arizona)

moves this Court for an Order Excluding the Expert Report of Defendant’s Maricopa

County Community College District’s (MCCCD’s) Expert Witness Roxana Bacon (the

Bacon Report).1 This Motion is supported by the Memorandum of Law below.

Memorandum of Law

This case concerns the interpretation of Arizona law. More specifically, it

concerns the interpretation of two voter-protected statutes—A.R.S. §§ 15-1803 and

1825. These statutes—enacted pursuant to a voter referendum—address the ability of

aliens who came to this country unlawfully to qualify for taxpayer-funded benefits.2

There are no facts at issue in this matter at this time. Therefore, there is no reason to

have an expert, of any qualification, to assist the Court in “understand[ing] the evidence

or determin[ing] a fact in issue.” Ariz. R. Evid. 702. Even if there were facts in

evidence that merited expert attention, nothing in Ms. Bacon’s background or report

indicates that she is qualified to offer expert opinion testimony that will help this Court.

Moreover, as a lawyer discussing the interpretation of state and federal statues, Ms.

Bacon simply tells the judge how to decide this case. This Court should reject Ms.

Bacon’s effort to tell it how to decide this case, exclude her expert report and strike

MCCCD’s Response and Motion.

///

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/// 1 A copy of Roxana Bacon’s Report is attached hereto as Exhibit A. 2 Proposition 300 amended A.R.S. § 15-1803 by adding sections (B) and (C), which prohibit students that lack lawful immigration status from paying in-state tuition and requires certain reporting. It added A.R.S. § 15-1825 which contains further limitations on financial assistance to students without lawful status and also requires certain reporting. Because the changes were made pursuant a voter referendum, they are protected by the Voter Protection Act, which “limits the legislature's authority to amend measures approved by voters.” Arizona Early Childhood Dev. and Health Bd. v. Brewer, 221 Ariz. 467, 469, ¶ 6, 212 P.3d 805, 807 (2009)(describing Voter Protection Act, Ariz. Const. art. 4, pt. 1, § 1(C)-(D).)

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I. Because No Facts Are at Issue at this Time, No Expert Report Will Be Helpful to

the Court.

An expert witness may testify “in the form of an opinion” if the expertise will

help the trier of fact “understand the evidence or determine a fact in issue.” Ariz. R.

Evid. 702(a). Here, there are no facts in issue. Therefore, there is no need for an expert.

The pleadings establish that there are no facts at issue in this matter at this time.

MCCCD admitted that it grants in-state tuition to DACA-eligible aliens. (MCCCD’s

Answer, ¶ 13.) Its Disclosure Statement combines its discussion of facts and law into

one section—Factual Basis and Legal Theories of Defenses—and then elaborates upon

its legal position. (Defendant’s Initial Rule 26.1 Disclosure Statement, at 1 – 7, attached

hereto as Exhibit B.) The Disclosure Statement describes no factual disputes, but

instead states, “At the heart of the dispute between the Attorney General and MCCCD is

whether DACA participants may present employment authorization documents as

evidence of eligibility for resident tuition.” (Id., at 2.) Resolution of that question will

turn on the meaning and effect of A.R.S. §§ 15-1803 and 1825, and their intersection

with 8 U.S.C. §§ 1621 and 1623, the matters addressed by the Disclosure Statement.

Not surprisingly, MCCCD listed no witnesses who could dispute the central issue—

whether MCCCD can accept employment authorization documents as evidence of

eligibility for in-state tuition.

MCCCD’s attempt to convert Arizona’s motion for judgment on the pleadings to

a motion for summary judgment fails to put any real facts in issue. MCCCD begins by

acknowledging that “the resolution of this matter hinges on statutory construction.”

(Defendant’s Motion for Summary Judgment and Response to Arizona’s Motion for

Judgment on the Pleadings, at 1.) Its purported statement of facts simply recites the

relevant law and legislative history. It describes “Federal and State Immigration

Laws” in paragraphs 1-3 and the DACA program, in paragraphs 4-5. It then presents its

legal conclusions as to “DACA Students’ Eligibility for Resident Tuition,” which is the

ultimate, and only, issue in this matter.

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II. Even if an Expert Report Would Help the Court, the Bacon Report Should Be

Excluded.

A. The Court Should Exercise its Gatekeeper Function and Exclude the Bacon Report.

Recently-amended Rule of Evidence 702 charges trial courts with serving as

“gatekeepers in assuring that proposed expert testimony is reliable and thus helpful to

the jury's determination of facts at issue.” Arizona State Hosp. v. Klein, 231 Ariz. 467,

473, ¶ 29, 296 P.2d 1003, 1009 (Ct. App. 2013) (quoting Ariz. R. Evid. 702, Comment

to 2012 Amendment.) The United States Supreme Court described that function,

saying where the “factual basis, data, principles, methods, or their application are called

sufficiently into question, the trial judge must determine whether the testimony has a

reliable basis in the knowledge and experience of the relevant discipline.”3 Kumho Tire

Co. v. Carmichael, 526 U.S. 137, 149 (1999). Even where it is difficult to evaluate the

reliability of an expert’s methodology, a court must still “determine if it is based upon

sufficient facts or data and is the product of reliable principles and methods, and if the

principles and methods have been applied reliably to the facts of the case.” Arizona

State Hosp., 231 Ariz. at 473-74, ¶ 30, 296 P.3d at 1009-10 (quotation omitted) (noting

that even though the Daubert factors do not “readily fit” the evaluation of expert

psychological testimony, the court must still ensure such testimony is the product of a

reliable methodology).

Here, the Court’s examination of Ms. Bacon’s report demonstrates conclusively

that Ms. Bacon is doing nothing more than offering the Court her opinion, as a lawyer

whose practice has focused on immigration law, regarding the meaning of the state

statutes at issue. This she cannot do. As the California District Court explained, in

excluding the expert opinion of renowned copyright expert David Nimmer in a

3 Because the new Arizona rule on expert evidence was amended to mirror its federal counterpart, Arizona courts construe it in accordance with its counterpart. Arizona State Hosp., 231 Ariz. at 473, ¶ 26, 296 P.2d at 1009.

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copyright case, “the opinion must be an expert opinion (that is, an opinion informed by

the witness' expertise) rather than simply an opinion broached by a purported expert.”

Gable v. Nat’l Broadcasting Co., 727 F. Supp. 2d 815, 833 (C.D. Cal. 2010) (quotation

omitted).

Moreover, a closer review reveals that Ms. Bacon lacks the expertise necessary to

offer an opinion here.4 While Ms. Bacon’s report shows that she has practiced

immigration law for many years, it does not establish that she is qualified to assist this

Court in understanding the effect of the DACA Proclamation itself, much less qualified

to help determine the meaning of A.R.S. §§ 15-1803 and -1825. The Bacon Report

lacks any indication of the number of “deferred action” cases of any kind that she has

ever handled. (Bacon Report, Exhibit A, Curriculum Vitae of Roxana Bacon.) We can

infer that she has not represented any DACA-eligible aliens, because her last cited

employment in private practice concluded 2006. (Id.) She claims to have been

“involved personally in executive level discussions within” the federal agencies that

“laid the groundwork for DACA,” (Bacon Report, at ¶ 4), to have “drafted

memorandums for and with USCIS and DHS leadership” (id., at ¶ 5), and to have

“remained in contact with [unnamed] key DHS employees as DACA program matured

into an Executive Order and its current implementation phase.” (Id., at ¶ 6.) Yet, her

report includes no details that would allow Arizona or this Court to evaluate whether her

role was sufficient to merit deference. Her vague assertions do not indicate the nature of

her involvement. And, she fails to attach the memoranda she drafted or to identify the

“leadership” that received them. She also fails to explain how “remaining in contact”

4 Ordinarily, Arizona would be able to test the completeness of Ms. Bacon’s expert report through cross-examination and/or a rebuttal report. However, given the procedural posture here, described in the parties’ Joint Stipulated Request Regarding Scheduling, filed June 13, 2014, Arizona has not had that opportunity. It would be fundamentally unfair for this Court to rely on this Report without allowing Arizona an opportunity to test the bases of the Bacon report. This Court should subject the Bacon report to especially close scrutiny, because it has been offered before Arizona has had the opportunity to test Ms. Bacon’s qualifications and expertise through cross-examination.

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with unidentified “key” DHS employees qualifies her as an expert here. Of course,

entirely absent is any explanation of how this information relates to understanding

Arizona law.

Ms. Bacon also fails to demonstrate that any methodology, let alone a reliable

methodology, produced her report. She has not written on any serious topic for any

legal journals. Nor is there any indication of sustained study on any topic. She has not

exposed her opinions to her peers, to see if they stand up to scrutiny. As the Michigan

district court explained, “without an indication that [the law professor’s] articles… were

subject to meaningful peer review by other experts in that area of law, his writings and

commentaries are really no more than one lawyer’s opinion.” Cicero v. Borg-Warner

Automotive, Inc., 163 F. Supp. 2d 743, 747-48 (E.D. Mich. 2001).

In short, while Rule 702’s requirement that expert opinion be informed by

reliable methodology is not designed to exclude “experience-based” experts like Ms.

Bacon, there is simply no indication that Ms. Bacon possesses relevant experience. Ms.

Bacon’s work as the chief counsel for USCIS might qualify her to tell us something

about the events that prompted DHS to issue the DACA Proclamation (although even

that is doubtful, given that she left government service eighteen months before Secretary

Napolitano issued the DACA Proclamation); however, that is not the issue here. Here,

instead, the Court must interpret a voter-enacted state statute, passed six years before the

DACA Proclamation was issued. Given that most of Ms. Bacon’s immigration work

must necessarily have addressed questions of federal law, her qualifications for offering

opinions as to matters of state law are simply not clear.

Ms. Bacon’s expert report is also deficient in that it fails to establish her

qualifications regarding the factual statements she does make. In laying the groundwork

for her opinion, Ms. Bacon purports to provide the policy justification for DACA. She

asserts that an interest in national security prompted DACA (Bacon Report, at ¶¶ 11- 14,

16-17), that DACA is consistent with interest in national security (id., ¶¶ 18-19), that

implementing DACA will allow the Department of Homeland Security to focus its law

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enforcement resources differently, because DACA will reduce the number of deportees

(id., ¶ 22) or that it will improve the ability of law enforcement to locate DACA students

easily later. (Id., ¶ 23). But nothing in Ms. Bacon’s background, which includes three

decades in the private practice of immigration law in Arizona and barely eighteen

months at United States Citizenship and Immigration Services, shows that she can offer

these opinions. Nor does she seem to possess any qualifications that would allow her to

opine regarding the purported economic benefits of DACA or the purported losses that

are experienced by the economy because DACA-eligible aliens lack lawful status. (Id.,

¶¶ 24- 26) She is not a social scientist or economist and does not appear to have done

any work that would allow her to opine on the efficacy of the DACA policy.

B. Expert Opinions on the Law Must Be Excluded.

Even if this Court were to somehow conclude that Ms. Bacon possesses relevant

expertise, it would still have to exclude her Report because it does nothing but tell this

Court what the law is. Of course, that’s not surprising, given that the only issue here is

the meaning of state statutes.

It is beyond cavil that “an expert witness cannot give an opinion as to her legal

conclusion, i.e., an opinion on an ultimate issue of law.” Mukhtar v. Cal. State Univ.,

Hayward, 299 F.3d 1053, 1065 n.10 (9th Cir. 2002)(vacating and remanding for a new

trial where “erroneous admission of exert testimony without proper reliability

determination was not harmless”); overruled on other grounds, Estate of Barabin v.

AstenJohnson, Inc., 740 F.3d 457, 467 (2014)5; see also Employers Reins. Corp. v. Mid-

Continent Cas. Co., 202 F. Supp. 2d 1212, 1217 (D. Kan. 2002) (“An expert…may not

apply the law to the facts of the case to form legal conclusions.”). “Resolving doubtful

questions of law is the distinct and exclusive province of the trial judge.” Nationwide

Transp. Fin. v. Cass Info. Sys., Inc., 523 F.3d 1051 (9th Cir. 2008) (quotations omitted).

5 Estate of Barabin overruled Mukhtar to the extent it required an appellate court to send a matter back to the district court to make Daubert findings. Estate of Barabin, 740 F.3d at 476. Rather, a reviewing court can now make such findings on the record established by the district court.

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Because “matters of law [are] for the court’s determination. . . . they [are] inappropriate

subjects for expert testimony.” Aguilar v. Int’l Longshoremen’s Union Local No. 10,

966 F.2d 443, 447 (9th Cir. 1992).

Expert reports, like this one, that “read much like a legal brief” must be excluded.

Gable, 727 F. Supp. 2d at 836.6 Here, the Bacon Report’s conclusions, found at ¶¶ 75 –

90, address nothing but the interplay between federal and state law. She relies almost

exclusively on the language of the statutes and an (incomplete) review of the legislative

history in concluding that Arizona voters meant “lawful presence” when they said

“lawful status” and that DACA-eligible aliens are therefore eligible for in-state tuition.

C. Ms. Bacon’s Expert Opinions Omit Important Information.

Ms. Bacon’s expert report must also be excluded because the information she

offers is incomplete. For example, in ¶¶ 37-44, she asserts that DACA grantees are

“lawfully present,” relying in part on USCIS Frequently Asked Questions (FAQs).

However, she omits important information, found in those same FAQs. The USCIS

FAQs state that the period of stay for DACA-eligible persons is considered to be

authorized and that “for admissibility purposes, [a DACA-eligible alien is] considered to

be lawfully present.” (USCIS FAQs, updated January 18, 2013, attached as Ex. G. to

the Bacon Report, at AZ000011.) The inclusion of the phrase “for admissibility

purposes” indicates that a DACA-eligible alien is not necessarily present for other

purposes. This construction is borne out by this caveat included in the USCIS FAQs: Apart from the immigration laws, ‘lawful presence’, ‘lawful status’ and similar terms are used in various other federal and state laws. For information on how those laws affect individuals who receive a favorable exercise of prosecutorial discretion under DACA, please contact the appropriate federal, state or local authorities.

6 This rule applies even when the purported expert is acknowledged as a leading authority. A federal district court excluded expert affidavits and declarations of Professors Geoffrey C. Hazard, Jr. and Charles W. Wolfram on issues of legal ethics—subjects on which they are among the foremost authorities nationally—despite the fact that “this Court certainly has respect for Professors Hazard and Wolfram.” In re Public Offering Secs. Litig., 174 F. Supp. 2d 61, 64 (S.D.N.Y. 2001) (excluding expert evidence on recusal motion).

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(Id.) Bacon also neglected to note that federal government has chosen to pick and

choose as to when it will consider DACA-eligible aliens “lawfully present:” As the

district court stated in Arizona Dream Act Coalition v. Brewer, 945 F. Supp. 2d 1045,

1061 (D. Ariz. 2013), “the Department of Health and Human Services (‘DHHS’) has

determined that DACA recipients are not ‘lawfully present’ for purposes of health care

benefits conferred on other deferred action recipients, 45 C.F.R. § 152.2(8).”

Ms. Bacon’s description of DACA-eligible aliens’ ability to travel is also

misleading. (Bacon Report, at ¶¶ 56-62.) While she labels the advance parole available

to DACA-eligible aliens that allows them to travel as “irrefutable evidence” of lawful

presence (id., ¶ 57), advance parole is, in fact, an uncertain proposition. Advance parole

allowing travel requires advance permission, obtained, at the discretion of the federal

government, after submitting a form and $360. (USCIS FAQs, at AZ000018.)

Furthermore, USCIS allows travel only for limited purposes: humanitarian, education

and employment. (Id.) Vacation is not a valid basis for parole. (Id.) Put simply,

DACA-eligible aliens must pay $360 to apply for the privilege of leaving the country,

must disclose their reasons for travel, and ensure that they fall within one of three

limited categories of travel. They cannot leave the country until they receive

permission, and will not know if permission will be granted until it is. See

http://www.visanow.com/should-i-apply-for-advance-parole-if-i-have-deferred-action/,

(last accessed June 17, 2014.) And, even if advance parole is granted, there is no

guarantee that the parolee will be allowed back into the country. See

http://www.nilc.org/FAQdeferredactionyouth.html (last accessed June 17, 2014); see

also http://www.visanow.com/should-i-apply-for-advance-parole-if-i-have-deferred-

action (“DHS can revoke an advance parole document at any time, . . .”) (last accessed

June 17, 2014). Such conditional travel permission hardly qualifies as “irrefutable

evidence” of lawful presence. These deficits render the Bacon report unreliable.

///

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Conclusion

For the reasons stated above, this Court should exclude the Bacon Report and

strike MCCCD’s Motion for Summary Judgment and Response to Motion for Judgment

on the Pleadings. In the alternative, if the Court elects to consider the Bacon Report,

Arizona should be permitted time to take discovery of MCCCD’s expert and retain its

own rebuttal expert.

Respectfully submitted this 20th day of June, 2014. THOMAS C. HORNE Attorney General By:/s/Leslie Kyman Cooper Kevin D. Ray Leslie Kyman Cooper Jinju Park Assistant Attorneys General 1275 West Washington Street Phoenix, Arizona 85007 Attorneys for the State of Arizona Original filed electronically with the Clerk of the Superior Court, Maricopa County, this 20th day of June, 2014 Copies emailed this 20th day of June, 2014 to: Mary O’Grady Lynne Adams Grace E. Rebling Osborn Maledon, P.A. 2929 North Central Avenue, 21st Floor Phoenix, Arizona 85012-2793 mogrady@omlaw.com ladams@omlaw.com grebling@omlaw.com dburton@omlaw.com Attorneys for Defendant /// /// ///

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Victor Viramontes Martha L. Gómez Mexican American Legal Defense and Educational Fund 634 South Spring Street, 11th Floor Los Angeles, California 90014 VViramontes@MALDEF.org MGomez@MALDEF.org Daniel R. Ortega Jr. Ortega Law Firm, P.C. 361 East Coronado Road Phoenix, Arizona 85004-1525 Danny@ortegalaw.com José de Jesús Rivera Nathan J. Fidel Haralson, Miller, Pitt, Feldman & Mcanally, P.L.C. 2800 North Central Avenue, Suite 840 Phoenix, Arizona 85004 jrivera@hmpmlaw.com nfidel@hmpmlaw.com jlarsen@hmpmlaw.com Attorneys for Proposed Intervenor-Defendants By: /s/Marie Gonzalez #3856418