Case 3:18-cv-01865-RS Document 215 Filed 07/03/19 Page 1 of 28 1 2 3 4 5 6 7 8 9 10 XAVIER BECERRA Attorney General of California MARK R. BECKINGTON ANTHONY R. HAKL Supervising Deputy Attorneys General GABRIELLE D. BOUTIN, SBN 267308 R. MATTHEW WISE, SBN 238485 ANNA T. FERRARI, SBN 261579 TODD GRABARSKY, SBN 286999 NOREEN P. SKELLY, SBN 186135 Deputy Attorneys General 1300 I Street, Suite 125 P.O. Box 944255 Sacramento, CA 94244-2550 Telephone: (916) 210-6053 Fax: (916) 324-8835 E-mail: Gabrielle.Boutin@doj.ca.gov Attorneys for Plaintiff State of California, by and through Attorney General Xavier Becerra 11 IN THE UNITED STATES DISTRICT COURT 12 FOR THE NORTHERN DISTRICT OF CALIFORNIA 13 SAN FRANCISCO DIVISION 14 15 16 Plaintiffs, 17 18 Case Nos. 18-cv-01865-RS 18-cv-02279-RS STATE OF CALIFORNIA, et al. PLAINTIFF’S ADMINISTRATIVE MOTION FOR IMMEDIATE TELEPHONIC STATUS CONFERENCE; DECLARATION OF GABRIELLE D. BOUTIN v. 19 20 WILBUR L. ROSS, et al., Trial Date: January 7, 2019 Dept: 3 Judge: The Honorable Richard G. Seeborg Action Filed: March 26, 2018 Defendants. 21 22 ------------------------------------------------------ 23 CITY OF SAN JOSE, et al., Plaintiffs, 24 25 26 27 WILBUR L. ROSS, et al., Defendants. 28 1 Plaintiff’s Administrative Motion for Immediate Telephonic Status Conference; Declaration (3:18-cv-01865) Case 3:18-cv-01865-RS Document 215 Filed 07/03/19 Page 2 of 28 1 2 Plaintiff State of California respectfully submits the following motion for administrative relief pursuant to Civil Local Rule 7-11. 3 Plaintiff requests a telephonic status conference with the Court on Friday, July 5, 2019, or 4 as soon as the Court’s schedule otherwise allows, to confirm the continued effect of this Court’s 5 permanent injunction, and the appropriate procedures and schedule for future proceedings in this 6 case, if necessary. A status conference is necessary due to recent developments in related 7 litigation and Defendants’ contradictory statements regarding their intent to include a citizenship 8 question on the 2020 Decennial Census. 9 On March 13, 2019, defendants filed a notice of appeal of the final judgment in this case. 10 On March 18, 2019, defendants filed a petition for certiorari before judgment in the United States 11 Supreme Court. 12 On June 27, 2019, the United States Supreme Court issued its opinion in the case of Dept. 13 of Commerce v. New York, No. 18-966, holding that Secretary Ross’ decision to add the 14 citizenship question to the 2020 Census violates the Administrative Procedure Act due to his 15 failure to disclose the basis of his decision. Dept. of Commerce v. New York, --- S. Ct.---, 2019 16 WL 2619473 (2019). 17 On June 28, 2019, the Supreme Court granted Defendants’ petition for certiorari before 18 judgment in this proceeding. Its order directed as follows: “The judgment is vacated, and the 19 case is remanded to the United States Court of Appeals for the Ninth Circuit for further 20 consideration in light of Department of Commerce v. New York, 588 U.S. ____ (2019).” Ross v. 21 California, --- S. Ct.---, 2019 WL 1243674 (2019). 22 On July 2, 2019, Defendants represented in court and publicly that they had ordered the 23 printing of census forms without the citizenship question and that they would no longer attempt to 24 add the question to the 2020 Census. This representation was made in an email from Defendants’ 25 counsel to the New York Attorney General’s Office (see Ex. 1), in a conference before Judge 26 Hazel in the District of Maryland (see Ex. 2 at 1-6 [transcript of July 3, 2019 conference 27 referencing July 2 conference]), and in a statement to the press by Secretary Ross himself (see, 28 2 Plaintiff’s Administrative Motion for Immediate Telephonic Status Conference; Declaration (3:18-cv-01865) Case 3:18-cv-01865-RS Document 215 Filed 07/03/19 Page 3 of 28 1 e.g., Mark Sherman & Jill Colvin, Trump insists he’s not dropping citizenship question effort, 2 Washington Post (July 3, 2019, 12:35 p.m.). 3 However, less than 24 hours later, Defendants reversed themselves in both the Maryland 4 and New York census actions. See Ex. 2 at 10-12; Ex. 3 [Defendants’ letter to Judge Furman, 5 State of New York, et al., v. U.S. Department of Commerce, 18-cv-2921, ECF No. 613]. They 6 now state that the Departments of Justice and Commerce have “been asked to reevaluate all 7 available options following the Supreme Court’s decision,” that they are currently performing that 8 analysis, and that if they determine a path forward for including a citizenship question on the 9 2020 Census, Defendants may move the Supreme Court for further guidance. Ex. 3 at 1; Ex. 2 at 10 11 10-12. In light of the uncertainty created by Defendants’ inconsistent public statements and the 12 importance of the issues before the Court, Plaintiff respectfully asks the Court to schedule a 13 telephonic status conference this Friday, July 5, 2019, or as soon thereafter as possible, to confirm 14 that this Court’s permanent injunction precluding Defendants “from including the citizenship 15 question on the 2020 Census” remains in effect, to ascertain Defendants’ position on the current 16 posture of this case and their intentions regarding further efforts to include a citizenship question, 17 and to clarify the appropriate procedures for future proceedings in this Court, if necessary. Given 18 Defendants’ repeated representations to this Court and the Supreme Court that printing of the 19 final 2020 Census forms needed to begin by the end of June 2019, time is of the essence in this 20 matter. 21 22 23 24 25 26 27 28 3 Plaintiff’s Administrative Motion for Immediate Telephonic Status Conference; Declaration (3:18-cv-01865) Case 3:18-cv-01865-RS Document 215 Filed 07/03/19 Page 4 of 28 1 Dated: July 3, 2019 2 Respectfully Submitted, XAVIER BECERRA Attorney General of California MARK R. BECKINGTON ANTHONY R. HAKL Supervising Deputy Attorneys General ANNA T. FERRARI TODD GRABARSKY NOREEN P. SKELLY R. MATTHEW WISE Deputy Attorneys General 3 4 5 6 7 8 /s/ Gabrielle D. Boutin GABRIELLE D. BOUTIN Deputy Attorney General Attorneys for Plaintiff State of California, by and through Attorney General Xavier Becerra 9 10 11 DECLARATION OF GABRIELLE D. BOUTIN 12 13 1. I am a Deputy Attorney General with the California Department of Justice, duly 14 licensed to practice law in the State of California. I am counsel of record in this action for the 15 State of California. I make this declaration in support of Plaintiff’s Motion for Immediate 16 Telephonic Status Conference. I have personal knowledge of the facts stated herein and, if called 17 upon to do so, could and would testify competently thereto. 18 2. Earlier today, at 3:30 p.m. Eastern time, Judge Hazel in the District Court of 19 Maryland held a conference with the parties to the census cases of Kravitz v. U.S. Department of 20 Commerce, No. 8:18-cv-01041-GJH and La Union Del Pueblo Entero v. U.S Department of 21 Commerce, No. 8:18-cv-01570-GJH. During the conference, Defendants’ counsel stated that, 22 although the previous day they had represented to Judge Hazel that they had definitively decided 23 not to add the citizenship question to the 2020 Census, they were now reevaluating that decision. 24 See Ex. 2. The State of California received a copy of the transcript from that hearing at 4:58 p.m. 25 Eastern time. 26 3. At 5:59 p.m. Eastern time, Defendants filed in the New York census action a letter to 27 Judge Furman repeating the same position (which was contrary to Defendants’ statements to the 28 New York and Maryland plaintiffs the day before). See Ex. 3. 4 Plaintiff’s Administrative Motion for Immediate Telephonic Status Conference; Declaration (3:18-cv-01865) Case 3:18-cv-01865-RS Document 215 Filed 07/03/19 Page 5 of 28 1 4. Because the State of California did not receive written confirmation of the 2 Defendants’ position in these matters until after the close of business today on the East Coast 3 (where Defendants’ counsel are located), and because tomorrow is a federal holiday, there was 4 insufficient time for the State of California to obtain Defendants’ stipulation for a status 5 conference on this Friday, July 5, 2019. 6 5. Plaintiffs in this action have not received any direct communication from Defendants 7 regarding the status of this Court’s permanent injunction, or Defendants’ intentions going 8 forward. 9 10 I declare under penalty of perjury under the laws of the State of California and the United States that the foregoing is true and correct. Executed on July 3, 2019, in Sacramento, California. 11 12 /s/ Gabrielle D. Boutin Gabrielle D. Boutin 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 Plaintiff’s Administrative Motion for Immediate Telephonic Status Conference; Declaration (3:18-cv-01865) Case 3:18-cv-01865eRS Document 215 Filed 07/03/19 Page 6 of 28 EXHIBITI Case 3:18-cv-01865-RS Document 215 Filed 07/03/19 Page 7 of 28 Case 1:18-cv-02921-JMF Document 610-3 Filed 07/03/19 Page 2 of 3 From: Sent: To: Cc: Subject: Bailey, Kate (CIV) Tuesday, July 2, 2019 3:56 PM Freedman, John A.; Federighi, Carol (CIV); Ehrlich, Stephen (CIV); Coyle, Garrett (CIV); Wells, Carlotta (CIV); Gardner, Joshua E (CIV) DHo@aclu.org; Goldstein, Elena; Colangelo, Matthew; SBrannon@aclu.org; Gersch, David P. RE: New York et al v. Department of Commerce et al., SONY 18-cv-2921 CounselWe can confirm that the decision has been made to print the 2020 Decennial Census questionnaire without a citizenship question, and that the printer has been instructed to begin the printing process. Best, Kate Bailey Trial Attorney United States Department of Justice Civil Division - Federal Programs Branch 1100 L Street, NW Washington, D.C. 20005 202.514.9239 I kate.bailey@usdoj.gov From: Freedman, John A. Sent: Monday, July 01, 2019 3:47 PM To: Bailey, Kate (CIV) ; Federighi, Carol (CIV) ; Ehrlich, Stephen {CIV) ; Coyle, Garrett (CIV) ; Wells, Carlotta (CIV) ; Gardner, Joshua E (CIV) Cc: DHo@aclu.org; Goldstein, Elena ; Colangelo, Matthew ; SBrannon@aclu.org; Gersch, David P. Subject: New York et al v. Department of Commerce et al., SDNY 18-cv-2921 Dear Counsel -In light of the Defendants' repeated representations to the public; Congress, and the courts (as recently as last Tuesday) that "the Census Bureau needs to finalize the 2020 questionnaire by June of this year," and "changes to the paper questionnaire after June of 2019 ... would impair the Census Bureau's ability to timely administer the 2020 census," see 6/25/19 letter from Solicitor General to Scott Harris, we are writing to confirm that the Census Bureau finalized the questionnaire over the weekend and that the final questionnaire does not include the citizenship question. Please advise by 10 am tomorrow so that we can consider whether, if necessary, to seek further relief from the court. Best, John Case 3:18-cv-01865-RS Document 215 Filed 07/03/19 Page 8 of 28 Case 1:18-cv-02921-JMF Document 610-3 Filed 07/03/19 Page 3 of 3 John A. Freedman Arnold & Porter 601 Massachusetts Avenue, NW Washington, DC 20001 Office: +1 202.942.5316 john.freedman@arnoldporter.com www.arnoldporter.com This communication may contain information that ls legally privllegHd, confidential or exempt from disclosure. If you am not the intended r,idpient, please note that any dissemination, distribution. or copyln{J of this communication is strictly proh bited. Anyone who receives this message in error should notify the sender immediately by telephone or by return e-mail and delete it 'from his or her computer. For more Information about Arnold & Port.er, cllcl< him,: http://www.arnoldporter.com 2 Case 3:18-cv-01865-RS Document 215 Filed 07/03/19 Page 9 of 28 EXHIBIT 2 Case 3:18-cv-01865-RS Document 215 Filed 07/03/19 Page 10 of 28 1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF MARYLAND 1 3 ROBYN KRAVITZ, et al., 4 5 6 7 8 9 10 11 12 13 14 15 ) ) Plaintiffs, ) ) vs. ) Case Number: ) UNITED STATES DEPARTMENT ) OF COMMERCE, et al., ) ) Defendants. ) _________________________ ) ) LA UNION DEL PUEBLO ) ENTERO, et al., ) ) Plaintiffs, ) ) vs. ) Case Number: ) UNITED STATES DEPARTMENT ) OF COMMERCE, et al., ) ) Defendants. ) _________________________ ) 8:18-cv-01041-GJH 8:18-cv-01570-GJH 16 17 18 TRANSCRIPT OF PROCEEDINGS - TELEPHONE CONFERENCE BEFORE THE HONORABLE GEORGE JARROD HAZEL WEDNESDAY, JULY 3, 2019; 3:30 P.M. GREENBELT, MARYLAND 19 20 21 22 Proceedings recorded by mechanical stenography; transcript produced by computer-aided transcription _______________________________________________________________ 23 CINDY S. DAVIS, RPR 24 25 FEDERAL OFFICIAL COURT REPORTER 6 5 0 0 C H E R R Y W O O D L A N E, S U I T E 2 0 0 G R E E N B E L T, M D 20770 Case 3:18-cv-01865-RS Document 215 Filed 07/03/19 Page 11 of 28 1 2 3 4 FOR THE KRAVITZ PLAINTIFFS: Shankar Duraiswamy, Esquire Benjamin Duke, Esquire COVINGTON & BURLING, LLP 1 City Center 850 Tenth Street, N.W. Washington, D.C. 20001 5 6 7 8 FOR THE LUPE PLAINTIFFS: Denise Hulett, Esquire MALDEF 1016 16th Street, N.W., Suite 100 Washington, D.C. 20036 9 FOR THE DEFENDANTS: 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Joshua Gardner, Special Counsel Stephen Ehrlich, Special Counsel UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 1100 L Street, N.W. Washington, D.C. 20005 2 Case 3:18-cv-01865-RS Document 215 Filed 07/03/19 Page 12 of 28 1 P R O C E E D I N G S 2 3 THE COURT: Good afternoon. MS. HULETT: 5 THE COURT: 6 MR. DURAISWAMY: 7 THE COURT: 8 MR. DUKE: 9 MR. GARDNER: Denise Hulett. For the Kravitz plaintiffs? Shankar Duraiswamy. And for the Government? And Ben Duke. For the Government, Josh Gardner and Jody Hunt, Assistant Attorney General for the Civil Division. 11 12 Who do I have for the LUPE plaintiffs? 4 10 3 THE COURT: Mr. Gardner, I know you're on vacation, and so I hated to interrupt that. 13 Couple things. One, we do have a court reporter here. 14 It's Ms. Davis, who knows each of your voices well at this 15 point. 16 I'm sure you all will accommodate that. 17 your voices at this point, so it's probably not necessary to 18 identify yourselves every time you speak. She does ask that Mr. Duraiswamy speak slowly, and so She does know each of 19 So I guess the reason I wanted to have this call, 20 obviously, we had our call -- I guess it was yesterday; feels 21 like a while ago, but I think it was yesterday -- and then this 22 morning I saw a tweet that got my attention. 23 many federal judges have Twitter accounts, but I happen to be 24 one of them, and I follow the President, and so I saw a tweet 25 that directly contradicted the position that Mr. Gardner had I don't know how Case 3:18-cv-01865-RS Document 215 Filed 07/03/19 Page 13 of 28 1 4 shared with me yesterday. 2 I'll say in that regard I had felt somewhat bad about not 3 just immediately accepting Mr. Gardner's representation and 4 sort of taking some measures to try to pin it down. 5 even indicated yesterday, and I'll indicate again today, that 6 Mr. Gardner and every government attorney who has appeared in 7 this case has been nothing but professional and candid with the 8 Court. 9 sort of any reflection on him or what I think of his candor. I think I And so my attempts to pin him down yesterday were not 10 But then the tweet that I saw, which I suspect we all know the 11 tweet I'm referring to, then caused me to think I hadn't gone 12 far enough in terms of pinning the Government down on where 13 things stand. 14 So now we have a court reporter here. I'm going to ask, 15 frankly, the same question I asked yesterday to Mr. Gardner. 16 Is the Government going to continue efforts to place a 17 citizenship question on the 2020 census? 18 MR. GARDNER: Your Honor, this is Mr. Gardner. I 19 want to back up just a step and say that I've been with the 20 United States Department of Justice for 16 years, through 21 multiple Administrations, and I've always endeavored to be as 22 candid as possible with the Court. 23 yesterday was absolutely my best understanding of the state of 24 affairs and, apparently, also the Commerce Department's state 25 of affairs, because you probably saw Secretary Ross issued a What I told the Court Case 3:18-cv-01865-RS Document 215 Filed 07/03/19 Page 14 of 28 1 2 statement very similar to what I told the Court. The tweet this morning was the first I had heard of the 3 President's position on this issue, just like the plaintiffs 4 and Your Honor. 5 that means at this juncture other than what the President has 6 tweeted. 7 absolute best to figure out what's going on. 8 9 I do not have a deeper understanding of what But, obviously, as you can imagine, I am doing my I can tell you that I have confirmed that the Census Bureau is continuing with the process of printing the 10 questionnaire without a citizenship question, and that process 11 has not stopped. 12 THE COURT: 13 plaintiffs' counsel. 14 you have any comments. 15 All right. I'll hear from either Mr. Duraiswamy, I'll start with you if MR. DURAISWAMY: Your Honor, I think it underscores, 16 obviously, the need for a stipulated order, as we talked about 17 yesterday, that makes clear not only that the Government is 18 printing the questionnaire for the 2020 census without a 19 citizenship question but that there will be no further effort 20 to inquire about citizenship status as part of the 2020 census 21 in any manner. 22 prepared to send to the Government along those lines. 23 5 We prepared a draft stipulated order that we're I think it also suggests that we may need a further 24 provision of that order that makes clear that the defendants 25 will not communicate to the public anything to the contrary Case 3:18-cv-01865-RS Document 215 Filed 07/03/19 Page 15 of 28 1 suggesting that the 2020 census is inquiring about citizenship 2 status. 3 any such misinformation that comes from government officials. 4 So we are working on a stipulated order to that effect. 5 And, further, that they will counter, publicly counter Given Mr. Gardner's own uncertainty, it's not clear to me 6 if the Government is saying we will continue with the process 7 of working out the stipulated order, that they're prepared to 8 move forward with that, or if they're saying that they need to 9 revisit this. 10 6 THE COURT: Let me ask before I get Ms. Hulett's 11 perspective. 12 requirement that they not say anything to the contrary, what 13 would be the authority, what would be the basis for me to issue 14 that order? 15 in an order they agree to. But let's assume for the sake of 16 argument that they're not. What would be the basis for me to 17 order them not to -- and I assume you're including the 18 President of the United States in what you're suggesting -- not 19 to make any statements contrary to the order that they're not 20 going to include the question? 21 As to your second point that there should be some Obviously, if they're willing to stipulate to that MR. DURAISWAMY: Well, we have included in our 22 complaint, I think both in the Kravitz complaint and in the 23 LUPE complaint, as part of our request for relief not just an 24 injunction but any such relief as is necessary in the interest 25 of justice. Given the way in which this has developed and Case 3:18-cv-01865-RS Document 215 Filed 07/03/19 Page 16 of 28 7 1 given the inconsistent statements that we're hearing from the 2 Justice Department and the Commerce Department, on the one 3 hand, and from the President on the other hand, we think that 4 to effectuate the relief that we've sought, which is an 5 injunction barring the inquiring of citizenship status on the 6 2020 census, this is the kind of relief that's necessary. 7 it's appropriate and within the power of the Court. 8 9 MS. HULETT: And Your Honor, if I may add something. This is Denise Hulett. 10 THE COURT: 11 MS. HULETT: Sure. The President's tweet has some of the 12 same effects that the addition of the question would in the 13 first place and some of the same effects on the 18-month battle 14 that was just waged over the citizenship question. 15 the immigrant communities to believe that the Government is 16 still after information that could endanger them. 17 that to the interview that the President did, sharing that his 18 reason for wanting the citizenship question on the form was so 19 that the Government could distinguish between citizens and 20 illegal aliens and how nonsensical that is, it has the effect 21 of leading the public to believe that the Census is not only 22 after that information but is willing to violate some of the 23 provinces of protection that our plaintiff organizations have 24 been trying to reassure communities about. 25 It leaves If you add So we strongly believe that we're going to need some Case 3:18-cv-01865-RS Document 215 Filed 07/03/19 Page 17 of 28 8 1 affirmative commitment, whether it's through a stipulation or 2 by order of this Court, an affirmative commitment from the 3 Government to counter misinformation wherever in the Government 4 that it comes from, a commitment that they will respond quickly 5 and comprehensively to that kind of misinformation. 6 Today is a good example. There was no response from the 7 Commerce Department, that I know of, to counteract the position 8 that was expressed either in a tweet or in an interview, and 9 that's going to cause the same kinds of harm and injury and -- 10 11 THE COURT: cut you off. 12 Let me -- I'm sorry. I apologize. MS. HULETT: I didn't mean to Go ahead. I was just going to add that if the 13 Government is not prepared at this point to say that they will 14 be negotiating quickly over this, we think that we would have 15 to make a request to reinstate our preliminary injunction 16 motion and to move forward with a scheduling order on discovery 17 because the injury at this point is ongoing. 18 19 THE COURT: Let me make a couple of comments, and then I'll turn back to Mr. Gardner to get his thoughts. 20 I assume, although maybe I'm wrong about this, that the 21 parties aren't suggesting I can enjoin the President of the 22 United States from tweeting things. 23 that. 24 some concern. 25 Maybe you are suggesting But I will say my initial reaction to that is to have But what I perhaps am taking you to suggest is that there Case 3:18-cv-01865-RS Document 215 Filed 07/03/19 Page 18 of 28 9 1 could be an order -- and I'm not saying I agree to this; I'm 2 just trying to tee up the issue for Mr. Gardner to respond -- 3 that there could be a mechanism by which I order -- and, again, 4 I'm not saying I'm inclined to do this -- the Census Bureau or 5 the Department of Commerce to take whatever steps are necessary 6 to counteract any such message, which, again, I this is an odd 7 place for the judiciary to be. 8 9 But I'll at least hear what Mr. Gardner's initial take is, understanding you're still unclear yourself, it seems, on 10 the primary question as to whether or not any of this is going 11 to end up being necessary. 12 initial response to those secondary suggestions from 13 plaintiffs. 14 MR. GARDNER: I am at least curious as to your Sure, Your Honor. To back up, this is 15 a very fluid situation which we are trying to get our arms 16 around and, obviously, once we get more information, we will 17 communicate that immediately to the Court and the parties. 18 I do want to address a preliminary issue though, and that 19 is that the current status quo is that plaintiffs are fully 20 protected. 21 was the basis for the inclusion of the citizenship question. 22 So that final-agency action has been enjoined, and there is no 23 current additional final-agency action out there to enjoin or 24 to even challenge. 25 The Supreme Court vacated the March decision which I recognize this is a fluid situation and perhaps that Case 3:18-cv-01865-RS Document 215 Filed 07/03/19 Page 19 of 28 10 1 might change, but we're just not there yet, and I can't 2 possibly predict at this juncture what exactly is going to 3 happen. 4 operating for the past week, while it may be inconvenient for 5 the Court, and I apologize about that, is to maintain 6 consistent contact so we can keep updating the Court and the 7 parties as to the state of affairs. 8 9 I think the process by which we have been sort of But as of now, the basis for the citizenship question is firmly enjoined, vacated, and does not exist. If there is a 10 different decision in the future, plaintiffs obviously would 11 have every opportunity to file an amended complaint, file a PI 12 or whatever other processes they think are appropriate. 13 think the current fluidity of the state of play suggests the 14 status quo is we need to see how these things develop. 15 16 17 But I And at that juncture, Your Honor, if you have additional questions, I can turn it over to AAG Hunt. MR. HUNT: Your Honor, this is Joseph Hunt, Assistant 18 Attorney General for the Civil Division. 19 my thoughts to what Mr. Gardner just said. 20 THE COURT: 21 MR. HUNT: If I might just add Sure. We at the Department of Justice have been 22 instructed to examine whether there is a path forward, 23 consistent with the Supreme Court's decision, that would allow 24 us to include the citizenship question on the census. 25 there may be a legally available path under the Supreme Court's We think Case 3:18-cv-01865-RS Document 215 Filed 07/03/19 Page 20 of 28 1 decision. 2 to see whether that's viable and possible. 3 11 We're examining that, looking at near-term options And so to the extent we can identify an option for that 4 to work, if we continue to examine the decision and believe 5 that we have a viable path forward to that work, our current 6 plan would be to file a motion in the Supreme Court to request 7 instructions on remand to govern further proceedings in order 8 to simplify and expedite the remaining litigation and provide 9 clarity to the process going forward. 10 So as Mr. Gardner said, it's very fluid at present 11 because we are still examining the Supreme Court's decision to 12 see if that option is still available to us. 13 14 15 16 17 THE COURT: That's helpful to understand, and I appreciate you adding that. Here's where we are. And then if either side has a different view, I'll hear that. By Friday at 2 p.m. I want one of two things. I either 18 want a stipulation, as we've been discussing, indicating that 19 the citizenship question will not appear on the census, or I 20 want a proposed scheduling order for how we're going forward on 21 the equal protection claim that's been remanded to this Court. 22 I want one of those two things by Friday at two o'clock. 23 So I would expect that the parties will have to meet and 24 confer sometime earlier on Friday to determine which of those 25 things you're submitting to me by Friday at two o'clock. But I Case 3:18-cv-01865-RS Document 215 Filed 07/03/19 Page 21 of 28 1 2 12 want one of those two things by Friday at two o'clock. If, in the case of the scheduling order, the parties are 3 not able to come to an agreement as to what it should look 4 like, you can submit to me competing options, and we'll have a 5 call that afternoon. 6 that afternoon where the Court will mike a final decision on 7 how we're proceeding. 8 Friday at 2 p.m., the equal protection claim in this case is 9 moving forward. 10 11 I'll be here Friday. We'll have a call But we will, if this is not resolved by Any questions as to that? MR. GARDNER: Your Honor, this is Mr. Gardner. The 12 one thing I would request is, given that tomorrow is the Fourth 13 of July and the difficulty in assembling people from all over 14 the place, is it possible that we could do this on Monday? 15 THE COURT: No. 16 MR. GARDNER: 17 THE COURT: And again -- okay. No. Because timing is an issue. Timing 18 is an issue, and we've lost a week at this point. And this 19 isn't anything against anybody on this call. 20 different things, and it's becoming increasingly frustrating. I've been told 21 If you were Facebook and an attorney for Facebook told me 22 one thing, and then I read a press release from Mark Zuckerberg 23 telling me something else, I would be demanding that Mark 24 Zuckerberg appear in court with you the next time because I 25 would be saying I don't think you speak for your client Case 3:18-cv-01865-RS Document 215 Filed 07/03/19 Page 22 of 28 1 13 anymore. 2 I think I'm actually being really reasonable here and 3 just saying I need a final answer by Friday at 2 p.m. or we're 4 going forward. 5 week. 6 from me that I would get it done, the discovery done in 45 7 days, a hearing, and then a decision, and they sent it back to 8 me with that promise having been made. 9 days already with the back and forth, which, again, I don't 10 Because we've wasted a The Fourth Circuit sent this back to me with a promise And we've lost seven blame anybody on this call for, but that's where we are. 11 12 That's where we are. So Friday, 2 p.m., we're going forward or we're resolving it. That's where we are. 13 MR. DUKE: Your Honor, this is Ben Duke for the 14 Kravitz plaintiffs. 15 Government's repeated representations, including to the United 16 States Supreme Court, which the Supreme Court relied on, that 17 June 30th was an absolute deadline and that they needed to have 18 this finalized and to move forward as of that date? 19 what we've now heard from the defendants is that that wasn't 20 true, that they now think that they can even dither over the 21 July 4th weekend and ask for more time to examine this and 22 possibly make a further motion to the Supreme Court for 23 instructions on how to eventually undercut what the Supreme 24 Court has already decided. 25 the positions that they've been taking. Could we ask what happened to the Because It is completely inconsistent with Case 3:18-cv-01865-RS Document 215 Filed 07/03/19 Page 23 of 28 1 THE COURT: I understand that. 14 I suspect we're not 2 going to get a useful answer to that question, so I'm not sure 3 that I really want to wade into that at this juncture. 4 Any other questions? 5 MR. GARDNER: 6 Nothing from the Government, Your Honor. 7 THE COURT: 8 MR. DURAISWAMY: 9 Duraiswamy. Plaintiffs? Your Honor, this is Shankar The only thing I would add is that, consistent 10 with Mr. Gardner's prior communications with us, the permanent 11 injunction from this Court remains in effect, the injunction 12 permanently preventing the Government from adding a citizenship 13 question to the 2020 census. 14 point. 15 16 THE COURT: So we agree at least on that And I meant to respond to that. I made a note and then overlooked it. 17 I don't think there is currently a need to litigate the 18 motion for preliminary injunction because there is at least 19 one, if not more, injunction in place. 20 that. 21 So I do agree with So I'll look forward to getting something Friday at 2 22 p.m., and then, if necessary, we'll get on the phone after 23 that. 24 25 (The telephonic conference ended at 3:50 p.m.) Case 3:18-cv-01865-RS Document 215 Filed 07/03/19 Page 24 of 28 1 15 CERTIFICATE OF OFFICIAL REPORTER 2 3 I, Cindy S. Davis, Federal Official Court Reporter in and 4 for the United States District Court for the Southern District 5 of Maryland, do hereby certify that I reported, by machine 6 shorthand and computer-aided transcription, in my official 7 capacity the motions hearing proceedings had in the case of 8 Kravitz, et al., versus United States Department of Commerce, 9 et al., case numbers 8:18-cv-01041-GJH and 8:18-cv-01570-GJH, 10 11 in said court on July 3, 2019. I further certify that the foregoing 14 pages constitute 12 the official transcript of said proceedings, as taken from my 13 electronic notes to the best of my ability. 14 15 In witness whereof, I have hereto subscribed my name this third day of July 2019. 16 17 18 19 20 C in d y S. Da v i s 21 _____________________________________ CINDY S. DAVIS, RPR FEDERAL OFFICIAL COURT REPORTER 22 23 24 25 Case 3:18-cv-01865-RS Document 215 Filed 07/03/19 Page 25 of 28 EXHIBIT 3 Case Case3:18-cv-01865-RS 1:18-cv-02921-JMFDocument Document 215 613Filed Filed 07/03/19 07/03/19Page Page 261of of28 2 U.S. Department of Justice Civil Division, Federal Programs Branch 1100 L Street, NW Washington, DC 20005 July 3, 2019 By ECF The Honorable Jesse M. Furman United States District Judge Southern District of New York Thurgood Marshall Courthouse 40 Foley Square New York, New York 10007 Re: State of New York, et al., v. U.S. Department of Commerce, et al., 18-cv-2921 (JMF) N.Y. Immigration Coalition v. U.S. Dep’t of Commerce, 18-cv-5025 (JMF) Dear Judge Furman: Pursuant to ECF No. 611, Defendants write to respond to Plaintiffs’ letter request for an immediate status conference and to provide the Court with information regarding a status conference held earlier this afternoon in a matter before another court, Kravitz v. U.S. Dep’t of Commerce, No. 18-cv-1041 (D. Md.). On July 2, 2019, counsel for Defendants sent an email communication to counsel for Plaintiffs confirming that the questionnaire for the 2020 Decennial Census had been sent to the printer, without a question inquiring about respondents’ citizenship status, and that the process of printing the questionnaires had started. ECF No. 610-3. That representation was based on the information undersigned counsel had at the time, and it remains undersigned counsel’s understanding that the process of printing the questionnaires, without the citizenship question, continues. The Departments of Justice and Commerce have now been asked to reevaluate all available options following the Supreme Court’s decision and whether the Supreme Court’s decision would allow for a new decision to include the citizenship question on the 2020 Decennial Census. The agencies are currently performing the analysis requested, and, if they determine that the Supreme Court’s decision does allow any path for including such a decision, DOJ may file a motion with the Supreme Court seeking further procedural guidance for expediting litigation on remand. In the event that the Commerce Department adopts a new rationale for including the citizenship question on the 2020 Decennial Census consistent with the decision of the Supreme Court, the Government will immediately notify this Court so that it can determine whether there is any need for further proceedings or relief. However, Defendants can confirm that they are taking no action in contravention of the injunction of this Court, which vacated the Secretary’s March 2018 decision to place a citizenship question on the 2020 decennial census, and which was affirmed in relevant part by the Supreme Court and remains in place to protect the interests of Plaintiffs in this matter. Case Case3:18-cv-01865-RS 1:18-cv-02921-JMFDocument Document 215 613Filed Filed 07/03/19 07/03/19Page Page 272of of28 2 Finally, with respect to today’s proceedings before Judge Hazel, he ordered that the parties, by 2:00 pm on July 5, 2019, submit either a stipulation that the Government would undertake no further efforts to include a citizenship question on the 2020 Decennial Census, or file a proposed discovery schedule regarding Plaintiffs’ equal protection and conspiracy claims. Respectfully submitted, JOSEPH H. HUNT Assistant Attorney General JAMES M. BURNHAM Deputy Assistant Attorney General JOHN R. GRIFFITHS Director, Federal Programs Branch /s/Joshua E. Gardner JOSHUA E. GARDNER Special Counsel United States Department of Justice Civil Division, Federal Programs Branch 1100 L Street, N.W. Washington, DC 20005 Tel.: (202) 305-7583 Fax: (202) 616-8470 Email: joshua.e.gardner@usdoj.gov Counsel for Defendants CC: All Counsel of Record (by ECF) 2 Case 3:18-cv-01865-RS Document 215 Filed 07/03/19 Page 28 of 28 CERTIFICATE OF SERVICE Case Name: State of California, et al. v. Wilbur L. Ross, et al. No. 3:18-cv-01865 I hereby certify that on July 3, 2019, I electronically filed the following documents with the Clerk of the Court by using the CM/ECF system: PLAINTIFF’S ADMINISTRATIVE MOTION FOR IMMEDIATE TELEPHONIC STATUS CONFERENCE; DECLARATION OF GABRIELLE D. BOUTIN I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system. I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed on July 3, 2019, at Sacramento, California. Tracie L. Campbell Declarant SA2018100904 13888482.docx /s/ Tracie Campbell Signature