Case 2:10-cv-02216-FCD-DAD Document 19 Filed 10/07/10 Page 1 of 4

1 NICHOLAS S. CHRISOS, COUNTY COUNSEL

James Harman, SUPERVISING DEPUTY - State Bar No. 183973
2 Email: james.harman@coco.0.it0v.com
and Wendy 1. Phillips, SENIO DEPUTY -- State Bar No. 178452
3 Email: wend.hilliscoco.ocov.com
333 West anta na ou evar, mte 7
4 Post Office Box 1379
Santa Ana, California 92702-1379
5 Telephone: (714) 834-6298
FacsImile: (714) 834-2359
6
7
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9 IN THE UNITED STATES DISTRICT COURT FOR THE
10 EASTERN DISTRICT OF CALIFORNIA
11 SACRAMENTO DIVISION

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12 Case No. 2:10-cv-02216-FCD-DAD
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ou.l 13 MEMORANDUM OF POINTS AND
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NEAL KELLEY, ORANGE COUNTY
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0 MOTION FOR THREE JUDGE
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16 PANEL
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17 DAMON JERRELL DUNN, et al. DATE: October 22, 2010
TIME: 10:00 a.m.
18 DEPT: 2
JUDGE: The Hon. Frank C.
19 Damrell
20 Action Filed: May 10,2010
Trial Date: Not yet set
21
22 Defendant Neal Kelley, Orange County Registrar of Voters ("OC Registrar"), by
23 and through his attorneys of record Nicholas S. Chrisos, County Counsel, James Harman,
24 Supervising County Counsel and Wendy J. Phillips, Senior Deputy County Counsel,
25 respectfully submits this Opposition to Plaintiffs Motion for Three Judge Panel.
26 II
27 II
28 II
 Case 2:10-cv-02216-FCD-DAD Document 19 Filed 10/07/10 Page 2 of 4

1 MEMORANDUM OF POINTS AND AUTHORITIES

2 1. INTRODUCTION
3 Plaintiff has moved this Court for the appointment of a Three-Judge Panel pursuan
4 to 42 D.S.C. § 1973c (commonly referred to and hereinafter "the Voting Rights Act").
5 While Complaints properly pleaded under the Voting Rights Act are entitled to be tried
6 by a Three-Judge Panel (28 D.S.C. § 2284), Plaintiffs First Amended Complaint
7 ("F AC"), which is the operative pleading in this action, fails to plead a cause of action
8 under the Voting Rights Act and therefore, her request for a Three-Judge Panel should be
9 denied by this Court.
10 2. ARGUMENT
11 The OC Registrar has joined the Motion to Dismiss filed by Defendants Brown an

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12 Bowen wherein they allege that Plaintiff has failed to state a claim upon which relief can
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13 be granted. Also, before this action was removed to the Federal Court, the OC Registrar
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1:~ 14 had demurred to the FAC in the Superior Court of California in Sacramento County. The
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16 Plaintiff s FAC failed to state any cause of action upon which relief could be granted.
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0 17 Because the FAC fails to state a cause of action under the Voting Rights Act this Court
18 should deny Plaintiffs request for a three-judge panel.
19 A. A Three-Judge Panel Should Not Be Appointed Unless an Actionable
20 Violation of The Voting Rights Act is Properly Pled in the Complaint.
21 In her motion for appointment of a three-judge panel, Plaintiff argues that she is
22 entitled to a three judge panel because her FAC alleges the OC Registrar (and the State
23 Defendants) violated Section 5 pre-clearance requirements of the Voting Rights Act.
24 Mot. at 3: 1-2. In determining whether to grant Plaintiffs request for a three judge panel
25 this Court is confined to the formal allegations of the complaint. See, Silver v. Queen's
26 Hospital, 53 F.R.D. 223, 227(D. Haw. 1971). Conc1usory statements by the moving
27 party that the action satisfies the requirements for a three-judge panel do not bind the
28 court to appoint such a panel. See, Sellers v. Regents o/Univ. o/Cal.} 432 f.2d 493, 497
 Case 2:10-cv-02216-FCD-DAD Document 19 Filed 10/07/10 Page 3 of 4

1 (9th Cir. 1970). Here, the FAC contains nothing more than conclusory allegations that
2 the actions of the OC Registrar violated the section 5 pre-clearance requirements, which
3 is not enough to grant the request for a three-judge panel.
4 Moreover, this Court has the discretion to deny Plaintiffs request if the Court
5 determines the claims alleged in the Complaint are not substantial. Gonzalez v. Monterey
6 County Cal., 808 F. Supp. 727, 731(N.D. Cal. 1992). For example, when the complaint
7 fails to establish that the challenged actions constitute grounds for relief under the
8 operative statute, the Court may decline to appoint the three-judge panel. 0 'Connor v.
9 State of Nevada, 27 F.3d 357,363 (9th Cir. 1994). In this case, although Plaintiff makes
10 vague references to and conclusory allegations that Defendants have violated the pre-
11 clearance requirements of 42 U.S.C. 1973c, she fails to allege that neither the State of

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12 California nor the County of Orange is subject to the pre-clearance requirements of
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13 section 5. In fact, the State of California and the County of Orange are NOT subject to
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16 5 pre-clearance requirements, and since they are NOT subject to these requirements, the
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17 Complaint fails to allege a cause of action under the Voting Rights Act and Plaintiff s
18 request for a three-judge panel should be denied.
19 2. CONCLUSION
20 Based on the foregoing arguments and authorities, the OC Registrar respectfully
21 requests that this Court deny Plaintiff s request for appointment of a three judge panel.
22 DATED: October 7,2010 Respectfully submitted,
23 NICHOLAS S. CHRISOS, COUNTY COUNSEL
JAMES HARMAN, S PERVISING DEPUTY
24 and WENDY}. P IPS, SENIOR DEPUTY
25
26 James Ha an, Supervising Deputy
27 Attorneys for Neal Kelley, Orange County
Registrar of Voters
28
 Case 2:10-cv-02216-FCD-DAD Document 19 Filed 10/07/10 Page 4 of 4

1
2 I do hereby declare that I am a citizen of the United States employed in the County
of Orange over 18 years old and that my business address is 333 West Santa Ana
3 Boulevard, Suite 407, Santa Ana, California 92702-1379. I am not a party to the within
action.
4
On October 7,2010, I served the foregoing MEMORANDUM OF POINTS AND
5 AUTHORITIES BY DEFENDANT NEAL KELLEY, ORANGE COUNTY
REGISTRAR OF VOTERS, IN OPPOSITION TO PLAINTIFF'S MOTION FOR
6 THREE JUDGE PANEL on all other parties to this action by placing a true copy of sai
document in a sealed envelope in the following manner:
7
[X] (BY U.S. MAIL) I placed such envelope(s) addressed as shown below for
8 collectIOn and mailing at Santa Ana, California, following our ordinary business
practices. I am readify familiar with this office's practice for collecting and processing
9 correspondence for mailing. On the same day that correspondence is placed for
collection and mailing, it is deposited in the ordinary course of business with the United
10 States Postal Service III a sealed envelope with postage fully prepaid.
11 [X] (CMIECF) I caused the foregoing documents to be served upon all counsel
of record listed below by electronic filing utilIzing CMIECF.
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VJ [X] (FEDERAL) I declare that I am employed in the office of a member of the
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13 Bar of thIS Court at whose direction the service was made.
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Anthony Lievanos
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.... NAME AND ADDRESS TO WHOM SERVICE WAS MADE
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0 Via US Mail
17 Pamela Barnett
2541 Warrego Way
18 Sacramento, California 95826
19 Via CM/ECF
Charles H Bell, Jr , Esq. Attorneys for Defendant Damon Jerrell
20 Dunn
Brian T Hildreth, Esq.
21 Bell, McAndrews, & Hiltachk, LLP
455 Capitol Mall, Suite 801
22 Sacramento, CA 95814
23 Via CM/ECF
Anthony P. O'Brien, Deputy Attorney General Attorneys for Defendants Edmund G.
24 Office of The California Attorney General Brown, Jr., California Attorney
1300 I Street,?Suite 125 General and Debra Bowen, California
P.O. Box 94£f255 Secretary of State
25 Sacramento, California 94244-2550
26 Via CM/ECF
Yoshinori H.T. Himel, Assistant U.S. Attorney Attorneys for Defendant United States
27 Office of the United States Attorney Election Assistance Commission
501 I Street, Suite 10-100
28 Sacramento, California 95814