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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
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MARICOPA COUNTY
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STATE OF ARIZONA ex rel. Attorney
General Thomas C. Horne,
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Plaintiff,
Case No. CV2013-009093
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vs.
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ARIZONA’S MOTION TO
EXCLUDE MCCCD’S
EXPERT WITNESS ROXANA
BACON
MARICOPA COUNTY COMMUNITY
COLLEGE DISTRICT BOARD,
(Oral Argument Requested)
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Defendant,
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ABEL BADILLO, BIBIANA VAZQUEZ,
and BIBIANA CANALES
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Intervenors-Defendants.
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ABEL BADILLO, BIBIANA VAZQUEZ,
and BIBIANA CANALES
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Counter-Plaintiffs,
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vs.
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STATE OF ARIZONA ex rel. Attorney
General Thomas C. Horne,
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Counter-Defendant.
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(Assigned to the Honorable Arthur
Anderson)
Motion
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Plaintiff State of Arizona ex rel. Attorney General Thomas C. Horne (Arizona)
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moves this Court for an Order Excluding the Expert Report of Defendant’s Maricopa
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County Community College District’s (MCCCD’s) Expert Witness Roxana Bacon (the
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Bacon Report).1 This Motion is supported by the Memorandum of Law below.
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Memorandum of Law
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This case concerns the interpretation of Arizona law. More specifically, it
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concerns the interpretation of two voter-protected statutes—A.R.S. §§ 15-1803 and
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1825. These statutes—enacted pursuant to a voter referendum—address the ability of
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aliens who came to this country unlawfully to qualify for taxpayer-funded benefits.2
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There are no facts at issue in this matter at this time. Therefore, there is no reason to
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have an expert, of any qualification, to assist the Court in “understand[ing] the evidence
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or determin[ing] a fact in issue.” Ariz. R. Evid. 702. Even if there were facts in
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evidence that merited expert attention, nothing in Ms. Bacon’s background or report
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indicates that she is qualified to offer expert opinion testimony that will help this Court.
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Moreover, as a lawyer discussing the interpretation of state and federal statues, Ms.
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Bacon simply tells the judge how to decide this case. This Court should reject Ms.
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Bacon’s effort to tell it how to decide this case, exclude her expert report and strike
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MCCCD’s Response and Motion.
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A copy of Roxana Bacon’s Report is attached hereto as Exhibit A.
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.
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An expert witness may testify “in the form of an opinion” if the expertise will
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help the trier of fact “understand the evidence or determine a fact in issue.” Ariz. R.
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Evid. 702(a). Here, there are no facts in issue. Therefore, there is no need for an expert.
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The pleadings establish that there are no facts at issue in this matter at this time.
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MCCCD admitted that it grants in-state tuition to DACA-eligible aliens. (MCCCD’s
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Answer, ¶ 13.) Its Disclosure Statement combines its discussion of facts and law into
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one section—Factual Basis and Legal Theories of Defenses—and then elaborates upon
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its legal position. (Defendant’s Initial Rule 26.1 Disclosure Statement, at 1 – 7, attached
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hereto as Exhibit B.) The Disclosure Statement describes no factual disputes, but
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instead states, “At the heart of the dispute between the Attorney General and MCCCD is
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whether DACA participants may present employment authorization documents as
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evidence of eligibility for resident tuition.” (Id., at 2.) Resolution of that question will
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turn on the meaning and effect of A.R.S. §§ 15-1803 and 1825, and their intersection
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with 8 U.S.C. §§ 1621 and 1623, the matters addressed by the Disclosure Statement.
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Not surprisingly, MCCCD listed no witnesses who could dispute the central issue—
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whether MCCCD can accept employment authorization documents as evidence of
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eligibility for in-state tuition.
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MCCCD’s attempt to convert Arizona’s motion for judgment on the pleadings to
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a motion for summary judgment fails to put any real facts in issue. MCCCD begins by
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acknowledging that “the resolution of this matter hinges on statutory construction.”
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(Defendant’s Motion for Summary Judgment and Response to Arizona’s Motion for
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Judgment on the Pleadings, at 1.) Its purported statement of facts simply recites the
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relevant law and legislative history. It describes “Federal and State Immigration
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Laws” in paragraphs 1-3 and the DACA program, in paragraphs 4-5. It then presents its
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legal conclusions as to “DACA Students’ Eligibility for Resident Tuition,” which is the
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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
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Excluded.
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A. The Court Should Exercise its Gatekeeper Function and Exclude the
Bacon Report.
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Recently-amended Rule of Evidence 702 charges trial courts with serving as
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“gatekeepers in assuring that proposed expert testimony is reliable and thus helpful to
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the jury's determination of facts at issue.” Arizona State Hosp. v. Klein, 231 Ariz. 467,
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473, ¶ 29, 296 P.2d 1003, 1009 (Ct. App. 2013) (quoting Ariz. R. Evid. 702, Comment
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to 2012 Amendment.) The United States Supreme Court described that function,
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saying where the “factual basis, data, principles, methods, or their application are called
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sufficiently into question, the trial judge must determine whether the testimony has a
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reliable basis in the knowledge and experience of the relevant discipline.”3 Kumho Tire
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Co. v. Carmichael, 526 U.S. 137, 149 (1999). Even where it is difficult to evaluate the
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reliability of an expert’s methodology, a court must still “determine if it is based upon
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sufficient facts or data and is the product of reliable principles and methods, and if the
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principles and methods have been applied reliably to the facts of the case.” Arizona
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State Hosp., 231 Ariz. at 473-74, ¶ 30, 296 P.3d at 1009-10 (quotation omitted) (noting
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that even though the Daubert factors do not “readily fit” the evaluation of expert
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psychological testimony, the court must still ensure such testimony is the product of a
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reliable methodology).
Here, the Court’s examination of Ms. Bacon’s report demonstrates conclusively
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that Ms. Bacon is doing nothing more than offering the Court her opinion, as a lawyer
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whose practice has focused on immigration law, regarding the meaning of the state
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statutes at issue. This she cannot do. As the California District Court explained, in
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excluding the expert opinion of renowned copyright expert David Nimmer in a
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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
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the witness' expertise) rather than simply an opinion broached by a purported expert.”
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Gable v. Nat’l Broadcasting Co., 727 F. Supp. 2d 815, 833 (C.D. Cal. 2010) (quotation
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omitted).
Moreover, a closer review reveals that Ms. Bacon lacks the expertise necessary to
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offer an opinion here.4 While Ms. Bacon’s report shows that she has practiced
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immigration law for many years, it does not establish that she is qualified to assist this
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Court in understanding the effect of the DACA Proclamation itself, much less qualified
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to help determine the meaning of A.R.S. §§ 15-1803 and -1825. The Bacon Report
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lacks any indication of the number of “deferred action” cases of any kind that she has
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ever handled. (Bacon Report, Exhibit A, Curriculum Vitae of Roxana Bacon.) We can
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infer that she has not represented any DACA-eligible aliens, because her last cited
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employment in private practice concluded 2006. (Id.) She claims to have been
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“involved personally in executive level discussions within” the federal agencies that
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“laid the groundwork for DACA,” (Bacon Report, at ¶ 4), to have “drafted
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memorandums for and with USCIS and DHS leadership” (id., at ¶ 5), and to have
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“remained in contact with [unnamed] key DHS employees as DACA program matured
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into an Executive Order and its current implementation phase.” (Id., at ¶ 6.) Yet, her
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report includes no details that would allow Arizona or this Court to evaluate whether her
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role was sufficient to merit deference. Her vague assertions do not indicate the nature of
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her involvement. And, she fails to attach the memoranda she drafted or to identify the
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“leadership” that received them. She also fails to explain how “remaining in contact”
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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 crossexamination.
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with unidentified “key” DHS employees qualifies her as an expert here. Of course,
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entirely absent is any explanation of how this information relates to understanding
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Arizona law.
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Ms. Bacon also fails to demonstrate that any methodology, let alone a reliable
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methodology, produced her report. She has not written on any serious topic for any
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legal journals. Nor is there any indication of sustained study on any topic. She has not
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exposed her opinions to her peers, to see if they stand up to scrutiny. As the Michigan
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district court explained, “without an indication that [the law professor’s] articles… were
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subject to meaningful peer review by other experts in that area of law, his writings and
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commentaries are really no more than one lawyer’s opinion.” Cicero v. Borg-Warner
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Automotive, Inc., 163 F. Supp. 2d 743, 747-48 (E.D. Mich. 2001).
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In short, while Rule 702’s requirement that expert opinion be informed by
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reliable methodology is not designed to exclude “experience-based” experts like Ms.
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Bacon, there is simply no indication that Ms. Bacon possesses relevant experience. Ms.
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Bacon’s work as the chief counsel for USCIS might qualify her to tell us something
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about the events that prompted DHS to issue the DACA Proclamation (although even
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that is doubtful, given that she left government service eighteen months before Secretary
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Napolitano issued the DACA Proclamation); however, that is not the issue here. Here,
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instead, the Court must interpret a voter-enacted state statute, passed six years before the
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DACA Proclamation was issued. Given that most of Ms. Bacon’s immigration work
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must necessarily have addressed questions of federal law, her qualifications for offering
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opinions as to matters of state law are simply not clear.
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Ms. Bacon’s expert report is also deficient in that it fails to establish her
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qualifications regarding the factual statements she does make. In laying the groundwork
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for her opinion, Ms. Bacon purports to provide the policy justification for DACA. She
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asserts that an interest in national security prompted DACA (Bacon Report, at ¶¶ 11- 14,
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16-17), that DACA is consistent with interest in national security (id., ¶¶ 18-19), that
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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
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(id., ¶ 22) or that it will improve the ability of law enforcement to locate DACA students
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easily later. (Id., ¶ 23). But nothing in Ms. Bacon’s background, which includes three
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decades in the private practice of immigration law in Arizona and barely eighteen
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months at United States Citizenship and Immigration Services, shows that she can offer
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these opinions. Nor does she seem to possess any qualifications that would allow her to
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opine regarding the purported economic benefits of DACA or the purported losses that
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are experienced by the economy because DACA-eligible aliens lack lawful status. (Id.,
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¶¶ 24- 26) She is not a social scientist or economist and does not appear to have done
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any work that would allow her to opine on the efficacy of the DACA policy.
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B. Expert Opinions on the Law Must Be Excluded.
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Even if this Court were to somehow conclude that Ms. Bacon possesses relevant
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expertise, it would still have to exclude her Report because it does nothing but tell this
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Court what the law is. Of course, that’s not surprising, given that the only issue here is
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the meaning of state statutes.
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It is beyond cavil that “an expert witness cannot give an opinion as to her legal
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conclusion, i.e., an opinion on an ultimate issue of law.” Mukhtar v. Cal. State Univ.,
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Hayward, 299 F.3d 1053, 1065 n.10 (9th Cir. 2002)(vacating and remanding for a new
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trial where “erroneous admission of exert testimony without proper reliability
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determination was not harmless”); overruled on other grounds, Estate of Barabin v.
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AstenJohnson, Inc., 740 F.3d 457, 467 (2014)5; see also Employers Reins. Corp. v. Mid-
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Continent Cas. Co., 202 F. Supp. 2d 1212, 1217 (D. Kan. 2002) (“An expert…may not
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apply the law to the facts of the case to form legal conclusions.”). “Resolving doubtful
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questions of law is the distinct and exclusive province of the trial judge.” Nationwide
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Transp. Fin. v. Cass Info. Sys., Inc., 523 F.3d 1051 (9th Cir. 2008) (quotations omitted).
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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
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subjects for expert testimony.” Aguilar v. Int’l Longshoremen’s Union Local No. 10,
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966 F.2d 443, 447 (9th Cir. 1992).
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Expert reports, like this one, that “read much like a legal brief” must be excluded.
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Gable, 727 F. Supp. 2d at 836.6 Here, the Bacon Report’s conclusions, found at ¶¶ 75 –
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90, address nothing but the interplay between federal and state law. She relies almost
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exclusively on the language of the statutes and an (incomplete) review of the legislative
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history in concluding that Arizona voters meant “lawful presence” when they said
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“lawful status” and that DACA-eligible aliens are therefore eligible for in-state tuition.
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C. Ms. Bacon’s Expert Opinions Omit Important Information.
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Ms. Bacon’s expert report must also be excluded because the information she
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offers is incomplete. For example, in ¶¶ 37-44, she asserts that DACA grantees are
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“lawfully present,” relying in part on USCIS Frequently Asked Questions (FAQs).
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However, she omits important information, found in those same FAQs. The USCIS
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FAQs state that the period of stay for DACA-eligible persons is considered to be
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authorized and that “for admissibility purposes, [a DACA-eligible alien is] considered to
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be lawfully present.” (USCIS FAQs, updated January 18, 2013, attached as Ex. G. to
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the Bacon Report, at AZ000011.) The inclusion of the phrase “for admissibility
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purposes” indicates that a DACA-eligible alien is not necessarily present for other
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purposes. This construction is borne out by this caveat included in the USCIS FAQs:
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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.
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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
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choose as to when it will consider DACA-eligible aliens “lawfully present:” As the
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district court stated in Arizona Dream Act Coalition v. Brewer, 945 F. Supp. 2d 1045,
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1061 (D. Ariz. 2013), “the Department of Health and Human Services (‘DHHS’) has
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determined that DACA recipients are not ‘lawfully present’ for purposes of health care
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benefits conferred on other deferred action recipients, 45 C.F.R. § 152.2(8).”
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Ms. Bacon’s description of DACA-eligible aliens’ ability to travel is also
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misleading. (Bacon Report, at ¶¶ 56-62.) While she labels the advance parole available
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to DACA-eligible aliens that allows them to travel as “irrefutable evidence” of lawful
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presence (id., ¶ 57), advance parole is, in fact, an uncertain proposition. Advance parole
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allowing travel requires advance permission, obtained, at the discretion of the federal
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government, after submitting a form and $360. (USCIS FAQs, at AZ000018.)
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Furthermore, USCIS allows travel only for limited purposes: humanitarian, education
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and employment. (Id.) Vacation is not a valid basis for parole. (Id.) Put simply,
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DACA-eligible aliens must pay $360 to apply for the privilege of leaving the country,
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must disclose their reasons for travel, and ensure that they fall within one of three
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limited categories of travel. They cannot leave the country until they receive
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permission, and will not know if permission will be granted until it is. See
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http://www.visanow.com/should-i-apply-for-advance-parole-if-i-have-deferred-action/,
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(last accessed June 17, 2014.) And, even if advance parole is granted, there is no
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guarantee that the parolee will be allowed back into the country. See
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http://www.nilc.org/FAQdeferredactionyouth.html (last accessed June 17, 2014); see
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also http://www.visanow.com/should-i-apply-for-advance-parole-if-i-have-deferred-
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action (“DHS can revoke an advance parole document at any time, . . .”) (last accessed
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June 17, 2014). Such conditional travel permission hardly qualifies as “irrefutable
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evidence” of lawful presence. These deficits render the Bacon report unreliable.
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Conclusion
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For the reasons stated above, this Court should exclude the Bacon Report and
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strike MCCCD’s Motion for Summary Judgment and Response to Motion for Judgment
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on the Pleadings. In the alternative, if the Court elects to consider the Bacon Report,
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Arizona should be permitted time to take discovery of MCCCD’s expert and retain its
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own rebuttal expert.
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Respectfully submitted this 20th day of June, 2014.
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THOMAS C. HORNE
Attorney General
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By:/s/Leslie Kyman Cooper
Kevin D. Ray
Leslie Kyman Cooper
Jinju Park
Assistant Attorneys General
1275 West Washington Street
Phoenix, Arizona 85007
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Attorneys for the State of Arizona
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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:
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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
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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
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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
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By: /s/Marie Gonzalez
#3856418
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