Defendants' Reply to Plaintiffs' Response


1 Case 1:07-cv-00344-LY Document 21 Filed 07/16/2007 Page 1 of 15 IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS AUSTIN DIVISION § VICKEE BYRUM, et al. Plaintiffs, § § Civil Action No. A-07-CA-344 LY v. § § GORDON E. LANDRETH, et al. § § Defendants. DEFENDANTS’ REPLY TO PLAINTIFFS’ RESPONSE TO DEFEND ANTS’ CROSS MOTION FOR SUMMARY JUDGMENT TO THE HONORABLE UNITED STATES DISTRICT JUDGE: Defendants Gordon Landreth, Alfred Vidaurri, Jr., R osemary Gammon, Robert Kyle Garner, Janet Parnell, Peter L. Pfeiffer, Diane Ste inbrueck, Peggy Lewene Vassberg, and James Walker, II (collectively “Defendants”) file this Re ply to Plaintiffs’ Response to Defendants’ Cross-Motion for Summary Judgment, respectfully sho wing the court as follows: The Texas Registration Law survives constitutional scrutiny because (1) it restricts speech that is misleading and deceptive to the gene ral public; and (2) it advances the state’s substantial interest in preventing consumers from b eing misled and is not more extensive than necessary to serve that interest. This reply first addresses Plaintiffs’ objections t o Defendants’ summary judgment evidence and established the admissibility of the e vidence. Next, Defendants address Plaintiffs’ arguments that the Registration Law fails the Central Hudson test. Defendants incorporate by reference herein Exhibits A – B. 1

2 Case 1:07-cv-00344-LY Document 21 Filed 07/16/2007 Page 2 of 15 I. ESPONSE TO E VIDENTIARY O BJECTIONS R The ICR Study A. Plaintiffs object to the International Communicatio ns Research (“ICR”) Study as inadmissible hearsay. Survey results may be admitt ed into evidence under the present sense impression or then existing state of mind exception s to hearsay. See F ED . R. E VID . 803(1), th Cir. 1981); 803(3); , 649 F.2d 1049, 1054 (5 C.A. May Marine Supply Co. v. Brunswick Corp. th Holiday Inns, Inc. v. Holiday Out in America , 481 F.2d 445, 447 (5 Cir. 1973); Simm v. Louisiana State Bd. of Dentistry , 2002 WL 257688. at *5 (E.D. La. 2002). “Surveys and customer questionnaires are admissibl e, if they are pertinent to the inquiry, upon a showing that the poll is reliable and was compiled in accordance with accepted survey methods.” Brunswick Corp. , 649 F.2d at 1054 (internal citation omitted). Su rveys are frequently admitted into evidence where, as here, the possibility of co nsumer confusion is at issue. See Brunswick ., Corp. , 649 F.2d at 1054; Exxon Corp. v. Texas Motor Exchange of Houston, Inc 628 F.2d 500, th 506 (5 Cir. 1980). The ICR survey is a reliable survey compiled in acc ordance with accepted survey methods. Defendants submit Exhibit A in response t o Plaintiffs’ concerns about the survey 1 methodology and reliability. The ICR survey was supervised by John DeWolf, who has 17 esearch for ICR. Exhibit A, at ¶ II. years of experience conducting market surveys and r Mr. DeWolf testified that in his professional opinion, the methods, protocols and models used in conducting the study are those which are commonly u sed and widely accepted for statistical 1 Plaintiffs argue that the ICR survey does not meet the seven factors set out in Toys R. Us, Inc. v. Canarsie Kiddie Shop, Inc. e at 4. The seven factors are commonly used to , 559 F. Supp. 1189, 1205 (E.D.N.Y. 1983). Respons determine the admissibility of surveys used in trad emark infringement cases. By contrast, the Supreme Court has employed a lower standard in admitting survey evide nce in commercial speech cases. See Florida Bar v. Went For It, Inc., 515 U.S. 618, 628 (1995) (“we do not read our case law to require that empirical data come to us accompanied by a surfeit of background information ...we have permitted litigants to justify speech rest rictions by reference to studies and anecdotes pertaining to di fferent locales altogether.”). Nonetheless, Mr. De Wolf’s affidavit demonstrates that the ICR survey meets all seven of the factors cited in Toys R. Us . 2

3 Case 1:07-cv-00344-LY Document 21 Filed 07/16/2007 Page 3 of 15 analysis of this sort. at ¶ IV. Neither Mr. DeWolf, nor any of the interv iewers conducting the Id. or the purpose for which the survey was to be telephone survey, had knowledge of this litigation Id. at ¶ VI. The interviewers who conducted the survey were competent professionals used. trained to conduct telephone survey in a non-leadin g and non-suggestive manner. Id. at ¶ III. Id. at ¶¶ IV & VII.. The survey polled over 1000 The survey questions were clear and objective. people, chosen as a representative sample of the un iverse of consumers who may make hiring Id. y of the at ¶ V. There is no reason to doubt the reliabilit decisions for design services. 2 nge the ICR survey is irrelevant and The ASID email Plaintiffs seek to admit to challe survey. 3 inadmissible. Alternatively, the ICR survey is admissible under the residual hearsay exception of Federal Rule of Evidence 807. The residual hearsay exception applies when: ial fact; (b) the statement is (a) the statement is offered as evidence of a mater than any other evidence which more probative on the point for which it is offered the proponent can procure through reasonable effort s; and (c) the general purpose 2 Plaintiffs imply that the survey is biased by noti ng that the survey was done by ICR under contract w ith the American Society of Interior Designers (ASID), a fa ct which Defendants stated openly in their Motion f or Summary Judgment evidence. ASID’s contract with ICR does n sults. The ot cast any doubt on the survey’s methodology or re fact that a survey is commissioned by a party to th e litigation or a group interested in the litigatio n does not impugn the survey’s trustworthiness. See Florida Bar v. Went For It, Inc., 515 U.S. 618, 626-27 (1995) (Supreme Court admitted into evidence study conducted by Defendant and survey commissioned by Defendant). As long as the survey interviewers are not aware of the purpose fo r which the survey is conducted, the survey results are not compromised. 3 VID ral grounds. First, the exhibit is irrelevant. F R. E . . 402. Defendants object to Plaintiffs’ exhibit 3 on seve ED had no impact on the survey. The survey was conduc ted by an As stated in fn 2, ASID’s interest in this lawsuit independent and respected survey company and those ation. See involved in the survey were not aware of this litig Exhibit A, Affidavit of John deWolf, at ¶ VI. The email Plaintiffs seek to introduce in Exhibit 3 is not proof that the survey methodology or results were compromised in a ny way by ICR’s contract with ASID. Thus, it is no t a proper challenge to Defendants’ evidence and has no releva nce to the issues in this lawsuit. Second, the pre judicial effect . 403. While the email has very little if any VID F ED . R. E e value. of Plaintiffs’ Exhibit 3 far outweighs its probativ ial. The inclusion of the exhibit is intended to c probative value, its prejudicial effect is substant ast doubt on the reliability of Defendants’ survey evidence and sugg est some collusion between Defendants and ASID. De fendants cannot control what emails are sent out by organiza and inferences tions unaffiliated and uncontrolled by Defendants, contained in such emails should not be used against Defendants. Third, the email is inadmissible hear say. Though Plaintiffs claim the exhibit is submitted simply fo r the significance of the matters asserted, the exh ibit has no effect if the substance of the email is not considered. P volvement makes laintiffs use the exhibit to suggest that ASID’s in the study untrustworthy. In order to demonstrate t his, Plaintiffs essentially rely on the substance o f the email, or the truth of the matters asserted. Finally, Plaintiffs have provided no authentication for this email. T here is no showing that the email is a true and correct copy of an ema il sent by ASID. 3

4 Case 1:07-cv-00344-LY Document 21 Filed 07/16/2007 Page 4 of 15 of these rules and the interest of justice will bes t be served by admission of the [survey] into evidence. nd , 189 F.3d 218, 231 (2 Schering Corp. v. Pfizer Inc. Cir. 1999). The ICR survey is offered as evidence of a materia l fact—whether consumers are likely to be misled by unlicensed individuals using the term “interior design.” A survey of public perception regarding the licensing of des ign professionals is more probative than any other evidence that could be offered on th is point. Courts have relied on survey evidence in commercial speech cases similar to this one to determine whether speech is misleading. See e.g. Florida Bar v. Went For It, Inc., 515 U.S. 618, 626-27 (1995); Seabolt v. Texas Board of Chiropractic Examiners , 30 F.Supp.2d 965, 968 (S.D. Tex. 1998); Simm , 2002 WL 257688. at *5. The interest of justice f avors admitting this survey into evidence. nt because Defendants failed to Plaintiffs complain that the ICR Study is irreleva ask the questions Plaintiffs suggest should have be en asked. Response at 4. Any mat of the question or the manner in technical objections to the survey, such as the for which the survey was taken, bear on the survey’s we ight, not its admissibility. See th , 698 F.2d 786, 795 (5 Cir. 1983); C.A. Zatarains, Inc. v. Oak Grove Smokehouse, Inc. May Marine Supply Co. , 649 F.2d at 1055 n. 10; Holiday Inns, Inc. v. Holiday Out in th , 481 F.2d 445, 447 (5 America Cir.1973); Simm , 2002 WL 257688, at *6 (finding that “quibbles” over the language of a survey used in a commercial speech case do not affect the survey’s admissibility). Furthermore, the ICR survey is clearly relevant to this lawsuit. The survey established that more than hal f of those surveyed felt it was deceptive or misleading for both a licensed profess ional and an unlicensed practitioner to use the exact same professional title, and almost t hree-quarters of respondents reported 4

5 Case 1:07-cv-00344-LY Document 21 Filed 07/16/2007 Page 5 of 15 that it was important to them that a professional h ired to provide services be licensed. he ICR survey provides relevant These issues are the core of Defendants’ case and t evidence. B. Gordon Landreth’s Affidavit Plaintiffs contend that some statements in Gordon Landreth’s affidavit are not made with personal knowledge and are irrelevant. Response at 5. In response to Plaintiffs’ concerns about Mr. Landreth’s personal knowledge, Defendants submi t an amended affidavit as Exhibit B. The amended affidavit touches on the same topics as the original affidavit but provides more clarification as to the basis for Mr. Landreth’s op inions. Federal Rule of Civil Procedure 56(e) requires that summary judgment affidavits be based upon personal knowledge, contain admissible evidence, and affirmatively demonstrate the competency of the affiant to testify as to Lodge Hall Music, Inc. v. Waco Wrangler Club, Inc., matters contained therein. 831 F.2d 77, 80 (5th Cir.1987). these requirements. Gordon Landreth’s amended affidavit fulfills all of As the chair of the Texas Board of Architectural E xaminers (“TBAE” or “Board”), Mr. e Board’s role, duties, and mission. Mr. Landreth is uniquely positioned to testify about th Landreth has the responsibility to ensure that the Board fairly enforces the laws of the State and acts in a way that protects the health, safety and welfare of the public. Exhibit B, at ¶ V. His affidavit explains how the Board carries out its mi ssion, and why and how the Board enforces the Registration Law. In addition, Mr. Landreth’s opinion regarding his understanding of the Registration Law is admissible. Federal Rule of Evidence 701 allows opinion testimony by lay witnesses if the opinions are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness’ testimony of the dete rmination of a fact in issue, and (c) not based 5

6 Case 1:07-cv-00344-LY Document 21 Filed 07/16/2007 Page 6 of 15 on scientific, technical, or other specialized know ED . R. ledge within the scope of Rule 702. F VID E om the witness’ perception of facts or . 701. Witness testimony as to inferences drawn fr data reviewed is admissible. See Beech AICRraft Corp. v. Rainey , 488 U.S. 153, 169 (1988) (“Rule 701 permits even a lay witness to testify in the form of opinions or inferences drawn from her observations when testimony in that form will b e helpful to the trier of fact.”); U.S. v. rd Polishan Cir. 2003) (“Lay opinion testimony may be based on the , 336 F.3d 234, 242 (3 witness's own perceptions and knowledge and partici pation in the day-to-day affairs of [the] business.”)(internal citation and quotation marks o mitted). Mr. Landreth’s understanding of the purpose of the Registration Law is rationally based on his perception of the legislative record, citize n comments, and his knowledge of the TBAE. Exhibit B, at ¶ III. His opinion as chair of the T BAE is helpful to a determination of the purpose of the Registration Law as well as whether the Regi stration Law furthers a substantial state interest, key issues in this lawsuit. Mr. Landreth ’s opinions are based solely on his experience as chair of the Board and as a citizen of the state, n ot on any scientific or technical expertise. Mr. Landreth’s testimony about his own perceptions of t he Registration Law, and the ways the BAE, is admissible opinion testimony. Registration Law is construed and enforced by the T 1. Committee on State Affairs Interim Report Part of what Mr. Landreth considered in examining the legislative history of the st Texas ives Interim Report to the 71 Registration Act was the Texas House of Representat Legislature (Exhibit 1 attached to Affidavit of Gor don Landreth). Plaintiffs admit the Interim 3 contains inadmissible hearsay. Report is admissible in principle but claim that it Response at 4. 3 Plaintiffs correctly point out that the Interim Rep ort submitted by Defendants with their Cross-Motion for Summary Judgment was incomplete. Defendants apolog ize that the report submitted with Defendants’ moti on was missing every other page. This was a clerical error and was not intentional. Defendants forwarded a f ull and corrected version of the Interim Report to Plaintif fs’ counsel as soon as the error was brought to Def endants’ 6

7 Case 1:07-cv-00344-LY Document 21 Filed 07/16/2007 Page 7 of 15 The legislative report, and all statements therein, are admissible as a public record, pursuant to ons and conclusions contained in these Federal Rule of Evidence 803(8). Statements, opini s are based on a factual investigation; and (2) reports are admissible as long as (1) all statement sufficiently trustworthy. F ED . R. any portion of the report that is admitted must be VID . E 803(8)(c); See Beech AICRraft , 488 U.S. at 169 (adopting a broad interpretation of “fa ctual 4 ns or conclusions). Courts repeatedly findings” to encompass reports which contain opinio allow reports of congressional committees as except See. e.g. Moss v. ions to the hearsay rule. th Ole South Real Estate, Inc. , 933 F.2d 1300, 1307-08 (5 Cir. 1991) (noting that evaluative reports are generally reliable and do not have the problems associated with most hearsay); st Cir. 1948) (“The official report of a legislative or , 168 F.2d 474, 479 (1 Stasiukevich v. Nicolls congressional committee is admissible in evidence i n a judicial proceeding, as an exception to the hearsay rule, where the report, within the scop e of the subject matter delegated to the committee for investigation, contains findings of f act on a matter which is at issue in the judicial proceeding.”)(citing Wigmore on Evidence , §§ 1662, 1670). The Interim Report is highly relevant to the quest ion of legislative intent. The Supreme source for finding the Legislature's intent lies Court has “repeatedly stated that the authoritative in the Committee Reports on the bill.” Garcia v. U.S. The Committee , 469 U.S. 70, 76 (1984). of investigating, through public hearings and on State Affairs was taxed with the responsibility nterior design profession. See e.g. T testimony, the feasibility of a regulation on the i . G OV EX T ’ attention. Attached as Exhibit 2 to Exhibit B is a corrected version of the Interim Report. Defendan ts ask the Court to substitute this corrected exhibit for the previo us version submitted. 4 ed a nonexclusive list of four factors to consider in The Advisory Committee to the Federal Rules propos determining the admissibility of an investigation u nder Fed. R. Evid. 808(8): (1) the timeliness of th e investigation; (2) the investigator's skill or experience; (3) whe ther a hearing was held; and (4) possible bias when reports are prepared with a view to possible litigation (citing Palmer v. Hoffman, 318 U.S. 109 (1943)). Advisory Committee's st Notes on Fed. R. Evid. 803(8). The Interim Report legislative was prepared by the House committee during the 71 session while the Registration Law was being debate d, long before any litigation arose. The House com mittee held public hearings on the subject matter of the report . The Interim Report meets all of the Palmer factors. 7

8 Case 1:07-cv-00344-LY Document 21 Filed 07/16/2007 Page 8 of 15 C §301.014(a)(1)-(3). This report summarizes the di fferent positions of the bill’s proponents ODE ade based on factual investigation, and opponents. The statements in the report were m ted to statements in this report being testimony, and analysis. Plaintiffs have not objec th untrustworthy. See Mole v. Ole South Real Estate Cir. 1991) , 933 F.2d 1300, 1350 (5 (opponent bears the burden of showing report to be untrustworthy). The report, the statements contained therein, and Mr. Landreth’s comments rega rding the report contained in his affidavit are admissible. 2. Transcript of Hearing on Architectural Decisions Sunset Meeting Mr. Landreth also reviewed a transcript of the tes timony before the Sunset Meeting during a Hearing on Architectural Decisions held on August 15, 1990. See Exhibit 2 to Affidavit of Gordon Landreth. This document was transcribed by Staci Williams, a certified court reporter, on June 17, 2007 from legislative tapes. Courts may take judicial notice of legislative ent challenging the constitutionality of a testimony in determining a motion for summary judgm Levy v. Scranton , 780 F. Supp. 897, 900-01 (N.D.N.Y. 1991); Stasiukevich statute. , 168 F.2d at 479. Defendants ask this court take judicial notic e of this transcript, pursuant to Federal Rule of Evidence 201, and consider it in making its determi nation of Defendants’ motion for summary judgment. 3. Letter and Written Testimony from Citizens’ Grou ps In response to Plaintiffs’ hearsay objection, Defe ndants have addressed the evidentiary concerns relating to these exhibits. The letter fr om Alan Fondy, Field Consultant for the State Firemen’s and Fire Marshalls’ Association of Texas dated April 13, 1989 and the written testimony from Carole Patterson (now Carole Zoom) o n behalf of the Coalition of Texans with 8

9 Case 1:07-cv-00344-LY Document 21 Filed 07/16/2007 Page 9 of 15 Disabilities ( Exhibits 3 and 4 of Affidavit of Gordon Landreth) a re resubmitted with see ring any hearsay objections. authenticating affidavits from the authors, thus cu Gordon Landreth relied on the State Firemen’s and F ire Marshalls’ Association letter and Carole Patterson’s written testimony as evidence of concerns from citizens’ groups. These exhibits informed his understanding of the purposes underlying the Registration Law. See Exhibit B, at ¶ VIII. He quotes from these sources not for the truth of the statements contained therein, but to show what he reviewed and relied on them in forming his opinions about the Registration Law. C. Congressman Gene Green’s Affidavit While Congressman Green was a Texas State Senator, he authored and worked on the passage of the Registration Law. As the author of the bill and the chair of the conference committee which conducted hearings on the bill, Con gressman Green is uniquely positioned to provide his opinion about the law’s intent. Indeed , it would be hard to find an individual with more personal knowledge about the legislative intent of this bill than Congressman Green. s Legislature when making these Congressman Green does not speak as the entire Texa he bill. His familiarity with the law and the statements in his affidavit, but as the author of t fficient foundation for Congressman Green to concerns expressed during the public hearings is su provide his opinions about what he perceived as the intent and purpose of the Registration Law. Further, his impressions, beliefs and intentions re lating to the passage of this law are relevant to this case. His testimony is relevant as it goes di rectly to the issue of whether or not the government has a substantial interest that is being advanced by the Registration Law. EGISTRATION C ONSTITUTIONALITY OF THE R L AW II. 9

10 Case 1:07-cv-00344-LY Document 21 Filed 07/16/2007 Page 10 of 15 5 Central Hudson factors. The speech Plaintiffs seek The Registration Law passes all four to engage in is inherently misleading, as demonstra ted by the ICR survey. Plaintiffs attack the survey but offer no rebuttal evidence of their own. Plaintiffs only “support” for their position is the ASID website, which Plaintiffs claim lists some individuals who are unlicensed in Texas as interior designers. This “evidence” is wholly irre levant. ASID and TBAE are entirely separate over ASID and are not at all responsible for control and unaffiliated entities. Defendants have no be struck down as unconstitutional based on what is on ASID’s website. Surely the law will not the existence of misleading information on the inte rnet. If Plaintiffs’ claims about ASID’s website are true, then ASID would be providing misleading information. But this has no bearing on the constitutionality of the Texas Registration Law. In determining whether speech is inherently mislea ding, Courts look to whether the terms at issue have specific meaning, such that their use would be likely to mislead the public. See th Kale v. Cir. 2004); , 353 F.3d 1099, 1101 (9 American Academy of Pain Management v. Joseph South Carolina Dept. of Health and Environmental Co ntrol , 391 S.W.2d 5733, 574 (S.C. 1990). When the terms have a specific meaning—as do “inter ior design” and “interior designer”—their use by those who do not meet the requirements for u se of the terms is inherently misleading. Plaintiffs do not persuasively distinguish the case s cited by Defendants on this point. Plaintiffs state that in Joseph , California had an “obvious, substantial, and well -documented interest in preventing terms like ‘board certified’ from being co-opted by ad hoc, fly-by-night, ‘certifying’ entities.” Response at 10. It is not clear why Te xas would not have a similar substantial interest in preventing terms like “interior designer” from b eing co-opted by ad hoc, unlicensed and th Cir. 1982), untrained decorators. In distinguishing Maceluch v. Wysong , 680 F.2d 1062 (5 Plaintiffs note that there are important difference s in training and public perception between 5 Central Hudson Gas & Elec. Corp v. Public Service C ommission of New York , 447 U.S. 557, 563-64 (1980). 10

11 Case 1:07-cv-00344-LY Document 21 Filed 07/16/2007 Page 11 of 15 ining between interior decorators and M.D.’s and D.O.’s. However, the differences in tra licensed interior designers are arguably even great er (given that interior decorators are not required to have any training at all, while interior designers have sign ificant training and t’s reasoning in Maceluch , the Registration education requirements). Based on the Fifth Circui Law should be found constitutional. th Pruett v. Harris County Bail Bond Board , 2007 WL 1632697 (5 Plaintiffs’ reliance on Cir. June 7, 2007) is misplaced. In contrast to , Defendants do not argue that the speech at Pruett issue is misleading because a statute says the spee ch is misleading. Rather, Defendants argue that the speech is misleading because empirical and anecdotal data shows the speech to be misleading. The Registration Law addresses the mis leading nature of the underlying speech at issue, unlike the law at issue in Pruett . If the underlying speech is inherently misleadin g, the speech is outside the protection of the First Amend ment and the government can regulate the Seabolt v. Texas Bd. of Chiropractic Examiners speech as it sees fit. , 30 F.Supp.2d 965, 968 (S.D. Tex. 1998). itle “interior designer” by unlicensed The legislative record indicates that use of the t . O . § CC EX C ODE practitioners created confusion in the marketplace before the challenged law, T 1053.151, was adopted. See Interim Report at 9 and Legislative testimony at 11 -12. The confusion does not come of Texas Occupation Code § 1053.151; indeed, § 1053 .151 because was passed to address this confusion. Defendants a re not making a “circular” argument as was arguably the case in Pruett. The argument is actually quite linear and straightf orward— legislators determined that consumers are harmed wh en unlicensed practitioners hold themselves out as interior designers; in response, the legisla ture passed a law to restrict this behavior, in keeping with the legislature’s role of protecting T exas consumers. Defendants now present 11

12 Case 1:07-cv-00344-LY Document 21 Filed 07/16/2007 Page 12 of 15 evidence that the legislature’s solution was not un is constitutional because the underlying speech 6 inherently misleading. Plaintiffs appear to be arguing that the State may never enact a facially constitutional restriction upon misleading commercial speech becau se such a restriction would be based upon a determination that the speech is misleading. Plain tiffs’ argument not only is in derogation of commercial speech jurisprudence, it is an indulgenc e in the same sort of circular reasoning Plaintiffs ascribe to Defendants. Plaintiffs then revert to the argument that technically true statements are not misleading. Response at 6. Com mercial speech cases have repeatedly held a true statement may be restricted as misleading or d See Defendant’s Motion for eceptive. Summary Judgment at 8-10 (discussing Joseph and Peel v. Attorney Registration and Disciplinary Comm’n of Illinois , 496 U.S. 91 (1990)). On the second Central Hudson prong, Defendants have shown a substantial state in terest in protecting consumers from misleading advertiseme nt and ensuring the accuracy of commercial information in the marketplace. Edenfield v. Fane , 507 U.S. 761, 769 (1993). This of advertising for professional services because of state interest is especially strong in the context the high possibility of abuse. In re R.M.J. , 455 U.S. 191, 202 (1982). The Registration Law Plaintiffs have not refuted this point, but have directly advances this substantial state interest. ly” cannot be met. Response at 8-9. simply stated conclusorily that this prong “obvious Defendants have provided evidence of the legislativ e intent to further these substantial state 6 Pruett can also be distinguished on the basis that Defenda nts in Pruett pointed to a different statute altogether (from the Business and Commerce Code) in order to d efend the constitutionality of the challenged statu te (under the Occupation Code). Here, Defendants do not point to heir a statute outside the Occupation Code to support t argument but rather ask the Court to read the provi sions of the Occupation Code together as a whole in order to give them their proper meaning as intended by the legisl ature. This is in keeping with a well-settled cano n of statutory construction that “the provisions of a unified stat utory scheme should be read in harmony, so that no provision is left inoperative, superfluous, or contradictory.” E.E.O.C. v. Exxon Corp. , F.Supp.2d 635, 642 (N.D. Tex. 1998) ( citing Holley v. United States , 123 F.3d 1462, 1468 (Fed. Cir. 1997)). Reading t he provisions of a statute together is not bootstrapping. 12

13 Case 1:07-cv-00344-LY Document 21 Filed 07/16/2007 Page 13 of 15 committee Interim Report, the testimony interests. The affidavit of Congressman Green, the from the senate hearing, and the letters and testim ony from consumer groups all support Defendants’ position that the Registration Law furt hers a substantial state interest of ensuring the accuracy of information provided to consumers. Pla intiffs have provided no evidence to the contrary. Finally, the Registration Law is reasonably tailor ed to the State’s interest. Even if the law is imperfect, the legislature’s judgment should not be second-guessed. Board of Trustees of State University of N.Y. v. Fox , 492 U.S. 469, 477 (1989). Though Plaintiffs urge what they terest, absent a showing that the Registration consider to be a better way to advance the state in Law is “substantially excessive,” the law should no Id. t be struck down. RAYER FOR R ELIEF III. P Defendants pray that Plaintiffs’ Motion for Prelim inary Injunction and Plaintiffs’ Motion for Summary Judgment be denied. Defendants further pray that Defendants’ Motion for Summary Judgment be granted and that Plaintiffs’ cl aims be dismissed with prejudice. Defendants pray for such other relief to which they may be justly entitled. 13

14 Case 1:07-cv-00344-LY Document 21 Filed 07/16/2007 Page 14 of 15 Respectfully submitted, GREG ABBOTT Attorney General of Texas KENT C. SULLIVAN First Assistant Attorney General DAVID S. MORALES Deputy Attorney General for Litigation ROBERT B. O’KEEFE Chief, General Litigation Division /s/ Marina Grayson MARINA GRAYSON Texas Bar No. 24042098 ERIKA M. LAREMONT Texas Bar No. 24013003 Assistant Attorney General General Litigation Division Post Office Box 12548, Capitol Station Austin, Texas 78711-2548 512-463-2120 512-320-0667 ( Fax ) ATTORNEYS FOR DEFENDANTS 14

15 Case 1:07-cv-00344-LY Document 21 Filed 07/16/2007 Page 15 of 15 CERTIFICATE OF SERVICE I certify that on July 16, 2007, a true and correc t copy of the foregoing document was filed with the Court’s ECF system and send via the ECF electronic notification system to: Cindy Olson Bourland Merica & Bourland, P.C. th 400 West 15 Street STE 900 Austin, Texas 78701 William H. Mellor Clark M. Neily Institute for Justice 901 North Glebe Road, STE 900 Arlington, Virginia 22203 Jennifer M. Perkins 398 South Mill Avenue, STE 301 Phoenix, Arizona 85281 /s/ Marina Grayson MARINA GRAYSON Assistant Attorney General 15

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