14 15 August, 2006   
(corrected and expanded from last night's version)

Kim Strach
NC State Board of Elections
P.O. Box 27255
Raleigh, NC 27611

Dear Mrs. Strach,

I am in receipt of a Subpoena from the NC SBOE, issued at the request of Richard T. Morgan.  I am in the process of trying to comply with this subpoena.

Unfortunately, that is not easy.  This subpoena is one of the most poorly written legal documents that I have ever encountered.  The average sentence is more than 160 ungrammatical words long, with an apparently random sprinkling of commas thrown in.  Instead of writing in true paragraphs, the writer just wrote each sentence as a paragraph.  Worse yet, the 160+ words in an average sentence include more than 10 "or"s and 3 "and"s, with few clues about the intended precedences.

All of this makes deciphering the intended meaning problematic, but I've made a valiant attempt to parse it.  However, I have some questions about the four main sentences/paragraphs in the subpoena, which describe the material requested:

Question #1:  The subpoena repeatedly refers to, "primary election contests in NC House Districts 10 (Rep. LaRoque), 14 (Rep. Grady), 40 (Rep. Eddins), 52 (Morgan), or 79 (Rep. Howard)."  May I assume this is referring to the 2006 primaries, and not to previous primaries (2004, 2002, 2000, 1998, etc.)?

Question #2: Every sentence in the subpoena begins with the following phrase: "All documents that constitute, refer or relate to any communication (or evidence of communication) since January 1, 2006 concerning plans or actions in primary election contests in NC House Districts 10 (Rep. LaRoque), 14 (Rep. Grady), 40 (Rep. Eddins), 52 (Morgan), or 79 (Rep. Howard) or any response to the filing of the Petition with the State Board of Elections against RLM by Richard T. Morgan…"  There are two obvious possible interpretations of that phrase, depending on whether shallow or deep binding is intended for the 5th "or" in the phrase.  (That is one of the many ambiguities in this subpoena.)

The phrase could mean what I will call Interpretation #1:
All 2006 documents concerning either:
        a)  Plans or actions in any of the 5 primaries, or
        b)  Responses to Mr. Morgan's compaint to the SBOE

Or it could mean Interpretation #2:
All 2006 documents concerning plans or actions either:
        a)  in any of the 5 primaries, or
        b)  in response to Mr. Morgan's complaint to the SBOE

The difference, of course, is that Interpretation #1 is considerably broader than Interpretation #2, with respect to responses to Mr. Morgan's complaint.  Interpretation #2 requests only documents which pertain to plans or actions in response to Mr. Morgan's complaint.  But Interpretation #1 requires all documents which respond in any way to Mr. Morgan's complaint, including innocuous email comments like, "hey, did you see on WRAL that Morgan has filed a complaint with the SBOE?"

Please tell me which of these two interpretations is the intended one.

Question #3:  The second sentence/paragraph appears to request a subset of the documents already requested in the first paragraph.  That makes no sense to me.  Please tell me what documents sought in the second paragraph are not covered by the first.

Question #4: There is no reference at all in the third sentence/paragraph to any of the respondents of Mr. Morgan's complaint.  Was that omission accidental or intentional?  Did you truly intend to subpoena documents which have nothing at all to do with Morgan's complaint?  Or was it intended to only request documents which also have some connection to the respondents named in Mr. Morgan's complaint?

Question #5:  Is the third sentence/paragraph asking for documents related to my complaints, which I filed with the SBOE in March and May of this year?  If so, may I ask what relevance that request has to Mr. Morgan's complaint?

Question #6:  The final sentence/paragraph is particularly ambiguous, with numerous "or"s that could be interpreted as referring to varying parts of the sentence.  But may I at least assume that my two complaints to the SBOE are not the sort of "SBOE filing" to which it refers (since my complaints do not mention Mr. Pope, or the RLM, or Variety Stores)?

Question #7:  Because of my inability to understand 200-word sentences, I've attempted to prune down the four sentences/paragraphs in this subpoena to manageable size.  I did so mainly by defining shorthand definitions which can be substituted for the long descriptions and lists in the original complaint.  I realize that the result is still ambiguous, pending your answers to the above questions, but will you please at least tell me if I have correctly parsed the rest of it, and if not what mistakes I have made?  Here it is (in bold-face):

Part I.  Definitions.

2006Documents = Documents written or received since January 1, 2006.

PertainTo = "constitute communication concerning, or refer or relate to any communication (or evidence of communication) concerning"

SBOE = The North Carolina State Board of Elections.

Morgan = Rep. Richard T. Morgan

Pope = James Arthur "Art" Pope.

RLM = Republican Legislative Majority of North Carolina, Inc., its directors, officers, employees, and agents (including Robert Shaw, John Blust, Billy Creech, and Heather Royster).

Variety = Variety Wholesalers, Inc./Variety Stores, Inc., its directors, officers, employees, and agents.

PopeEtc = Pope, Variety, and RLM.

The5Primaries = The 2006 primary election contests in NC House Districts 10 (Rep. LaRoque), 14 (Rep. Grady), 40 (Rep. Eddins), 52 (Morgan), and/or 79 (Rep. Howard).

MorgansPetition = The Petition filed with the SBOE against RLM by Morgan on April 12, 2006.

MorgansLetter = The April 24, 2006 letter from Richard T. Morgan's attorney (Michael Weisel) to the SBOE.

The16NamedMorganAllies = The 16 people who (according to the subpoena) were named in MorgansPetition and/or MorgansLetter: Morgan, Julia Howard, David Miner, Rex Baker, Michael Decker, Debbie Clary, Michael Gorman, Stephen LaRoque, Keith Williams, Carolyn Justice, Bonner Stiller, John Sauls, Robert Grady, Rick Eddins, Ken Fortenberry and Joe Kiser.

The5RespondentCandidates = Pollard, Avila, Starling, Mitchell, and Boylan.

The5RespondentCommittees = The five Candidate Committees for the 2006 Primary and General elections, for The5RespondentCandidates.  The committees are named: Committee to Elect Tommy Pollard; Committee to Elect Marilyn Avila; Committee to elect Willie Ray Starling; Frank Mitchell for NC House; and Boylan for NC House.

NCGOP = The directors, officers, employees, and agents of any entity of the North Carolina Republican Party or its Executive Committee.

NCREC = The Executive Committee of the NCGOP.

The8Companies = The directors, officers, employees, and agents of the following seven companies and one committee: RLM, Variety, J. N. Dollar Associates, Lead Source Marketing, Majority Communications Inc., Metro Productions, The Stewart Group Inc., and Tel Opinion Research.

TheRepublicansEtc = NCGOP, The8Companies, Pope, The5RespondentCandidates, The5RespondentCommittees, Ferrell Blount (NC GOP employee), Dave Burton (NCREC member), Chris Farr (NCREC member), Robert Kane (NC GOP employee), Judy Keener (NCREC member), Elizabeth Kelly (former Moore Co. GOP chair), W. Edwin McMahan (House member), Bill Peaslee (NC GOP employee), John Rhodes (House member), Claudia Rodgers (NCREC member), Douglas "Dee" Stewart (Boylan consultant).

Part II.  Documents Required:

1. 2006Documents that PertainTo plans or actions in The5Primaries or any response to the filing of MorgansPetition or any other SBOE filing referencing PopeEtc.

2. 2006Documents that PertainTo plans or actions in The5Primaries or any response to the filing of MorgansPetition between or referencing PopeEtc and The5RespondentCandidates or The5RespondentCommittees.

3. 2006Documents that PertainTo plans or actions in The5Primaries or any response to the filing of MorgansPetition or any other SBOE filing in the subpoena recipient's possession or control referencing any of The16NamedMorganAllies.

4. 2006Documents that PertainTo plans or actions in The5Primaries or any response to the filing of MorgansPetition or any other SBOE filing in the subpoena recipient's possession or control between or referencing PopeEtc and any of TheRepublicansEtc.

Using the above simplified version of the document description from the subpoena, my "Question #1" could be rewritten by asking which of these parenthesizations is correct for paragraph/sentence 1 of the subpoena.

Interpretation #1:
1. 2006Documents that PertainTo ((plans or actions in The5Primaries) or (any response to the filing of (MorgansPetition or  (any other SBOE filing referencing PopeEtc)))).

The use of indentation can help to clarify how the parenthesis pair.  Interpretation #1 could be indented like this:
1. 2006Documents that PertainTo
      (        (plans or actions in The5Primaries)
         or  (any response to the filing of
                   (       MorgansPetition
                      or  (any other SBOE filing referencing PopeEtc)
                   )
               )
      ).

Interpretation #2:
1. 2006Documents that PertainTo plans or actions in (The5Primaries or (any response to the filing of (MorgansPetition or (any other SBOE filing referencing PopeEtc)))).

Interpretation #2 can be indented like this:
1. 2006Documents that PertainTo plans or actions in
      (       The5Primaries
         or  (any response to the filing of
                   (      MorgansPetition
                      or (any other SBOE filing referencing PopeEtc)
                   )
              )
      ).

Interpretation #1 is obviously much more expansive than Interpretation #2. 

But my Question #1 (above) is just about the opening phrase.  When the entire sentence/paragraph is considered many more parenthesizations are possible, leading to many more plausible interpretations, e.g.:

Interpretation #3:
1. 2006Documents that PertainTo ((plans or actions in The5Primaries) or (any response to the filing of MorgansPetition) or (any other SBOE filing referencing PopeEtc)).

Interpretation #3 can be indented like this:
1. 2006Documents that PertainTo
      (        (plans or actions in The5Primaries)
         or  (any response to the filing of MorgansPetition)
         or  (any other SBOE filing referencing PopeEtc)
      ).

Interpretation #4:
1. 2006Documents that PertainTo plans or actions in (The5Primaries or (any response to the filing of MorgansPetition) or (any other SBOE filing referencing PopeEtc)).

Interpretation #4 can be indented like this:
1. 2006Documents that PertainTo plans or actions in
      (       The5Primaries
         or  (any response to the filing of MorgansPetition)
         or  (any other SBOE filing referencing PopeEtc)
      ).

Note: Just as Interpretation #1 is obviously much more expansive than Interpretation #2, so Interpretation #3 is much more expansive than Interpretation #4.  Interpretation #3 would include, for example, any emails which forwarded or mentioned press coverage of Mr. Morgan's petition to the SBOE, regardless of whether or not they had anything to do with Pope/RLM/Variety. 

Interpretation #5:
1. 2006Documents that PertainTo ((plans or actions in The5Primaries) or (any response to the filing of MorgansPetition) or (any other SBOE filing)) referencing PopeEtc.

Interpretation #5 can be indented like this:
1. 2006Documents that PertainTo
      (        (plans or actions in The5Primaries)
         or  (any response to the filing of MorgansPetition)
         or  (any other SBOE filing)
      )
   [while also] referencing PopeEtc.

Interpretation #6:
1. 2006Documents that PertainTo (plans or actions in (The5Primaries or (any response to the filing of MorgansPetition) or (any other SBOE filing))) referencing PopeEtc.

Interpretation #5 can be indented like this:
1. 2006Documents that PertainTo
      (plans or actions in
           (       The5Primaries
             or  (any response to the filing of MorgansPetition)
             or  (any other SBOE filing)
           )
      )
   [while also] referencing PopeEtc.

Note: Interpretations #5 & #6 are similar to Interpretations #3 & 4, except that the "referencing PopeEtc" clause is interpreted to apply to all the referenced documents.  That makes sense considering the context of the subpoena, which is "In Re: Morgan v. RLM et al."  

Interpretation #7:
1. 2006Documents that PertainTo ((plans or actions in The5Primaries) or (any response to the filing of (MorgansPetition or (any other SBOE filing)))) referencing PopeEtc.

Interpretation #7 can be indented like this:
1. 2006Documents that PertainTo
      (        (plans or actions in The5Primaries)
         or  (any response to the filing of
                   (        MorgansPetition
                      or  (any other SBOE filing)
                   )
               )
      )
   [while also] referencing PopeEtc.

Interpretation #8:
1. 2006Documents that PertainTo (plans or actions in (The5Primaries or (any response to the filing of (MorgansPetition or (any other SBOE filing))))) referencing PopeEtc.

Interpretation #8 can be indented like this:
1. 2006Documents that PertainTo
      (plans or actions in
           (       The5Primaries
             or  (any response to the filing of
                       (        MorgansPetition
                          or  (any other SBOE filing)
                       )
                   )
           )
      )
   [while also] referencing PopeEtc.

Other interpretations of paragraph/sentence 1 are also possible, if other parenthesizations are assumed.  Moreover, paragraph/sentence 1 is the easiest one!  The others are even more ambiguous (especially the last one).

I really need some guidance!  For instance:

Question #8:  May I assume that only documents which reference (or are either to or from) one or more of the respondents named in Mr. Morgan's complaint are required by this subpoena? 

Also, I've never seen either Mr. Morgan's petition or his follow-up letter to the SBOE.  Will you please provide me with copies of them, or tell me where I can find them on the Internet?

Please reply quickly, because this subpoena gives me very little time to collect the requested documents, and I need to know what is being requested before I can collect them.

Sincerely yours,

David Burton
109 Black Bear Court
Cary, NC 27513   (919) 481-0098

P.S. – I typed in description or the required documents from the original subpoena (exclusive of footnotes), as part of my efforts to parse it.  For your convenience, here it is, though I cannot promise that it contains no typographical errors (and, indeed, the underlined phrase was accidentally omitted in the first version of this letter):

All documents that constitute, refer or relate to any communication (or evidence of communication) since January 1, 2006 concerning plans or actions in primary election contests in NC House Districts 10 (Rep. LaRoque), 14 (Rep. Grady), 40 (Rep. Eddins), 52 (Morgan), or 79 (Rep. Howard) or any response to the filing of the Petition with the State Board of Elections against RLM by Richard T. Morgan or any other State Board of Elections filing between or referencing any of the following named individuals or companies (in either a personal or official capacity: Republican Legislative Majority of North Carolina, Inc., its directors, officers, employees, and agents (including Robert Shaw, John Blust, Billy Creech, and Heather Royster)(collectively "RLM"), RLM's major donor Variety Wholesalers, Inc./Variety Stores, Inc., its directors, officers, employees, and agents (collectively "Variety"), James Arthur "Art" Pope.

All documents that constitute, refer or relate to any communication (or evidence of communication) since January 1, 2006 concerning plans or actions in primary election contests in NC House Districts 10 (Rep. LaRoque), 14 (Rep. Grady), 40 (Rep. Eddins), 52 (Morgan), or 79 (Rep. Howard) or any response to the filing of the Petition with the State Board of Elections against RLM by Richard T. Morgan between or referencing RLM or Variety or James Arthur "Art" Pope and the five Candidate Committee Respondents (Committee to Elect Tommy Pollard; Committee to Elect Marilyn Avila; Committee to elect Willie Ray Starling; Frank Mitchell for NC House; and Boylan for NC House) or individual candidates (Pollard, Avila, Starling, Mitchell, and Boylan).

All documents that constitute, refer or relate to any communication (or evidence of communication) since January 1, 2006 concerning plans or actions in primary election contests in NC House Districts 10 (Rep. LaRoque), 14 (Rep. Grady), 40 (Rep. Eddins), 52 (Morgan), or 79 (Rep. Howard) or any response to the filing of the Petition with the State Board of Elections against RLM by Richard T. Morgan or any other State Board of Elections filing in the subpoena recipient's possession or control referencing any of the named individuals cited in Richard T. Morgan's April 12, 2006 Petition to the State Board of Elections and the April 24, 2006 letter from Richard T. Morgan's attorney (Michael Weisel) to the State Board of Elections (in either a personal or official capacity): Richard T. Morgan, Julia Howard, David Miner, Rex Baker, Michael Decker, Debbie Clary, Michael Gorman, Stephen LaRoque, Keith Williams, Carolyn Justice, Bonner Stiller, John Sauls, Robert Grady, Rick Eddins, Ken Fortenberry and Joe Kiser.

All documents that constitute, refer or relate to any communication (or evidence of communication) since January 1, 2006 concerning plans or actions in primary election contests in NC House Districts 10 (Rep. LaRoque), 14 (Rep. Grady), 40 (Rep. Eddins), 52 (Morgan), or 79 (Rep. Howard) or any response to the filing of the Petition with the State Board of Elections against RLM by Richard T. Morgan or any other State Board of Elections filing in the subpoena recipient's possession or control between or referencing RLM or Variety or James Arthur "Art" Pope and any of the following named: (a) individuals (in either a personal or official capacity), Ferrell Blount (NC GOP employee), Dave Burton (NC Republican Executive Committee ("NCREC") member), Chris Farr (NCREC member), Robert Kane (NC GOP employee), Judy Keener (NCREC member), Elizabeth Kelly (former Moore Co. GOP chair), W. Edwin McMahan (House member), Bill Peaslee (NC GOP employee), James Arthur "Art" Pope, John Rhodes (House member), Claudia Rodgers (NCREC member), Douglas "Dee" Stewart (Boylan consultant), the five Candidate Committee Respondents (Committee to Elect Tommy Pollard; Committee to Elect Marilyn Avila; Committee to Elect Willie Ray Starling; Frank Mitchell for NC House; and Boylan for NC House) or individual candidates (Pollard, Avila, Starling, Mitchell, and Boylan); or (b) company (its directors, officers, employees, and agents in either a personal or official capacity): J. N. Dollar Associates, Lead Source Marketing, Majority Communications, Inc., Metro Productions, RLM, The Stewart Group, Inc., Tel Opinion Research, Variety, any entity of the North Carolina Republican Executive Committee or Party.

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