Continuing David Boies’ cross examination of Defendant-Intervenors’ Expert Witness Dr Kenneth Miller at ten minutes before the hour.

We are on break now.

Waiting now for the Judge to take the bench.

Betting here is that we will go until five; mixed decision on whether we will finish with Miller today.

Boies: PX1869, Tab 35: Santa Clara Law Review, you wrote this?
M: Yes
B: Offered
Walker: Very well, hearing no objection
B: Second full graf: "Moreover by liminting the opportunieis for opponents to participate the intitiative process makes it more difficult for opponents to participate in the legislative process."
You wrote that?
M: Yes
B: And do youbelieve that today?
M: Yes
B (reads) "The initiative process fosters confrontation rather than consensus building." Dod you wrtite that?
M: Yes
B: Do you believe it now?
M: Yes, but I might word it differently now.
B: Well do you believe it to be true now?
M: MOre or less, yes

B: Page six (reads) "Thus in CA both inititative constitutional amendements and inisitiative statutes undermine representative goveermnet." Did you write that?
M: Yes
B: What did you mean by that?
M: Not sure, but initiatives have the tendency to make it more difficult for the legislature to do its job. Lock in spending, or cuts, and they can’t do their work within the voted-on framework.

B: Tab 82 PX

B: This is a chapter in a book you wrote called Dangerous Dmeocracy about ballot inititatives. Pgae 63 (reads) "We discussed how, ironically direct democracy can undermine democratic norms of competence and fairness." You see that?
M: Yes
B: You were referring to initiatives?
M: Yes this was my madisonian critique of initiatives.

B: Page 41, (reads) "The direct democracy mechanism that poses the greatest challenge to representative democracy is the popular initiative…. Constitutional amendments most seriously undermine representative govenment because they can only be changed by another popular inititative"
N: yes I wrote that
B: Do you beleive it is still accruate?
N: Not always, not how frequently occurs, but it can be true.
B: It wouldhave to be passed by the people?
N: In CA, yes

B: Page 43: (reads) "…refinemnet, compromise, legislative discussion are undermined by initiatives…." Write that?
N: Yes I did
B: is that still your view?
N: After some of my work I would modify that is some respects.

B: You mean there might be some chances for compromise?
N: I think I meant liberation.

B: YOu studied over 900 initiatives?
M: Yes
B: How many of them had informed deliberation, compromise, refinement, constructive liberation or legislative discussion opportunities?
N: My point is that legislation builds in these things, but it might not happen with all of them
B: How many
M I don’t know — Perhaps three or 4 or 5
B: So you’re saying you’ve not done serious research about how they were drafted or abouth the campaign?
N: MY research is about outcomes. I don’t look at the campaigns, or the arguments, or the legislation itself, I look at the outcome.
B: So you don’t know how many?
M
Well legislatures aren’t always perfect either.

N: Institutional structure of the legislature is setup for those things.
B: Compromise or informed deliberation will come as the proposal if developed?
N: Well, yes
B: Voters can’t amend it, can’t modify, can’t compromise on it?
N: In CA, no. Needed redrafting, and pulled back.
B: In CA, how much as that happened?
N: Sometimes
B: When last happened.
N: I guess –
B: I’m not asking you to guess, I’m asking you to tell me.
N: It’s frequent, it does happen.
B: When was the last time an initiative was drafted, signatures were obtained, and it was certified, and then the proponents pulled it back?
N: 2005 they talked about it.
B: Not whether they tlaked about it, when did it happen?
N: I don’t recall, nbut it does happen?
B: When has it ever happened, one example
N: Frequently, but I can’t recall.
THOMPSON> OBJECTION BADGERING

WALKER: OVerruled, its’ cross examination [you dufous]

B: Can you give me one single example in CA history?
N: No I cannot

B: Let’s go back to your article, heading Violating Democratic Norms, first sentence: The actual operation of the intitiative process actually violates a number of democratic norms in America" What were the norms you were referring to?
N: (reading) Trying to get the context here.
B: Okay
N: NOrms in the above grafs
B: Openness, accountability, fiarness?
N: yes

B: Let’s return to your law review article: "In sum it’s ironic that intitiatives have the reputation of being more direct democract when they violate democratci opportunities and procedural guarantees."
What guarantees were you speaking about?
N: What we were talking about.
B: What were the procedural guarantees?
N: Not sure — maybe the four norms.
B: Openness, etc, abve?
N: Yeah, maybe

B: PX 1268: Amicus brief Kane and Estrich in re Prop 8. Estrich is the prof you identified as an expert in the field, right?
N: When we were talking about LGBT rights issues?
B: Yes
N: Yes, he’s the one
B: And you identified Kane as a expert in inititavies and political science?
N: Yes, he’s an expert.

B: Look at page 4 "30 states have constitutional bars to same sex couples all of them adopted by popular referendum." Is that correct?
N: I believe that’s incorrect.
B: Inocrrect?
N: yes
B: How many bar marriage then?
N: About 30
B: How many by popular initiatives?
C: 10
B: Really?
N: Not sure which process

B: I understand you to say 30 states have constitutional bars to samae sex marriage, but not all were adopted by popular initiatives.
N: Yes
B: All were presented to voters?
N: Yes
B: Everytime presented to a popular vote has there been a bar enacted?
N: No, in Arizona.
B: What happened there?
N: Voters defeated a state DOMA
B: But Arizona doesn’t have same sex marriage do they?
N: No they do not
B: What happened there?
N: Initiative defeated in AZ [then it was passed two years later, but this doesn't come up...]

B: Any other states?
N: In COlorado
B: In colorado were the voters presneted with a initiative to have same sex marriage?
N: yes
B: Did they permit it or not?
N: They voted not to permit it
B: And in Arizona
N: Well, in COlorado –
B: Sir, you already answered me on Colorado. The confusion is that in Colorado, one year they voted NO to ban same sex marriage.
WALKER: In COlorado or Arizona?
N: I’m sorry, your honor, Arizona, following the voters’ rejection of the ban on same sex marriage, the legislature put it on the ballot the next year and voters voted to bar same sex marriage.
B: So people voted for it the second time?
N: YEs
B: So in Arizona it took two times
N: YEs, wording was different
B: But there is no same sex marriage in Arizona, rtight
N: yes

B: Are you aware of other states where it took more than one time for the voters to ban same sex marriage?
N: No

B: Tab 89, PX Estrich/Kane. In connection to this, look at page 7, 1st full graf.

[Walker checks watch despite clear line of sight to courtroom clock]

B: They refer here to hyperamendability, what means?
N: Ability to amend in the legislature, I think.

B: Mentions Prop 14 and Prop 117, what were those?
N: Repeat a lot of prop #s, not sure which one this was
B: Was this a reference to Prop 14 where discrimination was found in the proponents, it says here that prop 8 was discriminatory on its face. Do you agree?
N: No I don’t

B: Didn’t you give an example of a clause prohibiting same sex marriage as an example of discrimination?
N: I said it was –
B: Are you saying it is not discriminatory?
N: It establishes marriage as between a man and a woman.

B: You’ve said that the state treats couples differently?
N: Yes
B: Is that different treatment discrimination?
N: To the sense that it is differential treatment, I’m not sure it’s discrimination.
B: As a political science, you study discrimination?
N: yes
B: Don’t people in political science know what they mean by discrimination?
N: Well some is permissable and some is impermissable.
B: So is Prop 8 discriminatory.
N: It makes a distinction between two types of couples
B: Wasn’t that the defeinition of discriminatoion>?
N: Well it might be.

B: So do you agree with their analysis (EstrichKane)?
N: No I disagree. Well I said you read the paragraf, theres a lot in there.
B: Please try to focus on the question I am asking

B: I’m asking if this is discriminatory? Under the definition you used, you used commonly in political science –
N: Well, political scientists use a lot of different definitions for discrimination. People define terms in lots of different ways.
B: Is there a defnition you personally have that would make Prop 8 discriminatory?
N: Let me see if I can move this forward. Prop 8 makes a distinction and it discriminates. Is it invidious discrimination? Not sure. I think Estrich and Kane imply invidious
B: Here it is implied?
N: yes here I think it is.

B: Page 17 (reads) "Class legislation that takes away a fundamental right from a group of peple who have historically been discriminated against and been the object of prejudice and stereotuype.. [Now reads whole graf, no way I can get this]
B: Natural reading of article 18, higher burden before citizens can take away these rights….
B: Have homosexuals been a minority like this?

THOMPSON: OBJECTTION, historical
BOIES: Takes it up to present day, your honor
WALKER: OVERRULED

N: I think G&L face some stereotyping and prejudice, ike a lot of other groups.
B: Do you blieve G&L syffer more from stereotyping and prejudice than AAs.
N: AAs suffer a lot of it, comparitive would be difficult
B: Have not done that?
N: No I have not
B: COuld you take that on today?
N: No I could not.

B: What about women?
N: Women are stereotyped and rejudiced.
B: Is it really your testimony that you can’t tell whether women face more or less than G&L?
N: I think there’s a lot of anti-female stereotyping in our society today.
B: I"m not disputing that. BUt coulnd’t women be as much an object of stereotyuping as G&L?
N: I don’t know.

B: Let’s take gays out of it, then, how about women versus lesbians. Surely lesbians face more than other women?
N: [mumbles]
B: WHAT?
N: yes, lesbians face more prejudice than other women

B: Quotes Kane/Estrich, regarding teaching of vulnerable children about same sex marriage. That made a difference to some voters. THat claim had no basis in fact. See that>?
N: [pauses] Yes I see it

B: Now, I take it that — let me ask you, do you have an opinoin about that?
THOMPSON: Beyond the scope of direct, didn’t ask about Prop 8 campaign.
Walker: Goes to questions during direct, OVERRULED

B: Do you have an opinion?
N: Yes I do
B: What is it?
N: there are real curricular concerns, so I;m not sure this is true. BEsides, I’m not sure it made THE difference, that message made a difference, but I don’t know if it was THE difference.

B: YEs, they make two claims: one about schoolchildren. Could that be shown to have a basis?
N: Yes it could
B: Who has shown it
N: Proponenets of Prop 8showed it, it has not been tested in the courts, but if it passed then there might have been a challenge.

B: The second point they make that this misconception was THE message, you don’t have an opinion about?
N: Well there’s lots of messages —
B: Not asking you WHY you have no opinion, I’m asking if you don;t have an opinion.

B: You said you didn;t know if that ciurriucular concern was THE factor.
N: yes, i’m not sure that curricular concern made THE impact.
B: You don’t know
N: I have a lot of reservation, there’s no basis for proof, there’s no survey or polling data.
B: Are you aware of polling data why people voted for Prop 8
N: Not extensive.
B: ANY?
N: I saw the exit polls about the vote. I don’t recall reading a large poll of voters asking why they voted for Prop 8.

B: I will get to ‘large’ and I will get to ‘extensive’ but I will –

WALKER: Will you end with this witness by 5pm, it’s getting warm in here and they shut off the ventilation at 5.

Boies: I will not finish by 5 your honor and this is an excellent place to stop.

WALKER: Well then let’s do that. We’ll see you here at 8:30am.

VODKA THIRTY

See you tomorrow.