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Good morning! We are in Judge Vaughn Walker’s San Francisco courtroom again this morning; today at 10am Judge Walker will hear an appeal of Magistrate Judge Spero’s order regarding disclosure of materials from anti-Prop 8 groups, specifically Equality California (EQCA) executive director Geoff Kors.
First thing this morning (9:30am pacific time) Judge Walker is dealing with an unrelated criminal matter. I’ll begin liveblogging the Perry v Schwarzenegger appeal hearing as soon as it begins.
Criminal matter running a little long; as of 10:10 Judge Walker is still hearing the criminal matter.
10:25 criminal matter concluded; court taking break now.
12:20PM: Hearing concluded.
Lots of so-so lawyering from ACLU and EQCA as well as some crisp responses from Desseau (Plaintiffs take no position on the order to compel disclosure) and the P-I attorney. A number of good questions from Judge Walker, specifically with regard to the where the "clear error" of the magistrate’s order is. I’m not sure either ACLU or eQCA attorneys showed any error at all, although they argued the merits a lot.
Plaintiff-Intervenor thinks since they had to provide docs, so should these parties, although they are "sympathetic" to the first amendment arguments, having made and lost them with regard to their own doc production.
Finally, the ACLU attorney tried to get some more words in edgewise at the end, to very little sympathy from Judge Walker. At the end of this attempt, the ACLU attorney agreed with Dousseau that this would endanger the wonderful, awesome schedule Judge Walker kept for the entire trial, since this magistrate’s order would certainly be appealed to the full Ninth Circuit.
Judge Walker did not appear to be pleased to be reminded of the several times the Ninth Circuit has overruled his orders in this case, and said "Thank you" and left the bench.
Shortly thereafter, the Clerk announced that Court was in recess. Chatting with lawyers afterward, no one seems to think today’s activity made a verdict appear any sooner, although there was some discussion that we could get one or two weeks advance notice of a date for closing arguments.
Stay tuned!
22 Comments
I HAVE TO SHUT MY LAPTOP OFF NOW PER CLERK’S ORDER.
SO NO ACTUAL LIVEBLOGGING.
WILL ADVISE.
Oh! Thanks for alerting us to today’s proceedings, Teddy. will watch for updates.
Looking forward to the continuation…
This was a very sudden ending to today’s proceedings and while I can’t read Judge Walker’s mind, he had every reason to be irritated, I think. Not very good form to appeal a ruling to a judge whom you then remind that you’re just going to appeal his ruling, right?
Thank you for the update Teddy; good work.
I’m curious. Why should the Plaintiff’s be required to produce their documents when they aren’t the ones being sued? The Defendants decided to intervene on behalf of the Schwarzenegger and the CA government. They were not the ones being sued to begin with, it was their actions of intervening that led to them being named in the suit. Therefore, the internal workings/documents of the Plaintiffs shouldn’t have to be produced. It wasn’t the EQCA campaign that sought to take away someone else’s rights through the animus of the voting majority at the ballot box.
If the defense believes that a third party — not only the plaintiff, but anyone else — has evidence that can support the defense’s claims, they can ask for a subpoena to have that evidence brought forward. They have to convince the judge that this evidence is relevant to the case and necessary to their defense.
That last piece is the real sticking point for the Defendants here. They are speaking on behalf of the State of CA, and it’s not immediately obvious to me how the political strategy documents of the anti-Prop 8 team have any relevance for the constitutional arguments being made by the Plaintiffs.
Dresseau (for the Plaintiffs) made the point that the D-I had access to over 300 public documents — ads, commercials, letters, posters, etc — from the anti-Prop8 side, and only used 4 of these in their case-in-chief. If they believe the opponents of Prop8 have materials that make their case, why didn’t they use more of them?
Also there seems to be some debate whether the case is actually over. Judge Walker several times said, “The case is over, how do you plan to introduce items even if you do find them?” Plaintiff’s attorney reminded Walker that Thompson (lead P=I counsel) reserved the right to call more witnesses, introduce more evidence, and provide more exhibits when things wrapped up in January.
That did not elicit a positive response from Walker.
It seems like the Plaintiffs intend to re-litigate the entire case again.
I take it, then, that there was no public mention of a possible date for closing arguments. Any conversations out in the hallways that suggest a possible date?
Here’s the thing — the ACLU lawyer clumsily made it clear they (and maybe EQCA) will appeal Judge Walker’s order on this material disclosure ruling from the magistrate judge. So there’s that, and since this ruling has to do with the potential for additional material, and perhaps witnesses and therefore examination and cross-examination, I think we moved quite a way today from Judge Walker’s repeated statements that “the trial is over.”
D-Is don’t consider the trial over, they are looking for a way to re-litigate it.
That gets us farther away from closing arguments, not closer to them.
Although attorneys think we might get one or two weeks notice of closing arguments, since the head guys on each side are such busy types.
By which I mean, of course:
It seems like the Defendant-Intervenors intend to re-litigate the entire case again.
It’s not Plaintiffs who are being asked to disclose material from the campaign, it is Equality for All, Equality California, and the ACLU (among, perhaps, others). These are the primary advocacy organizations for a NO vote on Prop 8 in 2008, but they aren’t the people suing to overturn Prop 8 in federal court now.
In other words, they have nothing to do with the current proceeding. It’s a fishing expedition, proven very clearly when Judge Walker asked the D-I attorney today, “What do you hope to find? What’s your smoking gun?” and the reply was “We’ll know it when we see it.”
To be more fair to D-I’s counsel, they seem to think they can find something in these materials of the opponents of Prop8 that gives credence to their argument in its favor: some memo where a Prop8 opponent says that the proponents’ religious argument against marriage equality is valid, or some email where a Prop8 opponent suggests not to use an offensive ad.
Or something.
Worm, anyone?
Thank you Ted, for keeping us up to date. I’ve been wondering, and even sat on my fingers to not ask you what’s up a couple of evenings ago.
I’m trying to be good. And Patient.
May I ask what your thoughts are about the Judge. Considering.
Thank you both for your responses. I’m guess I’m just trying to figure out how it would be considered relevant to the DIs case since it was their side that won at the ballot box. Like you said Teddy, it truly looks like a fishing expedition, and a really dumb one at that.
Drousseau made an appeal to the timing question, quite eloquently, with regard to ‘continued and ongoing harm’ to the plaintiffs, since the Court denied plaintiffs application for an injunction at the start of this and instead promised speedy resolution.
Since the D-Is are raising money every day this case goes unresolved, it’s in their political interests to keep it up in the air.
Per Spero’s Mar 5 discovery order, the D-Is ““assert that they seek the documents to help elucidate voter intent and the purpose of Proposition 8 and because the documents may address the political power of gays and lesbians.”
The hearing today was not just an objection by the No on 8 campaign orgs to the order. D-Is also filed a brief, asking that the order be expanded.
Thank you!
“The hearing today was not just an objection by the No on 8 campaign orgs to the order. D-Is also filed a brief, asking that the order be expanded.”
Oh great…it now looks like the case will be in limbo, while the PropH8 side goes back to their constituency and says, “WE NEED MORE MONEY TO FIGHT THIS!” I am not really surprised at their tactics given their poor performance in the courtroom, but I see their delaying tactics, as a means to solve two problems: 1st it is likely Judge Walker will rule in our favor and 2, they will need more money for the pending litigation.
Thanx, Teddy, I found a link to this website from http://www.prop8trialtracker.com
<3 David
Teddy and all,
I’ve been on the edge of my seat glued to — and in awe of — your live blogging and all the thoughtful commentary since Day 1 Part 1. I happen to be teaching a class at Portland State (Oregon) this term that tracks progress toward marriage equality, so all my students were following along as well. I want to express my gratitude to Teddy and everyone here. Even though the latest update is about delaying closing arguments and a ruling, it’s good to have you back. I have returned to the edge of my seat.
Many thanks.
@salwriter, are you aware of the “Prop 8 Trial Trackers” facebook group? I try to post updates there whenever there’s new activity in the case (Kathleen Perrin). Also, if you are interested in having any of the legal briefs filed with court, you can get many of them here:
http://dockets.justia.com/docket/court-candce/case_no-3:2009cv02292/case_id-215270/
The justia site doesn’t update very frequently, and some are not complete. I have copies of the more recent docs and glad to share them. Send a private message through facebook, with the email address you want them sent to. This offer is extends to anyone interested.