The legal intricacies of the three hour pre-trial hearing on the federal challenge to Prop 8 before U.S. District Judge Vaughn Walker in San Francisco Wednesday bored blogger Michael Petrelis, who posted these post-hearing photos. Petrelis was annoyed, however, that Prop 8 proponent’s big time attorney Charles Cooper refused to speak with the press.
But some news was made: the trial is set to start 9:ooam on January 11; the 9th Circuit Court of Appeal may decide to review their earlier 3-judge panel decision to deny certain Prop 8 campaign documents to the plaintiffs; a Southern Californian county is trying to intervene- which has angered Marriage Equality USA; and Judge Walker says he will consider allowing TV cameras in the court after a judicial body considering such a pilot project issues their finding – which they did today.
The San Francisco Examiner reported that despite a decision by the 9th Circuit Court of Appeal to review a previous decision on an evidence dispute, Walker said, “It will be my plan to proceed beginning at 9 a.m. on Jan. 11.” The bench trial is expected to take several weeks as attorneys Ted Olson and David Boies argue that Prop 8 violates the constitutional guarantees of equal protection and due process for their clients, two same sex couples.
KCBS’s Doug Sovern reported that the proponents of Prop 8 asked the judge to shift California Attorney General Jerry Brown from the defendants’ side over to the Olson/Boies side since Brown supports marriage equality. Boies convinced Walker not to re-align Brown.
After the hearing, Boies (seen here with Chad Griffin of the American Foundation of Equal Rights) told Sovern:
“The fact that he has admitted error makes him an honest defendant but doesn’t make him not a defendant. You have these people as defendants and I think the idea that you’re going to re-align one of them in this case is more for show than it is for anything else.”
Prop 8 defenders refused to talk to reporters after the hearing.
As the hearing began, Walker announced that he had received a phone call that the 9th U.S. Circuit Court of Appeals is considering reviewing an earlier decision by a three-judge panel. That decision overturned Walker’s ruling that the Prop 8 proponents had to turn over campaign communications, including internal strategy memos and emails. The 9th Circuit panel concluded that such disclosure could have a chilling effect on the free speech rights of political campaigners. The Olson/Boies team is looking for evidence that Prop 8 was deliberately discriminatory against gays and lesbians, something I considered in my post here.
The appeals court issued an order for both sides to submit briefs by Dec. 24 on whether an 11-judge panel should rehear the case. Walker said he expected the court to resolve the issue quickly.
At a news conference following the hearing, Olson said:
“We’re ready. It’s obvious that our opponents and the judge are very well prepared. I’m confident that whatever needs to be done (in the evidence dispute) can be done on an expedited basis.”
Walker said he would issue a decision later on one of the other matters under consideration – televising the trial. Walker said he would wait for the conference’s report before deciding whether the Prop 8 challenge should be televised.
Late Thursday, the Judicial Council of the Ninth Circuit issued a press release saying it:
has approved, on an experimental basis, the limited use of cameras in federal district courts within the circuit. The action was announced today by Chief Judge Alex Kozinski of the United States Court of Appeals for the Ninth Circuit.
The Judicial Council voted unanimously to allow the 15 district courts within the Ninth Circuit to experiment with the dissemination of video recordings in civil non-jury matters only. The action amends a 1996 Ninth Circuit policy that had prohibited the taking of photographs, as well as radio and television coverage, of court proceedings in the district courts.
It also responds to a resolution supporting the use of cameras, which was passed by judges and lawyers attending the 2007 Ninth Circuit Judicial Conference.
“We hope that being able to see and hear what transpires in the courtroom will lead to a better public understanding of our judicial processes and enhanced confidence in the rule of law. The experiment is designed to help us find the right balance between the public’s right to access to the courts and the parties’ right to a fair and dignified proceeding,” Judge Kozinski said.
Cases to be considered for the pilot program will be selected by the chief judge of the district court in consultation with the chief circuit judge. The participating district courts will be asked to evaluate their experiences and report to the Council.
The Ninth Circuit takes in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, the U.S. Territory of Guam and the Commonwealth of the Northern Mariana Islands. There are four district courts in California and two in Washington.
The Ninth Circuit Court of Appeals has permitted television and radio broadcasting of oral arguments with approval of the panel hearing the case. Since 1991, the court has permitted video and audio recordings of oral arguments in approximately 200 cases. All of its oral arguments are available on its website – http://www.ca9.uscourts.gov/media/
Though the federal Prop 8 challenge was not explicitly named, the fact that it is such a high profile case and that the conference announced a decision so soon after the pre-trial hearing suggests there is a good possibility that the Olson/Boies case might be selected.
Another outstanding issue yet to be resolve – Walker asked for briefs – is whether to allow the Imperial Valley in Southern California to intervene in the case.
On Tuesday the Imperial County Board of Supervisors voted 3-2 to intervene in the federal challenge. According to the ACLU, “the Supervisors treated the item as an ‘emergency exception,’ but their petition to the court…shows the Board members have been discussing the issue for weeks.”
Additionally, the vote was apparently taken without public notice – which violates California’s open government Brown Act, as would any discussion among more than two board members. The ACLU says it’s investigating.
The vote really irked the San Francisco-based Marriage Equality USA. Molly McKay, MEUSA’s Media Director, said in a press release issued late Thursday – which was later corrected:
“Judge Walker already rejected the petition of the Alliance Defense Fund to intervene in this case and this is just an end run around that decision using the Imperial County Board of Supervisors as a front for their participation. We are disappointed in the supervisors’ judgment and the way this secret vote was taken without a public hearing process. The counties stand to lose revenue if Proposition 8 stands and there is no county-based interest in supporting Proposition 8 other than prejudice and bias.”
“The time to intervene in this case is over. We are disappointed in the supervisors’ judgment and the way this secret vote was taken without a public hearing process. The counties stand to lose revenue if Proposition 8 stands and there is no county-based interest in supporting Proposition 8 other than prejudice and bias.”
ivpressonline.com reported that Board of Supervisors Chairman Wally Leimgruber said the Board is acting in the interest of the more than 69% of country voters who supported Proposition 8, to “uphold what they voted on.”
Fernando Lopez, Jr, MEUSA National Board Member and Imperial County native doubts that 69% of voters still support Proposition 8:
“Having grown up in Imperial County and visiting my friends and neighbors there post-Proposition 8, I have witnessed an ongoing change of hearts towards supporting marriage equality. If the Board of Supervisors truly wanted to support the will of the people of Imperial County, this decision would have been made in the light of day, with a fair and open process – not in a secret agenda item. It is clear that the public was not informed that this decision was pending, or given an opportunity to voice concerns about the issue.”
Fernando Lopez, Sr. Imperial County resident and father to MEUSA’ s Fernando Lopez, said:
“I am outraged that the local elected officials paid with my tax dollars have secretly voted to attack our families with this mean-spirited intervention in co-hoots with anti-gay organizations. I plan to make them accountable for the misuse of our resources; there is no reason our county should be involved in this case.”
The MEUSA press release says:
MEUSA members in Imperial County plan to bring their concerns to the next open Board of Supervisors’ meeting, currently scheduled for January 5th at 10:30am.
Until that date, MEUSA is encouraging community members, particularly those living in Imperial County, to contact the Board of Supervisors and express their discontent with this vote and with the Board’s effort to circumvent the democratic process by providing no public notice and allowing no public debate.
You can call and thank Supervisors Michael Kelley at (760) 482-4308 and Gary Wyatt at (760) 482-4613 for voting against intervening in this case. You can also call to respectfully register your disappointment and ask for reconsideration and public input on this decision from Supervisors Louis Fuentes at (760) 482-4309, Jack Terrazas at (760) 482-4306, and Wally Leimgruber at (760) 482-4305 for voting to intervene in this case.
Subscribe to RSS
[...] request to allow at least pool TV coverage by In Session, formerly Court TV (see my coverage here and here – and Ted Johnson’s coverage at Variety’s Wilshire and [...]