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Golden Oldie: Prop 8 trial: Live-blogging the 9th Circuit hearings on releasing the tapes and motion to dismiss

9th Circuit Court of Appeals Prop 8 trial

One of the most popular Golden Oldies requested was the recent live-blogging coverage of the 9th Circuit hearing on whether to release the tapes and overturn Judge Walker’s decision that Prop 8 was unconstitutional because of his sexual orientation. The live-blogging can be found below. You can click to read the rest below the fold. Comment thread can be found here.

We at P8TT are taking Christmas through New Year’s off, with occasional light posting. Golden Oldies you requested will run in the place of regular posts. If you’d like to suggest one from this year, please leave your suggestion in the comment thread. Regularly scheduled programming will resume on January 2nd -Adam

Updates will scroll from the top

By Adam Bink, Jacob Combs, Arisha Hatch and Rick Jacobs

5:05 (Jacob): And, with Charles Cooper’s histrionic closing, court is adjourned. All arguments in the Perry case have now been made. Next comes the ruling! Thanks again to Rick Jacobs and Arisha Hatch for updating us throughout the hearings from the courtroom, and to KQED for providing the live stream of the event. This thread will no longer update. Be sure to check back here at throughout the evening and tomorrow for reactions to today’s hearings. As always, if you see something of interest, send it our way!

5:00 (Rick): Cooper: Want more than two more minutes. Judge Reinhardt, you accurately did characterize our argument. In filing after filing, …repeats stuff about committed relationships. Makes common sense point that a person in an enduring, committed relationship has, do you have an interest in getting married. It was plaintiffs who said 64% of committed gay relationships want to marry. That was their evidence. I’m glad counsel raised Alabama case.

No evidence that Judge Clemmons’ children wanted his children to go to these instiutions in the area. Is it the plaintiffs’ position that he could have said that my kids want to go to one of those institutions in Montgomery that that would not matter? That would be appalling. There would be no problem for Judge Wlaker to sit on DADT even though he’s gay and minority. (COoper is really steamed!!!)

If Walker is ruling that he has constitutional right to marry, if this court says that’s just fine, this will be a signal and dark day in American jurisprudence.

R: Let’s hope however it comes out, it won’t be a dark day.


4:55 (Rick): TS: Ware said every person has same interest in constitutional rights. Not just minorities. Frankly I think this advocacy of this motion sets a double standard. Shows one thing: all cases with black women rejected idea that that made them impartial. Proponents can’t get it through their heads that gay people are not inferior. Cases are do not apply.

S: Even if he held that upholding Prop. 8 meant he could never marry?

TS: Yes. No indication he was unfair. This court has to presume that.

R: Nothing to do with stereotypes. Presumption is that gays like heteros wants to get married.

TS: Every person may want to get married.

R: This is not argument that all gays are recused because they are gay. (We love Terry!!)

TS: Awfully close. Gay people all want to see a law like Prop. 8 overturned. No evidence here of immediate interest by Walker.

4:53 (Jacob): Cooper is back up for two minutes.

4:50 (Rick): B: Even if court rejects everything I say as matter of law. It is still case that Ware looked at it all and determined no reasonable case for suspecting Walker’s impartiality.

T Stewart: If proponents’ views were correct about disclosure, a woman judge of child bearing age re: abortion would have to disclaim use of abortion.

R: Mr. Cooper is trying to make an argument, not sure how successfully, that a woman on brink of abortion is in different circumstance than general.

TS: Let me step back. This argument hearkens back to conduct to of gay people.

H: I don’t hear him say that.

R: You are making an argument that Cooper is trying to disavow. This does not apply to every gay person. It’s when you apply to a particularlized person who wants to get married the next day is different.

TS: Yes, but does not work. Heteros meet and get married in months or wait years.

R: True. He would be saying that every heterosexual is saying one day he might want to get married. This is different because Walker might want to get married next day.

TS: Yes, but turns presumption on head that judges are presumed not to be impartial unless proven otherwise.

R: Now we get to real argument. Burden is on judge to disclose.

TS: Yes, but in case judge did not have to disclaim that his kids never wanted to go to university (in case). Courts do not impose this on judges to disclose possible interest. Reference to Catholic judge who speaks out against abortion. Noonan said could not put that sort of qualification on judge.

4:42 (Jacob): “Well Mr. Cooper is trying to make an argument, and I don’t know how successfully…” Ouch. Therese Stewart is back up.

4:41 (Rick): B: I see no authority that someone has obligation to say they have obligation to exercise right in question.

R: Is it relevant to right of public to know?

B: No. Let’s assume there is an obligation to disclose an intent to get married. Judge Walker is not in any way required to disclose a non-intent to get married. Creates pernicious effect that would create intolerable double standard for minority judges. A heterosexual (majority) judge does not have obligation to come forward to tell about views? If not, what you are doing by rule Mr. Cooper advocates creating a double standard. Goes right in face of cases that show that minority judges are presumed impartial.

4:39 (Rick): B: Demographics of exhibits they put in show that Walker not more likely to get married than any other gay person wants to marry. They are factually wrong even if they are right about law, which they are not.

R: Mr. Cooper said that we don’t take position that just because judge is gay or may want to get married, we have to look at length of relationship as indicator to marry. Eight years may make you less likely to want to marry (Laughter).

He says if you are together with someone for a long time, takes you out of the general class of people who want to marry. Cooper says does not matter that he’s gay. He says 8 years is a plus, some would not. You are saying no matter what would not require recusal. Is there anything to Mr. Cooper’s argument that there is a specific relationship judge should have told us about?

B: Just conjecture and speculation. Simply no evidence that because of that relationship, he’d want to get married more than another gay person.

4:36 (Jacob): Reinhardt jokes that being in an 8-year relationship might make someone less likely to be interested in marriage, prompting laughter in the courtroom.

4:34 (Rick): B: The majority typically defends exclusion because it is based on tradition, religion. All used to exclude African Americans. Used to exclude gays from institution of marriage. Defendants argue that since many members of the minority want access to marriage, must disqualify unless they have no interest in marriage. Consider how disruptive and corrosive if every majority judge were required to disclose any interest and then meant that judge might not be able to rule impartially. Consider how impossible it is to have majority judge who does not want to change status quo does not have to recuse, but minority who does want to change status quo. The law is that judges don’t have to do that. But even if it’s not the law, the facts of this case, Ware examined legal principles, law and concluded that no basis to question impartiality of Walker.

And what do we have from defendants? They say he’s in committed relationship. He cites that 64% of gay coulpes want to marry. Says nothing about length of relationship being indicator of desire for marriage. Says nothing about whether they want to marry. They conclude that even though many gay people want to get married he would not have to disclose that he’s gay even though many gay people want to marry.

4:30 (Arisha): The judges are sitting stone-faced, not interrupting Boies. This is the longest an attorney has been allowed to speak without being interrupted today.

4:28 (Rick): Boies: In all cases cited by either party for conflict/recusal when Judge says things about case outside of court, judge had fiduciary conflict. Judge’s clerks involved. None of these is present here. The other side comes up with a new idea that because a minority might be impacted, the judge is in conflict. The law is the opposite. In class action, even when judge or family part of class, not sufficient to recue.

R: Your position is that if Walker had disclosed that he wanted to get married after trial, he would not have to recuse.

Boies: That is the law, Your Honors. (Cites law.) There is no authority that judge had to disclose something not a basis for recusal. If he had no interest in getting married, he did not have to say that. We believe the law is that even if he did want to marry, did not have to disclose.

Smith: My reading of law is that judge reviewing case has to look at law.

B: Yes, your honor. That’s why courts defer to district court. Defendant claims that this is not targeted at minorities. CC said that even judge who supports institution of marriage, not just his marriage, need not disclosed. 5th Circuit says that for every claim is counterclaim. The defendants argue that gay marriage so threatens the institution of marriage that they must be denied access to the institution. By the defendants’ logic, any straight judge with such a view would have to recuse. Only people who can judge here according to them is gay or straight judge who does not have an interest in marriage.

4:26 (Jacob): As many in the Twitterverse are commenting on, does Cooper’s argument that a straight judge has no concrete interest in a gay marriage case shoot his previous arguments on the merits in the foot?

4:21 (Rick): H: Did Ware make factual finding about whether he had to disclose?

CC: Finding of law.

Smith: That’s your position, but he did make a finding. What about a heterosexual judge who said that he found that he wanted to maintain definition of marriage. Would he have to dislclose that?

CC: We have always maintained that outcome on any one marriage not affected.

Smith: What about a single heterosexual man?

CC: Not a big enough interest.

R: If I said to you after today that marriage is worthless and is now looked at negatively rather than positively that won’t have impact on those of us who are


CC: That would be the outcome of Walker’s ruling, but disavow that it would negatively affect marriage. Have not even said Walker’s ruling would immediately effect marriage. Would get there eventually. A gay judge who wants to marry is affected.

R: We’ll give two minutes for rebuttal.

4:20 (Jacob): David Boies is up for our side now.

4:18 (Arisha): Reinhardt: If he had said that he did not have an interest in marriage, then he must remove himself anyway?

Cooper: He could’ve said I’m in this 10 year same-sex relationship, but I have no interest in marriage. This case wouldn’t be here if that happened.

Smith: Would that be a reasonable basis for disqualification?

Cooper: That is not our argument – if he disavowed an interest in marriage – then we would not have tried to disqualify him. [commentary: Does anybody else find this difficult to believe?]

Smith: What if a married heterosexual judge desires to maintain the definition of marriage as between a man and woman, would he be required to disclose that?

Cooper: We have disclaimed since the beginning that individual marriages will not be harmed by same-sex marriage. [WHAT?]

4:15 (Arisha): Judge Reinhardt: “it’s a perfectly normal thing to want to get married.”

4:15 (Jacob): KQED’s livestream is up and running again.

4:13 (Adam): A good point by Judge Hawkins, who points out that Walker did not marry during the window in 2008 when he could have.

4:09 (Rick): R: What would reasonable person look at? All facts other than the one not known which is whether he wanted to get married?

CC: Requires that the judge disclose all relevant facts.

H: Rule says all facts have to be disclosed. Rule also says that someone not knowing if judge was impartial must determine whether appropriate disclosure made. Ware made it. Said he disclosed.

CC: All facts known privately to judge must be disclosed.

H: Who determines that? Not appellate court. It’s not here on appeal.

CC: Indisputable that he must disclose if he wanted to marry his partner.

R: Why does he have to disclose if he did not have interest?

CC: All other facts strongly suggest to a reasonable person in possession of all facts that had a reaonslabe interest in marrying partner. Had he disclosed facts at time of retirement.

R: You would have examined him on that question?

CC: Yes.

R: In what proceeding what he have been asked that question?

CC: All facts must be disclosed. If he had disclosed his ten year relationship, putting him very nearly in shoes of plaintiffs, he had to disclose.

S: What do we make of fact that he did not get married in interregnum period when he could have gotten married?

CC: No more do we make of the fact that he did not than the fact that plaintiffs did not. Certainly not inconsistent as it is not inconsistent with plaintiffs.

S: Had he gotten married, woud he have have been required to disclose? Looking for yes or no.

CC: Yes.

4:07 (Jacob): KQED tweets live connection is back up but “iffy.” I can’t access it yet.

4:05 (Rick): CC: Consistent with 455 whether or not reasonable conclusion that judge’s impartiality might be questioned.

H: You cite Bybee case which never was tried. Cases say abuse of discretion. What is it that could have been abused? It isn’t a de novo review of lack of facts. Not de novo to apply law.

CC: Holland case good to apply.

H: We don’t have Holland in front of us. Only thing that happened in Holland was that appellants had to make argument to circuit themselves.

(Cooper is really looking bad. Bad. He does this over and over. He just keeps repeating himself).

H: Ware reviewed and said he did not think Walker should have recused self.

4:03 (Arisha): Smith: Judge Ware doesn’t know whether the Judge is actually impartial and he decides, as a matter of fact, that there are no reasons to question the impartiality on the basis of the circumstances I have before me. What case do you have that says that the application of the law to the facts is de novo review? It’s a question of fact.

Cooper: We submit to you that Judge Ware abused his discretion.

Smith: So what he (Ware) did was illogical, implausible and had no support in the record? […] It isn’t an abuse to apply law to facts? It isn’t a de novo review to determine what the facts are. And Ware applied the law you offered. Where is the abuse?

4:00 (Rick): CC: Well, he could have been in this position of the plaintiffs.

H: I’ve read your briefs. What standard of review would I use for Judge Ware’s ruling?

CC: Law.

H: They’d have to be illogical, implausible or without support.

CC: Yes (sheepishly).

H: Had this case come directly to us, we’d have had plain error review, but we did not do that. We sent it back to the good judge. What is the correct legal rule that Judge Ware did not apply?

CC: He did not apply correctly the test under 455?

H: That does not mean anything to me. What law did he not apply correctly?

CC: He did not apply the objective test?

H: What did have to do to apply the objective test?

CC: Has to apply facts that were known and key facts not known as not disclosed by Walker.

H: “Not knowing whether or not a judge is impartial might want to see if he’s impartial.” Ware then says I cannot reasonably see that there is any lack or partiality. Why should I apply this? (Judge is pissed.)

3:58 (Arisha): S: Do we have anything in this record, any evidence that Walker desired to marry? You all talk about if he desired, but I saw nothing that said he desired.

Cooper: We don’t have any direct evidence.

Smith seems frustrated with Cooper.

3:55 (Rick): Oh, good. Mr. Cooper.

CC: In filing after filing, plaintiffs have said that they are in long-term serious relationships. In May of 2009, when Judge Walker read allegations of complaint, he knew something the litigants did not know. He knew that he too was a gay resident of California in a serious relationship. It was 8 years, same as Zarillo and Katami. Walker made clear decision not to disclose. In interviews, when asked about orientation and how it might affect, he declined to comment. He kept quiet for two years of case and then after retiring from bench, he disclosed to a group of reporters that he was in a committed relationship for at that time 10 years.

H: So a married judge could not hear a divorce?

CC: (Stumbles…)

H: Would he have to disclose that he was married for 28 years and had some difficulties? (Laughter) That’s what you are arguing here.

3:49 (Jacob): Court is back in session. Now onto the motion to vacate Judge Walker’s ruling. Charles Cooper is arguing for the proponents.

3:46 (Jacob): We’re in a 10 minute recess right now. KQED’s Scott Shafer tweets that Judge Ware (whose decisions are under review) and his clerks are in the courtroom watching. Apparently, KQED lost their internet in the courthouse, hence the loss of the livestream. They’re working to get it back.

3:42 (Rick): So this does not look good. These tapes look like they are staying under seal. But I’m guessing they are not vacating the judgment because Judge Walker is gay. Also, next time, I’m eating before the trial!

3:41 (Adam): There will be a ten-minute recess, after which time we expect to hear arguments on whether to overturn Judge Ware’s ruling denying the motion that Judge Walker’s ruling should be dismissed because he’s gay. What did you think of the arguments for each side?

3:40 (Rick): DT: Just because something in the record, as was President Clinton’s testimony in McDougal, still remained under seal.

3:39 (Jacob): KQED tweets they’re working to fix livestream problems.

3:38 (Rick): R: What does the word “eliminated” mean?

TS: Not word eliminated, but broadcast that matters.

Smith: Not broadcast, but public broadcast.

TS: Rule does not apply here.

R: Usually I agree with Judge K, but we have all disagreed at various times. Your time is up.


David Thompson: We did not object because no reason.

R: What is effect of not objecting?

DT: We don’t think any talismanic or other significance to putting in record.

3:37 (Jacob): What this seems to boil down to for the judges is a question of whether or not releasing the tapes at this point would constitute a broadcast, which Walker specifically said would not occur.

3:35 (Rick): Therese Stewart: Ware looked at record on this case. Did Walker make a commitment that these digital rcordings would never see light of day. Ware made clear that he made copiesavailable to parties.

R: That was for same purpose. To arrive at a decision. Nothing secret in them.

TS: Yes, that’s right. Ware decided long after trial that there was no such commitment to keep it from public. Seal orders do not prevent parties form revisiting. Not reasonable to assume that because court placed under seal, can never revisit. Public interest is reason. Not reasonable form of reliance to keep under seal. He made a determination of reason he wanted to use it and put it in record.

R: Maybe you did not hear what Judge Smith said, which is that Walker said potential broadcast eliminated.

TS: Rule against broadcast talks about media coverage. Judge Kazinsky does not preclude use.

Smith: Does Judge K’s letter established precedence?

TS: Not precedence, but carries weight as policy.

Smith: He’d be happy to hear that if he were here.

R: Did Supreme Court overrule that letter?

TS: There was dissent…

R: It was a good dissent. I agree with it on merits and argument, but we have to go with majority.

3:34 (Jacob): Therese Stewart is up now, arguing for San Francisco. She’s arguing that tapes were never meant to be secret.

3:30 (Rick): TB: Since we are also going to hear that people think the judge is biased because of his sexual orientation, all the more important to let this video come to light to see if he’s biased.

R: I do not want to discourage you from this line, but I have a hard time seeing how this applies to this issue. Was a promise broken? How does that impact judiciary?

TB: He put in record. NO one objected.

H: Walker said would be kept under strict seal.

TB: Other copies existed.

H: Question for me is can lawyers rely upon promises made by trial judge that may cuse them to pursue a specific course of action. This happened all the time when I tried cases for 25 years.

TB: There was specific oopportunity for them to object. NO one objected. No one mentioned common law.

R: Why woud they say that? If he said it was under seal why would you have to question that it’s under seal even if common law right of access?

TB: I don’t think he made such a strong promise.

R: The word of the court is supposed to mean something.

TB: Difference btween what happened before and after is that there was a public trial. Ware looked at sealing order to see if harm. No harm.

S: Potentila for public broadcast in this case has been eliminated. He criticzed proponents saying I don’t know why you did nto bring witnesses forward. We have eliminated chance for public broadcast. Judge wrote this in his opinion.

TB: The difference is that the public trial happened. Far greater harm if public trial testimony kept secret.

3:25 (Jacob): Interestingly, Burke (for the media coalition) tries to argue that the proponents’ challenge to Walker’s ruling because he’s gay makes an even more compelling argument for release of the tapes. The judges didn’t even take a bite on that line.

3:23 (Arisha): Smith: How is this different from what a court reporter does, which is not a judicial record?

Olson: This is different because it has video and sound; there is no affidavit from any witness that says that the witness is intimidated or feared from the safety; there are scores of hours of the witnesses’ depositions available to the public that the proponents never objected to. Starting with the presumption on the public’s right to access, there are no compelling reasons to limit access – the witnesses claim no actual harm.

Olson steps down with just under 14 minutes remaining on the clock so that an attorney (Thomas Burke) for the media coalition may make an argument in favor of release. Olson did a great job of bringing the judge’s attention away from the discussion about the local rules, Walker’s assurances not to broadcast, back to the fact that there is no real threat of harm to the witnesses or the system.

3:22 (Rick): Smith: Are these testimony similar to McDougal (Clinton) or are they evidence?

O: Transcript.

Smith: HOW is this different from what court reporter does? She takes stenographic notes and records. The recording is not part of judicial record.

O: There is no affidavit of any harm from any witness. No affidavit form any witness saying worried about safety. No articulable evidence of any harm. NO conceivable way to show this is narrowly tailored. Principle witness, Blankenhorn, said not concerned about public safety. 95% of trial not their witnesses. Therefore, not narrowly tailored. Witnesses might be concerned about safety, but no evidence.

3:19 (Rick): Judge Hawkins: Supreme Court said stop the taping.

O: I don’t think this violates the local rule to make video to review in chambers. Then he put in judicial record. No objection. Judge Ware asked if there was objection. Judge Ware asked if you were asking to remove from record. Thompson said no. The video itself was being created for a proper purose.

R: Suppose that Judge Walker had said right after the Supreme Court ruled, he said he was taping for us in broadcast, but said ofcourse when trial is over I’m going to release to public.

O: You would have heard more of an objection.

R: You’d have heard an objection. He did not say that he planned to release for broadcast. What would have been result?

O: My opponents would object.

R: Would have gone to Supreme Court.

O: Not sure. They did not object.

R: He did not say he was going to release for broadcast.

O: He did not explain consequesnecs of creating judicial record. There’s no question it’s in public record, for legitimate purpose, …

Smith: That question is not before us. This was made for Walker to make his decision. Why is this not analogous to Judge’s notes or clerk’s notes. Really, all he said was I don’t want to make notes; I want to see a record.

O: It was in record.

Smith: The purpose when made was to use instead of having notes. Therefore, I have a hard time understanding how this is part of judicial record. Tell me the case that supports what you say.

O: It;s the same as writing, but it has sound that shows intention via voice and visual to see body language. He said he was going to use video to see and hear what was going on in trial. Same as evidence.

3:17 (Jacob): In general, the judges seem dismissive of the Prop 8 side’s arguments that releasing the tapes would cause any harm or harassment. They seem much more concerned (Judge Smith and Ted Olson are both speaking forcefully) about the fact that Judge Walker said he was making the recording only for his personal use.

3:15 (Arisha): Olson’s argument is that the video was made for a lawful purpose at the time (for Judge Walker’s personal review) and then he placed it in the judicial record without objection from the initiative proponents. He argues that placing it in the judicial record had consequences; and one of those consequences is the potential use of those tapes beyond the initial purpose they were recorded for (in this case, for public broadcast). Placing the tapes in the public record means that they should be open to the public, despite Walker’s assurances that they would not be broadcast.

Smith: What was Walker’s purpose when making the tapes; the purpose was using the tapes instead of taking notes. I don’t understand why notes were made a part of the judicial record.

Olson: argues that the tapes are not like notes, they are a record of the proceedings.

3:11 (Rick): Olson (arguing for plaintiffs): We start with strong presumption for access. Only if there is a narrow interest, we look at overriding the common law.

R: Let’s get to reason 4. What’s your view re: integrity of judiciary if district judge makes commitments about what will happen and then broken by district court.

O: Judge Walker was creating video for purposes which were not precluded….

R: Did not say would never be released?

O: He himself had sealed the record. Sealed records are overtuned all the time.

S: Did he make a finding of fact in this matter?

O: Yes.

S: Why does this not provide Judge Ware to rule that potential of public broadcast has been eliminated. Judge Ware did not want to interpret local rule. He was looking at abuse of discretion.

O: I heard Mr. Thompson say that local rule preempts common law. I have never heard of that. This court knows that sealing order and protective order under two cases mentioned may be reversed or changed.

Hawkins: Didn’t Judge Walker continue videotaping after the defendants objected?

3:10 (Adam): If you’re having trouble like everyone else listening to the KQED live-stream, they just tweeted that they are at their max for listeners, and no new folks can listen in. My only suggestion would be to try again later.

3:08 (Arisha): Thompson decided to reserve the balance of his time for rebuttal. Ted Olson will now have 30 minutes to argue for the plaintiffs.

3:05 (Rick): DT: Can take snippets of video and manipulate it. Theplaintiffs have said that they will “flood the internt” with snippets.

Systemtic harm if committed to keep sealed.

R: Systemic, not to your client.

H: If we conclude that the judge made a binding commitment, we can leave harm aside.

DT: WE only need harm if we lose everything else.

Smith: Rule does not bar whtehre judge can video for his own purposes.

DT: no.

Smith: Does the rule (of the circuit) speak to whether one enters what judge walker did into record or not?

DT: That’s precisely why we did not appeal. It was not in record.

Smith: If he can create it and put in record and you don’t object, how does this preempt public right?

DT: He put in record under seal.

Smith: If there are documents or even a video tape legally put together and legally put into a record, the rule does not stop this from being released.

DT: 77-3 prohibits releasing tape.

Smith: Where does the rule say it cannot be unsealed?

DT: It says it cannot be broadcast.

Olson is up.

3:00 (Rick): Judge Hawkins asks about video of trials.

DT: 64% of judges said that broadcast would make witnesses less likely to speak, which is why we have a long standing ban against broadcast.

Reinhardt: Second witness, Mr. Miller, was only testifying about political power of gays. He did not make any kind of remarks gays could resent. What he said was that gays had more political power than gays say.

DT: Yes.

R: It’s not likely that he’s going to be harassed or strung up for saying that political power was thus. He did not testify about gay marriage.

DT: He did not expect this to be televised.

R: But let’s stay with my question. The first question is whether he’ll be harassed.

DT: In the record, Mr. Schubert talks about hundreds of harassing calls.

R: But he ran the campaign. You’d expect more emotion.

DT: People with yard signs got harassed.

R: Let’s move on. We have three more issues and limited time.

2:57 (Jac0b): Judge Hawkins points out that identity of the Prop 8 witnesses is part of public record, asks what the difference is with videos.

2:55 (Arisha): Thompson argues that harassment, violence and vandalism are still a threat for defendants’ witnesses and haven’t faded over time. “The intensity of interests and passions will only grow into a crescendo” as time passes, he argues.

2:54 (Rick): DT: What are the harms? One is witness harassment. Supreme Court ruled in this case that that could be the case. January 2010 ruling.

Smith: Interrupts to ask how relevant.

DT: Passing of time, passions have ebbed, level of violence since 2008. In this case, we think emotion will achieve crescendo when case concludes?

Reinhardt: You had two witnesses? And one went on TV and was not harassed or harmed.

DT: With respect to Mr. Blankenhorn, he was a man of fortitude. He was not concerned.

R: Strong convictions.

DT: the other witness was not broadcast.

R: The other witness was known. What’s the difference? Was there some surpise in his testimony?

DT: There are harms, second of which is possible harms of distortions of one’s views.

R: We’re giving up on the first harm?


DT: No.

2:52 (Jacob): Thompson admits that Blankenhorn has said candidly he isn’t afraid of any retribution, which has been the main argument of the Prop 8 proponents against releasing the tapes of the trial.

2:50 (Rick): Judge Smith asks why they did not appeal that Walker was still taping the trial? And isn’t the judge given the right to use his discretion?

DT: You are suggesting I have three different standards in this case. Why can’t I just say it’s abuse of discretion and leave it at that.

If we were in a world where common law applied, there is no case in which video of trial was let loose. Refers to Clinton’s video transcript in the Susan McDougal case. Held that common law right of access does not apply. Says there are four separate harms to releasing the tapes.

Hawkins: Were your clients under impression that would be under seal forever?

DT: Yes. Well no, we thought it would be a minimum of 10 years and have opportunity for extended seal.

Hawkins: Your clients were aware of that?

DT: Yes.

Hawkins: Is that in the record?

DT: No.

2:49 (Jacob): Judge Smith also asks about standard of review: should we just refer to Judge Ware’s decision?

2:45 (Rick): And we’re off. The Judges are seated and arguments begin. We’re here to hear two more chapters in the case of Perry v. Edmund G. Brown.

David Thompson for the appellants. This case presents the question of whether a district court barred from broadcasting the trial can then broadcast the trial. We submit if the answer to the question of common law right of access has precedent, then there will be grave harm. Judge Walker said the potential for broadcast had been eliminated. At least from 14 Jan on the proponents’ witnesses knew there’d be no broadcast.

2:42 (Adam): Jacob and many of you in the comments note that KQED’s audio feed keeps cutting in and out…I don’t have any solution or response, except, keep following along by refreshing the page, and we’ll do our best as usual to transcribe everything.

2:41 (Adam): Ted Olson will be arguing for the plaintiffs (our side) on the issue of releasing the tapes, and David Boies on the issue of dismissing Judge Walker’s ruling because of his sexual orientation; David Thompson will argue the former for the proponents, Charles Cooper the latter for the proponents.

2:39 (Rick): Bustle. The clerk just closed the door to chambers. She’s looking anxiously at some AV stuff. Any minute, we can expect Molly Dwyer to say, “all rise,” I hope.

2:35 (Rick): Judge Walker was never late. We’re at 2:35 and have not started. I guess being gay does mean being late. Wonder if will criticize Judge Walker for running a timely trial?

2:32 (Jacob): Str8Grandmother from the comments sends in this twitpic of the courtroom, to illustrate what Rick’s talking about.

2:27 (Arisha): A few minutes until the hearing is set to kick off. The courtroom is less packed this time according to Rick, but there is still little room to maneuver your way to a seat. Rick and I lucked out and nabbed seats close to the front — just between the judge’s bench and the table for the defendant’s attorneys. Although “less packed” the room is so intimate that someone who looks a lot like National Organization for Marriage’s Jennifer Roback Morse is sitting directly to my left (apparently live-tweeting for NOM from her iPod Touch); she graciously plugged my laptop adapter in for me.

It’s always fascinating to watch these two opposing sides in the same room, behaving cordially to one another.

2:26 (Adam): If you’d like to read about the last time Rick and everyone here were live-blogging before the 9th Circuit, it was on December 6th, 2010, when the 9th Circuit first took up the appeal of Judge Walker’s decision striking down Prop 8 as unconstitutional. They eventually decided months later to kick the ball to the California Supreme Court on this issue of standing. The live-blog thread from December 6th, 2010 can be found here.

We’re waiting for the first hearing, on the appeal of Judge Ware’s decision to release the tapes, to begin.

2:23 PM (Jacob): For those wondering, Presidents Carter, George W. Bush and Clinton appointed Judges Reinhardt, Smith and Hawkins, respectively.

2:21 PM (Rick): The clerk is now telling folks to turn off their pagers and devices, etc. She’s telling folks that the cameras are covering everything, but that it’s only for court use. She said that if you are at the podium, which has a digital timer on it facing the judges’ bench, you will be on TV. She said the judges will be seated as Judges Hawkins and Smith will flank presiding Judge Reinhardt.

For those who have not been inside of the courtoom, here’s another quick physical description. The room seats about 200 people. There’s an old fashioned gate that separates the viewers in their pews from the lawyers’ tables which are perpendicular to the audience space and the judges’ bench. The bench itself sits on brown marble, two steps up from the audicence. There are eight big chairs on the first level of the bench, the center of which is a marble dais on which sits a wooden plinth. Above that and behind is a much higher bench at which three charis are placed. That’s where these judges will sit. The lower table is for the “en banc” hearings which apparently will begin next week (not about this case).

Behind the judges’ bench is a very intricate geometric marble design, inlaid with jadeite-like stone and shiny gold looking leaves. So the judges sit right in front of an elegant, dark and eye-catching mosaic of shape. The room itself if sort of high baroque. There are angels holding up shields above which float eagles. The ceiling is coffered, separated by three stained glass sky lights, the middle of which has the seal of the US, or of the judiciary or something official looking.

It’s a great looking room, very magisterial.

Oh, Arisha thinks we’re sitting next to Jennier Roback Morse, who plugged our computers in for us. Fun!

2:19 PM (Jacob): KQED is live-streaming audio of the hearing here.

2:10 PM (Rick): Groundhog day? I arrived at the 9th Circuit courthouse on this bright, sunny December day (367 days ago) to see a dedicated group carrying the banners of equality, listening intently to Assemblymember and LGBT/civil rights hero (and comedian) Tom Ammiano. Same place, same time, a year later. Having live-blogged the whole trial, I can never forget that August day in 2010 when Judge Walker issued his ruling overturning Prop. 8. The 9th promised an expedited hearing and ruling. And here we are, nearly a year and a half later, still waiting.

Adam already wrote about our friend Ed who died yesterday of complications associated with Alzheimer’s, waiting in vain for a ruling that would allow him to marry Derence. When I heard that this morning on the plane on the way up, I got choked up. I am again. This big, ornate marble hall truly results in life and death decisions, some by omission.

This time, I’m sitting up front against the wall on the plaintiffs’ side, where I can get a good look at Mr. Cooper, who I still think should be embarrassed about the way he has handled this case. He had a chance to put on a case two years ago; he did not because he could not and then just said in closing arguments that he did not need evidence. It’s been downhill ever since.

What’s sad here is that even though we again have the leading team of trial lawyers in the country here for our side—I said hello to Ted Olson, David Boies, Ted Boutrous, Terri Stewart, Enrique Monagas—we’re dealing with delaying tactics. They are arguing today about whether Jude Walker could be objective because he’s gay. Judge Ware already virtually laughed that out of court, but delays help Mr. Cooper and his friends to keep people like Ed and Derence from living fully. Oh and we get to hear why the tapes of the trial should be buried even as this hearing is telecast and radio cast. Go figure.

What’s it like here? Rob and Michelle Reiner came in as I did. Chad Griffin, the mastermind of the operation, is here with the two sets of plaintiffs. I came in the building the courtroom with Dustin Lance Black, the AFER co-founder who never flags in his work for LGBT equality whether in his art or his organizing. The courtroom is not full this time. A year ago, it was packed. This is ministerial, so it’s less interesting, I supposed. It is yet another step in the effort by the opponents of fairness and love, the anti-American websitecalled protect marriage dot com, to slow down the inevitable.

Arisha just got here. This is going to be interesting!

2 PM PST: Welcome to Courage Campaign Institute’s for coverage of today’s hearings at the 9th Circuit. Today’s hearings will cover the appeal of Judge Ware’s decision to order release of the video recordings from the Prop 8 trial, and the appeal of Judge Ware’s decision to dismiss a motion from the proponents of Prop 8 to throw out Judge Walker’s ruling because he’s gay. For all you need to know on today’s hearing, check out Jacob Combs’ preview piece from this morning.

The hearings will begin at 2:30 PM PST; one hour is allotted in oral arguments for each appeal, so things are expected to wrap up around 4:30 PST.

Courage’s Rick Jacobs and Arisha Hatch are at the courthouse, and Rick just reported in that he’s seated near the front in the courtroom. We’ll be blogging the oral arguments and responses from the judges, along with coverage of the protest outside and all else. Jacob and I will be getting their reporting up and providing color commentary and other links from around the legal community.

Let’s get it started!

1 Comment

  • 1. Reformed  |  December 27, 2011 at 5:01 pm

    Redact segments that contain the objecting party's testamony, substitute text from the official transcript, release the tapes already, and everyone is made whole.

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