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Liveblogging: April 28th Hearing


by Paul Hogarth

I’m here in Judge Vaughn Walker’s federal courtroom in downtown San Francisco for a hearing on the Perry v. Schwarzenegger Prop 8 trial. LGBT POV has some useful background on today’s hearing, which may see Judge Walker finally set a date for closing arguments in the trial.

And here we go!

Steven Bonsey for ACLU
Bassenhau for EQCA
Defense intervenors present (Fennuchio, i believe)
Other lawyers on plaintiff’s side

Judge: in view of yesterday’s communication from No on 8 groups, have they complied with the orders?

A: They were sent overnight, but I haven’t read them yet. They are in my office.

Fennuchio: although the file seems thin based on what they were ordered to file.

Judge: Any explanation?

ACLU: we reviewed thousands of documents, and produced what we were required to do under March 5th order

Judge: how long does defense need to review these docs to say they’ve been in compliance?

Other defense lawyer: how about a week?

Fennuchio: a week would be okay. But EQCA, how many docs did you send us?

EQCA: about 4500

ACLU: also thousands of emails

Judge: let me lay out a schedule. I was thinking about giving defense until May 3 to determine if … Uh, actually both sides should have until Friday 4/30 to conform or deny they have complied. If there’s an allegation there was no compliance, there will be a hearing on May 3 at 10am.

If no allegation, defense have until May 5 to submit a supplement to the evidentiary record, and May 7 for plaintiffs to object to the submission of evidentiary record.

Also schedule motion for reconsideration, but before that … Is what I outlined for No on 8 practical?

Fennuchio: yes, but make it end of the day May 5th … And what about our chance to respond to their objections they fule on May 7?

Judge: ok, May 12 .., at which point, there will be no additional evidence

Judge: I’m hopeful that there will be an agreement that compliance has been made.

Well, can the proponents file their objections by noon on Friday the 30th?

Defense counsels: yes

Judge: I’d like to set a schedule for remainder of case. I am inclined to grant the defense motion for Dr. Tam’s reconsideration, and want their submission by May 6 and have plaintiffs objection by May 10.

Closing arguments set for June 16 at 10am.

All lawyers agree.

Hearing over.

I’ll be posting an analysis of today’s hearing shortly. Stay tuned!


  • 1. Dan Hess  |  April 28, 2010 at 4:45 am

    Ouch, June 16th? Much later than I'd expected. Oh well, at least we have a timeframe at this point.

  • 2. Kathleen  |  April 28, 2010 at 4:45 am

    Yay for liveblogging!!

  • 3. Monty  |  April 28, 2010 at 4:51 am

    A month and a half is quite a wait, but at least it's something.

  • 4. Richard A. Walter (s  |  April 28, 2010 at 4:51 am

    Finally! A date for Closing Arguments!!!!!

  • 5. Ronnie  |  April 28, 2010 at 4:51 am

    So they get what they want 4500 documents and a thousands more of emails…..and still not happy…..f-ing greedy, spoiled, selfish brats…..<3….Ronnie

  • 6. James Tuttle  |  April 28, 2010 at 5:05 am

    I'm a bit confused because, well, I'm not very legally minded. From what I understand the the bad guys have until May 5 to find whatever evidence they can within the no on 8 documents to add to the evidence already in trial? And then we get to appeal that if we, the good guys, think they are wrong? And…if closing arguments are in June that is also the same date the judge issues his ruling in the case?

  • 7. Kathleen  |  April 28, 2010 at 5:17 am

    yes, D-Is have until May 5 to submit any additional evidence. Then if Plaintiffs object to any of that evidence being entered into the record, they have until May 7 to make that objection. If Plaintiffs object to anything, then D-Is have until May 12 to respond (saying why, despite Plaintiffs' objections, they think it should be entered anyway). Walker says he wants May 12 to be the last day any evidence is admitted (i.e., close the evidentiary record).

    Walker won't issue a decision on the day of closing arguments. It will be a written decision, some time after the closing arguments.

  • 8. Kathleen  |  April 28, 2010 at 5:07 am

    EQCA posted this statement yesterday (only just saw it, when reported at LGBT POV)

    It mentions Walker's clarification of the order, bringing it in line with the 9th Circuit's view of which communications are privileged. Yet, Walker doesn't seem to have filed anything with the court. Unfortunately, the person I have the most direct contact with won't be available for the next several of days.

    Note that Walker states he's inclined to grant Tam's motion; no mention of Proponents' like motion (unless just not reported).

    I'll let everyone know as soon as there are any new filings.

  • 9. Carvel  |  April 28, 2010 at 5:16 am

    I think this is good. I have maintained all along that they just needed to file the documents into the record and let the chilps fall where they may. What in the world can they prove except that EQCA and ACLU wanted to defeat Prop 8 and they raised money and resources to fight it. They figured the churches were behind it and that was no secret for us as we publically maintained that position. In addition, they didn't want it publically known that we were right. So about all we reveal is that we hate them as much as they hate us. That they believe that God is on their side and we think it is a cheap shot using God as the bad or fall guy to blame their position on.

    the only problem is that in the documents they could allude to other documents that they can not find and that could delay things when they argue for more documents. However, unless a documents discloses something that the other documents do not disclose, then so what.

    This is what they needed to do since day one and this thing would have been decided by now. Instead of fighting the good fight, sometimes you just need to fight fairly and let the chiops fall where they may. I think the law and the evidence is on the side of the plaintiffs. Even Scalia argued that Lawrence would open the door to a constitutional right to same-sex marriages. Well, his opinion against the Lawrence decision was wrong, but his reasoning was right. I hate Scalia, but his legal reasoning is sound. he is just full of shit and will do anything not to recognize us.

    Obama had better come through with a liberal judge in favor of same-sex marriage or we could lose this at the Supreme Court level.

  • 10. Monty  |  April 28, 2010 at 5:47 am

    The problem has never been what's in the documents. The problem is what's not in the documents: anything remotely relevant to the trial. Allowing someone to ask for any information they want has serious free speech implications.

  • 11. Carvel  |  April 29, 2010 at 12:02 am

    You may be right, Monty. However, as far as the plaintiffs are concerned they are entitled to their day in court and a decision free from both sides. I am concerned that the Prop 8 people should produce documents because they actually worked to get Prop 8 on the ballot and that is who the plaintiffs are fighting. It is also the people who are defending Prop 8 for the state as the state does not want to defend it as I understand it.

    What I don't understand is why EQCA and ACLU got involved at all if they are non parties. If they submitted amicus briefs, then possibly, but even then they would only be involved after the fact. they should comply under protest and take their first amendment rights up on appeal after a one day fine has been imposed.

  • 12. paulhogarth  |  April 28, 2010 at 5:17 am

    James, you're right about your questions regarding the additional submission of evidence.

    But the Judge won't make a verdict on June 16th. That's just the day for closing statements. Who knows how much longer it will take for him to issue a written decision?

  • 13. Andrea  |  April 28, 2010 at 6:07 am

    30 to 90 days afterward, usually. Sometimes up to six months. Unless some startling new evidence turns up, it's likely that Walker already knows what he's going to do by now, though, and he sure seems like he wants to get on with it. So the turnaround could be quite rapid. (Or not.)

    I'm just glad Walker is a Republican, so he's likely immune to any partisan pressure from Democrats who would want him to wait until after the election.

  • 14. James Tuttle  |  April 28, 2010 at 5:34 am

    Aww…it will be another tedious waiting game like with the CA Supreme Court decision. I am much more hopeful with this trial though.

  • 15. Alan E.  |  April 28, 2010 at 6:33 am

    Hi guys. it's been a while since I've posted. I'm glad we have some sense of an end in sight. I haven't had as much time to follow the rest of the proceedings since my new job. I will be at the courthouse for sure when Walker makes his decision. It's just a few blocks from where I work.

  • 16. Joel  |  April 28, 2010 at 11:28 am

    So, if Judge Walker rules in favor of the plaintiffs (and I really don't see how he can't), will the kibosh be put on prop 8 while the appeals take place?

  • 17. Andrea  |  April 28, 2010 at 12:16 pm

    It better be.

  • 18. Lora  |  April 28, 2010 at 1:35 pm

    I couldn't see how the CA SC could have upheld prop. 8 earlier, Joel. I guess I won't be holding my breath…
    Of course, I'm hoping we can all breathe easier soon!!

  • 19. Carvel  |  April 29, 2010 at 12:06 am

    As I understand it the California Supreme Court only decided a very narrow point. Was Prop 8 an amendment or a revision to the CA constitution. I was not aware if they decided the federal question as that would more likely have to be brought in a federal court. I don't think the CA courts had an evidentary issues of the federal constitutionality of Prop 8 which is why we have this case.

  • 20. Don  |  April 29, 2010 at 2:31 am

    The Prop 8 opponents deliberately kept all federal issues out of the state trial because they were afraid it would go to the US Supreme Court even though the state Supreme Court judges were practically inviting them to include the federal issues. Fortunately, Boies and Olson didn't have the fear the the ACLU, and other "gay legal supporters" had about going into the federal issues.

    So you are right, the Cal supreme court decided a very narrow issue: was Prop 8 an amendment or a revision. Most of the legal principals established in the original Marriage Cases are still in effect. For example, gays are still a "suspect class."

  • 21. Carvel  |  April 29, 2010 at 6:53 am

    That is why this case needed to be brought in California as the highest court in the state has so held that gays are a "suspect class" and most federal courts are bound by state court findings of law within their jurisdictions unless there is probably a finding of manifest error. It is not binding on the federal court, but highly suggestive and in all future California state court cases it is law.

    However, in all other state court cases I think it was a smart thing to keep the federal question out of the state courts as state courts are very reluctant to find another fundamental federal right of the people. In the past even the federal district courts and the federal courts of appeal have held that there is not any federally protected right to same-sex marriage. The one that I read in New York argued that same-sex marriage is a relatively new concept. In fact same sex marriages referred to as marriages existed in Roman times before the birth of Jesus. It was not until 425 AD or CE that Rome outlawed them at the insistance of the Roman Catholic church and because the Roman Emperor used it as a weapon against his enemies. He is also believed to have a male lover at the time.

    The courts and even Boies and Olson didn't bring up this fact (that I read) to establish that SSM is older than the Christian Church and that they were the ones that threw the first stone in the marriage debate that has raged for almost 2,000 years and directly parallels the power of the church in Europe and the world.

    One of the major contributors to Prop 8 was the Catholic church. What people sometimes don't see is that the Supreme court has been building to finding gay behavior and gay rights has been building for more than a hundred and fifty years.

    It started with the 14th Amendment after the civil War which required due process to all citizens. The right to privacy came from a reading of the 4th amendment of free from unwarranted searches and seizures and the 9th amendment. there is no right to privacy in the constitution mentioned as privacy.

    In 1905 th Lochner case limited the number of hours a baker could work and that was unconstitutional. (freedom to contract – remember marriage is a civil contract) Then in 1925 the Pierce case allowed the parents to educate and raise their children as they deemed fit and proper. The case established that the right to marry was a fundamental right. (Note we are now just intrepreting that right in light of new opinions.) It was not until 1965 that birth control was legal. In 1967 the Loving case was for interatial marriage. Those people are now both dead and we still don't have our marriage rights.

    The Supreme Court found that the right to marry was a fundamental right in 1967, but it still didn't apply to us. In 1973 was Roe v. Wade for abortions and that battle is still ongoing in the state courts to restrict that right. The Stonewall Riots were not until 1969 and in the 1970's and 80's saw the opposite sex sodomy statutes fall. However, in 1986 the same-sex sodomy statute in Georgia was held constitutional by the Supremes. It wasn't until 2003 in Lawrence that consensual sex with adults in private was constitutional. However, 14 states still have sodomy statutes on their books. The Lawrence case was a 5-4 decision so the make up of the court is critical.

    While I think that we have a good shot here and now, the thing is that our right to marry depends on the simple vote of 9 people who sit in judgement of everyone's rights. I think that Judge Walker is a fair and decent judge, but he has got to articulate with exacting standards the reasons and underlying facts of this case. What is not in evidence can not be considered usually. He can not go outside the scope of the evidence except he can take judicial note of some things. I do hope that the things that Boies and Olson did not present as evidence from what I read of the live blog will be considered.

    They. the Prop 8 people, keep talking about us changing the meaning or definition of the word marriage and we did not – they did. the church used its influence almost 2,000 years ago to do that. We were first included in the right to marry. I am sorry to be so bitter, but my lover died in 2002 and we could not take advantage of going anywhere to get get married in the US. I want to see this happen before I die. I suppose that I am like the old slave in 1850 that just wants to be free before they die.

    I am sorry if I appear bitter, but I think the legal history is as I have outlined it. There are more baby step cases along the way, but these are some of the important steps. All I can hope to say is Thank God almighty free at last.

  • 22. Craig  |  May 14, 2010 at 6:53 am

    Whatever happened to Dr. Tam's testimony? Was it thrown out? Or kept in?

  • 23. Kathleen  |  May 14, 2010 at 7:15 am

    The issue hasn't been decided yet. Plaintiffs have filed their objections and Tam has filed his reply. There will probably be a hearing on the matter, but it's not clear to me if a date has been set. Tam's original motion indicates a hearing date of June 10, but I haven't seen Walker issue an order to that effect and Walker's posted calendar only shows through June 6.

    I'm keeping an eye on it and will post an update if I hear anything – both here (in the current post) and on the facebook Prop 8 Trial Tracker page.

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