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Hearing on Prop 8 motion to return video recordings set for June 13

Prop 8 trial

By Adam Bink

Judge Ware set the date for a hearing on the Proponents’ motion to return video recordings for June 13th at 9 AM. This will precede another hearing in front of Judge Ware, which is set for July 11th The hearing set for July 11th, on the topic of vacating the stay, is moved to June 13th. The hearing will also precede another hearing on our side’s motion to unseal the video recordings, which will be set once the Proponents’ motion is ruled upon.

What makes the June 13th hearing so interesting is that Judge Walker is ordered to be present:

All participants in the trial, including the presiding judge (now retired), who are inpossession of a recording of the trial proceedings, are ordered to appear at the hearing on June 13,2011, to show cause as to why the recordings should not be returned to the Court’s possession.
Which should make for some interesting drama. Rest assured P8TT will be covering it. Full order setting the hearing found in the Scribd doc below:

[scribd id=54171862 key=key-1pz59ft8fbn32lueegj2 mode=list]


  • 1. Straight for Equalit  |  April 29, 2011 at 1:33 am

  • 2. Ann S.  |  April 29, 2011 at 1:33 am


  • 3. JonT  |  April 29, 2011 at 1:39 am

  • 4. LCH  |  April 29, 2011 at 2:21 am


  • 5. Ronnie  |  April 29, 2011 at 4:15 am


  • 6. jeremy  |  April 29, 2011 at 1:34 am

    Wow. That wording, to me, sounds ominous. Not saying that judge wade has made a decision, but the phrasing of "shouldn't be returned" sounds very much, to me, like it comes from someone who just realizes they've been robbed.

    <3 jeremy

  • 7. Alan E.  |  April 29, 2011 at 1:41 am

    I wouldn't take too much from this wording. It seems like it is maintaining a status quo position initially.

  • 8. Mark  |  April 29, 2011 at 1:34 am

    This should be even more inetersting than the original trial itself.

  • 9. Kathleen  |  April 29, 2011 at 1:38 am

    There is no hearing July 11. That hearing was rescheduled for June 13. Both matters will be taken up at the same hearing.

  • 10. adambink  |  April 29, 2011 at 1:50 am

    I missed this one. Thanks

  • 11. Kate  |  April 29, 2011 at 3:07 am

    That's why we have Kathleen! YAY!!!!!!!

  • 12. Ed Cortes  |  April 29, 2011 at 1:57 am

    gotta watch this one – especially with a new judge!

  • 13. Sagesse  |  April 29, 2011 at 2:00 am

    I think it should be very entertaining to have the Proponents arguing both the order to seal the tapes, and their proposal to vacate, on the same day. Wonder if Judge Walker will be excused for part deux.

  • 14. DonG90806  |  April 29, 2011 at 2:00 am

    Kathleen and Adam, I need your help on this one. It is my understanding that a retiring judge can select documents which are part of his "personal papers" which he can take with him when he retires. I read someplace that Judge Walker had the Court Clerk make him copies of those documents he deemed "his personal papers". If this be true, can Judge Ware order him to turn over his "personal papers"? Does anyone know if this hearing is going to be telecast? Don

  • 15. Kathleen  |  April 29, 2011 at 2:25 am

    Don't know the answer to either question, though I would suppose the Court could order him to either return the recordings or retain them under the same protective order that applies to the copies the parties have.

    Judge Walker explains how the recordings came into his possession in his letter reply to Proponents' motion when it was first filed.

  • 16. AnonyGrl  |  April 29, 2011 at 2:40 am

    I wonder if Judge Walker will be allowed to address Cooper et al about this whole nonsensical issue of vacating his ruling.

    I don't know the protocol for that, but I do hope he does, and he hands them their heads.

    And hurrah for moving the whole thing UP to June 13. Are they finally starting to listen to us when we say "THE DELAY IS NOT JUST HURTING US, IT IS KILLING SOME OF US"?

  • 17. AB  |  April 29, 2011 at 2:53 am

    So, does it still seem unlikely that the motion to vacate will be granted? How "unlikely" are we talking?

  • 18. Carpool Cookie  |  April 29, 2011 at 3:52 am

    There's never any guarantees in a trial or a legal hearing. That's why the vast majority of cases settle out of court, with a mutually made decision all parties can live with…rather than take their chances.

    But at the same time, practically all legal professionals seem to be saying the demand that Walker's decicion be vacated is without merit.

  • 19. VoicOfConcern  |  April 29, 2011 at 2:58 am

    Note: Judge Ware is the new Chief Judge of the Northern District of California, Ware replaced Walker in that capacity. The Ninth Circuit Court is the Court of Appeal, where the case went after Walker ruled on the case.

  • 20. Kathleen  |  April 29, 2011 at 3:15 am

    Just spotted that, too, and sent a note to Adam.

  • 21. Carpool Cookie  |  April 29, 2011 at 3:48 am

    Yes…I really, really want this to be telecast somehow, too.

  • 22. Carpool Cookie  |  April 29, 2011 at 3:57 am

    That SUPER reliable source, Wikipedia, states that Judge Ware is African American, and was born in Birmingham, Alabama, in the 1950's. I wonder if that will shape his perception of the issues at stake?

    Will Cooper and Pugno demand he recuse himself?

  • 23. nightshayde  |  April 29, 2011 at 4:34 am

    Born in 1946, actually.

    I've been searching (not all that energetically – but searching nonetheless) for information on his personal life. Wouldn't it be a hoot if he turned out to be gay as well? Wouldn't THAT send Cooper & Pugno into a tizzy fit of dazzling proportions?

  • 24. Felyx  |  April 29, 2011 at 4:52 am

    Just the thought cracks me up! Do you think they will go so far as to ask him to disclose his dating and/or marital status first?

    Would be even better if he were gay AND married during the window… then they couldn't say he was gay or stood to benefit!!!

  • 25. Felyx  |  April 29, 2011 at 4:54 am

    [Edit] …say he was unqualified for being gay or stood to benefit!!! /Edit

  • 26. AnonyGrl  |  April 29, 2011 at 5:28 am

    OK, THAT one has me rolling on the floor laughing.

    I think that Olsen and Boies should open with:

    "Your honor, if there is anything at all valid in this motion to vacate Judge Walker's ruling, I think it important that YOU first reveal YOUR sexuality and marital status and/or any intent or thoughts you ever had on the subject, so that the Proponents may determine if YOU are eligible to even rule on it. In fact, I am afraid that for the benefit of the Proponents, we must insist on this condition.

    What do you mean we cannot ask for things for their benefit? The current stay on Judge Walker's ruling is supposedly for the benefit of the Plaintiffs, whose marital relationship would be in a state of confusion until the case is finally ruled on, or at least that is what the Proponents claimed.

    Perhaps it might be better if all those video tapes were made public so we could have others review this, to determine if anything that the Proponents are asking for makes the tiniest modicum of sense, because personally, WE can't find any."

    Well, that is how it goes in the fantasy court in my head, anyway.

  • 27. Carpool Cookie  |  April 29, 2011 at 6:31 am

    I wonder if this will lead to a whole new onslaught of "outings", in which closeted judges are later "proven" to be gay…so the prosecution gets to try for a do-over.

  • 28. Rhie  |  April 29, 2011 at 4:49 am


  • 29. CaliGirl  |  April 29, 2011 at 5:13 am

    Sorry, guys, I'm a bit confused.

    So, June 13th, trial about the recording, okay. Get that.

    June 13th, also "on the topic of vacating the stay"? As in, letting people get married? Not, like, vacating the ruling because of some homophobic and ridiculous claim that a guy's sexual orientation somehow trumps his logic and understanding of how the law works?

    Because you all are talking about both here, and I'm confused and sleepy, so I may not be reading things right.

  • 30. Kathleen  |  April 29, 2011 at 5:18 am

    Oops. Didn't see that. …. motion on vacating the ruling (not the stay)

  • 31. CaliGirl  |  April 29, 2011 at 5:22 am

    Thought so. Thanks Kathleen. 🙂

  • 32. Peterplumber  |  April 29, 2011 at 7:08 am

    Regarding James Ware, some stuff I found:

    In 1995, Ware spoke out for a measure that would offer guarantees of job protection for homosexuals working in his California judicial circuit. Other judges had opposed the measure, but Ware's argument won out.

    But there is also this:
    U.S. District Judge Willie James Ware of San Jose, California, says he saw his teenage brother killed in a 1963 Birmingham, Alabama racial attack. The Alabama native nominated for a prestigious federal judgeship faces scrutiny over his claims that his brother was shot in a racial attack on the same day as the Sixteenth Street Baptist Church bombing that killed four African American girls.

    Friday, November 7, 1997

    U.S. District Judge James Ware withdrew his nomination to the nation's largest appeals court Thursday, after admitting that he lied about being the brother of a 13-year-old boy killed in a 1963 Birmingham racial attack.

    August 19, 1998|By Harriet Chiang, Chronicle Legal Affairs Writer

    (08-19) 04:00 PST SANFRANCISCO — 1998-08-19 04:00:00 PST SANFRANCISCO — In a rare move, a panel of federal judges publicly reprimanded U.S. District Judge James Ware of San Jose for lying about his brother being killed in 1963 by a racist's bullet in Alabama.

    The nine federal judges from throughout the Western states announced the disciplinary action yesterday, concluding that Ware's conduct was "prejudicial to the effective administration of the business of the courts."

    A small Northern California community bank this week sued San Jose U.S. District Judge James Ware in Santa Clara County Superior Court, accusing him of failing to make payments on an $80,000 boat he purchased nine years ago. The lawsuit, filed by Butte Community Bank, alleges that Ware owes more than $58,000 — and the bank is seeking a court order to seize the boat.

    So now the veteran federal judge finds himself facing the prospect of being a civil defendant in a courtroom instead of running one.

    Ware declined to comment on the legal spat with the bank. Douglas Kraft, Butte's lawyer, also declined to comment.

    The lawsuit alleges that Ware has stopped making the $812 monthly payments on the boat, described in court papers as a 1993 Navigator 33 Yacht. "Ware has failed, and continues to fail to make payments according to the terms of the note,'' the lawsuit states. Federal district judges earn about $170,000 a year.

    On November 9, 2009 in Cohen v. U.S. District Court, the Ninth Circuit Court of Appeal issued a Writ of Mandamus against Judge James Ware for "usurpation of power". Apparently, Judge James Ware sought to usurp the power of plaintiff to appoint his own legal counsel in a securities fraud action against NVIDIA Corporation. This usurpation of power would have allowed Judge Ware to control how vigorously NVIDIA could be prosecuted for securities fraud. A writ of mandamus is an extraordinary remedy reserved for extreme cases where a judge essentially thumbs his nose at the law.

    Recent papers filed in federal court now also implicate Ware in a scheme to coverup the fact that since 1980, no U.S. Attorney General has issued, implemented or reviewed the civil rights policies relied on by tens of millions of Americans. Relying on an obscure case decided 100 years before Congress added Rule 11 to the Federal Rules of Civil Procedure, Ware refused to sanction federal lawyers for filing papers which lacked truthfulness and were filed for improper motives. As a result the lives, health and careers of students and teahers at federally funded colleges and universities throughout the Bay Area were adversely impacted.

  • 33. Michelle Evans  |  April 29, 2011 at 8:14 am

    Doesn't bode well for our case.

  • 34. Ann S.  |  April 29, 2011 at 8:24 am

    Well, some does, and some doesn't. It's quite a mixed bag, and a lot of it doesn't make him look any too good.

  • 35. Carpool Cookie  |  April 29, 2011 at 9:09 am

    I'm okay with the missed boat payments.

  • 36. Ann S.  |  April 29, 2011 at 9:49 am

    Well, one would hope that a judge would respect the contracts he enters into. But as to whether he can be impartial and weigh all the law and facts before him fairly — I doubt it would have any impact on what I think about his ability to do that.

    The odd incident about him pretending to be the same Ware who saw his brother murdered — one would hope a judge has more respect for truth than that. But once again, does it affect his impartiality? I'm not sure I see the argument that it does affect that.

  • 37. Carpool Cookie  |  April 29, 2011 at 10:55 am

    Actually…I don't know how I would go about weighing a judge's past as an indicator of if they would rule fairly and impartially.

  • 38. Ann S.  |  April 29, 2011 at 3:06 pm

    @CC — I don't either.

  • 39. VoiceOfConcern  |  April 29, 2011 at 4:56 pm

    I'm not at ALL concerned about Judge Ware. We don't know the full back story for ANY of the listed matters. We DO know that he is now the new Chief Judge of the Northern District of California. Which means he is the next most senior Judge full (not Magistrate) serving in the Northern District. I say, let's give him a chance, rather than leap to conclusions.

    It's worth noting that this is a case that is being carefully watched by the Judges as well. Are you folks aware, that on the day of the Prop 8 Trial's closing arguments, several sitting Judges for the Northern District were in the courtroom audience? Ware is no idiot, he is WELL aware that this is a very high profile matter.

  • 40. Lora  |  April 29, 2011 at 3:36 pm

    I'm wondering why motions by the prop 8 proponents seem to be fast-tracked while anything that benefits 'our side' seem to be drug out for months and months?!?!

  • 41. Elizabeth Oakes  |  May 1, 2011 at 6:12 am

    I'm hoping the answer to your question is because their motions are more easily disposed of, like taking out the trash.

  • 42. Sheryl, Mormon Mothe  |  May 1, 2011 at 8:01 am

    Is the June 13 trial open to the public?

  • 43. Kathleen  |  May 1, 2011 at 8:50 am

    The hearing is open to the public. I'll be there.

  • 44. Sagesse  |  May 1, 2011 at 9:00 am

    Don't suppose they allow popcorn.

  • 45. Sheryl, Mormon Mothe  |  May 1, 2011 at 3:48 pm

    Thanks, Kathleen. If my job status is still the same, so will I. Will be nice to see you again. Anyone else planning on being there?

  • 46. Ann S.  |  May 1, 2011 at 3:54 pm

    I will if my workload permits it.

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