January 20, 2010
By Rick Jacobs
1:10PM. We’re baaaaaaaaaack!
[The judge said he’d referred Mr. McCarthy’s motion to quash (the documents that are public by the two pastors) to Magistrate Judge Spiro.]
Back to Boutrous examining Prof. Segura.
B: Asking questions carefully about documents. Wants to be careful not to mention anything that B does not direct him to do.
S: Document subject line: Go to Confession. November 4, 2008 at 9:20AM.
B: I propose that this document be entered into evidence subject to redaction. I still believe this document is not covered by privilege.
Judge: Mr. Pugno?
P: Thank you for pronouncing my name correctly. Everyone gets it wrong. This is correspondence between executive director of Catholic Conference of Bishops and we think it’s privileged, but we are willing to put redacted version.
B: Puts up redacted version with lots of stuff blacked out.
S: Reads part that says that this has been the longest presidential campaign in history and now we are almost done with Prop. 8. The direct involvement of the Catholic Conference (CCC) has been unusual—although not unprecedented.
The CCC has played a substantial role in inviting Catholic faithful to put their faith in action by volunteering and donating. Leg by the Knights of Columbus national donation of $1.5 million, other million dollar donors, and the countless major donor and with a significant percentage of the 90,000 online donors, the Catholic community has stepped up. Of course this campaign owes an enormous debt to the LDS Church . I will comment specifically at a later time (under separate cover) about their financial, organizational and management contributions to this success of this effort.
B: Puts up document that is marked highly confidential, attorneys’ eyes only. This document shows that Ron Prentice is saying that the main funding to put 8 on the ballot was from Auxiliary Bishop Corleone of San Diego’s efforts, other Catholics.
B: Puts up email from Prentice showing that Prentice is CEO of California Family Council and volunteer chairman of Protect Marriage.
S: Never seen a coalition of this sort arrayed against a minority group. Only similar thing is anti-abortion.
Pugno: Fighting over whether a document that was at one time a church official communicating with other church officials. Very troublesome to say that church loses ability to communicate with each other because of communication with other churches.
Judge: But this document was in that person’s file?
Pugno: Yes, but he was both a member of the executive committee of the campaign and he communicated with his own church. This is not a document from ProtectMarriage.com.
Judge: How can this document have some kind of privilege attached to it if it was in the file of someone from Prop. 8? It falls outside of the 9th circuit’s definition of 1st amendment.
Pugno: But it is a church official.
Butrous: I don’t think that he has standing to object.
Judge: Well he can object on behalf of a client, in this case Mr. Janssen [He’s the one who wrote the blackmail letters to Sal Rosselli and others saying that if they did not give the same amount of money to yes on 8 as they gave to no on 8, Janssen would publish ads about their lack of support for families.]
Boutrous: I think I can read this first sentence without bringing down the first amendment. Jansen communicates about public relations for campaign.
Pugno: But he was a member of the LDS organization at the time so this is not to be made public.
Judge: Jansen intervened to serve as party in the case. The document discusses messaging of campaign. I’m not aware of any privilege that attaches to his religious affiliation. This is material to the case. Your objection is overruled.
[Again, Prop. 8 is desperate to hide their machination]
S: Reads document from Jansen who says since first Presidency of LDS church wrote letter, what will be our role? “As you know from the First Presidency this campaign is entirely under the direction of the priesthood…”
“What is the next step in this campaign? I understand all grassroots organizing efforts in OC will be led by Gary Lawrence, who will report directly to the Protect Marriage.com Coalition leaders. He has also been hired…
Pugno: Object. Lawrence is protected.
Judge: 9th circuit protects core group. The mere fact that individual is in core group does not mean that the name cannot come out in another way. This is not one of his protected communications.
Pugno: Well, Judge Spiro protected Lawrence Research.
Boutrous: Lawrence is publicly associated with this campaign. Fact that religious organizations participate in campaign is perfectly fine, but once they do, they are public in that involvement. I see no 1st amendment issue here.
Pugno: His company played a role. He did not play that role.
Judge: This was a public campaign, out in the open. The people who were out front on it inevitably subject themselves to public scrutiny and to litigation that follows. There is no privilege that attaches to this document as distinct with communication among core group. Continue, Mr. Boutrous.
S: Continues reading. “Priesthood leaders will call each stake and leaders by zip code within each ward—potentially working not only with LDS but also non-LDS volunteers.”
S: Very close coordination with church, with statements like “this entire campaign is under priesthood direction” is notable. Customary within LDS for volunteers to be approached for support, but here it appears that there is an LDS volunteer in every zip code which is an enviable political organization.
[The Mormons actually rank this campaign with the Catholic Church! It’s here. It‘s clear. They worked the church to beat the queers.]
Pugno: Standing objection; it’s a church meeting document.
Judge: Can witness lay a foundation for this document?
B: This was produced by defendant interveners after they complied with Spiro’s order.
Judge: Does appear to be the minutes of a stake meeting. I gather, Mr. Pugno, it is correct that this document came from files of ProtectMarriage.com or one of the defendant interveners.
Pugno: I’m also sure that this came from Mr. Jansen’s file. He’s the only one of the interveners who was part of the Mormon. There really is no 1st amendment protection here if your correspondence is available.
Judge: That’s rather like attorney client privilege. If it’s outside of the mutual possession, that privilege is abrogated.
Pugno: Only reason it’s here is because Mr. Jansen took it out of his shoebox to comply.
Judge: Shoebox? (Laughter).
Pugno: Illustrates the point.
Judge: Appears to deal with Prop. 8. No one is questioning the right of public association.
Pugno: Object then on lack of foundation.
Boutrous: I can lay that foundation. Remaining portions of this document can be redacted. This is the key part. Mark Jansen reported on campaign activities.
Judge: Very well, the objection is overruled.
S: Reads document. Says Brother Jansen said LDS not to take lead, but to work through Protect Marriage. SLC had teleconference with 159 of 161 stake leaders in CA. Goal is $5million at $30 minimum donation per head.
S: Director Holland highlighted the luxury of having Mark Jansen key committees and that eh will received direct communicate (sic) from him.
S: With respect to Prop. 8 campaign, key talking points will come from campaign, but cautious, strategic, not to take the lead so as to provide plausible deniability or respectable distance so as not to show that church is directly involved. We might look at religious belief as source of opposition and think that some folks would vote their religious conscience, but we would not know that this sort of direct church power is engaged. I have never seen this level of coordination in a political campaign.
Pugno: Objects because document will be revealing.
Judge: Not to make light of this, but the reason people want to produce documents is that they are revealing.
Boutrous: It’s from an outsider to the core group. We are attempting to show the level of coordination with groups that Protect Marriage says were not even affiliated with the campaign.
Pugno: This is from a member of the core group.
Judge: This is a post-campaign trial and defendant represents it’s from a core group member, so objection is sustained.
Boutrous: Document not under objection.
Judge: Music to my ears.
S: “You may know that Mormons have been out walking neighborhoods with about 20,000 volunteers.” Speaks to breadth and size of power arrayed against gays and lesbians.
Boutrous: Another document produced by proponents over the past week.
S: Document appears to be an email from Chair of ProtectMarriage.com to others with some issue of how designated gifts to campaign are to be made.
B: Anything caught your eye about expression of political power?
S: 1. Teleconference calls:
1,700 participants in June/
Nearly 3,000 in July in CA alone.
5 more teleconferences planned with goals for training and final call of more than 5,000 CA pastors participate in one of these calls.
Shows huge array of political power.
[If you thought there was no vast right wing conspiracy, look again. HERE IT IS!]
S: Appears to be fundraising letter to someone who has given generously to Family Research Council in the past. Interesting because it is a sharing of donor bases to get people who can give to give to the campaign. “We have Arlington Group, FRC, Focus on the Family and others. “
Taken together or separately, these are extremely powerful groups.
B: Based on seeing all of this, what is your opinion of the relative powerlessness of gays and lesbians?
S: Taken together we see the absence of legislative victory, lack of ballot measure success, clear array of integrated power against, gays and lesbians have relatively little power.
B: You compared gays and lesbians with relative political power of AAs or women in the 1970s?
S: Relative to women in the 1970s, gay men and women are far more disadvantaged today than women then, because so many women. Being a woman is not inherently controversial. Women are loved by very many people. (Laughter). Certain provisions of 1964 civil rights act extended to women, so they enjoy statutory protection.
S: Comparison with AAs more complicated to explain. Let me begin by saying that being an AA before civil rights act passed was very difficult. Life in the south was terrible. At the time that suspect classification was extended to racial and ethnic minorities, there were three constitutional amendments that extended equality. Granted that there was lots of legislative nonsense. Immediately prior to WWII, Exec Order 8802 by Roosevelt prohibited war department from discriminating against AAs and 1948, Truman integrated military.
Lives of blacks was bad, but there was a number of constitutional and legal protections. The civil rights movement was an attempt to bring full equality.
In 1990, there was not a single state law that discriminated against gays. Now, 35 states have them. Opposite of what happened with AAs.
AA population 13%, some states 40%. Some jurisdictions have AA majority. No jurisdictions, except for small resort town, in which g and l are majority.
60 people of color have served in Congress; 4 in senate, although some have left to join administration. Significant that there is the first Hawaiian president (laugh). Huge that there is an AA president.
B: Comment on Prof. Miller (the would be witness for Prop. 8 who has been destroyed and dropped out).
Thompson: We have not had a chance to depose S about this and why is he familiar with Miller?
B: He attended Miller’s depo!
S: Miller had no idea about history of gay and lesbian history. Unfamiliar at all with political science work on prejudice of which there is a great body. I thank it’s fair to say that Prof. Miller did not look beyond the boundaries of California. When asked about other states, he had no knowledge. He even said he would be shocked if he learned that a majority of states have no protection for gays and lesbians, which is true. He also did not know about history of CA legislation. In starkest terms, in 29 states there is no protection for gays and lesbians and Prof. Miller said gays and lesbians have political power without being aware of that fact.
Couple of problems with Miller’s definition of political power. Vague definition. In case of statutory enactment, he did not know that court cases forced legislation. Attorney on his side asked if court cases can be considered political power and he said yes. Impossible to say that court rulings for a minority are an example of political power.
Miller said in his research that ballot initiatives are bad legislation because there is no time for reflection and bad for minorities. I agree with him.
[Brian is taking over now and will start on a new thread.]