June 13, 2011
Updates will scroll from the top
By Adam Bink
12:12: And that’s the ballgame, folks. What did you think of today’s arguments?
As summarized earlier, Judge Ware plans to deny the motion to return the tapes, and will issue a written ruling regarding the motion to vacate the Judge Walker’s ruling soon, ideally within 24 hours.
Stay tuned for discussion from Roland Palencia, incoming head of Equality California, and other posts on today’s events. We’ll also keep you updated on a ruling from Judge Ware.
This thread will no longer update.
12:04: An update with a transcript from Rick. Judge Ware says he expects to give a written decision soon, possibly in 24 hours.
Therese Stewart: Argues that can’t put judges out unless have very high standards. Cites case that deals with contraception or abortion. Judge should disclose that he’s Catholice because his beliefs are fervently held. Another point: If judge does not disclaim interest in a case, proponents say that judgment may be bad. In other words, in a contraception case, does a judge have dislose that he and his wife use family planning or that his children use contraception?
If there is a subjective reason a judge cannot be fair, he’ll disclose. There is no law that supports that a judge must disclaim. It would turn the entire system on its head.
We’re not here to discuss whether judge is gay. We knew that. Not here to discuss whether he had a relationship. That was known. Nothing in the April 2011 article that describes their financial relationship. We don’t even know if they are married. The entire case relies on duration of relationship. Proponents say its not germane that he’s gay or in a relationship, but that he might want to marry. But they say in the same way that you cannot speculate.
Court cannot speculate about Walker’s intentions. Must conclude that Judge would have disclosed or recused if he had an interest in the case. Rule tries to have diverse bench so that no one is recused because he/she is part of a minority group.
W: Thanks for foreshortening your arguments.
C: Mr. B argued issues that we have disavowed. We do not think it matters whether Walker is gay. Judges can be expected to put their values and beliefs aside. This is about whether Walker should have disclosed earlier his potential interest in the case.
W: Difference in failure to disclose vs vacate stay. I don’t read 455 that a judge shall be disqualified. Once you have a hearing, which you have now, what is the issue?
C: Failure in his case is that he did not disclose something that is relevant to the issue. That’s an independent reason to disqualify.
W: Failure to disclose is different than what he failed to disclose and whether that constitutes a violation.
C: He did not disclose and what he did not disclose throw into question in his impartiality. Third is his interest in marriage. If he had disclosed his relationship, he would have had to disclose his state of mind. Mr. Boutrous argued that the only reasons to disqualify would be if his own case were in question.
We would not be here if we had not learned that he’s in a long term relationship.
W: I really appreciate the quality of the briefing and argument that has been presented with respect to this issue. I understand this is an important issue to the parties based on the amount of litigation that has gone before. It is important to the courts as well. It is my intent to give you a written decision quickly. I’d like to say in 24 hours. The problem has occupied me since the motion was first made. I have been thinking about it and can give you a quick ruling so that we can move beyond.
11:57: I just changed the settings on posting from mobile devices, and for iPhones at least, you should be able to post from an iPhone and have it show up on desktops/laptops, correcting a problem we had earlier. If you’re having trouble from other devices, it may not be something we’re able to resolve on our end, but let us know anyway.
11:52: By the way, for those in the courthouse who want to have a Prop8TrialTracker community lunch with Rick and the team after this concludes, drop me a line at adam AT couragecampaign DOT org for details.
11:51: A dispatch and analysis from Arisha:
Boutrous has now moved on to the merits. He’s arguing directly to Ware’s earlier point and has said that ProtectMarriage is unreasonable – that a reasonable person would not conclude that a judge was bias simply because of his gender.
Ware takes lots of notes and is now sitting back with a furrowed brow, his index finger over his mouth. Ware now saying that he doesn’t intend to go back and watch the tapes to decide whether the trial was “fair.”
Boutrous unwilling to move from his position that even if Walker wanted to get married that he did not have to disqualify himself. Cooper was willing to bite on this argument – mainly because he has to – otherwise Cooper would strictly be arguing that a gay judge can’t judge.
It seems that both Boutrous and Cooper used most of their 45 min time allotments to argue.
11:48: Another dispatch from Rick, the discussion between Judge Ware and Boutrous:
W: Disclosure is not as important to me with race because it’s obvious. I draw my thinking from whether a judge is Episcopal. You can’t look at someone and tell that they are Episcopal. Is there a disclosure requirement for non-obvious attributes?
B: No, your honor. We never argued nor would we argue for a judge to disclose religion.
W: I’m not going to make you speculate on what you’d have done if judge were Mormon.
B: I won’t go down that path either, but we would not have objected. We presume that judge is able to live up to his duty of impartiality.
W: Where would we set aside a ruling?
B: If one side had a huge advantage over another, it might be set aside. Campaign contributions to a judge so sizeable, things that are objective, would be different.
(This is really boring, which is good. The other side just has nothing. The judge is trying to find a way to learn how to rule.)
W: My assumption is that this motion by interveners is motion to whether Walker should have recused himself prior to case. I have not looked to what happened during the trial even though they’ve pointed things out to me. I have focused just on whether he should have disclosed prior to trial. Should I review the video of the trial?
B: There is ample precedent to say that the appellate court should be the place to review what happened in the trial. …
W: I do not intend to view the trial. But are you saying that for “reasonable person” perspective I should watch trial?
B: You could, but you’d see he’s reasonable.
W: I think I just should focus on disclosure at the outset because had he disclosed or not would not affect him throughout the trial. But does a reasonable person have to know the law?
B: Yes. It’s your question from earlier that we could be subject to majoritarian rule outside of the constitution.
W: I am inviting you to find a case that a reasonable person would disclosebased on knowing the law?B: In tort law, we look at reasonable purpose for which someone operated. We look at framework to see if impartiatliy is questioned. The answer here is no. The bottom line is proponents challenge him because he is gay and in gay relationship. They’ve admitted that they’ve known about the judge’s orientation, they have filed pleadings that were offensive, claiming the judge is biased.
W: It does seem to me that it’s okay to be biased in trial because both sides are trying to convince the judge. It’s the question of coming in, i.e., are you biased at the outset by some fact.
11:35: Things should be getting back to normal server-wise.
Colloquy with Judge Ware and Boutrous, very amicable, trying to come to a path to conclusion, from Rick:
B: The two rules do come together sometimes – pecuniary and interest. Cooper has not come up with one case in which any court anywhere has ever come up with a standard advocated by him. This would do great damage to system, namely that judges cannot be expected to follow their oath. Proponents keep saying that Walker sitting in judgment on his own case.
W: If court found that under different facts, because I agree with you thatthere are no such facts, if Walker had made clear that he had wanted to marry his partner, you argue that his impartiality would not be called into question. Is there any situation in which his objectivity could be questioned?
B: Yes there is. One judge was a plaintiff in a class action so that case directly helped the judge. If there’s a financial interest in a commercial dispute and deciding case…
W: Judge Clemons situation. Judge was sitting on case that would have integrated traditionally white. Case was brought by traditionally black institution. He had sat on the board of the college. One judge said that would have disqualified him.B: He was exposed to facts because of previous background. Judge’s come from bench. They are part of society. I think it’s a very, very, very strict standard before we start taking judges out for being involved in institutions.
W: I’m still struck by your argument that even if Walker intended to marry, he still would be permitted to sit on case.
B: What a person at a given moment thinks. Let’s take it out of Walker. Starts with judge thinking, “I don’t want to get married. Then four days later, does. Then at end not sure.” Requires us to go to thought process.
W: But A requires broad standard, where it MIGHT be questioned whether right or otherwise. Your argument bears close scrutiny.
B: You don’t have to go there. They have no evidence. They could not make argument earlier. They filed a motion to knock Reinhardt out of case based on nes reports about R’s spouse, so they are not opposed to using news reports as basis for disqualification. If we start slicing it too think and start trying to figure out what judge thinks or feels, suggests bias if a judge sits on a case that might effect his/her “class.”
11:30: After traffic overload and reset, we’re back! Sorry about the problems. Several new updates below:
11:22: Update on transcript from Rick:
B: There’s no factual record here of defendants being aggrieved because they did not raise it before Walker so no facts. Seeking relief after judgment entered, must be grave injustice to come in after, they don’t meet standard. They cannot rely on speculation and the like.
W: What’s difference between de novo or facts? Motion is based on factual showing. They rely on 2011 interview for new information. Is this de novo reviewed—I’m not sure I know what I’d be reviewing—or plain error, that he left something out?
B: They have no single case that shows that recusal is warranted. Plain error rules out their case.
W: It seems to me problematic. I’m not frequently put in a position as a district judge to review the actions of my colleagues. If it goes to another judge and it’s de novo, you are just looking at the problem.
B: Judges are presumed to follow their oaths and act impartially. We can presume if he followed law, no basis for recusal.
W: But cannot presume more than that.
B: We’re not afraid of the facts or legal principles they have put forward. You asked Cooper if biased person can be reasonable person. The answer is yes. In cases of race, ethnicity, religion—minority group—can act without bias even though they’d benefit from outcome. Walker might get benefit because equal protection might so dictate, but courts have ruled over and over again that recusal not warranted.
11:16: Update from Arisha:
Ware now questioning Boutrous on whether ProtectMarriage lawyers had an obligation to object to Walker’s sexuality earlier, noting that he hasn’t seen much law that suggests the lawyers have a duty.
Ware says upfront that he is not inclined to reject the motion because of timeliness.
Uh oh. That means Boutrous needs to have an extremely strong argument on the merits because Ware isn’t buying into it.
11:10: Colloquy between Judge Ware and Boutrous:
W: If judgment were to be vacated and record is clear, you’d have a new judge who’d come to same conclusion. You’d have same outcome, but with delay.
B: Enormous damage, first to judicial system that would say gay judges cannot stand on same footing as other individuals in minority groups. Can’t be based on innuendo and speculation.
W: Key to argument is that I have to find this way b/c walker is gay. Would you make the same argument if I conclude that defendants are genuine in pointing to relationship, not his sexuality.
B: I think even if court rejects my argument, will still be perceived as bias against gay people. We had a three week trial. Over top. Does not meet any standard. They knew Walker had a relationship based on reports in June of last year. They had an obligation to look judge in eye at time.
W: Where is their obligation?
B: Cites precedent. Court said under 60B there is very strong diligence requirement. Gallo case says you cannot lay in the weeds until you are disgruntled litigant to strike. They knew about facts and they disavowed they’d bring it up. If that does not sink them for all precedent and rules, nothing will.
W: I am not inclined to use timeliness. I will consider it, but I am not inclined to rely on that. Seems prudent not to say “simply too late.” Then on appeal from that decision would come to decision on timeliness. Standard of review important here. Vacated and record is clear, you’d have a new judge who’d come to same conclusion. You’d have same outcome, but with delay.
11:02: Things have recommenced. Boutrous for AFER is up:
Boutrous: This motion is frivolous and offensive but it’s not surprising since everytime in history we have faced civil rights issues, wehave faced such challenges. Also want to point out that this motion is not timely. And the rule requires extremely high standards to overturn a ruling.
First C’s argument makes absolutely clear that their motion targets Walker’s sexual orientation. The fact that W is gay should not be any surprise that he has a relationship. One of defining features of being gay is having a relationship with a same sex person. They are challenging Walker because he is gay, now saying “not because he’s gay, but he had a relationship…” same argument in gender and race. They find something else to add into mix to deflect that litigants.
When Mukasey as judge was attacked because he was Jewish, he said “same rancid wine in different bottle.”
W: Not necessary that they be in relationship to be GLB. To presume that one is in a relationship is other side of Cooper’s same issue.
B: Yes. Just because people are gay in a relationship does not mean they are all the same. C is just stereotyping. Relationships are evolving, fleeting. Where would disclosure stop? There is no evidence that W intended to get married. In the second circuit in a case brought against Judge Chin resulted in sanction order, “when you come into court to challenge because someone is minority group should have huge evidence…”
W: Defendants saying that circumstantial evidence that he might marry.
B: These standards are not to put judges on trial. I find it outrageous that they’d come in at this late date. It was reported in the SF Chron. Pugno said he would not make it an issue. Feb 2010 right after trial ended was reported. Five days after closing arguments, LATimes reported that Walker was gay and was seen at events with companion. James Campbell of their side said, “as a legal team we are not going to focus on” Walker’s sexuality. Then when they got to 9th and saw that standing is an issue, they threw a hail marry pass and took the low road.
10:55: Update from Arisha:
Have I mentioned that I’ve always liked Judge Ware. I first met him a few years back as a 3L in law school while I served as the Editor-in-Chief of the IP law review at Santa Clara Law. For those that don’t know Chief Justice Ware has been “known” as a judge for his interest in Intellectual Property law (copyrights, trademarks, patents). I believe he taught a class a Santa Clara, often hired interns from Santa Clara’s student body (which I always thought was amazing of him because he could have easily recruited from Stanford or Berkeley Law). Anyhow, he’s one of Santa Clara’s favorite judges. Each year he auctioned off a karaoke party for students to bid on for charity. Because of my position as EIC, I was invited to one of the karaoke parties – I wish I could remember what song Judge Ware sang, but I digress. I say all this because I think “who he is” really matters.
Just after Prop 8 passed in California, a false meta-narrative arose blaming increased black voter turnout on the passage of the hate-initiative. I won’t rehash the details, but needless to say, both sides were quick to claim this initially as truth. The net result was that California lgbt orgs spent the last three years convincing activists that they needed to spend time knocking on doors in the communities of color that they avoided the first time around while anti-equality orgs like ProtectMarriage.com and NOM got to go around claiming that black voters had flatly rejected this new civil rights movement (mostly unchallenged).
I began organizing for the repeal of Prop 8 in part because of this dialogue – to show that there are “straight blacks” that exist that contravene the narrative. The false narrative hasn’t gone away – I’ve heard it discussed in every subsequent town hall or community event that I’ve been to over the last two years.
But if Judge Ware rules the “right” way the narrative, in my view, becomes much more difficult to justify. In the three years since the passage of Prop 8, we will have witnessed a black president (Obama) who not only signed the repeal of “Don’t Ask, Don’t Tell” but also instructed a black U.S. Attorney General (Eric Holder) not to defend DOMA in court, a black state Attorney General (Kamala Harris) refusing to defend Prop 8. Add on the fact that the “important” black Reverends (Jesse Jackson and Al Sharpton) and NAACP President Julian Bond have been supportive of lgbt rights for years – if Judge Ware rules the “right way,” what other black gateholders are there in opposition (and don’t tell me Hermann Cain or Kobe)?
What is the tipping point? How many more black leaders must come out in support for lgbt equality for the movement to have the confidence/backbone to claim it?
10:54: Update from Rick:
Here at the break, it seems hard to imagine how the Judge will rule that Walker had a duty to disclose that he was in a relationship. Charles Cooper has consistently failed his clients. He put on only one “credible” (defined by Walker) witness. He had no closing argument except to say that marriage between people of the same gender would change the definition of marriage if marriage is defined as between opposite sex people. That was his argument.
Now he is trying mightily to put Judge Walker on trial to demonstrate that he did not fail his clients, but that he had an impossiblecase since Walker is gay. When Ware asked if Walker had a duty to disclose that he was gay, Cooper said no. When Ware asked if Walker had a duty to disclose that he’s in relationship, Cooper said yes because that means he wants to get married. When the judge asked if all people in long term relatioships want to marry, Cooper said no, there are platonic, non-intimate relationships that are not precedent to marriage. When Ware asked if Walker had to disclose that he did not want to marry, Cooper said he did.
So follow this: According to Cooper anyone in a long term relationship wants to get married.
10:48: Things are now in recess until 10:55.
10:39: More transcript from Rick:
W: Would only have to disclose his relationship if he wanted to marry. The long term relationship is your marker for wanting to marry.
C: We believe that would be a fact and did have obligation to disclose.
W: If he did not have a desire to marry, does not have to disclose?
C: If he did not conclude?
W: He would not have to conclude it; he’d know it.
C: If he had not interest in marrying his partner…
W: He’d have to dislose his lack of interest? I don’t want closeness of my questions to be seen as cavalier. I appreciate struggle you have in answering. Probably same kind of questions with race in past. Is first time judge’s sexual orientation in point.
C: Judge Clemons in Alabama re: integration, recognized that his children’s interest. He disclosed no interest in his children’s interest in attending that school.
W: I know Judge Clemons. I don’t think that his children were even in high school. I take judicial notice that children may not know until the day they go to college whether they want to go to college or where.
10:38: From Arisha:
I love hypotheticals – Ware is using hypotheticals brilliantly, at first to touch on race and now …
He poses this hypothetical: if a female judge has a history of being raped, does she have to disclose that fact when presiding over a rape case?
A few people gasped. It’s a brilliant hypothetical because it makes a clear distinction between physically obvious biases (being a person of color or being a woman) and the more intimate non-obvious details of our lives.
I really like Judge Ware.
10:35: The colloquy is getting rather heated. Quick transcript courtesy of Rick:
W: You keep saying that Walker has an interest in getting married. Is that what you are saying?
C: If he has an interest in marriage, …
W: You repeated it again. I hear me. I recognize my voice. I’m not sure you hear yours.
C: Let’s back up. Ten year relationship means he was bound to disclose. Also must disclose that he is similarly situated to plaintiffs.
W: You’ve raised the disclosure question many times. You seem to say that judge is required to disclose. In a case where race is involved, sometimes disclosure not made because obvious. We are bound by our past which is largely irrelevant. If a female judge has suffered rape or sexual assault and is hearing a case on rape/assault, must she disclose?C: That’s a tough question. I don’t see how her direct interest would be affected.
W: That’s not the question. Would a reasonable person object?
C: It is closer call whether or not reasonable person in possession of all facts whether judge’s impartiality disclosed.
W: You would have me rule that judges disclose intimate details of their past such as being abused as child and should not be presumed capable of fulfilling their duty.
C: Judge would have to disclose if parties think relevant. Broad standard. Includes information judge might believe self would not rise to meritorious recusal. The cases are quite clear. The judge’s responsibility quite broad.
W: In this case, Walker need not to have disclosed orientation.
C: That is true. We have made that clear from beginning when first news reports surfaced.
10:29: Transcript of the colloquy between Cooper and Ware from Rick:
W: You keep rearguing. Is there a fact that shows that Judge Walker had same interest as plaintiffs?
C: We have knowledge of one set of facts that common sense says that long term relationship … key point is that was never disclosed by Walker. (Cooper is trying to put Walker on trial. It’s gross, really.) Very fact that l/t relationship not disclosed is a fact of great relevance that one could have cause to be concerned about impartiatlity.
W: You’ve gone to a different question. I’ll leave unanswered question that he wanted to change his relationship?
C: He did not disclose.
W: How does that affect the question about whether he wanted to change relationship? Let’s elevate this to a new level. Do you accept that rule requires that person must know all facts…
W: A reasonable person can speculate about impartiality of judge, not based on fact?
C: If there is a fact that any judge may have such as interest in marrying long term partner.
W: Now you are saying that Walker wanted to get married. I have not seen that in the record.
C: We know of ten year relationship that could have impacted proceeding. Second is does he have interest in marrying long term partner. There is answer to question. If yes, he must have waivered recusal.
W: I was about to ask series of questions on reasonableness. I thought you’d answer that, but you went someplace else. I am always hestitant to adopt reasonableness test because we deal with people. Does standard we use allow bias or prejudice or does court have to exclude bias or prejudice?
C: When reasonable person with possession of all facts is not biased…
W: Where do you get that? You believe that you cannot be baised or prejudiced and be reasonable? Is there such a thing as a reasonable bigot or bias or prejudice can…
C: Reasaonble person can be biased…
W: IF reasonable person can be biased, must it also be consistent with constitution? IF people on the street think it’s reasonable to take rights from people is that okay?
C: Reasonable person would have to see that judge is not biased.
W: That’s why I have trouble with this. Lots of people have reasonableness, but they are different tests. But we have to follow constitution. If a reasonable person thought that black judge should recuse from civil rights case, is that sufficient?
C: A reasonable person would not think a black or white judge would be unreasonable.
W: Why not?
C: Because they are not then reasonable.
W: Some societies where people are not reasonable, such as caste, etc. Our country does not allow us to discriminate for race, gender or sexual orientation?
W: For purposes of being in same sex relationship, does that mean he cannot be objective?
C: Depends upon question.
W: What question? MY question or someone else’s?
C: Gay judge in DADT might be biased.
W: Not sure how DADT got in here. Can’t assume that judge who takes oath is incapable of doing so. So what is it that you find that Walker is incapable of following his oath?
C: Not bias..
W: What is it that reasonable person would find here that would make Walker seem biased?
C: A reasonable person would have basis to question whether Walker should sit on case becxause it would impact his own relationship. (Just keeps repeating same stuff. He simply wants to show that Walker was gay and therefore not capable of ruling.)
10:25: Another update from Arisha:
We’re now talking about reasonable person test. The “reasonable person test” is a legal standard that we use to judge whether someone’s action is something an average person would do.
Ware asks Cooper is there a such thing as a reasonable bigot?
Ware on a roll: do the requirements of the Constitution bind the reasonable person test?
Ware: If a reasonable person thought that a black judge had to recuse himself from a civil rights case?
No strong answer from Cooper. Cooper now saying that a gay judge could rule on “Don’t Ask, Don’t Tell”.
10:18: A dispatch from Arisha:
The aforementioned white-haired man is now rubbing the temples of his forehead as Ware continues to challenge Cooper. Ware arguing that ProtectMarriage.com has no facts to suggest that Judge Walker actually wants to marry his partner.
Cooper attempting to argue that because Walker has been in a ten-year relationship with a same-sex partner implies that Walker wants to get married. Cooper is no longer even attempting to answer Ware’s question about Walker’s “intent to marry.” He doesn’t have this fact and is struggling to admit it. Cooper spinning: now saying that Walker’s failure to disclose proves that he wants to get married.
45 minutes is a long time before a Judge. I bet Cooper is hoping Ware will cut this short.
10:10: Colloquy between Cooper and Judge Ware on the motion to vacate, typed by Rick:
W: Now you are back to A which deals with recusal for any pecuniary interest.
C: Yes. Any amount.
W: But you use with judge. You don’t measure by outside reasonable person.
C: Nor do you measure by whether judge has actual bias. Many cases require recusal for any pecuniary interest.
W: But what about trifling, insubstantial interest that is not finaincial?
C: That would not require recusal. Only direct and substantial personal interest in outcome requires recusal. Standard test of 9th circuit and most if not all other courts of appeals, it is simply whether reasonable person with all facts whether judge’s impartiality might be reasonably affected. Quotes from plaintiff’s complaint that “they are similarly situated to heteros for purposes of marriage…:”
W: What is fact you rely upon that judge walker was in a relationship for purposes of marriage?
C: The fact that he has publicly announced that he is and has been in a relationship with another person?
W: So if you are in a ten year relationship with another person, that is for purposes of marriage?
(laughter—this Cooper is so silly. He should do a Mennen deodorant ad, though. I think he’s still dry.)
W: You would concede that you could be in a long term relationship without being in it for purposes of marriage?
W: What distinguishes it?
C: Very fact that two individuals are in kind of relationship Walker has…
W: What distinguishes between two?
C: There are platonic friendships that do not lead to marriage. [laughter]
W: What do you mean platonic?
C: Non-intimate, non-sexual. Clear understanding of media reports…
W: You are saying that length of relationship alone converts to marriage relationship?
C: Yes. Bespeaks commitment. All of these have been used interchangeably. Take pains to say they are in long term relationships.
W: Their relief was not to stay in long term relationship. Nothing threatened their long term relationship. Neither they nor Walker threatened. They sought to change relationship. What fact would cite to the court that Walker sought to change his relationship?
C: (Stumbles…) There are several points I would make that a reasonable person with knowledge that judge walker would be expected to have an interest in marrying his long time partner. (Thought police, please) Judge Walker similarly situated for purpose of marriage just as plaintiffs.
10:00: After announcing that he plans to deny the motion filed by ProtectMarriage.com that the tapes be returned, Judge Ware moves onto the issue of whether to vacate Judge Walker’s ruling because of his sexual orientation. Transcript typed by Rick:
W: Disclosure, I performed same-sex marriage. This is unusual circumstance. Recusal usually directed to trial judge. He’s no longer on the bench. I am not in position to know all things that he would know so I cannot be in position to recuse. A motion of vacate is directed at me. My understanding is that he had an obligation to recuse. Failing to so do, I am judge who assumed case. I am reviewing lack of recusal. You briefed well. Both used same cases. I don’t know why we gave you so much time to argue under these circumstances, and we did.
C: We approach court awkwardly and not desirous of situation. Decision must be by impartial tribunal. Ancient maxim that no man can be jduged in own case or be tried when has interest in outcome. Congress has codified for federal judiciary which mandates recusal in any proceeding in which impartiality might reasonably be questioned. Does judge have any interest in outcome. Requries mandatory recusal if judge owns even one share of stock of company in question. If other kind of financial interest, whether or not interest would be substantially affected by outcome.
W: I’ve looked at two as separate. Pecuniary interest is “any.” With respect to non-pecuniary interest, is qualified by being substantially affected by outcome. You would put two together, even pencuniary interest is substantial. Not claiming Walker had pecuniary interest.
C: No. But true that marriage has financial benefits that flow to it for those who participate in marriage. (No shit Sherlock. That’s why you lost the case.) The test is objective. Does not depend upon whether judge was impartial. Standard is to prevent even appearance.
9:57: UPDATE: Judge Ware says he plans to deny the motion that video recordings be returned.
9:48: AFER’s Theodore Boutrous is up for the plaintiffs. Rick writes in with a transcript of the dialogue between him and Chief Judge Ware:
B: Up to chief judge to decide this. We have copy. Very useful. Part of appellate, en banc or Supreme Court is we end up there. Cooper makes this sound as if it is radioactive state secret. It’s an important judicial record of open court. Walker allowed us to use in closing arguments. I was present for every minute of trial, yet I used the tapes to help prepare myself. Cooper did not ask for copies.
We used portions of star witness Blankenhorn, so many clips of him supporting our case, we had to cull. To see him testify to our side, pictures worth a thousand words.
W: Technically, protective order only for closing arugments. It could be that protective order could be used for closed trial proceeding. Don’t you have an issue that you are acting in excess?
B: No. Use in court and for ourselves is within protective order. We’d need permission to use it in 9th. We have not played any video in 9th. We have it available. Protective order would not limit us from using.
W: Part of trial record?
B: Officially made part of record by Walker. Transmitted as part of record to 9th Circuit.
W: Transcript certified by recorded. What certifies video?
B: Believe part of official transmittal.
W: Since part of clerk’s transmittal?
B: Yes. And Walker relied on video in preparation for his ruling. In context of public action,very useful record.
W: No doubt its useful. One of reasons for credibility by appellate to trial is that trial can watch and see pauses, etc. Might be some concern that appellates can see trial would hurt deference to lower courts.
B: (Laughs) We don’t want that. Cooper has agreed that protective order w/Walker moot. Up to you to decide. W/repsect to plaintiffs, just want video. Look forward to arguing about public access. One thing relevant here: by attacking Walker, important for public to see. For today, important to let us keep.
W: You have no objection to protective order as stands?
W: Cooper, do you believe order has been violated?
9:43 PST: Arisha writes in with an update:
New facts. Judge Ware was the person who first gave Judge Walker a copy of the trial recordings at a retirement/ passing of the gavel ceremony. Ware asks Cooper if he should recuse himself? There’s an audible laugh from the gallery.
“I don’t need an answer now,” Ware continued on the issue of his recusal. The two white-haired men in front of me from the Protect Marriage side glanced at each other again and shook their heads in disbelief.
Cooper finishes. Boutrous up now.
9:38 PST: Continuing the dialogue between Judge Ware and Cooper, typed by Rick:
C: Our view is that plaintiffs don’t need them anymore. We do not doubt they’ll stick to protective order, but so long as the tapes are not in sole possession of court might be inadvertently leaked. No serious justification for why tapes under seal… Judge said would only be used in chambers…
Ware: Wouldn’t this be more appropriate for appellate court?
C: We tried that. They sent it to you.
Ware: Remand is for district court to decide if useful for appellate court?
C: We understand…
Ware: Too general. Is it your position that appellate court remand to district court to allow our disallow use of tapes?
C: Yes, we believe that court can make a judgment..
Ware: I can make a judgment about a lot of things. But are you saying that I am to decide to whether certain information is available to appellate court?
C: We only ask that tapes be returned to court.
W: Do you have copy?
W: Who does?
C: Only held by SF, Plaintiffs and appellate court.
(this is so goofy. He started out by saying his argument is moot because Walker gave the tapes back.)
W: I have to ask a recusal question, somewhat tongue in cheek. The tapes were given to Walker at event over which I presided. Do I now need to recuse myself because I passed the tapes to him?
C: Did court know…
W: I was unaware of the details of this case. The fact that I presided over that, do you want me to recuse? You don’t have to answer now. I’ll take some time to rule.
C: We do not consider this an issue for recusal. We wave in light of foregoing.
9:36 PST: Arisha’s take on the dialogue:
Cooper now laying out the procedural history (the facts) that lead ProtectMarriage.com to file a motion to bury the trial recordings.
Cooper arguing that the Prop 8 case – because of its controversy – was not a strong candidate for a Northern District pilot program to broadcast the case.
Ware seemed to take issue with this characterization but allowed Cooper to continue.
Cooper now arguing that Judge Walker promised that only he’d use the tapes.
Judge Ware interrupts: The court indicated that recording could be useful to the parties for preparing for court. It’s not my understanding that Walker restricted the tapes only for his use. The restriction is not as great as you’re describing.
Ware asks an interesting question: is Judge Walker subject to the protective order?
Cooper says that he does not think so.
Ware: can the parties use the tapes on appeal? Yes or No.
Two white-haired men sitting in front of me from the Protect Marriage side just glanced at each other and sighed as Ware was challenging Cooper – as if they were saying to one another silently (“this isn’t going well.”)
9:30 PST: Continuing the colloquy between Judge Ware and Cooper as started in the update posted at 9:27:
Cooper: Our motion was precipitated by a speech at University of Arizona on Feb 18th by then-Judge Walker. Within that speech, images of proponent’s witness. January 10th, Supreme Court issued emergency stay to stop live broadcast in other courthouses. Amendment of local rule designed to permit video had not been promulgated. [Reads Scalia opinion.] Cooper says inappropriate to televise high profile trial.
Ware: Not my recollection, but what is your point?
Cooper: We asked in trial to stop recording. Walker said he would do so anyway under rules. Prohibits public televising/broadcasting, and Walker assured us that would be the case. (though Walker’s University of Arizona speech was on c-span). Was supposed to be for his personal purposes in chambers. Would be helpful for finding of facts. We did not therefore try to stop continued recording. Had we thought recordings would be used and publicly broadcast, or might be retained by court for Walker’s non-judicial use..
Ware: Let me ask one clarification. I have not studieds equence of events. Court said would be useful to parties. Not unusal to have parties use video during trial. The docket reflects that might have been copies given to parties. Continue to have them. Presumably to use in appeal. Restriction not as great as you describe. Correct me?
9:27 PST: A back-and-forth transcript between Chief Judge Ware and Charles Cooper, attorney for ProtectMarriage.com:
Cooper: Walker did make tapes available to plaintiffs and city of SF. Specific purpose not for public broadcast or televising outside of confines of courthouse. Only for in courthouse.
Ware: My understanding is they were placed under protective order. Your understanding is that must be used only in court.
Cooper: Yes. Court’s amendment to assurances were consistent with court rules on videos. Plaintiffs under protective order. We did not prevent.
Ware: Any authority that judge is subject to protective order?
Cooper: No. We haven’t voiced that consideration.
Ware: Sounds like an argument as to whether Walker made a mistake by displaying videos publicly. No such motion. If there were, I would want Walker present. Why are you doing this?
Cooper: Not sure what you mean by “mistake.” We say Walker’s use was a mistake and contrary to rules.
Ware: What relief you seek from me?
Cooper: Seeking that court as custodian of record of case esp. that which is sealed ordered that all persons return them to the court including Walker.
Ware: You want me to order all parties to return to court and not to allow further use even on appeal?
Cooper: Our view is different for plaintiffs.
Ware: That’s a no. I don’t understand the protective order to preclude use by parties.
Cooper: After closing arguments, we asked Walker to order all copies to be returned to court.
Ware: Did he do that?
Cooper: No, because plaintiffs argued they might be useful on appeal.
9:17 PST: Rick writes in as the dialogue commences:
Cooper and Boutrous intro themselves to court. Therese Stewart intros. Will address court on both motions, but only a minute or two on video. More substantive on vacate. Won’t try to repeat what Boutrous says; will try to keep short.
Judge: Your client is more interested in the motion to unseal the video tape. I’ve decided to bifurcate that. First, get understanding of video and then may be wider group interested in the public availability of it. I should not reserve any time for you and doubt if I’ll have questions.
Cooper: Suggest mootness. As primary relief, sought Walker to have trial recordings returned and placed under seal, so depending upon court’s inclinations, our motion may be moot. The cross motion to unseal and make public is not moot. Understand those issues will be taken up at later time.
Judge: Middle area: it is true that I issued order to Walker to show cause why not return copy. He returned. I have not taken up question of whether or not he’s entitled to have. Disclosure is another question separate from whether he’s entitled to have. He has not been brought before court formally. He has not been brought before court. I cannot do anything to him. It may well be that I give it back to him with finding protective order still in effect and would govern his use. Others may have subject to protective order. Want to find out if anyone else has.
9:14 PST: An update from Arisha:
The atmosphere today – both inside the courtroom and out – is much less chaotic than I thought it would be. When the case was before the Ninth Circuit, everywhere you looked there was a prominent leader from both the lgbt and anti-equality sides.
Today, there’s no sign of the NOM regulars – no Maggie Gallagher, no Jennifer Roeback Morse. Is it possible that even those two women are ashamed to show their face for the shameful argument that ProtectMarriage.com is about to make?
Judge Ware has just entered the court and is giving an outline for the day. As Rick wrote, first we’ll deal with the tapes (each side will have 20 minutes), followed by the motion to vacate issue (each side will have 45 minutes and Judge Ware noted that this is an uncommonly long time for argument). Charles Cooper will be arguing both issues for ProtectMarriage.com and Theodore Boutrous will be arguing for equality.
9:11 PST: An update from Rick:
Walker always started on time. It actually feels different in here now, maybe because of my expectation. Judge Walker has a wry sense of humor, always dapper and as I and other who live-blogged noted, always fair. He allowed more leeway in that trial than any other patient or even not so patient judge would. Yet Mr. Cooper, Mr. Prentice and team say it’s a kangaroo court. We’ll see who bounces where.
At 9:07, Judge Ware walked in. Outlines what he intends as matters and then as we address, you can intro yourselves. Two issues: taperecording and vacate.
First hear video tape motion and then go to judgment. 20 minutes for each on video tape and 45 minute each on vacate, which is quite liberal by district court rules.
This is a human institution, so we’ll take breaks.
9:08 PST: An update from Arisha, Courage’s lawyer turned National Field Director whom many of you remember from the NOM Tour Tracker work:
A few thoughts while waiting for the hearing to start….
One thing you quickly learn as a straight African-American organizer for lgbt equality is to avoid at all costs comparisons between the lgbt and the black civil rights movements — it’s offensive to some, lesbians and gays — although they’ve faced tremendous discrimination – were never slaves, blah, blah, blah. I’ve lost track of all the reasons over the years, but most in the movement can attest to it’s validity. (I don’t know that I agree with this narrative tactic, but that’s another blog post for another day).
As someone who has resisted this narrative, this morning I woke up with a tingly-feeling – for at least one day – in this court room the comparisons will be unavoidable. If the lgbt movement is to succeed in the federal judiciary it will do so on the backs of precedents set during the black civil rights movement.
So today, I am thrilled – the comparisons are unavoidable.
9:05 PST: This is the live thread for today’s Prop 8 hearing. Rick, Arisha and Ana are all inside the courthouse and we’re waiting for Judge Ware to come in. An update from Rick:
We’re in the same courtroom that Judge Walker used for the Prop. 8 Trial. The plaintiff’s table seems happy, even bubbly. At one point earlier a gale of laughter erupted around Ted Boutrous, the amply coiffed lead attorney for our side. Mr. Cooper and his team sit quietly, which as I tweeted is their best case. They essentially had no case during the trial; expect them to repeat themselves.
It was much easier ot get into the courtroom and overflow this time. While there’s interest, there’s not as much. After all, ten months ago Judge Walker smote Prop. 8 with his pen after an exhaustive trial. This hearing is only about one thing: blaming the judge for Mr. Cooper’s loss. If they can make a big enough media circus out of the fact that Judge Walker is gay, they’ll be able to say, “see, he was biased. That queer judge out in San Francisco ruled for his own people. “ This logic is all they have left. If the California Supreme Court rules that Cooper et al have no standing, then marriage will be legal in California. NOM/ProtectMarriage will blame the judge, whip up the money, and keep fighting.
What’s really exciting today is that they are so desperate. On the way into the courthouse today, Ted Boutrous said to me, “Every major civil rights battle has gone through this,” where they blame the judge. Why not now?
It’s dead quiet in here. Cooper’s table includes a total of five; our side has eight, including Boutrous, Chris Dusseaux, Therese Stewart (Deputy SF City Attorney), Enrique Monagas.
9:02 AM PST: Some photos of the rally this morning before the hearing, taken by Ana Beatriz Cholo, Courage’s communications manager: