Legal Pad

Walker: No Summary Judgment in Prop 8 Case

Update: Walker rules that Baker does not lead him to dismiss the case; the standard of review will be determined at trial. The original post, "Walker to Issue Prop 8 S.J. Ruling This Afternoon," follows:

A fascinating morning of oral argument in the federal challenge to Proposition 8 just got a lot more dramatic.

After hundreds of pages of briefing and nearly two hours of back and forth between two Supreme Court-tested advocates, Northern District Chief Judge Vaughn Walker, left, sent the parties out for lunch and indicated he would rule from the bench at 1 p.m.

Walker made it clear through his questioning that he would not go along with Prop 8 supporters in their request dismiss the case at this point. Attorney Charles Cooper had tried to convince Walker that this case must fail because the U.S. Supreme Court already affirmed a same sex marriage ban in Minnesota in the early 1970's.

Walker's back-and-forths with attorneys, after the jump.

On Prop 8 Case, Judge Walker is Ready for His Closeup

Leave it to Northern District Chief Judge Vaughn Walker to tangle with an issue that is ripping the federal judiciary apart.

After a hearing last month in the challenge to Prop. 8, Walker summoned the parties into his chambers for a little chat — out of the press’s earshot. Turns out Walker wanted to float the idea of broadcasting the January trial, but not just to an overflow room in the federal building. He wanted to know how the lawyers felt about making the trial available for broadcast on a television station, according to a letter filed in the case.

Which side of the case is camera-shy? And does the Ninth Circuit hate 'em too? After the jump.

Walker Orders 'Yes on 8' to Disclose Email

Looks like the Yes on 8 campaign is going to have to turn over some campaign emails after all. Northern District Chief Judge Vaughn Walker found that the First Amendment did not prohibit same sex marriage supporters from reviewing a whole bunch of internal communications. His order (.pdf) says the Yes campaign effectively waived some of its privilege when its political consultants wrote a magazine article expounding on their tactics.

— Dan Levine

Anti-Prop 8 Group to Protest State Bar Meeting. At Wrong Hotel.

What if you put on a protest and the people you really wanted to see it were a mile away?

That’s the situation for San Francisco’s Bay Area Lawyers for Individual Freedom, which takes to San Diego’s streets a week from Saturday to protest the State Bar’s refusal to relocate its annual meeting out of the Manchester Grand Hyatt.

Hundreds, possibly thousands, of protesters hope to convince attendees to boycott the Hyatt because owner Doug Manchester donated $125,000 to last year’s Yes on 8 campaign. (Details)

But BALIF’s organizers weren’t aware that the swearing-in ceremonies they targeted for their 11 a.m. to 2 p.m. event aren’t taking place at the host hotel, but rather 1.1 miles away inside the San Diego Marriott and Marina. Chief Justice Ronald George will be there, giving the oath of office to the incoming presidents of the State Bar and California Judges Association, as well as new members of the State Bar Board of Governors.

"Well, here's another fine mess ..." after the jump.

Walker Takes Shot at Schwarzenegger at Gay Marriage Hearing

Not amused.

At a hearing in San Francisco this morning on the federal challenge to California’s Prop 8, Northern District Chief Judge Vaughn Walker denied attempts to intervene by a range of groups advocating same-sex marriage, including the ACLU and the Lambda Legal. He granted intervention to the city of San Francisco, for the limited purpose of providing evidence of its governmental interest in the issue.

We’ll chew this over thoroughly at CalLaw.com later today (update: here), but here’s an aside that we found entertaining: At the very end of the hearing, Walker basically teed off on Gov. Arnold Schwarzenegger — represented in court by his outside counsel, Kenneth Mennemeier — for his silence on the highly controversial issue.

Not taking the bait.

“I must say I’m surprised by the governor’s position in this case,” Walker said. (Or lack thereof, he might have added.) “I know he has a budget to worry about, and water and fires, but this is a matter of some importance in this case.”

Walker told the attorney that it would be “useful” to have Schwarzenegger’s “insights and views” and that they would be “very much appreciated.”

Mennemeier’s reply boiled down to an I’ll let him know.

At the press conference after the hearing, we asked David Boies, one of the all-star attorneys pressing this same-sex suit, whether he shares the judge’s disappointment that Schwarzenegger has ducked the issue. Boies kinda ducked the question:

“We remain hopeful that the governor and all political leaders who have not yet expressed a view will do so,” he said.

— Dan Levine

Terry Stewart: Oh, Now You Want a Gay-Marriage Factual Record ...

U.S. District Chief Judge Vaughn Walker wants a factual record in the federal Prop 8 case? Well, San Francisco Chief Deputy Attorney Therese Stewart’s got one, and she’s aching to give it to him.

In fact, Stewart’s been trying to get a judge to look at the facts about sexual orientation and discrimination for about four years.

“We really believe in presenting a factual record and having a court look at the conflicting evidence and make findings,” Stewart said today, shortly after the city moved to intervene in Perry v. Schwarzenegger, 09-2292 — the case in which attorneys Theodore Olson and David Boies want to prove that Prop 8 denies equal protection and due process.

In the motion and a separate declaration by Stewart, the city points out that it pulled together a factual record — with declarations by 12 expert witnesses — when it went to San Francisco Superior Court in 2005 to challenge a statutory ban against same-sex marriage. But no one — except their opponents — liked the idea.

Ah, how things change (after the jump) ...

Prop 8 Ruling Had Court Mobbed Online, Too

Did you have trouble downloading the California Supreme Court’s ruling on Proposition 8 in the minutes after it was released last Tuesday? Apparently, lots of folks did.

At our request, the California Supreme Court released data showing that in the 24 hours after the 10 a.m. issuance of the ruling, the California appellate courts’ general information site — www.courtinfo.ca.gov — received more than 4.7 million hits. On a normal day, that site gets only about 2 million hits.

The Supreme Court’s clerk/administrator, Frederick Ohlrich, said there were 955,000 hits in the first hour and that the demand spiked six to 10 minutes after the ruling was placed on the Internet. The Web site shut down three times in the first hour, he said.

The California Supreme Court’s home Web site — http://www.courtinfo.ca.gov/courts/supreme/ — was hammered with 50,167 hits. The previous Tuesday saw only 2,962.

And in that first 24-hour period, the controversial ruling was downloaded 50,472 times — 41,987 of them in pdf form and 8,485 doc files.

So that’s why it took so long to get your own personal copy. Might have been quicker to go to the court itself. Of course, you would've had to elbow your way through thousands of pro- and anti-Prop 8 demonstrators, so maybe a crashed website ain't so bad.

— Mike McKee

Alameda Bar Joins Prop 8-inspired Boycott

Add the Alameda County Bar Association to the growing list of groups treating the State Bar’s annual meeting like a pox-ridden village best to be avoided.

In an email issued yesterday, President Charles Bendes notified the association’s members that the ACBA will not be represented because the State Bar is holding its Sept. 10-13 meeting at San Diego’s Manchester Grand Hyatt. It’s not the accommodations that bother ACBA, but the fact that the hotel’s owner, Doug Manchester, donated $125,000 toward the passage of Proposition 8.

Sending a message … after the jump.

Top 'Yes on 8' Lawyer to Run for Office

Attorney Andrew Pugno couldn’t beat state lawmakers (not on their home turf anyway), so now he’s decided to try and join them.

The chief counsel of the Yes on 8 campaign confirmed Tuesday that he’s filed papers to run as a Republican for the state Assembly next year. The Folsom attorney would represent the 5th District, which includes Sacramento’s suburbs and a southern corner of Placer County.

Pugno didn’t have much to say about his candidacy Tuesday — he was kind of busy with all that Prop 8 legal stuff. (You may have heard; it was quite the ruckus.) But he’s no stranger to the Legislature.

In the mid-1990s, Pugno worked for then-Assemblyman Pete Knight, the author of Proposition 22, the 2000 voter initiative that barred, at least temporarily, gay marriage in California. In fact, Pugno helped the Republican Knight introduce two pieces of legislation, predecessors to Prop 22, that would have defined marriage as only a union between a man and a woman. Legislative Democrats killed both efforts.

Wonder what his legislative reception would be like in 2010?

(Your guide to our coverage of the Prop 8 decision is here.)

— Cheryl Miller
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Prop 8 Ruling: Live From the Supreme Court's Doorstep

Cal Law/Recorder photographer Jason Doiy was down on the Supreme Court's doorstep this morning as a crowd gathered to await the release of the Supreme Court's ruling.  Armed not only with a camera but a digital audio recorder, too, he shot pictures and interviewed several bystanders, including John Lewis and Stuart Gaffney, a couple who'd spearheaded the court case to overturn Prop 8.  He catches gay-marriage supporters' hopes before the ruling, and their disappointment afterward. Click play for a look at the moments.

(Your guide to our coverage of the Prop 8 decision is here.)

— Brian McDonough