Friday, March 19, 2010

Judge Walks Out Mid-Argument in Proposition 8 Case

Dan Levine at LegalPad reports (March 16) that Chief Judge Vaughn Walker stood up and walked out on Orrick Herrington & Sutcliffe partner Stephen Bomse in mid-sentence as Bomse continued an argument opposing a discovery motion in the Proposition 8 case in California (Perry v. Schwarzenegger)(follow the link to Lambda Legal where they include a summary, full text documents and a time line); Perry v. City and County of San Francisco (link to, Judge Fisher's opinion Dec. 1, 2009, in the U.S. Court of Appeals, 9th Circuit, appealing from Judge Vaughn Walker, below) . Levine reports, in part,

This discovery mess – which threatens to delay a final Walker ruling on the constitutionality of Prop 8 – commenced in January, when the Ninth Circuit forced Yes on 8 to turn over some of its campaign materials. (that link to CalLaw requires a free registration)

Making good on an earlier threat (same free registration required; if you already registered above, you are set), Yes on 8 in turn subpoenaed documents from various groups that fought the anti-gay marriage amendment. Magistrate Judge Joseph Spero turned down attempts by those No groups to kill the subpoenae, and ordered them to start producing documents.

The No forces, led by Bomse, asked Walker to overrule Spero. But Walker immediately cut Bomse off, telling him the standard to reverse was clear error. The ACLU has not come up with a fresh reason to attack Spero’s reasoning, Walker said. “You haven’t submitted anything,” Walker said.

The hearing lasted about an hour and a half, during which Walker appeared completely unsympathetic to the No arguments. At the end, Bomse tried to pick up on a point made by the plaintiffs’ attorney, Christopher Dusseault of Gibson Dunn & Crutcher, that the Yes lawyers had gotten stuff before trial but made a strategic decision not to put them in the record. “All the public documents were produced, and they made no use of them,” Bomse said.

Then, as Bomse began his next sentence, he was hit a with “Thank you very much” from Walker as the judge strode off the bench. Bomse remained at the lectern for a second before turning back collect his things.

Beyond the discovery arguments themselves, I can imagine a few meta-motivations fueling Walker’s irritation. First, there is the delay: Walker wants the trial over, like, yesterday, but these discovery issues may put off closing arguments for a while. What Walker regards as a frivolous appeal to Spero’s order doesn’t help.

Also, Walker has been trying to build a full record, the better to withstand appellate review. So kicking around the No side in an attempt to complete the evidence can’t hurt his credibility with the nine wise men and women in Washington D.C. – at least any more than the camera fiasco (CalLaw again: free registration required) already did.
Nice analysis!

Although Wikipedia is subject to random editing and vandalism on a topic a controversial as this, I thought they had a very nice entry on the case. See Perry v. Schwarzenegger at Wikipedia for a very nice history and lots of links to in-depth info on the various parties involved.

As always at OOTJ, the swans decorating this post remind me of the story of Boston Public Garden's swans Romeo and Juliet, who turned out to be Juliet and Juliet, just about the time our Supreme Judicial Court ruled on our case of Goodridge v. Dept. of Public Health, which made same-sex marriage legal in Massachusetts.

No comments: