Walker Replaces Prop. 8 Video with Nazi Trial

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Although Judge Vaughn Walker informed the 9th Circuit Court of Appeals last week that he was planning to use the excerpt from the Prop. 8 trial again this week in a talk at Gonzaga University Law School, a spokeswoman now tells me the retired jurist has decided not to.

Instead, Walker will show tapes from the Nuremberg trials which she says "he feels make a tremendously strong statement about transparency in the courtroom." That lecture about the history of cameras in the courtroom is scheduled to take place Thursday at Gonzaga in Spokane. Not sure if there's an intended message in replacing Prop. 8 supporters with Nazis.

Walker's use of the 3-minute trial segment during a talk at the University of Arizona in Phoenix February 18th sparked calls by Prop. 8 supporters to have Judge Walker turn over all his trial recordings. His decision to forego use of that segment this week reduces pressure on the 9th Circuit to act by Thursday.


Push to Unseal the Video

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   A coalition of media, including the Los Angeles Times, CNN and KQED, is joining the legal fray over the Prop. 8 video tapes. In papers filed April 18th attorneys for the coalition indicate they want to join the motion of Prop. 8 opponents to unseal the videos so they can be seen by the public. The coalition obviously sees this as an important issue of restrictions on public access and the First Amendment.

   The American Foundation for Equal Rights, the force behind the Prop. 8 law suit, is also calling for "transparency and a full release" of the trial video.

   This is all in response to a motion by attorneys for Prop. 8 backers asking the 9th Circuit to compel Vaughn Walker (and plaintiffs) to cease further use of the tapes and return them to the court.

    C-Span continues to list Walker's February 18th talk about cameras in the courtroom in its archives.

    In his response to the court, Judge Walker (who is now retired) said he planned to use a 3-minute excerpt of the trial tape again this week -- Thursday -- at a similar talk at Gonzaga Law School in Spokane, Washington. So a decision by the 9th Circuit could come any time.


Walker Responds

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    Retired federal judge Vaughn Walker today responded to a complaint that he illegally used a video clip of the Prop. 8 trial during a presentation he made at the University of Arizona.

    In a letter to the 9th Circuit Court clerk, Walker says in previous speeches about cameras in the courtroom he used video of a dramatic re-enactment of the trial, instead of the actual clips.

   Walker wrote that he decided to use the actual clip because he thought it would be "permissable and appropriate". He acknowledges that he used the same clip at Federal Bar Association meeting in Riverside last month and in a law class he's teaching at UC Berkeley. He also plans to use it again next week when he speaks at Gonzaga University Law School.

   "If the court believes that my possession of the videos as part of my judicial papers is inappropriate, I shall, of course, abide by that or any other directive the court makes," Walker writes.

      He ends by noting the Perry case involved a public trial and then quotes the late Chief Justice Warren Berger (sic): "People in an open society do not demand infallability in their institutions, but it is difficult for them to accept what they are prohibited from observing."

    Obviously this is something of a cause celebre for Walker.


Judge's use of trial video clip under fire

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     Eight months after his decision striking down Prop. 8, Vaughn Walker is once again infuriating the ballot measure's backers.  Walker, who retired from the bench in February, is under fire for using a 3-minute video clip from last year's trial during a presentation he made at the University of Arizona. The topic: "Shooting the Messenger: How Cameras in the Courtroom Got a Bad Rap."
     Background: Judge Walker was prepared to have last year's trial broadcast live and made available on YouTube. But Prop. 8 backers succeeded in blocking that plan. The U.S. Supreme Court stepped in as the trial was beginning and ordered the broadcast stopped.
      Over objections from Prop. 8 attorneys, the cameras continued rolling during the 2-week trial. Judge Walker said he wanted to review the tapes later in writing his opinion.
      But during a legal seminar at the University of Arizona on Feb. 18 Walker used a 3-minute segment from the trial. Walker's entire presentation -- including the trial video clip -- was was recorded by C-Span ... and is now available for viewing in its archives. (To see it click here.)  The clip shows attorney plaintiffs' David Boies cross-examining Claremont-McKenna political science professor Kenneth Miller on whether Prop. 8 meets his definition of "official" or state sanctioned discrimination. It is not a particularly flattering clip, as it shows Boies getting Miller to acknowledge that laws against same sex marriage discriminate against gay and lesbian couples. Throughout his speech at the U of A, Walker emphasizes that showing the trial would have had no adverse impact on the outcome and would serve a public purpose.

    This week Prop. 8 backers cried foul -- saying Walker illegally used that clip, which was under seal during the trial and explicitly forbidden from broadcast by the U.S. Supreme Court. In a motion filed with the 9th Circuit Court of Appeal, Prop. 8 attorneys  accuse Walker of illegally and unethically using the tapes and ask the court (the same court now considering the appeal of Walker's decision) to force Walker to turn over all copies of the trial so they won't be broadcast again.

    Walker retired from the bench 10 days after that Feb. 18th speech -- so he's no longer subject to professional discipline. Walker recently told the media he thinks the tapes are part of the public record.

   Ironically, when the 9th Circuit heard the appeal of Walker's decision last December, cameras were allowed in the courtroom. In fact, the 9th Circuit regularly allows broadcast of appellate proceedings.

    The appeal of Walker's decision is currently on hold while the State Supreme Court considers whether proponents of ballot measures have legal standing to defend them when state officials decline to do so. Meanwhile, gay rights groups are mulling over the pros and cons of a 2012 ballot measure to undo Prop. 8 and legalize same sex marriage.


The Stay Stays

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  The 9th Circuit Court of Appeals today denied a motion by attorneys for two same sex couples to lift the stay on Judge Walker's decision striking down Prop. 8. Last summer Walker's sweeping decision set aside all the arguments against gay marriage, saying tradition, harm to heterosexual couples and traditional marriage, etc. didn't hold up to legal scrutiny -- and violated the U.S. Constitution's guarantee of Equal Protection and Due Process. Prop. 8 backers immediately appealed the ruling to the 9th Circuit, which issued its stay of Walker's decision.

   Attorney General Kamala Harris added her voice in support of lifting the stay after the Obama Administration announced it would no longer defend the federal Defense of Marriage Act.

   While backers of Prop. 8 are no doubt pleased, Equality California today issued a statement calling it " a major setback for same sex couples and their families...". But legal observers were not surprised by Wednesday's decision.

  UC Davis law professor Vik Amar noted that courts issue stays when the stay proponent has the likelihood of success on the legal merits. They also consider harm done by enacting or lifting the stay. In this case, Amar says while the validity of the stay can be argued either way, nothing much has changed since the stay was issued, making it unlikely a court will reverse itself.

    While attorneys fighting Prop. 8 argue their clients are irreparably harmed by being denied their equal rights, Amar notes that if the 9th Circuit lifted the stay and allowed gay marriages to resume, those marriages could be in jeopardy if the U.S. Supreme Court ultimately finds Prop. 8 valid. The 9th Circuit judges, Amar speculates, probably didn't want to risk that harm -- or what some might see as legal chaos caused by enacting a ban, lifting it, then enacting it again.

   The court's action means California's ban will likely remain in place for at least a year, perhaps longer.


Prop. 8 Backers Claim "Fundamental Rights"

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  Sponsors of Prop. 8  Monday filed their opening brief in the State Supreme Court case examining the question of whether California law gives official proponents the right to defend their measure "when public officials charged with that duty refuse to do so."

   This is the question the 9th Circuit Court of Appeals panel asked the Supreme Court to answer. The outcome will help settle the key question of whether Prop. 8 proponents have "legal standing" to appeal the district court's decision that the measure violates the U.S. Constitution. The current and past Governor (Schwarzenegger) and Attorney General (Brown) agree with that decision and declined to appeal it.

   In their brief, attorneys representing Protect Marriage cite numerous cases where, they claim, California courts "repeatedly allowed official proponents of initiatives to defend those measures" when government officials "might not do so with vigor."

   The brief also describes a "special interest" proponents have "in intitiatives they have sponsored" and that they are entitled to participate as "real parties in interest."

   The answering brief by opponents of Prop. 8 is due March 28. Oral arguments could some as soon as September. The Supreme Court recently rejected a request by attorneys for two same sex couples to expedite the schedule.

  Legal experts say the question of standing here is a "close call" that could go either way.

   Imperial County also sought to defend it as a government entity with interest in the case, but the 9th Circuit rejected their claim.


Update: The Case For Imperial County

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   Hours after opponents of Prop. 8 submitted their arguments against allowing Imperial County's new Clerk to intervene in the case, a counter-filing by attorneys for  Protect Marriage.com urged the 9th Circuit to grant their request -- if Prop. 8 backers are determined by the court not have legal standing to do so.

   Their filing reads in part: "Proponents support the motion for the reasons stated by Imperial County and because Imperial County has acted promptly to cure the defect identified by the panel with respect to Imperial County’s standing (the fact that the County’s Clerk was not seeking to intervene), a defect that was first identified at oral argument."

    It would have been more interesting/likely if Chuck Storey had been elected before the deadline to intervene passed.


Imperial County's Intervention Opposed

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  Attorneys representing Prop. 8 opponents today voiced their opposition to efforts by a newly-elected Imperial County official to defend the same sex marriage ban before the 9th Circuit.

   Background: When Governor Schwarzenegger and then-Attorney General Jerry Brown declined to appeal last year's district court decision striking down Prop. 8, a deputy county clerk in Imperial County (Isabel Vargas) sought to intervene on behalf of voters in that county. In January, the 9th Circuit issued a ruling denying that effort, saying "Were Imperial County's elected County Clerk the applicant for intervention, that argument might have merit. A County Clerk is not before us, however, so we need not, and do not, decide now whether a County Clerk would have been permitted to intervene..." Republican Chuck Storey  became the new County Clerk in January. And unlike his elected predecessor (who retired), Storey wants to get involved in the Prop. 8 case. He filed a motion to intervene last month.

   In their response filing today, attorney Theodore Olson writes: "No county clerk has any legally protected interest in taking sides over what the marriage laws say; the interpretation of those laws belongs to state officials, and the clerk’s only interest is to follow the State’s directive in applying those laws."  He goes on to say that in any case, Storey's motion comes too late anyway since "the court has already issued its judgment in the appeal Mr. Storey seeks to join."

   The issue of standing looms large. At the request of the Ninth Circuit, the State Supreme Court is now considering whether state law allows proponents of ballot measures to defend them when no one else in state government will. If the Supreme Court says it does not that could be the end of the appeal, as the 9th Circuit would have little choice but to dismiss it. Oral arguments in that case will come no sooner than September, with a ruling expected 90 days after that.


Supreme Court: "We are fast tracking"

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  In response to yesterday's posting State Supreme Court spokeswoman Lynn Holton points out that although the court rejected the expedited timeline requested by Prop. 8 opponents "... the court in fact has already expedited the Prop. 8 case by setting a special briefing schedule and oral arguments in September. Although September may seem like a long way away for arguments, it's actually earlier than the court would normally schedule them in case accepted for review in February."

    I would add that by responding to the 9th Circuit within six weeks, the Supreme Court sent another signal it understands the importance of the case and its urgency.


Asked and Answered: No!

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  Without comment, the State Supreme Court is rejecting a request by attorneys fighting Prop. 8 to speed up its timeline for deciding a key legal question. When the Supreme Court agreed last month to answer the 9th Circuit Court of Appeals question of whether state law gives sponsors of ballot measures the legal authority to defend an initiative when no one else will, it was clear the legal fate of Prop. 8 would be delayed by 10 months or more. So, attorneys representing the two same sex couples fighting Prop. 8 asked the Supreme Court to move up its schedule for briefing and oral arguments, which will not be held before September.

    Tuesday the Supreme Court denied that request.  Combined with yesterday's suggestion by A.G. Kamala Harris that the 9th Circuit lift its stay on Judge Walker's ruling, (a completely different issue), the efforts represent a push by supporters of same sex marriage to open the door to marriage more quickly. It seems unlikely any of these efforts will be successful, since few if any of the judges involved want this case expedited.

   Indeed, it's not inconceivable that Prop. 8 will be reversed by California voters before it ever reaches the U.S. Supreme Court -- an outcome that would no doubt disappoint attorneys David Boies and Ted Olson but avoid a possible loss at the Supreme Court level.

   That said, it might be hard to raise funds for a new ballot measure while the case is still pending. In other words, relax -- it's going to be a while before this thing is settled.