Kristin Perry, et al v. Dennis Hollingsworth, et al

Filing 11

Filed (ECF) Appellants Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarraige.com - Yes on 8, A Project of California Renewal and Hak-Shing William Tam Motion to extend time to comply with the order dated 10/20/2009. Date of service: 11/10/2009. [7126806] (CJC)

Kristin Perry, et al v. Dennis Hollingsworth, et al

Doc. 11 Att. 1

Exhibit 1

Dockets.Justia.com

Volume 1 Pages 1 - 70 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA BEFORE THE HONORABLE VAUGHN R. WALKER, JUDGE ) ) Plaintiffs, ) ) VS. ) NO. C 09-2292 VRW ) ARNOLD SCHWARZENEGGER, ET AL., ) ) San Francisco, California Defendants. ) Wednesday ) August 19, 2009 ___________________________________) 10:02 a.m. TRANSCRIPT OF PROCEEDINGS APPEARANCES: For Plaintiffs: BY: Gibson, Dunn & Crutcher 333 South Grand Avenue Los Angeles, California 90071-3197 CHRISTOPHER D. DUSSEAULT, ESQ. THEANE E. KAPUR, ESQ. THEODORE J. BOUTROUS, JR., ESQ. and Gibson, Dunn & Crutcher 555 Mission Street Suite 3000 San Francisco, California 94105-2933 ENRIQUE A. MONAGAS, ESQ. and Gibson, Dunn & Crutcher 1050 Connecticut Avenue, N.W. Washington, D.C. 20036-5306 THEODORE B. OLSON, ESQ. MATTHEW D. MCGILL, ESQ. KRISTIN PERRY, ET AL.,

BY:

BY: Reported By:

Belle Ball, CSR 8785, RMR, CRR Official Reporter, U.S. District Court

(Appearances continued, next page) Belle Ball, CSR #8785, RMR, CRR Official Reporter - U.S. District Court [phone]

57 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 which the -- and it is unclear at this point the degree to which the State Defendants may seek to defend these alleged governmental interests, San Francisco's motion for permissive intervention under Rule 24(b) will be granted. And I would suggest, unless any of the parties object, that any answer or otherwise -- any answer or responsive pleading to the complaint and intervention by the City and County of San Francisco be answered in ten days. Is that possible, Mr. Cooper, on your side? MR. COOPER: THE COURT: management. It is, indeed, Your Honor. Very well. Now, let's turn to case

And first of all, I want to commend the parties, You have obviously

and particularly Mr. Olson and Mr. Cooper.

taken to heart the discussion that we had here last month, and the order that was issued in the wake of the earlier case management statements. I thought that the specification of issues that the Plaintiffs proposed and the responses by the Intervenor Defendants was very helpful, very helpful indeed, in narrowing the issues, and defining what it is that is before us, in terms of how we are going to develop the record in this case. Obviously, not every one of these facts is agreed to by the Intervenors, but a number of them were. And, quite

understandable that in some instances Mr. Cooper might have a little different verbal formulation of some of them. Belle Ball, CSR #8785, RMR, CRR Official Reporter - U.S. District Court [phone]

58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 But nonetheless, I think we have made and you have made some very considerable progress in shaping up the issues so that we can proceed to a prompt determination of the cause that is before the Court. Now, before telling you what schedule I have in mind, I gather, Mr. Cooper, at some point or other, it would be your intent to file a motion for judgment on the pleadings as to some -- perhaps more than some issues. of issues. Is that a fair reading? That is, Your Honor, yes, sir. We -- we Perhaps quite a number

MR. COOPER:

believe that there are several issues on which -- on which this Court's not free to depart from binding precedent in the Ninth Circuit. And that -- and that if we are right on that, it

would significantly skinny down the -- now the discovery burdens that will face the Plaintiffs and the Defendant Intervenors as we go forward. We may not be right, but we -- we would certainly -we believe we are, and we would like an initial opportunity to present those arguments to the Court. THE COURT: I'm inclined to think that while we

should, in view of your position, schedule a dispositive motion schedule with a hearing date, that at least some of the basic discovery in the case can and should go forward very promptly. I assume you want to take the depositions of the Plaintiffs. And, Mr. Olson has indicated that he has some Belle Ball, CSR #8785, RMR, CRR Official Reporter - U.S. District Court [phone]

59 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 depositions in mind of your folks. And, seems to me we can get And, should do

those depositions out of the way very quickly. so. What's your reaction to that? MR. COOPER: proposition.

Your Honor, I don't quarrel with that

I will say that some of the things that Mr. Olson would like to inquire into of my clients -- the official Proposition 8 proponents -- going to voter motivation are

issues that we earnestly believe are not fit and appropriate for judicial inquiry, and that in fact, would raise the gravest possible First-Amendment issues. And we -- we have cited to the Court a case called Sasso (Phonetic), but we would like an opportunity to fully brief that proposition before we get off in the direction of taking depositions of our clients and subpoenaeing their e-mails and the rest of it, going to their internal campaign strategies and the rest of it. THE COURT: Disagreements as to the scope of

discovery are not unusual. MR. COOPER: No, Your Honor, they're not. But

discovery that at least we believe we would be privileged against on a constitutional basis are pretty unusual. And we think this is a -- this, at least as we understand their intentions, would be unprecedented insofar as Belle Ball, CSR #8785, RMR, CRR Official Reporter - U.S. District Court [phone]

60 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Honor. we have been able to tell. We have not been able to find a

single case where this kind of discovery was taken of the proponents of a referendum measure in this state or in any other. And, so we think it's gravely serious issue, Your We would urge the Court to give us an opportunity to

fight this out in briefing to the Court before we get down that road. And if we do go down that road, obviously we will want to take the same kind of deposition testimony, as well as document inquiries of those -THE COURT: MR. COOPER: THE COURT: MR. COOPER: THE COURT: Who oppose Proposition 8. Of course, Your Honor. All right. But -What, in your view -- without getting too

far down the road, in your view, what is the scope of appropriate discovery with reference to the proponents and the opponents of Proposition 8? MR. COOPER: That -- and I don't want to get too far

in front of myself, because to be quite honest with Your Honor, I'm not sure where that line can safely be drawn as a First-Amendment matter. I do believe that when a judicial inquiry into the intendment and meaning and purpose of a voter referendum is Belle Ball, CSR #8785, RMR, CRR Official Reporter - U.S. District Court [phone]

61 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 before the Court, that the one clear and certain analysis is to test the conceivable legitimate state interests that it might serve. And if it will serve none, the inference that flows

from that is that there was some illegitimate purpose at work. That was the Romer case. The Romer case concluded, the Court concluded that "We have assessed against the language of the statute, we have assessed against every conceivable purpose offered to us, or that we could think of ourselves," the Court. "And we've

assessed it against its various impacts and effects." And -THE COURT: case on that issue? MR. COOPER: Your Honor, the interesting thing, I I don't understand What discovery was taken in the Romer

understand there was a trial in this case. there was any discovery taken into the -THE COURT: discovery.

Well, that's refreshing, a trial without

That's like the old days. Well, actually, there was discovery, but

MR. COOPER:

it -- but there was no discovery taken into -- that we've been able to find, in that case or any other, into the subjective motivations of the voters, which -- or into the subjective motivation presumably of their proxies, those that organized the referendum effort, and those who organized and provided the strategy for the campaign for the referendum, itself. We

Belle Ball, CSR #8785, RMR, CRR Official Reporter - U.S. District Court [phone]

62 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 subject? MR. OLSON: I would like to have my colleague, haven't been able to find any evidence that a party was allowed to make inquiry into those things. And, think of what that might mean. How could

proposition proponents, future proposItion proponents, not be chilled in the exercise of their First-Amendment rights as they sought to bring forward for consideration by the people these types of propositions. off the table. Clearly, the kind of inquiry that Romer engaged in is plenty on the table. I think it is going to be hard for me So, Your Honor, we think that that's

probably to convince myself, let alone you, that -- that the types of public statements, official campaign literature, certainly the official ballot information and brochures that have the imprimatur of the state, and go to every voter, those things are, it would appear, legitimate sources of information about the purposes of the referendum. But again, Your Honor, the -- the inquiries that we think neither side should be allowed to take of the other are those that go to -- and we believe would encroach and gravely threaten First-Amendment freedoms. THE COURT: Mr. Olson, what are your views on this

Mr. Boies, address the case management issues. THE COURT: All right. Mr. Boies? You've taken a

Belle Ball, CSR #8785, RMR, CRR Official Reporter - U.S. District Court [phone]

63 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 lot of discovery in your life. MR. BOIES: I have, Your Honor. And one of the

things that I think it underscores is what the Court said, which is that discovery disputes are not uncommon, and that they ordinarily are worked out in the course of discovery. I think the very issue that Mr. Cooper candidly addresses, which is the difficulty of finding exactly where that line is, is something that experiences counsel can try to work out among themselves, and if there's a problem, bring to the Court. I frankly do not believe that we will have a problem, at least at the initial stages of the discovery, in limiting discovery in a way that does not impermissibly infringe on any First-Amendment issues. THE COURT: I think --

But I gather that you are planning some

discovery of the proponents. MR. BOIES: Yes, Your Honor. And for example, I

think Mr. Cooper's exactly right, that there is some stuff that is clearly on the table; there's some stuff that I think is probably not on the table unless we were to make a showing that we have not yet made; and then there's a number of things that are in the middle. I think that in terms of their official statements, the statements that were made publicly, none of those, I think, are something that can be plausibly argued should not be Belle Ball, CSR #8785, RMR, CRR Official Reporter - U.S. District Court [phone]

64 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 subject to discovery. Certainly, there are subjective, Those things I think we would not be

unexpressed motivations.

inquiring into, because we do not believe that those would actually go to the issues that we are presenting to the Court. So, I think that if there is a -- if there's a gray area, there will be some objectively-stated assertions, propositions, that may be encompassed in documents and the like that may or may not have become public, and there may be some issue as to what it means to say something has become public. How broad does have it to be distributed in order to be classified as public? Those are all the kinds of gray-area discovery decisions that we will make along the way. And I don't think

that any of those ought to hold up the commencement of discovery, because no matter whose view you take, and -- and it may be that we're not even in disagreement as to where the line will ultimately be drawn, we are in agreement that there are many areas that are going to be subject to discovery. And if we are going to get this process going, and really achieve what I know the Court's objective is and what all of our objective is, which is a prompt resolution of this, I think we need to get started. And I think that we can get

started on fact discovery, we can get started in preparing expert reports now. That doesn't mean that you can't have dispositive Belle Ball, CSR #8785, RMR, CRR Official Reporter - U.S. District Court [phone]

65 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 doable. THE COURT: MR. COOPER: Good. Mr. Cooper? motions. But what it means is that we don't have to delay the

commencement of the work towards trial until we go through the dispositive motions. THE COURT: Well, with that in mind, let me discuss

with you and Mr. Cooper a schedule that I have in mind, based upon what lies before me in the next several months. And, that would be that we commence discovery in this case today. That by the 2nd of October, experts, expert We will have

witnesses, opinion witnesses, will be designated.

a close of discovery by November 30, except for rebuttal witnesses, which will be designated at that time, rebuttal expert witnesses. We will have a pretrial conference on the 17th of December, a close of rebuttal expert recovery on the 31st of December, and a trial beginning January 11. Is that -MR. BOIES: Your Honor, I think that is easily

Your Honor, I wasn't able, honestly, to

get all of that down, but -THE COURT: MR. COOPER: THE COURT: Well, let's go through it again. Yeah, thank you. Close of all discovery except expert Designation of experts,

rebuttal discovery, November 30.

Belle Ball, CSR #8785, RMR, CRR Official Reporter - U.S. District Court [phone]