Perry et al v. Schwarzenegger et al

Filing 78

Transcript of Proceedings held on 07/02/09, before Judge Vaughn R. Walker. Court Reporter/Transcriber Sahar McVickar, Telephone number [phone]/[e-mail]. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 10/5/2009. (McVickar, Sahar) (Filed on 7/8/2009)

Perry et al v. Schwarzenegger et al

Doc. 78

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Pages 1 - 36 United States District Court Northern District of California Before The Honorable Vaughn R. Walker Kristin Perry, et al., ) ) Plaintiff, ) ) vs. ) ) Arnold Schwarzenegger, ) et al., ) ) Defendant. ) ____________________________)

No. C09-2292 VRW

San Francisco, California Thursday, July 2, 2009 Reporter's Transcript Of Proceedings Appearances: For Plaintiff: By: Gibson, Dunn & Crutcher, LLP 1050 Connecticut Avenue, N.W. Washington, DC 20036 Theodore B. Olson, Esquire Amir Cameron Tayrani, Esquire Gibson, Dunn & Crutcher, LLP 333 South Grand Avenue Los Angeles, California 90071 Christopher Dean Dusseault, Esquire Gibson Dunne & Crutcher, LLP 555 Mission Street, Suite 300 San Francisco, California 94105 Ethan D. Dettmer, Esquire

By:

By:

(Appearances continued on next page.) Reported By: Sahar McVickar, RPR, CSR No. 12963 Official Reporter, U.S. District Court For the Northern District of California (Computerized Transcription By Eclipse)

Sahar McVickar, C.S.R. No. 12963, RPR Official Court Reporter, U.S. District Court [phone]
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Appearances, continued: For Plaintiffs: By: Boies, Schiller & Flexner, LLP 1999 Harrison Street, Suite 900 Oakland, California 94612 Theodore H. Uno, Esquire Jeremy M. Goldman, Esquire Mennemeier, Glassman & Stroud, LLP U.S. Bank Plaza 980 9th Street, Suite 1700 Sacramento, California 95814 Kenneth C. Mennemeier, Esquire Department of Justice Office of the Attorney General 1300 I Street, 17th Floor Sacramento, California 95814 Gordon B. Burns, Esquire Department of Justice Office of the Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, California 94102 Tamar Pachter, Esquire County of Alameda 1221 Oak Street, Suite 450 Oakland, California 94612 Claude F. Kolm, Esquire Deputy County Counsel Cooper & Kirk 1523 New Hampshire Avenue, N.W. Washington, DC 20036 Charles J. Cooper, Esquire David Thompson, Esquire Peter Patterson, Esquire American Civil Liberties Union Union Foundation of Northern California 39 Drumm Street San Francisco, California 94111 Alan L. Schlosser, Esquire Elizabeth O. Gill, Esquire

4 5 6 7 8 9 10 11 12 13 14 15 By: 16 17 18 By: 19 20 For Amici: 21 22 By: 23 24 25 For Intervenors: By: By: By: For Defendant:

(Appearances continued on next page.)

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Appearances, continued: For Amici: City and County of San Francisco Dennis J. Herrera, City Attorney City Hall, Room 234 1 Carlton B. Goodlett Place San Francisco, California 94102 Therese M. Stewart, Esquire Chief Deputy City Attorney

By: 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

---o0o---

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Thursday, July 2, 2009 PROCEEDINGS THE CLERK:

10:00 a.m.

Calling our next case, Civil Docket No.

09-2292, Kristin Perry, et al., versus Arnold Schwarzenegger, et al. Counsel, please state your appearances for the record. MR. OLSON: Theodore B. Olson, Your Honor, Chief

Judge Walker, for the plaintiffs. THE COURT: MR. OLSON: Good morning, Mr. Olson. Good morning, Your Honor.

And thank you for the opportunity so early in the case, to appear before you and to move it along. I would like to say -THE COURT: Are we going to have other appearances?

Let's have all appearances. MR. MENNEMEIER: Ken Mennemeier on behalf of the

Governor and on behalf of Mark Horton in his capacity as Director of California Department of Public Health and on behalf of Linette Scott, who is named in her capacity as a Deputy Director in the California Department of Public Health. THE COURT: Very well, Good morning, Mr. Mennemeier. Yes, sir.

MR. MENNEMEIER: THE COURT:

Very well. Good morning, Your Honor.

MS. PACHTER:

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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 Recorder.

Tamar Pachter on behalf of the Attorney General. THE COURT: Good morning. Good morning.

MS. PACHTER: MR. BURNS:

Good morning, Your Honor.

Gordon Burns on behalf of the Attorney General. THE COURT: MR. BURNS: MR. KOLM: Mr. Burns, good morning. Good morning. Good morning, Your Honor.

Claude Kolm on behalf of Alameda County Clerk

THE COURT: MR. COOPER:

Yes, Mr. Kolm, good morning. Good morning, Judge walker. I represent the intervenors in the I'm here with

Charles Cooper.

case, the official proponents of Proposition 8. my colleagues, David Thompson -MR. THOMPSON: MR. COOPER:

Good morning, Your Honor. We are here

-- and Pete Patterson.

with the permission of the Court, and we were grateful for that. THE COURT: Mr. Cooper. MR. BOUTROUS: Good morning, Your Honor. Very well, good morning. Good morning,

Theodore Boutrous, also for the plaintiffs. THE COURT: Mr. Boutrous. Good morning, Your Honor.

MR. DUSSEAULT:

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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 plaintiff.

Chris Dusseault Gibson, Dunn & Crutcher, also for the plaintiffs. MR. MONAGAS: Good morning, Your Honor.

Enrique Monagas, representing plaintiffs. MR. GOLDMAN: Good morning, Your Honor.

Jeremy Goldman from Boies, Schiller & Flexner, also for the plaintiffs. MR. UNO: Good morning, Your Honor.

Theodore Uno from Boise, Schiller & Flexner, also for the plaintiffs. MR. DETTMER: Thank you, Your Honor.

Ethan Dettmer of Gibson Dunn, on behalf of plaintiffs. MS. PIEPMEIER: Good morning, Your Honor.

Sarah Piepmeier Gibson, Dunn, also for the

MR. TAYRANI:

Good morning, Your Honor.

Amir Tayrani from Gibson Dunn for the plaintiffs. THE COURT: Very well.

And, I understand we have some amici that has filed papers; are they just going to sit and listen this morning, or are they going to weigh in on anything? (Laughter.) MS. STEWART: Good morning, Your Honor.

Therese Stewart for the City of San Francisco.

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We didn't view ourselves as needing to speak, but we'll happily do so, if the Court wants to hear from us. THE COURT: All right, well, you know, simply

because you appear doesn't mean you to have to talk. (Laughter.) MR. SCHLOSSER: Good morning, Your Honor.

Alan Schlosser for the American Civil Liberties Union appearing for amicus ACLU, Randall V. Hoke and National Center for Lesbian Rights. THE COURT: All right. Your Honor?

MR. LORENCE: THE COURT:

Yes? Jordan Lorence with the Alliance

MR. LORENCE: Defense Fund.

And we are with Charles Cooper on Prop 8, too. Very well, good morning, Mr. Lawrence. Austin Nimocks on behalf of the

THE COURT:

MR. NIMOCKS: intervenor. THE COURT: MR. RAUM: as well, Your Honor. THE COURT:

Anybody else? Brian Raum on behalf of the proponents,

Good morning. And finally, Your Honor, James

MR. CAMPBELL:

Campbell on behalf of the intervenors. THE COURT: All right.

Well, let's see, we have at least three matters to

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deal with.

And, as you know, on June 30, I issued a -- an

order with some tentative rulings, and I would like, obviously, anybody who wishes to react to those to speak up. Those are

tentative decisions, and so, if anybody has any difficulty that he or she wishes to present with respect to those, I'll be happy to hear and to consider whatever position a party wishes to present. But the three matters, as I see it, that we have to deal with this morning are, first of all, the motion to intervene; second, the application for preliminary injunction; and then, third, how we are going to proceed in the case. Now, with respect to the motion to intervene, that basically is unopposed and, it does seem to me, substantially justified in this case, particularly where the authorities, the defendants who ordinarily would defend the proposition or the enactment that is being challenged here, are taking the position that, in fact, it is constitutionally infirmed. And

so, it seems to me, both for practical reasons and reasons of proceeding in this case in an orderly and judicial fashion that intervention is appropriate. Certainly, under California law, as I understand it, proponents of initiative measures have the standing to represent proponents and to defend an enactment that is brought into law by the initiative process. So first, are there any objections to granting the

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motion to intervene? (No response.) THE COURT: granted. Now, with respect to preliminary injunction, in the Ninth Circuit the test for the issuance of a preliminary injunction is generally described in one of two formulations. The one that I think is most applicable here is whether serious questions are raised and whether the balance of hardships tips in favor of the party seeking injunctive relief. In this situation, we have a claim that constitutional rights have been violated. And, typically, Hearing none, that motion will be

those are regarded as weighty claims raising serious questions. And in addition, as I indicated a moment ago, the Attorney General of California has indicated that he believes the initiative measure at issue here is constitutionally invalid. And so, those facts would surely indicate that the Court is facing a situation in which serious questions are raised. The more difficult issue is whether or not the balance of hardships tips in favor of granting an injunction. And I was particularly impressed by the Governor's submission, which I thought was quite a cogent one. He pointed out that in

the periods of time in which the California Supreme Court had authorized same-sex marriages, a number of same-sex marriages were performed in the state. And during that period of time,

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as well as the earlier period of time, after the City and Council of San Francisco issued marriage licenses to same-sex couples, that there was a good deal of uncertainty on the part of the county authorities with respect to the issuance of marriage licenses, and that created a confusion and administrative uncertainty, an important aspect of the work of these local agencies. And, perhaps more importantly, there was a good deal of uncertainty on the part of the individuals who were involved, whether or not they were undertaking relationships that would be recognized at law, and would be continued to be deemed to be valid. And so, those uncertainties, I think,

weigh very heavily in this situation against the issuance of a preliminary injunction prior to the fact -- prior to the ability, prior to the ability of the Court to consider the issues here on a full record. The briefing that's been submitted so far is, is fine, in a preliminary way, but it is only preliminary. And a

lot of factual assertions have been made in these statements. And briefing has been set forth, but it's hardly of an extent or nature that would enable the Court to make a decision on a full record. And so, I'm inclined to think that a preliminary injunction should not be granted at this time, but rather, as the Court indicated in the June 30 order, we should proceed to

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discuss how we're going to try this case, how we are going to handle this case, and deal with the issues that we confront. And in that connection, there are, as indicated in the June 30 order, a lot of factual questions, a lot of factual assertions have been made. Now, this is a trial court, this is

not the Supreme Court of the United States where we deal with these boxcar philosophical issues. We deal with facts; we deal And to the

with evidence; we deal with testimony of witnesses.

extent there are factual issues, I think we need to proceed in the way in which a trial court proceeds to deal with those issues, to present the facts, to present the evidence, and to make what determinations are necessary. I realize that a good many of these questions are mixed questions of law and fact, but where there is a factual component, it does seem to me that we ought to address those facts in the traditional way in which courts have dealt with factual questions. I realize, also, that a good many of these factual questions will depend upon expert testimony, opinion testimony, but I think we should deal with those the same way that the Supreme Court has counseled and guided us to deal with those kinds of questions, in accordance with the standards of the Daubert decision, Kumho Tire, and its progeny, or their progeny, and deal with those opinion issues in a manner consistent with the way that opinion testimony should be dealt

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with. I say all of this because I'm reasonably sure, given the issues involved and given the personnel that are in the courtroom, that this case is only touching down in this court, that it will have a life after this Court, and what happens here, in many ways, is only a prelude to what is going to happen later. So I am inclined to think that how we do things here is more important than what we do, that our job in this case, at this point, is to make a record. And I want to give the

plaintiffs, the defendants, and the intervenors the opportunity to make the record that they think is appropriate for the decision. And so I think we've got our work cut out for us.

But, I'd like to invite counsel to tell me how they wish to proceed. First, I should turn to the plaintiffs with respect to the motion for preliminary injunction; anything further that you wish to say in support of that? Mr. Olson? MR. OLSON: Your Honor, thank you.

Let me say, preliminarily, that we understand and appreciate, respect the wisdom of Your Honor's June 30th order as you have articulated it again today. We accept it, and we

are prepared to go forward on that basis. I feel, however, it's imperative to just say a word

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or two about the preliminary injunction matter, having said that we are accepting and perfectly willing to go forward, as you -- as you suggested, if I may. THE COURT: MR. OLSON: Very well. The -- every day that Proposition 8 is

enforced perpetuates a tragic injustice on tens of thousands of Californians, including, specifically, the plaintiffs who are here, today, before you. Proposition 8 brands our citizens,

our neighbors, our friends, our family members, and our co-workers as second class, unworthy, and different. The harm

it does is incalculable, continuous, painful, irreparable, and without justification. The United States Supreme Court has held again and again that the right to marry is the most important relation in life and a right of fundamental importance to all citizens. The Court has variously characterized marriage as a right of liberty, privacy, and association. And, as you have noted, the

California Attorney General, to his great credit, squarely admits that taking from same-sex couples the right to civil marriage cannot be squared with the guarantees of the Fourteenth Amendment. Therefore, these individuals are

suffering irreparable injury under a California law that the State of California, through its chief law enforcement officer, acknowledges is unconstitutional. With respect to the point that the Governor made and

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you referred to earlier this morning, Your Honor, with respect to the uncertainty of the effect of marriages, if a preliminary injunction was granted, my clients would prefer the uncertainty of the ultimate outcome in this case, to the certainty of daily irreparable harm. Now, having said that, I think that it's important to have stated why we felt it was important to bring this Court's -- to this Court's attention the need for immediate injunctive relief; however, you have said, and we agree, that this is important, that this is a foundation for what might happen subsequently, and that it is in the interest of justice, to use your words, that this be given a full, prompt, expeditious, and efficient resolution of this case so that the foundation is there, to the extent it might be necessary to proceed. I am prepared to address that part of the case management issue, but you may wish to hear from others before I do so. THE COURT: I would, if anybody wishes to be heard

on the preliminary injunction issue. MR. MENNEMEIER: THE COURT: Your Honor?

Yes, Mr. Mennemeier? Your Honor, I just briefly want to

MR. MENNEMEIER:

indicate that the Governor certainly supports the approach that you outlined in the June 30 order. We think that it is

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important to have these important federal constitutional issues heard expeditiously. And so, we concur with the approach you

outlined in that order. That's all I have, Your Honor. THE COURT: All right, very well. Thank you.

Anybody else? (No response.) THE COURT: MR. COOPER: Mr. Cooper? Your Honor, thank you very much.

I do want to -- to offer some brief thoughts in response to what my friend, Mr. Olson, has -- has offered to the Court, but I want to preface it by saying this: The

intervenors, the proponents of Proposition 8, are very sensitive to the issue of pace in this court and to the concerns that Mr. Olson has raised. If, it is true that, as he says, that our constitution entitles gays and lesbians in California and elsewhere to marry, then we want to do everything that we can to move this proceeding along so that -- so that the plaintiffs and others can exercise their constitutional rights just as soon as possible. But, Your Honor, before we proceed, I would like to take stock of the nature of the claim that Mr. Olson is advancing to the Court. The constitutional right invoked by the plaintiff --

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THE COURT:

I'm just saying -- is this more related

to case management, or is it more related to the preliminary injunction? MR. COOPER: It is related to the kind of prefatory

comments that Mr. Olson made. THE COURT: MR. COOPER: All right. But I certainly accept his statement And I'm not

that he is not going to contest the Court's order. here, obviously, Your Honor -THE COURT:

I gather you are not contesting it,

(Laughter.) MR. COOPER: THE COURT: MR. COOPER: Not at all, Your Honor. All right. I'm simply offering some

counter-thoughts to the points that -THE COURT: MR. COOPER: All right. -- that Mr. Olson has shared with the

And again, and I want the Court to simply step back for a moment and take stock of -- of the claim that is being advanced here. According to the plaintiffs, this is not new, this constitutional right, it's, as they put it in their motion papers, the long-standing right of all persons to exercise

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freedom of personal choice and autonomy in deciding whom to marry. And further, they say that the prohibition in Proposition 8 against the plaintiff's freedom to marry persons of the same sex is so devoid of any conceivable rational basis that it is explicable only in terms of naked animus against gays and lesbians and a bare desire to harm them. Now, Your Honor, I want to suggest that to grasp the radical nature of this claim, it is enough to say that it would, if it were accepted, sweep away not only Proposition 8 and the sovereign will of the people in the state, but the common definition of marriage and the laws of 43 other states and the Federal Government in the Defense of Marriage Act. But, there is more to say than that, for the plaintiff's claim also condemns as irrational, as bigoted, the universal definition of marriage that has hitherto prevailed by law in America and in virtually every known society for as long as the subject of marriage has been governed by law. Now, the closest thing that the plaintiffs offer, thus far, to this point is that tradition alone is a manifestly insufficient basis for a state to impair a person's constitutionally protected right to marry. And there, Your

Honor, they are simply not coming to grips with the fact that tradition is a definitional element of the Supreme Court's test for identifying fundamental constitutional rights.

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As the Court said in Gluxberg, "The due process clause specially protects those fundamental rights and liberties which are objectively deeply rooted in the nation's history and tradition." And it's at that threshold level, Your Honor, of identifying the fundamental right at issue, the plaintiffs due process claim ultimately we will advance here, fails. For it's

really patently clear that the right to marry recognized by the Supreme Court in every one of its cases is defined by the marital institution that it protects, the right of a man and a woman to marry. Every Supreme Court case that describes marriage and speaks to its fundamental constitutional protected nature identifies its central procreative purpose. And, regarding the

freedom of choice on that, Your Honor, there simply can be no doubt that those opinions would not have been written in the same formulations had -- had the claim that is being advanced here, been advanced there. So, Your Honor, the bottom line is that the plaintiffs are not seeking simply to have their right to marry enforced here, they are seeking to have it redefined here. With that, Your Honor, I appreciate it. THE COURT: Very well. Thank you, Mr. Cooper.

Anybody else want to make a prefatory statement before we roll up our sleeves and do a little bit of case

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management? (No response.) THE COURT: All right, fine.

Now, when I talked about the various facts that we have to deal with here, I omitted to mention one other way of approaching facts. And I mentioned the traditional way of

presenting evidence, subjecting witnesses to cross-examination at trial, and so forth; there may be, in addition to mixed questions of law and fact and opinion testimony, there may be facts as to which there is no genuine dispute and as to which we should deal with those facts by way of summary judgment motion. And so, we might want to consider building that into

whatever schedule we talk about. I don't know, maybe -- maybe the parties are not interested in motion practice before the trial, maybe they are, but, in any event, that is certainly a matter that we should consider. Well, Mr. Olson, you are the plaintiff; tell me how you would like to proceed. MR. OLSON: Thank you, Your Honor.

I have consulted briefly with my colleague, Mr. Cooper, which I think is contemplated by the Court's rule -THE COURT: MR. OLSON: Certainly is. We've talked about some of these issues.

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And I do not purport to speak for him, but I will say what I think in reaction to your order and how we might assist one another and the Court in an expeditious resolution of this case. As you have indicated, many of these issues, we think, can possibly be addressed by stipulated fact. Many of

these might be addressed through the course of admissions. Many of these issues may be already adjudicated facts. There

is a great deal on this subject that's been adjudicated with respect to the impact and the purport of Proposition 8 by the California Supreme Court in what we would regard as in a conclusive manner. There may be many issues of -THE COURT: marriage cases? MR. OLSON: THE COURT: MR. OLSON: THE COURT: Well, no, Your Honor, but -Even at the Superior Court level. But -Am I correct, and by all means correct There was no trial, was there, in the

me if I'm in error, that the trial judge there did not conduct a trial. MR. OLSON: THE COURT: and declarations? MR. OLSON: I believe that's correct. I -He proceeded on the basis of affidavits

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(Cell phone rings.) THE COURT: Okay, we have a cell phone going off

At least it's not quacking like -(Laughter.) THE COURT: MR. OLSON: -- they do in some courts. I understand that point, Your Honor, but And

that is an appropriate way to reach conclusions of fact.

it's -- and, in fact, that may be part of the process that you might participate in through motion practice here. We are not disagreeing that there may be some things at the end of the day that have to be resolved in that fashion, but there may be ways in which we can narrow the issues by agreement or turning to things that the United States Supreme Court said in the Romer case might be something that the trial court would have to accept as conclusive in terms of factual determinations by the highest court of the State, who has considered perhaps something concerning, for example, the effect of Proposition 8 and what it -- what it does, and the effect of denying the opportunity to marry same-sex individuals. But, I'm not trying to argue that point now, I'm simply saying that we think that there are many things that can be resolved by agreement, by cross-motions, perhaps, for summary judgment, or perhaps some narrowing process. And what I was going to propose, and I mentioned

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this to Mr. Cooper before the hearing, and he'll -- he'll speak in response to it, is that if we had, for example, possibly 30 days to submit to Your Honor a written analysis of the facts that we think could be agreed upon or could -- or which could be dealt with my motion, and we could consult with one another in connection with preparing joint submissions along this ground, that might help to narrow the issues upon which there then might have to be expert testimony or opinion evidence and that sort of thing, in other words, to narrow the ballpark, the field. THE COURT: not going to refuse. (Laughter.) MR. OLSON: And it seems to me that that way, we That is certainly an invitation that I'm

could come back before you, after having submitted -- made submissions along those lines, and talk to you then about how we might proceed further in the most expeditious way. Now, I mentioned 30 days, but we'd be willing to do it sooner. But it seems to me that that is not an unreasonable

period of time, given the Court's interest and our interest in moving forward expeditiously and everyone's interest in doing this thoroughly. THE COURT: What about -- I want to hear

Mr. Cooper's response to that, but before doing so and while you're at the podium, what about discovery? There certainly is

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some discovery that is going to be necessary here, isn't there? MR. OLSON: Well, I'm not sure. And that's one of

the reasons that I would think it would be important to communicate with co-counsel. there is, what is it? Is there discovery necessary? If

What form would it take?

Discovery includes, as I understand it, request for admissions, interrogatories, depositions, and that sort of thing. I think that to the extent that there may be discovery

that is necessary, we could maybe work that out and make a submission to Your Honor. As I stand here today, we believe that an affirmative, powerful case can be made that the constitution is being violated based upon the fact -- based upon facts that are in the declarations of the plaintiffs, based upon matters of which the Court can take judicial notice, based upon facts that have been determined by the California Supreme Court and recognition that has occurred by the United States Supreme Court, but I may be wrong. And Mr. Cooper might disagree with me or our other opponents might disagree, but we do know that the California Supreme -- the California Attorney General has already decided that this proposition is unconstitutional. Now, I think that we could make a compelling case upon which you could reach a conclusion that Proposition 8 denies due process to the plaintiffs and denies them the equal

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protection of the laws.

If there is discovery, I guess we will

hear from others with respect to how much might be necessary, but I think that to the extent that there is the necessity of discovery, it doesn't have to be broad. But we could also not only confer with one another and make submissions to you, but you might feel differently once we have done so and say that this is something that I need more from you. THE COURT: All right.

Mr. Cooper, how does that proposal sound to you? MR. COOPER: Well, Your Honor, we -- as Mr. Olson

mentioned, we did have a chance very briefly to put our heads together, and we are very close to the same page on this, actually. And the Court made a good point at the outset, that the California marriage cases, there was no trial in connection with that. And as far as our research has been able to turn

up, we can't find that any of the marriage cases, the dozen or so of them that have proceeded around the country, actually submitted issues of fact to trial, as opposed to having gone off on summary judgment. THE COURT: MR. COOPER: THE COURT: I think the reason for that --

Isn't that -- isn't that a problem? Well -Isn't that a problem? I think you and

Mr. Olson agree that what's going on here is basically a

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prelude to further proceedings, and shouldn't those further proceedings be based upon a fully developed record here? MR. COOPER: THE COURT: MR. COOPER: Your Honor absolutely. And --

We develop records with trials. Well, Your Honor, and what I want to

submit for your consideration is -- is the proposition that the factual issues that the Court has identified, or at least by my lights, a large number of them, really concern legislative facts rather than adjudicatory facts. And I want to submit to you a description of this point I'm making from Judge Posner in the Seventh Circuit. said the distinction between adjudicatory and legislative facts, the distinction is between facts germane to the specific dispute, which often are best developed through testimony and cross-examination, and facts relevant to shaping a general rule which has the discussion in this opinion and illustrates more often, are facts reported in books and other documents not prepared specially for litigation or refined in its fires. And the Ninth Circuit has also, in a couple of, I think, relevant opinions, drawn forward this -- this distinction between an adjudicatory fact, that is, facts that relate specifically to, for example, these plaintiffs, or larger legislative facts that go to the, for example, the rational basis, or lack thereof, for -- and by the way, the test here would be any conceivable rational basis -- whether or He

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not that legislative fact has been developed and demonstrated. And that can be done with literature, the decisions of the -- of the relevant state courts, the social science literature, and what have you, things that are not, for example, an expert who is specifically engaged by one of the parties to treat with, expert testimony that pertains specifically to the facts here as opposed to -- the adjudicated facts here as opposed to the legislative facts treating with legislation itself or the rule of law that will govern going forward. And that case, Your Honor, is Indiana Harbor Belt

versus American Sign, (phonetic) at 916 F.2d, 1174. Beyond that, Your Honor, I think Mr. Olson is making a useful suggestion that the two of us and our friends representing the Government defendants I do believe ought to make the effort to try to identify some -- some of these facts that you've -- that you've listed as well as perhaps others that we know are going to be relevant to our cases and attempt to stipulate to them or perhaps agree that they are controlled in some fashion by a previous decision, a Ninth Circuit case, or a California Supreme Court case, and take that first step to narrow this down and make it as manageable as possible. What I would submit is that -- is that the parties ought, well then try, through cross-motions for summary judgment to either resolve the case -- and I frankly think it can be resolved on -- on cross motions -- but even if it can't

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be, and the Court does determine that, yes, a more developed record would be helpful to the Court, and that is what we will be here to do, Your Honor, is ensure that the record that the Court believes it needs to resolve this gravely important question correctly, is before it. And we'll do anything and

everything in our power to assist the Court in that fashion. But -- but, I guess what I'm saying is that through those methods, we can skinny down as much as possible what we may have to try up, and may end up not having to actually have a trial. On discovery, I agree also with Mr. Olson that that may be minimized. It's going to depend on what he -- for

example, if we do go cross-motions for summary judgment, it will depend on what he attaches to it. If he has some expert And

reports, then, of course, I want to depose those experts.

the same, I'm sure, is true of -- of him, depending on what we would provide to the Court by way of illumination. But I don't think -- I don't think the discovery, necessarily, is going to have to be -- be onerous in this case. THE COURT: Well, I'm not sure that this is like an

antitrust case, where we are going to have reams and reams and reams of documents. MR. COOPER: And e-mails.

(Laughter.) THE COURT: Well --

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MR. COOPER: in this case. THE COURT: know, Mr. Cooper --

I'm not going to look for any e-mails

Those are sometimes very handy, as you

(Laughter.) THE COURT: MR. COOPER: -- in a case. I don't want his clients' e-mails, and

I'm sure he doesn't want mine. THE COURT: Well -- well, certainly, I welcome your

joint suggestion that you take some time, confer, and submit a proposal for facts that you think the Court can take judicial notice of, facts that are established without dispute. The

more of those that we have resolved, the better; there is no question about that. And, also, to take some time and to

figure out how, with respect to any matters that you cannot agree upon, you think it's sensible to proceed. I gather from what you both are saying that you think 30 days is an appropriate period of time within which to do that work. And -Your Honor -- I -- if I could just

MR. COOPER: speak to that?

I -- I think that is aggressive.

I think it's

possible, but I do want to say, and I mentioned on my earlier trip to the lecturn, here, that we have no desire in any way to delay the outcome of this case; quite the contrary, we are

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sensitive to the need to move it as quickly as we responsibly can. But we are also very acutely aware that we -- the

proponents now are the only ones before the Court that will be defending Proposition 8, and we take that as a gravely important responsibility. And so -- and, frankly, I think my friends on the side of the plaintiffs have been thinking a lot longer and preparing their case a lot longer than I and my colleagues, in a responsive profile, have been able to do. With that kind of general, I guess -THE COURT: Plea?

(Laughter.) MR. COOPER: Plea, exactly, plea, I would say that I But we might end

don't think 30 days is unrealistic on that.

up needing to ask the Court for, you know, a little dispensation at the back end. THE COURT: Well, what do you intend to do during

this period of time other than meet and confer with your adversaries? MR. COOPER: be it. THE COURT: to do that, is it? I could step outside, and you could -(Laughter.) Well, it's not going to take that long Well, I think that will be -- that will

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THE COURT:

I could give you the jury room, and you

could sit down and roll up your sleeves and talk about some issues. MR. COOPER: Well, Your Honor, I think it's going to

take some time to identify the issues that each of us think are important. It's going to take some time to argue with each

other, I think, to -THE COURT: Well, I'm sure that's true.

(Laughter.) MR. COOPER: THE COURT: To determine whether or not the -Well, how can I crystallize this

process, by requiring within a week that you exchange letters in which you describe a general plan for management of the case and that -- just set a schedule? I used to practice law myself, and I know the value of a deadline. MR. COOPER: Yes, indeed. And, Your Honor, 30 days

(Laughter.) MR. OLSON: May I add something, Your Honor, with

what we would propose to do during that period. THE COURT: MR. OLSON: Of course. And I think Mr. Cooper would be doing it

too, is not just talking and conferring with respect to the things that we can agree upon, but also doing an inventory of

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the facts that are available on the public record, and court decisions, and other materials that we would advance. So my contemplation here would be that within that 30-day period, we would assemble not only the areas where we have agreement, but areas where we can lay out where we may disagree and why. And I think that will take a little bit more

time because we want to lay it out as much as possible forthrightly for one another. Once we see that, and once you

see that, I think that will help us all narrow the case down. I will hasten to say that, at the end of the day, if it is necessary, and we may all agree that it's necessary, to have expert witnesses and cross-examination, and so forth, we are ready, willing, able, and prepared to do that on the quickest possible schedule. But I think that 30 days is a

reasonable period of time, not just to find out the things that we can agree upon, because maybe a little longer would cause us to agree upon a few more things or to crystallize more succinctly the areas where we have disagreements, and then, maybe narrow it down. THE COURT: In my experience, it works the other

way; the longer you have, the more disagreements there are. (Laughter.) MR. OLSON: justice to the issues. THE COURT: Well, of course, of course, I fully Well, we want to make sure that we do

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understand that.

But, my goodness, you are very able lawyers,

and you do have a substantial amount of assistance behind you on both sides. (Laughter.) MR. OLSON: Well, as I said, we are prepared to do That was my

whatever you feel is appropriate and necessary.

judgment with respect to how it would be most useful and appropriate and orderly. THE COURT: Well, is it unreasonable for me to have

you back on the 6th of August, having submitted prior to that date either a joint case management proposal or respective differing approaches? MR. OLSON: MR. COOPER: THE COURT: From my standpoint, yes. As well as mine, Your Honor. All right. Your Honor, I'm out of town that

MR. MENNEMEIER: week. So I hate to be -THE COURT: laid off that week. MR. MENNEMEIER:

I'm glad you didn't say that you are

No, no.

(Laughter.) MR. MENNEMEIER: I hate to interrupt the agreement

between counsel here, but the following week -- I'm out the week of the 6th. THE COURT: You're not available on the week of the

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-- that would be the week of the 3rd of August. MR. MENNEMEIER: week I am available. MR. BURNS: THE COURT: Yes, sir? MR. BURNS: I also -I'm sorry; please restate your Your Honor -Why don't we do this -- oh. Yes, I'm out that week. The next

THE COURT REPORTER: appearance for me. MR. BURNS:

Gordon Burns. Thank you.

THE COURT REPORTER: MR. BURNS:

I'm also unavailable that week and due

to be out of town on a previously scheduled vacation. THE COURT: week? MR. BURNS: I am, yes. But are you available the following

(Court and clerk confer.) THE COURT: suit everybody? MR. OLSON: From our standpoint, Your Honor, you How does the 19th or the 20th of August

name the date, we'll be here. MR. MENNEMEIER: THE COURT: MR. COOPER: That's fine.

Mr. Cooper? That's fine, Your Honor. The 19th at 10:00 a.m, the 19th

How about the 19th?

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of August. What I would like is for the parties to submit either a joint or separate, or perhaps a combination of joint and separate case management statements, by not later than the 7th of August. And describe in that, one, what facts that you

think can be determined by the Court without necessity of further proceedings, those facts that you think may require discovery, those facts which may require resolution by some means other than judicial notice, and a plan of action, whether it's a motion for summary judgment or motions, plural, for summary judgment on one side or the other. But I would like to

get down to the specifics of how we are going to proceed. MR. OLSON: We accept and -- we understand, accept

and are fully supportive of that, Your Honor. MR. COOPER: So let be said, so let be done.

(Laughter.) THE COURT: I like that attitude, Mr. Cooper.

(Laughter.) THE COURT: All right, is there anything further

that we need to discuss this morning? MR. OLSON: THE COURT: MR. COOPER: THE COURT: We have nothing further. Mr. Cooper? No, Your Honor. How about anybody else?

(A collective "no.")

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MR. MENNEMEIER: THE COURT: forward to your help. MR. OLSON:

No, Your Honor. I look

Counsel, thank you very much.

Thank you, Your Honor. Thank you, Your Honor.

MR. MENNEMEIER:

(Proceedings adjourned at 11:14 a.m.)

---o0o---

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CERTIFICATE OF REPORTER

I, Sahar McVickar, Official Court Reporter for the United States Court, Northern District of California, hereby certify that the foregoing proceedings were reported by me, a certified shorthand reporter, and were thereafter transcribed under my direction into typewriting; that the foregoing is a full, complete and true record of said proceedings as bound by me at the time of filing. The validity of the reporter's

certification of said transcript may be void upon disassembly and/or removal from the court file.

/s/ Sahar McVickar Sahar McVickar, RPR, CSR No. 12963 Monday, July 6, 2009

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