There has been an interesting, though not completely unexpected, turn of events in the Perry v. Schwarzenegger federal trial. You’ll recall from a previous email that Magistrate Judge Joseph Spero had ordered the ACLU, Equality California, and others to turn over to our legal team the internal campaign records of the “No on 8” campaign that contain, refer or relate to arguments for or against Proposition 8. The same kind of internal campaign records belonging to Prop 8’s sponsors had already been disclosed under the court’s earlier ruling before the start of trial. Spero’s order simply required the same disclosure of the “No” campaign that the “Yes” campaign had been forced to make.
Claiming that Spero’s order was “clearly erroneous or contrary to law,” our opponents quickly appealed his ruling to Chief Judge Vaughn Walker in hopes of preventing our defense team from seeing evidence that could weaken the legal challenge against Prop 8. A district judge can overturn a magistrate’s order only upon a finding of clear error, reaching a “definite and firm conviction that a mistake has been committed.” To Judge Walker’s credit, last week he ruled that Judge Spero’s decision to compel our opponents to disclose their internal records was neither clearly erroneous nor contrary to law, and therefore denied their appeal.
Judge Walker affirmed that the “documents from the No on 8 campaign could be relevant to the question of why voters approved Proposition 8, as the messages from the No on 8 campaign were part of the mix of information available to the voters.” So now, even though the live witness testimony phase of the trial has been completed, our Prop 8 Legal Defense team will finally have an opportunity to review our opponents’ campaign records – just as they have already reviewed ours – and potentially submit evidence and arguments to counter our opponents’ claims that Prop 8 is unconstitutional.
In upholding Spero’s order, Walker also maintained the March 31st deadline for our opponents to turn over their documents, and gave our legal team a two-week period to add any newfound evidence into the trial record. Regardless of whether that schedule will hold, at some point our legal team should be able to undertake the critical task of pouring over the documents with a fine-toothed comb. Because we may be limited to such a short time in which to cull through tens of thousands of expected documents, the Prop 8 team of attorneys will likely be required to work around the clock to finish the task. We appreciate any donation you can make to help cover the expenses of this herculean effort.
Not surprisingly, Equality California and the ACLU have appealed Judge Walker’s order to the Ninth Circuit Court of Appeals. And Judge Walker has already issued a ‘stay’ of his own order for document disclosure for a week, while our opponents ask the Ninth Circuit to intervene. This means that even now – months after our side was forced to disclose internal campaign records to our opponents – we continue to wait while our opponents refuse to disclose the same kind of evidence.
As always, we appreciate your support and will keep you posted as the process continues.
