2:04-cv-08425 #286
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Monday, October 18, 2010 CV 04-8425-VAP
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
EASTERN DIVISION
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HONORABLE VIRGINIA A. PHILLIPS, JUDGE PRESIDING
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LOG CABIN REPUBLICANS, )a nonprofit corporation, )
Plaintiff, ))
vs. ) No. CV 04-8425-VAP(Ex)
)UNITED STATES OF AMERICA and )ROBERT M. GATES, SECRETARY OF )DEFENSE, in his official capacity, )
) EX-PARTE APPLICATIONDefendants. )
___________________________________)
REPORTER'S TRANSCRIPT OF PROCEEDINGS
Riverside, California
Monday, October 18, 2010
2:39 P.M.
THERESA A. LANZA, RPR, CSRFederal Official Court Reporter
3470 12th Street, Rm. 134Riverside, California 92501
(951) 274-0844WWW.THERESALANZA.COM
ase 2:04-cv-08425 Document 286 Filed 11/08/10 19 Pages
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Monday, October 18, 2010 CV 04-8425-VAP
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APPEARANCES:
On Behalf of Plaintiff:
WHITE & CASEBY: Dan WoodsBY: Earle Miller633 West Fifth Street,Suite 1900Los Angeles, California 90071-2007213-620-7772
On Behalf of Defendants:
UNITED STATES DEPARTMENT OF JUSTICEBY: Paul G. Freeborne20 Massachusetts Avenue, NWRoom 6108Washington, DC 20001202-353-0543
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Monday, October 18, 2010 CV 04-8425-VAP
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I N D E X
Page
PROCEEDINGS.................................... 4
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Riverside, California; Monday, October 18, 2010; 2:39 P.M.
-oOo-
THE CLERK: Calling calendar item five, case number
CV 04-8425-VAP (Ex), Log Cabin Republicans versus United States
of America, et. al.
May we have counsel please come forward and state
your appearances for the record.
R. FREEBORNE: Paul Freeborne on behalf of the
Secretary of the United States.
R. OODS: Dan Woods and Earle Miller of White &
Case for plaintiff Log Cabin Republicans.
THE COURT: Good afternoon.
On the Court's calendar this afternoon is the
defendant's ex-parte application for an emergency stay of the
Court's previously issued permanent injunction.
As I'll articulate as I go through my tentative
ruling, in a sense, I've treated this, in addition to
considering it as a motion for an emergency stay, although this
relief was not requested, in a sense I treated it also or
considered it also as a request, perhaps, to modify the
previously issued injunction.
The request is untimely. The government had the
opportunity to state its objections to the form of the
injunction. And specifically, when I issued my decision in
this case on September 9th, the last paragraph or two of the
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Court's memorandum opinion, rather than immediately issuing an
injunction at that time, specifically set forth a briefing
schedule for the issuance of the injunction and allowed the
government time to submit objections to the form of any
injunction before it issued. And I can't remember now but I
think it was approximately two weeks, at least one week, that
the government had under the briefing schedule to submit
objections or suggestions as to the wording in the injunction.
While the government did submit objections, those
objections were not really to the form of the injunction; they
just reiterated the position that they had taken throughout the
trial that basically the plaintiffs should not prevail in this
case. But they did not submit any evidence such as they now
have, the declaration from the Under Secretary of Defense,
setting forth any practical problems with the form of the
injunction.
I mean, there are, I think, significant failings in
even the evidence that's now been submitted. But neither at
trial, when the government declined to put on any evidence, nor
during the time that it was allowed in the briefing schedule,
did the government put on any substantive evidence as to the
form of the injunction.
And the government attempts to address this in this
application by saying, 'Well, we didn't do it then because we
didn't know what relief the Court was going to order.' But
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that's really not accurate, because the briefing schedule
directed the plaintiff to submit a proposed order; gave the
government time to object to the form of it. And, as I said,
they did not submit any evidence.
As to the evidence that the government now has
submitted in support of this application, it is insufficient to
meet the burden. The first exhibit that the government submits
is a Rolling Stone article, and I hardly need say more than
that. It's hearsay. It's not reliable, even to the extent
that the Court can consider hearsay in considering this sort of
emergency relief. And it's not a party admission. It's not a
party admission because it's offered by the party whose
statement is offered; so the Court has not read it or
considered it.
As for the declaration of Under Secretary Stanley,
that is somewhat helpful. But overall, it's -- and I'll get
into this in more detail -- but it's too conclusory to be of
much assistance to the defense in meeting the defense's legal
burden in obtaining a stay of the Court's previous order. And
I will address that in more detail.
The legal standard that the defense must meet to
obtain the relief that they are seeking is not addressed in the
application. A party seeking a stay must demonstrate the same
elements as one seeking an injunction in the first instance.
Those elements are: Likelihood of success on the merits;
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Court's order. The implementation of new regulations taking
into account the views that were gathered during the survey.
The implementation of new regulations can go forward, should go
forward, I suppose. But that's not prohibited by the Court's
order.
The argument that the government makes that there is
a need to train and educate and to develop and implement
regulations to that effect, the Court's order does not prohibit
that; it does not affect that. The need to revise dozens of
regulations and policies that Under Secretary Stanley refers
to, there's nothing in the Court's order that prohibits that;
that can still be done; should be done, I suppose. But nothing
in the declaration, by the way, says what those policies or
regulations are, how they should be changed. The injunction
doesn't affect benefits, for example.
To the extent that the Under Secretary's declaration
discusses specifics about harassment issues, the uniform code
of military justice, that the witnesses at trial testified to,
already is in place to deal with those issues.
So the arguments here advanced by the government are
vague and the statements in the declaration are conclusory.
And to the extent they are any more than that, they are belied
by the evidence that was adduced at trial, which the government
did not rebut because the government chose not to put on a
case, for example, addressing the evidence put on by the
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plaintiffs regarding housing and the negative affect that the
policy, the act, had on unit cohesion and morale.
So to the extent that the government now, for the
first time, is adducing evidence in the form of this
declaration that stopping discharges will harm -- it isn't
framed in exactly this fashion, but to the extent that the
declaration is an attempt to show that there would be an impact
on morale, it had the chance to introduce that evidence at
trial, but it did not do so. It lost at trial. The evidence
it now presents in the declaration of the Under Secretary does
not meet the burden that it has to obtain a stay.
And again, according to the United States Supreme
Court, the stay is not a matter of right, even if there had
been a showing that irreparable injury might otherwise result.
And I don't think there has been that showing.
The four cases that the government cites to show a
likelihood of success on the merits here I addressed at length
in the memorandum opinion. Three of them were decided before
the Lawrence case; therefore, I think that they are not
persuasive. And the case from the Second Circuit, I think it's
distinguishable for the reasons I described at length in the
memorandum opinion.
Then, as I said at the outset, in giving this
application really thoughtful consideration, I also tried to
approach it as a request for a modification of the original
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injunction; that is, if there was anything in the evidence that
was presented or the arguments made that even though I think
they should have been made earlier during the time that the
Court gave for the briefing on the wording of the injunction.
So I did some research, I tried to look at other
cases where injunctions had been issued where there was a
staged relief. Although the defense didn't really present any
alternative here other than a stay, there are cases where
courts have issued staged relief, such as in prison condition
cases or in integration cases.
Just to give you one example, Gates versus Collier
349 F. SUPP. 881, which is an old case -- well, old is in the
mind of the beholder, I suppose -- it's a 1972 case from the
Northern District of Mississippi; that's one. There's a couple
of others.
I didn't find any -- although, as I said, I explored
that possibility about staged relief here, after thinking that
through and looking at other orders that other courts have
issued with phased relief or staged relief, I did not really
see, given the circumstances of this case, which is what the
Court is directed to look at, that anything like that was
possible here. Particularly as the things that were set forth,
the only real evidence before me at this point -- that is, the
declaration of Under Secretary Stanley -- most of the issues
that were described there, the need to implement new training
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and education regulations, can still go forward despite the
Court's previous order.
So my tentative ruling is to deny the application for
a stay.
Mr. Freeborne, you may argue.
R. FREEBORNE: Thank you, Your Honor.
Your Honor, we request a stay pending appeal and, in
the alternative, a position of an administrative stay pending
the Ninth Circuit's consideration of our request for a stay
before that court.
THE COURT: Well, let me ask you.
When you say administrative stay, are you asking
for -- I'm not sure what you mean, but I assume that you mean
maybe five days while you go to the circuit and ask them for a
stay?
R. FREEBORNE: To allow for the orderly
consideration of our stay papers that we will file before the
Ninth Circuit, given this Court's -- if the Court goes forward
with its tentative ruling, just to allow for a careful and
orderly review by that court; so that's the relief that we're
seeking in the alternative.
THE COURT: So when you say administrative stay, you
mean just a stay for the period of time that the Ninth Circuit
would decide on your application for a stay?
R. FREEBORNE: Yes, Your Honor.
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THE COURT: I'm sorry. Go ahead.
R. FREEBORNE: Your Honor, with respect to the
timeliness issue, Your Honor had not entered any order -- and
again, we're seeking a stay pending appeal. There was nothing
to appeal from at the time that the Court issued its memorandum
opinion. Now that the Court has ruled, we have requested a
stay pending appeal.
THE COURT: Well, I'm not saying that you should have
asked for a stay earlier. That's not the point.
The point is that what you did not do earlier was
present any, for example, evidence such as this declaration
with evidence pointing to what you think the form of the
injunction, the infirmities in the form of it, or the
implications of the injunction when you had an opportunity to
do so.
R. FREEBORNE: Your Honor, we argued strenuously
against the issuance of a nationwide injunction. The Court had
not yet ruled that a nationwide injunction would follow. The
Court has now made that decision, and Dr. Stanley's declaration
addresses the nationwide injunction and the precipitous
implementation of a change in policy; so we would respectfully
submit that declaration is entirely timely. And in fact, it
would not have been ripe during trial nor at the time that the
Court issued its initial opinion.
THE COURT: Well, the only relief that the plaintiff
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sought in this case was a judicial declaration and an
injunction. So I issued a memorandum opinion saying clearly,
in almost these precise words, the plaintiff is entitled to the
relief it sought, the judicial declaration that the policy is
constitutionally infirm, and that it is entitled to an
injunction. And I'm going to issue that injunction. They have
a week to submit a proposed injunction and you have two weeks
to file your objections to it.
So you had the form of an injunction, a nationwide
injunction, and you did not submit a declaration. You did not
submit any evidence saying 'this will be the problem if it's
issued.' That's the timeliness issue.
R. FREEBORNE: Your Honor, first of all, we did
submit what the working group was considering. Once the
Court -- and we pointed out the problems in the nationwide
injunction. We have now followed up with a declaration from
Dr. Stanley that makes, among other points, the fact that a
precipitous implementation of this policy will adversely impact
military effectiveness; because you're requiring the Department
of Defense to implement a massive policy change, a policy
change that may be reversed upon appeal. Those are the central
points that are made in the Stanley declaration.
We would respectfully submit that those were only
ripe after the Court issued its nationwide injunction. Which
we, again, submit is contrary to what the Supreme Court did in
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the Meinhold case. In the Meinhold case, there too was a
facial challenge. It was, in fact, handled by White & Case.
So what the Court has done here is contrary to what the
Supreme Court disavowed in Meinhold and, in fact, stayed in
Meinhold.
THE COURT: The Meinhold which was, of course, before
the Lawrence case and before the legal landscape had changed
considerably.
R. FREEBORNE: But that body of law that's addressed
there, Your Honor, is whether or not a nationwide injunction is
appropriate. It has nothing to do with the underlying merits
of the constitutional claims that are presented in this case.
With respect to the standards, we have argued first
and foremost under Bowen V. Kendrick, that any time the court
invalidates a duly enacted statute, that constitutes
irreparable harm. And Justice Rehnquist said that in Bowen V.
Kendrick, anytime there's an invalidation of the statute, given
the presumption of constitutionality, that constitutes
irreparable harm and the balance of hardships tilts in favor of
the government, regardless of whether it's likely to succeed on
the merits or a substantial question of law. Which, by the
way, we argue strenuously that we are likely to succeed on the
merits. And there certainly is no question about substantial
questions of law in this case, given the underlying
constitutional questions that are posed.
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Your Honor, I've already addressed the Stanley
declaration. But again, Dr. Stanley makes the argument that a
precipitous implementation of the Court's nationwide injunction
will adversely impact military effectiveness, because of the
need for training and all of the other things that are set
forth in his declaration.
Again, we would ask the Court to enter a stay pending
appeal, but at a minimum, to enter an administrative stay so
that the Ninth Circuit can orderly consider our papers.
THE COURT: Thank you.
Mr. Woods.
R. OODS: Thank you, Your Honor.
I'm sorry, I'm losing my voice. I'm not well today.
When you issued your injunction last week on
October 12th, Your Honor, that happened to be the six-year
anniversary of the filing of the lawsuit. I'm not sure if
you're aware of that or not, but it was exactly six years ago
from the date we filed to the date that you issued your
injunction.
During those six years, the government has deprived
brave patriotic Americans of their constitutional rights,
including people like those who testified at the trial about
their personal experiences and their experiences with their
units.
Now, six years after we filed the lawsuit, after we
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have had a trial, after you've issued an 85-page memorandum
opinion and after you issued 84 pages of findings of fact and
conclusions of law, the government now wants to continue to
deprive Americans of their constitutional rights.
The Court, as you've indicated in your tentative,
cannot and should not do that because the government simply has
not met its burden of proof.
The government has not even argued that it is likely
to succeed on the merits. The government falls back to suggest
that there's a serious legal question raised here. But as you
have pointed out already, all of the cases cited by the
government in that section of the motions are cases decided
before Lawrence or the Cook case cited in another circuit which
expressly says it does not agree with the Witt case which
governs here.
Even if there was a serious legal question, the
hardships must tip sharply in favor of the government. The
government neglected to point that out in its motion. But in
any event, the balance does not tip sharply in favor of the
government.
On the one hand, the government is asking the Court
to continue to deprive Americans of their constitutional
rights, which is by itself irreparable harm. On the other
hand, the government simply wants to have some orderly process,
as it describes it, which is an orderly process that might
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lead -- and I underline "might" -- lead to the repeal of "Don't
Ask, Don't Tell" in Congress. It might not.
But as you've already pointed out, of course, the
government is not enjoined from taking any of the steps that
Mr. Stanley would like to take in his declaration.
To the extent that it's precipitous, as Mr. Freeborne
suggests, that is a problem of the government's own making.
This trial was set for approximately one year before it began,
and the government had every possible way to prepare for the
eventuality that it might not win. And it did not do that.
The government has also failed to show that the
public interest is benefitted by a stay. We had evidence at
the trial about family members and friends and people who were
discharged under "Don't Ask, Don't Tell." In addition to that,
Your Honor, there are many other homosexuals who would feel
less like second-class citizens if they were allowed to serve
in our armed forces.
What the government is asking for now, Your Honor, is
also an alteration of the status quo. After you have issued
your injunction, the government has stopped discharges and
investigations under "Don't Ask, Don't Tell." Dr. Stanley did
that in a memorandum he sent to all of the heads of each branch
of the armed forces. So now I gather that the government wants
to change that status quo, and I think that would be more
disorderly than orderly.
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That, Your Honor, is also the reason why you should
not consider what is described as an administrative stay,
because we've already had, for one week now -- only a week, but
maybe even less than a week -- a situation where "Don't Ask,
Don't Tell" is enjoined. There's no evidence before you of any
irreparable harm to the government as a result of that.
Instead, what we have are brave patriotic Americans being
allowed to serve without the fear of discharge or of
separation.
Your Honor, I simply agree with all of your thoughts
in your tentative ruling. Finally, I would just say that the
Meinhold case, which Counsel cited, was not even a "Don't Ask,
Don't Tell" case; it was a case decided under the prior law.
Thank you, Your Honor.
THE COURT: Mr. Freeborne, do you wish to respond?
R. FREEBORNE: Your Honor, only with respect to the
compliance with the Court's injunction. Of course we comply
with the Court's injunction. But that does not mean that there
hasn't been irreparable harm in the interim. Nor should it
deprive us of the ability to argue irreparable harm. That's a
Hobson's choice that the Court should not impose.
THE COURT: All right.
I'm going to take the matter under submission, but
I'll issue a ruling by the end of the day or early first thing
in the morning.
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R. OODS: Thank you, Your Honor.
R. FREEBORNE: Thank you.
(Proceedings concluded.)
CERTIFICATE
I hereby certify that pursuant to section 753, title 28, UnitedStates Code, the foregoing is a true and correct transcript ofthe stenographically recorded proceedings held in the above-
entitled matter and that the transcript page format is inconformance with the regulations of the Judicial Conference ofthe United States.
_/S/ Theresa A. Lanza _________________CSR, RPR Date
Federal Official Court Reporter