THESE DAYS
1/19/10
DAN EATON
MAUREEN CAVANAUGH (Host): The issue of same sex marriage in California is being argued before a federal court in San Francisco, in fact San Diego Mayor Jerry Sanders is set to testify at that trial today. Now for awhile, there was a good chance we’d all be able to watch that trial but the U.S. Supreme Court said no. The nation's high court has also agreed to rule on another case involving the privacy of petition signers. And we await a major high court ruling that could overturn campaign fundraising laws. Joining us to discuss what the U.S. Supreme Court has been up to and its impact on California, is my guest, These Days legal analyst Dan Eaton. Hi, Dan.
DAN EATON (KPBS Legal Analyst): Hi, Maureen. Of course, normally we don’t really focus as much as we did maybe in some of the early segments some years ago on the U.S. Supreme Court because it’s so far away. But the fact is that a lot of what they are doing now really does have ramifications for our own state. So that’s why the three cases that you specifically talked about really do affect us in very direct and concrete ways.
CAVANAUGH: Let’s start with the Prop 8 trial up…
EATON: Right.
CAVANAUGH: …in San Francisco. Federal Judge Vaughn Walker issued an order that, if approved, would have allowed limited broadcast of the trial. And tell us the circumstances of that original order.
EATON: Yeah. Of course the case is called Perry versus Schwarzenegger, the governor, of course, being named as a nominal party. And what happened basically was around September of last year, Judge Walker suggested that he had gotten interest for broadcasting the trial. Unfortunately, at the time the rules that govern California Federal Courts did not allow broadcasting. What happened was, ultimately, in mid-December, December 17th, the policymaking council that governs the Ninth Circuit Court of Appeals, which hears appeals from California and other states, said, you know what, we are going to establish a pilot program for broadcast. You have to apply and so forth and then the chief judge ultimately approves. What happened then was the chief judge, Vaughn Walker, who was hearing this Perry versus Schwarzenegger Prop 8 case, did apply and say that he was going to – first he said he was going to do a rule change to allow the broadcast because the rules of the federal courts in San Francisco did not allow such broadcasting. So he said, all right, I’m going to propose a rule change and open it up for public comment. One of the issues, though, was that he opened it up for public comment on the afternoon of New Year’s Eve, December 31st…
CAVANAUGH: Uh-huh.
EATON: …and allowed basically about eight or nine days for public comment, or that’s what the order said. Ultimately, what happened, though, was that then on January 7th, after receiving a good number of comments from the public, the vast majority of which were in favor, Judge Walker formally asked Ninth Circuit Chief Judge Kozinski to approve this Prop 8 trial for broadcast. And Judge Walker wanted it broadcast to federal courts, five federal courts including Seattle and Brooklyn, and Judge Walker went one step further, which was very interesting, he also asked for permission to broadcast, after the day’s proceeding, the trial, on YouTube or on the internet which…
CAVANAUGH: Right. That’s what I heard, that we were going to be able to see the trial on the internet. That’s – I think that came out for public consumption.
EATON: It did.
CAVANAUGH: And what did Chief Judge Kozinski rule on that request?
EATON: Right, the internet thing, the chief judge said is there are technical difficulties with that that have to be worked out so I’m not going to rule on that. But what Chief Judge Kozinski did was he did approve the closed circuit transmission of the trial to these five federal courts including Seattle and Brooklyn, Brooklyn, of course, being the furtherest away, and that was really the ruling that was before the Supreme Court and that’s what the Supreme Court was looking at.
CAVANAUGH: So how did the Supreme Court get involved in this, though?
EATON: All the way back in September, Maureen, when Judge Cava – when Judge Walker said – judge Cavanaugh – Judge Walker said that he might broadcast it, the people who were defending Prop 8 said we don’t want it, and the people who were challenging the law said, yeah, sure that’s fine with us. What happened was they were not happy with Judge Kozinski’s order or Judge Walker’s order then allowing the broadcast, so what did they do? The day after Chief Judge Kozinski issued his ruling on a Friday, on a Saturday, they upped the petition to the Supreme Court to block or stay the order temporarily.
CAVANAUGH: Now, why did they do that? I mean…
EATON: They…
CAVANAUGH: …what was their argument?
EATON: Their basic argument was look, if you allow the broadcast of this trial, Maureen, some witnesses are not going to testify the – and, in fact, there is a – there are documented instances of harassment. These people are going to suffer harm if you broadcast it, therefore, Supreme Court, you really need to get involved and block this order from going into effect, an order, the People argued, was issued with a rule change that was issued with very, very little notice and very limited opportunity for public comment. So that was their basic argument. The order was issued pro – with a procedural irregularity and also if you allow this broadcast to occur, people would be hurt and harassed, so, Supreme Court, you need to block it.
CAVANAUGH: And the Supreme Court agreed.
EATON: They did. The – It did, the Supreme Court did. What happened was, on Monday, they – What happened was that they issued a temporary stay on Monday, just hours before the trial was going to begin. And, of course, it began on Monday, January 11th, just over a week ago. And just hours before it was to begin, the Supreme Court said, we’re going to block this temporarily. And then on Wednesday, it issued a 17-page decision, five-to-four, staying it indefinitely, as a matter of fact. And that – that’s what happened, ultimately.
CAVANAUGH: One of those famous five-to-four rulings by the Supreme Court.
EATON: Umm-hmm.
CAVANAUGH: What did the dissenters say?
EATON: Well, first of all, the majority – It’s important to focus on the majority first.
CAVANAUGH: Sure, sure.
EATON: The majority said, yeah, there was a likelihood that at least four justices would agree to review this on the merits and that there was a fair chance that five justices would vote to reverse it. And, look, the fact is that they probably – these people probably would suffer irreparable harm if this order were allowed to go forward without this stay. By the way, that’s the same standard they used to block the Mt. Soledad order some years ago, so listeners will be familiar with that. But the dissenters just were not buying it. The four more liberal members of the Court, led by Stephen Breyer, said we don’t buy this at all and specifically took issue with the harm that the majority said that they saw coming if these proceedings were allowed to be broadcast.
CAVANAUGH: They – And so where does this stand? It looks the trial is not going to be broadcast in any way.
EATON: Well, it’s not going to be broadcast for a very specific reason. Why? Because just last Friday, Chief Judge Kozinski granted Judge Walker’s request to remove Perry versus Schwarzenegger from the pilot program…
CAVANAUGH: Ah.
EATON: …allowing the broadcast. And it’s very interesting, Maureen, because the order – the Supreme Court’s 17-page order rejecting the broadcasting was actually very sharply worded, said basically that the trial – that the Northern District did not follow proper procedures with respect to a rule change and said that they dedacted in haste. If courts are going to require people to follow rules and normal procedures, they have to follow them themselves.
CAVANAUGH: Now, in a case that’s related in topic and in concern about participants, the Supreme Court has agreed to decide whether signers of a referendum petition are entitled to block public disclosure of their names, and this referendum was in Washington and it sought to block a law expanding the rights and responsibilities of same sex couples from going into effect. Tell us about that case.
EATON: Sure. Like Washington, of course, California has the referendum and petition recall and so forth and we see these people standing on street corners asking for our signature.
CAVANAUGH: Right.
EATON: And what happened was that on May 18th, 2009, the Washington governor signed what was colloquially called a, quote, everything but marriage act, closed quote, that extended equivalent rights and responsibilities to same sex couples that heterosexual married couples have. We have a similar law here in our state. Well, two months later, a group known as the Protect Marriage Washington submitted petitions to the Washington Secretary of State with some 138,500 signatures on it, seeking what ultimately was a defeated referendum to invalidate this new law. Washington state’s Public Record Act says that, well, anybody can get access to this publicly and so the Washington Secretary of State was getting ready to release this and the people, two signers of the petition plus the Wash – the group, Protect Marriage Washington, sued to block it.
CAVANAUGH: And they block it because they say it violates the petition signers’ First Amendment rights.
EATON: That’s right.
CAVANAUGH: What is the basis of that argument?
EATON: The argument is, look, signing a petition is protected political speech, and that if these names were released, if the names, address and contact information were released, these people would be subject to harassment. Sound familiar? It should from what we were just talking about.
CAVANAUGH: Right.
EATON: And it said threats, harassment and reprisal, and it would impermissibly burden their right to free speech as a result. A federal trial court agreed and issued an order barring release under the Washington state Public Records Act. The Ninth Circuit Court of Appeals, however, reversed that order.
CAVANAUGH: And why did they reverse it?
EATON: The three judge panel said, look, assuming that the referendum is, in fact, speech, constitutionally protected speech, the burden on that speech is only incidental from the release as a matter of public record. The court rejected the trial court’s assumption that this was anonymous speech. It wasn’t, said the Ninth Circuit Court of Appeal three judge panel. Why? Because the petitions, obviously, are gathered in a public manner. Two, there are 20 spaces to sign the petition so up to 19 people who also signed it are also going to see it. And finally, the state doesn’t promise any kind of confidentiality when it’s submitted to the Secretary of State. In fact, two people from each side are allowed to witness the actual validation of the signatures. But, ultimately, of course, the side that lost, the people that want to block the petition signatures from being released, appealed to the United States Supreme Court.
CAVANAUGH: And what happens now?
EATON: Well, the Supreme Court has agreed to hear it. In fact, they just agreed to hear this case. And it will go before the Supreme Court for argument. It’ll go before the Supreme Court for argument in the next couple of months and then a decision is expected, Maureen, sometime be – at the beginning of the summer, just before the court adjourns. But, obviously, this could have tremendous implications not just on this particular topic but for the release of signatures on all kinds of topics in our state and others.
CAVANAUGH: And all the petitions that we are asked to sign here in California, yes.
EATON: Absolutely, that’s exactly right.
CAVANAUGH: Well, speaking of anticipated decisions, we have a decision that’s imminently going to be released by the U.S. Supreme Court, perhaps tomorrow, about – ostensibly about the “Hillary: The Movie” ruling, But it is really broader now and may affect campaign finance laws across the board.
EATON: This is a huge decision, Maureen. What is it? This is a case that was brought to challenge, a fairly narrow aspect, actually, of the McCain-Feingold rule that had to do with the timing of when you can make these issuance and so forth. The Supreme Court heard argument last March, and, in fact, I talked about it back then. But then they said rather than issuing a decision at the beginning of the summer, as they normally do, they said we want reargument in September. And they heard reargument, of course, with the newest justice, Justice Sotomayor, in place. And what the issue that they were considering was whether these burdens that have been placed on corporations from spending their money, and labor unions, on spending their money on these political campaigns were unconstitutional. Now they heard argument in September and this ruling is very heavily anticipated. Why? Because you are right in the middle of an election year – or in the beginning of an election year, 2010. And depending on how the Supreme Court ruled—and the questioning seemed to suggest they were going to remove a lot of these restrictions on corporations as unconstitutional—you may very well have something of a rule of the jungle in what is already a very volatile election year, Maureen. So this could have a tremendous effect from coast to coast.
CAVANAUGH: Now the restrictions on corporate campaign donations have been in place in many states across the nation for many, many years. What would a ruling reversing the ban on that actually do to political campaigns?
EATON: Well, as I said, it would significantly deregulate them. In fact, you’re right. These rulings – these rules have been in place for a long time, not only on the state level, Maureen, but also on the federal level, which is, of course, the specific question that the Supreme Court is addressing. But if the Supreme Court rules that these federal restrictions under McCain-Feingold are unconstitutional under the federal constitution, similar restrictions under state law would also be invalidated. So you really are going to have a lot more spending. The prediction is that there will be a substantial amount more spending on 2010, which is shaping up to be a very, very volatile and intense election year anyway.
CAVANAUGH: I wonder, Dan, when this “Hillary: The Movie” case came before the Supreme Court, did people anticipate that this might – the justices might take this very wide approach to this issue and that campaign finance laws were perhaps in jeopardy?
EATON: No, because the issue was a fairly narrow one that the Supreme Court actually accepted. The narrow issue before the court was—and I’m reading from my note—is whether the McCain-Feingold campaign finance law could, consistent with the First Amendment, prohibit the broadcast cable or satellite transmission of a 90-minute anti-Hillary movie. The critical question was whether that film could be regulated as campaign speech akin to a 30-second attack ad which airs 30 days before a primary election. So it was a very narrow issue.
CAVANAUGH: Right.
EATON: Or whether it was political speech. Instead, what the court said is, let’s look at whether the constitution allows these general restrictions on corporate campaign spending generally. And that, Maureen, could have tremendous implications for, frankly, our commercial viewing habit. I think there are going to be a few more Tivo subscribers if the court rules that, in fact, the constitution requires that these restrictions be substantially less exclusive.
CAVANAUGH: Because of all the political commercials we see.
EATON: Absolutely. That’s right. They’re going to want to Tivo those commercials.
CAVANAUGH: Well, it sounds like we’re going to have a lot to talk about next time.
EATON: We definitely will, Maureen.
CAVANAUGH: Thank you so much.
EATON: Sure.
CAVANAUGH: I’ve been speaking with These Days legal analyst Dan Eaton. If you’d like to comment about what we’ve been talking about, go online, KPBS.org/thesedays. And coming up, two art exhibits in Balboa Park highlight the spirit of the women of India. That’s next as These Days continues on KPBS.
