Effort to keep campaign memos from backers of Calif. gay marriage ban could delay verdict

Evidence skirmish could delay end of Prop 8 trial

SAN FRANCISCO — An attempt by civil rights groups to keep sponsors of California’s same-sex marriage ban from obtaining internal campaign documents could delay a verdict in the federal trial on the constitutionality of Proposition 8, lawyers on both sides said Tuesday.

Attorneys warned of the possible bottleneck during a hearing where a federal judge was asked to overrule a magistrate who ordered organizations that fought the 2008 ban to turn over memos and e-mails to lawyers defending the voter-approved measure.

“The real burden that is going to be imposed here if your honor affirms the magistrate’s ruling is the resolution of these incredibly important issues is going to be delayed, whether you like it or not,” ACLU lawyer Stephen Bomse told Chief U.S. District Judge Vaughn Walker.

The trial — the first in federal court to examine if the U.S. Constitution prevents states from outlawing same-sex marriage — has been on hiatus since late January, when Walker said he wanted to review the evidence before scheduling closing arguments.

At that time, the defense reserved the right to present more evidence before resting its case because its skirmish with the civil rights groups over the campaign documents was unresolved.

Walker heard more than 90 minutes of arguments Tuesday and said he would issue a written ruling later.

Three groups that opposed Proposition 8 are challenging U.S. Magistrate Joseph Spero’s order earlier this month requiring them to hand over all documents “that contain, refer or relate to arguments for or against Proposition 8,” with the exception of private communications between their core leaders.

At Tuesday’s hearing, lawyers for those groups contended the disputed e-mails and memos were irrelevant to the case, and it was unfair to make the groups sift through tens of thousands of documents because they were not officially part of the litigation.

“We are not the people who sought passage of this initiative,” Bomse said.

The wrangling mirrors pretrial disagreements between lawyers.

A federal appeals court eventually ruled that exchanges among top campaign officials about strategy and messaging could be withheld, but information disseminated more broadly was fair game in the trial.

Jesse Panuccio, a lawyer for Proposition 8 supporters, told Walker that it was only reasonable to require opponents of the ban to abide by the same disclosure requirements as supporters.

Plaintiffs have tried to prove that outlawing same-sex marriage serves no legitimate purpose, and the defense wants to see if their private conversations showed they thought otherwise during the campaign, Panuccio said.

If the judge forces the civil rights groups to turn over the documents by the end of March, a possible appeal could further push back the closing arguments, ACLU staff attorney Elizabeth Gill said.