Continuing presentation of Plaintiffs’ exhibits into evidence by Dousseau, objections by the always attentive Ms Moss.

Resume at five minutes before the hour.

We are still awaiting the Judge to resume the bench (11:00)

Dousseau: We are getting the privilege log last night at 11:30, and it includes hundreds of documents we have never seen.
Walker: Wasn’t this to be produced last week?
Moss: We had until yesterday
Walker: The magistrate gave you until yesterday to produce the privilege log?
Moss: Yes, and there were a few docs we discovered during that time that we did of course turn over after our due diligence.

Walker: So the Defendants will not object to a motion to re-open once you have had an opportunity to look at them?
Moss: we don’t have an objection although we’d like an opportunity to respond as to whether they are privileged.

Walker? Next

D: Turn over to Mr Boies

Walker: Boies?

B: Purely ceremonial your honor, the plaintiffs rest

Walker: Very well. Mr Thompson

Thompson: D-Is call Dr Kenneth P Miller

(sworn, admits materials relied upon, no objection from plaintiffs)

Walker: Very well Mr Thompson

Thompson: That tender may obviate the need to use this binder very much, but may I approach and give the witness and the court copies of this binder?

Walker: Yes you may

THompson: Prof MIller, wherer attend college

M: Pomono, Harvard Law

T: Where practice

M Morrison and Forster, for five years, LA office two years in litigation, then went with them to open a Sacramento office. After full time I was with them on a contract basis

T: What kind of cases in Sacramento

M: REgulatory, SF airport, businesses with state govt

T: Further studies?

M: PhD in political science 2002 UCalBerkeley, now associatie professor of government at Clarement College. Tenured. Also visiting assistant prof at USF.

T: What activities?

M: I have an active research work, FT teaching load, various committees, and associate director of Rose Institute of State and Local Governemtn, studies in CA and other states. I supervise this work in redistricting, municipal politics.

T: What do you teach?

M: California politics, grad and undergrad in constitutional law in powers and civil liberties

T: Subjects?

M: Founding of CA, original constitution, progressive era, inititative issues, Pat Brown era, professionalization of legislature, term limits, executive branch with separately elected officers. Changing demographix and thier effect on political parties. Once 50/50 now a majority Dem state. have students look a tparticular policy issues like budget.

T: Do you addres Prop 8?

M: One unit on Prop 8, related to Prop 22, and the marriage cases. Two to three course, a large chunk of the syllabus.

T: Do you address CA’s Domestic Partnership laws?

M: AS it related to the legal recognition of same sex partners, 1999 to present

T: Context of G&L in CA?

M: Coalitions thast support the two political parties, G&L are a potent partner in the DEmocratic party

T: Other minorities too>

M: Oh yes, the transition of immigrants to becoming citizens.

T: Do you discuss the political power of minorities in the USA?

M: Central issue has been the theme of racism in the US, founding of the country, the original consstitution, Dred Scott, Lincoln, post-war reconstruction amendments, segregation, civil rights, President Obama: A trajectory showing how a particular group faced discrimination and attained political power.

M: Assigned books about prejudice, BRown v Board of Education, back to slavery and continued discrimination.

T: Do you teach about the politcal power of G&Ls?

M: YEs, two party system, coalitions, G&LS as increasingly important part of the Democratic coalition

T: MAin focus of your scholarly research?

M: Direct democracy of the initiative process in CA and other states. I applied a Madisonian critique of direct democracy contrasting it with the republic envisioned by the FOunders. Continued to be interested in this problem of direct democracy, not satisfied I had gotten to the nub. So I continued my research focus as a scholar. I have greatly expanded my research, database on all other states’ initiatives. based on that researtch, all the way back to the progressive era.

M: I began to modify my views, I now have a somewhat more favorable view of direct democracy, a way for people to implement a check on their legislature and the courts.

Walker: Would you like to tender this witness?

T: YEs your honor, after a little more background

T: Your most recent book?

M: Direct Democracy

T: Also another book?

M: Edited volume with various contributors, looking at political change in CA based on demographics. No longer North South, now East West with the coast more democratic and inland more GOP. 2008 by Berkeley public PolicyPress.

T: Journal articles focused on the political power of G&L?

M: French jounral article on US politics focused on Prop 8 not passing while Obama was elected.

Walker: Say what? didn’t Prop 8 pass? Isn’t that why we are here?

M: YEs, that;s what I mean to say.

{Walker bemused at supposed expertise of this witness, waves glasses at thompson to indicate permission to continue}

M: I also go to lots of conferences, on editorial boards of Berkeley journal.

T: Tendered as expert in US and CA politics

Walker: Voir Dire, Boies?

Boies: I would not dispute his expertise in some areas in this very broad field, but no foundation yet laid for his expertise in the G&L power field. Perhaps counsel would ask him is opinions, then we could decide if his subset is relevant and if he;’s an expert.

Walker: THompson?

No objection to voir dire

Boies: Have you written peer-reviewed articles dealing with the power of G&L?

M: depends on the definition

B: definition of what?

T: Well of power, my French article….

B: Other than the French article, have you written any articless referring to the power of G&L?

M: No.

B: In that French article, what did you say about the power of G&L?

M: Well, since Prop 8 lost…. wait, I’ve got that wrong again, I meant since Prop 8 passed —

B: So your rargument was that G&L had power because Prop 8 passed?

B: In this french article, did you put forth anything about G&L power except about their campaign against Prop 8 and lost?

M: Talked about their coalition, the role of president Obama’s opposition to Prop 8, political power and powerlessness.

B: Have you ever taken any political studies looking at the power of G&L

M: Prop 6 in CA, Prop 2 in CO, Prop 22 in CA. Direct democratic context importantly focused on that topic.

B: Is that work recorded in any writings other than this French article?

M: yes,, my book was peer reviewed at Cambridge UNiverstiy Press

B: Are you an expert about the discrimination against G&L?

M: Yes, outcomes show evidence and inferences about ability to overcome discrimination.

B: You hold yourself out as an expert about the history of discrimination agaiunst G&L?

M: NOt so much the history as the current time

B: Are you an expert on whether G&L experiecne discrimination today?

M: Yes I am

B: Last fifty years, are you an expert?

M: AS an expert witenss, I’ve learned a lot about it, and I could write an article now I imagine.

B: What would you way are the most important ascaddemic writings about G&L Disrimination today?

M: So, my area of work where I am most familiar are legal writings, buy Paniella, Estrich, Susan Mezzie, these are some people who are important scholars in this area.

B: These are i mportant schiolars in this area?

M> Yes

B: With respect to the political power of G&L is your expertise limited to the present time?

M: NOt necessarily the history more the 1970s

B: For example, you had not heard of the Mattachine Society in your deposition

M: Yes, but I’ve studied it since, founded by Harry Hay.

B: Didn’t it play an important role in the 1970s, an area you claim an expertise

M: Well, I’ve learned more….

B: Yes or no

M: No, I’ve learned since.

B: You were not aware of the General Social survey questions about G&L ?

M: No

B: You didn’t know Alan Spear and Elaine GOld

M: No

B: You didn’t know they were the first openly gay and lesbian elected to public service?

M: No

B: You didn’t no about them even though they were elected to public office on the 1970s

M: No

B: Your honor, we object to this witness being qualified as an expert outside of the area of initiatives. He doesn’t even know people and dates in his supposed area of expertise

Walker: well he clearly knows American and CA politics, and part of that is the role of G&L in CA politics. I don’t understand that the DIs are offering him as an expert on discrimination. TO the degree the witness’s testimony spills beyond American and CA politics, I will weigh his testimony based on exam and cross and redirect.

Thompson: Thank you your honor. Demonstrative One

Thompsno: What are the key components of policial ppower?

M: Money, access to lawmakers, size and cohesion, allies….

T: Now about money, is it critical to access to political power.

M: Well look at the Citizens United case iun recent days, the reaction on both sides. MOney allows people to be heard.

T: What does Prop 8 campaign say about G&L success in rasing money?

M: 43 million spent by opponents of Prop8, which exceeded what the No on 8 campaign — I mean the Yes on 8 campaign.

T: How many groups have raised more than 43 million dollars?

M: No other social issues, but Indian gaming and regulatory issues have exceeded it.

T: What is the significance of access to lawmakers?

M: Important resources for any minority group. Powerful lawmakers have sscarce time, have to decide who to give time to. Demonstrates the group has some form of political power, raises their visibility if they can access the lawmakers. Access is importnat in that it gives a group ability to influnece the lawmakers, via persuasion. Fourth, it facilitates coalition bulding through the lawmakers; networks and coalition.

T: How would that work?

M: If lawmaker sympathic, he might say, "You should probably also talk to…." Help them build a sympathetic coalition, meetings intriductions.

T: How does the size and cohesion of a group affect its power?

M: Well, size, if you are close to a majority, you may be successful. But if fractured, may not succeed, so cohesion is also important.

T: Don’t coalitions become important if they are a small minority group?

M: Yes…..

T: Which groups are allied with G&L?

M: Democratic party, CA and US. Also, elected officials at all levels of government, WH all the way down to local and state. Also, organized labor. I was struck by org labors’ involvement on same sex marriage. Another: corporations allied with LGBT rights movement. Fifth ally: newspapers, I’ve studied CA newspapers andnational papers, they are important allies in the LGBT rights movement. ANother: Celebrities can garner media attention and positive models fore the group Another: faith based and religious organizations. They can mobilize volunteers in a campaign. Finally, professional associations (doctors, physicians)

T: Let’s look at those one at a time. How powerful is the Democratic party in CA today?

M: As part of nmy work on my book, I traced how 1980s 50/50 situation was comparable power, now the Dems are the dominant party. Voter registration from SecState’s office: Dems 45%, GOP 31%. Balance small parties or decline to state. Major gap.

M: Second measure, elected officials: 49 Dems to 29 GOP, 1 Indep, 1 open State Assembly. In Senate: 25 Democrats 15 GOP. No 2/3rds quite yet, but except for budget and taxes the Democrats can do whast they eants.

M: Third measure: 5 of 8 constitutional offices are Democrats; 34 of 43 House seats are Democrats. Both US Senators are Democrats; 60% for Obama. Largest popular vote in CA since FDR 1936.

T: Does the Democratic party support the goals of LGBT rights?

M: YEs, platform "take pride and celebrate our diversity…." Also support all aspects of equality. Supported the defeat and, now, repeal of Prop 8. (reads resolution supporting repeal of Prop 8)

T: Elected officials — are they G&L allies

M: Governor is an ally: supported LGBT community, supported and signed bills, opposed FMA, opposed Prop 8, refused to defend Prop 8 in this very litigation

T: Who controls access to the governor?

M: Chief of staff

T: Who is that?

M: Susan Kennedy
T: Ally of LGBT community?

M: Openly lesbian person and a strong advocate in public pronouncements as well.

T: most recent Lt Gov?

M: John Garamendi now a member of Congress, as legislator opposed prop 8.

T: Attorney General Jerry Brown

M: FOrmer governor and potential future governor, EQCA has recognized the AG’s support for its work. Greg [sic, exhibit also wrong, s/b Geoff] Kors the head of EQCA (reads statemetn in support of Brown)

T: Sec STate DEbra Bowen?

M: Notable ally, 2007 letter recognizes Pride month, wrote a letter, "have stood with you are evry turn"

T: What level of support has the Treasurer shown to G&L

M: Lockyer, strong ally, in 2003 endorsed DP law, opposed Prop 8, donated to the No campaign. When running for Treas, EQCA Greg Kors [exhibit and witness still not claling him Geoff] issued strong statement.

T: Controller

M: Committed to rights of same sex couples….

OBJECTION: He’s just reading the demonstratives

Thompson: Happy to refer to documents, but we’re making great progress here.

Walker: I do not want to hinder your progress

THompson: Superindent of Public Onstiruction O’Connell?

M: Appeared in an ad.

Thompson: CA legislature?

M: Strong support, particularly among Dems

T: What state had the first LGBT Caucus among its legislators?

M: CA, there have been eight altogether

T: Local elected officials?

M: Newsom nationally recognized advocate. 2nd largest city in America is LA, Villaraigosa gave $25,000 to No on Prop 8; Also Jerry Sanders.

T: Local governments?

M: Many — lists cities, towns that have recognized LGBT rights.

T: Federal representatives are allies?

M: Many federal elected officials, two US Senators Boxer and Feinstein, Nancy Pelosi: all support and are allies of LGBT community.

T: Describe the relationship between LGBT movement and organized labor.

M: Striking coalesce over ballot measures, {demonstrative lists "every major labor organization" [Teddy notes no prison guards listed]}

T: What has that support entailed?

M: Lots of money: SEIU $500,000, others

T: Newspapers?

M: Expert report looked at the 23 largest papers in CA; 21/23 endorsed the NO on 8 position. The remaining two took no position. No paper took the YES position. (Lists LATimes, SFCHron, SJMN, and smaller papers as well.

T: Corporations’ relationship to political goals of G&L?

M: Striking development over the last decade or more. Not only in their employment practices but also in their engagement in the public sphere. Reports by the HRC show extensive analysis of practices; 2010 survey looked at corps. Supportive? 305 achieved a 100% rating [what does that say about the survey, really? — teddy, smelling veal]

M: Many corps "stepped forward in unprecedented ways to support marriage equality."

T: What did corps do? How did Google engage?

M: Don’t typlically take positions; cofounder Sergey Brin urged a NO vote.

T: What about Silicon Valley employers?

M: Other major players, Yahoo, Cisco, eBay — the leaders formed an organization and came out publicly opposed to Prop 8. Full page ad in SJMnews a week before the election urging a NO vote.

T: How did these words translate into action?

M: Contributions to gay rights organizations; EQCA: ATT, Time Warner, Clear Channel, Southern California Edison, Coors, Bank of America, (reads long list)

T: Entertainment industry?

M: Generally, but not 100%, has been supportive. Some evidence: corps and individuals have made huge donations: Geffen, Ellen, Reiner, Pitt, Bing.


Thompson has one thing regarding the PINK and YELLOW notes from this morning. The PINK now has a page and line number associated with it; we’d like to facilitate the court’s review.

Walker: Any objection?

Boutrous: No, although we’d like to see it.

Walker; Very well, thank you, and we’ll see you at ten minutes after the hour.

Teddy Partridge

Teddy Partridge