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Monday, October 18, 2010 CV 04-8425-VAP

1

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

EASTERN DIVISION

- - -

HONORABLE VIRGINIA A. PHILLIPS, JUDGE PRESIDING

- - -

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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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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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

2:04-cv-08425 #286

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