Famed attorneys Ted Olson and David Boies will not be in a San Francisco courtroom Monday when attorneys in the landmark Proposition 8 case square off once again.
This time, the fight is over a motion to vacate the ruling August 2010 by federal district court Judge Vaughn Walker, and over whether Walker must leave videotapes of the trial sequestered permanently with the court.
Olson said in a telephone conference with reporters Friday, June 10, that he is needed on a hearing in a 2nd Circuit U.S. Court of Appeals case concerning copyrights and can’t make it to San Francisco for the June 13 hearing.
Arguing both issues for the Olson-Boies team will be another of its star attorneys, Theodore Boutrous, of Olson’s law firm. Boutrous, who was on Friday’s phone conference, said the Yes on 8 motion to vacate Walker’s ruling –over the fact that Walker has been in a relationship for 10 years with a man—is a “desperate play” and a “publicity stunt.” But he said, nonetheless, that he was not surprised Chief Judge James Ware decided to give Yes on 8 attorneys a chance to argue their motion in court.
Boutrous said he believes Yes on 8 attorneys “knew from the very beginning” of the Proposition 8 trial in January 2010 that Walker was gay.
“This was no secret,” said Boutrous.
Asked whether the Olson-Boies team knew Walker was gay, Olson said, “We heard what people thought.” But Olson said his legal team “uniformly agreed” that Walker was an experienced, highly respected judge, “and we were entirely comfortable” with the expectation of a fair hearing.
Asked whether they anticipated the possibility Yes on 8 might argue that Walker had something to gain from ruling against Proposition 8, Olson said, “Everyone in California would have something to gain by getting rid of Proposition 8.”
“It would set a dangerous precedent,” continued Olson, if judges were expected to reveal information about their personal relationships in taking on cases.
“What if a judge is a Mormon? Or had son or daughter who was gay?” asked Olson. “There are an unlimited number of permutations of what could be disclosed.”
Boutrous said there is a possibility Ware will choose to issue a ruling on the motions in court, following argument.
The hearing begins at 9 a.m. PDT time Monday, June 13.