2:13-cv-05090 #140 - Transcript Mar 14 2014

Case 2:13-cv-05090-MLCF-ALC Document 140 Filed 09/23/14 Page 1 of 21
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
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JONATHAN P. ROBICHEAUX, et al.
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versus
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JAMES D. CALDWELL, et al.
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For the Plaintiffs:
Stone Pigman Walther Wittmann, LLC

BY: DALTON COURSON, ESQ.
LESLI D. HARRIS, ESQ.
546 Carondelet Street
New Orleans, Louisiana 70130
For the Plaintiffs:
SCOTT J. SPIVEY, ESQ.

815 Dauphine Street, Suite D
For the Defendants:
Duncan, PLLC
BY: KYLE DUNCAN, ESQ.
1629 K Street NW, Suite 300
Washington, D.C. 20006
Official Court Reporter:
Toni Doyle Tusa, CCR, FCRR

500 Poydras Street, Room B 406
(504) 589 7778
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March 14, 2014
Appearances:
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Section F
STATUS CONFERENCE BEFORE THE

HONORABLE MARTIN L.C. FELDMAN
UNITED STATES DISTRICT JUDGE
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Docket 13 CV 5090
c/w 14 CV 0097
14 CV 0327
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Proceedings recorded by mechanical stenography using

computer aided transcription software.
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PROCEEDINGS IN CHAMBERS
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(March 14, 2014)
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know you're good lawyers.
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of national interest and import, maybe international, so there
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are a couple of disclosures that I have to make that I do not
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think warrant recusal, but if somebody has a good, convincing
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reason
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to recuse myself, I will certainly give it every professional
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have been my personal lawyers.
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lawyer.
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30 years, but about 30 years ago Phil represented me in a very
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controversial real estate dispute and he did it successfully on
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my behalf.
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Stone Pigman handled my parents' estate.
I just want you all
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to know that.
So I just want that
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out there.
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never been an issue.
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somebody feels uncomfortable about it, I want everybody to
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know.
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THE COURT:
First, I want to welcome all of you.
This is a very, very serious issue
and you don't have to decide right now
to ask me
consideration.
The first disclosure is for years Stone Pigman
Phil Wittmann is my personal
Fortunately, I haven't needed Stone Pigman in about
That was about 30 years ago.

About, I don't know, 1989, I think it was,
Stone Pigman has my will.
Stone Pigman has appeared before me often.
It's
I don't consider it an issue, but if
Secondly, again about 30 years ago, 30 plus

years ago now, I guess, I was a limited partner in a real
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estate development with Henry Lambert and Carey Bond called
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Upperline Apartments.
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Upperline near Prytania.
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partners.
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guy called Howard Barnett, who is now dead, who was my partner
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in Cox Communications, introduced me to Henry and Carey and I
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invested successfully in a limited partnership called Upperline
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Apartments.
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interest back to them.
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whether Howard Barnett bought it, I don't remember, but I sold
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it back.
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virtue of being a limited partner.
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seen Henry or Carey maybe once in the last 30 years, but I just
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want everybody to know that many, many years ago, before I was
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a judge, I was an investor in one of their ventures.
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all have gotten together and kind of suggested case management
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deadlines and stuff.
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several reasons which I will go over with you, but I do have
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some questions.
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page limits.
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need to say.
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We bought the old public school on

Henry and Carey were the general
I forget who all the limited partners were, but a
Before I got appointed to the bench, I sold my

I forget whether they bought it or
I did get over the years some income tax credits by

Again, I don't think I have
So much for the public disclosures.
I know you
I'm going to begin anew with that for
I'm not going to permit briefs in excess of the

Y'all are good lawyers.
You can say what you
By the way, I haven't read any of these other
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cases that have been decided.
I understand the Virginia judge
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has been criticized because she confused the Declaration of
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Independence with the Constitution.
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that's true or not.
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want to keep an open mind, and I don't want to read the cases
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until I have considered everything else.
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quite deeply.
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want briefs exceeding the page limits.
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between the cases.
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Mr. Spivey's plaintiffs are seeking marriage licenses.
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there are some
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MR. DUNCAN:
Is that correct, Scott?
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MR. SPIVEY:
Yes.
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believe it was, we have added two plaintiffs that are
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seeking
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denied, and so we are seeking the injunction
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MR. DUNCAN:
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THE COURT:
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I don't know whether
I haven't read any of the cases because I
I have read Windsor.
I have studied Windsor
I do want you all to know that.
Now, we have three cases.

them?
And I don't
Should we consolidate
I don't have any feel for that.

MR. COURSON:
Well, Judge, there are some differences
Our case is a recognition case.

So
The amendment as of January, I
they applied for marriage in Orleans Parish and were
THE COURT:
Which would answer the jurisdiction
question that I raised in the earlier
on that.
Okay.
Well, I will do whatever y'all want to do
I don't have any feel for that at all.
It might
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confuse things if we don't consolidate them.
I haven't wrapped
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my arms around that because I don't know.
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and fairer if there was just one opinion for all the cases.
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What I'm going to do is ultimately send you around with Charles
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to come up with a case management order, so you can try to
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resolve it among yourselves.
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that.
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efficient in getting these cases resolved, if they should be
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resolved now.
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should we perhaps or at least have a schedule that's compatible
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with the Tenth Circuit case and the Fifth Circuit Texas case?
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The Tenth Circuit case, I believe, is being argued March 21.
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THE COURT:
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MR. DUNCAN:
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expedited in the Fourth Circuit.
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Fifth Circuit in the Texas case.
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MR. DUNCAN:
It might be clearer
I haven't formed an opinion about
It's more of a question of concern to me about being
That brings up the next issue, and that is
MR. DUNCAN:
April 10 for the Utah case, April 17 for
the Oklahoma case in the Tenth Circuit, Judge.

THE COURT:
So there are two cases in the Tenth
Circuit.
MR. DUNCAN:
Two cases in the Tenth Circuit.
They
are being heard by the same panel one week apart.
THE COURT:
Okay.
Also, Judge, the Virginia case has been
I know there's been an appeal to the
The Fifth Circuit appeal was lodged, I
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want to say, March 1.
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THE COURT:
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MR. DUNCAN:
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THE COURT:
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MR. DUNCAN:
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THE COURT:
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schedule that's compatible with getting something from a court
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of appeal that might be helpful.
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MR. DUNCAN:
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Texas case does present issues that overlap with these cases.
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However, my clients strongly feel that Louisiana has its own
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constitution and its own complex of laws, its own legal
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traditions, and those need to be litigated on its own merits.
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We certainly don't want to see Texas litigating Louisiana's
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case for us.
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just told us that, and when you do read them I think what you
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will see is that these district court opinions that are coming
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rather rapidly around the country are all based more or less on
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the same reasoning.
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Louisiana, quite simply, wants your view on it, Judge.
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than waiting to see what the Fifth Circuit does, I think the
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Fifth Circuit would be helped by having your view on it.
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Yes, recently.
No record on appeal yet from the Western
District of Texas, no briefing schedule yet.

San Antonio.
That's right.
Tell me why we shouldn't at least have a
Judge, here's our view on that.
The
I know you haven't read the cases because you
THE COURT:
They are all going the same direction.

Rather
I don't know many judges on the
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Fifth Circuit who have ever admitted that.
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of them do definitely feel that way, but I know at least three
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who wouldn't admit that.
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whether you agree with the state's arguments or not.
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wants to stand on its own bottom here, and I think that
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to what you just said.
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the sex registration law not long ago.
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briefing quite tenuous at best, almost unprofessional.
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you have a good reputation.
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MR. DUNCAN:
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THE COURT:
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your superiors that I'm going to be expecting some good stuff
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from the state, which I don't usually get.
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MR. DUNCAN:
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THE COURT:
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from 2008 to 2012.
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private practice
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THE COURT:
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MR. DUNCAN:
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I have to be quite frank.
MR. DUNCAN:
THE COURT:
I think maybe some
That's
Louisiana
By the way, let me just drop a footnote

I declared unconstitutional portions of
I found the state's
I know
Thank you.
I just think you ought to pass back to
Well, I didn't handle that case, Judge.

I know you didn't.
I know you didn't.
don't want to name in public who did.

MR. DUNCAN:
As you know, I was appellate chief there
I've been in private practice.
Now I'm in
I'm aware of that.

so I'll be handling this case
personally.
THE COURT:
Okay.
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I'll work myself until my eyes bleed to
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THE COURT:
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MR. DUNCAN:
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opportunity to litigate this case before you and not let Texas
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decide it for us.
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recently, Judge, and I'm sure we can all read whatever they
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say, but you're going to go the way that you ought to go.
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MS. HARRIS:
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MR. COURSON:
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MR. DUNCAN:
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maybe we'll get to this in a second.
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that these are legal questions.
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THE COURT:
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MR. DUNCAN:
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are not fact questions.
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about
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MR. DUNCAN:
do the best I can on it.
THE COURT:
Good.
Having said that, Judge, we want the
You don't want to see what the Tenth
Circuit says?
I've been in front of the Tenth Circuit
MR. DUNCAN:
THE COURT:
All right.
Fair enough.
Do you all disagree with any of that?

We don't disagree.
No.
If I could add other thing, Judge, and
We strongly also think
That these are

These are pure legal questions.
These
We are not going to argue to you
at least I don't plan on arguing about the facts.

THE COURT:
I doubt that I will disagree with that.
I'm open to it, but I doubt that I will disagree with that.
MR. DUNCAN:
I don't mean to speak for the
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plaintiffs.
I would expect they know what they are going to
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argue.
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commentary out there.
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carefully.
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legal arguments.
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front of you and hearing what you have to say about it.
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MR. COURSON:
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legal arguments as well, Judge.
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THE COURT:
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MR. COURSON:
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cases.
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of the other cases.
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state is going to use in this case, but certainly if the state
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plans to come forward with some sort of
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THE COURT:
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MR. COURSON:
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THE COURT:
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MR. DUNCAN:
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be happy to talk about that right now in front of you, Judge.
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Whereas I can imagine some narrow use of social science
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literature, I have no intention of making the state's case turn
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on such things
I certainly know what I'm going to argue for the state.

There is no lack of judicial opinion and
Like you, I have studied Windsor
I know what I think about Windsor.
So these are
I just look forward to arguing this case in
I don't disagree.
I believe these are
I guess I will say in the
other cases there has been a lot of

The other district court cases?
Yes, sir, the other district court
There's been a lot of social science evidence in some

I'm not quite sure what justifications the
Studies.
studies, I want an opportunity to
respond to those.
Sure.
That's a great point.
I certainly would
and I'll be very frank about it
because my
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position is going to be that federal judges don't have the
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authority to weigh social science evidence, with all due
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respect.
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have made that observation too, and I know some who have gone
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the other way.
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a social scientist.
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is not.
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THE COURT:
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MR. DUNCAN:
Right.
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MR. SPIVEY:
Yes, you do, Judge.
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MR. DUNCAN:
I can tell you, without revealing too
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much, our primary argument is going to be based on Windsor and
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it's going to be based on a federalism argument.
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possibility that we might refer
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THE COURT:
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MR. DUNCAN:
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THE COURT:
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grown up here.
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been around for a while.
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begins and ends with Windsor and some other Fifth Circuit
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precedents like the case that I handled for the state back in
I know some Supreme Court justices who
THE COURT:
MR. DUNCAN:
Believe me, I'm aware of that.
I know some.
You are not.
I'm not
Judge Feldman
Oh, federal judges know everything.

And my position
There is a
And their argument is going to be based
on Windsor and it's going to be based on a federalism argument.

That's right.
I'm not making light of it.
We are all
Lesli has even dated Kevin Costner, so she has
MR. DUNCAN:
As far as I'm concerned, this case
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'12.
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want to disadvantage the other side by just having your side of
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what you think Windsor is.
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Scalia wrote a blistering dissent in Windsor, as the
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New Orleans Advocate pointed out, I'm going to decide this case
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and not my buddy, and he is my best friend.
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a concern.
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this turn into a battle of social science experts because I
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think that's inappropriate.
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you all to do it and present me with a reasonable and a
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professional schedule that gives each side adequate time to
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prepare briefs and prepare arguments, to respond within the
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page limits again.
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point you both make.
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going to insist on the following:
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hearing, anyone from anywhere in this country
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world, for that matter
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going to permit to do so because I do want to have the benefit
THE COURT:
We don't need to go into it.
I don't
Like I said, even though Justice
His dissent is not the law, of course,
MR. DUNCAN:
so I don't plan on citing it.
Social science, I think that is
Frankly, from my point of view, I don't want to see
THE COURT:
Unless you want to respond, that gets to
my next point.
Whatever case management schedule
and I trust
Charles already knows this, and this is to the

Whatever schedule you come up with, I am
45 days before motion
or around the
who want to submit amicus briefs I'm
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of everything and anything which is responsible and reasonable
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to help me decide these issues.
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MR. DUNCAN:
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before the hearing date will be the deadline for the submission
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of amicus briefs.
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MR. DUNCAN:
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THE COURT:
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your respective sides know that Feldman would like amicus
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briefs.
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amicus brief, I will certainly permit it and consider it.
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MR. DUNCAN:
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THE COURT:
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around the country have done that.
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of them.
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four days before his first opinion came out.
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judge of the multidistrict panel and they had their en banc
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here.
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me because I had mentored Heyburn.
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multidistrict panel.
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before.
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know he had those.
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mentor him back in the '90s.
Just so I can understand, whenever we
decide on a hearing
THE COURT:
Whatever the hearing date is, 45 days
Both sides.
Gotcha.
I have no doubt that both sides will make
Not "would like," but if somebody wants to file an
Just so you know, Judge

I don't know if any of the other judges
I haven't spoken with any
I happened, frankly, to be with John Heyburn about

He is also chief
Judge Vance had a little cocktail party, and she invited

Judge Vance is on the
I was with John just about three or four days

I don't know if he knew I had these cases.
I didn't
We didn't talk about any of that, but I did
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May I ask a question about page limits,
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Judge?
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clearly outnumbered
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What I expect, whatever we decide about consolidation or
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whatever you decide, I'll be getting a summary judgment motion
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from Dalton and I'll be getting a summary judgment motion from
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Scott.
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have 25 and 25?
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If the cases are consolidated, then one brief per side is going
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to be okay.
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cases.
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THE COURT:
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MR. DUNCAN:
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THE COURT:
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see the legal issues, we have equal protection and due process
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sort of joining the two cases.
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Amendment free speech claim.
MR. DUNCAN:
I understand no excess page limits, but since I'm
THE COURT:
You might be outnumbered but not
necessarily outgunned.
MR. DUNCAN:
I don't know.
We will wait and see.
I assume I'll be responding separately to them and I'll
THE COURT:
If the cases aren't consolidated, yes.
I can multitask and can consider issues in both
MR. DUNCAN:
Meaning they will file a consolidated
brief?
Yes, and within the page limit.
Within the 25 pages?
Yes.
If the cases are not consolidated
and you need to make separate responses, you can do so.

MR. DUNCAN:
I'm sure we will talk about that.
As I
Then you have the First
You have got, as I recall, a full
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faith and credit claim.
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10:52
Is that right?
10:52
THE COURT:
10:52
MR. SPIVEY:
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10:52
THE COURT:
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MR. SPIVEY:
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MR. DUNCAN:
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anything beyond that.
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I had the most recent.
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Your Honor.
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There are two different cases.
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MR. DUNCAN:
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THE COURT:
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MR. DUNCAN:
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THE COURT:
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the language of the law.
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and they forget that they are just storytellers and they ought
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to act like they are sitting in their living room telling a
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story to their best friend, not that I want to be anybody's
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best friend.
10:53
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this opinion.
10:53
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Yes, I think so.

I know initially it was.
I don't
think
Now it might not be.
I think the initial complaint was a full
faith and credit.
MR. SPIVEY:
I have this file and I don't have

When did you file the
I just thought
I'll make sure he has everything,
I don't want to waste your time on the record.
I understand they are consolidated.

You might be outnumbered, but you won't
be outgunned.
I like writing short briefs, Judge.
Well, I do too.
I, frankly, don't like
I think lawyers speak above people
I have a best friend, who is not going to write
Anything else?
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MR. DUNCAN:
10:53
(Discussion off the record.)
10:56
THE COURT:
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all to sit with Charles.
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and consider what we have discussed here and then get back with
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Charles, that's fine too.
10:56
step in the process will be.
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MR. DUNCAN:
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THE COURT:
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amicus briefs not later than 45 days before hearing on motions.
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You don't have to come up with that now.
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Charles.
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if you want, and work it out.
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completely flexible.
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and I didn't want anybody to feel at all uncomfortable about my
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friendships.
10:57
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(Proceedings adjourned.)
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MR. DUNCAN:
We'll figure it out.
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That's all.
Just to conclude, I'm going to ask you

Now, if you need to take a few days
I'm just telling you what the next
You expect us to talk to Charles about
consolidation and
THE COURT:
And to present me with a case management
order and schedule

Okay.
for me to approve, which includes
He will give you his number.
You can get back with
Or you can stay here,
It's up to you all.
I'm
I did want to clear the air about media,
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CERTIFICATE
I, Toni Doyle Tusa, CCR, FCRR, Official Court
Reporter for the United States District Court, Eastern District
of Louisiana, certify that the foregoing is a true and correct
transcript, to the best of my ability and understanding, from
the record of proceedings in the above entitled matter.
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s/ Toni Doyle Tusa

Toni Doyle Tusa, CCR, FCRR
Official Court Reporter
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14-31037.2017

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Case 2:13-cv-05090-MLCF-ALC Document 140 Filed 09/23/14 Page 1 of 21

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

JONATHAN P. ROBICHEAUX, et al.

For the Plaintiffs:

Stone Pigman Walther Wittmann, LLC

For the Plaintiffs:

SCOTT J. SPIVEY, ESQ.

For the Defendants:

Official Court Reporter:

Toni Doyle Tusa, CCR, FCRR

March 14, 2014

STATUS CONFERENCE BEFORE THE

Proceedings recorded by mechanical stenography using

Case 2:13-cv-05090-MLCF-ALC Document 140 Filed 09/23/14 Page 2 of 21

(March 14, 2014)

know you're good lawyers.

of national interest and import, maybe international, so there

are a couple of disclosures that I have to make that I do not

think warrant recusal, but if somebody has a good, convincing

to recuse myself, I will certainly give it every professional

have been my personal lawyers.

30 years, but about 30 years ago Phil represented me in a very

controversial real estate dispute and he did it successfully on

Stone Pigman handled my parents' estate.

I just want you all

So I just want that

never been an issue.

somebody feels uncomfortable about it, I want everybody to

First, I want to welcome all of you.

This is a very, very serious issue

and you don't have to decide right now

Fortunately, I haven't needed Stone Pigman in about

That was about 30 years ago.

Stone Pigman has my will.

Stone Pigman has appeared before me often.

I don't consider it an issue, but if

Secondly, again about 30 years ago, 30 plus

Case 2:13-cv-05090-MLCF-ALC Document 140 Filed 09/23/14 Page 3 of 21

estate development with Henry Lambert and Carey Bond called

Upperline near Prytania.

in Cox Communications, introduced me to Henry and Carey and I

invested successfully in a limited partnership called Upperline

interest back to them.

whether Howard Barnett bought it, I don't remember, but I sold

virtue of being a limited partner.

a judge, I was an investor in one of their ventures.

all have gotten together and kind of suggested case management

deadlines and stuff.

several reasons which I will go over with you, but I do have

We bought the old public school on

I forget who all the limited partners were, but a

Before I got appointed to the bench, I sold my

I did get over the years some income tax credits by

So much for the public disclosures.

I'm going to begin anew with that for

I'm not going to permit briefs in excess of the

You can say what you

By the way, I haven't read any of these other

Case 2:13-cv-05090-MLCF-ALC Document 140 Filed 09/23/14 Page 4 of 21

cases that have been decided.

I understand the Virginia judge

has been criticized because she confused the Declaration of

Independence with the Constitution.