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Published by: SexualMinorityResear on Mar 26, 2012
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UNITED STATES DISTRICT COURTDISTRICT OF MAINE ____________________________NATIONAL ORGANIZATION FORCIVIL ACTIONMARRIAGE, et al,Docket No: 09-538-B-HPlaintiffs-versus-WALTER F. MCKEE, et al,Defendants ____________________________Transcript of ProceedingsPursuant to notice, the above-entitled matter came onfor
HEARING
held before
THE HONORABLE D. BROCK HORNBY,
 United States District Court Judge, in the UnitedStates District Court, Edward T. Gignoux Courthouse,156 Federal Street, Portland, Maine on the 12th day ofAugust, 2010 at 10:00 AM as follows: Appearances:For the Plaintiff: Randy Elf, EsquireStephen C. Whiting, Esquire For the Defendant: Phyllis Gardiner, EsquireThomas A. Knowlton, EsquireDennis R. FordOfficial Court Reporter(Prepared from manual stenography andcomputer aided transcription)
Case 1:09-cv-00538-DBH Document 197 Filed 09/02/10 Page 1 of 37 PageID #: 3141
 
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(OPEN COURT. PARTIES PRESENT)THE COURT: Good morning. This is civilnumber 09-538, National Organization For Marriage et alversus McKee, et al., and the matter is on this morningfor a consolidated hearing on the motion forpreliminary injunction and trial on the merits of thepart of the lawsuit that deals with candidateelections, namely Counts 5, 6, 7 and 8.You may have deduced from my voice that I pickedup a summer cold, a fairly bad one, and so don't besurprised if I don't ask my normal number of questionsbecause I may not want to provoke a coughing spell, butI do have some preliminary administrative typequestions that I'll lay out for you and you can dealwith them when it's your turn.I take it in light of the agreement between you asto how we should treat the procedural part of thismatter, and also the statement in the plaintiff's briefabout the risk of great confusion by looking at thecase as a whole, that I should probably treat this as aRule 42(b) severance.As you know 42(b) says for convenience, to avoidprejudice or to expedite and economize, the Court mayorder a separate trial of one or more separate issuesclaimed, et cetera, and as I understand it, this is a
Case 1:09-cv-00538-DBH Document 197 Filed 09/02/10 Page 2 of 37 PageID #: 3142
 
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trial on the merits.I expect however I come out, one of you willprobably want to appeal, and given election type timingissues, I'm assuming, therefore, that you would alsowant me to issue a Rule 54(b) judgment directing entryof a final judgment as to one or more but fewer thanall claims within the case on the basis that there isno just reason for delay, and I would like you toaddress that.Then I'm aware, of course, that you have beenmaking certain filings under seal that Judge Rich hasdealt with you about, but you've now stipulated what isthe record for the trial.Trials are ordinarily public proceedings, and somy expectation is that everything that has beenstipulated as part of the record is no longer underseal, and that I need not be concerned in my opinionabout referring to the things that have been stipulatedas part of the record.So you should address that issue as well and thenfinally, just because you might be wondering, the onlyreason that the other case, the Maine Clean Electionslaw case, was reassigned to Judge Singal is that I havelongstanding plans to leave on vacation on Wednesdayand I knew that I could not deal with both cases in a
Case 1:09-cv-00538-DBH Document 197 Filed 09/02/10 Page 3 of 37 PageID #: 3143

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