I’m not a lawyer, so I never knew what “legislative facts” were. But it seems that “legislative facts” are the kind of facts relevant to a trial like the Prop 8 trial. What is the significance of this? People (including Judge Walker) chide the Prop 8 legal defense team for not bringing enough “expert witnesses.” This overlooks the fact that many kinds of evidence count as “legislative facts” and that expert testimony is typically not the major sort of evidence presented as “legislative facts.” Here is Chuck Cooper’s explanation in the “Motion for Stay Pending Appeal.” If I’m misunderstanding legislative facts, I hope some of our lawyer peeps will straighten me out.
To read the district court’s confident though often startling factual pronouncements, one would think that reasonable minds simply cannot differ on the key legislative facts implicated by this case. However, the district court simply ignored virtually everything—judicial authority, the works of eminent scholars past and present in all relevant academic fields, extensive documentary and historical evidence, and even simply common sense—opposed to its conclusions. Indeed, even though this case implicates quintessential legislative facts—ie “general facts which help the tribunal decide questions of law and policy and discretion,” (citation omitted) the district court focused almost exclusively on the oral testimony presented at trial. (Citation omitted (legislative facts “usually are not proved through trial evidence by rather by material set forth in the briefs”); (citation omitted) (legislative facts “more often are facts reported in books and other documents not prepared specially for litigation”).
This means we need not be alarmed that our side didn’t present lots of witnesses, as they were not really necessary for the type of trial that the Prop 8 trial was supposed to be.
Unless that, is, you think it was supposed to be a show trial, purely for public relations purposes.