Overview
In the ongoing saga of New York State's challenge to the U.S. Census question on citizenship (see our previous coverage here), Judge Furman has rejected the Department of Commerce's 11th hour attempt to delay the trial in the case currently scheduled to begin on November 6. Citing "the defendants' own urgent need for finality," Judge Furman found that the Department of Commerce failed to show any irreparable harm should the trial proceed as planned, noting that they had already "conced[ed], as a procedural matter, that a trial is appropriate" by electing not file a summary judgment motion, at the Court's invitation, which could have argued that the case be decided on the administrative record without a trial.
The U.S. Supreme Court's recent order preventing the deposition of Secretary of Commerce Wilbur Ross loomed large in Judge Furman's decision:
To be sure, the Supreme Court’s October 22, 2018 Order suggests that that Court may rule that this Court erred in its September 21, 2018 Order authorizing a deposition of Secretary Ross. But that prospect alone does not warrant delaying the trial at Defendants’ request. If the Supreme Court vacates this Court’s September 21, 2018 Order before, during, or after trial, it will have no effect on the existing record, which presently lacks Secretary Ross’s deposition testimony. And, however unlikely it may be, if the Supreme Court allows a deposition of Secretary Ross before this Court enters final judgment, the transcript of that deposition can presumably be added to the trial record. In any event, it is Plaintiffs who bear the burden of proof in these cases, and Plaintiffs who seek to secure Secretary Ross’s deposition to meet that burden. Despite that, Plaintiffs are content to take their chances and proceed to trial knowing that, even if the Supreme Court ultimately lifts the stay and allows a deposition of Secretary Ross, it may be too late for them to benefit in these cases. Thus, while the likelihood of success on the merits of Defendants’ challenge to this Court’s September 21, 2018 Order justifies the already existing stay of that Order, it does not justify a stay of trial.