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April 14, 2010

Appeals aplenty in the Perry case

(revised April 15)

The Ninth Circuit has weighed in on the latest discovery issue in Perry v. Schwarzenegger, rejecting the attempt by the ACLU and Equality California to invalidate an order by Judge Walker directing them to turn over internal documents of the No on 8 campaign. The Ninth Circuit's decision declined to issue a writ of mandamus against Judge Walker, and held that the only mechanism by which the appellate court could have jurisdiction of this question now would be if the two organizations refused to turn over the documents and were held in contempt.  This odd posture is an outgrowth of the principle that discovery orders are not immediately appealable, but citations for contempt are.

It's unclear what the ACLU and Equality CA will do next.  They could seek further review, but they may also be satisfied with the court's clarifying statement that communications about the formulation of campaign strategy and messages should be protected, regardless of whether the exchanges are internal within one organization or between persons in different groups. That was the primary issue with which the ACLU and EQCA were concerned.

There is already one discovery-related cert petition pending in the Supreme Court, 2010 WL 1436438 [No. 09-1210]. It was filed by defenders of Prop 8, who are challenging the order by Judge Walker which directed them to turn over campaign materials. That order was also upheld by the Ninth Circuit, 591 F.3d 1147 (finding mandamus jurisdiction based on the importance and novelty of the question), in an opinion that recognized a privilege for "private, internal campaign communications concerning the formulation of campaign strategy and messages," but limited it to fewer people than the defendants wanted.

Similarly to the Prop 8 opponents, the Prop 8 defenders assert that their First Amendment privacy/associational rights are violated by having to comply with the discovery order. They stated the question presented to the Supreme Court as follows:

In a post-election challenge to a law enacted by ballot initiative, does the First Amendment protect against compelled disclosure, through discovery, of nonpublic campaign speech and associational activities without regard to the speaker's organizational affiliation or role in the campaign?

You can find more excerpts from the cert petition after the jump.  Interestingly, the petition suggests that the Court wait to decide whether to grant cert until it decides Doe v. Reed, which concerns whether privacy rights are implicated by the release of the names of those who signed petitions to put an anti-gay referendum issue on the ballot last November. The Prop 8 defenders have nothing to lose by delay; it's a weak cert petition that the Court will probably deny. Linking it to Doe v. Reed also implicitly communicates to the Court that in both cases, arguments are being built on this new trope of individuals fearing intimidation by lgbt rights advocates.

Meanwhile, Judge Walker has set this Friday, April 16, as the deadline for all parties to show cause why the evidentiary record should not be closed. He clearly wants to move forward with final arguments and a decision, which have been stalled while these discovery issues were being litigated; Prop 8 defenders may ask him to hold the record open until the Supreme Court rules on their cert petition.

From the cert petition filed by defenders of Prop 8:

"...In the opinion below, the Ninth Circuit ruled that the First Amendment protects from compelled disclosure in post-election litigation only those confidential campaign communications between or among what the Ninth Circuit called the “core group of persons engaged in the formulation of campaign strategy and messages.” (emphasis in original). Applying the “core group” ruling on remand, the district court ordered Petitioners - the official proponents of Proposition 8 and the principal campaign organization supporting it - to produce over 12,000 internal emails, meeting minutes, draft ads, and other confidential materials that did not satisfy the district court's interpretation of the “core group” test. Scores of those documents were admitted into evidence at trial, over Petitioners' continuing First Amendment and relevance objections....

"If the Ninth Circuit's unprecedented “core group” limitation on the confidentiality of internal campaign communications is indeed the law, political campaigns in this country will never be the same: every campaign will have to be conducted on the assumption that campaign participants may someday be ordered to produce to their political opponents any and all confidential, internal communications (beyond the relatively few that meet the Ninth Circuit's narrow “core group” test), as occurred in this case. Apart from the deep and obvious chill that such a regime would cast on core First Amendment speech and associational activity, it also threatens to eviscerate the settled First Amendment right to participate in a political campaign anonymously. The ruling below, both on its face and as thus far applied, amply warrants this Court's review....

"The Ninth Circuit ...  has established a regime whereby district courts are empowered to pick and choose which participants in a political campaign enjoy the right to speak and associate freely and privately, and the confidants with whom they may do so. Those who do not qualify as the “core group” of the campaign - and the vast majority, it appears, will not - are subject to compelled disclosure of every private political communication, every uttered opinion, everything said or done in furtherance of a political campaign, at the whim of any political opponent who can muster the filing fee to bring a federal suit challenging the outcome of the election. Indeed, even if an individual qualifies as one of the privileged few whose confidential communications are protected, he or she will lose that protection entirely over any private communication that is addressed to even a single individual who is later determined by a court not to be similarly qualified....

"The Ninth Circuit's “core group” test for determining the scope of the First Amendment privilege against compelled disclosure of political communications and associations cannot be squared with this Court's precedents, which extend the First Amendment's protections to all manner of persons who engage in political association and campaigning. The scope of the privilege is determined by the type of speech and activity at issue, not by the identity of the speaker or the associate in whom he confides...."

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