Sunday, November 22, 2009

9th Circuit panel grants stay of discovery orders in Perry v. Schwarzenneger

11/20/09 order by 9th Circuit Court in appeal of discovery orders in Perry v. Schwarzenneger

[Thanks to an anonymous reader for alerting me to this development yesterday.]

Among other things, a 9th Circuit Court panel has granted a stay of the October 1st and November 19th discovery orders in Perry v. Schwarzenneger. The discovery dispute concerns whether the official Prop. 8 proponents have a First Amendment right to withhold from plaintiffs their internal campaign communications. These documents could show the nature and extent of the Yes on 8 campaign's intent to target gays and lesbians for discrimination - evidence that would support plaintiffs' claim that Prop. 8 violates equal protection under the 14th Amendment.

Prop. 8 proponents raised the First Amendment issue in their appeal. But on October 20th, the panel ordered them to show cause why their appeal should not be dismissed for lack of jurisdiction. The panel requires parties to file briefing on this narrower, jurisdictional question by 5 p.m. on November 23rd.

Greg Smith was very kind to correct my mistake about the panel's order when I posted it earlier today. Here are some of his perceptive comments:
The panel is obviously proceeding with haste to dispose of the question of whether or not the court can even entertain the appeal. Whether the privilege obtains here will have to wait for a separate round of briefing to come only if the court notes jurisdiction.

Off hand, I suspect that the panel's interest has more to do with an appellant who's clogging up the docket with repetitive interlocutory appeals. But, Friday's order could signify some interest in the underlying claim. We should know before the week is out.


Anonymous said...

Wow. Wardlaw & Berzon: there's a great panel (not that Fischer is a slouch).

To bad the Perry plaintiffs couldn't hang onto that panel for appeal of the final judment.

Anonymous said...

Ninth Circuit has today ordered an oral argument over the pending emergency motion for stay of the discovery orders in Perry case.

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