Thursday, December 3, 2009

Prop. 8 proponents likely to prevail in their appeal to withhold internal campaign communications from Perry plaintiffs

Perry v. Hollingsworth, No. 09-17241, 12/03/09 order by 9th Circuit panel (Kim M. Wardlaw, Raymond C. Fisher and Marsha S. Berzon) to uphold stay of discovery orders in Perry v. Schwarzenneger

On December 1st, a 9th Circuit panel held oral argument on issues arising from its emergency stay of discovery orders in Perry v. Schwarzenneger. Charles Cooper, representing Prop. 8 proponents, argued that a First Amendment privilege protects them from orders to produce internal campaign communication to the Perry plaintiffs. Although Judge Walker had ordered redaction of names of "rank-and-file" volunteers in the documents, Cooper claimed that this protection would not cure harm to proponents for their political speech, and that it would have a serious "chilling effect" on political speech by organizers of future ballot-measure campaigns.

Today the 9th Circuit panel ruled in favor of the Prop. 8 proponents. The panel upheld the stay:
Appellants’ motion for leave to file an oversized reply is granted. Appellants’ November 23, 2009 reply has been filed. We conclude that appellants have made a strong showing that they are likely to succeed on the merits and that they will be irreparably injured absent a stay. See Nken v. Holder, 129 S. Ct. 1749, 1761 (2009) (citing Hilton v. Braunskill, 481 U.S. 770, 776 (1987)). Moreover, the issuance of a stay will not substantially injure appellees and the public interest weighs in favor of a stay. See id. Therefore, the stay issued on November 20, 2009 shall continue in effect. The briefing schedule established on November 16, 2009 is vacated. We expect to decide the appeals promptly without further briefing. IT IS SO ORDERED.
Thanks to a blogger, identified only as Cicero, for identifying this latest development in the Perry case. I depend on my readers for their timely comments.

12/07/09 update

12/07/09 The Recorder:

Looks like Northern District of California Chief Judge Vaughn Walker is going to suffer his first reversal in the federal challenge to Proposition 8.

The 9th U.S. Circuit Court of Appeals continued a stay of Walker's order forcing the Yes on 8 campaign to turn over internal documents and e-mails to challengers of the measure. In its order, the court said the campaign had made a "strong showing" that it would succeed on the merits of the discovery issue.

Ninth Circuit Judges Kim Wardlaw, Raymond Fisher and Marsha Berzon -- all Clinton appointees -- also indicated that they would make a formal ruling "promptly."

12/04/09 Wall Street Journal Law Blog:
In October, Walker ruled that Boies, Olson et. al were entitled to see see the internal memos and e-mails between Yes on 8 strategists to look for evidence that the campaign had sought to exploit anti-gay bias. Such evidence would strengthen the plaintiffs’ claim that the ballot measure was discriminatory and thus unconstitutional. But the Ninth Circuit put a swift kibosh on that ruling on Thursday. A panel comprised of Clinton appointees Kim Wardlaw, Raymond Fisher and Marsha Berzo ruled that the Proposition 8 sponsors “have made a strong showing that they are likely to succeed in their arguments” that the discussions were constitutionally protected and that an order like Walker’s would discourage candid communications in political campaigns.
12/03/09 SF Chronicle:
(12-03) 17:48 PST SAN FRANCISCO -- A federal judge probably violated the Constitution when he ordered backers of Proposition 8, the initiative that banned same-sex marriage in California, to give their campaign strategy documents to opponents trying to overturn the measure, an appeals court said Thursday.

1 comment:

Parenthetical Greg said...

The panel will now (presumably) have to deal with today's Supreme Court decision in Mohawk Industries v. Carpenter. The court considered and rejected the contention that the attorney client privilege was appropriate for a collateral-order appeal.

The panel hearing the Perry appeal mentioned that this case was dangling over their heads (metaphorically, of course).

Even if they accept that Mohawk should govern (ruling out the appeal), the Ninth Circuit could issue a writ of mandamus in the alternative.

Either way, the panel may end up revisiting their opinion at this point.

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