Last week, a 9th Circuit panel heard oral argument in Perry v. Hollingsworth, No. 09-17241. Charles Cooper, counsel for Prop. 8 proponents, argued that a First Amendment privilege protects internal campaign communications that Judge Walker had ordered them to disclose to Perry plaintiffs. (See Parenthetical Greg's perceptive summary of the oral argument here.) Among other issues, the 9th Circuit panel considered two separate questions about whether it has jurisdiction to hear the appeal brought by Prop. proponents. Can the panel review an immediate, pre-trial appeal of discovery orders based on proponents' claims of First Amendment privilege, or must proponents wait until entry of a final judgment to make their appeal? Does the First Amendment claim present exceptional circumstances warranting a writ of mandamus by the panel, when ordinarily proponents could not pursue appellate review of the discovery orders until entry of a final judgment?
The U.S. Supreme Court has just issued a ruling that may affect the first of these jurisdictional questions. Here is what Parenthetical Greg has to say about the Mohawk ruling, written by Justice Sotomayor:
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.(Thanks also to Tyler Rosenbaum for his comment on the case.)
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.