9th Circuit panel dismisses appeal by California Equality and ACLU of order compelling them to disclose Prop. 8 campaign communications

Filings

Perry v. Schwarzenneger, order of dismissal, No. 10-15649 (9th Cir. Apr. 12, 2010)

Perry v. Schwarzenneger, order to show cause re closing of evidentiary record, No. 09-cv-02292 (N.D.Cal. Apr. 13, 2010)

Hollingsworth v. Perry, petition by Prop. 8 proponents, No. 09-1210 (U.S. Apr. 5, 2010), at 2010 WL 1436438 [04/14/10 update: In her insightful comment on the petition, law professor Nan Hunter includes an extended excerpt.]

(Special thanks to site collaborator Rick Xiao for alerting me to the first two filings.)

Comment

Yesterday a 9th Circuit panel dismissed the appeal of the latest discovery order in the Perry case. California Equality, the ACLU, and other No on 8 groups brought the appeal because they claimed that the order would compel them to disclose private campaign communications protected under the First Amendment. (AP) A key issue in the appeal concerns a prior holding ("footnote 12") by the panel on an appeal by Prop. 8 proponents of a previous discovery order in the case. Perry v. Schwarzenegger, 591 F.3d 1147, 1165 n.12 (9th Cir. 2010) The panel held that "the First Amendment privilege is ... limited to communications among the core group of persons engaged in the formulation of campaign strategy and messages." Appellants and appellees argued that Judges Walker and Spero clearly erred when they interpreted this instruction to mean that the First Amendment privilege does not protect individuals outside the "core group" from compelled disclosure of their campaign communications. Appellants maintained that the judges had not properly examined the function of the privilege - to protect the "associational interests" of individuals who belong to the No on 8 groups, and who formulated campaign strategy and messages.

[04/15/10 update: Brian Leubitz, of Courage Campaign's Prop. 8 Trial Tracker, claims that appellants focus "on relevancy rather than any notion of privilege of free communication within a campaign." Read their brief to see if that's an accurate representation. I don't think that it is.]

Appellees - the Prop. 8 proponents - went even further, questioning not just the application, but the validity of the holding ("the vailidity issue"). They argued that the First Amendment privilege protects individuals not according to their rank or status within campaign associations, but according to the content of their political speech. In yesterday's order of dismissal, the 9th Circuit panel did not reach this question of their prior holding's validity. Instead they clarified the scope of footnote 12's application:

"The operative inquiry is whether [individual members of campaign organizations who formulate campaign strategy and messages] are part of an association subject to First Amendment protection. We did not hold that the privilege cannot apply to a core group of associated persons spanning more than one entity."

Will that clarification satisfy the Prop. 8 proponents? They have reserved the "validity issue" for consideration by the U.S. Supreme Court. (See the referenced petition above, and Hunter's comment that "it's a weak cert petition that the Court will probably deny.")

Finally, notwithstanding these developments, Judge Walker today issued an order to show cause why the evidentiary record in the case should not be closed. Parties in the Perry case have until April 16th to respond. Walker clearly wants to remove another cause of delay to closing arguments and a final judgment.