Opening briefs filed in 9th Circuit Court appeal of Perry discovery order

Perry v. Schwarzenneger, opening brief by appellants Equality California et al., No. 10-15649 (9th Cir. Apr. 9, 2010)

Perry v. Schwarzenneger, opening brief by appellees Prop. 8 proponents, No. 10-15649 (9th Cir. Apr. 9, 2010)

Perry v. Schwarzenneger, plaintiffs-appellees brief, No. 10-15649 (9th Cir. Apr. 9, 2010)

In March, Judge Vaughn Walker upheld a discovery order in the Perry case that requires California Equality, the ACLU, and other "No on 8" organizations to provide Prop. 8 proponents certain types of campaign communications, even though the organizations are not parties in the case. These groups appealed Walker's ruling to the 9th Circuit, alleging that it violates their First Amendment protection of political speech and participation. In Perry v. Schwarzenegger, 591 F.3d 1147 (9th Cir. 2010), a 9th Circuit panel overturned a discovery order that would have required Prop. 8 proponents to disclose internal campaign communications, other than those by "rank-and-file" members. The same panel has been assigned to this latest appeal, and ordered parties to file briefs by April 9th.

In their opening brief, appellants argue that the Court has "finality" jurisdiction to review their appeal now rather than wait for them to appeal it later, after Judge Walker effectively resolves the question of "finality" jurisdiction by citing them for violating the recent discovery order. Appellants also argue that, under Perry v. Schwarzenegger, 591 F.3d 1147 (9th Cir. 2010) and another precedent, the Court has mandamus jurisdiction because Judge Walker clearly erred when he sustained the discovery order: they allege that the required document production violates the First Amendment right of their members, and would chill political speech in future campaigns. "To cite but one obvious example, the district court’s holding that there is no constitutional protection at all for [private] communications between individuals working for different groups as part of a common and coordinated effort to achieve a particular political result is, we suggest, both wholly indefensible and vast in its implications for the conduct of future elections."

In their opening brief, Prop. 8 proponents seek clarification of a footnote in the panel's ruling on the scope of First Amendment protection from compelled disclosure of political speech and association. Footnote 12 states, in relevant part, that the panel's "holding [on the First Amendment privilege] is ... limited to communications among the core group of persons engaged in the formulation of campaign strategy and messages." Id. at 1165 n.12. Does this holding apply to individuals who formulated campaign strategy and messages, regardless of their status or importance to the campaign, and thus regardless of their membership in a "core" group? Proponents claim that it must under First Amendment jurisprudence:

"The First Amendment creates no castes. Its protection is not doled out based on some perceived rank within a political campaign or organization. Instead, the First Amendment protects the rank-and-file campaign volunteer no less than the campaign manager, the reticent or fleeting speaker no less than the campaign press secretary, the individual on a soapbox no less than the campaign executive committee."

Proponents have also filed a petition in the Supreme Court to test their interpretation of the holding in footnote 12. In their Supreme Court petition, they contend that footnote 12's "'core group' limitation runs afoul of the First Amendment." (at 12) The Supreme Court case is Hollingsworth v. Perry, No. 09-1210) Proponents asked the Supreme Court to hold the petition pending the outcome of the case brought by Equality California, ACLU, and other No on 8 groups.

If the 9th Circuit holding extends First Amendment protection to any individual who formulated campaign strategy and messages, then it bars the very "types of [private] documents and information that the district court has ordered both Proponents and Petitioners to disclose - confidential political speech shared among associates in a campaign" - whether or not they belong to a "core" group. Otherwise, Judge Walker has not clearly erred with respect to discovery orders in the case, and appellants must defer their appeal until Walker cites them for violating the latest discovery order.

Not surprisingly, the Perry plaintiffs do not want this appeal to succeed. They argue that Judges Walker and Spero have carefully followed the panel Court's instruction on First Amendment privilege when Spero crafted the latest discovery order. The Perry plaintiffs contend that the panel does not have jurisdiction to review the First Amendment claims of California Equality and the ACLU.