Prop. 8 proponents in Perry case seek order of contempt against California Equality and ACLU over discovery dispute, and aim to expand the dispute

Perry v. Schwarzenneger, Prop. 8 proponents' response to April 13, 2010, order to show cause why record of evidence should not be closed, and motion for contempt, No. 09-cv-2292 (N.D.Cal. Apr. 16, 2010), and exhibits

(I wish to thank a kind reader of this site for forwarding the referenced filings.)

On April 13th, Judge Walker ordered Prop. 8 proponents in the Perry case to show cause why the record of evidence should not be closed, and he set an April 16th deadline for them to do so. In their response, they contend that the Court must keep the record open because No-on-8 groups - including Equality California and the ACLU - failed to produce documents that two discovery orders in March required them to produce.

The orders apply to a category of nonpublic, campaign communications that individuals within Equality California and the ACLU exchanged with coalition partners of the Equality for All Campaign. The only private communications subject to the orders concern formulations of No-on-8 campaign strategy and messaging. The orders further limit document production to private communications that the No-on-8 groups exchanged; it excepts communications internal to each of the organizations.

The No-on-8 groups lost their appeal of the March discovery orders. (Prop. 8 and the Right to Marry) They had claimed that the documents the orders compelled them to disclose were not relevant to identifying or clarifying the intent of voters who approved Prop. 8. At Courage Campaign's Prop. 8 Trial Tracker, Brian Leubitz says that the issue of relevancy has been "the focus" of objections by Equality California and the ACLU. However, the central issue of concern involves the extent to which the First Amendment protects certain campaign communications from compelled disclosure.

In fact, the No-on-8 groups also claimed that Judges Walker and Spero clearly misinterpreted a previous appellate holding on the scope of First Amendment privilege from compelled disclosure. In January, a 9th Circuit panel had held that "the First Amendment privilege is ... limited to [internal, private] communications among the core group of persons engaged in the formulation of campaign strategy and messages." "Perry I," 91 F.3d 1147, 1165 n.12 (9th Cir. 2010). At the time, this holding protected from discovery the internal campaign communications of individuals within a "core group" - the ProtectMarriage / Yes-on-8 campaign of the official Proponents. In his March 5th discovery order, Magistrate Judge Joseph Spero applied the holding to document production in a different context - to a category of campaign communications that Proponents seek from the No-on-8 groups. On March 22nd, Judge Walker sustained Spero's order against objections by the No-on-8 groups, and required them to complete a "rolling production" of the relevant documents by March 31st.

The same 9th Circuit panel in Perry I issued a stay of the March discovery orders until it dismissed the appeal on April 12th. The panel decided that its prior First Amendment holding does not preclude a First Amendment privilege for private communications on campaign strategy and messaging, exchanged among a "core group of associated persons spanning more than one [campaign] entity." "The operative inquiry," the panel said, "is whether they are part of an association subject to First Amendment protection." (italics in the original) Walker and Spero had not clearly erred in this matter because the N0-on-8 groups never provided information to show that it was the function of their organizations to associate in a coalition. Because Walker and Spero had not clearly erred (and for other reasons), the panel concluded that the 9th Circuit Court lacked mandamus jurisdiction to hear the appeal. The No-on-8 groups could not seek relief until they failed to produce the required documents and Judge Walker cited them for contempt.

Proponents now seek an order of contempt against Equality California and the ACLU for their continuing failure to produce documents subject to the March discovery orders. The March 22nd order required Proponents to assess the document production and determine, by April 12th, which documents would be relevant to enter into the case's evidentiary record. Having received no documents, Proponents contend that the evidentiary record must remain open until the No-on-8 groups produce the documents.

Proponents also acknowledge that the No-on-8 groups offered a "compromise proposal" to end the discovery dispute. The groups expressed a willingness to comply with an amended discovery order. What amended order would satisfy them? Judge Walker would have to rule that their exchanged campaign communications qualify for First Amendment protection under the latest guidance of the 9th Circuit panel. Proponents countered, saying that they would accept the compromise proposal, but only if Walker "evenhandedly" applied the guidance to "the Court’s prior discovery and evidentiary rulings with respect to Proponents’ claims of privilege." In other words, Proponents would want Judge Walker to revisit his pre-trial discovery orders, so that the Proponents could exclude from the record of evidence any private campaign communications on strategy or messaging that Proponents exchanged with allied organizations.

As matters now stand, the No-on-8 groups have filed no motion to set out their compromise proposal. If the groups do file that motion, the Perry plaintiffs say that plaintiffs "reserve the right to weigh in with the district court regarding the content of" an amended order." (Exhibit H) Moreover, whatever the groups do, Proponents plan to file a motion asking that Walker revisit his pre-trial discovery orders: "If the No-on-8 Groups do come forward with a motion for further relief, then Proponents will promptly respond so that the issue can be considered in tandem with Proponents’ own forthcoming motion for similar relief consistent with the Ninth Circuit’s further guidance."

So Proponents are using the discovery position of the No-on-8 groups to outmaneuver the plaintiffs on what campaign communications will ultimately remain in the case's record of evidence. Proponents hope to expand the discovery dispute, but I am convinced that they are not simply manufacturing a pretext to delay closing arguments and final judgment by Walker. They defend the idea that the content of private campaign speech, rather "core group" membership, must determine the scope of First Amendment privilege. (Prop. 8 and the Right to Marry) I find their defense not just plausible, but compelling, and they are pursuing it through a U.S. Supreme Court petition now on hold. (Prop. 8 and the Right to Marry) Law professor Nan Hunter faults the petition as "weak," but on grounds that do not convince me. If anyone has followed me this far (!), I would welcome comment on why I am wrong.