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.

Cole v. Arkansas: Judge rules that it's unconstitutional for Arkansas to ban adoption and foster-care by unmarried couples

In Cole v. Arkansas, plaintiffs challenged the constitutionality of an Arkansas statute that bans adoption and foster-care by unmarried couples. The judge in the case has just ruled that the law "infringes upon the fundamental right to privacy guaranteed to all citizens of Arkansas." (Arkansas News Bureau) JURIST links to the ruling and reports on the litigation that led to it.

President Obama's memorandum on increased patient rights to designate hospital visitators and medical powers of attorney

In a memorandum, President Obama has directed the Department of Health and Human Services to draft rules allowing hospital patents to designate visitors, and to afford the visitors at least the same level of access as immediate family members. The rules would apply to all hospitals that participate in Medicare or Medicaid. Members of LGBT families would be among designated visitors guaranteed equal protection of visitation privileges. The rules would also require the hospitals to have policies for honoring patient designation of medical powers of attorney when patients are, or become, incapacitated. (NY Times / LA Times / Washington Post / LGBT POV)

Law professor John Culhane has a predictably perceptive insight on what President Obama has accomplished. Having argued over a decade for marriage equality, he understands that marriage equality would do much more to remedy problems of discrimination against same-sex couples. But "read the Memorandum closely," he urges, "and you’ll see that the requested change goes far beyond marriage equality: The idea is to allow people to designate the person of their choice (either “on the spot” or through advance directives) to visit them in the hospital ... That respect for individual autonomy and decision-making in the most challenging circumstances is the great accomplishment of this Memorandum, and it shouldn’t go unacknowledged." (WordinEdgewise)

Mainstream media have represented the LGBT community as divided on the importance of Obama's memorandum. (Washington Post) The news has had a welcome reception among several advocacy organizations, including GLAAD, Lamda Legal, the National Gay and Lesbian Task Force, and the Human Rights Campaign. HRC Vice President David Smith called the development "a huge deal." (NY Times) This view has support in the tragic circumstances of an LGBT family that led to a lawsuit filed by Lamda Legal and an apology by President Obama. (The Miami Herald reports on what happened to that family and the subsequent lawsuit.)

While praising the decision, other advocates of marriage equality reserve criticism about what it falls short of. "[T]he dynamic leaves" Andrew Sullivan "queasy." (Daily Dish) Marriage Equality New York asks its supporters to share their appreciation with the President, but to also let him know "that we expect more from the White House on marriage equality." (MENY Marriage News) "It's not full equality, but it's something," says Maia Spotts of GayRightsChange.org. "[D]oes HRC really think this is a huge deal," asks blogger John Aravosis, "or are they simply, yet again, working for the President rather than working for the community?"

The memorandum already has opponents. Peter Sprigg, a senior fellow for policy studies at Family Research Council, questions the President's political motivations, even though he does not reject the proposed benefits for LGBT families. (Washington Post) Pretending to separate intent from outcome, Sprigg said that the memorandum must be taken in its "political context." In that context, he claims, it "clearly constitutes pandering to a radical special interest group. The memorandum undermines the definition of marriage, and furthers a big-government federal takeover of even the smallest details of the nation's healthcare system." (LA Times)

Recent news and commentary

DOMA

As Americans face today's deadline to file their taxes, advocates of equality for same-sex couples describe the burdens of tax discrimination arising from federal and state DOMAs. (HRC Back Story / Commentary by Evan Wolfson / Gay & Lesbian Advocates & Defenders)

As a result of the federal DOMA, it is clear "that the Social Security system is unfair to same-sex couples," says Michael McGough, of the LA Times, in his post on a proposal of legislation to remedy the unfairness. (Opinion L.A.)

Developments abroad

On April 14th, Italy's Constitutional Court rejected a challenge to the constitutionality of the country's ban on same-sex marriage. (JURIST / Bloomberg News)

In Argentina, a family court judge has "determined that what was the first ever same-sex marriage in all of Latin America is 'non-existent" under the constitution and has, in fact, annulled it ... That leaves Martin Canevaro and Carlos Alvarez and Norman Castillo and Ramona Arevalo as the only two same-sex couples in Argentina with unrevoked marriage equality rulings." (Blalbbeando)

New challenge to federal DOMA filed in U.S. District Court in San Francisco

Dragovich v. U.S. Dept. Treasury, complaint, No. 10-cv-01564 (N.D.Cal. Apr. 13, 2010)

(I owe a special thanks to site collaborator and California attorney Rick Xiao for alerting me to the filing and forwarding it.)

Yesterday, California public employees and their same-sex spouses brought a class action lawsuit against the IRS and the California Public Employees Retirement System (CalPERS). Under state and federal laws, state employees can not enroll their same-sex spouses and domestic partners in the CalPERS Long Term Care (LTC) program. Plaintiff couples want the U.S. District Court to declare that the laws are unconsitutional, and they want to bar the state government from continuing its exclusion of all other same-sex couples in the same situation.

Section 3 of the federal DOMA (codified at 1 U.S.C. § 7) limits federal definitions of "marriage" and "spouse" to the " legal union between one man and one woman as husband and wife." Under the Internal Revenue Code (26 U.S.C. §7702B(f)1-2), state government employers may qualify for tax-sheltered treatment of their long term care programs. But "qualified" plans must adhere to the federal definition of spouses. To retain LTC's federally tax-sheltered status, CalPERS by law (Cal. Fam. Code §297.5(g)) follows the federal definition and excludes same-sex spouses and domestic partners of state employees. Because the applicable state and federal laws conform to this federal definition, state employees can not enroll their same-sex spouses and domestic partners in the CalPERS Long Term Care (LTC) program. As a result, their employer deprives these couples access to a vital benefit that protects them and the public interest. Plaintiff couples seek a declaration that the federal and state laws at issue violate due process to excluded couples under the 5th and 14th Amendments, and equal protection under the 14th Amendment. They also seek injunctive relief.

Dragovich v. U.S. Dept. Treasury now joins several other prominent legal challenges (here and here) to the federal DOMA. AP covers the case here.

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.

Recent news and commentary

Constitutional amendments

Maryland Delegate Don Dwyer "tried to attach an amendment prohibiting same-sex marriages onto a bill that would increase marriage license fees in Baltimore city." Dwyer recently failed in his attempt to impeach state Attorney General Doug Gansler for issuing an opinion upholding state recognition of out-of-state, same-sex marriages." (Baltimore Sun, cross-posted by ADF Alliance Alert) Dwyer has a history of generating controversy. He wanted to impeach Judge Brooke Murdock after she ruled Maryland's ban on same-sex marriage was unconstitutional."

Federal DOMA

"Rep. Linda T. Sanchez (D-Lakewood), who is a member of the House Subcommittee on Social Security, announced that she would sponsor legislation to provide equal Social Security benefits for same-sex couples." (LA Times AP, HRC Back Story, and Los Angeles Gay and Lesbian Center)

Same-sex couples married in Vermont can expect to face an additional burden when filing their taxes. "The complication adds about two or three more hours to file a tax return, compared to a heterosexual couple’s return - and at least $200 more to the bill if an accountant is hired," said Richard Wolfish, a partner and certified public accountant at Gallagher Flynn and Co. in Burlington. (Burlington Free Press)

Developments abroad

Iceland may become the next country to enact a marriage equality law. (Gay Rights Change.org and Straight Talk on Marriage)

"Mexico City’s mayor says he will defend the capital’s gay-marriage law and insists the ordinance will take effect in March despite an appeal by federal prosecutors." (AP, cross-posted by Gay Marriage Watch)

"The Portuguese Constitutional Court has given its approval to a measure that will make same-sex marriage legal and would come into effect just ahead of a visit to the Portugal by Pope Benedict XVI." (Lez Get Real)

Related News

Restore Equality 2010 has failed to meet a required deadline to collect at least 700,000 petition signatures for an initiative that would repeal Prop. 8. (LGBT POV) "In the end, it turns out that we probably were a little smarter than those folks who decided to sit out," said Sean Bohac, San Diego coordinator for Restore Equality. "The polls that have been released lately indicate that the next time we go to the ballot, we’re going to repeal Prop. 8." (San Diego Union-Tribune)

"Marriage on Trial: Should the law limit marriage to a union between a man and a woman?" will be debated (on April 13th) at Providence College's '64 Hall at the Slavin Center. The debaters are constitutional law scholars Gerard V. Bradley and William Eskridge. (The Providence Journal) (04/21/10: BostonEdge reports on the debate.)

Maggie Gallagher, president of the National Organization for Marriage, "spoke to a full house at Franciscan University of Steubenville, [Ohio,] April 6, 2010, on "The Future of Marriage: Why (and How) Christians Must Engage the Same-Sex Marriage Debate."(press release, Franciscan University of Steubenville) Here is the audio recording.