Discovery Dispute May Delay Trial in Prop 8 Case

A dispute about a discovery demand in the pending federal lawsuit challenging the constitutionality of California Proposition 8 may delay the trial in the case, which has been scheduled to begin in January. The attorneys for the Proposition 8 Official Proponents are asking U.S. District Judge Vaughn R. Walker to stay discovery while they ask the U.S. Court of Appeals for the 9^th Circuit to reverse Walker’s October 1 ruling that they have no First Amendment right to refuse to turn over internal communications from the Proposition 8 referendum campaign.

The lawsuit, Perry v. Schwarzenegger, was filed last spring by star appellate attorneys Ted Olson and David Boies on behalf of two California same-sex couples who want to marry in their state of residence but cannot do so as a result of the passage of Proposition 8 in November 2008. Proposition 8 placed into the California Constitution a new section stating that only a marriage between one man and one woman will be "valid or recognized in California." Its enactment put an end to new same-sex marriages in California, although the state Supreme Court ruled that marriages contracted prior to that enactment remained valid. Gay political groups in California are divided over whether to seek repeal of Prop 8 by initiative in 2010 or 2012, but one group has filed papers seeking a 2010 initiative.

The original named defendants in the lawsuit include Governor Arnold Schwarzenegger and Attorney General Gerry Brown in their official capacities as state officers, but since both of those officials declined to defend the constitutionality of the measure (and Brown actually argued before the California Supreme Court that it was unconstitutional), Judge Walker allowed the Proposition 8 Official Proponents to intervene as parties in the case to defend Proposition 8.

The theory of the lawsuit is that Proposition 8 violates the Equal Protection Clause of the 14^th Amendment of the U.S. Constitution because it was intended to and did adopt a discriminatory policy about access to marriage in California. During the discovery phase of the case, the plaintiffs are seeking to uncover evidence supporting their argument that Proposition 8 had a discriminatory purpose. Among their discovery requests to the Proposition 8 Proponents is a demand for "all versions of any documents that constitute communicating relating to Proposition 8, between you and any third party, including, without limitation, members of the public or the media."

The Proponents objected to this demand, claiming that the information sought is privileged from discovery under the First Amendment and that the discovery demand is overbroad and burdensome. They point to instances where supporters of Proposition 8 were subjected to harassment and business boycotts, and claim that turning over the requested information would lead to more of the same. They argue that exposing all these internal communications to the light of day may have a deterrent effect in the future, chilling political speech and activity. In their new motion, filed with the court on October 8, they also suggest that it is inappropriate to force them to reveal their internal deliberations on a winning strategy in light of current political developments, stating that the concerns they have expressed "are especially salient where, as here, the losing side of a hard-fought referendum campaign seeks complete disclosure of the successful campaign strategy of the winning side, and it does so while preparing for a political ‘rematch.’"

Responding to these arguments, the plaintiffs pointed out that the names of all financial donors to the Proposition 8 campaign were required to be reported to state authorities and were subsequently posted on an open government website, so they were not demanding donor lists or information. Furthermore, politicals consultants to the Prop 8 proponents had actually published an article detailing their winning campaign strategy, so that was hardly a confidential secret. The communications the plaintiffs are now seeking are documents that would shed light on the motivations of those who proposed and sought to pass the measure, which could be useful in trying to prove that Prop 8 was proposed and pushed for discriminatory reasons.

Judge Walker decided the First Amendment issue against the Proponents, finding that what the Plaintiffs were seeking was potentially relevant to the lawsuit, but he agreed with the Proponents that the discovery request was too broad and burdensome. He ordered that the plaintiffs quickly refine their request to focus on the types of material that are likely to lead to relevant evidence in the case.

Walker described as "general areas of appropriate inquiry" such things as "(1) communications by and among proponents and their agents (at a minimum, Schubert Flint Public Affairs [the outfit that handled the advertising campaign for Prop 8]) concerning campaign strategy and (2) communications by and among proponents and their agents concerning messages to be conveyed to voters, without regard to whether the voters or voter groups were viewed as likely supporters or opponents or undecided about Prop 8 and without regard to whether the messages were actually disseminated or merely contemplated. In addition, communications by and among proponents with those who assumed a directorial or managerial role in the Prop 8 campaign, like political consultants or ProtectMarriage.com’s treasurer and executive committee, among others, would appear likely to lead to discovery of admissible evidence."

The plaintiffs quickly redrafted their discovery request to meet the court’s guidelines, prompting the Proponents to file their appeal to the 9^th Circuit and their motion before Judge Walker to "stay" his discovery order pending the appeal. They pointed out that once something has been disclosed, and can’t be "undisclosed," so they would suffer irreparable injury to their First Amendment rights if the 9^th Circuit accepted their argument after they had been forced to comply with Walker’s order. They reiterated their view that being forced to disclose the type of material being sought "will cause future initiative proponents to censor their speech with campaign volunteers, donors, supports, and agents, for fear that their communications will be publicly disclosed in future litigation" and that "it will silence initiative supporters who want to remain anonymous." This last point picks up on a winning argument in a recent lawsuit in Washington State concerning whether the names of petition signers for the initiative to repeal the latest amendments to Washington’s domestic partnership law should be made public.

Comments

[Brian]

I was wondering if these orders/motions/rulings regarding the discovery are posted anywhere online. Could you provide a link to them please?

[jesus Christ]

The religious zealots responsible for the passage of proposition 8 are so close to being exposed. They deserve to reap the seeds that they've sewn!

[Art Leonard]

I was reporting based on a copy of the slip opinion that an attorney involved in the case sent to me. The Oct. 1 ruling subsequently showed up on westlaw, which is not something you can link to - it is a subscription legal research service - but it is possible that it will be officially reported somewhere. Perhaps it can be found on the website of one of the organizations involved in the case.