Judge Refuses to Stay Discovery in Prop 8 Case

The San Francisco Chronicle reported yesterday that Judge Vaughn Walker of US District Court in San Francisco has denied a motion by the Proposition 8 Proponents, Intervenor-Defendants in Perry v. Schwarzenegger, to stay discovery pending their appeal of Walker's prior order that rejected their First Amendment challenge to the discovery request. Walker's decision to deny a stay was announced on Oct. 23.

The Prop 8 people are claiming that it would violate the First Amendment to require them to disclose internal communications from last year's Prop 8 initiative campaign, which resulted in the enactment of a California constitutional provision that provides only the union of one man and one woman will be "valid or recognized" as a marriage in California.  In the lawsuit, same-sex couples represented by former Solicitor General Ted Olson and star appellate litigator David Boies are claiming that the enactment of Prop 8 violated the federal constitutional rights of LGBT Californians.  They seek the internal communications from the campaign in order to uncover evidence in support of their argument that Prop 8 was intended to discriminate against sexual minorities.  Its passage overturned the result of a California Supreme Court decision from the spring of 2008, holding that same-sex couples had a right to marry in California.

In their motion, they argued that they needed a stay pending appeal of Walker's order because once the information was "disclosed" it could never be "un-disclosed," so they should not be required to disclose it until an appellate court had rejected their arguments.  Walker disagreed with this reasoning, evidently.  (I've not seen a written opinion, just the newspaper report.)  One of the tests for such a stay would be that the party appealing the decision is likely to prevail on the merits.  Walker expressed doubt as to this, writing that "it simply does not appear likely that the proponents will prevail on the merits of their appeal."  They are arguing that exposing the inner workings of the Prop 8 campaign will chill future political speech, and they also argued that the plaintiffs are trying to uncover strategic information at a time when a new initiative to overturn Prop 8 is about to progress to the signature-gathering phase, looking towards the Nov. 2010 ballot.  The Prop 8 folks are saying that the losers from last year should not be able to use civil litigation discovery to learn the strategies of the winners at a time when they are gunning for a rematch.  Evidently that argument didn't move Judge Walker, either. 

According to a lengthy report about the case published in the New York Times today, Walker is looking into the idea of live televising of the trial he has scheduled to begin in January, so the public can hear the expert witnesses arrayed on both sides of the question.  That would be a (time-consuming) treat!