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NO. 10-15649
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

EQUALITY CALIFORNIA AND NO ON PROPOSITION 8,

CAMPAIGN FOR MARRIAGE EQUALITY:
A PROJECT OF THE AMERICAN CIVIL LIBERTIES UNION,
Petitioners/Appellants,
v.
DENNIS HOLLINGSWORTH, et al.,
Respondents-Appellees.

On Appeal from United States District Court for the Northern District of California
Civil Case No. 09-CV-2292 VRW (Honorable Vaughn R. Walker)

RESPONDENTS-APPELLEES’ RESPONSE TO ACLU’S AND EQUALITY

CALIFORNIA’S MOTION TO EXPEDITE

Andrew P. Pugno Charles J. Cooper

LAW OFFICES OF ANDREW P. PUGNO David H. Thompson
101 Parkshore Drive, Suite 100 Howard C. Nielson, Jr.
Folsom, California 95630 Jesse Panuccio
(916) 608-3065; (916) 608-3066 Fax COOPER AND KIRK, PLLC
1523 New Hampshire Ave., N.W.
Brian W. Raum Washington, D.C. 20036
James A. Campbell (202) 220-9600; (202) 220-9601 Fax
ALLIANCE DEFENSE FUND
15100 North 90th Street
Scottsdale, Arizona 85260
(480) 444-0020; (480) 444-0028 Fax

Attorneys for Respondents-Appellees

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Respondents-Appellees Dennis Hollingsworth, Gail Knight, Martin

Gutierrez, Mark Jansson, and ProtectMarriage.com—Yes on 8, A Project of

California Renewal (hereinafter “Proponents”) respectfully submit this response to

Petitioner-Appellants’ Motion for Expedited Appeal.1

BACKGROUND

The procedural background to this case is lengthy and quite significant to the

issues Appellants now ask this Court to review. Proponents will provide that

background in detail in their merits brief, but for purposes of responding to

Appellants’ motion to expedite, a partial account should suffice.

This appeal (or, in the alternative, petition for writ of mandamus) arises out

of discovery orders in a case challenging the constitutionality of Proposition 8

(“Prop 8”), an initiative amendment providing that “[o]nly marriage between a

man and a woman is valid or recognized in California.” CAL. CONST. art. I, § 7.5.

Appellants are organizations that campaigned against Proposition 8. Proponents

are a “primarily formed ballot committee” and the individual “official proponents”

of Prop 8, who were permitted to intervene in this case to defend the initiative after

the Governor and the Attorney General declined to do so.

1
References to the docket below are designated “D.E.” unless they are
included in Petitioners/Appellants’ Appendix of Relevant Documents, in which
case a cross-citation is provided. Because Proponents have endeavored to submit
this response within twenty-four hours of receiving Appellants’ motions, we have
been unable to compile a supplemental appendix of relevant documents. We will
submit a supplemental appendix, if necessary, with our merits brief.

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Plaintiffs filed this suit on May 22, 2009, claiming that Prop 8 violates the

Fourteenth Amendment. While the underlying merits present important

constitutional questions, discovery en route to disposition of those merits took on a

constitutional life of its own when Plaintiffs requested—and the district court

compelled production of—the entirety of Proponents’ internal, confidential

documents relating to campaign strategy and message formulation.

Proponents immediately took the issue to this Court on an emergency basis.

After granting a stay of the district court’s discovery orders, Order, Perry v.

Hollingsworth, No. 09-17241 (Nov. 20, 2009), this Court held that the district

court had committed “clear error” that threatened to work a “substantial” “chilling

effect on political participation and debate.” Perry v. Hollingsworth, No. 09-

17241, slip op. at 20 (9th Cir. Dec. 11, 2009). The Court explained that under the

district court’s “unduly narrow conception of First Amendment privilege,” political

“associations that support or oppose initiatives face the risk that they will be

compelled to disclose their internal campaign communications”—a risk that

applies both to “the official proponents of initiatives and referendums” and also to

“the myriad social, economic, religious and political organizations that publicly

support or oppose ballot measures.” Id. at 19-20. The Court held that: “Implicit in

the right to associate with others to advance one’s shared political beliefs is the

right to exchange ideas and formulate strategy and messages, and to do so in

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private.” Id. at 30. In a footnote, the Court made clear that its opinion was

addressing “private, internal campaign communications concerning the

formulation of campaign strategy and messages” and that “broadly disseminated

materials” communicated to “large swaths of the electorate” were not protected by

the First Amendment’s privilege against compelled disclosure. Id. at 36 n.12.

On remand, the parties disputed the meaning and implications of the opinion

for further discovery, see Hr’g of Dec. 16, 2009 (D.E. 315), and the district court,

on December 30, referred the issue to the Magistrate Judge, see D.E. 332. Before

the Magistrate Judge set a hearing on the issue, and just days before trial was set to

commence, this Court issued, on January 4, 2010, an amended opinion. See Perry,

591 F.3d 1147 (9th Cir. 2010). Although the Court did not alter the bulk of its

First Amendment holdings, it did substantially revise footnote 12; it deleted its

statement that the First Amendment privilege did not extend to communications

disseminated to “large swaths of the electorate,” and stated instead that:

Our holding is therefore limited to communications among the core

group of persons engaged in the formulation of campaign strategy
and messages. We leave it to the district court, which is best
acquainted with the facts of this case and the structure of the “Yes on
8” campaign, to determine the persons who logically should be
included in light of the First Amendment associational interests the
privilege is intended to protect.

Id. at 1165 n.12.

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This footnote then became the tail that wagged the discovery dog. On

January 6, two days after the amended opinion issued, the Magistrate Judge held a

hearing at which Proponents made and lost nearly every argument that Appellants

will now make to this Court. See Hr’g of Jan. 6, 2010 (D.E. 362). See also Hr’g of

Dec. 16, 2009 (D.E. 315); Jan. 20, 2010 Trial Tr. at 1614:11-1621:22, 1628-33

(D.E. 507). Indeed, while Appellants were granted repeated and ample opportunity

to build a record on the “core group” concept (particularly with respect to “core

groups” of multiple organizations), Proponents were denied that opportunity. See

Hr’g of Jan. 6, 2010 (D.E. 362). Instead, Plaintiffs argued before the Magistrate

Judge that the “core group” of the ProtectMarriage.com campaign included only

ProtectMarriage.com’s executive committee, the campaign manager, and the

campaign general counsel. Hr’g of Jan. 6, 2010 (D.E. 366), Tr. at 23:21-24:2.

Resolving the issue on January 8 (3 days before trial), the district court ruled that

the Defendant-Intervenors—that is, both ProtectMarriage.com and the individual

proponents—could claim First Amendment protection only over communications

between a limited number of ProtectMarriage.com’s leaders and consultants. See

D.E. 372 (AA 10); D.E. 496 (AA 25).

The Court also held that Defendant-Intervenors must produce confidential

communications with any individual or association outside the

ProtectMarriage.com “core group,” including those from and between religious

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and political groups and leaders allied in the larger Yes-on-8 political coalition.

D.E. 372 at 2-3 (AA 11-12). In other words, according to the district court, if a

member of ProtectMarriage.com “core group” communicated with a single

member of any other Yes-on-8 “core group”—such as a church or a public interest

organization—about overall campaign strategy and messaging, no First

Amendment protection could be claimed. Likewise, the court held that leaders of

ProtectMarriage.com who were also leaders of other political and religious

organizations could not claim any First Amendment protection over internal

communications and documents produced by, for, and within those other

organizations. See Jan. 20, 2010 Trial Tr. 1614:11-1621:22 (D.E. 507) (rejecting

privilege objection asserted by member of ProtectMarriage.com executive

committee made over document shared solely among the leadership of a separate

religious group of which he was also a leader). In other words, citizens enjoy First

Amendment protection for one and only one “core group,” and they must make

their choice of one at the peril of the other.

In sum, the court ordered Proponents to produce “all documents … that

contain, refer or relate to any arguments for or against Proposition 8 other than

communications solely among the core group.” D.E. 372 at 5 (AA 14). Thus, over

the next week, while the trial was proceeding, Proponents were forced to commit

vast resources to review tens of thousands of internal campaign documents and to

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produce over 12,000 internal campaign or nonpublic documents revealing private

political speech and association. At trial, over Proponents’ standing First

Amendment and relevance objections, many such nonpublic documents were

introduced into evidence.

After the district court—in reliance on this Court’s footnote 12—laid down

the rules with respect to relevance and privilege on the eve of trial, Proponents

moved to compel from Appellants the very types of the documents that the district

court insisted were relevant to its consideration of this case and not privileged

under the First Amendment. See D.E. 472 (AA 16); D.E. 584. The Magistrate

Judge granted the motion in large part (with a few notable, and objectionable,

exceptions) and the district court affirmed that ruling in full. See D.E. 610 (AA

53); D.E. 623 (AA 104).

ARGUMENT

Proponents are quite familiar with Appellants’ First Amendment arguments,

for we made them, repeatedly, to the district court. The same holds true for

relevance: Proponents repeatedly argued in the district court that the information

that has been the subject of discovery in this case is utterly irrelevant to the intent

of the electorate in enacting a ballot measure. But we lost. The rules having been

established, Proponents have had no choice but to play by them (while preserving

their objections) and to seek from Appellants what the district court has deemed

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relevant to its consideration of this case: “the mix of information before and

available to the voters,” Doc # 214 at 14, which includes any document that

“contain[s], refer[s], or relate[s] to arguments for or against Proposition 8,” D.E.

372 at 5 (AA 14). We agree with Appellants that the district court has erred and

that either this Court or the Supreme Court should correct it.

The current orders under review stand or fall with the district court’s prior

orders establishing relevance rules and applying footnote 12—orders that

Proponents objected to at the time and still object to today. Accordingly,

Proponents welcome the stay of proceedings below pending resolution of this

appeal. Nor will we oppose further elaboration by this Court of the proper

application of the First Amendment privilege in this case, so long as this Court

directs the district court to apply those rules even-handedly and consistently,

regardless of the party claiming their benefit. But if the district court’s earlier

relevance and privilege determinations are to stand, and if the lower court and

Plaintiffs are permitted to make use of the privileged documents compelled from

Proponents’ on the eve of, and during, trial—then Proponents respectfully submit

that no greater protection can be afforded Appellants’ internal documents, which

are no less relevant and no more privileged than Proponents’ internal documents.

Proponents will make these arguments more fully in the merits briefing to come.

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But while Proponents welcome further consideration of these issues by this

Court, and are amenable to a reasonably expedited briefing and argument schedule,

Proponents do oppose the extraordinarily rushed briefing schedule suggested by

Appellants. Appellants claim that “[e]xpedition is necessary because the

underlying case, involving the constitutionality of Proposition 8, has been tried and

is awaiting final argument and disposition. … [and Appellants] have no desire to

delay disposition of the underlying case in the district court beyond the time

necessary to resolve the instant appeal on an extremely expeditious schedule.”

Mot. for Expedited Appeal at 2. But the supposed need for extraordinary

expedition is utterly inconsistent with the unhurried pace with which the

Appellants and the district court approached Proponents’ motion to compel before

it was granted.

Proponents filed their motion on January 15, 2010. See D.E. 472 (AA 16).

And because trial was already underway, Proponents moved the district court for

expedited consideration of the motion. See D.E. 473. The district court did

nothing in response to this request for expedition (while at the same time, however,

it granted, with great haste and urgency, Plaintiffs’ motion to compel production of

similar documents from Proponents, see D.E. 372 (AA 10); D.E. 496 (AA 25)).

Instead, at the very end of trial, the district court finally called for responses from

Appellants to Proponents’ motion to compel, to be filed February 2. See D.E. 526.

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Once those responses were filed, the district court then referred the matter to the

Magistrate Judge, thus ensuring that the issue would require the attendant delay of

an extra round of briefing of objections to the Magistrate Judge’s eventual order.

See D.E. 572. At Appellants’ request, the Magistrate Judge then put off a hearing

on the motion until February 25. See D.E. 586, D.E. 588, D.E. 589. In the

meantime, Appellants were granted leave to submit numerous declarations in

support of their opposition to the Proponents’ motion—the time period for which

routinely exceeded that which Appellants now say should constitute Proponents’

opportunity to brief this entire appeal. See, e.g., D.E. 589 (granting Appellants

eleven days to file additional declarations in support of their opposition).

Following the February 25 hearing, the Magistrate Judge then waited until March 5

to issue an order compelling compliance with the subpoenas, with a final

production set for nearly a month later, on March 31. See D.E. 610 (AA 53).

Appellants then waited seven days—until March 11 (again exceeding the time they

now say is sufficient for Proponents to brief this appeal)—to submit their

objections to the order. See D.E. 614 (AA 67). The district court held a hearing on

March 16, and then issued its order a week later affirming the Magistrate Judge,

including the March 31 production deadline. See D.E. 623 (AA 104).

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In sum, then, Appellants and the district court—and Plaintiffs for that

matter2—were fully content to wait nearly three months for resolution of

Proponents’ motion, even though Proponents asked for expedited consideration in

January so that the resources already committed to San Francisco for the trial could

be marshaled to review and make use of the documents produced at that time.

Now, all of a sudden, Appellants claim (and the district court implies through its

limited stay) that time is of the essence. Things are so urgent, they say, that this

entire appeal must be briefed and argued in less than two weeks, and that

Proponents ought to be afforded only five calendar days to submit their entire

merits briefing—as noted, a period far shorter than those periods Appellants were

routinely granted by the district court to submit their many declarations in support

of their opposition.

Without doubt, the underlying case here presents important questions of

constitutional law that require just and speedy resolution. But as Appellants attest,

the First Amendment issues that have permeated this case are no less weighty, and

no less deserving of full and measured consideration. The parties deserve an

opportunity to fully brief them with the benefit of reasonable time to prepare those

briefs. Thus, while Proponents do not oppose an expedited schedule for briefing,

2
See Hr’g of March 16, 2010, Tr. at 62:1-13 (D.E. 621) (counsel for
Plaintiffs stating that “if, in fact, documents are produced by the deadline set by
Magistrate Judge Spero, that would accomplish th[e] objectives” of “find[ing]
some way to bring this to closure”).

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we submit that five calendar days is both unwarranted and untenable in light of the

critical issues at stake and the press of other business that Proponents’ counsel is

currently contending with, including several other appeals that are due to be argued

soon. Proponents thus propose that Appellants be afforded two weeks from the

date of entry of the stay to submit their opening brief, that Proponents be afforded

two weeks from that date to submit our response brief, and that Appellants be

afforded a week from that date to submit a reply brief. By any standard, this would

be an extraordinarily expedited schedule for an appeal, but would allow for the

preparation of more studied, deliberative papers for the Court’s consideration.

Dated: March 26, 2010 Respectfully submitted,

/s/ Charles J. Cooper

Charles J. Cooper
Attorney for Respondents-Appellees

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9th Circuit Case Number(s) 10-15649

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