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Perry v. Schwarzenegger

January 4, 2010

KRISTIN M. PERRY; SANDRA B. STIER; PAUL T. KATAMI; JEFFREY J. ZARRILLO, PLAINTIFFS - APPELLEES, AND CITY AND COUNTY OF SAN FRANCISCO, PLAINTIFF-INTERVENOR,
v.
ARNOLD SCHWARZENEGGER, IN HIS OFFICIAL CAPACITY AS GOVERNOR OF CALIFORNIA; EDMUND G. BROWN, JR., IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL OF CALIFORNIA; MARK B. HORTON IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE CALIFORNIA DEPARTMENT OF PUBLIC HEALTH & STATE REGISTRAR OF VITAL STATISTICS; LINETTE SCOTT, IN HER OFFICIAL CAPACITY AS DEPUTY DIRECTOR OF HEALTH INFORMATION & STRATEGIC PLANNING FOR THE CALIFORNIA DEPARTMENT OF PUBLIC HEALTH; PATRICK O'CONNELL, IN HIS OFFICIAL CAPACITY AS CLERK-RECORDER FOR THE COUNTY OF ALAMEDA; DEAN C. LOGAN, IN HIS OFFICIAL CAPACITY AS REGISTRAR-RECORDER/COUNTY CLERK FOR THE COUNTY OF LOS ANGELES, DEFENDANTS, AND DENNIS HOLLINGSWORTH; GAIL J. KNIGHT; MARTIN F. GUTIERREZ; HAK-SHING WILLIAM TAM; MARK A. JANSSON; PROTECTMARRIAGE.COM - YES ON 8, A PROJECT OF CALIFORNIA RENEWAL, DEFENDANT-INTERVENORS -APPELLANTS.
KRISTIN M. PERRY; SANDRA B. STIER; PAUL T. KATAMI; JEFFREY J. ZARRILLO, PLAINTIFFS - APPELLEES, AND OUR FAMILY COALITION; LAVENDER SENIORS OF THE EAST BAY; PARENTS, FAMILIES, AND FRIENDS OF LESBIANS AND GAYS, CITY AND COUNTY OF SAN FRANCISCO, PLAINTIFF-INTERVENORS -APPELLEES,
v.
ARNOLD SCHWARZENEGGER; EDMUND G. BROWN, JR.; MARK B. HORTON; LINETTE SCOTT; PATRICK O'CONNELL; DEAN C. LOGAN, DEFENDANTS, AND DENNIS HOLLINGSWORTH; GAIL J. KNIGHT; MARTIN F. GUTIERREZ; HAK-SHING WILLIAM TAM; MARK A. JANSSON; PROTECTMARRIAGE.COM - YES ON 8, A PROJECT OF CALIFORNIA RENEWAL, DEFENDANT-INTERVENORS -APPELLANTS.



Appeal from the United States District Court for the Northern District of California Vaughn R. Walker, Chief District Judge, Presiding. D.C. No. 3:09-cv-02292-VRW.

The opinion of the court was delivered by: Raymond C. Fisher, Circuit Judge

FOR PUBLICATION

AMENDED OPINION

Argued and Submitted December 1, 2009 -- Pasadena, California

Filed December 11, 2009

Amended

Before: Kim McLane Wardlaw, Raymond C. Fisher and Marsha S. Berzon, Circuit Judges.

Proposition 8 amended the California Constitution to provide that only marriage between a man and a woman is valid or recognized in California. Two same-sex couples filed this action in the district court alleging that Proposition 8 violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The official proponents of Proposition 8 ("Proponents") intervened to defend the suit. Plaintiffs served a request for production of documents on Proponents, seeking, among other things, production of Proponents' internal campaign communications relating to campaign strategy and advertising. Proponents objected to disclosure of the documents as barred by the First Amendment. In two orders, the district court rejected Proponents' claim of First Amendment privilege. Proponents appealed both orders and, in the alternative, petitioned for a writ of mandamus directing the district court to grant a protective order. We granted Proponents' motion for stay pending appeal.

We hold that the exceptional circumstances presented by this case warrant issuance of a writ of mandamus. The freedom to associate with others for the common advancement of political beliefs and ideas lies at the heart of the First Amendment. Where, as here, discovery would have the practical effect of discouraging the exercise of First Amendment associational rights, the party seeking such discovery must demonstrate a need for the information sufficient to outweigh the impact on those rights. Plaintiffs have not on the existing record carried that burden in this case. We therefore grant Proponents' petition and direct the district court to enter an appropriate protective order consistent with this opinion.

I. BACKGROUND

In November 2008, California voters approved Proposition 8, an initiative measure providing that "[o]nly marriage between a man and a woman is valid or recognized in California." Cal. Const. art. I, § 7.5. The California Supreme Court has upheld Proposition 8 against several state constitutional challenges. Strauss v. Horton, 207 P.3d 48, 63-64 (Cal. 2009). Plaintiffs, two same-sex couples prohibited from marrying, filed this 42 U.S.C. § 1983 action alleging "that Prop. 8, which denies gay and lesbian individuals the right to marry civilly and enter into the same officially sanctioned family relationship with their loved ones as heterosexual individuals, is unconstitutional under the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution." Compl. ¶¶ 5, 7. They alleged among other things that "[t]he disadvantage Prop. 8 imposes on gays and lesbians is the result of disapproval or animus against a politically unpopular group." Id. ¶ 43. Defendants are a number of state officials responsible for the enforcement of Proposition 8, including the Governor and the Attorney General. Id. ¶¶ 13-19. Plaintiffs seek declaratory and injunctive relief. Id. ¶ 8.

After the Attorney General declined to defend the constitutionality of Proposition 8, the district court granted a motion by Proponents -- the official proponents of Proposition 8 and the official Proposition 8 campaign committee -- to intervene as defendants.

Plaintiffs served requests for production of documents on Proponents under Federal Rule of Civil Procedure 34. Plaintiffs' eighth request sought:

All versions of any documents that constitute communications referring to Proposition 8, between you and any third party, including, without limitation, members of the public or the media.

The parties understand this request as encompassing, among other things, Proponents' internal campaign communications concerning strategy and messaging.

Proponents objected to the request as irrelevant, privileged under the First Amendment and unduly burdensome and filed a motion for a protective order. They argued that their internal campaign communications, including draft versions of communications never actually disseminated to the electorate at large, were privileged under the First Amendment. They offered evidence that the disclosure of internal strategy documents would burden political association rights by discouraging individuals from participating in initiative campaigns and by muting the exchange of ideas within those campaigns. They asserted that the documents plaintiffs sought were irrelevant to the issues in this case, and even if they were relevant, the First Amendment interests at stake outweighed plaintiffs' need for the information.

Plaintiffs opposed the motion for protective order. They argued that their request was reasonably calculated to lead to the discovery of admissible evidence concerning the purpose of Proposition 8, as well as evidence concerning the rationality and strength of Proponents' purported state interests for Proposition 8. They disputed Proponents' contention that any of the documents requested were privileged other than with respect to the names of rank-and-file members of the campaign, which they agreed to redact.

In an October 1, 2009 order, the district court granted in part and denied in part Proponents' motion for a protective order. The court denied Proponents' claims of privilege.*fn1 The court also determined that plaintiffs' request was "reasonably calculated to lead to the discovery of admissible evidence" regarding voter intent, the purpose of Proposition 8 and whether Proposition 8 advances a legitimate governmental interest. The court said that "communications between proponents and political consultants or campaign managers, even about messages contemplated but not actually disseminated, could fairly readily lead to admissible evidence illuminating the messages disseminated to voters."*fn2

Following the court's October 1 order, Proponents submitted a sample of documents potentially responsive to plaintiffs' document request for in camera review, asserting that the documents were both irrelevant and privileged. In a November 11, 2009 order following that review, the district court again rejected Proponents' argument that their internal campaign communications were privileged under the First Amendment:

Proponents have not . . . identified any way in which the . . . privilege could protect the disclosure of campaign communications or the identities of high ranking members of the campaign. . . . If the . . . privilege identified by proponents protects anything, it is the ...


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