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NOS.09-17241,09-17551

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KRISTIN M. PERRY, et al.,

Plaintiffs-Appellees,

v.

ARNOLD SCHWARZENNEGGER, in his official capacity as Governor of

California, et al.,

Defendants,

and

DENNIS HOLLINGSWORTH, et al.

Defendant-Intervenors-Appellants/Petitioners.

Appeal/Mandamus Petition from United States District Court

for the Northern District of California

Civil Case No. 09-CV-2292 VRW (Honorable Vaughn R. Walker)

APPELLANTS/PETITIONERS BRIEF IN RESPONSE

TO CALL FOR EN BANC RECONSIDERATION

Andrew P. Pugno

LAW OFFICES OF ANDREW P.PUGNO

101 Parkshore Drive, Suite 100

Folsom, California 95630

(916) 608-3065; (916) 608-3066 Fax

Brian W. Raum

James A. Campbell

ALLIANCE DEFENSE FUND

15100 North 90th Street

Scottsdale, Arizona 85260

(480) 444-0020; (480) 444-0028 Fax

Charles J. Cooper

David H. Thompson

Howard C. Nielson, Jr.

Nicole J. Moss

Jesse Panuccio

Peter A. Patterson

COOPER AND KIRK,PLLC

1523 New Hampshire Ave., N.W.

Washington, D.C. 20036

(202) 220-9600; (202) 220-9601 Fax

Attorneys for Appellants/Petitioners

se 09-17241 Docket Item 40 Filed 12/24/09 25 Pagesse 09-17551 missing from docket

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TABLE OF AUTHORITIES

Cases Page

ACLU of Nevada v. Heller, 378 F.3d 979 (9th Cir. 2004).........................................6Admiral Ins. Co. v. United States Dist. Court, 881 F.2d 1486

(9th Cir. 1989) ......................................................................................................4

AFL-CIO v. FEC, 333 F.3d 168 (D.C. Cir. 2003) ...................................................16

Arthur v. Toledo, 782 F.2d 565 (6th Cir. 1986).................................................13, 16

Bates v. City of Little Rock, 361 U.S. 516 (1960)....................................................10

Bates v. Jones, 131 F.3d 843 (9th Cir. 1997)...........................................................13

Brock v. Local 375, Plumbers Intl Union of Am., 860 F.2d 346(9th Cir. 1988) ......................................................................................................7

City of Las Vegas v. Foley, 747 F.2d 1294 (9th Cir. 1984) .................................4, 13

Crawford v. Board of Educ., 458 U.S. 527 (1982)..................................................12

DeGregory v. Attorney General of New Hampshire, 383 U.S. 825 (1966)...............5

Dole v. Service Employees Union, AFL-CIO, Local 280, 950 F.2d 1456

(9th Cir. 1991) ........................................................................................5, 7, 8, 10

Equality Found. of Greater Cincinnati v. Cincinnati, 128 F.3d 289

(6th Cir. 1997) ..............................................................................................12, 16

FCC v. Beach Commcns, Inc., 508 U.S. 307 (1993)..............................................12

FEC v. Machinists Non-Partisan Political League, 655 F.2d 380

(D.C. Cir. 1981)..................................................................................................16

FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007).....................................11

Gibson v. Florida LegislativeInvestigation Comm., 372 U.S. 539 (1963)...............8

Herbert v. Lando, 441 U.S. 153 (1979) ...................................................................14

High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563(9th Cir. 1990) ....................................................................................................12

Hunter v. Erickson, 393 U.S. 385 (1969) ................................................................12

Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston,

515 U.S. 557 (1995) .............................................................................................6

James v. Valtierra, 402 U.S. 137 (1971) .................................................................12

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Jones v. Bates, 127 F.3d 839 (9th Cir. 1997)...........................................................13

Lehner v. United States, 685 F.2d 1187 (9th Cir. 1982)............................................3

McIntyre v. Ohio Elections Commn, 514 U.S. 334 (1995) ..............................4, 6, 7

Miami Herald Publg Co. v. Tornillo, 418 U.S. 241 (1974) .....................................6Mohawk Indus., Inc. v. Carpenter, 558 U.S. __, No. 08-678 (Dec. 8, 2009)........1, 3

NAACP v. Alabama, 357 U.S. 449 (1958)...........................................................8, 10

Navel Orange Admin. Comm. v. Exeter Orange Co., 722 F.2d 449

(9th Cir. 1983) ....................................................................................................13

Perry v. Schwarzennegger, No. 09-17241, Order (9th Cir. Dec. 16, 2009)..............2

Perry v. Schwarzennegger, No. 09-17241, slip op. (9th Cir. Dec. 11, 2009)........2, 3

PG&E Co. v. Public Utilities Commn of California, 475 U.S. 1 (1986) .................6

Romer v. Evans, 517 U.S. 620 (1996) .....................................................................12

SASSO v. Union City, 424 F.2d 291 (9th Cir. 1970) ...........................................7, 13

Taiwan v. United States Dist. Court, 128 F.3d 712 (9th Cir. 1997)..........................4

United States v. Hardesty, 958 F.2d 910 (9th Cir. 1992) ..........................................3

University of Pennsylvania v. EEOC, 493 U.S. 182 (1990) ..............................14, 15

Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982)..................................12

Wooley v. Maynard, 430 U.S. 705 (1977) .................................................................6

Other

CAL.CONST. art. I, 7.5.............................................................................................1

9th Cir. R. 35-1 ........................................................................................................16

9th Cir. R. 40-1 ..........................................................................................................2

Fed. R. App. P. 8(2)(B)(iii)........................................................................................2

Fed. R. App. P. 35....................................................................................................16

Perry v. Schwarzenegger, No. 09-2292, Hrg Tr. (N.D. Cal. Dec. 16, 2009).....9, 11Thomas M. Messner, The Price of Prop 8, THE HERITAGE FOUD., available at

www.heritage.org/Research/Family/bg2328.cfm...............................................10

16C WRIGHT,A.MILLER,&E.COOPER,FEDERAL PRACTICE &PROCEDURE

3935.3 (2d ed. 2009).............................................................................................4

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Posting of Professor Eugene Volokh to The Volokh Conspiracy,

http://volokh.com/2009/12/13/ninth-circuit-panel-rejects-attempt-to-discover-

internal-prop-8-campaign-documents/#more-23281 (Dec. 22, 2009) ...............13

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En banc review is not warranted in this case. The panels holdingsboth on

jurisdiction and the meritsfollowed directly from, and were entirely consistent

with, this Courts precedent, precedent from other circuits, and precedent from the

Supreme Court. In particular, the panel carefully considered the Supreme Courts

recent decision inMohawk Industries, Inc. v. Carpenter, 558 U.S. __, No. 08-678

(Dec. 8, 2009), but ultimately concluded that it need not definitively resolve the

question of whetherMohawks holding should be extended to the First Amendment

privilege at issue because this Courts precedents make clear that mandamus

jurisdiction is appropriate in these circumstances if jurisdiction does not exist

under the collateral order doctrine.

BACKGROUND

The panel opinion reversed the district courts discovery orders in this suit

challenging the constitutionality of Proposition 8 (Prop 8), a California 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. The Appellants/Petitioners

are the official proponents and a primarily formed ballot committee that

supported Prop 8 (collectively, Proponents). Plaintiffs sought, and the district

court ordered Proponents to produce, internal and confidential communications

(from one-on-one emails to drafts of campaign ads) relating to Proponents

advertising or messaging strategies and themes, material that Plaintiffs admitted

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is core political speech and undeniably entitled to broad First Amendment

protection. RR 4, 222.1

The district court deemed this nonpublic material relevant

to the intent of the electorate in passing Prop 8, even though the information, by

definition, was never seen by the electorate. The panel reversed, finding that

Plaintiffs had not satisfied the heightened burden that attends compelled disclosure

of core political speech and associational activities.

A Judge of this Court has called for a vote to determine whether the case

will be reheard en banc. The order requiring briefing in response to the call asks

the parties to address whether rehearing is warranted in light ofMohawk .

Order, Perry v. Schwarzenegger, No. 09-17241 (9th Cir. Dec. 16, 2009). The

answer is no.

ARGUMENT

I. THE PANEL PRUDENTLY LEFT OPEN THE COLLATERAL ORDER DOCTRINE

QUESTION RAISED BYMOHAWK

As the panel recognized,Mohawkheld that discovery orders concerning the

attorney-client privilege are not appealable under the collateral order doctrine.

Perry v. Schwarzenegger, No. 09-17241, slip op. at 10 (9th Cir. Dec. 11, 2009).

The panel observed that this Court may have collateral order jurisdiction even

1The relevant parts of the record, FED.R.APP.P. 8(2)(B)(iii), were

submitted to the panel in four volumes of exhibits (RR) and citations in this brief

continue to refer to those volumes. Pursuant to advice from the Office of the Clerk

of Court, Proponents are conforming this brief to the page limits set out in 9th Cir.

R. 40-1.

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afterMohawkbecause the First Amendment privilege differs in ways that matter

to a collateral order appeal analysis from those involving the attorney-client

privilege. Id. at 10, 13 (emphasis added). But although the panel was inclined to

conclude that [the Court has] jurisdiction under the collateral order doctrine, id. at

15, it ultimately did not find it necessary definitively to resolve this question.

Rather, the panel rested its jurisdictional holding squarely on the ground that the

Court has mandamus jurisdiction if the collateral order doctrine does not apply, id.

at 10, 15-22. Accordingly, the question ofMohawks application to privileges

other than the attorney-client privilege remains open, and there is no need for the

en banc Court to take the extraordinary and unnecessary step of addressing this

issue. See, e.g.,Lehner v. United States, 685 F.2d 1187, 1189 (9th Cir. 1982)

(avoiding difficult jurisdictional question where alternative basis for jurisdiction

exists); United States v. Hardesty, 958 F.2d 910, 912 (9th Cir. 1992) (en banc

review is not required when a conflict can be resolved or avoided).

InMohawk, the Supreme Court explained that denying collateral order

review to attorney-client privilege rulings did not foreclose appellate review of

such orders where litigants [are] confronted with a particularly injurious or novel

privilege ruling. Mohawk, 558 U.S. __, slip op. at 9. The Court identified

mandamus review as one such avenue for correcting serious errors, clear

abuse[s] of discretion, and manifest injustice[s]. Id. at 9-10. Here, the district

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courts privilege ruling was a serious and novel error that worked a manifest

injustice on Proponents by abrogating core First Amendment rights. In short, this

is precisely the type of extraordinary case that the Supreme Court left open for

immediate appellate review in the wake ofMohawk.

In concluding that mandamus jurisdiction was available even if the collateral

order review doctrine does not apply, the panel followed a well-trod path forged by

this Courts precedents As the panel explained, this Court has frequently exercised

mandamus jurisdiction to review discovery orders in closely analogous cases. See

Perry, slip op. at 17 (citing City of Las Vegas v. Foley, 747 F.2d 1294 (9th Cir.

1984);Admiral Ins. Co. v. United States Dist. Court, 881 F.2d 1486 (9th Cir.

1989); Taiwan v. United States Dist. Court, 128 F.3d 712 (9th Cir. 1997)). Indeed,

[m]andamus is appropriate to review discovery orders when particularly

important interests are at stake. Id. at 16 (quoting 16C WRIGHT,A.MILLER,&E.

COOPER,FEDERAL PRACTICE &PROCEDURE 3935.3 (2d ed. 2009)). Here, as in

Foley,Admiral, and Taiwan, the interest implicated by the discovery orderthe

right to engage in private and/or anonymous core political speech and

associationis particularly important. See, e.g.,McIntyre v. Ohio Elections

Commission, 514 U.S. 334, 341, 347-48 (1995). Accordingly, the panels

jurisdictional ruling is in line with this Courts precedent and there is no need for

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the en banc Court to secure or maintain uniformity of the courts decisions. FED.

R.APP.P. 35.

II. THE PANELS DECISION ON THE MERITS ADHERES TO NINTH CIRCUIT,

SISTER-CIRCUIT, AND SUPREME COURT PRECEDENT

In deciding the merits, the panel faithfully applied Ninth Circuit and

Supreme Court precedent to conclude that compelled disclosure of core political

speech and associational activity in this case would run afoul of the First

Amendment. Further review is unwarranted.

First, the panel reversed the district courts ruling that the First Amendment

privilege from compelled disclosure applies only to the identities of rank-and-file

volunteers and similarly situated individuals. RR 3. The panels holding is

correct, flowing directly from prior Ninth Circuit and Supreme Court precedent.

See DeGregory v. Attorney General of New Hampshire, 383 U.S. 825 (1966) (First

Amendment privilege shields disclosure of information relating to [DeGregorys]

political associations of an earlier day, the meetings he attended, and the views

expressed and ideas advocated at any such gatherings);Dole v. Services

Employees Union, AFL-CIO, 950 F.2d 1456, 1459-60 (9th Cir. 1991) (prima facie

case of First Amendment privilege had been made with respect to union meeting

minutes that record discussions of a highly sensitive and political character).

The panels holding is also consistent with the Supreme Courts holding in

McIntyre that, under the First Amendment, a speaker in a referendum campaign

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cannot be compelled to disclose her identity, which is no different from other

components of the documents content that the author is free to include or

exclude. 514 U.S. at 348 (emphasis added). This Court has forcefully reaffirmed

that holding, explaining thatMcIntyre applies to associations no less than to

individuals. See ACLU of Nevada v. Heller, 378 F.3d 979, 989-90 (9th Cir. 2004)

(The anonymity protected byMcIntyre is not that of a single cloak . Like other

choice-of-word and format decisions, the presence or absence of information

identifying the speaker is no less a content choice for a group or an individual

cooperating with a group than it is for an individual speaking alone.).2

The panels decision follows this Courts longstanding precedent

recognizingin the specific context of a challenge to a referendumthat

compelled disclosure of the private attitudes of the voters would entail an

2The right recognized inDeGregory and these other casesthe right to be

ones own editor and censor, with free choice of when to speak and not speak

publiclyis firmly established in the Supreme Courts jurisprudence. See, e.g.,

Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S.

557, 573 (1995) (Since all speech inherently involves choices of what to say and

what to leave unsaid, one important manifestation of the principle of free speech is

that one who chooses to speak may also decide what not to say.) (citation

omitted); PG&E Co. v. Public Utilities Commn of California, 475 U.S. 1, 9 (1986)

(conditioning speech on publication of unwanted additional speech

unconstitutionally penalizes the expression of particular points of view and forcesspeakers to alter their speech to conform with an agenda they do not set);Miami

Herald Publg Co. v. Tornillo, 418 U.S. 241, 256 (1974) ([A]ny such a

compulsion to publish that which reason tells them should not be published is

unconstitutional.) (quotation marks omitted); Wooley v. Maynard, 430 U.S. 705,

714 (1977) ([T]he right of freedom of thought protected by the First Amendment

includes the right to refrain from speaking at all.).

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intolerable invasion of the privacy that must protect an exercise of the franchise.

SASSO v. Union City, 424 F.2d 291, 295 (9th Cir. 1970); see also McIntyre, 514

U.S. at 343 (the protected tradition of anonymity in speech is perhaps best

exemplified by the secret ballot, the hard-won right to vote ones conscience

without fear of retaliation).

Second, the panel faithfully applied the two-part framework this Court has

previously established for testing claims of First Amendment privilege. See Perry,

slip op. at 23-28, 32-37. As the panel explained, underBrock v. Local 375,

Plumbers International Union of America, 860 F.2d 346 (9th Cir. 1988), andDole

v. Service Employees Union, AFL-CIO, Local 280, 950 F.2d 1456 (9th Cir. 1991),

the party resisting disclosure must demonstrate a prima facie showing of

arguable first amendment infringement and, if the prima facie case is made, the

burden shifts to the requesting party to demonstrate (i) a compelling need for

the information and (ii) that compelled disclosure is the least restrictive means

of obtaining it. Perry, slip op. at 25-26 (quotingBrock, 860 F.2d at 349-50).

Here, the panel correctly concluded that disclosure of Proponents nonpublic

political communications made during a controversial referendum campaign would

have a deterrent effect on the exercise of protected activities. Id. at 29. The

Court identified at least two chilling effects that would arise from such discovery

in cases like this one: deterrence from participation in campaigns and deterrence

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of the free flow of information within campaigns. Id. at 29-32. These

conclusions are well-grounded in controlling precedent. See Dole, 950 F.2d at

1459-61 (deterrent effect on participation in union meetings was sufficient to

establish prima facie case of First Amendment privilege and group members no

longer feel free to express their views is precisely the sort of chilling the

First Amendment privilege is meant to protect against);NAACP v. Alabama, 357

U.S. 449, 462-63 (1958) (compelled disclosure violated the First Amendment

where it may induce members to withdraw from the Association and dissuade

others from joining it); Gibson v. Florida Legislative Investigation Committee,

372 U.S. 539, 556-57 (1963) (compelled disclosure violated the First Amendment

where the deterrent and chilling effect on the free exercise of constitutionally

enshrined rights of free speech, expression, and association is immediate and

substantial); see also Perry, slip op. at 30-31 n.9 (cataloguing cases establishing

the First Amendment right of associations to be free of infringements in their

internal affairs).

Citing to the ACLUs amicus brief supporting Proponents (despite the

ACLUs support for Plaintiffs on the merits of their constitutional challenge to

Proposition 8), the panel correctly pointed out that the threat that internal

campaign communications will be disclosed in civil litigation can discourage

organizations from joining the public debate over an initiative. Slip op. at 30 n.8.

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This observation is more than speculation in this case, as Plaintiffs have recently

admitted that they served third-party subpoenas on some church organizations,

other advocacy groups or other organizations that were supporting Proposition 8.

Tr. of Hrg, Perry v. Schwarzenegger, No. 09-2292 (N.D. Cal. Dec. 16, 2009), at

43:15-19 (attached as Ex. 1).

The panel found that the record below amply established a prima facie case

of First Amendment infringement. Specifically, the panel credited the declaration

of Mark Jansson, who stated that if his personal, non-public communications

regarding this ballot initiative are ordered to be disclosed, he will drastically

alter how [he] communicate[s] in the future, he will be less willing to engage in

such communications, and would seriously consider whether to even become an

official proponent again. Slip op. at 32-33. Other evidence in the record is to the

same effect.3

Indeed, here the chill would arise not only from the fear of unwanted

disclosure of confidential political expressions and associations, but also from the

severe, extensive, and undisputed harassment and reprisals that have attended

3See, e.g., RR 259-60 (declaration of Ronald Prentice, volunteer campaign

chairman) (explaining that [w]idespread retaliation and harassment against donors

and volunteers had a negative effect on participation in the campaign in favor of

Proposition 8 and that if he had known non-public communications would besubject to disclosure, [he] would have communicated differently [and] been

more guarded, and fearful); RR 309 (declaration of Frank Schubert, campaign

manager) (stating that if the broad discovery in this case is permitted to go

forward it will significantly suppress the future participation in, and course of,

initiative and referendum campaigns and that he and [his] firm will change the

way [they] engage in political speech and campaigning).

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public disclosure of the identities of supporters of Proposition 8. See RR 229-60,

302-586; Thomas M. Messner, The Price of Prop 8, THE HERITAGE FOUNDATION,

available atwww.heritage.org/Research/Family/bg2328.cfm. The Supreme Court

has repeatedly held that evidence of such harassment supports application of the

First Amendment privilege. See NAACP, 357 U.S. at 462 (privilege applies where

there is evidence that on past occasions disclosure has exposed members to

economic reprisal, loss of employment, threat of physical coercion, and other

manifestations of public hostility);Bates v. City of Little Rock, 361 U.S. 516, 524

(1960) (crediting evidence that past disclosure had been followed by harassment

and threats of bodily harm and evidence of fear of community hostility and

economic reprisals that would follow public disclosure).4

On the Plaintiffs side of the scale, the panel rightly found that no showing

of compelling need has been made in this case. The panel observed that

4The panel also reversed the district courts conclusion that an attorneys-

eyes-only protective order would entirely ameliorate any chilling effect compelled

disclosure will have in this case. Perry, slip op. at 26 n.6. This holding, too, was

consistent with controlling precedent, for if such protective orders were always

sufficient to protect First Amendment freedoms, then the Supreme Court and other

federal courts would always impose such remedies in First Amendment privilege

cases. Yet inNAACP,Bates, andDeGregory, the Supreme Court recognized a

privilege protecting against any disclosure of the disputed material. And inDole,this Court credited evidence that chill of protected First Amendment activity arose

from union members fear of any disclosure of the contents of [meeting]

minutes, not just from fear of unlimited disclosure. Dole, 950 F.2d at 1461.

TheDole Court allowed limited disclosure only because, unlike Plaintiffs here, the

party seeking disclosure demonstrated a compelling need for the material sought.

Id. at 1461-62.

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Proponents have already produced communications actually disseminated to

voters and that other public information is readily available from other sources.

Slip op. at 35. See also FEC v. Wisconsin Right to Life, Inc. , 551 U.S. 449, 468-69

(2007) (where a court must determine the intent behind a campaign advertisement,

only an objective test is permissible under the First Amendment because a

subjective test focused on the speakers intent would chill core political

speech, offer[] no security for free discussion, and lead to bizarre result[s].).

The panels conclusion that Plaintiffs have shown no compelling need for the

nonpublic information at issue was effectively concededby Plaintiffs in the district

court. At the final pre-trial conference, Plaintiffs counsel candidly admitted that

Plaintiffs can prevail ultimately even if [they] dont have these documents

and that there would be a way to ensure that any ruling that was favorable to

[Plaintiffs] did not rise or fall on those documents. And the fact that they had been

produced or compelled to be produced would not affect the judgment. Tr. of

Hrg, Perry, No. 09-2292 (N.D. Cal. Dec. 16, 2009), at 51:6-21 (Ex. 1).

Third, the panels ultimate conclusion in this casethat Plaintiffs are not

entitled to the discovery at issueis entirely consistent with all controlling and

persuasive authority regarding what is relevant to the question of voter intent. The

nonpublic information sought by Plaintiffs is utterly irrelevant to their

constitutional challenge to Proposition 8. When rational basis scrutiny applies (as

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it does here, see High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d

563, 573-74 (9th Cir. 1990)), the inquiry is whether the challenged measure

rationally serves any conceivable state interest, and it is entirely irrelevant

whether the conceived reason for the challenged distinction actually motivated the

[electorate]. FCC v. Beach Communications, Inc., 508 U.S. 307, 315 (1993); see

also Perry, slip op. at 36 (Whether Proposition 8 bears a rational relationship to a

legitimate state interest is primarily an objective inquiry.). Accordingly, Plaintiffs

have no need even for publicly-disseminated information, let alone the nonpublic

information at issue here, and they cannot possibly satisfy their burden of showing

a compelling need.

And even if the Court ignored controlling precedent and assumed that strict

scrutiny applied, the Supreme Court, in cases involving discrimination claims in

the referendum context, has neverlooked to the type of information at issue here,

regardless of the applicable level of scrutiny. See Hunter v. Erickson, 393 U.S.

385 (1969); James v. Valtierra, 402 U.S. 137 (1971); Crawford v. Board of Educ.,

458 U.S. 527 (1982); Washington v. Seattle School Dist. No. 1, 458 U.S. 457, 471

(1982);Romer v. Evans, 517 U.S. 620 (1996). Notably, the Sixth Circuit has

interpreted the Supreme Courts referendum cases (correctly) to mean that a

reviewing court may not even inquire into the electorates possible actual

motivations for adopting a measure via initiative or referendum. Equality Found.

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of Greater Cincinnati v. Cincinnati, 128 F.3d 289, 293 n.4 (6th Cir. 1997); see also

Arthur v. Toledo, 782 F.2d 565, 573-74 (6th Cir. 1986); SASSO, 424 F.2d at 295

([W]e do not believe that the question of motivation for the referendum (apart

from a consideration of its effect) is an appropriate one for judicial inquiry.).

And where voter intent is relevantfor example when interpreting

ambiguous referendum textthis Court has not considered nonpublic materials

such as those at issue here. Thus, inJones v. Bates, 127 F.3d 839, 860 (9th Cir.

1997), a panel held that [t]here is nothing, other than the initiative, the official

ballot arguments and the state-prepared materials, to look to in order to discern the

peoples intent in passing the measure. And while the en banc Court disagreed

with the panels reading of the electorates intent, every Judge on that Court looked

only to publicly disclosed materials. Bates v. Jones, 131 F.3d 843, 846 (9th Cir.

1997) (en banc).5

Following the panels decision, one commentator noted that the opinions

arguments are quite persuasive, especially given the [Supreme] Courts

5Accordingly, although it is unnecessary for the en banc Court to reconsider

this case, if reconsideration is granted, then the Court should uphold the panels

decision not only on First Amendment grounds but also on relevance grounds.See, e.g., City of Las Vegas v. Foley, 747 F.2d 1294 (9th Cir. 1984) (issuing writ of

mandamus to block depositions of city officials regarding motivation in passing a

law because such testimony is irrelevant to underlying merits of constitutional

claim);Navel Orange Admin. Comm. v. Exeter Orange Co., 722 F.2d 449, 454 (9th

Cir. 1983) (protective order appropriate where requested discovery was irrelevant

and immaterial).

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longstanding recognition of a presumptive First Amendment right to confidential

association. Posting of Professor Eugene Volokh to The Volokh Conspiracy,

http://volokh.com/2009/12/13/ninth-circuit-panel-rejects-attempt-to-discover-

internal-prop-8-campaign-documents/#more-23281 (Dec. 22, 2009). Professor

Volokh criticized the panel, however, for failing to address two Supreme Court

decisions that he thought were relevant,Herbert v. Lando, 441 U.S. 153 (1979),

and University of Pennsylvania v. EEOC, 493 U.S. 182 (1990). This criticism was

unwarranted: neither case was cited to the panel, and both cases are entirely

consistent with the panels ruling.

Herbertrefused to extend an absolute privilege to the editorial process of a

media defendant in a libel case. 441 U.S. at 169. Instead, the Court considered

whether the Plaintiffs need for the information outweighed the First Amendment

interests at stake. The Court repeatedly stressed that in a libel case, the

information at issue was essential and necessary to prove the critical

elements of the case. Id. at 160; see also id. at 157, 169-70. Although the Court

refused to hold that the editorial process is immune from any inquiry

whatsoever, id. at 168, it stressed that casual inquiry subject[ing] the editorial

process to private or official examination merely to satisfy curiosity or to serve

some general end would not survive constitutional scrutiny, id. at 174. In

other words, like the panel in this case,Herbertrecognized that the First

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Amendment demands a balancing inquiry when civil discovery threatens

compelled disclosure of core First Amendment activities. InHerbert, the balance

tipped in favor of disclosure of essential and necessary information to the

requesting party; here, where the information sought bears, at best, an attenuated

relationship to any issue in the case, slip op. at 37, the panel correctly struck the

First Amendment balance in Proponents favor.

The University of Pennsylvania Court rejected a First Amendment claim that

academic freedom barred disclosure of tenure review materials in an

employment discrimination suit. Unlike this casewhere core First Amendment

protections are at issuethe Court there addressed a much more nebulous claim

deriving from the so-called academic-freedom cases. 493 U.S. at 197. The

Court found the Universitys claim to be outside any First Amendment concept

previously recognized in those cases. Indeed, the Court found that the Universitys

claimed harm was extremely attenuated from the claimed right to determine

who may teach and that any chilling effect on that right was speculative.

Id. at 199-200. In this case, even Plaintiffs recognize that the contemplated

disclosure strikes at core political speech undeniably entitled to broad First

Amendment protection. RR 222. The panel rightly concluded (i) that far from

being attenuated, the complained of harmdisclosureviolates the core First

Amendment rights to anonymity and privacy in speech and association, and (ii)

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that the potential for chilling of these rights was both self evident and amply

proved in the record below. Slip op. 33. Finally, as inHerbert, the information

sought from the tenure committee in University of Pennsylvania went to the heart

of the merits of the employment discrimination suit; again, the information sought

by Plaintiffs here has very little, if any, bearing on the merits of their challenge to

Proposition 8.

***

While it is true that this case involves a new and important question, the

panels decision comports with prior precedent from both this Circuit and the

Supreme Court, and rehearing is not necessary to secure or maintain uniformity.

FED.R.APP.P. 35. Nor have Plaintiffs identified a decision from another Circuit

that conflicts with the panels decision. See 9th Cir. R. 35-1. Indeed, ample

precedent from other Circuits supports the panels judgment.6

6SeeAFL-CIO v. FEC, 333 F.3d 168 (D.C. Cir. 2003) (noting that the

Supreme Court has long recognized that compelled disclosure of political

affiliations and activities can violate the First Amendment and striking down FEC

regulation requiring public disclosure of investigatory files because such disclosure

would chill political participation); FEC v. Machinists Non-Partisan Political

League, 655 F.2d 380, 384, 388 (D.C. Cir. 1981) (where sweeping subpoenaserved on political association called for internal communications relating to a

campaign, heightened judicial concern is warranted because the release of such

information carries with it a real potential for chilling the free exercise of

political speech and association);Equality Found. of Greater Cincinnati v.

Cincinnati, 128 F.3d 289, 293 n.4 (6th Cir. 1997) (holding that a court may not

even inquire into the electorates possible actual motivations for adopting a

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CONCLUSION

En banc review should be denied.

Dated: December 24, 2009 Respectfully submitted,

/s/ Charles J. Cooper

Charles J. Cooper

Attorney for Appellants/Petitioners

measure via initiative and referendum) (citingArthur v. Toledo, 782 F.2d 565,

573-74 (6th Cir. 1986)).

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I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the

United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system

on (date) .

I certify that all participants in the case are registered CM/ECF users and that service will be

accomplished by the appellate CM/ECF system.

CERTIFICATE OF SERVICEWhen All Case Participants are Registered for the Appellate CM/ECF System

I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the

United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system

on (date) .

Participants in the case who are registered CM/ECF users will be served by the appellate

CM/ECF system.

I further certify that some of the participants in the case are not registered CM/ECF users. I

have mailed the foregoing document by First-Class Mail, postage prepaid, or have dispatched it

to a third party commercial carrier for delivery within 3 calendar days to the following

non-CM/ECF participants:

Signature (use "s/" format)

CERTIFICATE OF SERVICE

When Not All Case Participants are Registered for the Appellate CM/ECF System

9th Circuit Case Number(s)

*******************************************************************************

Signature (use "s/" format)

NOTE: To secure your input, you should print the filled-in form to PDF (File > Print >PDF Printer/Creator).

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See attached service list.

09-17241; 09-17551

Dec 24, 2009

s/ Charles J. Cooper

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SERVICE LIST

Attorneys for Plaintiff-Intervenor City and

County of San Francisco:

Dennis J. Herrera, City Attorney

Therese Stewart, Chief Deputy City

AttorneyDanny Chou, Chief of Complex and Special

Litigation

Vince Chhabria, Deputy City AttorneyErin Bernstein, Deputy City Attorney

Christine Van Aken, Deputy City Attorney

Mollie M. Lee, Deputy City Attorney

CITY AND COUNTY OF SAN

FRANCISCOOFFICE OF THE CITY ATTORNEY

1 Dr. Carlton B. Goodlett PlaceRoom 234

San Francisco, CA 4102-4682

(415) 554-4708Fax: (415) 554-4655

[email protected]

Attorney for Defendant Registrar-Recorder Dean

C. Logan:

Elizabeth Cortez

Judy Whitehurst

OFFICE OF COUNTY COUNSEL COUNTY OFLOS ANGELES

500 West Temple St

Los Angeles, CA 90012(213) 974-1845

[email protected]

Attorney for Defendant Clerk-Recorder

Patrick OConnell:

Lindsey G. Stern

Claude Franklin KolmCOUNTY OF ALAMEDA

1221 Oak Street, Suite 450

Oakland, CA 94612-4296(510) 272-6710

[email protected]

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EXHIBIT 1

ase 09-17241 Document 40-1 Filed 12/24/09 6 pages

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Pages 1 - 120

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

BEFORE THE HONORABLE VAUGHN R. WALKER

KRISTIN M. PERRY, )

SANDRA B. STIER, PAUL T. KATAMI, )

and JEFFREY J. ZARRILLO, )

)

Plaintiffs, )

)

VS. ) NO. C 09-2292-VRW

)

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 and 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; and DEAN C. LOGAN, in his )

official capacity as )

Registrar-Recorder/County Clerk )

for the County of Los Angeles, )

) San Francisco, California

Defendants. ) Wednesday

) December 16, 2009

___________________________________) 10:00 a.m.

TRANSCRIPT OF PROCEEDINGS

Reported By: Katherine Powell Sullivan,Katherine Powell Sullivan,Katherine Powell Sullivan,Katherine Powell Sullivan, CSRCSRCSRCSR #5812#5812#5812#5812,,,, RPR, CRRRPR, CRRRPR, CRRRPR, CRROfficial Reporter - U.S. District CourtOfficial Reporter - U.S. District CourtOfficial Reporter - U.S. District CourtOfficial Reporter - U.S. District Court

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4

1 P R O C E E D I N G S2 DECEMBER 16, 2009 10:00 A.M.

3

4 THE CLERK: Calling civil case 09-2292, Kristin

5 Perry, et al. versus Arnold Schwarzenegger, et al.

6 Can I get the appearances from the plaintiffs' side,

7 please.

8 MR. OLSON: Good morning, Your Honor.

9 Theodore B. Olson, Gibson, Dunn & Crutcher, on behalf

10 of the plaintiffs.

11 THE COURT: Good morning, Mr. Olson.

12 MR. BOIES: Good morning, Your Honor.

13 David Boies, Boise, Schiller & Flexner, also on

14 behalf of plaintiffs.

15 THE COURT: Good morning, Mr. Boies.

16 MR. BOUTROUS: Good morning, Your Honor.

17 Theodore Boutrous, also from Gibson, Dunn & Crutcher,

18 for plaintiffs.

19 THE COURT: Good morning.

20 MR. DUSSEAULT: Good morning, Your Honor.

21 Chris Dusseault, Gibson, Dunn & Crutcher, on behalf

22 of plaintiffs.

23 THE COURT: Good morning.

24 MR. MCGILL: Good morning, Your Honor.

25 Matthew McGill, Gibson, Dunn & Crutcher, for the

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1 the "electorate at large" is the language that proponents have

2 used -- their communications to voter groups and to

3 individuals, and door-to-door communications from script would

4 be privileged.

5 And so we are being blocked from that discovery. We

6 served this discovery months and months ago, and so it really

7 is hindering us.

8 As the Court knows, we have many, many arguments that

9 do not depend on this information. So I'm not standing here

10 telling the Court that we can't make our case without it. But

11 it seems fair game. And it's clearly outside the narrow

12 privilege, in terms of the documents that are covered by the

13 Ninth Circuit's ruling, internal communications that were

14 private.

15 THE COURT: What are the entities to which these

16 subpoenas have been served?

17 MR. BOUTROUS: I think we have some church

18 organizations, other advocacy groups or other organizations

19 that were supporting Proposition 8.

20 And we're -- you know, we would limit it to the same

21 sort of sphere of documents.

22 THE COURT: Were these entities all supporters of

23 Proposition 8, as opposed to, say, the Wall Street Journal,

24 which is obviously not involved in the campaign except as a

25 media organization?

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1 you're making against Proposition 8?

2 Could it be that if discovery goes too broad in this

3 case, to impinge upon the First Amendment, you would jeopardize

4 any judgment that you obtain adverse to the constitutionality

5 of Proposition 8?

6 MR. BOUTROUS: We do want to be careful on that, Your

7 Honor. We believe that we -- I want to be very clear. We

8 believe we can -- we can prevail and will prevail, ultimately,

9 on these issues, even if we don't have these documents; that

10 the Romer test -- we think there are alternative ways to

11 prevail under Romer and under the Supreme Court's other

12 decisions, that, yes, if we have evidence that shows improper

13 motivations, that adds to the case.

14 And so we would be sensitive to that, I think. And I

15 think, though, that if we receive discovery, we receive

16 documents, and the Court were to analyze the case as -- with

17 the documents and with the information, and without it, there

18 would be a way to ensure that any ruling that was favorable to

19 us did not rise or fall on those documents. And the fact that

20 they had been produced or compelled to be produced would not

21 affect the judgment.

22 THE COURT: Well, under those circumstances, doesn't

23 that undermine the position which the Ninth Circuit has told us

24 the plaintiffs must demonstrate in order to obtain this

25 discovery; that is, it must meet a higher than usual standard

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1 of relevance and make a compelling showing of need?

2 MR. BOUTROUS: Absolutely, Your Honor, as to the

3 documents that are covered by the privilege, the internal

4 communications.

5 And right now, today, I'm only talking about our

6 efforts to seek things that we think are clearly outside the

7 privilege, which are subject to the normal rules because they

8 are not private internal campaign communications.

9 But I do take your point. We are very sensitive to

10 that fact. We want to build the best record for our clients we

11 can, and don't want to take risks. And we have thought we have

12 been well within the heart of the First Amendment, and very

13 respectful of those interests. It's something we would take

14 into account.

15 As for discovery, I don't think that having discovery

16 on issues, particularly things that are clearly outside the

17 privileges laid out by the Ninth Circuit, would jeopardize our

18 arguments and jeopardize any judgment we might obtain.

19 THE COURT: Thank you. Anything further?

20 MR. BOUTROUS: I think that's it, Your Honor. Thank

21 you very much.

22 THE COURT: All right. Let's see, Mr. Cooper, you

23 said which of your colleagues, Mr. Thompson, is --

24 MR. COOPER: No, Your Honor. Mr. Panuccio.

25 THE COURT: What's that?