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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 OF NORTHERN CALIFORNIA Petitioners/Appellants v. KRISTIN M. PERRY, et al., Respondents/Appellees ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA C 09-2292 VRW EMERGENCY MOTI ON FOR STAY PENDING APPEAL Stephen V. Boms e (Sta te Ba r No. 40686) Lynn H. Pasahow (State Bar No. 054283) Just in M. Aragon (State Bar No. 241592) Carolyn Chang (St at e Bar No. 217933 ) ORRI CK, HERRI NGTON & SUTCLI FFE Lesl ie Kr amer (State Ba r No . 253313) The Orrick Building Lauren Whittemore (State Bar No. 255432) 405 Howard Street FENWICK & WEST LLP San Francisco, CA 94105 555 California Street, 12th Floor Telephone: (415) 773-5700 San Francisco, CA 94104 Facsimile: (415) 773-5759 Telephone: 415.875.2300 Facsimile: 415.281.1350 Alan L. Schlosser (State Bar No. 49957) El iz abet h O. Gi ll (State Bar No. 218311) At torneys for EQUALITY CALI FORNIA ACLU FOUNDATION OF NORTHERN CALIFORNIA 39 Drumm Street San Francisco, CA 94111 Telephone: 415-621-2 493 Facsimile: 415-255-147 8 Attorneys for Petitioners/App ellants NO ON PROPOSITION 8, CAMPAIGN FOR MARRIAGE EQUALITY: A PROJECT OF THE AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA Case: 10-15649 03/25/2010 Page: 1 of 24 ID: 7278932 DktEntry: 3-1
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Perry v. Scharzenneger, Emergency Motion for Stay Pending Appeal and Motion for Expedited Appeal, No. 10-15649 (9th Cir. Mar,. 25, 2010)

May 30, 2018

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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 OF NORTHERN CALIFORNIA

Petitioners/Appellants

v.

KRISTIN M. PERRY, et al.,

Respondents/Appellees

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF CALIFORNIA

C 09-2292 VRW

EMERGENCY MOTION FOR STAY PENDING APPEAL

Stephen V. Bomse (State Bar No. 40686) Lynn H. Pasahow (State Bar No. 054283)

Justin M. Aragon (State Bar No. 241592) Carolyn Chang (State Bar No. 217933)

ORRICK, HERRINGTON & SUTCLIFFE Leslie Kramer (State Bar No. 253313)The Orrick Building Lauren Whittemore (State Bar No. 255432)

405 Howard Street FENWICK & WEST LLP

San Francisco, CA 94105 555 California Street, 12th Floor

Telephone: (415) 773-5700 San Francisco, CA 94104

Facsimile: (415) 773-5759 Telephone: 415.875.2300

Facsimile: 415.281.1350

Alan L. Schlosser (State Bar No. 49957)

Elizabeth O. Gill (State Bar No. 218311) Attorneys for EQUALITY CALIFORNIA

ACLU FOUNDATION OF NORTHERN

CALIFORNIA

39 Drumm Street

San Francisco, CA 94111Telephone: 415-621-2493

Facsimile: 415-255-1478

Attorneys for Petitioners/Appellants

NO ON PROPOSITION 8, CAMPAIGN FORMARRIAGE EQUALITY: A PROJECT OF THE

AMERICAN CIVIL LIBERTIES UNION OF

NORTHERN CALIFORNIA

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TABLE OF CONTENTS

Page

-i-

INTRODUCTION ......................................................................................................................... 1

STATEMENT OF THE CASE...................................................................................................... 3

ARGUMENT................................................................................................................................. 8

A. APPELLANTS ARE LIKELY TO SUCCEED ON THE MERITS. .................... 8

B. IRREPARABLE HARM IS CERTAIN WITHOUT A STAY. .......................... 17

C. A STAY WILL NOT SUBSTANTIALLY INJURE OTHER PARTIES. .......... 18

D. THE PUBLIC INTEREST STRONGLY FAVORS A STAY. ........................... 19

CONCLUSION............................................................................................................................ 20

NOTICE OF RELATED CASE .................................................................................................. 21

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TABLE OF AUTHORITIES

FEDERAL CASES

Cases Admiral Ins. Co. v. United States Dist. Court,

881 F.2d 1486 (9th Cir. 1989)............................................................................. 18

 Buckley v. Valeo,

424 U.S. 1 (1976) ................................................................................................ 19

Cmty. House, Inc. v. City of Boise,

490 F.3d 1041 (9th Cir. 2007)............................................................................. 17

 Elrod v. Burns,

427 U.S. 347 (1976) ............................................................................................ 17

Gentala v. City of Tucson,

213 F.3d 1055 (9th Cir. 2000)............................................................................. 17

Golden Gate Rest. Ass’n v. City of San Francisco,

512 F.3d 1112 (9th Cir. 2008)................................................................................8

Perry v. Schwarzenegger,

591 F.3d 1147 (9th Cir. 2010)...................................................................... passim

Sammartano v. First Judicial Dist. Court for the County of Carson City,

303 F.3d 959 (9th Cir. 2002)............................................................................... 19

United States v. Alanii,

169 F.3d 1189 (9th Cir. 1999)............................................................................. 18

Upjohn Company v. United States,

449 U.S. 383 (1981) ............................................................................................ 12

FEDERAL RULES

RulesFederal Rule of Appellate Procedure 8(a)(2).............................................................1

Ninth Circuit Rule 28-2.6 and General Order 3.7................................................... 21

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Pursuant to Federal Rule of Appellate Procedure 8(a)(2), Appellants and

Petitioners Nonparties Equality California (“EQCA”) and No on Proposition 8,

Campaign for Marriage Equality: A Project of the American Civil Liberties Union

of Northern California (“ACLU”) (collectively, “Appellants”) respectfully seek a

stay of the discovery compelled by an order entered by the district court, dated

March 22, 2010 (AA 0104 (Doc # 623)), affirming a prior order of Magistrate

Judge Joseph Spero dated March 5, 2010 (AA 0053 (Doc # 610)) pending

resolution of their appeal or, in the alternative, petition for writ of mandamus.

INTRODUCTION

This appeal, or, in the alternative, petition for writ of mandamus, presents a

narrow, yet immensely important, question under the First Amendment: whether

non-public campaign communications should be protected as privileged in the civil

discovery context to further “[t]he freedom to associate with others for the

common advancement of political beliefs and ideas”—a question answered in the

affirmative by this Court in an earlier appeal in the same underlying litigation,

Perry v. Schwarzenegger, 591 F.3d 1147,1152 (9th Cir. 2010). In fact, the current

appeal directly involves the interpretation of a footnote in that opinion, which the

district court relied upon as the basis for compelling Appellants, who are non-

parties in the underlying litigation, to produce documents containing non-public

strategy and messages from their campaign against passage of the California

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within a political campaign to protect both vigorous political debate and the vital

associational interests of individuals who choose to come together to pursue

common political goals. Without holding that such communications could never

be subject to production in litigation, the Court observed that “[t]he freedom to

associate with others for the common advancement of political beliefs and ideas

lies at the heart of the First Amendment” (531 F.3d at 1152) and concluded that a

heightened standard of relevance therefore must apply to requests seeking such

communications. Id. at 1160-61.

At the conclusion of its analysis, the Court added a footnote which stated

that the right it had recognized applied only to documents involving “campaign

strategy and messages” of a non-public nature. The Court, therefore, remanded the

case to the district court “which is best acquainted with 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 .”

531 F.3d at 1165 n.12 (emphasis added). On remand, Magistrate Judge Spero

ruled that, under footnote 12, the only documents subject to privilege were those

involving campaign strategy among a “core group” of individuals involved in the

“Yes on 8” campaign. AA 0010 (Doc # 372). The district judge overruled

Proponents’ objections to that decision. AA 0025 (Doc # 496).

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Almost immediately after that ruling, Proponents sent a letter to Appellants

directing them to identify their “core group” of individuals responsible for

campaign messaging and strategy and demanding that Appellants begin a rolling

production of all campaign communications regarding strategy or messages that

involved people other than those in the identified “core group.” AA 0021(Doc #

472). Failing compliance with these demands, Proponents stated that they would

file motions to compel production on subpoenas they previously had issued. When

Appellants declined, Proponents made good on their announced intention and

moved to compel production against EQCA, the ACLU and one other “No on 8”

group that asserted that it had no additional non-privileged materials to produce.

AA 0016 (Doc # 472).

The district court referred Proponents’ motion to Magistrate Judge Spero for

resolution. Appellants submitted legal memoranda in which they reiterated their

objections on grounds, inter alia, of relevance, burden and, most important,

privilege. Appellants also submitted separate declarations from the Executive

Directors of EQCA and an ACLU attorney in which they explained the “structure

of the ‘[No] on 8’ campaign,” including the roles played by various groups and

individuals in the formulation and implementation of campaign strategy and

messaging; the identity of the people so involved; and the burden involved in

complying with Proponents’ subpoena. AA 0034 (Doc # 598); AA 0028 (Doc #

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597). In response to a request during argument on the motion, the Executive

Director of EQCA also submitted an additional declaration identifying particular

individuals who were involved in particular aspects of campaign strategy and

messaging. AA 0042 (Doc # 609).

On March 5, Judge Spero granted, in large part, Proponents’ motion to

compel. AA 0053 (Doc # 610). He held that, under the broad standards of Rule

26, information from the No on 8 campaign was part of the “mix of information”

that would (or at least might) have been considered by a “Yes on 8” voter and,

hence, that such information might help to explain the “intent” of those voters as

well as the legitimacy of the asserted state interests behind the initiative. AA 0058

(Doc # 610). He further held that although this Court had recognized a privilege

for non-public campaign communications regarding the formulation of campaign

strategy and messaging, footnote 12 of the opinion limited that privilege to

communications between a “core group” of people within each separate group

seeking to defeat Proposition 8. Thus, even though the order explicitly stated that

the court had “credited” (without limitation) Appellants’ evidentiary declarations,

Judge Spero declined to recognize a privilege for a large number of individuals

who had been identified as persons involved in the formulation of campaign

strategy and messaging. AA 0062-63 (Doc # 610). Moreover, with the exception

of a small group of people associated with a formal campaign coordinating

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committee, Judge Spero held that there was no privilege at all for communications

between individuals affiliated with different groups who were working together to

oppose the initiative. AA 0064 (Doc # 610).

Appellants’ objections were rejected by the district court on March 22, 2010.

AA 0104 (Doc # 623). Despite acknowledging that “proponents’ showing of 

relevance is minimal,” the court nonetheless held that it was not clear error for the

Magistrate Judge to have ordered production of these documents of “marginal

relevance” under the broad discovery standards of Rule 26. AA 0110-11 (Doc #

623). On the constitutional issue, the court concluded that Appellants’ argument

that footnote 12 requires a functional approach to defining the limits of the First

Amendment privilege provides no “comprehensible limiting principle” to define

the scope of the privilege (AA 0117 (Doc # 623)) and that the reference to

“internal” non-public communications meant, “by definition,” that the privilege

does not cover communications among different organizations working together in

a political campaign. AA 0113 (Doc # 623).

Appellants’ motion for a stay pending appeal was granted for seven days,

until March 29, so that Appellants could seek a further stay from this Court. AA

0128 (Doc # 625).

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ARGUMENT

In deciding whether to issue a stay pending appeal or a writ of mandamus,

the Court considers: (1) Appellants’ likelihood of success on the merits; (2) the

possibility of irreparable harm absent a stay; (3) the possibility of substantial injury

to other parties if a stay is issued; and (4) the public interest. See, e.g. Golden Gate

 Rest. Ass’n v. City of San Francisco, 512 F.3d 1112, 1115 (9th Cir. 2008).

A. APPELLANTS ARE LIKELY TO SUCCEED ON THE

MERITS.

The error committed below is not only manifest but of great significance. In

purporting to apply a footnote in this Court’s January 4 opinion, the decisions

appealed from undermine both the holding and the rationale of that opinion in a

way that has broad implications for future political campaigns.

That footnote, which appears on page 36 of the slip opinion, follows 16

pages of text under the heading “First Amendment Privilege,” in which this Court,

in clear terms, announced and explained that there is a “freedom to associate with

others for the common advancement of political beliefs and ideas [that]

is…protected by the First…Amendment[ ]” (591 F.3d at 1159); that “the

disclosure of [internal campaign documents] can have a deterrent effect on

participation in campaigns” (id . at 1162); that “[i]mplicit 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 private” (id .); and that “there

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must be a right not only to form political associations but to organize and direct

them in the way that will make them most effective.” Id . at 1163 (citation

omitted).

Having acknowledged the existence, and explained the rationale, for this

First Amendment right (as well as the consequences where compelled disclosure of 

campaign documents are sought), the Court then added a footnote, not to retract or

limit what it had said in text, but simply to “emphasize” that the right it had

enumerated must be applied in a manner consistent with its purpose. 591 F.3d at

1165 n.12. Specifically, the Court observed that the privilege extended only to

communications among people whose function in the campaign involved the

“formulation of campaign strategy and messages”—a category which the Court

denominated as the “core group”. Id . Even as to those people, the privilege

applied only to “internal” communications involving strategy or messages, as

opposed to public documents, or documents created for some other purpose, such

as “persuasion, recruitment or motivation.” Id. Since the inquiry as to which

people were part of the core group of the “Yes on 8” campaign was fact specific

and the “district court…[was] best acquainted with…the structure of the ‘Yes on 8’

campaign,” the Court remanded the case so that that court could “determine the

persons who logically should be included in light of the First Amendment 

associational interests the privilege is intended to protect .” Id . (emphasis added).

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Appellants have no quarrel with any of these limitations, properly applied.

However, both Judge Spero and the district court read the Court’s footnote—and,

in particular, the reference to a “core group” and mention of the word “internal”—

as if they were intended: (1) to deny virtually any privilege for communications

among individuals affiliated with different organizations working together to

defeat Proposition 8 and (2) to establish a wholesale and arbitrary limitation on

who is entitled to assert the protections of the First Amendments based on numbers

and formalities of title and affiliation, as opposed to function within the campaign.

Both of those rulings are demonstrably mistaken and materially undermine the

essential holdings of this Court’s January 4 opinion in a way that has profound

consequences for political campaigns generally.

First, Judge Spero and the district court erred when they held that the First

Amendment privilege does not apply at all to communications among people

affiliated with different organizations who work collectively on a common political

cause. See AA 0064-65 (Doc # 610) (“[T]he court finds that the First Amendment

privilege covers communications regarding strategy and messages within each No

on 8 group’s core group…The First Amendment privilege does not cover 

communications between separate organizations.” (Emphasis added). According

to the district court, the reference in footnote 12 to “internal” communications

means that “[a]communication ‘internal’ to an organization is by definition wholly

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within that organization.” AA 0116 (Doc # 623). That interpretation, however, is

not what the text of footnote 12 says, nor can it be squared with any sensible

interpretation of this Court’s opinion.

The reference to “internal” communications in footnote 12 makes no

reference to “an organization.” It refers, instead, to communications “concerning

the formulation of campaign strategy and messages.” 591 F.3d at 1165 n.12

(emphasis in original). The limitation that phrase was intended to impose was that

the communication not be “public” and that it be related to the specific subject

matter of a campaign’s strategy or messages.2

Nor does the word “internal” carry

an inherent delineation of its scope. A communication within a particular judge’s

chambers can be “internal,” but so can a communication among members of an

appellate Panel or, for that matter, within the judicial branch as a whole. In each

case, what matters is whether the communication was intended to be “private” to

the group of addressees. Where a privilege is asserted as to such “internal”

communications, there is, then, a separate question as to whether the purpose of the

internal communication falls within the protected class—here, communications

involving campaign strategy and messaging. That is the proper inquiry here in light

2In fact, the direction for this court on remand to define a “core group” based on

“the structure of the ‘Yes on 8’ campaign” is wholly irreconcilable with the notion

that there is a privilege only for communications “internal” to some particular

group involved in the campaign.

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of the reasons why there is, or is not, a right to keep certain communications

private.3

Footnote 12’s statement that the First Amendment protects “private,

internal” communications” was no more than a restatement of its recognition that

people and groups have a First Amendment right to associate together for a

common political end. When they do so, and when they are communicating

privately within a political campaign about matters of campaign “strategy or

messages,” those constitute “internal” communications and are privileged to the

extent explained in the text in Perry.

This point has profound implications for political campaigns generally.

Campaigns often are comprised of separate organizations working together toward

a common political end: A coalition of labor unions would have every incentive to

work together to formulate an effective campaign strategy to support a pro-labor

initiative, just as oil companies might wish to work in concert to resist an initiative

intended to impose a windfall profits tax on their earnings. In particular, non-profit

organizations with limited individual means such as the ACLU and EQCA often

3 The need for a functional—as opposed to a formalistic—analysis is why the

Supreme Court in Upjohn Company v. United States, 449 U.S. 383 (1981) rejected

the so-called “control group” approach to the attorney-client privilege in favor of 

an approach that focused on the role played by various individuals in relation to the

reason why the privilege for attorney-client communications exists. See 449 U.S.

at 390-93.

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find that political success turns on their ability to work in coalition with other

groups dedicated to the same issues. While Judge Spero recognized a privilege for

communications within the highest formal level of Equality for All (an umbrella

anti-Prop 8 campaign that both the ACLU and EQCA joined as members), this

limited recognition materially fails to safeguard a privilege which protects not only

the right “to form political associations,” but to “organize and direct them in the

way that will make them most effective.” 591 F.3d at 1163 n.9 (citation omitted).

Second, Judge Spero and the district court erred in defining the nature and

scope of the “core group” whose communications regarding campaign strategy and

message are entitled to First Amendment protection. Despite a record which

clearly (and without contradiction) explained the structure of the Equality for All

campaign, including the involvement of various enumerated members of the

campaign and campaign staff in “the formulation of strategy and messages,” Judge

Spero held that they were not part of the “core group” and, hence, that their

communications were not entitled to constitutional protection. That conclusion not

only is contrary to the evidence, but it also lacks any principle that can be

reconciled with this Court’s decision in Perry.

To cite only a small part of the undisputed record evidence, Geoff Kors, the

Executive Director of EQCA and an Executive Committee member of the Equality

for All campaign, explained that members of the Equality for All “Campaign

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opinion as a whole. Instead of drawing lines, the district court needed to do what

this Court directed: figure out who “logically” is entitled to claim First

Amendment privilege for his or her strategy or message communications “in light

of the First Amendment associational interests the privilege is intended to protect.”

In reaching their conclusions, as described above, both Judge Spero and the

district court appear to have been concerned that to recognize the privilege claimed

by Appellants would cast too broad a net or be impossible to define or limit. These

concerns are simply misplaced. The limits established by this Court—and not

questioned by Appellants—are the limits of the privilege to communications

involving “strategy and messages” themselves. So long as it is only those types of 

communications (among people whose function involves sending or receiving

them) that are protected, and so long as even that protection allows for production

upon a showing of heightened relevance and the unavailability of the information

from alternative sources, there is no cause for concern either about the breadth or

the application of the appropriate analysis. Moreover, the fact that in a state with

almost thirty-seven million people, in one of the most extensive and expensive

initiative campaign in its history, a couple of hundred people are entitled to assert a

privilege for communications involving the strategy and messages of the campaign

(or particular parts of it) is neither surprising nor a cause for alarm—let alone

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 justification for interpreting this Court’s opinion in a manner so plainly at odds

with its holding and rationale.

Finally, not only are the errors in the orders appealed from clear, but the

“fix” is narrow and straightforward. Appellants do not ask the Court to reconsider

or reinterpret any portion of its opinion in Perry, nor do they suggest that it needs

to revisit the limitations it imposed. To the contrary, this Court need only declare

that the privilege recognized in that decision (including footnote 12) is to be

applied on a functional basis, to wit: that it extends to people involved in the task 

of “formulat[ing] campaign strategy and messages” and that it applies without

regard to formal limitations of numbers or title and to communications among, as

well as within, groups working together in pursuit of a common goal. Based on the

undisputed record, application of that standard requires reversal of the orders

appealed from and a direction to include the individuals identified in paragraphs 6

and 7 of the March 3, 2010 Kors declaration (AA 0043-47 (Doc # 609) as

members of the “core group” of the Equality for All campaign and to hold that

their communications, as well as communications between members of different

organizations, are privileged to the extent they involve the formulation of 

campaign strategy or messages.4

4Although this motion stresses the constitutional argument, Appellants also will

present non-constitutional grounds for reversal in their appeal—in particular,

relevance. As noted above, even the district court found it hard to determine how

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B. IRREPARABLE HARM IS CERTAIN WITHOUT A STAY.

There can be no serious issue as to the existence of irreparable harm to

Appellants if a stay does not issue. As the United States Supreme Court has

declared, the infringement of “First Amendment freedoms…unquestionably

constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality

opinion). Similarly, the Ninth Circuit repeatedly has observed that the “fact that

the [party seeking a stay has] raised serious First Amendment questions compels a

finding that there exists the potential for irreparable injury, or that at the very least

the balance of hardships tips sharply in favor [of a stay].” Cmty. House, Inc. v.

City of Boise, 490 F.3d 1041, 1059 (9th Cir. 2007) (emphasis added). See also

Gentala v. City of Tucson, 213 F.3d 1055, 1061 (9th Cir. 2000) (same).

In this case, Appellants have been directed to produce documents on a

rolling basis and to complete their full production by the end of this month.

Leaving aside the difficulty of meeting that schedule simply as a logistical matter,

the documents sought here are relevant. See AA 0110-11 (Doc # 623). Yet the

district court purported to defer to the Magistrate Judge’s relevance determination

and he, in turn, claims to have relied on this Court’s analysis in Perry. That is,

with all respect, circular and mystifying. Defining the issues for trial is a task to be

performed by the trial judge, as opposed to either this Court or a magistrate judge.

In fact, this Court in Perry expressly declined to pass on the issue of relevance,

simply accepting the district court’s determination. See 591 F.3d at 1164 n.11.

Given that fact, Judge Spero’s suggestion that “Perry…provides the best authority

to determine whether the communications sought by proponents are relevant,” is

not only mistaken but renders the entire relevance analysis wholly circular.

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the denial of a stay would prevent resolution of the important constitutional issues

presented here. As explained above, the constitutional issues raised by this appeal

involve matters of great moment, not simply for the instant case, but for future

political campaigns generally. A stay also is needed in that once privileged

materials have been disclosed, it is impossible to “undisclose” them. Admiral Ins.

Co. v. United States Dist. Court, 881 F.2d 1486, 1491 (9th Cir. 1989); United 

States v. Alanii, 169 F.3d 1189, 1193 n.4 (9th Cir. 1999).

C. A STAY WILL NOT SUBSTANTIALLY INJURE OTHERPARTIES.

Plainly there is no harm to Proponents if a stay is granted. In fact, given

their repeated statements that Appellants’ arguments actually are correct and

should have been accepted (see AA 0100-101 and n.9 (Doc # 620)) and that Judge

Spero’s and the district court’s orders with respect to Appellants should be

followed only “until a higher court reverses those decisions” (AA 0100 (Doc #

620)), it is not at all clear that they will, or can, oppose Appellants’ First

Amendment arguments. Plaintiffs have avoided taking any position with respect to

the merits of the issue, and have expressed only their concern that the issue of the

nonparty, No on 8 discovery be resolved as expeditiously as possible. Appellants

are very mindful of this concern, but believe that it can be accommodated by their

expressed willingness to move forward on an extremely expedited basis and have

proposed a briefing schedule that would conclude less than two weeks after entry

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of a stay. See Appellants’ Motion to Expedite, filed herewith. In all events, there

is no question that a delay resulting from Appellants’ seeking of appellate review

cannot outweigh Appellants’ right to protection of their First Amendment rights.

D. THE PUBLIC INTEREST STRONGLY FAVORS A STAY.

“Courts . . . have consistently recognized the significant public interest in

upholding First Amendment principles.” Sammartano v. First Judicial Dist. Court 

 for the County of Carson City, 303 F.3d 959, 974 (9th Cir. 2002) (listing cases).

This Court already has held that “discovery would likely have a chilling effect on

political association and the formulation of political expression.” Perry, 591 F.3d

at 1165. This is particularly significant here, where third party non-profit

advocacy groups are subjected to burdensome and invasive discovery as a result of 

their efforts to protect civil rights for a politically unpopular group. See, e.g.,

 Buckley v. Valeo, 424 U.S. 1, 71 (1976) (noting that “the public interest . . .

suffers” from chilled political participation).

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CONCLUSION

For the foregoing reasons, Appellants respectfully ask this Court to issue a

stay pending resolution of their appeal and/or petition for a writ of mandamus.

Dated: March 25, 2010 Stephen V. Bomse (State Bar No. 40686)

Justin M. Aragon (State Bar No. 241592)

ORRICK, HERRINGTON & SUTCLIFFE

Alan L. Schlosser (State Bar No. 49957)

Elizabeth O. Gill (State Bar No. 218311)

ACLU FOUNDATION OF NORTHERN

CALIFORNIA

By: /s/ Stephen V. Bomse

Attorneys for Petitioners/Appellants

NO ON PROPOSITION 8, CAMPAIGN FOR

MARRIAGE EQUALITY: A PROJECT OF

THE AMERICAN CIVIL LIBERTIES UNION

OF NORTHERN CALIFORNIA

Lynn H. Pasahow (State Bar No. 054283)

Carolyn Chang (State Bar No. 217933)Leslie Kramer (State Bar No. 253313)

Lauren Whittemore (State Bar No. 255432)

FENWICK & WEST LLP

Attorneys for EQUALITY CALIFORNIA

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NOTICE OF RELATED CASE

Pursuant to Ninth Circuit Rule 28-2.6 and General Order 3.7, Appellants

hereby respectfully advise the Court that the present appeal is related to Appeal

Nos. 09-17241;09-17551 decided sub. nom. Perry v. Schwarzenegger , 591 F.3d

1147 (9th Cir. 2010) , and satisfies the conditions of a “Comeback Appeal,” in that

the issue presented by this appeal relates exclusively to the meaning of  Perry and,

in particular, footnote 12 thereof.

Dated: March 25, 2010 Stephen V. Bomse (State Bar No. 40686)Justin M. Aragon (State Bar No. 241592)

ORRICK, HERRINGTON & SUTCLIFFE

Alan L. Schlosser (State Bar No. 49957)

Elizabeth O. Gill (State Bar No. 218311)

ACLU FOUNDATION OF NORTHERN

CALIFORNIA

By: /s/ Stephen V. Bomse

Attorneys for Petitioners/Appellants

NO ON PROPOSITION 8, CAMPAIGN FOR

MARRIAGE EQUALITY: A PROJECT OF

THE AMERICAN CIVIL LIBERTIES UNION

OF NORTHERN CALIFORNIA

Lynn H. Pasahow (State Bar No. 054283)

Carolyn Chang (State Bar No. 217933)

Leslie Kramer (State Bar No. 253313)Lauren Whittemore (State Bar No. 255432)

FENWICK & WEST LLP

Attorneys for EQUALITY CALIFORNIA

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Petitioners/Appellants in the above-entitled matter have today filed their

Notice of Appeal, Emergency Motion for Stay Pending Appeal and their

Certificate Pursuant to Ninth Circuit Rule designating that motion as an emergency

motion pursuant to Rule 27-3. By this motion, Appellants seek an order : (a)

Referring this appeal to the Panel that decided Perry v. Schwarzenegger, 591 F.3d

1147 (9th Cir. 2010) as a “Comeback Appeal” pursuant to Ninth Circuit General

Order 3.7 and (b) for entry of an order setting an expedited schedule for disposition

of this appeal as more fully set forth below, or as is convenient to the Court.

This appeal arises directly out of, and is exclusively concerned with,

interpretation of footnote 12 of the decision in Perry. As more fully explained in

Appellants’ emergency stay motion, it involves an order directing non-party

Appellants to produce internal, non-public campaign documents relating to the

campaign against enactment of California initiative amendment “Proposition 8.”

Appellants contend that the orders appealed from are based upon an incorrect, and

unconstitutional, application of the decision in Perry. If allowed to stand, that order

will violate Appellants’ rights under the First Amendment and create a chilling

effect upon the conduct of future political campaigns – precisely the result that

Perry was intended to avoid.

The district court has ordered Appellants to produce their documents not

later than March 31, but has stayed its order until March 29 to allow Appellants to

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2

seek further relief from this Court. It did so based upon a representation by

Appellants that they would seek extraordinary expedition of their appeal, which

they now do by this motion. Expedition is necessary because the underlying case,

involving the constitutionality of Proposition 8, has been tried and is awaiting final

argument and disposition. While Appellants consider the issues raised herein to be

of great importance, they 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.

Given the nature of the issues raised on appeal, the obvious familiarity of the

Panel that decided the prior case with the background of this matter (not to

mention, of course, the meaning of its own opinion) and the need for expedition,

reference of this matter to that Panel unquestionably is in the interests of justice.

Further, that Panel acted with extraordinary expedition in resolving the prior

appeal and, therefore, can be expected to do so in this instance as well.

With respect to schedule, Appellants are willing to file their opening merits

brief within 5 days of an order granting this motion, and in all events not later than

April 2nd. They further suggest that the time for any opposition briefs be set 5

days after the filing and service of Appellants’ Opening Brief and that the Court set

a hearing for the first convenient time thereafter, allowing the filing of any optional

Reply Brief within 3 days or within 24 hours of the time set for argument,

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3

whichever is less. (In the event the Panel cannot be reconstituted for argument

within a reasonable time, Appellants are willing to waive argument.)

WHEREFORE, Appellants request that their motion as set forth above be

granted.

Dated: March 25, 2010 Stephen V. Bomse (State Bar No. 40686)

Justin M. Aragon (State Bar No. 241592)

ORRICK, HERRINGTON & SUTCLIFFE

Alan L. Schlosser (State Bar No. 49957)

Elizabeth O. Gill (State Bar No. 218311)

ACLU FOUNDATION OF NORTHERNCALIFORNIA

By: /s/ Stephen V. Bomse

Attorneys for Petitioners/Appellants

NO ON PROPOSITION 8, CAMPAIGN FOR

MARRIAGE EQUALITY: A PROJECT OF

THE AMERICAN CIVIL LIBERTIES UNION

OF NORTHERN CALIFORNIA

Lynn H. Pasahow (State Bar No. 054283)

Carolyn Chang (State Bar No. 217933)

Leslie Kramer (State Bar No. 253313)

Lauren Whittemore (State Bar No. 255432)

FENWICK & WEST LLP

Attorneys for EQUALITY CALIFORNIA

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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 OF NORTHERN CALIFORNIA

Petitioners/Appellants

v.

KRISTIN M. PERRY, et al.,

Respondents/Appellees

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN

DISTRICT OF CALIFORNIAC 09-2292 VRW

APPELLANTS/PETITIONERS’ CERTIFICATE DESIGNATING

MOTION FOR STAY AS AN EMERGENCY MOTION

UNDER NINTH CIRCUIT RULE 27-3

Stephen V. Bomse (State Bar No. 40686) Lynn H. Pasahow (State Bar No. 054283)

Justin M. Aragon (State Bar No. 241592) Carolyn Chang (State Bar No. 217933)

ORRICK, HERRINGTON & SUTCLIFFE Leslie Kramer (State Bar No. 253313)The Orrick Building Lauren Whittemore (State Bar No. 255432)

405 Howard Street FENWICK & WEST LLP

San Francisco, CA 94105 555 California Street, 12th Floor

Telephone: (415) 773-5700 San Francisco, CA 94104

Facsimile: (415) 773-5759 Telephone: 415.875.2300

Facsimile: 415.281.1350

Alan L. Schlosser (State Bar No. 49957)

Elizabeth O. Gill (State Bar No. 218311) Attorneys for EQUALITY CALIFORNIA

ACLU FOUNDATION OF NORTHERN

CALIFORNIA

39 Drumm Street

San Francisco, CA 94111Telephone: 415-621-2493

Facsimile: 415-255-1478

Attorneys for Petitioners/Appellants

NO ON PROPOSITION 8, CAMPAIGN FOR

MARRIAGE EQUALITY: A PROJECT OF THE

AMERICAN CIVIL LIBERTIES UNION OF

NORTHERN CALIFORNIA

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Pursuant to Ninth Circuit Rule 27.3, Appellants/Petitioners (“Appellants”) in

the above-entitled case, respectfully certify that their Emergency Motion for Stay

Pending Appeal constitutes an “Emergency Motion” in that it pertains to an order

requiring the production, no later than March 31, 2010, of documents that are

subject to a privilege under the First Amendment to the United States Constitution

by non-parties to the underlying litigation in which production has been ordered.

The district court has granted a stay of that order for 7 days, until March 29, so that

emergency relief could be sought from this Court. Action by this Court is required

to “avoid irreparable harm” as set forth below and more fully explained in the

accompanying Motion. Counsel for all interested parties have been notified of the

Emergency Motion for Stay, and of this motion by telephone and electronic mail,

and the Clerk of the Court also has been notified by telephone.

In seeking the interim stay referred to above, Appellants represented to the

Court that they would request that their appeal be expedited to the greatest possible

extent so as not to delay unnecessarily disposition of the underlying case which

already has been tried by the Court. That representation is recited by the Court in

its Order of March 22, 2010 granting the requested interim stay. Appellants,

therefore, are filing herewith a Motion to Expedite Appeal seeking such expedited

consideration and to treat this case as a Comeback Appeal pursuant to General

Order 3.7.

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REASONS WHY THIS IS AN EMERGENCY MOTION

The underlying appeal in which an emergency stay is sought arises out of a

lawsuit challenging the constitutionality of Proposition 8, an initiative amendment

to the California Constitution which prevents same-sex couples from marrying in

California. Even more directly, it arises out of the decision of this Court in Perry

v. Schwarzenegger , 591 F.3d 1147 (9th Cir. 2010) which recognized a First

Amendment associational privilege that limits discovery of non-public documents

associated with a political campaign. Notwithstanding that decision, a Magistrate

Judge of the district court has directed Appellants to produce documents that

should be protected under the privilege not later than March 31, 2010, relying

exclusively upon its interpretation of a footnote in that opinion. See 591 F.3d at

1165 n.12; Doc # 610 (Exhibit 1 hereto). The district court, on March 22,

overruled Appellants' objections to that order (Doc # 623 (Exhibit 2)), although it

subsequently stayed its order for 7 days to allow Appellants an opportunity to seek 

a further stay from this Court based upon the representation of Appellants that they

would seek expedition of their appeal to the greatest extent consistent with the

convenience of this Court. Doc # 625 (Exhibit 3). See also Motion to Expedite

Appeal, filed herewith.

As more fully set forth in Appellants' Motion for Emergency Stay,

Appellants submit that the orders appealed from contradict the Court's decision in

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Perry by mis-reading footnote 12 in that opinion to deny (1) that there is any

privilege for communications among individuals associated with different

organizations who were working together in pursuit of their common interest to

attempt to defeat Proposition 8 under the aegis of an “umbrella” campaign

organization known as Equality for All and (2) the existence of a First Amendment

privilege to documents sent by or to individuals directly associated with the

campaign whose functions in the campaign involved “strategy and messages” of 

the campaign.

Appellants submit that the orders appealed from misinterpret, and materially

undermine, the intent of the Court in recognizing a privilege for internal campaign

communications in its decision in Perry, and that the misinterpretation and

misapplication of that decision not only will cause irreparable harm to Appellants,

but will have a seriously chilling effect upon the conduct of future political

campaigns. Since Appellants have been directed to produce documents in the near

future, and since the production of such documents would constitute irreparable

injury in that it would violate their rights under the First Amendment, an

Emergency Stay is required.

As more fully set forth in the Motion to Expedite Appeal, it is our respectful

recommendation that this matter be referred immediately to the Panel that decided

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Perry both because of its obvious familiarity with the background and issues in the

case as well as its ability to address the meaning of its own opinion.

Pursuant to 9th Cir. R. 27-3(a)(3)(i), the telephone numbers and addresses of 

the attorneys for the relevant parties are as follows:

Attorneys for Plaintiffs Kristin M.

Perry, Sandra B. Stier, Paul T.

Katami, and Jeffrey J. Zarillo:

Attorneys for Defendant-Intervenors

Dennis Hollingsworth, Gail J. Knight,

Martin F. Gutierrez, Hak-Shing

William Tam, Mark A. Jansson, and

ProtectMarriage.com – Yes on 8, A

Project of California Renewal:

Theodore B. Olson

Matthew C. McGill

Amir C. Tayrani

GIBSON DUNN & CRUTCHER, LLP

1050 Connecticut Avenues, N.W.

Washington, D.C. 20036

(202) 955-8668

Fax: (202) 467-0539

Andrew P. Pugno

LAW OFFICES OF ANDREW P.

PUGNO

101 Parkshore Drive, Suite 100

Folsom, CA 95630

(916) 608-3065

Fax: (916) 608-3066

Theodore J. Boutrous, Jr.

Christopher D. Dusseault

Ethan D. Dettmer

Theane Evangelis Kapur

Enrique A. Monagas

GIBSON DUNN & CRUTCHER, LLP

333 S. Grand Avenue

Los Angeles, CA 90071

(213) 229-7804

Fax: (213) 229-7520

Brian W. Raum

James A. Campbell

ALLIANCE DEFENSE FUND

15100 North 90th Street

Scottsdale, AZ 85260

(480) 444-0020

Fax: (480) 444-0028

David BoiesTheodore H. Uno

BOIES, SCHILLER & FLEXNER, LLP

333 Main Street

Armonk, NY 10504

(914) 749-8200

Charles J. CooperDavid H. Thompson

Howard C. Nielson, Jr.

Nicole J. Moss

Jesse Panuccio

Peter A. Patterson

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Fax: (914) 749-8300 COOPER AND KIRK, PLLC

1523 New Hampshire Ave., N.W.

Washington, D.C. 20036

(202) 220-9600

Fax: (202) 220-9601

WHEREFORE, Appellants' motion pursuant to Ninth Circuit Rule 27.3

should be granted.

Dated: March 25, 2010 Stephen V. Bomse (State Bar No. 40686)

Justin M. Aragon (State Bar No. 241592)

ORRICK, HERRINGTON & SUTCLIFFE

Alan L. Schlosser (State Bar No. 49957)Elizabeth O. Gill (State Bar No. 218311)

ACLU FOUNDATION OF NORTHERN

CALIFORNIA

By: /s/ Stephen V. Bomse

Attorneys for Petitioners/Appellants

NO ON PROPOSITION 8, CAMPAIGN FOR

MARRIAGE EQUALITY: A PROJECT OF

THE AMERICAN CIVIL LIBERTIES UNIONOF NORTHERN CALIFORNIA

Lynn H. Pasahow (State Bar No. 054283)

Carolyn Chang (State Bar No. 217933)

Leslie Kramer (State Bar No. 253313)

Lauren Whittemore (State Bar No. 255432)

FENWICK & WEST LLP

Attorneys for EQUALITY CALIFORNIA

Case: 10-15649 03/25/2010 Page: 6 of 6 ID: 7278932 DktEntry: 3-3

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