The three judge panel of the Ninth Circuit Court of Appeals looks like they will reverse Judge Walker's orders that the Prop 8 campaign hand over internal communications to the Olson/Boies team who is challenging the discriminatory initiative in federal court.
Judges Kim Wardlaw, Raymond Fisher and Marsha Berzon, who were all appointed to the court by former President Bill Clinton, said proponents "have made a strong showing that they are likely to succeed" in their Tuesday arguments that their private communications were protected under the First Amendment. The judges said they will issue a ruling soon, but in the meantime, have stayed Walker's order. See full order posted below.
The ACLU, in a unusual move, issued an amicus brief, siding with the Prop 8 proponents despite the fact that they campaigned against the initiative.
San Francisco Chronicle reports, "Andrew Pugno, a lawyer for the Prop. 8 sponsors, said the court's order was 'very encouraging. Free speech requires protection for citizens to engage in campaigns, and that is all we are asking for.'"
Yusef Robb, spokesman for the American Foundation for Equal Rights - the group behind the Prop 8 challenge, told Unite the Fight, "Regardless of these discovery matters, we have prepared a powerful case to demonstrate the unconstitutionality of Proposition 8."
Robb also told the Chronicle that they do not expect a delay of the January 11 trial. "...we are on track to present a powerful case demonstrating that Prop. 8 violates the U.S. Constitution."
The case against Prop 8 doesn't depend on acquiring these documents. The Olson/Boies team has numerous resources to prove in court that the defendants, aka Prop 8 proponents, acted with animus toward gay and lesbian couples and intended the initiative to be discriminatory - ads, media interviews, expert testimony, witness testimony (campaign volunteers, plaintiffs, etc.), and more.
However, recourse on this particular matter depends on the final ruling of the Ninth Circuit Court judges, and as the panel declared, that will be coming soon.
12-03-0 Order in Perry v. Hollingsworth No. 09-17241 (9th Circ.)