Friday, October 9, 2009

Surprise, Surprise. Prop 8 Proponents Try to Wiggle Out of Surrendering Internal Campaign Documents to Court

San Francisco Gate reports:
Sponsors of California's ban on same-sex marriage asked a federal judge Thursday to suspend his order requiring them to disclose campaign strategy documents while they try to persuade an appeals court to overturn it.

Chief U.S. District Judge Vaughn Walker issued the order Oct. 1 at the request of lawyers for same-sex couples challenging Proposition 8, which amended the state Constitution to define marriage as the union of a man and a woman. They say notes and e-mails between planners of last year's Prop. 8 campaign might help them prove that the ballot measure was motivated by anti-gay discrimination.

Lawyers for the Yes on 8 campaign say voters were entitled to reaffirm the traditional definition of marriage and that the organizers' alleged motives are irrelevant. In Thursday's filing, they asked Walker for a stay while they sought immediate review of his order in the Ninth U.S. Circuit Court of Appeals.
Cooper goes on to complain that being forced to hand over such sensitive documents will not only violate their First Amendment rights, an argument which Walker originally shot down, but also would force future campaigns to curtail their speech with donors and volunteers.

Oh, and Cooper also claims that this is just a tactic by LGBT groups to review the Yes on 8 strategy in order to prepare for a future initiative campaign.

Basically, he's throwing a hissy fit because he didn't get his way.

First, this is obviously a stall tactic. They don't want to go to trial in January and so they hope this will cause a delay. But it's inevitable, so their going to look bad either way.

Second, how does this violate their First Amendment right of free speech? They can spew all the hate they want - unfortunately, that's their right. However, the First Amendment doesn't protect them from the consequences. Hence this trial.

Third, I play a tiny violin for them that this may keep them from spewing more hate in the future when then they try and delude people into volunteering and donating to their hypocritical campaigns.

And lastly, does Cooper really think that the Yes on 8 campaign strategy is a secret? They're a broken record, repeating themselves over and over in Maine what they vomited up here in California. It doesn't take a scientist to figure out that their strategy is to confuse people on the marriage issue by distracting voters into thinking it's about children and schools.

Cooper just fears that the documents will be revealed in court, and even worse, possibly to the public. They're probably filled with landmines that could prove that the people behind Yes on Prop 8 couldn't care less about marriage and more about hurting LGBT citizens.

But if they have truly nothing to hide, as they claim, then what's the problem, right? Riiiight.

Image of Charles Cooper by blogger Michael Petrelis from his report on the lawsuit.

Defendant-Intervenors Motion to Stay Judge Walker's Discovery Order

Added 5:45pm PST: Proposition 8 and the Right to Marry blog has some good comments on this new development, including commenter and attorney Rick Xiao stating, "Given the clear indication that Judge Walker is proceeding expeditiously to trial, these latest filings suggest that Prop. 8 proponents are pursuing a new strategy focusing more on procedural tactics which could limit discovery available to plaintiffs and pose obstacles to the fact-track trial scheduling."


  1. Thank you for covering this. This is a sleeper story; few people are paying attention to it, but it is potentially big.

    They want a delay so that these documents won't get out before November 3. Schubert is running the Maine campaign and it would be a bad thing for them if some embarrassing email leaked out 2 days before Election Day.

    The strategy is not a secret, but these internal emails are a potential nightmare. They were written by non-lawyers in the heat of a contentious campaign, and no one ever thought they would be made public. God only knows what we might find. Maybe nothing, but maybe gold. Internal emails led to criminal convictions at Enron. Emails destroyed Jack Abramoff. Entire multi-million dollar civil suits have been won or lost based entirely on emails. Schubert is right to be worried.

    UTF, if and when these documents get turned over, gay bloggers and media need to ask for them. Either Boies/Olson or the City of San Fran would have them. And if they aren't covered by a protective order, then there is nothing to prohibit any of the parties from sharing them. We owe it to Maine to get those docs.

  2. Agree on the November 3 point you made. But given that this is a Prop 8 case in California and, technically, not connected to Question 1 in Maine, the Yes on 1 side will simply turn hypocritical and say it has nothing to do with Maine (see, what happens in other states is only important when it suits their purposes).

    But of course Yes on 1 is ran by No on 8 people, so they will definitely have some explaining to do if emails come up that indict them.

    I will be sure to reach out to my contacts at AFER and the Olson/Boies team to get my hands on those documents if the judge allows for public viewing.

  3. The document request to which the defendants must respond specifically includes Schubert Flint Public Affairs. So while Marc Mutty may say that Prop 8 was a different campaign, it would surely be embarrassing for S4MM if the very people he hired to defend Maine values turned out to be purveyors of hate and discrimination. If there are anti-gay slurs in Schubert emails, they have a PR disaster on their hands. (I do agree that the impact will be much less if the offending documents come from someone other than Schubert Flint.)

    Assuming there really is real gold in those emails, I could easily see a No on 1 ad going up on this - and it would be the sort of 11th hour "hit 'em hard" ad that you have been calling for.

  4. While we all can agree that we want to see those documents, both for personal benefit as well as potentially the possibility of being able to file another law suit and overturn Prop 8 the easy way, I think we should also understand the following: While the lawyers may claim it violates Amendment 1 of the Constitution, it certainly does not. "...prohibiting the free exercise thereof; or abridging the freedom of speech,..." As long as the court can show probable cause and attain a warrant, they have the right to retrieve those documents because the Courts aren't saying that they can't speak out loud, the words were written on paper, and they're not being barred from doing so. The words were written, so now let's see what was wrote...

  5. The real significance here is not just the PR disaster Steven refers to, but a legal problem as well. If the documents demonstrate that they were motivated by animus, then that becomes evidence that Prop 8 violated the principles laid down by Romer v. Evans. Laws (and constituational amendments) cannot be enacted simply to hurt gay people. So these documents are significant for the case itself.

  6. hey phil,

    thanks for both paying attention to the machinations of the lawyers on the other side in this lawsuit, and for the photo credit and link from teh news conference after the august hearing with judge walker.