It's Official. Prop 8 Proponents Will Not Hand Over Internal Documents to Olson/Boies

Well, it's official. The Ninth Circuit Court has reversed Judge Walker's orders of discovery and ruled that such an order, demanding that the Yes on Prop 8 campaign hand over internal communications, violated the First Amendment protections of freedom of association.

An excerpt:

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

We have the authority to hear these appeals either under the collateral order doctrine or through the exercise of our mandamus jurisdiction. We reverse. The freedom to associate with others for the common advancement of political beliefs and ideas lies at the heart of the First Amendment. Where, as here, discovery would have the practical effect of discouraging the exercise of First Amendment associational rights, the party seeking discovery must demonstrate a need for the information sufficiently compelling to outweigh the impact on those rights.

The full order.

Ninth Circuit Court Ruling on Prop 8 Discovery

Earlier, I spoke with Yusef Robb, spokesperson for the American Foundation for Equal Rights, the group behind the Olson/Boies team, when it looked like the court would not rule in our favor. "Regardless of these discovery matters, we have prepared a powerful case to demonstrate the unconstitutionality of Proposition 8," he told me.

I also reported on a separate case that the U.S. Supreme Court ruled on earlier this week which could have touched on the Ninth Circuit Court's decision and their jurisdiction on this matter. In the excerpt above, the panel of judges claim they do have jurisdiction as an appeals court and that they would also use writ of mandamus if necessary, which is a mandate "issued by a superior court to compel a lower court or a government officer to perform mandatory or purely ministerial duties correctly."

In other words, Judge Walker must follow the reversal of his order.

This quick ruling from the Ninth Circuit Court will allow the first ever marriage trial to stay on schedule which will begin January 11.