Emergency Motion For Stay Pending Appeal

Case: 10-15649 03/25/2010 Page: 1 of 24 ID: 7278932 DktEntry: 3-1
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 94111
Telephone: 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
TABLE OF CONTENTS
Page
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
-i-
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
Rules
Federal Rule of Appellate Procedure 8(a)(2).............................................................1
Ninth Circuit Rule 28-2.6 and General Order 3.7................................................... 21
-ii-
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
1
initiative amendment Proposition 8. The discovery at issue was sought by
Defendant-Intervenors in the case, the proponents of Proposition 8 (“Proponents”),
in reaction to an earlier order by the district court compelling them to produce—
over their First Amendment objections—certain of their own internal documents
containing campaign strategy and messages in support of Proposition 8.
This Court’s opinion in Perry in general affirmed that the First Amendment
protects as privileged non-public communications within political campaigns, and
the footnote in question simply explained that there are limits to the privilege—a
point that Appellants did not dispute in the district court and do not dispute here.
Rather than interpreting those limits “in light of the First Amendment associational
interests” recognized in the body of the Court’s opinion, however, the district court
interpreted it as, effectively, a retraction of the Court’s essential holding by
denying the privilege (1) to all communications among individuals associated with
different organizations or groups who were working together to defeat
Proposition 8 (with one limited exception), and (2) to communications between
numerous individuals who—on the basis of an undisputed evidentiary record—
were directly involved in the formulation of campaign strategy and messages
within the various organizations opposed to the passage of Proposition 8.
This interpretation of the First Amendment privilege at issue is untenable.
Not only can it not be squared with this Court’s decision in Perry (including, as we
2
explain hereafter, footnote 12, itself), but it also would have a broad and chilling
effect upon the conduct of future political campaigns—precisely the opposite of
the result which this Court held “the [First Amendment] privilege is intended to
protect.” 591 F.3d at 1165.
Appellants have been ordered to produce their responsive documents not
later than March 31, 2010, and the district court has agreed to stay its order only
seven days to allow a further request for stay by this Court. A stay pending appeal,
therefore, is urgently needed both to preserve this Court’s ability to review the
critical issue presented by this appeal and to prevent irreparable harm to
Appellants’ core political freedoms. Given the fact that this Court regarded the
issues raised by Perry to have been of sufficient importance to justify invocation of
the Court’s extraordinary mandamus jurisdiction and that this appeal relates to the
proper interpretation and application of that opinion, Appellants submit that the
interests of justice require that a stay issue as respectfully requested.
STATEMENT OF THE CASE1

In connection with an earlier request from plaintiffs to Proponents for the
production of non-public campaign communications, this Court held, on January 4,
2010, that there is a First Amendment privilege for non-public communications
1
In view of the page limits applicable to motions, we recite only those facts
directly pertinent to the current appeal. A fuller statement of background and
context can be found in Perry, 591 F.3d at 1152-54
3
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).
4
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 #
5
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
6
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).
7
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
8
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).
9
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
10
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
2
In 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.
11
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.
12
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
13
Committee” as well as its “campaign staff” were actively involved in the
formulation of campaign strategy and messaging. These individuals were not
extraneous outsiders to the strategic operations of the campaign, but were essential
participants in it. While “[t]he Executive Committee of Equality for All was
responsible for managing the umbrella campaign organization” (AA 0036 (Doc #
598)), “[k]ey campaign decisions made by the Executive Committee were ratified
by [the] Campaign Committee.” Id. Thus, Mr. Kors “communicated regularly
with other members of the Executive Committee, with members of the Campaign
Committee, with consultants hired by Equality for All and with staff of both
Equality for All and of the Equality for All member organizations regarding the
formulating of campaign strategy and messaging.” AA 0037 (Doc # 598).
Notwithstanding Judge Spero’s “credit[ing]” (AA 0060 (Doc # 610)) of the
undisputed record, he and the district court drew an arbitrary circle around the
Equality for All “Executive Committee” in order to limit the people “inside” the
core group. But that is reasoning backwards from a conclusion—that “core group”
was meant to be defined by reference to numbers or titles, as opposed to function.
Simply declaring that certain people who the record shows had functions related to
the formulation of campaign strategy or messages have no First Amendment
associational rights not only is not required by anything this Court said in footnote
12, but also is analytically indefensible when considered in light of the Court’s
14
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
15
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
4
Although 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
16
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.
17
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 OTHER

PARTIES.
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
18
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).
19
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

Elizabeth O. Gill (State Bar No. 218311)
CALIFORNIA
By: /s/ Stephen V. Bomse

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
20
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.

CALIFORNIA


FENWICK & WEST LLP
21
No. 10-15649

v.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF CALIFORNIA
C 09-2292 VRW
PETITIONERS/APPELLANTS’ MOTION FOR EXPEDITED APPEAL

AND FOR DESIGNATION AS “COMEBACK APPEAL”
Facsimile: 415.281.1350
CALIFORNIA
39 Drumm Street
Telephone: 415-621-2493
Facsimile: 415-255-1478

NORTHERN CALIFORNIA
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
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,
2
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.

CALIFORNIA


FENWICK & WEST LLP
3
No. 10-15649

v.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF CALIFORNIA
C 09-2292 VRW
APPELLANTS/PETITIONERS’ CERTIFICATE DESIGNATING

MOTION FOR STAY AS AN EMERGENCY MOTION
UNDER NINTH CIRCUIT RULE 27-3
Facsimile: 415.281.1350
CALIFORNIA
39 Drumm Street
Telephone: 415-621-2493
Facsimile: 415-255-1478

NORTHERN CALIFORNIA
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.
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
2
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
3
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. Attorneys for Defendant-Intervenors

Perry, Sandra B. Stier, Paul T. Dennis Hollingsworth, Gail J. Knight,
Katami, and Jeffrey J. Zarillo: Martin F. Gutierrez, Hak-Shing
William Tam, Mark A. Jansson, and
ProtectMarriage.com – Yes on 8, A
Project of California Renewal:
Theodore B. Olson Andrew P. Pugno
Matthew C. McGill LAW OFFICES OF ANDREW P.
Amir C. Tayrani PUGNO
GIBSON DUNN & CRUTCHER, LLP 101 Parkshore Drive, Suite 100
1050 Connecticut Avenues, N.W. Folsom, CA 95630
Washington, D.C. 20036 (916) 608-3065
(202) 955-8668 Fax: (916) 608-3066
Fax: (202) 467-0539
Theodore J. Boutrous, Jr. Brian W. Raum
Christopher D. Dusseault James A. Campbell
Ethan D. Dettmer ALLIANCE DEFENSE FUND
Theane Evangelis Kapur 15100 North 90th Street
Enrique A. Monagas Scottsdale, AZ 85260
GIBSON DUNN & CRUTCHER, LLP (480) 444-0020
333 S. Grand Avenue Fax: (480) 444-0028
Los Angeles, CA 90071
(213) 229-7804
Fax: (213) 229-7520
David Boies Charles J. Cooper
Theodore H. Uno David H. Thompson
BOIES, SCHILLER & FLEXNER, LLP Howard C. Nielson, Jr.
333 Main Street Nicole J. Moss
Armonk, NY 10504 Jesse Panuccio
(914) 749-8200 Peter A. Patterson
4
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.

CALIFORNIA


FENWICK & WEST LLP
5

Emergency Motion For Stay Pending Appeal

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Case: 10-15649 03/25/2010 Page: 1 of 24 ID: 7278932 DktEntry: 3-1

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

EQUALITY CALIFORNIA AND NO ON PROPOSITION 8,

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

EMERGENCY MOTION FOR STAY PENDING APPEAL

Attorneys for Petitioners/Appellants

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

Gentala v. City of Tucson,

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

United States v. Alanii,

Upjohn Company v. United States,

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

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

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

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

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

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,

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

initiative amendment Proposition 8. The discovery at issue was sought by

Defendant-Intervenors in the case, the proponents of Proposition 8 (“Proponents”),

in reaction to an earlier order by the district court compelling them to produce—

over their First Amendment objections—certain of their own internal documents

containing campaign strategy and messages in support of Proposition 8.

protects as privileged non-public communications within political campaigns, and

interpreted it as, effectively, a retraction of the Court’s essential holding by

different organizations or groups who were working together to defeat

Proposition 8 (with one limited exception), and (2) to communications between

numerous individuals who—on the basis of an undisputed evidentiary record—

were directly involved in the formulation of campaign strategy and messages

within the various organizations opposed to the passage of Proposition 8.

This interpretation of the First Amendment privilege at issue is untenable.

effect upon the conduct of future political campaigns—precisely the opposite of

protect.” 591 F.3d at 1165.

Appellants have been ordered to produce their responsive documents not

critical issue presented by this appeal and to prevent irreparable harm to

issues raised by Perry to have been of sufficient importance to justify invocation of

interests of justice require that a stay issue as respectfully requested.

STATEMENT OF THE CASE1

production of non-public campaign communications, this Court held, on January 4,

2010, that there is a First Amendment privilege for non-public communications

associational interests of individuals who choose to come together to pursue

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

heightened standard of relevance therefore must apply to requests seeking such

communications. Id. at 1160-61.

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.”

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).

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

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

production of all campaign communications regarding strategy or messages that

Appellants declined, Proponents made good on their announced intention and

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

AA 0016 (Doc # 472).

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

individuals in the formulation and implementation of campaign strategy and

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

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