You're viewing Docket Item 39.1 from the case Kristin Perry, et al v. Dennis Hollingsworth, et al. View the full docket and case details.

Download this document:




Case: 09-17241 12/24/2009 ID: 7175570 DktEntry: 39-1 Page: 1 of 27

No. 09-17241



IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT
_________________________
KRISTIN M. PERRY, et al.,

Plaintiffs-Appellees,

v.

ARNOLD SCHWARZENEGGER, et al.,

Defendants,

and

PROPOSITION 8 OFFICIAL PROPONENTS

DENNIS HOLLINGSWORTH, et al.,







Defendant-Intervenors-Appellants.


_________________________

On Appeal From The United States District Court

For The Northern District Of California

Opinion Filed December 11, 2009

____________________________________________________

(Wardlaw, Fisher, Berzon)

APPELLEES’ PETITION FOR REHEARING AND REHEARING EN BANC

____________________________________________________

THEODORE J. BOUTROUS, JR.
THEANE EVANGELIS KAPUR
ENRIQUE A. MONAGAS
GIBSON, DUNN & CRUTCHER LLP
333 South Grand Avenue
Los Angeles, CA 90071
(213) 229-7804


THEODORE B. OLSON
Counsel of Record
MATTHEW D. MCGILL
AMIR C. TAYRANI
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Avenue, N.W.
Washington, D.C. 20036
(202) 955-8500

Attorneys for Plaintiffs-Appellees Kristin M. Perry, Sandra B. Stier,

Paul T. Katami, and Jeffrey J. Zarrillo









Case: 09-17241 12/24/2009 ID: 7175570 DktEntry: 39-1 Page: 2 of 27



TABLE OF CONTENTS

STATEMENT PURSUANT TO FED. R. APP. P. 35(b)..........................................1

FACTUAL AND PROCEDURAL BACKGROUND ..............................................3

REASONS FOR GRANTING REHEARING ..........................................................9



I.

II.

THE PANEL’S ASSERTION OF APPELLATE JURISDICTION AND ITS
ISSUANCE OF MANDAMUS RELIEF CONFLICT WITH THE
SUPREME COURT’S DECISION IN MOHAWK.............................................9

THE PANEL’S ISSUANCE OF MANDAMUS RELIEF CONFLICTS
WITH DECISIONS THAT RESTRICT MANDAMUS TO TRULY
“EXTRAORDINARY” ERRORS AND THAT ESTABLISH STRINGENT
PREREQUISITES TO FIRST AMENDMENT PRIVILEGE CLAIMS.................14

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



i

Case: 09-17241 12/24/2009 ID: 7175570 DktEntry: 39-1 Page: 3 of 27



Cases

TABLE OF AUTHORITIES

Page(s)

Bauman v. U.S. Dist. Court,

557 F.2d 650 (9th Cir. 1977)..................................................................... 8, 13, 15

Burlington N. & Santa Fe Ry. Co. v. U.S. Dist. Court,

408 F.3d 1142 (9th Cir. 2005)............................................................... 5, 8, 14, 18

Cheney v. U.S. Dist. Court,

542 U.S. 367 (2004) ........................................................................ 2, 3, 14, 15, 19

City of Las Vegas v. Foley,

747 F.2d 1294 (9th Cir. 1984)..............................................................................17

Dole v. Serv. Employees Union AFL-CIO, Local 280,

950 F.2d 1456 (9th Cir. 1991)................................................. 2, 11, 15, 16, 17, 18

McLaughlin v. Serv. Employees Union AFL-CIO, Local 280,

880 F.2d 170 (9th Cir. 1989)......................................................................... 15, 16

Mohawk Indus., Inc. v. Carpenter,

No. 08-678, _ U.S. _ (Dec. 8, 2009)............................ 1, 2, 3, 7, 10, 11, 12, 13, 19

Mothershed v. Justices of the Supreme Court,

410 F.3d 602 (9th Cir. 2005)................................................................................12

N.Y. State Club Ass’n v. City of New York,

487 U.S. 1 (1988) .................................................................................................17

Romer v. Evans,

517 U.S. 620 (1996) .............................................................................................16

United States ex rel. Aflatooni v. Kitsap Physicians Serv.,

314 F.3d 995 (9th Cir. 2002)................................................................................18

Will v. United States,

389 U.S. 90 (1967) ...............................................................................................19



ii

Case: 09-17241 12/24/2009 ID: 7175570 DktEntry: 39-1 Page: 4 of 27


Constitutional Provisions

Cal. Const. art. I, § 7.5 ...............................................................................................4

Statutes

28 U.S.C. § 1651............................................................................................... 1, 7, 8



iii

Case: 09-17241 12/24/2009 ID: 7175570 DktEntry: 39-1 Page: 5 of 27



STATEMENT PURSUANT TO FED. R. APP. P. 35(b)

Plaintiffs Kristin M. Perry, Sandra B. Stier, Paul T. Katami, and Jeffrey J.

Zarrillo respectfully petition for rehearing or rehearing en banc of the Panel’s

decision (attached as Ex. A). Plaintiffs’ suit challenges the constitutionality of

California’s Proposition 8 (“Prop. 8”), a voter-enacted initiative that stripped gay

and lesbian individuals of their fundamental right to marry. That suit is scheduled

to go to trial in the Northern District of California on January 11, 2010—and thus

no final judgment has been entered by the district court. The Panel nevertheless

held that it had jurisdiction under the collateral order doctrine and the All Writs

Act, 28 U.S.C. § 1651, to reverse two nonfinal discovery orders that rejected First

Amendment privilege claims asserted by Defendant-Intervenors Proposition 8

Official Proponents (“Proponents”).

Rehearing is warranted because the Panel’s opinion conflicts with the U.S.

Supreme Court’s decision in Mohawk Industries, Inc. v. Carpenter, No. 08-678, _

U.S. _ (Dec. 8, 2009), which held that “[p]ostjudgment appeals . . . suffice to

protect the rights of litigants” seeking review of nonfinal attorney-client privilege

determinations and that the collateral order doctrine therefore does not confer

appellate jurisdiction over such rulings. Mohawk slip op. at 1. Mohawk’s

reasoning applies with equal force to the First Amendment privilege—which,



1

Case: 09-17241 12/24/2009 ID: 7175570 DktEntry: 39-1 Page: 6 of 27


unlike the attorney-client privilege, is a qualified privilege—and thus categorically

precludes collateral order jurisdiction over First Amendment privilege claims.

Mohawk also eliminates the possibility of the “drastic and extraordinary remedy”

of mandamus in connection with such claims (Cheney v. U.S. Dist. Court, 542 U.S.

367, 380 (2004) (internal quotation marks omitted)), unless the petitioner can

demonstrate that, unlike in Mohawk, “a [p]ostjudgment appeal[ ]” will not “suffice

to protect [its] rights.” Mohawk slip op. at 1. Proponents have not made that

showing in this case.

Rehearing is also necessary because the Panel relied on a declaration that it

conceded was “lacking in particularity” when it issued mandamus relief to deny

Plaintiffs access to relevant evidence. Panel slip op. at 33. That ruling conflicts

with this Court’s decision in Dole v. Service Employees Union AFL-CIO, Local

280, 950 F.2d 1456 (9th Cir. 1991), which held that a First Amendment privilege

claim can only be sustained where the “record . . . contain[s] objective and

articulable facts, which go beyond broad allegations or subjective fears” (id. at

1460 (internal quotation marks omitted)), and where “the information sought” is

not “rationally related to a compelling governmental interest.” Id. at 1461 (internal

quotation marks omitted). Because the generalized and equivocal declaration

produced by Proponents does not satisfy that standard—and because, as the Panel



2

Case: 09-17241 12/24/2009 ID: 7175570 DktEntry: 39-1 Page: 7 of 27


itself recognized, “the information sought” was “reasonably calculated to lead to

the discovery of admissible evidence” in support of Plaintiffs’ constitutional

challenge (Panel slip op. at 34)—Dole mandated the rejection of Proponents’

privilege claim. At a minimum, that decision—and the absence of any precedent

recognizing Proponents’ novel invocation of the First Amendment privilege—

establishes that, even if the district court’s rulings were ultimately deemed to be

incorrect, they did not amount to “a judicial usurpation of power or a clear abuse of

discretion.” Cheney, 542 U.S. at 380 (internal quotation marks omitted). The

“drastic” remedy of mandamus was accordingly inappropriate. Id.

Consideration by the full Court is therefore necessary to secure and maintain

the uniformity of this Court’s decisions, to prevent “piecemeal, prejudgment

appeals” from “undermin[ing] efficient judicial administration” (Mohawk slip op.

at 5 (internal quotation marks omitted)), and to ensure that vague and generalized

invocations of the First Amendment privilege are not used to shield relevant

material from discovery.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs filed this suit in the Northern District of California challenging the

constitutionality of Prop. 8, a California constitutional amendment that provides

that “[o]nly marriage between a man and a woman is valid or recognized in



3

Case: 09-17241 12/24/2009 ID: 7175570 DktEntry: 39-1 Page: 8 of 27


California.” Cal. Const. art. I, § 7.5. Plaintiffs contend that Prop. 8 violates the

Due Process and Equal Protection Clauses of the United States Constitution

because it impermissibly stripped gay and lesbian individuals of the right to marry

previously recognized by the California Supreme Court and relegated them to the

inherently unequal institution of domestic partnership.

In accordance with an expedited, fourteen-week discovery schedule

established by the district court in advance of a January 11, 2010 trial date,

Plaintiffs propounded discovery requests intended to investigate whether Prop. 8

was motivated in part by discriminatory and irrational views toward gay and

lesbian individuals. For example, Plaintiffs requested communications between

Proponents and the managers of the Yes on 8 campaign in an effort to obtain

information about the campaign strategy developed by Proponents and their

public-relations consultants and, in particular, whether that strategy was intended

to appeal to the moral disapproval that some voters may harbor toward gay and

lesbian relationships.

When propounding these requests, Plaintiffs made clear that they were

willing to agree to an “attorneys-eyes only” protective order and the redaction of

the names of Proponents’ rank-and-file volunteers. Proponents nevertheless

resisted Plaintiffs’ discovery requests, and sought a protective order from the



4

Case: 09-17241 12/24/2009 ID: 7175570 DktEntry: 39-1 Page: 9 of 27


district court that prohibited any discovery into any documents or communications

concerning Prop. 8 unless Proponents had already made those documents available

to the public at large. Proponents further argued that the discovery sought by

Plaintiffs was irrelevant and that it was privileged from disclosure under the First

Amendment.

On October 1, 2009, the district court rejected Proponents’ First Amendment

privilege claim both on the merits and on the ground that Proponents had failed to

produce a privilege log, “a necessary condition to preservation of any privilege.”

Doc # 214 at 9; see also Burlington N. & Santa Fe Ry. Co. v. U.S. Dist. Court, 408

F.3d 1142, 1149 (9th Cir. 2005). The court did determine, however, that one of

Plaintiffs’ discovery requests was “overly broad” because it requested

communications relating to Prop. 8 between Proponents and any third party.

Doc # 214 at 17. In accordance with the court’s direction that Plaintiffs “revise

th[at] request and tailor it to relevant factual issues” (id.), Plaintiffs served a

narrowed version of that request that was limited to Prop. 8-related

communications between Proponents and their campaign consultants, strategists,



5

Case: 09-17241 12/24/2009 ID: 7175570 DktEntry: 39-1 Page: 10 of 27


and agents.1

Proponents thereafter submitted for the district court’s in camera review a

sample of 60 specific documents that they claimed to be responsive to the now-

narrowed request but privileged under the First Amendment. After undertaking a

careful document-by-document review, the district court issued an order on

November 11, 2009, that found that the “qualified First Amendment privilege does

not provide the documents much, if any, protection against disclosure.” Doc # 252

at 2. Applying a more exacting responsiveness test than usually governs under

Rule 26(b), however, the court found that 39 of those documents were “not

responsive” and therefore not discoverable because they fell at or beyond the

“margin of potentially responsive discovery.” Id. at 6, 8, 9. The court directed

Proponents to produce the other 21 documents, which it found to be “responsive”

to Plaintiffs’ discovery request. Id. at 4. Proponents nevertheless persisted in their

refusal to produce the responsive documents, and Magistrate Judge Spero therefore

1 The revised request sought production of documents “that constitute analyses of,



or communications related to, . . . (1) campaign strategy in connection with
Prop. 8; and (2) messages to be conveyed to voters regarding Prop. 8,” but was
“limited to those who (1) had any role in managing or directing
ProtectMarriage.com or the Yes on 8 campaign, or (2) provided advice,
counseling, information, or services with respect to efforts to encourage persons
to vote for Prop. 8 or otherwise educate persons about Prop. 8.” Letter from
Ethan D. Dettmer to Nicole J. Moss at 1, 2 (Oct. 5, 2009).



6

Case: 09-17241 12/24/2009 ID: 7175570 DktEntry: 39-1 Page: 11 of 27


entered a subsequent order that required Proponents to produce the documents by

November 30, 2009, and directed the parties to negotiate a protective order

limiting their dissemination. Doc # 259 at 5-6.

Proponents noticed interlocutory appeals on the purported basis of the

collateral order doctrine and, in the alternative, petitioned for writs of mandamus

from the district court’s October 1 and November 11 discovery orders. After

consolidating those appeals and granting a temporary stay of the district court’s

orders, the Panel reversed and, exercising jurisdiction under both the collateral

order doctrine and the All Writs Act, 28 U.S.C. § 1651, directed the district court

to enter a protective order shielding Proponents from any discovery of their

“private, internal campaign communications.” Panel slip op. at 36 n.12.2



In so ruling, the Panel acknowledged that, “[w]hile this appeal was pending,

the Supreme Court decided Mohawk Industries, Inc. v. Carpenter, 558 U.S. _ (Dec.

8, 2009), holding that discovery orders concerning the attorney-client privilege are

not appealable under the collateral order doctrine.” Panel slip op. at 10. The Panel

conceded that, in light of Mohawk, the existence of appellate jurisdiction was “a

2 Proponents have since taken the position that “private, internal campaign



communications” include any communications that did not go “to the electorate
at large or to discrete groups of voters” even if those communications were
widely disseminated to Proponents’ “political associates.” Doc # 314 at 15.



7

Case: 09-17241 12/24/2009 ID: 7175570 DktEntry: 39-1 Page: 12 of 27


close question” and that at least “[s]ome of Mohawk’s reasoning carries over to the

First Amendment privilege.” Id. The Panel was nevertheless “inclined to believe

that the First Amendment privilege is distinguishable from the attorney-client

privilege” and that, notwithstanding Mohawk, the collateral order doctrine affords

appellate jurisdiction over interlocutory orders denying First Amendment privilege

claims. Id. at 13.



In the alternative, the Panel held that it had mandamus jurisdiction under the

All Writs Act, 28 U.S.C. § 1651, and that the prerequisites to the “‘extraordinary

remedy’” of mandamus identified by this Court in Bauman v. United States

District Court, 557 F.2d 650 (9th Cir. 1977), had been satisfied. Panel slip op. at

15 (quoting Burlington N., 408 F.3d at 1146). The Panel held that in the absence

of mandamus relief, Proponents would be “damaged or prejudiced in . . . [a] way

not correctable on appeal.” Id. at 16. According to the Panel, a “post-judgment

appeal would not provide an effective remedy, as no such review could prevent the

damage that [Proponents] allege they will suffer or afford effective relief

therefrom.” Id. at 18 (internal quotation marks omitted).



The Panel further concluded that, insofar as the district court’s discovery

orders permitted discovery of Proponents’ private, internal campaign

communications, they represented “clear error.” Panel slip op. at 20. According to



8

Case: 09-17241 12/24/2009 ID: 7175570 DktEntry: 39-1 Page: 13 of 27


the Panel, Proponents made “a prima facie showing of arguable first amendment

infringement” by submitting a declaration from a member of

ProtectMarriage.com’s ad hoc executive committee that—while “lacking in

particularity”—“create[d] a reasonable inference that disclosure would have the

practical effects of discouraging political association and inhibiting internal

campaign communications” in the future. Id. at 32, 33. Mandamus was

appropriate, the Panel concluded, because Plaintiffs had failed “to demonstrate a

sufficiently compelling need for the discovery to counterbalance that

infringement.” Id. at 34. The Panel ordered that “extraordinary” remedy even

though it acknowledged that “the First Amendment interests at stake here are not

as weighty as in some . . . [other] cases,” that the “harms can be mitigated in part

by entry of a protective order,” and that “plaintiffs have shown that the information

they seek is reasonably calculated to lead to the discovery of admissible evidence.”

Id. at 36.

REASONS FOR GRANTING REHEARING

I.

THE PANEL’S ASSERTION OF APPELLATE JURISDICTION AND ITS ISSUANCE
OF MANDAMUS RELIEF CONFLICT WITH THE SUPREME COURT’S
DECISION IN MOHAWK .



The Panel was “inclined to conclude that” it possessed “jurisdiction under

the collateral order doctrine” to review the district court’s nonfinal discovery



9

Case: 09-17241 12/24/2009 ID: 7175570 DktEntry: 39-1 Page: 14 of 27


orders; in the alternative, the Panel held that mandamus relief was appropriate

because a “post-judgment appeal would not provide an effective remedy” for an

erroneous order compelling disclosure of privileged information. Panel slip op. at

15, 18. Both aspects of the Panel’s jurisdictional reasoning conflict with Mohawk.



In Mohawk, the Supreme Court held that the collateral order doctrine does

not provide appellate courts with jurisdiction over nonfinal district court orders

denying attorney-client privilege claims because such orders are not “effectively

unreviewable on appeal from the final judgment in the underlying action.”

Mohawk slip op. at 4-5 (internal quotation marks omitted). The Court explained

that district court orders denying attorney-client privilege claims do not fall with

the “small class of collateral rulings” that are “deemed ‘final’” for appellate

purposes because “[p]ostjudgment appeals . . . suffice to protect the rights of

litigants and preserve the vitality of the attorney-client privilege.” Id. at 1-2, 4

(internal quotation marks omitted). The Court reasoned that “[a]ppellate courts

can remedy the improper disclosure of privileged material in the same way they

remedy a host of other erroneous evidentiary rulings: by vacating an adverse

judgment and remanding for a new trial.” Id. at 8. Furthermore, district courts

could use “protective orders . . . to limit the spillover effects of disclosing sensitive

information.” Id. at 11. “Permitting piecemeal, prejudgment appeals” is not



10

Case: 09-17241 12/24/2009 ID: 7175570 DktEntry: 39-1 Page: 15 of 27


warranted, however, because such appeals “undermine[ ] ‘efficient judicial

administration’ and encroach[ ] upon the prerogatives of district court judges, who

play a ‘special role’ in managing ongoing litigation.” Id. at 5.

Both the Panel’s decision to exercise appellate jurisdiction in this case, and

its issuance of mandamus relief, directly conflict with Mohawk. The Supreme

Court’s holding that the collateral order doctrine does not extend to attorney-client

privilege claims applies with equal (if not greater) force to the First Amendment

privilege—which, unlike absolute privileges such as the attorney-client privilege,

is a qualified privilege that involves a balancing test and thus can be overcome

where a party’s interest in obtaining discovery outweighs the First Amendment

interests at stake. See Dole v. Serv. Employees Union AFL-CIO, Local 280, 950

F.2d 1456, 1461 (9th Cir. 1991). Just as “[p]ostjudgment appeals . . . suffice to

protect the rights of litigants and preserve the vitality of the attorney-client

privilege” (Mohawk slip op. at 1-2), appeals after judgment—together with

appropriately fashioned protective orders—“suffice to protect the rights” of a party

whose First Amendment privilege claim is denied by a district court. Indeed, in

this case, Plaintiffs were willing to agree to an “attorneys-eyes only” protective

order and the redaction of the names of Proponents’ rank-and-file volunteers,

which would have drastically restricted the dissemination of the discoverable



11

Case: 09-17241 12/24/2009 ID: 7175570 DktEntry: 39-1 Page: 16 of 27


materials and preserved Proponents’ ability to vindicate their purported First

Amendment rights “in the same way” that other “erroneous evidentiary rulings”

are challenged—through a postjudgment appeal. Id. at 8.

The Panel’s narrow reading of Mohawk provides litigants with a roadmap

for circumventing that decision’s limitations on the collateral order doctrine and

inundating this Court with interlocutory appeals of nonfinal privilege

determinations. In light of the vast breadth of the First Amendment’s protections,

litigants seeking interlocutory review of a district court’s denial of a privilege

claim now need only recast that claim as one based on the First Amendment.

Indeed, it is well-established that the attorney-client relationship is protected by the

First Amendment. See Mothershed v. Justices of the Supreme Court, 410 F.3d

602, 611 (9th Cir. 2005) (“the right to hire and consult an attorney is protected by

the First Amendment’s guarantee of freedom of speech”) (internal quotation marks

omitted). Under the Panel’s reasoning, a party resisting discovery of

communications with his attorney could secure immediate appellate review of a

district court ruling by simply arguing that the communications in question are

privileged under the First Amendment. The delay, disruption, and inefficiency that

would inevitably be generated by such an expansion of the collateral order doctrine



12

Case: 09-17241 12/24/2009 ID: 7175570 DktEntry: 39-1 Page: 17 of 27


is starkly evident from this appeal—which remains pending in this Court less than

three weeks before Plaintiffs’ claims are scheduled to go to trial.

The Panel’s issuance of mandamus relief is equally at odds with Mohawk.

As the Panel recognized, mandamus relief is only appropriate where “the petitioner

will be damaged or prejudiced in any way not correctable on appeal.” Panel slip

op. at 16 (quoting Bauman, 557 F.2d at 654). But, Mohawk explicitly held that

“[p]ostjudgment appeals . . . suffice to protect the rights of litigants” who are

asserting a privilege claim. Mohawk slip op. at 1. Mandamus is therefore

unavailable to remedy an erroneous privilege ruling—except in truly exceptional

cases where disclosure of the information would cause immediate and irreparable

harm beyond the disclosure itself (such as physical reprisals against a confidential

police informant or media source, or threats to national security), and where the

district court has refused to enter a suitable protective order to ameliorate that

harm. Proponents did not satisfy those prerequisites to mandamus relief here,

where the information sought by Plaintiffs would be viewed by “attorneys-eyes

only” and where any unwarranted chilling effect that disclosure might have on

Proponents’ future First Amendment activities could be remedied by a

postjudgment appellate ruling upholding Proponents’ privilege claim.





13

Case: 09-17241 12/24/2009 ID: 7175570 DktEntry: 39-1 Page: 18 of 27


II. THE PANEL’S ISSUANCE OF MANDAMUS RELIEF CONFLICTS WITH

DECISIONS THAT RESTRICT MANDAMUS TO TRULY “EXTRAORDINARY”
ERRORS AND THAT ESTABLISH STRINGENT PREREQUISITES TO FIRST
AMENDMENT PRIVILEGE CLAIMS.



The Panel held that the district court had committed “clear error” when it

denied Proponents’ privilege claims—and that mandamus relief was therefore

appropriate—because Proponents made “a prima facie showing of arguable first

amendment infringement” and Plaintiffs had failed “to demonstrate a sufficiently

compelling need for the discovery to counterbalance that infringement.” Panel slip

op. at 32, 34 (internal quotation marks omitted). The Panel’s issuance of

mandamus relief disregards the significant restrictions that both the Supreme Court

and this Court have imposed on the availability of mandamus, as well as the

demanding showing that a party must make to succeed on a First Amendment

privilege claim.



Mandamus is a “drastic and extraordinary remedy reserved for really

extraordinary causes.” Cheney v. U.S. Dist. Court, 542 U.S. 367, 380 (2004)

(internal quotation marks omitted). “[O]nly exceptional circumstances amounting

to a judicial usurpation of power or a clear abuse of discretion will justify the

invocation of” mandamus. Id. (internal quotation marks omitted). The party

seeking mandamus must make a “‘clear and indisputable’” showing that these

“exceptional circumstances” are present (Burlington N., 408 F.3d at 1146 (quoting


14

Case: 09-17241 12/24/2009 ID: 7175570 DktEntry: 39-1 Page: 19 of 27


Cheney, 542 U.S. at 381)), including by demonstrating that “the district court’s

order is ‘clearly erroneous as a matter of law.’” Id. (quoting Bauman, 557 F.2d at

654-55).



Proponents did not come close to making the “extraordinary” showing that

must be made to obtain mandamus relief. Indeed, the rejection of Proponents’

privilege claims was compelled by this Court’s precedent defining the scope of that

privilege.



This Court has made clear that “[b]are allegations of possible first

amendment violations are insufficient to justify” a First Amendment privilege

claim. McLaughlin v. Serv. Employees Union AFL-CIO, Local 280, 880 F.2d 170,

175 (9th Cir. 1989). The record must instead contain “objective and articulable

facts, which go beyond broad allegations or subjective fears.” Id. (internal

quotation marks omitted). Applying that standard, the Court held in Dole that a

union had made the requisite First Amendment showing by submitting two letters

from members who made absolutely clear that “they could no longer attend

meetings” if the minutes of those meetings were disseminated to government

officials. 950 F.2d at 1460; see also id. (quoting one of the letters, which stated

that “I will not attend or participate at all membership and executive board

meetings” if the minutes are disclosed).



15

Case: 09-17241 12/24/2009 ID: 7175570 DktEntry: 39-1 Page: 20 of 27




In this case, in contrast, the Panel relied on a declaration from a member of

ProtectMarriage.com’s ad hoc executive committee that the Panel acknowledged to

be “lacking in particularity” to uphold Proponents’ First Amendment privilege

claim. Unlike the letters submitted in Dole—which expressed the union members’

unequivocal intention not to attend meetings in the future if their meeting minutes

were disclosed (950 F.2d at 1460)—the declaration on which the Panel relied

offered only the equivocal statement that, if discovery were permitted regarding

Proponents’ private, internal campaign communications, the declarant would be

“less willing to engage in [similar] communications” in the future and “would have

to seriously consider whether to even become an official proponent again.” Panel

slip op. at 32, 33.



Such indefinite and uncertain allegations “of possible first amendment

violations” fall far short of the “objective and articulable facts” required to sustain

invocation of the First Amendment privilege (McLaughlin, 880 F.2d at 175) and to

shield from discovery materials that the Panel itself described as “admissible

evidence on the issues of voter intent and the existence of a legitimate state

interest.” Panel slip op. at 34; see also Romer v. Evans, 517 U.S. 620, 634 (1996)

(a “bare . . . desire” by voters “to harm a politically unpopular group cannot

constitute a legitimate governmental interest”) (internal quotation marks and



16

Case: 09-17241 12/24/2009 ID: 7175570 DktEntry: 39-1 Page: 21 of 27


emphasis omitted). The district court’s denial of Proponents’ privilege claims was

therefore not only consistent with—but was actually required by—this Court’s

precedent.3



The Panel’s opinion further conflicts with, or at least significantly expands

on, Dole because, under the controlling standard established in that decision, a

party seeking discovery can rebut a prima facie case for First Amendment

protection where “the information sought . . . is rationally related to a compelling

governmental interest.” 950 F.2d at 1461 (internal quotation marks omitted;

alteration in original). Plaintiffs satisfied that standard because they have a

compelling interest in vindicating their due process and equal protection rights

abridged by Prop. 8 (see N.Y. State Club Ass’n v. City of New York, 487 U.S. 1, 14

n.5 (1988)), and because, as the Panel itself recognized, Plaintiffs’ discovery

“request is reasonably calculated to lead to the discovery of admissible evidence”

in support of Plaintiffs’ constitutional challenge. Panel slip op. at 34. The Panel

3
In light of the Panel’s acknowledgment that the discovery sought by Plaintiffs
would lead to “admissible evidence . . . on the issue of voter intent,” this
Court’s decision in City of Las Vegas v. Foley, 747 F.2d 1294 (9th Cir. 1984),
does not support its issuance of mandamus. In Foley, the Court ordered
mandamus to bar discovery into legislators’ subjective intentions precisely
because the plaintiff had not demonstrated that the disputed discovery would
“provide relevant and needed information to support its [constitutional]
challenge.” Id. at 1297.



17

Case: 09-17241 12/24/2009 ID: 7175570 DktEntry: 39-1 Page: 22 of 27


nevertheless sustained Proponents’ privilege claim on the ground that Plaintiffs

had “not shown a sufficiently compelling need for the information.” Id. at 36.

That “compelling need” standard cannot be reconciled with Dole’s holding that a

prima facie First Amendment privilege claim can be rebutted whenever there is a

“rational[ ] relationship” between the discovery request and a “compelling

governmental interest.” 950 F.2d at 1461 (emphasis added; internal quotation

marks omitted). Whatever its merits, the Panel has established a new First

Amendment standard in this Circuit, and it cannot have been “clear error” for the

district court to have failed to anticipate that new standard.



Moreover, even if Proponents had established that the district court’s

application of Dole was incorrect, that error would be far from the “indisputable”

showing of “clear error” required to warrant the “extraordinary” remedy of

mandamus. Burlington N., 408 F.3d at 1146 (internal quotation marks omitted).

“District courts have wide latitude in controlling discovery” (United States ex rel.

Aflatooni v. Kitsap Physicians Serv., 314 F.3d 995, 1000 (9th Cir. 2002)), and, in

exercising that discretion in complex cases, are often required to make dozens of

decisions (many of them on short notice) to resolve discovery disputes between the

parties. The fact that this Court may ultimately disagree with the district court’s

application of one of its precedents to a novel discovery issue does not mean that



18

Case: 09-17241 12/24/2009 ID: 7175570 DktEntry: 39-1 Page: 23 of 27


the aggrieved party is entitled to the “drastic” remedy of mandamus to correct that

decision. See Will v. United States, 389 U.S. 90, 104 (1967) (“Mandamus . . . does

not run the gauntlet of reversible errors.”) (internal quotation marks omitted). Like

a broad application of the collateral order doctrine, such permissive issuance of

mandamus relief would “unduly delay the resolution of district court litigation and

needlessly burden the Courts of Appeals.” Mohawk slip op. at 11.



Here, neither the Panel nor Proponents identified any precedent from any

court that upheld the novel First Amendment privilege claim advanced by

Proponents. Moreover, the Panel itself recognized that “the First Amendment

interests at stake here are not as weighty as in some . . . [other] cases,” that the

“harms can be mitigated in part by entry of a protective order,” and that “plaintiffs

have shown that the information they seek is reasonably calculated to lead to the

discovery of admissible evidence.” Panel slip op. at 34, 36. Together with the

absence of precedent contradicting the district court’s rulings, these concessions

are more than sufficient to demonstrate that, even if the district court was incorrect,

its rulings do not amount to the “judicial usurpation of power” or the “clear abuse

of discretion” that alone “will justify the invocation of” mandamus. Cheney, 542

U.S. at 380.





19

Case: 09-17241 12/24/2009 ID: 7175570 DktEntry: 39-1 Page: 24 of 27





CONCLUSION

This Court should grant rehearing or rehearing en banc.

Dated: December 24, 2009




By /s/ Theodore B. Olson

GIBSON, DUNN & CRUTCHER LLP
Theodore B. Olson
Matthew D. McGill
Amir C. Tayrani
1050 Connecticut Avenue, N.W.
Washington, D.C. 20036
Telephone: (202) 955-8668
Facsimile: (202) 467-0539

Theodore J. Boutrous, Jr.
Theane Evangelis Kapur
Enrique A. Monagas
333 S. Grand Avenue
Los Angeles, California 90071
Telephone: (213) 229-7804
Facsimile: (213) 229-7520



Attorneys for Plaintiffs-Appellees
KRISTIN M. PERRY, SANDRA B. STIER,
PAUL T. KATAMI, and JEFFREY J.
ZARRILLO



20

Case: 09-17241 12/24/2009 ID: 7175570 DktEntry: 39-1 Page: 25 of 27



CERTIFICATE OF COMPLIANCE WITH

CIRCUIT RULES 35-4 AND 40-1



I certify that pursuant to Circuit Rules 35-4 and 40-1 the attached petition for

rehearing and rehearing en banc is:

_X_ Proportionately spaced, has a typeface of 14 points, and contains 4,159

words.

Dated: December 24, 2009





By /s/ Theodore B. Olson









Case: 09-17241 12/24/2009 ID: 7175570 DktEntry: 39-1 Page: 26 of 27

CERTIFICATE OF SERVICE

When All Case Participants are Registered for the

Appellate CM/ECF System

I hereby certify that on
, I electronically filed the foregoing
with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit
by using the appellate CM/ECF system.

(date)

I certify that all participants in the case are registered CM/ECF users and that service will
be accomplished by the appellate CM/ECF system.

Signature

***********************************************************************

CERTIFICATE OF SERVICE

When Not All Case Participants are Registered for the

Appellate CM/ECF System

I hereby certify that on
, I electronically filed the foregoing
with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit
by using the appellate CM/ECF system.

Dec 24, 2009

(date)

Participants in the case who are registered CM/ECF users will be served by the appellate
CM/ECF system.

I further certify that some of the participants in the case are not registered CM/ECF users.
I have mailed the foregoing document by First-Class Mail, postage prepaid, or have
dispatched it to a third party commercial carrier for delivery within 3 calendar days to the
following non-CM/ECF participants:

Please see attached service list attachment.

Signature

/s/Theodore B. Olson

Case: 09-17241 12/24/2009 ID: 7175570 DktEntry: 39-1 Page: 27 of 27

SERVICE LIST



Case Name: Perry, et al. v. Hollingsworth, et al.
Case No: U.S. Court of Appeals, Ninth Circuit, Case No. 09-17241



(Consolidated with Case No. 09-17551 as of 11/19/09)







Andrew P. Pugno
THE LAW OFFICES OF ANDREW
P. PUGNO
101 Parkshore Dr., Suite 100
Folsom, CA 95630

Nicole Moss
Howard C. Neilson, Jr.
Peter A. Patterson
David H. Thompson
COOPER & KIRK, PLLC
1523 New Hampshire Ave., N.W.
Washington, DC 20036

Alan L. Schlosser
Elizabeth O. Gill
ACLU FOUNDATION OF NORTHERN
CALIFORNIA INC.
39 Drumm St.
San Francisco, CA 94111

Jon W. Davidson
LAMBDA LEGAL DEFENSE AND
EDUCATION FUND, INC.
Ste. 1300
3325 Wilshire Blvd.
Los Angeles, CA 90010-1729

Matthew A. Coles
ACLU LGBT & AIDS Project
125 Broad St.
New York, NY 10004

Stephen V. Bomse
ORRICK, HERRINGTON &
SUTCLIFFE, LLP
405 Howard Street
San Francisco, CA 94105-2669