9th Cir. prevents disclosure of Prop. 8 memos, denies rehearing
For better or for worse, California Proposition 8 is the story that keeps on giving. Prop. 8 opponents filed suit last year and issued two requests for production of documents seeking internal memos and documents related to campaign strategy and advertising. When the “Yes on 8″ campaign refused on First Amendment grounds, they sought an order to compel. In October of last year Northern District of California Chief Judge Vaughn Walker ordered the “Yes on 8″ campaign to turn over the documents. They promptly appealed and asked for the Ninth Circuit to overrule Chief Judge Walker or for an mandamus and protective order.
Ninth Circuit Judge Raymond Fisher
In the last days of December the Ninth Circuit Court of Appeals issued a mandamus preventing disclosure of the internal memos of the “Yes on 8″ campaign (PDF). Writing for the three-judge panel, Judge Raymond Fisher held that Prop. 8 proponents had shown a high likelihood of a chilling effect on political association and expression, and that opponents of the referendum had not shown the requisite need. Prop. 8 opponents petitioned for rehearing en banc, but earlier this week the Ninth Circuit denied their request.
All this comes on the eve of the Perry v. Swartzenegger non-jury trial, in which petitioners seek to invalidate Proposition 8 on constitutional grounds. Chief Judge Walker has ruled to allow the trial to be televised, and some have criticized him for turning the suit into a show trial.
I think the Ninth Circuit is right on this one: revealing private, internal memos would have a chilling effect on political expression. There is even a good argument that Prop. 8 supporters have already experienced that chilling effect, given the hostility towards proponents of the measure during and after the vote.
Image credit: Ninth Circuit Blog. Hat tip: Mormon-Chronicles.
