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Ninth Circuit denies disclosure of Proposition 8 internal campaign documents

By Bernard Hibbitts (editor) and University of Pittsburgh School of Law students.

[JURIST] The US Court of Appeals for the Ninth Circuit ruled Friday that California same-sex marriage supporters cannot access Proposition 8 supporters' internal campaign communications. The court denied disclosure of the documents on First Amendment grounds, finding that it would violate the right of freedom of association. Proponents of same-sex marriage wanted to use the documents as evidence in the upcoming suit challenging Proposition 8 to show that its passage was "the result of disapproval or animus against a politically unpopular group." The court, however, did not agree that this was a valid reason to infringe First Amendment rights: 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. Plaintiffs have not on the existing record carried that burden in this case. The ruling reverses a decision by Judge Vaughn Walker of the US District Court for the Northern District of California, which had compelled disclosure. The case is scheduled to go to trial before Walker on January 11.Last month, the Ninth Circuit affirmed Walker's denial of a motion to intervene in the suit by conservative advocacy group the Campaign for California Families. The group sought to intervene because it believed that the current groups defending the suit would not adequately represent its interests. Walker ruled in August that several advocacy organizations representing both sides of the issue could not intervene in the lawsuit challenging Proposition 8. The lawsuit was filed in May by former US solicitor general Ted Olson and prominent litigator David Boies, who were opposing counsel in Bush v. Gore, which decided the outcome of the contested 2000 US Presidential election.

Full post as published by JURIST - The Paper Chase on December 13, 2009 (boomark / email).