Kristin Perry, et al v. Dennis Hollingsworth, et al
Filed (ECF) Appellants Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com - Yes on 8, A Project of California Renewal and Hak-Shing William Tam Motion to consolidate cases 09-17241, 09-XXXXX. Date of service: 11/13/2009.  (CJC)
Kristin Perry, et al v. Dennis Hollingsworth, et al
NOS. 09-17241, 09-_____ UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT KRISTIN M. PERRY, et al., Plaintiffs-Appellees, v. DENNIS HOLLINGSWORTH, et al. Defendant-Intervenors-Appellees. Appeal from United States District Court for the Northern District of California Civil Case No. 09-CV-2292 VRW (Honorable Vaughn R. Walker) DEFENDANT-INTERVENORS-APPELLANTS' MOTION TO CONSOLIDATE Andrew P. Pugno LAW OFFICES OF ANDREW P. PUGNO 101 Parkshore Drive, Suite 100 Folsom, California 95630 (916) 608-3065; (916) 608-3066 Fax Brian W. Raum James A. Campbell ALLIANCE DEFENSE FUND 15100 North 90th Street Scottsdale, Arizona 85260 (480) 444-0020; (480) 444-0028 Fax Charles J. Cooper David H. Thompson Howard C. Nielson, Jr. Nicole J. Moss Jesse Panuccio Peter A. Patterson COOPER AND KIRK, PLLC 1523 New Hampshire Ave., N.W. Washington, D.C. 20036 (202) 220-9600; (202) 220-9601 Fax
Attorneys for Defendant-Intervenors-Appellants
Appellants respectfully move this Court to consolidate Case No. 09-17241 and the appeal filed by Appellants on November 13, 2009. BACKGROUND This motion concerns two appeals (or, in the alternative, petitions for writs of mandamus) arising from related discovery orders in a case challenging the constitutionality of Proposition 8 ("Prop 8"), an initiative amendment providing that "[o]nly marriage between a man and a woman is valid or recognized in California." CAL. CONST. art. I, § 7.5. Appellants/Petitioners in both appeals are a "primarily formed ballot committee" and the "official proponents" of Prop 8 (collectively, "Proponents"). In Appeal No. 09-17241, Proponents seek review of the district court's order of October 1, 2009, which denied Proponents' motion for a protective order based on a claim that a First Amendment privilege bars discovery into certain categories of nonpublic, confidential campaign communications and documents. After filing notice of that appeal, Proponents moved the district court for a stay of Proponents' obligation to produce the disputed materials pending appeal to this Court. In denying the stay motion, the district court noted that while "Proponents' blanket assertion of privilege was unsuccessful," the court "might apply" the privilege to "specific document[s] or information." Doc. 237 at 4. Consistent with this suggestion, and with further instructions from the Court issued during a hearing on November -1-
2, 2009, Proponents submitted a sample of documents for in camera review. Doc. 251. On November 11, 2009, the district court held that the First Amendment privilege did not apply to the documents submitted for review and that all documents that "deal directly with [Proponents'] advertising or messaging strategy and themes" in the Prop 8 campaign must be produced to Plaintiffs. Doc. 252. On November 13, 2009, Proponents noticed an appeal of (or, in the alternative, petition for writ of mandamus with respect to) that order (as well as the October 1 and October 23 orders, to the extent they were merged into the November 11 order). That appeal has not yet been assigned a case number. ARGUMENT As the procedural history recounted above amply demonstrates, the two interlocutory appeals now before this Court relate to the same discovery dispute: whether Proponents have a First Amendment privilege that bars discovery of their nonpublic, confidential political speech during the Prop 8 referendum campaign. Proponents filed the original appeal believing that the district court would not give any further consideration to the issue after its October 1 order. When the district court instead invited an in camera review process on October 23, Proponents submitted a representative sample of sixty documents (drawn from thousands of internal, confidential campaign documents) to the court under seal. Proponents now also appeal the district court's order rejecting Proponents' claim of privilege and
requiring production of documents to Plaintiffs. Both in terms of logic and efficiency, Proponents respectfully submit that the two appeals should be consolidated. CONCLUSION For the foregoing reasons, Appellants respectfully request that this consolidate Case No. 09-17241 and the appeal filed by Appellants on November 13, 2009.
Dated: November 13, 2009
Respectfully submitted, /s/ Charles J. Cooper Charles J. Cooper Attorney for Appellants
9th Circuit Case Number(s) 09-17241
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CERTIFICATE OF SERVICE When All Case Participants are Registered for the Appellate CM/ECF System
I hereby certify that 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 on (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 (use "s/" format) *********************************************************************************
CERTIFICATE OF SERVICE When Not All Case Participants are Registered for the Appellate CM/ECF System
I hereby certify that 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 on (date) . Nov 13, 2009 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: See attached Service List.
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s/ Jesse Panuccio
SERVICE LIST Attorneys for Plaintiff-Intervenor City and County of San Francisco: Dennis J. Herrera, City Attorney Therese Stewart, Chief Deputy City Attorney Danny Chou, Chief of Complex and Special Litigation Vince Chhabria, Deputy City Attorney Erin Bernstein, Deputy City Attorney Christine Van Aken, Deputy City Attorney Mollie M. Lee, Deputy City Attorney CITY AND COUNTY OF SAN FRANCISCO OFFICE OF THE CITY ATTORNEY 1 Dr. Carlton B. Goodlett Place Room 234 San Francisco, CA 4102-4682 (415) 554-4708 Fax: (415) 554-4655 Therese.email@example.com Attorney for Defendant Clerk-Recorder Patrick O'Connell: Lindsey G. Stern Claude Franklin Kolm COUNTY OF ALAMEDA 1221 Oak Street, Suite 450 Oakland, CA 94612-4296 (510) 272-6710 firstname.lastname@example.org Attorney for Defendant Registrar-Recorder Dean C. Logan: Elizabeth Cortez Judy Whitehurst OFFICE OF COUNTY COUNSEL COUNTY OF LOS ANGELES 500 West Temple St Los Angeles, CA 90012 (213) 974-1845 JWhitehurst@counsel.lacounty.gov