Kristin Perry, et al v. Arnold Schwarzenegger, et al
Order FOR PUBLICATION filed (KIM MCLANE WARDLAW, RAYMOND C. FISHER and MARSHA S. BERZON) For the foregoing reasons, we dismiss the appeal for lack of jurisdiction and deny the petition for issuance of a writ of mandamus. Appellantsâ€™ motion to expedite the appeal is denied as moot. Each party shall bear its own costs of these proceedings.
APPEAL DISMISSED. PETITION FOR WRIT OF MANDAMUS DENIED..   (RP)
K r i s t i n Perry, et al v. Arnold Schwarzenegger, et al
D o c . 14
F IL E D
FOR PUBLICATION U N IT E D STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
APR 12 2010
M O L L Y C. DW YE R , CLERK
U . S . C O U R T O F APPEALS
K R IS T IN M. PERRY; SANDRA B. S T IE R ; PAUL T. KATAMI; JEFFREY J. Z A R R ILLO , Plaintiffs - Appellees, and
N o . 10-15649 D .C . No. 3:09-cv-02292-VRW N o rthe rn District of California, San Francisco
O R D ER C IT Y AND COUNTY OF SAN FR A N C IS C O , Intervenor-Plaintiff, v. A R N O LD SCHWARZENEGGER, in his o ffic ia l capacity as Governor of California; E D M U N D G. BROWN, JR., in his official c a p a c ity as Attorney General of California; M A R K B. HORTON, in his official c a p a c ity as director of the California D e p a rtme nt of Public Health and state re gis tra r of vital statistics; LINETTE S C O T T , in her official capacity as deputy d ire c to r of health information & strategic p la nning for the California Department of P ub lic Health; PATRICK O'CONNELL, in his official capacity as clerk-recorder of the County of Alameda; DEAN C. LO G A N , in his official capacity as re gis tra r-re c o rd e r/c o unty-c le rk for the C o unty of Los Angeles,
Defendants, and D E N N IS HOLLINGSWORTH; GAIL J. K N IG H T ; MARTIN F. GUTIERREZ; H A K -S H IN G WILLIAM TAM; MARK A . JANSSON; P R O T E C T M A R R IA G E .C O M - YES ON 8 , A PROJECT OF CALIFORNIA R E N E W A L, as official proponents of P ro p o s itio n 8, Intervenor-Defendants A p p e lle e s ,
E Q U A LIT Y CALIFORNIA; NO ON P R O P O S IT IO N 8, CAMPAIGN FOR M A R R IA G E EQUALITY, A PROJECT O F THE AMERICAN CIVIL LIBERTIES U N IO N OF NORTHERN CALIFORNIA, Third parties - Appellants, and C A LIFO R N IA N S AGAINST E LIM IN A T IN G BASIC RIGHTS, Third party.
B e fo re : WARDLAW, FISHER AND BERZON, Circuit Judges. T hird party appellants Equality California and No on Proposition 8, C a mp a ign for Marriage Equality, a Project of the American Civil Liberties Union o f Northern California ("appellants") appeal from the district court's March 5, 2 0 1 0 (Doc. #610) and March 22, 2010 (Doc. #623) orders compelling them to p ro d uc e documents they contend are protected under the First Amendment p rivile ge against the compelled disclosure of internal campaign communications. Appellants assert jurisdiction under 28 U.S.C. § 1291 and in the alternative seek is s ua nc e of a writ of mandamus. Appellants moved for a stay pending appeal, to e xp e d ite the appeal and for assignment of the appeal to the panel that decided Pe r r y v. Schwarzenegger, 591 F.3d 1147 (9th Cir. 2010) (Perry I). On March 26, 2 0 1 0 , we granted appellants' motion requesting assignment of this appeal to the p a ne l that decided Perry I and granted appellants' emergency motion for a stay of the district court's March 22, 2010 order pending appeal. On March 31, 2010, we d ire c te d the parties to file simultaneous briefs addressing whether this court has juris d ic tio n over this appeal and whether mandamus is appropriate. In that order, w e asked the parties to address Vizcaino v. United States District Court, 173 F.3d 7 1 3 (9th Cir. 1999), and In re Subpoena Served on California Public Utilities C o m m is s io n , 813 F.2d 1473, 1476 (9th Cir. 1987). Having reviewed the parties' 3
b rie fs , we dismiss the appeal for lack of jurisdiction and deny the petition for is s ua nc e of a writ of mandamus. I . Discussion A. A p p e lla te Jurisdiction under 28 U.S.C. § 1291
A p p e lla nts assert that this court may exercise jurisdiction over this appeal und e r 28 U.S.C. § 1291. As appellants are nonparties in the underlying litigation, ho w e ve r, they can obtain review of the district court's order compelling production o f documents they contend are protected under the First Amendment privilege we a rtic ula te d in Perry I only by electing to ignore the order and appealing any e ns uing contempt citation. See In re Subpoena Served on Cal. Pub. Util. Comm'n, 8 1 3 F.2d 1473, 1476 (9th Cir. 1987). Appellants recognize as much in their brief o n appeal regarding jurisdiction, stating that "if [they] decline to produce th[e] d o c ume nts [ordered produced by the district court] and are cited for contempt as a c o ns e q ue nc e , they will have an appealable order." Until then, we lack jurisdiction und e r 28 U.S.C. § 1291 to review the district court's order. Id.; see id. at 1476 n.1 (" T he requirement that a nonparty must be in contempt of court in this situation is a serious matter and serves to illustrate the strictness in applying the final judgment rule ." ).
Mandamus Jurisdiction 1. Mandamus Jurisdiction under Vizcaino
A p p e lla nts contend in the alternative that the Court may exercise mandamus juris d ic tio n over this appeal to compel the district court to follow our mandate in Pe r r y I, which charged the district court with the determination of those persons invo lve d in the "Yes on 8" campaign "who logically should be included [in the c o re group of persons in the `Yes on 8' campaign engaged in the formulation of c a mp a ign strategy and messages] in light of the First Amendment associational inte re s ts the [First Amendment] privilege is intended to protect." Perry I, 591 F.3d a t 1165 n.12. In Vizcaino, we recognized that mandamus jurisdiction is available when a d is tric t court disregards a prior appellate mandate on remand. 173 F.3d at 71820. Specifically, we held that mandamus was the appropriate remedy where the district c o urt revised a class definition on remand even though the appellate mandate could no t be read as contemplating redefinition of the class and charged the district court o nly with the determination of individual eligibility for benefits and calculation of the damages or benefits due class members. Id. at 72122. The district court's o rd e r on remand therefore conflicted with and did not conform to the mandate.
B y contrast, the district court's order here cannot conflict with our appellate ma nd a te . The earlier appeal concerned the application of a First Amendment p rivile ge to discovery requests between the parties to this litigation--in particular, to requests by the plaintiffs to the proponents of Proposition 8 who intervened in this litigation ("Proponents"). The present appeal concerns subpoenas issued by the Proponents to third parties to the pending litigation, not involved in the prior a p p e a l (except as amicus curiae), asking for different documents from the ones invo lve d in the previous appeal. Although the district court in the order now a p p e a le d from applied the First Amendment privilege we articulated in Perry I and thus interpreted our earlier opinion, the earlier mandate was not directly applicable to that order; instead, our opinion in Perry I was pertinent essentially as precedent. Under these circumstances, the Vizcaino principle that mandamus is available to a s s ure compliance with a prior mandate has no application. 2 . Mandamus Jurisdiction under the Bauman factors H a ving determined that the rule recognized in Vizcaino does not apply here, w e address appellants' petition for issuance of a writ of mandamus under Bauman v . United States District Court, 557 F.2d 650 (9th Cir.1977), where "we e s ta b lis he d five guidelines to determine whether mandamus is appropriate in a give n case: (1) whether the petitioner has no other means, such as a direct appeal, 6
to obtain the desired relief; (2) whether the petitioner will be damaged or p re jud ic e d in any way not correctable on appeal; (3) whether the district court's o rd e r is clearly erroneous as a matter of law; (4) whether the district court's order is an oft repeated error or manifests a persistent disregard of the federal rules; and (5 ) whether the district court's order raises new and important problems or issues o f first impression." Perry I, 591 F.3d at 1156 (citing Bauman, 557 F.2d at 6 5 4 -5 5 ). T he first and second factors disfavor issuance of the writ. As we have e xp la ine d , appellants have a means of obtaining appellate review, and protecting the ms e lve s from injury from compelled disclosure, by defying the district court's d is c o ve ry orders and appealing from a final, appealable contempt order. That route w a s not available to the parties from whom discovery was sought in Perry I until the end of the litigation. See, e.g., Koninklijke Philips Elecs. N.V. v. KSD Tech., In c ., 539 F.3d 1039, 1042 (9th Cir. 2008) (explaining that we lack jurisdiction to he a r interlocutory appeals from civil contempt orders entered against parties to litiga tio n). The fourth factor also counsels against issuance of the writ. The d is tric t court has not committed an oft-repeated error or manifested a persistent d is re ga rd of the federal rules.
T he third factor--legal error--arguably militates in favor of issuance of the w rit, because the district court may have partly misinterpreted the legal boundaries o f the First Amendment privilege we articulated in Perry I. In Perry I, we held tha t the disclosure of internal campaign communications can "have a deterrent e ffe c t on participation in campaigns," as well as a "deterrent effect on the free flow o f information within campaigns," which is necessary to "formulate [campaign] s tra te gy and messages." Id. at 1162. As applied to the claims before the court at tha t time, we held that the official proponents of Proposition 8 had made a prima fa c ie showing that disclosure of their internal campaign communications would c hill participation in campaigns and the free exchange of ideas within such c a mp a igns . See id. at 1163. In addition, we emphasized that our holding was limite d to "communications among the core group of persons engaged in the fo rmula tio n of campaign strategy and messages." Id. at 1165 n.12 (emphasis in o rigina l). We left to the district court the determination of the "core group of p e rs o ns " engaged in formulating campaign strategy and messaging, but did not ho ld that the privilege is limited only to persons within a particular organization or e ntity. In the March 22, 2010 order, the district court said as a matter of law that " the First Amendment privilege does not cover communications between [or 8
a mo ng] separate organizations." Doc. #623 at 13 (brackets in original). If the d is tric t court meant that the privilege cannot apply to persons who are part of a p o litic a l association spanning more than one organization or entity, then this inte rpre ta tio n was questionable. Under Perry I, the privilege applies to the core gro up of persons engaged in the formulation of strategy and messages, whether or no t they are members of a single organization or entity. The operative inquiry is w he the r they are part of an association subject to First Amendment protection. We d id not hold that the privilege cannot apply to a core group of associated persons s p a nning more than one entity. Nonetheless, there does not appear to have been clear error. The district c o urt granted in part Proponents' motion to compel because appellants "in any e ve nt failed to furnish the magistrate [judge] information from which a functional inte rp re ta tio n of [an inter-organizational] core group . . . could be derived." Doc. # 6 2 3 at 10. Thus, even if we were persuaded that the court misinterpreted Perry I, it is not clear that the district court's ultimate conclusions were clearly erroneous as a matter of law. Accordingly, the third factor at most lends some support to the c a s e for mandamus. T he fifth factor disfavors mandamus jurisdiction. In Perry I, we exercised ma nd a mus jurisdiction because the proceedings raised a particularly novel and 9
imp o rta nt question of first impression--whether the First Amendment provides a n y protection against compelled disclosure of internal campaign communications, a n issue that might otherwise have evaded appellate review. See Perry I, 591 F.3d a t 1156-57, 1159. By contrast, the current proceedings present the application of tha t now recognized privilege. They thus do not present comparable concerns of no ve lty and evasion of review. O n balance, mandamus jurisdiction is not appropriate under the Bauman fa c to rs . Although the district court may have erred to the extent it concluded as a ma tte r of law that the First Amendment privilege cannot apply to persons who are me mb e rs of a single political association comprised of different organizations, a p p e lla nts have not demonstrated that the district court's ultimate conclusions were c le a rly erroneous as a matter of law, and the other four factors disfavor issuance of the writ. As we explained in Perry I, "[t]he writ of mandamus is an `extraordinary' re me d y limited to `extraordinary' causes." Id. at 1156 (quoting Burlington N o r th e r n & Santa Fe Ry. Co. v. U.S. Dist. Court, 408 F.3d 1142, 1146 (9th C ir.2 0 0 5 ) (quoting Cheney v. U.S. Dist. Court, 542 U.S. 367, 380 (2004)) (internal q uo ta tio n marks omitted). We therefore deny the petition for issuance of a writ of ma nd a mus .
I I . Conclusion Fo r the foregoing reasons, we dismiss the appeal for lack of jurisdiction and d e ny the petition for issuance of a writ of mandamus. Appellants' motion to e xp e d ite the appeal is denied as moot. Each party shall bear its own costs of these p r o c e e d in g s . A P P E A L DISMISSED. PETITION FOR WRIT OF MANDAMUS D E N IE D .
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