Perry et al v. Schwarzenegger et al

Filing 646

ORDER of USCA (far, COURT STAFF) (Filed on 4/26/2010)

Case: 10-15649 04/12/2010 Page: 1 of 11 ID: 7298284 DktEntry: 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, Case: 10-15649 04/12/2010 Page: 2 of 11 ID: 7298284 DktEntry: 14 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. 2 Case: 10-15649 04/12/2010 Page: 3 of 11 ID: 7298284 DktEntry: 14 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 Case: 10-15649 04/12/2010 Page: 4 of 11 ID: 7298284 DktEntry: 14 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 ." ). 4 Case: 10-15649 04/12/2010 Page: 5 of 11 ID: 7298284 DktEntry: 14 B. 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. 5 Case: 10-15649 04/12/2010 Page: 6 of 11 ID: 7298284 DktEntry: 14 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 Case: 10-15649 04/12/2010 Page: 7 of 11 ID: 7298284 DktEntry: 14 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. 7 Case: 10-15649 04/12/2010 Page: 8 of 11 ID: 7298284 DktEntry: 14 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 Case: 10-15649 04/12/2010 Page: 9 of 11 ID: 7298284 DktEntry: 14 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 Case: 10-15649 04/12/2010 Page: 10 of 11 ID: 7298284 DktEntry: 14 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 . 10 Case: 10-15649 04/12/2010 Page: 11 of 11 ID: 7298284 DktEntry: 14 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 . 11