ProtectMarriage.com - Yes on 8, a Project of California Renewal et al v. Bowen et al

Filing 228

Plaintiffs' OBJECTIONS to #225 Amended Scheduling Order. (Bieniek, Scott) Modified on 6/11/2010 (Mena-Sanchez, L).

JAMES BOPP, JR.1 Senior Associates RICHARD E. COLESON1 BARRY A. BOSTROM1 Associates RANDY ELF2 JEFFREY P. GALLANT3 ANITA Y. WOUDENBERG1 JOSIAH S. NEELEY4 JOSEPH E. LA RUE5 SARAH E. TROUPIS6 KAYLAN L. PHILLIPS7 JOSEPH A. VANDERHULST1 SCOTT F. BIENIEK8 ZACHARY S. KESTER1 JARED M. HAYNIE3,9
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BOPP, COLESON & BOSTROM
ATTORNEYS AT LAW
(not a partnership) THE NATIONAL BUILDING 1 South Sixth Street TERRE HAUTE, INDIANA 47807-3510 Telephone [phone] Facsimile 812/235-3685

THOMAS J. MARZEN (1946-2007) E-MAIL ADDRESSES [e-mail] [e-mail] [e-mail] [e-mail] [e-mail] [e-mail] jneeley @bopplaw.com [e-mail] [e-mail] [e-mail] [e-mail] [e-mail] [e-mail] [e-mail]

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June 10, 2010

admitted in Ind admitted in NY and Penn admitted in Va 4 admitted in Tex 5 admitted in Oh 6 admitted in Wis 7 admitted in Okla 8 admitted in Ill 9 admitted in Col

The Honorable Morrison C. England, Jr. United States District Judge United States District Court Eastern District of California 501 I Street, 4th Floor Sacramento, CA 95814 Dear Judge England:

Re: ProtectMarriage.com v. Bowen, No. 2:09cv-00058 Plaintiffs' Objections to the Second Amended Pretrial Scheduling Order

Plaintiffs ProtectMarriage.com--Yes on 8, a Project of California Renewal ("ProtectMarriage.com"), National Organization for Marriage--Yes on 8, Sponsored by National Organization for Marriage ("NOM-California"), John Doe #1, an individual, and representative of the Class of Major Donors ("Major Donors"), and National Organization for Marriage California PAC ("NOM-California PAC") respectfully submit the following objections to the Second Amended Pretrial Scheduling Order. (Dkt. 225.) The Court filed an amended scheduling order on June 3, 2010, in response to Defendants' request to extend the discovery deadlines set forth in the Court's original pretrial scheduling order. (Dkt. 210.) Defendants requested a sixty-day extension. (Dkt. 210) However, the amended scheduling order extends all deadlines by one year. (See Dkt. 96.) An extension beyond the sixty days requested by Defendants is unwarranted and violates the Supreme Court's mandate that First Amendment as-applied challenges must "allow parties to resolve disputes quickly without chilling speech through the threat of burdensome litigation." FEC v. Wisconsin Right to Life ("WRTL-II"), 551 U.S. 449, 469 (2007); see also Citizens United v. FEC, 130 S. Ct. 876, 896 (2010) (same).

The Honorable Morrison C. England, Jr. June 10, 2010 Page 2 Plaintiffs filed their Complaint on January 7, 2009, alleging, inter alia, that the Political Reform Act of 1974, Cal. Gov't Code § 81000 et seq., as applied, violates the First Amendment because it subjects Plaintiffs and their members to a reasonable probability of threats, harassment, and reprisals. (Dkt. 1.) Plaintiffs have now submitted fifty-eight declarations in support of this claim setting forth specific incidents of threats, harassment, and reprisals directed at supporters of Proposition 8 and a traditional definition of marriage.1 (Dkt. 32-40, 45, 113-162.) The threats, harassment, and reprisals have included death threats, property damage, threatening phone calls, and threatening emails. (Id.) Plaintiffs have also submitted copies of newspaper articles describing the serious and substantial threats, harassment, and reprisals directed at supporters of Proposition 8 and a traditional definition of marriage. (Dkt. 19 & 30.) The Supreme Court has twice cited this evidence in recent opinions, and even called it "cause for concern."2 Citizens United, 130 S. Ct. at 916 (2010); Hollingsworth v. Perry, 130 S. Ct. 705, 707 (2010). On January 9, 2009, Plaintiffs filed a motion for preliminary injunction, seeking, inter alia, an exception from the January 31, 2009,3 and subsequent reporting deadlines. (Dkt. 16.) The Court denied Plaintiffs' motion on January 29, considering only the first nine declarations.4 (Dkt. 87 & 88.) The parties submitted a joint status report on March 6, 2010. (Dkt. 95.) The stipulated schedule agreed to by the parties allowed for the resolution of all claims before the 2010 election cycle. (Id.) On May 18, 2009, the Court entered its pretrial scheduling order. (Dkt. 96.) The order significantly extended the deadlines contained in the joint status report. Most notably, the discovery deadline was extended from October 2009 until May 2010 and the dispositive motion deadline was extended from November 2009 until September 2010. (Dkt. 96 at 2, 4.)

The Court considered only the first nine declarations when it ruled on Plaintiffs' motion for a preliminary injunction. (Dkt. 88 at 5-9.) In Citizens United, the Supreme Court rejected a facial challenge to a compelled disclosure statute, required disclosure of $1,000 donors, and noted that an as-applied challenge is available if a party can demonstrate a reasonable probability of threats, harassment, and reprisals. 130 S. Ct. at 913-17. In discussing the as-applied exception, the Supreme Court cited the evidence submitted in the current proceedings as the type of evidence that a party must introduce to obtain a reporting exception. Id. at 916
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The January 31, 2009 report was actually due on February 2, 2009. See CGC § 84200.

On February 2, 2009, a supporter of traditional marriage received an email referencing the Court's denial of the preliminary injunction and the supporter's donation. (Decl. of John Doe #54, Ex. A, Dkt. 157-2.) The donation was first reported on the February 2, 2009, report. The email was followed by a handwritten note delivered to the donor's home. (Decl. of John Doe #54, Dkt. 157.)

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The Honorable Morrison C. England, Jr. June 10, 2010 Page 3 On June 3, 2009, Plaintiffs filed a motion for summary judgment. (Dkt. 110.) On June 10, State Defendants filed a motion pursuant to rule 56(f) of the Federal Rules of Civil Procedure, alleging, inter alia, that State Defendants did not have sufficient time to conduct discovery or obtain and present facts essential to justify their opposition. (Dkt. 169.) State Defendants proposed a continuance until December 18, 2009. (Dkt. 169 at 2, 6.) On June 24, 2009, the Court granted State Defendants' Rule 56(f) Motion and denied Plaintiffs' motion for summary judgment without prejudice. (Dkt. 189 at 10-11.) Furthermore, the Court extended the requested continuance an additional five months, stating that no party shall file a motion for summary judgment without leave of court before the close of non-expert discovery, scheduled to terminate on May 14, 2010. (Id.) On April 27, 2010, San Francisco Defendants filed a motion to extend the discovery and subsequent deadlines by sixty days. (Dkt. 210.) Defendants stated: Defendants seeks to modify the scheduling order for two reasons: (1) an ongoing dispute regarding Plaintiffs' inadequate responses to Defendants' past discovery requests, and (2) Plaintiffs' professed inability to make critical witnesses available before non-expert discovery closes. (Id. at 3.) On May 13, the Court entered an Order granting a sixty day extension and stated that an amended pretrial scheduling order would follow. (Dkt. 221.) Subsequent events have made delay beyond the requested sixty-day extension unnecessary. First, Defendants conducted their depositions on May 27 and 28. Second, the parties entered into a stipulation that resolved significant portions of the discovery dispute that resulted in the motion to compel. (Dkt. 218 & 226.) Discovery is now on pace to be completed in advance of the Defendants' proposed deadline of July 13, 2010, subject to the stipulation agreed on by the parties and the order entered by the Honorable Judge Drozd. (Dkt. 227.) Plaintiffs respectfully object to the dates set forth in the amended scheduling order. The order extends the deadlines far beyond Defendants' requested sixty-day extension. As set forth above, the additional time is both unwarranted and unnecessary, as it appears that discovery is on pace to be completed by Defendants' proposed deadline of July 13, 2010. Plaintiffs propose deadlines consistent with those suggested by Defendants in the proposed order accompanying their motion to extend discovery deadlines. (Dkt. 212.) The amended dates proposed by Defendants are: ! ! ! Non-expert discovery ­ July 13, 2010 Expert witness disclosure ­ September 13, 2010 " Supplemental expert disclosure twenty days thereafter Dispositive motions ­ No later than November 15, 2010