Perry et al v. Schwarzenegger et al

Filing 187

MOTION for Protective Order filed by Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com - Yes on 8, A Project of California Renewal, Hak-Shing William Tam. Motion Hearing set for 9/25/2009 10:00 AM in Courtroom 6, 17th Floor, San Francisco. (Attachments: #1 Exhibit A -- Reply Br. for Aplt., Citizens United v. FEC, #2 Exhibit B -- Prentice Declaration, #3 Exhibit C -- Plaintiffs' First Set of Requests for Production, #4 Exhibit D -- Defendant-Intervenors' Response to Plaintiffs' First Set of Requests for Production, #5 Exhibit E -- Letter of August 27, 2009, #6 Exhibit F -- Letter of August 31, 2009, #7 Exhibit G -- Moss Declaration, #8 Exhibit H -- Doe v. Reec Opinion, #9 Exhibit I -- Schubert Declaration, #10 Exhibit J -- Jannson Declaration, #11 Exhibit K -- Articles Discussing Negative Effects of Public Disclosure, #12 Exhibit L -- Tam Declaration, #13 Exhibit M -- Toupis Declaration, #14 Proposed Order)(Cooper, Charles) (Filed on 9/15/2009)

Perry et al v. Schwarzenegger et al

Doc. 187 Att. 8

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Exhibit I

Dockets.Justia.com

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COOPER AND KIRK, PLLC Charles J. Cooper (DC Bar No. 248070)* [e-mail] David H. Thompson (DC Bar No. 450503)* [e-mail] Howard C. Nielson, Jr. (DC Bar No. 473018)* [e-mail] Nicole J. Moss [e-mail] (DC Bar No. 472424) Jesse Panuccio [e-mail] (DC Bar No. 981634) Peter A. Patterson (Ohio Bar No. 0080840)* [e-mail] 1523 New Hampshire Ave. N.W., Washington, D.C. 20036 Telephone: [phone], Facsimile: [phone] LAW OFFICES OF ANDREW P. PUGNO Andrew P. Pugno (CA Bar No. 206587) [e-mail] 101 Parkshore Drive, Suite 100, Folsom, California 95630 Telephone: [phone], Facsimile: [phone] ALLIANCE DEFENSE FUND Brian W. Raum (NY Bar No. 2856102)* [e-mail] James A. Campbell (OH Bar No. 0081501)* [e-mail] 15100 North 90th Street, Scottsdale, Arizona 85260 Telephone: [phone], Facsimile: [phone] ATTORNEYS FOR DEFENDANT-INTERVENORS DENNIS HOLLINGSWORTH, GAIL J. KNIGHT, MARTIN F. GUTIERREZ, HAK-SHING WILLIAM TAM, MARK A. JANSSON, and PROTECTMARRIAGE.COM ­ YES ON 8, A PROJECT OF CALIFORNIA RENEWAL * Admitted pro hac vice UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA KRISTIN M. PERRY, SANDRA B. STIER, PAUL T. KATAMI, and JEFFREY J. ZARRILLO, Plaintiffs, v. ARNOLD SCHWARZENEGGER, in his official capacity as Governor of California; EDMUND G. BROWN, JR., in his official capacity as Attorney General of California; MARK B.

CASE NO. 09-CV-2292 VRW DECLARATION OF FRANK SCHUBERT IN SUPPORT OF DEFENDANT-INTERVENORS' MOTION FOR A PROTECTIVE ORDER Date: September 25, 2009 Time: 10:00 a.m. Judge: Chief Judge Vaughn R. Walker Location: Courtroom 6, 17th Floor 1

DECLARATION IN SUPPORT OF DEFENDANT-INTERVENORS' MOTION FOR PROTECTIVE ORDER CASE NO. 09-CV-2292 VRW

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HORTON, in his official capacity as Director of the California Department of Public Health and State Registrar of Vital Statistics; LINETTE SCOTT, in her official capacity as Deputy Director of Health Information & Strategic Planning for the California Department of Public Health; PATRICK O'CONNELL, in his official capacity as Clerk-Recorder for the County of Alameda; and DEAN C. LOGAN, in his official capacity as Registrar-Recorder/County Clerk for the County of Los Angeles, Defendants, and PROPOSITION 8 OFFICIAL PROPONENTS DENNIS HOLLINGSWORTH, GAIL J. KNIGHT, MARTIN F. GUTIERREZ, HAKSHING WILLIAM TAM, and MARK A. JANSSON; and PROTECTMARRIAGE.COM ­ YES ON 8, A PROJECT OF CALIFORNIA RENEWAL, Defendant-Intervenors.

Additional Counsel for Defendant-Intervenors ALLIANCE DEFENSE FUND Timothy Chandler (CA Bar No. 234325) [e-mail] 101 Parkshore Drive, Suite 100, Folsom, California 95630 Telephone: [phone], Facsimile: [phone] Jordan W. Lorence (DC Bar No. 385022)* [e-mail] Austin R. Nimocks (TX Bar No. 24002695)* [e-mail] 801 G Street NW, Suite 509, Washington, D.C. 20001 Telephone: [phone], Facsimile: [phone] * Admitted pro hac vice

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I, Frank Schubert, make the following declaration pursuant to 28 U.S.C. § 1746: 1. I am a resident of the State of California over 18 years of age, and my statements here-

in are based upon personal knowledge and experience and upon my personal review of the document requests served by Plaintiffs on Defendant-Intervenors in this case. 2. order. 3. I am the President of Schubert Flint Public Affairs, a full-service, public affairs and This declaration is made in support of Defendant-Intervenors' motion for a protective

communications consulting firm based in Sacramento, California, with clients across the United States. I have twice been named the country's most valuable public affairs professional by the American Association of Political Consultants (AAPC). I am the only person in the association's history to have won this prestigious award twice. I have served on the AAPC Board of Directors for over ten years. On three occasions, the AAPC has honored me for assembling and managing the Pubic Affairs Team of the Year, including last year for my management of the Yes on Proposition 8 campaign. I have received the Lifetime Achievement Award from the International Association of Business Communicators (Sacramento Chapter). I have over 30 years of experience in this field. I have managed 34 statewide ballot initiative campaigns in nine states including acting as Campaign Manager for Protect Marriage.com in the Proposition 8 campaign in 2008. 4. I and my firm were hired by Protect Marriage.com in June 2008 to serve as Campaign

Manager. I worked with the volunteer chairman of Protect Marriage.com, Ron Prentice, and with an ad hoc executive committee. My responsibilities included, subject to approval of the executive committee, developing the campaign's strategy, selecting vendors to work on the campaign, developing messages for delivery to voters, overseeing voter and issue research, developing and overseeing a grassroots plan, developing advertisements and other communications to voters, and working with donors, volunteers, supporters, and the press, among other duties. 3
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5.

I am submitting this Declaration in Support of the Proposition 8 Proponents' Motion

for a Protective Order because I know, based on personal experience, the harm that will result if Protect Marriage.com's, its volunteers', donors', members', vendors', consultants', etc., and/or the Proposition 8 official proponents', personal, non-public communications are found to be an appropriate subject of discovery in this matter. It is my professional opinion that if the Protective Order is not granted, the Court will thrust not a dagger, but a sword, into the People's precious right of initiative and referendum. The harms that would flow from requiring these communications-- which reflect political views and opinions, moral views and opinions, religious beliefs, legislative and political strategy, political speech, and associational activity--to be produced in discovery are several-fold. 6. First, a significant and real threat exists that individuals identified in these communica-

tions, their families and associates, and/or their businesses will be targeted for retaliation by groups and persons who disagree with the views being expressed therein. Throughout the Proposition 8 campaign, I and my company were personally subject to severe harassment and attempts at intimidation because of our involvement in the Yes on 8 Campaign. For example: · I received hundreds of hate emails and telephone calls, many with threatening overtones-- including suggestions that the world would be better off if I were dead. · Activists descended upon my office with camera crews in tow in an effort to publicly confront me over my position on Proposition 8. · A distant gay relative posted on Facebook an "apology" to the homosexual community that her relative was managing the Proposition 8 campaign, and offered to provide my home address to anyone who wanted it. One No-on-Prop-8 supporter publicly asked for the information. · I was the subject of continuous taunting, insults, and harassment on countless blogs. 4
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·

My address and those of thousands of other supporters of Prop 8 were posted on the Internet through a "Google map" that allowed people to type in an address and see all the contributors to ProtectMarriage in their area (including a contributor's name, address, profession, employer, and donation level). A sampling of the maps available on that website (http://www.eightmaps.com) is attached as an exhibit to this declaration. That website is still functional and publically accessible as of today. The message is unmistakable: "here's where they live. Go get them."

·

The open house for our office in southern California became a cause célèbre for activists who organized an elaborate attempt to infiltrate the reception and not only confront me, but also our clients to inform them that our firm was allegedly bigoted and discriminatory.

·

Because of this harassment, the campaign was forced to provide security at our offices for several weeks in order to protect our staff and ensure that activists were not allowed to enter the office and cause harm to me or my staff. Protect Marriage was also forced to pay for private security for a two-week bus tour throughout California. The committee continues to provide security for me and members of the legal team in high profile appearances, including when they appear before this Court.

·

To this day, I continue to receive hate email and threats because of the positions I advocated.

7.

I am also aware of many other instances of harassment, retaliation, and threats against

supporters of the Yes on 8 Campaign. I know from both experience and interaction with these supporters that they will be much less willing to contribute to and/or participate in a campaign in the future. During the campaign there was a noticeable decline in some donors' willingness to donate to, and some volunteers' willingness to continue participating in, the campaign after they were subjected to threats and harassment. Certain vendors would no longer work on the campaign 5
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because of the retaliation against them by activists. Even now, some of our larger contributors continue to face calls for boycotts and economic sanctions. I know of several donors who had their businesses boycotted and protested, their employees harassed, and who received hundreds of threatening emails and phone calls. I am personally aware of at least two supporters who were physically assaulted because of their position on Proposition 8. I have witnessed video footage of roaming bands of thieves stealing hundreds of our signs and then displaying them as if they were a trophy. I have seen photos of our supporters' homes and automobiles defaced. One supporter had his automobile keyed with a swastika and the words, "gay sex is love," scratched into the paint down to the raw metal. Another supporter had a van parked in front of his home painted with the words, "bigots live here." I know of many churches that were defaced. Several of our supporters were forced from their jobs when demonstrators decided to target their place of employment. I know of donors to Protect Marriage whose employers were called to ask about the employer's non-discrimination policy and to inform them that they had an alleged bigot in their employ. 8. These are not isolated incidents. The harassment of supporters of Proposition 8 was in-

cessant, continuous, and organized. To this day, several websites exist specifically for the purpose of harassing supporters of traditional marriage, including the so-called "Californians Against Hate," which continues to promote boycotts and reprisals against supporters of Proposition 8 and traditional marriage. The harassment is also not limited to fringe groups or over-zealous supporters of same-sex marriage. One major national group that petitioned the Court for permission to intervene in this case (National Center for Lesbian Rights), recently issued a press statement condemning the California Bar Association's decision to host a meeting at a business associated with one of Proposition 8's supporters. 9. Second, an equally serious and real threat exists that the disclosure of the non-public

communications of the Yes on 8 campaign--whether those communications are between volun6
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teers of Protect Marriage and their consultants, contractors, and vendors (such as Schubert Flint), or between Schubert Flint as campaign manager and donors, supporters, vendors, etc.--will significantly suppress the future participation in, and course of, initiative and referendum campaigns. Personally, speaking on behalf of Schubert Flint, I can state with certainty that I and my firm will change the way we engage in political speech and campaigning if the broad discovery demanded in this case is permitted. Further, based on my experience working on 34 statewide ballot initiative campaigns like the Proposition 8 campaign, I believe that if involvement with a contentious ballot initiative causes supporters, donors, volunteers, vendors, consultants, etc., to run the risk that not only their identities, but also their personal, non-public communications, might be subject to discovery, it will be significantly harder to recruit supporters, volunteers, donors, etc. It will be significantly harder to get vendors to agree to work on the campaign for fear that their involvement will hurt them professionally. As importantly, the risk that internal communications regarding such things as political strategy and political or religious views might be disclosed will mean there will be significantly less of this type of speech and activity in the future. Campaign strategists, volunteers, and voters will avoid candid associational speech, as well as candid speech about political views and strategy, in an effort to avoid later exposure or mischaracterization in a lawsuit over which they have no control. 10. Third, the scope of the discovery requests in this case opens the floodgates for Plain-

tiffs and their allies to learn not only the identity of donors, but also the identity of individual volunteers and supporters, as well as the private reasons some such individuals might have for getting involved in a campaign. Protect Marriage and Schubert Flint possess information on many individual volunteers, including their names, addresses, and contact information. Protect Marriage and Schubert Flint also possess communications to and from some of these volunteers about the Proposition 8 campaign and the marriage issue generally. Based on my experience in this and 7
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other campaigns, I know that individuals often have very private and personal reasons for getting involved in an initiative campaign. They may feel passionately about an issue. They may fear the consequences for themselves, their family, or society as a whole if an initiative passes or fails. They may have an economic interest in the outcome of an initiative election. They may have spiritual, political, personal, or familial reasons for their point of view. Whatever their personal, subjective reasons for taking a position on an initiative, my experience demonstrates that if those reasons are put on trial and/or exposed through compelled discovery there will be a very real risk that future political participation will thereby be severely curbed. 11. The types of communications at issue in this case include all of the types of communi-

cations the exposure of which would lead to the types of chilling referenced above. For example, one activity conducted by the campaign--for the purpose of planning and implementing a campaign to petition the government and engaging in political speech--was to compile a database that collected information on how voters in California intended to vote on Proposition 8. Plaintiffs' broad discovery requests would seemingly require Protect Marriage to turn over this information and thereby violate one of the most highly protected and deeply cherished First Amendment rights--the right to a secret ballot. Protect Marriage and Schubert Flint also possess information on the privately expressed position of over one million voters. If the Plaintiffs' discovery requests are allowed to proceed, the privately expressed opinions of over one million voters will become public. 12. Another specific example of communications that are implicated by Plaintiffs' discov-

ery requests are all of the communications I or others at Schubert Flint have had with either official Proponents or volunteers of Protect Marriage involving political and religious viewpoints. Even to the extent that it is public information, for example, that major backing for the Yes on 8 campaign came from certain religiously affiliated groups, the private religious views expressed by 8
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I-1

A mash-up of Google Maps and Prop 8 Donors.
Proposition 8 changed the California state constitution to prohibit same-sex marriage. These are the people who donated in order to pass it.

PROP 8 MAPS
Case3:09-cv-02292-VRW Document187-9

Jum p to San Francisco, Salt Lake City , or Orange County.

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Map data ©2009 LeadDog Consulting, Tele Atlas, INEGI, Europa Technologies - Terms of Use

A mash-up of Google Maps and Prop 8 Donors.
Proposition 8 changed the California state constitution to prohibit same-sex marriage. These are the people who donated in order to pass it.

PROP 8 MAPS
Case3:09-cv-02292-VRW Document187-9

Jum p to San Francisco, Salt Lake City , or Orange County.

Filed09/15/09 Page13 of 15

Map data ©2009 Tele Atlas, INEGI - Terms of Use

A mash-up of Google Maps and Prop 8 Donors.
Proposition 8 changed the California state constitution to prohibit same-sex marriage. These are the people who donated in order to pass it.

PROP 8 MAPS
Case3:09-cv-02292-VRW Document187-9

Jum p to San Francisco, Salt Lake City , or Orange County.

Filed09/15/09 Page14 of 15

Map data ©2009 Tele Atlas, INEGI - Terms of Use

A mash-up of Google Maps and Prop 8 Donors.
Proposition 8 changed the California state constitution to prohibit same-sex marriage. These are the people who donated in order to pass it.

PROP 8 MAPS
Case3:09-cv-02292-VRW Document187-9

Jum p to San Francisco, Salt Lake City , or Orange County.

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Map data ©2009 Tele Atlas - Terms of Use