Perry et al v. Schwarzenegger et al

Filing 598

Declaration of Geoff Kors in Support of #589 Order, #546 Memorandum in Opposition to Motion to Compel filed byEquality California. (Related document(s) #589 , #546 ) (Whittemore, Lauren) (Filed on 2/22/2010)

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LYNN H. PASAHOW (CSB NO. 054283) [e-mail] CAROLYN CHANG (CSB NO. 217933) [e-mail] LESLIE KRAMER (CSB NO. 253313) [e-mail] LAUREN WHITTEMORE (CSB NO. 255432) [e-mail] FENWICK & WEST LLP 555 California Street, Suite 1200 San Francisco, CA 94104 Telephone: [phone] Facsimile: [phone] Attorneys for Third-Party, Equality California UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION KRISTIN M. PERRY, SANDRA B. STIER, PAUL T. KATAMI, and JEFFREY J. ZARRILLO, v. Plaintiffs, Case No. 09-CV-2292 VRW

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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. 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, and Defendants,

DECLARATION OF GEOFF KORS IN SUPPORT OF EQUALITY CALIFORNIA'S OPPOSITION TO MOTION TO COMPEL Trial: January 11, 2010 Judge: Chief Judge Vaughn R. Walker Location: Courtroom 6, 17th Floor

PROPOSITION 8 OFFICIAL PROPONENTS DENNIS HOLLINGSWORTH, GAIL J. KNIGHT, MARTIN F. GUTIERREZ, HAK-SHING WILLIAM TAM, and MARK A. JANSSON; and PROTECTMARRIAGE.COM ­ YES ON 8, A PROJECT OF CALIFORNIA RENEWAL, Defendant-Intervenors.
DECLARATION OF GEOFF KORS IN SUPPORT OF OPPOSITION TO MOTION TO COMPEL CASE NO. 09-CV-2292 VRW

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I, Geoff Kors, hereby declare: 1. I am the Executive Director of third party Equality California (EQCA). I have

personal knowledge of the facts stated below and, if called upon as a witness, could testify competently to such facts. 2. I submit this declaration in response to the Court's February 11, 2010 order

(Docket # 589) requesting third party EQCA submit a declaration "identifying the core group of individuals engaged in the formulation of campaign strategy and messaging." 3. EQCA is an organization dedicated to achieving equality and securing the legal

protection of the lesbian, gay, bisexual and transgender (LGBT) community. Founded in 1998, EQCA's activities include sponsoring legislation and coordinating efforts to ensure its passage, lobbying legislators and policy makers, building coalitions, developing community strength and empowering individuals and other organizations to engage in the political process. EQCA Institute is an affiliated organization that educates LGBT people and the public at large about issues impacting the LGBT community and its allies. 4. As Executive Director of EQCA, I lead the legislative efforts, as well as the

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political action committee activities and educational work of EQCA. Also as part of my role as Executive Director of EQCA, I was a member of the Executive Committee of the No on 8 Equality for All campaign ("Equality for All"). Structure of No on 8 Campaign 5. Equality for All was formed in 2005 to prepare to fight any proposition that would

prohibit or eliminate the right of same gender couples to marry. Such a measure qualified for the November 2008 ballot (it was subsequently labeled Proposition 8). The organization was originally comprised of representatives of approximately 35 national, state and local organizations, and it was registered by these representatives with the State of California as a political action committee. The goal of the organization was to defeat Proposition 8 once it qualified for the ballot. 6. Throughout the summer and fall of 2008, many additional organizations joined

Equality for All's Statewide Campaign Committee ("Campaign Committee"), and, ultimately,
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Equality for All served as an umbrella campaign organization for more than 100 member organizations working to defeat Proposition 8. These organizations included local, statewide, and national LGBT advocacy organizations, civil rights advocacy organizations, political party groups, labor unions, and many other concerned citizen groups. The formulation of campaign strategy and messaging took place at many different levels in what came to be a complex and sprawling campaign organization. 7. The Executive Committee of Equality for All was responsible for managing the

umbrella campaign organization. In that capacity, the Executive Committee coordinated campaign fundraising, hired campaign consultants and professionals (who were paid fees or salaries by the Equality for All campaign), and managed the campaign manager and campaign director. The Executive Committee collectively made decisions of great importance to the campaign. The Executive Committee met in person every month either in San Francisco or Los Angeles, and in addition extensively coordinated with one another, as well as campaign consultants and campaign staff, through email and conference calls. 8. Key campaign decisions made by the Executive Committee were ratified by

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Equality for All's Campaign Committee. This committee was comprised of the Equality for All member organizations (including the many organizations that were not represented on the Executive Committee), as well as representatives of regional and other groups that were working with Equality for All to defeat Proposition 8. The Campaign Committee met once a month in person either in San Francisco or Los Angeles, and the rest of the time coordinated with one another, along with campaign consultants and campaign staff, through email and conference calls. As the election approached, the Campaign Committee met weekly. Individual staff and board members of the Campaign Committee member organizations participated in the conference calls as well as communicated through email. 9. The Equality for All campaign staff, which was either paid by the campaign or

donated by one of the member organizations, was led first by a campaign manager and then by a campaign director. As with most political campaigns, the work of the campaign was organized topically--into fundraising, field (reaching out to potential voters), political, and advertising.
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Each of these areas had a director (or sometimes several regional directors), and numerous other staff. 10. Equality for All paid numerous consultants to provide advice and technical support

for a wide array of campaign activity. These consultants included: political consultants who provided overall advice on campaign strategy; political consultants who provided advice about specific campaign strategies (such as reaching out to certain targeted voter groups); messaging consultants in a variety of media; messaging consultants who conducted polling and focus group research; and technology consultants who, for example, created and managed Equality for All's website and social media presence. 11. The member organizations of Equality for All participated both in the campaign

activities of the umbrella organization, and in campaign activities on behalf of their own organizations. For example, EQCA was a member of the Equality for All campaign, but EQCA also worked to defeat Proposition 8 in its own capacity--using its own website to argue against Proposition 8, sending emails to its own list regarding Proposition 8, and holding its own fundraisers to defeat Proposition 8. It is my understanding and belief that the many of the other member organizations of Equality for All worked within and independently of the Equality for All campaign in the same way EQCA did. Formulation of Campaign Strategy and Messaging 12. Strategy and messaging to defeat Proposition 8 were formulated, debated and

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discussed at all levels of the Equality for All campaign. In my role as Executive Director of EQCA and as a member of the Executive Committee, I communicated regularly with other members of the Executive Committee, with members of the Campaign Committee, with consultants hired by Equality for All and with staff of both Equality for All and of the Equality for All member organizations regarding the formulating of campaign strategy and messaging. These communications included discussions, among many other things, of the Equality for All campaign structure, fundraising, advertising, messaging research, and targeted outreach to press, politicians, and voter groups. 13. It is my understanding and belief that all of the individual participants in the 3
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Equality for All campaign engaged in some formulation of strategy and messaging. Within each area of campaign activity, individuals formulated campaign strategy and messaging and communicated with one another about such formulation. For example, outside of the Executive Committee, which met and communicated regularly on the strategy and messaging of the statewide campaign: The Campaign Committee regularly engaged in the formulation of campaign strategy and messaging by (a) adapting the generic messaging developed by consultants and campaign staff and approved by the Executive Committee to the more than 50 counties of California and numerous, discrete voter groups, and (b) developing campaign strategies specific to those regions and groups. For example, the messaging and strategy used in a particular California county, such as Inyo, or with a particular voter group, such as one of the Asian Pacific-Islander (API) groups, often looked very different from the generic messaging and advertising used in statewide campaign material. The members of the Campaign Committee, who were organizations working in these regions or with the voter groups, had significant input into how Equality for All campaign strategy and messaging was carried out in their communities, and they regularly communicated with one another, with the Executive Committee, and with Equality for All campaign staff and consultants about strategy and messaging. Equality for All campaign staff working in the different topical areas regularly engaged in the formulation of campaign strategy and messaging. For example: (a) the campaign staff dedicated to working on college campuses came up with a unique strategy and different messaging to get the "No on 8" message out on campuses (in part, they combined the "No on 8" messaging with "No on 4" messaging, another initiative of interest to younger voters (involving parental notification for abortion)); (b) the field
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staff dedicated to hosting phone banks, during which Equality for All volunteers would call potential voters, were constantly revising their strategies in reaching out to volunteers and in the messaging scripts communicated over the phone to voters; and (c) the fundraising staff working on getting people to host house parties (to raise money for the Equality for All campaign) developed house party tool kits that were regionally tailored and that included campaign messaging. 14. It is further my understanding and belief that the formulation of campaign strategy

and messaging took place within each of the member organizations of Equality for All. Outside of the work EQCA employees did directly for the campaign, we communicated with one another and with EQCA's board members about the formulation of strategy and messaging directed toward defeating Proposition 8. EQCA is not claiming that every communication between the Equality for All campaign staff and campaign consultants and the Equality for All member organization staff involved the formulation of campaign strategy or messaging. In fact, most of these communications were likely about much more mundane matters, like coordinating specific phone banks or rallies. However, the only way to determine whether a particular communication between, for example, an EQCA employee and an Equality for All consultant contains the internal, private campaign strategy and messaging information that the Ninth Circuit has held is privileged under the First Amendment is to review the communication. 15. Identifying a core group of persons involved in the formulation of Equality for All

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campaign strategy and messaging must necessarily include persons who served on the Executive Committee, persons and organizations on the Statewide Campaign Committee, Equality for All staff, consultants hired by the Executive Committee and individuals at each Campaign Committee organization. If the Court requests, EQCA will seek to provide a comprehensive list of all persons involved in the Equality for All campaign. Individual Participants in EQCA Campaign 16. The EQCA Board of Directors was communicated with regarding campaign

strategy and messaging and involved in formulating EQCA's fundraising efforts to defeat
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Proposition 8. The members of the EQCA Board of Directors during the 2008 campaign were: John Duran; Cary Davidson; Tim Hohmeier; Deb Kinney; Diane Abbitt; Jim Abbott; Dave Baron; Xavier Barrera; Brandon Brawner; Betsy Butler; Jody Cole; Larry Colton; Doug Dombek; Jeff Haber; Mike Hutcheson; Roslyn Jones; Tom Maddox; Shannon Minter; James Nguyen; Jeff Orr; Dennis Rasor; Jaime Rook; Rick Saputo; Linda Scaparotti; Eric Siddall; Alan Uphold; and assistants to the named individuals acting on the named individuals' behalf. 17. As part of EQCA, the following EQCA staff members were responsible for

formulating campaign strategy and messaging: Jean Adams; Field Organizer; Ali Bay, Communications Manager; Ian Barrera, Intern; Jim Carroll, Managing Director; Maya ScottChung, Field Organizer; Liam Cooper, Field Organizer; Doug Flater, Regional Manager and Major Gifts Officer; Joe Goldman, Communications Intern; Daniel Gould, Heath Network Coordinator; Kendra Harris, Government Affairs Manager; Ted Jackson, Field Organizer; Kaitlin Karkos, Development Associate; Alice Kessler, Government Affairs Director; Seth Kilbourn, Public Policy Director; Hannah Johnson, Field Organizer; Geoff Kors, Executive Director; Erica Liscano, Special Events Associate; Shumway Marshall, eCommunications and Graphics Manager; Randy Medenwald, Development Director; Miranda Meisenback, Field Intern; Trina Olson, Field Director; Michelle Ortiz, Deputy Director of Development; Zorina Price, Office Manager; Leanne Pittsford, Database Coordinator; Jennifer Sample, Office Manager; George Simpson, Online and Communications Manager; Sean Sullivan, Development Director; Sarah Tomastik, Data Input; Clarence Williams, Major Gifts Officer. 18. The EQCA Institute Board of Directors was communicated with regarding

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campaign strategy and messaging and involved in formulating EQCA's fundraising efforts to defeat Proposition 8. The members of the EQCA Institute Board of Directors during the 2008 campaign were: Gwyneth Borden, Chris Carnes, Cathy Schwamberger, Hon. José Cisneros, Randy Clark, Jody Cole, Troup Coronado, Carrie Farrell, Kelly Ferrero, Mark Goodson, Ben Patrick Johnson, Hon. Leslie Katz, Liz Maldonado, Michael Martinez, Shannon Minter, Kimberly Nichols, Dennis Rasor, Donna Sachet, Gary Soto, Laura Spanjian, Doug Spearman, Hon. Phil Ting, and William Tompkins.
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I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct. Executed on February 22, 2010 at Palm Springs, California. /s/ Geoff Kors Geoff Kors

Attestation Pursuant to General Order 45 Pursuant to General Order No. 45, Section X.B., I, Lauren Whittemore, hereby attest that I have obtained concurrence of the signatory, Geoff Kors, indicated by a "conformed" signature (/s/) within this e-filed document. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on February 22, 2010 at San Francisco, California. Dated: February 22, 2010 FENWICK & WEST LLP

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By:

/s/ Lauren Whittemore Lauren Whittemore

Attorneys for Third-Party, Equality California

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