No on 8 groups relent; turn over documents

Judge Vaughn Walker

Judge Vaughn Walker

No on 8 groups turned over CDs of “highly confidential” material to attorneys for the Yes on 8 coalition this week, ending a months-long effort to fight a court order to do so.

The groups, Equality California and the ACLU of Northern California, had fought a federal court order to turn over internal communications since January. But the groups ended the standoff this week, saying they did not want to delay any further a ruling on the constitutionality of Proposition 8. The Perry v. Schwarzenegger trial testing the constitutionality of the California same-sex marriage ban was held in January but closing arguments in the case have been delayed for months while the dispute has raged over what documents the No on 8 groups had to turn over.

Elizabeth Gill, an attorney with ACLU, acknowledged Thursday that the No on 8 groups had not prevailed in their attempt to avoid turning over all communications—including communications between the various organizations and people who worked against the anti-gay initiative in 2008. None of the groups are a party to the Perry lawsuit, but were subpoenaed for the documents by the Yes on 8 groups that had been ordered to turn over similar documents to the plaintiffs in the case.

Because the No on 8 groups are not a party to the lawsuit, they would have had to subject themselves to a contempt of court order before the 9th Circuit U.S. Court of Appeals could have taken up their objection to turning of the documents.

The 9th Circuit initially ruled that the First Amendment does not cover the communications among political organizations working on a campaign but later clarified that it does. The catch was that the No on 8 groups would have to subject themselves to being held in contempt before the appeals court could intervene. The contempt order would cost each organization $2,000 per day that they refused to turn over documents.

“We just decided not to continue to fight this,” said Gill. “What we were fighting over was a question of principle—the idea of what kind of campaign communications does the First Amendment cover.”

“Ultimately, the Ninth Circuit has recognized the serious implications at stake for all coalition partners who come together around ballot measures,” said Gill, in a written statement, “and has made it clear that the private communications shared among coalition partners is protected speech.”

Gill and the ACLU, in a statement issued Wednesday, said the organization “believes that the substantial delay” in the Perry trial that would result from continued appeal of the documents order “is far outweighed by the interest in a swift resolution of the underlying dispute—the right of same-sex couples to marry in California.”

The groups’ agreement to turn over the documents enabled U.S. District Court Judge Vaughn Walker, who is presiding over the Proposition 8 trial, to set a tentative date for closing arguments. That date, subject to change due to the schedules of the various attorneys involved, is currently June 16 at 10 a.m.

During a court hearing Wednesday, Judge Walker gave both sides of the Perry v. Schwarzenegger lawsuit until Friday to review the documents turned over to Yes on 8 this week. He said they would meet Saturday to determine whether there is any lingering dispute and, if not, issue a ruling Monday that the No on 8 groups are in compliance with the order. Walker said Yes on 8 attorneys would then have until May 5 to present any additional evidence in the Perry case, based on the documents turned over. Walker is also considering a motion from an intervenor party for the Yes on 8 proponents—adverse witness William Tam—to have his testimony stricken from the record. Walker said he would accept arguments on that issue until May 10.

Equality California sent its materials April 27 to the Alliance Defense Fund, a conservative group that has helped the Yes on 8 group’s effort to defend California’s same-sex marriage ban. The ACLU sent a CD for “No on Proposition 8, Campaign for Marriage Equality: A Project of the ACLU-Northern California.”

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