FILED
FOR PUBLICATION APR 12 2010
MO LLY C. DW YER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T O F APPEALS
FOR THE NINTH CIRCUIT
KRISTIN M. PERRY; SANDRA B. No. 10-15649
STIER; PAUL T. KATAMI; JEFFREY J.
ZARRILLO, D.C. No. 3:09-cv-02292-VRW
Northern District of California,
Plaintiffs - Appellees, San Francisco
and
ORDER
CITY AND COUNTY OF SAN
FRANCISCO,
Intervenor-Plaintiff,
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. 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 of
the County of Alameda; DEAN C.
LOGAN, in his official capacity as
registrar-recorder/county-clerk for the
County of Los Angeles,
Defendants,
and
DENNIS HOLLINGSWORTH; GAIL J.
KNIGHT; MARTIN F. GUTIERREZ;
HAK-SHING WILLIAM TAM; MARK
A. JANSSON;
PROTECTMARRIAGE.COM - YES ON
8, A PROJECT OF CALIFORNIA
RENEWAL, as official proponents of
Proposition 8,
Intervenor-Defendants -
Appellees,
EQUALITY CALIFORNIA; NO ON
PROPOSITION 8, CAMPAIGN FOR
MARRIAGE EQUALITY, A PROJECT
OF THE AMERICAN CIVIL LIBERTIES
UNION OF NORTHERN CALIFORNIA,
Third parties - Appellants,
and
CALIFORNIANS AGAINST
ELIMINATING BASIC RIGHTS,
Third party.
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Before: WARDLAW, FISHER AND BERZON, Circuit Judges.
Third party appellants Equality California and No on Proposition 8,
Campaign for Marriage Equality, a Project of the American Civil Liberties Union
of Northern California (“appellants”) appeal from the district court’s March 5,
2010 (Doc. #610) and March 22, 2010 (Doc. #623) orders compelling them to
produce documents they contend are protected under the First Amendment
privilege against the compelled disclosure of internal campaign communications.
Appellants assert jurisdiction under 28 U.S.C. § 1291 and in the alternative seek
issuance of a writ of mandamus. Appellants moved for a stay pending appeal, to
expedite the appeal and for assignment of the appeal to the panel that decided
Perry v. Schwarzenegger, 591 F.3d 1147 (9th Cir. 2010) (Perry I). On March 26,
2010, we granted appellants’ motion requesting assignment of this appeal to the
panel 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
directed the parties to file simultaneous briefs addressing whether this court has
jurisdiction over this appeal and whether mandamus is appropriate. In that order,
we asked the parties to address Vizcaino v. United States District Court, 173 F.3d
713 (9th Cir. 1999), and In re Subpoena Served on California Public Utilities
Commission, 813 F.2d 1473, 1476 (9th Cir. 1987). Having reviewed the parties’
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briefs, we dismiss the appeal for lack of jurisdiction and deny the petition for
issuance of a writ of mandamus.
I. Discussion
A. Appellate Jurisdiction under 28 U.S.C. § 1291
Appellants assert that this court may exercise jurisdiction over this appeal
under 28 U.S.C. § 1291. As appellants are nonparties in the underlying litigation,
however, they can obtain review of the district court’s order compelling production
of documents they contend are protected under the First Amendment privilege we
articulated in Perry I only by electing to ignore the order and appealing any
ensuing contempt citation. See In re Subpoena Served on Cal. Pub. Util. Comm’n,
813 F.2d 1473, 1476 (9th Cir. 1987). Appellants recognize as much in their brief
on appeal regarding jurisdiction, stating that “if [they] decline to produce th[e]
documents [ordered produced by the district court] and are cited for contempt as a
consequence, they will have an appealable order.” Until then, we lack jurisdiction
under 28 U.S.C. § 1291 to review the district court’s order. Id.; see id. at 1476 n.1
(“The 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.”).
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B. Mandamus Jurisdiction
1. Mandamus Jurisdiction under Vizcaino
Appellants contend in the alternative that the Court may exercise mandamus
jurisdiction over this appeal to compel the district court to follow our mandate in
Perry I, which charged the district court with the determination of those persons
involved in the “Yes on 8” campaign “who logically should be included [in the
core group of persons in the ‘Yes on 8’ campaign engaged in the formulation of
campaign strategy and messages] in light of the First Amendment associational
interests the [First Amendment] privilege is intended to protect.” Perry I, 591 F.3d
at 1165 n.12.
In Vizcaino, we recognized that mandamus jurisdiction is available when a
district court disregards a prior appellate mandate on remand. 173 F.3d at 718–20.
Specifically, we held that mandamus was the appropriate remedy where the district
court revised a class definition on remand even though the appellate mandate could
not be read as contemplating redefinition of the class and charged the district court
only with the determination of individual eligibility for benefits and calculation of
the damages or benefits due class members. Id. at 721–22. The district court’s
order on remand therefore conflicted with and did not conform to the mandate.
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By contrast, the district court’s order here cannot conflict with our appellate
mandate. The earlier appeal concerned the application of a First Amendment
privilege 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
appeal (except as amicus curiae), asking for different documents from the ones
involved in the previous appeal. Although the district court in the order now
appealed 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
assure compliance with a prior mandate has no application.
2. Mandamus Jurisdiction under the Bauman factors
Having determined that the rule recognized in Vizcaino does not apply here,
we 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
established five guidelines to determine whether mandamus is appropriate in a
given case: (1) whether the petitioner has no other means, such as a direct appeal,
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to obtain the desired relief; (2) whether the petitioner will be damaged or
prejudiced in any way not correctable on appeal; (3) whether the district court’s
order 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
of first impression.” Perry I, 591 F.3d at 1156 (citing Bauman, 557 F.2d at
654-55).
The first and second factors disfavor issuance of the writ. As we have
explained, appellants have a means of obtaining appellate review, and protecting
themselves from injury from compelled disclosure, by defying the district court’s
discovery orders and appealing from a final, appealable contempt order. That route
was 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.,
Inc., 539 F.3d 1039, 1042 (9th Cir. 2008) (explaining that we lack jurisdiction to
hear interlocutory appeals from civil contempt orders entered against parties to
litigation). The fourth factor also counsels against issuance of the writ. The
district court has not committed an oft-repeated error or manifested a persistent
disregard of the federal rules.
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The third factor—legal error—arguably militates in favor of issuance of the
writ, because the district court may have partly misinterpreted the legal boundaries
of the First Amendment privilege we articulated in Perry I. In Perry I, we held
that the disclosure of internal campaign communications can “have a deterrent
effect on participation in campaigns,” as well as a “deterrent effect on the free flow
of information within campaigns,” which is necessary to “formulate [campaign]
strategy and messages.” Id. at 1162. As applied to the claims before the court at
that time, we held that the official proponents of Proposition 8 had made a prima
facie showing that disclosure of their internal campaign communications would
chill participation in campaigns and the free exchange of ideas within such
campaigns. See id. at 1163. In addition, we emphasized that our holding was
limited to “communications among the core group of persons engaged in the
formulation of campaign strategy and messages.” Id. at 1165 n.12 (emphasis in
original). We left to the district court the determination of the “core group of
persons” engaged in formulating campaign strategy and messaging, but did not
hold that the privilege is limited only to persons within a particular organization or
entity.
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
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among] separate organizations.” Doc. #623 at 13 (brackets in original). If the
district court meant that the privilege cannot apply to persons who are part of a
political association spanning more than one organization or entity, then this
interpretation was questionable. Under Perry I, the privilege applies to the core
group of persons engaged in the formulation of strategy and messages, whether or
not they are members of a single organization or entity. The operative inquiry is
whether they are part of an association subject to First Amendment protection. We
did not hold that the privilege cannot apply to a core group of associated persons
spanning more than one entity.
Nonetheless, there does not appear to have been clear error. The district
court granted in part Proponents’ motion to compel because appellants “in any
event failed to furnish the magistrate [judge] information from which a functional
interpretation of [an inter-organizational] core group . . . could be derived.” Doc.
#623 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
case for mandamus.
The fifth factor disfavors mandamus jurisdiction. In Perry I, we exercised
mandamus jurisdiction because the proceedings raised a particularly novel and
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important question of first impression—whether the First Amendment provides
any protection against compelled disclosure of internal campaign communications,
an issue that might otherwise have evaded appellate review. See Perry I, 591 F.3d
at 1156-57, 1159. By contrast, the current proceedings present the application of
that now recognized privilege. They thus do not present comparable concerns of
novelty and evasion of review.
On balance, mandamus jurisdiction is not appropriate under the Bauman
factors. Although the district court may have erred to the extent it concluded as a
matter of law that the First Amendment privilege cannot apply to persons who are
members of a single political association comprised of different organizations,
appellants have not demonstrated that the district court’s ultimate conclusions were
clearly 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’
remedy limited to ‘extraordinary’ causes.” Id. at 1156 (quoting Burlington
Northern & Santa Fe Ry. Co. v. U.S. Dist. Court, 408 F.3d 1142, 1146 (9th
Cir.2005) (quoting Cheney v. U.S. Dist. Court, 542 U.S. 367, 380 (2004)) (internal
quotation marks omitted). We therefore deny the petition for issuance of a writ of
mandamus.
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II. Conclusion
For the foregoing reasons, we dismiss the appeal for lack of jurisdiction and
deny the petition for issuance of a writ of mandamus. Appellants’ motion to
expedite the appeal is denied as moot. Each party shall bear its own costs of these
proceedings.
APPEAL DISMISSED. PETITION FOR WRIT OF MANDAMUS
DENIED.
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