The Ninth Circuit Forbids Discovery of Proposition 8 Internal Strategy and Organization Documents
	By VIKRAM DAVID AMAR
	Friday, December 18, 2009

In this column, I analyze recent events in the federal constitutional litigation – currently set for trial in federal district court early next year -- challenging Proposition 8, California's state-law ban on same-sex marriage. (Readers who want additional background and commentary on this litigation may be interested in Part One and Part Two of my earlier series of columns for this site.)

Last week, the United States Court of Appeals for the Ninth Circuit disposed, more quickly than some observers expected, of an interesting side-question that had threatened to delay trial: Must the drafters and organizers behind Proposition 8 make public their "internal campaign communications relating to campaign strategy and advertising"?

The plaintiffs, challengers of Proposition 8, had sought such materials during the "discovery" phase of the lawsuit, and U.S. District Judge Vaughn Walker had ruled that the information should be provided. In reversing the district judge and protecting the materials from disclosure, the Ninth Circuit reached the correct result, but, as I explain below, it arguably could and should have arrived there by a different route.

The Civil Discovery Process and Its Invocation in this Case

In a civil (that is, non-criminal) lawsuit, each side is entitled, under the procedural rules governing federal courts, to seek and obtain – "discover," if you will -- from the other side and third-party witnesses information that is "relevant" to the legal and factual issues raised in the litigation, and that is needed for that party to prove its case. In the Proposition 8 matter, the plaintiffs used this discovery process to request access to the internal communications of the defendants -- the proponents and organizers who initiated Proposition 8.

Such materials, the plaintiffs urged, were relevant to whether Proposition 8 was motivated by a constitutionally-improper purpose -- hatred or animus towards a politically powerless group -- and also relevant to the strength of any legitimate governmental purposes supporting the same-sex marriage ban. Both of these issues – potential improper purpose behind, and lack of adequate state interests supported by, Proposition 8 -- are raised by the plaintiffs' challenge to the initiative under the equal protection and due process clauses of the Fourteenth Amendment, which form the substantive basis for the plaintiffs' lawsuit.

The Ninth Circuit's First Amendment Ruling, and An Alternative Ground For Its Result

The Ninth Circuit rejected the plaintiffs' request for the internal documents. The court did so because it agreed with the defendants that forced disclosure of these communications would burden political association rights protected by the First Amendment "by discouraging individuals from participating in initiative campaigns and by muting the exchange of ideas within those campaigns." Drawing upon, among other sources, cases involving forced disclosure of the identity and activity of members of groups fighting for civil rights in the 1950s and 1960s, the Ninth Circuit quite plausibly decided that the First Amendment trumped any right to discovery that plaintiffs enjoyed under the federal rules of civil litigation.

In so holding, though, the Ninth Circuit brushed past what in many respects is a prior question that could have been the basis for rejecting plaintiffs' request: Were the materials sought even legally relevant to the claims in the lawsuit in the first place?

As noted above, the plaintiffs asserted that the defendants' internal communications were relevant to any unlawful motivations behind Proposition 8, and to the strength of any public policies served by bans on same-sex marriage like Proposition 8. And to be sure, questions of the motivations and public policy purposes behind Proposition 8 are fairly implicated by the lawsuit.

But -- and this is the key -- the motivations that constitutionally count under conventional equal protection and due process principles are not the motivations of the drafters and organizers of a piece of legislation. Rather, they are the motivations of the measure's enactors -- in this case, the millions of Californians who voted for the initiative measure and thereby made it into law.

Similarly, the constitutionally relevant governmental purposes that might legitimate Proposition 8 are the purposes the voters sought (or perhaps could have sought) to promote -- not necessarily the purposes that the drafters themselves had on their minds.

Now, to the extent that the drafters and organizers of Proposition 8 communicated their subjective motivations or sense of justifications for the initiative to the voters -- through the public advertising campaign or otherwise -- the actions of the drafters may help shed light on voter intent.

But these communications are themselves already (by definition) publicly viewable. Whether the advertising campaign appealed to hatred against gays and lesbians, or catered to bogus public policy concerns such as fears about the teaching of same-sex marriage in schools, can be seen by examining the advertising campaign itself.

Thus, it is far from clear (to me at least) why knowing the subjective expectations and desires of a few key organizers would tell us much about what ended up being on the minds of the millions of California voters who favored Proposition 8. Again, how the organizers' goals were communicated to the public (via flyers, television advertisements and the like that are already publicly available to see) might matter, but how those goals were communicated among the organizers themselves seems minimally relevant, at best.

It might be possible to argue that the intent of the drafters and organizers is important because if the drafters never drafted Proposition 8 and the organizers never organized behind it, Proposition 8 would never have come about. In this sense, perhaps the drafters' motivations are a "but for" cause of the initiative's enactment. But this argument is not mentioned in the Ninth Circuit opinion, and it raises complexities of its own. For example, might other people who lack the invidious motive have sponsored a measure similar to Proposition 8 if its drafters were out of the picture? More generally, would the subjective motives of a person who donated a lot of money so that signatures could be gathered on behalf of an initiative doom the initiative even though the millions who voted for it had a pure heart?

In Cuyahoga Falls v. Buckeye Comnunity Hope Foundation six years ago, the Supreme Court seemed to suggest that while the action of the voters collectively in adopting an inititiative or referendum is governed by the Fourteenth Amendment and thus must not be based on illicit motives, the activities and attitudesof individual organizers or sponsors who are attempting to put a direct democracy measure in front of the voters for their decision do not constitute "state action," and thus fall outside the equal protection clause altogether. The Court reasoned that sponsors and organizers, whatever their motives, are "private" actors exercising their First Amendment right to petition government for redress. If this is true, then even if the motivations and beliefs of the Proposition 8 organizers constituted a "but for" cause of the initiative's enactment, these motivations and beliefs are not relevant to a Fourteenth Amendment challenge except to the extent they are communicated to and influence the voters themselves.

The Ninth Circuit's Failure to Sufficiently Confront the Relevance Issue

To my mind, the Ninth Circuit did not do an adequate job of dealing with these questions of relevance. First, it said that it agreed with the district court that the discovery sought was relevant to the claims in the lawsuit, but then -- in a footnote – it seemed to blur that agreement and said, instead, that it was "assum[ing] without deciding" the correctness of the district court's view about "the types of evidence [that] may be relied upon to demonstrate voter intent," because "[t]hese issues are beyond the scope of this appeal."

How could the Ninth Circuit "agree" with the district court's determination of relevance without deciding whether it agreed with the district court's views about the kinds of evidence that may reveal voter intent? Since the defendants contested the relevance of the materials plaintiffs sought, the issue of the "types of evidence that may be [used] to demonstrate voter intent" was not only within the scope of the appeal, it was vital to the appeal. A court simply cannot determine questions of relevance without first understanding what substantive questions are raised by a lawsuit, and what kinds of evidence might bear on those questions.

Labeling certain issues "outside the scope" of an appeal can be a convenient device an appellate court uses to not address an issue that it, in fact, should address, but for various reasons does not want to address. The United States Courts of Appeals have a great deal of discretion (in part because no one is looking over their shoulders -- the U.S. Supreme Court can hear only so many cases) to frame the disputes they want to resolve in particular ways, even if that framing is not always fair to the litigants or to the underlying issues raised by a case.

I should note that the Ninth Circuit in the Proposition 8 discovery clash did also cite to one Supreme Court case to bolster its quick conclusion that the materials sought by the plaintiffs were relevant. But close inspection of that Supreme Court case makes clear that the Court there was speaking only about materials that had been communicated or addressed to the public, not materials that were internal within the organizers' own communications.

Why the Grounds of Decision Might Matter

Someone might wonder, "What difference does it make whether the Ninth Circuit reached its result in this case based on the First Amendment, rather than on the relevance ground, if the court's bottom line outcome is correct?"

There are a few answers. First, lower federal courts are instructed by the Supreme Court to "avoid" deciding constitutional questions (like the meaning of the First Amendment) if a case instead can be resolved based on the meaning of a statute (like the federal procedure rules governing "relevance.")

I myself think this so-called avoidance doctrine is not always a good idea, and is often misused, such that a court ends up aggressively rewriting a statute in a way that Congress never wanted, all in the name of "judicial restraint." (This is what I would argue happened, for instance, in the Voting Rights Act ruling by the Supreme Court last Term.) But in the Proposition 8 case, the appropriate "judicially restrained" course might have been to resolve the case on relevance, rather than First Amendment, grounds.

One might respond here by arguing that the relevance question itself contains a constitutional dimension -- because it turns on whose intent, drafters' or voters', the Constitution cares about, and what kinds of evidence are constitutionally relevant. But these particular constitutional questions seem more settled -- and thus narrower -- than the question of what the meaning of the First Amendment is in this context. In this respect, the Ninth Circuit did not, to borrow a phrase from constitutional scholar Cass Sunstein in his discussion of the virtue of judicial restraint, "leav[e] as much as possible undecided."

To offer but one example of how entering the First Amendment thicket might raise complications, consider the non-initiative lawmaking context: Do members of a city council who enacted an ordinance enjoy a First Amendment privilege to keep secret their non-public deliberations (assuming there were any) about the ordinance when the measure is challenged as being unconstitutionally motivated?

In that kind of case, the internal communications are undeniably relevant under the Fourteenth Amendment -- because drafters and enacters are one and the same. But should First Amendment doctrine (or similar constitutional doctrines) apply to protect government officials in that instance?

To be clear, I am not saying that the Ninth Circuit opinion holds that government officials would be so protected. My point is simply that such questions are raised by the Ninth Circuit's invocation of the First Amendment, but would not be raised if instead plaintiffs' discovery requests had simply been held to be insufficiently relevant.

None of this is to say that the relevance route might not have some raised some complex questions of its own. Perhaps it would have; I have noted a few above. But the Ninth Circuit's opinion does not suggest that the court gave a great deal of attention to whether this alternative ground might been a simpler and more restrained, and thus preferable, one. Perhaps the court will take the case en banc, and will have another chance to think through some of these issues.

Vikram David Amar, a FindLaw columnist, is the Associate Dean for Academic Affairs and Professor of Law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.