Dec 4, 2009 by Bruce
Prop 8 trial judge already getting reversed – and the trial hasn’t started yet!
It’s not a final order, and it’s only a discovery dispute, but this story appears to confirm my earlier misgivings about Judge Walker’s misunderstanding of the key legal issues in the lawsuit over Prop 8. Walker had given the go-ahead for plaintiffs to obtain the internal strategy memos and internal communications among the proponents of Prop 8. Never mind that such an intrusive order would inevitably put the First Amendment’s protection of political speech and freedom of association at issue. Walker decided that the First Amendment wasn’t involved. The Prop 8 folks appealed.
On December 3 a 3-judge panel of 9th Circuit judges (all Clinton appointees) made a preliminary ruling that Prop 8’s sponsors “have made a strong showing that they are likely to succeed” in their arguments in favor of protecting against disclosure of the internal documents. What’s even more surreal is that the ACLU filed a brief supporting the Prop 8 side in this discovery dispute. Interesting, to say the least.
Before I get to cheering too loudly, however, I’ll wait for the 9th Circuit’s final decision. Yesterday’s order indicated that they will decide the discovery issues “promptly.” No telling yet whether these discovery disputes will affect the January trial date.
