Judge Walker
U.S. District Court Judge Vaughn Walker told the attorneys and observers at a pre-trial hearing in Perry v. Schwarzenegger that the U.S. Court of Appeals for the Ninth Circuit will be issuing an order this afternoon to consider en banc whether the internal documents of the proponents of Proposition 8 are protected from discovery by the Plaintiffs, according to a person present at the hearing.
[UPDATE: A spokesperson for the Plaintiffs' legal team confirmed that Judge Walker said that he had received a call from the Ninth Circuit that the en banc order would be forthcoming on the docket.]
Eugene Volokh wrote early Sunday about the panel opinion, issued on Friday. He quotes, in part, from the opinion:
We reverse. The freedom to associate with others for the common advancement of political beliefs and ideas lies at the heart of the First Amendment. Where, as here, discovery would have the practical effect of discouraging the exercise of First Amendment associational rights, the party seeking discovery must demonstrate a need for the information sufficiently compelling to outweigh the impact on those rights. Plaintiffs have not on the existing record carried that burden in this case….
Although he found the panel’s opinion to be persuasive, he nonetheless criticized it for failing to address what he saw as a couple of very relevant cases:
I think the opinion’s arguments are quite persuasive, especially given the Court’s longstanding recognition of a presumptive First Amendment right to confidential association, at least where compelled disclosure of who belongs to a group is involved.
But the trouble is that there are Supreme Court cases, which the Ninth Circuit opinion doesn’t cite, that seem to point in the opposite direction: EEOC v. University of Pennsylvania and Herbert v. Lando.
Walker’s statement today suggests that an order will be issued this afternoon from the Ninth Circuit that it will be considering the case en banc, which traditionally means that all of the judges on the circuit would consider the matter. Due to the number of judges on the Ninth Circuit, however, it has a unique “limited en banc” procedure that calls for a draw of 11 of the more than 25 judges on the circuit to hear the matter.
More information will be forthcoming as available.
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Chris Geidner is a lawyer in Washington, D.C., who writes at Law Dork, contributes regularly to Metro Weekly and has written for The Atlantic Online, Advocate.com, Salon and other publications. An extended biography can be found