In carrying out his insane inquiry into the subjective intentions of the more than seven million California voters who supported Proposition 8, Judge Walker authorized scorched-earth document and deposition discovery that threatens severe damage to citizen participation in voter initiatives and to the American political processes more generally.
In addition to his peculiar assumption that the messages of Prop 8’s sponsors played some determinative role in shaping those intentions, Walker declined to give those messages their objective meaning. Instead, he authorized the plaintiffs to obtain discovery of the private communications of Prop 8’s sponsors, including communications with their political consultants, on the theory that those communications, “even about messages contemplated but not actually disseminated, could fairly lead to admissible evidence illuminating the messages disseminated to voters” (emphasis added).
In granting an extraordinary writ of mandamus, a Ninth Circuit panel (consisting of three Clinton appointees) ruled that Walker’s discovery order had seriously underprotected the First Amendment associational rights of Prop 8’s sponsors. But the panel held that the broader disputes over whether it was proper at all for Walker to try to discern voters’ subjective intentions and, even if so, to look behind the actual public messages of Prop 8’s sponsors were “beyond the scope of this appeal.” It therefore “assume[d] without deciding that the district court has decided these questions correctly.” Further, in a curious amendment to its original opinion, the panel limited the First Amendment privilege to “communications among the core group of persons engaged in the formulation of campaign strategy and messages” (emphasis added).
In the end, Prop 8’s individual sponsors, the ProtectMarriage.com campaign, and the members of its executive committee were required to provide to plaintiffs all records of communications relating to the formulation of campaign strategy and messages that went beyond the “core group of persons” that the magistrate judge assisting Walker designated. Following their attorneys’ review of more than 100,000 documents (that’s documents, not the much higher number of pages of documents), they ultimately were forced to hand over many thousands of documents, including e-mails, internal strategy memos, meeting minutes, draft ads, and other confidential campaign information. Never before has there been such a sweeping judicial invasion of core political speech rights and associational rights.
Indeed, the judicial invasion also transgressed the religious-liberty rights of religious organizations that supported Prop 8, as Judge Walker also required that church officials who were individual sponsors of Prop 8 or on the executive committee of the ProtectMarriage.com campaign make available internal church communications in their possession relating to Prop 8.
If the legal positions that Judge Walker adopted in authorizing this intrusive and burdensome (and irrelevant) discovery are accepted, they will have a severe chilling effect on citizen participation in voter initiatives. How many citizens will volunteer for initiative campaigns if they discover that in Walker’s wacky world they may have to endure the burdens of complying with deposition and document requests (including retaining counsel), much less the risk that their private communications will be made public and be distorted or ridiculed to advance someone else’s political agenda in the courts?
Indeed, I see no principled reason why Walker’s inquiry into subjective voter intent on initiatives wouldn’t also warrant an inquiry into subjective voter intent on election of candidates for political office. Assume, for example, a lawsuit contending that voters in a state acted on illegitimate racial grounds in voting for (or against) Barack Obama as president. Why wouldn’t Walker’s approach justify sweeping discovery into the internal communications of the pro-Obama (or anti-Obama) campaign on the formulation of campaign strategy and messaging?
I haven’t researched the scope of immunity that legislators have, whether in Congress or in the 50 states, from discovery requests in civil litigation, but I also see no principled reason apart from any such immunity why Walker’s exploration into the private communications of Prop 8’s sponsors would not justify a similar exploration into the private communications of legislators related to a challenged piece of legislation. Indeed, the private communications of legislators would plainly be far more revealing of their subjective motivations as voters than the private communications of Prop 8’s sponsors are of the subjective motivations of the more than seven million Californians who voted for Prop 8. And why should any principles of legislative immunity pose a more insuperable obstacle to judicial inquiry than did the First Amendment rights that Walker so recklessly trampled?
In sum, in indulging his evident animus against supporters of Prop 8, Judge Walker poses a severe and lasting threat to core political rights.