April 15, 2010
by Brian Leubitz
Equality California and ACLU, as I discussed yesterday, were appealing Judge Walker’s order to turn over a slew of documents. Well, they lost. Sort of.
The 9th Circuit said it lacks jurisdiction to overturn a federal judge’s order forcing gay marriage advocacy groups to turn over their Proposition 8 campaign materials. … The organizations argued that their materials are protected by a First Amendment privilege shielding internal campaign communications.
But the three-judge panel said the organizations can’t appeal Walker’s order until they have been held in contempt for failing to comply with it. (Courthouse News Service)
I’ve noticed a couple other blogs discussing the decision, some even suggesting that this would speed up the process. That is a possible outcome, if the groups choose to turn over the documents. However, they can also wait to be held in contempt and then go back to the real meat of the question as I outlined yesterday.
Jurisdiction, which basically answers the question of whether the court has authority over the case, is a threshold question. That is, if there is no jurisdiction, then your substantive arguments are simply not heard. That’s what happened in this case, the 9th Circuit basically said you’ll have to wait on this. The next move is up to EQCA and ACLU.