FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KRISTIN M. PERRY; SANDRA B. 

STIER; PAUL T. KATAMI; JEFFREY J.

ZARRILLO,

Plaintiffs-Appellees,

and

CITY AND COUNTY OF SAN

FRANCISCO,

Intervenor-Plaintiff,

v.

ARNOLD SCHWARZENEGGER, in his

official capacity as Governor of

California; EDMUND G. BROWN, JR.,

in his official capacity as Attorney

General of California; MARK B.

HORTON, in his official capacity as 

director of the California

Department of Public Health and

state registrar of vital statistics;

LINETTE SCOTT, in her official

capacity as deputy director of

health information & strategic

planning for the California

Department of Public Health;

PATRICK O’CONNELL, in his official

capacity as clerk-recorder of the

County of Alameda; DEAN C.

LOGAN, in his official capacity as

registrar-recorder/county-clerk for

the County of Los Angeles,

Defendants, 

5653
and 

DENNIS HOLLINGSWORTH; GAIL J.

KNIGHT; MARTIN F. GUTIERREZ;

HAK-SHING WILLIAM TAM; MARK

A. JANSSON; PROTECTMARRIAGE.COMYES ON 8, A PROJECT OF

CALIFORNIA RENEWAL, as official

No. 10-15649 proponents of Proposition 8,

Intervenor-Defendants-Appellees, D.C. No.

3:09-cv-02292-

VRW

EQUALITY CALIFORNIA; NO ON  Northern District of

PROPOSITION 8, CAMPAIGN FOR California,

MARRIAGE EQUALITY, A San Francisco

PROJECT OF THE AMERICAN CIVIL

ORDER LIBERTIES UNION OF NORTHERN

CALIFORNIA,

Third parties-Appellants,

and

CALIFORNIANS AGAINST ELIMINATING

BASIC RIGHTS,

Third party. 

Filed April 12, 2010

Before: Kim McLane Wardlaw, Raymond C. Fisher and

Marsha S. Berzon, Circuit Judges.

ORDER

Third party appellants Equality California and No on Proposition 8, Campaign for Marriage Equality, a Project of the

American Civil Liberties Union of Northern California

5654 PERRY v. SCHWARZENEGGER
(“appellants”) appeal from the district court’s March 5, 2010

(Doc. #610) and March 22, 2010 (Doc. #623) orders compelling them to produce documents they contend are protected

under the First Amendment privilege against the compelled

disclosure of internal campaign communications. Appellants

assert jurisdiction under 28 U.S.C. § 1291 and in the alternative seek issuance of a writ of mandamus. Appellants moved

for a stay pending appeal, to expedite the appeal and for

assignment of the appeal to the panel that decided Perry v.

Schwarzenegger, 591 F.3d 1147 (9th Cir. 2010) (Perry I). On

March 26, 2010, we granted appellants’ motion requesting

assignment of this appeal to the panel that decided Perry I and

granted appellants’ emergency motion for a stay of the district

court’s March 22, 2010 order pending appeal. On March 31,

2010, we directed the parties to file simultaneous briefs

addressing whether this court has jurisdiction over this appeal

and whether mandamus is appropriate. In that order, we asked

the parties to address Vizcaino v. United States District Court,

173 F.3d 713 (9th Cir. 1999), and In re Subpoena Served on

California Public Utilities Commission, 813 F.2d 1473, 1476

(9th Cir. 1987). Having reviewed the parties’ briefs, we dismiss the appeal for lack of jurisdiction and deny the petition

for issuance of a writ of mandamus.

I. Discussion

A. Appellate Jurisdiction under 28 U.S.C. § 1291

Appellants assert that this court may exercise jurisdiction

over this appeal under 28 U.S.C. § 1291. As appellants are

nonparties in the underlying litigation, however, they can

obtain review of the district court’s order compelling production of documents they contend are protected under the First

Amendment privilege we articulated in Perry I only by electing to ignore the order and appealing any ensuing contempt

citation. See In re Subpoena Served on Cal. Pub. Util.

Comm’n, 813 F.2d 1473, 1476 (9th Cir. 1987). Appellants

recognize as much in their brief on appeal regarding jurisdicPERRY v. SCHWARZENEGGER 5655
tion, stating that “if [they] decline to produce th[e] documents

[ordered produced by the district court] and are cited for contempt as a consequence, they will have an appealable order.”

Until then, we lack jurisdiction under 28 U.S.C. § 1291 to

review the district court’s order. Id.; see id. at 1476 n.1 (“The

requirement that a nonparty must be in contempt of court in

this situation is a serious matter and serves to illustrate the

strictness in applying the final judgment rule.”). 

B. Mandamus Jurisdiction

1. Mandamus Jurisdiction under Vizcaino

Appellants contend in the alternative that the Court may

exercise mandamus jurisdiction over this appeal to compel the

district court to follow our mandate in Perry I, which charged

the district court with the determination of those persons

involved in the “Yes on 8” campaign “who logically should

be included [in the core group of persons in the ‘Yes on 8’

campaign engaged in the formulation of campaign strategy

and messages] in light of the First Amendment associational

interests the [First Amendment] privilege is intended to protect.” Perry I, 591 F.3d at 1165 n.12. 

In Vizcaino, we recognized that mandamus jurisdiction is

available when a district court disregards a prior appellate

mandate on remand. 173 F.3d at 718-20. Specifically, we held

that mandamus was the appropriate remedy where the district

court revised a class definition on remand even though the

appellate mandate could not be read as contemplating redefinition of the class and charged the district court only with

the determination of individual eligibility for benefits and calculation of the damages or benefits due class members. Id. at

721-22. The district court’s order on remand therefore conflicted with and did not conform to the mandate.

By contrast, the district court’s order here cannot conflict

with our appellate mandate. The earlier appeal concerned the

5656 PERRY v. SCHWARZENEGGER
application of a First Amendment privilege to discovery

requests between the parties to this litigation—in particular, to

requests by the plaintiffs to the proponents of Proposition 8

who intervened in this litigation (“Proponents”). The present

appeal concerns subpoenas issued by the Proponents to third

parties to the pending litigation, not involved in the prior

appeal (except as amicus curiae), asking for different documents from the ones involved in the previous appeal.

Although the district court in the order now appealed from

applied the First Amendment privilege we articulated in Perry

I and thus interpreted our earlier opinion, the earlier mandate

was not directly applicable to that order; instead, our opinion

in Perry I was pertinent essentially as precedent. Under these

circumstances, the Vizcaino principle that mandamus is available to assure compliance with a prior mandate has no application.

2. Mandamus Jurisdiction under the Bauman

factors

Having determined that the rule recognized in Vizcaino

does not apply here, we address appellants’ petition for issuance of a writ of mandamus under Bauman v. United States

District Court, 557 F.2d 650 (9th Cir.1977), where “we established five guidelines to determine whether mandamus is

appropriate in a given case: (1) whether the petitioner has no

other means, such as a direct appeal, to obtain the desired

relief; (2) whether the petitioner will be damaged or prejudiced in any way not correctable on appeal; (3) whether the

district court’s order is clearly erroneous as a matter of law;

(4) whether the district court’s order is an oft repeated error

or manifests a persistent disregard of the federal rules; and (5)

whether the district court’s order raises new and important

problems or issues of first impression.” Perry I, 591 F.3d at

1156 (citing Bauman, 557 F.2d at 654-55).

The first and second factors disfavor issuance of the writ.

As we have explained, appellants have a means of obtaining

PERRY v. SCHWARZENEGGER 5657
appellate review, and protecting themselves from injury from

compelled disclosure, by defying the district court’s discovery

orders and appealing from a final, appealable contempt order.

That route was not available to the parties from whom discovery was sought in Perry I until the end of the litigation. See,

e.g., Koninklijke Philips Elecs. N.V. v. KSD Tech., Inc., 539

F.3d 1039, 1042 (9th Cir. 2008) (explaining that we lack

jurisdiction to hear interlocutory appeals from civil contempt

orders entered against parties to litigation). The fourth factor

also counsels against issuance of the writ. The district court

has not committed an oft-repeated error or manifested a persistent disregard of the federal rules.

The third factor—legal error—arguably militates in favor

of issuance of the writ, because the district court may have

partly misinterpreted the legal boundaries of the First Amendment privilege we articulated in Perry I. In Perry I, we held

that the disclosure of internal campaign communications can

“have a deterrent effect on participation in campaigns,” as

well as a “deterrent effect on the free flow of information

within campaigns,” which is necessary to “formulate [campaign] strategy and messages.” Id. at 1162. As applied to the

claims before the court at that time, we held that the official

proponents of Proposition 8 had made a prima facie showing

that disclosure of their internal campaign communications

would chill participation in campaigns and the free exchange

of ideas within such campaigns. See id. at 1163. In addition,

we emphasized that our holding was limited to “communications among the core group of persons engaged in the formulation of campaign strategy and messages.” Id. at 1165 n.12

(emphasis in original). We left to the district court the determination of the “core group of persons” engaged in formulating campaign strategy and messaging, but did not hold that

the privilege is limited only to persons within a particular

organization or entity.

In the March 22, 2010 order, the district court said as a

matter of law that “the First Amendment privilege does not

5658 PERRY v. SCHWARZENEGGER
cover communications between [or among] separate organizations.” Doc. #623 at 13 (brackets in original). If the district

court meant that the privilege cannot apply to persons who are

part of a political association spanning more than one organization or entity, then this interpretation was questionable.

Under Perry I, the privilege applies to the core group of persons engaged in the formulation of strategy and messages,

whether or not they are members of a single organization or

entity. The operative inquiry is whether they are part of an

association subject to First Amendment protection. We did

not hold that the privilege cannot apply to a core group of

associated persons spanning more than one entity. 

Nonetheless, there does not appear to have been clear error.

The district court granted in part Proponents’ motion to compel because appellants “in any event failed to furnish the magistrate [judge] information from which a functional

interpretation of [an inter-organizational] core group . . . could

be derived.” Doc. #623 at 10. Thus, even if we were persuaded that the court misinterpreted Perry I, it is not clear that

the district court’s ultimate conclusions were clearly erroneous as a matter of law. Accordingly, the third factor at most

lends some support to the case for mandamus.

The fifth factor disfavors mandamus jurisdiction. In Perry

I, we exercised mandamus jurisdiction because the proceedings raised a particularly novel and important question of first

impression—whether the First Amendment provides any protection against compelled disclosure of internal campaign

communications, an issue that might otherwise have evaded

appellate review. See Perry I, 591 F.3d at 1156-57, 1159. By

contrast, the current proceedings present the application of

that now recognized privilege. They thus do not present comparable concerns of novelty and evasion of review.

On balance, mandamus jurisdiction is not appropriate under

the Bauman factors. Although the district court may have

erred to the extent it concluded as a matter of law that the

PERRY v. SCHWARZENEGGER 5659
First Amendment privilege cannot apply to persons who are

members of a single political association comprised of different organizations, appellants have not demonstrated that the

district court’s ultimate conclusions were clearly erroneous as

a matter of law, and the other four factors disfavor issuance

of the writ. As we explained in Perry I, “[t]he writ of mandamus is an ‘extraordinary’ remedy limited to ‘extraordinary’

causes.” Id. at 1156 (quoting Burlington Northern & Santa Fe

Ry. Co. v. U.S. Dist. Court, 408 F.3d 1142, 1146 (9th Cir.

2005) (quoting Cheney v. U.S. Dist. Court, 542 U.S. 367, 380

(2004)) (internal quotation marks omitted). We therefore deny

the petition for issuance of a writ of mandamus.

II. Conclusion

For the foregoing reasons, we dismiss the appeal for lack

of jurisdiction and deny the petition for issuance of a writ of

mandamus. Appellants’ motion to expedite the appeal is

denied as moot. Each party shall bear its own costs of these

proceedings.

APPEAL DISMISSED. PETITION FOR WRIT OF

MANDAMUS DENIED.

5660 PERRY v. SCHWARZENEGGER