No. 14-35427 U

NITED

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PPEALS

 F

OR THE

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INTH

C

IRCUIT

 

 NATIONAL ORGANIZATION FOR MARRIAGE, INC.

 Appellant-Proposed Intervenor

v. DEANNA L. GEIGER,

et al.

,

 Plaintiffs-Appellees

and JOHN KITZHABER 

 , et al.  Defendants-Appellees

 Appeal from the United States District Court for the District of Oregon Civil Case Nos. 6:13-cv-01834-MC and 6:13-cv-02256-MC (Hon. Michael J. McShane)

DECLARATION

 

OF

 

ROGER 

 

K.

 

HARRIS

 

IN

 

SUPPORT

 

OF

 

PETITION

 

FOR 

 

REHEARING

 

EN

 

BANC

Roger K. Harris (OSB No.

 

78046) H

ARRIS

B

ERNE

C

HRISTENSEN

LLP 5000 SW Meadows Road, Suite 400 Lake Oswego, OR 97035 (503) 968-1475 (503) 968-2003 Fax roger@hbclawyers.com John C. Eastman (Cal. Bar No. 193726) C

ENTER

F

OR

C

ONSTITUTIONAL

J

URISPRUDENCE

 c/o Chapman University Fowler School of Law One University Dr. Orange, CA 92866 (877) 855-3330 (714) 844-4817 Fax  jeastman@chapman.edu

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DECLARATION OF ROGER K. HARRIS IN SUPPORT OF PETITION FOR REHEARING EN BANC

 – 

 Page 1 I, Roger K. Harris, hereby declare and state as follows: 1.

 

I am a named partner with the law firm of Harris Berne Christensen LLP, attorneys for Appellant/Proposed Intervenor National Organization for Marriage,

Inc. (“NOM”), in this matter. I have personal knowledge of the matters stated in

this declaration and could and would so testify if called as a witness. 2.

 

Shortly before the close of business on September 9, 2014

 — 

 the evening

 before NOM’s petition for rehearing en banc was due

 

 — 

 I received from the

Attorney General’s office

75KB of digital documents in response to a public records act request that this office had made back on May 19, 2014. This  production of documents included more than 800 e-mail (86 with attachments) strings with more than 2000 discreet e-mail messages. 3.

 

On September 10, 2014, I was able to quickly review some of the documents in the production and learn that there had been a high degree of cooperation between attorneys for Plaintiffs and attorneys with the Office of the Attorney General in the underlying litigation challenging the constitutionality of

Oregon’s

state constitutional definition of marriage passed by voters as Measure 36 in 2004, and that this cooperation began even before the lawsuit was filed. 4.

 

As a result of that quick initial review, co-counsel and I determined to

include reference to these documents in NOM’s petition for rehearing en banc,

with a promise of this declaration to follow, because the documents demonstrate a

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DECLARATION OF ROGER K. HARRIS IN SUPPORT OF PETITION FOR REHEARING EN BANC

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 Page 2 lack of adversarialness sufficient to raise serious questions about the jurisdiction of the court below to have issued the broad-ranging declaratory and injunctive relief that it issued. 5.

 

Submission of newly-discovered evidence to the appellate court, even at the petition for rehearing en banc stage, is permitted in rare circumstances, such as

where the new evidence casts a “shadow on the integrity of the … process.”

 Prof'l  Air Traffic Controllers Org. v. Fed. Labor Relations Auth.

, 672 F.2d 109, 111 (D.C. Cir. 1982), cited with approval in

 Portland Audubon Soc'y v. Endangered Species Comm.

, 984 F.2d 1534, 1549 (9th Cir. 1993);

cf.

 

 Mirchandani v. United States

, 836 F.2d 1223 (9th Cir. 1988) (ordering limited remand to permit District

Court to address government’

s motion to reopen proceedings to consider newly discovered evidence). Indeed, the evidence summarized herein demonstrates a lack of adversarialness in the proceedings below that raise serious questions about

the lower court’s jurisdiction, and this Court has “an ongoing obligation to be sure

that jurisdiction exists.

”

 

 Matheson v. Progressive Specialty Ins. Co.

, 319 F.3d 1089, 1090 (9th Cir. 2003). 6.

 

Attached hereto as Exhibit A (Bates #1001) is a true and correct copy of an email from Lake Perriguey (counsel for the

Geiger

Plaintiffs) to Defendant Ellen Rosenblum, Attorney General of Oregon, asking for a phone call to discuss

“a potential challenge to Oregon’s constitutional provision defining marriage.”

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