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NO. 10-16696

ARGUED DECEMBER 6, 2010


(CIRCUIT JUDGES STEPHEN REINHARDT, MICHAEL HAWKINS, & N.R. SMITH)
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KRISTIN PERRY, et al.,
Plaintiffs-Appellees,
v.
EDMUND G. BROWN, Jr., et al.,
Defendants,
and
DENNIS HOLLINGSWORTH, et al.,
Defendant-Intervenors-Appellants.

On Appeal from United States District Court for the Northern District of California
Civil Case No. 09-CV-2292 JW (Honorable James Ware)

APPELLANTS’ MOTION FOR ORDER COMPELLING RETURN OF


TRIAL RECORDINGS

Andrew P. Pugno Charles J. Cooper


LAW OFFICES OF ANDREW P. PUGNO David H. Thompson
101 Parkshore Drive, Suite 100 Howard C. Nielson, Jr.
Folsom, California 95630 COOPER AND KIRK, PLLC
(916) 608-3065; (916) 608-3066 Fax 1523 New Hampshire Ave., N.W.
Washington, D.C. 20036
Brian W. Raum (202) 220-9600; (202) 220-9601 Fax
James A. Campbell
ALLIANCE DEFENSE FUND
15100 North 90th Street
Scottsdale, Arizona 85260
(480) 444-0020; (480) 444-0028 Fax
Attorneys for Defendant-Intervenors-Appellants Hollingsworth, Knight, Gutierrez,
Jansson, and ProtectMarriage.com
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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ....................................................................................iv

INTRODUCTION .....................................................................................................1

STATEMENT ............................................................................................................3

A. Policies and Rules Governing Broadcast of Trial Proceedings ............3

B. The District Court’s Efforts to Broadcast the Trial


Proceedings ...........................................................................................5

C. The Supreme Court’s Decision Prohibiting Broadcast .........................6

D. Chief Judge Walker’s Creation of the Trial Recordings.......................7

E. Judge Walker’s Unlawful Public Disclosure of the Trial Recordings


Beyond the Confines of the Courthouse .............................................12

ARGUMENT ...........................................................................................................13

I. THE TRIAL RECORDINGS MAY NOT BE SHOWN BEYOND THE CONFINES


OF THE NORTHERN DISTRICT OF CALIFORNIA COURTHOUSE ..........................13

A. The Recordings of the Trial Proceedings Are Under Seal..................15

B. Chief Judge Walker Unequivocally Assured Proponents


That the Trial Recordings Would Be for His Exclusive Use
in Chambers.........................................................................................16

C. The Supreme Court’s Stay, the Judicial Council’s Policy, and


the District Court’s Local Rule Prohibit Showing the Trial
Recordings Beyond the Confines of the Courthouse ..........................16

II. THE COURT SHOULD ORDER THE IMMEDIATE RETURN OF ALL COPIES
OF THE TRIAL RECORDINGS ............................................................................18

CONCLUSION........................................................................................................20

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EXHIBITS

Exhibit 1 – Trial Transcript (Jan. 14, 2010)

Exhibit 2 - Report of the Proceedings of the Judicial Conference of the


United States (Sept. 17, 1996)

Exhibit 3 - Letter from James C. Duff, Secretary of the Judicial Conference


of the United States, to Senators Patrick J. Leahy and Jeff Sessions (July 23,
2009)

Exhibit 4 - Report of the Proceedings of the Judicial Conference of the


United States (Sept. 20, 1994)

Exhibit 5 - Letter from Chief Judge Hug (June 21, 1996)

Exhibit 6 - Unamended Local Rule 77-3 (Dec. 2009)

Exhibit 7 – Trial Transcript (Jan. 11, 2010)

Exhibit 8 – Trial Transcript (Jan 13, 2010)

Exhibit 9 - Letter from Charles J. Cooper (Jan. 14, 2010)

Exhibit 10 - Notice to Parties (Jan. 15, 2010)

Exhibit 11 - Order 2010-3 (9th Cir. Judicial Council Jan. 15, 2010)
(Kozinski, C.J.)

Exhibit 12 - Local Rule 77-3 (Feb. 2010)

Exhibit 13 - Renewed Notice Concerning Revision of Civil Local Rule 77-3


(Feb. 4, 2010)

Exhibit 14 - Local Rule 77-3 (May 2010)

Exhibit 15 - Northern District of California Civil Local Rules web page


(May 18, 2010)

Exhibit 16 - Northern District of California home page (May 18, 2010)

Exhibit 17 - Letter from Media Coalition (May 18, 2010)

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Exhibit 18 - Letter from Charles J. Cooper

Exhibit 19 - Order (May 31, 2010)

Exhibit 20 - Amended Protective Order

Exhibit 21 - Notice to Court Clerk re Plaintiffs’ Request for a Copy of the


Trial Recording (June 2, 2010)

Exhibit 22 – Trial Transcript (June 16, 2010)

Exhibit 23 - Notice to Court Clerk from Plaintiff-Intervenor City and County


of San Francisco re Use of Video (June 2, 2010)

Exhibit 24 - Order (June 9, 2010)

Exhibit 25 - Declaration of Peter A. Patterson (June 29, 2010)

Exhibit 26 - Defendant-Intervenors’ Motion for Administrative Relief (June


29, 2010)

Exhibit 27 - Plaintiffs’ and Plaintiff-Intervenor’s Opposition to Defendant-


Intervenors’ Motion for Administrative Relief (June 29, 2010)

Exhibit 28 - Findings of Fact and Conclusions of Law (Aug. 4, 2010)

Exhibit 29 - Petition for a Writ of Certiorari, Hollingsworth v. United States


Dist. Ct. (Apr. 8, 2010)

Exhibit 30 - Order, Hollingsworth v. United States Dist. Ct. (S. Ct. Oct. 4,
2010)

Exhibit 31 - Order, Hollingsworth v. United States Dist. Ct. (9th Cir. Oct.
15, 2010)

Exhibit 32 - Office of the Circuit Executive, “Ninth Circuit Current and


Future Vacancy Table” (Mar. 17, 2011)

Exhibit 33 - Report of the Proceedings of the Judicial Conference of the


United States (Sept. 14, 2010)

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TABLE OF AUTHORITIES

Cases Page

Hollingsworth v. Perry,
130 S. Ct. 705 (2010)...............................................................2, 4-7, 9, 11, 17-18
Hollingsworth v. Perry,
130 S. Ct. 1132 (2010)..........................................................................................6
In re Charge of Judicial Misconduct,
91 F.3d 90 (9th Cir. Judicial Council 1996) .........................................................3
In re Complaint Against District Judge Joe Billy McDade,
No. 07-09-90083 (7th Cir. Sept. 28, 2009)...............................................2, 14, 17
In re Sony BMG Music Entm’t.,
564 F.3d 1 (1st Cir. 2009)...................................................................................17
Matter of Sealed Affidavit(s),
600 F.2d 1256 (9th Cir. 1979) ............................................................................18
Nixon v. Warner Commc’ns, Inc.,
435 U.S. 589 (1978)............................................................................................18
United States v. Lang,
364 F.3d 1210 (10th Cir. 2004) ..........................................................................15
United States v. New York Tel. Co.,
434 U.S. 159 (1977)............................................................................................20
United States v. Nixon,
417 U.S. 960 (1974)............................................................................................16

Statutes and Rules


18 U.S.C. § 2071(a) .................................................................................................15
28 U.S.C. § 332(d)(2)...............................................................................................17
28 U.S.C. § 351(a) ..............................................................................................2, 14
Circuit R. 27-13(d)...................................................................................................19
Circuit Advisory Comm. Note to R. 27-13..............................................................16
Code of Conduct for United States Judges, Canon 2A............................................15
Ninth Circuit Rules of Judicial Conduct art. I, § 3(h)(2).........................................15

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Other
http://www.c-spanvideo.org/program/Vaugh ............................................ 1, 5, 12-13

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Appellants Hollingsworth, Knight, Gutierrez, Jansson, and

ProtectMarriage.com (hereinafter, “Proponents”) respectfully move the Court to

order that former district judge Vaughn Walker cease further disclosures of the

video recordings of the trial proceedings in this case, or any portion thereof, and

that all copies of the trial recordings in the possession, custody, or control of any

party to this case or of former judge Walker be returned promptly to the Court and

held by the court clerk under seal.1

INTRODUCTION

On February 18, 2011, Judge Walker delivered a speech at the University of

Arizona in which he played a portion of the video recording of the cross-

examination of one of Proponents’ expert witnesses in the trial of this case. The

speech was video taped by C-SPAN, and it was subsequently broadcast on C-

SPAN several times beginning on March 22. See http://www.c-

spanvideo.org/program/Vaugh, “Details – Airing Details.” The speech is available

for viewing on C-SPAN’s website. See id.

By publicly displaying the video recording of a portion of the trial

testimony, Judge Walker (1) violated his own order placing the video recording of

the trial under seal; (2) ignored the clear terms of the district court’s Local Rule 77-

1
Counsel for both Appellees oppose this motion. As indicated in the
Certificate of Service, a copy of this motion has been served upon former judge
Walker.
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3, which prohibits the broadcast or other transmission of trial proceedings beyond

“the confines of the courthouse”; (3) contravened the longstanding policies of the

Judicial Conference of the United States and the Judicial Council of this Court

prohibiting public broadcast of trial proceedings; and (4) defied the United States

Supreme Court’s prior decision in this case ruling that an earlier attempt by then-

Chief Judge Walker to publicly broadcast the trial proceedings “complied neither

with existing rules or policies nor the required procedures for amending them.”

Hollingsworth v. Perry, 130 S. Ct. 705, 713 (2010). Thus, Judge Walker

“‘engaged in conduct prejudicial to the effective and expeditious administration of

the business of the courts.’” In re Complaint Against District Judge Joe Billy

McDade, No. 07-09-90083 (7th Cir. Sept. 28, 2009) (Easterbrook, C.J.) (quoting

28 U.S.C. § 351(a)).

But even more regrettable, perhaps, than all of this is the fact that Judge

Walker’s use of the trial recording repudiated his own solemn commitment to

Proponents in open court that, despite Proponents’ objection, the trial was being

video recorded “simply for [his] use in chambers,” because it “would be quite

helpful to [him] in preparing the findings of fact.” Ex. 1 at 754:18-19, 755:4. In

reliance on this assurance, Proponents took no action to prevent the recording of

the trial. One of Proponents’ expert witnesses also relied on this assurance,

deciding to testify after then-Chief Judge Walker had made clear that the trial

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recording would not be broadcast. Now a portion of his testimony has appeared on

national television, and he regrets his decision to trust this assurance.

What’s done is done. Judge Walker’s speech, and C-SPAN’s public

dissemination of it, cannot be undone, and given that Judge Walker has recently

retired from the federal bench, he cannot be disciplined. See In re Charge of

Judicial Misconduct, 91 F.3d 90, 91 (9th Cir. Judicial Council 1996). But he can

be ordered to cease further unlawful and improper disclosures of the trial

recordings, or any portion thereof, and to return to this Court any copies of the trial

recordings in his possession, custody, or control. We respectfully request that he

be ordered to do so. We also request that Appellees be ordered to return their

copies of the trial recordings, which were provided to them by then-Chief Judge

Walker for their use in closing argument below and in the appeal to this Court.

Putting aside that providing copies of the trial recordings to Appellees also violated

Local Rule 77-3, the policies of the Judicial Conference and this Court’s Judicial

Council, and then-Chief Judge Walker’s assurances in open court, the purpose for

which they were provided has now been fulfilled, and Appellees’ continued

possession of the recordings can no longer be justified.

STATEMENT

A. Policies and Rules Governing Broadcast of Trial Proceedings


“In 1996, the Judicial Conference of the United States adopted a policy

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opposing the public broadcast of [trial] court proceedings.” Hollingsworth v.

Perry, 130 S. Ct. 705, 711 (2010); see also Ex. 2 at 54. This policy, which remains

in place today, see Hollingsworth, 130 S. Ct. at 712, is rooted in “decades of

experience and study” showing the potentially negative impact of broadcasting on

trial proceedings. Ex. 3 at 1; see also Hollingsworth, 130 S. Ct. at 711-12; Ex. 4 at

46-47. Indeed, in July 2009 the Judicial Conference forcefully reiterated to

Congress its conclusion that the “negative [e]ffects of cameras in trial court

proceedings far outweigh any potential benefit.” Ex. 3 at 1.

Also in 1996, the Ninth Circuit Judicial Council “voted to adopt the policy

of the Judicial Conference of the United States regarding the use of cameras in the

courts.” Ex. 5. The Council’s policy thus provided: “The taking of photographs

and radio and television coverage of court proceedings in the United States district

courts is prohibited.” Id. “[T]his policy [was] … binding on all courts within the

Ninth Circuit.” Id. Accordingly, the Northern District of California adopted Local

Rule 77-3, which “prohibited the streaming of transmissions, or other broadcasting

or televising, beyond ‘the confines of the courthouse.’” Hollingsworth, 130 S. Ct.

at 711 (quoting Local Rule 77-3); see also id. at 707 (Local Rule 77-3 “forbid[s]

the broadcasting of trials outside the courthouse in which a trial takes place”); Ex.

6.

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B. The District Court’s Efforts to Broadcast the Trial Proceedings


Former judge Walker has made no secret of his strong disagreement with the

rules and policies prohibiting the broadcast of trial proceedings. Indeed, his

February 18 speech was entitled “Shooting the Messenger: How Cameras in the

Courtroom Got a Bad Rap.” See http://www.c-spanvideo.org/program/Vaugh. His

advocacy was no less fervent from the bench in this case. His determined effort,

while Chief Judge, to broadcast the trial of this case, and the unlawful procedural

irregularities that it occasioned, are recounted in detail in the Supreme Court’s stay

opinion, which put a stop to that effort. See Hollingsworth, 130 S. Ct. at 708-09,

711-12, 714-15. It suffices to repeat the Supreme Court’s conclusion: “The

District Court here attempted to revise its rules in haste, contrary to federal statutes

and the policy of the Judicial Conference of the United States. It did so to allow

broadcasting of this high-profile trial without any considered standards or

guidelines in place. … [T]he order in question complied neither with existing rules

or policies nor the required procedures for amending them.” Id. at 713.

The Supreme Court was especially concerned about the effect on witnesses.

Noting the Judicial Conference’s determination that broadcasting trial testimony

could have an “intimidating effect … on some witnesses,” even in routine, non-

controversial cases, the Court concluded that this “high-profile,” highly divisive

“case is … not a good one for a pilot program.” Id. at 712, 714-15. Indeed, the

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Court emphasized that “[s]ome of [Proponents’] witnesses have already said that

they will not testify if the trial is broadcast, and they have substantiated their

concerns by citing incidents of past harassment.” Id. at 713. Thus, because public

broadcast could have a chilling effect on witnesses’ testimony and their willingness

“to cooperate in any future proceedings,” the Supreme Court determined that

“irreparable harm will likely result from the denial of the stay.” Id. at 712-13.

C. The Supreme Court’s Decision Prohibiting Broadcast


On the morning of Monday, January 11, 2010, just before commencement of

the trial, the Supreme Court entered a temporary emergency stay, “order[ing] that

[then-Chief Judge Walker’s] order … permitting real-time streaming is stayed

except as it permits streaming to other rooms within the confines of the courthouse

in which trial is to be held” and that “[a]ny additional order permitting broadcast of

the proceedings is also stayed.” Hollingsworth v. Perry, 130 S. Ct. 1132 (2010).

The temporary stay on its face was set to expire on Wednesday, January 13, when

the Court would enter a decision on Proponents' stay application. Id.

At the opening of trial later that morning, Appellees asked Chief Judge

Walker to continue video recording the proceedings for the purpose of later public

dissemination “in the event the stay is lifted” on January 13. Ex. 7 at 15:9. Chief

Judge Walker accepted Appellees’ proposal over Proponents’ objection that

recording the proceedings was not “consistent with the spirit of” the temporary

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stay issued by the Supreme Court. Id. at 16:16.

Far from lifting the stay, on January 13, the Supreme Court instead

“grant[ed] the application for a stay of the District Court’s order of January 7,

2010, pending the timely filing and disposition of a petition for a writ of certiorari

or the filing and disposition of a petition for a writ of mandamus.” Hollingsworth,

130 S. Ct. at 715.

D. Chief Judge Walker’s Creation of the Trial Recordings


During the trial proceedings later on January 13, Chief Judge Walker noted

that the Supreme Court’s “guidance” with respect to the issue of broadcasting the

proceedings was “rather limited.” Ex. 8 at 662:18-20. Early the next day,

Proponents filed a letter with the district court “request[ing] that [Chief Judge

Walker] halt any further recording of the proceedings in this case, and delete any

recordings of the proceedings to date that have previously been made.” Ex. 9 at 1.

Proponents explained that, because of the Supreme Court’s ruling on their stay

application, the proceedings were governed by the unamended version of Local

Rule 77-3, which “‘banned the recording or broadcast of court proceedings.’” Id.

at 2 (quoting and emphasizing Hollingsworth, 130 S. Ct. at 708).

A few hours later, Chief Judge Walker opened that day’s proceedings by

reporting that, “in light of the Supreme Court’s decision yesterday, … [he was]

requesting that this case be withdrawn from the Ninth Circuit pilot project.” Ex. 1

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at 674:7-10. Proponents then asked “for clarification … that the recording of these

proceedings has been halted, the tape recording itself.” Id. at 753:22-24. When

Chief Judge Walker responded that the recording “ha[d] not been altered,”

Proponents reiterated their contention (made in their letter submitted earlier that

morning) that, “in light of the stay, … the court’s local rule … prohibit[s]

continued tape recording of the proceedings.” Id. at 753:25, 754:4-6 (emphasis

added).

Rejecting Proponents’ objection, Chief Judge Walker stated that the

unamended “local rule permits … recording for purposes of use in chambers and

that is customarily done when we have these remote courtrooms or the overflow

courtrooms,” and that that the recording “would be quite helpful to [him] in

preparing the findings of fact.” Id. at 754:15-19. Thus, Chief Judge Walker said

that “that’s the purpose for which the recording is going to be made going forward.

But it’s not going to be for purposes of public broadcasting or televising.” Id. at

754:21-23 (emphasis added). Chief Judge Walker then repeated his position that

he was making the recordings only for limited, private use: after noting that “the

[unamended] local rule[] [prohibits] ‘[t]he taking of photographs, public

broadcasting or televising, or recording for those purposes,’” Chief Judge Walker

stated: “So the recording is not being made for those purposes, but simply for use

in chambers.” Id. at 754:24-755:4 (emphasis added). In reliance on Chief Judge

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Walker’s assurances that he was recording the proceedings solely for his personal

use in chambers, Proponents took no further action to prevent the recording.

On January 15, Chief Judge Walker “formally requested Chief Judge

Kozinski to withdraw this case from the pilot project.” Ex. 10 at 2. Chief Judge

Kozinski promptly granted Chief Judge Walker’s request and “rescinded” his

January 8 order designating this case for the pilot program. Ex. 11.

The district court then withdrew the amendment to Local Rule 77-3

authorizing participation in the pilot program. See Ex. 12 (showing Local Rule 77-

3 without amendment). Despite the Supreme Court’s criticism that the amendment

lacked “standards or guidelines,” Hollingsworth, 130 S. Ct. at 713, the district

court re-proposed its amendment to Local Rule 77-3 on February 4, 2010. Ex. 13.

After a comment period, the renewed proposal to amend Local Rule 77-3 lay

dormant until May 2010, when the district court – without any announcement or

indication on its website – published a revised set of Local Rules, effective April

20, containing the amended Local Rule 77-3. See Ex. 14-16.

On January 27, trial was adjourned. Closing argument was then set for June

16, 2010. On May 18, 2010, the Media Coalition requested that Chief Judge

Walker “formally ask Chief Judge Kozinski to again include this case in the pilot

project approved by the Ninth Circuit Judicial Council on December 17, 2009, for

the sole purpose of recording, broadcasting and webcasting” the closing argument

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portion of the trial. Ex. 17. Proponents submitted a letter opposing the request,

explaining that it would violate the stay entered by the Supreme Court. Ex. 18.

While the Media Coalition’s request was pending, and although Chief Judge

Walker had unequivocally assured Proponents that he was recording the

proceedings solely for his own use in chambers, Chief Judge Walker sua sponte

invited the parties “to use portions of the trial recording during closing arguments”

and, to that end, made “a copy of the video … available to the part[ies].” Ex. 19.

Chief Judge Walker added: “Parties will of course be obligated to maintain as

strictly confidential any copy of the video pursuant to paragraph 7.3 of the

protective order,” id., which restricts “highly confidential” material to the parties’

outside counsel and experts and to the Court and its personnel, Ex. 20 ¶ 7.3.

Appellees Perry et al. requested and were given a copy of the recording of

the entire trial proceedings, see Ex. 21, portions of which they played during

closing argument, see Ex. 22 at 2961. Appellee City and County of San Francisco

requested and was given portions of the trial recording, see Ex. 23, but did not play

them during closing argument. Chief Judge Walker denied the Media Coalition’s

request to “record[], broadcast[] and webcast[] closing arguments.” See Ex. 24.

On June 29, 2010, after closing argument, Proponents asked Appellees to

return all copies of the trial recordings in their possession to the district court. Ex.

25 ¶ 2. When they refused, Proponents asked Chief Judge Walker to “order …

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[Appellees] to return to the Court immediately all copies of the trial video in their

possession.” Ex. 26 at 1. Proponents argued that there was “no legitimate

justification for permitting Plaintiffs and [San Francisco] to maintain possession of

copies of the trial video” given that “the sole purpose identified by [Chief Judge

Walker] for disseminating copies of the trial video to [them] – potential use at

closing argument – ha[d] been satisfied.” Id. at 1-2. Proponents added: “[E]ven

with [Chief Judge Walker’s] requirement that all copies of the trial video be

‘maintain[ed] as strictly confidential,’ it cannot be denied that dissemination

beyond the confines of the Court has increased the possibility of accidental public

disclosure,” and thus of the “‘irreparable harm’” that the Supreme Court

acknowledged would “‘likely result’ from public broadcast of the trial.” Id. at 2

(quoting Hollingsworth, 130 S. Ct. at 712). Appellees countered “that once

judgment is entered, the parties and the Court [should] evaluate whether, and to

what degree, the trial recording would be useful to the parties or to the Court in

connection with any additional proceedings and/or appeal.” Ex. 27 at 1.

On August 4, 2010, Chief Judge Walker denied Proponents’ motion to order

the return of all copies of the trial recordings. Ex. 28 at 5. Instead, he

“DIRECTED” the district court clerk “to file the trial recording under seal as part

of the record,” and permitted Appellees to “retain their copies of the trial recording

pursuant to the terms of the protective order.” Id. at 4. After Proponents then

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appealed Chief Judge Walker’s final judgment, the district court clerk transmitted

the certified record to this Court on October 22, 2010. Since then, the trial

recordings have remained continuously under seal.

In the meantime, on April 8, 2010, Proponents petitioned the Supreme Court

to grant review of this Court’s earlier ruling denying their mandamus petition

seeking to prohibit the district court from broadcasting or otherwise disseminating

the trial proceedings. Proponents argued that, in light of Chief Judge Walker’s

withdrawal of his stayed broadcast order and his “unequivocal[] assur[ances] that

[his] continued recording of the trial proceedings was not for the purpose of public

dissemination, but rather solely for [his] use in chambers,” this Court’s order

denying the mandamus petition should be vacated as moot. Ex. 29 at 11-13.

Appellees opposed vacatur of this Court’s order. On October 4, 2010, the Supreme

Court granted the petition, vacated this Court’s mandamus ruling, and “remanded

to [this Court] with instructions to dismiss the case as moot,” Ex. 30, which this

Court did on October 15, 2010, Ex. 31.

E. Judge Walker’s Unlawful Public Disclosure of the Trial


Recordings Beyond the Confines of the Courthouse
On February 18, 2011, Judge Walker, having stepped down as Chief at the

end of December 2010, gave his speech at the University of Arizona. See

http://www.c-spanvideo.org/program/Vaugh. A substantial portion of the speech,

in which Judge Walker advocated allowing trial proceedings to be broadcast,

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concerned this case. See id., video at 4:40-8:08, 30:49-42:00. At one point, Judge

Walker played for his audience, on a large projection screen, an excerpt from the

trial recording of the cross-examination of one of Proponents’ expert witnesses.

See id., video at 33:12-36:52. Ten days later, on February 28, 2011, Judge Walker

retired from the bench. Ex. 32.

At least four times in late March 2011, C-SPAN broadcast Judge Walker’s

Arizona speech, including the playback of the trial proceedings. See http://www.c-

spanvideo.org/program/Vaugh. In fact, Proponents’ counsel learned of Judge

Walker’s speech – and of the fact that he publicly showed a portion of the trial

recordings during the speech – as a result of one of those broadcasts. C-SPAN also

made its broadcast of Judge Walker’s speech available for public viewing on its

website. See http://www.c-spanvideo.org/program/Vaugh.

ARGUMENT

I. THE TRIAL RECORDINGS MAY NOT BE SHOWN BEYOND THE CONFINES OF


THE NORTHERN DISTRICT OF CALIFORNIA COURTHOUSE

The video recordings of the trial in this case may not lawfully be shown

publicly beyond the confines of the Northern District of California courthouse.

The trial recordings remain under seal; then-Chief Judge Walker’s unequivocal

assurances that the trial recordings were only for his use in chambers remain on the

record; the Supreme Court’s decision in this case – if not its stay, which might well

still be in force but for those assurances – and the duly enacted rules of the Judicial

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Council and the district court remain binding and plainly bar public dissemination

of the trial recordings beyond the confines of the courthouse; and the considered

judgment of the Judicial Conference of the United States continues to strongly

counsel against public dissemination of the trial recordings.

The trial recordings were not the personal property of Judge Walker, for him

to use as he pleased; he had access to them only by virtue of his role as the judicial

officer presiding in this case. So, when he played a portion of the trial recordings

during his February 18 speech (which was then disseminated nationally by C-

SPAN), he violated all of these prohibitions. As Chief Judge Frank Easterbrook of

the Seventh Circuit Court of Appeals stated recently in a disciplinary proceeding

against a district judge who “allowed video recording and live broadcasting … of a

civil proceeding”: A district court “judge who contravenes policies adopted by the

Judicial Conference and the Judicial Council has ‘engaged in conduct prejudicial to

the effective and expeditious administration of the business of the courts.’” In re

Complaint Against District Judge Joe Billy McDade, No. 07-09-90083 (quoting 28

U.S.C. § 351(a)).

The setting for Judge Walker’s public dissemination of the trial recordings –

a speech outside the performance of his official duties – did not exempt him from

any of these prohibitions. Rather, he was obligated to “respect and comply with

the law and [to] act at all times in a manner that promotes public confidence in the

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integrity and impartiality of the judiciary.” Code of Conduct for United States

Judges, Canon 2A; see also Ninth Circuit Rules of Judicial Conduct art. I, § 3(h)(2)

(judge engages in “[c]ognizable misconduct” if his “conduct occurring outside the

performance of official duties … might have a prejudicial effect on the

administration of the business of the courts, including a substantial and widespread

lowering of public confidence in the courts among reasonable people”); cf. United

States v. Lang, 364 F.3d 1210, 1212, 1221-22 (10th Cir. 2004) (court clerk who

“took home” copy of “sealed affidavit” convicted under 18 U.S.C. § 2071(a)),

vacated on other grounds, 543 U.S. 1108 (2005), reinstated in relevant part, 405

F.3d 1060, 1061 (10th Cir. 2005).

To ensure that the confidentiality of the trial recordings is not breached

again, as well as to restore public confidence in the judiciary, this Court should

exercise its inherent power to control the record of this case by ordering that

former district judge Walker cease further disclosures of the trial recordings, or any

portion thereof, and that all copies of the trial recordings that are in the possession,

custody, or control of any party to this case or of former judge Walker be returned

promptly to the Court and held by the court clerk under seal.

A. The Recordings of the Trial Proceedings Are Under Seal


Then-Chief Judge Walker “DIRECTED” the district court clerk “to file the

trial recording under seal as part of the record.” Ex. 28 at 4. Since then, the trial

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recordings have remained continuously under seal. See Circuit Advisory Comm.

Note to R. 27-13 (“Absent an order to the contrary, any portion of the district court

… record that was sealed below shall remain under seal upon transmittal to this

court.”). The purpose of the seal is to preserve the confidentiality of the sealed

record. See United States v. Nixon, 417 U.S. 960, 960-61 (1974).

B. Chief Judge Walker Unequivocally Assured Proponents That the


Trial Recordings Would Be for His Exclusive Use in Chambers

Although the Supreme Court had just stayed his broadcast order, then-Chief

Judge Walker insisted on recording the trial proceedings anyway. In doing so over

Proponents’ objection, Chief Judge Walker assured Proponents on the record that

the recording was “not going to be for purposes of public broadcasting or

televising,” but rather “simply for use in chambers.” Ex. 1 at 754:22-23, 755:3-4

(emphasis added). In reliance on Chief Judge Walker’s assurances, Proponents

took no further action to prevent him from recording the trial proceedings. One of

Proponents’ witnesses also relied on those assurances, and now the recording of a

portion of his testimony has been shown by Judge Walker to a large public

audience and, in turn, has been disseminated nationally by C-SPAN.

C. The Supreme Court’s Stay, the Judicial Council’s Policy, and the
District Court’s Local Rule Prohibit Showing the Trial
Recordings Beyond the Confines of the Courthouse
The Supreme Court ruled that then-Chief Judge Walker’s order authorizing

“the broadcast of [this] federal trial” did not comply with “existing rules or

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policies.” Hollingsworth, 130 S. Ct. at 706, 713. True, the Supreme Court’s stay

later expired when the Court granted Proponents’ petition for certiorari and vacated

this Court’s ruling denying Proponents’ earlier mandamus petition. But the

certiorari petition, and thus the Supreme Court’s disposition thereof, were

predicated on the fact that the mandamus petition was moot in light of Chief Judge

Walker’s unequivocal assurances that the trial recordings were solely for his use in

chambers. But for those assurances, the recording of the trial would plainly have

violated the Supreme Court’s stay and would surely have been halted.

The “rules” and “policies” enforced by the Supreme Court’s stay were those

governing the issue in this Circuit and the district court. The long-standing policy

of the Ninth Circuit Judicial Council still prohibits the “taking of photographs and

radio and television coverage of court proceedings in the United States district

courts.” Ex. 5. This policy is binding on all judges within the Ninth Circuit. 28

U.S.C. § 332(d)(2); see In re Complaint Against District Judge Joe Billy McDade,

No. 07-09-90083; In re Sony BMG Music Entm’t., 564 F.3d 1, 7-9 (1st Cir. 2009).2

Likewise, the district court’s Local Rule 77-3 still “prohibit[s] the streaming

2
The Council purported to “amend” its policy to authorize a pilot program
for broadcasting trial proceedings. Even if that amendment were validly adopted,
but see Hollingsworth, 130 S. Ct. at 708, 713-14 (noting lack of statutorily required
“notice and comment procedures” and lack of “considered standards or guidelines
… for broadcasting”), the Council’s policy would still bar Judge Walker’s public
dissemination of the trial recordings beyond the confines of the courthouse because
this case was not part of the pilot program.
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of transmissions, or other broadcasting or televising, [of district court proceedings]

beyond ‘the confines of the courthouse.’” Hollingsworth, 130 S. Ct. at 711. That

“rule[] ha[s] the force of law.” Id. at 710 (quotation marks omitted).3

Finally, the policy of the Judicial Conference of the United States, which is

“at the very least entitled to respectful consideration,” strongly counsels against

public dissemination of the trial recordings beyond the confines of the courthouse.

Id. at 711-12 (quotation marks omitted).4

II. THE COURT SHOULD ORDER THE IMMEDIATE RETURN OF ALL COPIES OF
THE TRIAL RECORDINGS

This Court “has supervisory power over its own records and files, and access

[may be] denied where court files might have become a vehicle for improper

purposes.” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978); Matter of

3
To be sure, the district court again purported to amend Local Rule 77-3 in
April or May 2010 to “create[] an … exception to Rule 77-3’s general ban on the
broadcasting of court proceedings ‘for participation in a pilot or other project
authorized by the Judicial Council of the Ninth Circuit.’” Hollingsworth, 130 S.
Ct. at 711. But even if the amendment were valid, but see id. at 708, 713-14
(noting lack of “considered standards or guidelines … for broadcasting”), the rule
would still bar public dissemination of these trial recordings beyond the confines
of the courthouse because this case was not, and could not have been, designated
for inclusion in the pilot program after the renewed amendment to Local Rule 77-3
was adopted. The only order designating the case for a pilot program was
withdrawn long before that amendment was adopted. Ex. 10-11.
4
In September 2010, the Conference announced a “pilot project to evaluate
the effect of cameras in district court courtrooms, of video recordings of
proceedings therein, and of publication of such video recordings.” Ex. 33 at 11.
This pilot project would not have authorized broadcast of the trial proceedings here
because it requires the “consent” of the “[p]arties.” Id. at 12.
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Sealed Affidavit(s), 600 F.2d 1256, 1257 (9th Cir. 1979) (“courts have inherent

power, as an incident of their constitutional function, to control papers filed with

the courts within certain constitutional and other limitations”); see also Circuit R.

27-13(d). The record in this case, which includes the trial recordings, is now

before this Court, having been transmitted by the district court clerk.

As noted earlier, Proponents previously asked then-Chief Judge Walker to

order Appellees to return all copies of the trial recordings. As Proponents

explained then, “even with [Chief Judge Walker’s] requirement that all copies of

the trial video be ‘maintain[ed] as strictly confidential,’” the “dissemination [of the

trial recordings] beyond the confines of the Court” would unduly increase the risk

of “public disclosure” of the recordings. Ex. 26 at 2. Chief Judge Walker denied

Proponents’ request, but his subsequent use of the trial recordings during his

Arizona speech proves that Proponents’ concern was well founded. Neither the

seal, nor Chief Judge Walker’s commitment in open court to use the recordings

only in chambers, nor the Supreme Court’s decision staying his broadcast order,

nor the policy of the Ninth Circuit Judicial Council, nor the district court’s local

rule, nor the policy of the Judicial Conference of the United States prevented him

from publicly showing the trial recordings beyond the confines of the courthouse.

Former judge Walker should therefore be ordered to return to this Court all copies

of the trial recordings and to cease any further use of any portion thereof. See

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United States v. New York Tel. Co., 434 U.S. 159, 174 (1977) (“The power

conferred by the [All-Writs] Act extends, under appropriate circumstances, to

persons who, though not parties to the original action or engaged in wrongdoing,

are in a position to frustrate the implementation of a court order or the proper

administration of justice, and encompasses even those who have not taken any

affirmative action to hinder justice.”).

And now that the trial is over and the appeal has been briefed and argued to

this Court, there is no legitimate reason for Appellees to continue to have a copy of

the trial recordings. They too, therefore, should be ordered to return them to

eliminate the risk of accidental disclosure.

CONCLUSION

For the foregoing reasons, the Court should order that former judge Walker

cease further disclosures of the trial recordings in this case, or any portion thereof,

and that all copies of the trial recordings in the possession, custody, or control of

any party to this case or former judge Walker be returned promptly to the Court

and held by the court clerk under seal.

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April 13, 2011 Respectfully submitted,

s/ Charles J. Cooper
Charles J. Cooper

Andrew P. Pugno Charles J. Cooper


LAW OFFICES OF ANDREW P. PUGNO David H. Thompson
101 Parkshore Drive, Suite 100 Howard C. Nielson, Jr.
Folsom, California 95630 David Lehn
(916) 608-3065; (916) 608-3066 Fax COOPER AND KIRK, PLLC
1523 New Hampshire Ave., N.W.
Brian W. Raum Washington, D.C. 20036
James A. Campbell (202) 220-9600; (202) 220-9601 Fax
ALLIANCE DEFENSE FUND
15100 North 90th Street
Scottsdale, Arizona 85260
(480) 444-0020; (480) 444-0028 Fax
Attorneys for Defendant-Intervenors-Appellants Hollingsworth, Knight,
Gutierrez, Jansson, and ProtectMarriage.com

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9th Circuit Case Number(s) 10-16696

NOTE: To secure your input, you should print the filled-in form to PDF (File > Print > PDF Printer/Creator).

*********************************************************************************
CERTIFICATE OF SERVICE
When All Case Participants are Registered for the Appellate CM/ECF System
I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the
United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system
on (date) .

I certify that all participants in the case are registered CM/ECF users and that service will be
accomplished by the appellate CM/ECF system.

Signature (use "s/" format)

*********************************************************************************
CERTIFICATE OF SERVICE
When Not All Case Participants are Registered for the Appellate CM/ECF System
I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the
United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system
on (date) .
April 13, 2011
Participants in the case who are registered CM/ECF users will be served by the appellate
CM/ECF system.

I further certify that some of the participants in the case are not registered CM/ECF users. I
have mailed the foregoing document by First-Class Mail, postage prepaid, or have dispatched it
to a third party commercial carrier for delivery within 3 calendar days to the following
non-CM/ECF participants:

Please see attached service list.

Signature (use "s/" format) s/Charles J. Cooper


Case: 10-16696 04/13/2011 Page: 29 of 29 ID: 7715321 DktEntry: 338-1

SERVICE LIST

Arthur N. Bailey, Jr., Esq. Anita L. Staver


HAUSFELD LLP LIBERTY COUNSEL
44 Montgomery Street, Suite 3400 P.O. Box 540774
San Francisco, California 94104 Orlando, FL 32854

Thomas Brejcha Mathew D. Staver


THOMAS MORE SOCIETY LIBERTY COUNSEL
29 S. La Salle Street, Suite 440 1055 Maitland Center Commons
Chicago, IL 60603 2nd Floor
Maitland, FL 32751
Anthony R. Picarello, Jr.
Michael F. Moses Hon. Vaughn Walker
UNITED STATES CATHOLIC c/o PILLSBURY WINTHROP SHAW
CONFERENCE PITTMAN LLP
3211 Fourth Street, N.E. 50 Fremont Street
Washington, DC 20017 San Francisco, CA 94105-2228

Lincoln C. Oliphant Hon. Vaughn Walker


COLUMBUS SCHOOL OF LAW c/o BERKELEY LAW
The Catholic University of America 215 Boalt Hall
3600 John McCormack Road, NE Berkeley, CA 94720-7200
Washington, DC 20064
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EXHIBIT 1
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Volume 4

Pages 670 - 990

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

BEFORE THE HONORABLE VAUGHN R. WALKER

KRISTIN M. PERRY, )
SANDRA B. STIER, PAUL T. KATAMI, )
and JEFFREY J. ZARRILLO, )
)
Plaintiffs, )
)
VS. ) NO. C 09-2292-VRW
)
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 for the County of )
Alameda; and DEAN C. LOGAN, in his )
official capacity as )
Registrar-Recorder/County Clerk )
for the County of Los Angeles, )
) San Francisco, California
Defendants. ) Thursday
___________________________________) January 14, 2010

TRANSCRIPT OF PROCEEDINGS

Reported By: Katherine Powell Sullivan, CRR, CSR 5812


Debra L. Pas, CRR, CSR 11916
Official Reporters
Reporters - U.S. District Court
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PROCEEDINGS

1 P R O C E E D I N G S

2 JANUARY 14, 2010 8:42 A.M.

4 THE COURT: Very well. Good morning, Counsel.

5 (Counsel greet the Court.)

6 THE COURT: Let's see. First order of business, I

7 have communicated to judge -- Chief Judge Kozinski, in light of

8 the Supreme Court's decision yesterday, that I'm requesting

9 that this case be withdrawn from the Ninth Circuit pilot

10 project. And he indicated that he would approve that request.

11 And so that should take care of the broadcasting matter.

12 And we have motions that have been filed on behalf of

13 Mr. Garlow and Mr. McPherson. And the clerk informs me counsel

14 for those parties are here present.

15 MR. MCCARTHY: Correct, Your Honor.

16 THE COURT: All right. Fine.

17 MR. MCCARTHY: Vincent McCarthy, Your Honor. I was

18 admitted pro hac vice into this court very recently.

19 THE COURT: Yes. I believe I signed that yesterday,

20 or the day before.

21 MR. MCCARTHY: I understand.

22 THE COURT: Well, welcome.

23 MR. MCCARTHY: Thank you.

24 THE COURT: You've got quite a lineup of lawyers

25 here.
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PATTERSON

1 Q. Okay.

2 MR. PATTERSON: Your Honor, I would like to request a

3 brief break, if I may?

4 THE COURT: How much longer do you have with this

5 witness?

6 MR. PATTERSON: I would say I'm about halfway

7 through, your Honor.

8 THE COURT: Okay. Maybe a break, like your colleague

9 Mr. Thompson, will reduce the length somewhat.

10 MR. PATTERSON: Okay.

11 THE COURT: That I'm sure will be helpful to

12 everybody.

13 All right. Shall we take until 15 minutes of the

14 hour, or 10:45.

15 MR. COOPER: Your Honor, just before we break, may I

16 ask one minor housekeeping matter?

17 THE COURT: Yes.

18 MR. COOPER: Point of clarification, actually, and

19 it's further to your announcement as we opened the court day,

20 that the Court was asking for withdrawal of this case from the

21 pilot program.

22 I just ask the Court for clarification, if I may then

23 understand that the recording of these proceedings has been

24 halted, the tape recording itself?

25 THE COURT: No, that has not been altered.


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04/13/2011
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PATTERSON

1 MR. COOPER: As the Court knows, I'm sure, we have

2 put in a letter to the Court asking that the recording of the

3 proceedings be halted.

4 I do believe that in the light of the stay, that the

5 court's local rule would prohibit continued tape recording of

6 the proceedings.

7 THE COURT: I don't believe so. I read your letter.

8 It does not quote the local rule.

9 The local rule permits remote -- perhaps if we get

10 the local rule --

11 MR. BOUTROUS: Your Honor, I have a copy.

12 THE COURT: Oh, there we go.

13 (Whereupon, document was tendered

14 to the Court.)

15 THE COURT: The local rule permits the recording for

16 purposes the -- of taking the recording for purposes of use in

17 chambers and that is customarily done when we have these remote

18 courtrooms or the overflow courtrooms. And I think it would be

19 quite helpful to me in preparing the findings of fact to have

20 that recording.

21 So that's the purpose for which the recording is

22 going to be made going forward. But it's not going to be for

23 purposes of public broadcasting or televising.

24 And you will notice the local rules states that:

25 "The taking of photographs, public


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04/13/2011
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PATTERSON

1 broadcasting or televising, or recording for

2 those purposes."

3 So the recording is not being made for those

4 purposes, but simply for use in chambers.

5 MR. COOPER: Very well, your Honor, and I appreciate

6 that clarification.

7 THE COURT: All right.

8 (Whereupon there was a recess in the proceedings

9 from 10:32 a.m. until 10:59 a.m.)

10 THE COURT: Very well, Mr. Patterson. Please

11 continue.

12 MR. PATTERSON: Very well, your Honor.

13 BY MR. PATTERSON:

14 Q. Dr. Egan, we were speaking about the revenues you

15 project San Francisco weddings, the out-of-state -- or

16 out-of-San Francisco same-sex couples would generate.

17 And, again, one source of those revenues come from

18 hotel taxes, is that correct?

19 A. Yes, it is.

20 Q. And you have basically -- you have assumed how long the

21 non-San Francisco resident same-sex couples would stay in

22 San Francisco when they got married, is that correct?

23 A. That's correct.

24 Q. And, once again, you have not done any study of how long

25 non-San Francisco resident same-sex couples actually stay in


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EXHIBIT 2
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REPORT OF TBE PROCEEDINGS


OF THE JUDICIAL
C
ON
E
FR
'E
NC
E
OF THE UNITEDSTATES

September 17,1996

The Judicial Conference of the United States convened in Washington, D.C.,


on September 17, 1996, pursuant to the call of the Chief Justice of the United States
issued under 28 U.S.C. 9 33 1. The Chief Justice presided, and the following members
of the Conference were present:

First Circuit:

Chief Judge Juan R. Tormella


Chief Judge Joseph L. Tauro,
District of Massachusetts

Second Circuit:

Chief Judge Jon 0. Newman


Chief Judge Peter C. Dorsey,
District of Connecticut

Third Circuit:

Chief Judge Dolores K. Sloviter


Chief Judge Edward N. Cahn,
Eastern District of Pennsylvania

Fourth Circuit:

Chief Judge J. Harvie Wilkinson, 111


Judge W. Earl Britt,
Eastern District of North Carolina

Fifth Circuit:

Chief Judge Henry A. Politz


Chief Judge William H. Barbour,
Southern District of Mississippi
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Judicial Conference of the United States

models discussed in the report, and, where appropriate, adopt more efficient structures
for the provision of administrative services.

CAMERAS
IN THE COURTROOM

The Judicial Conference approved a Court Administration and Case


Management Committee recommendation that it adopt conforming revisions to the
"Cameras in the Courtroom" policy and commentary to be printed in Volume I,
Chapter 111, Part E of the Guide to Judiciary Policies and Pmcedu~s.These revisions
reflect Judicial Conference actions taken in September 1994 (JCUS-SEP 94, pp. 46-47)
and March 1996 (JCUS-MAR 96, p. 17).

After undertaking a review of the miscellaneous fees set by the Judicial


Conference pursuant to 28 U.S.C. §§ 1913, 1914, 1926, and 1930, the Court
Administration and Case Management Committee recommended that the Judicial
Conference raise certain miscellaneous fees to account for inflation and rising court
costs. The Judicial Conference approved the recommendation to raise miscellaneous
fees as set forth below, provided that legislation is enacted to permit the judiciary to
retain the resulting increase in fees:

-
Fee Current Amount Raised Amount

Power of Attorney
Filing and Indexing Misc. Papers
Misdemeanor Appeal
Registration of Foreign Judgment
Tape Duplication
Microfilm/Microfiche
Mailing Labels
Record Search
Certification
Returned Checks
Reproduction of Record
Ct. of Fed. Claims Filing Fee
Ct. of Fed. Claims List of OrdersIOps
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EXHIBIT 3
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JO'DIClALCONlFERENCEOFTHE 1[JNKTEDSTATES

WASHINGTON, D.C. 20544


THE CHIEF pJSTICE lAMES C DUFF
OF THE UNITED STATES Secrelary
Presiding
July 23, 2009

Honorable Patrick J. Leahy


Chairman
Committee on the Judiciary
United States Senate
Washington, DC 20510

Honorable Jeff Sessions


Ranking Member
Committee on the Judiciary
United States Senate
Washington, DC 20510

Dear Mr. Chairman and Senator Sessions:

The Judicial Conference of the United States strongly opposes the "Sunshine in the
Courtroom Act of2009," S. 657 (11 ph Cong.), because it provides for the use of cameras
in federal trial court proceedings. Cameras can affect behavior in court proceedings.
Cameras can even affect whether a case goes to trial. Cameras can also affect courtroom
security ofjudges, witnesses, employees, and U.S. marshals. This is of particular concern
in light of recent increased threats to federal judges. The Judicial Conference believes
that these and other negative affects of cameras in trial court proceedings far outweigh
any potential benefit. The Judicial Conference also opposes the legislation because it
would empower any appellate court panel to permit cameras in their courtroom rather
than retain that power within the management of each circuit.

The Judicial Conference bases its policy and opposition to the use of cameras in
the federal trial court proceedings on decades of experience and study. The Conference
considered the issue in a number of different situations and contexts including a pilot
project - and concluded that the presence of cameras in federal trial court proceedings is
not in the best interest ofjustice. Federal judges must preserve each citizen's right to a
fair and impartial trial. Of course, federal trials have long been open to the media and
public. But it is the studied judgment ofthe Judicial Conference that cameras can
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Honorable Patrick J. Leahy


Honorable Jeff Sessions
Page 2

interfere with a fair and impartial trial. Thus, the use of cameras in trial courts would
differ substantially from the impact of their use in legislative, administrative, or
ceremonial proceedings.

Cameras can interfere with a fair trial in numerous ways. First, broadcasting
proceedings can affect the way trial participants behave. Television cameras can
'intimidate litigants, witnesses, andjurors, many of whom have no direct connection to the
proceeding and are involved in it through no action of their own. Witnesses might refuse
to testi1J or alter their stories when they do testi1J if they fear retribution by someone who
may be watching the broadcast.

Second, and similarly, camera coverage can create privacy concerns for many
individuals involved in the trial, such as witnesses and victims, some of whom are only
tangentially related to the case but about whom very personal and identifYing information
might be revealed. For example, efforts to discredit a witness frequently involve the
revelation of embarrassing personal information. Disclosing embarrassing facts or
accusations in a courtroom already creates challenges in court proceedings. Those
challenges would be multiplied enormously if that information were aired on television
with the additional possibility of taping and replication. This concern can have a material
effect on a witness's testimony or on his or her willingness to testifY at all.

Third. and as a consequence of the aforementioned points, camera coverage could


also become a potent negotiating tactic in pretrial settlement discussions. Parties may
choose not to exercise their right to trial because of concerns regarding possible camera
coverage. Thus, allowing cameras could cause a "chilling effect" on civil rights
litigation; plaintiffs who have suffered sex or age discrimination may simply decide not to
file suit if they learn that they may have to relive the incident and have that description
broadcast to the public at large. Or, parties litigating over medical issues may not wish to
reveal their personal medical history and conditions to a broad audience.

Fourth, the presence of cameras in a trial court will encourage some participants to
become more dramatic, to pontificate about their personal views, to promote commercial
interests to a national audience, or to lengthen their appearance on camera. Such
grandstanding is disruptive to the proceedings and can delay the trial.

The Federal Judiciary is therefore very concerned that the effect of cameras in the
courtroom on participants would be to impact negatively the trial process and thereby
interfere with a fair trial.
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Honorable Patrick J. Leahy


Honorable Jeff Sessions
Page 3

In addition to affecting the fairness of a trial, the presence of cameras in a trial


courtroom also increases security and safety issues. Broadcasting the images ofjudges
and court employees, such as court reporters, courtroom deputies, and'law clerks, makes
them more easily identified as targets by those who would attempt to influence the .
outcome of the matter or exact retribution for an unpopular court ruling. Threats against
judges, lawyers, and other participants could increase even beyond the current disturbing
level. Cameras create similar security concerns for law enforcement personnel present in
, the courtroom, including U.S. marshals and U.S. attorneys and their staffs.

Finally, regarding the courts of appeals, in 1996 the Judicial Conference adopted
the position that each circuit may decide for hselfwhether to permit photographic, radio,
and television coverage of appellate arguments, subject to any restrictions in statutes,
national and local rules, and such guidelines as the Conference may adopt. This policy
ensures consistency within each circuit. The Sunshine in the Courtroom Act of 2009
would allow panels within the circuits to determine whether cameras will be allowed at
their proceedings, rather than leaving the initial decision to the circuit's management.
This will result in differing treatment of litigants within each circuit. Currently, the
circuit-wide policies avoid piecemeal and ad hoc resolutions of the issue among the
various panels convened within a court of appeals, and that approach is therefore better
than the proposed legislative change.

* * *
For the foregoing reasons, the Judicial Conference of the United States strongly
opposes legislation that allows the use of cameras in federal trial court proceedings and
permits individual panels to use of cameras in all courts of appeals instead of deferring to
each circuit's rules on such use.

Thank you for the opportunity to provide the position of the Judicial Conference
on this legislation. The legislation raises issues of vital importance to the Judiciary. If we
may be of additional assistance to you, please do not hesitate to contact our Office of
Legislative Affairs at 202-502-1700.

Sincerely,

(j~tV
James C. Duff
Secretary
cc: Members, Senate Judiciary Committee
I
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REpORT OF THE PROCEEDINGS


OF THE JUDICIAL CONFERENCE
OF THE UNITED STATES

March 12, 1996

The Judicial Conference of the United States convened in Washington, D.C.,


on March 12, 1996, pursuant to the call of the Chief Justice of the United States issued
under 28 U.S.C. § 331. The Chief Justice presided, and the following members of the
Conference were present:

First Circuit:

Chief Judge Juan R. Torruella

Chief Judge Joseph L. Tauro,

District of Massachusetts

Second Circuit:

Chief Judge Jon O. Newman

Chief Judge Peter C. Dorsey,

District of Connecticut

Third Circuit:

Chief Judge Dolores K. Sloviter


Chief Judge Edward N. Cahn,
Eastern District of Pennsylvania

Fourth Circuit:

Chief Judge 1. Harvie Wilkinson, III


Judge W. Earl Britt,
Eastern District of North Carolina

Fifth Circuit:

Chief Judge Henry A. Politz


Chief Judge William H. Barbour,
Southern District of Mississippi
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March 12, 1996

CAMERAS IN THE COURTROOM

I courts The Judicial Conference agreed to authorize each court of appeals to decide for
's itself whether to permit the taking of photographs and radio and television coverage of
appellate arguments, subject to any restrictions in statutes, national and local rules, and
icial such guidelines as the Judicial Conference may adopt. The Conference further agreed
ourt of to-­
les for
ledule. a. Strongly urge each circuit judicial council to adopt an order reflecting the
Judicial Conference's decision to authorize the taking of photographs and radio
and television coverage of court proceedings in the United States courts of
appeals; and

;:ess
b. Strongly urge each circuit judicial council to adopt an order pursuant to
a
28 U.S.C. § 332 (d)(l), reflecting the September 1994 decision of the Judicial
Conference (JCUS-SEP 94, pp. 46-47) not to permit the taking of photographs
~P and radio and television coverage of court proceedings in the United States
district courts. In addition, the Judicial Conference agreed to strongly urge the
te; it judicial councils to abrogate any local rules of court that conflict with this
decision, pursuant to 28 U.S.C. § 2071{cXI).
ttee

ents

COMMITIEE ON CRIMINAL LAW

UNIVERSAL PRETRIAL DRUG TESTING

In December 1995, President Clinton directed the Attorney General to develop


uit
a "... universal policy providing for drug testing of all federal arresteesoefore decisions
en
are made on whether to release them into the community pending triaL" In February
of
1996, the Attorney General submitted a pretrial drug testing proposal to the Executive
mce
Committee, which referred the matter to the Committee on Criminal Law for
recommendation to the March Judicial Conference. Reporting on the proposal to the
Conference, the Criminal Law Committee recommended that the issue be referred back
ciary to that Committee. The Judicial Conference voted to refer the Attorney General's
dified proposal regarding universal pretrial drug testing to the Criminal Law Committee for
nd (b) expeditious consideration and report to the Executive Committee, which is authorized
;ertain to act on the matter on behalf of the Conference.

17
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EXHIBIT 4
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September 20,1994

The Judicial Conference of the United States convened in


Washington, D.C., on September 20,1994, pursuant to the call of the Chief
Justice of the United States issued under 28 U.S.C. § 331. The Chief Justice
presided, and the following members of the Conference were present:

First Circuit:

Chief Judge Juan R. Torruella


Judge Francis J. Boyle,
District of Rhode Island

Second Circuit:

Chief Judge Jon 0.Newman


Judge Charles L. Brieant,
Southern District of New York

Third Circuit:

Chief Judge Dolores K. Sloviter


Chief Judge John E Gerry,
District of New Jersey

Fourth Circuit:

Chief Judge Sam J. Ervin, III


Judge W Earl Britt,
Eastern District of North Carolina

Fifth Circuit:

Chief Judge Henry A. Politz


Chief Judge Morey L. Sear,
Eastern District of Louisiana
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Judicial Cknference of the United StcJ.88

The Committee on Codes of Conduct reported that since its last


report to the Judicial Conference, it received 47 new written inquiries
(including one request for reconsideration) and issued 40 written advisory
responses. The average response time was 21 days. The Chairman received
and responded to 48 telephonic inquiries. In addition, individual Committee
members responded to 72 inquiries from their colleagues.

The Judicial Conference approved the recommendations of the


Committee to revise the Ethics Reform Act gift regulations. The principal
substantive changes include the following: (1) definition of the term "giftHin
a new section 3; (2) incorporation in a new section 4 of the existing statutory
prohibition on solicitation of gifts; (3) clarification of the reach of sections
4(b) and 5(b) (formerly 3(c) and 3(a)(2)); (4) authorization in a new section
5(h) of the acceptance of de minimis gifts by persons other than judges and
their personal staffs; (5) revision of section 6 (formerly 3(b)) prohibiting the
acceptance of gifts in violation of other statutes and regulations, or where
reasonable persons would believe that the public office is being used for
private gain; and (6) description in a new section 9 of procedures for the
return or disposal of gifts that may not properly be accepted.

Upon recommendation of the Committee, the Judicial Conference


approved revisions to the Ethics Reform Act outside employment regulations,
to incorporate useful provisions from the Executive Branch regulations and
to make technical amendments designed to clarify the application of the
regulations.

COMMITTEEON COURTADMINISTRATION
AND CASEMANAGEMENT

The Judicial Conference considered a report and recommendation of


the Court Administration and Case Management Committee to authorize the
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photographing, recording, and broadcasting of civil proceedings in federal


trial and appellate courts. The Committee's report included an evaluation
conducted by the Federal Judicial Center of a three-year pilot project in six
district and two appellate courts, as well as an analysis of studies conducted
in state courts. Based upon the data presented, a majority of the Conference
concluded that the intimidating effect of cameras on some witnesses and
jurors was cause for concern, and the Conference declined to approve the
Committee's recommendation to expand camera coverage in civil proceedings.
In light of this action, additional Committee recommendations relating to
cameras in the courtroom in civil cases were determined to be moot. No
action was taken with regard to the ongoing pilot program, which is
scheduled to sunset on December 31,1994 (see JCUS-MAR 94, p. 15). See
also "Criminal Rules," infra p. 67.

MISCELLANEOUS FEE SCHEDULES

In September 1993, the Judicial Conference approved an amendment


to the miscellaneous fee schedule promulgated under 28 U.S.C. § 1913 to
provide a fee for electronic access to court data for the appellate courts, but
reserved for future consideration the issue of whether to extend the fee to
electronic access to slip opinions (JCUS-SEP 93, pp. 44-45). The Court
Administration and Case Management Committee recommended that the
Judicial Conference authorize collection of a fee for electronic access to slip
opinions by amending the fee schedule to delete the sentence, "No such fee
shall be charged for usage of ACES/EDOS." The Judicial Conference
approved the amendment, which makes no change in the provision allowing
courts to exempt, for good cause, persons or classes of persons from the fees.

In March 1993, the Judicial Conference eliminated the traditional


federal agencies' exemption from court fees for electronic access to court data
and, in limited circumstances, for reproducing court records and conducting
searches of court records (JCUS-MAR 93, p. 11). Federal agencies funded
from judiciary appropriations continue to be exempted from fees. On
recommendation of the Committee on Court Administration and Case
Management, the Conference agreed to a technical amendment of the
miscellaneous fee schedules promulgated under 28 U.S.C. §O 1913, 1914,
1926, and 1930, to clarifj. that government programs funded from the federal
judiciary's appropriations, as well as government agencies so funded, were
exempt from fees. The amendment reads as follows (new language is in
italics):
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EXHIBIT 5
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3niieb Bfafr~0Inut-f of Appenki


Bur mile Hlntf~Uirnrif
50 W LIBERTY STRE-, SUITE BOO
RENO. Nf VADA 89901
PROCTER HUG, JR. s
Chin! Judge
Unllad Slales bbud ol AppBab

June 21, 1996

9 8

To: A11 Article Judges . ,

From: Chief Judge Rug

Re: Judicial Coundl Policy.Regarding the Use of Cameras


in the Courtroom

On May 24, 1996,the Judicial Council of the Ninth Circuit voted to adopt the
policy of the Judicial Conference of the United States regarding the use of cameras in the
courts. Pursuant to 28 U S C. 5 2071(c)(l), lhia poUby is now binding on all courts
within the Ninth Cir~uft.The policy states:

I. Each court of appeds may dacidalocally whethe! or not to


permit Garneras in the appellate courtrooms, subject to any
restriot!ons in etatutes, national and loml rule^, and such
guidelines as the Judicial Conference may adopt. +

2. The taking cf and radio and television coverage of


wurt prooedings in the Unlted States district courts is
prohibit cd-
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EXHIBIT 6
Case:
Case:
10-16696
10-70063
04/13/2011
01/08/2010
Page: 23
Page:
of 114
89 ofID:
92 7715321
DktEntry:
DktEntry:
7187906338-2

Civil Local Rules

(f) Orders taxing costs pursuant to Civil L.R. 54-4.

Cross Reference
See ADR L.R. 4-11(d) “Nonbinding Arbitration; Entry of Judgment on
Award.”

77-3. Photography and Public Broadcasting.

Unless allowed by a Judge or a Magistrate Judge with respect to his or her


own chambers or assigned courtroom for ceremonial purposes, the taking of
photographs, public broadcasting or televising, or recording for those purposes in the
courtroom or its environs, in connection with any judicial proceeding, is prohibited.
Electronic transmittal of courtroom proceedings and presentation of evidence within
the confines of the courthouse is permitted, if authorized by the Judge or Magistrate
Judge. The term “environs,” as used in this rule, means all floors on which
chambers, courtrooms or on which Offices of the Clerk are located, with the
exception of any space specifically designated as a Press Room. Nothing in this rule
is intended to restrict the use of electronic means to receive or present evidence
during Court proceedings.

77-4. Official Notices.

The following media are designated by this Court as its official means of
giving public notice of calendars, General Orders, employment opportunities,
policies, proposed modifications of these local rules or any matter requiring public
notice. The Court may designate any one or a combination of these media for
purposes of giving notice as it deems appropriate:

(a) Bulletin Board. A bulletin board for posting of official notices shall be
located at the Office of the Clerk at each courthouse of this district.

(b) Internet Site. The Internet site, located at http://www.cand.uscourts.gov,


is designated as the district’s official Internet site and may be used for the posting of
official notices.

(c) Newspapers. The following newspapers are designated as official


newspapers of the Court for the posting of official notices:

(1) The Recorder; or

(2) The San Francisco Daily Journal; or

(3) The San Jose Post-Record, for matters pending in the San
Jose Division, in addition to the newspapers listed in subparagraphs
(1) and (2); or

Published December 2009 CIV 92


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EXHIBIT 7
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Volume 1

Pages 1 - 213

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

BEFORE THE HONORABLE VAUGHN R. WALKER

KRISTIN M. PERRY, )
SANDRA B. STIER, PAUL T. KATAMI, )
and JEFFREY J. ZARRILLO, )
)
Plaintiffs, )
)
VS. ) NO. C 09-2292-VRW
)
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 for the County of )
Alameda; and DEAN C. LOGAN, in his )
official capacity as )
Registrar-Recorder/County Clerk )
for the County of Los Angeles, )
) San Francisco, California
Defendants. ) Monday
___________________________________) January 11, 2010

TRANSCRIPT OF PROCEEDINGS

Reported By: Katherine Powell Sullivan, CRR, CSR 5812


Debra L. Pas, CRR, CSR 11916
Official Reporters
Reporters - U.S. District Court
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PROCEEDINGS

1 The briefs that you filed in the Court of Appeals and

2 in the Supreme Court deal with those issues. And that's true

3 of both sides.

4 Certainly, the concerns that the proponents have

5 raised here are concerns that should be considered, need to be

6 considered, and in due course should be given thorough

7 consideration.

8 But I think, in this day and age, with the technology

9 that's available and the importance of the public's right to

10 access judicial proceedings, it's very important that we in the

11 federal judiciary work to achieve that access consistent with

12 the means that are presently available to do that.

13 And I would commend you for the efforts that you've

14 made in bringing these issues forward, and I'm hopeful that

15 this experience will have brought these issues to the fore.

16 And maybe, finally, after some 20 years we will get some

17 sensible movement forward.

18 Now, Mr. Boutrous.

19 MR. BOUTROUS: Thank you, Your Honor.

20 Could I address one issue? Since the stay is

21 temporary and the Supreme Court is going to be considering

22 these issues, and given the importance of the issues in this

23 case, we would request that the Court permit recording and

24 preservation of the proceedings today and through Wednesday.

25 I've heard -- having heard Mr. Cooper argue on many


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PROCEEDINGS

1 occasions, I can't imagine why he wouldn't want his opening

2 statement preserved for the record.

3 (Laughter)

4 So the public can hear what he has to say. And same

5 goes for Mr. Olson.

6 And given the fact that this is a temporary stay, and

7 the stay order does not mention anything about restricting the

8 ability of the court to capture the images on the cameras and

9 preserve them in the event the stay is lifted and Judge

10 Kozinski issues his order, we think that would be a good

11 solution so then the materials could be posted when those --

12 those things happen.

13 THE COURT: Well, that's very much of a possibility

14 as presently matters stand.

15 The only transmission of these proceedings is to the

16 overflow courtroom in this courthouse. Any transmission beyond

17 that is not permitted, pending some further order of the

18 Supreme Court or the Court of Appeals, and, indeed, Chief Judge

19 Kozinski, who would be directing the pilot project.

20 I think your request is a fair one. But in the event

21 that there is no recording permitted after the issue is finally

22 settled, if a recording is made, some disposition of that

23 recording would have to be dealt with. And perhaps this is a

24 matter that we can deal with after we learn what the rule is

25 going to be in this case.


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PROCEEDINGS

1 I would prefer to defer it until then.

2 MR. BOUTROUS: That's what I would propose, Your

3 Honor. That way, simply recording it now, and then the Court

4 can grapple with that issue when we find out what happens on

5 Wednesday.

6 THE COURT: Very well.

7 MR. BOUTROUS: Thank you, Your Honor.

8 THE COURT: Mr. Cooper.

9 MR. COOPER: Your Honor, I very much appreciate

10 Mr. Boutrous's desire to ensure that my words are memorialized.

11 (Laughter)

12 But I do object to his proposal. I don't believe

13 that it's in keeping with -- although, at least as I read the

14 Court's order, and I only had a moment to do so, I don't

15 believe it specifically addresses this issue. But I don't

16 think it's consistent with the spirit of that order.

17 So I just want to make clear our objection to that

18 proposal. Thank you.

19 THE COURT: Very well. Your objection is noted.

20 Well, we have opening statements to make. And are

21 there any preliminary matters that we should address before we

22 turn to the opening statements? For the plaintiffs, for the

23 defendants, for the intervenors.

24 MR. OLSON: We have none. We are ready to proceed

25 when Your Honor is ready.


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EXHIBIT 8
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Volume 3

Pages 458 - 669

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

BEFORE THE HONORABLE VAUGHN R. WALKER

KRISTIN M. PERRY, )
SANDRA B. STIER, PAUL T. KATAMI, )
and JEFFREY J. ZARRILLO, )
)
Plaintiffs, )
)
VS. ) NO. C 09-2292-VRW
)
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 for the County of )
Alameda; and DEAN C. LOGAN, in his )
official capacity as )
Registrar-Recorder/County Clerk )
for the County of Los Angeles, )
) San Francisco, California
Defendants. ) Wednesday
___________________________________) January 13, 2010

TRANSCRIPT OF PROCEEDINGS

Reported By: Katherine Powell Sullivan, CRR, CSR 5812


Debra L. Pas, CRR, CSR 11916
Official Reporters
Reporters - U.S. District Court
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PEPLAU Page:EXAMINATION
- REDIRECT 31 of 114 ID: /7715321 DktEntry: 338-2
DUSSEAULT 662

1 A. No.

2 Q. Lastly, Ms. Moss asked you some questions about

3 Massachusetts and the need for some more data.

4 Do you feel that you need more data from

5 Massachusetts to form an opinion as to whether allowing

6 same-sex couples to marry would either lead heterosexual

7 couples not to marry or to exit their marriage?

8 A. I don't, because my opinion is based on so much more than

9 simply the Massachusetts data.

10 Q. Thank you very much. I have no further questions, Dr.

11 Peplau.

12 THE COURT: Very well. Ms. Peplau, you may step

13 down. Thank you for your testimony.

14 A. Thank you, your Honor.

15 (Witness excused.)

16 THE COURT: And we are, I think, ready to adjourn for

17 today. We will recommence at 8:30 in the morning.

18 As you may know, the Supreme Court has given us some

19 guidance with respect to part of the issue. It seems to be a

20 rather limited guidance at the moment.

21 So we may have issues beyond remote access to these

22 proceedings by other courthouses that we'll have to take up at

23 some point.

24 My inclination, without hearing from counsel and

25 getting their advice, is that we put that issue to the side for
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PROCEEDINGS 663

1 the time being and proceed with the trial. We seem to be

2 moving along well and I don't want to do anything to alter the

3 progress that we are making in these proceedings, but we may,

4 indeed, have to address those issues at some later time.

5 So we will not have remote access to these

6 proceedings from other courthouses in the Ninth Circuit and

7 elsewhere in the Federal Judiciary, but we'll have to deal with

8 the other issues in due time.

9 Now, Mr. Cooper, I understand from the clerk that you

10 asked about the responses to the proposed -- or the change in

11 the local rule and the responses with reference to broadcasting

12 or webcasting these proceedings.

13 And the ones that we have received are all in the

14 jury room. I believe you or your colleagues have had an

15 opportunity to review them, is that correct?

16 MR. COOPER: I do understand that they are in the

17 jury room available for inspection, and I believe that some of

18 my colleagues have -- have taken advantage of that fact. I

19 don't have a report for you in terms of whether -- whether that

20 review is complete.

21 THE COURT: Well, there are quite a number. There

22 are quite a number. So I can well imagine that maybe you

23 haven't or your colleagues have not had a chance to review them

24 all.

25 My understanding from the clerk was that you or


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EXHIBIT 9
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Cooper & Kirk


Lawyers
A Professional Limited Liability Company

Charles J. Cooper 1523 New Hampshire Avenue NW (202) 220-9600


ccooper@cooperkirk.com Washington, D.C. 20036 Fax (202) 220-9601

January 14, 2010

The Honorable Vaughn R. Walker


Chief Judge
United States District Court for the
Northern District of California
450 Golden Gate Avenue
San Francisco, CA 94102

Re: Perry v. Schwarzenegger, No. C-09-2292 VRW (N.D. Cal.)

Dear Chief Judge Walker:

I write on behalf of Defendant-Intervenors (“Proponents”) to respectfully request that the


Court halt any further recording of the proceedings in this case, and delete any recordings of the
proceedings to date that have previously been made.

As the Court will recall, on Monday morning, just before trial commenced, the Court
noted that its orders concerning public dissemination had been temporarily stayed by the
Supreme Court. In response, Plaintiffs nonetheless asked the Court to record the proceedings for
the purpose of later public dissemination if the stay was subsequently lifted:

Since the stay is temporary and the Supreme Court is going to be considering
these issues, and given the importance of the issues in this case, we would request
that the Court permit recording and preservation of the proceedings today and
through Wednesday .… [G]iven the fact that this is a temporary stay, and the stay
order does not mention anything about restricting the ability of the court to
capture the images on the cameras and preserve them in the event the stay is lifted
and Judge Kozinski issues his order, we think that would be a good solution so
then the materials could be posted when those -- those things happen.

Tr. of Proceedings at 14-15 (Jan. 11, 2010) (Attachment A). In response, Proponents objected to
the recording of the proceedings as inconsistent with the Supreme Court’s temporary stay, see id.
at 16, but the Court accepted Plaintiffs’ proposal.
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The Honorable Vaughn R. Walker


January 14, 2010
Page 2 of 2

The Supreme Court yesterday extended the stay indefinitely. Hollingsworth v. Perry,
558 U.S. __, No. 09A648, slip op. (Jan. 13, 2010) (per curiam). The Supreme Court’s ruling
removes all question that recording of the proceedings is prohibited. As the Supreme Court
explained, prior to this Court’s amendment to Local Rule 77-3 (which amendment, the Court
concluded, was not properly adopted), Local Rule 77-3 “banned the recording or broadcast of
court proceedings.” Hollingsworth, slip op. at 4 (emphasis added). Unamended Local Rule77-3
thus governs these proceedings, and, as the Supreme Court held, it has “the force of law.” Id. at
8 (quotation marks omitted).

In short, it is now clear that the Supreme Court’s stay will remain in place indefinitely,
and the prohibition against the recording of these proceedings remains binding. For these
reasons, Proponents renew their objection to any further recording of the proceedings in this
case, and request that the Court order that any recordings previously made be deleted.

Sincerely,

/s/ Charles J. Cooper

Charles J. Cooper
Counsel for Defendant-Intervenors

Cc: Counsel of Record


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EXHIBIT 10
Case:
Case3:09-cv-02292-VRW
10-16696 04/13/2011 Page:
Document463
37 of 114 Filed01/15/10
ID: 7715321 DktEntry:
Page1 of 338-2
2

1
2 IN THE UNITED STATES DISTRICT COURT

3 FOR THE NORTHERN DISTRICT OF CALIFORNIA

4
5 KRISTIN M PERRY, SANDRA B STIER,
PAUL T KATAMI and JEFFREY J
6 ZARRILLO,

7 Plaintiffs,

8 CITY AND COUNTY OF SAN FRANCISCO,

9 Plaintiff-Intervenor,

10 v
For the Northern District of California

11 ARNOLD SCHWARZENEGGER, in his


United States District Court

official capacity as governor of


12 California; EDMUND G BROWN JR, in
his official capacity as attorney
13 general of California; MARK B No C 09-2292 VRW
HORTON, in his official capacity
14 as director of the California NOTICE TO PARTIES
Department of Public Health and
15 state registrar of vital
statistics; LINETTE SCOTT, in her
16 official capacity as deputy
director of health information &
17 strategic planning for the
California Department of Public
18 Health; PATRICK O’CONNELL, in his
official capacity as clerk-
19 recorder of the County of
Alameda; and DEAN C LOGAN, in his
20 official capacity as registrar-
recorder/county clerk for the
21 County of Los Angeles,

22 Defendants,

23 DENNIS HOLLINGSWORTH, GAIL J


KNIGHT, MARTIN F GUTIERREZ,
24 HAKSHING WILLIAM TAM, MARK A
JANSSON and PROTECTMARRIAGE.COM –
25 YES ON 8, A PROJECT OF
CALIOFORNIA RENEWAL, as official
26 proponents of Proposition 8,

27 Defendant-Intervenors.
/
28
Case:
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38 of 114 Filed01/15/10
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Page2 of 338-2
2

1 In compliance with the Supreme Court’s order in


2 Hollingsworth v Perry, 558 US --, No 09A648 (January 13, 2010), as
3 noted on the record at trial this date, the undersigned has
4 formally requested Chief Judge Kozinski to withdraw this case from
5 the pilot project on transmitting trial court proceedings to remote
6 federal courthouse locations or for broadcast or webcast approved
7 by the Ninth Circuit Judicial Council on December 17, 2009.
8 Transmission of the proceedings to other locations solely within
9 the San Francisco courthouse will continue along with recording for
10 use in chambers, as permitted in Civ LR 77-3.
For the Northern District of California

11
United States District Court

12
13
14
15 VAUGHN R WALKER
United States District Chief Judge
16
17
18
19
20
21
22
23
24
25
26
27
28

2
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EXHIBIT 11
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FILED
JAN 15 2010
JUDICIAL COUNCIL
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS

OF THE NINTH CIRCUIT

IN THE MATTER OF PILOT DISTRICT No. 2010–3


COURT PUBLIC ACCESS PROGRAM
APPROVED DECEMBER 16, 2009 ORDER

KOZINSKI, Chief Judge:

I have received a request from the Chief Judge of the Northern District of

California to remove Perry v. Schwarzenegger, No. 3:09-cv-02292-VRW, from

this pilot program. The request is granted.

Order No. 2010–2 is rescinded.


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EXHIBIT 12
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Civil Local Rules

(f) Orders taxing costs pursuant to Civil L.R. 54-4.

Cross Reference
See ADR L.R. 4-11(d) “Nonbinding Arbitration; Entry of Judgment on
Award.”

77-3. Photography and Public Broadcasting.

Unless allowed by a Judge or a Magistrate Judge with respect to his or her


own chambers or assigned courtroom for ceremonial purposes, the taking of
photographs, public broadcasting or televising, or recording for those purposes in the
courtroom or its environs, in connection with any judicial proceeding, is prohibited.
Electronic transmittal of courtroom proceedings and presentation of evidence within
the confines of the courthouse is permitted, if authorized by the Judge or Magistrate
Judge. The term “environs,” as used in this rule, means all floors on which
chambers, courtrooms or on which Offices of the Clerk are located, with the
exception of any space specifically designated as a Press Room. Nothing in this rule
is intended to restrict the use of electronic means to receive or present evidence
during Court proceedings.

77-4. Official Notices.

The following media are designated by this Court as its official means of
giving public notice of calendars, General Orders, employment opportunities,
policies, proposed modifications of these local rules or any matter requiring public
notice. The Court may designate any one or a combination of these media for
purposes of giving notice as it deems appropriate:

(a) Bulletin Board. A bulletin board for posting of official notices shall be
located at the Office of the Clerk at each courthouse of this district.

(b) Internet Site. The Internet site, located at http://www.cand.uscourts.gov,


is designated as the district’s official Internet site and may be used for the posting of
official notices.

(c) Newspapers. The following newspapers are designated as official


newspapers of the Court for the posting of official notices:

(1) The Recorder; or

(2) The San Francisco Daily Journal; or

(3) The San Jose Post-Record, for matters pending in the San
Jose Division, in addition to the newspapers listed in subparagraphs
(1) and (2); or

Published February 2010 CIV 92


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EXHIBIT 13
Renewed Notice Concerning Revision of Civil Local Rule 77-3. http://www.cand.uscourts.gov/CAND/FAQ.nsf/60126b66e42d00488825...
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Subject: Contact: Date Posted:


Renewed Notice Concerning 02/04/2010
Revision of Civil Local Rule
77-3.

The United States District Court for the Northern District of California Court has approved a
revision of Civil Local Rule 77-3, subject to public comment. The revision would add the
underlined language below.

77-3. Photography and Public Broadcasting.

Unless allowed by a Judge or a Magistrate Judge with respect to his or her own chambers or
assigned courtroom for ceremonial purposes or for participation in a pilot or other project
authorized by the Judicial Council of the Ninth Circuit, the taking of photographs, public
broadcasting or televising, or recording for those purposes in the courtroom or its environs, in
connection with any judicial proceeding, is prohibited. Electronic transmittal of courtroom
proceedings and presentation of evidence within the confines of the courthouse is permitted, if
authorized by the Judge or Magistrate Judge. The term “environs,” as used in this rule, means all
floors on which chambers, courtrooms or on which Offices of the Clerk are located, with the
exception of any space specifically designated as a Press Room. Nothing in this rule is intended
to restrict the use of electronic means to receive or present evidence during Court proceedings.

The comment period will run from February 4, 2010 to March 4, 2010. If you submitted a
comment during the previous comment period, you need not resubmit it. The court is interested
in comments that pertain to the revised rule and NOT to its application to a particular case. All
comments and suggestions regarding the content of the revised rule should be sent in writing, no
later than March 4, 2010 to:
Hon. Phyllis Hamilton
Chair of the Rules Committee
United States Courthouse
1301 Clay Street
Oakland, CA 94612

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File for Download:


File Type: WordPerfect

File Size: 28 KBytes

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EXHIBIT 14
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Civil Local Rules

(f) Orders taxing costs pursuant to Civil L.R. 54-4.

Cross Reference
See ADR L.R. 4-11(d) “Nonbinding Arbitration; Entry of Judgment on
Award.”

77-3. Photography and Public Broadcasting.

Unless allowed by a Judge or a Magistrate Judge with respect to his or her


own chambers or assigned courtroom for ceremonial purposes or for participation in
a pilot or other project authorized by the Judicial Council of the Ninth Circuit, the
taking of photographs, public broadcasting or televising, or recording for those
purposes in the courtroom or its environs, in connection with any judicial proceeding,
is prohibited. Electronic transmittal of courtroom proceedings and presentation of
evidence within the confines of the courthouse is permitted, if authorized by the
Judge or Magistrate Judge. The term “environs,” as used in this rule, means all floors
on which chambers, courtrooms or on which Offices of the Clerk are located, with
the exception of any space specifically designated as a Press Room. Nothing in this
rule is intended to restrict the use of electronic means to receive or present evidence
during Court proceedings.

77-4. Official Notices.

The following media are designated by this Court as its official means of
giving public notice of calendars, General Orders, employment opportunities,
policies, proposed modifications of these local rules or any matter requiring public
notice. The Court may designate any one or a combination of these media for
purposes of giving notice as it deems appropriate:

(a) Bulletin Board. A bulletin board for posting of official notices shall be
located at the Office of the Clerk at each courthouse of this district.

(b) Internet Site. The Internet site, located at http://www.cand.uscourts.gov,


is designated as the district’s official Internet site and may be used for the posting of
official notices.

(c) Newspapers. The following newspapers are designated as official


newspapers of the Court for the posting of official notices:

(1) The Recorder; or

(2) The San Francisco Daily Journal; or

(3) The San Jose Post-Record, for matters pending in the San
Jose Division, in addition to the newspapers listed in subparagraphs
(1) and (2); or

Published April 2010 CIV 90


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EXHIBIT 15
Civil Local Rules http://www.cand.uscourts.gov/cand/LocalRul.nsf/031cb3d3c34daccc882...
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Home Previous

Northern District of California

Rule Name: Last Modified:


Civil Local Rules 05/2010

Published April, 2010


NOTICE CONCERNING REVISIONS OF
CIVIL LOCAL RULES 7-1, 72-2 and 72-3

The United States District Court for the Northern District of California Court has approved
revisions of Civil Local Rules 7-1, 72-2 and 72-3, effective April 20, 2010.

In most circumstances, a request for judicial action is called a “motion” and certain
administrative and electronic processes intended to bring such matters to the attention of the
assigned judge are designed to capture “motions” that have been filed rather than “objections.”
In order to assist the judges in ruling on requests for judicial action with respect to orders and
findings of magistrate judges as expeditiously as possible, such requests will now be called
“motions” rather than “objections.”

File for Download:

File Type: Adobe Acrobat PDF

PDF File:

File Size: 542 KBytes

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EXHIBIT 16
http://www.cand.uscourts.gov/
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Text Only Site Map

Vaughn R. Walker, Chief Judge.......... ..........Richard W. Wieking, Clerk of Court

PUBLIC ANNOUNCEMENTS COURT


A NEW COURT WEBSITE IS UNDER xxxINFORMATIONxxx
DEVELOPMENT. Address & Jurisdiction
Please take our brief survey. Your opinion is important Accessibility
to us. ADR Magistrate Judge
Attorney Lounge
Attorney Status
CASES California state site
Perry v. Schwarzenegger - C09-2292 VRW (Challenge Current Interest
to Proposition 8) Electronic Case Filing
FTC v. Pricewert LLC dba 3fn.net, et al. C09-2407 RMW Federal Judiciary
USA v. Bonds 3:07-cr-00732 Extern Application
Plata/Coleman v. Schwarzenegger (Prison Overcrowding) Fee Schedule
Filing Guidelines
Bextra and Celebrex FirstGov Website
Getting Docket Info
Local Rules RULES & ORDERS Historical Society
General Orders Notice Concerning Adoption of General Order No. 62 - Magistrate Judge Profiles
Media Info Electronic Seminars Disclosure
Filing of Documents Under Seal Library of Congress
Notice Concerning Proposed Revisions of Civil Local Local Rules
Naturalization
Rule 7-3
Practice Program
Notice Concerning Revisions of Civil Local Rules 7-1, Pro Se Handbook
72-2 and 72-3 T-bill Rate for Judgment
Local Rules Changes - Effective 12/01/09
Revised General Order 56
Notice Concerning Revisions of Civil Local Rule, 3-2 and
5-1
Standing Order for All Judges of the Northern District of
California Effective 3/1/07

CLERK'S NOTICES
Magistrate Judge Position Available in San Jose
Revised Civil Cover Sheet 1/2010
Revised Forms 12/09: Bill of Costs, Summons in a Civil
Action and Summons on Third-Party Complaint
Notice re: Judge Hamilton's Relocation to Oakland
Clerk's Office Now Accepting Payments By Credit Card
New Federal Magistrate Judge Appointments
Judicial Misconduct and Disability

GENERAL NOTICES
RFQ for Off-Site Copying Services San Jose Court
Location (Due June 1, 2010)
A NEW COURT WEBSITE IS UNDER DEVELOPMENT.
Please take our brief survey. Your opinion is important to
us.
Announcing the selection of Professor Donna M. Ryu for a
full-time Oakland Magistrate Judge position
Submitting Matters to the ADR Magistrate Judge
Pro Bono Project Guidelines

1 of 2 5/18/2010 5:47 PM
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Legal Help Center Open to Assist Pro Se Litigants
Pro Se Handbook - Now in Spanish & Chinese Translations
Courtroom Technology Upgrades
Teleconferencing Guidelines

Please drop us
an email at:
Web-CAND@cand.uscourts.gov

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Cooper & Kirk


Lawyers
A Professional Limited Liability Company

Charles J. Cooper 1523 New Hampshire Avenue NW (202) 220-9600


ccooper@cooperkirk.com Washington, D.C. 20036 Fax (202) 220-9601

May 24, 2010

The Honorable Vaughn R. Walker


Chief Judge
United States District Court for the
Northern District of California
450 Golden Gate Ave.
San Francisco, CA 94102

Re: Perry v. Schwarzenegger, No. C-09-2292 VRW (N.D. Cal.)

Dear Chief Judge Walker:

I write on behalf of Defendant-Intervenors Hollingsworth, Knight, Gutierrez, Jansson,


and ProtectMarrige.com (“Proponents”) in response to the Media Coalition’s letter of May 18,
2010, Doc # 670, and to reiterate our objection to public broadcast of the trial proceedings in this
case. Despite the Supreme Court’s determination that “[t]his case is … not a good one for a
[public broadcast] pilot program,” Hollingsworth v. Perry, 130 S. Ct. 705, 714 (2010), the Media
Coalition again asks this Court to publicly broadcast a portion of the trial proceedings.
Proponents respectfully submit that an order permitting public broadcast would violate (i) the
letter and spirit of the Supreme Court’s stay order, (ii) the only valid Northern District of
California and Ninth Circuit policies bearing upon this issue, and (iii) Proponents’ due process
rights to a fair trial. Accordingly, the Media Coalition’s request should be promptly rejected.

First, an order allowing trial proceedings to be broadcast publicly would violate the
Supreme Court’s stay of this Court’s order authorizing “the broadcast of [this] federal trial.”
Hollingsworth, 130 S. Ct. at 706; see also id. at 709 (“We therefore stay the court’s January 7,
2010, order to the extent that it permits the live streaming of court proceedings….”). As the
Court explained, even “[i]f Local Rule 77-3 had been validly revised, questions would still
remain about the District Court’s decision to allow broadcasting of this particular trial.” Id. at
714. These questions led the Court to conclude, as noted above, that this case is ill-suited for
inclusion in an experimental pilot program.

Second, under controlling Ninth Circuit policy, this Court has no authority to enter an
order permitting public broadcast in this case, and to the extent revised L.R. 77-3 purports to
allow for such authority, it is invalid. Pursuant to federal statute, the Ninth Circuit Judicial
Council is authorized to make or amend “[a]ny general order relating to practice and procedure
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The Honorable Vaughn R. Walker


May 24, 2010
Page 2 of 3

… only after giving appropriate public notice and an opportunity for comment.” 28 U.S.C.
§ 332(d)(1) (emphasis added). In 1996, the Ninth Circuit Judicial Council “adopt[ed] the policy
of the Judicial Conference of the United States” banning the public broadcast of proceedings in
federal district courts. See Doc # 324-1 at 4 (hereinafter the “1996 Policy”). Since that time, the
Judicial Council has not given “appropriate notice and an opportunity for comment” of a
proposed amendment to the governing 1996 Policy. The Judicial Council did issue a press
release on December 17, 2009, stating that it “has approved, on an experimental basis, the
limited use of cameras in federal district courts within the circuit”—an “action” which purports
to “amend[] [the] 1996 Ninth Circuit policy.” 1 The December 17 press release, however, did not
comport with the statutory requirements for notice and comment and is therefore invalid. See
130 S. Ct. at 711 (concluding that the amended version of L.R. 77-3 “appears to be invalid”
because the Court failed to give the statutorily required public notice and an opportunity for
comment); see also id. at 712 (citing 28 U.S.C. § 332(d)(1) and noting that the Ninth Circuit’s
policy amendment “was not adopted after notice and comment procedures”). Thus, because the
1996 Policy remains the only valid Circuit rule in effect, this Court has no authority to permit
public broadcast of trial proceedings. See 28 U.S.C. § 332(d)(2) (“All judicial officers and
employees of the circuit shall promptly carry into effect all orders of the judicial council.”).

Third, neither the amendment to L.R. 77-3 nor the Ninth Circuit Judicial Council’s press
release sets forth any standards or guidelines to regulate the selection of cases and the use of
cameras during trial proceedings. The Supreme Court explicitly emphasized that this was a
serious defect that supported its “decision to grant extraordinary relief.” Hollingsworth, 130 S.
Ct. at 713; see also id. (“The District Court here attempted to revise its rules in haste … to allow
broadcasting of this high-profile trial without any considered standards or guidelines in place.”);
id. (explaining that “the lack of a regular rule with proper standards to determine the guidelines
for broadcasting could compromise the orderly, decorous, rational traditions that courts rely upon
to ensure the integrity of their own judgments”); id. (stating that “Congress has illustrated the
need for careful guidelines and standards” in any program authorizing public broadcast of federal
trial proceedings). Indeed, the Judicial Council’s press release authorizes the “chief judge of the
district court in consultation with the chief circuit judge” to select cases for public broadcast of
district court trial proceedings. It appears, in fact, that the chief judges of the District Court and
the Ninth Circuit have absolute discretion to select these cases. Yet neither the press release nor
revised L.R. 77-3 provides any procedure by which litigants and other interested parties may
present concerns and objections to the chief judges. This raises serious due process concerns.

Fourth, there is little merit to the Media Coalition’s argument that “the concerns earlier
reviewed by the Supreme Court should not preclude” the public broadcast of closing arguments
because they “will solely consist of the arguments of counsel—and not witness testimony or
evidence.” As an initial matter, the parties may play excerpts from the video-recorded

1
See http://www.ce9.uscourts.gov/cm/articlefiles/137-Dec17_Cameras_Press%20Relase.pdf.
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The Honorable Vaughn R. Walker


May 24, 2010
Page 3 of 3

depositions during the course of closing arguments. In any case, in Hollingsworth, the Supreme
Court specifically cited the findings and policies of the Judicial Conference of the United States,
noting that while those policies “may not be binding on the lower courts, they are at the very
least entitled to respectful consideration.” 130 S. Ct. at 712 (quotation marks omitted). While it
is true that the deleterious effect of public broadcast on witnesses is one of the concerns
undergirding the Judicial Conference’s policy, it is by no means the only concern. As we have
explained previously, the Judicial Conference’s policy also rests on findings that public
broadcast has negative effects on some judges and attorneys, including distraction,
grandstanding, and avoidance of unpopular decisions or positions. Moreover, the Judicial
Conference has repeatedly stressed that “the presence of cameras in a trial courtroom …
increases security and safety issues” and that “[t]hreats against judges, lawyers, and other
participants could increase even beyond the current disturbing level.” Doc # 324-2 at 4. And all
of these findings were with respect to run-of-the-mine cases, not “high-profile, divisive cases”
like this one. Hollingsworth, 130 S. Ct. at 714 (citing “warning by Judge Edward R. Becker that
in ‘truly high-profile cases,’ one can ‘[j]ust imagine what the findings would be’”).

For all of these reasons, and in light of the Supreme Court’s stay opinion, Proponents
respectfully submit that the Court should deny the Media Coalition’s renewed request to publicly
broadcast this federal trial.

Respectfully submitted,

/s/ Charles J. Cooper

Charles J. Cooper
Counsel for Proponents
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1
2 IN THE UNITED STATES DISTRICT COURT

3 FOR THE NORTHERN DISTRICT OF CALIFORNIA

4
5 KRISTIN M PERRY, SANDRA B STIER,
PAUL T KATAMI and JEFFREY J
6 ZARRILLO,

7 Plaintiffs,

8 CITY AND COUNTY OF SAN FRANCISCO,

9 Plaintiff-Intervenor,

10 v
For the Northern District of California

11 ARNOLD SCHWARZENEGGER, in his


United States District Court

official capacity as governor of


12 California; EDMUND G BROWN JR, in
his official capacity as attorney
13 general of California; MARK B No C 09-2292 VRW
HORTON, in his official capacity
14 as director of the California ORDER
Department of Public Health and
15 state registrar of vital
statistics; LINETTE SCOTT, in her
16 official capacity as deputy
director of health information &
17 strategic planning for the
California Department of Public
18 Health; PATRICK O’CONNELL, in his
official capacity as clerk-
19 recorder of the County of
Alameda; and DEAN C LOGAN, in his
20 official capacity as registrar-
recorder/county clerk for the
21 County of Los Angeles,

22 Defendants,

23 DENNIS HOLLINGSWORTH, GAIL J


KNIGHT, MARTIN F GUTIERREZ,
24 HAKSHING WILLIAM TAM, MARK A
JANSSON and PROTECTMARRIAGE.COM –
25 YES ON 8, A PROJECT OF
CALIOFORNIA RENEWAL, as official
26 proponents of Proposition 8,

27 Defendant-Intervenors.
/
28
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1 In the event any party wishes to use portions of the


2 trial recording during closing arguments, a copy of the video can
3 be made available to the party. Parties will of course be
4 obligated to maintain as strictly confidential any copy of the
5 video pursuant to paragraph 7.3 of the protective order, Doc #425.
6 Any party wishing to make use of the video during closing arguments
7 is DIRECTED to inform the court clerk not later than June 2, 2010
8 at 5 PM PDT.
9
10 IT IS SO ORDERED.
For the Northern District of California

11
United States District Court

12
13 VAUGHN R WALKER
United States District Chief Judge
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

2
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4 UNITED STATES DISTRICT COURT


5 NORTHERN DISTRICT OF CALIFORNIA
6 KRISTIN M. PERRY, SANDRA B. STIER, CASE NO. 09-CV-2292 VRW (JCS)
PAUL T. KATAMI, and JEFFREY J.
7 ZARRILLO,
Plaintiffs, AMENDED PROTECTIVE ORDER
8
v.
9
ARNOLD SCHWARZENEGGER, in his official
10 capacity as Governor of California; EDMUND
G. BROWN, JR., in his official capacity as
11 Attorney General of California; MARK B.
HORTON, in his official capacity as Director of
12 the California Department of Public Health and
State Registrar of Vital Statistics; LINETTE
13 SCOTT, in her official capacity as Deputy
Director of Health Information & Strategic
14 Planning for the California Department of Public
Health; PATRICK O’CONNELL, in his official
15 capacity as Clerk-Recorder for the County of
Alameda; and DEAN C. LOGAN, in his official
16 capacity as Registrar-Recorder/County Clerk for
the County of Los Angeles,
17 Defendants.
18

19

20

21

22

23

24

25

26

27

28

Gibson, Dunn &


Crutcher LLP

PLAINTIFFS’ PROPOSED PROTECTIVE ORDER; 09-CV-2292 VRW


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1
(e) court reporters, their staffs, and professional vendors to whom disclosure is
2
reasonably necessary for this litigation and who have signed the “Agreement to Be Bound by Protective
3
Order” (Exhibit A);
4
(f) during their depositions, witnesses in the action to whom disclosure is
5
reasonably necessary and who have signed the “Agreement to Be Bound by Protective Order”
6
(Exhibit A). Pages of transcribed deposition testimony or exhibits to depositions that reveal Protected
7
Material must be separately bound by the court reporter and may not be disclosed to anyone except as
8
permitted under this Protective Order.
9
(g) the author of the document or the original source of the information.
10
7.3 Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
11
Information or Items. Unless otherwise ordered by the court or permitted in writing by the Designating
12
Party, a Receiving Party may disclose any information or item designated “HIGHLY CONFIDENTIAL
13
– ATTORNEYS’ EYES ONLY” only to:
14
(a) the Receiving Party’s Outside Counsel of record in this action, (or in the case of
15
a government entity or government official sued in his or her official capacity, such entity’s or
16
official’s counsel of record in this action), as well as employees of said Counsel to whom it is
17
reasonably necessary to disclose the information for this litigation and who have signed the
18
“Agreement to Be Bound by Protective Order” that is attached hereto as Exhibit A, provided that it
19
shall not be provided to any Counsel or employee who held an “official position” in any primarily
20
formed ballot committee related to Proposition 8 (see http://cal-
21
access.ss.ca.gov/campaign/measures/detail.aspx?id=1302602&session=2007) or now holds an official
22
position in a similar committee that is now circulating petitions for a 2010 ballot initiative to repeal
23
Proposition 8. For purposes of sections 7.3 and 7.5 an “official position” is defined as one which
24
authorizes the holder of said position to contractually bind (either solely or in conjunction with others)
25
the primarily formed ballot committee (or similar committee circulating petitions to place an initiative
26
on the 2010 ballot) with respect to matters relating to communications disseminated by the committee
27
or otherwise to spend funds exceeding $1,000 on behalf of the committee, provided, however, that
28
notice of all such attorneys and employees to whom HIGHLY CONFIDENTIAL – ATTORNEYS’
Gibson, Dunn &
Crutcher LLP 8
PLAINTIFFS’ PROPOSED PROTECTIVE ORDER; 09-CV-2292 VRW
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1
EYES ONLY information will be disclosed shall be given not less than 24 hours in advance of
2
disclosure to give the other parties the opportunity to object to the disclosure and seek relief from the
3
court on grounds specific to the designated attorney or employee;
4
(b) Experts (as defined in this Order) (1) to whom disclosure is reasonably
5
necessary for this litigation, (2) who have signed the “Agreement to Be Bound by Protective Order”
6
(Exhibit A), provided that it shall not be provided to any expert who held an “official position” in any
7
primarily formed ballot committee related to Proposition 8 (see http://cal-access.ss.ca.gov/campaign/
8
measures/detail.aspx?id=1302602&session=2007) or now holds an official position in a similar
9
committee that is now circulating petitions for a 2010 ballot initiative to repeal Proposition 8, provided,
10
however, that notice of all such experts to whom HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
11
ONLY information will be disclosed shall be given not less than 24 hours in advance of disclosure to
12
give the other parties the opportunity to object to the disclosure and seek relief from the court on
13
grounds specific to the designated expert;
14
(c) the Court and its personnel;
15
(d) court reporters, their staffs, and professional vendors to whom disclosure is
16
reasonably necessary for this litigation and who have signed the “Agreement to Be Bound by Protective
17
Order” (Exhibit A); and
18
(e) the author of the document or the original source of the information.
19
7.4 Disclosure Limited to Receiving Party. A Receiving Party shall not disclosure any
20
materials designated “Confidential” or “Highly Confidential – Attorneys’ Eyes Only” to any other party
21
to the litigation unless the party has agreed to be bound by this Protective Order.
22
7.5 Use of Protected Material at Depositions. Before any deposition in which the noticing
23
Party reasonably anticipates using any Protected Materials received in this matter, the noticing Party
24
must inform all other parties. Thereafter, any party who wishes to participate in said deposition must
25
staff the deposition with persons who neither have held an “official position” in any primarily formed
26
ballot committee related to Proposition 8 (see http://cal-access.ss.ca.gov/campaign/measures/
27
detail.aspx?id=1302602&session=2007) nor hold an official position in a similar committee that is now
28
circulating petitions for a 2010 ballot initiative to repeal Proposition 8.
Gibson, Dunn &
Crutcher LLP 9
PLAINTIFFS’ PROPOSED PROTECTIVE ORDER; 09-CV-2292 VRW
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1 GIBSON, DUNN & CRUTCHER LLP


Theodore B. Olson, SBN 38137
2 tolson@gibsondunn.com
Matthew D. McGill, pro hac vice
3 Amir C. Tayrani, SBN 229609
1050 Connecticut Avenue, N.W., Washington, D.C. 20036
4 Telephone: (202) 955-8668, Facsimile: (202) 467-0539

5 Theodore J. Boutrous, Jr., SBN 132009


tboutrous@gibsondunn.com
6 Christopher D. Dusseault, SBN 177557
Ethan D. Dettmer, SBN 196046
7 Sarah E. Piepmeier, SBN 227094
Theane Evangelis Kapur, SBN 243570
8 Enrique A. Monagas, SBN 239087
333 S. Grand Avenue, Los Angeles, California 90071
9 Telephone: (213) 229-7804, Facsimile: (213) 229-7520

10 BOIES, SCHILLER & FLEXNER LLP


David Boies, pro hac vice
11 dboies@bsfllp.com
333 Main Street, Armonk, New York 10504
12 Telephone: (914) 749-8200, Facsimile: (914) 749-8300

13 Jeremy M. Goldman, SBN 218888


jgoldman@bsfllp.com
14 Theodore H. Uno, SBN 248603
1999 Harrison Street, Suite 900, Oakland, California 94612
15 Telephone: (510) 874-1000, Facsimile: (510) 874-1460

16 Attorneys for Plaintiffs


KRISTIN M. PERRY, SANDRA B. STIER,
17 PAUL T. KATAMI, and JEFFREY J. ZARRILLO

18 UNITED STATES DISTRICT COURT


19 NORTHERN DISTRICT OF CALIFORNIA
20 KRISTIN M. PERRY, et al., CASE NO. 09-CV-2292 VRW
21 Plaintiffs, NOTICE TO COURT CLERK
and RE PLAINTIFFS’ REQUEST FOR A
22 COPY OF THE TRIAL RECORDING
CITY AND COUNTY OF SAN FRANCISCO,
23 Plaintiff-Intervenor, Trial: January 11-27, 2010
v.
24 Judge: Chief Judge Vaughn R. Walker
ARNOLD SCHWARZENEGGER, et al., Magistrate Judge Joseph C. Spero
25 Defendants,
and Location: Courtroom 6, 17th Floor
26
PROPOSITION 8 OFFICIAL PROPONENTS
27 DENNIS HOLLINGSWORTH, et al.,
28 Defendant-Intervenors.

Gibson, Dunn &


Crutcher LLP
09-CV-2292 VRW NOTICE TO COURT CLERK RE PLAINTIFFS’ REQUEST FOR A COPY OF
THE TRIAL RECORDING
Case:
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2

1 Pursuant to this Court’s May 31, 2010 order, Doc #672, Plaintiffs respectfully request a copy

2 of the trial recording for possible use during closing arguments.

3 Respectfully submitted,
4 DATED: June 2, 2010 GIBSON, DUNN & CRUTCHER LLP
5 Theodore B. Olson
Theodore J. Boutrous, Jr.
6 Christopher D. Dusseault
Ethan D. Dettmer
7 Matthew D. McGill
Amir C. Tayrani
8
Sarah E. Piepmeier
9 Theane Evangelis Kapur
Enrique A. Monagas
10

11 By: /s/
Theodore B. Olson
12
and
13
BOIES, SCHILLER & FLEXNER LLP
14
David Boies
15 Steven Holtzman
Jeremy M. Goldman
16 Roseanne C. Baxter
Richard J. Bettan
17 Beko O. Richardson
Theodore H. Uno
18
Joshua I. Schiller
19
Attorneys for Plaintiffs
20 KRISTIN M. PERRY, SANDRA B. STIER,
PAUL T. KATAMI, and JEFFREY J. ZARRILLO
21

22

23

24

25

26

27

28

Gibson, Dunn &


1
Crutcher LLP
09-CV-2292 VRW NOTICE TO COURT CLERK RE PLAINTIFFS’ REQUEST FOR A COPY OF
THE TRIAL RECORDING
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EXHIBIT 22
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Volume 13

Pages 2953 - 3115

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

BEFORE THE HONORABLE VAUGHN R. WALKER

KRISTIN M. PERRY, )
SANDRA B. STIER, PAUL T. KATAMI, )
and JEFFREY J. ZARRILLO, )
)
Plaintiffs, )
)
VS. ) NO. C 09-2292-VRW
)
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 for the County of )
Alameda; and DEAN C. LOGAN, in his )
official capacity as )
Registrar-Recorder/County Clerk )
for the County of Los Angeles, )
) San Francisco, California
Defendants. ) Wednesday
___________________________________) June 16, 2010

TRANSCRIPT OF PROCEEDINGS

Reported By: Katherine Powell Sullivan, CRR, CSR 5812


Debra L. Pas, CRR, CSR 11916
Official Reporters
Reporters - U.S. District Court
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PROCEEDINGS 2961

1 With the Court's permission today, during closings

2 Mr. Olson will be playing some of the video clips from the

3 trial proceedings. We propose, if this works for the Court,

4 that at the end of the day we would offer the transcript pages

5 for the record, whenever it's convenient for the Court, rather

6 than doing it for the closings. Then we'll have that for the

7 record.

8 THE COURT: That would seem to make sense. Does it

9 not, Mr. Cooper?

10 MR. COOPER: I'm sorry, Your Honor. I'm not sure I

11 followed the proposal.

12 THE COURT: Maybe you can clarify.

13 MR. BOUTROUS: I can clarify.

14 We will be playing video clips from the trial

15 proceedings during the closing arguments. At the end of the

16 day, or whenever it is convenient for the Court, we would offer

17 into the record the transcript pages of the clips that we have

18 played in court, marked as exhibits for the record.

19 MR. COOPER: I understand. And I see no objection to

20 that, Your Honor.

21 THE COURT: Fine. That will be fine.

22 MR. BOUTROUS: Thank you.

23 THE COURT: Any other housekeeping? Good.

24 Mr. Olson.

25
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EXHIBIT 23
Case:
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2

1 DENNIS J. HERRERA, State Bar #139669


City Attorney
2 THERESE M. STEWART, State Bar #104930
Chief Deputy City Attorney
3 DANNY CHOU, State Bar #180240
Chief of Complex and Special Litigation
4 RONALD P. FLYNN, State Bar #1841867
VINCE CHHABRIA, State Bar #208557
5 ERIN BERNSTEIN, State Bar #231539
CHRISTINE VAN AKEN, State Bar #241755
6 MOLLIE M. LEE, State Bar #251404
Deputy City Attorneys
7 City Hall, Room 234
One Dr. Carlton B. Goodlett Place
8 San Francisco, California 94102-4682
Telephone: (415) 554-4708
9 Facsimile: (415) 554-4699

10 Attorneys for Plaintiff-Intervenor


CITY AND COUNTY OF SAN FRANCISCO
11

12 UNITED STATES DISTRICT COURT

13 NORTHERN DISTRICT OF CALIFORNIA

14 KRISTIN M. PERRY, et al, Case No. 09-CV-2292 VRW

15 Plaintiffs, NOTICE TO COURT CLERK


FROM PLAINTIFF-INTERVENOR
16 CITY AND COUNTY OF SAN CITY AND COUNTY OF SAN FRANCISCO
FRANCISCO, RE USE OF VIDEO
17
Plaintiff-Intervenor
18 Trial: Jan. 11-27, 2010
vs.
19 Judge: Chief Judge Vaughn R. Walker
ARNOLD SCHWARZENEGGER, in his
20 official capacity as Governor of California, et Location: Courtroom 6, 17th Floor
al
21
Defendants,
22
DENNIS HOLINGSWORTH, as official
23 proponents of Proposition 8, et al,

24 Defendant-Intervenors,

25

26

27

28
Plaintiff-Intervenor's Notice Re Video
CASE NO. 09-CV-2292 VRW
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2

1
NOTICE
2
Please take NOTICE that pursuant to the Court's Order [Doc #672], Plaintiff-Intervenor wishes
3
to obtain a copy of the following portions of the trial video to review for possible use at closing
4
argument:
5

6
Trial Date Witness
7
January 14, 2010 Egan
8
January 15, 2010 Zia
9
January 19, 2010 Sanders / Badgett
10
January 20, 2010 Kendall
11

12
Plaintiff-Intervenor will maintain the video as strictly confidential pursuant to paragraph 7.3 of
13
the protective order in this case [Doc #425].
14

15

16 Dated: June 2, 2010 DENNIS J. HERRERA


City Attorney
17
THERESE M. STEWART
18 Chief Deputy City Attorney
DANNY CHOU
19 Chief of Complex & Special Litigation
RONALD P. FLYNN
20 VINCE CHHABRIA
ERIN BERNSTEIN
21 CHRISTINE VAN AKEN
MOLLIE M. LEE
22 Deputy City Attorneys
23

24 By: /s/
THERESE M. STEWART
25
Attorneys for Plaintiff-Intervenor
26 CITY AND COUNTY OF SAN FRANCISCO

27

28
Plaintiff-Intervenor's Notice Re Video 1
CASE NO. 09-CV-2292 VRW
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EXHIBIT 24
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2

1
2 IN THE UNITED STATES DISTRICT COURT

3 FOR THE NORTHERN DISTRICT OF CALIFORNIA

4
5 KRISTIN M PERRY, SANDRA B STIER,
PAUL T KATAMI and JEFFREY J
6 ZARRILLO,

7 Plaintiffs,

8 CITY AND COUNTY OF SAN FRANCISCO,

9 Plaintiff-Intervenor,

10 v
For the Northern District of California

11 ARNOLD SCHWARZENEGGER, in his


United States District Court

official capacity as governor of


12 California; EDMUND G BROWN JR, in
his official capacity as attorney
13 general of California; MARK B No C 09-2292 VRW
HORTON, in his official capacity
14 as director of the California ORDER
Department of Public Health and
15 state registrar of vital
statistics; LINETTE SCOTT, in her
16 official capacity as deputy
director of health information &
17 strategic planning for the
California Department of Public
18 Health; PATRICK O’CONNELL, in his
official capacity as clerk-
19 recorder of the County of
Alameda; and DEAN C LOGAN, in his
20 official capacity as registrar-
recorder/county clerk for the
21 County of Los Angeles,

22 Defendants,

23 DENNIS HOLLINGSWORTH, GAIL J


KNIGHT, MARTIN F GUTIERREZ,
24 HAKSHING WILLIAM TAM, MARK A
JANSSON and PROTECTMARRIAGE.COM –
25 YES ON 8, A PROJECT OF
CALIOFORNIA RENEWAL, as official
26 proponents of Proposition 8,

27 Defendant-Intervenors.
/
28
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2

1 The court is in receipt of the letter dated May 18, 2010


2 from a coalition of media organizations informing the court of the
3 media coalition’s interest in recording, broadcasting and
4 webcasting closing arguments in the above-captioned case. Doc
5 #670.
6 The court removed the case from the Ninth Circuit pilot
7 project on audio-video recording and transmission on January 15,
8 2010. Doc #463. No further request to include the case in the
9 pilot program is contemplated. The media coalition’s request is
10 therefore DENIED.
For the Northern District of California

11
United States District Court

12
13 IT IS SO ORDERED.
14
15
16 VAUGHN R WALKER
United States District Chief Judge
17
18
19
20
21
22
23
24
25
26
27
28

2
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EXHIBIT 25
Case:
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4

1 COOPER AND KIRK, PLLC


Charles J. Cooper (DC Bar No. 248070)*
2 ccooper@cooperkirk.com
David H. Thompson (DC Bar No. 450503)*
3 dthompson@cooperkirk.com
Howard C. Nielson, Jr. (DC Bar No. 473018)*
4 hnielson@cooperkirk.com
Nicole J. Moss (DC Bar No. 472424)*
5 nmoss@cooperkirk.com
Peter A. Patterson (OH Bar No. 0080840)*
6 ppatterson@cooperkirk.com
1523 New Hampshire Ave. N.W., Washington, D.C. 20036
7 Telephone: (202) 220-9600, Facsimile: (202) 220-9601

8 LAW OFFICES OF ANDREW P. PUGNO


Andrew P. Pugno (CA Bar No. 206587)
9 andrew@pugnolaw.com
101 Parkshore Drive, Suite 100, Folsom, California 95630
10 Telephone: (916) 608-3065, Facsimile: (916) 608-3066

11 ALLIANCE DEFENSE FUND


Brian W. Raum (NY Bar No. 2856102)*
12 braum@telladf.org
James A. Campbell (OH Bar No. 0081501)*
13 jcampbell@telladf.org
15100 North 90th Street, Scottsdale, Arizona 85260
14 Telephone: (480) 444-0020, Facsimile: (480) 444-0028

15 ATTORNEYS FOR DEFENDANT-INTERVENORS DENNIS HOLLINGSWORTH,


GAIL J. KNIGHT, MARTIN F. GUTIERREZ, MARK A. JANSSON,
16 and PROTECTMARRIAGE.COM – YES ON 8, A
PROJECT OF CALIFORNIA RENEWAL
17
* Admitted pro hac vice
18
UNITED STATES DISTRICT COURT
19 NORTHERN DISTRICT OF CALIFORNIA

20 KRISTIN M. PERRY, SANDRA B. STIER, PAUL


T. KATAMI, and JEFFREY J. ZARRILLO, CASE NO. 09-CV-2292 VRW
21
DECLARATION OF PETER A.
Plaintiffs, PATTERSON IN SUPPOPRT OF
22
DEFENDANT-INTERVENORS
23 CITY AND COUNTY OF SAN FRANCISCO, DENNIS HOLLINGSWORTH, GAIL
J. KNIGHT, MARTIN F. GUTIERREZ,
24 Plaintiff-Intervenor, MARK A. JANSSON,
AND PROTECTMARRIAGE.COM’S
25 v. MOTION FOR ADMINISTRATIVE
RELIEF
26
ARNOLD SCHWARZENEGGER, in his official
27 capacity as Governor of California; EDMUND G.
BROWN, JR., in his official capacity as Attorney
28
DECLARATION OF PETER A. PATTERSON IN SUPPORT OF DEFENDANT-INTERVENORS’
MOTION FOR ADMINISTRATIVE RELIEF
CASE NO. 09-CV-2292 VRW
Case:
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4

1 General of California; MARK B. HORTON, in his


official capacity as Director of the California
2 Department of Public Health and State Registrar of
Vital Statistics; LINETTE SCOTT, in her official
3
capacity as Deputy Director of Health Information
4 & Strategic Planning for the California Department
of Public Health; PATRICK O’CONNELL, in his
5 official capacity as Clerk-Recorder for the County
of Alameda; and DEAN C. LOGAN, in his official
6 capacity as Registrar-Recorder/County Clerk for
7 the County of Los Angeles,

8 Defendants,

9 and

10 PROPOSITION 8 OFFICIAL PROPONENTS


DENNIS HOLLINGSWORTH, GAIL J.
11 KNIGHT, MARTIN F. GUTIERREZ, HAK-
SHING WILLIAM TAM, and MARK A.
12 JANSSON; and PROTECTMARRIAGE.COM –
YES ON 8, A PROJECT OF CALIFORNIA
13 RENEWAL,

14 Defendant-Intervenors.

15

16 Additional Counsel for Defendant-Intervenors

17
ALLIANCE DEFENSE FUND
18 Timothy Chandler (CA Bar No. 234325)
tchandler@telladf.org
19 101 Parkshore Drive, Suite 100, Folsom, California 95630
Telephone: (916) 932-2850, Facsimile: (916) 932-2851
20
Jordan W. Lorence (DC Bar No. 385022)*
21 jlorence@telladf.org
Austin R. Nimocks (TX Bar No. 24002695)*
22 animocks@telladf.org
801 G Street NW, Suite 509, Washington, D.C. 20001
23 Telephone: (202) 393-8690, Facsimile: (202) 347-3622

24 * Admitted pro hac vice

25

26

27

28
DECLARATION OF PETER A. PATTERSON IN SUPPORT OF DEFENDANT-INTERVENORS’
MOTION FOR ADMINISTRATIVE RELIEF
CASE NO. 09-CV-2292 VRW
Case:
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4

1 I, Peter A. Patterson, declare as follows:


2 1. I am an attorney licensed to practice law in the State of Ohio and am admitted pro hac vice
3 in this case. I am an associate at the law firm of Cooper & Kirk, PLLC, counsel of record for
4 Defendant-Intervenors Dennis Hollingsworth, Gail Knight, Martin Gutierrez, Mark Jansson, and
5 ProtectMarriage.com (“Proponents”). I make this declaration in support of Proponents’ Motion for
6 Administrative Relief.
7 2. After closing arguments were held on June 16, 2010, Proponents requested Plaintiffs and
8 Plaintiff-Intervenor promptly to return all copies of the trial video in their possession to the Court,
9 but they denied the request.
10 3. A stipulation could not be reached in this matter because Plaintiffs and Plaintiff-Intervenor
11 declined Proponents’ request to return to the Court all copies of the trial video in their possession.
12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
1
DECLARATION OF PETER A. PATTERSON IN SUPPORT OF DEFENDANT-INTERVENORS’
MOTION FOR ADMINISTRATIVE RELIEF
CASE NO. 09-CV-2292 VRW
t-

Case3:09-cv-02292-VRW
Case: Document697
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ID: 7715321 DktEntry: 4

I I declare, under penalty of perjury under the laws of the United States, that these facts are true and

2 correct and that this Declaration is executed this 29th day of June,2Ol0, at Cincinnati, Ohio.

J
Dated: June 29, 2010
4

10

11

t2
13

l4
15

l6
17

18

t9
20

21

))
23

24

25

26

27

28

DECLARATION OF PETER A. PATTERSON IN SUPPORT OF DEW'


MOTION FOR ADMINISTF.ATIVE RELIEF
CASENO. O9-CV-2292VRW
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EXHIBIT 26
Case:
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Document696
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ID: 7715321 DktEntry:
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4

1 COOPER AND KIRK, PLLC


Charles J. Cooper (DC Bar No. 248070)*
2 ccooper@cooperkirk.com
David H. Thompson (DC Bar No. 450503)*
3 dthompson@cooperkirk.com
Howard C. Nielson, Jr. (DC Bar No. 473018)*
4 hnielson@cooperkirk.com
Nicole J. Moss (DC Bar No. 472424)*
5 nmoss@cooperkirk.com
Peter A. Patterson (OH Bar No. 0080840)*
6 ppatterson@cooperkirk.com
1523 New Hampshire Ave. N.W., Washington, D.C. 20036
7 Telephone: (202) 220-9600, Facsimile: (202) 220-9601

8 LAW OFFICES OF ANDREW P. PUGNO


Andrew P. Pugno (CA Bar No. 206587)
9 andrew@pugnolaw.com
101 Parkshore Drive, Suite 100, Folsom, California 95630
10 Telephone: (916) 608-3065, Facsimile: (916) 608-3066

11 ALLIANCE DEFENSE FUND


Brian W. Raum (NY Bar No. 2856102)*
12 braum@telladf.org
James A. Campbell (OH Bar No. 0081501)*
13 jcampbell@telladf.org
15100 North 90th Street, Scottsdale, Arizona 85260
14 Telephone: (480) 444-0020, Facsimile: (480) 444-0028

15 ATTORNEYS FOR DEFENDANT-INTERVENORS DENNIS HOLLINGSWORTH,


GAIL J. KNIGHT, MARTIN F. GUTIERREZ, MARK A. JANSSON,
16 and PROTECTMARRIAGE.COM – YES ON 8, A
PROJECT OF CALIFORNIA RENEWAL
17
* Admitted pro hac vice
18
UNITED STATES DISTRICT COURT
19 NORTHERN DISTRICT OF CALIFORNIA

20 KRISTIN M. PERRY, SANDRA B. STIER, PAUL


T. KATAMI, and JEFFREY J. ZARRILLO, CASE NO. 09-CV-2292 VRW
21
DEFENDANT-INTERVENORS
Plaintiffs, DENNIS HOLLINGSWORTH, GAIL
22
J. KNIGHT, MARTIN F. GUTIERREZ,
23 CITY AND COUNTY OF SAN FRANCISCO, MARK A. JANSSON,
AND PROTECTMARRIAGE.COM’S
24 Plaintiff-Intervenor, MOTION FOR ADMINISTRATIVE
RELIEF
25 v.
26
ARNOLD SCHWARZENEGGER, in his official
27 capacity as Governor of California; EDMUND G.
BROWN, JR., in his official capacity as Attorney
28 General of California; MARK B. HORTON, in his

DEFENDANT-INTERVENORS’ MOTION FOR ADMINISTRATIVE RELIEF


CASE NO. 09-CV-2292 VRW
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4

1 official capacity as Director of the California


Department of Public Health and State Registrar of
2 Vital Statistics; LINETTE SCOTT, in her official
capacity as Deputy Director of Health Information
3
& Strategic Planning for the California Department
4 of Public Health; PATRICK O’CONNELL, in his
official capacity as Clerk-Recorder for the County
5 of Alameda; and DEAN C. LOGAN, in his official
capacity as Registrar-Recorder/County Clerk for
6 the County of Los Angeles,
7
Defendants,
8
and
9
PROPOSITION 8 OFFICIAL PROPONENTS
10 DENNIS HOLLINGSWORTH, GAIL J.
KNIGHT, MARTIN F. GUTIERREZ, HAK-
11 SHING WILLIAM TAM, and MARK A.
JANSSON; and PROTECTMARRIAGE.COM –
12 YES ON 8, A PROJECT OF CALIFORNIA
RENEWAL,
13
Defendant-Intervenors.
14

15
Additional Counsel for Defendant-Intervenors
16

17 ALLIANCE DEFENSE FUND


Timothy Chandler (CA Bar No. 234325)
18 tchandler@telladf.org
101 Parkshore Drive, Suite 100, Folsom, California 95630
19 Telephone: (916) 932-2850, Facsimile: (916) 932-2851

20 Jordan W. Lorence (DC Bar No. 385022)*


jlorence@telladf.org
21 Austin R. Nimocks (TX Bar No. 24002695)*
animocks@telladf.org
22 801 G Street NW, Suite 509, Washington, D.C. 20001
Telephone: (202) 393-8690, Facsimile: (202) 347-3622
23
* Admitted pro hac vice
24

25

26

27

28

DEFENDANT-INTERVENORS’ MOTION FOR ADMINISTRATIVE RELIEF


CASE NO. 09-CV-2292 VRW
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1 TO THE PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE


2 NOTICE that pursuant to Civ. L.R. 7-11, Defendant-Intervenors Hollingsworth, Knight, Gutierrez,
3 Jansson, and ProtectMarriage.com (“Proponents”) hereby move the Court for an order requiring
4 Plaintiffs and Plaintiff-Intervenor to return to the Court immediately all copies of the trial video in
5 their possession.
6 BACKGROUND
7 On January 13, 2010, the Supreme Court stayed this Court’s order that the trial proceedings
8 in this case be recorded and broadcast beyond the San Francisco federal courthouse. Hollingsworth
9 v. Perry, 130 S. Ct. 705, 714-15 (2010). The stay remains in effect. Id.
10 In court the next day, Proponents asked “for clarification … that the recording of these
11 proceedings has been halted, the tape recording itself.” Trial Tr. 753. When the Court responded
12 that the recording had “not been altered,” Proponents reiterated that, “in light of the stay, … the
13 court’s local rule … prohibit[s] continued tape recording of the proceedings.” Id. at 753-54
14 (emphasis added). Rejecting Proponents’ objection, the Court stated that the “local rule permits …
15 recording for purposes of use in chambers and that is customarily done when we have these remote
16 courtrooms or the overflow courtrooms.” Id. (emphasis added). The Court concluded, “that’s the
17 purpose for which the recording is going to be made going forward.” Id.
18 On May 31, the Court sua sponte announced: “In the event any party wishes to use portions
19 of the trial recording during closing arguments, a copy of the video can be made available to the
20 party.” Doc #672 at 2. Plaintiffs and Plaintiff-Intervenor each requested and obtained copies of the
21 trial video—the former requesting the entire video, the latter the testimony of certain witnesses.
22 See Doc ##674, 675.
23 Closing arguments were held on June 16. Proponents thereafter requested Plaintiffs and
24 Plaintiff-Intervenor promptly to return all copies of the trial video in their possession to the Court,
25 but they denied the request. See Decl. or Peter A. Patterson in Support of Proponents’ Motion for
26 Administrative Relief.
27 ARGUMENT
28 Now that closing arguments are complete, the sole purpose identified by this Court for
1
DEFENDANT-INTERVENORS’ MOTION FOR ADMINISTRATIVE RELIEF
CASE NO. 09-CV-2292 VRW
Case:
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1 disseminating copies of the trial video to Plaintiffs and Plaintiff-Intervenor—potential use at


2 closing argument—has been satisfied. There is simply no legitimate justification for permitting
3 Plaintiffs and Plaintiff-Intervenor to maintain possession of copies of the trial video.
4 What is more, in issuing its stay order, the Supreme Court held that “irreparable harm”
5 would “likely result” from public broadcast of the trial. Hollingsworth, 130 S. Ct. at 712. The risk
6 of such harm, of course, does not depend on the means by which a trial recording is made public.
7 And even with this Court’s requirement that all copies of the trial video be “maintain[ed] as strictly
8 confidential,” Doc #672 at 2, it cannot be denied that dissemination beyond the confines of the
9 Court has increased the possibility of accidental public disclosure. In light of this possibility, we
10 respectfully submit that there is no justification for this Court to permit Plaintiffs and Plaintiff-
11 Intervenor to maintain copies of the trial recording.
12 CONCLUSION
13 For these reasons, Proponents request an order directing Plaintiffs and Plaintiff-Intervenor
14 to return to the Court immediately all copies of the trial video in their possession.
15

16 Dated: June 29, 2010

17 COOPER AND KIRK, PLLC


ATTORNEYS FOR DEFENDANT-INTERVENORS
18 DENNIS HOLLINGSWORTH, GAIL J. KNIGHT,
MARTIN F. GUTIERREZ, MARK A. JANSSON, AND
19 PROTECTMARRIAGE.COM – YES ON 8, A PROJECT
OF CALIFORNIA RENEWAL
20
By: /s/Charles J. Cooper
21 Charles J. Cooper
22

23

24

25

26

27

28
2
DEFENDANT-INTERVENORS’ MOTION FOR ADMINISTRATIVE RELIEF
CASE NO. 09-CV-2292 VRW
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EXHIBIT 27
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1 GIBSON, DUNN & CRUTCHER LLP


Theodore B. Olson, SBN 38137
2 tolson@gibsondunn.com
Matthew D. McGill, pro hac vice
3 1050 Connecticut Avenue, N.W., Washington, D.C. 20036
Telephone: (202) 955-8668, Facsimile: (202) 467-0539
4 Theodore J. Boutrous, Jr., SBN 132009
tboutrous@gibsondunn.com
5 Christopher D. Dusseault, SBN 177557
Ethan D. Dettmer, SBN 196046
6 333 S. Grand Avenue, Los Angeles, California 90071
Telephone: (213) 229-7804, Facsimile: (213) 229-7520
7 BOIES, SCHILLER & FLEXNER LLP
David Boies, pro hac vice
8 dboies@bsfllp.com
333 Main Street, Armonk, New York 10504
9 Telephone: (914) 749-8200, Facsimile: (914) 749-8300
Jeremy M. Goldman, SBN 218888
10 jgoldman@bsfllp.com
1999 Harrison Street, Suite 900, Oakland, California 94612
11 Telephone: (510) 874-1000, Facsimile: (510) 874-1460
Attorneys for Plaintiffs
12 KRISTIN M. PERRY, SANDRA B. STIER,
PAUL T. KATAMI, and JEFFREY J. ZARRILLO
13 Dennis J. Herrera, SBN 139669
Therese M. Stewart, SBN 104930
14 Danny Chou, SBN 180240
15 One Dr. Carlton B. Goodlett Place
San Francisco, California 94102-4682
16 Telephone: (415) 554-4708, Facsimile (415) 554-4699
Attorneys for Plaintiff-Intervenor
17 CITY AND COUNTY OF SAN FRANCISCO

18 UNITED STATES DISTRICT COURT


NORTHERN DISTRICT OF CALIFORNIA
19

20 KRISTIN M. PERRY, et al., CASE NO. 09-CV-2292 VRW


Plaintiffs,
21 PLAINTIFFS’ AND PLAINTIFF-
and INTERVENOR’S OPPOSITION TO
22 DEFENDANT-INTERVENORS’ MOTION
CITY AND COUNTY OF SAN FRANCISCO, FOR ADMINISTRATIVE RELIEF
23 Plaintiff-Intervenor,
Trial: January 11-27, 2010
v.
24 Closing: June 16, 2010
ARNOLD SCHWARZENEGGER, et al.,
25 Judge: Chief Judge Vaughn R. Walker
Defendants, Magistrate Judge Joseph C. Spero
26 and
Location: Courtroom 6, 17th Floor
PROPOSITION 8 OFFICIAL PROPONENTS
27 DENNIS HOLLINGSWORTH, et al.,
28 Defendant-Intervenors.

Gibson, Dunn &


Crutcher LLP
09-CV-2292 VRW PLAINTIFFS’ AND PLAINTIFF-INTERVENOR’S OPPOSITION TO
DEFENDANT-INTERVENORS’ MOTION FOR ADMINISTRATIVE RELIEF
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1 Plaintiffs and Plaintiff-Intervenor respectfully request that the Court deny Defendant-

2 Intervenors’ motion for administrative relief. Doc #696. On May 31, 2010, the Court informed the

3 parties that the trial video would be made available “[i]n the event any party wishes to use portions of

4 the trial recording during closing arguments.” Doc #672. The Court stated that “[p]arties will of

5 course be obligated to maintain as strictly confidential any copy of the video pursuant to paragraph

6 7.3 of the protective order, Doc #425.” Id. Plaintiffs and Plaintiff-Intervenor both requested copies

7 of the trial video, Docs #674, 675, and Plaintiffs used portions of the video during closing argument.

8 Because this Court has yet to issue its decision and may request additional arguments or

9 briefing before doing so, Defendant-Intervenors’ request for the immediate return of the trial video

10 should be denied as premature. Plaintiffs and Plaintiff-Intervenor respectfully propose that once

11 judgment is entered, the parties and the Court evaluate whether, and to what degree, the trial

12 recording would be useful to the parties or to the Court in connection with any additional proceedings

13 and/or appeal. In the meantime, the protective order remains in place and ensures that the trial

14 recording will not be publicly disclosed.

15 Respectfully submitted,

16 DATED: June 29, 2010 GIBSON, DUNN & CRUTCHER LLP


Theodore B. Olson
17
Theodore J. Boutrous, Jr.
18 Christopher D. Dusseault
Ethan D. Dettmer
19 Matthew D. McGill
Amir C. Tayrani
20 Sarah E. Piepmeier
21 Theane Evangelis Kapur
Enrique A. Monagas
22

23
By: /s/
24 Theodore B. Olson

25 and
26 ///

27 ///

28 ///

Gibson, Dunn & 1


Crutcher LLP
09-CV-2292 VRW PLAINTIFFS’ AND PLAINTIFF-INTERVENOR’S OPPOSITION TO
DEFENDANT-INTERVENORS’ MOTION FOR ADMINISTRATIVE RELIEF
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1 BOIES, SCHILLER & FLEXNER LLP


David Boies
2 Steven C. Holtzman
3 Jeremy M. Goldman
Rosanne C. Baxter
4 Richard J. Bettan
Beko O. Richardson
5 Theodore H. Uno
Joshua Irwin Schiller
6

7 Attorneys for Plaintiffs


KRISTIN M. PERRY, SANDRA B. STIER,
8 PAUL T. KATAMI, and JEFFREY J. ZARRILLO

9 DENNIS J. HERRERA
City Attorney
10
THERESE M. STEWART
11 Chief Deputy City Attorney
DANNY CHOU
12 Chief of Complex and Special Litigation
RONALD P. FLYNN
13 VINCE CHHABRIA
ERIN BERNSTEIN
14
CHRISTINE VAN AKEN
15 MOLLIE M. LEE
Deputy City Attorneys
16

17
By: /s/
18 Therese M. Stewart
19 Attorneys for Plaintiff-Intervenor
20 CITY AND COUNTY OF SAN FRANCISCO

21

22

23

24

25

26

27

28

Gibson, Dunn & 2


Crutcher LLP
09-CV-2292 VRW PLAINTIFFS’ AND PLAINTIFF-INTERVENOR’S OPPOSITION TO
DEFENDANT-INTERVENORS’ MOTION FOR ADMINISTRATIVE RELIEF
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1 ATTESTATION PURSUANT TO GENERAL ORDER NO. 45

2 Pursuant to General Order No. 45 of the Northern District of California, I attest that

3 concurrence in the filing of the document has been obtained from each of the other signatories to this

4 document.

5 By: /s/
Theodore B. Olson
6

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Gibson, Dunn &


Crutcher LLP

09-CV-2292 VRW ATTESTATION PURSUANT TO GENERAL ORDER NO. 45


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EXHIBIT 28
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1
IN THE UNITED STATES DISTRICT COURT
2
FOR THE NORTHERN DISTRICT OF CALIFORNIA
3
4
KRISTIN M PERRY, SANDRA B STIER,
5 PAUL T KATAMI and JEFFREY J
ZARRILLO,
6
Plaintiffs,
7
CITY AND COUNTY OF SAN FRANCISCO,
8
Plaintiff-Intervenor,
9
v
10
ARNOLD SCHWARZENEGGER, in his
For the Northern District of California

11 official capacity as Governor of


United States District Court

California; EDMUND G BROWN JR, in


12 his official capacity as Attorney
General of California; MARK B No C 09-2292 VRW
13 HORTON, in his official capacity
as Director of the California PRETRIAL PROCEEDINGS AND
14 Department of Public Health and TRIAL EVIDENCE
State Registrar of Vital
15 Statistics; LINETTE SCOTT, in her g
official capacity as Deputy
16 Director of Health Information & CREDIBILITY DETERMINATIONS
Strategic Planning for the
17 California Department of Public g
Health; PATRICK O’CONNELL, in his
18 official capacity as Clerk- FINDINGS OF FACT
Recorder of the County of
19 Alameda; and DEAN C LOGAN, in his g
official capacity as Registrar-
20 Recorder/County Clerk for the CONCLUSIONS OF LAW
County of Los Angeles,
21 g
Defendants,
22 ORDER
DENNIS HOLLINGSWORTH, GAIL J
23 KNIGHT, MARTIN F GUTIERREZ, HAK-
SHING WILLIAM TAM, MARK A
24 JANSSON and PROTECTMARRIAGE.COM –
YES ON 8, A PROJECT OF CALIFORNIA
25 RENEWAL, as official proponents
of Proposition 8,
26
Defendant-Intervenors.
27 /

28
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1 Defendant-intervenors, the official proponents of


2 Proposition 8 under California election law (“proponents”), were
3 granted leave in July 2009 to intervene to defend the
4 constitutionality of Proposition 8. Doc #76. On January 8, 2010,
5 Hak-Shing William Tam, an official proponent and defendant-
6 intervenor, moved to withdraw as a defendant, Doc #369; Tam’s
7 motion is denied for the reasons stated in a separate order filed
8 herewith. Plaintiff-intervenor City and County of San Francisco
9 (“CCSF” or “San Francisco”) was granted leave to intervene in
10 August 2009. Doc #160 (minute entry).
For the Northern District of California

11 The court denied plaintiffs’ motion for a preliminary


United States District Court

12 injunction on July 2, 2009, Doc #77 (minute entry), and denied


13 proponents’ motion for summary judgment on October 14, 2009, Doc
14 #226 (minute entry). Proponents moved to realign the Attorney
15 General as a plaintiff; the motion was denied on December 23, 2009,
16 Doc #319. Imperial County, a political subdivision of California,
17 sought to intervene as a party defendant on December 15, 2009, Doc
18 #311; the motion is denied for the reasons addressed in a separate
19 order filed herewith.
20 The parties disputed the factual premises underlying
21 plaintiffs’ claims and the court set the matter for trial. The
22 action was tried to the court January 11-27, 2010. The trial
23 proceedings were recorded and used by the court in preparing the
24 findings of fact and conclusions of law; the clerk is now DIRECTED
25 to file the trial recording under seal as part of the record. The
26 parties may retain their copies of the trial recording pursuant to
27 the terms of the protective order herein, see Doc #672.
28 \\

4
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1 Proponents’ motion to order the copies’ return, Doc #698, is


2 accordingly DENIED.
3
4 PLAINTIFFS’ CASE AGAINST PROPOSITION 8
5 The Due Process Clause provides that no “State [shall]
6 deprive any person of life, liberty, or property, without due
7 process of law.” US Const Amend XIV, § 1. Plaintiffs contend that
8 the freedom to marry the person of one’s choice is a fundamental
9 right protected by the Due Process Clause and that Proposition 8
10 violates this fundamental right because:
For the Northern District of California

11 1. It prevents each plaintiff from marrying the person of


United States District Court

his or her choice;


12
2. The choice of a marriage partner is sheltered by the
13 Fourteenth Amendment from the state’s unwarranted
usurpation of that choice; and
14
3. California’s provision of a domestic partnership —— a
15 status giving same-sex couples the rights and
responsibilities of marriage without providing marriage
16 —— does not afford plaintiffs an adequate substitute for
marriage and, by disabling plaintiffs from marrying the
17 person of their choice, invidiously discriminates,
without justification, against plaintiffs and others who
18 seek to marry a person of the same sex.
19 The Equal Protection Clause provides that no state shall
20 “deny to any person within its jurisdiction the equal protection of
21 the laws.” US Const Amend XIV, § 1. According to plaintiffs,
22 Proposition 8 violates the Equal Protection Clause because it:
23 1. Discriminates against gay men and lesbians by denying
them a right to marry the person of their choice whereas
24 heterosexual men and women may do so freely; and
25 2. Disadvantages a suspect class in preventing only gay men
and lesbians, not heterosexuals, from marrying.
26
27 Plaintiffs argue that Proposition 8 should be subjected to
28 heightened scrutiny under the Equal Protection Clause because gays

5
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EXHIBIT 29
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No. _________
================================================================

In The
Supreme Court of the United States
---------------------------------♦---------------------------------

DENNIS HOLLINGSWORTH, et al.,

Petitioners,
v.

KRISTIN M. PERRY, et al.,

Respondents.

---------------------------------♦---------------------------------

On Petition For A Writ Of Certiorari


To The United States Court Of Appeals
For The Ninth Circuit

---------------------------------♦---------------------------------

PETITION FOR A WRIT OF CERTIORARI

---------------------------------♦---------------------------------

CHARLES J. COOPER
Counsel of Record
MICHAEL W. KIRK
JESSE M. PANUCCIO
COOPER & KIRK, PLLC
1523 New Hampshire Avenue, NW
Washington, D.C. 20036
(202) 220-9600
ccooper@cooperkirk.com
April 8, 2010 Counsel for Petitioners

================================================================
COCKLE LAW BRIEF PRINTING CO. (800) 225-6964
OR CALL COLLECT (402) 342-2831
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11

order denying the mandamus petition, and remand to


the Ninth Circuit with instructions to dismiss the
mandamus petition. See United States v. Munsing-
wear, Inc., 340 U.S. 36 (1950).

I. Petitioners’ Mandamus Petition Is Moot


An “actual controversy must be extant at all
stages of review.” Alvarez v. Smith, 130 S. Ct. 576,
580 (2009) (quotation marks omitted). Where there
had been but “no longer [is] any actual controversy
between the parties,” the case is moot. See id. at 580-
81. The district court’s actions subsequent to the
Court’s issuance of the stay appear to have
eliminated the controversy underlying Petitioners’
mandamus petition and thus to have rendered that
petition moot.
The district court has withdrawn its January
7 order allowing audio-video recording and public
broadcast of the trial proceedings and, concomitantly,
Chief Judge Kozinski has rescinded his order ap-
proving the district court’s broadcast order. The dis-
trict court has also withdrawn the amendment to
Local Rule 77-3 that purportedly authorized its broad-
cast order. Most importantly, the district court re-
peatedly and unequivocally assured Petitioners that
its continued recording of the trial proceedings was
not for the purpose of public dissemination, but rather
solely for that court’s use in chambers. And the
district court has stated that it has not requested
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12

authorization to publicly broadcast the closing


argument.
As a result of these post-stay actions by the dis-
trict court, Petitioners have, in effect, obtained the re-
lief they sought through their mandamus petition;
namely, preventing the district court from enforcing
its order to allow the trial proceedings to be broadcast
publicly or to be recorded for later public dissem-
ination. Indeed, Plaintiffs themselves have acknowl-
edged the “fact that these proceedings would not be
broadcast to the public in any form” after the district
court “withdrew its request to broadcast the pro-
ceedings to other federal courthouses and made clear
that no such broadcast would take place.” App. 26-27.
Petitioners’ mandamus petition, therefore, appears
to be moot. See Williams v. Simons, 355 U.S. 49, 57
(1957) (“By vacating the temporary restraining order
and dismissing the complaint, the District Court has
brought to pass one alternative of the order peti-
tioners would have this Court issue, thus rendering
the petition for all practical purposes moot.”); Cotlow
v. Emison, 502 U.S. 1068 (1992) (“The order of Janu-
ary 10, 1992, having vacated the order from which the
appeal is taken, the appeal is dismissed as moot.”).

II. The Court Should Vacate the Ninth Cir-


cuit’s Order Denying the Mandamus Peti-
tion and Remand for Dismissal
“The established practice of the Court in dealing
with a civil case from a court in the federal system
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13

which has become moot while on its way here or


pending [the Court’s] decision on the merits is to
reverse or vacate the judgment below and remand
with a direction to dismiss.” Munsingwear, 340 U.S.
at 39; see also Alvarez, 130 S. Ct. at 581; 28 U.S.C.
§ 2106. Because Petitioners did not “cause[ ] the
mootness by voluntary action,” the Court “should
follow [its] ordinary practice” in this case: vacate the
Ninth Circuit’s order denying the mandamus petition
and remand to the Ninth Circuit with instructions to
dismiss the mandamus petition as moot. Alvarez, 130
S. Ct. at 582-83 (quotation marks omitted); see also,
e.g., Joint Sch. Dist. No. 241 v. Harris, 515 U.S. 1154,
1155 (1995) (“The petitions for writs of certiorari are
granted. The judgment is vacated and the cases are
remanded to the United States Court of Appeals for
the Ninth Circuit with directions to dismiss as
moot.”) (citing Munsingwear).
---------------------------------♦---------------------------------
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EXHIBIT 30
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Supreme Court of the United States

No. 09-1238

DENNIS HOLLINGSWORTH, ET AL.,


Petitioners
v.

UNITED STATES DISTRICT COURT


FOR THE NORTHERN DISTRICT OF CALIFORNIA, ET AL.

ON PETITION FOR WRIT OF CERTIORARI to the United States

Court of Appeals for the Ninth Circuit.

THIS CAUSE having been submitted on the petition for writ of certiorari

and the response thereto.

ON CONSIDERATION WHEREOF, it is ordered and adjudged by this

Court that the petition for writ of certiorari is granted. The judgment of the above

court is vacated with costs, and the case is remanded to the United States Court of

Appeals for the Ninth Circuit with instructions to dismiss the case as moot. See

United States v. Munsingwear, Inc., 340 U.S. 36 (1950).

IT IS FURTHER ORDERED that the petitioners Dennis Hollingsworth, et

al. recover from United States District Court for the Northern District of California,

et al. Three Hundred Dollars ($300.00) for costs herein expended.

October 4, 2010

Clerk’s costs: $300.00


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EXHIBIT 31
Case:
Case: 10-70063
10-16696 10/15/2010
04/13/2011 Page:
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FILED
UNITED STATES COURT OF APPEALS OCT 15 2010

MOLLY C. DWYER, CLERK


FOR THE NINTH CIRCUIT U .S. C O U R T OF APPE ALS

DENNIS HOLLINGSWORTH, et al., No. 10-70063

Petitioners, D.C. No. 3:09-cv-02292-VRW


Northern District of California,
v. San Francisco

UNITED STATES DISTRICT COURT


FOR THE NORTHERN DISTRICT OF ORDER
CALIFORNIA,

Respondent,

KRISTIN M. PERRY; et al.,

Real Parties in Interest.

Before: SILVERMAN, PAEZ and BEA, Circuit Judges.

On October 4, 2010, the United States Supreme Court granted the petition

for writ of certiorari and vacated the judgment and remanded with instructions to

dismiss this petition as moot. Accordingly, this court’s January 8, 2010 order is

vacated and the petition for writ of mandamus is denied as moot.

KS/MOATT
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EXHIBIT 32
Case: 10-16696
OFFICE04/13/2011 Page: 109EXECUTIVE
OF THE CIRCUIT of 114 ID: 7715321 DktEntry: 338-2
NINTH CIRCUIT CURRENT AND FUTURE VACANCY TABLE

Court Vacancy in Date By Reason of Nominee (If Any) Date Status of Nomination Last
Authorized Judgeship Vacancy Nominated Action (such as referred to
Created Senate Jud. Com.)
Court of Stephen S. Trott 12-31-04 Senior Status No nominee
Appeals Pub. L 110-177 1-21-09 New Position Goodwin Liu 2-24-10, Senate Jud. Com. hearing
9-13-10, held on 3-2-11
1-5-11
Andrew J. Kleinfeld 6-12-10 Senior Status No nominee
Mary M. Schroeder 1-1-12 Senior Status No nominee
Alaska John W. Sedwick 3-13-11 Senior Status No nominee
Arizona Frank R. Zapata 8-3-10 Senior Status No nominee
Mary Helen Murguia 12-22-10 Elevated No nominee
John M. Roll 1-8-11 Deceased No nominee
Cent. Cal. Florence-Marie Cooper 1-15-10 Deceased John A. Kronstadt 11-17-10, Senate Jud. Com. approval on
1-5-11 3-10-11
Stephen G. Larson 11-2-09 Resigned No nominee
A. Howard Matz 7-11-11 Senior Status No nominee

No. Cal. Martin J. Jenkins 4-3-08 Resigned Edward M. Chen 8-6-09, Senate Jud. Com. approval on
1-20-10, 3-17-11
9-13-10
1-5-11
Vaughn R. Walker 2-28-11 Retirement No nominee

Last updated 3-17-11


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Court Vacancy in Date By Reason of Nominee (If Any) Date Status of Nomination Last
Authorized Judgeship Vacancy Nominated Action (such as referred to
Created Senate Jud. Com.)
So. Cal Jeffrey T. Miller 6-6-10 Senior Status No nominee
Thomas J. Whelan 8-15-10 Senior Status No nominee

Montana Donald W. Molloy 8-16-01 Senior Status No nominee


Nevada Roger L. Hunt 5-26-11 Senior Status No nominee
NMI Alex R. Munson 2-28-10 Retirement Ramona Villagomez 1-26-11 Senate Jud. Com. hearing
Manglona held on 3-16-11
Oregon Ancer L. Haggerty 8-26-09 Senior Status Michael H. Simon 7-14-10, Senate Jud. Com. approval on
1-5-11 2-17-11
East. Wa. Robert H. Whaley 7-12-09 Senior Status No nominee

Last updated 3-17-11


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EXHIBIT 33
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REPORT OF THE PROCEEDINGS


OF THE JUDICIAL CONFERENCE
OF THE UNITED STATES

September 14, 2010

The Judicial Conference of the United States convened in Washington,


D.C., on September 14,2010, pursuant to the call ofthe ChiefJustice of the
United States issued under 28 U.S.C. § 331. The ChiefJustice presided, and
the following members ofthe Conference were present:

First Circuit:

Chief Judge Sandra L. Lynch


ChiefJudge Mark L. Wolf,
District of Massachusetis

Second Circuit:

Chief Judge Dennis Jacobs


Chief Judge William K. Sessions III,
District of Vermont

Third Circuit:

Chief Judge Theodore A. McKee


Chief Judge Harvey Bartle III,
Eastern District of Pennsylvania
Fourth Circuit:

Chief Judge William B. Traxler, Jr.


Judge James P. Jones,
Western District of Virginia

Fifth Circuit:

Chief Judge Edith Hollan Jones


Judge Sim Lake III,
Southern District of Texas
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Judicial Conference of the United States September 14, 2010

cost-containment initiatives to date and noted that the long-term financial


health of the judiciary will be aided by future cost-containment efforts that
provide tangible cost savings or avoidances.

COMMITTEE ON CODES OF CONDUCT

COMMITTEE ACTIVITIES

The Committee on Codes of Conduct reported that since its last report
to the Judicial Conference in March 2010, the Committee received 17
new written inquiries and issued 17 written advisory responses. During this
period, the average response time for requests was 22 days. In addition, the
Committee chair responded to 159 informal inquiries, individual Committee
members responded to 133 informal inquiries, and Committee counsel
responded to 358 informal inquiries.

COMMITTEE ON COURT ADMINISTRATION


AND CASE MANAGEMENT

CAMERAS IN THE COURTROOM PILOT PROJECT

On recommendation ofthe Committee on Court Administration and


Case Management, the Judicial Conference authorized a pilot project to
evaluate the effect of cameras in district court courtrooms, of video recordings
of proceedings therein, and of publication of such video recordings. The pilot
project will proceed in accordance with the tenets outlined below, and is
subject to definition and review by the Committee. In addition, the
Committee will request that a study ofthe pilot be conducted by the Federal
Judicial Center.

a. The pilot will be national in scope and consist of up to 150 individual


judges from districts chosen to participate by the Federal Judicial
Center, in consultation with the Court Administration and Case
Management Committee. The pilot project should include a national
survey of all district judges, whether or not they participate in the pilot,
to determine their views on cameras in the courtroom.

II
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Judicial Conference of the United States September 14, 2010

b. The pilot will last up to three years, with interim reports prepared by
the Federal Judicial Center after the first and second years.

c. The pilot will be limited to civil cases only.

d. Courts participating in the pilot will record proceedings, and


recordings by other entities or persons will not be allowed.

e. Parties in a trial must consent to participating in the pilot.

f. Recording of members of a jury will not be permitted at any time.

g. Courts participating in the pilot should - if necessary - amend their


local rules (providing adequate public notice and opportunity to
comment) to provide an exception for judges participating in the
Judicial Conference-authorized pilot proj ect.

h. The Court Administration and Case Management Committee is


authorized to issue and amend guidelines to assist the pilot
participants.

I. The Administrative Office is authorized to provide funding to the


courts with participating judges - if needed - for equipment and
training necessary to participate in the pilot.

PACER ACCESS TO CERTAIN BANKRUPTCY FILINGS

Under the Judicial Conference policy on privacy and public access to


electronic case files, bankruptcy filings should include only the last four digits
of filers' social security numbers on their petitions and other public documents
(JCUS-SEP/OCT 01, pp. 48-50). However, documents filed prior to
implementation of the policy in 2003 are still available on the Public Access
to Court Electronic Records (PACER) system and contain the debtors' full
social security numbers, creating privacy concerns. To address those
concerns, on recommendation of the Committee, the Judicial Conference
agreed to amend its privacy policy to restrict public access through PACER to
documents in bankruptcy cases that were filed before December 1, 2003 and
have been closed for more than one year, with the following conditions:

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