Perry et al v. Schwarzenegger et al

Filing 816

MOTION to Stay Pending Appeal filed by Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com - Yes on 8, A Project of California Renewal. Motion Hearing set for 10/28/2011 09:00 AM in Courtroom 9, 19th Floor, San Francisco before Hon. James Ware. Responses due by 10/7/2011. Replies due by 10/14/2011. (Attachments: # 1 Exhibit 1-26, # 2 Exhibit 27-29, # 3 Exhibit 30-36, # 4 Proposed Order Proposed Order)(Cooper, Charles) (Filed on 9/23/2011)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 COOPER AND KIRK, PLLC Charles J. Cooper (DC Bar No. 248070)* ccooper@cooperkirk.com David H. Thompson (DC Bar No. 450503)* dthompson@cooperkirk.com Howard C. Nielson, Jr. (DC Bar No. 473018)* hnielson@cooperkirk.com Nicole J. Moss (DC Bar No. 472424)* nmoss@cooperkirk.com Peter A. Patterson (OH Bar No. 0080840)* ppatterson@cooperkirk.com 1523 New Hampshire Ave. N.W., Washington, D.C. 20036 Telephone: (202) 220-9600, Facsimile: (202) 220-9601 LAW OFFICES OF ANDREW P. PUGNO Andrew P. Pugno (CA Bar No. 206587) andrew@pugnolaw.com 101 Parkshore Drive, Suite 100, Folsom, California 95630 Telephone: (916) 608-3065, Facsimile: (916) 608-3066 ALLIANCE DEFENSE FUND Brian W. Raum (NY Bar No. 2856102)* braum@telladf.org James A. Campbell (OH Bar No. 0081501)* jcampbell@telladf.org 15100 North 90th Street, Scottsdale, Arizona 85260 Telephone: (480) 444-0020, Facsimile: (480) 444-0028 ATTORNEYS FOR DEFENDANT-INTERVENORS DENNIS HOLLINGSWORTH, GAIL J. KNIGHT, MARTIN F. GUTIERREZ, MARK A. JANSSON, and PROTECTMARRIAGE.COM – YES ON 8, A PROJECT OF CALIFORNIA RENEWAL * Admitted pro hac vice 18 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA 19 20 21 KRISTIN M. PERRY, SANDRA B. STIER, PAUL CASE NO. 09-CV-2292 JW T. KATAMI, and JEFFREY J. ZARRILLO, Plaintiffs, 22 23 CITY AND COUNTY OF SAN FRANCISCO, 24 25 26 27 28 Plaintiff-Intervenor, v. DEFENDANT-INTERVENORS DENNIS HOLLINGSWORTH, GAIL J. KNIGHT, MARTIN F. GUTIERREZ, MARK A. JANSSON, AND PROTECTMARRIAGE.COM’S MOTION FOR STAY PENDING APPEAL Chief Judge James Ware EDMUND G. BROWN, JR., in his official capacity Date: as Governor of California; KAMALA D. HARRIS, Time: Location: in his official capacity as Attorney General of California; MARK B. HORTON, in his official October 28, 2011 9 a.m. Courtroom 9, 19th Floor DEFENDANT-INTERVENORS‘ MOTION FOR STAY PENDING APPEAL CASE NO. 09-CV-2292 VRW 1 2 3 4 5 6 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, 7 Defendants, 8 and 9 PROPOSITION 8 OFFICIAL PROPONENTS DENNIS HOLLINGSWORTH, GAIL J. KNIGHT, MARTIN F. GUTIERREZ, HAKSHING WILLIAM TAM, and MARK A. JANSSON; and PROTECTMARRIAGE.COM – YES ON 8, A PROJECT OF CALIFORNIA RENEWAL, 10 11 12 13 Defendant-Intervenors. 14 15 Additional Counsel for Defendant-Intervenors 16 17 18 19 ALLIANCE DEFENSE FUND Timothy Chandler (CA Bar No. 234325) tchandler@telladf.org 101 Parkshore Drive, Suite 100, Folsom, California 95630 Telephone: (916) 932-2850, Facsimile: (916) 932-2851 22 Jordan W. Lorence (DC Bar No. 385022)* jlorence@telladf.org Austin R. Nimocks (TX Bar No. 24002695)* animocks@telladf.org 801 G Street NW, Suite 509, Washington, D.C. 20001 Telephone: (202) 393-8690, Facsimile: (202) 347-3622 23 * Admitted pro hac vice 20 21 24 25 26 27 28 DEFENDANT-INTERVENORS‘ MOTION FOR STAY PENDING APPEAL CASE NO. 09-CV-2292 VRW 1 TO THE PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE 2 NOTICE that, on October 28, 2011, or as soon as the matter may be heard, before the Honorable 3 James Ware, United States District Court, Northern District of California, 450 Golden Gate 4 Avenue, San Francisco, California, Defendant-Intervenors Hollingsworth, Knight, Gutierrez, 5 Jansson, and ProtectMarriage.com (―Proponents‖) will move the Court for a stay pending appeal.1 6 The issue to be decided is: Are Proponents entitled to a stay pending appeal? 7 ―In 1996, the Judicial Conference of the United States adopted a policy opposing the public 8 broadcast of [trial] court proceedings.‖ Hollingsworth v. Perry, 130 S. Ct. 705, 711 (2010); see also 9 Ex. 2 at 54. This policy was rooted in ―decades of experience and study‖ showing the potentially 10 negative impact of broadcasting on trial proceedings. Ex. 3 at 1; see also Hollingsworth, 130 S. Ct. 11 at 711-12; Ex. 4 at 46-47. In July 2009 the Judicial Conference forcefully reiterated to Congress its 12 conclusion that the ―negative [e]ffects of cameras in trial court proceedings far outweigh any 13 potential benefits.‖ Ex. 3 at 1. 14 Also in 1996, the Ninth Circuit Judicial Council ―voted to adopt the policy of the Judicial 15 Conference of the United States regarding the use of cameras in the courts.‖ Ex. 5. The Council‘s 16 policy thus provided: ―The taking of photographs and radio and television coverage of court 17 proceedings in the United States district courts is prohibited.‖ Id. ―[T]his policy [was] . . . binding 18 on all courts within the Ninth Circuit.‖ Id. Accordingly, this Court adopted Local Rule 77-3, which 19 prohibits the ―taking of photographs, public broadcasting or televising, or recording for those 20 purposes in the courtroom or its environs, in connection with any judicial proceeding.‖ 21 Hollingsworth, 130 S. Ct. at 710-11 (quoting Rule 77-3); see also id. at 707 (Rule 77-3 ―forbid[s] 22 the broadcasting of trials outside the courthouse in which a trial takes place‖); Ex. 6. 23 24 Despite these authorities and the Supreme Court‘s decision in this very case enforcing them, this Court ordered that video recordings of the trial proceedings in this case be unsealed and made 25 1 26 27 28 Although we have noticed this motion for the next available date on this Court‘s calendar that is at least 35 days from today, see Civ. L.R. 7-2(a), we are also filing a motion asking the Court to expedite its consideration of our stay motion. Specifically, we request that the Court rule on our stay motion before it is mooted by operation of the Court‘s order unsealing the video-recording on September 30, 2011. 1 DEFENDANT-INTERVENORS‘ MOTION FOR STAY PENDING APPEAL CASE NO. 09-CV-2292 VRW 1 available to the public. Ex. 1 at 13. And it did so even though these recordings owed their very 2 existence to the Court‘s solemn assurance, in open court, that they would not be used for ―purposes 3 of public broadcasting or televising.‖ Ex. 7 at 754:21-23. Not only was this assurance necessary to 4 comply with Rule 77-3 and the policies of the Judicial Conference and this Court‘s Judicial 5 Council, but it came on the heels of an emergency Supreme Court decision specifically enforcing 6 Rule 77-3 after then-Chief Judge Walker had ordered the trial to be broadcast. The Court‘s decision thus goes beyond simply violating a binding rule, disregarding 7 8 longstanding judicial policies, and directly defying the Supreme Court‘s ruling in this very case 9 (though any of these errors would alone be fatal). Rather, by setting at naught the solemn 10 commitments made by a federal judge on which litigants and witnesses relied to their detriment, the 11 decision threatens deep and lasting harm to the integrity and credibility of the federal judiciary. As 12 explained more fully below, the ruling unsealing the video-recordings should be stayed pending 13 appeal. 14 STATEMENT OF FACTS 15 Two same-sex couples filed this suit claiming that Proposition 8, which provides that 16 ―[o]nly marriage between a man and a woman is valid or recognized in California,‖ Cal. Const. art. 17 I, § 7.5, violates the Federal Constitution. The case was assigned to the Honorable Vaughn R. 18 Walker, who at the time was Chief Judge of this Court. Correctly anticipating that the state officials 19 named as defendants would refuse to defend Proposition 8, the official proponents of the measure 20 and their official campaign committee (collectively ―Proponents‖) successfully moved to intervene. 21 As the case proceeded, Chief Judge Walker expressed a strong desire to publicly broadcast 22 the forthcoming trial, notwithstanding Proponents‘ repeated warning that several of their witnesses 23 would decline to testify. See, e.g., Ex. 26 at 7. On January 6, 2010, (five days before the start of 24 trial) he ordered that it be broadcast daily via the internet. Hollingsworth, 130 S. Ct. at 707; Ex. 8 at 25 16-17. Chief Judge Walker‘s determined effort to broadcast the trial, and the procedural 26 irregularities it occasioned, are recounted in detail in the Supreme Court‘s decision staying Chief 27 Judge Walker‘s order and prohibiting the public broadcast of the trial. See Hollingsworth, 130 S. 28 Ct. at 708-09, 711-12, 714-15. It suffices to repeat the Supreme Court‘s conclusion: ―The District 2 DEFENDANT-INTERVENORS‘ MOTION FOR STAY PENDING APPEAL CASE NO. 09-CV-2292 VRW 1 Court here attempted to revise its rules in haste, contrary to federal statutes and the policy of the 2 Judicial Conference of the United States,‖ solely ―to allow broadcasting of this high-profile trial 3 without any considered standards or guidelines in place.‖ Id. at 713; see also id. (Chief Judge 4 Walker‘s order ―complied neither with existing rules or policies nor the required procedures for 5 amending them‖). 6 Despite the Supreme Court‘s ruling, Chief Judge Walker insisted on video-recording the 7 trial over Proponents‘ objection. See Ex. 8 at 16:12-18; Ex. 9 at 1; Ex. 7 at 753:22-754:6. In 8 rejecting Proponents‘ objection, Chief Judge Walker stated that Rule 77-3 ―permits . . . recording 9 for purposes of use in chambers,‖ and that the recordings ―would be quite helpful to [him] in 10 preparing the findings of fact.‖ Id. at 754:15-19. He assured Proponents that ―that‘s the purpose for 11 which the recording is going to be made going forward. But it’s not going to be for purposes of 12 public broadcasting or televising.‖ Id. at 754:21-23 (emphasis added). 13 On May 31, Chief Judge Walker sua sponte invited the parties ―to use portions of the trial 14 recording during closing arguments‖ and made ―a copy of the video . . . available to the part[ies].‖ 15 Ex. 11. The parties were instructed to ―maintain as strictly confidential any copy of the video 16 pursuant to paragraph 7.3 of the protective order,‖ id., which restricts ―highly confidential‖ material 17 to the parties‘ outside counsel and experts and to the district court and its personnel. Ex. 12 at 8. 18 Plaintiffs and Plaintiff-intervenor City and County of San Francisco requested and were given 19 copies of the recording of the trial proceedings, see Ex. 13, portions of which were played during 20 closing argument, see Ex. 14. Separately, Chief Judge Walker denied a request by a media coalition 21 to broadcast closing argument outside the courthouse. See Ex. 16. 22 Proponents moved for the return of all videos to the Court after closing argument, but Chief 23 Judge Walker denied the motion and ―DIRECTED‖ the Court Clerk to ―file the trial recording 24 under seal as part of the record‖ and allowed Plaintiffs (and San Francisco) to ―retain their copies 25 of the trial recording pursuant to the terms of the protective order.‖ Ex. 17 at 4. Elsewhere in the 26 same order, Chief Judge Walker stated that ―the potential for public broadcast‖ of the trial 27 proceedings ―had been eliminated.‖ Id. at 35-36. 28 Meanwhile, Proponents petitioned the Supreme Court for review and vacatur of the Ninth 3 DEFENDANT-INTERVENORS‘ MOTION FOR STAY PENDING APPEAL CASE NO. 09-CV-2292 VRW 1 Circuit‘s ruling, issued before the Supreme Court‘s stay, denying their mandamus petition seeking 2 to prohibit broadcast of the trial. Proponents argued that, in light of Chief Judge Walker‘s 3 ―unequivocal[] assur[ances] that [his] continued recording of the trial proceedings was not for the 4 purpose of public dissemination, but rather solely for [this] court‘s use in chambers,‖ the Ninth 5 Circuit‘s mandamus ruling should be vacated as moot. Ex. 18 at 11-13. The Supreme Court granted 6 the petition and vacated the Ninth Circuit‘s ruling. See Ex. 19. 7 Despite Rule 77-3, the policies of the Judicial Conference and the Ninth Circuit‘s Judicial 8 Council, the Supreme Court‘s prior decision in this case, the sealing order, and his own solemn 9 commitment in open court, on February 18, 2011, Chief Judge Walker began to broadcast portions 10 of the video recordings of the trial in connection with his teaching and public speaking. See Ex. 20 11 at 1-2. After learning of Chief Judge Walker‘s activities, Proponents promptly moved this Court to 12 order the return of all copies of the trial recordings. The Court denied this motion, Ex. 21 at 4, and 13 subsequently granted Plaintiffs‘ cross-motion to unseal the recordings, Ex. 1 at 13. At Proponents‘ 14 request, see Ex. 23 at 54:14-18, the Court granted a temporary stay of its ruling that will expire on 15 September 30, 2011, Ex. 1 at 14. 2 The Court did not, however, rule on Proponents‘ request for a 16 stay pending appeal. Ex. 23 at 54:14-18. Proponents noticed an appeal on September 22, 2011. 17 This Court retains jurisdiction to stay its own order while an appeal is pending. See In re 18 Padilla, 222 F.3d 1184, 1190 (9th Cir. 2000) (―[A] district court has jurisdiction to take actions that 19 preserve the status quo during the pendency of an appeal.‖). 20 21 22 ARGUMENT Four factors guide this Court‘s consideration of Proponents‘ emergency petition for a stay pending appeal: (1) Proponents‘ likelihood of success on the merits, (2) the possibility of 23 24 25 26 27 28 2 Former Chief Judge Walker voluntarily lodged his copy of the recordings with this Court pending resolution of Proponents‘ motion and Plaintiffs‘ cross-motion. See Ex. 22. In its order granting Plaintiffs‘ cross-motion to unseal, this Court ordered that Chief Judge Walker‘s tapes be returned to him and, ―in light of the Court‘s disposition of the Motion to Unseal,‖ denied ―as moot‖ Proponents ―request for an order directing Judge Walker to comply with the Protective Order sealing the recording of the trial.‖ Ex. 1 at 1314 & n.24. Given that its denial of this request appears to rest on its disposition of the motion to unseal, Proponents‘ understand that this portion of the Court‘s ruling is subject to the temporary stay and would be subject to any stay pending appeal, as well. 4 DEFENDANT-INTERVENORS‘ MOTION FOR STAY PENDING APPEAL CASE NO. 09-CV-2292 VRW 1 irreparable harm absent a stay; (3) the possibility of substantial injury to other parties if a stay is 2 issued; and (4) the public interest. See Golden Gate Rest. Ass’n v. San Francisco, 512 F.3d 1112, 3 1115 (9th Cir. 2008)). These factors all point to the same conclusion: This Court should ―suspend[] 4 judicial alteration of the status quo‖ by staying its unsealing order pending appeal. Nken v. Holder, 5 129 S. Ct. 1749, 1758 (2009). 6 I. Proponents’ appeal is likely to succeed. 7 A. The unsealing order contravenes Rule 77-3, the policies of the Judicial 8 Conference and the Ninth Circuit Judicial Council, and the Supreme 9 Court’s previous decision in this case. 10 As this Court implicitly recognized in grounding its ruling in the public‘s common law right 11 of access to judicial records, unsealing the video-recordings will intentionally and inevitably lead to 12 their public broadcast outside ― ‗the confines of the courthouse.‘ ‖ Hollingsworth, 130 S. Ct. at 711 13 (quoting Rule 77-3). The order unsealing the recordings thus is contrary to Rule 77-3, as well as the 14 longstanding policies of the Judicial Conference and the Ninth Circuit Judicial Council. It is also 15 contrary to the Supreme Court‘s prior ruling in this case. 16 17 18 19 20 21 22 1. Rule 77-3, which ―has the force of law,‖ Hollingsworth, 130 S. Ct. at 711, provides in relevant part as follows: 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 or the Judicial Conference of the United States, 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. 23 24 25 26 27 28 Ex. 6. As the Supreme Court recognized, this rule prohibits not only ―public broadcasting or televising‖ of trial proceedings, but also ―recording for those purposes.‖ Id. at 710-11 (quoting Rule 77-3).3 Accordingly, Chief Judge Walker‘s decision to record the trial proceedings over 3 The version of Rule 77-3 in force at the time of the Supreme Court‘s decision in Hollingsworth did not contain an exception for public broadcast in connection with a pilot program (though the district court had attempted unlawfully to amend the rule to create (Continued) 5 DEFENDANT-INTERVENORS‘ MOTION FOR STAY PENDING APPEAL CASE NO. 09-CV-2292 VRW 1 Proponents‘ objection was lawful only on his representation that the recordings would not be 2 publicly broadcast beyond ―the confines of the courthouse.‖4 3 Furthermore, although the Court suggested that ―Rule 77-3 speaks only to the creation of 4 digital recordings of judicial proceedings for particular purposes or uses,‖ Ex. 1 at 10, the Rule‘s 5 separate prohibition against ―public broadcasting or televising‖ of trial proceedings outside ―the 6 confines of the court house,‖ Ex. 6, applies by its plain terms regardless of when the public 7 dissemination occurs. Indeed, the Rule‘s reference to ―recording for these purposes‖ can only be 8 understood as extending the prohibition against ―public broadcasting or televising‖ to subsequent 9 broadcasts of recorded proceedings. Accordingly, regardless of whether the act of recording a 10 particular trial itself is contrary to Rule 77-3, the subsequent public dissemination of trial recordings 11 clearly runs afoul of the distinct ―prohibit[ion against] the streaming of transmissions, or other 12 broadcasting or televising, beyond the ‗confines of the courthouse.‘ ‖ Hollingsworth, 130 S. Ct. at 13 711 (quoting Rule 77-3). Thus, contrary to the Court‘s suggestion that ―[n]othing in the language of 14 Rule 77-3 governs whether digital recordings may be placed into the record,‖ Ex. 1 at 10, Chief 15 Judge Walker‘s decision to place the trial recordings in the record would have violated this Rule but 16 for his order sealing the recordings and thereby preventing their public dissemination. And lifting 17 the seal to permit public broadcasting of the trial proceedings will likewise violate the Rule. Indeed, 18 any other reading of Rule 77-3 would render it a nullity, for it would give judges determined to 19 broadcast trial proceedings publicly a blueprint for doing so. That cannot be the law. 20 21 22 23 24 25 26 27 28 2. By permitting public broadcast of the trial in this case, the Court‘s order is also contrary (Cont‘d) such an exception). See Hollingsworth, 130 S. Ct. at 712. As discussed below, the public broadcast of the trial proceedings in this case is plainly not authorized in connection with any pilot program. 4 Chief Judge Walker‘s decision to permit Plaintiffs to play portions of these videorecordings during closing arguments may have violated his assurance that the recordings would be ―simply for use in chambers,‖ Ex. 7 at 754:24-755:4. The closing arguments themselves were not publicly broadcast outside the courthouse, however, and parties were required ―to maintain as strictly confidential‖ their copies of the recordings ―pursuant to . . . the protective order.‖ Ex. 11 at 2. Accordingly, the use of the video-recordings in connection with closing arguments did not violate Rule 77-3‘s prohibition on public broadcast outside the confines of the courthouse. Nor did it violate Judge Walker‘s assurance, made with reference to this rule, that the recordings would not be used ―for purposes of public broadcast or televising.‖ Ex. 7 at 754:21-23. 6 DEFENDANT-INTERVENORS‘ MOTION FOR STAY PENDING APPEAL CASE NO. 09-CV-2292 VRW 1 to the express policy of the Judicial Conference, which is ―at the very least entitled to respectful 2 consideration,‖ Hollingsworth, 130 S. Ct. at 711-12, and of the Ninth Circuit‘s Judicial Council, 3 which is ―binding on all courts within the Ninth Circuit,‖ Ex. 5. This Court‘s disregard of these 4 policies is plainly a serious matter. See In re Complaint Against Dist. Judge Joe Billy McDade, No. 5 07-09-90083 (7th Cir. Sept. 28, 2009) (Easterbrook, C.J.); In re Sony BMG Music Entm’t, 564 F.3d 6 1 (1st Cir. 2009). 7 Noting the Ninth Circuit‘s announcement, on December 17, 2009, of a pilot program ―to 8 allow the use of cameras in certain district court proceedings,‖ this Court suggested that ―at the time 9 the digital recording was made, it was the policy of the Ninth Circuit that the recording of civil non- 10 jury district court proceedings was permissible.‖ Ex. 1 at 11-12. The Judicial Council, however, is 11 authorized to make or amend ―[a]ny general order relating to practice and procedure . . . only after 12 giving appropriate public notice and an opportunity for comment,‖ 28 U.S.C. § 332(d)(1), and, as 13 the Supreme Court pointed out, the December 2009 program ―was not adopted after notice and 14 comment procedures,‖ Hollingsworth, 130 S. Ct. at 712 (citing 28 U.S.C. § 332(d)(1)). Further, this 15 case was formally withdrawn from the purported pilot program promptly after the Supreme Court‘s 16 decision in this case. See Ex. 10; Ex. 24.5 17 3. This court‘s decision to unseal its recordings is also contrary to the Supreme Court‘s 18 prior ruling in this case. While the Supreme Court did hold that this Court‘s attempt to amend Rule 19 77-3 was procedurally invalid, see Ex. 1 at 9, it also held that the Court‘s broadcast order violated 20 the substance of that Rule (as well as Judicial Conference policy). See, e.g., Hollingsworth, 130 S. 21 Ct. at 713 (holding that Chief Judge Walker‘s broadcast order ―complied neither with existing rules 22 or policies nor the required procedures for amending them‖ (emphasis added)). Further, as 23 discussed more fully below, the Supreme Court credited Proponents‘ witnesses‘ well-substantiated 24 fears of harassment and intimidation, see id. at 713-14, and accordingly made clear that even if the 25 26 27 28 5 Although the Judicial Conference recently adopted a pilot program permitting, in certain narrow circumstances, the broadcast of civil trial proceedings, see Ex. 1 at 11 n.20, it likewise provides no support for public broadcast given that (1) it did not exist at the time of the trial in this case, and (2) participation in the new program requires the consent of all parties, Ex. 25 at 11. 7 DEFENDANT-INTERVENORS‘ MOTION FOR STAY PENDING APPEAL CASE NO. 09-CV-2292 VRW 1 Ninth Circuit‘s Judicial Council had successfully implemented a pilot program allowing public 2 broadcast of trial proceedings, and even if Rule 77-3 had been successfully amended to permit 3 participation in that program, this ―high-profile, divisive‖ case, ―involv[ing] issues subject to 4 intense debate in our society,‖ was ―not a good one for a pilot program.‖ Hollingsworth, 130 S. Ct. 5 at 714. 6 7 B. The common law right of access to judicial records does not support the district court’s ruling. 8 This Court rested its ruling solely on the common-law right ―to inspect and copy public 9 records and documents, including judicial records and documents.‖ Ex. 1 at 6. As demonstrated 10 below, however, this common-law right has no application to the video recordings at issue here. 11 Even if it did apply, moreover, this qualified right would not support public access in this case, for 12 the harms that would result from public broadcast far outweigh any potential benefits. 13 1. The common-law right of access is just that—a judge-made, common-law rule. It ―is not 14 absolute, and is not entitled to the same level of protection accorded a constitutional right.‖ San 15 Jose Mercury News, Inc., v. U.S. Dist. Ct. for the N.D. Cal., 187 F.3d 1096, 1102 (9th Cir. 1999). 16 Like every common-law rule, it may be displaced by statute or other positive enactment. See Ctr. 17 for Nat’l Sec. Studies v. U.S. DOJ, 331 F.3d 918, 937 (D.C. Cir. 2003); see generally Heck v. 18 Humphrey, 512 U.S. 477, 501 (1994). For example, the common-law right of access is supplanted 19 by Fed. R. Crim. P. 6(e), governing recording and disclosure of grand jury proceedings. See U.S. v. 20 McDougal, 559 F.3d 837, 840 (8th Cir. 2009); In re Motions of Dow Jones & Co., 142 F.3d 496, 21 504 (D.C. Cir. 1998). It is likewise displaced by Fed. R. Civ. P. 5.2, which does not permit 22 documents containing minors‘ to be unsealed unless those names are redacted. See Rule 5.2(d). In 23 short, where they are applicable, ―[r]ules, not the common law, now govern.‖ In re Motions of Dow 24 Jones & Co., 142 F.3d at 504. 25 As demonstrated above, Rule 77-3 would have prohibited the creation of the video- 26 recordings at issue here but for Chief Judge Walker‘s unequivocal representation that they would 27 not be publicly broadcast outside the courthouse. The Rule likewise would have barred the 28 placement of these recordings in the record but for Chief Judge Walker‘s sealing order. The Court‘s 8 DEFENDANT-INTERVENORS‘ MOTION FOR STAY PENDING APPEAL CASE NO. 09-CV-2292 VRW 1 decision allowing the common-law right of access to trump a binding rule of the Court, see Ex. 1 at 2 10, is contrary to the well-established relationship between common-law and positive enactments. 3 2. In addition, the video recordings at issue here are simply not the type of judicial record 4 to which the common-law right of access applies. As even Plaintiffs have conceded, see Ex. 23 at 5 12-13, the recordings are not themselves evidence or even argument; rather they are wholly 6 derivative of the evidence offered, and the arguments made, in open court during the trial in this 7 case. Further, the court reporter‘s transcript, not the video recordings, is the official record of the 8 trial proceedings.6 And as the Plaintiffs likewise conceded, the public was free to attend the trial in 9 this case and continues to have access to the official trial transcript, which is ―widely available on 10 the internet.‖ See Plaintiffs-Appellees‘ Opposition to Appellants‘ Motion Regarding Trial 11 Recordings and Plaintiffs-Appellees‘ Motion to Unseal at 3, Perry v. Brown, No. 10-16696 (9th Cir. 12 Apr. 15, 2011). None of the authorities cited by this Court or the parties hold—or even suggest— 13 that the common-law right of access requires more. 14 Indeed, in U.S. v. McDougal, 103 F.3d 651, 656-57 (8th Cir. 1996), the Eighth Circuit held 15 that a videotape of President Clinton‘s deposition testimony (which was played in court in lieu of 16 live testimony) was ―not a judicial record to which the common-law right of public access 17 attaches.‖ As the Court explained, ―the videotape at issue … is merely an electronic recording of 18 witness testimony. Although the public had a right to hear and observe the testimony at the time and 19 in the manner it was delivered to the jury in the courtroom . . . there was, and is, no additional 20 common law right to obtain, for purposes of copying, the electronic recording of that testimony.‖ 21 Id.; see also id. (distinguishing recordings of ―the primary conduct of witnesses or parties‖); cf. In 22 re Sony BMG Music Entm’t, 564 F.3d 1, 8-9 (1st Cir. 2009) (―the venerable right of members of the 23 public to attend federal court proceedings is far removed from an imagined entitlement to view 24 court proceedings remotely on a computer screen‖). In this case the video recordings are one step 25 even further removed than in McDougal from the type of record to which the common-law right of 26 27 28 6 Cf. Ex. 35 (―digital recordings emanating from the pilot [project] . . . are not the official record of the proceedings, and should not be used as exhibits or part of any court filing.‖); supra n.4. 9 DEFENDANT-INTERVENORS‘ MOTION FOR STAY PENDING APPEAL CASE NO. 09-CV-2292 VRW 1 access applies, for (with the exception of a few brief snippets played during closing arguments), the 2 recordings simply depict the trial proceedings and were not themselves played at trial. 3 3. Even where the common-law right of access does apply, it ―does not mandate disclosure 4 in all cases.‖ San Jose Mercury News, Inc., 187 F.3d at 1102. It merely creates a presumption in 5 favor of access that ―can be overcome by sufficiently important countervailing interests.‖ Id. Here, 6 as recognized by the Supreme Court, public broadcast of the trial proceedings would subject 7 Proponents‘ witnesses to a well-substantiated risk of harassment and would prejudice any further 8 trial proceedings that may prove necessary in this case. See Hollingsworth, 130 S. Ct. at 713. In 9 addition, public broadcast of the trial in violation of Chief Judge Walker‘s solemn assurances (and 10 contrary to the Supreme Court‘s stay, the local rules, and well-settled judicial policy) threatens 11 grave damage to the integrity of the judicial process itself. These threatened injuries are discussed 12 more fully below. Further, this is not a case where the public seeks access to evidence or 13 proceedings hidden from public view: the trial in this case was open to the public, widely reported, 14 and memorialized in an official public transcript. Thus, balanced against the serious risks to 15 Proponents, their witnesses, and the integrity of the judicial process posed by the public broadcast 16 of the video-recording, any applicable common-law right of access must surely yield. 17 18 19 II. Proponents will suffer irreparable harm absent a stay. A. Unsealing the record now will moot Proponents’ appeal. Absent a stay pending appeal, the video-recording of the trial will be unsealed and its 20 widespread dissemination will be immediate. Once that happens, Proponents‘ appeal will be moot. 21 They will ―not be able to obtain adequate relief through an appeal,‖ for ―[t]he trial will have already 22 been broadcast.‖ Hollingsworth, 130 S. Ct. at 713. Mootness is by definition an irreparable harm to 23 a party seeking appellate review. See Artukovic v. Rison, 784 F.2d 1354, 1356 (9th Cir. 1986). This 24 Court should issue a stay pending appeal to preserve Proponents‘ ability to seek effective appellate 25 review of the unsealing order. 26 27 28 B. Unsealing the record will lead to harassment of Proponents’ witnesses. Based on ―decades of experience and study,‖ the Judicial Conference has repeatedly found that the public broadcast of trial proceedings ―can intimidate litigants [and] witnesses,‖ ―create 10 DEFENDANT-INTERVENORS‘ MOTION FOR STAY PENDING APPEAL CASE NO. 09-CV-2292 VRW 1 privacy concerns,‖ and ―increase[] security and safety issues.‖ E.g., Ex. 3 at 1 -3; see also 2 Hollingsworth, 130 S. Ct. at 712-13. ―Threats against judges, lawyers, and other participants could 3 increases even beyond the current disturbing level.‖ Ex. 3 at 3. Significantly, these findings are 4 based on the Judicial Conference‘s study of ordinary, run-of-the-mine cases. ―[I]n ‗truly high- 5 profile cases‘ one can ‗[j]ust imagine what the findings would be.‘ ‖ Hollingsworth, 130 S. Ct. at 6 714. 7 As Proponents repeatedly advised Chief Judge Walker before the trial in this ―high-profile, 8 divisive‖ case, id., several of Proponents‘ expert witnesses voiced ―concerns for their own 9 security,‖ id. at 714, and made clear ―that they [would] not testify if the trial [were] broadcast,‖ id. 10 at 713. Chief Judge Walker appeared indifferent to this fact and to its obvious implications for the 11 fundamental fairness of the trial itself, for he never even mentioned this consideration as bearing on 12 his decision to broadcast—and when that was stayed, to video-record—the trial.7 The Supreme 13 Court however, was acutely concerned that Proponents‘ witnesses had ―substantiated their concerns 14 by citing incidents of past harassment.‖ Id. at 713. Indeed, the record reflects repeated harassment 15 of Prop 8 supporters. See Ex. 27; Ex. 28 at ¶¶ 10-12; Ex. 29 at ¶¶ 6-8, 12-15; Ex. 30 ; Ex. 31at ¶¶ 5- 16 6; Ex. 32 at ¶ 8; see also Thomas M. Messner, The Price of Prop 8, available at www.heritage.org/ 17 Research/Family/bg2328.cfm; www.youtube.com/watch?v=hcKJEHrvwDI. For example, ―donors 18 to groups supporting Proposition 8 ‗have received death threats and envelopes containing a 19 powdery white substance,‘ ‖ and ―numerous instances of vandalism and physical violence have 20 been reported against those who have been identified as Proposition 8 supporters.‖ Hollingsworth, 21 130 S. Ct. at 707. Even Plaintiffs‘ lead counsel has acknowledged ―widespread economic reprisals‖ 22 against supporters of Proposition 8. Ex. 36 at 28-29 (cited in Hollingsworth, 130 S. Ct. at 707). 23 There can thus be little doubt that unsealing the trial recording for public broadcast would expose 24 Proponents‘ witnesses to a serious and well-substantiated risk of harassment or worse. 25 26 27 28 7 Despite Chief Judge Walker‘s subsequent assurance that the video-recordings would not be publicly broadcast, all but two of Proponents‘ experts ultimately did not testify. As counsel for Proponents advised Chief Judge Walker early in the trial, the witnesses ―were extremely concerned about their personal safety, and did not want to appear with any recording of any sort, whatsoever.‖ Ex. 33 at 1094:18-23; see Ex. 26 at 7. 11 DEFENDANT-INTERVENORS‘ MOTION FOR STAY PENDING APPEAL CASE NO. 09-CV-2292 VRW 1 2 C. Unsealing the record could prejudice future trial proceedings. Given that Proponents are currently appealing both the judgment invalidating Proposition 8 3 and the subsequent denial of our motion to vacate that judgment, it is likely that this case will be 4 retried in the future. As noted above, supra note 7, only two of Proponents‘ six scheduled expert 5 witnesses were willing to rely on Chief Judge Walker‘s unequivocal assurances that the trial 6 recordings were solely for his judicial use in chambers, and to testify at trial. One of those witnesses 7 soon regretted his decision to take Chief Judge Walker at his word, as he watched excerpts of his 8 testimony displayed on national television by Chief Judge Walker himself. See Judge Walker on 9 Cameras in the Courtroom, C-SPAN, http://www.c-spanvideo.org/program/298109-3. If the video- 10 recording of the trial is now unsealed and made public, these witnesses and others would almost 11 certainly refuse to participate in any further trial proceedings in this case, or in any other case 12 raising such highly divisive issues. See Hollingsworth, 130 S. Ct. at 713 (―[W]itnesses subject to 13 harassment as a result of broadcast of their testimony might be less likely to cooperate in any future 14 proceedings.‖) Unsealing the recordings would thus surely prejudice any future trial proceedings 15 and thus cause ―irreparable harm.‖ Id. at 712. 16 III. A stay will not subject Plaintiffs to substantial harm. 17 Here, as before, ―[t]he balance of equities favors‖ a stay, for ―[w]hile applicants have 18 demonstrated the threat of harm they face if the trial is broadcast, [Plaintiffs] have not alleged any 19 harm if the trial is not broadcast.‖ Hollingsworth, 130 S. Ct. at 713. And they certainly have 20 identified no harm that they will suffer during the pendency of this appeal if a stay is entered. 21 IV. The public interest is served by staying the district court’s order. 22 As the Court recognized, see Ex. 23 at 24-25, nothing less than the integrity and reputation 23 of the judiciary is at stake in this case. Chief Judge Walker solemnly and unambiguously 24 represented in open court that the recording of the trial would not be used ―for purposes of public 25 broadcasting or televising.‖ Ex. 7 at 754:21-23. He assured the parties that only ―some further order 26 of the Supreme Court or the Court of Appeals‖ could permit transmission beyond the courthouse. 27 Ex. 34. Proponents took him at his word (as did their witnesses who took the stand) and thus took 28 no action to enforce the Supreme Court‘s stay or otherwise prevent the recording of the trial. 12 DEFENDANT-INTERVENORS‘ MOTION FOR STAY PENDING APPEAL CASE NO. 09-CV-2292 VRW 1 Indeed, in express reliance on Chief Judge Walker‘s promise, see Ex. 18 at 11-12, Proponents 2 forwent their opportunity, invited by the Supreme Court itself, to seek further review from that 3 Court of Chief Judge Walker‘s broadcast order. And in deciding not to appeal the subsequent order 4 placing the recording in the record under seal, Proponents relied on Chief Judge Walker‘s 5 unequivocal determination—made in the very same opinion placing the recording in the record— 6 that ―the potential for public broadcast‖ of witness testimony ―had been eliminated,‖ Ex. 17 at 35- 7 36. Despite all of this, Chief Judge Walker himself later reneged on his commitment, violated his 8 seal, and ignored Local Rule 77-3 and judicial conference policy by broadcasting excerpts of the 9 trial recording. 10 Although the Court has suggested that it is not bound by the former presiding judge‘s 11 commitments, its ruling may persuade future litigants and witnesses that judicial promises are 12 unworthy of confidence, and cause grave and lasting injury to the integrity and credibility of the 13 federal judiciary. 14 As discussed above, any countervailing public interest in access to the video-recording of 15 the public trial in this case is small. And any public interest in immediate, pre-appeal access is 16 surely negligible. The public interest, like the other equities, thus weighs heavily in favor of a stay. 17 CONCLUSION 18 For the foregoing reasons, this Court should stay its unsealing order pending appeal. 19 20 21 22 23 Dated: September 23, 2011 COOPER AND KIRK, PLLC ATTORNEYS FOR DEFENDANT-INTERVENORS DENNIS HOLLINGSWORTH, GAIL J. KNIGHT, MARTIN F. GUTIERREZ, MARK A. JANSSON, AND PROTECTMARRIAGE.COM – YES ON 8, A PROJECT OF CALIFORNIA RENEWAL 24 By: 25 /s/Charles J. Cooper Charles J. Cooper 26 27 28 13 DEFENDANT-INTERVENORS‘ MOTION FOR STAY PENDING APPEAL CASE NO. 09-CV-2292 VRW