Powell's Books, Inc., et al v. John Kroeger, et al

Filing 11

Filed (ECF) Appellants American Booksellers Foundation for Free Expression, Association of American Publishers, Inc., Bluejay, Inc., Colette's: Good Food Hungry Minds, LLC, Comic Book Legal Defense Fund, Dark Horse Comics, Inc., Freedom to Read Foundation, Inc., Old Multnomah Book Store, Ltd., Powell's Books, Inc. and St. John's Booksellers, LLC Motion for miscellaneous relief [Plaintiffs-Appellants' Motion for Leave to File a Single Excerpt of Record and for Combined Oral Argument]. Date of service: 05/07/2009. [6912486] (MAB)

Powell's Books, Inc., et al v. John Kroeger, et al

Doc. 11

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT POWELL'S BOOKS, INC., et al., Plaintiffs-Appellants, -againstJOHN KROGER, et al., Defendants-Appellees. AMERICAN CIVIL LIBERTIES UNION OF OREGON, et al., Plaintiffs-Appellants, -againstJOHN KROGER, et al., Defendants-Appellees. On appeal from the United States District Court for the District of Oregon (3:08-cv-00501-MO) _____________________________ PLAINTIFFS-APPELLANTS' MOTION FOR LEAVE TO FILE A SINGLE EXCERPT OF RECORD AND FOR COMBINED ORAL ARGUMENT _____________________________ These appeals arise out of the same proceedings and same decision rendered in the United States District Court for the District of Oregon. The district court's decision treated the claims of Powell's Books, Inc. et al. (Plaintiffs-Appellants in No. 09-35153) differently from the claims of American Civil Liberties Union of Oregon et al. (Plaintiffs-Appellants in No. 09No. 09-35154 No. 09-35153

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35154), and the two sets of Plaintiffs-Appellants therefore filed separate notices of appeal, and are filing separate briefs on appeal, raising different issues. However, to promote judicial efficiency, Plaintiffs-Appellants in both cases respectfully request leave to file a single Excerpt of Record in these two appeals, and respectfully request that the two appeals be heard together at oral argument. The Oregon Attorney General's office, which represents Defendants-Appellees in both appeals, has indicated that it has no objection to granting of this motion. In support of their motion, Plaintiffs-Appellants state as follows: 1. In the proceedings before the District Court, Plaintiffs sought a declaration that

Oregon statutes that criminalized providing sexually explicit materials to minors were unconstitutional. Plaintiffs included (a) booksellers and publishers and (b) providers of sex education information, an individual grandparent, and the ACLU of Oregon. In its decision upholding the statute, the District Court treated the legal interests of the booksellers and publishers differently from the other plaintiffs. 2. Counsel for the booksellers and publishers filed a Notice of Appeal (No. 09-

35153). Counsel for the providers of sex education information, the individual grandparent, and the ACLU of Oregon filed a separate Notice of Appeal (No. 09-35154). 3. On their appeal in No. 09-35153, the booksellers and publishers, Plaintiffs-

Appellants Powell's Books, Inc. et al., present three issues: (1) whether the district court erred by denying that plaintiffs' claim was "as applied" as well as "facial"; (2) whether the district court erred by finding the challenged statutes constitutional despite the fact that the statutes do not -2-

even include the substance of the components of the Ginsberg/Miller test prescribed by the United States Supreme Court; and (3) whether the district court erred in finding that the challenged statutes were not unconstitutionally vague. 4. On their appeal in No. 09-35154, the providers of sex education information,

American Civil Liberties Union of Oregon, Cascade AIDS Project, Candace Morgan and Planned Parenthood of the Columbia/Willamette, Inc., present similar issues in a distinctly different context because, as sex educators, individuals, and ACLU members, they have different interests than the commercial and trade booksellers and publishers. 5. Plaintiff-Appellants expect that the Oregon Attorney General will file separate

briefs, addressing the separate issues raised by the Plaintiffs-Appellants in the two appeals. 6. However, because both appeals are taken from the same proceedings and the

same decision of the district court, it would be procedurally convenient and would conserve resources of this Court if the Plaintiffs-Appellants filed a single Except of Record in the two appeals, and if oral argument were heard on the same day before the same panel. While the issues raised on the two appeals are different, the appeals involve the constitutionality of the same statutes, and thus having the appeals heard by the same panel would also avoid the risk of inconsistent decisions. 7. This procedure would serve the interest of judicial economy, and would not

prejudice any party. This procedure would not necessitate any change in the briefing schedule that this Court set in these cases. -3-

WHEREFORE, Plaintiffs-Appellants respectfully requests that this Court grant PlaintiffsAppellants leave to file a single Excerpt of Record in these two appeals, and respectfully request that the appeals be heard on the same day before the same panel of this Court. Respectfully submitted, s/ Michael A. Bamberger Michael A. Bamberger Sonnenschein Nath & Rosenthal LLP 1221 Avenue of the Americas New York, New York 10020 Tel: [phone] Fax [phone] Attorney for Plaintiffs-Appellants Powell's Books, Inc., et al. in 09-35153 s/ P. K. Runkles-Pearson (with permission) P. K. Runkles-Pearson Stoel Rives LLP Suite 2600 900 S.W. Fifth Avenue Portland, OR 97204 Tel: [phone] Fax: [phone] Cooperating Attorney ACLU Foundation of Oregon Attorney for Plaintiffs-Appellants ACLU of Oregon., et al. in 09-35154 May 7, 2009 To: Denise G. Fjordbeck Attorney-in Charge Civil/Administrative Appeals Department of Justice State of Oregon 162 Court Street NE Salem, OR 97301-4096 -4-

CERTIFICATE OF SERVICE When All Case Participants are Registered for the Appellate CM/ECF System
U.S. Court of Appeals Docket Number(s): 09-35153, 09-35154 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 May 7, 2009. 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: s/Michael A. Bamberger