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

Filing 19

Filed (ECF) Appellees Steve Atchison, Elizabeth Ballard, Jack Banta, Bernice Barnett, Walter M. Beglau, Brad Berry, Edwin I. Caleb, Stephen D. Campbell, Jason Carlile, Tim Colahan, Thomas W. Cutsforth, Peter L. Deuel, Everett Dial, Michael Dugan, John Fisher, John Foote, Paul Frasier, Dean Gushwa, Douglass Harcleroad, John Haroldson, Robert Hermann, Mark Huddleston, Ryan Joslin, John Kroeger, Joshua Marquis, Wade M. McLeod, Eric J. Nisley, Dan Norris, Daniel Ousley, William Bryan Porter, Michael D. Schrunk, David A. Schutt, John Sewell, Matt Shirtcliff, Tim Thompson, Marion Weatherford and Gary Williams in 09-35153, Appellees Steve Atchison, Elizabeth Ballard, Jack Banta, Bernice Barnett, Walter M. Beglau, Brad Berry, Edwin I. Caleb, Stephen D. Campbell, Jason Carlile, Tim Colahan, Thomas W. Cutsforth, Peter L. Deuel, Everett Dial, Michael Dugan, John Fisher, John Foote, Paul Frasier, Dean Gushwa, Douglass Harcleroad, John Haroldson, Robert Hermann, Mark Huddleston, Ryan Joslin, John Kroger, Joshua Marquis, Wade M. McLeod, Eric J. Nisley, Dan Norris, Daniel Ousley, William Bryan Porter, Michael D. Schrunk, David A. Schutt, John Sewell, Matt Shirtcliff, Tim Thompson, Marion Weatherford and Gary Williams in 09-35154 response to motion (Motion (ECF Filing) ,Motion (ECF Filing) motion for miscellaneous relief (to be used only if no other relief applies), Motion for Reconsideration (ECF Filing) ). Date of service: 06/09/2009. [6950223] [09-35153, 09-35154] (MAC)

JOHN R. KROGER Attorney General of Oregon JEROME LIDZ Solicitor General MICHAEL A. CASPER Assistant Attorney General 1162 Court Street N.E. Salem, Oregon 97301-4096 Telephone: [phone] Counsel for Defendants-Appellees IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT POWELL'S BOOKS, INC.; et al. Plaintiffs-Appellants, v. MATT SHIRTCLIFF, Baker County District Attorney, in his official capacity; et al. Defendants-Appellees. DEFENDANTS-APPELLEES' RESPONSE TO PLAINTIFFSAPPELLANTS' MOTION FOR RECONSIDERATION U.S.C.A. Nos. 09-35153 and 09-35154

On June 3, 2009, this court issued an order consolidating two appeals, 09-35153, brought by Powell's Books et al, and 09-35154, brought by the ACLU of Oregon et al, and setting due dates for consolidated briefing. Plaintiffs-appellants have asked the court to reconsider that order. DefendantsAppellees respectfully submit that, under the circumstances, consolidation of the appeals is appropriate. Both sets of appellants are appealing the same judgment. In the proceedings below, both were joined in a united front; they filed a single Page 1 - DEFENDANTS-APPELLEES' RESPONSE TO PLAINTIFFSAPPELLANTS' MOTION FOR RECONSIDERATION MC2:slc\1444302-v1
Department of Justice 1162 Court Street NE Salem, OR 97301-4096 [phone]

complaint, were jointly represented by the same counsel, and briefed and argued the case together. In denying their requested relief for declaratory and injunctive relief, the District Court did not distinguish between the various plaintiffs. On appeal, the two sets of appellants have requested that their appeals be combined for argument but not be consolidated for "all purposes" and, specifically, that they be allowed to brief the case separately. In support of this request, they assert that they have different interests and "different approaches" to the appeal. In the alternative, appellants request additional time in which to file a consolidated brief. Whether separately represented parties in a consolidated appeal may brief the case separately is a matter committed to this court's discretion. Notably, however, under this court's rules, L.R. 28-4, separately represented parties on the same side of a consolidated appeal are encouraged to join in a single brief "to the greatest extent practicable." In the interest of judicial efficiency, appellees respectfully submit that these cases should be consolidated, and that appellants should attempt to combine their briefing to the greatest extent practicable and to avoid duplicative

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Department of Justice 1162 Court Street NE Salem, OR 97301-4096 [phone]

briefing. Appellees have no objection to appellants request for additional time to accomplish that. In all events appellees expect to file a single response.

Respectfully submitted, JOHN R. KROGER #077207 Attorney General JEROME LIDZ #772631 Solicitor General /s/ Michael A. Casper ______________________________ MICHAEL A. CASPER #062000 Assistant Attorney General Attorneys for Defendants-Appellees

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Department of Justice 1162 Court Street NE Salem, OR 97301-4096 [phone]

CERTIFICATE OF SERVICE I hereby certify that on June 9, 2009, I directed the DefendantsAppellees' Response to Plaintiffs-Appellants' Motion for Reconsideration to be electronically filed with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system. 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: Rachel G. Balaban Sonnenschein Nath & Rosenthal LLP 24th Floor 1221 Avenue of the Americas New York, NY 10020

/s/ Michael A. Casper ______________________________ MICHAEL A. CASPER Assistant Attorney General

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Department of Justice 1162 Court Street NE Salem, OR 97301-4096 [phone]