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

Filing 52

Filed (ECF) Appellants American Civil Liberties Union of Oregon, Cascade AIDS Project, Candace Morgan and Planned Parenthood of the Columbia/Willamette, Inc. citation of supplemental authorities. Date of service: 05/27/2010. [7353087]--[COURT UPDATE: Spread entry to 09-35153, resent notice. 05/28/2010 by ASW] (PKR)

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

Doc. 52

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ATTORNEYS AT LAW

STOEL

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fax [phone]

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P.K. RUNES-PEARSON

Direct [phone]

May 27,2010

pkrnkles-pearsonęstoel.com

Ms. Molly Dwyer Clerk of the Cour United States Cour of Appeals for the Ninth Circuit Post Offce Box 193939 San Francisco, CA 94119-3939

Re: ACLUv. Kroger, eta/.
United States Cour of Appeals for the Ninth Circuit Case No. 09-35154

Arguent Date: June 8, 2010
Dear Ms. Dwyer:

In accordance with Federal Rule of Appellate Procedure 280) and Circuit Rule 28-6, this letter provides an additional citation to recent Supreme Cour authority regarding one of the issues relevant to this appeaL. United States v. Stevens, 130 S. Ct. 1577 (2010) was described by Plaintiffs-Appellants in the May 21,2010 letter fied in a related case, No. 09-35153. A copy of
that letter is attached for your convenience. The Stevens opinion is equally relevant to the
arguments of

Plaintiffs-Appellants in this case, and they respectfully request that the Cour

consider it.

P.K. Runes-Pearson

PKR:smr Enclosure
cc (w/encl.):

Michael A. Casper Michael Bamberger

70095691. 0099880-00578

Oregon Washington California Utah Idaho Colorado Minnesota

Dockets.Justia.com

SONNENSCHEIN NATH & ROSENTHAL LLP

Sonnenschein
1221 Avenue of the Americas
New York. NY 10020-1089 212,768,6700
212.768,6800 fax

Michael A. Bamberger 212.768.6756 mbamberger(1sonnenschein.com

ww.sonnenscheln.com

May 21,2010

Ms. Molly Dwyer Clerk of the Court United States Court of Appeals for the Ninth Circuit Post Office Box 193939 San Francisco, CA 94119-3939

Re: Powell's Books, Inc. v. Kroger United States Court of Appeals for the Ninth Circuit Case No. 09-35153 Argument Date: June 8, 2010
Dear Ms. Dwyer:

In accordance with Federal Rule of Appellate Procedure 280) and Circuit Rule 28-6, this letter provides an additional citation to very recent U.S. Supreme Court authority relevant to one
ofthe issues presented by Plaintiffs-Appellants on this appeaL.

the U.S. Supreme Court in United States v. Stevens, 130 S. Ct. 1577 (2010), which was issued last month after completion of briefing in this case.
The Court's attention is directed to the opinion of

Defendants argued before the district court that the state would never criminally charge under the challenged statutes the materials put forward by plaintiffs. And the court below found that, while the challenged statutes failed to meet the Supreme Court's Miler/Ginsberg standard, the statutes complied with that standard because they would be constitutionally applied by "prosecutors, judges and juries." Appellants contended that the constitutional standard cannot be satisfied on the basis of a prediction of the exercise of prosecutorial discretion. (PlaintiffsAppellants' Brief, Point IC, pp. 28-29).

In Us. v. Stevens, the Chief Justice, writing for the eight-judge majority, supports Plaintiffs-Appellants' contention:
Not to worry, the Government says: The Executive Branch for United construes § 48 to reach only "extreme" cruelty, Brief States 8, and it "neither has brought nor wil bring a prosecution

Ms. Molly Dwyer May 21,2010
Page

2

for anything less," Reply Brief 6-7. The Government hits this
theme hard, invoking its prosecutorial discretion several times ...

But the First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the
Government promised to use it responsibly. Cf. Whitman v.

American Trucking Assns., Inc., 531 U.S. 457, 473, 121 S.Ct.
903, 149 L.Ed.2d (2001).

Rejecting the government's defense of its prosecutorial discretion, the Court struck down the statute as facially overbroad.
We greatly appreciate the Court's consideration of

this letter and opinion.
Respectfully submitted,

SONNENSCHEIN NATH & ROSENTHAL LLP

By: s/ Michael A. Bamberger

Michael A. Bamberger

Enclosure
cc: Michael A. Casper

John Joshua Wheeler P.K. Runkles-Pearson