American Civil Liberties Union, et al v. John Kroger, et al

Filing 10

Filed (ECF) Appellants American Civil Liberties Union of Oregon, Cascade AIDS Project, Candace Morgan and Planned Parenthood of the Columbia/Willamette, Inc. Unopposed Motion for miscellaneous relief [Leave to File Single Excerpt of Record and for Combined Oral Argument]. Date of service: 05/08/2009. [6915036] (Runkles-Pearson, Patricia) [Entered: 05/08/2009 03:08 PM]

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American Civil Liberties Union, et al v. John Kroger, et al Doc. 10 No. 09-35153, 09-35154 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT POWELL'S BOOKS, INC., et al., Plaintiffs-Appellants, v. JOHN KROGER, et al., Defendants-Appellees. AMERICAN CIVIL LIBERTIES UNION OF OREGON, et al., Plaintiffs-Appellants, v. JOHN KROGER, et al., Defendants-Appellees. On Appeal from the United States District Court for the District of Oregon Hon. Michael W. Mosman Case No. CV-08-501-MO PLAINTIFFS-APPELLANTS' MOTION FOR LEAVE TO FILE A SINGLE EXCERPT OF RECORD AND FOR COMBINED ORAL ARGUMENT Portlnd3-1666303.1 0099880-00578 1 Dockets.Justia.com P.K. Runkles-Pearson, OSB No. 061911 pkrunkles-pearson@stoel.com STOEL RIVES LLP 900 SW Fifth Avenue, Suite 2600 Portland, OR 97204 Telephone: (503) 224-3380 Facsimile: (503) 220-2480 Cooperating Attorney ACLU Foundation of Oregon Attorney for Plaintiffs-Appellants ACLU of Oregon, et al. Michael A. Bamberger mbamberger@sonnenschein.com SONNENSCHEIN NATH & ROSENTHAL LLP 1221 Avenue of the Americas 24th Floor New York, NY 10020 Telephone: (212) 768-6700 Facsimile: (212) 768-6800 Attorney for Plaintiffs-Appellants Powell's Books, Inc., et al. Denise Fjordbeck, OSB No. 822578 denise.fjordbeck@doj.state.or.us Oregon Department of Justice 1162 Court Street NE Salem, OR 97301-4096 Telephone: (503) 947-4700 Facsimile: (503) 947-4793 Attorney for Defendants-Appellees John Kroger, et al. Portlnd3-1666303.1 0099880-00578 2 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. 09-35154). Therefore, the two sets of Plaintiffs-Appellants filed separate notices of appeal and are filing separate briefs on appeal, raising different issues. To promote judicial efficiency, however, 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. Plaintiffs-Appellants have filed similar motions under both case numbers. The Oregon Attorney General's office, which represents DefendantsAppellees 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 Portlnd3-1666303.1 0099880-00578 3 District Court treated the legal interests of the different types of plaintiffs differently. 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 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, ACLU 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. Portlnd3-1666303.1 0099880-00578 4 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. WHEREFORE, Plaintiffs-Appellants respectfully request that this Court grant Plaintiffs-Appellants leave to file a single Excerpt of Record in these two Portlnd3-1666303.1 0099880-00578 5 appeals and respectfully request that the appeals be heard on the same day before the same panel of this Court. Dated May 8, 2009. STOEL RIVES LLP s/ P. K. Runkles-Pearson P. K. Runkles-Pearson, OSB No. 061911 Attorney for Plaintiffs-Appellants ACLU of Oregon, et al. in 09-35154 SONNENSCHEIN NATH & ROSENTHAL LLP s/ Michael A. Bamberger (with permission) Michael A. Bamberger Attorney for Plaintiffs-Appellants Powell's Books, Inc., et al. in 09-35153 Portlnd3-1666303.1 0099880-00578 6 CERTIFICATE OF SERVICE United States Court of Appeals Docket Number: No. 09-35154 I hereby certify that I electronically filed the foregoing PLAINTIFFSAPPELLANTS' MOTION FOR LEAVE TO FILE A SINGLE EXCERPT OF RECORD AND FOR COMBINED ORAL ARGUMENT 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 8, 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. Dated May 8, 2009. STOEL RIVES LLP s/ P. K. Runkles-Pearson P. K. Runkles-Pearson, OSB No. 061911 Attorney for Plaintiffs-Appellants ACLU of Oregon, et al. in 09-35154 Portlnd3-1666303.1 0099880-00578

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