Dennis Hollingsworth, et al v. USDCSF, et al

Filing 1

FILED PETITION FOR WRIT OF MANDAMUS. DOCKETED CAUSE AND ENTERED APPEARANCES OF COUNSEL. NOTIFIED REAL PARTIES IN INTEREST OF FILING. [7187906] (HH)

Dennis Hollingsworth, et al v. USDCSF, et al

Doc. 1 Att. 3

Exhibit 10

Dockets.Justia.com

Case3:09-cv-02292-VRW Document215 LAWYERS

Filed10/02/09 Page1 of 3

GIBSON, DUNN & CRUTCHER LLP
A REGISTERED LIMITED LIABILITY PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS

__________ 333 South Grand Avenue, Los Angeles, California 90071-3197 [phone] www.gibsondunn.com
[e-mail]

October 2, 2009

Direct Dial

Client Matter No.

[phone]
Fax No.

T 36330-00001

[phone] The Honorable Vaughn R. Walker Chief Judge of the United States District Court for the Northern District of California 450 Golden Gate Ave. San Francisco, California 94102 Re: Perry v. Schwarzenegger, Case No. C-09-2292 VRW

Dear Chief Judge Walker: At the conclusion of the hearing before this Court on September 25, 2009, the Court proposed to transmit images of counsel, the witness, and the Judge in our proceeding into an overflow courtroom. All parties indicated their consent to that proposal. The Court also asked the parties to consider their respective positions on the transmission of those same images beyond the overflow courtroom. In response to a question from counsel, the Court indicated that this transmission might potentially include broadcast on a television station. On September 30, 2009, counsel for Plaintiffs initiated meet-and-confer discussions in which the parties expressed their views on the issue raised by the Court. The parties' positions, as expressed by and to Plaintiffs' counsel, are set forth below. Plaintiffs do not object to the transmission of images from our proceeding beyond the overflow courtroom, and we would be happy to work with the parties, the Court, and others as appropriate regarding the specifics of how this would work. Counsel for the Attorney General, the City of San Francisco, Alameda County and Los Angeles County have expressed their support for Plaintiffs' position. Counsel for the Administration has indicated that they will support any position on which the other parties are able to reach an agreement. In the event the other parties cannot reach an agreement, the Administration will take no position.

Case3:09-cv-02292-VRW Document215

Filed10/02/09 Page2 of 3

The Honorable Vaughn R. Walker October 2, 2009 Page 2 Counsel for the Defendant-Intervenors have indicated that they are still reviewing the issue raised by the Court and hope to have a position by Monday of next week. We therefore expect Defendant-Intervenors to submit their own, separate statement of position to the Court next week. Thank you for raising this issue with the parties. Plaintiffs would be happy to discuss further with the Court should the Court wish to do so. Respectfully submitted, /s/ Christopher D. Dusseault Christopher D. Dusseault Counsel for Plaintiffs cc: Counsel of Record

Case3:09-cv-02292-VRW Document215

Filed10/02/09 Page3 of 3

The Honorable Vaughn R. Walker October 2, 2009 Page 3

ATTESTATION PURSUANT TO GENERAL ORDER NO. 45 Pursuant to General Order No. 45 of the Northern District of California, I attest that concurrence in the filing of the document has been obtained from each of the other signatories to this document. By: /s/ Sarah E. Piepmeier Sarah E. Piepmeier

Exhibit 11

Case3:09-cv-02292-VRW Document218

Filed10/05/09 Page1 of 3

0BCooper

& Kirk
[phone] Fax [phone]

1BLawyers

A Professional Limited Liability Company

Charles J. Cooper [e-mail]

1523 New Hampshire Avenue NW Washington, D.C. 20036

October 5, 2009 The Honorable Vaughn R. Walker Chief Judge United States District Court for the Northern District of California 450 Golden Gate Ave. San Francisco, CA 94102 Re: Recording and broadcast of proceedings in Perry v. Schwarzenegger, No. C-09-2292 VRW

Dear Chief Judge Walker, I write on behalf of Defendant-Intervenors in response to the Court's inquiry regarding the parties' positions on "projecting [a video recording of the proceedings in this case] ... beyond an overflow room," perhaps in the form of a public television broadcast. Hr'g of Sept. 25, 2009, Tr. 70-71. It is Defendant-Intervenors' understanding that the policy of both the Northern District of California and the Judicial Conference of the United States prohibits any kind of photographic depiction of district court proceedings outside of the courthouse itself. According to this Court's General Order No. 58, the "[p]olicy of the Judicial Conference of the United States prohibits, in both civil and criminal cases in all district courts, broadcasting, televising, recording, or photographing courtroom proceedings for the purposes of public dissemination." See also United States District Court for the N.D. Cal., General Information Guide for Journalists at 5 (July 14, 2009) ("Broadcasting of proceedings is prohibited by policy of the Judicial Conference of the United States."); JCUS-SEP 96, p. 54 (adopting ban on broadcasting); JCUS-MAR 96, p. 17; JCUS-SEP 94, pp. 46-47. See also In re Complaint Against District Judge Joe Billy McDade, No. 07-09-90083 (Memorandum of Chief Judge Easterbrook, 7th Cir. Sept. 28, 2009). The Judicial Conference's policy is based upon the potentially negative impact that the public broadcast of federal trial court proceedings could have on the

Case3:09-cv-02292-VRW Document218

Filed10/05/09 Page2 of 3

The Honorable Vaughn R. Walker October 5, 2009 Page 2 of 3 administration of justice. After an extensive study of the issue in 1994, the Judicial Conference rejected proposals for public broadcast of trial court proceedings. See JCUSSEP 94, p. 47. As reflected in this Court's General Order No. 58, that policy, and the reasons undergirding it, remain in effect today. See Administrative Office of the U.S. Courts, "Implementation of the Long Range Plan of the Federal Courts: Status Report April 2008," ¶ 86d, available at http://www.uscourts.gov/library/Implementation_the_ Long_Range_Plan.pdf ("The Conference continues to oppose cameras in the courtroom legislation."). In testimony before Congress in September 2007, Judge Tunheim explained the Judicial Conference's position, in pertinent part, as follows: The Judicial Conference position is based on a thoughtful and reasoned concern regarding the impact cameras could have on trial proceedings. [Public broadcast has] the potential to undermine the fundamental rights of citizens to a fair trial. It could jeopardize court security and the safety of trial participants, including judges, U.S. attorneys, trial counsel, U.S. marshals, court reporters, and courtroom deputies. The use of cameras in the trial courts could also raise privacy concerns and produce intimidating effects on litigants, witnesses, and jurors, many of whom have no direct connection to the proceeding. ... Because cameras in trial courts could profoundly and negatively impact the trial process, the Judicial Conference strongly opposes any legislation that would allow the use of cameras in the United States district courts. Cameras in the Courtroom: The "Sunshine in the Courtroom Act of 2007," H.R. 2128: Hr'g Before the H. Comm. on the Judiciary, 110th Cong. (Sept. 27, 2007) (statement of The Honorable John R. Tunheim, Judge, United States District Court for the District of Minnesota and Chair of the Court Administration and Case Management Committee of the Judicial Conference), available at http://www.uscourts.gov/testimony/ Tunheim_cameras092707.pdf. As Judge Tunheim concluded, "the Judicial Conference believes ... [that] the presence of cameras has the potential to deprive citizens of their ability to have a claim or right fairly resolved in the United States district courts." Id. Publicly televising the proceedings in this case would give rise, we believe, to these concerns. Given the highly contentious and politicized nature of Proposition 8 and the issue of same-sex marriage in general, the possibility of compromised safety, witness intimidation, and/or harassment of trial participants is very real. Indeed, lead counsel for Plaintiffs has acknowledged that

Case3:09-cv-02292-VRW Document218

Filed10/05/09 Page3 of 3

The Honorable Vaughn R. Walker October 5, 2009 Page 3 of 3 "widespread economic reprisals against financial supporters of . . . Proposition 8" resulted from public disclosure of the names of donors. Doc # 187-1 at 6-7. And the record of other forms of harassment against Proposition 8 supporters is well documented. See id. & Exs. B, I, K, M. For these reasons, DefendantIntervenors must respectfully object to any departure from the policy of the Northern District of California and the Judicial Conference of the United States. Sincerely, /s/ Charles J. Cooper Charles J. Cooper Counsel for Defendant-Intervenors

Exhibit 12

Pages 1 - 120 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA BEFORE THE HONORABLE VAUGHN R. WALKER ) ) ) ) Plaintiffs, ) ) VS. ) ) ARNOLD SCHWARZENEGGER, in his ) official capacity as Governor of ) California; EDMUND G. BROWN, JR., ) in his official capacity as ) Attorney General of California; ) MARK B. HORTON, in his official ) 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, ) ) Defendants. ) ) ___________________________________) KRISTIN M. PERRY, SANDRA B. STIER, PAUL T. KATAMI, and JEFFREY J. ZARRILLO,

NO. C 09-2292-VRW

San Francisco, California Wednesday December 16, 2009 10:00 a.m.

TRANSCRIPT OF PROCEEDINGS

Reported By:

CSR #5812, Katherine Powell Sullivan, CSR #5812, RPR, CRR Official Reporter - U.S. District Court

2

APPEARANCES: For Plaintiffs: BY: GIBSON, DUNN & CRUTCHER LLP 1050 Connecticut Avenue, N.W. Washington, D.C. 20036-5306 THEODORE B. OLSON, ESQUIRE MATTHEW D. MCGILL, ESQUIRE GIBSON, DUNN & CRUTCHER LLP 333 South Grand Avenue Los Angeles, California 90071-3197 THEODORE J. BOUTROUS, JR., ESQUIRE CHRISTOPHER D. DUSSEAULT, ESQUIRE BOIES, SCHILLER & FLEXNER LLP 333 Main Street Armonk, New York 10504 DAVID BOIES, ESQUIRE BOIES, SCHILLER & FLEXNER LLP 575 Lexington Avenue, 7th Floor New York, New York 10022 JOSHUA I. SCHILLER, ESQUIRE BOIES, SCHILLER & FLEXNER LLP 1999 Harrison Street, Suite 900 Oakland, California 94612 JEREMY MICHAEL GOLDMAN, ESQUIRE CITY AND COUNTY OF SAN FRANCISCO OFFICE OF THE CITY ATTORNEY One Drive Carlton B. Goodlett Place San Francisco, California 94102-4682 THERESE STEWART, DEPUTY CITY ATTORNEY DANNY CHOU, DEPUTY CITY ATTORNEY MENNEMEIER, GLASSMAN & STROUD 980 9th Street, Suite 1700 Sacramento, California 95814-2736 ANDREW WALTER STROUD, ESQUIRE STATE ATTORNEY GENERAL'S OFFICE 455 Golden Gate Avenue, Suite 11000 San Francisco, California 94102-7004 TAMAR PACHTER, DEPUTY ATTORNEY GENERAL

BY:

BY:

BY:

BY: For PlaintiffIntervenor: BY: For Defendant Gov. Schwarzenegger: BY: For Defendant Edmund G. Brown Jr.: BY:

3

APPEARANCES (CONTINUED): For DefendantIntervenors: BY: COOPER & KIRK 1523 New Hampshire Avenue, N.W. Washington, D.C. 20036 CHARLES J. COOPER, ESQUIRE DAVID H. THOMPSON, ESQUIRE HOWARD C. NIELSON, JR., ESQUIRE JESSE PANUCCIO, ESQUIRE ALLIANCE DEFENSE FUND 15100 North 90th Street Scottsdale, Arizona 85260 BRIAN W. RAUM, SENIOR COUNSEL OFFICE OF LOS ANGELES COUNTY COUNSEL 500 West Temple Street, Room 652 Los Angeles, California 90012 JUDY WHITEHURST, DEPUTY COUNTY COUNSEL OFFICE OF ALAMEDA COUNTY COUNSEL 1221 Oak Street, Suite 450 Oakland, California 94612 CLAUDE F. KOLM, DEPUTY COUNTY COUNSEL MANUEL MARTINEZ, DEPUTY COUNTY COUNSEL ADVOCATES FOR FAITH AND FREEDOM 24910 Las Brisas Road, Suite 110 Murrieta, California 92562 JENNIFER L. MONK, ESQUIRE

BY: For Defendant Dean C. Logan: BY: For Defendant Patrick O'Connell: BY: For Proposed Intervenor Imperial County, et al.: BY:

9

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

So the Court of Appeals did an excellent job of expediting the matter, and hearing it and giving it full consideration when it went up the first time. And I understand

that the Court of Appeals is going to make a similar good effort to move that issue along expeditiously. So you'll know more about that later today. And so I

guess it's fair to say that at least in one aspect of this case, you're just touching down here today, and you're soon going to be bouncing back to the Court of Appeals. (Laughter) THE COURT: But we are going to make every effort to

bring you back here in time for our January 11 trial date. Now, I've mentioned the things that I think need to be resolved and I think we can accomplish this morning. there any things that I've overlooked? First, from the plaintiffs and the plaintiff-intervenors, any other items you'd like to add to the agenda? Mr. Olson? MR. OLSON: I think these are mostly in the nature of Are

trial issues and logistic or procedural things. We had a reference earlier in these proceedings to the possibility of televising the trial. still an open item. be done. And I think that's

We expressed support for that, if it could

Our opponents were opposed. And I don't know whether you wish to get into that or

10

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

not, but I wanted to mention it. THE COURT: I appreciate that.

My understanding is that under current Ninth Circuit policy and rules -- and this is true of our local rules, as well -- that is not permitted; that is, dissemination of courtroom proceedings outside the courthouse is not permitted. However, two years ago the Ninth Circuit Judicial Conference voted for a pilot or experimental program to permit dissemination of District Court proceedings that are nonjury proceedings in civil cases. The Circuit Council has taken up the issue of whether it wishes to implement that resolution that was adopted by the Conference. My understanding is that a proposal to implement that is pending before the Judicial Council of the Ninth Circuit, and may very well be enacted in the very near future. And, if it is, then I think this is an issue that we should probably discuss and decide whether we are going to do it; if so, on what basis we're going to do it, and how we can do it consistent with the needs of the case, and to do it in a way that does not interfere in any way with the processing of this case. But, at the moment, I don't think we have a green light for it. And I'm inclined to wait to discuss this with

you after we get a green light, if in fact one comes through.

11

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the case. to us.

MR. OLSON:

That's perfectly acceptable, of course,

And we're happy to address it whenas and if it's an

appropriate time to do so. THE COURT: Very well.

The Ninth Circuit, of course, has had a good deal of experience with this in appellate proceedings, and has broadcast or permitted broadcasting of appellate proceedings in quite a large number of cases. That, of course, is somewhat different than a District Court proceeding, in that those proceedings last an hour, two hours, three hours at most. Three hours won't do very much for us here in this proceeding, so -MR. OLSON: Well, we have a great deal to say about

it when it's appropriate and an a propitious time for us to do so. I won't attempt to get into our point of view on it at

this time, then. THE COURT: That's fine. I think it's probably

something we should discuss, if it is possible. There certainly has been a good deal of interest in And it would appear to fit the formula that the

Ninth Circuit Judicial Conference contemplated in 2007, when it adopted that resolution that I referred to. MR. OLSON: THE COURT: One or two other items -Certainly.

Exhibit 13

NEWS

RELEASE

December 17, 2009

Contact: David J. Madden, [phone] [e-mail]

N inth Circuit Judicial Council Approves E xperim ental Use of Cameras in District Courts
SAN FRANCISCO ­ The Judicial Council of the Ninth Circuit, governing body for federal courts in the western states, has approved, on an experimental basis, the limited use of cameras in federal district courts within the circuit. The action was announced today by Chief Judge Alex Kozinski of the United States Court of Appeals for the Ninth Circuit. The Judicial Council voted unanimously to allow the 15 district courts within the Ninth Circuit to experiment with the dissemination of video recordings in civil non-jury matters only. The action amends a 1996 Ninth Circuit policy that had prohibited the taking of photographs, as well as radio and television coverage, of court proceedings in the district courts. It also responds to a resolution supporting the use of cameras, which was passed by judges and lawyers attending the 2007 Ninth Circuit Judicial Conference. "We hope that being able to see and hear what transpires in the courtroom will lead to a better public understanding of our judicial processes and enhanced confidence in the rule of law. The experiment is designed to help us find the right balance between the public's right to access to the courts and the parties' right to a fair and dignified proceeding," Judge Kozinski said. Cases to be considered for the pilot program will be selected by the chief judge of the district court in consultation with the chief circuit judge. The participating district courts will be asked to evaluate their experiences and report to the Council. The Ninth Circuit takes in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, the U.S. Territory of Guam and the Commonwealth of the Northern Mariana Islands. There are four district courts in California and two in Washington. - more -

The Ninth Circuit Court of Appeals has permitted television and radio broadcasting of oral arguments with approval of the panel hearing the case. Since 1991, the court has permitted video and audio recordings of oral arguments in approximately 200 cases. All of its oral arguments are available on its website http://www.ca9.uscourts.gov/media/

###

Exhibit 14

Exhibit 15

Case3:09-cv-02292-VRW Document324

Filed12/28/09 Page1 of 7

0BCooper

& Kirk
[phone] Fax [phone]

1BLawyers

A Professional Limited Liability Company

Charles J. Cooper [e-mail]

1523 New Hampshire Avenue NW Washington, D.C. 20036

December 28, 2009 The Honorable Vaughn R. Walker Chief Judge United States District Court for the Northern District of California 450 Golden Gate Ave. San Francisco, CA 94102 Re: Perry v. Schwarzenegger, No. C-09-2292 VRW (N.D. Cal.)

Dear Chief Judge Walker: I write on behalf of Defendant-Intervenors ("Proponents") to reiterate our objections, conveyed in my letter of October 5, to televising the proceedings in this case beyond the confines of the courthouse. See Doc. No. 218. Proponents respectfully submit that photographic or video depiction of the trial proceedings in this case is not authorized, and it would violate this Court's Local Rule 77-3, this Court's General Order No. 58, and the policy of the Judicial Conference of the United States. As explained in detail below, the concerns animating the policy adopted by the Judicial Conference ­ particularly the unacceptable danger that the right to a fair trial will be undermined and the potential for intimidation of witnesses and litigants ­ apply with particular force in this case. The Media Coalition seeks leave to broadcast and webcast the trial proceedings in this case, relying upon a press release issued by the Ninth Circuit on December 17, 2009. See Doc # 313. However, the Judicial Council for the Ninth Circuit has not yet issued an order or resolution setting forth the policies and procedures that will govern the pilot program described in the press release (for example, the Ninth Circuit's press release does not specify whether a trial may be broadcast over the objection of one of the parties). More importantly, the Ninth Circuit has not yet provided notice and an opportunity to comment on the pilot program or the (as yet unpromulgated) policies and procedures that will govern it. As explained below, this Court is bound to comply with its Local Rule unless and until it either is amended by this Court following notice and an opportunity to comment or is abrogated by order of the Judicial Council following notice and an opportunity to comment. See FED. R. CIV. P. 83(a)(1); 28 U.S.C. § 2071(b) & (c)(1); 28 U.S.C. § 332(d).

Case3:09-cv-02292-VRW Document324

Filed12/28/09 Page2 of 7

The Honorable Vaughn R. Walker December 28, 2009 Page 2 of 7

1.

Current Governing Policy

This Court's Rule 77-3 flatly prohibits the broadcast or webcast of trial proceedings beyond the courthouse: "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." Likewise, this Court's General Order No. 58 provides that the "[p]olicy of the Judicial Conference of the United States prohibits, in both civil and criminal cases in all district courts, broadcasting, televising, recording, or photographing courtroom proceedings for the purposes of public dissemination." See also United States District Court for the N.D. Cal., General Information Guide for Journalists at 4 (October 29, 2009) ("Broadcasting of proceedings is prohibited by policy of the Judicial Conference of the United States."). The Judicial Conference of the United States adopted the current policy in 1996. See JCUS-SEP 96, p. 54, available at http://www.uscourts.gov/judconf/96-Sep.pdf. The policy is based upon the potentially negative impact that the public broadcast of federal trial court proceedings could have on the administration of justice. After an extensive study of the issue in 1994, the Judicial Conference rejected proposals for public broadcast of trial court proceedings. See JCUS-SEP 94, pp. 46-47, available at http://www.uscourts.gov/judconf/94-Sep.pdf. "Based upon the data presented, a majority of the Conference concluded that the intimidating effect of cameras on some witnesses and jurors was cause for concern, and the Conference declined to approve the Committee's recommendation to expand camera coverage in civil proceedings." Id. In testimony before Congress in September 2007, the Chair of the Judicial Conference's Court Administration and Case Management Committee explained the Judicial Conference's position, in part, as follows: The Judicial Conference position is based on a thoughtful and reasoned concern regarding the impact cameras could have on trial proceedings. [Public broadcast] has the potential to undermine the fundamental rights of citizens to a fair trial. It could jeopardize court security and the safety of trial participants, including judges, U.S. attorneys, trial counsel, U.S. marshals, court reporters, and courtroom deputies. The use of cameras in the trial courts could also raise privacy concerns and produce intimidating effects on litigants, witnesses, and jurors, many of whom have no direct connection to the proceeding. * * *

Because cameras in trial courts could profoundly and negatively impact the trial process, the Judicial Conference strongly opposes any legislation that would allow the use of cameras in the United States district courts.

Case3:09-cv-02292-VRW Document324

Filed12/28/09 Page3 of 7

The Honorable Vaughn R. Walker December 28, 2009 Page 3 of 7 Cameras in the Courtroom: The "Sunshine in the Courtroom Act of 2007," H.R. 2128: Hr'g Before the H. Comm. on the Judiciary, 110th Cong. (Sept. 27, 2007) (statement of The Honorable John R. Tunheim, Judge, United States District Court for the District of Minnesota and Chair of the Court Administration and Case Management Committee of the Judicial Conference), available at http://www.uscourts.gov/testimony/ Tunheim_cameras092707.pdf. 2. The Position of the Ninth Circuit Judicial Council

Shortly after the Judicial Conference of the United States adopted its policy against the broadcast of federal district court proceedings, the Judicial Council of the Ninth Circuit followed suit, "vot[ing] to adopt the policy of the Judicial Conference of the United States regarding the use of cameras in courtrooms on May 24, 1996." See Resolution 1: Instituting a Circuit Rule Permitting Photographing, Recording and Broadcasting in Non-Jury, Civil Cases Before the District Courts at 1 (copy submitted to the Judicial Conference of the United States on May 7, 2009) (attached as part of Exhibit A) at 3. In July 2007, the Ninth Circuit Judicial Conference adopted a resolution recommending that the Judicial Conference of the United States change its policy to permit the broadcast of civil, non-jury trials. Id. at 2. The Ninth Circuit Judicial Conference also recommended that, "to the extent permitted by Judicial Conference [of the United States] procedures, this Circuit should adopt a Rule that would allow the photographing, recording, and broadcasting of non-jury, civil proceedings before the District Courts in the Ninth Circuit." Id. Despite these recommendations, no action was taken by the Ninth Circuit Judicial Council for nearly two years. Finally, in May 2009, the Ninth Circuit Judicial Council forwarded the recommendation to the Judicial Conference of the United States. See Letter from Cathy A. Catterson to The Honorable John R. Tunheim (May 7, 2009) (attached as Exhibit A at 1). During the interim, "[t]he Ninth Circuit Judicial Council [had] considered the resolution at a number of meetings following the 2007 Judicial Conference but deferred action to await possible developments at the national level." Id. For reasons left unstated, the Ninth Circuit Judicial Council decided in May 2009 "that it is appropriate to forward the resolution now and ask that it [be] considered by [the Committee of the Judicial Conference of the United States on Court Administration and Case Management] at its June meeting." Id. As noted above, the Judicial Conference of the United States has not retreated from its policy against the use of cameras in federal district court proceedings. Indeed, as recently as July 2009, the Judicial Conference of the United States strongly reiterated its concern about cameras in the courtroom in a letter to Congress. The Conference again stressed that "[t]he Federal Judiciary is . . . very concerned that the effect of cameras in the courtroom on participants would be to impact negatively on the trial process and thereby interfere with a fair trial." Letter from

Case3:09-cv-02292-VRW Document324

Filed12/28/09 Page4 of 7

The Honorable Vaughn R. Walker December 28, 2009 Page 4 of 7 James C. Duff to Senators Patrick J. Leahy and Jeff Sessions (July 23, 2009) (attached as Exhibit B) at 2. Among many other concerns, the Judicial Conference again emphasized its considered judgment that "[t]elevision cameras can intimidate litigants, witnesses, and jurors, many of whom have no direct connection to the proceeding and are involved in it through no action of their own. Witnesses might refuse to testify or alter their stories when they do testify if they fear retribution by someone who may be watching the broadcast." Id. On December 17, 2009, the Ninth Circuit issued a press release announcing that the Ninth Circuit Judicial Council "has approved, on an experimental basis, the limited use of cameras in federal district courts within the circuit." See News Release, Ninth Circuit Judicial Council Approves Experimental Use of Cameras in District Courts, available at http://www.ce9.uscourts.gov/cm/articlefiles/137-Dec17_Cameras_Press%20Relase.pdf. The press release provided no details as to how the program will be implemented other than to state that "[c]ases to be considered for the pilot program will be selected by the chief judge of the district court in consultation with the chief circuit judge." Id. Nor has the Ninth Circuit adopted a Circuit Rule allowing the broadcast of non-jury civil trials as recommended by the 2007 Ninth Circuit Judicial Conference resolution. According to the Office of the Circuit Executive (the contact listed on the press release), there is no resolution, order, or other publicly available information setting forth the policies and procedures that will govern the new pilot program. Nor has the Ninth Circuit Judicial Council taken any action to abrogate this Court's Local Rule 77-3. And it has not yet provided notice and the opportunity to comment concerning the program. In these circumstances, it is clear that this Court's Local Rule 77-3 "has the force of law," Weil v. Neary, 278 U.S. 160, 169 (1929), and therefore remains binding on this Court. See, e.g., United States v. Yonkers Bd. of Education, 747 F.2d 111, 112 (2d Cir. 1984) ("So long as [local rule prohibiting television broadcasting of judicial proceedings] do[es] not conflict with rules prescribed by the Supreme Court, congressional enactments, or constitutional provisions, [it has] the force of law. Accordingly, [such local rule is] binding on the district judges until properly amended or repealed.") (citations omitted); United States v. Hastings, 695 F.2d 1278, 1279 nn.45 (11th Cir. 1983) (district court "was bound by" local rule "prohibit[ing] television cameras in the courtroom"). This Court is, of course, authorized to amend its local rules, but Congress has provided by law that "[a]ny rule prescribed by a court, other than the Supreme Court, under subsection (a) shall be prescribed only after giving appropriate public notice and an opportunity for comment." 28 U.S.C. § 2071(b); see also FED. R. CIV. P. 83(a)(1) ("After giving public notice and an opportunity for comment, a district court, acting by a majority of its district judges, may adopt and amend rules governing its practice."). This Court's own rules are to the same effect. See Local Rule 83-1 ("The local rules of this Court may be modified or amended by a majority vote of the active Judges of the Court in accordance with the procedures set forth in this rule."); Local Rule 83-3(a) ("Before becoming effective, any proposed substantive modification of the local

Case3:09-cv-02292-VRW Document324

Filed12/28/09 Page5 of 7

The Honorable Vaughn R. Walker December 28, 2009 Page 5 of 7 rules shall be subject to public comment in accordance with FRCivP 83."). This Court must also first "appoint an advisory committee for the study of the rules of practice ... of such court," which "shall make recommendations to the court concerning such rules." 28 U.S.C. § 2077(b); see also Local Rule 83-1 ("Any proposed substantive modification or amendment of these local rules must be submitted to a Local Rules Advisory Committee for its review ...."). The circuit judicial council is authorized to modify or abrogate a district court's local rules. See 28 U.S.C. § 2071(c)(1); FED. R. CIV. P. 83(a)(1). But its authority to do so is limited in two significant respects. First, the Judicial Council is authorized to abrogate this Court's rules only if the Council determines that the rule is "inconsistent" with the Federal Rules of Civil Procedure. Congress has specified that "[e]ach judicial council shall periodically review the rules which are prescribed under section 2071 of this title by district courts within its circuit for consistency with rules prescribed under section 2072 of this title [i.e., the Federal Rules]. Each council may modify or abrogate any such rule found inconsistent in the course of such a review." 28 U.S.C. § 332(d)(4). Obviously, this Court's Local Rule 77-3 is entirely consistent with the Federal Rules ­ indeed, it adopts and applies the policy adopted by the Judicial Conference of the United States. Second, even if the Ninth Circuit Judicial Council had the substantive authority to abrogate this Court's Local Rule 77-3, Congress has prescribed specific procedures that must be followed: Any general order relating to practice and procedure shall be made or amended only after giving appropriate public notice and an opportunity for comment. Any such order so relating shall take effect upon the date specified by such judicial council. Copies of such orders so relating shall be furnished to the Judicial Conference and the Administrative Office of the United States Courts and be made available to the public. 28 U.S.C. § 332(d)(1); see also In re Sony BMG Music Entertainment, 564 F.3d 1, 8 (1st Cir. 2009) (holding that notice and opportunity to comment are not required when circuit judicial council review did not result in resolution "to modify or abrogate any local rule but, rather, endorsed existing practice in the districts within the circuit"). Because none of these procedures has been followed (indeed, the Ninth Circuit Judicial Council has not as yet even purported to abrogate Local Rule 77-3), the Local Rule remains in force and binding on this Court. In similar circumstances, the First Circuit recently issued a writ of mandamus overturning an order entered by the District Court of Massachusetts permitting a webcast of a trial. See In re Sony BMG Music Entertainment, 564 F.3d 1 (1st Cir. 2009). As in this case, the governing Local Rule barred the broadcast. See id. at 10 (reprinting rule). The trial court had sought to read into the text discretionary authority to deviate from the rule, but the

Case3:09-cv-02292-VRW Document324

Filed12/28/09 Page6 of 7

The Honorable Vaughn R. Walker December 28, 2009 Page 6 of 7 First Circuit rejected that effort. In so holding, the Court of Appeals emphasized the importance of the policy adopted by the Judicial Conference of the United States based on its conclusion that " `the intimidating effect of cameras' in the courtroom presented `cause for concern.' " Id. at 7 (quoting JCUS-SEP 94, p. 46, available at http://www.uscourts.gov/judconf/94-Sep.pdf). The First Circuit held that "the Judicial Conference's unequivocal stance against the broadcasting of civil proceedings (save for those few exceptions specifically noted in the policy itself), is entitled to substantial weight." Id. The Court stressed its belief that "the district court, institutionally, would construe its rule to avoid a head-on clash with the national standard." Id.1 See also In re Complaint Against District Judge Billy Joe McDade, No. 07-09-90083 (7th Cir. Sept. 28, 2009) (Easterbrook, C.J.) (finding that district court judge "engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts" by permitting live broadcast of a civil trial with the agreement of the parties). 3. The Judicial Conference's Fair Trial Concerns Apply With Great Force in This Case

Publicly televising the proceedings in this case would give rise to the Judicial Conference's consistent and oft-repeated concerns "that the effect of cameras in the courtroom on participants would be to impact negatively the trial process and thereby interfere with a fair trial." Letter from James C. Duff to Senators Patrick J. Leahy and Jeff Sessions (July 23, 2009) (attached as Exhibit B) at 2. Most importantly, given the highly contentious and politicized nature of Proposition 8 and the issue of same-sex marriage in general, the possibility of compromised safety, witness intimidation, and/or harassment of trial participants is very real. Indeed, lead counsel for Plaintiffs has acknowledged that "widespread economic reprisals against financial supporters of . . . Proposition 8" resulted from public disclosure of the names of donors during the campaign. Doc #187-1 at 6-7. And the record of other forms of harassment against Proposition 8 supporters is well documented. See Doc #s 187-1, 187-2 at ¶¶ 10-12; 187-9 at ¶¶ 6-8; 187-9 at 12-15; 187-11; 18712 at ¶¶ 5-6; 187-13 at ¶ 8; see also Thomas M Messner, The Price of Prop 8, The Heritage Foundation, available at www.heritage.org/Research/Family/bg2328.cfm ("expressions of support for Prop 8 have generated a range of hostilities and harms that includes harassment, intimidation, vandalism, racial scapegoating, blacklisting, loss of employment, economic hardships, angry protests, violence, at least one death threat, and gross expressions of antiThe Sony Court also found support in the 1996 resolution of the First Circuit Judicial Council embracing the position taken by the Judicial Conference. See Sony BMG, 564 F.3d at 78. The Ninth Circuit Judicial Counci