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. 8

NO. 10-____ UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT IN RE: DENNIS HOLLINGSWORTH, GAIL J. KNIGHT, MARTIN F. GUTIERREZ, MARK A. JANNSON, AND PROTECT-MARRIAGE.COM--YES ON 8, A PROJECT OF CALIFORNIA RENEWAL DENNIS HOLLINGSWORTH, et al., Petitioners v. UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORIA, Respondent, KRISTEN M. PERRY, SANDRA B. STIER, PAUL K. KATAMI, JEFFREY J. ZARRILLO, CITY AND COUNTY OF SAN FRANCISCO, NON-PARTY THE MEDIA COALITION, 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, DEAN C. LOGAN, in his official capacity as Registrar-Recorder/County Clerk for the County of Los Angeles, and HAK-SHING WILLIAM TAM, Real Parties in Interest. United States District Court for the Northern District of California Civil Case No. 09-CV-2292 VRW (Honorable Vaughn R. Walker) APPENDIX TO THE EMERGENCY PETITION UNDER CIRCUIT RULE 27-3 FOR A WRIT OF MANDAMUS OR PROHIBITION TO THE NORTHERN DISTRICT OF CALIFORNIA Andrew P. Pugno LAW OFFICES OF ANDREW P. PUGNO 101 Parkshore Drive, Suite 100 Folsom, California 95630 [phone]; [phone] Fax Brian W. Raum James A. Campbell ALLIANCE DEFENSE FUND 15100 North 90th Street Scottsdale, Arizona 85260 [phone]; [phone] Fax Charles J. Cooper Michael W. Kirk Jesse Panuccio COOPER AND KIRK, PLLC 1523 New Hampshire Ave., N.W. Washington, D.C. 20036 [phone]; [phone] Fax Attorneys for Petitioners

Dockets.Justia.com

Index of Exhibits Description Notice to Parties (1/7/2010) Transcript of Hearing (1/6/2010) Statement of Hon. Diarmuid O'Scannlain for the Judicial Conference of the United States Letter from James C. Duff (July 23, 2009) Resolution of the Ninth Circuit Judicial Conference (July 2007) Northern District of California's Local Rule 77-3 N.D. Cal. Gen. Order No. 58 Letter from Cathy A. Catterson (May 7, 2009) Transcript of Hearing (Sept. 25, 2009) Letter from Plaintiffs to the Honorable Vaughn R. Walker (October 5, 2009) (Doc. 218) Letter from Defendant-Intervenors to the Honorable Vaughn R. Walker (October 5, 2009) (Doc. 218) Transcript of Hearing (December 16, 2009) USCA 9th Circuit News Release (December 17, 2009) NDCA Public Notice (Screenshot of December 29, 2009) Letter from Defendant-Intervenors to the Honorable Vaughn R. Walker (December 28, 2009) (Doc. 324) Exhibit 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15

Letter from Defendant-Intervenors to the Honorable Vaughn R. Walker (December 29, 2009) (Doc. 326) NDCA Announcement of Proposed Revision to L.R. 77-3 Letter from Defendant-Intervenors to the Honorable Vaughn R. Walker (January 4, 2010) (Doc. 336) NDCA Notice of Adopted Amendment to L.R. 77-3 (Screenshot of January 4, 2010) Statement of Hon. John R. Tunheim for the Judicial Conference of the United States Statement of Hon. Edward R. Becker for the Judicial Conference of the United States Statement of John C. Richter for the Dep't of Justice U.S. Dep't of Justice, Office of the Inspector General, Review of the Protection of the Judiciary and the United States Attorneys United States Court of Appeals for the Ninth Circuit, Opportunity for Comment ­ Rules Governing Judicial Misconduct Complaints (Dec. 21, 2009)

16 17 18 19 20 21 22 23

24

Exhibit 1

Case3:09-cv-02292-VRW Document358

Filed01/07/10 Page1 of 2

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 KRISTIN M PERRY, SANDRA B STIER, PAUL T KATAMI and JEFFREY J ZARRILLO, Plaintiffs, CITY AND COUNTY OF SAN FRANCISCO, Plaintiff-Intervenor, v 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 clerkrecorder of the County of Alameda; and DEAN C LOGAN, in his official capacity as registrarrecorder/county clerk for the County of Los Angeles, Defendants, DENNIS HOLLINGSWORTH, GAIL J KNIGHT, MARTIN F GUTIERREZ, HAKSHING WILLIAM TAM, MARK A JANSSON and PROTECTMARRIAGE.COM ­ YES ON 8, A PROJECT OF CALIOFORNIA RENEWAL, as official proponents of Proposition 8, Defendant-Intervenors. / IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

No

C 09-2292 VRW NOTICE TO PARTIES

Case3:09-cv-02292-VRW Document358

Filed01/07/10 Page2 of 2

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

After hearing the parties and counsel for media regarding the suggestion that the above action be included in the Ninth Circuit pilot project on audio-video recording and transmission announced on December 17, 2009, the undersigned on January 6, 2010 formally requested the Chief Judge of the Ninth Circuit to approve inclusion of the trial in the pilot project on the terms and conditions discussed at the January 6, 2010 hearing and subject to resolution of certain technical issues.

VAUGHN R WALKER United States District Chief Judge

2

Exhibit 2

Pages 1 - 94 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA BEFORE THE HONORABLE VAUGHN R. WALKER KRISTIN M. PERRY, SANDRA B. STIER, PAUL T. KATAMI, and JEFFREY J. ZARRILLO, ) ) ) ) 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. ) ___________________________________)

NO. C 09-2292 VRW

San Francisco, California Wednesday January 6, 2010

TRANSCRIPT OF PROCEEDINGS

Reported By: Katherine Powell Sullivan, CRR, CSR 5812 CSR 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 GIBSON, DUNN & CRUTCHER LLP 555 Mission Street, Suite 3000 San Francisco, California 94105-2933 ETHAN D. DETTMER, JR., 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 ERIN BERNSTEIN, DEPUTY CITY ATTORNEY MENNEMEIER, GLASSMAN & STROUD 980 9th Street, Suite 1700 Sacramento, California 95814-2736 ANDREW WALTER STROUD, ESQUIRE

BY:

BY:

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

STATE ATTORNEY GENERAL'S OFFICE 455 Golden Gate Avenue, Suite 11000 San Francisco, California 94102-7004 BY: TAMAR PACHTER, DEPUTY ATTORNEY GENERAL (Appearances continued on next page)

3

APPEARANCES (CONTINUED): For DefendantIntervenors: BY: For Proposed Intervenor Imperial County, et al.: BY: For Media Coalition: BY: For Doug Swardstrom: BY: COOPER & KIRK 1523 New Hampshire Avenue, N.W. Washington, D.C. 20036 MICHAEL W. KIRK, ESQUIRE JESSE PANUCCIO, ESQUIRE ADVOCATES FOR FAITH AND FREEDOM 24910 Las Brisas Road, Suite 110 Murrieta, California 92562 ROBERT H. TYLER, ESQUIRE JENNIFER L. MONK, ESQUIRE DAVIS WRIGHT TREMAINE LLP 505 Montgomery Street, Suite 800 San Francisco, California 94111-6533 THOMAS R. BURKE, ESQUIRE HICKS THOMAS LLP 8001 Folsom Boulevard, Suite 10 Sacramento, California 95826 ERIC GRANT, ESQUIRE

4

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 Rico. THE CLERK: JANUARY 6, 2010

PROCEEDINGS 10:05 A.M.

Calling civil action C 09-2292, Kristin

M. Perry, et al. versus Arnold Schwarzenegger, et al.
MR. RICO: Good morning, everyone. My name is Buz

I'm the IT manager for the District Court here. Judge Walker asked me to give a brief presentation to

you all, and allow for some questions and answers afterwards, discussing the cameras that you see here in the courtroom. I'm going to give you a demonstration of a test video that we made the other day, to show you the concept that we came up with, and give you an impression on how we're going to allow for public access, how we would like to allow for public access. You will be able to see the presentation on the video monitors there as well as hear it through the sound system. will be happy to repeat the little one-minute video that we have, if you like. To give you a brief overview to begin with, we have three cameras, stationary cameras, that are dedicated viewing: The counsel, the judge, and the witness. There are no other room cameras. not move, zoom, pan, or anything like that. And the cameras do They are merged I

into a single video image that I'll bring up on the screen

5

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

right now.

Looks like that.

(Image displayed) There's a clock running in the upper right-hand corner, notation at the actual case name and number, the court logo. And then you see an actual video from that. I'm going to run the video right now so you can see what happens. We're able to moot the sound that's recorded and

is also streamed over to the ceremonial courtroom on the 19th floor which we will be using for overflow purposes and down to the media center that's on the first floor. In addition to being able to moot the sound, we can black out any of the cameras upon request of the judge. So if

we have a witness who does not wish to appear on camera, the judge can specifically request that to the IT department, where I will be sitting at my desk ready to moot any camera he wishes. So here runs the demo. (Demonstration video played in open court.) MR. RICO: You can see he's talking now.

(Demonstration video played in open court.) MR. RICO: of this. So, as you can see, we can moot any aspect

We can continue to hear the audio if the camera is The only thing we can't do is, we There also would be no

turned off, if you wish.

can't turn off individual microphones.

point to doing that because the other microphones in the room

6

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

would pick up anybody else talking. Also, there's really no point in turning off the audio for the other rooms or the video for the other rooms, necessarily, unless the courtroom is also cleared out, because there will be public here from the courtroom. Nevertheless, the intent right now is to record the video of the hearing and then make that available to the public at a slightly later time. So to enact that, we've started up a YouTube channel, where we are able to upload -- we already have uploaded the same video you just saw. We are really proud of that video, as you can tell. (Laughter) MR. RICO: So the idea is basically that. There's some

We'll be recording the session.

technical issues we have to get through to be able to get the video ready for YouTube, uploaded to YouTube. And then YouTube

has a processing time, so odds are videos won't be available until many hours, or possibly the next morning, after the hearing or the session is over. We're going to try to make that as quickly as possible. live. The judge specifically did not want it broadcast

He did want the delay involved in it. And, again, anything that is mooted, audio or video,

is then the same way recorded that way and sent to the overflow

7

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

chambers and to the -- the overflow courtroom, excuse me, and to the media center. So with that, does anybody have any questions? the back. UNIDENTIFIED SPEAKER: were told is plugging into this. us to record, as well? MR. RICO: The question was: There's a TV truck with There is a TV truck that we Is there a live feed out for In

a live feed coming out. The television stations actually do have a fiberoptic link that goes to the media center. The purpose of that link

is so that they can connect to their own cameras down in the media center for the purposes of recording interviews. not for the purpose of patching into the system. It's

They do not

have any type of patch, nor are they allowed to record what they actually see on the screen, which I think is probably below the quality they wish anyway. But, yeah, the purposes of

that patch is not for feeding out this link directly. Any other questions? Here in the front. MR. BURKE: I have a number of questions for the

Media Coalition, but I assume the judge is also going to answer questions. MR. RICO: aspect of this. Yes. I'm just here for the technical

8

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

There's another question over here. UNIDENTIFIED SPEAKER: Did I take it from what you

said, the judge is determined -- is not inclined to telecast any of the trial live? MR. RICO: I'll leave that answer to the judge. But,

at this point, my direction is to record and then make available later; not to make it available outside of this building live. We are looking into the possibility of streaming live to other courthouses in the Ninth Circuit, possibly outside the Ninth Circuit, which may allow the public to come to those courts to see the video live, but not to allow the streaming live to the media or to the public or Internet directly. Yes, here in front. UNIDENTIFIED SPEAKER: proceeding? MR. RICO: entire proceeding? Their only limitation, per our contract with them, is a file-size limit. files we can do. We don't have a limitation on the number of The question is: Will YouTube carry the Will YouTube carry the entire

Our intent is to upload the entire thing.

There is some technical issues on that because your average movie may be two hours long and we've got eight hours a day of this stuff. So we are going to try to get as much of it up

there as we can, if not all.

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 use?

Yes. UNIDENTIFIED SPEAKER: MR. RICO: What's the YouTube address?

The YouTube address right now is So it's like U.S. District Court

youtube.com/usdccand.

California Northern District. UNIDENTIFIED SPEAKER: Are you going to be recording Or

it and streaming it out in HD quality, at the very least? do you know what quality you are sending it out? MR. RICO:

We are going to try to record this at the The higher the quality, the longer So if speed is of the issues,

highest possible quality.

it takes to process everything.

we might drop down the quality so we can upload it to YouTube faster. Right now, we are still working out the kinks. We are

going to try to do the best we can. Another question in front? MR. BURKE: Are those the cameras that you plan to

MR. RICO:

Yeah.

The equipment that you see in the They are

courtroom right now are the cameras we are using. standard cameras. They are running all in HD.

And the video feed you see on the screen here in this movie is also HD. The images that are seen in the ceremonial

courtroom and media center are also all HD. UNIDENTIFIED SPEAKER: Do you happen to know if

YouTube has had this arrangement in other courts in the past?

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 that?

MR. RICO: arrangement?

The question was:

Does YouTube have this

There are other arrangements with other courts.

There's a federal contract between YouTube and the federal government and individual entities within the government. The

most noted one is, if you go to youtube.com/whitehouse, all of the White House videos are there. are trying to match them. Yes. UNIDENTIFIED SPEAKER: What do we have to worry about Do we have to ask anyone for They look really good. We

as far as licensing is concerned?

permission to rebroadcast, or is this public domain for the government? MR. RICO: The question was asked: Do we have any

issues about licensing? I'm not an expert in that, but, as far as I know, this is a matter of public record. UNIDENTIFIED SPEAKER: Can we quote you as saying

(Laughter) MR. RICO: public record. I guess whatever I say is a matter of

I'm just the IT guy here.

(Laughter) MR. RICO: accept that. This is also an experiment, as was noted by the I believe the judge can overrule that or

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

announcement in the Ninth Circuit. this.

We are trying our best at

This is the first time this has been done, and we didn't have a lot of time to prepare. So the whole thing might

be cancelled or put in some kind of degraded state in some kind of way, if we can't manage to keep up this full workload. So, with that, the judge asked me to take about 15 minutes, and that's what I've taken. (Pause in proceedings.) THE CLERK: Recalling civil action C 09-2292 So thank you very much.

Kristin M. Perry, et al. versus Arnold Schwarzenegger, et al. Counsel, please step forward and state your appearances along with whom you represent, for the record. MR. OLSON: Good morning, Your Honor.

Theodore B. Olson, Gibson, Dunn & Crutcher, on behalf of the plaintiffs. THE COURT: Good morning, Mr. Olson. Good morning, Your Honor.

MR. BOUTROUS:

Theodore J. Boutrous, Jr., also for the plaintiffs, also from Gibson, Dunn & Crutcher. THE COURT: Mr. Boutrous, good morning. Good morning, Your Honor.

MR. DETTMER:

Ethan Dettmer, from Gibson, Dunn, on behalf of the plaintiffs. THE COURT: Mr. Dettmer.

15

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

couple of other issues. One was the depositions and the scope -- some of the deposition objections. the order. I think the Court had mentioned them in

We would like permission to reopen several of the

depositions, in light of the Ninth Circuit's amended opinion which puts many documents back on the table, and the objections which we think were baseless during the depositions that have occurred so far. THE COURT: Why don't we take that up at the time we

address the Swardstrom deposition. MR. BOUTROUS: That makes sense, Your Honor.

We have a couple of housekeeping matters in connection with the trial that I thought we could maybe raise at the very end of the hearing. THE COURT: That will be fine. Thank you, Your Honor.

MR. BOUTROUS: THE COURT: details. Any others?

There always are those housekeeping

Any other items that we need to discuss

this morning, besides those that I mentioned? Well, the first issue is, of course, the issue of recording these proceedings. And you've had a demonstration by

the Court's IT manager, Mr. Rico, of what he is prepared to do by way of recording these proceedings. As you know, the Ninth Circuit Court of Appeals,

16

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

Ninth Circuit Council, has approved an experimental pilot program to record District Court civil nonjury proceedings that appear to be of public interest. And this particular case has certainly been identified as a case that is appropriate for that pilot project. Chief Judge Kozinski has authorized that these proceedings today be recorded and be made available to the Internet through the connection, the government contract that the government has with Google YouTube. Now, my understanding is that there is no objection, and I think there can be essentially no objection, to the streaming video and audio image of these proceedings into the overflow courtroom, which is the ceremonial courtroom in this building. My understanding is that the Ninth Circuit would also like that video to go to the Ninth Circuit courthouse here in San Francisco, at 7th and Mission, and would propose to make that available at Ninth Circuit courthouses in Pasadena, Portland, and Seattle. And my understanding, also, is that the Ninth Circuit has received a request to make that streaming video available to the Northern District of Illinois, at the federal courthouse in Chicago. I'm not aware, at this time, that there are requests

17

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

by any other courts, but it's conceivable there may be. Those transmissions would, of course, be simultaneous with the proceedings. The matter which I think probably we have some reason to discuss this morning is the second step of the process, and that is, namely, the transmission of these proceedings on a delayed basis to YouTube, for purposes of posting on the Internet so the proceedings can be made generally available. My understanding is that the plaintiffs do not object to this. And we have Mr. Burke, from the Media Coalition, who We have some concerns that And so I'm going to give

has submitted materials on this.

Mr. Kirk and his clients have raised.

all parties an opportunity to add to what they have previously submitted on this subject. So, let me begin you with, Mr. Boutrous. What would

you like to add to the materials that have been submitted? MR. BOUTROUS: Your Honor, first, I would like to say

that we strongly support the Court's plan, and the demonstration was very helpful. And we think that if ever there were a case that would be perfect for this pilot program, it would be this case, because of the extraordinary public interest, the effect on millions of citizens in California and nationwide. constitutional issue. I think, based on the demonstration, it confirms our It's a

18

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

thinking that the Court would be able to protect privacy interests to the extent they are raised, some of the concerns that the proponents have raised about witnesses and reluctance to be in a televised trial, with the ability to turn off the camera or otherwise limit coverage as the Court deems appropriate. So we think this is an ideal situation to use this pilot program. And, more broadly, I think the openness in

allowing people to see and hear what happens in the case as close to simultaneously as possible really will relieve some of the pressure of people wanting to come and be in the courtroom. And, in the First Amendment context, not talking about cameras specifically, the Supreme Court and the Ninth Circuit have said that the value of openness gives people more confidence in the system, whatever their views of the issues, when citizens can see how things are proceeding in an orderly way, with witnesses testifying, with the Court presiding. It

brings a confidence from the public in the results and in the process. values. THE COURT: Well, televised court proceedings, of And we think that using cameras would foster those

course, have a checkered history. What makes this case different? Why is this case not

going to suffer from some of the problems that have attended these other cases that have been televised?

19

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

MR. BOUTROUS:

Several things, Your Honor.

First, the fact that it is a bench trial, I think it really eliminates a number of the concerns that have been raised in -- regarding prior trials that have been televised, and concerns about future televised trials, because it's the Court. The Court can control the presentation and there aren't

the jury concerns. Secondly, we are talking about constitutional issues, not so much relating to individual circumstances. some individuals, our clients' stories. There are

But beyond that, we

are talking about issues of widespread importance and constitutional questions, unlike other cases that are in trial, if we are talking about a murder trial or some other type of case that's very fact specific. That's why I think it makes this case, really, an ideal situation for having cameras in the courtroom. And I

think even though they object to the cameras, Counsel on the other side and our team are, I think, ready to work with the court to make it work smoothly and in a way that will be informative to the public and, I think, for real public good. THE COURT: Well, couldn't someone who is, say, a

witness in a case have some objection to having his or her testimony recorded for purposes of posting on the Internet? It's qualitatively different, isn't it, from getting in the witness stand and testifying before a courtroom of

20

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

people? MR. BOUTROUS: objection. Theoretically, they might have an

I don't think it's a valid one, in the sense that,

as the Supreme Court has said, what happens in the courtroom is public property. This is the people's courtroom. And it

really is a mechanism for allowing people to see what is happening in their courtroom. That said, I do recognize that some individuals may feel a shyness and a reluctance to be broadly disseminated on the Internet. To the extent there is a real concern, I think

the Court has the ability to control that. And we would certainly be -- work with the Court to the extent there are real concerns and real issues regarding particular witnesses. Things like opening statements, closing arguments, vast pieces of the case in terms of expert witnesses, I don't think would raise any of those issues. That's why I think this And we strongly

is really a good case for the pilot program. support the Court's proposal.

The other thing I wanted to raise was on the rule-making issues that the proponents' counsel have raised. It seems to me, one, this really isn't a change in any of the court's rules. The General Order 58 says, "Unless

otherwise ordered by a judge of the court," when it's referring to electronic devices.

21

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

And the Rule 77-3 is not being changed. still stands.

The rule

The Ninth Circuit, which has authority in these And that's what is

matters, has authorized a pilot program. being undertaken.

And, this court has invoked the immediate need provision of the notice and comment statute regarding local rules, and asked for comment. So I think all of those procedural issues that have been raised by the proponents are meritless, and, in any event, have been addressed by the Court. Thank you. THE COURT: Very well. Thank you, Mr. Boutrous.

Mr. Burke, you have weighed in on behalf of a group of media folks on this issues. MR. BURKE: Yes, Your Honor.

And the Media Coalition appreciates the Court's willingness to hear the concerns and perhaps enhancements that the media coalition can give to the Court's consideration of this particular case being the first of the Ninth Circuit's trials to be televised. We have submitted briefing for the Court which may address some of the larger issues, and I'm happy to address those. But I have three basic comments that I want to point to

the Court, and then talk specifically about the framework that's been proposed for the camera coverage.

22

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 first is, it goes to that question that these are historic proceedings; and the issue that this Court will decide will have profound importance to millions of people. And to answer the Court's question about the significance of this case versus some other case -- and the nature of cases perhaps not to be named in the past, where things have not gone as well as others would expect, in some people's impressions -- millions have voted on this very issue that the Court is going to decide. They voted recently on it.

And what happens in this federal court in San Francisco is going to be closely followed not only in California but throughout the nation and, indeed, the world. So the question really is: What can more realtime TV

camera coverage provide to this case if it is, indeed, the first case to be televised? And, I think, most importantly, allowing TV camera coverage will educate the public about how an independent federal judiciary can effectively try, with rules of evidence and procedure, complex and in this case politically sensitive issues which will come up in this case, like this case. It makes it, indeed, as Mr. Boutrous says, the ideal case to be televised, given the issues, given the interest, and given the role of the federal court in this particular issue. And, of course, I guess I would be playing to the audience here, both the Court and to counsel, but there is

23

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

tremendously experienced counsel ready to try this case and zealously represent both sides. That's an ideal setting for

the Court to have a case where camera coverage is allowed. There are, however, some concerns based on what we had heard previously and certainly with what we have seen in the presentation. And this is in no way to diminish the

extraordinary efforts that the Court's staff has clearly gone to, to set up this program. But if you would grant me the

license to comment on certain aspects of that, the Media Coalition would really like to offer potentially some substantial enhancements to that. But the key issue, and I would like to touch on it initially, is the notion of whether or not there is going to be a realtime broadcast. And the Court has outlined that there

may be, with respect to the overflow courtroom, the Ninth Circuit courtroom and other courthouses around the country. But, truly, I think if there is a concern about something more expansive than that -- and there can be, and it can be far more realtime -- the Court's question has to be about control. And I can assure the Court that the Court will have full control over whatever is televised, whatever is streamed, however contemporaneous that can be. I want to introduce from afar Grace Wong, along with the crew from In Session, formerly known as Court TV. They

24

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

have flown in today.

They are available to talk to the Court

and to demonstrate to the Court and to counsel, today or some other time before the trial, various additional options that might be available. And let me just touch on a few of them.

But before I do, please, understand that this very crew that's prepared to do this work was hired by the Justice Department to televise live to the world Saddam Hussein's trial in Baghdad, which it did without incident. Worldwide audience.

And what's important there, from that experience, is, not only did it happen, and the crew that is here to do this is the crew that you would have at your disposal, there was a half-an-hour delay. That was the only delay involved in that. That was something that was

And that did not have to happen.

requested as a part of their arrangement. That is something the Court should bear in mind, in terms of the bona fides of this group who have literally thousands of hours of experience of California camera coverage, more than 30 federal trials, principally through the trial period in the early '90s. They have tremendous experience, and

they would make that available to the Court. Let me just touch on four things, with respect to what was outlined. One is TV camera quality.

And, Your Honor, no offense to the cameras who obviously can't be offended, but those are consumer-quality cameras. They are not broadcast production quality cameras.

25

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

And that significance, if this Court wants to achieve, especially on a downloaded streaming basis, wants high production values with respect to the camera coverage that it would allow. It looks pretty good with respect to the But from the end of those

demonstration here in the court.

receiving at the end, perhaps on an Internet connection on the download, that quality difference will be significant. So

replacing the cameras with broadcast-quality cameras would be an important upgrade. Secondly, these microphones work well, but these are not broadcast-quality audio. There is no -- there doesn't

appear to be any separate broadcast-quality audio available for the proceeding. That would be an important, yet very simple,

change that could be made to enhance what the Court has proposed. Third, the issue of split screens, we saw the demonstration. And in practice that will work. But with a bit

of technology, referred to generally as a switch feed function, if one person is speaking, the camera can -- the image that people can see is of that person speaking as opposed to a permanent breaking down of three different. So if no one is

speaking in two of the boxes, that person's image will not be a tiny image. And especially, again, for screening and streaming online, that can be a critical distinction as to what can be

26

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

seen and what can't, in terms of the video. There's also some technical support that could be produced. And I did note Mr. Rico's comment that the coverage

that the staff might be able to provide -- and I'm not trying to quote him; we tried to make him into a lawyer earlier, and that wasn't fair -- the whole thing might be cancelled or degraded if it can't be accomplished by the Court's staff. And this is exactly what we're concerned about. And,

you know, with due respect, the in camera crew are the best in the business. And this is what they do for a living. And that

will not happen on their watch, and it doesn't have to be a concern for the Court. THE COURT: MR. BURKE: client. Broadcast-quality footage is available in different formats. And given the range of media that will be covering You mean the In Session crew? Correct. I apologize, especially to my

this, there is definition, high-def, and digital, and various formats will be requested. That's an issue that can be I do not

addressed by the Media Coalition with technology.

know that the court is prepared or the staff is prepared to address that. And, also, finally, the issue of distributed network for Internet access. YouTube site. We've heard this morning about the

But, clearly, the downfall there, the

27

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

disadvantage there is that is not going to be instantaneous. When In Session does its live coverage, In Session is able to stream live that coverage on cnn.com/live. available. And, in this instance, especially with the experience of the California Judicial Council and its website, which saw it crash for a few hours on March 5th, certainly the Court does not want to be streaming on its own site. So, certainly, the suggestion of YouTube is a change, and an improved one, in terms of bandwidth capacity. doesn't address the issue of instantaneous access. But it And it's

That is

something I really hope the Court would consider differently. There is a substantial demand here, and there will be heavy network use, which would call for a more distributed network for Internet access. I'm happy to address any of these particular points. I'm happy to have Ms. Wong talk with the Court, answer the Court's questions or provide a demonstration, including robotic cameras, smaller cameras, cameras that you won't know are there. Court. And that's the technology that's available to the Please, just ask. THE COURT: Very well. Thank you, Mr. Burke.

Mr. Kirk, do you want to weigh in on behalf of your clients? MR. KIRK: Thank you very much, Judge Walker.

28

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

And, may it please the Court, and let me emphasize, first, how happy I am to be before Your Honor. (Laughter) THE COURT: MR. KIRK: Even though it's only once. Even though it's only once.

I'd like to begin with Your Honor's introductory comments concerning, sort of, the state of play, and, first, confirm that Your Honor was correct that the defendant-intervenors do not have an objection to providing streaming coverage to the overflow courtroom here at the courthouse. This morning was, I think, the first we've heard of the suggestion that other courthouses around the country, in Chicago, Pasadena, Seattle, and Portland, and perhaps the Ninth Circuit courthouse, as well, might be interested in having streaming coverage there. And while it's certainly not quite the same as a live broadcast to the public, it does strike me, at least on first hearing, at least a step in that direction as we, you know, add five or six different sites where the material can be broadcast. It at least is stepping in the direction of a

public broadcast. So I would register an objection to that, that I would just fold into our objection to the broader question of whether the proceedings ought to be broadcast or recorded for

29

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

later broadcast, as I understand the suggestion that's on the table. We've laid out in our papers in, I think, two or three letters that we've submitted to the Court, the basis for our objections. And, largely, I just rest on those papers.

We believe the trial should not be televised largely for the reasons that were stated in multiple proceedings over the last 15 years by the Judicial Conference of the United States. We do think broadcast imperils proponents' right to a fair trial before this Court, and we do think it will violate their due process rights. THE COURT: MR. KIRK: How so? Probably the most compelling concern we

have, Your Honor -- and it's one that the Judicial Conference has repeatedly emphasized -- is the unacceptable risk that broadcasting will have an impact on witnesses' testimony. And

the Judicial Conference has kind of identified two different ways. The one that, quite frankly, concerns us the most is the

potential for intimidating witnesses. As the Court is aware, and as I think we've documented in our papers, the Judicial Conference has voiced particular concern about the possibility of intimidating witnesses as a result of broadcasts. And, Your Honor, we do believe that those concerns

30

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

are at their apex in this particular case. THE COURT:

This is --

Aren't those concerns generally voiced in Whereas, here we have a group

connection with criminal trials?

of individuals, your clients, who organized and gathered to put together a political campaign to change the constitution of California; who undertook to raise a great deal of money to run that campaign and run extensive advertisements and a very extensive campaign. They assumed a public face, if you will, a

public responsibility in doing so. And the witnesses on your witness list are academics, for the most part, people who stand up before classrooms all the time and express their views and opinions and so forth. Aren't these folks different from the kind of individuals that the Judicial Council has expressed concern about, in connection with witness intimidation? MR. KIRK: I don't believe so, Your Honor.

It's true that some of the Judicial Conference's concerns are particular to criminal cases, but they have been quite clear that those concerns carry over to testimony in civil cases as well. That's why their policy is not limited to opposing or prohibiting the use of broadcast cameras in criminal cases. extends to civil cases as well. In terms of the witnesses on our list, yes, our experts, many of them are academics. Nevertheless, it's one It

31

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

thing to stand up in the classroom.

It's another thing to be

testifying across the country and across the world on camera in a case like this, one that has raised passions on both sides. It's a case that is contentious and highly politicized. And, most importantly, Your Honor, the record is full of instances in which individuals who have supported Proposition 8 have been subjected to harassment and intimidation. THE COURT: How is the testimony of the witnesses

going to be different if the testimony is available on the Internet? MR. KIRK: The Judicial Conference's analysis to that

question -- which also drew on the Supreme Court's decision in the Estes case, Estes vs. Texas -THE COURT: MR. KIRK: 1965. And I would also commend the Court, by the way, to Justice Harlan's concurring opinion, which also addressed the effect on witnesses. the same thing. THE COURT: MR. KIRK: This was a criminal trial, wasn't it? It was a criminal trial, Your Honor; And all of those sources basically say That goes back a good many years. It does, Your Honor. It's, I believe,

although, the discussion of the effect on witnesses didn't appear to be -- certainly, the discussion in the Court's

32

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

opinions didn't appear to be focused on the fact that it was criminal. But, yes, Your Honor is correct, it was criminal. The points that were made in the Estes opinions in the various materials that the Judicial Conference have been published is that the effect on witnesses is twofold. On the

one hand, the knowledge that instead of just testifying to those that are sitting in the courtroom you're testifying to untold thousands and millions of people can have the impact of causing some witnesses to be more timid, to be more retiring, to testify differently than they would in a circumstance where they are just in the courtroom. Conversely, Your Honor, the Supreme Court's opinions and the Judicial Conference's various reports and testimony make the point that some witnesses adopt a bit more bravado or overdramatization, knowing that what they are saying is on a broader platform; it's going out across the world. Now, in, I think the Estes case, if I'm recalling correctly, the Court made the point that -- and, certainly, the Judicial Conference has made this in its materials, that there is no way to know in advance that Mr. Smith, who is going to testify on Tuesday, will be in one category or the other. the conclusion that was reached was that the risk is just unacceptable. The Judicial Conference's conclusion was that But

and is that the risk to a fair trial is unacceptably high if broadcast is permitted.

33

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

Now, Your Honor, I did want to respond to a point that Mr. Boutrous made in this regard, and it was featured in the technical presentation that we received this morning from the Court's staff. And that is, Mr. Boutrous suggested that, well, to the extent a witness might feel concerned about it or intimidated by it, the Court could order that that witness's testimony or his picture would be blacked out. And the

presentation we saw showed that, indeed, the Court's staff has that capability. We don't think that solves the problem. And the

Judicial Conference, again, in -- I believe, in testimony responding to proposed legislation, specifically addressed that issue and concluded that that solution does not solve the problem because, number one, in this particular case, a witness who is identified as not wanting to appear and testify on camera, that fact, in and of itself, will shine a spotlight on that person and draw additional attention to that person that otherwise would not be evoked if the witness was just one of the dozens testifying in open court like all the other witnesses. And, second, that possibility of blacking out doesn't address the other side of the coin that the Judicial Conference was worried about; that is, the witness whose testimony is altered in the overdramatization fashion that the -- that a

34

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

live broadcast or a recorded broadcast that goes up a day later provides as a platform. THE COURT: Since I left the practice of law 20 years

ago, it has become common for deposition testimony to be videotaped. MR. KIRK: happen. THE COURT: It does happen quite frequently. That That's true, Your Honor. That does

And those videotapes are played in trials.

process seems not to have affected deposition testimony in any material way. The testimony is what it is. And, of course,

it's very helpful to a fact finder, whether it's a judge or a jury, to be able to see the witness in deposition testifying. It's proven to be a very powerful enhancement of this method of discovery. So why can you not say the same thing about trial testimony? Seeing it, essentially, as it unfolds is much more

informative than reading a cold record or reading a newspaper story about the testimony. MR. KIRK: Judge Walker, I don't believe the impact

on a witness whose deposition is being videotaped is the same as the impact on a witness who is testifying at trial knowing that the video recording of that testimony will be broadcast throughout the world. In the deposition setting, the videotape is taken or

35

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 digital -- I guess they are digital now -- is recorded and kept, but it's not broadcast to the world. in the lawyer's files. Instead, it's kept

Maybe a clip of it will three years Maybe it won't. But it's not

later be shown at the trial. broadcast worldwide.

As I said, we're not objecting to the physical presence of the camera in the courtroom for the purpose of showing the testimony in the overflow courtroom. And I would

submit that that's perhaps analogous to the deposition scenario. But the primary impact on the witness is the knowledge that the testimony is going to be beamed or broadcast to thousands if not millions around the country, and, indeed, with the Internet around the world. I did want to also, very briefly, Your Honor, respond to a couple of the procedural points that Mr. Boutrous made. First, Mr. Boutrous suggested that the Court's rules that were in effect up until mid December perhaps haven't been changed, and perhaps those might have authorized the broadcast of these proceedings. suggestion. With regard to General Order 58, that order, I don't believe, has been changed since 1995. And if the Court takes a We certainly don't agree with that

look at that, paragraph Roman numeral III is quite clear in adopting the policy of the Judicial Conference of the

36

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

United States, which is again a policy against the broadcast of civil proceedings. Mr. Boutrous made reference to paragraph IV, Roman IV, which begins with a "except as authorized by the presiding judge." And, then, one of the exceptions it authorizes is, if

the judge authorizes it, photography can take place, for various reasons, in the courtroom. That provision in Roman IV does not eliminate the policy position taken in paragraph 3 of General Order 58. And

any confusion on that, I think, was probably cleared up, if the Court takes a look at the media guide that the clerk's office here in the District Court published for this very case. That

media guide, at least as it stood in December, and I think it was subsequently revised a bit, in light of the changes in the local rules, but as it stood in December, and I think as it stood today, it pointed out to the media and other interested people the General Order 58 adopts the Judicial Council's policy, and it prohibits the broadcast or televising of civil proceedings. Now, with regard to Local Rule 77-3, as I understand the situation, the Court has amended that. And the amendment

does state that it authorizes the court -- it maintains the prohibition against the broadcast of civil proceedings, but it includes an exception in which the court can have a particular case participate in the pilot program that the Ninth Circuit

37

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

had announced. We have outlined, I think, most of our objections to the procedures that led to the adoption of that rule, in our papers, and I won't repeat those. The only new points I would

make is, I understand that either yesterday, or perhaps the day before, the court posted a revised copy of the rule with a notice that indicated the court was invoking the immediate need exception that was set forth in 28 U.S.C. Section 2071E. I would just note for the Court that we don't believe that there is any immediate need for this particular case to be broadcast. It would be our view that to the extent the rules are going to be changed on a going forward basis, and a pilot program is proper and authorized, that that ought to be done for another what we would submit would be more appropriate case that could -THE COURT: MR. KIRK: What would be an appropriate case? Your Honor, our view would be there is

none, because we agree with the view taken by the Judicial Conference that there is none. But if that view is rejected, I would respectfully submit, an appropriate case would be a more run-of-the-mill sort of case that better captures the daily operations, perhaps, of the Federal District Court. And certainly not a

case where any party has objected or any witness has objected.

38

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

And certainly not a case where there is already specific record evidence demonstrating that because of the highly contentious and politicized nature of the underlying issue, that individuals have been subjected to harassment and intimidation. If ever there was a case where it was appropriate, Your Honor, we would respectfully submit, this isn't it. So we would say, Your Honor, that we don't believe that there is an immediate need that justifies changing the rule without appropriate notice and comment. And the one other point I'd like to make, in putting the rule out for notice and comment, even as the immediate need exception was invoked, the period that was authorized for comment was exceptionally short. of five business days. And it would be our view that, especially given the magnitude of the change being proposed to the court's rules, and the fact that it is contrary to a long-standing policy adopted by the Judicial Conference of the United States that the Conference believed was necessary to ensure fair trials, we would submit that a longer comment period really is appropriate. And with that, Your Honor, we would be happy to rest on the papers that we've submitted. And I thank you so much, I think it was on the order

Your Honor, for taking the time to hear our argument. THE COURT: Very well. Thank you, Mr. Kirk.

39

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 quickly.

MR. BOUTROUS: THE COURT:

Your Honor.

One last word, Mr. Boutrous, very

MR. BOUTROUS:

May I, Your Honor, very quickly?

I

want to focus on this witness issue, very briefly. These witnesses and the proponents are involved in a case that will affect the rights of millions. thrust themselves into this issue. The proponents

As the Court noted, ran a They have their own

$40 million campaign, highly public. videos on YouTube.

Dr. Marks, one of the proponents' experts, Schubert and

links in his bio to a YouTube bio of himself.

Flint have highly-publicized YouTube videos about this case. And I think it's ironic that the proponents are claiming that their witnesses have been subjected to harassment and intimidation in a case where we're talking about stripping away the rights of individuals who themselves have been subject to a history of that kind of behavior. So I think that the arguments about the witnesses and the change in witness testimony are meritless, speculative, and in some ways water under the bridge. The Judicial Conference of the Ninth Circuit, when it issued the release in the pilot program, addressed those issues and wanted to experiment. This is the perfect case to do it

in, and we would ask the Court to move forward with this plan. Thank you, Your Honor.

40

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 COURT:

Very well.

Well, thank you, Counsel.

With respect to how we proceed from here, let me make the following comments: First of all, this certainly is a case that has sparked widespread public interest. The issues are issues that

have been widely debated in a variety of different forums. Now, of course, the issues that we're going to try here are not so much the policy issues, as the constitutional issues that the plaintiffs have raised and that the defendant-intervenors have joined. And those issues, as I said, I think, at our very first gathering, are highly fact laden. One need only pick up

the papers and start reading them to observe that there are a lot of factual hypotheses that have been asserted on both sides. And the other cases that have involved this issue, the issue that is the ultimate issue here, that I'm aware of, have not been aired in the course of a trial, in which witnesses get on the stand, testify, make their factual assertions, and are subject to cross-examination. Facts that are asserted in a declaration or affidavit are quite different from facts that appear and that are voiced in the witness stand and subjected to cross-examination. So I think a trial can be highly informative. And

because of the high information content associated with these

41

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

proceedings, I think this is a case which merits very serious consideration for widespread distribution. And, of course, today we have the capability of providing that kind of widespread distribution through, essentially, the Internet. There's, of course, another aspect of this. As the

lawyers here know far better than anyone else, trials sometimes involve a lot of tedium. And I don't want to pop anybody's

balloon, but it may very well be that as the trial unfolds there will be a lot less interest in the case than there may be now. And, perhaps, if that's the situation, maybe that would

be an important lesson to be drawn from these proceedings. (Laughter) THE COURT: But, nonetheless, it does seem to me that

if we are able to show the public how these issues are dealt with in a judicial proceeding, with some of the most capable and skilled lawyers in the United States, and some of the most responsible lawyers in the United States, who will not, I am quite sure, engage in some of the unfortunate tactics that have perhaps marred other cases in the past, that have been subject to broadcast, so I think this case clearly merits a serious consideration for distribution through the processes that have been outlined. I don't know, with all due respect, Mr. Kirk, that a run-of-the-mill is the kind of case that will provide the civic

42

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

lesson that might be helpful.

I think the only time that

you're going to draw sufficient interest in the legal process is when you have an issue such as the issues here, that people think about, talk about, debate about and consider. The run-of-the-mill traffic accident or injury case is simply not a case that is likely to draw the attention that is necessary to provide that lesson to the public. And I've always thought that if the public could see how the judicial process works, they would take a somewhat different view of it. I've noticed that in the last 20 years with juries, how they find their experience listening to the process so very revealing. And they come away from it with a much deeper and

keener appreciation of the judicial process. So I think it's worth trying in this case. With respect to the various rule changes, the subject of broadcast or televising federal court proceedings is one that has been debated in the judiciary and in the councils of the judiciary, the federal judiciary, for many, many years. There was a proposal for a pilot project as early as 1990, that was advanced. It was advanced in this court by the

late chief judge of this court, Robert Peckham, at one of the very first judges meetings that I attended. I recall thinking, if there was any motion that it would be safe for a brand-new judge to make at a judges'

43

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

meeting, it would be a motion for supporting a recommendation by Judge Peckham, for participation in a pilot project very much like the pilot project we are now dealing with. the motion at the judges' meeting. a second. Well, the subject continued to be debated. It was So I made

The motion died for want of

debated at the Ninth Circuit Judicial Conference in 2007, and. The Conference, at that time, adopted a resolution seeking a change in Judicial Conference policy, to permit photographing and recording and broadcasting in nonjury civil cases. Now, not much was done on that for some period of time. I think, primarily, because the Ninth Circuit Judicial

Conference was hopeful that Conference policy would change. The Judicial Council of the Ninth Circuit forwarded to the Judicial Conference Committee on Court Administration the recommendation of the Ninth Circuit Conference, requested action in May of this year. Nothing occurred. I understand

the court administration committee considered the Ninth Circuit's request, but took no action. And, so, in light of that, Chief Judge Kozinski, in October, October 22nd, appointed a committee to evaluate the possibility of adopting a Ninth Circuit rule. And, clearly,

you're correct, this case was very much in mind at that time because it had come to prominence then and was thought to be an ideal candidate for consideration.

44

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

And the committee, which consisted of Judge Sidney Thomas, Chief Judge Audrey Collins, in the Central District of California, and myself, made a recommendation to the Ninth Circuit Judicial Council, which unanimously adopted the rule which you've seen, permitting a pilot project, an experimental -- it was really a pilot project that was announced in the Ninth Circuit press release. Our court, in response to that, met and amended Local Rule 77-3, to permit participation in that Ninth Circuit pilot project. At the time, we considered that to be a conforming amendment. Our rules, of course, conform and must conform to And I think

the Federal rules and to the Ninth Circuit rules.

our view, at the time, was that was simply conforming our local rules to the Circuit rules. And, then, the issue was raised as to whether or not there was an adequate basis. And so I take responsibility for,

perhaps, a mixed signal with the court clerk, who did not have the opportunity to consider that basis for the amendment. And

that may be the reason why the comment period started later than it might otherwise have started. But, in any event, I'm satisfied, after consideration of the matter and discussions with those in the Circuit who have views and authority on these matters, that the path is clear for participation in a pilot project of this case, should

45

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

we determine that that is appropriate.

And I think for the

reasons I mentioned a moment ago, that it is appropriate. Now, with respect to the comments made by Mr. Burke, I very much appreciate that In Session and other media may have a great deal more experience than the court staff, may have equipment advantages and superiorities over that that the Court has. Might very well provide higher quality audio and video And perhaps that would be -- would

images of the proceedings. perhaps be helpful.

But, I think, in view of the -- I don't want to say the experimental nature, but the nature of these proceedings, it's important for this process to be completely under the Court's control, to permit the Court to stop it if that proves to be a problem, if it proves to be a distraction, if it proves to create problems with witnesses. And, so, I think this is a process that must remain under the Court's control. And, so, with whatever limitations

we may be working with, I'm not prepared, frankly, to permit a third-party vendor to come in and to provide these services. think those steps must remain under the control of the Court. And, as I say, if at any time the matter becomes a distraction, it creates collateral problems, if we have technical difficulties -- and we may very well have technical difficulties, given the limitations that we confront -- I will discontinue the program. I

46

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

But I think it's worth attempting in a case of this particular nature and this particular interest. So I understand your concerns, Mr. Kirk, and respect them, but I think we should proceed step by step. Now, what I will do is to tell Chief Judge Kozinski of my determination. And if he approves, then we will begin a

recording of the proceedings beginning on Monday; and the distribution of those recordings in the manner that has been described to you by Mr. Rico. So I want to make it clear, this case is about Proposition 8. It is not about television in the courtroom. And I think the first

So let's turn to those issues.

issue we ought to address is the motion to intervene by Imperial County. Ms. Monk, are you going to be dressing that? MR. TYLER: THE COURT: MR. TYLER: THE COURT: MR. TYLER: Your Honor, I will. Thank you.

Let's see, you are Mr. -Robert Tyler, Your Honor. Tyler. Your Honor, first, I'd like to thank you

and the Court staff for allowing this motion to proceed on the expedited basis that it has. First -THE COURT: MR. TYLER: Well, I appreciate your prompt response. Well, we did everything we can to avoid

Exhibit 3
available at: http://www.usacourts.gov/testimony/exhibit4CameraTest05.pdf

E x h i b it 4

STATEMENT OF JUDGE DIARMUID O'SCANNLAIN ON BEHALF OF THE JUDICIAL CONFERENCE OF THE UNITED STATES REGARDING S. 829 AS APPLIED TO FEDERAL TRIAL COURTS Introduction The Judicial Conference strongly opposes S. 829, a bill that would "allow media coverage of court proceedings," so far as it applies to the federal trial courts. Of course, the Judicial Conference cannot and does not speak for the Supreme Court. The federal judiciary has examined the issue of whether cameras should be permitted in the federal courts for more than six decades, both through case law and Judicial Conference consideration. The Judicial Conference in its role as the policy-making body for the federal judiciary has consistently expressed the view that camera coverage can do irreparable harm to a citizen's right to a fair and impartial trial. On the other hand, since 1994 the Judicial Conference has permitted "the photographing, recording, or broadcasting of appellate arguments" in the Circuit Courts of Appeals. But, as to the trial courts, we believe that the intimidating effect of cameras on litigants, witnesses, and jurors has a profoundly 40

negative impact on the trial process. Moreover, in civil cases cameras can intimidate civil defendants who, regardless of the merits of their case, might prefer to settle rather than risk damaging accusations in a televised trial. Cameras can also create security concerns in the federal courts. Finally, cameras can create privacy concerns for countless numbers of persons, many of whom are not even parties to the case, but about whom very personal information may be revealed at trial. These concerns are far from hypothetical. Since the infancy of motion pictures, cameras have had the potential to create a spectacle around trial court proceedings. Obvious examples include the media frenzies that surrounded the 1935 Lindbergh baby kidnapping trial, the murder trial in 1954 of Dr. Sam Sheppard, and the more recent Menendez brothers and O.J. Simpson trials. We have avoided such incidences in the federal courts due to the present bar of cameras in the trial courts, which S. 829 now proposes to overturn. The federal courts have shown strong leadership in the continuing effort to modernize the litigation process. This has been particularly true of the federal judiciary's willingness to embrace new technologies, such as electronic case filing and access, videoconferencing, and electr