Perry et al v. Schwarzenegger et al

Filing 771

ORDER of USCA (Attachments: #1 part 2, #2 part 3, #3 part 4, #4 part 5, #5 part 6, #6 part 7, #7 part 8, #8 part 9, #9 part 10)(far, COURT STAFF) (Filed on 4/28/2011)

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NO. 10-16696
ARGUED DECEMBER 6, 2010
(CIRCUIT JUDGES STEPHEN REINHARDT, MICHAEL HAWKINS, & N.R. SMITH)
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KRISTIN PERRY, et al.,
Plaintiffs-Appellees,
v.
EDMUND G. BROWN, Jr., et al.,
Defendants,
and
DENNIS HOLLINGSWORTH, et al.,
Defendant-Intervenors-Appellants.
On Appeal from United States District Court for the Northern District of California
Civil Case No. 09-CV-2292 JW (Honorable James Ware)
APPELLANTS’ MOTION FOR ORDER COMPELLING RETURN OF
TRIAL RECORDINGS
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
David H. Thompson
Howard C. Nielson, Jr.
COOPER AND KIRK, PLLC
1523 New Hampshire Ave., N.W.
Washington, D.C. 20036
[phone]; [phone] Fax

Attorneys for Defendant-Intervenors-Appellants Hollingsworth, Knight, Gutierrez,
Jansson, and ProtectMarriage.com

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TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ....................................................................................iv
INTRODUCTION .....................................................................................................1
STATEMENT ............................................................................................................3
A.

Policies and Rules Governing Broadcast of Trial Proceedings ............3

B.

The District Court’s Efforts to Broadcast the Trial
Proceedings ...........................................................................................5

C.

The Supreme Court’s Decision Prohibiting Broadcast .........................6

D.

Chief Judge Walker’s Creation of the Trial Recordings.......................7

E.

Judge Walker’s Unlawful Public Disclosure of the Trial Recordings
Beyond the Confines of the Courthouse .............................................12

ARGUMENT ...........................................................................................................13
I.

THE TRIAL RECORDINGS MAY NOT BE SHOWN BEYOND THE CONFINES
OF THE NORTHERN DISTRICT OF CALIFORNIA COURTHOUSE ..........................13
A.
B.

Chief Judge Walker Unequivocally Assured Proponents
That the Trial Recordings Would Be for His Exclusive Use
in Chambers.........................................................................................16

C.

II.

The Recordings of the Trial Proceedings Are Under Seal..................15

The Supreme Court’s Stay, the Judicial Council’s Policy, and
the District Court’s Local Rule Prohibit Showing the Trial
Recordings Beyond the Confines of the Courthouse ..........................16

THE COURT SHOULD ORDER THE IMMEDIATE RETURN OF ALL COPIES
OF THE TRIAL RECORDINGS ............................................................................18

CONCLUSION........................................................................................................20

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EXHIBITS
Exhibit 1 – Trial Transcript (Jan. 14, 2010)
Exhibit 2 - Report of the Proceedings of the Judicial Conference of the
United States (Sept. 17, 1996)
Exhibit 3 - Letter from James C. Duff, Secretary of the Judicial Conference
of the United States, to Senators Patrick J. Leahy and Jeff Sessions (July 23,
2009)
Exhibit 4 - Report of the Proceedings of the Judicial Conference of the
United States (Sept. 20, 1994)
Exhibit 5 - Letter from Chief Judge Hug (June 21, 1996)
Exhibit 6 - Unamended Local Rule 77-3 (Dec. 2009)
Exhibit 7 – Trial Transcript (Jan. 11, 2010)
Exhibit 8 – Trial Transcript (Jan 13, 2010)
Exhibit 9 - Letter from Charles J. Cooper (Jan. 14, 2010)
Exhibit 10 - Notice to Parties (Jan. 15, 2010)
Exhibit 11 - Order 2010-3 (9th Cir. Judicial Council Jan. 15, 2010)
(Kozinski, C.J.)
Exhibit 12 - Local Rule 77-3 (Feb. 2010)
Exhibit 13 - Renewed Notice Concerning Revision of Civil Local Rule 77-3
(Feb. 4, 2010)
Exhibit 14 - Local Rule 77-3 (May 2010)
Exhibit 15 - Northern District of California Civil Local Rules web page
(May 18, 2010)
Exhibit 16 - Northern District of California home page (May 18, 2010)
Exhibit 17 - Letter from Media Coalition (May 18, 2010)
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Exhibit 18 - Letter from Charles J. Cooper
Exhibit 19 - Order (May 31, 2010)
Exhibit 20 - Amended Protective Order
Exhibit 21 - Notice to Court Clerk re Plaintiffs’ Request for a Copy of the
Trial Recording (June 2, 2010)
Exhibit 22 – Trial Transcript (June 16, 2010)
Exhibit 23 - Notice to Court Clerk from Plaintiff-Intervenor City and County
of San Francisco re Use of Video (June 2, 2010)
Exhibit 24 - Order (June 9, 2010)
Exhibit 25 - Declaration of Peter A. Patterson (June 29, 2010)
Exhibit 26 - Defendant-Intervenors’ Motion for Administrative Relief (June
29, 2010)
Exhibit 27 - Plaintiffs’ and Plaintiff-Intervenor’s Opposition to DefendantIntervenors’ Motion for Administrative Relief (June 29, 2010)
Exhibit 28 - Findings of Fact and Conclusions of Law (Aug. 4, 2010)
Exhibit 29 - Petition for a Writ of Certiorari, Hollingsworth v. United States
Dist. Ct. (Apr. 8, 2010)
Exhibit 30 - Order, Hollingsworth v. United States Dist. Ct. (S. Ct. Oct. 4,
2010)
Exhibit 31 - Order, Hollingsworth v. United States Dist. Ct. (9th Cir. Oct.
15, 2010)
Exhibit 32 - Office of the Circuit Executive, “Ninth Circuit Current and
Future Vacancy Table” (Mar. 17, 2011)
Exhibit 33 - Report of the Proceedings of the Judicial Conference of the
United States (Sept. 14, 2010)

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TABLE OF AUTHORITIES
Cases

Page

Hollingsworth v. Perry,
130 S. Ct. 705 (2010)...............................................................2, 4-7, 9, 11, 17-18
Hollingsworth v. Perry,
130 S. Ct. 1132 (2010)..........................................................................................6
In re Charge of Judicial Misconduct,
91 F.3d 90 (9th Cir. Judicial Council 1996) .........................................................3
In re Complaint Against District Judge Joe Billy McDade,
No. 07-09-90083 (7th Cir. Sept. 28, 2009)...............................................2, 14, 17
In re Sony BMG Music Entm’t.,
564 F.3d 1 (1st Cir. 2009)...................................................................................17
Matter of Sealed Affidavit(s),
600 F.2d 1256 (9th Cir. 1979) ............................................................................18
Nixon v. Warner Commc’ns, Inc.,
435 U.S. 589 (1978)............................................................................................18
United States v. Lang,
364 F.3d 1210 (10th Cir. 2004) ..........................................................................15
United States v. New York Tel. Co.,
434 U.S. 159 (1977)............................................................................................20
United States v. Nixon,
417 U.S. 960 (1974)............................................................................................16
Statutes and Rules
18 U.S.C. § 2071(a) .................................................................................................15
28 U.S.C. § 332(d)(2)...............................................................................................17
28 U.S.C. § 351(a) ..............................................................................................2, 14
Circuit R. 27-13(d)...................................................................................................19
Circuit Advisory Comm. Note to R. 27-13..............................................................16
Code of Conduct for United States Judges, Canon 2A............................................15
Ninth Circuit Rules of Judicial Conduct art. I, § 3(h)(2).........................................15
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Other
http://www.c-spanvideo.org/program/Vaugh ............................................ 1, 5, 12-13

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Appellants Hollingsworth, Knight, Gutierrez, Jansson, and
ProtectMarriage.com (hereinafter, “Proponents”) respectfully move the Court to
order that former district judge Vaughn Walker cease further disclosures of the
video recordings of the trial proceedings in this case, or any portion thereof, and
that all copies of the trial recordings in the possession, custody, or control of any
party to this case or of former judge Walker be returned promptly to the Court and
held by the court clerk under seal.1
INTRODUCTION
On February 18, 2011, Judge Walker delivered a speech at the University of
Arizona in which he played a portion of the video recording of the crossexamination of one of Proponents’ expert witnesses in the trial of this case. The
speech was video taped by C-SPAN, and it was subsequently broadcast on CSPAN several times beginning on March 22. See http://www.cspanvideo.org/program/Vaugh, “Details – Airing Details.” The speech is available
for viewing on C-SPAN’s website. See id.
By publicly displaying the video recording of a portion of the trial
testimony, Judge Walker (1) violated his own order placing the video recording of
the trial under seal; (2) ignored the clear terms of the district court’s Local Rule 77-

1

Counsel for both Appellees oppose this motion. As indicated in the
Certificate of Service, a copy of this motion has been served upon former judge
Walker.
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3, which prohibits the broadcast or other transmission of trial proceedings beyond
“the confines of the courthouse”; (3) contravened the longstanding policies of the
Judicial Conference of the United States and the Judicial Council of this Court
prohibiting public broadcast of trial proceedings; and (4) defied the United States
Supreme Court’s prior decision in this case ruling that an earlier attempt by thenChief Judge Walker to publicly broadcast the trial proceedings “complied neither
with existing rules or policies nor the required procedures for amending them.”
Hollingsworth v. Perry, 130 S. Ct. 705, 713 (2010). Thus, Judge Walker
“‘engaged in conduct prejudicial to the effective and expeditious administration of
the business of the courts.’” In re Complaint Against District Judge Joe Billy
McDade, No. 07-09-90083 (7th Cir. Sept. 28, 2009) (Easterbrook, C.J.) (quoting
28 U.S.C. § 351(a)).
But even more regrettable, perhaps, than all of this is the fact that Judge
Walker’s use of the trial recording repudiated his own solemn commitment to
Proponents in open court that, despite Proponents’ objection, the trial was being
video recorded “simply for [his] use in chambers,” because it “would be quite
helpful to [him] in preparing the findings of fact.” Ex. 1 at 754:18-19, 755:4. In
reliance on this assurance, Proponents took no action to prevent the recording of
the trial. One of Proponents’ expert witnesses also relied on this assurance,
deciding to testify after then-Chief Judge Walker had made clear that the trial
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recording would not be broadcast. Now a portion of his testimony has appeared on
national television, and he regrets his decision to trust this assurance.
What’s done is done. Judge Walker’s speech, and C-SPAN’s public
dissemination of it, cannot be undone, and given that Judge Walker has recently
retired from the federal bench, he cannot be disciplined. See In re Charge of
Judicial Misconduct, 91 F.3d 90, 91 (9th Cir. Judicial Council 1996). But he can
be ordered to cease further unlawful and improper disclosures of the trial
recordings, or any portion thereof, and to return to this Court any copies of the trial
recordings in his possession, custody, or control. We respectfully request that he
be ordered to do so. We also request that Appellees be ordered to return their
copies of the trial recordings, which were provided to them by then-Chief Judge
Walker for their use in closing argument below and in the appeal to this Court.
Putting aside that providing copies of the trial recordings to Appellees also violated
Local Rule 77-3, the policies of the Judicial Conference and this Court’s Judicial
Council, and then-Chief Judge Walker’s assurances in open court, the purpose for
which they were provided has now been fulfilled, and Appellees’ continued
possession of the recordings can no longer be justified.
STATEMENT
A.

Policies and Rules Governing Broadcast of Trial Proceedings

“In 1996, the Judicial Conference of the United States adopted a policy
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opposing the public broadcast of [trial] court proceedings.” Hollingsworth v.
Perry, 130 S. Ct. 705, 711 (2010); see also Ex. 2 at 54. This policy, which remains
in place today, see Hollingsworth, 130 S. Ct. at 712, is rooted in “decades of
experience and study” showing the potentially negative impact of broadcasting on
trial proceedings. Ex. 3 at 1; see also Hollingsworth, 130 S. Ct. at 711-12; Ex. 4 at
46-47. Indeed, in July 2009 the Judicial Conference forcefully reiterated to
Congress its conclusion that the “negative [e]ffects of cameras in trial court
proceedings far outweigh any potential benefit.” Ex. 3 at 1.
Also in 1996, the Ninth Circuit Judicial Council “voted to adopt the policy
of the Judicial Conference of the United States regarding the use of cameras in the
courts.” Ex. 5. The Council’s policy thus provided: “The taking of photographs
and radio and television coverage of court proceedings in the United States district
courts is prohibited.” Id. “[T]his policy [was] … binding on all courts within the
Ninth Circuit.” Id. Accordingly, the Northern District of California adopted Local
Rule 77-3, which “prohibited the streaming of transmissions, or other broadcasting
or televising, beyond ‘the confines of the courthouse.’” Hollingsworth, 130 S. Ct.
at 711 (quoting Local Rule 77-3); see also id. at 707 (Local Rule 77-3 “forbid[s]
the broadcasting of trials outside the courthouse in which a trial takes place”); Ex.
6.

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B.

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The District Court’s Efforts to Broadcast the Trial Proceedings

Former judge Walker has made no secret of his strong disagreement with the
rules and policies prohibiting the broadcast of trial proceedings. Indeed, his
February 18 speech was entitled “Shooting the Messenger: How Cameras in the
Courtroom Got a Bad Rap.” See http://www.c-spanvideo.org/program/Vaugh. His
advocacy was no less fervent from the bench in this case. His determined effort,
while Chief Judge, to broadcast the trial of this case, and the unlawful procedural
irregularities that it occasioned, are recounted in detail in the Supreme Court’s stay
opinion, which put a stop to that effort. See Hollingsworth, 130 S. Ct. at 708-09,
711-12, 714-15. It suffices to repeat the Supreme Court’s conclusion: “The
District Court here attempted to revise its rules in haste, contrary to federal statutes
and the policy of the Judicial Conference of the United States. It did so to allow
broadcasting of this high-profile trial without any considered standards or
guidelines in place. … [T]he order in question complied neither with existing rules
or policies nor the required procedures for amending them.” Id. at 713.
The Supreme Court was especially concerned about the effect on witnesses.
Noting the Judicial Conference’s determination that broadcasting trial testimony
could have an “intimidating effect … on some witnesses,” even in routine, noncontroversial cases, the Court concluded that this “high-profile,” highly divisive
“case is … not a good one for a pilot program.” Id. at 712, 714-15. Indeed, the
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Court emphasized that “[s]ome of [Proponents’] witnesses have already said that
they will not testify if the trial is broadcast, and they have substantiated their
concerns by citing incidents of past harassment.” Id. at 713. Thus, because public
broadcast could have a chilling effect on witnesses’ testimony and their willingness
“to cooperate in any future proceedings,” the Supreme Court determined that
“irreparable harm will likely result from the denial of the stay.” Id. at 712-13.
C.

The Supreme Court’s Decision Prohibiting Broadcast

On the morning of Monday, January 11, 2010, just before commencement of
the trial, the Supreme Court entered a temporary emergency stay, “order[ing] that
[then-Chief Judge Walker’s] order … permitting real-time streaming is stayed
except as it permits streaming to other rooms within the confines of the courthouse
in which trial is to be held” and that “[a]ny additional order permitting broadcast of
the proceedings is also stayed.” Hollingsworth v. Perry, 130 S. Ct. 1132 (2010).
The temporary stay on its face was set to expire on Wednesday, January 13, when
the Court would enter a decision on Proponents' stay application. Id.
At the opening of trial later that morning, Appellees asked Chief Judge
Walker to continue video recording the proceedings for the purpose of later public
dissemination “in the event the stay is lifted” on January 13. Ex. 7 at 15:9. Chief
Judge Walker accepted Appellees’ proposal over Proponents’ objection that
recording the proceedings was not “consistent with the spirit of” the temporary
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stay issued by the Supreme Court. Id. at 16:16.
Far from lifting the stay, on January 13, the Supreme Court instead
“grant[ed] the application for a stay of the District Court’s order of January 7,
2010, pending the timely filing and disposition of a petition for a writ of certiorari
or the filing and disposition of a petition for a writ of mandamus.” Hollingsworth,
130 S. Ct. at 715.
D.

Chief Judge Walker’s Creation of the Trial Recordings

During the trial proceedings later on January 13, Chief Judge Walker noted
that the Supreme Court’s “guidance” with respect to the issue of broadcasting the
proceedings was “rather limited.” Ex. 8 at 662:18-20. Early the next day,
Proponents filed a letter with the district court “request[ing] that [Chief Judge
Walker] halt any further recording of the proceedings in this case, and delete any
recordings of the proceedings to date that have previously been made.” Ex. 9 at 1.
Proponents explained that, because of the Supreme Court’s ruling on their stay
application, the proceedings were governed by the unamended version of Local
Rule 77-3, which “‘banned the recording or broadcast of court proceedings.’” Id.
at 2 (quoting and emphasizing Hollingsworth, 130 S. Ct. at 708).
A few hours later, Chief Judge Walker opened that day’s proceedings by
reporting that, “in light of the Supreme Court’s decision yesterday, … [he was]
requesting that this case be withdrawn from the Ninth Circuit pilot project.” Ex. 1
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at 674:7-10. Proponents then asked “for clarification … that the recording of these
proceedings has been halted, the tape recording itself.” Id. at 753:22-24. When
Chief Judge Walker responded that the recording “ha[d] not been altered,”
Proponents reiterated their contention (made in their letter submitted earlier that
morning) that, “in light of the stay, … the court’s local rule … prohibit[s]
continued tape recording of the proceedings.” Id. at 753:25, 754:4-6 (emphasis
added).
Rejecting Proponents’ objection, Chief Judge Walker stated that the
unamended “local rule permits … recording for purposes of use in chambers and
that is customarily done when we have these remote courtrooms or the overflow
courtrooms,” and that that the recording “would be quite helpful to [him] in
preparing the findings of fact.” Id. at 754:15-19. Thus, Chief Judge Walker said
that “that’s the purpose for which the recording is going to be made going forward.
But it’s not going to be for purposes of public broadcasting or televising.” Id. at
754:21-23 (emphasis added). Chief Judge Walker then repeated his position that
he was making the recordings only for limited, private use: after noting that “the
[unamended] local rule[] [prohibits] ‘[t]he taking of photographs, public
broadcasting or televising, or recording for those purposes,’” Chief Judge Walker
stated: “So the recording is not being made for those purposes, but simply for use
in chambers.” Id. at 754:24-755:4 (emphasis added). In reliance on Chief Judge
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Walker’s assurances that he was recording the proceedings solely for his personal
use in chambers, Proponents took no further action to prevent the recording.
On January 15, Chief Judge Walker “formally requested Chief Judge
Kozinski to withdraw this case from the pilot project.” Ex. 10 at 2. Chief Judge
Kozinski promptly granted Chief Judge Walker’s request and “rescinded” his
January 8 order designating this case for the pilot program. Ex. 11.
The district court then withdrew the amendment to Local Rule 77-3
authorizing participation in the pilot program. See Ex. 12 (showing Local Rule 773 without amendment). Despite the Supreme Court’s criticism that the amendment
lacked “standards or guidelines,” Hollingsworth, 130 S. Ct. at 713, the district
court re-proposed its amendment to Local Rule 77-3 on February 4, 2010. Ex. 13.
After a comment period, the renewed proposal to amend Local Rule 77-3 lay
dormant until May 2010, when the district court – without any announcement or
indication on its website – published a revised set of Local Rules, effective April
20, containing the amended Local Rule 77-3. See Ex. 14-16.
On January 27, trial was adjourned. Closing argument was then set for June
16, 2010. On May 18, 2010, the Media Coalition requested that Chief Judge
Walker “formally ask Chief Judge Kozinski to again include this case in the pilot
project approved by the Ninth Circuit Judicial Council on December 17, 2009, for
the sole purpose of recording, broadcasting and webcasting” the closing argument
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portion of the trial. Ex. 17. Proponents submitted a letter opposing the request,
explaining that it would violate the stay entered by the Supreme Court. Ex. 18.
While the Media Coalition’s request was pending, and although Chief Judge
Walker had unequivocally assured Proponents that he was recording the
proceedings solely for his own use in chambers, Chief Judge Walker sua sponte
invited the parties “to use portions of the trial recording during closing arguments”
and, to that end, made “a copy of the video … available to the part[ies].” Ex. 19.
Chief Judge Walker added: “Parties will of course be obligated to maintain as
strictly confidential any copy of the video pursuant to paragraph 7.3 of the
protective order,” id., which restricts “highly confidential” material to the parties’
outside counsel and experts and to the Court and its personnel, Ex. 20 ¶ 7.3.
Appellees Perry et al. requested and were given a copy of the recording of
the entire trial proceedings, see Ex. 21, portions of which they played during
closing argument, see Ex. 22 at 2961. Appellee City and County of San Francisco
requested and was given portions of the trial recording, see Ex. 23, but did not play
them during closing argument. Chief Judge Walker denied the Media Coalition’s
request to “record[], broadcast[] and webcast[] closing arguments.” See Ex. 24.
On June 29, 2010, after closing argument, Proponents asked Appellees to
return all copies of the trial recordings in their possession to the district court. Ex.
25 ¶ 2. When they refused, Proponents asked Chief Judge Walker to “order …
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[Appellees] to return to the Court immediately all copies of the trial video in their
possession.” Ex. 26 at 1. Proponents argued that there was “no legitimate
justification for permitting Plaintiffs and [San Francisco] to maintain possession of
copies of the trial video” given that “the sole purpose identified by [Chief Judge
Walker] for disseminating copies of the trial video to [them] – potential use at
closing argument – ha[d] been satisfied.” Id. at 1-2. Proponents added: “[E]ven
with [Chief Judge Walker’s] requirement that all copies of the trial video be
‘maintain[ed] as strictly confidential,’ it cannot be denied that dissemination
beyond the confines of the Court has increased the possibility of accidental public
disclosure,” and thus of the “‘irreparable harm’” that the Supreme Court
acknowledged would “‘likely result’ from public broadcast of the trial.” Id. at 2
(quoting Hollingsworth, 130 S. Ct. at 712). Appellees countered “that once
judgment is entered, the parties and the Court [should] evaluate whether, and to
what degree, the trial recording would be useful to the parties or to the Court in
connection with any additional proceedings and/or appeal.” Ex. 27 at 1.
On August 4, 2010, Chief Judge Walker denied Proponents’ motion to order
the return of all copies of the trial recordings. Ex. 28 at 5. Instead, he
“DIRECTED” the district court clerk “to file the trial recording under seal as part
of the record,” and permitted Appellees to “retain their copies of the trial recording
pursuant to the terms of the protective order.” Id. at 4. After Proponents then
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appealed Chief Judge Walker’s final judgment, the district court clerk transmitted
the certified record to this Court on October 22, 2010. Since then, the trial
recordings have remained continuously under seal.
In the meantime, on April 8, 2010, Proponents petitioned the Supreme Court
to grant review of this Court’s earlier ruling denying their mandamus petition
seeking to prohibit the district court from broadcasting or otherwise disseminating
the trial proceedings. Proponents argued that, in light of Chief Judge Walker’s
withdrawal of his stayed broadcast order and his “unequivocal[] assur[ances] that
[his] continued recording of the trial proceedings was not for the purpose of public
dissemination, but rather solely for [his] use in chambers,” this Court’s order
denying the mandamus petition should be vacated as moot. Ex. 29 at 11-13.
Appellees opposed vacatur of this Court’s order. On October 4, 2010, the Supreme
Court granted the petition, vacated this Court’s mandamus ruling, and “remanded
to [this Court] with instructions to dismiss the case as moot,” Ex. 30, which this
Court did on October 15, 2010, Ex. 31.
E.

Judge Walker’s Unlawful Public Disclosure of the Trial
Recordings Beyond the Confines of the Courthouse

On February 18, 2011, Judge Walker, having stepped down as Chief at the
end of December 2010, gave his speech at the University of Arizona. See
http://www.c-spanvideo.org/program/Vaugh. A substantial portion of the speech,
in which Judge Walker advocated allowing trial proceedings to be broadcast,
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concerned this case. See id., video at 4:40-8:08, 30:49-42:00. At one point, Judge
Walker played for his audience, on a large projection screen, an excerpt from the
trial recording of the cross-examination of one of Proponents’ expert witnesses.
See id., video at 33:12-36:52. Ten days later, on February 28, 2011, Judge Walker
retired from the bench. Ex. 32.
At least four times in late March 2011, C-SPAN broadcast Judge Walker’s
Arizona speech, including the playback of the trial proceedings. See http://www.cspanvideo.org/program/Vaugh. In fact, Proponents’ counsel learned of Judge
Walker’s speech – and of the fact that he publicly showed a portion of the trial
recordings during the speech – as a result of one of those broadcasts. C-SPAN also
made its broadcast of Judge Walker’s speech available for public viewing on its
website. See http://www.c-spanvideo.org/program/Vaugh.
ARGUMENT
I.

THE TRIAL RECORDINGS MAY NOT BE SHOWN BEYOND THE CONFINES OF
THE NORTHERN DISTRICT OF CALIFORNIA COURTHOUSE
The video recordings of the trial in this case may not lawfully be shown

publicly beyond the confines of the Northern District of California courthouse.
The trial recordings remain under seal; then-Chief Judge Walker’s unequivocal
assurances that the trial recordings were only for his use in chambers remain on the
record; the Supreme Court’s decision in this case – if not its stay, which might well
still be in force but for those assurances – and the duly enacted rules of the Judicial
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Council and the district court remain binding and plainly bar public dissemination
of the trial recordings beyond the confines of the courthouse; and the considered
judgment of the Judicial Conference of the United States continues to strongly
counsel against public dissemination of the trial recordings.
The trial recordings were not the personal property of Judge Walker, for him
to use as he pleased; he had access to them only by virtue of his role as the judicial
officer presiding in this case. So, when he played a portion of the trial recordings
during his February 18 speech (which was then disseminated nationally by CSPAN), he violated all of these prohibitions. As Chief Judge Frank Easterbrook of
the Seventh Circuit Court of Appeals stated recently in a disciplinary proceeding
against a district judge who “allowed video recording and live broadcasting … of a
civil proceeding”: A district court “judge who contravenes policies adopted by the
Judicial Conference and the Judicial Council has ‘engaged in conduct prejudicial to
the effective and expeditious administration of the business of the courts.’” In re
Complaint Against District Judge Joe Billy McDade, No. 07-09-90083 (quoting 28
U.S.C. § 351(a)).
The setting for Judge Walker’s public dissemination of the trial recordings –
a speech outside the performance of his official duties – did not exempt him from
any of these prohibitions. Rather, he was obligated to “respect and comply with
the law and [to] act at all times in a manner that promotes public confidence in the
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integrity and impartiality of the judiciary.” Code of Conduct for United States
Judges, Canon 2A; see also Ninth Circuit Rules of Judicial Conduct art. I, § 3(h)(2)
(judge engages in “[c]ognizable misconduct” if his “conduct occurring outside the
performance of official duties … might have a prejudicial effect on the
administration of the business of the courts, including a substantial and widespread
lowering of public confidence in the courts among reasonable people”); cf. United
States v. Lang, 364 F.3d 1210, 1212, 1221-22 (10th Cir. 2004) (court clerk who
“took home” copy of “sealed affidavit” convicted under 18 U.S.C. § 2071(a)),
vacated on other grounds, 543 U.S. 1108 (2005), reinstated in relevant part, 405
F.3d 1060, 1061 (10th Cir. 2005).
To ensure that the confidentiality of the trial recordings is not breached
again, as well as to restore public confidence in the judiciary, this Court should
exercise its inherent power to control the record of this case by ordering that
former district judge Walker cease further disclosures of the trial recordings, or any
portion thereof, and that all copies of the trial recordings that are in the possession,
custody, or control of any party to this case or of former judge Walker be returned
promptly to the Court and held by the court clerk under seal.
A.

The Recordings of the Trial Proceedings Are Under Seal

Then-Chief Judge Walker “DIRECTED” the district court clerk “to file the
trial recording under seal as part of the record.” Ex. 28 at 4. Since then, the trial
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recordings have remained continuously under seal. See Circuit Advisory Comm.
Note to R. 27-13 (“Absent an order to the contrary, any portion of the district court
… record that was sealed below shall remain under seal upon transmittal to this
court.”). The purpose of the seal is to preserve the confidentiality of the sealed
record. See United States v. Nixon, 417 U.S. 960, 960-61 (1974).
B.

Chief Judge Walker Unequivocally Assured Proponents That the
Trial Recordings Would Be for His Exclusive Use in Chambers

Although the Supreme Court had just stayed his broadcast order, then-Chief
Judge Walker insisted on recording the trial proceedings anyway. In doing so over
Proponents’ objection, Chief Judge Walker assured Proponents on the record that
the recording was “not going to be for purposes of public broadcasting or
televising,” but rather “simply for use in chambers.” Ex. 1 at 754:22-23, 755:3-4
(emphasis added). In reliance on Chief Judge Walker’s assurances, Proponents
took no further action to prevent him from recording the trial proceedings. One of
Proponents’ witnesses also relied on those assurances, and now the recording of a
portion of his testimony has been shown by Judge Walker to a large public
audience and, in turn, has been disseminated nationally by C-SPAN.
C.

The Supreme Court’s Stay, the Judicial Council’s Policy, and the
District Court’s Local Rule Prohibit Showing the Trial
Recordings Beyond the Confines of the Courthouse

The Supreme Court ruled that then-Chief Judge Walker’s order authorizing
“the broadcast of [this] federal trial” did not comply with “existing rules or
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policies.” Hollingsworth, 130 S. Ct. at 706, 713. True, the Supreme Court’s stay
later expired when the Court granted Proponents’ petition for certiorari and vacated
this Court’s ruling denying Proponents’ earlier mandamus petition. But the
certiorari petition, and thus the Supreme Court’s disposition thereof, were
predicated on the fact that the mandamus petition was moot in light of Chief Judge
Walker’s unequivocal assurances that the trial recordings were solely for his use in
chambers. But for those assurances, the recording of the trial would plainly have
violated the Supreme Court’s stay and would surely have been halted.
The “rules” and “policies” enforced by the Supreme Court’s stay were those
governing the issue in this Circuit and the district court. The long-standing policy
of the Ninth Circuit Judicial Council still prohibits the “taking of photographs and
radio and television coverage of court proceedings in the United States district
courts.” Ex. 5. This policy is binding on all judges within the Ninth Circuit. 28
U.S.C. § 332(d)(2); see In re Complaint Against District Judge Joe Billy McDade,
No. 07-09-90083; In re Sony BMG Music Entm’t., 564 F.3d 1, 7-9 (1st Cir. 2009).2
Likewise, the district court’s Local Rule 77-3 still “prohibit[s] the streaming

2

The Council purported to “amend” its policy to authorize a pilot program
for broadcasting trial proceedings. Even if that amendment were validly adopted,
but see Hollingsworth, 130 S. Ct. at 708, 713-14 (noting lack of statutorily required
“notice and comment procedures” and lack of “considered standards or guidelines
… for broadcasting”), the Council’s policy would still bar Judge Walker’s public
dissemination of the trial recordings beyond the confines of the courthouse because
this case was not part of the pilot program.
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of transmissions, or other broadcasting or televising, [of district court proceedings]
beyond ‘the confines of the courthouse.’” Hollingsworth, 130 S. Ct. at 711. That
“rule[] ha[s] the force of law.” Id. at 710 (quotation marks omitted).3
Finally, the policy of the Judicial Conference of the United States, which is
“at the very least entitled to respectful consideration,” strongly counsels against
public dissemination of the trial recordings beyond the confines of the courthouse.
Id. at 711-12 (quotation marks omitted).4
II.

THE COURT SHOULD ORDER THE IMMEDIATE RETURN OF ALL COPIES OF
THE TRIAL RECORDINGS
This Court “has supervisory power over its own records and files, and access

[may be] denied where court files might have become a vehicle for improper
purposes.” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978); Matter of

3

To be sure, the district court again purported to amend Local Rule 77-3 in
April or May 2010 to “create[] an … exception to Rule 77-3’s general ban on the
broadcasting of court proceedings ‘for participation in a pilot or other project
authorized by the Judicial Council of the Ninth Circuit.’” Hollingsworth, 130 S.
Ct. at 711. But even if the amendment were valid, but see id. at 708, 713-14
(noting lack of “considered standards or guidelines … for broadcasting”), the rule
would still bar public dissemination of these trial recordings beyond the confines
of the courthouse because this case was not, and could not have been, designated
for inclusion in the pilot program after the renewed amendment to Local Rule 77-3
was adopted. The only order designating the case for a pilot program was
withdrawn long before that amendment was adopted. Ex. 10-11.
4
In September 2010, the Conference announced a “pilot project to evaluate
the effect of cameras in district court courtrooms, of video recordings of
proceedings therein, and of publication of such video recordings.” Ex. 33 at 11.
This pilot project would not have authorized broadcast of the trial proceedings here
because it requires the “consent” of the “[p]arties.” Id. at 12.
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Sealed Affidavit(s), 600 F.2d 1256, 1257 (9th Cir. 1979) (“courts have inherent
power, as an incident of their constitutional function, to control papers filed with
the courts within certain constitutional and other limitations”); see also Circuit R.
27-13(d). The record in this case, which includes the trial recordings, is now
before this Court, having been transmitted by the district court clerk.
As noted earlier, Proponents previously asked then-Chief Judge Walker to
order Appellees to return all copies of the trial recordings. As Proponents
explained then, “even with [Chief Judge Walker’s] requirement that all copies of
the trial video be ‘maintain[ed] as strictly confidential,’” the “dissemination [of the
trial recordings] beyond the confines of the Court” would unduly increase the risk
of “public disclosure” of the recordings. Ex. 26 at 2. Chief Judge Walker denied
Proponents’ request, but his subsequent use of the trial recordings during his
Arizona speech proves that Proponents’ concern was well founded. Neither the
seal, nor Chief Judge Walker’s commitment in open court to use the recordings
only in chambers, nor the Supreme Court’s decision staying his broadcast order,
nor the policy of the Ninth Circuit Judicial Council, nor the district court’s local
rule, nor the policy of the Judicial Conference of the United States prevented him
from publicly showing the trial recordings beyond the confines of the courthouse.
Former judge Walker should therefore be ordered to return to this Court all copies
of the trial recordings and to cease any further use of any portion thereof. See
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United States v. New York Tel. Co., 434 U.S. 159, 174 (1977) (“The power
conferred by the [All-Writs] Act extends, under appropriate circumstances, to
persons who, though not parties to the original action or engaged in wrongdoing,
are in a position to frustrate the implementation of a court order or the proper
administration of justice, and encompasses even those who have not taken any
affirmative action to hinder justice.”).
And now that the trial is over and the appeal has been briefed and argued to
this Court, there is no legitimate reason for Appellees to continue to have a copy of
the trial recordings. They too, therefore, should be ordered to return them to
eliminate the risk of accidental disclosure.
CONCLUSION
For the foregoing reasons, the Court should order that former judge Walker
cease further disclosures of the trial recordings in this case, or any portion thereof,
and that all copies of the trial recordings in the possession, custody, or control of
any party to this case or former judge Walker be returned promptly to the Court
and held by the court clerk under seal.

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April 13, 2011

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Respectfully submitted,
s/ Charles J. Cooper
Charles J. Cooper

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
David H. Thompson
Howard C. Nielson, Jr.
David Lehn
COOPER AND KIRK, PLLC
1523 New Hampshire Ave., N.W.
Washington, D.C. 20036
[phone]; [phone] Fax

Attorneys for Defendant-Intervenors-Appellants Hollingsworth, Knight,
Gutierrez, Jansson, and ProtectMarriage.com

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9th Circuit Case Number(s) 10-16696
NOTE: To secure your input, you should print the filled-in form to PDF (File > Print > PDF Printer/Creator).

*********************************************************************************

CERTIFICATE OF SERVICE
When All Case Participants are Registered for the Appellate CM/ECF System
I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the
United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system
on (date)
.
I certify that all participants in the case are registered CM/ECF users and that service will be
accomplished by the appellate CM/ECF system.
Signature (use "s/" format)
*********************************************************************************

CERTIFICATE OF SERVICE
When Not All Case Participants are Registered for the Appellate CM/ECF System
I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the
United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system
on (date)
.
April 13, 2011
Participants in the case who are registered CM/ECF users will be served by the appellate
CM/ECF system.
I further certify that some of the participants in the case are not registered CM/ECF users. I
have mailed the foregoing document by First-Class Mail, postage prepaid, or have dispatched it
to a third party commercial carrier for delivery within 3 calendar days to the following
non-CM/ECF participants:
Please see attached service list.

Signature (use "s/" format)

s/Charles J. Cooper

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SERVICE LIST

Arthur N. Bailey, Jr., Esq.
HAUSFELD LLP
44 Montgomery Street, Suite 3400
San Francisco, California 94104

Anita L. Staver
LIBERTY COUNSEL
P.O. Box 540774
Orlando, FL 32854

Thomas Brejcha
THOMAS MORE SOCIETY
29 S. La Salle Street, Suite 440
Chicago, IL 60603

Mathew D. Staver
LIBERTY COUNSEL
1055 Maitland Center Commons
2nd Floor
Maitland, FL 32751

Anthony R. Picarello, Jr.
Michael F. Moses
UNITED STATES CATHOLIC
CONFERENCE
3211 Fourth Street, N.E.
Washington, DC 20017
Lincoln C. Oliphant
COLUMBUS SCHOOL OF LAW
The Catholic University of America
3600 John McCormack Road, NE
Washington, DC 20064

Hon. Vaughn Walker
c/o PILLSBURY WINTHROP SHAW
PITTMAN LLP
50 Fremont Street
San Francisco, CA 94105-2228
Hon. Vaughn Walker
c/o BERKELEY LAW
215 Boalt Hall
Berkeley, CA 94720-7200