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)
REPLY ON APPELLANTS’ MOTION FOR ORDER COMPELLING
RETURN OF TRIAL RECORDINGS AND OPPOSITION TO APPELLEES’
MOTION TO UNSEAL
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
ARGUMENT ............................................................................................................. 1
CONCLUSION .......................................................................................................... 9
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)

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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)
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 – Excerpts from 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)

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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)
Exhibit 34 - Response of Kristin M. Perry et al. to Application for
Immediate Stay, Hollingsworth v. Perry, No. 09A648 (S. Ct. Jan. 10, 2010)
Exhibit 35 - Excerpts from Findings of Fact and Conclusions of Law (Aug.
4, 2010)
Exhibit 36 - Statement of Chief Judge Edward R. Becker On Behalf of the
Judicial Conference of the United States

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TABLE OF AUTHORITIES
Page

Cases

Hollingsworth v. Perry, 130 S. Ct. 705 (2010) .................................................passim
In re Marino, 234 B.R. 767 (9th Cir. 1999)............................................................... 9
KFMB-TV Channel 8 v. Municipal Ct., 221 Cal. App. 3d 1362 (1990) .................... 3
San Jose Mercury News, Inc. v. U.S. Dist. Ct., 187 F.3d 1096 (9th Cir. 1999) ........ 5

iv

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ARGUMENT
The video recordings of the trial in this case owe their existence to thenChief Judge Walker’s assurance to Proponents that the recordings were being made
not for the purpose of broadcasting the trial, but solely for his use in chambers.
Not only was this assurance necessary to comply with Local Rule 77-3, which
prohibits dissemination of trial proceedings beyond “the confines of the
courthouse,” it came on the heels of an emergency Supreme Court decision
specifically enforcing Rule 77-3 against Chief Judge Walker. Proponents
understood Chief Judge Walker’s assurance to exclude the possibility that he
would later broadcast, or enable the broadcast, of the trial recording. He
subsequently confirmed this understanding when he emphasized that the refusal of
several of Proponents’ expert witnesses to testify at trial could not reasonably have
been motivated by a concern about “the potential for public broadcast” of the trial
recordings because that potential “had been eliminated.” Ex. 35 at 35-36.
Proponents took Chief Judge Walker at his word, as did two of Proponents’ expert
witnesses in deciding to testify even though the proceedings would be recorded.
Former judge Walker makes no reference to any of this in defending as
“permissible and appropriate” his public use of “the actual cross-examination
excerpt from Perry.” Letter from Vaughn R. Walker 1 (Apr. 14, 2001).
Appellees, for their part, trumpet this course of events as virtuous. “There
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was no reason,” Appellees say, “to keep the video of this trial under the cover of
darkness in the first place.” Pls.-Appellees’ Opp’n to Appellants’ Mot. Regarding
Trial Recordings and Pls.’-Appellants’ Motion to Unseal (“Opp.”) 3. Worse, they
ask this Court to join them in ignoring Local Rule 77-3, Judicial Council policy,
then-Chief Judge Walker’s commitment, and the Supreme Court’s stay decision,
and to unseal and release the trial recordings into the public domain. And this,
they say, will “promote[] public confidence in the integrity and impartiality of the
judiciary.” Opp. 7 (emphasis added).
1.

Appellees assert that former judge Walker has not “violated any rule

or directive with respect to the video in question.” Opp. 6. But Appellees do not
deny that the Supreme Court’s stay decision, Judicial Council policy, and Local
Rule 77-3 prohibit the public dissemination of trial proceedings beyond the
confines of the courthouse. Rather, they advance several specious arguments to
avoid those clear prohibitions.
a.

Appellees contend that Judge Walker’s public dissemination of

a portion of the trial recording did not “violate the Supreme Court’s ruling”
because that ruling “was explicitly limited to the live streaming of court
proceedings to other federal courthouses.” Opp. 8 (quotation marks omitted). But
that was all that the order then under review authorized. See Hollingsworth, 130 S.
Ct. at 709. Importantly, the Supreme Court’s reasoning was not limited to live
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streaming, but rather made clear that the duly enacted and binding version of Local
Rule 77-3 prohibited (as it still prohibits) all public dissemination of trial
proceedings beyond the confines of the courthouse. See id. at 707, 711.
The Media Coalition contributes the argument that the Supreme Court’s stay
decision addressed only “contemporaneous broadcast” of the trial proceedings, not
their subsequent public dissemination. Joinder of Non-Party Media Coalition in
Pls.-Appellees’ Mot. to Unseal (“Media Br.”) 2 (emphasis omitted). On the
contrary, Local Rule 77-3’s prohibition applies regardless of when the public
dissemination occurs. As the Supreme Court recognized, Local Rule 77-3
“prohibited” (as it still prohibits) not only “the taking of photographs, public
broadcasting or televising” of trial proceedings, but also “recording for those
purposes.” Ex. 6, quoted in Hollingsworth, 130 S. Ct. at 710-11; id. at 708 (local
rule “banned the recording or broadcast of court proceedings”). The obvious
import of this prohibition against recording is to prevent subsequent public
dissemination. See KFMB-TV Channel 8 v. Municipal Ct., 221 Cal. App. 3d 1362,
1367-68 (1990) (restriction on “recording for broadcasting” covers “preserving for
later broadcasting”). Nor is there any reason for the rule to treat contemporaneous
and subsequent dissemination differently. Indeed, whether the broadcast occurs
live or on tape delay, the concerns about broadcasting trial proceedings that
motivated the Supreme Court’s stay decision, the policies of the Judicial
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Conference and the Judicial Council, and Local Rule 77-3 are the same: it “can
intimidate litigants, witnesses, and jurors, … create privacy concerns for many
individuals involved in the trial, … become a potent negotiating tactic, …
encourage some participants … [to] grandstand[],” Ex. 3 at 2, and “cause judges to
avoid unpopular decisions or positions,” Ex. 36 at 16.
b.

Appellees suggest that “Chief Judge Walker did not violate the

district court’s Local Rule 77-3” because that rule “prohibits recording trial
proceedings with the intent to publicly broadcast,” whereas his initial intention was
to “use [the recordings] ‘in connection with preparing the findings.’” Opp. 8
(emphasis added); see also Media Br. 3-4 (“the Judicial Council Policy and former
Local Rule 77-3 do not apply here because they only preclude recording for the
purpose of public broadcasting or television – not what occurred here”). But
regardless of whether the act of recording a particular trial itself is contrary to
Local Rule 77-3 or Council policy, the public dissemination of trial recordings
clearly runs afoul of the distinct “prohibit[ion against] 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 707.1

1

If the legality of public dissemination of trial recordings depended upon the
judge’s initially intended use for the recordings, trial judges would have nearly
unfettered power to publicly disseminate trial recordings, and the Council’s policy
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2.

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Appellees, assisted by the Media Coalition, attempt to relitigate in this

Court their claim that the First Amendment mandates public access to the
recordings of the trial proceedings in this case. See Opp. 2-4, 9-10; S.F. Opp. 5-7.
But regardless of the qualified right, if any, that the First Amendment might
guarantee the public to access civil trial proceedings,2 the Supreme Court, in
staying the broadcast order in this case, has already rejected Appellees’ argument
that the First Amendment affords the public the right to access the recordings or
broadcast of the trial proceedings in this case. See Ex. 34 at 18-19. Indeed,
Appellees’ argument is, in effect, a claim that Local Rule 77-3, the policies of this
Court’s Judicial Council and the Judicial Conference, and the Supreme Court’s
decision enforcing them in this case all violated the First Amendment.3
It does not matter that the recordings are now part of the record of the case.
See Opp. 4-5. The public’s qualified common-law right to access trial records, see
Opp. 10; San Jose Mercury News, Inc. v. U.S. Dist. Ct., 187 F.3d 1096, 1102 (9th
Cir. 1999), has no purchase here because the recordings could lawfully have been
and Local Rule 77-3 would effectively be nullified, for appellate courts would
likely find it difficult and unseemly to ascertain whether the initial intention of a
judge who subsequently “changed his mind” was pretextual or disingenuous.
2

As the precedents cited by Appellees and former judge Walker show, the
Supreme Court and this Court have found only that the First Amendment
guarantees the public access to criminal proceedings.
3

Moreover, as Appellees admit, the public has already had full access to the public
trial in this case and continues to have access to the trial transcript. See, e.g., Opp.
3, 5.
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created in the first place only on condition that they not be publicly disseminated
outside the courthouse. The Supreme Court’s stay decision, Council policy, and
Local Rule 77-3, not to mention then-Chief Judge Walker’s on-the-record
assurance to Proponents, cannot be nullified by the expedient of recording trial
proceedings under the promise that the video would be used “simply … in
chambers,” Ex. 1 at 754:24-755:4, and then placing the recordings in the trial
record.
3.

Appellees also seek to relitigate the question whether public

dissemination of the trial recordings outside the courthouse would cause harm –
again advancing arguments rejected by the Supreme Court. They assert that
“Proponents failed to submit any evidence in the trial court to support their witness
intimidation claims.” Opp. 5; see also id. at 9; S.F. Opp. 1-5. In its decision
staying the broadcast order, however, the Supreme 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.” Hollingsworth, 130 S. Ct. at 713.4 Indeed, the expert witness whose
testimony is excerpted in former judge Walker’s speech made his decision to go
4

Appellees’ counsel are well aware of this record of past harassment of
Proposition 8 supporters; indeed, shortly before the Supreme Court stayed the
broadcast here, Plaintiffs-Appellees’ lead counsel relied on it in another case then
pending before the Supreme Court. See Hollingsworth, 130 S. Ct. at 707 (citing
Reply Brief for Appellant 28-29 in Citizens United v. Federal Election Comm’n,
No. 08-205).
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forward with his testimony in reliance on then-Chief Judge Walker’s assurance to
Proponents that the recordings would be used solely in his chambers.
And although trial is now over, see Opp. 5, the harm that could result from
witness intimidation is not. As the Supreme Court recognized, public
dissemination of the trial recordings could have a chilling effect on even expert
witnesses’ willingness “to cooperate in any future proceedings,” which could cause
“irreparable harm.” Hollingsworth, 130 S. Ct. at 712-13. Indeed, releasing the
trial recordings in this case would magnify the harm foreseen by the Supreme
Court exponentially, for witnesses in future controversial cases over “issues subject
to intense debate,” id. at 714, would think long and hard before accepting a federal
judge’s assurance that video recordings of the trial would be solely for his use in
chambers.
4.

Appellees, remarkably, find it significant that Proponents “never

appealed the district court’s decision to record the trial or objected to Plaintiffs’ use
of the trial video in closing arguments.” Opp. 8-9. Again, Proponents did object to
the recording of the trial proceedings, see Appellants’ Mot. for Order Compelling
Return of Trial Recordings (“Mot.”) 6-8, but when then-Chief Judge Walker
assured them on the record that the recordings would be “simply for [his] use in
chambers,” Ex. 1 at 754:15-755:4, Proponents took him at his word. And although
Chief Judge Walker, sua sponte, provided copies of the trial recordings to
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Appellees for their use in closing arguments, they were required, both before and
after closing argument, to keep the recordings strictly confidential. See Mot. 1011. In sum, at no point between the Supreme Court’s stay of the broadcast order
and former judge Walker’s recent public use of the trial recordings in speeches and
lectures were the recordings used, or purportedly authorized to be used, publicly
outside the courthouse. Consequently, Proponents’ decision not to object to these
earlier actions could not possibly constitute a waiver of their present objection to
the public dissemination of the trial recordings beyond the confines of the
courthouse as being in clear violation of the seal order, the Supreme Court’s stay
decision, Judicial Council and Judicial Conference policy, and Local Rule 77-3.
5.

Appellees ask in the alternative that they be allowed to retain their

copies of the trial recordings. Opp. 10-11. But now that the trial is over and the
appeal has been briefed and argued to this Court, there is no reason to anticipate
that Appellees will need access to the trial recordings again. Indeed, San Francisco
confesses that “[n]o party currently seeks to use the video footage.” S.F. Opp. 1.
6.

Finally, Appellees argue that the district court should resolve these

issues in the first instance. Opp. 6-7. But the record of this case is now before this
Court, which has inherent supervisory power over it. Mot. 18-19. Appellees
dismiss this point on the ground that “Proponents’ motion does not, in any way,
affect the record,” Opp. 6 – a meritless contention given that the recordings, as
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Appellees emphasize, are part of the record and that the issue pending before this
Court is whether (on Proponents’ motion) to enforce the seal and order the return
of the trial recordings or (on Appellees’ motion) to lift the seal and release the
recordings into the public domain. Further, the district court would likely lack
jurisdiction. See In re Marino, 234 B.R. 767, 769 (9th Cir. 1999) (“trial court may
not interfere with the appeal process or with the jurisdiction of the appellate
court”). And because Proponents’ and Appellees’ motions present pure questions
of law, remanding this dispute to the district court for initial consideration would
be inefficient.
CONCLUSION
For the foregoing reasons and the reasons stated in our opening brief, 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. The Court should also deny Appellees’ motion to unseal the trial recordings.

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April 21, 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.
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).

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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)
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I certify that all participants in the case are registered CM/ECF users and that service will be
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Signature (use "s/" format)
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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)
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April 21, 2010
Participants in the case who are registered CM/ECF users will be served by the appellate
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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
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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, CA 94104
Thomas Brejcha
THOMAS MORE SOCIETY
29 S. La Salle Street, Suite 440
Chicago, IL 60603
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
Anita L. Staver
LIBERTY COUNSEL
P.O. Box 540774
Orlando, FL 32854

Mathew D. Staver
LIBERTY COUNSEL
1055 Maitland Center Commons
2nd Floor
Maitland, FL 32751
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
Thomas R. Burke
Rochelle L. Wilcox
DAVIS WRIGHT TREMAINE LLP
505 Montgomery Street, Suite 800
San Francisco, CA 94111