CA9Doc 348
CA9Doc 348
CA9Doc 348
FILED
UNITED STATES COURT OF APPEALS APR 27 2011
Intervenor-Plaintiff - ORDER
Appellee,
v.
Defendants,
and
Intervenor-Defendants -
Appellants.
Appellants have moved this court to order the Plaintiffs and former District
Judge Vaughn Walker to return copies of the video recordings of the trial
proceedings in this case. Plaintiffs oppose the motion and have moved to unseal
and Judge Walker, the protective order entered by the district court, see Doc. No.
425 (at ¶ 7.3) & Doc. No. 672, Perry v. Schwarzengger, No. 3:09-cv-02292 (N.D.
jurisdiction over the merits of the decision below, including the judgment, has
passed to this court, the district court has not been divested of its jurisdiction over
Discount Co., 459 U.S. 56, 58 (1982) (per curiam) (“The filing of a notice of
of appeals and divests the district court of its control over those aspects of the case
involved in the appeal.”) (emphasis added); see, e.g., Campbell v. Blodgett, 982
F.2d 1356, 1357 (9th Cir. 1993) (district court retains jurisdiction to issue
discovery order); Masalosalo v. Stonewall Ins. Co., 718 F.2d 955, 957 (9th Cir.
1983) (district court retains jurisdiction to consider motion for attorney’s fees).
Because the district court issued the protective order and has the power to
grant the parties all the relief they seek, should relief be warranted, we direct the
and cross-motion (Doc. No. 340), Appellants’ reply and opposition (Doc. No. 346),
Plaintiffs’ reply (Doc. No. 347), Judge Walker’s letter (Doc. No. 339), and Media
2
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Coalition’s motion to intervene (Doc. No. 343) and joinder in Plaintiffs’ motion to
unseal (Doc. No. 345), to the U.S. District Court for the Northern District of
IT IS SO ORDERED.
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NO. 10-16696
On Appeal from United States District Court for the Northern District of California
Civil Case No. 09-CV-2292 JW (Honorable James Ware)
TABLE OF CONTENTS
Page
INTRODUCTION .....................................................................................................1
STATEMENT ............................................................................................................3
ARGUMENT ...........................................................................................................13
II. THE COURT SHOULD ORDER THE IMMEDIATE RETURN OF ALL COPIES
OF THE TRIAL RECORDINGS ............................................................................18
CONCLUSION........................................................................................................20
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EXHIBITS
Exhibit 11 - Order 2010-3 (9th Cir. Judicial Council Jan. 15, 2010)
(Kozinski, C.J.)
ii
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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)
iii
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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
iv
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Other
http://www.c-spanvideo.org/program/Vaugh ............................................ 1, 5, 12-13
v
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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
INTRODUCTION
examination of one of Proponents’ expert witnesses in the trial of this case. The
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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“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 then-
Chief 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
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
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
dissemination of it, cannot be undone, and given that Judge Walker has recently
Judicial Misconduct, 91 F.3d 90, 91 (9th Cir. Judicial Council 1996). But he can
recordings, or any portion thereof, and to return to this Court any copies of the trial
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
STATEMENT
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Perry, 130 S. Ct. 705, 711 (2010); see also Ex. 2 at 54. This policy, which remains
trial proceedings. Ex. 3 at 1; see also Hollingsworth, 130 S. Ct. at 711-12; Ex. 4 at
Congress its conclusion that the “negative [e]ffects of cameras in trial court
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
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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rules and policies prohibiting the broadcast of trial proceedings. Indeed, his
February 18 speech was entitled “Shooting the Messenger: How Cameras in the
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,
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
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.
controversial 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.
the trial, the Supreme Court entered a temporary emergency stay, “order[ing] that
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
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
recording the proceedings was not “consistent with the spirit of” the temporary
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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
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
Rule 77-3, which “‘banned the recording or broadcast of court proceedings.’” Id.
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]
added).
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
stated: “So the recording is not being made for those purposes, but simply for use
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Walker’s assurances that he was recording the proceedings solely for his personal
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 77-
3 without amendment). Despite the Supreme Court’s criticism that the amendment
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
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.
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.
return all copies of the trial recordings in their possession to the district court. Ex.
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[Appellees] to return to the Court immediately all copies of the trial video in their
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
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
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
“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
to grant review of this Court’s earlier ruling denying their mandamus petition
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
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
end of December 2010, gave his speech at the University of Arizona. See
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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
See id., video at 33:12-36:52. Ten days later, on February 28, 2011, Judge Walker
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.c-
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
ARGUMENT
The video recordings of the trial in this case may not lawfully be shown
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
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
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
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)
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
vacated on other grounds, 543 U.S. 1108 (2005), reinstated in relevant part, 405
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.
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).
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
televising,” but rather “simply for use in chambers.” Ex. 1 at 754:22-23, 755:3-4
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
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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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.
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
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.
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
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
persons who, though not parties to the original action or engaged in wrongdoing,
administration of justice, and encompasses even those who have not taken any
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
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
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s/ Charles J. Cooper
Charles J. Cooper
- 21 -
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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.
*********************************************************************************
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:
SERVICE LIST
EXHIBIT 1
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Volume 4
KRISTIN M. PERRY, )
SANDRA B. STIER, PAUL T. KATAMI, )
and JEFFREY J. ZARRILLO, )
)
Plaintiffs, )
)
VS. ) NO. C 09-2292-VRW
)
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, )
) San Francisco, California
Defendants. ) Thursday
___________________________________) January 14, 2010
TRANSCRIPT OF PROCEEDINGS
1 P R O C E E D I N G S
13 Mr. Garlow and Mr. McPherson. And the clerk informs me counsel
25 here.
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1 Q. Okay.
5 witness?
12 everybody.
14 hour, or 10:45.
20 that the Court was asking for withdrawal of this case from the
21 pilot program.
3 proceedings be halted.
6 the proceedings.
14 to the Court.)
20 that recording.
2 those purposes."
6 that clarification.
11 continue.
13 BY MR. PATTERSON:
19 A. Yes, it is.
20 Q. And you have basically -- you have assumed how long the
23 A. That's correct.
24 Q. And, once again, you have not done any study of how long
EXHIBIT 2
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September 17,1996
First Circuit:
Second Circuit:
Third Circuit:
Fourth Circuit:
Fifth Circuit:
models discussed in the report, and, where appropriate, adopt more efficient structures
for the provision of administrative services.
CAMERAS
IN THE COURTROOM
-
Fee Current Amount Raised Amount
Power of Attorney
Filing and Indexing Misc. Papers
Misdemeanor Appeal
Registration of Foreign Judgment
Tape Duplication
Microfilm/Microfiche
Mailing Labels
Record Search
Certification
Returned Checks
Reproduction of Record
Ct. of Fed. Claims Filing Fee
Ct. of Fed. Claims List of OrdersIOps
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EXHIBIT 3
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JO'DIClALCONlFERENCEOFTHE 1[JNKTEDSTATES
The Judicial Conference of the United States strongly opposes the "Sunshine in the
Courtroom Act of2009," S. 657 (11 ph Cong.), because it provides for the use of cameras
in federal trial court proceedings. Cameras can affect behavior in court proceedings.
Cameras can even affect whether a case goes to trial. Cameras can also affect courtroom
security ofjudges, witnesses, employees, and U.S. marshals. This is of particular concern
in light of recent increased threats to federal judges. The Judicial Conference believes
that these and other negative affects of cameras in trial court proceedings far outweigh
any potential benefit. The Judicial Conference also opposes the legislation because it
would empower any appellate court panel to permit cameras in their courtroom rather
than retain that power within the management of each circuit.
The Judicial Conference bases its policy and opposition to the use of cameras in
the federal trial court proceedings on decades of experience and study. The Conference
considered the issue in a number of different situations and contexts including a pilot
project - and concluded that the presence of cameras in federal trial court proceedings is
not in the best interest ofjustice. Federal judges must preserve each citizen's right to a
fair and impartial trial. Of course, federal trials have long been open to the media and
public. But it is the studied judgment ofthe Judicial Conference that cameras can
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interfere with a fair and impartial trial. Thus, the use of cameras in trial courts would
differ substantially from the impact of their use in legislative, administrative, or
ceremonial proceedings.
Cameras can interfere with a fair trial in numerous ways. First, broadcasting
proceedings can affect the way trial participants behave. Television cameras can
'intimidate litigants, witnesses, andjurors, many of whom have no direct connection to the
proceeding and are involved in it through no action of their own. Witnesses might refuse
to testi1J or alter their stories when they do testi1J if they fear retribution by someone who
may be watching the broadcast.
Second, and similarly, camera coverage can create privacy concerns for many
individuals involved in the trial, such as witnesses and victims, some of whom are only
tangentially related to the case but about whom very personal and identifYing information
might be revealed. For example, efforts to discredit a witness frequently involve the
revelation of embarrassing personal information. Disclosing embarrassing facts or
accusations in a courtroom already creates challenges in court proceedings. Those
challenges would be multiplied enormously if that information were aired on television
with the additional possibility of taping and replication. This concern can have a material
effect on a witness's testimony or on his or her willingness to testifY at all.
Fourth, the presence of cameras in a trial court will encourage some participants to
become more dramatic, to pontificate about their personal views, to promote commercial
interests to a national audience, or to lengthen their appearance on camera. Such
grandstanding is disruptive to the proceedings and can delay the trial.
The Federal Judiciary is therefore very concerned that the effect of cameras in the
courtroom on participants would be to impact negatively the trial process and thereby
interfere with a fair trial.
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Finally, regarding the courts of appeals, in 1996 the Judicial Conference adopted
the position that each circuit may decide for hselfwhether to permit photographic, radio,
and television coverage of appellate arguments, subject to any restrictions in statutes,
national and local rules, and such guidelines as the Conference may adopt. This policy
ensures consistency within each circuit. The Sunshine in the Courtroom Act of 2009
would allow panels within the circuits to determine whether cameras will be allowed at
their proceedings, rather than leaving the initial decision to the circuit's management.
This will result in differing treatment of litigants within each circuit. Currently, the
circuit-wide policies avoid piecemeal and ad hoc resolutions of the issue among the
various panels convened within a court of appeals, and that approach is therefore better
than the proposed legislative change.
* * *
For the foregoing reasons, the Judicial Conference of the United States strongly
opposes legislation that allows the use of cameras in federal trial court proceedings and
permits individual panels to use of cameras in all courts of appeals instead of deferring to
each circuit's rules on such use.
Thank you for the opportunity to provide the position of the Judicial Conference
on this legislation. The legislation raises issues of vital importance to the Judiciary. If we
may be of additional assistance to you, please do not hesitate to contact our Office of
Legislative Affairs at 202-502-1700.
Sincerely,
(j~tV
James C. Duff
Secretary
cc: Members, Senate Judiciary Committee
I
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First Circuit:
District of Massachusetts
Second Circuit:
District of Connecticut
Third Circuit:
Fourth Circuit:
Fifth Circuit:
I courts The Judicial Conference agreed to authorize each court of appeals to decide for
's itself whether to permit the taking of photographs and radio and television coverage of
appellate arguments, subject to any restrictions in statutes, national and local rules, and
icial such guidelines as the Judicial Conference may adopt. The Conference further agreed
ourt of to-
les for
ledule. a. Strongly urge each circuit judicial council to adopt an order reflecting the
Judicial Conference's decision to authorize the taking of photographs and radio
and television coverage of court proceedings in the United States courts of
appeals; and
;:ess
b. Strongly urge each circuit judicial council to adopt an order pursuant to
a
28 U.S.C. § 332 (d)(l), reflecting the September 1994 decision of the Judicial
Conference (JCUS-SEP 94, pp. 46-47) not to permit the taking of photographs
~P and radio and television coverage of court proceedings in the United States
district courts. In addition, the Judicial Conference agreed to strongly urge the
te; it judicial councils to abrogate any local rules of court that conflict with this
decision, pursuant to 28 U.S.C. § 2071{cXI).
ttee
ents
17
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EXHIBIT 4
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September 20,1994
First Circuit:
Second Circuit:
Third Circuit:
Fourth Circuit:
Fifth Circuit:
COMMITTEEON COURTADMINISTRATION
AND CASEMANAGEMENT
EXHIBIT 5
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9 8
On May 24, 1996,the Judicial Council of the Ninth Circuit voted to adopt the
policy of the Judicial Conference of the United States regarding the use of cameras in the
courts. Pursuant to 28 U S C. 5 2071(c)(l), lhia poUby is now binding on all courts
within the Ninth Cir~uft.The policy states:
EXHIBIT 6
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Cross Reference
See ADR L.R. 4-11(d) “Nonbinding Arbitration; Entry of Judgment on
Award.”
The following media are designated by this Court as its official means of
giving public notice of calendars, General Orders, employment opportunities,
policies, proposed modifications of these local rules or any matter requiring public
notice. The Court may designate any one or a combination of these media for
purposes of giving notice as it deems appropriate:
(a) Bulletin Board. A bulletin board for posting of official notices shall be
located at the Office of the Clerk at each courthouse of this district.
(3) The San Jose Post-Record, for matters pending in the San
Jose Division, in addition to the newspapers listed in subparagraphs
(1) and (2); or
EXHIBIT 7
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Volume 1
Pages 1 - 213
KRISTIN M. PERRY, )
SANDRA B. STIER, PAUL T. KATAMI, )
and JEFFREY J. ZARRILLO, )
)
Plaintiffs, )
)
VS. ) NO. C 09-2292-VRW
)
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, )
) San Francisco, California
Defendants. ) Monday
___________________________________) January 11, 2010
TRANSCRIPT OF PROCEEDINGS
2 in the Supreme Court deal with those issues. And that's true
3 of both sides.
7 consideration.
3 (Laughter)
7 the stay order does not mention anything about restricting the
24 matter that we can deal with after we learn what the rule is
3 Honor. That way, simply recording it now, and then the Court
4 can grapple with that issue when we find out what happens on
5 Wednesday.
11 (Laughter)
EXHIBIT 8
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Volume 3
KRISTIN M. PERRY, )
SANDRA B. STIER, PAUL T. KATAMI, )
and JEFFREY J. ZARRILLO, )
)
Plaintiffs, )
)
VS. ) NO. C 09-2292-VRW
)
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, )
) San Francisco, California
Defendants. ) Wednesday
___________________________________) January 13, 2010
TRANSCRIPT OF PROCEEDINGS
1 A. No.
11 Peplau.
15 (Witness excused.)
23 some point.
25 getting their advice, is that we put that issue to the side for
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663
20 review is complete.
24 all.
EXHIBIT 9
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As the Court will recall, on Monday morning, just before trial commenced, the Court
noted that its orders concerning public dissemination had been temporarily stayed by the
Supreme Court. In response, Plaintiffs nonetheless asked the Court to record the proceedings for
the purpose of later public dissemination if the stay was subsequently lifted:
Since the stay is temporary and the Supreme Court is going to be considering
these issues, and given the importance of the issues in this case, we would request
that the Court permit recording and preservation of the proceedings today and
through Wednesday .… [G]iven the fact that this is a temporary stay, and the stay
order does not mention anything about restricting the ability of the court to
capture the images on the cameras and preserve them in the event the stay is lifted
and Judge Kozinski issues his order, we think that would be a good solution so
then the materials could be posted when those -- those things happen.
Tr. of Proceedings at 14-15 (Jan. 11, 2010) (Attachment A). In response, Proponents objected to
the recording of the proceedings as inconsistent with the Supreme Court’s temporary stay, see id.
at 16, but the Court accepted Plaintiffs’ proposal.
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The Supreme Court yesterday extended the stay indefinitely. Hollingsworth v. Perry,
558 U.S. __, No. 09A648, slip op. (Jan. 13, 2010) (per curiam). The Supreme Court’s ruling
removes all question that recording of the proceedings is prohibited. As the Supreme Court
explained, prior to this Court’s amendment to Local Rule 77-3 (which amendment, the Court
concluded, was not properly adopted), Local Rule 77-3 “banned the recording or broadcast of
court proceedings.” Hollingsworth, slip op. at 4 (emphasis added). Unamended Local Rule77-3
thus governs these proceedings, and, as the Supreme Court held, it has “the force of law.” Id. at
8 (quotation marks omitted).
In short, it is now clear that the Supreme Court’s stay will remain in place indefinitely,
and the prohibition against the recording of these proceedings remains binding. For these
reasons, Proponents renew their objection to any further recording of the proceedings in this
case, and request that the Court order that any recordings previously made be deleted.
Sincerely,
Charles J. Cooper
Counsel for Defendant-Intervenors
EXHIBIT 10
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1
2 IN THE UNITED STATES DISTRICT COURT
4
5 KRISTIN M PERRY, SANDRA B STIER,
PAUL T KATAMI and JEFFREY J
6 ZARRILLO,
7 Plaintiffs,
9 Plaintiff-Intervenor,
10 v
For the Northern District of California
22 Defendants,
27 Defendant-Intervenors.
/
28
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11
United States District Court
12
13
14
15 VAUGHN R WALKER
United States District Chief Judge
16
17
18
19
20
21
22
23
24
25
26
27
28
2
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EXHIBIT 11
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FILED
JAN 15 2010
JUDICIAL COUNCIL
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
I have received a request from the Chief Judge of the Northern District of
EXHIBIT 12
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Cross Reference
See ADR L.R. 4-11(d) “Nonbinding Arbitration; Entry of Judgment on
Award.”
The following media are designated by this Court as its official means of
giving public notice of calendars, General Orders, employment opportunities,
policies, proposed modifications of these local rules or any matter requiring public
notice. The Court may designate any one or a combination of these media for
purposes of giving notice as it deems appropriate:
(a) Bulletin Board. A bulletin board for posting of official notices shall be
located at the Office of the Clerk at each courthouse of this district.
(3) The San Jose Post-Record, for matters pending in the San
Jose Division, in addition to the newspapers listed in subparagraphs
(1) and (2); or
EXHIBIT 13
Renewed Notice Concerning Revision of Civil Local Rule 77-3. http://www.cand.uscourts.gov/CAND/FAQ.nsf/60126b66e42d00488825...
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The United States District Court for the Northern District of California Court has approved a
revision of Civil Local Rule 77-3, subject to public comment. The revision would add the
underlined language below.
Unless allowed by a Judge or a Magistrate Judge with respect to his or her own chambers or
assigned courtroom for ceremonial purposes or for participation in a pilot or other project
authorized by the Judicial Council of the Ninth Circuit, the taking of photographs, public
broadcasting or televising, or recording for those purposes in the courtroom or its environs, in
connection with any judicial proceeding, is prohibited. Electronic transmittal of courtroom
proceedings and presentation of evidence within the confines of the courthouse is permitted, if
authorized by the Judge or Magistrate Judge. The term “environs,” as used in this rule, means all
floors on which chambers, courtrooms or on which Offices of the Clerk are located, with the
exception of any space specifically designated as a Press Room. Nothing in this rule is intended
to restrict the use of electronic means to receive or present evidence during Court proceedings.
The comment period will run from February 4, 2010 to March 4, 2010. If you submitted a
comment during the previous comment period, you need not resubmit it. The court is interested
in comments that pertain to the revised rule and NOT to its application to a particular case. All
comments and suggestions regarding the content of the revised rule should be sent in writing, no
later than March 4, 2010 to:
Hon. Phyllis Hamilton
Chair of the Rules Committee
United States Courthouse
1301 Clay Street
Oakland, CA 94612
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Cross Reference
See ADR L.R. 4-11(d) “Nonbinding Arbitration; Entry of Judgment on
Award.”
The following media are designated by this Court as its official means of
giving public notice of calendars, General Orders, employment opportunities,
policies, proposed modifications of these local rules or any matter requiring public
notice. The Court may designate any one or a combination of these media for
purposes of giving notice as it deems appropriate:
(a) Bulletin Board. A bulletin board for posting of official notices shall be
located at the Office of the Clerk at each courthouse of this district.
(3) The San Jose Post-Record, for matters pending in the San
Jose Division, in addition to the newspapers listed in subparagraphs
(1) and (2); or
EXHIBIT 15
Civil Local Rules http://www.cand.uscourts.gov/cand/LocalRul.nsf/031cb3d3c34daccc882...
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Home Previous
The United States District Court for the Northern District of California Court has approved
revisions of Civil Local Rules 7-1, 72-2 and 72-3, effective April 20, 2010.
In most circumstances, a request for judicial action is called a “motion” and certain
administrative and electronic processes intended to bring such matters to the attention of the
assigned judge are designed to capture “motions” that have been filed rather than “objections.”
In order to assist the judges in ruling on requests for judicial action with respect to orders and
findings of magistrate judges as expeditiously as possible, such requests will now be called
“motions” rather than “objections.”
PDF File:
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http://www.cand.uscourts.gov/
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CLERK'S NOTICES
Magistrate Judge Position Available in San Jose
Revised Civil Cover Sheet 1/2010
Revised Forms 12/09: Bill of Costs, Summons in a Civil
Action and Summons on Third-Party Complaint
Notice re: Judge Hamilton's Relocation to Oakland
Clerk's Office Now Accepting Payments By Credit Card
New Federal Magistrate Judge Appointments
Judicial Misconduct and Disability
GENERAL NOTICES
RFQ for Off-Site Copying Services San Jose Court
Location (Due June 1, 2010)
A NEW COURT WEBSITE IS UNDER DEVELOPMENT.
Please take our brief survey. Your opinion is important to
us.
Announcing the selection of Professor Donna M. Ryu for a
full-time Oakland Magistrate Judge position
Submitting Matters to the ADR Magistrate Judge
Pro Bono Project Guidelines
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http://www.cand.uscourts.gov/
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Legal Help Center Open to Assist Pro Se Litigants
Pro Se Handbook - Now in Spanish & Chinese Translations
Courtroom Technology Upgrades
Teleconferencing Guidelines
Please drop us
an email at:
Web-CAND@cand.uscourts.gov
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First, an order allowing trial proceedings to be broadcast publicly would violate the
Supreme Court’s stay of this Court’s order authorizing “the broadcast of [this] federal trial.”
Hollingsworth, 130 S. Ct. at 706; see also id. at 709 (“We therefore stay the court’s January 7,
2010, order to the extent that it permits the live streaming of court proceedings….”). As the
Court explained, even “[i]f Local Rule 77-3 had been validly revised, questions would still
remain about the District Court’s decision to allow broadcasting of this particular trial.” Id. at
714. These questions led the Court to conclude, as noted above, that this case is ill-suited for
inclusion in an experimental pilot program.
Second, under controlling Ninth Circuit policy, this Court has no authority to enter an
order permitting public broadcast in this case, and to the extent revised L.R. 77-3 purports to
allow for such authority, it is invalid. Pursuant to federal statute, the Ninth Circuit Judicial
Council is authorized to make or amend “[a]ny general order relating to practice and procedure
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… only after giving appropriate public notice and an opportunity for comment.” 28 U.S.C.
§ 332(d)(1) (emphasis added). In 1996, the Ninth Circuit Judicial Council “adopt[ed] the policy
of the Judicial Conference of the United States” banning the public broadcast of proceedings in
federal district courts. See Doc # 324-1 at 4 (hereinafter the “1996 Policy”). Since that time, the
Judicial Council has not given “appropriate notice and an opportunity for comment” of a
proposed amendment to the governing 1996 Policy. The Judicial Council did issue a press
release on December 17, 2009, stating that it “has approved, on an experimental basis, the
limited use of cameras in federal district courts within the circuit”—an “action” which purports
to “amend[] [the] 1996 Ninth Circuit policy.” 1 The December 17 press release, however, did not
comport with the statutory requirements for notice and comment and is therefore invalid. See
130 S. Ct. at 711 (concluding that the amended version of L.R. 77-3 “appears to be invalid”
because the Court failed to give the statutorily required public notice and an opportunity for
comment); see also id. at 712 (citing 28 U.S.C. § 332(d)(1) and noting that the Ninth Circuit’s
policy amendment “was not adopted after notice and comment procedures”). Thus, because the
1996 Policy remains the only valid Circuit rule in effect, this Court has no authority to permit
public broadcast of trial proceedings. See 28 U.S.C. § 332(d)(2) (“All judicial officers and
employees of the circuit shall promptly carry into effect all orders of the judicial council.”).
Third, neither the amendment to L.R. 77-3 nor the Ninth Circuit Judicial Council’s press
release sets forth any standards or guidelines to regulate the selection of cases and the use of
cameras during trial proceedings. The Supreme Court explicitly emphasized that this was a
serious defect that supported its “decision to grant extraordinary relief.” Hollingsworth, 130 S.
Ct. at 713; see also id. (“The District Court here attempted to revise its rules in haste … to allow
broadcasting of this high-profile trial without any considered standards or guidelines in place.”);
id. (explaining that “the lack of a regular rule with proper standards to determine the guidelines
for broadcasting could compromise the orderly, decorous, rational traditions that courts rely upon
to ensure the integrity of their own judgments”); id. (stating that “Congress has illustrated the
need for careful guidelines and standards” in any program authorizing public broadcast of federal
trial proceedings). Indeed, the Judicial Council’s press release authorizes the “chief judge of the
district court in consultation with the chief circuit judge” to select cases for public broadcast of
district court trial proceedings. It appears, in fact, that the chief judges of the District Court and
the Ninth Circuit have absolute discretion to select these cases. Yet neither the press release nor
revised L.R. 77-3 provides any procedure by which litigants and other interested parties may
present concerns and objections to the chief judges. This raises serious due process concerns.
Fourth, there is little merit to the Media Coalition’s argument that “the concerns earlier
reviewed by the Supreme Court should not preclude” the public broadcast of closing arguments
because they “will solely consist of the arguments of counsel—and not witness testimony or
evidence.” As an initial matter, the parties may play excerpts from the video-recorded
1
See http://www.ce9.uscourts.gov/cm/articlefiles/137-Dec17_Cameras_Press%20Relase.pdf.
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depositions during the course of closing arguments. In any case, in Hollingsworth, the Supreme
Court specifically cited the findings and policies of the Judicial Conference of the United States,
noting that while those policies “may not be binding on the lower courts, they are at the very
least entitled to respectful consideration.” 130 S. Ct. at 712 (quotation marks omitted). While it
is true that the deleterious effect of public broadcast on witnesses is one of the concerns
undergirding the Judicial Conference’s policy, it is by no means the only concern. As we have
explained previously, the Judicial Conference’s policy also rests on findings that public
broadcast has negative effects on some judges and attorneys, including distraction,
grandstanding, and avoidance of unpopular decisions or positions. Moreover, the Judicial
Conference has repeatedly stressed that “the presence of cameras in a trial courtroom …
increases security and safety issues” and that “[t]hreats against judges, lawyers, and other
participants could increase even beyond the current disturbing level.” Doc # 324-2 at 4. And all
of these findings were with respect to run-of-the-mine cases, not “high-profile, divisive cases”
like this one. Hollingsworth, 130 S. Ct. at 714 (citing “warning by Judge Edward R. Becker that
in ‘truly high-profile cases,’ one can ‘[j]ust imagine what the findings would be’”).
For all of these reasons, and in light of the Supreme Court’s stay opinion, Proponents
respectfully submit that the Court should deny the Media Coalition’s renewed request to publicly
broadcast this federal trial.
Respectfully submitted,
Charles J. Cooper
Counsel for Proponents
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1
2 IN THE UNITED STATES DISTRICT COURT
4
5 KRISTIN M PERRY, SANDRA B STIER,
PAUL T KATAMI and JEFFREY J
6 ZARRILLO,
7 Plaintiffs,
9 Plaintiff-Intervenor,
10 v
For the Northern District of California
22 Defendants,
27 Defendant-Intervenors.
/
28
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United States District Court
12
13 VAUGHN R WALKER
United States District Chief Judge
14
15
16
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18
19
20
21
22
23
24
25
26
27
28
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1
(e) court reporters, their staffs, and professional vendors to whom disclosure is
2
reasonably necessary for this litigation and who have signed the “Agreement to Be Bound by Protective
3
Order” (Exhibit A);
4
(f) during their depositions, witnesses in the action to whom disclosure is
5
reasonably necessary and who have signed the “Agreement to Be Bound by Protective Order”
6
(Exhibit A). Pages of transcribed deposition testimony or exhibits to depositions that reveal Protected
7
Material must be separately bound by the court reporter and may not be disclosed to anyone except as
8
permitted under this Protective Order.
9
(g) the author of the document or the original source of the information.
10
7.3 Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
11
Information or Items. Unless otherwise ordered by the court or permitted in writing by the Designating
12
Party, a Receiving Party may disclose any information or item designated “HIGHLY CONFIDENTIAL
13
– ATTORNEYS’ EYES ONLY” only to:
14
(a) the Receiving Party’s Outside Counsel of record in this action, (or in the case of
15
a government entity or government official sued in his or her official capacity, such entity’s or
16
official’s counsel of record in this action), as well as employees of said Counsel to whom it is
17
reasonably necessary to disclose the information for this litigation and who have signed the
18
“Agreement to Be Bound by Protective Order” that is attached hereto as Exhibit A, provided that it
19
shall not be provided to any Counsel or employee who held an “official position” in any primarily
20
formed ballot committee related to Proposition 8 (see http://cal-
21
access.ss.ca.gov/campaign/measures/detail.aspx?id=1302602&session=2007) or now holds an official
22
position in a similar committee that is now circulating petitions for a 2010 ballot initiative to repeal
23
Proposition 8. For purposes of sections 7.3 and 7.5 an “official position” is defined as one which
24
authorizes the holder of said position to contractually bind (either solely or in conjunction with others)
25
the primarily formed ballot committee (or similar committee circulating petitions to place an initiative
26
on the 2010 ballot) with respect to matters relating to communications disseminated by the committee
27
or otherwise to spend funds exceeding $1,000 on behalf of the committee, provided, however, that
28
notice of all such attorneys and employees to whom HIGHLY CONFIDENTIAL – ATTORNEYS’
Gibson, Dunn &
Crutcher LLP 8
PLAINTIFFS’ PROPOSED PROTECTIVE ORDER; 09-CV-2292 VRW
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1
EYES ONLY information will be disclosed shall be given not less than 24 hours in advance of
2
disclosure to give the other parties the opportunity to object to the disclosure and seek relief from the
3
court on grounds specific to the designated attorney or employee;
4
(b) Experts (as defined in this Order) (1) to whom disclosure is reasonably
5
necessary for this litigation, (2) who have signed the “Agreement to Be Bound by Protective Order”
6
(Exhibit A), provided that it shall not be provided to any expert who held an “official position” in any
7
primarily formed ballot committee related to Proposition 8 (see http://cal-access.ss.ca.gov/campaign/
8
measures/detail.aspx?id=1302602&session=2007) or now holds an official position in a similar
9
committee that is now circulating petitions for a 2010 ballot initiative to repeal Proposition 8, provided,
10
however, that notice of all such experts to whom HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
11
ONLY information will be disclosed shall be given not less than 24 hours in advance of disclosure to
12
give the other parties the opportunity to object to the disclosure and seek relief from the court on
13
grounds specific to the designated expert;
14
(c) the Court and its personnel;
15
(d) court reporters, their staffs, and professional vendors to whom disclosure is
16
reasonably necessary for this litigation and who have signed the “Agreement to Be Bound by Protective
17
Order” (Exhibit A); and
18
(e) the author of the document or the original source of the information.
19
7.4 Disclosure Limited to Receiving Party. A Receiving Party shall not disclosure any
20
materials designated “Confidential” or “Highly Confidential – Attorneys’ Eyes Only” to any other party
21
to the litigation unless the party has agreed to be bound by this Protective Order.
22
7.5 Use of Protected Material at Depositions. Before any deposition in which the noticing
23
Party reasonably anticipates using any Protected Materials received in this matter, the noticing Party
24
must inform all other parties. Thereafter, any party who wishes to participate in said deposition must
25
staff the deposition with persons who neither have held an “official position” in any primarily formed
26
ballot committee related to Proposition 8 (see http://cal-access.ss.ca.gov/campaign/measures/
27
detail.aspx?id=1302602&session=2007) nor hold an official position in a similar committee that is now
28
circulating petitions for a 2010 ballot initiative to repeal Proposition 8.
Gibson, Dunn &
Crutcher LLP 9
PLAINTIFFS’ PROPOSED PROTECTIVE ORDER; 09-CV-2292 VRW
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1 Pursuant to this Court’s May 31, 2010 order, Doc #672, Plaintiffs respectfully request a copy
3 Respectfully submitted,
4 DATED: June 2, 2010 GIBSON, DUNN & CRUTCHER LLP
5 Theodore B. Olson
Theodore J. Boutrous, Jr.
6 Christopher D. Dusseault
Ethan D. Dettmer
7 Matthew D. McGill
Amir C. Tayrani
8
Sarah E. Piepmeier
9 Theane Evangelis Kapur
Enrique A. Monagas
10
11 By: /s/
Theodore B. Olson
12
and
13
BOIES, SCHILLER & FLEXNER LLP
14
David Boies
15 Steven Holtzman
Jeremy M. Goldman
16 Roseanne C. Baxter
Richard J. Bettan
17 Beko O. Richardson
Theodore H. Uno
18
Joshua I. Schiller
19
Attorneys for Plaintiffs
20 KRISTIN M. PERRY, SANDRA B. STIER,
PAUL T. KATAMI, and JEFFREY J. ZARRILLO
21
22
23
24
25
26
27
28
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Volume 13
KRISTIN M. PERRY, )
SANDRA B. STIER, PAUL T. KATAMI, )
and JEFFREY J. ZARRILLO, )
)
Plaintiffs, )
)
VS. ) NO. C 09-2292-VRW
)
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, )
) San Francisco, California
Defendants. ) Wednesday
___________________________________) June 16, 2010
TRANSCRIPT OF PROCEEDINGS
2 Mr. Olson will be playing some of the video clips from the
4 that at the end of the day we would offer the transcript pages
5 for the record, whenever it's convenient for the Court, rather
6 than doing it for the closings. Then we'll have that for the
7 record.
17 into the record the transcript pages of the clips that we have
24 Mr. Olson.
25
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24 Defendant-Intervenors,
25
26
27
28
Plaintiff-Intervenor's Notice Re Video
CASE NO. 09-CV-2292 VRW
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1
NOTICE
2
Please take NOTICE that pursuant to the Court's Order [Doc #672], Plaintiff-Intervenor wishes
3
to obtain a copy of the following portions of the trial video to review for possible use at closing
4
argument:
5
6
Trial Date Witness
7
January 14, 2010 Egan
8
January 15, 2010 Zia
9
January 19, 2010 Sanders / Badgett
10
January 20, 2010 Kendall
11
12
Plaintiff-Intervenor will maintain the video as strictly confidential pursuant to paragraph 7.3 of
13
the protective order in this case [Doc #425].
14
15
24 By: /s/
THERESE M. STEWART
25
Attorneys for Plaintiff-Intervenor
26 CITY AND COUNTY OF SAN FRANCISCO
27
28
Plaintiff-Intervenor's Notice Re Video 1
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1
2 IN THE UNITED STATES DISTRICT COURT
4
5 KRISTIN M PERRY, SANDRA B STIER,
PAUL T KATAMI and JEFFREY J
6 ZARRILLO,
7 Plaintiffs,
9 Plaintiff-Intervenor,
10 v
For the Northern District of California
22 Defendants,
27 Defendant-Intervenors.
/
28
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United States District Court
12
13 IT IS SO ORDERED.
14
15
16 VAUGHN R WALKER
United States District Chief Judge
17
18
19
20
21
22
23
24
25
26
27
28
2
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8 Defendants,
9 and
14 Defendant-Intervenors.
15
17
ALLIANCE DEFENSE FUND
18 Timothy Chandler (CA Bar No. 234325)
tchandler@telladf.org
19 101 Parkshore Drive, Suite 100, Folsom, California 95630
Telephone: (916) 932-2850, Facsimile: (916) 932-2851
20
Jordan W. Lorence (DC Bar No. 385022)*
21 jlorence@telladf.org
Austin R. Nimocks (TX Bar No. 24002695)*
22 animocks@telladf.org
801 G Street NW, Suite 509, Washington, D.C. 20001
23 Telephone: (202) 393-8690, Facsimile: (202) 347-3622
25
26
27
28
DECLARATION OF PETER A. PATTERSON IN SUPPORT OF DEFENDANT-INTERVENORS’
MOTION FOR ADMINISTRATIVE RELIEF
CASE NO. 09-CV-2292 VRW
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1
DECLARATION OF PETER A. PATTERSON IN SUPPORT OF DEFENDANT-INTERVENORS’
MOTION FOR ADMINISTRATIVE RELIEF
CASE NO. 09-CV-2292 VRW
t-
Case3:09-cv-02292-VRW
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I I declare, under penalty of perjury under the laws of the United States, that these facts are true and
2 correct and that this Declaration is executed this 29th day of June,2Ol0, at Cincinnati, Ohio.
J
Dated: June 29, 2010
4
10
11
t2
13
l4
15
l6
17
18
t9
20
21
))
23
24
25
26
27
28
EXHIBIT 26
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Additional Counsel for Defendant-Intervenors
16
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27
28
23
24
25
26
27
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2
DEFENDANT-INTERVENORS’ MOTION FOR ADMINISTRATIVE RELIEF
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1 Plaintiffs and Plaintiff-Intervenor respectfully request that the Court deny Defendant-
2 Intervenors’ motion for administrative relief. Doc #696. On May 31, 2010, the Court informed the
3 parties that the trial video would be made available “[i]n the event any party wishes to use portions of
4 the trial recording during closing arguments.” Doc #672. The Court stated that “[p]arties will of
5 course be obligated to maintain as strictly confidential any copy of the video pursuant to paragraph
6 7.3 of the protective order, Doc #425.” Id. Plaintiffs and Plaintiff-Intervenor both requested copies
7 of the trial video, Docs #674, 675, and Plaintiffs used portions of the video during closing argument.
8 Because this Court has yet to issue its decision and may request additional arguments or
9 briefing before doing so, Defendant-Intervenors’ request for the immediate return of the trial video
10 should be denied as premature. Plaintiffs and Plaintiff-Intervenor respectfully propose that once
11 judgment is entered, the parties and the Court evaluate whether, and to what degree, the trial
12 recording would be useful to the parties or to the Court in connection with any additional proceedings
13 and/or appeal. In the meantime, the protective order remains in place and ensures that the trial
15 Respectfully submitted,
23
By: /s/
24 Theodore B. Olson
25 and
26 ///
27 ///
28 ///
9 DENNIS J. HERRERA
City Attorney
10
THERESE M. STEWART
11 Chief Deputy City Attorney
DANNY CHOU
12 Chief of Complex and Special Litigation
RONALD P. FLYNN
13 VINCE CHHABRIA
ERIN BERNSTEIN
14
CHRISTINE VAN AKEN
15 MOLLIE M. LEE
Deputy City Attorneys
16
17
By: /s/
18 Therese M. Stewart
19 Attorneys for Plaintiff-Intervenor
20 CITY AND COUNTY OF SAN FRANCISCO
21
22
23
24
25
26
27
28
2 Pursuant to General Order No. 45 of the Northern District of California, I attest that
3 concurrence in the filing of the document has been obtained from each of the other signatories to this
4 document.
5 By: /s/
Theodore B. Olson
6
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
EXHIBIT 28
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IN THE UNITED STATES DISTRICT COURT
2
FOR THE NORTHERN DISTRICT OF CALIFORNIA
3
4
KRISTIN M PERRY, SANDRA B STIER,
5 PAUL T KATAMI and JEFFREY J
ZARRILLO,
6
Plaintiffs,
7
CITY AND COUNTY OF SAN FRANCISCO,
8
Plaintiff-Intervenor,
9
v
10
ARNOLD SCHWARZENEGGER, in his
For the Northern District of California
28
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No. _________
================================================================
In The
Supreme Court of the United States
---------------------------------♦---------------------------------
Petitioners,
v.
Respondents.
---------------------------------♦---------------------------------
---------------------------------♦---------------------------------
---------------------------------♦---------------------------------
CHARLES J. COOPER
Counsel of Record
MICHAEL W. KIRK
JESSE M. PANUCCIO
COOPER & KIRK, PLLC
1523 New Hampshire Avenue, NW
Washington, D.C. 20036
(202) 220-9600
ccooper@cooperkirk.com
April 8, 2010 Counsel for Petitioners
================================================================
COCKLE LAW BRIEF PRINTING CO. (800) 225-6964
OR CALL COLLECT (402) 342-2831
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EXHIBIT 30
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No. 09-1238
THIS CAUSE having been submitted on the petition for writ of certiorari
Court that the petition for writ of certiorari is granted. The judgment of the above
court is vacated with costs, and the case is remanded to the United States Court of
Appeals for the Ninth Circuit with instructions to dismiss the case as moot. See
al. recover from United States District Court for the Northern District of California,
October 4, 2010
EXHIBIT 31
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FILED
UNITED STATES COURT OF APPEALS OCT 15 2010
Respondent,
On October 4, 2010, the United States Supreme Court granted the petition
for writ of certiorari and vacated the judgment and remanded with instructions to
dismiss this petition as moot. Accordingly, this court’s January 8, 2010 order is
KS/MOATT
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EXHIBIT 32
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OFFICE04/27/2011
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OF THE CIRCUIT of 114 ID: 7732263
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NINTH CIRCUIT CURRENT AND FUTURE VACANCY TABLE
Court Vacancy in Date By Reason of Nominee (If Any) Date Status of Nomination Last
Authorized Judgeship Vacancy Nominated Action (such as referred to
Created Senate Jud. Com.)
Court of Stephen S. Trott 12-31-04 Senior Status No nominee
Appeals Pub. L 110-177 1-21-09 New Position Goodwin Liu 2-24-10, Senate Jud. Com. hearing
9-13-10, held on 3-2-11
1-5-11
Andrew J. Kleinfeld 6-12-10 Senior Status No nominee
Mary M. Schroeder 1-1-12 Senior Status No nominee
Alaska John W. Sedwick 3-13-11 Senior Status No nominee
Arizona Frank R. Zapata 8-3-10 Senior Status No nominee
Mary Helen Murguia 12-22-10 Elevated No nominee
John M. Roll 1-8-11 Deceased No nominee
Cent. Cal. Florence-Marie Cooper 1-15-10 Deceased John A. Kronstadt 11-17-10, Senate Jud. Com. approval on
1-5-11 3-10-11
Stephen G. Larson 11-2-09 Resigned No nominee
A. Howard Matz 7-11-11 Senior Status No nominee
No. Cal. Martin J. Jenkins 4-3-08 Resigned Edward M. Chen 8-6-09, Senate Jud. Com. approval on
1-20-10, 3-17-11
9-13-10
1-5-11
Vaughn R. Walker 2-28-11 Retirement No nominee
Court Vacancy in Date By Reason of Nominee (If Any) Date Status of Nomination Last
Authorized Judgeship Vacancy Nominated Action (such as referred to
Created Senate Jud. Com.)
So. Cal Jeffrey T. Miller 6-6-10 Senior Status No nominee
Thomas J. Whelan 8-15-10 Senior Status No nominee
EXHIBIT 33
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First Circuit:
Second Circuit:
Third Circuit:
Fifth Circuit:
COMMITTEE ACTIVITIES
The Committee on Codes of Conduct reported that since its last report
to the Judicial Conference in March 2010, the Committee received 17
new written inquiries and issued 17 written advisory responses. During this
period, the average response time for requests was 22 days. In addition, the
Committee chair responded to 159 informal inquiries, individual Committee
members responded to 133 informal inquiries, and Committee counsel
responded to 358 informal inquiries.
II
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b. The pilot will last up to three years, with interim reports prepared by
the Federal Judicial Center after the first and second years.
12
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No. 10-16696
Argued December 6, 2010
(Reinhardt, Hawkins, N. Smith)
TABLE OF CONTENTS
Page
INTRODUCTION......................................................................................................1
ARGUMENT .............................................................................................................3
CONCLUSION ........................................................................................................11
i
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TABLE OF AUTHORITIES
Page(s)
Cases
ABC, Inc. v. Stewart,
360 F.3d 90 (2d Cir. 2004) ..............................................................................4
Associated Press v. United States Dist. Court,
705 F.2d 1143 (9th Cir. 1983) .........................................................................3
Brown & Williamson Tobacco Corp. v. FTC,
710 F.2d 1165 (6th Cir. 1983) .....................................................................5, 9
Craig v. Harney,
331 U.S. 367 (1947) ........................................................................................1
Globe Newspaper Co. v. Superior Court,
457 U.S. 596 (1982) ....................................................................................2, 3
Hollingsworth v. Perry,
130 S. Ct. 705 (2010).......................................................................................8
In re Continental Illinois Sec. Litig.,
732 F.2d 1302 (7th Cir. 1984) .......................................................................10
Marrese v. Am. Academy of Orthopaedic Surgeons,
470 U.S. 373 (1985) ........................................................................................6
NBC Subsidiary (KNBC-TV), Inc. v. Superior Court,
980 P.2d 337 (Cal. 1999).................................................................................5
Nixon v. Warner Commc’ns, Inc.,
435 U.S. 589 (1978) ......................................................................................10
Oregonian Publ’g Co. v. United States Dist. Court,
920 F.2d 1462 (9th Cir. 1990) .........................................................................4
Press-Enterprise Co. v. Superior Court,
464 U.S. 501 (1984) ........................................................................................4
Publicker Indus. v. Cohen,
733 F.2d 1059 (3d Cir. 1984) ................................................................... 9, 10
ii
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Statutes
28 U.S.C. § 1291........................................................................................................6
iii
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INTRODUCTION
“What transpires in the court room is public property.” Craig v. Harney, 331
U.S. 367, 374 (1947). In January 2010, the United States District Court for the North-
ern District of California conducted a historic, 12-day public trial on an issue of great
legal importance and public interest: whether the State of California violated the Due
Process and Equal Protection rights of gay men and lesbians when it stripped them of
the fundamental right to marry by passing Proposition 8. Through the present Motion,
the Proponents of Proposition 8 seek to sequester and forever conceal from the Ameri-
can people video that accurately and without adornment depicts the testimony and ar-
gument each party presented at trial, and that the trial court considered when reaching
the decision that Proponents now challenge. Although Proponents neither appealed
the trial court’s decision to record the trial nor objected to the court’s decision to allow
the parties to use the video in closing arguments, Proponents now complain of an ex-
tremely limited use of a snippet of those tapes by the now-retired trial judge in an ef-
fort to educate the public about our judicial system and proceedings. Proponents’
fierce determination to shield access by any member of the American public to the ac-
and the paucity of evidence that Proponents presented in its defense directly conflicts
1
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with this Nation’s constitutional commitment to public and open judicial process and
serves no legitimate public end. This Court should deny Proponents’ motion.
the public to see what transpired in a public trial in a public courtroom, public access
to trials “protect[s] the free discussion of governmental affairs” that is essential to the
ability of “the individual citizen . . . [to] effectively participate in and contribute to our
U.S. 596, 604 (1982) (internal quotation marks omitted). Proponents’ contention that,
by showing an accurate recording of a small part of a public trial, Chief Judge Walker
somehow engaged in conduct prejudicial to the administration of justice (see Pet. Mot.
After the broadcast of just three minutes of a three-week public trial, and al-
order in this case, Proponents ask this Court to require return of “all copies of the trial
recordings in the possession, custody, or control of any party to this case or former
judge Walker.” Pet. Mot. 20. Thus, although Proponents expended tens of millions of
dollars on a public campaign to restore discrimination in California that the state Su-
preme Court had struck down, they now seek to prevent the public from ever observ-
ing first-hand their efforts in a public courtroom to defend that discrimination and the
2
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exposure of those efforts to the acid test of cross-examination in open court. The pre-
sent motion is their latest attempt to prevent the public from witnessing that trial.
There was no reason to keep the video of this trial under the cover of darkness
in the first place. Indeed, videos of two of the Proponents’ experts and one of the of-
ficial Proponents of Proposition 8 are already available on the district court’s website.
trial transcript is part of the public record and widely available on the internet. So too
are reenactment videos of actors reading those transcripts widely available, including
on YouTube. Accordingly, this Court should not only deny Proponents’ motion, it
should order the video’s immediate release to allow the public to see the rest of the ac-
ARGUMENT
is necessary “to protect the free discussion of governmental affairs” essential to our
democracy. Globe Newspaper Co., 457 U.S. at 604. Public access to trials and trial
records is so important that even a 48-hour delay in unsealing judicial records “is a to-
tal restraint on the public’s first amendment right of access even though the restraint
is limited in time.” Associated Press v. United States Dist. Court, 705 F.2d 1143,
3
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1147 (9th Cir. 1983) (emphasis added). Consequently, “[u]nder the first amendment,
the press and the public have a presumed right of access to court proceedings and
documents.” E.g., Oregonian Publ’g Co. v. United States Dist. Court, 920 F.2d 1462,
1465 (9th Cir. 1990) (citing Press-Enterprise Co. v. Superior Court, 464 U.S. 501,
510 (1984)).
Further, because “it is difficult for [people] to accept what they are prohibited
from observing” (Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 572 (1980)
(plurality), the First Amendment guarantees free and open access to judicial proceed-
ings in order to foster public confidence in the judicial system. Indeed, “[o]ur national
essential to, the realization of that right and to public confidence in the administration
of justice. The burden is heavy on those who seek to restrict access to the media, a vi-
tal means to open justice . . . .” ABC, Inc. v. Stewart, 360 F.3d 90, 105-06 (2d Cir.
nia’s elimination of the constitutional right of gay men and lesbians to marry requires
Despite the strong public policy favoring public trials and disfavoring sealing
court records, Proponents seek to bar the public from seeing and considering for itself
a true and accurate recording of court proceedings that were themselves public and re-
4
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lied on by the District Court in adjudicating this case, including in making its findings
of fact and conclusions of law. The recording is a quintessential judicial record of the
utmost public importance. See, e.g., Brown & Williamson Tobacco Corp. v. FTC, 710
F.2d 1165, 1181 (6th Cir. 1983) (“The public has an interest in ascertaining what evi-
dence and records the District Court . . . relied upon in reaching [its] decisions.”);
NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 980 P.2d 337, 358 (Cal. 1999).
It bears emphasizing that nothing on these tape recordings can conceivably be charac-
terized as confidential or private information because they merely depict court pro-
ceedings that were themselves open to the public. Proponents’ asserted reason to keep
the trial video under seal is to protect their witnesses—two experts, who were paid for
testifying in open court and whose identities as witnesses in this case are widely
known—from “intimidation.” Prop. Mot. 5-6. But this rationale, which Proponents
also advanced before the district court and which the court ultimately concluded was
baseless (ER 70-71), plainly cannot carry any weight, especially given that the trial
ended 15 months ago and no more witnesses will be called. In fact, Proponents failed
to submit any evidence in the trial court to support their witness intimidation claims.
ER 71 (“The record does not reveal the reason behind proponents’ failure to call their
expert witnesses.”).
5
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Neither the Plaintiffs nor the Plaintiff-Intervenors nor Chief Judge Walker have
violated any rule or directive with respect to the video in question. Proponents’ re-
quest that this Court order return of the tapes should be rejected.
As a threshold matter, while this Court has jurisdiction over the “final deci-
sion[] of the district court[],” (28 U.S.C. § 1291), Proponents’ motion “For Order
Compelling Return of Trial Recordings” does not challenge any decision of the dis-
trict court. Indeed, Proponents do not challenge the only aspect of the district court’s
decision that addressed the trial video: its decision to include it in the record under
seal. ER 39.
Proponents also have a venue to seek redress of their asserted grievance. The
District Court retains jurisdiction over all matters not involved in the appeal. See
Marrese v. Am. Acad. of Orthopaedic Surgeons, 470 U.S. 373, 379 (1985). And the
case has been reassigned to a District Judge who did not preside over the trial and did
not decide any of the matters currently challenged. U.S.D.C. Doc #765. Tellingly,
Proponents’ only source for this Court’s authority to afford their desired relief, men-
tioned only in passing, is this Court’s inherent authority to “control the record.” Pet.
Mot. 15. But Proponents’ motion does not, in any way, affect the record. It seeks to
control copies of videotapes in the possession of the parties and former Chief Judge
6
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Walker. At a minimum, the district court should be permitted to rule on this issue in
Even if this issue were properly before this Court, as Chief Judge Walker’s let-
ter to this Court explains, the few minutes of testimony that he played before students
at two universities and the Federal Bar Association came from a disk drive that he re-
ceived with his other judicial papers. Letter from Vaughn R. Walker, Apr. 14, 2011,
ECF No. 339. During these lectures, Chief Judge Walker has drawn from his experi-
ence over more than two decades of public service to promote public discourse regard-
ing access to judicial proceedings. Id.; see also Library of Congress Online Catalog,
pers including those of Chief Justices Marshall, Taney, Taft, and Hughes, Justices
tions, the very purpose of Chief Judge Walker’s lectures has been to “promote[] public
confidence in the integrity and impartiality of the judiciary.” See Pet. Mot. 14-15
(quoting Code of Conduct for United States Judges, Canon 2A); ECF No. 339. That
he has sought to improve the public’s knowledge of the federal government by dis-
playing a brief snippet of his experience rather than summarizing it or sharing his
notes or that his judicial papers take the form of a video file on a hard disk rather than
7
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While Proponents claim otherwise, neither prior orders nor local rules barred
Chief Judge Walker’s use of the trial video. First, while Chief Judge Walker directed
the parties to maintain their copies of the trial video tapes pursuant to the terms of the
protective order in this action, there is no dispute that they have faithfully done so.
Proponents cannot convert that direction, or the fact that the video tapes were submit-
ted to this Court under seal, into an absolute bar on any use of those tapes by the trial
judge. Nor did Chief Judge Walker’s use of a brief excerpt of video violate the Su-
preme Court’s ruling staying the live broadcast of the trial. Hollingsworth v. Perry,
130 S. Ct. 705 (2010) ) (per curiam). That decision was explicitly limited to “the live
streaming of court proceedings to other federal courthouses” and did not address other
uses, such as the “broadcast of court proceedings on the Internet,” let alone the very
Further, because the district court recorded the trial proceedings for use “in con-
nection with preparing the findings” (ECF. No. 339 at 1), Chief Judge Walker did not
violate the district court’s Local Rule 77-3, which prohibits recording trial proceed-
ings with the intent to publicly broadcast. Proponents argue that they were somehow
harmed because Chief Judge Walker has now used a small portion of the video for
purposes other than use in his chambers. See Pet. Mot. 8-9. However, inasmuch as
they never appealed the district court’s decision to record the trial or objected to Plain-
8
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tiffs’ use of the trial video in closing arguments, which clearly was not a use solely in
Chief Judge Walker’s chambers, Proponents’ argument is not only too little, but
too late.
In all events, Chief Judge Walker’s use of the trial video was harmless. The
video ran approximately three minutes and showed the cross-examination of Propo-
nents’ paid expert, Kenneth Miller, a professor at Claremont McKenna College who is
than submitting a declaration regarding the harm allegedly suffered by Dr. Miller or
its only other witness, David Blankenhorn, Proponents reiterate the same unsubstanti-
ated and speculative allegations of harm that the district court previously rejected in
findings of fact after the trial. ER 70-71 (finding as not credible Proponents’ assertion
that their witnesses “were extremely concerned about their personal safety, and did not
Because trials are presumptively public affairs, this Court should unseal the
video of this public trial. See 9th Cir. R. 27-13(d); Publicker Indus, Inc. v. Cohen, 733
F.2d 1059, 1068-71 (3d Cir. 1984) (First Amendment right of access to judicial pro-
ceedings applies to civil trials); Brown & Williamson Tobacco Corp., 710 F.2d at
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1178 (same); see also, e.g., Rushford v. New Yorker Magazine, Inc., 846 F.2d 249,
252 (4th Cir. 1988); In re Continental Illinois Sec. Litig., 732 F.2d 1302, 1308-09 (7th
Cir. 1984). The First Amendment right of access to judicial proceedings exists be-
cause “[o]penness of the proceedings will help to ensure [the] important decision is
properly reached and enhance public confidence in the process and result.” Seattle
Times Co. v. United States Dist. Court, 845 F.2d 1513, 1516 (9th Cir. 1988).
In addition to the First Amendment interest, the public has a common law right
to view judicial records. Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978)
(“It is clear that the courts of this country recognize a general right to inspect and copy
public records and documents, including judicial records and documents.”) (footnote
omitted). This right cannot be abridged absent “a showing that the denial serves an
important governmental interest and that there is no less restrictive way to serve that
governmental interest.” Publicker Indus., 733 F.2d at 1070. Where, as here, the sub-
ject of the trial is a matter of great public importance, the public’s right to see the trial
is heightened. Moreover, Proponents cannot and do not argue that the subject of the
any party, given that the live proceedings were themselves public.
Alternatively, because use of the trial video would aid the parties in connection
with any additional proceedings before this or any other court, and because the parties
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have dutifully complied with the protective order, the Court should reject Proponents’
demand that Plaintiffs return their copy of the trial video. In the meantime, the protec-
tive order remains in place and ensures that the trial video will not be publicly dis-
CONCLUSION
Proponents have not remotely overcome the exacting burdens imposed by the
First Amendment and the common law as prerequisites for throwing a blanket over a
true, accurate and unedited record of a widely publicized public trial of an exceedingly
important constitutional issue affecting millions of Americans. The Court should deny
Proponents’ motion and grant Plaintiffs’ request to unseal the trial video.
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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.
*********************************************************************************
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) .
Apr 15, 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:
SERVICE LIST
NO. 10-16696
On Appeal from United States District Court for the Northern District of California
Civil Case No. 09-CV-2292 JW (Honorable James Ware)
TABLE OF CONTENTS
Page
ARGUMENT ............................................................................................................. 1
CONCLUSION .......................................................................................................... 9
EXHIBITS
Exhibit 11 - Order 2010-3 (9th Cir. Judicial Council Jan. 15, 2010)
(Kozinski, C.J.)
i
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ii
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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)
iii
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TABLE OF AUTHORITIES
Cases Page
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 then-
Chief 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
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
Proponents took Chief Judge Walker at his word, as did two of Proponents’ expert
excerpt from Perry.” Letter from Vaughn R. Walker 1 (Apr. 14, 2001).
Appellees, for their part, trumpet this course of events as virtuous. “There
-1-
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was no reason,” Appellees say, “to keep the video of this trial under the cover of
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
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
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
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
-2-
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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
contrary, Local Rule 77-3’s prohibition applies regardless of when the public
“prohibited” (as it still prohibits) not only “the taking of photographs, public
purposes.” Ex. 6, quoted in Hollingsworth, 130 S. Ct. at 710-11; id. at 708 (local
dissemination. See KFMB-TV Channel 8 v. Municipal Ct., 221 Cal. App. 3d 1362,
later broadcasting”). Nor is there any reason for the rule to treat contemporaneous
live or on tape delay, the concerns about broadcasting trial proceedings that
motivated the Supreme Court’s stay decision, the policies of the Judicial
-3-
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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
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
Local Rule 77-3 or Council policy, the public dissemination of trial recordings
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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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
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.
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
-6-
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And although trial is now over, see Opp. 5, the harm that could result from
dissemination of the trial recordings could have a chilling effect on even expert
witnesses’ willingness “to cooperate in any future proceedings,” which could cause
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.
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. 10-
11. 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
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.
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.
-9-
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s/ Charles J. Cooper
Charles J. Cooper
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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.
*********************************************************************************
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 21, 2010
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:
SERVICE LIST
EXHIBIT 34
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No. 09A648
IN THE
pìéêÉãÉ=`çìêí=çÑ=íÜÉ=råáíÉÇ=pí~íÉë=
Finally, the balance of equities weighs against a stay because there is a strong
interest in providing the public with meaningful access to the trial proceedings in this
Recording and publicly distributing this bench trial in other courtrooms and on the
Internet will promote deeply rooted First Amendment principles that favor broad public
access to judicial proceedings. Indeed, this Court has recognized that a “trial is a public
event” and that “[w]hat transpires in the court room is public property.” Craig v. Harney,
331 U.S. 367, 374 (1947). Because “it is difficult for [people] to accept what they are
prohibited from observing” (Richmond Newspapers v. Virginia, 448 U.S. 555, 572 (1980)
(op. of Burger, C.J.)), the First Amendment guarantees free and open access to judicial
proceedings in order to foster public confidence in the judicial system. Broad public
affairs” that is essential to the ability of “the individual citizen . . . [to] effectively
Newspaper Co. v. Superior Court, 457 U.S. 596, 604 (1982) (internal quotation marks
omitted).
In light of the great public interest in the issues to be decided in this case,
providing a broadcast of the proceedings is the most effective means of affording the
public its constitutionally guaranteed right of access. More than 13 million Californians
cast a vote for or against Prop. 8. And there are hundreds of thousands of gay and lesbian
Californians who have a direct stake in the outcome of this case. Far from detracting
18
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from the right of public access, the “highly contentious” character of the issues to be
resolved in this case (Stay App. 24) underscores the importance of providing the public
with a meaningful window into the trial proceedings so it can see and hear what is
happening in the courtroom. See Press-Enterprise Co. v. Superior Court, 464 U.S. 501,
508 (1984) (“The value of openness lies in the fact that people not actually attending
trials can have confidence that standards of fairness are being observed”). The “ability to
see and to hear a proceeding as i[t] unfolds is a vital component of the First Amendment
right of access.” ABC, Inc. v. Stewart, 360 F.3d 90, 99 (2d Cir. 2004).
III. CONCLUSION
For the foregoing reasons, the Application for Immediate Stay should be denied.
Respectfully submitted.
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1
IN THE UNITED STATES DISTRICT COURT
2
FOR THE NORTHERN DISTRICT OF CALIFORNIA
3
4
KRISTIN M PERRY, SANDRA B STIER,
5 PAUL T KATAMI and JEFFREY J
ZARRILLO,
6
Plaintiffs,
7
CITY AND COUNTY OF SAN FRANCISCO,
8
Plaintiff-Intervenor,
9
v
10
ARNOLD SCHWARZENEGGER, in his
For the Northern District of California
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1 “were extremely concerned about their personal safety, and did not
2 want to appear with any recording of any sort, whatsoever.” Tr
3 1094:21-23.
4 The timeline shows, however, that proponents failed to
5 make any effort to call their witnesses after the potential for
6 public broadcast in the case had been eliminated. The Supreme
7 Court issued a temporary stay of transmission on January 11, 2010
8 and a permanent stay on January 13, 2010. See Hollingsworth v
9 Perry, 130 SCt 1132 (Jan 11, 2010); Hollingsworth v Perry, 130 SCt
10 705 (Jan 13, 2010). The court withdrew the case from the Ninth
For the Northern District of California
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EXHIBIT 36
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I. Introduction
presently Chief Judge of the United States Court of Appeals for the Third Circuit, having served on
the court for over 18 years. Prior to that I was a judge of the United States District Court for the
Eastern District of Pennsylvania for over 11 years. I will observe my 30th anniversary on the
federal bench on December 11, 2000. I am appearing before you today in my capacity as a
member of the Executive Committee of the Judicial Conference of the United States. On behalf of
the Judicial Conference, I appreciate the invitation to testify. We hope that the testimony provided
As you requested, this statement will comment on S. 721, a bill that would "allow media
coverage of court proceedings." The Judicial Conference strongly opposes this measure.
The federal judiciary has examined the issue of whether cameras should be pennitted 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 hann to a
citizen's right to a fair and impartial trial. We believe that the intimidating effect of cameras on
litigants, witnesses, and jurors has a profoundly 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
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These concerns are far from hypothetical. Since the infancy of motion pictures, cameras
have had the potential to create a spectacle around 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
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
electronic evidence presentation systems. The federal courts have also established community
outreach programs in which several thousand students and teachers nationwide have come to
federal courthouses to learn about court proceedings. Our opposition to this legislation, therefore,
is not, as some may suggest, borne of a desire to stem technology or access to the courts. We
oppose the broadcasting of federal court proceedings because it is contrary to the interests of
Today I will discuss some of the Judicial Conference's specific concerns with this
legislation, as well as with the issues of cameras in the courtroom, generally. However, before
addressing those concerns, I would like to provide you with a brief review of the Conference's
experience with cameras, which will demonstrate the time and effort it has devoted to
understanding this issue over the years. I must emphasize at the threshold that today, as in the past,
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Whether to allow cameras in the courtroom is far from a novel question for the federal
judiciary. Electronic media coverage of criminal proceedings in federal courts has been expressly
prohibited under Federal Rule of Criminal Procedure 53 since the criminal rules were adopted in
1946. That rule states that "[t]he taking of photographs in the courtroom during the progress of
judicial proceedings or radio broadcasting of judicial proceedings from the courtroom shall not be
recording or taking photographs in the courtroom and areas immediately adjacent thereto .... "
The prohibition applied to criminal and civil cases. The Conference has, however, repeatedly
the Courtroom, which recommended that a three-year experiment be established permitting camera
coverage of certain proceedings in selected federal courts. In 1990, the Judicial Conference
adopted this recommendation, and authorized a three-year pilot program allowing electronic media
coverage of civil proceedings in six district and two appellate courts, which commenced July 1,
1991. The courts that volunteered to participate in the pilot project were the u.s. Courts of
Appeals for the Second and Ninth Circuits, and the U.S. District Courts for the
District of New York, Eastern District of Pennsylvania, and Western District of New York.
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The Federal Judicial Center (FJC) conducted a study of the pilot project and submitted its
results to a committee of the Judicial Conference in September 1994. I The research project staff
made a recommendation that the Conference "authorize federal courts of appeals and district
courts nationwide to provide camera access to civil proceedings in their courtrooms .... " It is
important to note that the recommendations included in the report were reviewed within the FJC
The Conference disagreed with the conclusions drawn by the FJC staff and concluded that
the potentially intimidating effect of cameras on some witnesses and jurors was cause for
considerable concern. The paramount responsibility of a United States judge is to uphold the
Constitution, which guarantees citizens the right to a fair and impartial trial. Taking into account
this considerable responsibility placed upon judges, the Conference concluded that it was not in
Two years later, at its March 1996 session, the Judicial Conference again considered the
issue. At that session, the Conference voted to strongly urge each circuit judicial council to adopt,
pursuant to its rulemaking authority articulated in 28 U.S.c. § 332(d)(1), an order reflecting the
Conference's September 1994 decision not to permit the taking of photographs or radio and
television coverage of proceedings in U.S. district courts. The Conference also voted to strongly
urge circuit judicial councils to abrogate any local rules that conflict with this decision, pursuant to
28 U.S.C. § 2071(c)(1).
The Conference, however, made a distinction between camera coverage for appellate and
lIn 1994, the Federal Judicial Center published a report entitled Electronic Media Coverage ofFederal
Civil Proceedings: An Evaluation of the Pilot Program in Six District Courts and Two Courts ofAppeals. The
period used by the Federal Judicial Center for its study was July 1, 1991, to June 30, 1993.
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district court proceedings. Because an appellate proceeding does not involve witnesses and
juries, the concerns of the Conference regarding the impact of camera coverage on the litigation
process were reduced. Therefore, the Conference adopted a resolution stating that "[ e]ach court of
appeals may decide for itself whether to permit the taking of photographs and radio and television
coverage of appellate arguments, subject to any restrictions in statutes, national and local rules,
The current policy, as published in the Guide to Judiciary Policies and Procedures
states:
Presently, only two of the 13 appellate courts, the Second and Ninth Circuits, have decided
to permit camera coverage in appellate proceedings. This decision was made by the judges of
each court. As for cameras in district courts, most circuit councils have either adopted
resolutions prohibiting cameras in the district courts or acknowledged that the district courts in that
Finally, it may be helpful to describe the state rules regarding cameras in the courtroom.
While it is true that most states permit some use of cameras in their courts, such access by the
media is not unlimited. The majority of states have imposed restrictions on the use of cameras in
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the court or have banned cameras altogether in certain proceedings. Although it is somewhat
difficult to obtain current information, it appears that approximately 20 states that permit cameras
have restrictions of some kind written into their authorizing statutes, such as prohibiting coverage
of certain proceedings or witnesses, and!or requiring the consent of the parties, victims of sex
offenses, and witnesses. Eleven states do not allow coverage of criminal trials. In eight states
cameras are allowed only in appellate courts. Mississippi, South Dakota, and the District of
Columbia prohibit cameras altogether. Utah allows only still photography at civil trials, and
Nebraska allows only audio coverage in civil trials. In fact, only 16 states provide the presiding
judge with the type of broad discretion over the use of cameras contained in this legislation. It is
clear from the widely varying approaches to the use of cameras that the state courts are far from
being of one mind in the approach to, or on the propriety and extent of, the use of cameras in the
courtroom.
I would now like to discuss some of the specific concerns the Judicial Conference has with
S. 721, as well as the more general issue of media coverage in the courtroom.
Supporters of cameras in the courtroom assert that modem technology has made cameras
and microphones much less obvious, intrusive or disruptive, and that therefore the judiciary need
not be concerned about their presence during proceedings. That is not the issue. While covert
coverage may reduce the bright lights and tangle of wires that were made famous in the Simpson
trial, it does nothing to reduce the significant and measurable negative impact that camera coverage
Proponents of cameras in the courtroom argue that media coverage would benefit society
because it would enable people to become more educated about the legal system and particular
trials. But even if this is true, and we take up this question later in the testimony, increased public
education cannot be allowed to interfere with the judiciary's primary mission, which is to
administer fair and impartial justice to individual litigants in individual cases. While judges are
accustomed to balancing conflicting interests, balancing the positive effects of media coverage
against an external factor such as the degree of impairment of the judicial process that camera
coverage would bring is not the kind of thing judges should balance. Rather, our mission is to
administer the highest possible quality of justice to each and every litigant. We cannot tolerate
even a little bit of unfairness (based on media coverage), notwithstanding that society as a whole
might in some way benefit, for that would be inconsistent with our mission.
The Conference maintains that camera coverage would indeed have a notably adverse
impact on court proceedings. This includes the impact the camera and its attendant audience
would have on the attorneys, jurors, witnesses, and judges. We believe, for example, that a
witness telling facts to a jury will often act differently when he or she knows that thousands of
people are watching and listening to the story. This change in a witness's demeanor could have a
profound impact on ajury's ability to accurately assess the veracity of that witness. Media
coverage could exacerbate any number of human emotions in a witness from bravado and over
dramatization, to self-consciousness and under reaction. In fact, even according to the FJC study
(which is discussed in more detail later in this statement), 64 percent of the participating judges
reported that, at least to some extent, cameras make witnesses more nervous. In addition, 46
percent of the judges believed that, at least to some extent, cameras make witnesses less willing to
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appear in court, and 41 percent found that, at least to some extent, cameras distract witnesses.
Such effects could severely compromise the ability of jurors to assess the veracity of a
witness and, in turn, could prevent the court from being able to ensure that the trial is fair and
impartial. Likewise, television cameras could have a profound impact on the deliberations of a
jury. The psychological pressures that jurors are already under would be unnecessarily increased
by the broader exposure resulting from the broadcasting of a trial and could conceivably affect a
The primary goal of this legislation is to allow radio and television coverage of federal
court cases. While there are several provisions aimed at limiting coverage (i.e., allowing judges
the discretion to allow or decline media coverage; authorizing the Judicial Conference to develop
advisory guidelines regarding media coverage; and requiring courts to disguise the face and voice
of a witness upon his or her request), the Conference is convinced that camera coverage could, in
certain cases, so indelibly affect the dynamics of the trial process that it would impair citizens'
For example, Section lea) and (b) of the bill would allow the presiding judge of an
appellate or district court to decide whether to allow cameras in a particular proceeding before
that court. If this legislation were to be enacted, we are confident that all federal judges would use
extreme care and judgment in making this determination. Nonetheless, federal judges are not
clairvoyants. Even the most straightforward or "run of the mill" cases have unforseen
2We recognize that the legislation would sunset the authority for district court judges to permit cameras
three years after the date of enactment of the Act. There is no comparable sunset provision for the appellate
courts.
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developments. Obviously a judge never knows how a lawyer will proceed or how a witness or
party will testify. And these events can have a tremendous impact on the trial participants.
Currently, courts have recourse to instruct the jury to disregard certain testimony or, in extreme
situations, to declare a mistrial if the trial process is irreparably harmed. If camera coverage is
allowed, however, there is no opportunity to later rescind remarks heard by the larger television
audience. This concern is of such importance to the Conference that it opposes legislation that
would give a judge discretion to evaluate in advance whether television cameras should be
We also are concerned about the provision that would require courts to disguise the face
and voice of a witness upon his or her request. Anyone who has been in court knows how
defensive witnesses can be. Frequently they have a right to be. Witnesses are summoned into
court to be examined in public. Sometimes they are embarrassed or even humiliated. Providing
them the choice of whether to testify in the open or blur their image and voice would be cold
comfort given the fact that their name and their testimony will be broadcast to the community. It
would not be in the interest of the administration of justice to unnecessarily increase the already
These basic concerns regarding witnesses were eloquently described by Justice Clark in
The quality of the testimony in criminal trials will often be impaired. The impact
upon a witness of the knowledge that he is being viewed by a vast audience is
simply incalculable. Some may be demoralized and frightened, some cocky and
given to overstatement; memories may falter, as with anyone speaking publicly, and
accuracy of statement may be severely undermined. Embarrassment may impede
the search for the truth, as maya natural tendency toward over dramatization.
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It is these concerns that cause the Judicial Conference of the United States to oppose
Cameras provide a very strong temptation for both attorneys and witnesses to try their
cases in the court of public opinion rather than in a court of law. Allowing camera coverage
would almost certainly become a potent negotiating tactic in pretrial settlement negotiations. For
example, in a high-stakes case involving millions of dollars, the simple threat that the president of
a defendant corporation could be forced to testify and be cross examined, for the edification of the
general public, might well be a real disincentive to the corporation's exercising its right to a
public trial.
Although the bill includes language allowing witnesses who testify to be disguised, the bill
does not address security concerns or make similar provision regarding other participants in
judicial proceedings. The presence of cameras in the courtroom is likely to heighten the level and
the potential of threats to judges. The number of threats against judges has escalated over the
years, and widespread media exposure could exacerbate the problem. Additionally, all witnesses,
jurors, and United States Marshals Service personnel may be put at risk because they would no
Also, national and international camera coverage of trials in federal courthouses, would
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place these buildings, and all in them at greater risk from terrorists, who tend to choose targets for
destruction that will give their "messages" the widest exposure. Such threats would require
There is a rising tide of concern among Americans regarding privacy rights and the
Internet. Numerous bills have been introduced in both the Congress and state legislatures to
protect the rights of individual citizens from the indiscriminate dissemination of personal
information that once was, to use a phrase coined by the Supreme Court, hidden by "practical
obscurity,"3 but now is available to anyone at any time because ofthe advances oftechnology. The
judiciary is studying this issue carefully with respect to court records, and Congress has before it a
bipartisan proposal to create a Privacy Study Commission to look at a number of issues, including
public records.
Broadcasting of trials presents many of the same concerns about privacy as does the
indiscriminate dissemination of information on the Internet that was once only available at the
courthouse. Witnesses and counsel frequently discuss very sensitive information during the course
of a trial. Often this information relates to individuals who are not even parties to the case, but
about whom personal information may be revealed. Also, in many criminal and civil trials, which
the media would most likely be interested in televising, much of the evidence introduced may be of
an extremely private nature, revealing family relationships and personal facts, including medical
and financial information. This type of information provided in open court, is already available to
3United States Department of Justice v. Reporters Committee for the Freedom of the Press, 489 U.S.
749,764 (1989).
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the public through the media. Televising these matters sensationalizes these details for no apparent
good reason.
Involvement in a federal case can have a deep and long-lasting impact on all its
participants, most of whom have neither asked for nor sought publicity. In this adversarial setting,
reputations can be compromised and relationships can be damaged. In fact, according to the FJC
study on live courtroom media coverage, 56% of the participating judges felt that electronic media
coverage violates a witness's privacy. This is not to say that the Conference advocates closed
trials; far from it. Nevertheless, there is a common-sense distinction between a public trial in a
public courtroom-typically filled with individuals with a real interest in the case-and its
elevation to an event that allows and encourages thousands to become involved intimately in a
The issue of privacy rights is one that has not been adequately considered or addressed by
those who would advocate the broadcasting of trials. This heightened awareness of and
concern for privacy rights is a relatively new and important development that further supports the
position of the Judicial Conference to prohibit the use of cameras in the courtroom.
F. s. 721 Does Not Address the Complexities Associated with Camera Coverage
Media coverage of a trial would have a significant impact on that trial process. There are
major policy implications as well as many technical rules issues to be considered, none of which
are addressed in the proposed legislation. For example, televising a trial makes certain court
orders, such as those sequestering witnesses, more difficult to enforce. In a typical criminal trial,
most witnesses are sequestered at some point. In addition, many related technical issues would
have to be addressed, including advance notice to the media and trial participants, limitations on
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coverage and camera control, coverage of the jury box, and sound and light criteria.
Regardless of whether funding is authorized, there is no guarantee that needed funds would be
appropriated. The costs associated with allowing cameras, however, could be significant. For
example, costs would be incurred to retrofit courtrooms to incorporate cameras while minimizing
their actual presence to the trial participants. Also, to ensure that a judge's orders regarding
coverage of the trial were followed explicitly (e.g., not filming the jury, obscuring the image and
voice of certain witnesses, or blocking certain testimony), a court may need to purchase its own
equipment, as well as hire technicians to operate it. When considering that these expenses may
have to be incurred in each of the 94 districts, the potential cost could be significant. An
additional considerable cost would be creation of the position of media coordinator or court
basis. According to the FJC report, the functions of the media liaisons included receiving
applications from the media and forwarding them to presiding judges, coordinating logistical
arrangements with the media, and maintaining administrative records of media coverage.
Some have asserted that there is a constitutional "right" to bring cameras into the
courtroom and that the First Amendment requires that court proceedings be open in this manner to
the news media. The Judicial Conference responds to such assertions by stating that today, as in
the past, federal court proceedings are open to the public; however, nothing in the First
The seminal case on this issue is Estes v. Texas, 381 U.S. 532 (1965). In Estes, the
Supreme Court directly faced the question whether a defendant was deprived of his right under the
Fourteenth Amendment to due process by the televising and broadcasting of his trial. The Court
held that such broadcasting in that case violated the defendant's right to due process oflaw. At the
same time, a majority of the Court's members addressed the media's right to telecast as relevant to
determining whether due process required excluding cameras from the courtroom. Justice Clark's
plurality opinion and Justice Harlan's concurrence indicated that the First Amendment did not
extend the right to the news media to televise from the courtroom. Similarly, Chief Justice
In the case of Westmoreland v. Columbia Broadcasting System. Inc., 752 F.2d 16 (2d Cir.
1984), the Second Circuit was called upon to consider whether a cable news network had a right
to televise a federal civil trial and whether the public had a right to view that trial. In that case,
both parties had consented to the presence of television cameras in the courtroom under the close
supervision of a willing court, but a facially applicable court rule prohibited the presence of such
cameras. The Second Circuit denied the attempt to televise that trial, saying that no case has held
that the public has a right to televised trials. As stated by the court, "[tJhere is a long leap ...
between a public right under the First Amendment to attend trials and a public right under the First
Amendment to see a given trial televised. It is a leap that is not supported by history."
Similarly, in United States v. Edwards, 785 F.2d 1293 (5th Cir. 1986), the court discussed
whether the First Amendment encompasses a right to cameras in the courtroom, stating: "No case
suggests that this right of access includes a right to televise, record, or otherwise broadcast trials.
To the contrary, the Supreme Court has indicated that the First Amendment does not guarantee a
positive right to televise or broadcast criminal trials." Edwards, 785 F.2d at 1295. The court
went on to explain that while television coverage may not always be constitutionally prohibited,
that is a far cry from suggesting that television coverage is ever constitutionally mandated.
These cases forcefully make the point that, while all trials are public, there is no
constitutional right of media to broadcast federal district court or appellate court proceedings.
Proponents of S. 721 have indicated that the legislation is justified in part by the FJC study
referred to earlier. The Judicial Conference based, in part, its opposition to cameras in the
courtroom on the same study. Given this apparent inconsistency, it may be useful to highlight
several important findings and limitations of the study. As I noted earlier in the statement, the
recommendations included in the FJC report, which were proposed by the research project staff,
First, the study only pertained to civil cases. This legislation, if enacted, would allow
camera coverage in both civil and criminal cases. As this Subcommittee is acutely aware, the
number of criminal cases in the federal courts continues to rise. One could expect that most of
the media requests for coverage would be in sensational criminal cases, where the problems for
Second, the study's conclusions ignore a large amount of significant negative statistical
data. For example, the study reports on attorney ratings of electronic media effects in proceedings
in which they were involved. Among these negative statistics were the following:
• 32% of the attorneys who responded felt that, at least to some extent, the cameras distract
witnesses;
• 40% felt that, at least to some extent, the cameras make witnesses more nervous than they
otherwise would be;
• 19% believed that, at least to some extent, the cameras distract jurors;
• 21 % believed that, at least to some extent, the cameras cause attorneys to be more
theatrical in their presentations;
• 27% believed that, at least to some extent, the cameras have the effect of distracting the
attorneys; and
• 21 % believed that, at least to some extent, the cameras disrupt the courtroom proceedings.
When trial judges were asked these same questions, the percentages of negative responses
• 46% believed that, at least to some extent, the cameras make witnesses less willing to
appear in court;
• 64% reported that, at least to some extent, the cameras make witnesses more nervous than
they otherwise would be;
• 17% responded that, at least to some extent, cameras prompt people who see the coverage
to try to influence juror-friends;
• 64% found that, at least to some extent, the cameras cause attorneys to be more theatrical in
their presentations;
• 9% reported that, at least to some extent, the cameras cause judges to avoid unpopular
decisions or positions; and
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• 17% found that, at least to some extent, cameras disrupt courtroom proceedings.
These negative statistical responses from judges and attorneys involved in the pilot project
dominated the Judicial Conference debate and were highly influential in the Conference's
conclusion that the intimidating effect of cameras on witnesses and jurors was cause for alarm.
Since a United States judge's paramount responsibility is to seek to ensure that all citizens enjoy a
fair and impartial trial, and cameras may compromise that right, allowing cameras would not be in
the interest of justice. For these reasons, the Judicial Conference rejected the conclusions made by
For the appellate courts, an even larger percentage of judges who participated in the study
• 47% of the appellate judges who responded found that, at least to some extent, the cameras
cause attorneys to be more theatrical in their presentations;
• 56% found that, at least to some extent, the cameras cause attorneys to change the emphasis
or content of their oral arguments;
• 34% reported that, at least to some extent, cameras cause judges to change the emphasis or
content of their questions at oral arguments; and
• 26% reported that, at least to some extent, the cameras disrupt courtroom proceedings.
While the Conference did allow each United States court of appeals to determine whether
to permit the use of cameras in that circuit, these high negative responses give us a very real
indication as to why only two out of 13 courts of appeals have allowed their proceedings to be
televised. The two courts that do allow camera coverage are the Second and Ninth Circuits,
Carefully read, the FJC study does not reach the firm conclusions for which it is repeatedly
cited. The negative responses described above undermine such a reading. When considering
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legislation affecting cameras in the courtroom with such permanent and long-range implications for
the judicial process, the negative responses should be fully considered. Certainly that is what the
Conference focused on. In reality the recommendations of the study reflect a balancing exercise
which may seem proper to social scientists but which is unacceptable to judges who cannot
compromise the interests of the litigants, jurors, and witnesses, even for some amorphous public
The proponents of cameras in the courtroom rely, of course, on the putative benefits of
public education and understanding of court processes. The Judicial Conference supports that goal
but does not agree that cameras in courtrooms will significantly further it. The FJC study analyzed
the results achieved during the pilot project. The main approach to the issue lay in a content
analysis of evening news broadcast using footage obtained during the pilot program. 4 The content
analysis is disquieting. The ninety stories analyzed presented a total of one hour and twenty-five
minutes of courtroom footage, with an average of fifty-six seconds of courtroom footage per story.
There is not too much educational content in 56 seconds. Moreover, most of the courtroom footage
was voiced over by a reporter's narration. On average, reporters narrated 63% of all courtroom
4rhis analysis was conducted by the Center for Media and Public Affairs under contract with the FJC.
Content analysis is the objective and systematic description of communicative material. The content analysis
performed for this study proceeded in two phases. First, a qualitative analysis was used to identify the symbols,
stylistic devices, and narrative techniques shaping the form and substance of the news stories; this allowed the
researchers to develop analytic categories based on the actual content of the stories rather than imposing priori
categories. Second, the analytic categories that were developed and pre-tested formed the basis of a quantitative
analysis, which involved the systematic coding of story content into discrete categories.
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footage. Thus, the witnesses, parties, and attorneys spoke on camera for just over one-third of the
total air time. In at least one-half of the cases photographed, information on the nature of the case
The FJC report also sought to determine specifically the extent to which the stories
provided basic educational information about the legal system, examining whether five pieces of
information were conveyed to the viewer: (1) identification of the case as a civil matter;
(2) identification of the type or proceeding, such as a hearing or trial; (3) statements about whether
a jury was present; (4) descriptions of the proceedings on a given day; and (5) discussion of the
The vast majority of stories (95% of non-first day stories) did not identify
the proceeding covered as a civil matter. In addition, 77% of the stories failed to
identify the type of proceeding involved. Almost three-quarters (74%) of all
stories did not provide information about whether a jury was present, including half
of the stories that identified the covered proceedings as a trial.
Most stories (74%) did explain what transpired in court on a particular day,
such as who testified or what evidence was presented. In multiple-day cases, 90%
of the stories explained the daily proceedings, compared to 63% in single-day
stories. Seventy-six percent of the daily proceedings in a story were explained by
a combination of reporter narration and participant discussion. Only 29% of
stories mentioned the next step in the litigation process in the case.
Thus, the stories did not provide a high level of detail about the legal
process in the cases covered. In addition, the analysis revealed that increasing the
proportion of courtroom footage used in a story did not significantly increase the
information given about the legal process.
In view of the foregoing, we suggest that the benefits of televised coverage of courtroom
proceedings are overrated (and are certainly far outweighed by the detriments described above).
Television news coverage oftentimes appears simply to use the courtroom for a backdrop or a
visual image for the news story which, like many of such stories on television, are delivered in
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The FJC study also reported that Court TV covered 28 cases under the program and that C-
SPAN covered 7 cases. However, it does not appear from records available to us that these
proceedings were broadcast either in their entirety or continuously. The paucity of cases selected
by C-SPAN-seven in two years-suggests that the tediousness, technicality, and sheer length of
trials are obstacles to comprehensive media transmission, except in the sensational kinds of cases
The federal judiciary acknowledges that more needs to be done to improve the general
understanding by the public of the federal judiciary and its processes. We believe that this goal
can best be achieved by active federal judicial involvement. Federal courts have, in the past few
years, begun to play an active role in this area through community outreach programs. Under the
aegis of these programs, thousands of students, teachers, and other members of the public have
come into federal courts to learn more about the federal courts and to engage in dialogue with
judges, attorneys and court personnel. National initiatives to increase public understanding of the
federal court system are underway in pilot programs in two circuits. In addition, over the last two
years, the federal judiciary has conducted Law Day programs for high school seniors, during
which mock trials were broadcast to 2,000 students at over 30 participating courthouses
nationwide.
Additionally, plans are underway for federal courts to assist school personnel in planning
curriculums designed to instruct about the federal judiciary, culminating in court visits (or visits by
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judges to schools). The positive results of these kinds of programs are self-evident. We believe
that it would be preferable to expend the monies that would be necessary to support a cameras in
VI. Conclusion
When almost anyone in this country thinks of cameras in the courtroom today, they
inevitably think ofthe Simpson case. I sincerely doubt anyone believes that the presence of
cameras in that courtroom did not have an impact on the conduct of the attorneys, witnesses, jurors,
and judge-almost universally to the detriment of the trial process. Admittedly, few cases are
Simpson-like cases, but the inherent effects of the presence of cameras in the courtroom are, in
some respects, the same, whether or not it is a high-publicity case. Furthermore, there is a
legitimate concern that if the federal courts were to allow camera coverage of cases that are not
sensational, it would become increasingly difficult to limit coverage in the high-profile and
high-publicity cases where such limitation, almost all would agree, would be warranted.
This is not a debate about whether judges would be discomfited with camera coverage.
Nor is it a debate about whether the federal courts are afraid of public scrutiny. They are not.
Open hearings are a hallmark of the federal judiciary. It is also not about increasing the
educational opportunities for the public to learn about the federal courts or the litigation process.
The judiciary strongly endorses educational outreach, which could better be achieved through
Rather, this is a decision about how individual Americans-whether they are plaintiffs,
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defendants, witnesses, or jurors-are treated by the federal judicial process. It is the fundamental
duty of the federal judiciary to ensure that every citizen receives his or her constitutionally
guaranteed right to a fair trial. For the reasons discussed in this statement, the Judicial Conference
believes that the use of cameras in the courtroom could seriously jeopardize that right. It is this
concern that causes the Judicial Conference of the United States to oppose enactment of S. 721. As
the Supreme Court stated in Estes, "[w]e have always held that the atmosphere essential to the
Mr. Chairman, thank: you again for the opportunity to testify and present these views. I will
be pleased to answer any questions you or the other members ofthe Subcommittee may have.
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No. 10-16696
Argued December 6, 2010
(Reinhardt, Hawkins, N. Smith)
TABLE OF CONTENTS
Page
INTRODUCTION......................................................................................................1
ARGUMENT .............................................................................................................3
II. Local Rule 77-3 Neither Affects Nor Informs The Public’s
Right Of Access To Judicial Records ...................................................7
CONCLUSION ........................................................................................................10
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TABLE OF AUTHORITIES
Page(s)
Cases
ABC, Inc. v. Stewart,
360 F.3d 90 (2d Cir. 2004) ............................................................................10
Brown & Williamson Tobacco Corp. v. FTC,
710 F.2d 1165 (6th Cir. 1983) .....................................................................4, 5
In re Continental Ill. Sec. Litig.,
732 F.2d 1302 (7th Cir. 1984) .........................................................................4
Doe v. Reed,
130 S. Ct. 2811 (2010)...................................................................................10
Foltz v. State Farm Mut. Auto. Ins. Co.,
331 F.3d 1122 (9th Cir. 2003) .....................................................................3, 4
Globe Newspaper Co. v. Superior Court,
457 U.S. 596 (1982) ....................................................................................3, 7
Hagestad v. Tragesser,
49 F.3d 1430 (9th Cir. 1995) ...........................................................................7
Hollingsworth v. Perry,
130 S. Ct. 705 (2010)...................................................................................8, 9
NBC Subsidiary (KNBC-TV) v. Superior Court,
980 P.2d 337 (Cal. 1999).................................................................................7
Nixon v. Warner Commc’ns, Inc.,
435 U.S. 589 (1978) ........................................................................................9
Press-Enter. Co. v. Superior Court,
478 U.S. 1 (1986).............................................................................................7
Publicker Indus., Inc. v. Cohen,
733 F.2d 1059 (3d Cir. 1984) ..........................................................................4
Richmond Newspapers, Inc. v. Virginia,
448 U.S. 555 (1980) ........................................................................................4
ii
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Rules
9th Cir. R. 27-13(d)..................................................................................................10
N.D. Cal. Civ. R. 77-3............................................................................................8, 9
iii
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INTRODUCTION
The First Amendment and the common law establish a strong presumption that
judicial records are open to the public; those seeking to rebut that presumption must
satisfy the heavy burden of proving that a compelling governmental interest requires
secrecy, and any sealing of records must be narrowly tailored to serve that overriding
governmental interest. The only interest Proponents claim in their campaign to keep
the entire video recording of this trial secret is their speculative fear that “dissemina-
tion of the trial recordings could have a chilling effect” on witnesses’ participation in
trials, and that “witnesses in future controversial cases . . . would think long and hard
before” testifying in a videotaped trial. Prop. Opp. 7. But Proponents have offered no
evidence whatsoever of such harm, either in the district court or in this Court, despite
ture. As this Court and the Supreme Court have made clear, such unsupported specu-
lation is insufficient to overcome the strong presumptive right of public access to judi-
The public has long known Proponents’ two witnesses who testified in this
trial—their identities and the transcripts of every word they said have been available
on the internet since they testified. In fact, these two paid expert witnesses had al-
ready written and published their views. They had purposefully thrust themselves and
1
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their opinions into the public domain on highly visible and controversial subjects, and
were actively engaged in a voluntary effort to convince the judicial system of the cor-
rectness of their opinions and to influence the outcome of a public trial on constitu-
nents’ argument amounts to a claim that allowing the public to see and hear that testi-
mony, as opposed to just reading it, will somehow result in intimidation and harass-
ment that might deter these or other expert witnesses from coming forward to testify
for compensation in the future. This makes no sense. Indeed, video deposition testi-
mony of one of the Proponents and two of their later-withdrawn expert witnesses has
been available on the internet for more than a year. If any of them suffered harass-
Similarly, hundreds of people watched this testimony at the San Francisco Court-
house, both in the courtroom where the trial took place and in overflow courtrooms,
yet Proponents offered no evidence that any witness suffered any harassment whatso-
ever. Neither evidence nor logic supports Proponents’ speculative claims of threat-
ened harm, which are nothing more than a guise for Proponents’ true concern that the
public will see for themselves the utter lack of evidence or persuasive argument they
against gay men and lesbians. Proponents make nothing like the showing necessary to
2
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overcome the public’s presumptive right of access to court records under the First
Because they cannot refute the public’s right to see the Court’s records, Propo-
nents claim that those records should not exist in the first place. Whatever the merits
of that argument—and Plaintiffs submit it is meritless—it does not bear on the ques-
tion of whether the public should have access to this Court’s records that already exist:
The video recording of the trial exists as part of this Court’s official record of this
case, it was used without objection in the closing arguments, and it was a basis for ad-
judication below. The Constitution and common law give the public the strong pre-
sumptive right to inspect judicial records in the absence of specific, powerful reasons
ARGUMENT
The First Amendment and common law presumption of public access to judicial
factual findings.” Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 (9th
Cir. 2003) (emphases added); accord Globe Newspaper Co. v. Superior Court, 457
U.S. 596, 606-07 (1982). Contrary to Proponents’ assertion that the public’s right of
3
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access applies only to criminal proceedings (Prop. Opp. 5 n.2), the right of access ap-
plies to civil trials as it does to criminal trials. See, e.g., Foltz, 331 F.3d at 1135 (ob-
serving in a civil appeal, that this Court has “a strong presumption in favor of access
to court records.”). Indeed, “historically both civil and criminal trials have been pre-
sumptively open.” Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 n.17
(1980) (plurality); see also id. at 596 (Brennan, J., concurring in judgment) (emphasiz-
ing value of open civil proceedings); id. at 599 (Stewart, J., concurring in judgment)
(First Amendment provides a right of access to civil trials). Unanimous circuit court
authority holds that the same interests requiring presumptively open criminal trials
also warrant presumptively open civil trials. See, e.g., Publicker Indus., Inc. v. Cohen,
733 F.2d 1059, 1068-71 (3d Cir. 1984); Brown & Williamson Tobacco Corp. v. FTC,
710 F.2d 1165, 1178 (6th Cir. 1983); see also, e.g., Rushford v. New Yorker Maga-
zine, Inc., 846 F.2d 249, 252 (4th Cir. 1988); In re Continental Ill. Sec. Litig., 732
While Proponents belittle this concern (Prop. Opp. 2), public access to judicial
proceedings is crucial to public confidence in the judiciary. Seattle Times Co. v. U.S.
District Court, 845 F.2d 1513, 1516 (9th Cir. 1988); see also Media Coal. Br. 4-10.
“Public access creates a critical audience and hence encourages truthful exposition of
facts, an essential function of a trial.” Brown & Williamson Tobacco Corp., 710 F.2d
4
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at 1178. But to satisfy their burden and defeat the public’s interest, Proponents offer
only the same wholly unsupported and speculative assertions of potential harm that
would be intimidated if the public were permitted to view the testimony in this trial
cannot be credited. Proponents offered no evidence to support it, and while Propo-
nents’ counsel baldly assert the supposed fears and concerns of their witnesses, there
is absolutely no record evidence on that subject either. In any event, the Supreme
Court has emphasized that robust public debate is paramount over harms far more
concrete than those Proponents claim: “As a Nation we have chosen . . . to protect
even hurtful speech on public issues to ensure that we do not stifle public debate.”
Snyder v. Phelps, 131 S. Ct. 1207, 1213, 1220 (2011) (First Amendment right to pro-
test outside a funeral carrying signs such as “God Hates Fags” and “You’re Going to
Hell”). Judicial proceedings are open to enhance the dependability of witness testi-
mony with sunlight as the disinfectant. See Brown & Williamson Tobacco Corp., 710
F.2d at 1178 (“Witnesses in an open trial may be less inclined to perjure them-
selves.”).
While Proponents point to the Supreme Court’s statement in its stay ruling re-
garding the supposed fears of Proponents’ witnesses (Prop. Opp. 6), that statement
5
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was based on the very limited record before the Court at that time, which predated the
trial and included only the assertions of Proponents’ counsel and no evidence from the
witnesses themselves. Proponents’ counsel continued to make such claims during trial
but never supported them with any actual evidence. Indeed, during trial Proponents
sought to show that those who fight against marriage equality for gay men and lesbi-
ans are the real “victims” and are subject to harassment and abuse. They failed com-
pletely. Proponents best “evidence” of harm was a hearsay video from Fox’s O’Reilly
Factor. DIX2544. That excerpt featured a San Francisco resident, completely unin-
volved in the litigation, who did not testify or submit to cross-examination. Propo-
their own press releases, and press clippings (U.S.D.C. Doc #606 at 34), but the dis-
trict court rejected Proponents’ arguments based on this evidence (ER 71), and Propo-
nents have not shown that that factual finding was clearly erroneous. Proponents did
not offer a single sworn statement or live witness in the district court describing any
fear of intimidation or harassment, which led the district court to find that “[t]he re-
cord does not reveal the reason behind proponents’ failure to call their expert wit-
nesses.” ER 71. Even were such new evidence appropriate in this Court, Proponents
offered none. This is a failure of proof at the most basic level that falls far short of
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In short, all Proponents offer is rank speculation. But the strong presumption of
access may be “overcome only on the basis of articulable facts known to the court, not
F.3d 1430, 1434 (9th Cir. 1995) (citations and quotation marks omitted); see also
Press-Enter. Co. v. Superior Court, 478 U.S. 1, 15 (1986) (“The First Amendment
right of access cannot be overcome by the conclusory assertion that publicity might
Finally, Proponents’ demand for a wholesale ban on public access to the trial
video is not “narrowly tailored to serve [their] interest.” Globe Newspaper Co., 457
U.S. at 607. In fact, while the only interest that Proponents identify as justifying
keeping the trial video under seal is their witnesses’ fears, Proponents identify no
more narrowly tailored way to address this supposed fear than sealing the entire video.
Proponents do not even attempt to explain how the supposed, unsubstantiated fears of
their two expert witnesses justify sealing the testimony of Plaintiffs, Plaintiffs’ experts
II. Local Rule 77-3 Neither Affects Nor Informs The Public’s Right
Of Access To Judicial Records
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insist that the trial proceedings should not have been recorded at all under the district
court’s Local Rule 77-3. For instance, they argue that the Supreme Court’s “narrow”
of [Local Rule 77-3] to broadcast this trial complied with federal law,” now governs
whether “the First Amendment affords the public the right to access the recordings or
broadcast of the trial proceedings in this case.” Prop. Opp. 5. But the Supreme
Court’s Hollingsworth decision nowhere mentions the First Amendment, nor could it
possibly have addressed uses of a trial video after the trial’s completion because the
Supreme Court ruled during the early days of the trial. Hollingsworth v. Perry, 130 S.
Ct. 705 (2010); see Prop. Opp. 2 (acknowledging “that was all that the order then un-
Further, whatever limits Local Rule 77-3 imposes on public broadcasting are
immaterial because the present motion does not remotely question whether a trial
video is a judicial record, as Proponents themselves concede (Prop. Opp. 5), the pub-
lic should have the right to access, review, and evaluate that record. The issue is
whether the public should be denied access to a classic verbatim judicial record:
video recording of important testimony that took place in a public courtroom and has
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Proponents also argue that the common law presumption of access does not ap-
ply because allowing the public to see the trial video would violate Local Rule 77-3.
Prop. Opp. 5-6. Proponents are wrong. The common law’s “strong presumption in
favor of access” to judicial records (San Jose Mercury News, Inc. v. U.S. District
Court, 187 F.3d 1096, 1102 (9th Cir. 1999)), does not depend on the circumstances
under which the record was created. Rather, in deciding whether the presumption has
been defeated, courts consider, among other things, whether the records sought may
be used as “a vehicle for improper purposes,” such as the promotion of “public scan-
dal” or the disclosure of trade secrets. Nixon v. Warner Commc’ns, Inc., 435 U.S.
In any event, because the district court recorded the trial proceedings for use in
chambers, the recording did not violate the district court’s Local Rule 77-3, which
prohibits recording trial proceedings with the intent to publicly broadcast but permits
such recording for use in chambers. Proponents’ argument that determining a judge’s
intent in recording trial proceedings would nullify Local Rule 77-3 is baseless and im-
practical. To the extent Proponents are concerned that district judges might abuse
their discretion to record proceedings for use in their chambers, the proper course is
revision of the local rule through appropriate processes (see Hollingsworth, 130 S. Ct.
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at 710), not denying public rights of access afforded by the First Amendment and the
common law.
CONCLUSION
“The ability to see and to hear a proceeding as [it] unfolds is a vital component
of the First Amendment right of access.” ABC, Inc. v. Stewart, 360 F.3d 90, 99 (2d
Cir. 2004). To suppress the First Amendment and common law rights of access in
light of hypothetical, speculative, and utterly unproven harms is antithetical to the vi-
sion of this country as “the Home of the Brave.” Doe v. Reed, 130 S. Ct. 2811, 2837
(2010) (Scalia, J., concurring in judgment). Accordingly, this Court should grant
Plaintiffs’ motion to unseal the trial video. See 9th Cir. R. 27-13(d).
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