Case: 10-16696 04/15/2011 Page: 1 of 17 ID: 7718979 DktEntry: 340

No. 10-16696
Argued December 6, 2010
(Reinhardt, Hawkins, N. Smith)

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT
_________________________

KRISTIN M. PERRY, et al.,

Plaintiffs-Appellees,
v.
EDMUND G. BROWN, JR., et al.,
Defendants,
and
DENNIS HOLLINGSWORTH, et al.,
Defendants-Intervenors-Appellants.
_________________________
On Appeal From The United States District Court
For The Northern District Of California
No. CV-09-02292 JW (Honorable James Ware)
____________________________________________________
PLAINTIFFS-APPELLEES’ OPPOSITION TO APPELLANTS’ MOTION REGARDING
TRIAL RECORDINGS AND PLAINTIFFS-APPELLEES’ MOTION TO UNSEAL
____________________________________________________
DAVID BOIES THEODORE B. OLSON
JEREMY M. GOLDMAN Counsel of Record
THEODORE H. UNO MATTHEW D. MCGILL
BOIES, SCHILLER & FLEXNER LLP AMIR C. TAYRANI
333 Main Street GIBSON, DUNN & CRUTCHER LLP
Armonk, New York 10504 1050 Connecticut Avenue, N.W.
(914) 749-8200 Washington, D.C. 20036
(202) 955-8500
THEODORE J. BOUTROUS, JR.
CHRISTOPHER D. DUSSEAULT
ENRIQUE A. MONAGAS
GIBSON, DUNN & CRUTCHER LLP
333 South Grand Avenue
Los Angeles, CA 90071
(213) 229-7804
Attorneys for Plaintiffs-Appellees
Kristin M. Perry, Sandra B. Stier, Paul T. Katami, and Jeffrey J. Zarrillo
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TABLE OF CONTENTS
Page

INTRODUCTION......................................................................................................1

ARGUMENT .............................................................................................................3

I. The First Amendment Mandates Public Access To Trial

Records ..................................................................................................3

II. This Motion Is Otherwise Deficient And Improper..............................6

III. The Recordings Of The Trial Should Be Unsealed ..............................9

CONCLUSION ........................................................................................................11

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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

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TABLE OF AUTHORITIES (continued)

Page(s)

Richmond Newspapers v. Virginia,

448 U.S. 555 (1980) ........................................................................................4
Rushford v. New Yorker Magazine, Inc.,
846 F.2d 249 (4th Cir. 1988) .........................................................................10
Seattle Times Co. v. United States Dist. Court,
845 F.2d 1513 (9th Cir. 1988) .......................................................................10

Statutes
28 U.S.C. § 1291........................................................................................................6

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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-

tual compelling evidence which demonstrated the unconstitutionality of Proposition 8

and the paucity of evidence that Proponents presented in its defense directly conflicts

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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.

Although Proponents believe that it is somehow too dangerous to allow more of

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

republican system of self-government.” Globe Newspaper Co. v. Superior Court, 457

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.

14), stands the First Amendment on its head.

After the broadcast of just three minutes of a three-week public trial, and al-

though Plaintiffs and Plaintiff-Intervenors have scrupulously adhered to the protective

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

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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.

https://ecf.cand.uscourts.gov/cand/09cv2292/evidence/index.html. The 13-volume

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-

tual witnesses rather than being limited to actors’ portrayals.

ARGUMENT

I. The First Amendment Mandates Public Access To Trial Records

Public trials are a cornerstone of our democracy. Access to judicial proceedings

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,

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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

experience instructs us that except in rare circumstances openness preserves, indeed, is

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.

2004). A trial adjudicating an issue as important and as closely-watched as Califor-

nia’s elimination of the constitutional right of gay men and lesbians to marry requires

the maximum public access guaranteed by these First Amendment values.

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-

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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.”).

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II. This Motion Is Otherwise Deficient And Improper

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

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Walker. At a minimum, the district court should be permitted to rule on this issue in

the first instance.

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,

http://catalog.loc.gov (containing public, historical archive of numerous judicial pa-

pers including those of Chief Justices Marshall, Taney, Taft, and Hughes, Justices

Brandeis, Holmes, Frankfurter, and Van Devanter). Contrary to Proponents’ asser-

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

words on a printed page is of no moment. ECF No. 339.

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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

limited use challenged here. Id. at 709.

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-

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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

publicly known. See, e.g., Kenneth P. Miller, Claremont McKenna College,

www.claremontmckenna.edu/academic/faculty/profile.asp?Fac=406. In fact, rather

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

want to appear with any recording of any sort, whatsoever.”).

III. The Recordings Of The Trial Should Be Unsealed

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

trial was in any way confidential or contained sensitive, proprietary information of

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-

closed, unless the Court determines that it should be unsealed.

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.

Dated: April 15, 2011 Respectfully submitted,

/s/ Theodore B. Olson
DAVID BOIES THEODORE B. OLSON
JEREMY M. GOLDMAN Counsel of Record
THEODORE H. UNO MATTHEW D. MCGILL
BOIES, SCHILLER & FLEXNER LLP AMIR C. TAYRANI
333 Main Street GIBSON, DUNN & CRUTCHER LLP
Armonk, NY 10504 1050 Connecticut Avenue, N.W.
Washington, D.C. 20036

THEODORE J. BOUTROUS, JR.

CHRISTOPHER D. DUSSEAULT
ENRIQUE A. MONAGAS
GIBSON, DUNN & CRUTCHER LLP
333 South Grand Avenue
Los Angeles, CA 90071

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9th Circuit Case Number(s) 10-16696

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