United States District Court Northern District of California
United States District Court Northern District of California
United States District Court Northern District of California
1 Department of Public Health and State Registrar of Location: Courtroom 6, 17th Floor
Vital Statistics; LINETTE SCOTT, in her official
2 capacity as Deputy Director of Health Information
& Strategic Planning for the California Department
3
of Public Health; PATRICK O’CONNELL, in his
4 official capacity as Clerk-Recorder for the County
of Alameda; and DEAN C. LOGAN, in his official
5 capacity as Registrar-Recorder/County Clerk for
the County of Los Angeles,
6
Defendants,
7
and
8
PROPOSITION 8 OFFICIAL PROPONENTS
9 DENNIS HOLLINGSWORTH, GAIL J.
KNIGHT, MARTIN F. GUTIERREZ, HAK-
10 SHING WILLIAM TAM, and MARK A.
JANSSON; and PROTECTMARRIAGE.COM –
11 YES ON 8, A PROJECT OF CALIFORNIA
RENEWAL,
12
Defendant-Intervenors.
13
14
Additional Counsel for Defendant-Intervenors
15
24
25
26
27
28
DEFENDANT-INTERVENORS’ MOTION FOR A STAY
CASE NO. 09-CV-2292 VRW
Case3:09-cv-02292-VRW Document371 Filed01/08/10 Page3 of 4
7 For the following reasons, Defendant-Intervenors respectfully seek a stay of the Court’s order
8 directing that the trial proceedings in this case will be recorded and webcast on the Internet.
9 The issue to be decided is: Are Defendant-Intervenors entitled to a stay pending resolution of a
10 petition for writ of mandamus?
11
12
On January 6, 2010, the Court ordered that the trial proceedings in this case would be
13
recorded and made available for a “webcast” on YouTube. Four factors inform whether a federal
14
15 court should issue a stay pending appellate review: (1) the appellants’ likelihood of success on the
16 merits; (2) the possibility of irreparable harm absent a stay; (3) the possibility of substantial injury
17 to other parties if a stay is issued; and (4) the public interest. See Golden Gate Rest. Ass’n v. San
18 Francisco, 512 F.3d 1112, 1115 (9th Cir. 2008) (citing Hilton v. Braunskill, 481 U.S. 770, 776
19
(1987)). For the reasons Proponents have already stated to this Court, and for the reasons
20
explained in the attached petition for writ of mandamus or prohibition (Ex. 1), the Court’s order is
21
contrary to law and thus Proponents are correct on the merits of their challenge. Also for reasons
22
23 previously stated, and for the reasons stated in the attached mandamus petition, Proponents will be
24 irreparably harmed if the trial proceedings, due to commence on January 11, 2010, are publicly
25 broadcast. The other parties to this action will not be substantially injured if a stay is issued, as
26
there is no right to public broadcast of a trial and, indeed, public broadcast—as explained by the
27
Judicial Conference of the United States—is likely to negatively affect the fairness of a trial. The
28
DEFENDANT-INTERVENORS’ MOTION FOR A STAY
CASE NO. 09-CV-2292 VRW
Case3:09-cv-02292-VRW Document371 Filed01/08/10 Page4 of 4
1 public interest weighs heavily in favor of fair trials in the federal courts, and in favor of federal
2 courts’ following the proper, legal procedures in promulgating rules of practice. The public
3
interest in access to the trial will not be diminished by a stay because, as explained in the attached
4
petition, there is no public right to public broadcast of a trial and the trial here will remain open to
5
the public and the press.
6
7 CONCLUSION
8 For the foregoing reasons, the Court should grant this motion for a stay.
9
Dated: January 8, 2010 COOPER AND KIRK, PLLC
10 ATTORNEYS FOR DEFENDANTS-INTERVENORS
DENNIS HOLLINGSWORTH,
11 GAIL J. KNIGHT, MARTIN F. GUTIERREZ, MARK A.
JANSSON, and PROTECTMARRIAGE.COM – YES ON
12 8, A PROJECT OF CALIFORNIA RENEWAL
13
By: /s/Charles J. Cooper
14 Charles J. Cooper
15
16
17
18
19
20
21
22
23
24
25
26
27
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DEFENDANT-INTERVENORS’ MOTION FOR A STAY
CASE NO. 09-CV-2292 VRW
Case3:09-cv-02292-JW Document371-1 Filed01/08/10 Page1 of 48
NO. 10-____
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
IN RE: DENNIS HOLLINGSWORTH, GAIL J. KNIGHT, MARTIN F. GUTIERREZ,
MARK A. JANNSON, AND PROTECT-MARRIAGE.COM—YES ON 8, A
PROJECT OF CALIFORNIA RENEWAL
DENNIS HOLLINGSWORTH, et al., Petitioners
v.
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
CALIFORIA, Respondent,
KRISTEN M. PERRY, SANDRA B. STIER, PAUL K. KATAMI, JEFFREY J.
ZARRILLO, CITY AND COUNTY OF SAN FRANCISCO, NON-PARTY THE
MEDIA COALITION, ARNOLD SCHWARZENEGGER, in his official capacity as
Governor of California, EDMUND G. BROWN, JR., in his official capacity as Attorney
General of California, MARK B. HORTON, in his official capacity as Director of the
California Department of Public Health and State Registrar of Vital Statistics,
LINETTE SCOTT, in her official capacity as Deputy Director of Health Information &
Strategic Planning for the California Department of Public Health, PATRICK
O’CONNELL, in his official capacity as Clerk-Recorder for the County of Alameda,
DEAN C. LOGAN, in his official capacity as Registrar-Recorder/County Clerk for the
County of Los Angeles, and HAK-SHING WILLIAM TAM, Real Parties in Interest.
petition for a writ of mandamus or prohibition to the United States District Court
for the Northern District of California in district court case number 09-CV-2292
this case to defend that California ballot initiative. The mandamus petition
concerns the district court’s decision to broadcast the trial proceedings in this case,
irreparable harm. Because the trial is set to begin on Monday, “relief is needed in
that the Court immediately issue a writ of mandamus or prohibition barring the
district court from proceeding with its plan to broadcast the trial, or in the
alternative, at least temporarily stay the district court’s hand pending disposition of
i
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All of the grounds the mandamus petition were presented to the district
This morning, Proponents’ counsel notified counsel for the other parties that
they would file this mandamus petition presently and served counsel for the other
The telephone numbers and addresses of the attorneys for the parties are as
follows:
ii
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iii
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Brian W. Raum
James A. Campbell
ALLIANCE DEFENSE FUND
15100 N. 90th St.
Scottsdale, AZ 85260
(480) 444-0020
[email protected]
iv
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formed ballot committee under California Law. See CAL. GOV. CODE §§ 82013 &
82047.5.
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TABLE OF CONTENTS
INTRODUCTION .....................................................................................................1
JURISDICTION ........................................................................................................4
ISSUE PRESENTED.................................................................................................4
STATEMENT............................................................................................................4
ARGUMENT ...........................................................................................................11
vii
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CONCLUSION........................................................................................................30
viii
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TABLE OF AUTHORITIES
Cases
Admiral Ins. Co. v. U.S. Dist. Court, 881 F.2d 1486 (9th Cir. 1989);.............. 12, 30
Bauman v. United States District Court, 557 F.2d 650 (9th Cir. 1977) ..................23
In re Cement Antitrust Litigation, 688 F.2d 1297 (9th Cir. 1982). ............ 12, 13, 16
In re Imperial “400” Nat’l, Inc., 481 F.2d 41 (3d Cir. 1973) .................................28
In re Sony BMG Music Entertainment, 564 F.3d 1 (1st Cir. 2009)...... 13, 20, 21, 25
Jinro Am., Inc. v. Secure Inv., Inc., 266 F.3d 993 (9th Cir. 2001) ..........................30
NRDC v. Evans, 316 F.3d 904 (9th Cir. 2003) ................................................. 26, 27
Riverbend Farms, Inc. v. Madigan, 958 F.2d 1479 (9th Cir. 1992)........................24
Star Editorial, Inc. v. United States District Court, 7 F.3d 856 (9th Cir. 1993) .....12
ix
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United States v. Carr, 2006 U.S. Dist. LEXIS 74757 (E.D. Cal. 2006)…………26
United States v. Hernandez, 251 F.3d 1247 (9th Cir. 2001) ...................................23
United States v. Klubock, 832 F.2d 664 (1st Cir. 1987) .........................................25
United States v. Yonkers Bd. of Education, 747 F.2d 111 (2d Cir. 1984) ...............21
5 U.S.C. § 553(b)(B)................................................................................................26
28 U.S.C. § 332(d)(1).......................................................................................... 2, 27
28 U.S.C. § 1651....................................................................................................1, 4
Rules
x
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Constitutional Provisions
www.youtube.com/usdccand...................................................................................11
http://www.youtube.com/watch?v=hcKJEHrvwDI.................................................17
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Pursuant to 28 U.S.C. § 1651, FED. R. APP. P. 21, and this Court’s Circuit
prohibition barring the district court from broadcasting the trial in this case. With
trial set to begin Monday, January 11, 2010, an immediate writ of mandamus or
prohibition (or at least a temporary stay pending disposition of this petition, see
Cir. Advisory Comm. Note to Rules 21-1 to 21-4) is necessary to stop the irrepara-
ble harm that will flow from the unlawful broadcast of the trial proceedings.
INTRODUCTION
a provision of the California Constitution (“Prop 8”), providing that “[o]nly mar-
CONST. art. I, § 7.5. Although the case concerns a question of law that can be an-
the district court has ordered a full-scale, multi-week trial. Dozens of witnesses are
marriage and sexual orientation in general. Yesterday, the district court formally
notified the parties that, subject to the approval of the Chief Judge of the Ninth
Circuit, the trial would be broadcast daily on YouTube several hours after the
completion of the day’s proceedings. See Notice to Parties (Jan. 7, 2010) (Ex. 1);
Tr. of Hr’g of Jan. 6, 2010 (Ex. 2) at 6, 46. Although there is no record that Chief
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Judge Kozinski has yet acted, Petitioners feel compelled to seek relief now to af-
ford this Court adequate time to rule before the trial begins Monday morning.1
The district court’s order is contrary to the long-established policy of the Ju-
dicial Conference of the United States—as well as the policies of both the Northern
District of California and the Ninth Circuit in effect at least until late December
2009. The district court issued the order pursuant to (i) a purported revision, made
on the eve of trial, to the district court’s Local Rule 77-3, which had previously
prohibited public broadcast, and (ii) a press release by the Ninth Circuit Judicial
proceedings within the Circuit. Both policies appear to have been changed with
great haste solely to ensure that this case would be publicly broadcast.
Congress has mandated that the public be afforded notice and the opportu-
nity to comment before a district court revises a local rule or a circuit judicial
failed entirely to comply with this statutory mandate, while the Northern District
ful consideration of the public’s views and then at the last minute shifted its ration-
ale in an attempt to take refuge in a statutory exception for rule changes prompted
1
Petitioners are simultaneously moving the district court to stay its order
pending disposition of this petition.
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tailed guidelines about how a pilot program allowing public broadcast will operate
or how it will address the many serious concerns this practice raises.
The questions of whether and how to publicly broadcast trial proceedings are
weighty and have for years been the subject of study, debate, proposed legislation,
and testimony from dozens of federal judges, including the justices of the Supreme
Court. For fifteen years the Judicial Conference of the United States has “consis-
tently” and repeatedly voiced its strong opposition because “camera coverage can
the Courtroom: Hr’g Before the S. Comm. on the Judiciary, 109th Cong. (Nov. 9,
2005) (statement of Hon. Diarmuid O’Scannlain for the Judicial Conference of the
United States) (Ex. 3) (“Testimony of Judge O’Scannlain”) at 40; see also, e.g.,
Letter from James C. Duff (July 23, 2009) (Ex. 4) (“Duff Letter”) at 2.
Here, the district court, because it has before it a high-profile case, has de-
cided to short-circuit the national debate on this issue, to change its controlling
rules in a matter of days through a process that violates the letter and spirit of the
law, and to broadcast on YouTube a trial that has the potential to become a media
circus. It has done so without addressing the many concerns cited by the Judicial
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Indeed, the specific concerns underlying the Judicial Conference’s firm op-
position are present in spades here. The record is already replete with evidence
showing that any publicizing of support for Prop 8 has inevitably led to harass-
ment, economic reprisal, threats, and even physical violence. In this atmosphere,
witnesses are understandably quite distressed at the prospect of their testimony be-
ing broadcast worldwide on YouTube. Whatever truth there may be to the notion
that televising trials will better educate the public about the federal judiciary, “in-
creased public education cannot be allowed to interfere with the judiciary’s pri-
mary mission, which is to administer fair and impartial justice to individual liti-
JURISDICTION
This Court has jurisdiction over this petition pursuant to 28 U.S.C. § 1651.
ISSUE PRESENTED
Whether the district court may broadcast the trial beyond the courthouse.
STATEMENT
nia’s constitution because the State declined to do so. When they intervened in
June 2009, the long-standing policy of the Ninth Circuit Judicial Council flatly
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Ninth Circuit Judicial Conference (July 2007) (Ex. 5). Likewise, the Northern Dis-
trict of California’s Local Rule 77-3 stated that “the taking of photographs, public
environs, in connection with any judicial proceeding, is prohibited.” See Ex. 6; see
also N.D. Cal. Gen. Order No. 58 (Ex. 7), ¶ III (adopting Judicial Conference’s
The Judicial Conference of the United States adopted its current policy in
Sep.pdf. The policy is based upon the potentially negative impact that the public
After an extensive, multi-year study of the issue by the Federal Judicial Center
(“FJC”), the Judicial Conference, in 1994, rejected proposals for public broadcast
ity of the Conference concluded that the intimidating effect of cameras on some
witnesses and jurors was cause for concern, and the Conference declined to … to
In July 2007, the Ninth Circuit Judicial Conference adopted a resolution rec-
ommending that the Judicial Conference of the United States change its policy to
permit the broadcast of civil, non-jury trials. See Ex. 6. The Ninth Circuit Judicial
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Conference also recommended that, “to the extent permitted by Judicial Confer-
ence [of the United States] procedures, this Circuit should adopt a Rule that would
action for nearly two years. In the interim, “[t]he Ninth Circuit Judicial Council
Conference but deferred action to await possible developments at the national lev-
el.” Letter from Cathy A. Catterson (May 7, 2009) (Ex. 8). Finally, in May 2009,
for reasons left unstated, the Ninth Circuit Judicial Council decided “that it is ap-
propriate to forward [to the United States Judicial Conference] the [2007] resolu-
tion now and ask that it [be] considered by [the Committee on Court Administra-
The Judicial Conference of the United States has not retreated from its pol-
icy against the broadcast of district court proceedings. Indeed, as recently as July
2009 the Judicial Conference forcefully reiterated to Congress its concern that
broadcasting would interfere with a fair trial. The Judicial Conference empha-
sized, inter alia, its considered judgment that “[t]elevision cameras can intimidate
litigants, witnesses, and jurors, many of whom have no direct connection to the
proceeding and are involved in it through no action of their own. Witnesses might
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refuse to testify or alter their stories when they do testify if they fear retribution by
On September 25, 2009, despite the local and national policies barring pub-
lic broadcast of proceedings in the Northern District, the district court informed the
parties that it had received inquiries about publicly broadcasting the trial and asked
the parties for their position. Tr. of Hr’g of Sept. 25, 2009 (Ex. 9) at 70. The court
but stated that “[t]his is all in flux.” Id. at 72. Plaintiffs, Plaintiff-Intervenors, and
the Attorney General (all of whom seek invalidation of Prop 8) stated their support
for publicly broadcasting the trial. See Doc. No. 215 (Ex.10). Proponents op-
posed, explaining that it would violate the United States Judicial Conference’s pol-
icy and would threaten the fairness of the trial. See Doc. No. 218 (Ex. 11).
Neither the Ninth Circuit Judicial Council, nor the Northern District as a
whole, nor the trial court in this case took any further public action with regard to
this issue between September 25 and December 16, the date of the final pretrial
conference. However, the presiding judge later informed the parties (on the eve of
trial) that he sat on a Judicial Council committee of three judges created by Chief
Judge Kozinski on October 22 “to evaluate the possibility of adopting a Ninth Cir-
that this “case was very much in mind at that time because it had come to promi-
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nence then and was thought to be an ideal candidate for consideration.” Tr. of
Hr’g of Jan. 6, 2009 (Ex. 2) at 43. Neither the parties nor the public received any
At the final pre-trial conference, the court announced that although public
broadcast was “not permitted” under “current Ninth Circuit policy and rules” or the
Northern District’s local rules, the Ninth Circuit Judicial Council was considering
of Hr’g of Dec. 16, 2009, at 10 (Ex. 12). The court explained that its “understand-
ing [was] that a proposal to implement that is pending before the Judicial Council
of the Ninth Circuit, and may very well be enacted in the very near future,” though
the court did not yet “have a green light for it.” Id.
The next day, December 17, the Ninth Circuit Judicial Council issued a
ited use of cameras in federal district courts within the circuit.” See Ex. 13. The
press release provided no details as to how the pilot program would be imple-
mented other than that “[c]ases to be considered for the pilot program will be se-
lected by the chief judge of the district court in consultation with the chief circuit
judge.” Id. No Circuit rule or order permitting the broadcast of trials has been no-
ticed, opened for public comment, or promulgated, nor has the Judicial Council is-
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sought leave to televise the trial. Doc. No. 313. On December 23, the Northern
District of California posted on its website “public notice” that the court “has ap-
proved a revision of Civil Local Rule 77-3, effective December 22, 2009.” See Ex.
ing “a Judge or a Magistrate Judge with respect to his or her own chambers or as-
explaining that any change in Ninth Circuit policy or local rules regarding broad-
cast of district court proceedings would require a sufficient public notice and
comment period. Doc. Nos. 324, 326 (Exs. 15 & 16). Proponents reiterated that
this case implicates the precise concerns that animated the Judicial Conference’s
policy against broadcast of district court proceedings. Doc. No. 324 at 6-7.
On December 30, the district court set a hearing for January 6, 2010, on the
issue of broadcasting the trial. Later that day, the court informed the parties that
“in light of the recent change to the Ninth Circuit Judicial Council’s policy regard-
ing cameras in district courts and the subsequent amendment of Civil LR 77-3 to
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conform with Ninth Circuit policy, the court is considering seeking approval from
Chief Judge Kozinski to record or webcast the January 6 hearing.” Doc. 332 at 2.
In the late afternoon on New Year’s Eve, the Northern District removed
from its website the posting announcing that it had “approved a revision of Civil
Local Rule 77-3, effective December 22, 2009.” In its place, the court put up an
“approved for public comment.” Ex. 17 (emphasis added). Any comments were
6 hearing for the reasons previously stated. Doc. No. 336 (Ex. 18). Proponents al-
longer appeared that the purported amendment to Local Rule 77-3 was operative.
Id.
Later on January 4, the Northern District removed from its website the post-
ing announcing the “proposed” revision of Rule 77-3 and replaced it with a notice
announcing that the court had approved the revision “effective December 22,
2009.” Ex 19. The notice further stated that “[t]he revised rule was adopted pur-
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On January 6, the court held a hearing that was recorded on video over Pro-
trial would go not only to the overflow courtroom in the courthouse, but also to
this Court’s San Francisco courthouse and courthouses in Seattle, Portland, Pasa-
dena, and Chicago. Tr. of Hr’g of Jan. 6, 2009 (Ex. 2) at 16-17. The court further
ruled that this case was appropriate for public broadcast and held that if Chief
Judge Kozinski approved, the trial would be recorded and broadcast beginning
Monday January 11, 2010. Id. at 46. A court technician explained to the parties
that proceedings would be recorded using three cameras and the resulting broad-
cast would then be uploaded for posting on YouTube, with a delay due to the web-
ARGUMENT
is appropriate in a given case: (1) whether the petitioner has no other means, such
as an appeal, to obtain the desired relief; (2) whether the petitioner will be dam-
aged or prejudiced in any way not correctable on appeal; (3) whether the district
court order is clearly erroneous as a matter of law; (4) whether the district court’s
order is an oft repeated error or manifests a persistent disregard of the federal rules;
and (5) whether the district court’s order raises new and important problems or is-
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sues of first impression.” Perry v. Schwarzenegger, No. 09-17241, slip op. at 15-
16 (9th Cir. Jan. 4, 2010) (citing Bauman v. United States Dist. Ct., 557 F.2d 650
(9th Cir. 1977)). “Satisfaction of all five … is not required,” Admiral Ins. Co. v.
U.S. Dist. Ct., 881 F.2d 1486, 1491 (9th Cir. 1989); indeed, “it is unlikely that all
of the guidelines will be met in any one case, and the decision often requires bal-
ancing of conflicting factors,” Star Editorial, Inc. v. United States Dist. Ct., 7 F.3d
856, 859 (9th Cir. 1993). Moreover, where the Court is exercising its supervisory
quired. In re Cement Antitrust Litig., 688 F.2d 1297 (9th Cir. 1982).
Appeal following an already televised trial cannot remedy the harm flowing
from the broadcast. Many of the likely adverse effects of broadcasting this trial—
harassment of witnesses, threats to the safety and security of trial participants, un-
Moreover, when, as here, the Court is called upon to exercise its “supervi-
sory authority to insure the proper and orderly administration of the federal judicial
system,” the Court is “concerned with far more than the injury to the[] particular
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petitioners; [it is also] concerned … with the effect of the challenged order on the
operation of the courts.” Cement Antitrust, 688 F.2d at 1299, 1303. Thus, “as long
as petitioners have demonstrated that they will suffer an actual injury not correct-
The First Circuit recently reaffirmed this insight, exercising its mandamus
jurisdiction to address the very same issue raised here: public broadcast of trial
court proceedings. See In re Sony BMG Music Entertainment, 564 F.3d 1 (1st Cir.
2009). The Sony court explained that immediate review through mandamus was
appropriate because the issue was “systemically important and rife with implica-
tions for the public interest” and thus merited “prompt and authoritative resolu-
tion.” Id. at 4. The same, of course, is true here. See Allowing Cameras and Elec-
tronic Media in the Courtroom, Hr’g Before the S. Judiciary Comm. (Sept. 6,
2000) (statement of Hon. Edward R. Becker for the Judicial Conference of the
United States) (“Testimony of Judge Becker”) (Ex. 21) at 1 (“The Judicial Confer-
ence maintains that camera coverage would have a notably adverse effect on court
proceedings.”).
As noted above, “decades of experience and study,” including the FJC study
that arise from public broadcast of district court proceedings, leading the Judicial
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can do irreparable harm to a citizen’s right to a fair and impartial trial.” Testimony
(i) Effect on Witnesses. The Supreme Court has long recognized that “[t]he
impact upon a witness of the knowledge that he is being viewed by a vast audience
is simply incalculable.” Estes v. Texas, 381 U.S. 532, 547 (1965). The Estes
2
See also Cameras in the Courtroom, The “Sunshine in the Courtroom Act
of 2007,” H.R. 2128, Hr’g Before the H. Judiciary Comm. (Sept. 27, 2007) (state-
ment of Hon. John R. Tunheim for the Judicial Conference of the United States)
(“camera coverage can do irreparable harm to a citizen’s right to a fair and impar-
tial trial”) (Ex. 20); Testimony of Judge Becker (Ex. 21) (public broadcast of dis-
trict court proceedings “can result in real and irreparable harm”). The United
States Department of Justice—the federal courts’ most frequent litigant—also op-
poses broadcasting district court proceedings. See, e.g., Cameras in the Court-
room, The “Sunshine in the Courtroom Act of 2007,” Hr. 2128, Hr’g Before the H.
Judiciary Comm. (Sept. 27, 2007) (statement of John C. Richter for the Dep’t of
Justice) (Ex. 22).
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United States has recognized that its insights apply equally to civil proceedings.
The FJC study of its three-year pilot program found, inter alia, that “64 percent of
the participating trial judges and 40 percent of the participating attorneys reported
that at least to some extent cameras make witnesses more nervous than they other-
wise would be” and that “46 percent of the trial judges believed that at least to
some extent cameras make witnesses less willing to appear in court.” Testimony
of Judge Becker (Ex. 21) at 1-2. Based on these results, the Judicial Conference
has repeatedly and consistently concluded that a witness “will often act differently
when he or she knows, or even believes that thousands of people are watching and
listening to the story.” Id.; see also Duff Ltr. (Ex. 4) at 2 (“the presence of cameras
in a trial court will encourage some participants to become more dramatic, to pon-
“refuse to testify or alter their stories when they do testify if they fear retribution
by someone who may be watching the broadcast.” Duff Letter (Ex. 4) at 2; see al-
so Estes, 381 U.S. at 591 (Harlan, J., concurring) (“there is certainly a strong pos-
sibility that the timid or reluctant witness, for whom a court appearance even at its
traditional best is a harrowing affair, will become more timid or reluctant when he
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finds that he will also be appearing before a ‘hidden audience’ of unknown but
Judicial Conference has found these “disquieting” insights likely to be far more
pervasive and problematic in “truly high-profile cases,” like this one. Testimony
Plaintiffs contended below that any concerns a particular witness might have
can be addressed by the district court’s discretion to bar public broadcast of spe-
cific testimony or “control the format and timing of all broadcast transmissions.”
Doc. 327 at 3. This argument fails for several reasons. First, any control the judge
exercises over the format and timing of the broadcast is illusory, for once the video
is released, it could easily be altered and disseminated widely by those with modest
technical skill and an agenda. Second, barring public broadcast of a particular wit-
ness, or blurring his or her face or voice, only serves to shine an even brighter spot-
light on that particular witness. As Judge Becker observed on behalf of the Judi-
cial Conference, “[p]roviding [a witness] with the choice whether to testify in the
open or blur their image and voice would be cold comfort indeed.” Ex. 21 at 2.
Third, Plaintiffs’ contention ignores that the effect of public broadcast is a two-
edged sword: some witnesses will shy away from cameras, others will crave the
3
The Judicial Conference has also repeatedly expressed concerns about the
effect of public broadcast on witness privacy. See Testimony of Judge
O’Scannlain (Ex. 3) at 54-55; Testimony of Judge Becker (Ex. 21) at 8-9; Duff
Letter (Ex. 4) at 2.
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spotlight and shade their testimony for dramatic effect. A trial judge cannot de-
termine in advance whether a witness will fall into this latter category. Finally,
Judge Becker explained that a district court’s discretion is no certain salve for the
wounds of public broadcast, for they often arise unexpectedly. “Federal judges are
not clairvoyants”; one never knows “what is going to happen in a trial.” Id.
In this case, these concerns are not just hypothetical. All of Proponents’ wit-
nesses have expressed concern over the potential public broadcast of trial proceed-
ings, and some have stated that they will refuse to testify if the district court goes
forward with its plan. Their distress is not unreasonable, as the record reflects re-
peated harassment of Prop 8 supporters. See Doc. Nos. 187-1; 187-2 at ¶¶ 10-12;
187-9 at ¶¶ 6-8; 187-9 at 12-15; 187-11; 187-12 at ¶¶ 5-6; 187-13 at ¶ 8; see also
often been “targeted and coordinated,” Messner, supra, and the retaliation has of-
ten been quite serious. See, e.g., Doc No. 187-11 at 81 (Brad Stone, Disclosure,
Magnified on the Web, N.Y. TIMES (Feb. 8, 2009) (“Some donors to groups sup-
porting the measure have received death threats and envelopes containing a pow-
dery white substance ….”). Broadcasting the trial would vastly increase the likeli-
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Broadcasting this trial would also impinge upon the privacy interests of wit-
nesses, “some of whom are only tangentially related to the case, but about whom
very personal and identifying information might be revealed.” Duff Letter (Ex. 4)
at 2. Already, one website “takes the names and ZIP codes of people who donated
to the ballot measure … and overlays the data on a Google map.” Doc No. 187-11
at 81. Another website published the name, hometown, home phone numbers,
that “whenever someone Googles them this [website] will come up.” Id. at 55, 62,
(ii) Effect on Attorneys. The FJC study revealed that “twenty-seven percent
of the attorneys reported that the cameras distracted them.” Testimony of Judge
Becker (Ex. 21) at 2. And “[f]ifty-six percent of the appellate judges found that, to
some extent or greater, cameras cause attorneys to change the emphasis or content
of their oral arguments.” Id. Many judges also concluded that “cameras caused
neys … to try their cases in the court of public opinion rather than in a court of
(iii) Effect on Judges. The Judicial Conference has also cited “disturbing re-
ports about the effect of … cameras on judges,” with “[n]ine percent of … trial
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judges report[ing] that at least to some extent the cameras caused judges to avoid
“34 percent [of appellate judges] reported that at least to some extent cameras
cause judges to change the emphasis or content of their questions at oral argu-
ment.” Id. And these are judges who self-reported their views.
Duff Letter (Ex. 4) at 3; see also Testimony of Judge O’Scannlain (Ex. 3) at 52-53.
U.S. Attorneys, Assistant U.S. Attorneys ..., and other court officials ... have more
than doubled during the past several years, increasing from 592 in fiscal year (FY)
2003 to 1,278 in FY 2008.” U.S. Dep’t of Justice, Office of the Inspector General,
Review of the Protection of the Judiciary and the United States Attorneys (Ex. 23)
at 1 (Dec. 2009).
* * *
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Finally, as Judge Becker explained, all of these concerns arose just from a
study of low-profile cases. He warned that in “truly high-profile cases” one can
the First Amendment grants a right to public broadcast of this trial. See Doc Nos.
primary mission, which is to administer fair and impartial justice to individual liti-
gants in individual cases.” Ex. 3 at 48. And “today, as in the past, federal court
proceedings are open to the public; however, nothing in the First Amendment re-
quires televised trials.” Id. at 57. Judge O’Scannlain noted that Estes, Westmore-
land v. Columbia Broadcasting System, Inc., 752 F.2d 16 (2d Cir. 1984), and Unit-
ed States v. Edwards, 785 F.2d 1293 (5th Cir. 1986), all “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.” Id. at 57-59. And just last
year, the First Circuit rebuffed this very argument when made by broadcasters in
another case that elicited significant public interest. See Sony, 564 F.3d at 8-9
(“the venerable right of members of the public to attend federal court proceedings
on a computer screen”).
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At the December 16, 2009, pretrial conference, the district court correctly
acknowledged that it lacked authority to permit public broadcast of the trial in this
case. See Tr. of Hr’g of Dec. 16, 2009 (Ex. 12) at 10. Local Rule 77-3 unambigu-
ously prohibited it, as did the policy of the Ninth Circuit Judicial Council and the
Judicial Conference of the United States. Local Rule 77-3 “has the force of law,”
Weil v. Neary, 278 U.S. 160, 169 (1929), and therefore bound the trial court. See,
e.g., United States v. Yonkers Bd. of Educ., 747 F.2d 111, 112 (2d Cir. 1984) (dis-
trict judge bound by local rule prohibiting recording of proceedings); United States
v. Hastings, 695 F.2d 1278, 1279 nn.4-5 (11th Cir. 1983) (same).
mus overturning an order permitting a webcast of a trial. See Sony, 564 F.3d 1.
Although a local rule barred the broadcast, see id. at 10, the trial court had sought
to read into the rule discretionary authority to allow it. Declaring that “the Judicial
is entitled to substantial weight,” the First Circuit held the trial court lacked discre-
tion to broadcast the trial. Id. at 7. The court of appeals emphasized “ ‘that the in-
timidating effect of cameras’ in the courtroom presented ‘cause for concern.’ ” Id.;
see also In re Complaint Against District Judge Billy Joe McDade, No. 07-09-
90083 (7th Cir. Sept. 28, 2009) (Easterbrook, C.J.) (district judge “engaged in con-
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the courts” by permitting broadcast of civil trial contrary to local rule and policies
The district court thus rests its order permitting public broadcast of the up-
coming trial entirely upon the revision to Local Rule 77-3 promulgated on January
4 and the Circuit Judicial Council’s December 17 press release announcing the pi-
lot program. But neither policy change was made with statutorily required public
notice and opportunity for comment and thus neither authorized the district court’s
order. Moreover, the district court’s order violates Proponents’ due process rights.
Federal district courts have the power to promulgate local rules and to
amend those rules, but “[a]ny rule prescribed by a court, other than the Supreme
Court, … shall be prescribed only after giving appropriate public notice and an op-
portunity for comment.” 28 U.S.C. § 2071(b); see also FED. R. CIV. P. 83(a)(1)
(district court may amend rules only “[a]fter giving public notice and an opportu-
nity for comment”); N.D. Cal L.R. 83-3(a) (“Before becoming effective, any pro-
posed substantive modification of the local rules shall be subject to public com-
ment ….”); United States v. Hernandez, 251 F.3d 1247, 1251 (9th Cir. 2001).4
4
Before prescribing a local rule, a district court must also “appoint an advi-
sory committee for the study of the rules of practice … of such court.” 28 U.S.C.
§ 2077(b); see also Local Rule 83-1 (“Any proposed substantive modification or
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On December 23, 2009, the Northern District announced on its website that
it had revised Local Rule 77-3, effective December 22. See Ex. 14; Doc. No. 332
(order of Dec. 30, 2009) (recognizing the “recent … amendment of Civil LR 77-
3”). However, after Proponents objected to the lack of prior public notice and op-
portunity for comment, see Doc. Nos. 324, 326, the district court, late in the day on
New Year’s Eve, removed from its website the notice of the completed revision
and substituted a notice of “proposed” revision. Exs. 15 & 16. The notice stated
that a comment period would be open through Friday, January 8, 2010—a total of
five business days following the New Year’s holiday weekend for interested per-
On January 4, 2010, the district court again revised its posting, this time re-
moving the “proposed” revision to Local Rule 77-3 and substituting a notice stat-
ing that the revision had been “adopted” effective December 22, 2009. See Ex. 19.
The notice stated that the “[t]he revised rule was adopted pursuant to the ‘immedi-
This haphazard process does not come close to satisfying the statutory re-
Cf. Miner v. Atlass, 363 U.S. 641, 650 (1960) (procedure for promulgating federal
civil rules is “designed to insure that basic procedural innovations shall be intro-
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duced only after mature consideration of informed opinion from all relevant quar-
ters, with all the opportunities for comprehensive and integrated treatment which
such consideration affords”). Courts ordinarily allow at least 30 days for comment
on a proposed local rule.5 That conforms to the agency practice under the Admin-
istrative Procedure Act, which was intended to guide judicial rulemaking. See
Farms, Inc. v. Madigan, 958 F.2d 1479, 1484 (9th Cir. 1992); see also Petry v.
Block, 737 F.2d 1193, 1201 (D.C. Cir. 1984) (Administrative Conference suggests
60 days, and concludes that “the shortest period in which parties can meaningfully
review a proposed rule and file informed responses is thirty days”) (quotation
marks omitted).
The five business days commencing on New Year’s Eve afforded by the
an issue that the Judiciary and Congress have spent years debating. It is doubtful
that many interested persons will have become aware of the New Year’s Eve no-
tice before the comment period expires today. And given the haste and determina-
tion with which the district court has sought to revise the local rule—an effort that,
5
See, e.g., United States Court of Appeals for the Ninth Circuit, Opportunity
for Comment – Rules Governing Judicial Misconduct Complaints (Dec. 21, 2009)
(30-day comment period) (Ex. 24).
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as discussed below, reached its zenith when the court implemented the revision
even before the truncated comment period had ended—it appears no serious con-
sideration would have been or will be given to the views of the commenters who
manage to meet the deadline. Especially given the seismic shift in policy effected
ence of the United States based on the fear that broadcasting would deprive liti-
gants of a fair trial (which policy is “at the very least entitled to respectful consid-
nity for comment is invalid and unenforceable. United States v. Terry, 11 F.3d
at110, 113 (9th Cir. 1993); see also United States v. Klubock, 832 F.2d 664, 671-
75 (1st Cir. 1987) (Breyer, J., dissenting) (local rule “is too important, its ramifica-
tions too complex, its contours too uncertain” to be adopted without “ ‘appropriate
exception to the notice and comment mandate, see 28 U.S.C. § 2071(e), does not
save the revision. There is little case law applying the § 2071(e) “immediate need”
exception, cf. United States v. Carr, 2006 U.S. Dist. LEXIS 74757, at *3-7 (E.D.
Cal. 2006) (invoking § 2071(e) “immediate need” exception to promulgate rule re-
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recent history of threats against judges and other court personnel and participants),
but the APA again provides useful guidance. An agency may dispense with the
comment period “when [it] for good cause finds (and incorporates the finding and
a brief statement of reasons therefor in the rules issued) that notice and public pro-
and comment procedures should be waived only when delay would do real harm.”
NRDC v. Evans, 316 F.3d 904, 911 (9th Cir. 2003) (quotation marks omitted).
The district court failed to provide any statement of its reasons for invoking
the immediate-need exception here. The Circuit Judicial Council took two years to
act on its 2007 resolution in favor of allowing cameras in district courtrooms, and
none of the other fourteen district courts in this Circuit has yet taken any public ac-
tion to implement the pilot program. As the timeline of events detailed above sug-
gests, the only conceivable “immediate need” was to amend the local rule in time
to publicly broadcast this case. In reality, this is not an instance in which a particu-
lar case has been selected for televising under a pilot program; it is an instance of a
pilot program being created for televising a particular case. No harm could result
from delaying the amendment in order to receive and consider comments. The
court has an unending stream of cases from which to find a suitable guinea pig.
Certainly, such delay would not preclude the court from “execut[ing] its … du-
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ties.” NRDC, 316 F.3d at 911. On the contrary, as explained above, the district
court’s precipitate amendment of Local Rule 77-3 so that it could broadcast this
judiciary’s primary mission, which is to administer fair and impartial justice to in-
48.
Even if the revision to Local Rule 77-3 were otherwise valid, it could not au-
thorize the public broadcast of district court proceedings because the Ninth Circuit
Judicial Council has not validly authorized such broadcasts as yet. The court be-
low clearly erred by concluding that the December 17 press release constituted a
Congress has authorized the Council to “make all necessary and appropriate
orders for the effective and expeditious administration of justice within” the Ninth
Circuit. 28 U.S.C. § 332(d)(1). But “[a]ny general order relating to practice and
procedure shall be made or amended only after giving appropriate public notice
and an opportunity for comment.” Id. (emphasis added). This notice and comment
Council] under § 332(d)(1).” Russell v. Hug, 275 F.3d 812, 818 (9th Cir. 2002).
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Other than the December 17 press release announcing the Council’s vote in
favor of a pilot program permitting public broadcast, the Council has not issued
anything formally revising its 1996 policy prohibiting the public broadcast of civil
trials—no general order, rule, or other official statement of policy. Standing alone,
the Circuit Council’s vote and subsequent press release do not represent a valid
The invalidity of the Council’s action renders the district court’s order inva-
lid, for it means that the 1996 Judicial Council policy remains in place and is bind-
ing on the trial court. This Court can correct the error through exercise of its man-
damus jurisdiction. See In re McBryde, 117 F.3d 208, 221-22 (5th Cir. 1997); In
re Imperial “400” Nat’l, Inc., 481 F.2d 41, 42 (3d Cir. 1973). Moreover, the inva-
lidity of the Council’s purported revision also renders the district court’s order in-
valid under the direct terms of revised Local Rule 77-3 (assuming arguendo that
the revision was valid). If the Council has not validly launched a pilot or other
program, then the new exception in revised Local Rule 77-3 does not apply.
ing public broadcast of district court proceedings and the lengthy guidelines that
the Northern District nor the Circuit Judicial Council has promulgated or even no-
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ticed any rules or guidelines to govern the pilot program. See Estes, 381 U.S. at
537, 551 (holding that public broadcast of a trial violated due process where “the
rules governing live telecasting … were changed as the exigencies of the situation
seemed to require” and the “day-to-day orders made the trial more confusing to …
the participants”). Even if the per se objections to public broadcast are to be ig-
nored, such guidelines are needed to regulate the trial court’s discretion in selecting
regulations should provide that public broadcast should be permitted only if all
Public broadcast of this trial would violate Proponents’ due process right to
a fair trial. In Estes, the Supreme Court held that “the atmosphere essential to the
tained at all costs.” 381 U.S. at 540.6 There, the Court found public broadcast of a
trial violated “the basic requirement of due process”—a “fair trial”—because, inter
alia, public broadcast might have (i) “impaired” the “quality of the testimony,” (ii)
affected the responsibilities and demeanor of the judge, and (iii) created “mental—
6
Estes involved a criminal trial, but civil litigants have no less of a Fifth
Amendment due process right to a fair trial. See, e.g., Jinro Am., Inc. v. Secure
Inv., Inc., 266 F.3d 993, 1007 (9th Cir. 2001).
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marks omitted). In this high-profile, highly contentious case, the potential for all
these harms and many more is great. Thus, Proponents respectfully submit that in
the specific circumstances presented here, public broadcast would violate their due
The district court’s broadcast order clearly presents “new and important
[questions] of first impression.” Perry, slip op. at 16. The fifth Bauman factor is
thus satisfied. The fourth Bauman factor—whether the district court’s order is an
not, and usually cannot, be met where the fifth factor is present. Admiral, 881 F.2d
CONCLUSION
For the foregoing reasons, this Court should issue a writ of mandamus or
prohibition barring the district court from broadcasting the trial in this case. To the
extent the Court requires additional time to consider the merits of this Petition, we
respectfully request that it issue a temporary stay to prevent the broadcast of trial
7
In Chandler v. Florida, the Supreme Court held that Estes did not an-
nounce a per se due process ban on public broadcast, but left open an as-applied
due process challenge in an appropriate case. 449 U.S. 560, 573, 582 (1981).
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Case3:09-cv-02292-JW Document371-1 Filed01/08/10 Page45 of 48
DECLARATION OF SERVICE
I hereby certify that on the 8th day of January, 2010, I caused to be served on the
following counsel a true and correct copy of the foregoing via FedEx Express:
Ethan Dettmer
Enrique Monagas
GIBSON, DUNN & CRUTCHER
LLP
555 Mission Street, Suite 3000
San Francisco, CA 94105
T: (415) 393-8200
F: (415) 393-8306
[email protected]
Case3:09-cv-02292-JW Document371-1 Filed01/08/10 Page47 of 48
[email protected]
[email protected]
[email protected]
[email protected]
Theodore Uno
BOIES, SCHILLER & FLEXNER
LLP
1999 Harrison Street, Suite 900
Oakland, CA 94612
T: (510) 874-1000
F: (510) 874-1460
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
I hereby certify that on the 8th day of January, 2010, I caused to be served on the
following counsel a true and correct copy of the foregoing via United States
Terry L. Thompson
LAW OFFICE OF TERRY L. THOMPSON
P.O. Box 1346
Alamo, CA 94507
T: (925) 855-1507
F: (925) 820-6035
[email protected]
s/Jesse Panuccio
Jesse Panuccio