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NO.10-16696

ARGUED DECEMBER 6,2010

(CIRCUIT JUDGES STEPHEN REINHARDT,MICHAEL HAWKINS,&N.R.SMITH)

UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT

KRISTIN PERRY, et al.,

Plaintiffs-Appellees,

v.

EDMUND G. BROWN, Jr., et al.,

Defendants,

and

DENNIS HOLLINGSWORTH, et al.,

Defendant-Intervenors-Appellants.

On Appeal from United States District Court for the Northern District of California

Civil Case No. 09-CV-2292 JW (Honorable James Ware)

APPELLANTS MOTION FOR ORDER COMPELLING RETURN OF

TRIAL RECORDINGS

Andrew P. Pugno

LAW OFFICES OF ANDREW P.PUGNO

101 Parkshore Drive, Suite 100

Folsom, California 95630

(916) 608-3065; (916) 608-3066 Fax

Brian W. Raum

James A. Campbell

ALLIANCE DEFENSE FUND

15100 North 90th Street

Scottsdale, Arizona 85260

(480) 444-0020; (480) 444-0028 Fax

Charles J. Cooper

David H. Thompson

Howard C. Nielson, Jr.

COOPER AND KIRK,PLLC

1523 New Hampshire Ave., N.W.

Washington, D.C. 20036

(202) 220-9600; (202) 220-9601 Fax

Attorneys for Defendant-Intervenors-Appellants Hollingsworth, Knight, Gutierrez,

Jansson, and ProtectMarriage.com

Case: 10-16696 04/13/2011 Page: 1 of 29 ID: 7715321 DktEntry: 338-1

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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES....................................................................................iv

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

STATEMENT............................................................................................................3

A. Policies and Rules Governing Broadcast of Trial Proceedings ............3B. The District Courts Efforts to Broadcast the Trial

Proceedings ...........................................................................................5

C. The Supreme Courts Decision Prohibiting Broadcast .........................6D. Chief Judge Walkers Creation of the Trial Recordings.......................7E. Judge Walkers Unlawful Public Disclosure of the Trial Recordings

Beyond the Confines of the Courthouse .............................................12

ARGUMENT...........................................................................................................13

I. THE TRIAL RECORDINGS MAY NOT BE SHOWN BEYOND THE CONFINESOF THE NORTHERN DISTRICT OF CALIFORNIA COURTHOUSE ..........................13

A. The Recordings of the Trial Proceedings Are Under Seal..................15B. Chief Judge Walker Unequivocally Assured Proponents

That the Trial Recordings Would Be for His Exclusive Use

in Chambers.........................................................................................16

C. The Supreme Courts Stay, the Judicial Councils Policy, andthe District Courts Local Rule Prohibit Showing the Trial

Recordings Beyond the Confines of the Courthouse..........................16

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

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

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EXHIBITS

Exhibit 1 Trial Transcript (Jan. 14, 2010)

Exhibit 2 - Report of the Proceedings of the Judicial Conference of the

United States (Sept. 17, 1996)

Exhibit 3 - Letter from James C. Duff, Secretary of the Judicial Conference

of the United States, to Senators Patrick J. Leahy and Jeff Sessions(July 23,

2009)



Exhibit 5 - Letter from Chief Judge Hug (June 21, 1996)

Exhibit 6 - Unamended Local Rule 77-3 (Dec. 2009)

Exhibit 7 Trial Transcript (Jan. 11, 2010)

Exhibit 8 Trial Transcript (Jan 13, 2010)

Exhibit 9 - Letter from Charles J. Cooper (Jan. 14, 2010)

Exhibit 10 - Notice to Parties (Jan. 15, 2010)

Exhibit 11 - Order 2010-3 (9th Cir. Judicial Council Jan. 15, 2010)

(Kozinski, C.J.)

Exhibit 12 - Local Rule 77-3 (Feb. 2010)

Exhibit 13 - Renewed Notice Concerning Revision of Civil Local Rule 77-3

(Feb. 4, 2010)

Exhibit 14 - Local Rule 77-3 (May 2010)

Exhibit 15 - Northern District of California Civil Local Rules web page

(May 18, 2010)

Exhibit 16 - Northern District of California home page (May 18, 2010)

Exhibit 17 - Letter from Media Coalition (May 18, 2010)

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Exhibit 18 - Letter from Charles J. Cooper

Exhibit 19 - Order (May 31, 2010)

Exhibit 20 - Amended Protective Order

Exhibit 21 - Notice to Court Clerk re Plaintiffs Request for a Copy of the

Trial Recording (June 2, 2010)

Exhibit 22 Trial Transcript (June 16, 2010)

Exhibit 23 - Notice to Court Clerk from Plaintiff-Intervenor City and County

of San Francisco re Use of Video (June 2, 2010)

Exhibit 24 - Order (June 9, 2010)

Exhibit 25 - Declaration of Peter A. Patterson (June 29, 2010)

Exhibit 26 - Defendant-Intervenors Motion for Administrative Relief (June

29, 2010)

Exhibit 27 - Plaintiffs and Plaintiff-Intervenors Opposition to Defendant-

Intervenors Motion for Administrative Relief (June 29, 2010)

Exhibit 28 - Findings of Fact and Conclusions of Law (Aug. 4, 2010)

Exhibit 29 - Petition for a Writ of Certiorari, Hollingsworth v. United States

Dist. Ct. (Apr. 8, 2010)

Exhibit 30 - Order, Hollingsworth v. United States Dist. Ct. (S. Ct. Oct. 4,

2010)

Exhibit 31 - Order, Hollingsworth v. United States Dist. Ct. (9th Cir. Oct.

15, 2010)

Exhibit 32 - Office of the Circuit Executive, Ninth Circuit Current andFuture Vacancy Table (Mar. 17, 2011)



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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 Entmt.,564 F.3d 1 (1st Cir. 2009)...................................................................................17

Matter of Sealed Affidavit(s),

600 F.2d 1256 (9th Cir. 1979) ............................................................................18

Nixon v. Warner Commcns, Inc.,

435 U.S. 589 (1978)............................................................................................18

United States v. Lang,

364 F.3d 1210 (10th Cir. 2004) ..........................................................................15

United States v. New York Tel. Co.,434 U.S. 159 (1977)............................................................................................20

United States v. Nixon,

417 U.S. 960 (1974)............................................................................................16

Statutes and Rules

18 U.S.C. 2071(a) .................................................................................................15

28 U.S.C. 332(d)(2)...............................................................................................17

28 U.S.C. 351(a) ..............................................................................................2, 14

Circuit R. 27-13(d)...................................................................................................19

Circuit Advisory Comm. Note to R. 27-13..............................................................16

Code of Conduct for United States Judges, Canon 2A............................................15

Ninth Circuit Rules of Judicial Conduct art. I, 3(h)(2).........................................15

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v

Other

http://www.c-spanvideo.org/program/Vaugh............................................ 1, 5, 12-13


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Appellants Hollingsworth, Knight, Gutierrez, Jansson, and

ProtectMarriage.com (hereinafter, Proponents) respectfully move the Court to

order that former district judge Vaughn Walker cease further disclosures of the

video recordings of the trial proceedings in this case, or any portion thereof, and

that all copies of the trial recordings in the possession, custody, or control of any

party to this case or of former judge Walker be returned promptly to the Court and

held by the court clerk under seal.1

INTRODUCTION

On February 18, 2011, Judge Walker delivered a speech at the University of

Arizona in which he played a portion of the video recording of the cross-

examination of one of Proponents expert witnesses in the trial of this case. The

speech was video taped by C-SPAN, and it was subsequently broadcast on C-

SPAN several times beginning on March 22. See http://www.c-

spanvideo.org/program/Vaugh, Details Airing Details. The speech is available

for viewing on C-SPANs website. See id.

By publicly displaying the video recording of a portion of the trial

testimony, Judge Walker (1) violated his own order placing the video recording of

the trial under seal; (2) ignored the clear terms of the district courts Local Rule 77-

1

Counsel for both Appellees oppose this motion. As indicated in the

Certificate of Service, a copy of this motion has been served upon former judge

Walker.


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3, which prohibits the broadcast or other transmission of trial proceedings beyond

the confines of the courthouse; (3) contravened the longstanding policies of the

Judicial Conference of the United States and the Judicial Council of this Court

prohibiting public broadcast of trial proceedings; and (4) defied the United States

Supreme Courts 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

engaged in conduct prejudicial to the effective and expeditious administration of

the business of the courts. In re Complaint Against District Judge Joe Billy

McDade, No. 07-09-90083 (7th Cir. Sept. 28, 2009) (Easterbrook, C.J.) (quoting

28 U.S.C. 351(a)).

But even more regrettable, perhaps, than all of this is the fact that Judge

Walkers use of the trial recording repudiated his own solemn commitment to

Proponents in open court that, despite Proponents objection, the trial was being

video recorded simply for [his] use in chambers, because it would be quite

helpful to [him] in preparing the findings of fact. Ex. 1 at 754:18-19, 755:4. In

reliance on this assurance, Proponents took no action to prevent the recording of

the trial. One of Proponents expert witnesses also relied on this assurance,

deciding to testify after then-Chief Judge Walker had made clear that the trial


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recording would not be broadcast. Now a portion of his testimony has appeared on

national television, and he regrets his decision to trust this assurance.

Whats done is done. Judge Walkers speech, and C-SPANs public

dissemination of it, cannot be undone, and given that Judge Walker has recently

retired from the federal bench, he cannot be disciplined. See In re Charge of

Judicial Misconduct, 91 F.3d 90, 91 (9th Cir. Judicial Council 1996). But he can

be ordered to cease further unlawful and improper disclosures of the trial

recordings, or any portion thereof, and to return to this Court any copies of the trial

recordings in his possession, custody, or control. We respectfully request that he

be ordered to do so. We also request that Appellees be ordered to return their

copies of the trial recordings, which were provided to them by then-Chief Judge

Walker for their use in closing argument below and in the appeal to this Court.

Putting aside that providing copies of the trial recordings to Appellees also violated

Local Rule 77-3, the policies of the Judicial Conference and this Courts Judicial

Council, and then-Chief Judge Walkers assurances in open court, the purpose for

which they were provided has now been fulfilled, and Appellees continued

possession of the recordings can no longer be justified.

STATEMENT

A. Policies and Rules Governing Broadcast of Trial ProceedingsIn 1996, the Judicial Conference of the United States adopted a policy


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opposing the public broadcast of [trial] court proceedings. Hollingsworth v.

Perry, 130 S. Ct. 705, 711 (2010); see also Ex. 2 at 54. This policy, which remains

in place today, seeHollingsworth, 130 S. Ct. at 712, is rooted in decades of

experience and study showing the potentially negative impact of broadcasting on

trial proceedings. Ex. 3 at 1; see also Hollingsworth, 130 S. Ct. at 711-12; Ex. 4 at

46-47. Indeed, in July 2009 the Judicial Conference forcefully reiterated to

Congress its conclusion that the negative [e]ffects of cameras in trial court

proceedings far outweigh any potential benefit. Ex. 3 at 1.

Also in 1996, the Ninth Circuit Judicial Council voted to adopt the policy

of the Judicial Conference of the United States regarding the use of cameras in the

courts. Ex. 5. The Councils policy thus provided: The taking of photographs

and radio and television coverage of court proceedings in the United States district

courts is prohibited. Id. [T]his policy [was] binding on all courts within the

Ninth Circuit. Id. Accordingly, the Northern District of California adopted Local

Rule 77-3, which prohibited the streaming of transmissions, or other broadcasting

or televising, beyond the confines of the courthouse. Hollingsworth, 130 S. Ct.

at 711 (quoting Local Rule 77-3); see alsoid. at 707 (Local Rule 77-3 forbid[s]

the broadcasting of trials outside the courthouse in which a trial takes place); Ex.

6.


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B. The District Courts Efforts to Broadcast the Trial ProceedingsFormer judge Walker has made no secret of his strong disagreement with the

rules and policies prohibiting the broadcast of trial proceedings. Indeed, his

February 18 speech was entitled Shooting the Messenger: How Cameras in the

Courtroom Got a Bad Rap. See http://www.c-spanvideo.org/program/Vaugh. His

advocacy was no less fervent from the bench in this case. His determined effort,

while Chief Judge, to broadcast the trial of this case, and the unlawful procedural

irregularities that it occasioned, are recounted in detail in the Supreme Courts stay

opinion, which put a stop to that effort. See Hollingsworth, 130 S. Ct. at 708-09,

711-12, 714-15. It suffices to repeat the Supreme Courts conclusion: The

District Court here attempted to revise its rules in haste, contrary to federal statutes

and the policy of the Judicial Conference of the United States. It did so to allow

broadcasting of this high-profile trial without any considered standards or

guidelines in place. [T]he order in question complied neither with existing rules

or policies nor the required procedures for amending them. Id. at 713.

The Supreme Court was especially concerned about the effect on witnesses.

Noting the Judicial Conferences determination that broadcasting trial testimony

could have an intimidating effect on some witnesses, even in routine, non-

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.

C. The Supreme Courts Decision Prohibiting BroadcastOn the morning of Monday, January 11, 2010, just before commencement of

the trial, the Supreme Court entered a temporary emergency stay, order[ing] that

[then-Chief Judge Walkers] order permitting real-time streaming is stayed

except as it permits streaming to other rooms within the confines of the courthouse

in which trial is to be held and that [a]ny additional order permitting broadcast of

the proceedings is also stayed. Hollingsworth v. Perry, 130 S. Ct. 1132 (2010).

The temporary stay on its face was set to expire on Wednesday, January 13, when

the Court would enter a decision on Proponents' stay application. Id.

At the opening of trial later that morning, Appellees asked Chief Judge

Walker to continue video recording the proceedings for the purpose of later public

dissemination in the event the stay is lifted on January 13. Ex. 7 at 15:9. Chief

Judge Walker accepted Appellees proposal over Proponents objection that

recording the proceedings was not consistent with the spirit of the temporary


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stay issued by the Supreme Court. Id. at 16:16.

Far from lifting the stay, on January 13, the Supreme Court instead

grant[ed] the application for a stay of the District Courts order of January 7,

2010, pending the timely filing and disposition of a petition for a writ of certiorari

or the filing and disposition of a petition for a writ of mandamus. Hollingsworth,

130 S. Ct. at 715.

D. Chief Judge Walkers Creation of the Trial RecordingsDuring the trial proceedings later on January 13, Chief Judge Walker noted

that the Supreme Courts 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 Courts ruling on their stay

application, the proceedings were governed by the unamended version of Local

Rule 77-3, which banned the recording or broadcast of court proceedings. Id.

at 2 (quoting and emphasizing Hollingsworth, 130 S. Ct. at 708).

A few hours later, Chief Judge Walker opened that days proceedings by

reporting that, in light of the Supreme Courts 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] notbeen altered,

Proponents reiterated their contention (made in their letter submitted earlier that

morning) that, in light of the stay, the courts local rule prohibit[s]

continued tape recording of the proceedings. Id. at 753:25, 754:4-6 (emphasis

added).

Rejecting Proponents objection, Chief Judge Walker stated that the

unamended local rule permits recording for purposes of use in chambers and

that is customarily done when we have these remote courtrooms or the overflow

courtrooms, and that that the recording would be quite helpful to [him] in

preparing the findings of fact. Id. at 754:15-19. Thus, Chief Judge Walker said

that thats the purpose for which the recording is going to be made going forward.

But its not going to be for purposes of public broadcasting or televising. Id. at

754:21-23 (emphasis added). Chief Judge Walker then repeated his position that

he was making the recordings only for limited, private use: after noting that the

[unamended] local rule[] [prohibits] [t]he taking of photographs, public

broadcasting or televising, or recording for those purposes, Chief Judge Walker

stated: So the recording is not being made for those purposes, but simply for use

in chambers. Id. at 754:24-755:4 (emphasis added). In reliance on Chief Judge


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Walkers assurances that he was recording the proceedings solely for his personal

use in chambers, Proponents took no further action to prevent the recording.

On January 15, Chief Judge Walker formally requested Chief Judge

Kozinski to withdraw this case from the pilot project. Ex. 10 at 2. Chief Judge

Kozinski promptly granted Chief Judge Walkers 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 Courts criticism that the amendment

lacked standards or guidelines, Hollingsworth, 130 S. Ct. at 713, the district

court re-proposed its amendment to Local Rule 77-3 on February 4, 2010. Ex. 13.

After a comment period, the renewed proposal to amend Local Rule 77-3 lay

dormant until May 2010, when the district court without any announcement or

indication on its website published a revised set of Local Rules, effective April

20, containing the amended Local Rule 77-3. See Ex. 14-16.

On January 27, trial was adjourned. Closing argument was then set for June

16, 2010. On May 18, 2010, the Media Coalition requested that Chief Judge

Walker formally ask Chief Judge Kozinski to again include this case in the pilot

project approved by the Ninth Circuit Judicial Council on December 17, 2009, for

the sole purpose of recording, broadcasting and webcasting the closing argument


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portion of the trial. Ex. 17. Proponents submitted a letter opposing the request,

explaining that it would violate the stay entered by the Supreme Court. Ex. 18.

While the Media Coalitions request was pending, and although Chief Judge

Walker had unequivocally assured Proponents that he was recording the

proceedings solely for his own use in chambers, Chief Judge Walker sua sponte

invited the parties to use portions of the trial recording during closing arguments

and, to that end, made a copy of the video available to the part[ies]. Ex. 19.

Chief Judge Walker added: Parties will of course be obligated to maintain as

strictly confidential any copy of the video pursuant to paragraph 7.3 of the

protective order, id., which restricts highly confidential material to the parties

outside counsel and experts and to the Court and its personnel, Ex. 20 7.3.

Appellees Perry et al. requested and were given a copy of the recording of

the entire trial proceedings, see Ex. 21, portions of which they played during

closing argument, see Ex. 22 at 2961. Appellee City and County of San Francisco

requested and was given portions of the trial recording, see Ex. 23, but did not play

them during closing argument. Chief Judge Walker denied the Media Coalitions

request to record[], broadcast[] and webcast[] closing arguments. See Ex. 24.

On June 29, 2010,after closing argument, Proponents asked Appellees to

return all copies of the trial recordings in their possession to the district court. Ex.

25 2. When they refused, Proponents asked Chief Judge Walker to order


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[Appellees] to return to the Court immediately all copies of the trial video in their

possession. Ex. 26 at 1. Proponents argued that there was no legitimate

justification for permitting Plaintiffs and [San Francisco] to maintain possession of

copies of the trial video given that the sole purpose identified by [Chief Judge

Walker] for disseminating copies of the trial video to [them] potential use at

closing argument ha[d] been satisfied. Id. at 1-2. Proponents added: [E]ven

with [Chief Judge Walkers] requirement that all copies of the trial video be

maintain[ed] as strictly confidential, it cannot be denied that dissemination

beyond the confines of the Court has increased the possibility of accidental public

disclosure, and thus of the irreparable harm that the Supreme Court

acknowledged would likely result from public broadcast of the trial. Id. at 2

(quoting Hollingsworth, 130 S. Ct. at 712). Appellees countered that once

judgment is entered, the parties and the Court [should] evaluate whether, and to

what degree, the trial recording would be useful to the parties or to the Court in

connection with any additional proceedings and/or appeal. Ex. 27 at 1.

On August 4, 2010, Chief Judge Walker denied Proponents motion to order

the return of all copies of the trial recordings. Ex. 28 at 5. Instead, he

DIRECTED the district court clerk to file the trial recording under seal as part

of the record, and permitted Appellees to retain their copies of the trial recording

pursuant to the terms of the protective order. Id. at 4. After Proponents then


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appealed Chief Judge Walkers final judgment, the district court clerk transmitted

the certified record to this Court on October 22, 2010. Since then, the trial

recordings have remained continuously under seal.

In the meantime, on April 8, 2010, Proponents petitioned the Supreme Court

to grant review of this Courts earlier ruling denying their mandamus petition

seeking to prohibit the district court from broadcasting or otherwise disseminating

the trial proceedings. Proponents argued that, in light of Chief Judge Walkers

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 Courts order

denying the mandamus petition should be vacated as moot. Ex. 29 at 11-13.

Appellees opposed vacatur of this Courts order. On October 4, 2010, the Supreme

Court granted the petition, vacated this Courts mandamus ruling, and remanded

to [this Court] with instructions to dismiss the case as moot, Ex. 30, which this

Court did on October 15, 2010, Ex. 31.

E. Judge Walkers Unlawful Public Disclosure of the TrialRecordings Beyond the Confines of the Courthouse

On February 18, 2011, Judge Walker, having stepped down as Chief at the

end of December 2010, gave his speech at the University of Arizona. See

http://www.c-spanvideo.org/program/Vaugh. A substantial portion of the speech,

in which Judge Walker advocated allowing trial proceedings to be broadcast,


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concerned this case. Seeid., video at 4:40-8:08, 30:49-42:00. At one point, Judge

Walker played for his audience, on a large projection screen, an excerpt from the

trial recording of the cross-examination of one of Proponents expert witnesses.

Seeid., video at 33:12-36:52. Ten days later, on February 28, 2011, Judge Walker

retired from the bench. Ex. 32.

At least four times in late March 2011, C-SPAN broadcast Judge Walkers

Arizona speech, including the playback of the trial proceedings. See http://www.c-

spanvideo.org/program/Vaugh. In fact, Proponents counsel learned of Judge

Walkers 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 Walkers speech available for public viewing on its

website. See http://www.c-spanvideo.org/program/Vaugh.

ARGUMENT

I. THE TRIAL RECORDINGS MAY NOT BE SHOWN BEYOND THE CONFINES OFTHE NORTHERN DISTRICT OF CALIFORNIA COURTHOUSE

The video recordings of the trial in this case may not lawfully be shown

publicly beyond the confines of the Northern District of California courthouse.

The trial recordings remain under seal; then-Chief Judge Walkers unequivocal

assurances that the trial recordings were only for his use in chambers remain on the

record; the Supreme Courts decision in this case if not its stay, which might well

still be in force but for those assurances and the duly enacted rules of the Judicial


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Council and the district court remain binding and plainly bar public dissemination

of the trial recordings beyond the confines of the courthouse; and the considered

judgment of the Judicial Conference of the United States continues to strongly

counsel against public dissemination of the trial recordings.

The trial recordings were not the personal property of Judge Walker, for him

to use as he pleased; he had access to them only by virtue of his role as the judicial

officer presiding in this case. So, when he played a portion of the trial recordings

during his February 18 speech (which was then disseminated nationally by C-

SPAN), he violated all of these prohibitions. As Chief Judge Frank Easterbrook of

the Seventh Circuit Court of Appeals stated recently in a disciplinary proceeding

against a district judge who allowed video recording and live broadcasting of a

civil proceeding: A district court judge who contravenes policies adopted by the

Judicial Conference and the Judicial Council has engaged in conduct prejudicial to

the effective and expeditious administration of the business of the courts. In re

Complaint Against District Judge Joe Billy McDade, No. 07-09-90083 (quoting 28

U.S.C. 351(a)).

The setting for Judge Walkers public dissemination of the trial recordings

a speech outside the performance of his official duties did not exempt him from

any of these prohibitions. Rather, he was obligated to respect and comply with

the law and [to] act at all times in a manner that promotes public confidence in the


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integrity and impartiality of the judiciary. Code of Conduct for United States

Judges, Canon 2A; see also Ninth Circuit Rules of Judicial Conduct art. I, 3(h)(2)

(judge engages in [c]ognizable misconduct if his conduct occurring outside the

performance of official duties might have a prejudicial effect on the

administration of the business of the courts, including a substantial and widespread

lowering of public confidence in the courts among reasonable people); cf. United

States v. Lang, 364 F.3d 1210, 1212, 1221-22 (10th Cir. 2004) (court clerk who

took home copy of sealed affidavit convicted under 18 U.S.C. 2071(a)),

vacated on other grounds, 543 U.S. 1108 (2005), reinstated in relevant part, 405

F.3d 1060, 1061 (10th Cir. 2005).

To ensure that the confidentiality of the trial recordings is not breached

again, as well as to restore public confidence in the judiciary, this Court should

exercise its inherent power to control the record of this case by ordering that

former district judge Walker cease further disclosures of the trial recordings, or any

portion thereof, and that all copies of the trial recordings that are in the possession,

custody, or control of any party to this case or of former judge Walker be returned

promptly to the Court and held by the court clerk under seal.

A. The Recordings of the Trial Proceedings Are Under SealThen-Chief Judge Walker DIRECTED the district court clerk to file the

trial recording under seal as part of the record. Ex. 28 at 4. Since then, the trial


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recordings have remained continuously under seal. See Circuit Advisory Comm.

Note to R. 27-13 (Absent an order to the contrary, any portion of the district court

record that was sealed below shall remain under seal upon transmittal to this

court.). The purpose of the seal is to preserve the confidentiality of the sealed

record. SeeUnited States v. Nixon, 417 U.S. 960, 960-61 (1974).

B. Chief Judge Walker Unequivocally Assured Proponents That theTrial Recordings Would Be for His Exclusive Use in Chambers

Although the Supreme Court had just stayed his broadcast order, then-Chief

Judge Walker insisted on recording the trial proceedings anyway. In doing so over

Proponents objection, Chief Judge Walker assured Proponents on the record that

the recording was not going to be for purposes of public broadcasting or

televising, but rather simply for use in chambers. Ex. 1 at 754:22-23, 755:3-4

(emphasis added). In reliance on Chief Judge Walkers assurances, Proponents

took no further action to prevent him from recording the trial proceedings. One of

Proponents witnesses also relied on those assurances, and now the recording of a

portion of his testimony has been shown by Judge Walker to a large public

audience and, in turn, has been disseminated nationally by C-SPAN.

C. The Supreme Courts Stay, the Judicial Councils Policy, and theDistrict Courts Local Rule Prohibit Showing the TrialRecordings Beyond the Confines of the Courthouse

The Supreme Court ruled that then-Chief Judge Walkers 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 Courts stay

later expired when the Court granted Proponents petition for certiorari and vacated

this Courts ruling denying Proponents earlier mandamus petition. But the

certiorari petition, and thus the Supreme Courts disposition thereof, were

predicated on the fact that the mandamus petition was moot in light of Chief Judge

Walkers 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 Courts stay and would surely have been halted.

The rules and policies enforced by the Supreme Courts 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);seeIn re Complaint Against District Judge Joe Billy McDade,

No. 07-09-90083; In re Sony BMG Music Entmt., 564 F.3d 1, 7-9 (1st Cir. 2009).2

Likewise, the district courts Local Rule 77-3 still prohibit[s] the streaming

2 The Council purported to amend its policy to authorize a pilot programfor broadcasting trial proceedings. Even if that amendment were validly adopted,

but seeHollingsworth, 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 Councils policy would still bar Judge Walkers public

dissemination of the trial recordings beyond the confines of the courthouse because

this case was not part of the pilot program.


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of transmissions, or other broadcasting or televising, [of district court proceedings]

beyond the confines of the courthouse. Hollingsworth, 130 S. Ct. at 711. That

rule[] ha[s] the force of law. Id. at 710 (quotation marks omitted).3

Finally, the policy of the Judicial Conference of the United States, which is

at the very least entitled to respectful consideration, strongly counsels against

public dissemination of the trial recordings beyond the confines of the courthouse.

Id. at 711-12 (quotation marks omitted).4

II. THE COURT SHOULD ORDER THE IMMEDIATE RETURN OF ALL COPIES OFTHE 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 Commcns, Inc., 435 U.S. 589, 598 (1978); Matter of

3To be sure, the district court again purported to amend Local Rule 77-3 in

April or May 2010 to create[] an exception to Rule 77-3s 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 seeid. 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 waswithdrawn long before that amendment was adopted. Ex. 10-11.

4In September 2010, the Conference announced a pilot project to evaluate

the effect of cameras in district court courtrooms, of video recordings of

proceedings therein, and of publication of such video recordings. Ex. 33 at 11.

This pilot project would not have authorized broadcast of the trial proceedings here

because it requires the consent of the [p]arties. Id. at 12.


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Sealed Affidavit(s), 600 F.2d 1256, 1257 (9th Cir. 1979) (courts have inherent

power, as an incident of their constitutional function, to control papers filed with

the courts within certain constitutional and other limitations); see also Circuit R.

27-13(d). The record in this case, which includes the trial recordings, is now

before this Court, having been transmitted by the district court clerk.

As noted earlier, Proponents previously asked then-Chief Judge Walker to

order Appellees to return all copies of the trial recordings. As Proponents

explained then, even with [Chief Judge Walkers] requirement that all copies of

the trial video be maintain[ed] as strictly confidential, the dissemination [of the

trial recordings] beyond the confines of the Court would unduly increase the risk

of public disclosure of the recordings. Ex. 26 at 2. Chief Judge Walker denied

Proponents request, but his subsequent use of the trial recordings during his

Arizona speech proves that Proponents concern was well founded. Neither the

seal, nor Chief Judge Walkers commitment in open court to use the recordings

only in chambers, nor the Supreme Courts decision staying his broadcast order,

nor the policy of the Ninth Circuit Judicial Council, nor the district courts local

rule, nor the policy of the Judicial Conference of the United States prevented him

from publicly showing the trial recordings beyond the confines of the courthouse.

Former judge Walker should therefore be ordered to return to this Court all copies

of the trial recordings and to cease any further use of any portion thereof. See


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United States v. New York Tel. Co., 434 U.S. 159, 174 (1977) (The power

conferred by the [All-Writs] Act extends, under appropriate circumstances, to

persons who, though not parties to the original action or engaged in wrongdoing,

are in a position to frustrate the implementation of a court order or the proper

administration of justice, and encompasses even those who have not taken any

affirmative action to hinder justice.).

And now that the trial is over and the appeal has been briefed and argued to

this Court, there is no legitimate reason for Appellees to continue to have a copy of

the trial recordings. They too, therefore, should be ordered to return them to

eliminate the risk of accidental disclosure.

CONCLUSION

For the foregoing reasons, the Court should order that former judge Walker

cease further disclosures of the trial recordings in this case, or any portion thereof,

and that all copies of the trial recordings in the possession, custody, or control of

any party to this case or former judge Walker be returned promptly to the Court

and held by the court clerk under seal.


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- 21 -

April 13, 2011 Respectfully submitted,

s/ Charles J. Cooper

Charles J. Cooper

Andrew P. Pugno

LAW OFFICES OF ANDREW P.PUGNO

101 Parkshore Drive, Suite 100

Folsom, California 95630

(916) 608-3065; (916) 608-3066 Fax

Brian W. Raum

James A. Campbell

ALLIANCE DEFENSE FUND

15100 North 90th StreetScottsdale, Arizona 85260

(480) 444-0020; (480) 444-0028 Fax

Charles J. Cooper

David H. Thompson

Howard C. Nielson, Jr.

David Lehn

COOPER AND KIRK,PLLC

1523 New Hampshire Ave., N.W.

Washington, D.C. 20036

(202) 220-9600; (202) 220-9601 Fax

Attorneys for Defendant-Intervenors-Appellants Hollingsworth, Knight,

Gutierrez, Jansson, and ProtectMarriage.com


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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 SERVICEWhen 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) .

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:

Signature (use "s/" format)

CERTIFICATE OF SERVICE

When Not All Case Participants are Registered for the Appellate CM/ECF System

9th Circuit Case Number(s)

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

Signature (use "s/" format)

NOTE: To secure your input, you should print the filled-in form to PDF (File > Print > PDF Printer/Creator).

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

Please see attached service list.

10-16696

April 13, 2011

s/Charles J. Cooper


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SERVICE LIST

Arthur N. Bailey, Jr., Esq.

HAUSFELD LLP44 Montgomery Street, Suite 3400

San Francisco, California 94104

Thomas Brejcha

THOMAS MORE SOCIETY

29 S. La Salle Street, Suite 440

Chicago, IL 60603

Anthony R. Picarello, Jr.

Michael F. MosesUNITED STATES CATHOLIC

CONFERENCE

3211 Fourth Street, N.E.

Washington, DC 20017

Lincoln C. Oliphant

COLUMBUS SCHOOL OF LAW

The Catholic University of America

3600 John McCormack Road, NE

Washington, DC 20064

Anita L. Staver

LIBERTY COUNSELP.O. Box 540774

Orlando, FL 32854

Mathew D. Staver

LIBERTY COUNSEL

1055 Maitland Center Commons

2nd Floor

Maitland, FL 32751

Hon. Vaughn Walkerc/o PILLSBURY WINTHROP SHAW

PITTMAN LLP

50 Fremont Street

San Francisco, CA 94105-2228

Hon. Vaughn Walker

c/o BERKELEY LAW

215 Boalt Hall

Berkeley, CA 94720-7200


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EXHIBIT 1


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Volume 4

Pages 670 - 990

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

BEFORE THE HONORABLE VAUGHN R. WALKER

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 )


Registrar-Recorder/County Clerk )

for the County of Los Angeles, )

) San Francisco, California

Defendants. ) Thursday

___________________________________) January 14, 2010

TRANSCRIPT OF PROCEEDINGS

Reported By:Katherine Powell Sullivan, CRR,Katherine Powell Sullivan, CRR,Katherine Powell Sullivan, CRR,Katherine Powell Sullivan, CRR, CSRCSRCSRCSR 5812581258125812Debra L. Pas, CRR, CSR 11916Debra L. Pas, CRR, CSR 11916Debra L. Pas, CRR, CSR 11916Debra L. Pas, CRR, CSR 11916Official ReporterOfficial ReporterOfficial ReporterOfficial Reporterssss - U.S. District Court- U.S. District Court- U.S. District Court- U.S. District Court


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PROCEEDINGS 674

1 P R O C E E D I N G S2 JANUARY 14, 2010 8:42 A.M.

3

4 THE COURT: Very well. Good morning, Counsel.

5 (Counsel greet the Court.)

6 THE COURT: Let's see. First order of business, I

7 have communicated to judge -- Chief Judge Kozinski, in light of

8 the Supreme Court's decision yesterday, that I'm requesting

9 that this case be withdrawn from the Ninth Circuit pilot

10 project. And he indicated that he would approve that request.

11 And so that should take care of the broadcasting matter.

12 And we have motions that have been filed on behalf of

13 Mr. Garlow and Mr. McPherson. And the clerk informs me counsel

14 for those parties are here present.

15 MR. MCCARTHY: Correct, Your Honor.

16 THE COURT: All right. Fine.

17 MR. MCCARTHY: Vincent McCarthy, Your Honor. I was

18 admitted pro hac vice into this court very recently.

19 THE COURT: Yes. I believe I signed that yesterday,

20 or the day before.

21 MR. MCCARTHY: I understand.

22 THE COURT: Well, welcome.

23 MR. MCCARTHY: Thank you.

24 THE COURT: You've got quite a lineup of lawyers

25 here.


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EGAN - CROSS EXAMINATION / PATTERSON 753

1 Q. Okay.

2 MR. PATTERSON: Your Honor, I would like to request a

3 brief break, if I may?

4 THE COURT: How much longer do you have with this

5 witness?

6 MR. PATTERSON: I would say I'm about halfway

7 through, your Honor.

8 THE COURT: Okay. Maybe a break, like your colleague

9 Mr. Thompson, will reduce the length somewhat.

10 MR. PATTERSON: Okay.

11 THE COURT: That I'm sure will be helpful to

12 everybody.

13 All right. Shall we take until 15 minutes of the

14 hour, or 10:45.

15 MR. COOPER: Your Honor, just before we break, may I

16 ask one minor housekeeping matter?

17 THE COURT: Yes.

18 MR. COOPER: Point of clarification, actually, and

19 it's further to your announcement as we opened the court day,

20 that the Court was asking for withdrawal of this case from the

21 pilot program.

22 I just ask the Court for clarification, if I may then

23 understand that the recording of these proceedings has been

24 halted, the tape recording itself?

25 THE COURT: No, that has not been altered.


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1 MR. COOPER: As the Court knows, I'm sure, we have

2 put in a letter to the Court asking that the recording of the

3 proceedings be halted.

4 I do believe that in the light of the stay, that the

5 court's local rule would prohibit continued tape recording of

6 the proceedings.

7 THE COURT: I don't believe so. I read your letter.

8 It does not quote the local rule.

9 The local rule permits remote -- perhaps if we get

10 the local rule --

11 MR. BOUTROUS: Your Honor, I have a copy.

12 THE COURT: Oh, there we go.

13 (Whereupon, document was tendered

14 to the Court.)

15 THE COURT: The local rule permits the recording for

16 purposes the -- of taking the recording for purposes of use in

17 chambers and that is customarily done when we have these remote

18 courtrooms or the overflow courtrooms. And I think it would be

19 quite helpful to me in preparing the findings of fact to have

20 that recording.

21 So that's the purpose for which the recording is

22 going to be made going forward. But it's not going to be for

23 purposes of public broadcasting or televising.

24 And you will notice the local rules states that:

25 "The taking of photographs, public


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1 broadcasting or televising, or recording for

2 those purposes."

3 So the recording is not being made for those

4 purposes, but simply for use in chambers.

5 MR. COOPER: Very well, your Honor, and I appreciate

6 that clarification.

7 THE COURT: All right.

8 (Whereupon there was a recess in the proceedings

9 from 10:32 a.m. until 10:59 a.m.)

10 THE COURT: Very well, Mr. Patterson. Please

11 continue.

12 MR. PATTERSON: Very well, your Honor.

13 BY MR. PATTERSON:

14 Q. Dr. Egan, we were speaking about the revenues you

15 project San Francisco weddings, the out-of-state -- or

16 out-of-San Francisco same-sex couples would generate.

17 And, again, one source of those revenues come from

18 hotel taxes, is that correct?

19 A. Yes, it is.

20 Q. And you have basically -- you have assumed how long the

21 non-San Francisco resident same-sex couples would stay in

22 San Francisco when they got married, is that correct?

23 A. That's correct.

24 Q. And, once again, you have not done any study of how long

25 non-San Francisco resident same-sex couples actually stay in


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EXHIBIT 2


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REPORTOF TBE PROCEEDINGSOF THE JUDICIALCONF'ERENCEOF THE UNITEDSTATESSeptember 17,1996

The Judicial Conference of the United States convened in Washington, D.C.,on September 17, 1996, pursuant to the call of the Chief Justice of the United Statesissued under 28 U.S.C. 9 33 1. The Chief Justice presided, and the following membersof the Conference were present:First Circuit:

Chief Judge Juan R. TormellaChief Judge Joseph L. Tauro,District of MassachusettsSecond Circuit:

Chief Judge Jon 0 .NewmanChief Judge Peter C. Dorsey,District of ConnecticutThird Circuit:

Chief Judge Dolores K. SloviterChief Judge Edward N. Cahn,Eastern District of PennsylvaniaFourth Circuit:

Chief Judge J. Harvie Wilkinson, 111Judge W. Earl Britt,Eastern District of North CarolinaFifth Circuit:

Chief Judge Henry A. PolitzChief Judge William H. Barbour,Southern District of Mississippi


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Judicial Conference of the United States

models discussed in the report, and, where appropriate, adopt more efficient structuresfor the provision of administrative services.

CAMERASIN THE COURTROOMThe Judicial Conference approved a Court Administration and CaseManagement Co mmittee recommendation that it adopt conforming revisions to the"Cameras in the Courtroom" policy and commentary to be printed in Volume I,Chapter 111, Part E of the Guide to Judiciary Policies and Pmcedu~s.These revisionsreflect Judicial Conference actions taken in September 1994 (JCUS-SEP 94, pp. 46-47)and March 1996 (JCUS-MAR 96, p. 17).

After undertaking a review of the miscellaneous fees set by the JudicialConference pursuant to 28 U.S.C. 1913, 1914, 1926, and 1930, the CourtAdministration and Case Management Committee recommended that the JudicialConference raise certain miscellaneous fees to account for inflation and rising courtcosts. Th e Judicial Conference approved the recommendation to raise miscellaneousfees as set forth below, provided that legislation is enacted to p ermit the judiciary toretain the resulting increase in fees:Fee- Current Amount Raised Amount

Power of AttorneyFiling and Indexing Misc. PapersMisdemeanor AppealRegistration of Foreign JudgmentTape DuplicationMicrofilm/MicroficheMailing LabelsRecord SearchCertificationReturned ChecksReproduction of RecordCt. of Fed. C laims Filing F eeCt. of Fed. Claims List of OrdersIOps


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EXHIBIT 3


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JO'DIClALCONlFERENCEOFTHE 1[JNKTEDSTATES WASHINGTON, D.C. 20544

THE CHIEF pJSTICE lAMES C DUFFOF THE UNITED STATES SecrelaryPresiding July 23, 2009

Honorable Patrick J. LeahyChairmanCommittee on the JudiciaryUnited States SenateWashington, DC 20510Honorable JeffSessionsRanking MemberCommittee on the JudiciaryUnited States SenateWashington, DC 20510Dear Mr. Chairman and Senator Sessions:

The Judicial Conference of the United States strongly opposes the "Sunshine in theCourtroom Act of2009," S. 657 (11 ph Cong.), because it provides for the use of camerasin 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 courtroomsecurity ofjudges, witnesses, employees, and U.S. marshals. This is ofparticular concernin light of recent increased threats to federal judges. The Judicial Conference believesthat these and other negative affects of cameras in trial court proceedings far outweighany potential benefit. The Judicial Conference also opposes the legislation because itwould empower any appellate court panel to permit cameras in their courtroom ratherthan retain that power within the management of each circuit.

The Judicial Conference bases its policy and opposition to the use of cameras inthe federal trial court proceedings on decades of experience and study. The Conferenceconsidered the issue in a number ofdifferent situations and contexts including a pilotproject - and concluded that the presence of cameras in federal trial court proceedings isnot in the best interest ofjustice. Federal judges must preserve each citizen's right to afair and impartial trial. Of course, federal trials have long been open to the media andpublic. But it is the studied judgment of the Judicial Conference that cameras can


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Honorable Patrick J. LeahyHonorable Jeff SessionsPage 2interfere with a fair and impartial trial. Thus, the use of cameras in trial courts woulddiffer substantially from the impact of their use in legislative, administrative, orceremonial proceedings.

Cameras can interfere with a fair trial in numerous ways. First, broadcastingproceedings can affect the way trial participants behave. Television cameras can'intimidate litigants, witnesses, andjurors, many ofwhom have no direct connection to theproceeding and are involved in it through no action of their own. Witnesses might refuseto testi1J or alter their stories when they do testi1J if they fear retribution by someone whomay be watching the broadcast.

Second, and similarly, camera coverage can create privacy concerns for manyindividuals involved in the trial, such as witnesses and victims, some ofwhom are onlytangentially related to the case but about whom very personal and identifYing informationmight be revealed. For example, efforts to discredit a witness frequently involve therevelation of embarrassing personal information. Disclosing embarrassing facts oraccusations in a courtroom already creates challenges in court proceedings. Thosechallenges would be multiplied enormously if that information were aired on televisionwith the additional possibility of taping and replication. This concern can have a materialeffect on a witness's testimony or on his or her willingness to testifY at all.

Third. and as a consequence of the aforementioned points, camera coverage couldalso become a potent negotiating tactic in pretrial settlement discussions. Parties maychoose not to exercise their right to trial because of concerns regarding possible cameracoverage. Thus, allowing cameras could cause a "chilling effect" on civil rightslitigation; plaintiffs who have suffered sex or age discrimination may simply decide not tofile suit if they learn that they may have to relive the incident and have that descriptionbroadcast to the public at large. Or, parties litigating over medical issues may not wish toreveal their personal medical history and conditions to a broad audience.

Fourth, the presence ofcameras in a trial court will encourage some participants tobecome more dramatic, to pontificate about their personal views, to promote commercialinterests to a national audience, or to lengthen their appearance on camera. Suchgrandstanding is disruptive to the proceedings and can delay the trial.

The Federal Judiciary is therefore very concerned that the effect of cameras in thecourtroom on participants would be to impact negatively the trial process and therebyinterfere with a fair trial.


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Honorable Patrick J. LeahyHonorable Jeff SessionsPage 3

In addition to affecting the fairness of a trial, the presence ofcameras in a trialcourtroom also increases security and safety issues. Broadcasting the images ofjudgesand court employees, such as court reporters, courtroom deputies, and'law clerks, makesthem more easily identified as targets by those who would attempt to influence the .outcome of the matter or exact retribution for an unpopular court ruling. Threats againstjudges, lawyers, and other participants could increase even beyond the current disturbinglevel. Cameras create similar security concerns for law enforcement personnel present in

, the courtroom, including U.S. marshals and U.S. attorneys and their staffs.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 policyensures consistency within each circuit. The Sunshine in the Courtroom Act of 2009would allow panels within the circuits to determine whether cameras will be allowed attheir proceedings, rather than leaving the initial decision to the circuit's management.This will result in differing treatment of litigants within each circuit. Currently, thecircuit-wide policies avoid piecemeal and ad hoc resolutions of the issue among thevarious panels convened within a court of appeals, and that approach is therefore betterthan 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 andpermits individual panels to use of cameras in all courts of appeals instead of deferring toeach circuit's rules on such use.

Thank you for the opportunity to provide the position of the Judicial Conferenceon this legislation. The legislation raises issues of vital importance to the Judiciary. Ifwemay be of additional assistance to you, please do not hesitate to contact our Office ofLegislative Affairs at 202-502-1700.

Sincerely,

( j ~ t V James C. DuffSecretary

cc: Members, Senate Judiciary Committee


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IfREpORT OF THE PROCEEDINGSOF THE JUDICIAL CONFERENCEOF THE UNITED STATESMarch 12, 1996

The Judicial Conference of the United States convened in Washington, D.C.,on March 12, 1996, pursuant to the call of the Chief Justice of the United States issuedunder 28 U.S.C. 331. The Chief Justice presided, and the following members of theConference were present:

First Circuit:Chief Judge Juan R. Torruella Chief Judge Joseph L. Tauro,

District of Massachusetts Second Circuit:

Chief Judge Jon O. Newman Chief Judge Peter C. Dorsey, District of Connecticut

Third Circuit:Chief Judge Dolores K. SloviterChief Judge Edward N. Cahn,Eastern District of Pennsylvania

Fourth Circuit:Chief Judge 1. Harvie Wilkinson, IIIJudge W. Earl Britt,Eastern District of North Carolina

Fifth Circuit:Chief Judge Henry A. PolitzChief Judge William H. Barbour,

Southern District of Mississippi


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March 12, 1996

of

it

(b)

CAMERAS IN THE COURTROOM

The Judicial Conference agreed to authorize each court of appeals to decide foritself whether to permit the taking of photographs and radio and television coverage ofappellate arguments, subject to any restrictions in statutes, national and local rules, andsuch guidelines as the Judicial Conference may adopt. The Conference further agreedto-

a. Strongly urge each circuit judicial council to adopt an order reflecting theJudicial Conference's decision to authorize the taking of photographs and radioand television coverage of court proceedings in the United States courts ofappeals; andb. Strongly urge each circuit judicial council to adopt an order pursuant to28 U.S.C. 332 (d)(l), reflecting the September 1994 decision of the JudicialConference (JCUS-SEP 94, pp. 46-47) not to permit the taking of photographsand radio and television coverage of court proceedings in the United Statesdistrict courts. In addition, the Judicial Conference agreed to strongly urge thejudicial councils to abrogate any local rules of court that conflict with thisdecision, pursuant to 28 U.S.C. 2071{cXI).

COMMITIEE ON CRIMINAL LAW

UNIVERSAL PRETRIAL DRUG TESTINGIn December 1995, President Clinton directed the Attorney General to developa "... universal policy providing for drug testing of all federal arresteesoefore decisionsare made on whether to release them into the community pending triaL" In February

1996, the Attorney General submitted a pretrial drug testing proposal to the ExecutiveCommittee, which referred the matter to the Committee on Criminal Law forrecommendation to the March Judicial Conference. Reporting on the proposal to theConference, the Criminal Law Committee recommended that the issue be referred backto that Committee. The Judicial Conference voted to refer the Attorney General'sproposal regarding universal pretrial drug testing to the Criminal Law Committee forexpeditious consideration and report to the Executive Committee, which is authorizedto act on the matter on behalf of the Conference.

17


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EXHIBIT 4


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September20,1994

The Judicial Conference of the United States convened inWashington, D.C., on September 20,1994, pursuant to the call of the ChiefJustice of the United States issued under 28 U.S.C. 331. The Chief Justicepresided, and the following members of the Conferencewere present:

First Circuit:Chief Judge Juan R. TorruellaJudge Francis J. Boyle,District of Rhode Island

Second Circuit:Chief Judge Jon 0.NewmanJudge Charles L. Brieant,

Southern District of New YorkThird Circuit:

Chief Judge Dolores K. SloviterChief Judge John E Gerry,District of New JerseyFourth Circuit:

Chief Judge Sam J. Ervin, IIIJudge W Earl Britt,Eastern District of North CarolinaFifth Circuit:

Chief Judge Henry A. PolitzChief Judge Morey L. Sear,Eastern District of Louisiana


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Judicial Cknferenceof the United StcJ.88

The Committee on Codes of Conduct reported that since its lastreport to the Judicial Conference, it received 47 new written inquiries(including one request for reconsideration) and issued 40 written advisoryresponses. The average response time was 21 days. The Chairman receivedand responded to 48 telephonic inquiries. In addition, individual Committeemembers responded to 72 inquiries from their colleagues.

The Judicial Conference approved the recommendations of theCommittee to revise the Ethics Reform Act gift regulations. The principalsubstantive changes include the following: (1) definition of th e term "giftHina new section 3; (2) incorporation in a new section 4 of the existing statutoryprohibition on solicitation of gifts; (3) clarification of the reach of sections4(b) and 5(b) (formerly 3(c) and 3(a)(2)); (4) authorization in a new section5(h) of the acceptance of de minimis gifts by persons other than judges andtheir personal staffs; (5) revision of section 6 (formerly 3(b)) prohibiting theacceptance of gifts in violation of other statutes and regulations, or wherereasonable persons would believe that the public office is being used forprivate gain; and (6) description in a new section 9 of procedures for thereturn or disposal of gifts that may not properly be accepted.Upon recommendation of the Committee, the Judicial Conferenceapproved revisions to the Ethics Reform Act outside employment regulations,to incorporate useful provisions from the Executive Branch regulations andto make technical amendments designed to clarify the application of theregulations.

COMMITTEEON COURTADMINISTRATIONAND CASEMANAGEMENT

The Judicial Conference considered a report and recommendation ofthe Court Administration and Case Management Committee to authorize the


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photographing, recording, and broadcasting of civil proceedings in federaltrial and appellate courts. The Committee's report included an evaluationconducted by the Federal Judicial Center of a three-year pilot project in sixdistrict and two appellate courts, aswell as an analysis of studies conductedin state courts. Based upon the data presented, a majority of the Conferenceconcluded that the intimidating effect of cameras on some witnesses andjurors was cause for concern, and the Conference declined to approve theCommittee's recommendation to expand camera coverage in civil proceedings.In light of this action, additional Committee recommendations relating tocameras in the courtroom in civil cases were determined to be moot. Noaction was taken with regard to the ongoing pilot program, which isscheduled to sunset on December 31,1994 (see JCUS-MAR 94, p. 15). Seealso "Criminal Rules," infra p. 67.

MISCELLANEOUS FEE SCHEDULESIn September 1993, the Judicial Conference approved an amendmentto the miscellaneous fee schedule promulgated under 28 U.S.C. 1913 toprovide a fee for electronic access to court data for the appellate courts, butreserved for future consideration the issue of whether to extend the fee toelectronic access to slip opinions (JCUS-SEP 93, pp. 44-45). The CourtAdministration and Case Management Committee recommended that theJudicial Conference authorize collection of a fee for electronic access to slipopinions by amending the fee schedule to delete the sentence, "No such fee

shall be charged for usage of ACES/EDOS." The Judicial Conferenceapproved the amendment, which makes no change in the provision allowingcourts to exempt, for good cause, persons or classes of persons from the fees.In March 1993, the Judicial Conference eliminated the traditionalfederal agencies' exemption from court fees for electronic access to court dataand, in limited circumstances, for reproducing court records and conductingsearches of court records (JCUS-MAR 93, p. 11). Federal agencies fundedfrom judiciary appropriations continue to be exempted from fees. Onrecommendation of the Committee on Court Administration and CaseManagement, the Conferenceagreed to a technical amendment of themiscellaneous fee schedules promulgated under 28 U.S.C. O 1913, 1914,1926, and 1930, to clarifj. that government programs funded from the federaljudiciary's appropriations, as well as government agencies so funded, wereexempt from fees. The amendment reads as follows (new language is initalics):


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EXHIBIT 5


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PROCTER HUG, JR.Chin! JudgeUnlladSlales bbud ol AppBab

3niieb Bfa f r~0Inut-f of AppenkiBur mile Hlntf~Uirnrif50 W LIBERTY STRE-, SUITE BOO

RENO.Nf VADA 89901s

June 21, 1996

9 8

To: A11 Article Judges . ,From: Chief Judge R ugRe: Judicial Coundl Policy.Regarding the Use of Camerasin the Courtroom

On May 24, 1996,theJudicial Council of the Ninth Circuitvoted to adopt thepolicy of the Judicial Conference of the United States regarding the use of cameras in thecourts. Pursuant to 28 U S C. 5 2071(c)(l), lh ia poUby is now binding on al l courtswithin theNinthCir~uft.The policy states:

I. Each court of appeds may dacidalocally whethe! or not topermit Garneras in the appellate courtrooms, subject to anyrestriot!ons in etatutes, national and loml rule^, and suchguidelines as the Judicial Conferencemay adopt. +2. The taking cf and radio and television coverage of

wurt prooedings in the Unlted States district courts isprohibitcd-


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EXHIBIT 6


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Civil Local Rules

CIV 92Published December 2009

(f) Orders taxing costs pursuant to Civil L.R. 54-4.

Cross Reference

See ADR L.R. 4-11(d) Nonbinding Arbitration; Entry of Judgmen t on

Award.

77-3. Photography and Public Broadcasting.

Unless allowed by a Judge or a Magistrate Judge with respect to his or her

own chambers or assigned courtroom for ceremonial purposes, 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 ruleis intended to restrict the use of electronic means to receive or present evidence

during Court proceedings.

77-4. Official Notices.

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.

(b) Internet Site. The Internet site, located at http://www.cand.uscourts.gov,

is designated as the districts official Internet site and may be used for the posting of

official notices.

(c) Newspapers. The following newspapers are designated as official

newspapers of the Court for the posting of official notices:

(1) The Recorder; or

(2) The San Francisco Daily Journal; or

(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

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http://www.cand.uscourts.gov/http://www.cand.uscourts.gov/

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EXHIBIT 7


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Volume 1

Pages 1 - 213




KRISTIN M. PERRY, )



)

Plaintiffs, )

)

VS. ) NO. C 09-2292-VRW

)





















Defendants. ) Monday

___________________________________) January 11, 2010




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PROCEEDINGS 14

1 The briefs that you filed in the Court of Appeals and

2 in the Supreme Court deal with those issues. And that's true

3 of both sides.

4 Certainly, the concerns that the proponents have

5 raised here are concerns that should be considered, need to be

6 considered, and in due course should be given thorough

7 consideration.

8 But I think, in this day and age, with the technology

9 that's available and the importance of the public's right to

10 access judicial proceedings, it's very important that we in the

11 federal judiciary work to achieve that access consistent with

12 the means that are presently available to do that.

13 And I would commend you for the efforts that you've

14 made in bringing these issues forward, and I'm hopeful that

15 this experience will have brought these issues to the fore.

16 And maybe, finally, after some 20 years we will get some

17 sensible movement forward.

18 Now, Mr. Boutrous.

19 MR. BOUTROUS: Thank you, Your Honor.

20 Could I address one issue? Since the stay is

21 temporary and the Supreme Court is going to be considering

22 these issues, and given the importance of the issues in this

23 case, we would request that the Court permit recording and

24 preservation of the proceedings today and through Wednesday.

25 I've heard -- having heard Mr. Cooper argue on many


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PROCEEDINGS 15

1 occasions, I can't imagine why he wouldn't want his opening

2 statement preserved for the record.

3 (Laughter)

4 So the public can hear what he has to say. And same

5 goes for Mr. Olson.

6 And given the fact that this is a temporary stay, and

7 the stay order does not mention anything about restricting the

8 ability of the court to capture the images on the cameras and

9 preserve them in the event the stay is lifted and Judge

10 Kozinski issues his order, we think that would be a good

11 solution so then the materials could be posted when those --

12 those things happen.

13 THE COURT: Well, that's very much of a possibility

14 as presently matters stand.

15 The only transmission of these proceedings is to the

16 overflow courtroom in this courthouse. Any transmission beyond

17 that is not permitted, pending some further order of the

18 Supreme Court or the Court of Appeals, and, indeed, Chief Judge

19 Kozinski, who would be directing the pilot project.

20 I think your request is a fair one. But in the event

21 that there is no recording permitted after the issue is finally

22 settled, if a recording is made, some disposition of that

23 recording would have to be dealt with. And perhaps this is a

24 matter that we can deal with after we learn what the rule is

25 going to be in this case.


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PROCEEDINGS 16

1 I would prefer to defer it until then.

2 MR. BOUTROUS: That's what I would propose, Your

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.

6 THE COURT: Very well.

7 MR. BOUTROUS: Thank you, Your Honor.

8 THE COURT: Mr. Cooper.

9 MR. COOPER: Your Honor, I very much appreciate

10 Mr. Boutrous's desire to ensure that my words are memorialized.

11 (Laughter)

12 But I do object to his proposal. I don't believe

13 that it's in keeping with -- although, at least as I read the

14 Court's order, and I only had a moment to do so, I don't

15 believe it specifically addresses this issue. But I don't

16 think it's consistent with the spirit of that order.

17 So I just want to make clear our objection to that

18 proposal. Thank you.

19 THE COURT: Very well. Your objection is noted.

20 Well, we have opening statements to make. And are

21 there any preliminary matters that we should address before we

22 turn to the opening statements? For the plaintiffs, for the

23 defendants, for the intervenors.

24 MR. OLSON: We have none. We are ready to proceed

25 when Your Honor is ready.


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EXHIBIT 8


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Volume 3

Pages 458 - 669




KRISTIN M. PERRY, )



)

Plaintiffs, )

)

VS. ) NO. C 09-2292-VRW

)





















Defendants. ) Wednesday

___________________________________) January 13, 2010




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PEPLAU - REDIRECT EXAMINATION / DUSSEAULT 662

1 A. No.

2 Q. Lastly, Ms. Moss asked you some questions about

3 Massachusetts and the need for some more data.

4 Do you feel that you need more data from

5 Massachusetts to form an opinion as to whether allowing

6 same-sex couples to marry would either lead heterosexual

7 couples not to marry or to exit their marriage?

8 A. I don't, because my opinion is based on so much more than

9 simply the Massachusetts data.

10 Q. Thank you very much. I have no further questions, Dr.

11 Peplau.

12 THE COURT: Very well. Ms. Peplau, you may step

13 down. Thank you for your testimony.

14 A. Thank you, your Honor.

15 (Witness excused.)

16 THE COURT: And we are, I think, ready to adjourn for

17 today. We will recommence at 8:30 in the morning.

18 As you may know, the Supreme Court has given us some

19 guidance with respect to part of the issue. It seems to be a

20 rather limited guidance at the moment.

21 So we may have issues beyond remote access to these

22 proceedings by other courthouses that we'll have to take up at

23 some point.

24 My inclination, without hearing from counsel and

25 getting their advice, is that we put that issue to the side for

Case: 10-16696 04/13/2011 Page: 31 of 114 ID: 7715321 DktEntry: 33

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