CA9Doc 348

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FILED
UNITED STATES COURT OF APPEALS APR 27 2011
MOLLY C. DWYER, CLERK

FOR THE NINTH CIRCUIT U .S. C O U R T OF APPE ALS
KRISTIN M. PERRY; et al., No. 10-16696
Plaintiffs - Appellees, D.C. No. 3:09-cv-02292-VRW

Northern District of California,
CITY AND COUNTY OF SAN San Francisco
FRANCISCO,
Intervenor-Plaintiff - ORDER
Appellee,
v.
EDMUND G. BROWN, Jr., in his official

capacity as Governor of California; et al.,
Defendants,
and
DENNIS HOLLINGSWORTH; et al.,
Intervenor-Defendants -
Appellants.
Before: REINHARDT, HAWKINS, and N.R. SMITH, Circuit Judges.
Appellants have moved this court to order the Plaintiffs and former District
Judge Vaughn Walker to return copies of the video recordings of the trial
proceedings in this case. Plaintiffs oppose the motion and have moved to unseal
the video recordings.

We construe Appellants’ motion as a motion to enforce, against Plaintiffs
and Judge Walker, the protective order entered by the district court, see Doc. No.
425 (at ¶ 7.3) & Doc. No. 672, Perry v. Schwarzengger, No. 3:09-cv-02292 (N.D.
Cal.), and Plaintiffs’ cross-motion as a motion to lift that order. Although
jurisdiction over the merits of the decision below, including the judgment, has
passed to this court, the district court has not been divested of its jurisdiction over
ancillary matters, such as protective orders. Cf. Griggs v. Provident Consumer
Discount Co., 459 U.S. 56, 58 (1982) (per curiam) (“The filing of a notice of
appeal is an event of jurisdictional significance – it confers jurisdiction on the court
of appeals and divests the district court of its control over those aspects of the case
involved in the appeal.”) (emphasis added); see, e.g., Campbell v. Blodgett, 982
F.2d 1356, 1357 (9th Cir. 1993) (district court retains jurisdiction to issue
discovery order); Masalosalo v. Stonewall Ins. Co., 718 F.2d 955, 957 (9th Cir.
1983) (district court retains jurisdiction to consider motion for attorney’s fees).
Because the district court issued the protective order and has the power to
grant the parties all the relief they seek, should relief be warranted, we direct the
Clerk to TRANSFER Appellants’ motion (Doc. No. 338), Plaintiffs’ opposition
and cross-motion (Doc. No. 340), Appellants’ reply and opposition (Doc. No. 346),
Plaintiffs’ reply (Doc. No. 347), Judge Walker’s letter (Doc. No. 339), and Media
2
Coalition’s motion to intervene (Doc. No. 343) and joinder in Plaintiffs’ motion to
unseal (Doc. No. 345), to the U.S. District Court for the Northern District of
California, Case No. 3:09-cv-02292-JW.
IT IS SO ORDERED.
3
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NO. 10-16696
ARGUED DECEMBER 6, 2010

(CIRCUIT JUDGES STEPHEN REINHARDT, MICHAEL HAWKINS, & N.R. SMITH)
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KRISTIN PERRY, et al.,
Plaintiffs-Appellees,
v.
EDMUND G. BROWN, Jr., et al.,
Defendants,
and
DENNIS HOLLINGSWORTH, et al.,
Defendant-Intervenors-Appellants.
On Appeal from United States District Court for the Northern District of California
Civil Case No. 09-CV-2292 JW (Honorable James Ware)
APPELLANTS’ MOTION FOR ORDER COMPELLING RETURN OF

TRIAL RECORDINGS
Andrew P. Pugno Charles J. Cooper

LAW OFFICES OF ANDREW P. PUGNO David H. Thompson
101 Parkshore Drive, Suite 100 Howard C. Nielson, Jr.
Folsom, California 95630 COOPER AND KIRK, PLLC
(916) 608-3065; (916) 608-3066 Fax 1523 New Hampshire Ave., N.W.
Washington, D.C. 20036
Brian W. Raum (202) 220-9600; (202) 220-9601 Fax
James A. Campbell
ALLIANCE DEFENSE FUND
15100 North 90th Street
Scottsdale, Arizona 85260
(480) 444-0020; (480) 444-0028 Fax
Attorneys for Defendant-Intervenors-Appellants Hollingsworth, Knight, Gutierrez,
Jansson, and ProtectMarriage.com
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TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ....................................................................................iv
INTRODUCTION .....................................................................................................1
STATEMENT ............................................................................................................3
A. Policies and Rules Governing Broadcast of Trial Proceedings ............3
B. The District Court’s Efforts to Broadcast the Trial

Proceedings ...........................................................................................5
C. The Supreme Court’s Decision Prohibiting Broadcast .........................6
D. Chief Judge Walker’s Creation of the Trial Recordings.......................7
E. Judge Walker’s 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 CONFINES

OF THE NORTHERN DISTRICT OF CALIFORNIA COURTHOUSE ..........................13
A. The Recordings of the Trial Proceedings Are Under Seal..................15
B. Chief Judge Walker Unequivocally Assured Proponents

That the Trial Recordings Would Be for His Exclusive Use
in Chambers.........................................................................................16
C. The Supreme Court’s Stay, the Judicial Council’s Policy, and

the District Court’s Local Rule Prohibit Showing the Trial
Recordings Beyond the Confines of the Courthouse ..........................16
II. THE COURT SHOULD ORDER THE IMMEDIATE RETURN OF ALL COPIES
OF 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 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-Intervenor’s 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 and

Future Vacancy Table” (Mar. 17, 2011)

iii
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TABLE OF AUTHORITIES
Cases Page
Hollingsworth v. Perry,
130 S. Ct. 705 (2010)...............................................................2, 4-7, 9, 11, 17-18
130 S. Ct. 1132 (2010)..........................................................................................6
In re Charge of Judicial Misconduct,
91 F.3d 90 (9th Cir. Judicial Council 1996) .........................................................3
In re Complaint Against District Judge Joe Billy McDade,
No. 07-09-90083 (7th Cir. Sept. 28, 2009)...............................................2, 14, 17
In re Sony BMG Music Entm’t.,
564 F.3d 1 (1st Cir. 2009)...................................................................................17
Matter of Sealed Affidavit(s),
600 F.2d 1256 (9th Cir. 1979) ............................................................................18
Nixon v. Warner Commc’ns, Inc.,
435 U.S. 589 (1978)............................................................................................18
United States v. Lang,
364 F.3d 1210 (10th Cir. 2004) ..........................................................................15
United States v. New York Tel. Co.,
434 U.S. 159 (1977)............................................................................................20
United States v. Nixon,
417 U.S. 960 (1974)............................................................................................16
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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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-SPAN’s 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 court’s Local Rule 77-
1
Counsel for both Appellees oppose this motion. As indicated in the
Certificate of Service, a copy of this motion has been served upon former judge
Walker.
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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 Court’s prior decision in this case ruling that an earlier attempt by then-
Chief Judge Walker to publicly broadcast the trial proceedings “complied neither
with existing rules or policies nor the required procedures for amending them.”
Hollingsworth v. Perry, 130 S. Ct. 705, 713 (2010). Thus, Judge Walker
“‘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
Walker’s use of the trial recording repudiated his own solemn commitment to
Proponents in open court that, despite Proponents’ objection, the trial was being
video recorded “simply for [his] use in chambers,” because it “would be quite
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.
What’s done is done. Judge Walker’s speech, and C-SPAN’s 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 Court’s Judicial
Council, and then-Chief Judge Walker’s assurances in open court, the purpose for
which they were provided has now been fulfilled, and Appellees’ continued
possession of the recordings can no longer be justified.
STATEMENT
A. Policies and Rules Governing Broadcast of Trial Proceedings

“In 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, see Hollingsworth, 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 Council’s policy thus provided: “The taking of photographs
and radio and television coverage of court proceedings in the United States district
courts is prohibited.” Id. “[T]his policy [was] … binding on all courts within the
Ninth Circuit.” Id. Accordingly, the Northern District of California adopted Local
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 also id. at 707 (Local Rule 77-3 “forbid[s]
the broadcasting of trials outside the courthouse in which a trial takes place”); Ex.
6.
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B. The District Court’s Efforts to Broadcast the Trial Proceedings

Former 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 Court’s 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 Court’s 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 Conference’s 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 Court’s Decision Prohibiting Broadcast

On 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 Walker’s] 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 Court’s 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 Walker’s Creation of the Trial Recordings

During the trial proceedings later on January 13, Chief Judge Walker noted
that the Supreme Court’s “guidance” with respect to the issue of broadcasting the
proceedings was “rather limited.” Ex. 8 at 662:18-20. Early the next day,
Proponents filed a letter with the district court “request[ing] that [Chief Judge
Walker] halt any further recording of the proceedings in this case, and delete any
recordings of the proceedings to date that have previously been made.” Ex. 9 at 1.
Proponents explained that, because of the Supreme Court’s ruling on their stay
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 day’s proceedings by
reporting that, “in light of the Supreme Court’s decision yesterday, … [he was]
requesting that this case be withdrawn from the Ninth Circuit pilot project.” Ex. 1
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at 674:7-10. Proponents then asked “for clarification … that the recording of these
proceedings has been halted, the tape recording itself.” Id. at 753:22-24. When
Chief Judge Walker responded that the recording “ha[d] not been altered,”
Proponents reiterated their contention (made in their letter submitted earlier that
morning) that, “in light of the stay, … the court’s local rule … prohibit[s]
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 “that’s the purpose for which the recording is going to be made going forward.
But it’s not going to be for purposes of public broadcasting or televising.” Id. at
754:21-23 (emphasis added). Chief Judge Walker then repeated his position that
he was making the recordings only for limited, private use: after noting that “the
[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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Walker’s 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 Walker’s request and “rescinded” his
January 8 order designating this case for the pilot program. Ex. 11.
The district court then withdrew the amendment to Local Rule 77-3
authorizing participation in the pilot program. See Ex. 12 (showing Local Rule 77-
3 without amendment). Despite the Supreme Court’s criticism that the amendment
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 Coalition’s 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 Coalition’s
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 Walker’s] 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 Walker’s 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 Court’s 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 Walker’s
withdrawal of his stayed broadcast order and his “unequivocal[] assur[ances] that
[his] continued recording of the trial proceedings was not for the purpose of public
dissemination, but rather solely for [his] use in chambers,” this Court’s order
denying the mandamus petition should be vacated as moot. Ex. 29 at 11-13.
Appellees opposed vacatur of this Court’s order. On October 4, 2010, the Supreme
Court granted the petition, vacated this Court’s mandamus ruling, and “remanded
to [this Court] with instructions to dismiss the case as moot,” Ex. 30, which this
Court did on October 15, 2010, Ex. 31.
E. Judge Walker’s Unlawful Public Disclosure of the Trial

Recordings 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. See id., video at 4:40-8:08, 30:49-42:00. At one point, Judge
Walker played for his audience, on a large projection screen, an excerpt from the
trial recording of the cross-examination of one of Proponents’ expert witnesses.
See id., 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 Walker’s
Arizona speech, including the playback of the trial proceedings. See http://www.c-
spanvideo.org/program/Vaugh. In fact, Proponents’ counsel learned of Judge
Walker’s speech – and of the fact that he publicly showed a portion of the trial
recordings during the speech – as a result of one of those broadcasts. C-SPAN also
made its broadcast of Judge Walker’s speech available for public viewing on its
website. See http://www.c-spanvideo.org/program/Vaugh.
ARGUMENT
I. THE TRIAL RECORDINGS MAY NOT BE SHOWN BEYOND THE CONFINES OF

THE 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 Walker’s unequivocal
assurances that the trial recordings were only for his use in chambers remain on the
record; the Supreme Court’s decision in this case – if not its stay, which might well
still be in force but for those assurances – and the duly enacted rules of the Judicial
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Council and the district court remain binding and plainly bar public dissemination
of the trial recordings beyond the confines of the courthouse; and the considered
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 Walker’s public dissemination of the trial recordings –
a speech outside the performance of his official duties – did not exempt him from
any of these prohibitions. Rather, he was obligated to “respect and comply with
the law and [to] act at all times in a manner that promotes public confidence in the
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integrity and impartiality of the judiciary.” Code of Conduct for United States
Judges, Canon 2A; see also Ninth Circuit Rules of Judicial Conduct art. I, § 3(h)(2)
(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 Seal

Then-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. See United States v. Nixon, 417 U.S. 960, 960-61 (1974).
B. Chief Judge Walker Unequivocally Assured Proponents That the

Trial 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 Walker’s 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 Court’s Stay, the Judicial Council’s Policy, and the
District Court’s Local Rule Prohibit Showing the Trial
Recordings Beyond the Confines of the Courthouse
The Supreme Court ruled that then-Chief Judge Walker’s order authorizing
“the broadcast of [this] federal trial” did not comply with “existing rules or
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policies.” Hollingsworth, 130 S. Ct. at 706, 713. True, the Supreme Court’s stay
later expired when the Court granted Proponents’ petition for certiorari and vacated
this Court’s ruling denying Proponents’ earlier mandamus petition. But the
certiorari petition, and thus the Supreme Court’s disposition thereof, were
predicated on the fact that the mandamus petition was moot in light of Chief Judge
Walker’s unequivocal assurances that the trial recordings were solely for his use in
chambers. But for those assurances, the recording of the trial would plainly have
violated the Supreme Court’s stay and would surely have been halted.
The “rules” and “policies” enforced by the Supreme Court’s stay were those
governing the issue in this Circuit and the district court. The long-standing policy
of the Ninth Circuit Judicial Council still prohibits the “taking of photographs and
radio and television coverage of court proceedings in the United States district
courts.” Ex. 5. This policy is binding on all judges within the Ninth Circuit. 28
U.S.C. § 332(d)(2); see In re Complaint Against District Judge Joe Billy McDade,
No. 07-09-90083; In re Sony BMG Music Entm’t., 564 F.3d 1, 7-9 (1st Cir. 2009).2
Likewise, the district court’s Local Rule 77-3 still “prohibit[s] the streaming
2
The Council purported to “amend” its policy to authorize a pilot program
for broadcasting trial proceedings. Even if that amendment were validly adopted,
but see Hollingsworth, 130 S. Ct. at 708, 713-14 (noting lack of statutorily required
“notice and comment procedures” and lack of “considered standards or guidelines
… for broadcasting”), the Council’s policy would still bar Judge Walker’s public
dissemination of the trial recordings beyond the confines of the courthouse because
this case was not part of the pilot program.
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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 OF
THE TRIAL RECORDINGS
This Court “has supervisory power over its own records and files, and access
[may be] denied where court files might have become a vehicle for improper
purposes.” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978); Matter of
3
To be sure, the district court again purported to amend Local Rule 77-3 in
April or May 2010 to “create[] an … exception to Rule 77-3’s general ban on the
broadcasting of court proceedings ‘for participation in a pilot or other project
authorized by the Judicial Council of the Ninth Circuit.’” Hollingsworth, 130 S.
Ct. at 711. But even if the amendment were valid, but see id. at 708, 713-14
(noting lack of “considered standards or guidelines … for broadcasting”), the rule
would still bar public dissemination of these trial recordings beyond the confines
of the courthouse because this case was not, and could not have been, designated
for inclusion in the pilot program after the renewed amendment to Local Rule 77-3
was adopted. The only order designating the case for a pilot program was
withdrawn long before that amendment was adopted. Ex. 10-11.
4
In September 2010, the Conference announced a “pilot project to evaluate
the effect of cameras in district court courtrooms, of video recordings of
proceedings therein, and of publication of such video recordings.” Ex. 33 at 11.
This pilot project would not have authorized broadcast of the trial proceedings here
because it requires the “consent” of the “[p]arties.” Id. at 12.
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Sealed Affidavit(s), 600 F.2d 1256, 1257 (9th Cir. 1979) (“courts have inherent
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 Walker’s] requirement that all copies of
the trial video be ‘maintain[ed] as strictly confidential,’” the “dissemination [of the
trial recordings] beyond the confines of the Court” would unduly increase the risk
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 Walker’s commitment in open court to use the recordings
only in chambers, nor the Supreme Court’s decision staying his broadcast order,
nor the policy of the Ninth Circuit Judicial Council, nor the district court’s local
rule, nor the policy of the Judicial Conference of the United States prevented him
from publicly showing the trial recordings beyond the confines of the courthouse.
Former judge Walker should therefore be ordered to return to this Court all copies
of the trial recordings and to cease any further use of any portion thereof. See
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United States v. New York Tel. Co., 434 U.S. 159, 174 (1977) (“The power
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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April 13, 2011 Respectfully submitted,
s/ Charles J. Cooper
Charles J. Cooper

Folsom, California 95630 David Lehn
(916) 608-3065; (916) 608-3066 Fax COOPER AND KIRK, PLLC
1523 New Hampshire Ave., N.W.
Brian W. Raum Washington, D.C. 20036
James A. Campbell (202) 220-9600; (202) 220-9601 Fax
(480) 444-0020; (480) 444-0028 Fax
Attorneys for Defendant-Intervenors-Appellants Hollingsworth, Knight,
Gutierrez, Jansson, and ProtectMarriage.com
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9th Circuit Case Number(s) 10-16696
NOTE: To secure your input, you should print the filled-in form to PDF (File > Print > PDF Printer/Creator).
*********************************************************************************
CERTIFICATE OF SERVICE
When All Case Participants are Registered for the Appellate CM/ECF System
I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the
United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system
on (date) .
I certify that all participants in the case are registered CM/ECF users and that service will be
accomplished by the appellate CM/ECF system.
Signature (use "s/" format)
*********************************************************************************
When Not All Case Participants are Registered for the Appellate CM/ECF System
on (date) .
April 13, 2011
Participants in the case who are registered CM/ECF users will be served by the appellate
CM/ECF system.
I further certify that some of the participants in the case are not registered CM/ECF users. I
have mailed the foregoing document by First-Class Mail, postage prepaid, or have dispatched it
to a third party commercial carrier for delivery within 3 calendar days to the following
non-CM/ECF participants:
Please see attached service list.
Signature (use "s/" format) s/Charles J. Cooper

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SERVICE LIST
Arthur N. Bailey, Jr., Esq. Anita L. Staver

HAUSFELD LLP LIBERTY COUNSEL
44 Montgomery Street, Suite 3400 P.O. Box 540774
San Francisco, California 94104 Orlando, FL 32854
Thomas Brejcha Mathew D. Staver

THOMAS MORE SOCIETY LIBERTY COUNSEL
29 S. La Salle Street, Suite 440 1055 Maitland Center Commons
Chicago, IL 60603 2nd Floor
Maitland, FL 32751
Anthony R. Picarello, Jr.
Michael F. Moses Hon. Vaughn Walker
UNITED STATES CATHOLIC c/o PILLSBURY WINTHROP SHAW
CONFERENCE PITTMAN LLP
3211 Fourth Street, N.E. 50 Fremont Street
Washington, DC 20017 San Francisco, CA 94105-2228
Lincoln C. Oliphant Hon. Vaughn Walker

COLUMBUS SCHOOL OF LAW c/o BERKELEY LAW
The Catholic University of America 215 Boalt Hall
3600 John McCormack Road, NE Berkeley, CA 94720-7200
Washington, DC 20064
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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 )
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, CSR 5812

Debra L. Pas, CRR, CSR 11916
Official Reporters
Reporters - U.S. District Court
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1 P R O C E E D I N G S
2 JANUARY 14, 2010 8:42 A.M.
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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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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PATTERSON 338-2754
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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PATTERSON 338-2755
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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REPORT OF TBE PROCEEDINGS

OF THE JUDICIAL
C
ON
E
FR
'E
NC
E
OF THE UNITEDSTATES
September 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 States
issued under 28 U.S.C. 9 33 1. The Chief Justice presided, and the following members
of the Conference were present:
First Circuit:
Chief Judge Juan R. Tormella

Chief Judge Joseph L. Tauro,
District of Massachusetts
Second Circuit:
Chief Judge Jon 0. Newman

Chief Judge Peter C. Dorsey,
District of Connecticut
Third Circuit:
Chief Judge Dolores K. Sloviter

Chief Judge Edward N. Cahn,
Eastern District of Pennsylvania
Fourth Circuit:
Chief Judge J. Harvie Wilkinson, 111

Judge W. Earl Britt,
Eastern District of North Carolina
Fifth Circuit:
Chief Judge Henry A. Politz

Chief 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 structures
for the provision of administrative services.
CAMERAS
IN THE COURTROOM
The Judicial Conference approved a Court Administration and Case

Management Committee 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 revisions
reflect 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 Judicial

Conference pursuant to 28 U.S.C. §§ 1913, 1914, 1926, and 1930, the Court
Administration and Case Management Committee recommended that the Judicial
Conference raise certain miscellaneous fees to account for inflation and rising court
costs. The Judicial Conference approved the recommendation to raise miscellaneous
fees as set forth below, provided that legislation is enacted to permit the judiciary to
retain the resulting increase in fees:
-
Fee Current Amount Raised Amount
Power of Attorney
Filing and Indexing Misc. Papers
Misdemeanor Appeal
Registration of Foreign Judgment
Tape Duplication
Microfilm/Microfiche
Mailing Labels
Record Search
Certification
Returned Checks
Reproduction of Record
Ct. of Fed. Claims Filing Fee
Ct. of Fed. Claims List of OrdersIOps
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EXHIBIT 3
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JO'DIClALCONlFERENCEOFTHE 1[JNKTEDSTATES
WASHINGTON, D.C. 20544

THE CHIEF pJSTICE lAMES C DUFF
OF THE UNITED STATES Secrelary
Presiding
July 23, 2009
Honorable Patrick J. Leahy

Chairman
Committee on the Judiciary
United States Senate
Honorable Jeff Sessions

Ranking Member
Committee on the Judiciary
United States Senate
Dear Mr. Chairman and Senator Sessions:
The Judicial Conference of the United States strongly opposes the "Sunshine in the
Courtroom Act of2009," S. 657 (11 ph Cong.), because it provides for the use of cameras
in federal trial court proceedings. Cameras can affect behavior in court proceedings.
Cameras can even affect whether a case goes to trial. Cameras can also affect courtroom
security ofjudges, witnesses, employees, and U.S. marshals. This is of particular concern
in light of recent increased threats to federal judges. The Judicial Conference believes
that these and other negative affects of cameras in trial court proceedings far outweigh
any potential benefit. The Judicial Conference also opposes the legislation because it
would empower any appellate court panel to permit cameras in their courtroom rather
than retain that power within the management of each circuit.
The Judicial Conference bases its policy and opposition to the use of cameras in
the federal trial court proceedings on decades of experience and study. The Conference
considered the issue in a number of different situations and contexts including a pilot
project - and concluded that the presence of cameras in federal trial court proceedings is
not in the best interest ofjustice. Federal judges must preserve each citizen's right to a
fair and impartial trial. Of course, federal trials have long been open to the media and
public. But it is the studied judgment ofthe Judicial Conference that cameras can
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Page 2
interfere with a fair and impartial trial. Thus, the use of cameras in trial courts would
differ substantially from the impact of their use in legislative, administrative, or
ceremonial proceedings.
Cameras can interfere with a fair trial in numerous ways. First, broadcasting
proceedings can affect the way trial participants behave. Television cameras can
'intimidate litigants, witnesses, andjurors, many of whom have no direct connection to the
proceeding and are involved in it through no action of their own. Witnesses might refuse
to testi1J or alter their stories when they do testi1J if they fear retribution by someone who
may be watching the broadcast.
Second, and similarly, camera coverage can create privacy concerns for many
individuals involved in the trial, such as witnesses and victims, some of whom are only
tangentially related to the case but about whom very personal and identifYing information
might be revealed. For example, efforts to discredit a witness frequently involve the
revelation of embarrassing personal information. Disclosing embarrassing facts or
accusations in a courtroom already creates challenges in court proceedings. Those
challenges would be multiplied enormously if that information were aired on television
with the additional possibility of taping and replication. This concern can have a material
effect on a witness's testimony or on his or her willingness to testifY at all.
Third. and as a consequence of the aforementioned points, camera coverage could

also become a potent negotiating tactic in pretrial settlement discussions. Parties may
choose not to exercise their right to trial because of concerns regarding possible camera
coverage. Thus, allowing cameras could cause a "chilling effect" on civil rights
litigation; plaintiffs who have suffered sex or age discrimination may simply decide not to
file suit if they learn that they may have to relive the incident and have that description
broadcast to the public at large. Or, parties litigating over medical issues may not wish to
reveal their personal medical history and conditions to a broad audience.
Fourth, the presence of cameras in a trial court will encourage some participants to
become more dramatic, to pontificate about their personal views, to promote commercial
interests to a national audience, or to lengthen their appearance on camera. Such
grandstanding is disruptive to the proceedings and can delay the trial.
The Federal Judiciary is therefore very concerned that the effect of cameras in the
courtroom on participants would be to impact negatively the trial process and thereby
interfere with a fair trial.
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Page 3
In addition to affecting the fairness of a trial, the presence of cameras in a trial

courtroom also increases security and safety issues. Broadcasting the images ofjudges
and court employees, such as court reporters, courtroom deputies, and'law clerks, makes
them 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 against
judges, lawyers, and other participants could increase even beyond the current disturbing
level. 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 policy
ensures consistency within each circuit. The Sunshine in the Courtroom Act of 2009
would allow panels within the circuits to determine whether cameras will be allowed at
their proceedings, rather than leaving the initial decision to the circuit's management.
This will result in differing treatment of litigants within each circuit. Currently, the
circuit-wide policies avoid piecemeal and ad hoc resolutions of the issue among the
various panels convened within a court of appeals, and that approach is therefore better
than the proposed legislative change.
* * *
For the foregoing reasons, the Judicial Conference of the United States strongly
opposes legislation that allows the use of cameras in federal trial court proceedings and
permits individual panels to use of cameras in all courts of appeals instead of deferring to
each circuit's rules on such use.
Thank you for the opportunity to provide the position of the Judicial Conference
on this legislation. The legislation raises issues of vital importance to the Judiciary. If we
may be of additional assistance to you, please do not hesitate to contact our Office of
Legislative Affairs at 202-502-1700.
Sincerely,
(j~tV
James C. Duff
Secretary
cc: Members, Senate Judiciary Committee
I
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REpORT OF THE PROCEEDINGS

OF THE JUDICIAL CONFERENCE
OF THE UNITED STATES
March 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 issued
under 28 U.S.C. § 331. The Chief Justice presided, and the following members of the
Conference 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 Edward N. Cahn,
Fourth Circuit:
Chief Judge 1. Harvie Wilkinson, III

Judge W. Earl Britt,
Fifth Circuit:

Chief Judge William H. Barbour,
Southern District of Mississippi
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March 12, 1996
CAMERAS IN THE COURTROOM
I courts The Judicial Conference agreed to authorize each court of appeals to decide for
's itself whether to permit the taking of photographs and radio and television coverage of
appellate arguments, subject to any restrictions in statutes, national and local rules, and
icial such guidelines as the Judicial Conference may adopt. The Conference further agreed
ourt of to-
les for
ledule. a. Strongly urge each circuit judicial council to adopt an order reflecting the
Judicial Conference's decision to authorize the taking of photographs and radio
and television coverage of court proceedings in the United States courts of
appeals; and
;:ess
b. Strongly urge each circuit judicial council to adopt an order pursuant to
a
28 U.S.C. § 332 (d)(l), reflecting the September 1994 decision of the Judicial
Conference (JCUS-SEP 94, pp. 46-47) not to permit the taking of photographs
~P and radio and television coverage of court proceedings in the United States
district courts. In addition, the Judicial Conference agreed to strongly urge the
te; it judicial councils to abrogate any local rules of court that conflict with this
decision, pursuant to 28 U.S.C. § 2071{cXI).
ttee
ents
COMMITIEE ON CRIMINAL LAW
UNIVERSAL PRETRIAL DRUG TESTING
In December 1995, President Clinton directed the Attorney General to develop

uit
a "... universal policy providing for drug testing of all federal arresteesoefore decisions
en
are made on whether to release them into the community pending triaL" In February
of
1996, the Attorney General submitted a pretrial drug testing proposal to the Executive
mce
Committee, which referred the matter to the Committee on Criminal Law for
recommendation to the March Judicial Conference. Reporting on the proposal to the
Conference, the Criminal Law Committee recommended that the issue be referred back
ciary to that Committee. The Judicial Conference voted to refer the Attorney General's
dified proposal regarding universal pretrial drug testing to the Criminal Law Committee for
nd (b) expeditious consideration and report to the Executive Committee, which is authorized
;ertain to act on the matter on behalf of the Conference.
17
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EXHIBIT 4
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September 20,1994
The Judicial Conference of the United States convened in

Washington, D.C., on September 20,1994, pursuant to the call of the Chief
Justice of the United States issued under 28 U.S.C. § 331. The Chief Justice
presided, and the following members of the Conference were present:
First Circuit:
Chief Judge Juan R. Torruella

Judge Francis J. Boyle,
District of Rhode Island
Second Circuit:
Chief Judge Jon 0.Newman

Judge Charles L. Brieant,
Southern District of New York
Third Circuit:

Chief Judge John E Gerry,
District of New Jersey
Fourth Circuit:
Chief Judge Sam J. Ervin, III

Judge W Earl Britt,
Fifth Circuit:

Chief Judge Morey L. Sear,
Eastern District of Louisiana
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Judicial Cknference of the United StcJ.88
The Committee on Codes of Conduct reported that since its last

report to the Judicial Conference, it received 47 new written inquiries
(including one request for reconsideration) and issued 40 written advisory
responses. The average response time was 21 days. The Chairman received
and responded to 48 telephonic inquiries. In addition, individual Committee
members responded to 72 inquiries from their colleagues.
The Judicial Conference approved the recommendations of the

Committee to revise the Ethics Reform Act gift regulations. The principal
substantive changes include the following: (1) definition of the term "giftHin
a new section 3; (2) incorporation in a new section 4 of the existing statutory
prohibition on solicitation of gifts; (3) clarification of the reach of sections
4(b) and 5(b) (formerly 3(c) and 3(a)(2)); (4) authorization in a new section
5(h) of the acceptance of de minimis gifts by persons other than judges and
their personal staffs; (5) revision of section 6 (formerly 3(b)) prohibiting the
acceptance of gifts in violation of other statutes and regulations, or where
reasonable persons would believe that the public office is being used for
private gain; and (6) description in a new section 9 of procedures for the
return or disposal of gifts that may not properly be accepted.
Upon recommendation of the Committee, the Judicial Conference

approved revisions to the Ethics Reform Act outside employment regulations,
to incorporate useful provisions from the Executive Branch regulations and
to make technical amendments designed to clarify the application of the
regulations.
COMMITTEEON COURTADMINISTRATION
AND CASEMANAGEMENT
The Judicial Conference considered a report and recommendation of

the Court Administration and Case Management Committee to authorize the
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photographing, recording, and broadcasting of civil proceedings in federal

trial and appellate courts. The Committee's report included an evaluation
conducted by the Federal Judicial Center of a three-year pilot project in six
district and two appellate courts, as well as an analysis of studies conducted
in state courts. Based upon the data presented, a majority of the Conference
concluded that the intimidating effect of cameras on some witnesses and
jurors was cause for concern, and the Conference declined to approve the
Committee's recommendation to expand camera coverage in civil proceedings.
In light of this action, additional Committee recommendations relating to
cameras in the courtroom in civil cases were determined to be moot. No
action was taken with regard to the ongoing pilot program, which is
scheduled to sunset on December 31,1994 (see JCUS-MAR 94, p. 15). See
also "Criminal Rules," infra p. 67.
MISCELLANEOUS FEE SCHEDULES
In September 1993, the Judicial Conference approved an amendment

to the miscellaneous fee schedule promulgated under 28 U.S.C. § 1913 to
provide a fee for electronic access to court data for the appellate courts, but
reserved for future consideration the issue of whether to extend the fee to
electronic access to slip opinions (JCUS-SEP 93, pp. 44-45). The Court
Administration and Case Management Committee recommended that the
Judicial Conference authorize collection of a fee for electronic access to slip
opinions by amending the fee schedule to delete the sentence, "No such fee
shall be charged for usage of ACES/EDOS." The Judicial Conference
approved the amendment, which makes no change in the provision allowing
courts to exempt, for good cause, persons or classes of persons from the fees.
In March 1993, the Judicial Conference eliminated the traditional

federal agencies' exemption from court fees for electronic access to court data
and, in limited circumstances, for reproducing court records and conducting
searches of court records (JCUS-MAR 93, p. 11). Federal agencies funded
from judiciary appropriations continue to be exempted from fees. On
recommendation of the Committee on Court Administration and Case
Management, the Conference agreed to a technical amendment of the
miscellaneous fee schedules promulgated under 28 U.S.C. §O 1913, 1914,
1926, and 1930, to clarifj. that government programs funded from the federal
judiciary's appropriations, as well as government agencies so funded, were
exempt from fees. The amendment reads as follows (new language is in
italics):
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EXHIBIT 5
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3niieb Bfafr~0Inut-f of Appenki

Bur mile Hlntf~Uirnrif
50 W LIBERTY STRE-, SUITE BOO
RENO. Nf VADA 89901
PROCTER HUG, JR. s
Chin! Judge
Unllad Slales bbud ol AppBab
June 21, 1996
9 8
To: A11 Article Judges . ,
From: Chief Judge Rug
Re: Judicial Coundl Policy.Regarding the Use of Cameras

in the Courtroom
On May 24, 1996,the Judicial Council of the Ninth Circuit voted to adopt the
policy of the Judicial Conference of the United States regarding the use of cameras in the
courts. Pursuant to 28 U S C. 5 2071(c)(l), lhia poUby is now binding on all courts
within the Ninth Cir~uft.The policy states:
I. Each court of appeds may dacidalocally whethe! or not to

permit Garneras in the appellate courtrooms, subject to any
restriot!ons in etatutes, national and loml rule^, and such
guidelines as the Judicial Conference may adopt. +
2. The taking cf and radio and television coverage of

wurt prooedings in the Unlted States district courts is
prohibit cd-
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Civil Local Rules
(f) Orders taxing costs pursuant to Civil L.R. 54-4.
Cross Reference
See ADR L.R. 4-11(d) “Nonbinding Arbitration; Entry of Judgment 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 rule
is 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 district’s 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
Published December 2009 CIV 92

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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

Official Reporters
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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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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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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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Volume 3
Pages 458 - 669
KRISTIN M. PERRY, )
)
Plaintiffs, )
)
VS. ) NO. C 09-2292-VRW
)
Defendants. ) Wednesday
___________________________________) January 13, 2010

Official Reporters
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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
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663
1 the time being and proceed with the trial. We seem to be
2 moving along well and I don't want to do anything to alter the
3 progress that we are making in these proceedings, but we may,
4 indeed, have to address those issues at some later time.
5 So we will not have remote access to these
6 proceedings from other courthouses in the Ninth Circuit and
7 elsewhere in the Federal Judiciary, but we'll have to deal with
8 the other issues in due time.
9 Now, Mr. Cooper, I understand from the clerk that you
10 asked about the responses to the proposed -- or the change in
11 the local rule and the responses with reference to broadcasting
12 or webcasting these proceedings.
13 And the ones that we have received are all in the
14 jury room. I believe you or your colleagues have had an
15 opportunity to review them, is that correct?
16 MR. COOPER: I do understand that they are in the
17 jury room available for inspection, and I believe that some of
18 my colleagues have -- have taken advantage of that fact. I
19 don't have a report for you in terms of whether -- whether that
20 review is complete.
21 THE COURT: Well, there are quite a number. There
22 are quite a number. So I can well imagine that maybe you
23 haven't or your colleagues have not had a chance to review them
24 all.
25 My understanding from the clerk was that you or

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EXHIBIT 9
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Cooper & Kirk

Lawyers
A Professional Limited Liability Company
Charles J. Cooper 1523 New Hampshire Avenue NW (202) 220-9600

ccooper@cooperkirk.com Washington, D.C. 20036 Fax (202) 220-9601
January 14, 2010
The Honorable Vaughn R. Walker

Chief Judge
United States District Court for the
Northern District of California
450 Golden Gate Avenue
San Francisco, CA 94102
Re: Perry v. Schwarzenegger, No. C-09-2292 VRW (N.D. Cal.)
Dear Chief Judge Walker:
I write on behalf of Defendant-Intervenors (“Proponents”) to respectfully request that the

Court halt any further recording of the proceedings in this case, and delete any recordings of the
proceedings to date that have previously been made.
As the Court will recall, on Monday morning, just before trial commenced, the Court
noted that its orders concerning public dissemination had been temporarily stayed by the
Supreme Court. In response, Plaintiffs nonetheless asked the Court to record the proceedings for
the purpose of later public dissemination if the stay was subsequently lifted:
Since the stay is temporary and the Supreme Court is going to be considering
these issues, and given the importance of the issues in this case, we would request
that the Court permit recording and preservation of the proceedings today and
through Wednesday .… [G]iven the fact that this is a temporary stay, and the stay
order does not mention anything about restricting the ability of the court to
capture the images on the cameras and preserve them in the event the stay is lifted
and Judge Kozinski issues his order, we think that would be a good solution so
then the materials could be posted when those -- those things happen.
Tr. of Proceedings at 14-15 (Jan. 11, 2010) (Attachment A). In response, Proponents objected to
the recording of the proceedings as inconsistent with the Supreme Court’s temporary stay, see id.
at 16, but the Court accepted Plaintiffs’ proposal.
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January 14, 2010
Page 2 of 2
The Supreme Court yesterday extended the stay indefinitely. Hollingsworth v. Perry,
558 U.S. __, No. 09A648, slip op. (Jan. 13, 2010) (per curiam). The Supreme Court’s ruling
removes all question that recording of the proceedings is prohibited. As the Supreme Court
explained, prior to this Court’s amendment to Local Rule 77-3 (which amendment, the Court
concluded, was not properly adopted), Local Rule 77-3 “banned the recording or broadcast of
court proceedings.” Hollingsworth, slip op. at 4 (emphasis added). Unamended Local Rule77-3
thus governs these proceedings, and, as the Supreme Court held, it has “the force of law.” Id. at
8 (quotation marks omitted).
In short, it is now clear that the Supreme Court’s stay will remain in place indefinitely,
and the prohibition against the recording of these proceedings remains binding. For these
reasons, Proponents renew their objection to any further recording of the proceedings in this
case, and request that the Court order that any recordings previously made be deleted.
Sincerely,
/s/ Charles J. Cooper
Charles J. Cooper
Counsel for Defendant-Intervenors
Cc: Counsel of Record

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2
1
2 IN THE UNITED STATES DISTRICT COURT
3 FOR THE NORTHERN DISTRICT OF CALIFORNIA
4
5 KRISTIN M PERRY, SANDRA B STIER,
PAUL T KATAMI and JEFFREY J
6 ZARRILLO,
7 Plaintiffs,
8 CITY AND COUNTY OF SAN FRANCISCO,
9 Plaintiff-Intervenor,
10 v
For the Northern District of California
11 ARNOLD SCHWARZENEGGER, in his

United States District Court
official capacity as governor of

12 California; EDMUND G BROWN JR, in
his official capacity as attorney
13 general of California; MARK B No C 09-2292 VRW
HORTON, in his official capacity
14 as director of the California NOTICE TO PARTIES
Department of Public Health and
15 state registrar of vital
statistics; LINETTE SCOTT, in her
16 official capacity as deputy
director of health information &
17 strategic planning for the
California Department of Public
18 Health; PATRICK O’CONNELL, in his
official capacity as clerk-
19 recorder of the County of
Alameda; and DEAN C LOGAN, in his
20 official capacity as registrar-
recorder/county clerk for the
21 County of Los Angeles,
22 Defendants,
23 DENNIS HOLLINGSWORTH, GAIL J

KNIGHT, MARTIN F GUTIERREZ,
24 HAKSHING WILLIAM TAM, MARK A
JANSSON and PROTECTMARRIAGE.COM –
25 YES ON 8, A PROJECT OF
CALIOFORNIA RENEWAL, as official
26 proponents of Proposition 8,
27 Defendant-Intervenors.
/
28
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1 In compliance with the Supreme Court’s order in

2 Hollingsworth v Perry, 558 US --, No 09A648 (January 13, 2010), as
3 noted on the record at trial this date, the undersigned has
4 formally requested Chief Judge Kozinski to withdraw this case from
5 the pilot project on transmitting trial court proceedings to remote
6 federal courthouse locations or for broadcast or webcast approved
7 by the Ninth Circuit Judicial Council on December 17, 2009.
8 Transmission of the proceedings to other locations solely within
9 the San Francisco courthouse will continue along with recording for
10 use in chambers, as permitted in Civ LR 77-3.
11
12
13
14
15 VAUGHN R WALKER
United States District Chief Judge
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EXHIBIT 11
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FILED
JAN 15 2010
JUDICIAL COUNCIL
U .S. C O U R T OF APPE ALS
OF THE NINTH CIRCUIT
IN THE MATTER OF PILOT DISTRICT No. 2010–3

COURT PUBLIC ACCESS PROGRAM
APPROVED DECEMBER 16, 2009 ORDER
KOZINSKI, Chief Judge:
I have received a request from the Chief Judge of the Northern District of
California to remove Perry v. Schwarzenegger, No. 3:09-cv-02292-VRW, from
this pilot program. The request is granted.
Order No. 2010–2 is rescinded.

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Civil Local Rules
Cross Reference
Award.”

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 rule
is intended to restrict the use of electronic means to receive or present evidence

official notices.

(1) and (2); or
Published February 2010 CIV 92

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EXHIBIT 13
Renewed Notice Concerning Revision of Civil Local Rule 77-3. http://www.cand.uscourts.gov/CAND/FAQ.nsf/60126b66e42d00488825...
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Subject: Contact: Date Posted:

Renewed Notice Concerning 02/04/2010
Revision of Civil Local Rule
77-3.
The United States District Court for the Northern District of California Court has approved a
revision of Civil Local Rule 77-3, subject to public comment. The revision would add the
underlined language below.
Unless allowed by a Judge or a Magistrate Judge with respect to his or her own chambers or
assigned courtroom for ceremonial purposes or for participation in a pilot or other project
authorized by the Judicial Council of the Ninth Circuit, the taking of photographs, public
broadcasting or televising, or recording for those purposes in the courtroom or its environs, in
connection with any judicial proceeding, is prohibited. Electronic transmittal of courtroom
proceedings and presentation of evidence within the confines of the courthouse is permitted, if
authorized by the Judge or Magistrate Judge. The term “environs,” as used in this rule, means all
floors on which chambers, courtrooms or on which Offices of the Clerk are located, with the
exception of any space specifically designated as a Press Room. Nothing in this rule is intended
to restrict the use of electronic means to receive or present evidence during Court proceedings.
The comment period will run from February 4, 2010 to March 4, 2010. If you submitted a
comment during the previous comment period, you need not resubmit it. The court is interested
in comments that pertain to the revised rule and NOT to its application to a particular case. All
comments and suggestions regarding the content of the revised rule should be sent in writing, no
later than March 4, 2010 to:
Hon. Phyllis Hamilton
Chair of the Rules Committee
United States Courthouse
1301 Clay Street
Oakland, CA 94612
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Civil Local Rules
Cross Reference
Award.”

own chambers or assigned courtroom for ceremonial purposes or for participation in
a pilot or other project authorized by the Judicial Council of the Ninth Circuit, the
taking of photographs, public broadcasting or televising, or recording for those
purposes in the courtroom or its environs, in connection with any judicial proceeding,
is prohibited. Electronic transmittal of courtroom proceedings and presentation of
evidence within the confines of the courthouse is permitted, if authorized by the
Judge or Magistrate Judge. The term “environs,” as used in this rule, means all floors
on which chambers, courtrooms or on which Offices of the Clerk are located, with
the exception of any space specifically designated as a Press Room. Nothing in this
rule is intended to restrict the use of electronic means to receive or present evidence

official notices.

(1) and (2); or
Published April 2010 CIV 90

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Civil Local Rules http://www.cand.uscourts.gov/cand/LocalRul.nsf/031cb3d3c34daccc882...
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Home Previous
Rule Name: Last Modified:

Civil Local Rules 05/2010
Published April, 2010

NOTICE CONCERNING REVISIONS OF
CIVIL LOCAL RULES 7-1, 72-2 and 72-3
The United States District Court for the Northern District of California Court has approved
revisions of Civil Local Rules 7-1, 72-2 and 72-3, effective April 20, 2010.
In most circumstances, a request for judicial action is called a “motion” and certain
administrative and electronic processes intended to bring such matters to the attention of the
assigned judge are designed to capture “motions” that have been filed rather than “objections.”
In order to assist the judges in ruling on requests for judicial action with respect to orders and
findings of magistrate judges as expeditiously as possible, such requests will now be called
“motions” rather than “objections.”
File for Download:
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http://www.cand.uscourts.gov/
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Text Only Site Map
Vaughn R. Walker, Chief Judge.......... ..........Richard W. Wieking, Clerk of Court
PUBLIC ANNOUNCEMENTS COURT

A NEW COURT WEBSITE IS UNDER xxxINFORMATIONxxx
DEVELOPMENT. Address & Jurisdiction
Please take our brief survey. Your opinion is important Accessibility
to us. ADR Magistrate Judge
Attorney Lounge
Attorney Status
CASES California state site
Perry v. Schwarzenegger - C09-2292 VRW (Challenge Current Interest
to Proposition 8) Electronic Case Filing
FTC v. Pricewert LLC dba 3fn.net, et al. C09-2407 RMW Federal Judiciary
USA v. Bonds 3:07-cr-00732 Extern Application
Plata/Coleman v. Schwarzenegger (Prison Overcrowding) Fee Schedule
Filing Guidelines
Bextra and Celebrex FirstGov Website
Getting Docket Info
Local Rules RULES & ORDERS Historical Society
General Orders Notice Concerning Adoption of General Order No. 62 - Magistrate Judge Profiles
Media Info Electronic Seminars Disclosure
Filing of Documents Under Seal Library of Congress
Notice Concerning Proposed Revisions of Civil Local Local Rules
Naturalization
Rule 7-3
Practice Program
Notice Concerning Revisions of Civil Local Rules 7-1, Pro Se Handbook
72-2 and 72-3 T-bill Rate for Judgment
Local Rules Changes - Effective 12/01/09
Revised General Order 56
Notice Concerning Revisions of Civil Local Rule, 3-2 and
5-1
Standing Order for All Judges of the Northern District of
California Effective 3/1/07
CLERK'S NOTICES
Magistrate Judge Position Available in San Jose
Revised Civil Cover Sheet 1/2010
Revised Forms 12/09: Bill of Costs, Summons in a Civil
Action and Summons on Third-Party Complaint
Notice re: Judge Hamilton's Relocation to Oakland
Clerk's Office Now Accepting Payments By Credit Card
New Federal Magistrate Judge Appointments
Judicial Misconduct and Disability
GENERAL NOTICES
RFQ for Off-Site Copying Services San Jose Court
Location (Due June 1, 2010)
A NEW COURT WEBSITE IS UNDER DEVELOPMENT.
Please take our brief survey. Your opinion is important to
us.
Announcing the selection of Professor Donna M. Ryu for a
full-time Oakland Magistrate Judge position
Submitting Matters to the ADR Magistrate Judge
Pro Bono Project Guidelines
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Legal Help Center Open to Assist Pro Se Litigants
Pro Se Handbook - Now in Spanish & Chinese Translations
Courtroom Technology Upgrades
Teleconferencing Guidelines
Please drop us
an email at:
Web-CAND@cand.uscourts.gov
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Cooper & Kirk

Lawyers
A Professional Limited Liability Company
Charles J. Cooper 1523 New Hampshire Avenue NW (202) 220-9600

ccooper@cooperkirk.com Washington, D.C. 20036 Fax (202) 220-9601
May 24, 2010

Chief Judge
United States District Court for the
450 Golden Gate Ave.
Re: Perry v. Schwarzenegger, No. C-09-2292 VRW (N.D. Cal.)
Dear Chief Judge Walker:
I write on behalf of Defendant-Intervenors Hollingsworth, Knight, Gutierrez, Jansson,

and ProtectMarrige.com (“Proponents”) in response to the Media Coalition’s letter of May 18,
2010, Doc # 670, and to reiterate our objection to public broadcast of the trial proceedings in this
case. Despite the Supreme Court’s determination that “[t]his case is … not a good one for a
[public broadcast] pilot program,” Hollingsworth v. Perry, 130 S. Ct. 705, 714 (2010), the Media
Coalition again asks this Court to publicly broadcast a portion of the trial proceedings.
Proponents respectfully submit that an order permitting public broadcast would violate (i) the
letter and spirit of the Supreme Court’s stay order, (ii) the only valid Northern District of
California and Ninth Circuit policies bearing upon this issue, and (iii) Proponents’ due process
rights to a fair trial. Accordingly, the Media Coalition’s request should be promptly rejected.
First, an order allowing trial proceedings to be broadcast publicly would violate the
Supreme Court’s stay of this Court’s order authorizing “the broadcast of [this] federal trial.”
Hollingsworth, 130 S. Ct. at 706; see also id. at 709 (“We therefore stay the court’s January 7,
2010, order to the extent that it permits the live streaming of court proceedings….”). As the
Court explained, even “[i]f Local Rule 77-3 had been validly revised, questions would still
remain about the District Court’s decision to allow broadcasting of this particular trial.” Id. at
714. These questions led the Court to conclude, as noted above, that this case is ill-suited for
inclusion in an experimental pilot program.
Second, under controlling Ninth Circuit policy, this Court has no authority to enter an
order permitting public broadcast in this case, and to the extent revised L.R. 77-3 purports to
allow for such authority, it is invalid. Pursuant to federal statute, the Ninth Circuit Judicial
Council is authorized to make or amend “[a]ny general order relating to practice and procedure
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… only after giving appropriate public notice and an opportunity for comment.” 28 U.S.C.
§ 332(d)(1) (emphasis added). In 1996, the Ninth Circuit Judicial Council “adopt[ed] the policy
of the Judicial Conference of the United States” banning the public broadcast of proceedings in
federal district courts. See Doc # 324-1 at 4 (hereinafter the “1996 Policy”). Since that time, the
Judicial Council has not given “appropriate notice and an opportunity for comment” of a
proposed amendment to the governing 1996 Policy. The Judicial Council did issue a press
release on December 17, 2009, stating that it “has approved, on an experimental basis, the
limited use of cameras in federal district courts within the circuit”—an “action” which purports
to “amend[] [the] 1996 Ninth Circuit policy.” 1 The December 17 press release, however, did not
comport with the statutory requirements for notice and comment and is therefore invalid. See
130 S. Ct. at 711 (concluding that the amended version of L.R. 77-3 “appears to be invalid”
because the Court failed to give the statutorily required public notice and an opportunity for
comment); see also id. at 712 (citing 28 U.S.C. § 332(d)(1) and noting that the Ninth Circuit’s
policy amendment “was not adopted after notice and comment procedures”). Thus, because the
1996 Policy remains the only valid Circuit rule in effect, this Court has no authority to permit
public broadcast of trial proceedings. See 28 U.S.C. § 332(d)(2) (“All judicial officers and
employees of the circuit shall promptly carry into effect all orders of the judicial council.”).
Third, neither the amendment to L.R. 77-3 nor the Ninth Circuit Judicial Council’s press
release sets forth any standards or guidelines to regulate the selection of cases and the use of
cameras during trial proceedings. The Supreme Court explicitly emphasized that this was a
serious defect that supported its “decision to grant extraordinary relief.” Hollingsworth, 130 S.
Ct. at 713; see also id. (“The District Court here attempted to revise its rules in haste … to allow
broadcasting of this high-profile trial without any considered standards or guidelines in place.”);
id. (explaining that “the lack of a regular rule with proper standards to determine the guidelines
for broadcasting could compromise the orderly, decorous, rational traditions that courts rely upon
to ensure the integrity of their own judgments”); id. (stating that “Congress has illustrated the
need for careful guidelines and standards” in any program authorizing public broadcast of federal
trial proceedings). Indeed, the Judicial Council’s press release authorizes the “chief judge of the
district court in consultation with the chief circuit judge” to select cases for public broadcast of
district court trial proceedings. It appears, in fact, that the chief judges of the District Court and
the Ninth Circuit have absolute discretion to select these cases. Yet neither the press release nor
revised L.R. 77-3 provides any procedure by which litigants and other interested parties may
present concerns and objections to the chief judges. This raises serious due process concerns.
Fourth, there is little merit to the Media Coalition’s argument that “the concerns earlier
reviewed by the Supreme Court should not preclude” the public broadcast of closing arguments
because they “will solely consist of the arguments of counsel—and not witness testimony or
evidence.” As an initial matter, the parties may play excerpts from the video-recorded
1
See http://www.ce9.uscourts.gov/cm/articlefiles/137-Dec17_Cameras_Press%20Relase.pdf.
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May 24, 2010
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depositions during the course of closing arguments. In any case, in Hollingsworth, the Supreme
Court specifically cited the findings and policies of the Judicial Conference of the United States,
noting that while those policies “may not be binding on the lower courts, they are at the very
least entitled to respectful consideration.” 130 S. Ct. at 712 (quotation marks omitted). While it
is true that the deleterious effect of public broadcast on witnesses is one of the concerns
undergirding the Judicial Conference’s policy, it is by no means the only concern. As we have
explained previously, the Judicial Conference’s policy also rests on findings that public
broadcast has negative effects on some judges and attorneys, including distraction,
grandstanding, and avoidance of unpopular decisions or positions. Moreover, the Judicial
Conference has repeatedly stressed that “the presence of cameras in a trial courtroom …
increases security and safety issues” and that “[t]hreats against judges, lawyers, and other
participants could increase even beyond the current disturbing level.” Doc # 324-2 at 4. And all
of these findings were with respect to run-of-the-mine cases, not “high-profile, divisive cases”
like this one. Hollingsworth, 130 S. Ct. at 714 (citing “warning by Judge Edward R. Becker that
in ‘truly high-profile cases,’ one can ‘[j]ust imagine what the findings would be’”).
For all of these reasons, and in light of the Supreme Court’s stay opinion, Proponents
respectfully submit that the Court should deny the Media Coalition’s renewed request to publicly
broadcast this federal trial.
Respectfully submitted,
/s/ Charles J. Cooper
Charles J. Cooper
Counsel for Proponents
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1
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6 ZARRILLO,
7 Plaintiffs,
10 v


14 as director of the California ORDER
22 Defendants,

/
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1 In the event any party wishes to use portions of the

2 trial recording during closing arguments, a copy of the video can
3 be made available to the party. Parties will of course be
4 obligated to maintain as strictly confidential any copy of the
5 video pursuant to paragraph 7.3 of the protective order, Doc #425.
6 Any party wishing to make use of the video during closing arguments
7 is DIRECTED to inform the court clerk not later than June 2, 2010
8 at 5 PM PDT.
9
10 IT IS SO ORDERED.
11
12
13 VAUGHN R WALKER
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4 UNITED STATES DISTRICT COURT

5 NORTHERN DISTRICT OF CALIFORNIA
6 KRISTIN M. PERRY, SANDRA B. STIER, CASE NO. 09-CV-2292 VRW (JCS)
PAUL T. KATAMI, and JEFFREY J.
7 ZARRILLO,
Plaintiffs, AMENDED PROTECTIVE ORDER
8
v.
9
ARNOLD SCHWARZENEGGER, in his official
10 capacity as Governor of California; EDMUND
G. BROWN, JR., in his official capacity as
11 Attorney General of California; MARK B.
HORTON, in his official capacity as Director of
12 the California Department of Public Health and
State Registrar of Vital Statistics; LINETTE
13 SCOTT, in her official capacity as Deputy
Director of Health Information & Strategic
14 Planning for the California Department of Public
Health; PATRICK O’CONNELL, in his official
15 capacity as Clerk-Recorder for the County of
Alameda; and DEAN C. LOGAN, in his official
16 capacity as Registrar-Recorder/County Clerk for
the County of Los Angeles,
17 Defendants.
18
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21
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Gibson, Dunn &

Crutcher LLP
PLAINTIFFS’ PROPOSED PROTECTIVE ORDER; 09-CV-2292 VRW

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(e) court reporters, their staffs, and professional vendors to whom disclosure is
2
reasonably necessary for this litigation and who have signed the “Agreement to Be Bound by Protective
3
Order” (Exhibit A);
4
(f) during their depositions, witnesses in the action to whom disclosure is
5
reasonably necessary and who have signed the “Agreement to Be Bound by Protective Order”
6
(Exhibit A). Pages of transcribed deposition testimony or exhibits to depositions that reveal Protected
7
Material must be separately bound by the court reporter and may not be disclosed to anyone except as
8
permitted under this Protective Order.
9
(g) the author of the document or the original source of the information.
10
7.3 Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
11
Information or Items. Unless otherwise ordered by the court or permitted in writing by the Designating
12
Party, a Receiving Party may disclose any information or item designated “HIGHLY CONFIDENTIAL
13
– ATTORNEYS’ EYES ONLY” only to:
14
(a) the Receiving Party’s Outside Counsel of record in this action, (or in the case of
15
a government entity or government official sued in his or her official capacity, such entity’s or
16
official’s counsel of record in this action), as well as employees of said Counsel to whom it is
17
reasonably necessary to disclose the information for this litigation and who have signed the
18
“Agreement to Be Bound by Protective Order” that is attached hereto as Exhibit A, provided that it
19
shall not be provided to any Counsel or employee who held an “official position” in any primarily
20
formed ballot committee related to Proposition 8 (see http://cal-
21
access.ss.ca.gov/campaign/measures/detail.aspx?id=1302602&session=2007) or now holds an official
22
position in a similar committee that is now circulating petitions for a 2010 ballot initiative to repeal
23
Proposition 8. For purposes of sections 7.3 and 7.5 an “official position” is defined as one which
24
authorizes the holder of said position to contractually bind (either solely or in conjunction with others)
25
the primarily formed ballot committee (or similar committee circulating petitions to place an initiative
26
on the 2010 ballot) with respect to matters relating to communications disseminated by the committee
27
or otherwise to spend funds exceeding $1,000 on behalf of the committee, provided, however, that
28
notice of all such attorneys and employees to whom HIGHLY CONFIDENTIAL – ATTORNEYS’
Gibson, Dunn &
Crutcher LLP 8
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EYES ONLY information will be disclosed shall be given not less than 24 hours in advance of
2
disclosure to give the other parties the opportunity to object to the disclosure and seek relief from the
3
court on grounds specific to the designated attorney or employee;
4
(b) Experts (as defined in this Order) (1) to whom disclosure is reasonably
5
necessary for this litigation, (2) who have signed the “Agreement to Be Bound by Protective Order”
6
(Exhibit A), provided that it shall not be provided to any expert who held an “official position” in any
7
primarily formed ballot committee related to Proposition 8 (see http://cal-access.ss.ca.gov/campaign/
8
measures/detail.aspx?id=1302602&session=2007) or now holds an official position in a similar
9
committee that is now circulating petitions for a 2010 ballot initiative to repeal Proposition 8, provided,
10
however, that notice of all such experts to whom HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
11
ONLY information will be disclosed shall be given not less than 24 hours in advance of disclosure to
12
give the other parties the opportunity to object to the disclosure and seek relief from the court on
13
grounds specific to the designated expert;
14
(c) the Court and its personnel;
15
(d) court reporters, their staffs, and professional vendors to whom disclosure is
16
reasonably necessary for this litigation and who have signed the “Agreement to Be Bound by Protective
17
Order” (Exhibit A); and
18
(e) the author of the document or the original source of the information.
19
7.4 Disclosure Limited to Receiving Party. A Receiving Party shall not disclosure any
20
materials designated “Confidential” or “Highly Confidential – Attorneys’ Eyes Only” to any other party
21
to the litigation unless the party has agreed to be bound by this Protective Order.
22
7.5 Use of Protected Material at Depositions. Before any deposition in which the noticing
23
Party reasonably anticipates using any Protected Materials received in this matter, the noticing Party
24
must inform all other parties. Thereafter, any party who wishes to participate in said deposition must
25
staff the deposition with persons who neither have held an “official position” in any primarily formed
26
ballot committee related to Proposition 8 (see http://cal-access.ss.ca.gov/campaign/measures/
27
detail.aspx?id=1302602&session=2007) nor hold an official position in a similar committee that is now
28
circulating petitions for a 2010 ballot initiative to repeal Proposition 8.
Gibson, Dunn &
Crutcher LLP 9
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1 GIBSON, DUNN & CRUTCHER LLP

Theodore B. Olson, SBN 38137
2 tolson@gibsondunn.com
Matthew D. McGill, pro hac vice
3 Amir C. Tayrani, SBN 229609
1050 Connecticut Avenue, N.W., Washington, D.C. 20036
4 Telephone: (202) 955-8668, Facsimile: (202) 467-0539
5 Theodore J. Boutrous, Jr., SBN 132009

tboutrous@gibsondunn.com
6 Christopher D. Dusseault, SBN 177557
Ethan D. Dettmer, SBN 196046
7 Sarah E. Piepmeier, SBN 227094
Theane Evangelis Kapur, SBN 243570
8 Enrique A. Monagas, SBN 239087
333 S. Grand Avenue, Los Angeles, California 90071
10 BOIES, SCHILLER & FLEXNER LLP

David Boies, pro hac vice
11 dboies@bsfllp.com
333 Main Street, Armonk, New York 10504
13 Jeremy M. Goldman, SBN 218888

jgoldman@bsfllp.com
14 Theodore H. Uno, SBN 248603
1999 Harrison Street, Suite 900, Oakland, California 94612
16 Attorneys for Plaintiffs

KRISTIN M. PERRY, SANDRA B. STIER,
17 PAUL T. KATAMI, and JEFFREY J. ZARRILLO

20 KRISTIN M. PERRY, et al., CASE NO. 09-CV-2292 VRW
21 Plaintiffs, NOTICE TO COURT CLERK
and RE PLAINTIFFS’ REQUEST FOR A
22 COPY OF THE TRIAL RECORDING
CITY AND COUNTY OF SAN FRANCISCO,
23 Plaintiff-Intervenor, Trial: January 11-27, 2010
v.
24 Judge: Chief Judge Vaughn R. Walker
ARNOLD SCHWARZENEGGER, et al., Magistrate Judge Joseph C. Spero
25 Defendants,
and Location: Courtroom 6, 17th Floor
26
PROPOSITION 8 OFFICIAL PROPONENTS
27 DENNIS HOLLINGSWORTH, et al.,
Gibson, Dunn &

Crutcher LLP
09-CV-2292 VRW NOTICE TO COURT CLERK RE PLAINTIFFS’ REQUEST FOR A COPY OF
THE TRIAL RECORDING
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1 Pursuant to this Court’s May 31, 2010 order, Doc #672, Plaintiffs respectfully request a copy
2 of the trial recording for possible use during closing arguments.
3 Respectfully submitted,
4 DATED: June 2, 2010 GIBSON, DUNN & CRUTCHER LLP
5 Theodore B. Olson
Theodore J. Boutrous, Jr.
6 Christopher D. Dusseault
Ethan D. Dettmer
7 Matthew D. McGill
Amir C. Tayrani
8
Sarah E. Piepmeier
9 Theane Evangelis Kapur
Enrique A. Monagas
10
11 By: /s/
Theodore B. Olson
12
and
13
BOIES, SCHILLER & FLEXNER LLP
14
David Boies
15 Steven Holtzman
Jeremy M. Goldman
16 Roseanne C. Baxter
Richard J. Bettan
17 Beko O. Richardson
Theodore H. Uno
18
Joshua I. Schiller
19
Attorneys for Plaintiffs
20 KRISTIN M. PERRY, SANDRA B. STIER,
PAUL T. KATAMI, and JEFFREY J. ZARRILLO
21
22
23
24
25
26
27
28
Gibson, Dunn &

1
Crutcher LLP
09-CV-2292 VRW NOTICE TO COURT CLERK RE PLAINTIFFS’ REQUEST FOR A COPY OF
THE TRIAL RECORDING
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Volume 13
Pages 2953 - 3115
KRISTIN M. PERRY, )
)
Plaintiffs, )
)
VS. ) NO. C 09-2292-VRW
)
Defendants. ) Wednesday
___________________________________) June 16, 2010

Official Reporters
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2961
1 With the Court's permission today, during closings
2 Mr. Olson will be playing some of the video clips from the
3 trial proceedings. We propose, if this works for the Court,
4 that at the end of the day we would offer the transcript pages
5 for the record, whenever it's convenient for the Court, rather
6 than doing it for the closings. Then we'll have that for the
7 record.
8 THE COURT: That would seem to make sense. Does it
9 not, Mr. Cooper?
10 MR. COOPER: I'm sorry, Your Honor. I'm not sure I
11 followed the proposal.
12 THE COURT: Maybe you can clarify.
13 MR. BOUTROUS: I can clarify.
14 We will be playing video clips from the trial
15 proceedings during the closing arguments. At the end of the
16 day, or whenever it is convenient for the Court, we would offer
17 into the record the transcript pages of the clips that we have
18 played in court, marked as exhibits for the record.
19 MR. COOPER: I understand. And I see no objection to
20 that, Your Honor.
21 THE COURT: Fine. That will be fine.
22 MR. BOUTROUS: Thank you.
23 THE COURT: Any other housekeeping? Good.
24 Mr. Olson.
25
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1 DENNIS J. HERRERA, State Bar #139669

City Attorney
2 THERESE M. STEWART, State Bar #104930
Chief Deputy City Attorney
3 DANNY CHOU, State Bar #180240
Chief of Complex and Special Litigation
4 RONALD P. FLYNN, State Bar #1841867
VINCE CHHABRIA, State Bar #208557
5 ERIN BERNSTEIN, State Bar #231539
CHRISTINE VAN AKEN, State Bar #241755
6 MOLLIE M. LEE, State Bar #251404
Deputy City Attorneys
7 City Hall, Room 234
One Dr. Carlton B. Goodlett Place
8 San Francisco, California 94102-4682
Telephone: (415) 554-4708
9 Facsimile: (415) 554-4699
10 Attorneys for Plaintiff-Intervenor

CITY AND COUNTY OF SAN FRANCISCO
11
14 KRISTIN M. PERRY, et al, Case No. 09-CV-2292 VRW
15 Plaintiffs, NOTICE TO COURT CLERK

FROM PLAINTIFF-INTERVENOR
16 CITY AND COUNTY OF SAN CITY AND COUNTY OF SAN FRANCISCO
FRANCISCO, RE USE OF VIDEO
17
Plaintiff-Intervenor
18 Trial: Jan. 11-27, 2010
vs.
ARNOLD SCHWARZENEGGER, in his
20 official capacity as Governor of California, et Location: Courtroom 6, 17th Floor
al
21
Defendants,
22
DENNIS HOLINGSWORTH, as official
23 proponents of Proposition 8, et al,
24 Defendant-Intervenors,
25
26
27
28
Plaintiff-Intervenor's Notice Re Video
CASE NO. 09-CV-2292 VRW
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1
NOTICE
2
Please take NOTICE that pursuant to the Court's Order [Doc #672], Plaintiff-Intervenor wishes
3
to obtain a copy of the following portions of the trial video to review for possible use at closing
4
argument:
5
6
Trial Date Witness
7
January 14, 2010 Egan
8
January 15, 2010 Zia
9
January 19, 2010 Sanders / Badgett
10
January 20, 2010 Kendall
11
12
Plaintiff-Intervenor will maintain the video as strictly confidential pursuant to paragraph 7.3 of
13
the protective order in this case [Doc #425].
14
15
16 Dated: June 2, 2010 DENNIS J. HERRERA

City Attorney
17
THERESE M. STEWART
18 Chief Deputy City Attorney
DANNY CHOU
19 Chief of Complex & Special Litigation
RONALD P. FLYNN
20 VINCE CHHABRIA
ERIN BERNSTEIN
21 CHRISTINE VAN AKEN
MOLLIE M. LEE
22 Deputy City Attorneys
23
24 By: /s/
THERESE M. STEWART
25
Attorneys for Plaintiff-Intervenor
26 CITY AND COUNTY OF SAN FRANCISCO
27
28
Plaintiff-Intervenor's Notice Re Video 1
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1
4
6 ZARRILLO,
7 Plaintiffs,
10 v


14 as director of the California ORDER
22 Defendants,

/
28
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1 The court is in receipt of the letter dated May 18, 2010

2 from a coalition of media organizations informing the court of the
3 media coalition’s interest in recording, broadcasting and
4 webcasting closing arguments in the above-captioned case. Doc
5 #670.
6 The court removed the case from the Ninth Circuit pilot
7 project on audio-video recording and transmission on January 15,
8 2010. Doc #463. No further request to include the case in the
9 pilot program is contemplated. The media coalition’s request is
10 therefore DENIED.
11
12
13 IT IS SO ORDERED.
14
15
16 VAUGHN R WALKER
17
18
19
20
21
22
23
24
25
26
27
28
2
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1 COOPER AND KIRK, PLLC

Charles J. Cooper (DC Bar No. 248070)*
2 ccooper@cooperkirk.com
David H. Thompson (DC Bar No. 450503)*
3 dthompson@cooperkirk.com
Howard C. Nielson, Jr. (DC Bar No. 473018)*
4 hnielson@cooperkirk.com
Nicole J. Moss (DC Bar No. 472424)*
5 nmoss@cooperkirk.com
Peter A. Patterson (OH Bar No. 0080840)*
6 ppatterson@cooperkirk.com
1523 New Hampshire Ave. N.W., Washington, D.C. 20036
8 LAW OFFICES OF ANDREW P. PUGNO

Andrew P. Pugno (CA Bar No. 206587)
9 andrew@pugnolaw.com
101 Parkshore Drive, Suite 100, Folsom, California 95630
11 ALLIANCE DEFENSE FUND

Brian W. Raum (NY Bar No. 2856102)*
12 braum@telladf.org
James A. Campbell (OH Bar No. 0081501)*
13 jcampbell@telladf.org
15100 North 90th Street, Scottsdale, Arizona 85260
15 ATTORNEYS FOR DEFENDANT-INTERVENORS DENNIS HOLLINGSWORTH,

GAIL J. KNIGHT, MARTIN F. GUTIERREZ, MARK A. JANSSON,
16 and PROTECTMARRIAGE.COM – YES ON 8, A
PROJECT OF CALIFORNIA RENEWAL
17
* Admitted pro hac vice
18
20 KRISTIN M. PERRY, SANDRA B. STIER, PAUL

T. KATAMI, and JEFFREY J. ZARRILLO, CASE NO. 09-CV-2292 VRW
21
DECLARATION OF PETER A.
Plaintiffs, PATTERSON IN SUPPOPRT OF
22
DEFENDANT-INTERVENORS
23 CITY AND COUNTY OF SAN FRANCISCO, DENNIS HOLLINGSWORTH, GAIL
J. KNIGHT, MARTIN F. GUTIERREZ,
24 Plaintiff-Intervenor, MARK A. JANSSON,
AND PROTECTMARRIAGE.COM’S
25 v. MOTION FOR ADMINISTRATIVE
RELIEF
26
27 capacity as Governor of California; EDMUND G.
BROWN, JR., in his official capacity as Attorney
28
DECLARATION OF PETER A. PATTERSON IN SUPPORT OF DEFENDANT-INTERVENORS’
MOTION FOR ADMINISTRATIVE RELIEF
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1 General of California; MARK B. HORTON, in his

official capacity as Director of the California
2 Department of Public Health and State Registrar of
Vital Statistics; LINETTE SCOTT, in her official
3
capacity as Deputy Director of Health Information
4 & Strategic Planning for the California Department
of Public Health; PATRICK O’CONNELL, in his
5 official capacity as Clerk-Recorder for the County
of Alameda; and DEAN C. LOGAN, in his official
6 capacity as Registrar-Recorder/County Clerk for
7 the County of Los Angeles,
8 Defendants,
9 and
10 PROPOSITION 8 OFFICIAL PROPONENTS

DENNIS HOLLINGSWORTH, GAIL J.
11 KNIGHT, MARTIN F. GUTIERREZ, HAK-
SHING WILLIAM TAM, and MARK A.
12 JANSSON; and PROTECTMARRIAGE.COM –
YES ON 8, A PROJECT OF CALIFORNIA
13 RENEWAL,
15
16 Additional Counsel for Defendant-Intervenors
17
18 Timothy Chandler (CA Bar No. 234325)
tchandler@telladf.org
19 101 Parkshore Drive, Suite 100, Folsom, California 95630
Telephone: (916) 932-2850, Facsimile: (916) 932-2851
20
Jordan W. Lorence (DC Bar No. 385022)*
21 jlorence@telladf.org
Austin R. Nimocks (TX Bar No. 24002695)*
22 animocks@telladf.org
801 G Street NW, Suite 509, Washington, D.C. 20001
24 * Admitted pro hac vice
25
26
27
28
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1 I, Peter A. Patterson, declare as follows:

2 1. I am an attorney licensed to practice law in the State of Ohio and am admitted pro hac vice
3 in this case. I am an associate at the law firm of Cooper & Kirk, PLLC, counsel of record for
4 Defendant-Intervenors Dennis Hollingsworth, Gail Knight, Martin Gutierrez, Mark Jansson, and
5 ProtectMarriage.com (“Proponents”). I make this declaration in support of Proponents’ Motion for
6 Administrative Relief.
7 2. After closing arguments were held on June 16, 2010, Proponents requested Plaintiffs and
8 Plaintiff-Intervenor promptly to return all copies of the trial video in their possession to the Court,
9 but they denied the request.
10 3. A stipulation could not be reached in this matter because Plaintiffs and Plaintiff-Intervenor
11 declined Proponents’ request to return to the Court all copies of the trial video in their possession.
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1
t-
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I I declare, under penalty of perjury under the laws of the United States, that these facts are true and
2 correct and that this Declaration is executed this 29th day of June,2Ol0, at Cincinnati, Ohio.
J
Dated: June 29, 2010
4
10
11
t2
13
l4
15
l6
17
18
t9
20
21
))
23
24
25
26
27
28
DECLARATION OF PETER A. PATTERSON IN SUPPORT OF DEW'

MOTION FOR ADMINISTF.ATIVE RELIEF
CASENO. O9-CV-2292VRW
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4

Charles J. Cooper (DC Bar No. 248070)*
2 ccooper@cooperkirk.com
David H. Thompson (DC Bar No. 450503)*
3 dthompson@cooperkirk.com
Howard C. Nielson, Jr. (DC Bar No. 473018)*
4 hnielson@cooperkirk.com
Nicole J. Moss (DC Bar No. 472424)*
5 nmoss@cooperkirk.com
Peter A. Patterson (OH Bar No. 0080840)*
6 ppatterson@cooperkirk.com
1523 New Hampshire Ave. N.W., Washington, D.C. 20036
8 LAW OFFICES OF ANDREW P. PUGNO

Andrew P. Pugno (CA Bar No. 206587)
9 andrew@pugnolaw.com

Brian W. Raum (NY Bar No. 2856102)*
12 braum@telladf.org
James A. Campbell (OH Bar No. 0081501)*
13 jcampbell@telladf.org
15100 North 90th Street, Scottsdale, Arizona 85260
15 ATTORNEYS FOR DEFENDANT-INTERVENORS DENNIS HOLLINGSWORTH,

GAIL J. KNIGHT, MARTIN F. GUTIERREZ, MARK A. JANSSON,
16 and PROTECTMARRIAGE.COM – YES ON 8, A
PROJECT OF CALIFORNIA RENEWAL
17
18
20 KRISTIN M. PERRY, SANDRA B. STIER, PAUL

T. KATAMI, and JEFFREY J. ZARRILLO, CASE NO. 09-CV-2292 VRW
21
DEFENDANT-INTERVENORS
Plaintiffs, DENNIS HOLLINGSWORTH, GAIL
22
J. KNIGHT, MARTIN F. GUTIERREZ,
23 CITY AND COUNTY OF SAN FRANCISCO, MARK A. JANSSON,
AND PROTECTMARRIAGE.COM’S
24 Plaintiff-Intervenor, MOTION FOR ADMINISTRATIVE
RELIEF
25 v.
26
27 capacity as Governor of California; EDMUND G.
BROWN, JR., in his official capacity as Attorney
28 General of California; MARK B. HORTON, in his
DEFENDANT-INTERVENORS’ MOTION FOR ADMINISTRATIVE RELIEF

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1 official capacity as Director of the California

Department of Public Health and State Registrar of
2 Vital Statistics; LINETTE SCOTT, in her official
capacity as Deputy Director of Health Information
3
& Strategic Planning for the California Department
4 of Public Health; PATRICK O’CONNELL, in his
official capacity as Clerk-Recorder for the County
5 of Alameda; and DEAN C. LOGAN, in his official
capacity as Registrar-Recorder/County Clerk for
6 the County of Los Angeles,
7
Defendants,
8
and
9
10 DENNIS HOLLINGSWORTH, GAIL J.
KNIGHT, MARTIN F. GUTIERREZ, HAK-
11 SHING WILLIAM TAM, and MARK A.
JANSSON; and PROTECTMARRIAGE.COM –
12 YES ON 8, A PROJECT OF CALIFORNIA
RENEWAL,
13
Defendant-Intervenors.
14
15
Additional Counsel for Defendant-Intervenors
16

Timothy Chandler (CA Bar No. 234325)
18 tchandler@telladf.org
20 Jordan W. Lorence (DC Bar No. 385022)*

jlorence@telladf.org
21 Austin R. Nimocks (TX Bar No. 24002695)*
animocks@telladf.org
22 801 G Street NW, Suite 509, Washington, D.C. 20001
23
24
25
26
27
28

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1 TO THE PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE

2 NOTICE that pursuant to Civ. L.R. 7-11, Defendant-Intervenors Hollingsworth, Knight, Gutierrez,
3 Jansson, and ProtectMarriage.com (“Proponents”) hereby move the Court for an order requiring
4 Plaintiffs and Plaintiff-Intervenor to return to the Court immediately all copies of the trial video in
5 their possession.
6 BACKGROUND
7 On January 13, 2010, the Supreme Court stayed this Court’s order that the trial proceedings
8 in this case be recorded and broadcast beyond the San Francisco federal courthouse. Hollingsworth
9 v. Perry, 130 S. Ct. 705, 714-15 (2010). The stay remains in effect. Id.
10 In court the next day, Proponents asked “for clarification … that the recording of these
11 proceedings has been halted, the tape recording itself.” Trial Tr. 753. When the Court responded
12 that the recording had “not been altered,” Proponents reiterated that, “in light of the stay, … the
13 court’s local rule … prohibit[s] continued tape recording of the proceedings.” Id. at 753-54
14 (emphasis added). Rejecting Proponents’ objection, the Court stated that the “local rule permits …
15 recording for purposes of use in chambers and that is customarily done when we have these remote
16 courtrooms or the overflow courtrooms.” Id. (emphasis added). The Court concluded, “that’s the
17 purpose for which the recording is going to be made going forward.” Id.
18 On May 31, the Court sua sponte announced: “In the event any party wishes to use portions
19 of the trial recording during closing arguments, a copy of the video can be made available to the
20 party.” Doc #672 at 2. Plaintiffs and Plaintiff-Intervenor each requested and obtained copies of the
21 trial video—the former requesting the entire video, the latter the testimony of certain witnesses.
22 See Doc ##674, 675.
23 Closing arguments were held on June 16. Proponents thereafter requested Plaintiffs and
24 Plaintiff-Intervenor promptly to return all copies of the trial video in their possession to the Court,
25 but they denied the request. See Decl. or Peter A. Patterson in Support of Proponents’ Motion for
26 Administrative Relief.
27 ARGUMENT
28 Now that closing arguments are complete, the sole purpose identified by this Court for
1
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1 disseminating copies of the trial video to Plaintiffs and Plaintiff-Intervenor—potential use at

2 closing argument—has been satisfied. There is simply no legitimate justification for permitting
3 Plaintiffs and Plaintiff-Intervenor to maintain possession of copies of the trial video.
4 What is more, in issuing its stay order, the Supreme Court held that “irreparable harm”
5 would “likely result” from public broadcast of the trial. Hollingsworth, 130 S. Ct. at 712. The risk
6 of such harm, of course, does not depend on the means by which a trial recording is made public.
7 And even with this Court’s requirement that all copies of the trial video be “maintain[ed] as strictly
8 confidential,” Doc #672 at 2, it cannot be denied that dissemination beyond the confines of the
9 Court has increased the possibility of accidental public disclosure. In light of this possibility, we
10 respectfully submit that there is no justification for this Court to permit Plaintiffs and Plaintiff-
11 Intervenor to maintain copies of the trial recording.
12 CONCLUSION
13 For these reasons, Proponents request an order directing Plaintiffs and Plaintiff-Intervenor
14 to return to the Court immediately all copies of the trial video in their possession.
15
16 Dated: June 29, 2010

ATTORNEYS FOR DEFENDANT-INTERVENORS
18 DENNIS HOLLINGSWORTH, GAIL J. KNIGHT,
MARTIN F. GUTIERREZ, MARK A. JANSSON, AND
19 PROTECTMARRIAGE.COM – YES ON 8, A PROJECT
OF CALIFORNIA RENEWAL
20
By: /s/Charles J. Cooper
21 Charles J. Cooper
22
23
24
25
26
27
28
2
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1 GIBSON, DUNN & CRUTCHER LLP

Theodore B. Olson, SBN 38137
2 tolson@gibsondunn.com
Matthew D. McGill, pro hac vice
3 1050 Connecticut Avenue, N.W., Washington, D.C. 20036
4 Theodore J. Boutrous, Jr., SBN 132009
tboutrous@gibsondunn.com
5 Christopher D. Dusseault, SBN 177557
Ethan D. Dettmer, SBN 196046
6 333 S. Grand Avenue, Los Angeles, California 90071
David Boies, pro hac vice
8 dboies@bsfllp.com
333 Main Street, Armonk, New York 10504
Jeremy M. Goldman, SBN 218888
10 jgoldman@bsfllp.com
1999 Harrison Street, Suite 900, Oakland, California 94612
Attorneys for Plaintiffs
12 KRISTIN M. PERRY, SANDRA B. STIER,
PAUL T. KATAMI, and JEFFREY J. ZARRILLO
13 Dennis J. Herrera, SBN 139669
Therese M. Stewart, SBN 104930
14 Danny Chou, SBN 180240
15 One Dr. Carlton B. Goodlett Place
San Francisco, California 94102-4682
16 Telephone: (415) 554-4708, Facsimile (415) 554-4699
Attorneys for Plaintiff-Intervenor

19
20 KRISTIN M. PERRY, et al., CASE NO. 09-CV-2292 VRW

Plaintiffs,
21 PLAINTIFFS’ AND PLAINTIFF-
and INTERVENOR’S OPPOSITION TO
22 DEFENDANT-INTERVENORS’ MOTION
CITY AND COUNTY OF SAN FRANCISCO, FOR ADMINISTRATIVE RELIEF
Trial: January 11-27, 2010
v.
24 Closing: June 16, 2010
ARNOLD SCHWARZENEGGER, et al.,
Defendants, Magistrate Judge Joseph C. Spero
26 and
Location: Courtroom 6, 17th Floor
27 DENNIS HOLLINGSWORTH, et al.,
Gibson, Dunn &

Crutcher LLP
09-CV-2292 VRW PLAINTIFFS’ AND PLAINTIFF-INTERVENOR’S OPPOSITION TO
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1 Plaintiffs and Plaintiff-Intervenor respectfully request that the Court deny Defendant-
2 Intervenors’ motion for administrative relief. Doc #696. On May 31, 2010, the Court informed the
3 parties that the trial video would be made available “[i]n the event any party wishes to use portions of
4 the trial recording during closing arguments.” Doc #672. The Court stated that “[p]arties will of
5 course be obligated to maintain as strictly confidential any copy of the video pursuant to paragraph
6 7.3 of the protective order, Doc #425.” Id. Plaintiffs and Plaintiff-Intervenor both requested copies
7 of the trial video, Docs #674, 675, and Plaintiffs used portions of the video during closing argument.
8 Because this Court has yet to issue its decision and may request additional arguments or
9 briefing before doing so, Defendant-Intervenors’ request for the immediate return of the trial video
10 should be denied as premature. Plaintiffs and Plaintiff-Intervenor respectfully propose that once
11 judgment is entered, the parties and the Court evaluate whether, and to what degree, the trial
12 recording would be useful to the parties or to the Court in connection with any additional proceedings
13 and/or appeal. In the meantime, the protective order remains in place and ensures that the trial
14 recording will not be publicly disclosed.
15 Respectfully submitted,
16 DATED: June 29, 2010 GIBSON, DUNN & CRUTCHER LLP

Theodore B. Olson
17
Theodore J. Boutrous, Jr.
18 Christopher D. Dusseault
Ethan D. Dettmer
19 Matthew D. McGill
Amir C. Tayrani
20 Sarah E. Piepmeier
21 Theane Evangelis Kapur
Enrique A. Monagas
22
23
By: /s/
24 Theodore B. Olson
25 and
26 ///
27 ///
28 ///
Gibson, Dunn & 1

Crutcher LLP
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4

David Boies
2 Steven C. Holtzman
3 Jeremy M. Goldman
Rosanne C. Baxter
4 Richard J. Bettan
Beko O. Richardson
5 Theodore H. Uno
Joshua Irwin Schiller
6
7 Attorneys for Plaintiffs

KRISTIN M. PERRY, SANDRA B. STIER,
8 PAUL T. KATAMI, and JEFFREY J. ZARRILLO
9 DENNIS J. HERRERA
City Attorney
10
THERESE M. STEWART
11 Chief Deputy City Attorney
DANNY CHOU
12 Chief of Complex and Special Litigation
RONALD P. FLYNN
13 VINCE CHHABRIA
ERIN BERNSTEIN
14
CHRISTINE VAN AKEN
15 MOLLIE M. LEE
Deputy City Attorneys
16
17
By: /s/
18 Therese M. Stewart
19 Attorneys for Plaintiff-Intervenor
21
22
23
24
25
26
27
28
Gibson, Dunn & 2

Crutcher LLP
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4
1 ATTESTATION PURSUANT TO GENERAL ORDER NO. 45
2 Pursuant to General Order No. 45 of the Northern District of California, I attest that
3 concurrence in the filing of the document has been obtained from each of the other signatories to this
4 document.
5 By: /s/
Theodore B. Olson
6
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Gibson, Dunn &

Crutcher LLP
09-CV-2292 VRW ATTESTATION PURSUANT TO GENERAL ORDER NO. 45

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EXHIBIT 28
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1
IN THE UNITED STATES DISTRICT COURT
2
FOR THE NORTHERN DISTRICT OF CALIFORNIA
3
4
KRISTIN M PERRY, SANDRA B STIER,
5 PAUL T KATAMI and JEFFREY J
ZARRILLO,
6
Plaintiffs,
7
8
Plaintiff-Intervenor,
9
v
10
11 official capacity as Governor of

California; EDMUND G BROWN JR, in

12 his official capacity as Attorney
General of California; MARK B No C 09-2292 VRW
13 HORTON, in his official capacity
as Director of the California PRETRIAL PROCEEDINGS AND
14 Department of Public Health and TRIAL EVIDENCE
State Registrar of Vital
15 Statistics; LINETTE SCOTT, in her g
official capacity as Deputy
16 Director of Health Information & CREDIBILITY DETERMINATIONS
Strategic Planning for the
17 California Department of Public g
Health; PATRICK O’CONNELL, in his
18 official capacity as Clerk- FINDINGS OF FACT
Recorder of the County of
19 Alameda; and DEAN C LOGAN, in his g
official capacity as Registrar-
20 Recorder/County Clerk for the CONCLUSIONS OF LAW
County of Los Angeles,
21 g
Defendants,
22 ORDER
DENNIS HOLLINGSWORTH, GAIL J
23 KNIGHT, MARTIN F GUTIERREZ, HAK-
SHING WILLIAM TAM, MARK A
24 JANSSON and PROTECTMARRIAGE.COM –
25 RENEWAL, as official proponents
of Proposition 8,
26
27 /
28
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1 Defendant-intervenors, the official proponents of

2 Proposition 8 under California election law (“proponents”), were
3 granted leave in July 2009 to intervene to defend the
4 constitutionality of Proposition 8. Doc #76. On January 8, 2010,
5 Hak-Shing William Tam, an official proponent and defendant-
6 intervenor, moved to withdraw as a defendant, Doc #369; Tam’s
7 motion is denied for the reasons stated in a separate order filed
8 herewith. Plaintiff-intervenor City and County of San Francisco
9 (“CCSF” or “San Francisco”) was granted leave to intervene in
10 August 2009. Doc #160 (minute entry).
11 The court denied plaintiffs’ motion for a preliminary

12 injunction on July 2, 2009, Doc #77 (minute entry), and denied

13 proponents’ motion for summary judgment on October 14, 2009, Doc
14 #226 (minute entry). Proponents moved to realign the Attorney
15 General as a plaintiff; the motion was denied on December 23, 2009,
16 Doc #319. Imperial County, a political subdivision of California,
17 sought to intervene as a party defendant on December 15, 2009, Doc
18 #311; the motion is denied for the reasons addressed in a separate
19 order filed herewith.
20 The parties disputed the factual premises underlying
21 plaintiffs’ claims and the court set the matter for trial. The
22 action was tried to the court January 11-27, 2010. The trial
23 proceedings were recorded and used by the court in preparing the
24 findings of fact and conclusions of law; the clerk is now DIRECTED
25 to file the trial recording under seal as part of the record. The
26 parties may retain their copies of the trial recording pursuant to
27 the terms of the protective order herein, see Doc #672.
28 \\
4
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1 Proponents’ motion to order the copies’ return, Doc #698, is

2 accordingly DENIED.
3
4 PLAINTIFFS’ CASE AGAINST PROPOSITION 8
5 The Due Process Clause provides that no “State [shall]
6 deprive any person of life, liberty, or property, without due
7 process of law.” US Const Amend XIV, § 1. Plaintiffs contend that
8 the freedom to marry the person of one’s choice is a fundamental
9 right protected by the Due Process Clause and that Proposition 8
10 violates this fundamental right because:
11 1. It prevents each plaintiff from marrying the person of

his or her choice;

12
2. The choice of a marriage partner is sheltered by the
13 Fourteenth Amendment from the state’s unwarranted
usurpation of that choice; and
14
3. California’s provision of a domestic partnership —— a
15 status giving same-sex couples the rights and
responsibilities of marriage without providing marriage
16 —— does not afford plaintiffs an adequate substitute for
marriage and, by disabling plaintiffs from marrying the
17 person of their choice, invidiously discriminates,
without justification, against plaintiffs and others who
18 seek to marry a person of the same sex.
19 The Equal Protection Clause provides that no state shall
20 “deny to any person within its jurisdiction the equal protection of
21 the laws.” US Const Amend XIV, § 1. According to plaintiffs,
22 Proposition 8 violates the Equal Protection Clause because it:
23 1. Discriminates against gay men and lesbians by denying
them a right to marry the person of their choice whereas
24 heterosexual men and women may do so freely; and
25 2. Disadvantages a suspect class in preventing only gay men
and lesbians, not heterosexuals, from marrying.
26
27 Plaintiffs argue that Proposition 8 should be subjected to
28 heightened scrutiny under the Equal Protection Clause because gays
5
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EXHIBIT 29
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No. _________
================================================================
In The
Supreme Court of the United States
---------------------------------♦---------------------------------
Petitioners,
v.
KRISTIN M. PERRY, et al.,
Respondents.
---------------------------------♦---------------------------------
On Petition For A Writ Of Certiorari

To The United States Court Of Appeals
For The Ninth Circuit
---------------------------------♦---------------------------------
PETITION FOR A WRIT OF CERTIORARI
---------------------------------♦---------------------------------
CHARLES J. COOPER
Counsel of Record
MICHAEL W. KIRK
JESSE M. PANUCCIO
COOPER & KIRK, PLLC
1523 New Hampshire Avenue, NW
(202) 220-9600
ccooper@cooperkirk.com
April 8, 2010 Counsel for Petitioners
================================================================
COCKLE LAW BRIEF PRINTING CO. (800) 225-6964
OR CALL COLLECT (402) 342-2831
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11
order denying the mandamus petition, and remand to

the Ninth Circuit with instructions to dismiss the
mandamus petition. See United States v. Munsing-
wear, Inc., 340 U.S. 36 (1950).
I. Petitioners’ Mandamus Petition Is Moot

An “actual controversy must be extant at all
stages of review.” Alvarez v. Smith, 130 S. Ct. 576,
580 (2009) (quotation marks omitted). Where there
had been but “no longer [is] any actual controversy
between the parties,” the case is moot. See id. at 580-
81. The district court’s actions subsequent to the
Court’s issuance of the stay appear to have
eliminated the controversy underlying Petitioners’
mandamus petition and thus to have rendered that
petition moot.
The district court has withdrawn its January
7 order allowing audio-video recording and public
broadcast of the trial proceedings and, concomitantly,
Chief Judge Kozinski has rescinded his order ap-
proving the district court’s broadcast order. The dis-
trict court has also withdrawn the amendment to
Local Rule 77-3 that purportedly authorized its broad-
cast order. Most importantly, the district court re-
peatedly and unequivocally assured Petitioners that
its continued recording of the trial proceedings was
not for the purpose of public dissemination, but rather
solely for that court’s use in chambers. And the
district court has stated that it has not requested
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authorization to publicly broadcast the closing

argument.
As a result of these post-stay actions by the dis-
trict court, Petitioners have, in effect, obtained the re-
lief they sought through their mandamus petition;
namely, preventing the district court from enforcing
its order to allow the trial proceedings to be broadcast
publicly or to be recorded for later public dissem-
ination. Indeed, Plaintiffs themselves have acknowl-
edged the “fact that these proceedings would not be
broadcast to the public in any form” after the district
court “withdrew its request to broadcast the pro-
ceedings to other federal courthouses and made clear
that no such broadcast would take place.” App. 26-27.
Petitioners’ mandamus petition, therefore, appears
to be moot. See Williams v. Simons, 355 U.S. 49, 57
(1957) (“By vacating the temporary restraining order
and dismissing the complaint, the District Court has
brought to pass one alternative of the order peti-
tioners would have this Court issue, thus rendering
the petition for all practical purposes moot.”); Cotlow
v. Emison, 502 U.S. 1068 (1992) (“The order of Janu-
ary 10, 1992, having vacated the order from which the
appeal is taken, the appeal is dismissed as moot.”).
II. The Court Should Vacate the Ninth Cir-

cuit’s Order Denying the Mandamus Peti-
tion and Remand for Dismissal
“The established practice of the Court in dealing
with a civil case from a court in the federal system
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13
which has become moot while on its way here or

pending [the Court’s] decision on the merits is to
reverse or vacate the judgment below and remand
with a direction to dismiss.” Munsingwear, 340 U.S.
at 39; see also Alvarez, 130 S. Ct. at 581; 28 U.S.C.
§ 2106. Because Petitioners did not “cause[ ] the
mootness by voluntary action,” the Court “should
follow [its] ordinary practice” in this case: vacate the
Ninth Circuit’s order denying the mandamus petition
and remand to the Ninth Circuit with instructions to
dismiss the mandamus petition as moot. Alvarez, 130
S. Ct. at 582-83 (quotation marks omitted); see also,
e.g., Joint Sch. Dist. No. 241 v. Harris, 515 U.S. 1154,
1155 (1995) (“The petitions for writs of certiorari are
granted. The judgment is vacated and the cases are
remanded to the United States Court of Appeals for
the Ninth Circuit with directions to dismiss as
moot.”) (citing Munsingwear).
---------------------------------♦---------------------------------
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EXHIBIT 30
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Supreme Court of the United States
No. 09-1238
DENNIS HOLLINGSWORTH, ET AL.,

Petitioners
v.

FOR THE NORTHERN DISTRICT OF CALIFORNIA, ET AL.
ON PETITION FOR WRIT OF CERTIORARI to the United States
Court of Appeals for the Ninth Circuit.
THIS CAUSE having been submitted on the petition for writ of certiorari
and the response thereto.
ON CONSIDERATION WHEREOF, it is ordered and adjudged by this
Court that the petition for writ of certiorari is granted. The judgment of the above
court is vacated with costs, and the case is remanded to the United States Court of
Appeals for the Ninth Circuit with instructions to dismiss the case as moot. See
United States v. Munsingwear, Inc., 340 U.S. 36 (1950).
IT IS FURTHER ORDERED that the petitioners Dennis Hollingsworth, et
al. recover from United States District Court for the Northern District of California,
et al. Three Hundred Dollars ($300.00) for costs herein expended.
October 4, 2010
Clerk’s costs: $300.00

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EXHIBIT 31
Case:
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FILED
UNITED STATES COURT OF APPEALS OCT 15 2010

FOR THE NINTH CIRCUIT U .S. C O U R T OF APPE ALS
DENNIS HOLLINGSWORTH, et al., No. 10-70063
Petitioners, D.C. No. 3:09-cv-02292-VRW

Northern District of California,
v. San Francisco

FOR THE NORTHERN DISTRICT OF ORDER
CALIFORNIA,
Respondent,
KRISTIN M. PERRY; et al.,
Real Parties in Interest.
Before: SILVERMAN, PAEZ and BEA, Circuit Judges.
On October 4, 2010, the United States Supreme Court granted the petition
for writ of certiorari and vacated the judgment and remanded with instructions to
dismiss this petition as moot. Accordingly, this court’s January 8, 2010 order is
vacated and the petition for writ of mandamus is denied as moot.
KS/MOATT
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OFFICE04/27/2011
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NINTH CIRCUIT CURRENT AND FUTURE VACANCY TABLE
Court Vacancy in Date By Reason of Nominee (If Any) Date Status of Nomination Last
Authorized Judgeship Vacancy Nominated Action (such as referred to
Created Senate Jud. Com.)
Court of Stephen S. Trott 12-31-04 Senior Status No nominee
Appeals Pub. L 110-177 1-21-09 New Position Goodwin Liu 2-24-10, Senate Jud. Com. hearing
9-13-10, held on 3-2-11
1-5-11
Andrew J. Kleinfeld 6-12-10 Senior Status No nominee
Mary M. Schroeder 1-1-12 Senior Status No nominee
Alaska John W. Sedwick 3-13-11 Senior Status No nominee
Arizona Frank R. Zapata 8-3-10 Senior Status No nominee
Mary Helen Murguia 12-22-10 Elevated No nominee
John M. Roll 1-8-11 Deceased No nominee
Cent. Cal. Florence-Marie Cooper 1-15-10 Deceased John A. Kronstadt 11-17-10, Senate Jud. Com. approval on
1-5-11 3-10-11
Stephen G. Larson 11-2-09 Resigned No nominee
A. Howard Matz 7-11-11 Senior Status No nominee
No. Cal. Martin J. Jenkins 4-3-08 Resigned Edward M. Chen 8-6-09, Senate Jud. Com. approval on
1-20-10, 3-17-11
9-13-10
1-5-11
Vaughn R. Walker 2-28-11 Retirement No nominee
Last updated 3-17-11

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Court Vacancy in Date By Reason of Nominee (If Any) Date Status of Nomination Last
Authorized Judgeship Vacancy Nominated Action (such as referred to
Created Senate Jud. Com.)
So. Cal Jeffrey T. Miller 6-6-10 Senior Status No nominee
Thomas J. Whelan 8-15-10 Senior Status No nominee
Montana Donald W. Molloy 8-16-01 Senior Status No nominee

Nevada Roger L. Hunt 5-26-11 Senior Status No nominee
NMI Alex R. Munson 2-28-10 Retirement Ramona Villagomez 1-26-11 Senate Jud. Com. hearing
Manglona held on 3-16-11
Oregon Ancer L. Haggerty 8-26-09 Senior Status Michael H. Simon 7-14-10, Senate Jud. Com. approval on
1-5-11 2-17-11
East. Wa. Robert H. Whaley 7-12-09 Senior Status No nominee
Last updated 3-17-11

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EXHIBIT 33
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REPORT OF THE PROCEEDINGS

OF THE JUDICIAL CONFERENCE
OF THE UNITED STATES
September 14, 2010
The Judicial Conference of the United States convened in Washington,

D.C., on September 14,2010, pursuant to the call ofthe ChiefJustice of the
United States issued under 28 U.S.C. § 331. The ChiefJustice presided, and
the following members ofthe Conference were present:
First Circuit:
Chief Judge Sandra L. Lynch

ChiefJudge Mark L. Wolf,
District of Massachusetis
Second Circuit:
Chief Judge Dennis Jacobs

Chief Judge William K. Sessions III,
District of Vermont
Third Circuit:
Chief Judge Theodore A. McKee

Chief Judge Harvey Bartle III,
Fourth Circuit:
Chief Judge William B. Traxler, Jr.

Judge James P. Jones,
Western District of Virginia
Fifth Circuit:
Chief Judge Edith Hollan Jones

Judge Sim Lake III,
Southern District of Texas
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Judicial Conference of the United States September 14, 2010
cost-containment initiatives to date and noted that the long-term financial

health of the judiciary will be aided by future cost-containment efforts that
provide tangible cost savings or avoidances.
COMMITTEE ON CODES OF CONDUCT
COMMITTEE ACTIVITIES
The Committee on Codes of Conduct reported that since its last report
to the Judicial Conference in March 2010, the Committee received 17
new written inquiries and issued 17 written advisory responses. During this
period, the average response time for requests was 22 days. In addition, the
Committee chair responded to 159 informal inquiries, individual Committee
members responded to 133 informal inquiries, and Committee counsel
responded to 358 informal inquiries.
COMMITTEE ON COURT ADMINISTRATION

AND CASE MANAGEMENT
CAMERAS IN THE COURTROOM PILOT PROJECT
On recommendation ofthe Committee on Court Administration and

Case Management, the Judicial Conference authorized 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. The pilot
project will proceed in accordance with the tenets outlined below, and is
subject to definition and review by the Committee. In addition, the
Committee will request that a study ofthe pilot be conducted by the Federal
Judicial Center.
a. The pilot will be national in scope and consist of up to 150 individual

judges from districts chosen to participate by the Federal Judicial
Center, in consultation with the Court Administration and Case
Management Committee. The pilot project should include a national
survey of all district judges, whether or not they participate in the pilot,
to determine their views on cameras in the courtroom.
II
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Judicial Conference of the United States September 14, 2010
b. The pilot will last up to three years, with interim reports prepared by
the Federal Judicial Center after the first and second years.
c. The pilot will be limited to civil cases only.
d. Courts participating in the pilot will record proceedings, and

recordings by other entities or persons will not be allowed.
e. Parties in a trial must consent to participating in the pilot.
f. Recording of members of a jury will not be permitted at any time.
g. Courts participating in the pilot should - if necessary - amend their

local rules (providing adequate public notice and opportunity to
comment) to provide an exception for judges participating in the
Judicial Conference-authorized pilot proj ect.
h. The Court Administration and Case Management Committee is

authorized to issue and amend guidelines to assist the pilot
participants.
I. The Administrative Office is authorized to provide funding to the

courts with participating judges - if needed - for equipment and
training necessary to participate in the pilot.
PACER ACCESS TO CERTAIN BANKRUPTCY FILINGS
Under the Judicial Conference policy on privacy and public access to

electronic case files, bankruptcy filings should include only the last four digits
of filers' social security numbers on their petitions and other public documents
(JCUS-SEP/OCT 01, pp. 48-50). However, documents filed prior to
implementation of the policy in 2003 are still available on the Public Access
to Court Electronic Records (PACER) system and contain the debtors' full
social security numbers, creating privacy concerns. To address those
concerns, on recommendation of the Committee, the Judicial Conference
agreed to amend its privacy policy to restrict public access through PACER to
documents in bankruptcy cases that were filed before December 1, 2003 and
have been closed for more than one year, with the following conditions:
12
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No. 10-16696
Argued December 6, 2010
(Reinhardt, Hawkins, N. Smith)
IN THE UNITED STATES COURT OF APPEALS

_________________________

v.
EDMUND G. BROWN, JR., et al.,
Defendants,
and
Defendants-Intervenors-Appellants.
_________________________
On Appeal From The United States District Court
For The Northern District Of California
No. CV-09-02292 JW (Honorable James Ware)
____________________________________________________
PLAINTIFFS-APPELLEES’ OPPOSITION TO APPELLANTS’ MOTION REGARDING
TRIAL RECORDINGS AND PLAINTIFFS-APPELLEES’ MOTION TO UNSEAL
____________________________________________________
DAVID BOIES THEODORE B. OLSON
JEREMY M. GOLDMAN Counsel of Record
THEODORE H. UNO MATTHEW D. MCGILL
BOIES, SCHILLER & FLEXNER LLP AMIR C. TAYRANI
333 Main Street GIBSON, DUNN & CRUTCHER LLP
Armonk, New York 10504 1050 Connecticut Avenue, N.W.
(914) 749-8200 Washington, D.C. 20036
(202) 955-8500
THEODORE J. BOUTROUS, JR.
CHRISTOPHER D. DUSSEAULT
ENRIQUE A. MONAGAS
GIBSON, DUNN & CRUTCHER LLP
333 South Grand Avenue
Los Angeles, CA 90071
(213) 229-7804
Attorneys for Plaintiffs-Appellees
Kristin M. Perry, Sandra B. Stier, Paul T. Katami, and Jeffrey J. Zarrillo
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TABLE OF CONTENTS
Page
INTRODUCTION......................................................................................................1
ARGUMENT .............................................................................................................3
I. The First Amendment Mandates Public Access To Trial

Records ..................................................................................................3
II. This Motion Is Otherwise Deficient And Improper..............................6
III. The Recordings Of The Trial Should Be Unsealed ..............................9
CONCLUSION ........................................................................................................11
i
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Page(s)
Cases
ABC, Inc. v. Stewart,
360 F.3d 90 (2d Cir. 2004) ..............................................................................4
Associated Press v. United States Dist. Court,
705 F.2d 1143 (9th Cir. 1983) .........................................................................3
Brown & Williamson Tobacco Corp. v. FTC,
710 F.2d 1165 (6th Cir. 1983) .....................................................................5, 9
Craig v. Harney,
331 U.S. 367 (1947) ........................................................................................1
Globe Newspaper Co. v. Superior Court,
457 U.S. 596 (1982) ....................................................................................2, 3
130 S. Ct. 705 (2010).......................................................................................8
In re Continental Illinois Sec. Litig.,
732 F.2d 1302 (7th Cir. 1984) .......................................................................10
Marrese v. Am. Academy of Orthopaedic Surgeons,
470 U.S. 373 (1985) ........................................................................................6
NBC Subsidiary (KNBC-TV), Inc. v. Superior Court,
980 P.2d 337 (Cal. 1999).................................................................................5
435 U.S. 589 (1978) ......................................................................................10
Oregonian Publ’g Co. v. United States Dist. Court,
920 F.2d 1462 (9th Cir. 1990) .........................................................................4
Press-Enterprise Co. v. Superior Court,
464 U.S. 501 (1984) ........................................................................................4
Publicker Indus. v. Cohen,
733 F.2d 1059 (3d Cir. 1984) ................................................................... 9, 10
ii
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TABLE OF AUTHORITIES (continued)

Page(s)
Richmond Newspapers v. Virginia,

448 U.S. 555 (1980) ........................................................................................4
Rushford v. New Yorker Magazine, Inc.,
846 F.2d 249 (4th Cir. 1988) .........................................................................10
Seattle Times Co. v. United States Dist. Court,
845 F.2d 1513 (9th Cir. 1988) .......................................................................10
Statutes
28 U.S.C. § 1291........................................................................................................6
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INTRODUCTION
“What transpires in the court room is public property.” Craig v. Harney, 331
U.S. 367, 374 (1947). In January 2010, the United States District Court for the North-
ern District of California conducted a historic, 12-day public trial on an issue of great
legal importance and public interest: whether the State of California violated the Due
Process and Equal Protection rights of gay men and lesbians when it stripped them of
the fundamental right to marry by passing Proposition 8. Through the present Motion,
the Proponents of Proposition 8 seek to sequester and forever conceal from the Ameri-
can people video that accurately and without adornment depicts the testimony and ar-
gument each party presented at trial, and that the trial court considered when reaching
the decision that Proponents now challenge. Although Proponents neither appealed
the trial court’s decision to record the trial nor objected to the court’s decision to allow
the parties to use the video in closing arguments, Proponents now complain of an ex-
tremely limited use of a snippet of those tapes by the now-retired trial judge in an ef-
fort to educate the public about our judicial system and proceedings. Proponents’
fierce determination to shield access by any member of the American public to the ac-
tual compelling evidence which demonstrated the unconstitutionality of Proposition 8
and the paucity of evidence that Proponents presented in its defense directly conflicts
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with this Nation’s constitutional commitment to public and open judicial process and
serves no legitimate public end. This Court should deny Proponents’ motion.
Although Proponents believe that it is somehow too dangerous to allow more of
the public to see what transpired in a public trial in a public courtroom, public access
to trials “protect[s] the free discussion of governmental affairs” that is essential to the
ability of “the individual citizen . . . [to] effectively participate in and contribute to our
republican system of self-government.” Globe Newspaper Co. v. Superior Court, 457
U.S. 596, 604 (1982) (internal quotation marks omitted). Proponents’ contention that,
by showing an accurate recording of a small part of a public trial, Chief Judge Walker
somehow engaged in conduct prejudicial to the administration of justice (see Pet. Mot.
14), stands the First Amendment on its head.
After the broadcast of just three minutes of a three-week public trial, and al-
though Plaintiffs and Plaintiff-Intervenors have scrupulously adhered to the protective
order in this case, Proponents ask this Court to require return of “all copies of the trial
recordings in the possession, custody, or control of any party to this case or former
judge Walker.” Pet. Mot. 20. Thus, although Proponents expended tens of millions of
dollars on a public campaign to restore discrimination in California that the state Su-
preme Court had struck down, they now seek to prevent the public from ever observ-
ing first-hand their efforts in a public courtroom to defend that discrimination and the
2
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exposure of those efforts to the acid test of cross-examination in open court. The pre-
sent motion is their latest attempt to prevent the public from witnessing that trial.
There was no reason to keep the video of this trial under the cover of darkness
in the first place. Indeed, videos of two of the Proponents’ experts and one of the of-
ficial Proponents of Proposition 8 are already available on the district court’s website.
https://ecf.cand.uscourts.gov/cand/09cv2292/evidence/index.html. The 13-volume
trial transcript is part of the public record and widely available on the internet. So too
are reenactment videos of actors reading those transcripts widely available, including
on YouTube. Accordingly, this Court should not only deny Proponents’ motion, it
should order the video’s immediate release to allow the public to see the rest of the ac-
tual witnesses rather than being limited to actors’ portrayals.
ARGUMENT
I. The First Amendment Mandates Public Access To Trial Records
Public trials are a cornerstone of our democracy. Access to judicial proceedings
is necessary “to protect the free discussion of governmental affairs” essential to our
democracy. Globe Newspaper Co., 457 U.S. at 604. Public access to trials and trial
records is so important that even a 48-hour delay in unsealing judicial records “is a to-
tal restraint on the public’s first amendment right of access even though the restraint
is limited in time.” Associated Press v. United States Dist. Court, 705 F.2d 1143,
3
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1147 (9th Cir. 1983) (emphasis added). Consequently, “[u]nder the first amendment,
the press and the public have a presumed right of access to court proceedings and
documents.” E.g., Oregonian Publ’g Co. v. United States Dist. Court, 920 F.2d 1462,
1465 (9th Cir. 1990) (citing Press-Enterprise Co. v. Superior Court, 464 U.S. 501,
510 (1984)).
Further, because “it is difficult for [people] to accept what they are prohibited
from observing” (Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 572 (1980)
(plurality), the First Amendment guarantees free and open access to judicial proceed-
ings in order to foster public confidence in the judicial system. Indeed, “[o]ur national
experience instructs us that except in rare circumstances openness preserves, indeed, is
essential to, the realization of that right and to public confidence in the administration
of justice. The burden is heavy on those who seek to restrict access to the media, a vi-
tal means to open justice . . . .” ABC, Inc. v. Stewart, 360 F.3d 90, 105-06 (2d Cir.
2004). A trial adjudicating an issue as important and as closely-watched as Califor-
nia’s elimination of the constitutional right of gay men and lesbians to marry requires
the maximum public access guaranteed by these First Amendment values.
Despite the strong public policy favoring public trials and disfavoring sealing
court records, Proponents seek to bar the public from seeing and considering for itself
a true and accurate recording of court proceedings that were themselves public and re-
4
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lied on by the District Court in adjudicating this case, including in making its findings
of fact and conclusions of law. The recording is a quintessential judicial record of the
utmost public importance. See, e.g., Brown & Williamson Tobacco Corp. v. FTC, 710
F.2d 1165, 1181 (6th Cir. 1983) (“The public has an interest in ascertaining what evi-
dence and records the District Court . . . relied upon in reaching [its] decisions.”);
NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 980 P.2d 337, 358 (Cal. 1999).
It bears emphasizing that nothing on these tape recordings can conceivably be charac-
terized as confidential or private information because they merely depict court pro-
ceedings that were themselves open to the public. Proponents’ asserted reason to keep
the trial video under seal is to protect their witnesses—two experts, who were paid for
testifying in open court and whose identities as witnesses in this case are widely
known—from “intimidation.” Prop. Mot. 5-6. But this rationale, which Proponents
also advanced before the district court and which the court ultimately concluded was
baseless (ER 70-71), plainly cannot carry any weight, especially given that the trial
ended 15 months ago and no more witnesses will be called. In fact, Proponents failed
to submit any evidence in the trial court to support their witness intimidation claims.
ER 71 (“The record does not reveal the reason behind proponents’ failure to call their
expert witnesses.”).
5
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II. This Motion Is Otherwise Deficient And Improper
Neither the Plaintiffs nor the Plaintiff-Intervenors nor Chief Judge Walker have
violated any rule or directive with respect to the video in question. Proponents’ re-
quest that this Court order return of the tapes should be rejected.
As a threshold matter, while this Court has jurisdiction over the “final deci-
sion[] of the district court[],” (28 U.S.C. § 1291), Proponents’ motion “For Order
Compelling Return of Trial Recordings” does not challenge any decision of the dis-
trict court. Indeed, Proponents do not challenge the only aspect of the district court’s
decision that addressed the trial video: its decision to include it in the record under
seal. ER 39.
Proponents also have a venue to seek redress of their asserted grievance. The
District Court retains jurisdiction over all matters not involved in the appeal. See
Marrese v. Am. Acad. of Orthopaedic Surgeons, 470 U.S. 373, 379 (1985). And the
case has been reassigned to a District Judge who did not preside over the trial and did
not decide any of the matters currently challenged. U.S.D.C. Doc #765. Tellingly,
Proponents’ only source for this Court’s authority to afford their desired relief, men-
tioned only in passing, is this Court’s inherent authority to “control the record.” Pet.
Mot. 15. But Proponents’ motion does not, in any way, affect the record. It seeks to
control copies of videotapes in the possession of the parties and former Chief Judge
6
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Walker. At a minimum, the district court should be permitted to rule on this issue in
the first instance.
Even if this issue were properly before this Court, as Chief Judge Walker’s let-
ter to this Court explains, the few minutes of testimony that he played before students
at two universities and the Federal Bar Association came from a disk drive that he re-
ceived with his other judicial papers. Letter from Vaughn R. Walker, Apr. 14, 2011,
ECF No. 339. During these lectures, Chief Judge Walker has drawn from his experi-
ence over more than two decades of public service to promote public discourse regard-
ing access to judicial proceedings. Id.; see also Library of Congress Online Catalog,
http://catalog.loc.gov (containing public, historical archive of numerous judicial pa-
pers including those of Chief Justices Marshall, Taney, Taft, and Hughes, Justices
Brandeis, Holmes, Frankfurter, and Van Devanter). Contrary to Proponents’ asser-
tions, the very purpose of Chief Judge Walker’s lectures has been to “promote[] public
confidence in the integrity and impartiality of the judiciary.” See Pet. Mot. 14-15
(quoting Code of Conduct for United States Judges, Canon 2A); ECF No. 339. That
he has sought to improve the public’s knowledge of the federal government by dis-
playing a brief snippet of his experience rather than summarizing it or sharing his
notes or that his judicial papers take the form of a video file on a hard disk rather than
words on a printed page is of no moment. ECF No. 339.
7
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While Proponents claim otherwise, neither prior orders nor local rules barred
Chief Judge Walker’s use of the trial video. First, while Chief Judge Walker directed
the parties to maintain their copies of the trial video tapes pursuant to the terms of the
protective order in this action, there is no dispute that they have faithfully done so.
Proponents cannot convert that direction, or the fact that the video tapes were submit-
ted to this Court under seal, into an absolute bar on any use of those tapes by the trial
judge. Nor did Chief Judge Walker’s use of a brief excerpt of video violate the Su-
preme Court’s ruling staying the live broadcast of the trial. Hollingsworth v. Perry,
130 S. Ct. 705 (2010) ) (per curiam). That decision was explicitly limited to “the live
streaming of court proceedings to other federal courthouses” and did not address other
uses, such as the “broadcast of court proceedings on the Internet,” let alone the very
limited use challenged here. Id. at 709.
Further, because the district court recorded the trial proceedings for use “in con-
nection with preparing the findings” (ECF. No. 339 at 1), Chief Judge Walker did not
violate the district court’s Local Rule 77-3, which prohibits recording trial proceed-
ings with the intent to publicly broadcast. Proponents argue that they were somehow
harmed because Chief Judge Walker has now used a small portion of the video for
purposes other than use in his chambers. See Pet. Mot. 8-9. However, inasmuch as
they never appealed the district court’s decision to record the trial or objected to Plain-
8
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tiffs’ use of the trial video in closing arguments, which clearly was not a use solely in
Chief Judge Walker’s chambers, Proponents’ argument is not only too little, but
too late.
In all events, Chief Judge Walker’s use of the trial video was harmless. The
video ran approximately three minutes and showed the cross-examination of Propo-
nents’ paid expert, Kenneth Miller, a professor at Claremont McKenna College who is
publicly known. See, e.g., Kenneth P. Miller, Claremont McKenna College,
www.claremontmckenna.edu/academic/faculty/profile.asp?Fac=406. In fact, rather
than submitting a declaration regarding the harm allegedly suffered by Dr. Miller or
its only other witness, David Blankenhorn, Proponents reiterate the same unsubstanti-
ated and speculative allegations of harm that the district court previously rejected in
findings of fact after the trial. ER 70-71 (finding as not credible Proponents’ assertion
that their witnesses “were extremely concerned about their personal safety, and did not
want to appear with any recording of any sort, whatsoever.”).
III. The Recordings Of The Trial Should Be Unsealed
Because trials are presumptively public affairs, this Court should unseal the
video of this public trial. See 9th Cir. R. 27-13(d); Publicker Indus, Inc. v. Cohen, 733
F.2d 1059, 1068-71 (3d Cir. 1984) (First Amendment right of access to judicial pro-
ceedings applies to civil trials); Brown & Williamson Tobacco Corp., 710 F.2d at
9
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1178 (same); see also, e.g., Rushford v. New Yorker Magazine, Inc., 846 F.2d 249,
252 (4th Cir. 1988); In re Continental Illinois Sec. Litig., 732 F.2d 1302, 1308-09 (7th
Cir. 1984). The First Amendment right of access to judicial proceedings exists be-
cause “[o]penness of the proceedings will help to ensure [the] important decision is
properly reached and enhance public confidence in the process and result.” Seattle
Times Co. v. United States Dist. Court, 845 F.2d 1513, 1516 (9th Cir. 1988).
In addition to the First Amendment interest, the public has a common law right
to view judicial records. Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978)
(“It is clear that the courts of this country recognize a general right to inspect and copy
public records and documents, including judicial records and documents.”) (footnote
omitted). This right cannot be abridged absent “a showing that the denial serves an
important governmental interest and that there is no less restrictive way to serve that
governmental interest.” Publicker Indus., 733 F.2d at 1070. Where, as here, the sub-
ject of the trial is a matter of great public importance, the public’s right to see the trial
is heightened. Moreover, Proponents cannot and do not argue that the subject of the
trial was in any way confidential or contained sensitive, proprietary information of
any party, given that the live proceedings were themselves public.
Alternatively, because use of the trial video would aid the parties in connection
with any additional proceedings before this or any other court, and because the parties
10
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have dutifully complied with the protective order, the Court should reject Proponents’
demand that Plaintiffs return their copy of the trial video. In the meantime, the protec-
tive order remains in place and ensures that the trial video will not be publicly dis-
closed, unless the Court determines that it should be unsealed.
CONCLUSION
Proponents have not remotely overcome the exacting burdens imposed by the
First Amendment and the common law as prerequisites for throwing a blanket over a
true, accurate and unedited record of a widely publicized public trial of an exceedingly
important constitutional issue affecting millions of Americans. The Court should deny
Proponents’ motion and grant Plaintiffs’ request to unseal the trial video.
Dated: April 15, 2011 Respectfully submitted,

/s/ Theodore B. Olson
Armonk, NY 10504 1050 Connecticut Avenue, N.W.

ENRIQUE A. MONAGAS
11
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*********************************************************************************
on (date) .
*********************************************************************************
on (date) .
Apr 15, 2011
CM/ECF system.
Signature (use "s/" format) /s/ Theodore B. Olson

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SERVICE LIST
Thomas Brejcha Arthur Bailey, Jr.

THOMAS MORE SOCIETY HAUSFELD LLP
29 S. La Salle Street, Suite 440 44 Montgomery Street
Chicago, IL 60603 Suite 3400
Michael F. Moses Anita L. Staver
UNITED STATES CATHOLIC LIBERTY COUNSEL
CONFERENCE P.O. Box 540774
3211 Fourth Street, N.E. Orlando, FL 32854
Mathew D. Staver
Lincoln C. Oliphant LIBERTY COUNSEL
COLUMBUS SCHOOL OF LAW 1055 Maitland Center Commons
The Catholic University of America 2nd Floor
3600 John McCormack Road, NE Maitland, FL 32751
Hon. Vaughn Walker
Hon. Vaughn Walker c/o BERKELEY LAW
c/o PILLSBURY WINTHROP 215 Boalt Hall
SHAW PITTMAN LLP Berkeley, CA 94720-7200
50 Fremont Street
San Francisco, CA 94105-2228
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NO. 10-16696
ARGUED DECEMBER 6, 2010

(CIRCUIT JUDGES STEPHEN REINHARDT, MICHAEL HAWKINS, & N.R. SMITH)
UNITED STATES COURT OF APPEALS
KRISTIN PERRY, et al.,
v.
EDMUND G. BROWN, Jr., et al.,
Defendants,
and
Defendant-Intervenors-Appellants.
On Appeal from United States District Court for the Northern District of California
Civil Case No. 09-CV-2292 JW (Honorable James Ware)
REPLY ON APPELLANTS’ MOTION FOR ORDER COMPELLING

RETURN OF TRIAL RECORDINGS AND OPPOSITION TO APPELLEES’
MOTION TO UNSEAL

Brian W. Raum (202) 220-9600; (202) 220-9601 Fax
James A. Campbell
(480) 444-0020; (480) 444-0028 Fax
Attorneys for Defendant-Intervenors-Appellants Hollingsworth, Knight, Gutierrez,
Jansson, and ProtectMarriage.com
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TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ....................................................................................iv
ARGUMENT ............................................................................................................. 1
CONCLUSION .......................................................................................................... 9
EXHIBITS

Exhibit 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 8 – Trial Transcript (Jan 13, 2010)
Exhibit 9 - Letter from Charles J. Cooper (Jan. 14, 2010)
Exhibit 10 - Notice to Parties (Jan. 15, 2010)
Exhibit 11 - Order 2010-3 (9th Cir. Judicial Council Jan. 15, 2010)
(Kozinski, C.J.)
Exhibit 12 - Local Rule 77-3 (Feb. 2010)
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Exhibit 13 - Renewed Notice Concerning Revision of Civil Local Rule 77-3

(Feb. 4, 2010)
Exhibit 14 - Local Rule 77-3 (May 2010)
Exhibit 15 - Northern District of California Civil Local Rules web page

(May 18, 2010)
Exhibit 16 - Northern District of California home page (May 18, 2010)
Exhibit 17 - Letter from Media Coalition (May 18, 2010)
Exhibit 18 - Letter from Charles J. Cooper
Exhibit 19 - Order (May 31, 2010)
Exhibit 20 - Amended Protective Order
Exhibit 21 - Notice to Court Clerk re Plaintiffs’ Request for a Copy of the

Trial Recording (June 2, 2010)
Exhibit 22 – Trial Transcript (June 16, 2010)
Exhibit 23 - Notice to Court Clerk from Plaintiff-Intervenor City and County

of San Francisco re Use of Video (June 2, 2010)
Exhibit 24 - Order (June 9, 2010)
Exhibit 25 - Declaration of Peter A. Patterson (June 29, 2010)
Exhibit 26 - Defendant-Intervenors’ Motion for Administrative Relief (June

29, 2010)
Exhibit 27 - Plaintiffs’ and Plaintiff-Intervenor’s Opposition to Defendant-

Intervenors’ Motion for Administrative Relief (June 29, 2010)
Exhibit 28 – Excerpts from Findings of Fact and Conclusions of Law (Aug.

4, 2010)
Exhibit 29 - Petition for a Writ of Certiorari, Hollingsworth v. United States

Dist. Ct. (Apr. 8, 2010)
ii
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Exhibit 30 - Order, Hollingsworth v. United States Dist. Ct. (S. Ct. Oct. 4,
2010)
Exhibit 31 - Order, Hollingsworth v. United States Dist. Ct. (9th Cir. Oct.
15, 2010)
Exhibit 32 - Office of the Circuit Executive, “Ninth Circuit Current and

Future Vacancy Table” (Mar. 17, 2011)

Exhibit 34 - Response of Kristin M. Perry et al. to Application for

Immediate Stay, Hollingsworth v. Perry, No. 09A648 (S. Ct. Jan. 10, 2010)
Exhibit 35 - Excerpts from Findings of Fact and Conclusions of Law (Aug.

4, 2010)
Exhibit 36 - Statement of Chief Judge Edward R. Becker On Behalf of the

Judicial Conference of the United States
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Cases Page
Hollingsworth v. Perry, 130 S. Ct. 705 (2010) .................................................passim
In re Marino, 234 B.R. 767 (9th Cir. 1999)............................................................... 9
KFMB-TV Channel 8 v. Municipal Ct., 221 Cal. App. 3d 1362 (1990) .................... 3
San Jose Mercury News, Inc. v. U.S. Dist. Ct., 187 F.3d 1096 (9th Cir. 1999) ........ 5
iv
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ARGUMENT
The video recordings of the trial in this case owe their existence to then-
Chief Judge Walker’s assurance to Proponents that the recordings were being made
not for the purpose of broadcasting the trial, but solely for his use in chambers.
Not only was this assurance necessary to comply with Local Rule 77-3, which
prohibits dissemination of trial proceedings beyond “the confines of the
courthouse,” it came on the heels of an emergency Supreme Court decision
specifically enforcing Rule 77-3 against Chief Judge Walker. Proponents
understood Chief Judge Walker’s assurance to exclude the possibility that he
would later broadcast, or enable the broadcast, of the trial recording. He
subsequently confirmed this understanding when he emphasized that the refusal of
several of Proponents’ expert witnesses to testify at trial could not reasonably have
been motivated by a concern about “the potential for public broadcast” of the trial
recordings because that potential “had been eliminated.” Ex. 35 at 35-36.
Proponents took Chief Judge Walker at his word, as did two of Proponents’ expert
witnesses in deciding to testify even though the proceedings would be recorded.
Former judge Walker makes no reference to any of this in defending as
“permissible and appropriate” his public use of “the actual cross-examination
excerpt from Perry.” Letter from Vaughn R. Walker 1 (Apr. 14, 2001).
Appellees, for their part, trumpet this course of events as virtuous. “There
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was no reason,” Appellees say, “to keep the video of this trial under the cover of
darkness in the first place.” Pls.-Appellees’ Opp’n to Appellants’ Mot. Regarding
Trial Recordings and Pls.’-Appellants’ Motion to Unseal (“Opp.”) 3. Worse, they
ask this Court to join them in ignoring Local Rule 77-3, Judicial Council policy,
then-Chief Judge Walker’s commitment, and the Supreme Court’s stay decision,
and to unseal and release the trial recordings into the public domain. And this,
they say, will “promote[] public confidence in the integrity and impartiality of the
judiciary.” Opp. 7 (emphasis added).
1. Appellees assert that former judge Walker has not “violated any rule
or directive with respect to the video in question.” Opp. 6. But Appellees do not
deny that the Supreme Court’s stay decision, Judicial Council policy, and Local
Rule 77-3 prohibit the public dissemination of trial proceedings beyond the
confines of the courthouse. Rather, they advance several specious arguments to
avoid those clear prohibitions.
a. Appellees contend that Judge Walker’s public dissemination of
a portion of the trial recording did not “violate the Supreme Court’s ruling”
because that ruling “was explicitly limited to the live streaming of court
proceedings to other federal courthouses.” Opp. 8 (quotation marks omitted). But
that was all that the order then under review authorized. See Hollingsworth, 130 S.
Ct. at 709. Importantly, the Supreme Court’s reasoning was not limited to live
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streaming, but rather made clear that the duly enacted and binding version of Local
Rule 77-3 prohibited (as it still prohibits) all public dissemination of trial
proceedings beyond the confines of the courthouse. See id. at 707, 711.
The Media Coalition contributes the argument that the Supreme Court’s stay
decision addressed only “contemporaneous broadcast” of the trial proceedings, not
their subsequent public dissemination. Joinder of Non-Party Media Coalition in
Pls.-Appellees’ Mot. to Unseal (“Media Br.”) 2 (emphasis omitted). On the
contrary, Local Rule 77-3’s prohibition applies regardless of when the public
dissemination occurs. As the Supreme Court recognized, Local Rule 77-3
“prohibited” (as it still prohibits) not only “the taking of photographs, public
broadcasting or televising” of trial proceedings, but also “recording for those
purposes.” Ex. 6, quoted in Hollingsworth, 130 S. Ct. at 710-11; id. at 708 (local
rule “banned the recording or broadcast of court proceedings”). The obvious
import of this prohibition against recording is to prevent subsequent public
dissemination. See KFMB-TV Channel 8 v. Municipal Ct., 221 Cal. App. 3d 1362,
1367-68 (1990) (restriction on “recording for broadcasting” covers “preserving for
later broadcasting”). Nor is there any reason for the rule to treat contemporaneous
and subsequent dissemination differently. Indeed, whether the broadcast occurs
live or on tape delay, the concerns about broadcasting trial proceedings that
motivated the Supreme Court’s stay decision, the policies of the Judicial
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Conference and the Judicial Council, and Local Rule 77-3 are the same: it “can
intimidate litigants, witnesses, and jurors, … create privacy concerns for many
individuals involved in the trial, … become a potent negotiating tactic, …
encourage some participants … [to] grandstand[],” Ex. 3 at 2, and “cause judges to
avoid unpopular decisions or positions,” Ex. 36 at 16.
b. Appellees suggest that “Chief Judge Walker did not violate the
district court’s Local Rule 77-3” because that rule “prohibits recording trial
proceedings with the intent to publicly broadcast,” whereas his initial intention was
to “use [the recordings] ‘in connection with preparing the findings.’” Opp. 8
(emphasis added); see also Media Br. 3-4 (“the Judicial Council Policy and former
Local Rule 77-3 do not apply here because they only preclude recording for the
purpose of public broadcasting or television – not what occurred here”). But
regardless of whether the act of recording a particular trial itself is contrary to
Local Rule 77-3 or Council policy, the public dissemination of trial recordings
clearly runs afoul of the distinct “prohibit[ion against] the streaming of
transmissions, or other broadcasting or televising, beyond ‘the confines of the
courthouse.’” Hollingsworth, 130 S. Ct. at 711 (quoting Local Rule 77-3); see also
id. at 707.1
1
If the legality of public dissemination of trial recordings depended upon the
judge’s initially intended use for the recordings, trial judges would have nearly
unfettered power to publicly disseminate trial recordings, and the Council’s policy
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2. Appellees, assisted by the Media Coalition, attempt to relitigate in this
Court their claim that the First Amendment mandates public access to the
recordings of the trial proceedings in this case. See Opp. 2-4, 9-10; S.F. Opp. 5-7.
But regardless of the qualified right, if any, that the First Amendment might
guarantee the public to access civil trial proceedings,2 the Supreme Court, in
staying the broadcast order in this case, has already rejected Appellees’ argument
that the First Amendment affords the public the right to access the recordings or
broadcast of the trial proceedings in this case. See Ex. 34 at 18-19. Indeed,
Appellees’ argument is, in effect, a claim that Local Rule 77-3, the policies of this
Court’s Judicial Council and the Judicial Conference, and the Supreme Court’s
decision enforcing them in this case all violated the First Amendment.3
It does not matter that the recordings are now part of the record of the case.
See Opp. 4-5. The public’s qualified common-law right to access trial records, see
Opp. 10; San Jose Mercury News, Inc. v. U.S. Dist. Ct., 187 F.3d 1096, 1102 (9th
Cir. 1999), has no purchase here because the recordings could lawfully have been
and Local Rule 77-3 would effectively be nullified, for appellate courts would
likely find it difficult and unseemly to ascertain whether the initial intention of a
judge who subsequently “changed his mind” was pretextual or disingenuous.
2
As the precedents cited by Appellees and former judge Walker show, the
Supreme Court and this Court have found only that the First Amendment
guarantees the public access to criminal proceedings.
3
Moreover, as Appellees admit, the public has already had full access to the public
trial in this case and continues to have access to the trial transcript. See, e.g., Opp.
3, 5.
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created in the first place only on condition that they not be publicly disseminated
outside the courthouse. The Supreme Court’s stay decision, Council policy, and
Local Rule 77-3, not to mention then-Chief Judge Walker’s on-the-record
assurance to Proponents, cannot be nullified by the expedient of recording trial
proceedings under the promise that the video would be used “simply … in
chambers,” Ex. 1 at 754:24-755:4, and then placing the recordings in the trial
record.
3. Appellees also seek to relitigate the question whether public
dissemination of the trial recordings outside the courthouse would cause harm –
again advancing arguments rejected by the Supreme Court. They assert that
“Proponents failed to submit any evidence in the trial court to support their witness
intimidation claims.” Opp. 5; see also id. at 9; S.F. Opp. 1-5. In its decision
staying the broadcast order, however, the Supreme Court emphasized that “[s]ome
of [Proponents’] witnesses have already said that they will not testify if the trial is
broadcast, and they have substantiated their concerns by citing incidents of past
harassment.” Hollingsworth, 130 S. Ct. at 713.4 Indeed, the expert witness whose
testimony is excerpted in former judge Walker’s speech made his decision to go

4
Appellees’ counsel are well aware of this record of past harassment of
Proposition 8 supporters; indeed, shortly before the Supreme Court stayed the
broadcast here, Plaintiffs-Appellees’ lead counsel relied on it in another case then
pending before the Supreme Court. See Hollingsworth, 130 S. Ct. at 707 (citing
Reply Brief for Appellant 28-29 in Citizens United v. Federal Election Comm’n,
No. 08-205).
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forward with his testimony in reliance on then-Chief Judge Walker’s assurance to
Proponents that the recordings would be used solely in his chambers.
And although trial is now over, see Opp. 5, the harm that could result from
witness intimidation is not. As the Supreme Court recognized, public
dissemination of the trial recordings could have a chilling effect on even expert
witnesses’ willingness “to cooperate in any future proceedings,” which could cause
“irreparable harm.” Hollingsworth, 130 S. Ct. at 712-13. Indeed, releasing the
trial recordings in this case would magnify the harm foreseen by the Supreme
Court exponentially, for witnesses in future controversial cases over “issues subject
to intense debate,” id. at 714, would think long and hard before accepting a federal
judge’s assurance that video recordings of the trial would be solely for his use in
chambers.
4. Appellees, remarkably, find it significant that Proponents “never
appealed the district court’s decision to record the trial or objected to Plaintiffs’ use
of the trial video in closing arguments.” Opp. 8-9. Again, Proponents did object to
the recording of the trial proceedings, see Appellants’ Mot. for Order Compelling
Return of Trial Recordings (“Mot.”) 6-8, but when then-Chief Judge Walker
assured them on the record that the recordings would be “simply for [his] use in
chambers,” Ex. 1 at 754:15-755:4, Proponents took him at his word. And although
Chief Judge Walker, sua sponte, provided copies of the trial recordings to
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Appellees for their use in closing arguments, they were required, both before and
after closing argument, to keep the recordings strictly confidential. See Mot. 10-
11. In sum, at no point between the Supreme Court’s stay of the broadcast order
and former judge Walker’s recent public use of the trial recordings in speeches and
lectures were the recordings used, or purportedly authorized to be used, publicly
outside the courthouse. Consequently, Proponents’ decision not to object to these
earlier actions could not possibly constitute a waiver of their present objection to
the public dissemination of the trial recordings beyond the confines of the
courthouse as being in clear violation of the seal order, the Supreme Court’s stay
decision, Judicial Council and Judicial Conference policy, and Local Rule 77-3.
5. Appellees ask in the alternative that they be allowed to retain their
copies of the trial recordings. Opp. 10-11. But now that the trial is over and the
appeal has been briefed and argued to this Court, there is no reason to anticipate
that Appellees will need access to the trial recordings again. Indeed, San Francisco
confesses that “[n]o party currently seeks to use the video footage.” S.F. Opp. 1.
6. Finally, Appellees argue that the district court should resolve these
issues in the first instance. Opp. 6-7. But the record of this case is now before this
Court, which has inherent supervisory power over it. Mot. 18-19. Appellees
dismiss this point on the ground that “Proponents’ motion does not, in any way,
affect the record,” Opp. 6 – a meritless contention given that the recordings, as
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Appellees emphasize, are part of the record and that the issue pending before this
Court is whether (on Proponents’ motion) to enforce the seal and order the return
of the trial recordings or (on Appellees’ motion) to lift the seal and release the
recordings into the public domain. Further, the district court would likely lack
jurisdiction. See In re Marino, 234 B.R. 767, 769 (9th Cir. 1999) (“trial court may
not interfere with the appeal process or with the jurisdiction of the appellate
court”). And because Proponents’ and Appellees’ motions present pure questions
of law, remanding this dispute to the district court for initial consideration would
be inefficient.
CONCLUSION
For the foregoing reasons and the reasons stated in our opening brief, the
Court should order that former judge Walker cease further disclosures of the trial
recordings in this case, or any portion thereof, and that all copies of the trial
recordings in the possession, custody, or control of any party to this case or former
judge Walker be returned promptly to the Court and held by the court clerk under
seal. The Court should also deny Appellees’ motion to unseal the trial recordings.
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April 21, 2011 Respectfully submitted,
s/ Charles J. Cooper
Charles J. Cooper

Brian W. Raum (202) 220-9600; (202) 220-9601 Fax
James A. Campbell
(480) 444-0020; (480) 444-0028 Fax
Attorneys for Defendant-Intervenors-Appellants Hollingsworth, Knight,
Gutierrez, Jansson, and ProtectMarriage.com
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*********************************************************************************
on (date) .
*********************************************************************************
on (date) .
April 21, 2010
CM/ECF system.
Signature (use "s/" format) s/Charles J. Cooper

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SERVICE LIST
Arthur N. Bailey, Jr., Esq. Mathew D. Staver

HAUSFELD LLP LIBERTY COUNSEL
44 Montgomery Street, Suite 3400 1055 Maitland Center Commons
San Francisco, CA 94104 2nd Floor
Maitland, FL 32751
Thomas Brejcha
THOMAS MORE SOCIETY Hon. Vaughn Walker
29 S. La Salle Street, Suite 440 c/o PILLSBURY WINTHROP SHAW
Chicago, IL 60603 PITTMAN LLP
50 Fremont Street
Anthony R. Picarello, Jr. San Francisco, CA 94105-2228
Michael F. Moses
UNITED STATES CATHOLIC Hon. Vaughn Walker
CONFERENCE c/o BERKELEY LAW
3211 Fourth Street, N.E. 215 Boalt Hall
Washington, DC 20017 Berkeley, CA 94720-7200
Lincoln C. Oliphant
Thomas R. Burke
COLUMBUS SCHOOL OF LAW
Rochelle L. Wilcox
The Catholic University of America
DAVIS WRIGHT TREMAINE LLP
3600 John McCormack Road, NE
505 Montgomery Street, Suite 800
Anita L. Staver
LIBERTY COUNSEL
P.O. Box 540774
Orlando, FL 32854
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EXHIBIT 34
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No. 09A648
IN THE
pìéêÉãÉ=`çìêí=çÑ=íÜÉ=råáíÉÇ=pí~íÉë=
DENNIS HOLLINGSWORTH, ET AL.,

Applicants,
v.
KRISTIN M. PERRY, ET AL.,
Respondents.
RESPONSE OF KRISTIN M. PERRY ET AL. TO

APPLICATION FOR IMMEDIATE STAY
THEODORE J. BOUTROUS, JR. THEODORE B. OLSON

THEANE EVANGELIS KAPUR Counsel of Record
ENRIQUE A. MONAGAS MATTHEW D. MCGILL
GIBSON, DUNN & CRUTCHER LLP AMIR C. TAYRANI
333 South Grand Avenue GIBSON, DUNN & CRUTCHER LLP
Los Angeles, CA 90071 1050 Connecticut Avenue, N.W.
(213) 229-7804 Washington, D.C. 20036
(202) 955-8500
Counsel for Respondents

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D. The Balance Of Equities Weighs Against A Stay.
Finally, the balance of equities weighs against a stay because there is a strong
interest in providing the public with meaningful access to the trial proceedings in this
exceedingly important case.
Recording and publicly distributing this bench trial in other courtrooms and on the
Internet will promote deeply rooted First Amendment principles that favor broad public
access to judicial proceedings. Indeed, this Court has recognized that a “trial is a public
event” and that “[w]hat transpires in the court room is public property.” Craig v. Harney,
331 U.S. 367, 374 (1947). Because “it is difficult for [people] to accept what they are
prohibited from observing” (Richmond Newspapers v. Virginia, 448 U.S. 555, 572 (1980)
(op. of Burger, C.J.)), the First Amendment guarantees free and open access to judicial
proceedings in order to foster public confidence in the judicial system. Broad public
access to judicial proceedings also “protect[s] the free discussion of governmental
affairs” that is essential to the ability of “the individual citizen . . . [to] effectively
participate in and contribute to our republican system of self-government.” Globe
Newspaper Co. v. Superior Court, 457 U.S. 596, 604 (1982) (internal quotation marks
omitted).
In light of the great public interest in the issues to be decided in this case,
providing a broadcast of the proceedings is the most effective means of affording the
public its constitutionally guaranteed right of access. More than 13 million Californians
cast a vote for or against Prop. 8. And there are hundreds of thousands of gay and lesbian
Californians who have a direct stake in the outcome of this case. Far from detracting
18
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from the right of public access, the “highly contentious” character of the issues to be
resolved in this case (Stay App. 24) underscores the importance of providing the public
with a meaningful window into the trial proceedings so it can see and hear what is
happening in the courtroom. See Press-Enterprise Co. v. Superior Court, 464 U.S. 501,
508 (1984) (“The value of openness lies in the fact that people not actually attending
trials can have confidence that standards of fairness are being observed”). The “ability to
see and to hear a proceeding as i[t] unfolds is a vital component of the First Amendment
right of access.” ABC, Inc. v. Stewart, 360 F.3d 90, 99 (2d Cir. 2004).
III. CONCLUSION
For the foregoing reasons, the Application for Immediate Stay should be denied.
Respectfully submitted.

THEODORE J. BOUTROUS, JR. THEODORE B. OLSON
THEANE EVANGELIS KAPUR Counsel of Record
ENRIQUE A. MONAGAS MATTHEW D. MCGILL
GIBSON, DUNN & CRUTCHER LLP AMIR C. TAYRANI
333 South Grand Avenue GIBSON, DUNN & CRUTCHER LLP
Los Angeles, CA 90071 1050 Connecticut Avenue, N.W.
(213) 229-7804 Washington, D.C. 20036
(202) 955-8500
January 10, 2010
19
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EXHIBIT 35
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138
1
IN THE UNITED STATES DISTRICT COURT
2
FOR THE NORTHERN DISTRICT OF CALIFORNIA
3
4
KRISTIN M PERRY, SANDRA B STIER,
5 PAUL T KATAMI and JEFFREY J
ZARRILLO,
6
Plaintiffs,
7
8
Plaintiff-Intervenor,
9
v
10
11 official capacity as Governor of

California; EDMUND G BROWN JR, in

12 his official capacity as Attorney
General of California; MARK B No C 09-2292 VRW
13 HORTON, in his official capacity
as Director of the California PRETRIAL PROCEEDINGS AND
14 Department of Public Health and TRIAL EVIDENCE
State Registrar of Vital
15 Statistics; LINETTE SCOTT, in her g
official capacity as Deputy
16 Director of Health Information & CREDIBILITY DETERMINATIONS
Strategic Planning for the
17 California Department of Public g
Health; PATRICK O’CONNELL, in his
18 official capacity as Clerk- FINDINGS OF FACT
Recorder of the County of
19 Alameda; and DEAN C LOGAN, in his g
official capacity as Registrar-
20 Recorder/County Clerk for the CONCLUSIONS OF LAW
County of Los Angeles,
21 g
Defendants,
22 ORDER
DENNIS HOLLINGSWORTH, GAIL J
23 KNIGHT, MARTIN F GUTIERREZ, HAK-
SHING WILLIAM TAM, MARK A
24 JANSSON and PROTECTMARRIAGE.COM –
25 RENEWAL, as official proponents
of Proposition 8,
26
27 /
28
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1 b. Tr 1525:1-10: Segura and a colleague, through the

Stanford Center for Democracy, operate the American
2 National Elections Studies, which provides political
scientists with data about the American electorate’s
3 views about politics;
4 c. Tr 1525:11-19: Segura serves on the editorial boards of
major political science journals;
5
d. Tr 1525:22-1526:24: Segura’s work focuses on political
6 representation and whether elected officials respond to
the voting public; within the field of political
7 representation, Segura focuses on minorities;
8 e. PX2330; Tr 1527:25-1528:14: Segura has published about
twenty-five peer-reviewed articles, authored about
9 fifteen chapters in edited volumes and has presented at
between twenty and forty conferences in the past ten
10 years;
11 f. PX2330; Tr 1528:21-24: Segura has published three pieces

specific to gay and lesbian politics and political

12 issues;
13 g. Tr 1532:11-1533:17: Segura identified the methods he used
and materials he relied on to form his opinions in this
14 case. Relying on his background as a political
scientist, Segura read literature on gay and lesbian
15 politics, examined the statutory status of gays and
lesbians and public attitudes about gays and lesbians,
16 determined the presence or absence of gays and lesbians
in political office and considered ballot initiatives
17 about gay and lesbian issues.
18
19 PROPONENTS’ WITNESSES
20 Proponents elected not to call the majority of their
21 designated witnesses to testify at trial and called not a single
22 official proponent of Proposition 8 to explain the discrepancies
23 between the arguments in favor of Proposition 8 presented to voters
24 and the arguments presented in court. Proponents informed the
25 court on the first day of trial, January 11, 2010, that they were
26 withdrawing Loren Marks, Paul Nathanson, Daniel N Robinson and
27 Katherine Young as witnesses. Doc #398 at 3. Proponents’ counsel
28 stated in court on Friday, January 15, 2010, that their witnesses
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1 “were extremely concerned about their personal safety, and did not
2 want to appear with any recording of any sort, whatsoever.” Tr
3 1094:21-23.
4 The timeline shows, however, that proponents failed to
5 make any effort to call their witnesses after the potential for
6 public broadcast in the case had been eliminated. The Supreme
7 Court issued a temporary stay of transmission on January 11, 2010
8 and a permanent stay on January 13, 2010. See Hollingsworth v
9 Perry, 130 SCt 1132 (Jan 11, 2010); Hollingsworth v Perry, 130 SCt
10 705 (Jan 13, 2010). The court withdrew the case from the Ninth
11 Circuit’s pilot program on broadcasting on January 15, 2010. Doc

12 #463. Proponents affirmed the withdrawal of their witnesses that

13 same day. Tr 1094:21-23. Proponents did not call their first
14 witness until January 25, 2010. The record does not reveal the
15 reason behind proponents’ failure to call their expert witnesses.
16 Plaintiffs entered into evidence the deposition testimony
17 of two of proponents’ withdrawn witnesses, as their testimony
18 supported plaintiffs’ claims. Katherine Young was to testify on
19 comparative religion and the universal definition of marriage. Doc
20 #292 at 4 (proponents’ December 7 witness list) Doc #286-4 at 2
21 (expert report). Paul Nathanson was to testify on religious
22 attitudes towards Proposition 8. Doc #292 at 4 (proponents’
23 December 7 witness list); Doc #280-4 at 2 (expert report).
24 Young has been a professor of religious studies at McGill
25 University since 1978. PX2335 Young CV. She received her PhD in
26 history of religions and comparative religions from McGill in 1978.
27 Id. Young testified at her deposition that homosexuality is a
28 normal variant of human sexuality and that same-sex couples possess
36
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STATEMENT OF CHIEF JUDGE EDWARD R. BECKER

ON BEHALF OF
THE JUDICIAL CONFERENCE OF THE UNITED STATES
I. Introduction
Mr. Chainnan, and Members of the Subcommittee, my name is Edward R. Becker. I am
presently Chief Judge of the United States Court of Appeals for the Third Circuit, having served on
the court for over 18 years. Prior to that I was a judge of the United States District Court for the
Eastern District of Pennsylvania for over 11 years. I will observe my 30th anniversary on the
federal bench on December 11, 2000. I am appearing before you today in my capacity as a
member of the Executive Committee of the Judicial Conference of the United States. On behalf of
the Judicial Conference, I appreciate the invitation to testify. We hope that the testimony provided
here is useful to you.
As you requested, this statement will comment on S. 721, a bill that would "allow media
coverage of court proceedings." The Judicial Conference strongly opposes this measure.
The federal judiciary has examined the issue of whether cameras should be pennitted in the
federal courts for more than six decades, both through case law and Judicial Conference
consideration. The Judicial Conference in its role as the policy-making body for the federal
judiciary has consistently expressed the view that camera coverage can do irreparable hann to a
citizen's right to a fair and impartial trial. We believe that the intimidating effect of cameras on
litigants, witnesses, and jurors has a profoundly negative impact on the trial process. Moreover, in
civil cases cameras can intimidate civil defendants who, regardless of the merits of their case,
might prefer to settle rather than risk damaging accusations in a televised trial. Cameras can also
create security concerns in the federal courts. Finally, cameras can create privacy concerns for
countless numbers of persons, many of whom are not even parties to the case, but about whom very
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Statement for the Judicial Conference Page 2
personal infonnation may be revealed at trial.
These concerns are far from hypothetical. Since the infancy of motion pictures, cameras
have had the potential to create a spectacle around court proceedings. Obvious examples include
the media frenzies that surrounded the 1935 Lindbergh baby kidnapping trial, the murder trial in
1954 of Dr. Sam Sheppard, and the more recent Menendez brothers and O.J. Simpson trials. We
have avoided such incidences in the federal courts due to the present bar of cameras in the trial
courts, which S. 721 now proposes to overturn.
The federal courts have shown strong leadership in the continuing effort to modernize the
litigation process. This has been particularly true of the federal judiciary's willingness to
embrace new technologies, such as electronic case filing and access, videoconferencing, and
electronic evidence presentation systems. The federal courts have also established community
outreach programs in which several thousand students and teachers nationwide have come to
federal courthouses to learn about court proceedings. Our opposition to this legislation, therefore,
is not, as some may suggest, borne of a desire to stem technology or access to the courts. We
oppose the broadcasting of federal court proceedings because it is contrary to the interests of
justice, which it is our most solemn duty to uphold.
Today I will discuss some of the Judicial Conference's specific concerns with this
legislation, as well as with the issues of cameras in the courtroom, generally. However, before
addressing those concerns, I would like to provide you with a brief review of the Conference's
experience with cameras, which will demonstrate the time and effort it has devoted to
understanding this issue over the years. I must emphasize at the threshold that today, as in the past,
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the federal courts are at all times open to the public.
II. Background on Cameras in the Federal Courts
Whether to allow cameras in the courtroom is far from a novel question for the federal
judiciary. Electronic media coverage of criminal proceedings in federal courts has been expressly
prohibited under Federal Rule of Criminal Procedure 53 since the criminal rules were adopted in
1946. That rule states that "[t]he taking of photographs in the courtroom during the progress of
judicial proceedings or radio broadcasting of judicial proceedings from the courtroom shall not be
permitted by the court."
In 1972, the Judicial Conference adopted a prohibition against "broadcasting, televising,
recording or taking photographs in the courtroom and areas immediately adjacent thereto .... "
The prohibition applied to criminal and civil cases. The Conference has, however, repeatedly
studied and considered the issue since then.
In 1988, Chief Justice William Rehnquist appointed an Ad Hoc Committee on Cameras in
the Courtroom, which recommended that a three-year experiment be established permitting camera
coverage of certain proceedings in selected federal courts. In 1990, the Judicial Conference
adopted this recommendation, and authorized a three-year pilot program allowing electronic media
coverage of civil proceedings in six district and two appellate courts, which commenced July 1,
1991. The courts that volunteered to participate in the pilot project were the u.s. Courts of
Appeals for the Second and Ninth Circuits, and the U.S. District Courts for the
Southern District of Indiana, District of Massachusetts, Eastern District of Michigan, Southern
District of New York, Eastern District of Pennsylvania, and Western District of New York.
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The Federal Judicial Center (FJC) conducted a study of the pilot project and submitted its
results to a committee of the Judicial Conference in September 1994. I The research project staff
made a recommendation that the Conference "authorize federal courts of appeals and district
courts nationwide to provide camera access to civil proceedings in their courtrooms .... " It is
important to note that the recommendations included in the report were reviewed within the FJC
but not by its Board.
The Conference disagreed with the conclusions drawn by the FJC staff and concluded that
the potentially intimidating effect of cameras on some witnesses and jurors was cause for
considerable concern. The paramount responsibility of a United States judge is to uphold the
Constitution, which guarantees citizens the right to a fair and impartial trial. Taking into account
this considerable responsibility placed upon judges, the Conference concluded that it was not in
the interest of justice to permit cameras in federal courtrooms.
Two years later, at its March 1996 session, the Judicial Conference again considered the
issue. At that session, the Conference voted to strongly urge each circuit judicial council to adopt,
pursuant to its rulemaking authority articulated in 28 U.S.c. § 332(d)(1), an order reflecting the
Conference's September 1994 decision not to permit the taking of photographs or radio and
television coverage of proceedings in U.S. district courts. The Conference also voted to strongly
urge circuit judicial councils to abrogate any local rules that conflict with this decision, pursuant to
28 U.S.C. § 2071(c)(1).
The Conference, however, made a distinction between camera coverage for appellate and
lIn 1994, the Federal Judicial Center published a report entitled Electronic Media Coverage ofFederal
Civil Proceedings: An Evaluation of the Pilot Program in Six District Courts and Two Courts ofAppeals. The
period used by the Federal Judicial Center for its study was July 1, 1991, to June 30, 1993.
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Statement for the Judicial Conference PageS
district court proceedings. Because an appellate proceeding does not involve witnesses and
juries, the concerns of the Conference regarding the impact of camera coverage on the litigation
process were reduced. Therefore, the Conference adopted a resolution stating that "[ e]ach court of
appeals may decide for itself whether to permit the taking of photographs and radio and television
coverage of appellate arguments, subject to any restrictions in statutes, national and local rules,
and such guidelines as the Conference may adopt."
The current policy, as published in the Guide to Judiciary Policies and Procedures
states:
A judge may authorize broadcasting, televising, recording, or taking photographs in

the courtroom and in adjacent areas during investigative, naturalization, or other
ceremonial proceedings. A judge may authorize such activities in the courtroom or
adjacent areas during other proceedings, or recesses between such proceedings,
only: (a) for the presentation of evidence; (b) for the perpetuation of the record of
the proceedings; (c) for security purposes; (d) for other purposes of judicial
administration; or (e) in accordance with pilot programs approved by the Judicial
Conference ofthe United States.
Presently, only two of the 13 appellate courts, the Second and Ninth Circuits, have decided
to permit camera coverage in appellate proceedings. This decision was made by the judges of
each court. As for cameras in district courts, most circuit councils have either adopted
resolutions prohibiting cameras in the district courts or acknowledged that the district courts in that
circuit already have such a prohibition.
Finally, it may be helpful to describe the state rules regarding cameras in the courtroom.
While it is true that most states permit some use of cameras in their courts, such access by the
media is not unlimited. The majority of states have imposed restrictions on the use of cameras in
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the court or have banned cameras altogether in certain proceedings. Although it is somewhat
difficult to obtain current information, it appears that approximately 20 states that permit cameras
have restrictions of some kind written into their authorizing statutes, such as prohibiting coverage
of certain proceedings or witnesses, and!or requiring the consent of the parties, victims of sex
offenses, and witnesses. Eleven states do not allow coverage of criminal trials. In eight states
cameras are allowed only in appellate courts. Mississippi, South Dakota, and the District of
Columbia prohibit cameras altogether. Utah allows only still photography at civil trials, and
Nebraska allows only audio coverage in civil trials. In fact, only 16 states provide the presiding
judge with the type of broad discretion over the use of cameras contained in this legislation. It is
clear from the widely varying approaches to the use of cameras that the state courts are far from
being of one mind in the approach to, or on the propriety and extent of, the use of cameras in the
courtroom.
III. Judicial Conference Concerns Regarding S. 721
I would now like to discuss some of the specific concerns the Judicial Conference has with
S. 721, as well as the more general issue of media coverage in the courtroom.
A. Cameras Negatively Impact the Trial Process
Supporters of cameras in the courtroom assert that modem technology has made cameras
and microphones much less obvious, intrusive or disruptive, and that therefore the judiciary need
not be concerned about their presence during proceedings. That is not the issue. While covert
coverage may reduce the bright lights and tangle of wires that were made famous in the Simpson
trial, it does nothing to reduce the significant and measurable negative impact that camera coverage
can have on the trial participants themselves.

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Proponents of cameras in the courtroom argue that media coverage would benefit society
because it would enable people to become more educated about the legal system and particular
trials. But even if this is true, and we take up this question later in the testimony, increased public
education cannot be allowed to interfere with the judiciary's primary mission, which is to
administer fair and impartial justice to individual litigants in individual cases. While judges are
accustomed to balancing conflicting interests, balancing the positive effects of media coverage
against an external factor such as the degree of impairment of the judicial process that camera
coverage would bring is not the kind of thing judges should balance. Rather, our mission is to
administer the highest possible quality of justice to each and every litigant. We cannot tolerate
even a little bit of unfairness (based on media coverage), notwithstanding that society as a whole
might in some way benefit, for that would be inconsistent with our mission.
The Conference maintains that camera coverage would indeed have a notably adverse
impact on court proceedings. This includes the impact the camera and its attendant audience
would have on the attorneys, jurors, witnesses, and judges. We believe, for example, that a
witness telling facts to a jury will often act differently when he or she knows that thousands of
people are watching and listening to the story. This change in a witness's demeanor could have a
profound impact on ajury's ability to accurately assess the veracity of that witness. Media
coverage could exacerbate any number of human emotions in a witness from bravado and over
dramatization, to self-consciousness and under reaction. In fact, even according to the FJC study
(which is discussed in more detail later in this statement), 64 percent of the participating judges
reported that, at least to some extent, cameras make witnesses more nervous. In addition, 46
percent of the judges believed that, at least to some extent, cameras make witnesses less willing to
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appear in court, and 41 percent found that, at least to some extent, cameras distract witnesses.
Such effects could severely compromise the ability of jurors to assess the veracity of a
witness and, in turn, could prevent the court from being able to ensure that the trial is fair and
impartial. Likewise, television cameras could have a profound impact on the deliberations of a
jury. The psychological pressures that jurors are already under would be unnecessarily increased
by the broader exposure resulting from the broadcasting of a trial and could conceivably affect a
juror's judgment to the detriment of one of the parties.
B. S. 721 Inadequately Protects the Right to a Fair Trial
The primary goal of this legislation is to allow radio and television coverage of federal
court cases. While there are several provisions aimed at limiting coverage (i.e., allowing judges
the discretion to allow or decline media coverage; authorizing the Judicial Conference to develop
advisory guidelines regarding media coverage; and requiring courts to disguise the face and voice
of a witness upon his or her request), the Conference is convinced that camera coverage could, in
certain cases, so indelibly affect the dynamics of the trial process that it would impair citizens'
ability to receive a fair triaF
For example, Section lea) and (b) of the bill would allow the presiding judge of an
appellate or district court to decide whether to allow cameras in a particular proceeding before
that court. If this legislation were to be enacted, we are confident that all federal judges would use
extreme care and judgment in making this determination. Nonetheless, federal judges are not
clairvoyants. Even the most straightforward or "run of the mill" cases have unforseen
2We recognize that the legislation would sunset the authority for district court judges to permit cameras
three years after the date of enactment of the Act. There is no comparable sunset provision for the appellate
courts.
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developments. Obviously a judge never knows how a lawyer will proceed or how a witness or
party will testify. And these events can have a tremendous impact on the trial participants.
Currently, courts have recourse to instruct the jury to disregard certain testimony or, in extreme
situations, to declare a mistrial if the trial process is irreparably harmed. If camera coverage is
allowed, however, there is no opportunity to later rescind remarks heard by the larger television
audience. This concern is of such importance to the Conference that it opposes legislation that
would give a judge discretion to evaluate in advance whether television cameras should be
permitted in particular cases.
We also are concerned about the provision that would require courts to disguise the face
and voice of a witness upon his or her request. Anyone who has been in court knows how
defensive witnesses can be. Frequently they have a right to be. Witnesses are summoned into
court to be examined in public. Sometimes they are embarrassed or even humiliated. Providing
them the choice of whether to testify in the open or blur their image and voice would be cold
comfort given the fact that their name and their testimony will be broadcast to the community. It
would not be in the interest of the administration of justice to unnecessarily increase the already
existing pressures on witnesses.
These basic concerns regarding witnesses were eloquently described by Justice Clark in
Estes v. Texas, 381 U.S. 532:
The quality of the testimony in criminal trials will often be impaired. The impact
upon a witness of the knowledge that he is being viewed by a vast audience is
simply incalculable. Some may be demoralized and frightened, some cocky and
given to overstatement; memories may falter, as with anyone speaking publicly, and
accuracy of statement may be severely undermined. Embarrassment may impede
the search for the truth, as maya natural tendency toward over dramatization.
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Furthermore, inquisitive strangers and 'cranks' might approach witnesses on the

street with jibes, advice or demands for explanation of testimony. There is little
wonder that the defendant cannot 'prove' the existence of such factors. Yet we all
know from experience that they exist. ...
Estes, 381 U.S. at 547.
It is these concerns that cause the Judicial Conference of the United States to oppose
enactment ofS. 721.
C. Threat of Camera Coverage Could be Used as a Trial Tactic
Cameras provide a very strong temptation for both attorneys and witnesses to try their
cases in the court of public opinion rather than in a court of law. Allowing camera coverage
would almost certainly become a potent negotiating tactic in pretrial settlement negotiations. For
example, in a high-stakes case involving millions of dollars, the simple threat that the president of
a defendant corporation could be forced to testify and be cross examined, for the edification of the
general public, might well be a real disincentive to the corporation's exercising its right to a
public trial.
D. Cameras Can Create Security Concerns
Although the bill includes language allowing witnesses who testify to be disguised, the bill
does not address security concerns or make similar provision regarding other participants in
judicial proceedings. The presence of cameras in the courtroom is likely to heighten the level and
the potential of threats to judges. The number of threats against judges has escalated over the
years, and widespread media exposure could exacerbate the problem. Additionally, all witnesses,
jurors, and United States Marshals Service personnel may be put at risk because they would no
longer have a low public profile.
Also, national and international camera coverage of trials in federal courthouses, would
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place these buildings, and all in them at greater risk from terrorists, who tend to choose targets for
destruction that will give their "messages" the widest exposure. Such threats would require
increased personnel and funding to adequately protect participants in court proceedings.
E. Cameras Can Create Serious Privacy Concerns
There is a rising tide of concern among Americans regarding privacy rights and the
Internet. Numerous bills have been introduced in both the Congress and state legislatures to
protect the rights of individual citizens from the indiscriminate dissemination of personal
information that once was, to use a phrase coined by the Supreme Court, hidden by "practical
obscurity,"3 but now is available to anyone at any time because ofthe advances oftechnology. The
judiciary is studying this issue carefully with respect to court records, and Congress has before it a
bipartisan proposal to create a Privacy Study Commission to look at a number of issues, including
public records.
Broadcasting of trials presents many of the same concerns about privacy as does the
indiscriminate dissemination of information on the Internet that was once only available at the
courthouse. Witnesses and counsel frequently discuss very sensitive information during the course
of a trial. Often this information relates to individuals who are not even parties to the case, but
about whom personal information may be revealed. Also, in many criminal and civil trials, which
the media would most likely be interested in televising, much of the evidence introduced may be of
an extremely private nature, revealing family relationships and personal facts, including medical
and financial information. This type of information provided in open court, is already available to
3United States Department of Justice v. Reporters Committee for the Freedom of the Press, 489 U.S.
749,764 (1989).
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the public through the media. Televising these matters sensationalizes these details for no apparent
good reason.
Involvement in a federal case can have a deep and long-lasting impact on all its
participants, most of whom have neither asked for nor sought publicity. In this adversarial setting,
reputations can be compromised and relationships can be damaged. In fact, according to the FJC
study on live courtroom media coverage, 56% of the participating judges felt that electronic media
coverage violates a witness's privacy. This is not to say that the Conference advocates closed
trials; far from it. Nevertheless, there is a common-sense distinction between a public trial in a
public courtroom-typically filled with individuals with a real interest in the case-and its
elevation to an event that allows and encourages thousands to become involved intimately in a
case that essentially concerns a small group of private people or entities.
The issue of privacy rights is one that has not been adequately considered or addressed by
those who would advocate the broadcasting of trials. This heightened awareness of and
concern for privacy rights is a relatively new and important development that further supports the
position of the Judicial Conference to prohibit the use of cameras in the courtroom.
F. s. 721 Does Not Address the Complexities Associated with Camera Coverage
Media coverage of a trial would have a significant impact on that trial process. There are
major policy implications as well as many technical rules issues to be considered, none of which
are addressed in the proposed legislation. For example, televising a trial makes certain court
orders, such as those sequestering witnesses, more difficult to enforce. In a typical criminal trial,
most witnesses are sequestered at some point. In addition, many related technical issues would
have to be addressed, including advance notice to the media and trial participants, limitations on
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coverage and camera control, coverage of the jury box, and sound and light criteria.
Finally, S. 721 includes no funding authorization for implementation of its mandates.
Regardless of whether funding is authorized, there is no guarantee that needed funds would be
appropriated. The costs associated with allowing cameras, however, could be significant. For
example, costs would be incurred to retrofit courtrooms to incorporate cameras while minimizing
their actual presence to the trial participants. Also, to ensure that a judge's orders regarding
coverage of the trial were followed explicitly (e.g., not filming the jury, obscuring the image and
voice of certain witnesses, or blocking certain testimony), a court may need to purchase its own
equipment, as well as hire technicians to operate it. When considering that these expenses may
have to be incurred in each of the 94 districts, the potential cost could be significant. An
additional considerable cost would be creation of the position of media coordinator or court
administrative liaison to administer and oversee an electronic media program on a day-to-day
basis. According to the FJC report, the functions of the media liaisons included receiving
applications from the media and forwarding them to presiding judges, coordinating logistical
arrangements with the media, and maintaining administrative records of media coverage.
G. There is No Constitutional Right to have Cameras in the Courtroom
Some have asserted that there is a constitutional "right" to bring cameras into the
courtroom and that the First Amendment requires that court proceedings be open in this manner to
the news media. The Judicial Conference responds to such assertions by stating that today, as in
the past, federal court proceedings are open to the public; however, nothing in the First
Amendment requires televised trials.

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The seminal case on this issue is Estes v. Texas, 381 U.S. 532 (1965). In Estes, the
Supreme Court directly faced the question whether a defendant was deprived of his right under the
Fourteenth Amendment to due process by the televising and broadcasting of his trial. The Court
held that such broadcasting in that case violated the defendant's right to due process oflaw. At the
same time, a majority of the Court's members addressed the media's right to telecast as relevant to
determining whether due process required excluding cameras from the courtroom. Justice Clark's
plurality opinion and Justice Harlan's concurrence indicated that the First Amendment did not
extend the right to the news media to televise from the courtroom. Similarly, Chief Justice
Warren's concurrence, joined by Justices Douglas and Goldberg, stated:

[nJor does the exclusion of television cameras from the courtroom in any way
impinge upon the freedoms of speech and the press. . .. So long as the television
industry, like the other communications media, is free to send representatives to
trials and to report on those ttja1s to its viewers, there is no abridgement of the
freedom of press.
Estes, 381 U.S. at 584-85 (Warren, c.J., concurring).
In the case of Westmoreland v. Columbia Broadcasting System. Inc., 752 F.2d 16 (2d Cir.
1984), the Second Circuit was called upon to consider whether a cable news network had a right
to televise a federal civil trial and whether the public had a right to view that trial. In that case,
both parties had consented to the presence of television cameras in the courtroom under the close
supervision of a willing court, but a facially applicable court rule prohibited the presence of such
cameras. The Second Circuit denied the attempt to televise that trial, saying that no case has held
that the public has a right to televised trials. As stated by the court, "[tJhere is a long leap ...
between a public right under the First Amendment to attend trials and a public right under the First
Amendment to see a given trial televised. It is a leap that is not supported by history."
Westmoreland, 752 F.2d at 23.

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Similarly, in United States v. Edwards, 785 F.2d 1293 (5th Cir. 1986), the court discussed
whether the First Amendment encompasses a right to cameras in the courtroom, stating: "No case
suggests that this right of access includes a right to televise, record, or otherwise broadcast trials.
To the contrary, the Supreme Court has indicated that the First Amendment does not guarantee a
positive right to televise or broadcast criminal trials." Edwards, 785 F.2d at 1295. The court
went on to explain that while television coverage may not always be constitutionally prohibited,
that is a far cry from suggesting that television coverage is ever constitutionally mandated.
These cases forcefully make the point that, while all trials are public, there is no
constitutional right of media to broadcast federal district court or appellate court proceedings.
H. The Teachings ofthe FJC Study
Proponents of S. 721 have indicated that the legislation is justified in part by the FJC study
referred to earlier. The Judicial Conference based, in part, its opposition to cameras in the
courtroom on the same study. Given this apparent inconsistency, it may be useful to highlight
several important findings and limitations of the study. As I noted earlier in the statement, the
recommendations included in the FJC report, which were proposed by the research project staff,
were reviewed within the FJC but not by its Board.
First, the study only pertained to civil cases. This legislation, if enacted, would allow
camera coverage in both civil and criminal cases. As this Subcommittee is acutely aware, the
number of criminal cases in the federal courts continues to rise. One could expect that most of
the media requests for coverage would be in sensational criminal cases, where the problems for
witnesses, including victims of crimes, and jurors are most acute.

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Second, the study's conclusions ignore a large amount of significant negative statistical
data. For example, the study reports on attorney ratings of electronic media effects in proceedings
in which they were involved. Among these negative statistics were the following:
• 32% of the attorneys who responded felt that, at least to some extent, the cameras distract
witnesses;
• 40% felt that, at least to some extent, the cameras make witnesses more nervous than they
otherwise would be;
• 19% believed that, at least to some extent, the cameras distract jurors;
• 21 % believed that, at least to some extent, the cameras cause attorneys to be more
theatrical in their presentations;
• 27% believed that, at least to some extent, the cameras have the effect of distracting the
attorneys; and
• 21 % believed that, at least to some extent, the cameras disrupt the courtroom proceedings.
When trial judges were asked these same questions, the percentages of negative responses
were even higher:
• 46% believed that, at least to some extent, the cameras make witnesses less willing to
appear in court;
• 41 % found that, at least to some extent, the cameras distract witnesses;
• 64% reported that, at least to some extent, the cameras make witnesses more nervous than
they otherwise would be;
• 17% responded that, at least to some extent, cameras prompt people who see the coverage
to try to influence juror-friends;
• 64% found that, at least to some extent, the cameras cause attorneys to be more theatrical in
their presentations;
• 9% reported that, at least to some extent, the cameras cause judges to avoid unpopular
decisions or positions; and
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• 17% found that, at least to some extent, cameras disrupt courtroom proceedings.
These negative statistical responses from judges and attorneys involved in the pilot project
dominated the Judicial Conference debate and were highly influential in the Conference's
conclusion that the intimidating effect of cameras on witnesses and jurors was cause for alarm.
Since a United States judge's paramount responsibility is to seek to ensure that all citizens enjoy a
fair and impartial trial, and cameras may compromise that right, allowing cameras would not be in
the interest of justice. For these reasons, the Judicial Conference rejected the conclusions made by
the FJC study with respect to cameras in district courts.
For the appellate courts, an even larger percentage of judges who participated in the study
related negative responses:
• 47% of the appellate judges who responded found that, at least to some extent, the cameras
cause attorneys to be more theatrical in their presentations;
• 56% found that, at least to some extent, the cameras cause attorneys to change the emphasis
or content of their oral arguments;
• 34% reported that, at least to some extent, cameras cause judges to change the emphasis or
content of their questions at oral arguments; and
• 26% reported that, at least to some extent, the cameras disrupt courtroom proceedings.
While the Conference did allow each United States court of appeals to determine whether
to permit the use of cameras in that circuit, these high negative responses give us a very real
indication as to why only two out of 13 courts of appeals have allowed their proceedings to be
televised. The two courts that do allow camera coverage are the Second and Ninth Circuits,
which voluntarily participated in the pilot project.
Carefully read, the FJC study does not reach the firm conclusions for which it is repeatedly
cited. The negative responses described above undermine such a reading. When considering
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legislation affecting cameras in the courtroom with such permanent and long-range implications for
the judicial process, the negative responses should be fully considered. Certainly that is what the
Conference focused on. In reality the recommendations of the study reflect a balancing exercise
which may seem proper to social scientists but which is unacceptable to judges who cannot
compromise the interests of the litigants, jurors, and witnesses, even for some amorphous public
good. We turn to that issue now.
IV. The Putative Educational Benefit of Cameras in the Courtroom
The proponents of cameras in the courtroom rely, of course, on the putative benefits of
public education and understanding of court processes. The Judicial Conference supports that goal
but does not agree that cameras in courtrooms will significantly further it. The FJC study analyzed
the results achieved during the pilot project. The main approach to the issue lay in a content
analysis of evening news broadcast using footage obtained during the pilot program. 4 The content
analysis is disquieting. The ninety stories analyzed presented a total of one hour and twenty-five
minutes of courtroom footage, with an average of fifty-six seconds of courtroom footage per story.
There is not too much educational content in 56 seconds. Moreover, most of the courtroom footage
was voiced over by a reporter's narration. On average, reporters narrated 63% of all courtroom
4rhis analysis was conducted by the Center for Media and Public Affairs under contract with the FJC.
Content analysis is the objective and systematic description of communicative material. The content analysis
performed for this study proceeded in two phases. First, a qualitative analysis was used to identify the symbols,
stylistic devices, and narrative techniques shaping the form and substance of the news stories; this allowed the
researchers to develop analytic categories based on the actual content of the stories rather than imposing priori
categories. Second, the analytic categories that were developed and pre-tested formed the basis of a quantitative
analysis, which involved the systematic coding of story content into discrete categories.
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footage. Thus, the witnesses, parties, and attorneys spoke on camera for just over one-third of the
total air time. In at least one-half of the cases photographed, information on the nature of the case
was provided by reporters or anchors without relying on the participants.
The FJC report also sought to determine specifically the extent to which the stories
provided basic educational information about the legal system, examining whether five pieces of
information were conveyed to the viewer: (1) identification of the case as a civil matter;
(2) identification of the type or proceeding, such as a hearing or trial; (3) statements about whether
a jury was present; (4) descriptions of the proceedings on a given day; and (5) discussion of the
next step in the legal process. The report concluded as follows:
The vast majority of stories (95% of non-first day stories) did not identify
the proceeding covered as a civil matter. In addition, 77% of the stories failed to
identify the type of proceeding involved. Almost three-quarters (74%) of all
stories did not provide information about whether a jury was present, including half
of the stories that identified the covered proceedings as a trial.
Most stories (74%) did explain what transpired in court on a particular day,
such as who testified or what evidence was presented. In multiple-day cases, 90%
of the stories explained the daily proceedings, compared to 63% in single-day
stories. Seventy-six percent of the daily proceedings in a story were explained by
a combination of reporter narration and participant discussion. Only 29% of
stories mentioned the next step in the litigation process in the case.
Thus, the stories did not provide a high level of detail about the legal
process in the cases covered. In addition, the analysis revealed that increasing the
proportion of courtroom footage used in a story did not significantly increase the
information given about the legal process.
In view of the foregoing, we suggest that the benefits of televised coverage of courtroom
proceedings are overrated (and are certainly far outweighed by the detriments described above).
Television news coverage oftentimes appears simply to use the courtroom for a backdrop or a
visual image for the news story which, like many of such stories on television, are delivered in
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Statementfor the Judicial Conference Page 20
short sound bites and not in depth.
The FJC study also reported that Court TV covered 28 cases under the program and that C-
SPAN covered 7 cases. However, it does not appear from records available to us that these
proceedings were broadcast either in their entirety or continuously. The paucity of cases selected
by C-SPAN-seven in two years-suggests that the tediousness, technicality, and sheer length of
trials are obstacles to comprehensive media transmission, except in the sensational kinds of cases
where the harms described previously are the greatest.
V. A Better Vehicle for Public Education
The federal judiciary acknowledges that more needs to be done to improve the general
understanding by the public of the federal judiciary and its processes. We believe that this goal
can best be achieved by active federal judicial involvement. Federal courts have, in the past few
years, begun to play an active role in this area through community outreach programs. Under the
aegis of these programs, thousands of students, teachers, and other members of the public have
come into federal courts to learn more about the federal courts and to engage in dialogue with
judges, attorneys and court personnel. National initiatives to increase public understanding of the
federal court system are underway in pilot programs in two circuits. In addition, over the last two
years, the federal judiciary has conducted Law Day programs for high school seniors, during
which mock trials were broadcast to 2,000 students at over 30 participating courthouses
nationwide.
Additionally, plans are underway for federal courts to assist school personnel in planning
curriculums designed to instruct about the federal judiciary, culminating in court visits (or visits by
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judges to schools). The positive results of these kinds of programs are self-evident. We believe
that it would be preferable to expend the monies that would be necessary to support a cameras in
the courtroom project on these community outreach programs.
VI. Conclusion
When almost anyone in this country thinks of cameras in the courtroom today, they
inevitably think ofthe Simpson case. I sincerely doubt anyone believes that the presence of
cameras in that courtroom did not have an impact on the conduct of the attorneys, witnesses, jurors,
and judge-almost universally to the detriment of the trial process. Admittedly, few cases are
Simpson-like cases, but the inherent effects of the presence of cameras in the courtroom are, in
some respects, the same, whether or not it is a high-publicity case. Furthermore, there is a
legitimate concern that if the federal courts were to allow camera coverage of cases that are not
sensational, it would become increasingly difficult to limit coverage in the high-profile and
high-publicity cases where such limitation, almost all would agree, would be warranted.
This is not a debate about whether judges would be discomfited with camera coverage.
Nor is it a debate about whether the federal courts are afraid of public scrutiny. They are not.
Open hearings are a hallmark of the federal judiciary. It is also not about increasing the
educational opportunities for the public to learn about the federal courts or the litigation process.
The judiciary strongly endorses educational outreach, which could better be achieved through
increased and targeted community outreach programs.
Rather, this is a decision about how individual Americans-whether they are plaintiffs,
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Statementfor the Judicial Conference Page 22
defendants, witnesses, or jurors-are treated by the federal judicial process. It is the fundamental
duty of the federal judiciary to ensure that every citizen receives his or her constitutionally
guaranteed right to a fair trial. For the reasons discussed in this statement, the Judicial Conference
believes that the use of cameras in the courtroom could seriously jeopardize that right. It is this
concern that causes the Judicial Conference of the United States to oppose enactment of S. 721. As
the Supreme Court stated in Estes, "[w]e have always held that the atmosphere essential to the
preservation of a fair trial-the most fundamental of all freedoms-must be maintained at all
costs." 381 U.S. at 540.
Mr. Chairman, thank: you again for the opportunity to testify and present these views. I will
be pleased to answer any questions you or the other members ofthe Subcommittee may have.
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No. 10-16696
Argued December 6, 2010
(Reinhardt, Hawkins, N. Smith)
IN THE UNITED STATES COURT OF APPEALS

_________________________

v.
EDMUND G. BROWN, JR., et al.,
Defendants,
and
Defendants-Intervenors-Appellants.
_________________________
On Appeal From The United States District Court
For The Northern District Of California
No. CV-09-02292 JW (Honorable James Ware)
____________________________________________________
REPLY IN SUPPORT OF PLAINTIFFS-APPELLEES’ MOTION TO UNSEAL
____________________________________________________
Armonk, New York 10504 1050 Connecticut Avenue, N.W.
(914) 749-8200 Washington, D.C. 20036
(202) 955-8500
ENRIQUE A. MONAGAS
(213) 229-7804
Attorneys for Plaintiffs-Appellees
Kristin M. Perry, Sandra B. Stier, Paul T. Katami, and Jeffrey J. Zarrillo
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TABLE OF CONTENTS
Page
INTRODUCTION......................................................................................................1
ARGUMENT .............................................................................................................3
I. Proponents Have Not Come Close To Rebutting The

Strong First Amendment And Common Law Presumption
In Favor Of Public Access To The Trial Video ....................................3
II. Local Rule 77-3 Neither Affects Nor Informs The Public’s
Right Of Access To Judicial Records ...................................................7
CONCLUSION ........................................................................................................10
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Page(s)
Cases
ABC, Inc. v. Stewart,
360 F.3d 90 (2d Cir. 2004) ............................................................................10
Brown & Williamson Tobacco Corp. v. FTC,
710 F.2d 1165 (6th Cir. 1983) .....................................................................4, 5
In re Continental Ill. Sec. Litig.,
732 F.2d 1302 (7th Cir. 1984) .........................................................................4
Doe v. Reed,
130 S. Ct. 2811 (2010)...................................................................................10
Foltz v. State Farm Mut. Auto. Ins. Co.,
331 F.3d 1122 (9th Cir. 2003) .....................................................................3, 4
Globe Newspaper Co. v. Superior Court,
457 U.S. 596 (1982) ....................................................................................3, 7
Hagestad v. Tragesser,
49 F.3d 1430 (9th Cir. 1995) ...........................................................................7
130 S. Ct. 705 (2010)...................................................................................8, 9
NBC Subsidiary (KNBC-TV) v. Superior Court,
980 P.2d 337 (Cal. 1999).................................................................................7
435 U.S. 589 (1978) ........................................................................................9
Press-Enter. Co. v. Superior Court,
478 U.S. 1 (1986).............................................................................................7
Publicker Indus., Inc. v. Cohen,
733 F.2d 1059 (3d Cir. 1984) ..........................................................................4
Richmond Newspapers, Inc. v. Virginia,
448 U.S. 555 (1980) ........................................................................................4
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TABLE OF AUTHORITIES (continued)

Page(s)
Rushford v. New Yorker Magazine, Inc.,

846 F.2d 249 (4th Cir. 1988) ...........................................................................4
San Jose Mercury News, Inc. v. U.S. District Court,
187 F.3d 1096 (9th Cir. 1999) .........................................................................9
Seattle Times Co. v. U.S. District Court,
845 F.2d 1516 (9th Cir. 1988) .........................................................................4
Snyder v. Phelps,
131 S. Ct. 1207 (2011).....................................................................................5
Rules
9th Cir. R. 27-13(d)..................................................................................................10
N.D. Cal. Civ. R. 77-3............................................................................................8, 9
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INTRODUCTION
The First Amendment and the common law establish a strong presumption that
judicial records are open to the public; those seeking to rebut that presumption must
satisfy the heavy burden of proving that a compelling governmental interest requires
secrecy, and any sealing of records must be narrowly tailored to serve that overriding
governmental interest. The only interest Proponents claim in their campaign to keep
the entire video recording of this trial secret is their speculative fear that “dissemina-
tion of the trial recordings could have a chilling effect” on witnesses’ participation in
trials, and that “witnesses in future controversial cases . . . would think long and hard
before” testifying in a videotaped trial. Prop. Opp. 7. But Proponents have offered no
evidence whatsoever of such harm, either in the district court or in this Court, despite
ample opportunities to do so, instead relying on unsupported hypothesis and conjec-
ture. As this Court and the Supreme Court have made clear, such unsupported specu-
lation is insufficient to overcome the strong presumptive right of public access to judi-
cial records and proceedings.
The public has long known Proponents’ two witnesses who testified in this
trial—their identities and the transcripts of every word they said have been available
on the internet since they testified. In fact, these two paid expert witnesses had al-
ready written and published their views. They had purposefully thrust themselves and
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their opinions into the public domain on highly visible and controversial subjects, and
were actively engaged in a voluntary effort to convince the judicial system of the cor-
rectness of their opinions and to influence the outcome of a public trial on constitu-
tional issues affecting hundreds of thousands of California citizens. At best, Propo-
nents’ argument amounts to a claim that allowing the public to see and hear that testi-
mony, as opposed to just reading it, will somehow result in intimidation and harass-
ment that might deter these or other expert witnesses from coming forward to testify
for compensation in the future. This makes no sense. Indeed, video deposition testi-
mony of one of the Proponents and two of their later-withdrawn expert witnesses has
been available on the internet for more than a year. If any of them suffered harass-
ment or intimidation, Proponents doubtless would have submitted evidence of it.
Similarly, hundreds of people watched this testimony at the San Francisco Court-
house, both in the courtroom where the trial took place and in overflow courtrooms,
yet Proponents offered no evidence that any witness suffered any harassment whatso-
ever. Neither evidence nor logic supports Proponents’ speculative claims of threat-
ened harm, which are nothing more than a guise for Proponents’ true concern that the
public will see for themselves the utter lack of evidence or persuasive argument they
were able to offer in defense of Proposition 8 and its institutionalized discrimination
against gay men and lesbians. Proponents make nothing like the showing necessary to
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overcome the public’s presumptive right of access to court records under the First
Amendment and the common law.
Because they cannot refute the public’s right to see the Court’s records, Propo-
nents claim that those records should not exist in the first place. Whatever the merits
of that argument—and Plaintiffs submit it is meritless—it does not bear on the ques-
tion of whether the public should have access to this Court’s records that already exist:
The video recording of the trial exists as part of this Court’s official record of this
case, it was used without objection in the closing arguments, and it was a basis for ad-
judication below. The Constitution and common law give the public the strong pre-
sumptive right to inspect judicial records in the absence of specific, powerful reasons
to the contrary, which do not exist here.
ARGUMENT
I. Proponents Have Not Come Close To Rebutting The Strong First

Amendment And Common Law Presumption In Favor Of Public
Access To The Trial Video
The First Amendment and common law presumption of public access to judicial
records is overcome only by a showing of “compelling reasons supported by specific
factual findings.” Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 (9th
Cir. 2003) (emphases added); accord Globe Newspaper Co. v. Superior Court, 457
U.S. 596, 606-07 (1982). Contrary to Proponents’ assertion that the public’s right of
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access applies only to criminal proceedings (Prop. Opp. 5 n.2), the right of access ap-
plies to civil trials as it does to criminal trials. See, e.g., Foltz, 331 F.3d at 1135 (ob-
serving in a civil appeal, that this Court has “a strong presumption in favor of access
to court records.”). Indeed, “historically both civil and criminal trials have been pre-
sumptively open.” Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 n.17
(1980) (plurality); see also id. at 596 (Brennan, J., concurring in judgment) (emphasiz-
ing value of open civil proceedings); id. at 599 (Stewart, J., concurring in judgment)
(First Amendment provides a right of access to civil trials). Unanimous circuit court
authority holds that the same interests requiring presumptively open criminal trials
also warrant presumptively open civil trials. See, e.g., Publicker Indus., Inc. v. Cohen,
733 F.2d 1059, 1068-71 (3d Cir. 1984); Brown & Williamson Tobacco Corp. v. FTC,
710 F.2d 1165, 1178 (6th Cir. 1983); see also, e.g., Rushford v. New Yorker Maga-
zine, Inc., 846 F.2d 249, 252 (4th Cir. 1988); In re Continental Ill. Sec. Litig., 732
F.2d 1302, 1308-09 (7th Cir. 1984).
While Proponents belittle this concern (Prop. Opp. 2), public access to judicial
proceedings is crucial to public confidence in the judiciary. Seattle Times Co. v. U.S.
District Court, 845 F.2d 1513, 1516 (9th Cir. 1988); see also Media Coal. Br. 4-10.
“Public access creates a critical audience and hence encourages truthful exposition of
facts, an essential function of a trial.” Brown & Williamson Tobacco Corp., 710 F.2d
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at 1178. But to satisfy their burden and defeat the public’s interest, Proponents offer
only the same wholly unsupported and speculative assertions of potential harm that
the district court rightly rejected. ER 70-71.
Proponents’ speculation that expert witnesses in some hypothetical future case
would be intimidated if the public were permitted to view the testimony in this trial
cannot be credited. Proponents offered no evidence to support it, and while Propo-
nents’ counsel baldly assert the supposed fears and concerns of their witnesses, there
is absolutely no record evidence on that subject either. In any event, the Supreme
Court has emphasized that robust public debate is paramount over harms far more
concrete than those Proponents claim: “As a Nation we have chosen . . . to protect
even hurtful speech on public issues to ensure that we do not stifle public debate.”
Snyder v. Phelps, 131 S. Ct. 1207, 1213, 1220 (2011) (First Amendment right to pro-
test outside a funeral carrying signs such as “God Hates Fags” and “You’re Going to
Hell”). Judicial proceedings are open to enhance the dependability of witness testi-
mony with sunlight as the disinfectant. See Brown & Williamson Tobacco Corp., 710
F.2d at 1178 (“Witnesses in an open trial may be less inclined to perjure them-
selves.”).
While Proponents point to the Supreme Court’s statement in its stay ruling re-
garding the supposed fears of Proponents’ witnesses (Prop. Opp. 6), that statement
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was based on the very limited record before the Court at that time, which predated the
trial and included only the assertions of Proponents’ counsel and no evidence from the
witnesses themselves. Proponents’ counsel continued to make such claims during trial
but never supported them with any actual evidence. Indeed, during trial Proponents
sought to show that those who fight against marriage equality for gay men and lesbi-
ans are the real “victims” and are subject to harassment and abuse. They failed com-
pletely. Proponents best “evidence” of harm was a hearsay video from Fox’s O’Reilly
Factor. DIX2544. That excerpt featured a San Francisco resident, completely unin-
volved in the litigation, who did not testify or submit to cross-examination. Propo-
nents’ only other evidence of the fear of intimidation consisted of advertisements,
their own press releases, and press clippings (U.S.D.C. Doc #606 at 34), but the dis-
trict court rejected Proponents’ arguments based on this evidence (ER 71), and Propo-
nents have not shown that that factual finding was clearly erroneous. Proponents did
not offer a single sworn statement or live witness in the district court describing any
fear of intimidation or harassment, which led the district court to find that “[t]he re-
cord does not reveal the reason behind proponents’ failure to call their expert wit-
nesses.” ER 71. Even were such new evidence appropriate in this Court, Proponents
offered none. This is a failure of proof at the most basic level that falls far short of
proving an important, let alone compelling, governmental interest.
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In short, all Proponents offer is rank speculation. But the strong presumption of
access may be “overcome only on the basis of articulable facts known to the court, not
on the basis of unsupported hypothesis or conjecture.” Hagestad v. Tragesser, 49
F.3d 1430, 1434 (9th Cir. 1995) (citations and quotation marks omitted); see also
Press-Enter. Co. v. Superior Court, 478 U.S. 1, 15 (1986) (“The First Amendment
right of access cannot be overcome by the conclusory assertion that publicity might
deprive the defendant of [a fair trial].”); NBC Subsidiary (KNBC-TV) v. Superior
Court, 980 P.2d 337, 370 (Cal. 1999) (same).
Finally, Proponents’ demand for a wholesale ban on public access to the trial
video is not “narrowly tailored to serve [their] interest.” Globe Newspaper Co., 457
U.S. at 607. In fact, while the only interest that Proponents identify as justifying
keeping the trial video under seal is their witnesses’ fears, Proponents identify no
more narrowly tailored way to address this supposed fear than sealing the entire video.
Proponents do not even attempt to explain how the supposed, unsubstantiated fears of
their two expert witnesses justify sealing the testimony of Plaintiffs, Plaintiffs’ experts
or other fact witnesses, or the arguments of counsel.
II. Local Rule 77-3 Neither Affects Nor Informs The Public’s Right
Of Access To Judicial Records
Recognizing that no important interest justifies hiding this record, Proponents
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insist that the trial proceedings should not have been recorded at all under the district
court’s Local Rule 77-3. For instance, they argue that the Supreme Court’s “narrow”
decision in Hollingsworth, which considered “whether the District Court’s amendment
of [Local Rule 77-3] to broadcast this trial complied with federal law,” now governs
whether “the First Amendment affords the public the right to access the recordings or
broadcast of the trial proceedings in this case.” Prop. Opp. 5. But the Supreme
Court’s Hollingsworth decision nowhere mentions the First Amendment, nor could it
possibly have addressed uses of a trial video after the trial’s completion because the
Supreme Court ruled during the early days of the trial. Hollingsworth v. Perry, 130 S.
Ct. 705 (2010); see Prop. Opp. 2 (acknowledging “that was all that the order then un-
der review authorized”).
Further, whatever limits Local Rule 77-3 imposes on public broadcasting are
immaterial because the present motion does not remotely question whether a trial
should or must be publicly broadcast contemporaneously. Rather, because the trial
video is a judicial record, as Proponents themselves concede (Prop. Opp. 5), the pub-
lic should have the right to access, review, and evaluate that record. The issue is
whether the public should be denied access to a classic verbatim judicial record:
video recording of important testimony that took place in a public courtroom and has
been captured and published in transcripts.
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Proponents also argue that the common law presumption of access does not ap-
ply because allowing the public to see the trial video would violate Local Rule 77-3.
Prop. Opp. 5-6. Proponents are wrong. The common law’s “strong presumption in
favor of access” to judicial records (San Jose Mercury News, Inc. v. U.S. District
Court, 187 F.3d 1096, 1102 (9th Cir. 1999)), does not depend on the circumstances
under which the record was created. Rather, in deciding whether the presumption has
been defeated, courts consider, among other things, whether the records sought may
be used as “a vehicle for improper purposes,” such as the promotion of “public scan-
dal” or the disclosure of trade secrets. Nixon v. Warner Commc’ns, Inc., 435 U.S.
589, 598 (1978) (internal quotation marks omitted).
In any event, because the district court recorded the trial proceedings for use in
chambers, the recording did not violate the district court’s Local Rule 77-3, which
prohibits recording trial proceedings with the intent to publicly broadcast but permits
such recording for use in chambers. Proponents’ argument that determining a judge’s
intent in recording trial proceedings would nullify Local Rule 77-3 is baseless and im-
practical. To the extent Proponents are concerned that district judges might abuse
their discretion to record proceedings for use in their chambers, the proper course is
revision of the local rule through appropriate processes (see Hollingsworth, 130 S. Ct.
9
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at 710), not denying public rights of access afforded by the First Amendment and the
common law.
CONCLUSION
“The ability to see and to hear a proceeding as [it] unfolds is a vital component
of the First Amendment right of access.” ABC, Inc. v. Stewart, 360 F.3d 90, 99 (2d
Cir. 2004). To suppress the First Amendment and common law rights of access in
light of hypothetical, speculative, and utterly unproven harms is antithetical to the vi-
sion of this country as “the Home of the Brave.” Doe v. Reed, 130 S. Ct. 2811, 2837
(2010) (Scalia, J., concurring in judgment). Accordingly, this Court should grant
Plaintiffs’ motion to unseal the trial video. See 9th Cir. R. 27-13(d).
Dated: April 25, 2011 Respectfully submitted,

Armonk, NY 10504 1050 Connecticut Avenue, N.W.

ENRIQUE A. MONAGAS
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*********************************************************************************
on (date) .
*********************************************************************************
on (date) .
Apr 25, 2011
CM/ECF system.
Signature (use "s/" format) /s/ Theodore B. Olson

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SERVICE LIST
Thomas Brejcha Mathew D. Staver

THOMAS MORE SOCIETY LIBERTY COUNSEL
29 S. La Salle Street, Suite 440 1055 Maitland Center Commons
Chicago, IL 60603 2nd Floor
Maitland, FL 32751
Michael F. Moses Hon. Vaughn Walker
UNITED STATES CATHOLIC c/o PILLSBURY WINTHROP
CONFERENCE SHAW PITTMAN LLP
3211 Fourth Street, N.E. 50 Fremont Street
Washington, DC 20017 San Francisco, CA 94105-2228
Lincoln C. Oliphant Hon. Vaughn Walker

COLUMBUS SCHOOL OF LAW c/o BERKELEY LAW
The Catholic University of America 215 Boalt Hall
3600 John McCormack Road, NE Berkeley, CA 94720-7200
Thomas R. Burke
Arthur Bailey, Jr. Rochelle L. Wilcox
HAUSFELD LLP DAVIS WRIGHT TREMAINE LLP
44 Montgomery Street 505 Montgomery Street, Suite 800
Suite 3400 San Francisco, CA 94111
Anita L. Staver
LIBERTY COUNSEL
P.O. Box 540774
Orlando, FL 32854

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Case: 10-16696 04/27/2011 Page: 1 of 3 ID: 7732263 DktEntry: 348-1

MOLLY C. DWYER, CLERK

KRISTIN M. PERRY; et al., No. 10-16696

Plaintiffs - Appellees, D.C. No. 3:09-cv-02292-VRW

EDMUND G. BROWN, Jr., in his official

DENNIS HOLLINGSWORTH; et al.,

Before: REINHARDT, HAWKINS, and N.R. SMITH, Circuit Judges.

the video recordings.

We construe Appellants’ motion as a motion to enforce, against Plaintiffs

Cal.), and Plaintiffs’ cross-motion as a motion to lift that order. Although

ancillary matters, such as protective orders. Cf. Griggs v. Provident Consumer

appeal is an event of jurisdictional significance – it confers jurisdiction on the court

Clerk to TRANSFER Appellants’ motion (Doc. No. 338), Plaintiffs’ opposition

California, Case No. 3:09-cv-02292-JW.

ARGUED DECEMBER 6, 2010

APPELLANTS’ MOTION FOR ORDER COMPELLING RETURN OF

Andrew P. Pugno Charles J. Cooper

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

A. Policies and Rules Governing Broadcast of Trial Proceedings ............3

B. The District Court’s Efforts to Broadcast the Trial

C. The Supreme Court’s Decision Prohibiting Broadcast .........................6

D. Chief Judge Walker’s Creation of the Trial Recordings.......................7

E. Judge Walker’s Unlawful Public Disclosure of the Trial Recordings

I. THE TRIAL RECORDINGS MAY NOT BE SHOWN BEYOND THE CONFINES

A. The Recordings of the Trial Proceedings Are Under Seal..................15

B. Chief Judge Walker Unequivocally Assured Proponents

C. The Supreme Court’s Stay, the Judicial Council’s Policy, and

Exhibit 1 – Trial Transcript (Jan. 14, 2010)

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

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

Exhibit 4 - Report of the Proceedings of the Judicial Conference of the

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

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

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

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

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

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

Exhibit 18 - Letter from Charles J. Cooper

Exhibit 19 - Order (May 31, 2010)

Exhibit 20 - Amended Protective Order

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

Exhibit 22 – Trial Transcript (June 16, 2010)

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

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

Exhibit 27 - Plaintiffs’ and Plaintiff-Intervenor’s Opposition to Defendant-

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

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

Exhibit 32 - Office of the Circuit Executive, “Ninth Circuit Current and

Exhibit 33 - Report of the Proceedings of the Judicial Conference of the

Statutes and Rules

Appellants Hollingsworth, Knight, Gutierrez, Jansson, and

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

held by the court clerk under seal.1

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-

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