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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)

REPLY ON APPELLANTS’ MOTION FOR ORDER COMPELLING

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

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

ARGUMENT ............................................................................................................. 1

CONCLUSION .......................................................................................................... 9

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

United States (Sept. 20, 1994)

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

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

Exhibit 7 – Trial Transcript (Jan. 11, 2010)

Exhibit 8 – Trial Transcript (Jan 13, 2010)

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

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

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

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

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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)

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

United States (Sept. 14, 2010)

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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TABLE OF AUTHORITIES

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

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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

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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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)

*********************************************************************************
CERTIFICATE OF SERVICE
When Not All Case Participants are Registered for the Appellate CM/ECF System
I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the
United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system
on (date) .
April 21, 2010
Participants in the case who are registered CM/ECF users will be served by the appellate
CM/ECF system.

I further certify that some of the participants in the case are not registered CM/ECF users. I
have mailed the foregoing document by First-Class Mail, postage prepaid, or have dispatched it
to a third party commercial carrier for delivery within 3 calendar days to the following
non-CM/ECF participants:

Please see attached service list.

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
Washington, DC 20064
San Francisco, CA 94111
Anita L. Staver
LIBERTY COUNSEL
P.O. Box 540774
Orlando, FL 32854