No.

09A648

IN THE
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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

 TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES.............................................................................................. ii

I. STATEMENT OF FACTS AND PROCEDURAL HISTORY.............................. 2

II. REASONS FOR DENYING THE STAY............................................................... 7

A. Proponents’ Request For A Stay Is Premature................................................ 8

B. There Is No Reasonable Probability That This Court Would Grant

Certiorari And Reverse The Court Of Appeals’ Denial Of
Proponents’ Mandamus Petition ..................................................................... 9

C. Proponents Will Not Be Irreparably Harmed In The Absence Of A

Stay.................................................................................................................. 17

D. The Balance Of Equities Weighs Against A Stay .......................................... 18

III. CONCLUSION ....................................................................................................... 19

i
 TABLE OF AUTHORITIES

Page(s)

Cases

ABC, Inc. v. Stewart,

360 F.3d 90 (2d Cir. 2004) ............................................................................................ 19

Armster v. U.S. Dist. Court,

806 F.2d 1347 (9th Cir. 1986) ....................................................................................... 13

Chandler v. Florida,
449 U.S. 560 (1981)................................................................................................. 16, 17

Cheney v. U.S. Dist. Court,

542 U.S. 367 (2004)..................................................................................... 10, 11, 12, 16

Conkright v. Frommert,
129 S. Ct. 1861 (2009)..................................................................................................... 7

Craig v. Harney,
331 U.S. 367 (1947)....................................................................................................... 18

Globe Newspaper Co. v. Superior Court,

457 U.S. 596 (1982)....................................................................................................... 18

Kerr v. U.S. Dist. Court,

426 U.S. 394 (1976)....................................................................................................... 10

McNabb v. United States,

318 U.S. 332 (1943)....................................................................................................... 10

In re Pilot Dist. Court Public Access Program Approved December 16,

2009, No. 2010-2 (9th Cir. Jan. 8, 2010) ......................................................................... 7

Press-Enterprise Co. v. Superior Court,

464 U.S. 501 (1984)....................................................................................................... 19

Richmond Newspapers v. Virginia,

448 U.S. 555 (1980)....................................................................................................... 18

In re Sony BMG Music Entertainment,

564 F.3d 1 (1st Cir. 2009)........................................................................................ 13, 14

ii
United States v. Criden,
648 F.2d 814 (3d Cir. 1981) .......................................................................................... 15

United States v. Terry,

11 F.3d 110 (9th Cir. 1993) ..................................................................................... 12, 13

Zablocki v. Redhail,
434 U.S. 374 (1978)......................................................................................................... 1

Statutes

28 U.S.C. § 332(d)(1) ........................................................................................................ 11

28 U.S.C. § 2071(e) ....................................................................................................... 5, 12

Rules

E.D.N.Y. Local Civ. R. 1.8 ............................................................................................... 13

S. Ct. R. 10(a) .................................................................................................................... 10

S.D.N.Y. Local Civ. R. 1.8................................................................................................ 13

Other Authorities

David Blankenhorn, Protecting Marriage to Protect Children,

L.A. Times, Sept. 19, 2008 ............................................................................................ 14

The Judicial Council of the Ninth Circuit, at http://www.ce9.uscourts.gov/

judicial_council.html ....................................................................................................... 4

News Release, Federal Courthouses to Offer Remote Viewing of

Proposition 8 Trial (Jan. 8, 2010),
at http://www.ce9.uscourts.gov/index.html..................................................................... 7

U.S. Court of Appeals for the Ninth Circuit, Guidelines for Photographing,
Recording, and Broadcasting in the Courtroom,
at http://www.ca9.uscourts.gov/content/view.php?pk_id=0000000110 ......................... 3

iii
TO THE HONORABLE ANTHONY M. KENNEDY, ASSOCIATE JUSTICE OF THE
SUPREME COURT OF THE UNITED STATES AND CIRCUIT JUSTICE FOR THE
NINTH CIRCUIT:

Kristin M. Perry, Sandra B. Stier, Paul T. Katami, and Jeffrey J. Zarrillo

(“Plaintiffs”) respectfully submit this response to the Application for Immediate Stay of

Proposition 8 Official Proponents (“Proponents”).

The application should be denied because this case is a sound candidate for

inclusion in the Ninth Circuit’s pilot camera program. This case directly implicates the

rights of the hundreds of thousands of gay and lesbian Californians whose right to marry

was extinguished by Proposition 8 (“Prop. 8”)—an arbitrary, irrational, and

discriminatory measure that singles out gay and lesbian individuals for unequal treatment

and excludes them from what this Court has recognized to be “the most important

relation in life.” Zablocki v. Redhail, 434 U.S. 374, 384 (1978) (internal quotation marks

omitted). There has been overwhelming public interest in this case since its inception.

The district court’s decision to include the case in the Ninth Circuit’s pilot program is a

reasonable—and lawful—means of providing the public with meaningful access to the

trial proceedings and fostering public confidence in the outcome of this closely watched

case. Because it is impossible to identify any basis on which Proponents could

conceivably obtain this Court’s review of that decision—and because Proponents would

not suffer any irreparable harm from the recording of the trial proceedings for public

distribution in other courtrooms and on the Internet—Proponents have not established

that a stay is warranted.

1
 I. STATEMENT OF FACTS AND PROCEDURAL HISTORY

Plaintiffs are gay and lesbian Californians who have filed suit in the United States

District Court for the Northern District of California challenging Prop. 8—the California

constitutional amendment that denies them the right to marry—under the Equal

Protection and Due Process Clauses of the Fourteenth Amendment to the United States

Constitution. A trial on Plaintiffs’ claims will commence tomorrow, Monday, January

11, 2010.

Proponents were responsible for placing Prop. 8 on the ballot, orchestrated a $40

million campaign to secure its passage, and have since touted their political victory in

numerous public appearances and news articles. Proponents have also voluntarily

intervened in this case. But now, on the eve of trial—and after months of notice that the

trial may be videotaped and distributed publicly—Proponents seek to sharply limit the

public’s ability to witness the trial proceedings.

Chief Judge Walker’s considered request to record the trial proceedings for public

distribution in other courtrooms and on the Internet was reached after months of notice

and many opportunities for all parties to be heard on the issue. In addition, that decision

is the result of years of study and deliberation by the Ninth Circuit on the issue of

broadcasting court proceedings. Indeed, as far back as 2007, the Ninth Circuit Judicial

Council adopted a resolution recommending that the Judicial Conference of the United

States endorse the broadcast of civil trials and recommending that the circuit “adopt a

Rule that would allow the photographing, recording, and broadcasting of non-jury, civil

proceedings before the District Courts in the Ninth Circuit.” C.A. App. Ex. 5. And, the

2
Ninth Circuit itself has permitted the broadcast of oral arguments in cases of widespread

public interest since 1996. See U.S. Court of Appeals for the Ninth Circuit, Guidelines

for Photographing, Recording, and Broadcasting in the Courtroom, at

http://www.ca9.uscourts.gov/content/view.php?pk_id=0000000110 (Supp. App. Ex. 1).

The public interest in this historic case has been overwhelming from the outset.

Due to that widespread public interest, Chief Judge Walker informed the parties as early

as September 25, 2009—long before any witnesses were designated—of the court’s

desire to “set up an arrangement whereby the images of counsel, the witness, and the

judge can be relayed into another courtroom . . . which has a substantial amount of

seating capacity.” C.A. App. Ex. 9, at 69. When Chief Judge Walker pointed out at the

September 25 hearing that there were three cameras in the courtroom positioned

“approximately where they would be” during the trial and asked if anyone had an

objection, the parties—including Proponents—stated that they did not. Id. at 70; see also

id. (“No objection. None at all.”). Thus, Proponents had notice of cameras in the

courtroom as early as September, and they did not object.

During the September 25 hearing, Chief Judge Walker also explained that he had

“received some inquiries . . . about projecting this image even beyond an overflow

courtroom.” C.A. App. Ex. 9, at 70. He asked the parties to consider that possibility and

inform the court of their views. He also noted that “what we do is open and public and

should be, but we want to do it in a way that’s consistent with the rights of the parties and

the appropriate decorum and dignity of the judicial process.” Id.

3
 On October 2, 2009, Plaintiffs submitted a letter to the court stating that they

supported the contemplated video transmission of the proceedings beyond the overflow

courtroom. C.A. App. Ex. 10. In addition, Plaintiff-Intervenor City of San Francisco,

Defendant California Attorney General Edmund G. Brown, and Defendants Counties of

Los Angeles and Alameda supported Plaintiffs’ position. Id. On October 5, 2009,

Proponents submitted a letter expressing their opposition to video transmission of the

proceedings. C.A. App. Ex. 11.

On October 22, 2009, “Chief Judge Kozinski . . . appointed a committee to

evaluate the possibility of adopting a Ninth Circuit rule” regarding the recording and

transmission of district court proceedings. C.A. App. Ex. 2, at 43. The committee

consisted of Circuit Judge Sidney Thomas, Chief Judge Audrey Collins of the Central

District of California, and Chief Judge Walker. Id. at 44. The committee “made a

recommendation to the Ninth Circuit Judicial Council, which unanimously adopted the

rule . . . permitting a pilot project” regarding the recording and transmission of civil non-

jury trials. Id. (emphasis added).1

1 The Ninth Circuit Judicial Council consists of eleven judges: Chief Judge Alex
Kozinski, Senior Circuit Judge Proctor Hug, Jr., Circuit Judge Sidney R. Thomas,
Circuit Judge M. Margaret McKeown, Circuit Judge Johnnie B. Rawlinson, Circuit
Judge Ronald M. Gould, Senior District Judge Robert H. Whaley, Chief District
Judge Roger L. Hunt, Chief District Judge Irma E. Gonzalez, Chief District Judge
Audrey B. Collins, and Senior District Judge Terry J. Hatter, Jr. Chief Judge Walker
is one of the nine non-voting observers of the Council. See The Judicial Council of
the Ninth Circuit, at http://www.ce9.uscourts.gov/ judicial_council.html.

4
 On December 17, 2009, the Ninth Circuit Judicial Council announced its decision

to establish a pilot program that “allow[s] the 15 district courts within the Ninth Circuit to

experiment with the dissemination of video recordings in civil non-jury matters.” C.A.

App. Ex. 13. Cases to be included in the program “will be selected by the chief judge of

the district court in consultation with the chief circuit judge.” Id.

In light of that authorization, the Northern District revised its Local Rule 77-3 on

December 22, 2009, to provide that, “[u]nless allowed by a Judge or a Magistrate Judge

. . . 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 . . . in

connection with any judicial proceeding[ ] is prohibited.” C.A. App. Ex. 14 (revisions

italicized). As Chief Judge Walker explained during the January 6 hearing in this case,

the Northern District “amended Local Rule 77-3, to permit participation in that Ninth

Circuit pilot project. At that time, we considered that to be a conforming amendment.

Our rules, of course, conform and must conform to the Federal rules and to the Ninth

Circuit rules.” C.A. App. Ex. 2, at 44.

In accordance with the requirements of 28 U.S.C. § 2071(e), the Northern District

provided public notice and an opportunity to comment on the revision to Local Rule 77-

3, setting January 8, 2010, as the deadline for comments. C.A. App. Ex. 17. Plaintiffs

and Proponents also submitted letters to the district court expressing their respective

positions on the amendment and the recording of the proceedings. See Doc # 327 (Supp.

App. Ex. 2); C.A. App. Ex. 15; C.A. App. Ex. 18.

5
 On January 6, 2010, the district court held a hearing regarding the video recording

of the trial and possible transmission beyond the courthouse. At the hearing, the court

proposed recording the trial proceedings using three small video cameras—the same

cameras to which Proponents did not object during the September 25 hearing (C.A. App.

Ex. 9, at 69-70)—and transmitting the images to an overflow courtroom in the Northern

District of California’s San Francisco courthouse and to other federal courthouses across

the country; the court further proposed making the images available (after a delay of up

to twenty-four hours) on YouTube, a popular Internet site that disseminates video footage

to the general public. C.A. App. Ex. 2, at 16; see also id. at 6. The district court also

denied a request, however, by a broad media coalition to broadcast the proceedings live

on television, explaining that “it’s important for this process to be completely under the

Court’s control, to permit the Court to stop it if that proves to be a problem, if it proves to

be a distraction, if it proves to create problems with witnesses.” Id. at 45.

The district court formally notified the parties on January 7, 2010, that, pending

the approval of Chief Judge Kozinski, video recordings of the trial proceedings would be

transmitted in accordance with the plan set forth by the court at the hearing a day earlier.

C.A. App. Ex. 1. On January 8, Proponents filed a petition for a writ of mandamus in the

Ninth Circuit seeking an order barring the recording of the trial proceedings for public

distribution in other courtrooms and on the Internet. After calling for a response from

Plaintiffs, the court of appeals denied the petition the same day. Proponents’ Ex. A.

Also on January 8, Chief Judge Kozinski issued an order authorizing the broadcast

of the trial proceedings to selected courthouses. The order did not, however, authorize

6
the district court to make the recordings available on the Internet, noting only that “[t]he

request for posting the files of the videos on the district court’s website is still pending.”

In re Pilot Dist. Court Public Access Program Approved December 16, 2009, No. 2010-2

(9th Cir. Jan. 8, 2010) (Kozinski, C.J.) (Supp. App. Ex. 3). In a press release regarding

the video transmissions issued the same day, the Ninth Circuit explained that the district

court “will fully control the process” and that “Judge Walker has reserved the right to

terminate any part of the audio, or video, or both, for any duration,” or to terminate

participation in the pilot program “at any time.” News Release, Federal Courthouses to

Offer Remote Viewing of Proposition 8 Trial (Jan. 8, 2010), at http://www.ce9.uscourts.

gov/index.html (Supp. App. Ex. 4).

On Saturday, January 9, 2010, Proponents filed their application requesting a stay

pending the filing and disposition of a petition for a writ of certiorari from the Ninth

Circuit’s order denying a writ of mandamus. At the time of this filing, the district court’s

request to publicly distribute the recorded trial proceedings on the Internet remains

pending before Chief Judge Kozinski.

II. REASONS FOR DENYING THE STAY

“Denial of . . . in-chambers stay applications is the norm; relief is granted only in

‘extraordinary cases.’” Conkright v. Frommert, 129 S. Ct. 1861, 1861 (2009) (Ginsburg,

J., Circuit Justice). To obtain a stay pending the filing and disposition of a petition for a

writ of certiorari, “the applicant must demonstrate (1) a reasonable probability that four

Justices will consider the issue sufficiently meritorious to grant certiorari or to note

probable jurisdiction; (2) a fair prospect that a majority of the Court will conclude that

7
the decision below was erroneous; and (3) a likelihood that irreparable harm [will] result

from the denial of a stay. In addition, in a close case it may be appropriate to balance the

equities—to explore the relative harms to applicant and respondent, as well as the

interests of the public at large.” Id. at 1861-62 (internal quotation marks omitted;

alteration in original). Each of those factors weighs strongly against a stay in this case.

A. Proponents’ Request For A Stay Is Premature.

As an initial matter, Proponents’ stay application should be denied because it is

premature. Proponents seek a stay of “the district court’s order permitting the

proceedings in this case to be publicly broadcast on YouTube.” Stay App. 25. Under the

terms of the Ninth Circuit Judicial Council’s pilot program, however, the district court’s

order cannot go into effect unless it is approved by Chief Judge Kozinski. Because Chief

Judge Kozinski has not yet determined whether to approve the district court’s request for

authorization to record and publicly distribute the trial proceedings in this case on the

Internet, there is no lower-court order for this Court to stay.

When the Ninth Circuit Judicial Council announced the introduction of its pilot

program, it explained that cases “to be considered for the pilot program will be selected

by the chief judge of the district court in consultation with the chief circuit judge.” C.A.

App. Ex. 13. In accordance with the terms of the program, the district court notified the

parties on January 7, 2010, that it had “formally requested the Chief Judge of the Ninth

Circuit to approve inclusion of the trial in the pilot project on the terms and conditions

discussed at the January 6, 2010 hearing,” which would provide for recording of the trial

proceedings for public distribution in an overflow courtroom in the Northern District of

8
California’s San Francisco courthouse and other federal courthouses across the country,

and on the Internet. C.A. App. Ex. 1. On January 8, 2010, Chief Judge Kozinski issued

an order that granted the district court’s request, “limited to real-time live streaming to

federal courthouses to be designated by the Circuit and Court of Appeals Executive.”

Supp. App. Ex. 3 (emphasis added). Chief Judge Kozinski explained that the “request for

posting the files of the videos on the district court’s website is still pending.” Id.

Because Chief Judge Kozinski has not yet decided whether to approve the district

court’s request that the trial proceedings be recorded and publicly disseminated on the

Internet, it is premature for Proponents to seek a stay of “the district court’s order

permitting the proceedings in this case to be publicly broadcast on YouTube.” Stay App.

25. Unless Chief Judge Kozinski approves the recording and subsequent Internet

distribution of the trial proceedings, that public distribution will not take place and the

district court’s order permitting that distribution will lack all legal force and effect.

Accordingly, there is nothing for this Court to stay at this time.

B. There Is No Reasonable Probability That This Court Would

Grant Certiorari And Reverse The Court Of Appeals’ Denial Of
Proponents’ Mandamus Petition.

Even if Chief Judge Kozinski were to approve the recording and subsequent

Internet distribution of the trial proceedings while Proponents’ stay application is

pending, the application should still be denied because there is no reasonable probability

that this Court would grant certiorari and reverse the court of appeals’ decision not to

issue a writ of mandamus barring that transmission. In the event that Chief Judge

Kozinski approves the recording and public distribution of the trial proceedings on the

9
Internet, that transmission would be authorized by both the district court’s local rules and

the policy of the Ninth Circuit Judicial Council, and would not impair Proponents’ due

process rights.

Proponents do not attempt to satisfy any of the traditional criteria that this Court

uses to evaluate whether to grant a petition for a writ of certiorari. Proponents do not

even suggest that the Ninth Circuit’s denial of mandamus conflicts with the decisions of

other circuits or the decisions of this Court. Proponents instead contend that this Court

would likely grant their forthcoming petition for certiorari—and reverse the Ninth

Circuit’s denial of mandamus—as “‘an exercise of this Court’s supervisory power’” over

lower courts. Stay App. 11 (quoting S. Ct. R. 10(a)). But this Court generally exercises

its “supervisory power” only when doing so is necessary to “establish[ ] and maintain[ ]

civilized standards of procedure and evidence.” McNabb v. United States, 318 U.S. 332,

340 (1943). Proponents have not demonstrated that the Ninth Circuit’s denial of

mandamus comes remotely close to presenting the exceptional circumstances that alone

justify the exercise of this Court’s supervisory power.

Indeed, the Ninth Circuit acted well within its broad discretion, and pursuant to

“civilized standards,” when it denied Proponents’ request for a writ of mandamus

prohibiting the recording and subsequent public distribution of the trial proceedings in

this case. As this Court has emphasized, mandamus is a “drastic and extraordinary

remedy reserved for really extraordinary causes” (Cheney v. U.S. Dist. Court, 542 U.S.

367, 380 (2004) (internal quotation marks omitted)), and its “issuance . . . is in large part

a matter of discretion with the court to which the petition is addressed.” Kerr v. U.S.

10
Dist. Court, 426 U.S. 394, 403 (1976). “[O]nly exceptional circumstances amounting to

a judicial usurpation of power or a clear abuse of discretion will justify the invocation of”

mandamus. Cheney, 542 U.S. at 380 (internal quotation marks and citations omitted).

To demonstrate that these “exceptional circumstances” are present, the party seeking

mandamus must establish that the lower court committed “clear and indisputable” error

and that it “ha[s] no other adequate means to attain the relief” being sought. Id. at 380-81

(internal quotation marks omitted). Proponents cannot make either of those showings in

this case.

1. If approved by Chief Judge Kozinski, the district court’s decision to record

and publicly distribute the trial proceedings in this case would be authorized both by the

Ninth Circuit Judicial Council and by the district court’s local rules.

On December 17, 2009, the Ninth Circuit Judicial Council announced its decision

to establish a pilot program that “allow[s] the 15 district courts within the Ninth Circuit to

experiment with the dissemination of video recordings in civil non-jury matters.” C.A.

App. Ex. 13. Proponents challenge the validity of the Ninth Circuit Judicial Council’s

pilot program on the ground that the council did not provide a notice and comment period

before establishing the program. But judicial councils are required to provide notice and

comment only when issuing “general order[s] relating to practice and procedure” within

the circuit (28 U.S.C. § 332(d)(1)), and, as Proponents concede, the Ninth Circuit Judicial

Council “has not issued” a “general order” authorizing the broadcast of civil non-jury

proceedings. Stay App. 23. Instead, it instituted a pilot program that is designed to assist

the council in determining whether to issue an order that permanently authorizes the

11
broadcast of such proceedings. C.A. App. Ex. 13. Proponents point to nothing in 28

U.S.C. § 332 or any other statute that makes notice and comment a prerequisite to the

establishment of such programs.

In accordance with the Ninth Circuit Judicial Council’s pilot program, the

Northern District of California revised its Local Rule 77-3 on December 22, 2009, to

provide that, “[u]nless allowed by a Judge or a Magistrate Judge . . . 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 . . . in connection with any judicial

proceeding[ ] is prohibited.” C.A. App. Ex. 19 (revisions italicized). That amendment

was validly enacted pursuant to 28 U.S.C. § 2071(e), which provides that, “[i]f the

prescribing court determines that there is an immediate need for a rule, such court may

proceed under this section without public notice and opportunity for comment, but such

court shall promptly thereafter afford such notice and opportunity for comment.” The

impending start of the trial in this case on January 11, 2010—and the overwhelming

public interest in this case—unquestionably satisfy this “immediate need” provision.2

2 Even if theNorthern District’s amendment of Local Rule 77-3 did not comport with all
the procedural requirements of 28 U.S.C. § 2071, the district court certainly did not
commit a “clear abuse of discretion” when, in reliance on that amended rule, it
requested permission from Chief Judge Kozinski to record the trial proceedings for
public distribution in other courtrooms and on the Internet. Cheney, 542 U.S. at 380
(internal quotation marks omitted). Proponents locate not one decision in which a
court of appeals has directed a district court to comply with a superseded local rule on
the ground that the process amending that rule was invalid. This case is a far cry from
United States v. Terry, 11 F.3d 110 (9th Cir. 1993), in which the court reversed the
denial of a motion to suppress on the ground that the defendant “received no actual

[Footnote continued on next page]

12
 Under the Ninth Circuit Judicial Council’s pilot program and amended Local Rule

77-3, the district court therefore possessed the authority to order the recording and public

distribution of the trial proceedings in this case, subject to the approval of Chief Judge

Kozinski. And, while it is the position of the Judicial Conference of the United States

that cameras should not be permitted in federal district courts, that policy is not binding

on the Ninth Circuit or the district court. See Armster v. U.S. Dist. Court, 806 F.2d 1347,

1349 n.1 (9th Cir. 1986) (“Except for judicial disciplinary proceedings, the Judicial

Conference does not have binding or adjudicatory authority over the courts.”). The

nonbinding nature of the Judicial Conference’s camera policy is confirmed by the fact

that both the Southern District of New York and the Eastern District of New York have

policies expressly authorizing judges to broadcast civil proceedings. See S.D.N.Y. Local

Civ. R. 1.8; E.D.N.Y. Local Civ. R. 1.8.3

[Footnote continued from previous page]

notice” of a general order that made his motion untimely, but did not invalidate the
general order as to those litigants who did have actual notice of it (as Proponents
indisputably did here). Id. at 113. Indeed, Terry recognizes that, “in promulgating
local rules, a district court has considerable latitude in calibrating its public notice
method to the individual needs of its jurisdiction.” Id. (internal quotation marks
omitted). Moreover, Proponents complain that the opportunity for comment provided
by the district court is “patently inadequate” (Stay App. 21), but, as they concede,
they were first informed of the possibility that the trial proceedings would be recorded
and publicly disseminated in September 2009, and have subsequently made their
objections known at every available opportunity and in every available forum. Id. at
6.
3 The Ninth Circuit’s denial of mandamus is completely consistent with the First
Circuit’s decision in In re Sony BMG Music Entertainment, 564 F.3d 1 (1st Cir.
2009). In that case, a “controlling” local rule explicitly prohibited broadcast of “any

[Footnote continued on next page]

13
 Proponents are also wrong when they suggest that the recording and public

dissemination of the trial proceedings in other courtrooms and on the Internet would

impair their due process rights. Stay App. 24. Proponents’ concerns about the possibility

of compromised safety, witness intimidation, or harassment of trial participants are

utterly unsubstantiated and groundless speculation.

As an initial matter, every one of the witnesses that Proponents have indicated

they will call at trial is a paid expert. But Proponents designated these persons as their

experts a week after the district court first suggested that it might record and publicly

distribute the proceedings and after Plaintiffs had expressed support for such a broadcast.

Doc # 160 at 2 (Supp. App. Ex. 6); C.A. App. Ex. 10. Surely, counsel for Proponents

informed their paid experts of the possibility that the trial proceedings could be

disseminated in other courtrooms and on the Internet, and it seems that those experts

nevertheless agreed to testify. Indeed, given the very public profiles of many of

Proponents’ experts—for example, Proponents’ expert David Blankenhorn has published

numerous op-eds opposing marriage equality (see, e.g., David Blankenhorn, Protecting

Marriage to Protect Children, L.A. Times, Sept. 19, 2008), and their expert Loren Marks

[Footnote continued from previous page]

proceedings,” and the district court’s interpretation of that rule to permit a broadcast
was “palpably incorrect.” Id. at 4, 5, 10. Here, quite unlike Sony, the “controlling”
local rule explicitly permits broadcast of civil non-jury trials designated as appropriate
by the chief judges of the district court and the Ninth Circuit. Proponents’
argument—that the “controlling” local rule was invalidly amended—was not
remotely presented in Sony.

14
has a YouTube video discussing marriage (see http://www.youtube.com/watch?v=

atVTejG6U_U)—it is hard to believe that those experts are not embracing the

opportunity to communicate their views to the broadest possible audience. At a

minimum, the publicity willingly sought by Proponents’ paid experts deeply undermines

the suggestion that any additional publicity they may receive as a result of the Internet

rebroadcast of the trial proceedings will expose them to threats and harassment they

otherwise would not have faced. See United States v. Criden, 648 F.2d 814, 825 (3d Cir.

1981) (“when the defendants themselves were public figures and their conduct was

already the subject of national publicity and comment, we find the district court’s

concerns about the incremental effect of rebroadcast publicity to be unconvincing”).

Furthermore, to the extent Proponents’ concern is for adverse witnesses that

Plaintiffs may call, those persons willingly thrust themselves into public view years ago

by sponsoring Prop. 8 and orchestrating an expensive, sophisticated, and highly public

multimedia campaign to amend the California Constitution. They certainly did not

exhibit a similar fear of public attention when attempting to garner votes for Prop. 8 from

millions of California voters, when touting their successful campaign strategy in post-

election magazine articles and public appearances (see Supp. App. Ex. 5;

http://www.youtube.com/ watch?v=ngbAPVVPD5k), or when voluntarily intervening in

this case. In any event, many aspects of the trial—including opening and closing

arguments and testimony by the parties’ experts—will not even remotely implicate

Proponents’ purported witness-related concerns. And, the district court indicated that,

should it determine that witness issues or other factors militate against permitting camera

15
coverage of particular portions of the trial, it can and will limit transmission of those parts

of the trial to the public. See C.A. App. Ex. 2, at 44-45.

2. In light of the authority granted to the district court by its Local Rules and

the Ninth Circuit Judicial Council—and the absence of any factual or legal support for

Proponents’ due process arguments—the Ninth Circuit correctly concluded that the

district court did not err when it requested Chief Judge Kozinski’s approval to record and

publicly distribute the trial proceedings in other courtrooms and on the Internet. But even

if the transmission of the trial proceedings would constitute a “clear and indisputable”

violation of either the applicable procedural rules or due process—and it certainly does

not—the Ninth Circuit would still have been correct to deny mandamus because

Proponents have “other adequate means to attain the relief” being sought. Cheney, 542

U.S. at 380, 381 (internal quotation marks omitted).

If, as Proponents allege, the recording and transmission of the trial proceedings

would impair their right to a fair trial, Proponents—like any other litigant who has been

prejudiced by deficient trial procedures—would have the opportunity to seek full relief

on a motion for a new trial and subsequent appeal. Indeed, this Court has expressly held

that post-trial review provides litigants with a meaningful opportunity to challenge a

court’s authorization of cameras during trial proceedings. See Chandler v. Florida, 449

U.S. 560, 581 (1981) (holding that television coverage of a criminal trial did not impair

defendants’ due process rights, while emphasizing that a “defendant has the right on

review to show that the media’s coverage of his case—printed or broadcast—

compromised the ability of the jury to judge him fairly”) (emphasis added). The

16
mandamus relief sought by Proponents—and properly denied by the Ninth Circuit—was

therefore unnecessary.

C. Proponents Will Not Be Irreparably Harmed In The Absence Of A

Stay.

In addition to failing to establish any reasonable likelihood that this Court will

grant review, Proponents have failed to demonstrate that they would be irreparably

harmed in the absence of a stay.

As explained above, Proponents’ assertions that the recording and subsequent

public distribution of the trial proceedings would expose Proponents and their paid expert

witnesses to threats and harassment are completely unfounded. The identity of

Proponents and their experts—and their position on the issues to be litigated in this

case—are already well known to the public, and thus the hypothesized risks posited by

Proponents would not be materially increased by the recording and transmission of the

trial proceedings. And any prejudice that such public dissemination of the proceedings

might have upon Proponents’ procedural due process rights could be fully remedied on

appeal. Chandler, 449 U.S. at 581. In light of the absence of any showing of irreparable

harm, a stay is not warranted.

17
 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
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.

/s/ Theodore B. Olson

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
 No. 09A648

IN THE
pìéêÉãÉ=`çìêí=çÑ=íÜÉ=råáíÉÇ=pí~íÉë=

DENNIS HOLLINGSWORTH, ET AL.,

Applicants,
v.
KRISTIN M. PERRY, ET AL.,
Respondents.

CERTIFICATE OF SERVICE

I hereby certify that I am a member in good standing of the bar of this Court and
that on this 10th day of January 2010, I caused a copy of the foregoing Response to
Application for Immediate Stay to be served by electronic mail on the counsel identified
below. All parties required to be served have been served.
Therese M. Stewart Charles J. Cooper
OFFICE OF THE CITY ATTORNEY Michael W. Kirk
City Hall, Room 234 Jesse Panuccio
One Dr. Carlon B. Goodlett Place COOPER AND KIRK, PLLC
San Francisco, CA 94102-4682 1523 New Hampshire Ave., N.W.
therese.stewart@sfgov.org Washington, D.C. 20036
(202) 220-9600
Attorneys for Plaintiff-Intervenor City and ccooper@cooperkirk.com
County of San Francisco mkirk@cooperkirk.com
jpanuccio@cooperkirk.com
Richard E Winnie
Brian E. Washington Attorneys for Applicants
Claude F. Kolm
Manuel F. Martinez
THE OFFICE OF CITY COUNSEL
1221 Oak Street, Suite 450
Oakland, CA 94612
brian.washington@acgov.org
claude.kolm@acgov.org

Attorneys for Defendant Patrick O’Connell

Clerk Recorder of the County of Alameda
Terry L. Thompson Gordon Burns
LAW OFFICE OF TERRY L. THOMPSON Tamar Pachter
P.O. Box 1346 OFFICE OF THE ATTORNEY
Alamo, CA 94507 GENERAL
Tel: (925) 855-1507 1300 I Street, Suite 125
Fax: (925) 820-6035 P.O Box 944255
tl_thompson@earthlink.net Sacramento, CA 94244-2550
Gordon.Burns@doj.ca.gov
Attorney for Defendant-Intervenor Hak- Tamar.Pachter@doj.ca.gov
Shing William Tam
Attorneys for Defendant Attorney
Elizabeth M. Cortez General Edmund G. Brown, Jr.
Judy W. Whitehurst
THE OFFICE OF CITY COUNSEL Kenneth C. Mennemeier
648 Kenneth Hahn Hall of Administration Andrew W. Stroud
500 West Temple Street MENNEMEIER, GLASSMAN
Los Angeles, CA 90012-2713 STROUD LLP
jwhitehurst@counsel.lacounty.gov 980 9th Street, Suite 1700
Sacramento, CA 95814-2736
Attorneys for Defendant Dean C. Logan kcm@mgslaw.com
Registrar-Recorder/County Clerk, County of stroud@mgslaw.com
Los Angeles
Attorneys for the Administration
Thomas R. Burke Defendants
DAVIS WRIGHT TREMAINE LLP
505 Montgomery Street, Suite 800
San Francisco, CA 94111
(415) 276-6500
thomasburke@dwt.com

Attorney for Non-Party Media Coalition

/s/ Amir C. Tayrani

Amir C. Tayrani