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NO.10-16696
ARGUED DECEMBER 6,2010
(CIRCUIT JUDGES STEPHEN REINHARDT,MICHAEL HAWKINS,&N.R.SMITH)
UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT
KRISTIN PERRY, et al.,
Plaintiffs-Appellees,
v.
EDMUND G. BROWN, Jr., et al.,
Defendants,
and
DENNIS HOLLINGSWORTH, et al.,
Defendant-Intervenors-Appellants.
On Appeal from United States District Court for the Northern District of California
Civil Case No. 09-CV-2292 JW (Honorable James Ware)
APPELLANTS MOTION FOR ORDER COMPELLING RETURN OF
TRIAL RECORDINGS
Andrew P. Pugno
LAW OFFICES OF ANDREW P.PUGNO
101 Parkshore Drive, Suite 100
Folsom, California 95630
(916) 608-3065; (916) 608-3066 Fax
Brian W. Raum
James A. Campbell
ALLIANCE DEFENSE FUND
15100 North 90th Street
Scottsdale, Arizona 85260
(480) 444-0020; (480) 444-0028 Fax
Charles J. Cooper
David H. Thompson
Howard C. Nielson, Jr.
COOPER AND KIRK,PLLC
1523 New Hampshire Ave., N.W.
Washington, D.C. 20036
(202) 220-9600; (202) 220-9601 Fax
Attorneys for Defendant-Intervenors-Appellants Hollingsworth, Knight, Gutierrez,
Jansson, and ProtectMarriage.com
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TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES....................................................................................iv
INTRODUCTION .....................................................................................................1
STATEMENT............................................................................................................3
A. Policies and Rules Governing Broadcast of Trial Proceedings ............3B. The District Courts Efforts to Broadcast the Trial
Proceedings ...........................................................................................5
C. The Supreme Courts Decision Prohibiting Broadcast .........................6D. Chief Judge Walkers Creation of the Trial Recordings.......................7E. Judge Walkers Unlawful Public Disclosure of the Trial Recordings
Beyond the Confines of the Courthouse .............................................12
ARGUMENT...........................................................................................................13
I. THE TRIAL RECORDINGS MAY NOT BE SHOWN BEYOND THE CONFINESOF THE NORTHERN DISTRICT OF CALIFORNIA COURTHOUSE ..........................13
A. The Recordings of the Trial Proceedings Are Under Seal..................15B. Chief Judge Walker Unequivocally Assured Proponents
That the Trial Recordings Would Be for His Exclusive Use
in Chambers.........................................................................................16
C. The Supreme Courts Stay, the Judicial Councils Policy, andthe District Courts Local Rule Prohibit Showing the Trial
Recordings Beyond the Confines of the Courthouse..........................16
II. THE COURT SHOULD ORDER THE IMMEDIATE RETURN OF ALL COPIESOF THE TRIAL RECORDINGS ............................................................................18
CONCLUSION........................................................................................................20
i
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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 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)
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)
ii
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Exhibit 18 - Letter from Charles J. Cooper
Exhibit 19 - Order (May 31, 2010)
Exhibit 20 - Amended Protective Order
Exhibit 21 - Notice to Court Clerk re Plaintiffs Request for a Copy of the
Trial Recording (June 2, 2010)
Exhibit 22 Trial Transcript (June 16, 2010)
Exhibit 23 - Notice to Court Clerk from Plaintiff-Intervenor City and County
of San Francisco re Use of Video (June 2, 2010)
Exhibit 24 - Order (June 9, 2010)
Exhibit 25 - Declaration of Peter A. Patterson (June 29, 2010)
Exhibit 26 - Defendant-Intervenors Motion for Administrative Relief (June
29, 2010)
Exhibit 27 - Plaintiffs and Plaintiff-Intervenors Opposition to Defendant-
Intervenors Motion for Administrative Relief (June 29, 2010)
Exhibit 28 - Findings of Fact and Conclusions of Law (Aug. 4, 2010)
Exhibit 29 - Petition for a Writ of Certiorari, Hollingsworth v. United States
Dist. Ct. (Apr. 8, 2010)
Exhibit 30 - Order, Hollingsworth v. United States Dist. Ct. (S. Ct. Oct. 4,
2010)
Exhibit 31 - Order, Hollingsworth v. United States Dist. Ct. (9th Cir. Oct.
15, 2010)
Exhibit 32 - Office of the Circuit Executive, Ninth Circuit Current andFuture Vacancy Table (Mar. 17, 2011)
Exhibit 33 - Report of the Proceedings of the Judicial Conference of the
United States (Sept. 14, 2010)
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
Hollingsworth v. Perry,
130 S. Ct. 1132 (2010)..........................................................................................6
In re Charge of Judicial Misconduct,
91 F.3d 90 (9th Cir. Judicial Council 1996) .........................................................3
In re Complaint Against District Judge Joe Billy McDade,
No. 07-09-90083 (7th Cir. Sept. 28, 2009)...............................................2, 14, 17
In re Sony BMG Music Entmt.,564 F.3d 1 (1st Cir. 2009)...................................................................................17
Matter of Sealed Affidavit(s),
600 F.2d 1256 (9th Cir. 1979) ............................................................................18
Nixon v. Warner Commcns, Inc.,
435 U.S. 589 (1978)............................................................................................18
United States v. Lang,
364 F.3d 1210 (10th Cir. 2004) ..........................................................................15
United States v. New York Tel. Co.,434 U.S. 159 (1977)............................................................................................20
United States v. Nixon,
417 U.S. 960 (1974)............................................................................................16
Statutes and Rules
18 U.S.C. 2071(a) .................................................................................................15
28 U.S.C. 332(d)(2)...............................................................................................17
28 U.S.C. 351(a) ..............................................................................................2, 14
Circuit R. 27-13(d)...................................................................................................19
Circuit Advisory Comm. Note to R. 27-13..............................................................16
Code of Conduct for United States Judges, Canon 2A............................................15
Ninth Circuit Rules of Judicial Conduct art. I, 3(h)(2).........................................15
iv
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v
Other
http://www.c-spanvideo.org/program/Vaugh............................................ 1, 5, 12-13
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Appellants Hollingsworth, Knight, Gutierrez, Jansson, and
ProtectMarriage.com (hereinafter, Proponents) respectfully move the Court to
order that former district judge Vaughn Walker cease further disclosures of the
video recordings of the trial proceedings in this case, or any portion thereof, and
that all copies of the trial recordings in the possession, custody, or control of any
party to this case or of former judge Walker be returned promptly to the Court and
held by the court clerk under seal.1
INTRODUCTION
On February 18, 2011, Judge Walker delivered a speech at the University of
Arizona in which he played a portion of the video recording of the cross-
examination of one of Proponents expert witnesses in the trial of this case. The
speech was video taped by C-SPAN, and it was subsequently broadcast on C-
SPAN several times beginning on March 22. See http://www.c-
spanvideo.org/program/Vaugh, Details Airing Details. The speech is available
for viewing on C-SPANs website. See id.
By publicly displaying the video recording of a portion of the trial
testimony, Judge Walker (1) violated his own order placing the video recording of
the trial under seal; (2) ignored the clear terms of the district courts Local Rule 77-
1
Counsel for both Appellees oppose this motion. As indicated in the
Certificate of Service, a copy of this motion has been served upon former judge
Walker.
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3, which prohibits the broadcast or other transmission of trial proceedings beyond
the confines of the courthouse; (3) contravened the longstanding policies of the
Judicial Conference of the United States and the Judicial Council of this Court
prohibiting public broadcast of trial proceedings; and (4) defied the United States
Supreme Courts prior decision in this case ruling that an earlier attempt by then-
Chief Judge Walker to publicly broadcast the trial proceedings complied neither
with existing rules or policies nor the required procedures for amending them.
Hollingsworth v. Perry, 130 S. Ct. 705, 713 (2010). Thus, Judge Walker
engaged in conduct prejudicial to the effective and expeditious administration of
the business of the courts. In re Complaint Against District Judge Joe Billy
McDade, No. 07-09-90083 (7th Cir. Sept. 28, 2009) (Easterbrook, C.J.) (quoting
28 U.S.C. 351(a)).
But even more regrettable, perhaps, than all of this is the fact that Judge
Walkers use of the trial recording repudiated his own solemn commitment to
Proponents in open court that, despite Proponents objection, the trial was being
video recorded simply for [his] use in chambers, because it would be quite
helpful to [him] in preparing the findings of fact. Ex. 1 at 754:18-19, 755:4. In
reliance on this assurance, Proponents took no action to prevent the recording of
the trial. One of Proponents expert witnesses also relied on this assurance,
deciding to testify after then-Chief Judge Walker had made clear that the trial
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recording would not be broadcast. Now a portion of his testimony has appeared on
national television, and he regrets his decision to trust this assurance.
Whats done is done. Judge Walkers speech, and C-SPANs public
dissemination of it, cannot be undone, and given that Judge Walker has recently
retired from the federal bench, he cannot be disciplined. See In re Charge of
Judicial Misconduct, 91 F.3d 90, 91 (9th Cir. Judicial Council 1996). But he can
be ordered to cease further unlawful and improper disclosures of the trial
recordings, or any portion thereof, and to return to this Court any copies of the trial
recordings in his possession, custody, or control. We respectfully request that he
be ordered to do so. We also request that Appellees be ordered to return their
copies of the trial recordings, which were provided to them by then-Chief Judge
Walker for their use in closing argument below and in the appeal to this Court.
Putting aside that providing copies of the trial recordings to Appellees also violated
Local Rule 77-3, the policies of the Judicial Conference and this Courts Judicial
Council, and then-Chief Judge Walkers assurances in open court, the purpose for
which they were provided has now been fulfilled, and Appellees continued
possession of the recordings can no longer be justified.
STATEMENT
A. Policies and Rules Governing Broadcast of Trial ProceedingsIn 1996, the Judicial Conference of the United States adopted a policy
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opposing the public broadcast of [trial] court proceedings. Hollingsworth v.
Perry, 130 S. Ct. 705, 711 (2010); see also Ex. 2 at 54. This policy, which remains
in place today, seeHollingsworth, 130 S. Ct. at 712, is rooted in decades of
experience and study showing the potentially negative impact of broadcasting on
trial proceedings. Ex. 3 at 1; see also Hollingsworth, 130 S. Ct. at 711-12; Ex. 4 at
46-47. Indeed, in July 2009 the Judicial Conference forcefully reiterated to
Congress its conclusion that the negative [e]ffects of cameras in trial court
proceedings far outweigh any potential benefit. Ex. 3 at 1.
Also in 1996, the Ninth Circuit Judicial Council voted to adopt the policy
of the Judicial Conference of the United States regarding the use of cameras in the
courts. Ex. 5. The Councils policy thus provided: The taking of photographs
and radio and television coverage of court proceedings in the United States district
courts is prohibited. Id. [T]his policy [was] binding on all courts within the
Ninth Circuit. Id. Accordingly, the Northern District of California adopted Local
Rule 77-3, which prohibited the streaming of transmissions, or other broadcasting
or televising, beyond the confines of the courthouse. Hollingsworth, 130 S. Ct.
at 711 (quoting Local Rule 77-3); see alsoid. at 707 (Local Rule 77-3 forbid[s]
the broadcasting of trials outside the courthouse in which a trial takes place); Ex.
6.
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B. The District Courts Efforts to Broadcast the Trial ProceedingsFormer judge Walker has made no secret of his strong disagreement with the
rules and policies prohibiting the broadcast of trial proceedings. Indeed, his
February 18 speech was entitled Shooting the Messenger: How Cameras in the
Courtroom Got a Bad Rap. See http://www.c-spanvideo.org/program/Vaugh. His
advocacy was no less fervent from the bench in this case. His determined effort,
while Chief Judge, to broadcast the trial of this case, and the unlawful procedural
irregularities that it occasioned, are recounted in detail in the Supreme Courts stay
opinion, which put a stop to that effort. See Hollingsworth, 130 S. Ct. at 708-09,
711-12, 714-15. It suffices to repeat the Supreme Courts conclusion: The
District Court here attempted to revise its rules in haste, contrary to federal statutes
and the policy of the Judicial Conference of the United States. It did so to allow
broadcasting of this high-profile trial without any considered standards or
guidelines in place. [T]he order in question complied neither with existing rules
or policies nor the required procedures for amending them. Id. at 713.
The Supreme Court was especially concerned about the effect on witnesses.
Noting the Judicial Conferences determination that broadcasting trial testimony
could have an intimidating effect on some witnesses, even in routine, non-
controversial cases, the Court concluded that this high-profile, highly divisive
case is not a good one for a pilot program. Id. at 712, 714-15. Indeed, the
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Court emphasized that [s]ome of [Proponents] witnesses have already said that
they will not testify if the trial is broadcast, and they have substantiated their
concerns by citing incidents of past harassment. Id. at 713. Thus, because public
broadcast could have a chilling effect on witnesses testimony and their willingness
to cooperate in any future proceedings, the Supreme Court determined that
irreparable harm will likely result from the denial of the stay. Id. at 712-13.
C. The Supreme Courts Decision Prohibiting BroadcastOn the morning of Monday, January 11, 2010, just before commencement of
the trial, the Supreme Court entered a temporary emergency stay, order[ing] that
[then-Chief Judge Walkers] order permitting real-time streaming is stayed
except as it permits streaming to other rooms within the confines of the courthouse
in which trial is to be held and that [a]ny additional order permitting broadcast of
the proceedings is also stayed. Hollingsworth v. Perry, 130 S. Ct. 1132 (2010).
The temporary stay on its face was set to expire on Wednesday, January 13, when
the Court would enter a decision on Proponents' stay application. Id.
At the opening of trial later that morning, Appellees asked Chief Judge
Walker to continue video recording the proceedings for the purpose of later public
dissemination in the event the stay is lifted on January 13. Ex. 7 at 15:9. Chief
Judge Walker accepted Appellees proposal over Proponents objection that
recording the proceedings was not consistent with the spirit of the temporary
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stay issued by the Supreme Court. Id. at 16:16.
Far from lifting the stay, on January 13, the Supreme Court instead
grant[ed] the application for a stay of the District Courts order of January 7,
2010, pending the timely filing and disposition of a petition for a writ of certiorari
or the filing and disposition of a petition for a writ of mandamus. Hollingsworth,
130 S. Ct. at 715.
D. Chief Judge Walkers Creation of the Trial RecordingsDuring the trial proceedings later on January 13, Chief Judge Walker noted
that the Supreme Courts guidance with respect to the issue of broadcasting the
proceedings was rather limited. Ex. 8 at 662:18-20. Early the next day,
Proponents filed a letter with the district court request[ing] that [Chief Judge
Walker] halt any further recording of the proceedings in this case, and delete any
recordings of the proceedings to date that have previously been made. Ex. 9 at 1.
Proponents explained that, because of the Supreme Courts ruling on their stay
application, the proceedings were governed by the unamended version of Local
Rule 77-3, which banned the recording or broadcast of court proceedings. Id.
at 2 (quoting and emphasizing Hollingsworth, 130 S. Ct. at 708).
A few hours later, Chief Judge Walker opened that days proceedings by
reporting that, in light of the Supreme Courts decision yesterday, [he was]
requesting that this case be withdrawn from the Ninth Circuit pilot project. Ex. 1
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at 674:7-10. Proponents then asked for clarification that the recording of these
proceedings has been halted, the tape recording itself. Id. at 753:22-24. When
Chief Judge Walker responded that the recording ha[d] notbeen altered,
Proponents reiterated their contention (made in their letter submitted earlier that
morning) that, in light of the stay, the courts local rule prohibit[s]
continued tape recording of the proceedings. Id. at 753:25, 754:4-6 (emphasis
added).
Rejecting Proponents objection, Chief Judge Walker stated that the
unamended local rule permits recording for purposes of use in chambers and
that is customarily done when we have these remote courtrooms or the overflow
courtrooms, and that that the recording would be quite helpful to [him] in
preparing the findings of fact. Id. at 754:15-19. Thus, Chief Judge Walker said
that thats the purpose for which the recording is going to be made going forward.
But its not going to be for purposes of public broadcasting or televising. Id. at
754:21-23 (emphasis added). Chief Judge Walker then repeated his position that
he was making the recordings only for limited, private use: after noting that the
[unamended] local rule[] [prohibits] [t]he taking of photographs, public
broadcasting or televising, or recording for those purposes, Chief Judge Walker
stated: So the recording is not being made for those purposes, but simply for use
in chambers. Id. at 754:24-755:4 (emphasis added). In reliance on Chief Judge
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Walkers assurances that he was recording the proceedings solely for his personal
use in chambers, Proponents took no further action to prevent the recording.
On January 15, Chief Judge Walker formally requested Chief Judge
Kozinski to withdraw this case from the pilot project. Ex. 10 at 2. Chief Judge
Kozinski promptly granted Chief Judge Walkers request and rescinded his
January 8 order designating this case for the pilot program. Ex. 11.
The district court then withdrew the amendment to Local Rule 77-3
authorizing participation in the pilot program. See Ex. 12 (showing Local Rule 77-
3 without amendment). Despite the Supreme Courts criticism that the amendment
lacked standards or guidelines, Hollingsworth, 130 S. Ct. at 713, the district
court re-proposed its amendment to Local Rule 77-3 on February 4, 2010. Ex. 13.
After a comment period, the renewed proposal to amend Local Rule 77-3 lay
dormant until May 2010, when the district court without any announcement or
indication on its website published a revised set of Local Rules, effective April
20, containing the amended Local Rule 77-3. See Ex. 14-16.
On January 27, trial was adjourned. Closing argument was then set for June
16, 2010. On May 18, 2010, the Media Coalition requested that Chief Judge
Walker formally ask Chief Judge Kozinski to again include this case in the pilot
project approved by the Ninth Circuit Judicial Council on December 17, 2009, for
the sole purpose of recording, broadcasting and webcasting the closing argument
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portion of the trial. Ex. 17. Proponents submitted a letter opposing the request,
explaining that it would violate the stay entered by the Supreme Court. Ex. 18.
While the Media Coalitions request was pending, and although Chief Judge
Walker had unequivocally assured Proponents that he was recording the
proceedings solely for his own use in chambers, Chief Judge Walker sua sponte
invited the parties to use portions of the trial recording during closing arguments
and, to that end, made a copy of the video available to the part[ies]. Ex. 19.
Chief Judge Walker added: Parties will of course be obligated to maintain as
strictly confidential any copy of the video pursuant to paragraph 7.3 of the
protective order, id., which restricts highly confidential material to the parties
outside counsel and experts and to the Court and its personnel, Ex. 20 7.3.
Appellees Perry et al. requested and were given a copy of the recording of
the entire trial proceedings, see Ex. 21, portions of which they played during
closing argument, see Ex. 22 at 2961. Appellee City and County of San Francisco
requested and was given portions of the trial recording, see Ex. 23, but did not play
them during closing argument. Chief Judge Walker denied the Media Coalitions
request to record[], broadcast[] and webcast[] closing arguments. See Ex. 24.
On June 29, 2010,after closing argument, Proponents asked Appellees to
return all copies of the trial recordings in their possession to the district court. Ex.
25 2. When they refused, Proponents asked Chief Judge Walker to order
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[Appellees] to return to the Court immediately all copies of the trial video in their
possession. Ex. 26 at 1. Proponents argued that there was no legitimate
justification for permitting Plaintiffs and [San Francisco] to maintain possession of
copies of the trial video given that the sole purpose identified by [Chief Judge
Walker] for disseminating copies of the trial video to [them] potential use at
closing argument ha[d] been satisfied. Id. at 1-2. Proponents added: [E]ven
with [Chief Judge Walkers] requirement that all copies of the trial video be
maintain[ed] as strictly confidential, it cannot be denied that dissemination
beyond the confines of the Court has increased the possibility of accidental public
disclosure, and thus of the irreparable harm that the Supreme Court
acknowledged would likely result from public broadcast of the trial. Id. at 2
(quoting Hollingsworth, 130 S. Ct. at 712). Appellees countered that once
judgment is entered, the parties and the Court [should] evaluate whether, and to
what degree, the trial recording would be useful to the parties or to the Court in
connection with any additional proceedings and/or appeal. Ex. 27 at 1.
On August 4, 2010, Chief Judge Walker denied Proponents motion to order
the return of all copies of the trial recordings. Ex. 28 at 5. Instead, he
DIRECTED the district court clerk to file the trial recording under seal as part
of the record, and permitted Appellees to retain their copies of the trial recording
pursuant to the terms of the protective order. Id. at 4. After Proponents then
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appealed Chief Judge Walkers final judgment, the district court clerk transmitted
the certified record to this Court on October 22, 2010. Since then, the trial
recordings have remained continuously under seal.
In the meantime, on April 8, 2010, Proponents petitioned the Supreme Court
to grant review of this Courts earlier ruling denying their mandamus petition
seeking to prohibit the district court from broadcasting or otherwise disseminating
the trial proceedings. Proponents argued that, in light of Chief Judge Walkers
withdrawal of his stayed broadcast order and his unequivocal[] assur[ances] that
[his] continued recording of the trial proceedings was not for the purpose of public
dissemination, but rather solely for [his] use in chambers, this Courts order
denying the mandamus petition should be vacated as moot. Ex. 29 at 11-13.
Appellees opposed vacatur of this Courts order. On October 4, 2010, the Supreme
Court granted the petition, vacated this Courts mandamus ruling, and remanded
to [this Court] with instructions to dismiss the case as moot, Ex. 30, which this
Court did on October 15, 2010, Ex. 31.
E. Judge Walkers Unlawful Public Disclosure of the TrialRecordings Beyond the Confines of the Courthouse
On February 18, 2011, Judge Walker, having stepped down as Chief at the
end of December 2010, gave his speech at the University of Arizona. See
http://www.c-spanvideo.org/program/Vaugh. A substantial portion of the speech,
in which Judge Walker advocated allowing trial proceedings to be broadcast,
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concerned this case. Seeid., video at 4:40-8:08, 30:49-42:00. At one point, Judge
Walker played for his audience, on a large projection screen, an excerpt from the
trial recording of the cross-examination of one of Proponents expert witnesses.
Seeid., video at 33:12-36:52. Ten days later, on February 28, 2011, Judge Walker
retired from the bench. Ex. 32.
At least four times in late March 2011, C-SPAN broadcast Judge Walkers
Arizona speech, including the playback of the trial proceedings. See http://www.c-
spanvideo.org/program/Vaugh. In fact, Proponents counsel learned of Judge
Walkers speech and of the fact that he publicly showed a portion of the trial
recordings during the speech as a result of one of those broadcasts. C-SPAN also
made its broadcast of Judge Walkers speech available for public viewing on its
website. See http://www.c-spanvideo.org/program/Vaugh.
ARGUMENT
I. THE TRIAL RECORDINGS MAY NOT BE SHOWN BEYOND THE CONFINES OFTHE NORTHERN DISTRICT OF CALIFORNIA COURTHOUSE
The video recordings of the trial in this case may not lawfully be shown
publicly beyond the confines of the Northern District of California courthouse.
The trial recordings remain under seal; then-Chief Judge Walkers unequivocal
assurances that the trial recordings were only for his use in chambers remain on the
record; the Supreme Courts decision in this case if not its stay, which might well
still be in force but for those assurances and the duly enacted rules of the Judicial
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Council and the district court remain binding and plainly bar public dissemination
of the trial recordings beyond the confines of the courthouse; and the considered
judgment of the Judicial Conference of the United States continues to strongly
counsel against public dissemination of the trial recordings.
The trial recordings were not the personal property of Judge Walker, for him
to use as he pleased; he had access to them only by virtue of his role as the judicial
officer presiding in this case. So, when he played a portion of the trial recordings
during his February 18 speech (which was then disseminated nationally by C-
SPAN), he violated all of these prohibitions. As Chief Judge Frank Easterbrook of
the Seventh Circuit Court of Appeals stated recently in a disciplinary proceeding
against a district judge who allowed video recording and live broadcasting of a
civil proceeding: A district court judge who contravenes policies adopted by the
Judicial Conference and the Judicial Council has engaged in conduct prejudicial to
the effective and expeditious administration of the business of the courts. In re
Complaint Against District Judge Joe Billy McDade, No. 07-09-90083 (quoting 28
U.S.C. 351(a)).
The setting for Judge Walkers public dissemination of the trial recordings
a speech outside the performance of his official duties did not exempt him from
any of these prohibitions. Rather, he was obligated to respect and comply with
the law and [to] act at all times in a manner that promotes public confidence in the
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integrity and impartiality of the judiciary. Code of Conduct for United States
Judges, Canon 2A; see also Ninth Circuit Rules of Judicial Conduct art. I, 3(h)(2)
(judge engages in [c]ognizable misconduct if his conduct occurring outside the
performance of official duties might have a prejudicial effect on the
administration of the business of the courts, including a substantial and widespread
lowering of public confidence in the courts among reasonable people); cf. United
States v. Lang, 364 F.3d 1210, 1212, 1221-22 (10th Cir. 2004) (court clerk who
took home copy of sealed affidavit convicted under 18 U.S.C. 2071(a)),
vacated on other grounds, 543 U.S. 1108 (2005), reinstated in relevant part, 405
F.3d 1060, 1061 (10th Cir. 2005).
To ensure that the confidentiality of the trial recordings is not breached
again, as well as to restore public confidence in the judiciary, this Court should
exercise its inherent power to control the record of this case by ordering that
former district judge Walker cease further disclosures of the trial recordings, or any
portion thereof, and that all copies of the trial recordings that are in the possession,
custody, or control of any party to this case or of former judge Walker be returned
promptly to the Court and held by the court clerk under seal.
A. The Recordings of the Trial Proceedings Are Under SealThen-Chief Judge Walker DIRECTED the district court clerk to file the
trial recording under seal as part of the record. Ex. 28 at 4. Since then, the trial
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recordings have remained continuously under seal. See Circuit Advisory Comm.
Note to R. 27-13 (Absent an order to the contrary, any portion of the district court
record that was sealed below shall remain under seal upon transmittal to this
court.). The purpose of the seal is to preserve the confidentiality of the sealed
record. SeeUnited States v. Nixon, 417 U.S. 960, 960-61 (1974).
B. Chief Judge Walker Unequivocally Assured Proponents That theTrial Recordings Would Be for His Exclusive Use in Chambers
Although the Supreme Court had just stayed his broadcast order, then-Chief
Judge Walker insisted on recording the trial proceedings anyway. In doing so over
Proponents objection, Chief Judge Walker assured Proponents on the record that
the recording was not going to be for purposes of public broadcasting or
televising, but rather simply for use in chambers. Ex. 1 at 754:22-23, 755:3-4
(emphasis added). In reliance on Chief Judge Walkers assurances, Proponents
took no further action to prevent him from recording the trial proceedings. One of
Proponents witnesses also relied on those assurances, and now the recording of a
portion of his testimony has been shown by Judge Walker to a large public
audience and, in turn, has been disseminated nationally by C-SPAN.
C. The Supreme Courts Stay, the Judicial Councils Policy, and theDistrict Courts Local Rule Prohibit Showing the TrialRecordings Beyond the Confines of the Courthouse
The Supreme Court ruled that then-Chief Judge Walkers order authorizing
the broadcast of [this] federal trial did not comply with existing rules or
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policies. Hollingsworth, 130 S. Ct. at 706, 713. True, the Supreme Courts stay
later expired when the Court granted Proponents petition for certiorari and vacated
this Courts ruling denying Proponents earlier mandamus petition. But the
certiorari petition, and thus the Supreme Courts disposition thereof, were
predicated on the fact that the mandamus petition was moot in light of Chief Judge
Walkers unequivocal assurances that the trial recordings were solely for his use in
chambers. But for those assurances, the recording of the trial would plainly have
violated the Supreme Courts stay and would surely have been halted.
The rules and policies enforced by the Supreme Courts stay were those
governing the issue in this Circuit and the district court. The long-standing policy
of the Ninth Circuit Judicial Council still prohibits the taking of photographs and
radio and television coverage of court proceedings in the United States district
courts. Ex. 5. This policy is binding on all judges within the Ninth Circuit. 28
U.S.C. 332(d)(2);seeIn re Complaint Against District Judge Joe Billy McDade,
No. 07-09-90083; In re Sony BMG Music Entmt., 564 F.3d 1, 7-9 (1st Cir. 2009).2
Likewise, the district courts Local Rule 77-3 still prohibit[s] the streaming
2 The Council purported to amend its policy to authorize a pilot programfor broadcasting trial proceedings. Even if that amendment were validly adopted,
but seeHollingsworth, 130 S. Ct. at 708, 713-14 (noting lack of statutorily required
notice and comment procedures and lack of considered standards or guidelines
for broadcasting), the Councils policy would still bar Judge Walkers public
dissemination of the trial recordings beyond the confines of the courthouse because
this case was not part of the pilot program.
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of transmissions, or other broadcasting or televising, [of district court proceedings]
beyond the confines of the courthouse. Hollingsworth, 130 S. Ct. at 711. That
rule[] ha[s] the force of law. Id. at 710 (quotation marks omitted).3
Finally, the policy of the Judicial Conference of the United States, which is
at the very least entitled to respectful consideration, strongly counsels against
public dissemination of the trial recordings beyond the confines of the courthouse.
Id. at 711-12 (quotation marks omitted).4
II. THE COURT SHOULD ORDER THE IMMEDIATE RETURN OF ALL COPIES OFTHE TRIAL RECORDINGS
This Court has supervisory power over its own records and files, and access
[may be] denied where court files might have become a vehicle for improper
purposes. Nixon v. Warner Commcns, Inc., 435 U.S. 589, 598 (1978); Matter of
3To be sure, the district court again purported to amend Local Rule 77-3 in
April or May 2010 to create[] an exception to Rule 77-3s general ban on the
broadcasting of court proceedings for participation in a pilot or other project
authorized by the Judicial Council of the Ninth Circuit. Hollingsworth, 130 S.
Ct. at 711. But even if the amendment were valid, but seeid. at 708, 713-14
(noting lack of considered standards or guidelines for broadcasting), the rule
would still bar public dissemination of these trial recordings beyond the confines
of the courthouse because this case was not, and could not have been, designated
for inclusion in the pilot program after the renewed amendment to Local Rule 77-3
was adopted. The only order designating the case for a pilot program waswithdrawn long before that amendment was adopted. Ex. 10-11.
4In September 2010, the Conference announced a pilot project to evaluate
the effect of cameras in district court courtrooms, of video recordings of
proceedings therein, and of publication of such video recordings. Ex. 33 at 11.
This pilot project would not have authorized broadcast of the trial proceedings here
because it requires the consent of the [p]arties. Id. at 12.
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Sealed Affidavit(s), 600 F.2d 1256, 1257 (9th Cir. 1979) (courts have inherent
power, as an incident of their constitutional function, to control papers filed with
the courts within certain constitutional and other limitations); see also Circuit R.
27-13(d). The record in this case, which includes the trial recordings, is now
before this Court, having been transmitted by the district court clerk.
As noted earlier, Proponents previously asked then-Chief Judge Walker to
order Appellees to return all copies of the trial recordings. As Proponents
explained then, even with [Chief Judge Walkers] requirement that all copies of
the trial video be maintain[ed] as strictly confidential, the dissemination [of the
trial recordings] beyond the confines of the Court would unduly increase the risk
of public disclosure of the recordings. Ex. 26 at 2. Chief Judge Walker denied
Proponents request, but his subsequent use of the trial recordings during his
Arizona speech proves that Proponents concern was well founded. Neither the
seal, nor Chief Judge Walkers commitment in open court to use the recordings
only in chambers, nor the Supreme Courts decision staying his broadcast order,
nor the policy of the Ninth Circuit Judicial Council, nor the district courts local
rule, nor the policy of the Judicial Conference of the United States prevented him
from publicly showing the trial recordings beyond the confines of the courthouse.
Former judge Walker should therefore be ordered to return to this Court all copies
of the trial recordings and to cease any further use of any portion thereof. See
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United States v. New York Tel. Co., 434 U.S. 159, 174 (1977) (The power
conferred by the [All-Writs] Act extends, under appropriate circumstances, to
persons who, though not parties to the original action or engaged in wrongdoing,
are in a position to frustrate the implementation of a court order or the proper
administration of justice, and encompasses even those who have not taken any
affirmative action to hinder justice.).
And now that the trial is over and the appeal has been briefed and argued to
this Court, there is no legitimate reason for Appellees to continue to have a copy of
the trial recordings. They too, therefore, should be ordered to return them to
eliminate the risk of accidental disclosure.
CONCLUSION
For the foregoing reasons, the Court should order that former judge Walker
cease further disclosures of the trial recordings in this case, or any portion thereof,
and that all copies of the trial recordings in the possession, custody, or control of
any party to this case or former judge Walker be returned promptly to the Court
and held by the court clerk under seal.
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April 13, 2011 Respectfully submitted,
s/ Charles J. Cooper
Charles J. Cooper
Andrew P. Pugno
LAW OFFICES OF ANDREW P.PUGNO
101 Parkshore Drive, Suite 100
Folsom, California 95630
(916) 608-3065; (916) 608-3066 Fax
Brian W. Raum
James A. Campbell
ALLIANCE DEFENSE FUND
15100 North 90th StreetScottsdale, Arizona 85260
(480) 444-0020; (480) 444-0028 Fax
Charles J. Cooper
David H. Thompson
Howard C. Nielson, Jr.
David Lehn
COOPER AND KIRK,PLLC
1523 New Hampshire Ave., N.W.
Washington, D.C. 20036
(202) 220-9600; (202) 220-9601 Fax
Attorneys for Defendant-Intervenors-Appellants Hollingsworth, Knight,
Gutierrez, Jansson, and ProtectMarriage.com
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I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the
United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system
on (date) .
I certify that all participants in the case are registered CM/ECF users and that service will be
accomplished by the appellate CM/ECF system.
CERTIFICATE OF SERVICEWhen All Case Participants are Registered for the Appellate CM/ECF System
I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the
United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system
on (date) .
Participants in the case who are registered CM/ECF users will be served by the appellate
CM/ECF system.
I further certify that some of the participants in the case are not registered CM/ECF users. I
have mailed the foregoing document by First-Class Mail, postage prepaid, or have dispatched it
to a third party commercial carrier for delivery within 3 calendar days to the following
non-CM/ECF participants:
Signature (use "s/" format)
CERTIFICATE OF SERVICE
When Not All Case Participants are Registered for the Appellate CM/ECF System
9th Circuit Case Number(s)
*******************************************************************************
Signature (use "s/" format)
NOTE: To secure your input, you should print the filled-in form to PDF (File > Print > PDF Printer/Creator).
*******************************************************************************
Please see attached service list.
10-16696
April 13, 2011
s/Charles J. Cooper
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SERVICE LIST
Arthur N. Bailey, Jr., Esq.
HAUSFELD LLP44 Montgomery Street, Suite 3400
San Francisco, California 94104
Thomas Brejcha
THOMAS MORE SOCIETY
29 S. La Salle Street, Suite 440
Chicago, IL 60603
Anthony R. Picarello, Jr.
Michael F. MosesUNITED STATES CATHOLIC
CONFERENCE
3211 Fourth Street, N.E.
Washington, DC 20017
Lincoln C. Oliphant
COLUMBUS SCHOOL OF LAW
The Catholic University of America
3600 John McCormack Road, NE
Washington, DC 20064
Anita L. Staver
LIBERTY COUNSELP.O. Box 540774
Orlando, FL 32854
Mathew D. Staver
LIBERTY COUNSEL
1055 Maitland Center Commons
2nd Floor
Maitland, FL 32751
Hon. Vaughn Walkerc/o PILLSBURY WINTHROP SHAW
PITTMAN LLP
50 Fremont Street
San Francisco, CA 94105-2228
Hon. Vaughn Walker
c/o BERKELEY LAW
215 Boalt Hall
Berkeley, CA 94720-7200
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EXHIBIT 1
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Volume 4
Pages 670 - 990
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
BEFORE THE HONORABLE VAUGHN R. WALKER
KRISTIN M. PERRY, )
SANDRA B. STIER, PAUL T. KATAMI, )
and JEFFREY J. ZARRILLO, )
)
Plaintiffs, )
)
VS. ) NO. C 09-2292-VRW
)
ARNOLD SCHWARZENEGGER, in his )official capacity as Governor of )
California; EDMUND G. BROWN, JR., )
in his official capacity as )
Attorney General of California; )
MARK B. HORTON, in his official )
capacity as Director of the )
California Department of Public )
Health and State Registrar of )
Vital Statistics; LINETTE SCOTT, )
in her official capacity as Deputy )
Director of Health Information & )
Strategic Planning for the )California Department of Public )
Health; PATRICK O'CONNELL, in his )
official capacity as )
Clerk-Recorder for the County of )
Alameda; and DEAN C. LOGAN, in his )
official capacity as )
Registrar-Recorder/County Clerk )
for the County of Los Angeles, )
) San Francisco, California
Defendants. ) Thursday
___________________________________) January 14, 2010
TRANSCRIPT OF PROCEEDINGS
Reported By:Katherine Powell Sullivan, CRR,Katherine Powell Sullivan, CRR,Katherine Powell Sullivan, CRR,Katherine Powell Sullivan, CRR, CSRCSRCSRCSR 5812581258125812Debra L. Pas, CRR, CSR 11916Debra L. Pas, CRR, CSR 11916Debra L. Pas, CRR, CSR 11916Debra L. Pas, CRR, CSR 11916Official ReporterOfficial ReporterOfficial ReporterOfficial Reporterssss - U.S. District Court- U.S. District Court- U.S. District Court- U.S. District Court
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PROCEEDINGS 674
1 P R O C E E D I N G S2 JANUARY 14, 2010 8:42 A.M.
3
4 THE COURT: Very well. Good morning, Counsel.
5 (Counsel greet the Court.)
6 THE COURT: Let's see. First order of business, I
7 have communicated to judge -- Chief Judge Kozinski, in light of
8 the Supreme Court's decision yesterday, that I'm requesting
9 that this case be withdrawn from the Ninth Circuit pilot
10 project. And he indicated that he would approve that request.
11 And so that should take care of the broadcasting matter.
12 And we have motions that have been filed on behalf of
13 Mr. Garlow and Mr. McPherson. And the clerk informs me counsel
14 for those parties are here present.
15 MR. MCCARTHY: Correct, Your Honor.
16 THE COURT: All right. Fine.
17 MR. MCCARTHY: Vincent McCarthy, Your Honor. I was
18 admitted pro hac vice into this court very recently.
19 THE COURT: Yes. I believe I signed that yesterday,
20 or the day before.
21 MR. MCCARTHY: I understand.
22 THE COURT: Well, welcome.
23 MR. MCCARTHY: Thank you.
24 THE COURT: You've got quite a lineup of lawyers
25 here.
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EGAN - CROSS EXAMINATION / PATTERSON 753
1 Q. Okay.
2 MR. PATTERSON: Your Honor, I would like to request a
3 brief break, if I may?
4 THE COURT: How much longer do you have with this
5 witness?
6 MR. PATTERSON: I would say I'm about halfway
7 through, your Honor.
8 THE COURT: Okay. Maybe a break, like your colleague
9 Mr. Thompson, will reduce the length somewhat.
10 MR. PATTERSON: Okay.
11 THE COURT: That I'm sure will be helpful to
12 everybody.
13 All right. Shall we take until 15 minutes of the
14 hour, or 10:45.
15 MR. COOPER: Your Honor, just before we break, may I
16 ask one minor housekeeping matter?
17 THE COURT: Yes.
18 MR. COOPER: Point of clarification, actually, and
19 it's further to your announcement as we opened the court day,
20 that the Court was asking for withdrawal of this case from the
21 pilot program.
22 I just ask the Court for clarification, if I may then
23 understand that the recording of these proceedings has been
24 halted, the tape recording itself?
25 THE COURT: No, that has not been altered.
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EGAN - CROSS EXAMINATION / PATTERSON 754
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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EGAN - CROSS EXAMINATION / PATTERSON 755
1 broadcasting or televising, or recording for
2 those purposes."
3 So the recording is not being made for those
4 purposes, but simply for use in chambers.
5 MR. COOPER: Very well, your Honor, and I appreciate
6 that clarification.
7 THE COURT: All right.
8 (Whereupon there was a recess in the proceedings
9 from 10:32 a.m. until 10:59 a.m.)
10 THE COURT: Very well, Mr. Patterson. Please
11 continue.
12 MR. PATTERSON: Very well, your Honor.
13 BY MR. PATTERSON:
14 Q. Dr. Egan, we were speaking about the revenues you
15 project San Francisco weddings, the out-of-state -- or
16 out-of-San Francisco same-sex couples would generate.
17 And, again, one source of those revenues come from
18 hotel taxes, is that correct?
19 A. Yes, it is.
20 Q. And you have basically -- you have assumed how long the
21 non-San Francisco resident same-sex couples would stay in
22 San Francisco when they got married, is that correct?
23 A. That's correct.
24 Q. And, once again, you have not done any study of how long
25 non-San Francisco resident same-sex couples actually stay in
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EXHIBIT 2
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REPORTOF TBE PROCEEDINGSOF THE JUDICIALCONF'ERENCEOF THE UNITEDSTATESSeptember 17,1996
The Judicial Conference of the United States convened in Washington, D.C.,on September 17, 1996, pursuant to the call of the Chief Justice of the United Statesissued under 28 U.S.C. 9 33 1. The Chief Justice presided, and the following membersof the Conference were present:First Circuit:
Chief Judge Juan R. TormellaChief Judge Joseph L. Tauro,District of MassachusettsSecond Circuit:
Chief Judge Jon 0 .NewmanChief Judge Peter C. Dorsey,District of ConnecticutThird Circuit:
Chief Judge Dolores K. SloviterChief Judge Edward N. Cahn,Eastern District of PennsylvaniaFourth Circuit:
Chief Judge J. Harvie Wilkinson, 111Judge W. Earl Britt,Eastern District of North CarolinaFifth Circuit:
Chief Judge Henry A. PolitzChief Judge William H. Barbour,Southern District of Mississippi
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Judicial Conference of the United States
models discussed in the report, and, where appropriate, adopt more efficient structuresfor the provision of administrative services.
CAMERASIN THE COURTROOMThe Judicial Conference approved a Court Administration and CaseManagement Co mmittee recommendation that it adopt conforming revisions to the"Cameras in the Courtroom" policy and commentary to be printed in Volume I,Chapter 111, Part E of the Guide to Judiciary Policies and Pmcedu~s.These revisionsreflect Judicial Conference actions taken in September 1994 (JCUS-SEP 94, pp. 46-47)and March 1996 (JCUS-MAR 96, p. 17).
After undertaking a review of the miscellaneous fees set by the JudicialConference pursuant to 28 U.S.C. 1913, 1914, 1926, and 1930, the CourtAdministration and Case Management Committee recommended that the JudicialConference raise certain miscellaneous fees to account for inflation and rising courtcosts. Th e Judicial Conference approved the recommendation to raise miscellaneousfees as set forth below, provided that legislation is enacted to p ermit the judiciary toretain the resulting increase in fees:Fee- Current Amount Raised Amount
Power of AttorneyFiling and Indexing Misc. PapersMisdemeanor AppealRegistration of Foreign JudgmentTape DuplicationMicrofilm/MicroficheMailing LabelsRecord SearchCertificationReturned ChecksReproduction of RecordCt. of Fed. C laims Filing F eeCt. of Fed. Claims List of OrdersIOps
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EXHIBIT 3
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JO'DIClALCONlFERENCEOFTHE 1[JNKTEDSTATES WASHINGTON, D.C. 20544
THE CHIEF pJSTICE lAMES C DUFFOF THE UNITED STATES SecrelaryPresiding July 23, 2009
Honorable Patrick J. LeahyChairmanCommittee on the JudiciaryUnited States SenateWashington, DC 20510Honorable JeffSessionsRanking MemberCommittee on the JudiciaryUnited States SenateWashington, DC 20510Dear Mr. Chairman and Senator Sessions:
The Judicial Conference of the United States strongly opposes the "Sunshine in theCourtroom Act of2009," S. 657 (11 ph Cong.), because it provides for the use of camerasin federal trial court proceedings. Cameras can affect behavior in court proceedings.Cameras can even affect whether a case goes to trial. Cameras can also affect courtroomsecurity ofjudges, witnesses, employees, and U.S. marshals. This is ofparticular concernin light of recent increased threats to federal judges. The Judicial Conference believesthat these and other negative affects of cameras in trial court proceedings far outweighany potential benefit. The Judicial Conference also opposes the legislation because itwould empower any appellate court panel to permit cameras in their courtroom ratherthan retain that power within the management of each circuit.
The Judicial Conference bases its policy and opposition to the use of cameras inthe federal trial court proceedings on decades of experience and study. The Conferenceconsidered the issue in a number ofdifferent situations and contexts including a pilotproject - and concluded that the presence of cameras in federal trial court proceedings isnot in the best interest ofjustice. Federal judges must preserve each citizen's right to afair and impartial trial. Of course, federal trials have long been open to the media andpublic. But it is the studied judgment of the Judicial Conference that cameras can
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Honorable Patrick J. LeahyHonorable Jeff SessionsPage 2interfere with a fair and impartial trial. Thus, the use of cameras in trial courts woulddiffer substantially from the impact of their use in legislative, administrative, orceremonial proceedings.
Cameras can interfere with a fair trial in numerous ways. First, broadcastingproceedings can affect the way trial participants behave. Television cameras can'intimidate litigants, witnesses, andjurors, many ofwhom have no direct connection to theproceeding and are involved in it through no action of their own. Witnesses might refuseto testi1J or alter their stories when they do testi1J if they fear retribution by someone whomay be watching the broadcast.
Second, and similarly, camera coverage can create privacy concerns for manyindividuals involved in the trial, such as witnesses and victims, some ofwhom are onlytangentially related to the case but about whom very personal and identifYing informationmight be revealed. For example, efforts to discredit a witness frequently involve therevelation of embarrassing personal information. Disclosing embarrassing facts oraccusations in a courtroom already creates challenges in court proceedings. Thosechallenges would be multiplied enormously if that information were aired on televisionwith the additional possibility of taping and replication. This concern can have a materialeffect on a witness's testimony or on his or her willingness to testifY at all.
Third. and as a consequence of the aforementioned points, camera coverage couldalso become a potent negotiating tactic in pretrial settlement discussions. Parties maychoose not to exercise their right to trial because of concerns regarding possible cameracoverage. Thus, allowing cameras could cause a "chilling effect" on civil rightslitigation; plaintiffs who have suffered sex or age discrimination may simply decide not tofile suit if they learn that they may have to relive the incident and have that descriptionbroadcast to the public at large. Or, parties litigating over medical issues may not wish toreveal their personal medical history and conditions to a broad audience.
Fourth, the presence ofcameras in a trial court will encourage some participants tobecome more dramatic, to pontificate about their personal views, to promote commercialinterests to a national audience, or to lengthen their appearance on camera. Suchgrandstanding is disruptive to the proceedings and can delay the trial.
The Federal Judiciary is therefore very concerned that the effect of cameras in thecourtroom on participants would be to impact negatively the trial process and therebyinterfere with a fair trial.
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Honorable Patrick J. LeahyHonorable Jeff SessionsPage 3
In addition to affecting the fairness of a trial, the presence ofcameras in a trialcourtroom also increases security and safety issues. Broadcasting the images ofjudgesand court employees, such as court reporters, courtroom deputies, and'law clerks, makesthem more easily identified as targets by those who would attempt to influence the .outcome of the matter or exact retribution for an unpopular court ruling. Threats againstjudges, lawyers, and other participants could increase even beyond the current disturbinglevel. Cameras create similar security concerns for law enforcement personnel present in
, the courtroom, including U.S. marshals and U.S. attorneys and their staffs.Finally, regarding the courts of appeals, in 1996 the Judicial Conference adopted
the position that each circuit may decide for hselfwhether to permit photographic, radio,and television coverage of appellate arguments, subject to any restrictions in statutes,national and local rules, and such guidelines as the Conference may adopt. This policyensures consistency within each circuit. The Sunshine in the Courtroom Act of 2009would allow panels within the circuits to determine whether cameras will be allowed attheir proceedings, rather than leaving the initial decision to the circuit's management.This will result in differing treatment of litigants within each circuit. Currently, thecircuit-wide policies avoid piecemeal and ad hoc resolutions of the issue among thevarious panels convened within a court of appeals, and that approach is therefore betterthan the proposed legislative change.
* * *For the foregoing reasons, the Judicial Conference of the United States strongly
opposes legislation that allows the use of cameras in federal trial court proceedings andpermits individual panels to use of cameras in all courts of appeals instead of deferring toeach circuit's rules on such use.
Thank you for the opportunity to provide the position of the Judicial Conferenceon this legislation. The legislation raises issues of vital importance to the Judiciary. Ifwemay be of additional assistance to you, please do not hesitate to contact our Office ofLegislative Affairs at 202-502-1700.
Sincerely,
( j ~ t V James C. DuffSecretary
cc: Members, Senate Judiciary Committee
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IfREpORT OF THE PROCEEDINGSOF THE JUDICIAL CONFERENCEOF THE UNITED STATESMarch 12, 1996
The Judicial Conference of the United States convened in Washington, D.C.,on March 12, 1996, pursuant to the call of the Chief Justice of the United States issuedunder 28 U.S.C. 331. The Chief Justice presided, and the following members of theConference were present:
First Circuit:Chief Judge Juan R. Torruella Chief Judge Joseph L. Tauro,
District of Massachusetts Second Circuit:
Chief Judge Jon O. Newman Chief Judge Peter C. Dorsey, District of Connecticut
Third Circuit:Chief Judge Dolores K. SloviterChief Judge Edward N. Cahn,Eastern District of Pennsylvania
Fourth Circuit:Chief Judge 1. Harvie Wilkinson, IIIJudge W. Earl Britt,Eastern District of North Carolina
Fifth Circuit:Chief Judge Henry A. PolitzChief Judge William H. Barbour,
Southern District of Mississippi
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March 12, 1996
of
it
(b)
CAMERAS IN THE COURTROOM
The Judicial Conference agreed to authorize each court of appeals to decide foritself whether to permit the taking of photographs and radio and television coverage ofappellate arguments, subject to any restrictions in statutes, national and local rules, andsuch guidelines as the Judicial Conference may adopt. The Conference further agreedto-
a. Strongly urge each circuit judicial council to adopt an order reflecting theJudicial Conference's decision to authorize the taking of photographs and radioand television coverage of court proceedings in the United States courts ofappeals; andb. Strongly urge each circuit judicial council to adopt an order pursuant to28 U.S.C. 332 (d)(l), reflecting the September 1994 decision of the JudicialConference (JCUS-SEP 94, pp. 46-47) not to permit the taking of photographsand radio and television coverage of court proceedings in the United Statesdistrict courts. In addition, the Judicial Conference agreed to strongly urge thejudicial councils to abrogate any local rules of court that conflict with thisdecision, pursuant to 28 U.S.C. 2071{cXI).
COMMITIEE ON CRIMINAL LAW
UNIVERSAL PRETRIAL DRUG TESTINGIn December 1995, President Clinton directed the Attorney General to developa "... universal policy providing for drug testing of all federal arresteesoefore decisionsare made on whether to release them into the community pending triaL" In February
1996, the Attorney General submitted a pretrial drug testing proposal to the ExecutiveCommittee, which referred the matter to the Committee on Criminal Law forrecommendation to the March Judicial Conference. Reporting on the proposal to theConference, the Criminal Law Committee recommended that the issue be referred backto that Committee. The Judicial Conference voted to refer the Attorney General'sproposal regarding universal pretrial drug testing to the Criminal Law Committee forexpeditious consideration and report to the Executive Committee, which is authorizedto act on the matter on behalf of the Conference.
17
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EXHIBIT 4
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September20,1994
The Judicial Conference of the United States convened inWashington, D.C., on September 20,1994, pursuant to the call of the ChiefJustice of the United States issued under 28 U.S.C. 331. The Chief Justicepresided, and the following members of the Conferencewere present:
First Circuit:Chief Judge Juan R. TorruellaJudge Francis J. Boyle,District of Rhode Island
Second Circuit:Chief Judge Jon 0.NewmanJudge Charles L. Brieant,
Southern District of New YorkThird Circuit:
Chief Judge Dolores K. SloviterChief Judge John E Gerry,District of New JerseyFourth Circuit:
Chief Judge Sam J. Ervin, IIIJudge W Earl Britt,Eastern District of North CarolinaFifth Circuit:
Chief Judge Henry A. PolitzChief Judge Morey L. Sear,Eastern District of Louisiana
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Judicial Cknferenceof the United StcJ.88
The Committee on Codes of Conduct reported that since its lastreport to the Judicial Conference, it received 47 new written inquiries(including one request for reconsideration) and issued 40 written advisoryresponses. The average response time was 21 days. The Chairman receivedand responded to 48 telephonic inquiries. In addition, individual Committeemembers responded to 72 inquiries from their colleagues.
The Judicial Conference approved the recommendations of theCommittee to revise the Ethics Reform Act gift regulations. The principalsubstantive changes include the following: (1) definition of th e term "giftHina new section 3; (2) incorporation in a new section 4 of the existing statutoryprohibition on solicitation of gifts; (3) clarification of the reach of sections4(b) and 5(b) (formerly 3(c) and 3(a)(2)); (4) authorization in a new section5(h) of the acceptance of de minimis gifts by persons other than judges andtheir personal staffs; (5) revision of section 6 (formerly 3(b)) prohibiting theacceptance of gifts in violation of other statutes and regulations, or wherereasonable persons would believe that the public office is being used forprivate gain; and (6) description in a new section 9 of procedures for thereturn or disposal of gifts that may not properly be accepted.Upon recommendation of the Committee, the Judicial Conferenceapproved revisions to the Ethics Reform Act outside employment regulations,to incorporate useful provisions from the Executive Branch regulations andto make technical amendments designed to clarify the application of theregulations.
COMMITTEEON COURTADMINISTRATIONAND CASEMANAGEMENT
The Judicial Conference considered a report and recommendation ofthe Court Administration and Case Management Committee to authorize the
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photographing, recording, and broadcasting of civil proceedings in federaltrial and appellate courts. The Committee's report included an evaluationconducted by the Federal Judicial Center of a three-year pilot project in sixdistrict and two appellate courts, aswell as an analysis of studies conductedin state courts. Based upon the data presented, a majority of the Conferenceconcluded that the intimidating effect of cameras on some witnesses andjurors was cause for concern, and the Conference declined to approve theCommittee's recommendation to expand camera coverage in civil proceedings.In light of this action, additional Committee recommendations relating tocameras in the courtroom in civil cases were determined to be moot. Noaction was taken with regard to the ongoing pilot program, which isscheduled to sunset on December 31,1994 (see JCUS-MAR 94, p. 15). Seealso "Criminal Rules," infra p. 67.
MISCELLANEOUS FEE SCHEDULESIn September 1993, the Judicial Conference approved an amendmentto the miscellaneous fee schedule promulgated under 28 U.S.C. 1913 toprovide a fee for electronic access to court data for the appellate courts, butreserved for future consideration the issue of whether to extend the fee toelectronic access to slip opinions (JCUS-SEP 93, pp. 44-45). The CourtAdministration and Case Management Committee recommended that theJudicial Conference authorize collection of a fee for electronic access to slipopinions by amending the fee schedule to delete the sentence, "No such fee
shall be charged for usage of ACES/EDOS." The Judicial Conferenceapproved the amendment, which makes no change in the provision allowingcourts to exempt, for good cause, persons or classes of persons from the fees.In March 1993, the Judicial Conference eliminated the traditionalfederal agencies' exemption from court fees for electronic access to court dataand, in limited circumstances, for reproducing court records and conductingsearches of court records (JCUS-MAR 93, p. 11). Federal agencies fundedfrom judiciary appropriations continue to be exempted from fees. Onrecommendation of the Committee on Court Administration and CaseManagement, the Conferenceagreed to a technical amendment of themiscellaneous fee schedules promulgated under 28 U.S.C. O 1913, 1914,1926, and 1930, to clarifj. that government programs funded from the federaljudiciary's appropriations, as well as government agencies so funded, wereexempt from fees. The amendment reads as follows (new language is initalics):
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EXHIBIT 5
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PROCTER HUG, JR.Chin! JudgeUnlladSlales bbud ol AppBab
3niieb Bfa f r~0Inut-f of AppenkiBur mile Hlntf~Uirnrif50 W LIBERTY STRE-, SUITE BOO
RENO.Nf VADA 89901s
June 21, 1996
9 8
To: A11 Article Judges . ,From: Chief Judge R ugRe: Judicial Coundl Policy.Regarding the Use of Camerasin the Courtroom
On May 24, 1996,theJudicial Council of the Ninth Circuitvoted to adopt thepolicy of the Judicial Conference of the United States regarding the use of cameras in thecourts. Pursuant to 28 U S C. 5 2071(c)(l), lh ia poUby is now binding on al l courtswithin theNinthCir~uft.The policy states:
I. Each court of appeds may dacidalocally whethe! or not topermit Garneras in the appellate courtrooms, subject to anyrestriot!ons in etatutes, national and loml rule^, and suchguidelines as the Judicial Conferencemay adopt. +2. The taking cf and radio and television coverage of
wurt prooedings in the Unlted States district courts isprohibitcd-
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EXHIBIT 6
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Civil Local Rules
CIV 92Published December 2009
(f) Orders taxing costs pursuant to Civil L.R. 54-4.
Cross Reference
See ADR L.R. 4-11(d) Nonbinding Arbitration; Entry of Judgmen t on
Award.
77-3. Photography and Public Broadcasting.
Unless allowed by a Judge or a Magistrate Judge with respect to his or her
own chambers or assigned courtroom for ceremonial purposes, the taking of
photographs, public broadcasting or televising, or recording for those purposes in the
courtroom or its environs, in connection with any judicial proceeding, is prohibited.
Electronic transmittal of courtroom proceedings and presentation of evidence within
the confines of the courthouse is permitted, if authorized by the Judge or Magistrate
Judge. The term environs, as used in this rule, means all floors on which
chambers, courtrooms or on which Offices of the Clerk are located, with the
exception of any space specifically designated as a Press Room. Nothing in this ruleis intended to restrict the use of electronic means to receive or present evidence
during Court proceedings.
77-4. Official Notices.
The following media are designated by this Court as its official means of
giving public notice of calendars, General Orders, employment opportunities,
policies, proposed modifications of these local rules or any matter requiring public
notice. The Court may designate any one or a combination of these media for
purposes of giving notice as it deems appropriate:
(a) Bulletin Board. A bulletin board for posting of official notices shall be
located at the Office of the Clerk at each courthouse of this district.
(b) Internet Site. The Internet site, located at http://www.cand.uscourts.gov,
is designated as the districts official Internet site and may be used for the posting of
official notices.
(c) Newspapers. The following newspapers are designated as official
newspapers of the Court for the posting of official notices:
(1) The Recorder; or
(2) The San Francisco Daily Journal; or
(3) The San Jose Post-Record, for matters pending in the San
Jose Division, in addition to the newspapers listed in subparagraphs
(1) and (2); or
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EXHIBIT 7
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Volume 1
Pages 1 - 213
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
BEFORE THE HONORABLE VAUGHN R. WALKER
KRISTIN M. PERRY, )
SANDRA B. STIER, PAUL T. KATAMI, )
and JEFFREY J. ZARRILLO, )
)
Plaintiffs, )
)
VS. ) NO. C 09-2292-VRW
)
ARNOLD SCHWARZENEGGER, in his )official capacity as Governor of )
California; EDMUND G. BROWN, JR., )
in his official capacity as )
Attorney General of California; )
MARK B. HORTON, in his official )
capacity as Director of the )
California Department of Public )
Health and State Registrar of )
Vital Statistics; LINETTE SCOTT, )
in her official capacity as Deputy )
Director of Health Information & )
Strategic Planning for the )California Department of Public )
Health; PATRICK O'CONNELL, in his )
official capacity as )
Clerk-Recorder for the County of )
Alameda; and DEAN C. LOGAN, in his )
official capacity as )
Registrar-Recorder/County Clerk )
for the County of Los Angeles, )
) San Francisco, California
Defendants. ) Monday
___________________________________) January 11, 2010
TRANSCRIPT OF PROCEEDINGS
Reported By:Katherine Powell Sullivan, CRR,Katherine Powell Sullivan, CRR,Katherine Powell Sullivan, CRR,Katherine Powell Sullivan, CRR, CSRCSRCSRCSR 5812581258125812Debra L. Pas, CRR, CSR 11916Debra L. Pas, CRR, CSR 11916Debra L. Pas, CRR, CSR 11916Debra L. Pas, CRR, CSR 11916Official ReporterOfficial ReporterOfficial ReporterOfficial Reporterssss - U.S. District Court- U.S. District Court- U.S. District Court- U.S. District Court
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PROCEEDINGS 14
1 The briefs that you filed in the Court of Appeals and
2 in the Supreme Court deal with those issues. And that's true
3 of both sides.
4 Certainly, the concerns that the proponents have
5 raised here are concerns that should be considered, need to be
6 considered, and in due course should be given thorough
7 consideration.
8 But I think, in this day and age, with the technology
9 that's available and the importance of the public's right to
10 access judicial proceedings, it's very important that we in the
11 federal judiciary work to achieve that access consistent with
12 the means that are presently available to do that.
13 And I would commend you for the efforts that you've
14 made in bringing these issues forward, and I'm hopeful that
15 this experience will have brought these issues to the fore.
16 And maybe, finally, after some 20 years we will get some
17 sensible movement forward.
18 Now, Mr. Boutrous.
19 MR. BOUTROUS: Thank you, Your Honor.
20 Could I address one issue? Since the stay is
21 temporary and the Supreme Court is going to be considering
22 these issues, and given the importance of the issues in this
23 case, we would request that the Court permit recording and
24 preservation of the proceedings today and through Wednesday.
25 I've heard -- having heard Mr. Cooper argue on many
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PROCEEDINGS 15
1 occasions, I can't imagine why he wouldn't want his opening
2 statement preserved for the record.
3 (Laughter)
4 So the public can hear what he has to say. And same
5 goes for Mr. Olson.
6 And given the fact that this is a temporary stay, and
7 the stay order does not mention anything about restricting the
8 ability of the court to capture the images on the cameras and
9 preserve them in the event the stay is lifted and Judge
10 Kozinski issues his order, we think that would be a good
11 solution so then the materials could be posted when those --
12 those things happen.
13 THE COURT: Well, that's very much of a possibility
14 as presently matters stand.
15 The only transmission of these proceedings is to the
16 overflow courtroom in this courthouse. Any transmission beyond
17 that is not permitted, pending some further order of the
18 Supreme Court or the Court of Appeals, and, indeed, Chief Judge
19 Kozinski, who would be directing the pilot project.
20 I think your request is a fair one. But in the event
21 that there is no recording permitted after the issue is finally
22 settled, if a recording is made, some disposition of that
23 recording would have to be dealt with. And perhaps this is a
24 matter that we can deal with after we learn what the rule is
25 going to be in this case.
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PROCEEDINGS 16
1 I would prefer to defer it until then.
2 MR. BOUTROUS: That's what I would propose, Your
3 Honor. That way, simply recording it now, and then the Court
4 can grapple with that issue when we find out what happens on
5 Wednesday.
6 THE COURT: Very well.
7 MR. BOUTROUS: Thank you, Your Honor.
8 THE COURT: Mr. Cooper.
9 MR. COOPER: Your Honor, I very much appreciate
10 Mr. Boutrous's desire to ensure that my words are memorialized.
11 (Laughter)
12 But I do object to his proposal. I don't believe
13 that it's in keeping with -- although, at least as I read the
14 Court's order, and I only had a moment to do so, I don't
15 believe it specifically addresses this issue. But I don't
16 think it's consistent with the spirit of that order.
17 So I just want to make clear our objection to that
18 proposal. Thank you.
19 THE COURT: Very well. Your objection is noted.
20 Well, we have opening statements to make. And are
21 there any preliminary matters that we should address before we
22 turn to the opening statements? For the plaintiffs, for the
23 defendants, for the intervenors.
24 MR. OLSON: We have none. We are ready to proceed
25 when Your Honor is ready.
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EXHIBIT 8
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Volume 3
Pages 458 - 669
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
BEFORE THE HONORABLE VAUGHN R. WALKER
KRISTIN M. PERRY, )
SANDRA B. STIER, PAUL T. KATAMI, )
and JEFFREY J. ZARRILLO, )
)
Plaintiffs, )
)
VS. ) NO. C 09-2292-VRW
)
ARNOLD SCHWARZENEGGER, in his )official capacity as Governor of )
California; EDMUND G. BROWN, JR., )
in his official capacity as )
Attorney General of California; )
MARK B. HORTON, in his official )
capacity as Director of the )
California Department of Public )
Health and State Registrar of )
Vital Statistics; LINETTE SCOTT, )
in her official capacity as Deputy )
Director of Health Information & )
Strategic Planning for the )California Department of Public )
Health; PATRICK O'CONNELL, in his )
official capacity as )
Clerk-Recorder for the County of )
Alameda; and DEAN C. LOGAN, in his )
official capacity as )
Registrar-Recorder/County Clerk )
for the County of Los Angeles, )
) San Francisco, California
Defendants. ) Wednesday
___________________________________) January 13, 2010
TRANSCRIPT OF PROCEEDINGS
Reported By:Katherine Powell Sullivan, CRR,Katherine Powell Sullivan, CRR,Katherine Powell Sullivan, CRR,Katherine Powell Sullivan, CRR, CSRCSRCSRCSR 5812581258125812Debra L. Pas, CRR, CSR 11916Debra L. Pas, CRR, CSR 11916Debra L. Pas, CRR, CSR 11916Debra L. Pas, CRR, CSR 11916Official ReporterOfficial ReporterOfficial ReporterOfficial Reporterssss - U.S. District Court- U.S. District Court- U.S. District Court- U.S. District Court
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PEPLAU - REDIRECT EXAMINATION / DUSSEAULT 662
1 A. No.
2 Q. Lastly, Ms. Moss asked you some questions about
3 Massachusetts and the need for some more data.
4 Do you feel that you need more data from
5 Massachusetts to form an opinion as to whether allowing
6 same-sex couples to marry would either lead heterosexual
7 couples not to marry or to exit their marriage?
8 A. I don't, because my opinion is based on so much more than
9 simply the Massachusetts data.
10 Q. Thank you very much. I have no further questions, Dr.
11 Peplau.
12 THE COURT: Very well. Ms. Peplau, you may step
13 down. Thank you for your testimony.
14 A. Thank you, your Honor.
15 (Witness excused.)
16 THE COURT: And we are, I think, ready to adjourn for
17 today. We will recommence at 8:30 in the morning.
18 As you may know, the Supreme Court has given us some
19 guidance with respect to part of the issue. It seems to be a
20 rather limited guidance at the moment.
21 So we may have issues beyond remote access to these
22 proceedings by other courthouses that we'll have to take up at
23 some point.
24 My inclination, without hearing from counsel and
25 getting their advice, is that we put that issue to the side for
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