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.: i 4 ; ; . \ ' - i - " H ~ - ~ ~ - - - " ___ - > " _ ~ _ ~ _ ~ ~ .._____ J _ ~ _ ~ _ . __ _ _ _ _ ' : . . . : . _ ~ . ~ ' ::...c...._--'---___ - __________ '---_""-_. _______ __ _____ ___________ , . _ ~ . ____ .____ _ . ~ "

Noo ___

lrn tEbts;upteme ~ O U t t of tbe Qintttb s ; t a t e ~ -----+-----

DENNIS HOLLINGSWORTH, et aI.,Petitioners,

v.KRISTIN M. PERRY, et aI.,

Respondents.------+----

On Petition For A Writ Of CertiorariTo The United States Court Of AppealsFor The Ninth Circuit

------+----

PETITION FOR A WRIT OF CERTIORARI

April 8, 2010

- - - - - -+ - - - - - -CHARLES J. COOPERCounsel ofRecordMICHAEL W. KIRKJESSE M. PANUCCIOCOOPER & KIRK, PLLC1523 New Hampshire Avenue, NWWashington, D.C. 20036(202) 220-9600ccooper@cooperkirk.comCounsel for Petitioners

COCKLE LAW BRIEF PRI NTING CO. (800) 2256964OR CALL COLLECT (402) 342-2831

9-1238 1

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1

QUESTION PRESENTEDAfter this Court stayed the district court's order

allowing the video recording and public broadcast ofthe trial proceedings in this case, the district courtwithdrew its order and assured the parties that it scontinued recording of the trial proceedings wassolely for use in chambers and not for the purpose ofpublic dissemination. In light of the apparentmootness of the controversy, the question presented,IS:

Should the Ninth Circuit's decision denying a pe-tition for a writ of mandamus to halt the districtcourt's enforcement of its order be vacated and thecase be remanded to the court of appeals with in-structions to dismiss in accordance with UnitedStates v. Munsingwear, Inc., 340 U.S. 36 (1950)?

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11

PARTIES TO THE PROCEEDING BELOWPetitioners in this Court, Dennis Hollingsworth,

Gail J. Knight, Martin F. Gutierrez, MarkA. Jansson,and ProtectMarriage.com - Yes on 8, A Project of California Renewal are Defendant-Intervenors in th e district court an d were petitioners in the Court ofAppeals for the Ninth Circuit.

The United States District Court for the NorthernDistrict of California (Walker, C.J.) was the nominalrespondent to the proceedings in th e Ninth Circuit.See 9th Cir. R. 21-2.

Respondent William Tam is a Defendant-Intervenorin the district court and was a respondent in theNinth Circuit.

Respondents Kristen M. Perry, Sandra B. Stier,Paul T. Katami, and Jeffrey J. Zarrillo, are Plaintiffsin the district court and were respondents in theNinth Circuit.

Respondent City and County of San Francisco isPlaintiff-Intervenor in the district court and was arespondent in the Ninth Circuit.

Other parties to the proceedings in the districtcourt and Ninth Circuit, and thus Respondents inthis Court, are Defendants Arnold Schwarzenegger,in his official capacity as Governor of California;Edmund G. Brown Jr., in his official capacity asAttorney General of California; Mark B. Horton, in

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ivTABLE OF CONTENTS

PageQUESTION PRESENTED ..................................... 1PARTIES TO THE PROCEEDING BELOW......... 11CORPORATE DISCLOSURE STATEMENT ........ 111TABLE OF AUTHORITIES ................................... VIIOPINIONS AND ORDERS BELOW..................... 1JURISDICTION ........ ............. ..... ................. .......... 1CONSTITUTIONAL PROVISION INVOLVED...... 1STATEMENT ......... ............. ....... ...... ............. .......... 2REASONS FOR GRANTING THE PETITION..... 10

I. Petitioners' Mandamus Petition Is Moot .... 11II. The Court Should Vacate the Ninth Circuit's Order Denying the Mandamus Peti-

tion and Remand for Dismissal.. ........ ........ 12CONCLUSION ....................................................... 14AppendixHollingsworth v. United States District Courtfor the Northern District of California, No.10-70063, Order (9th Cir., Jan. 8,2010) ......... App. 1Perry v. Schwarzenegger, No. 09-2292, Notice

to Parties (N.D. Cal. Jan. 7,2010) .................. App. 2In the Matter of Pilot District Court Public Ac-cess Program, No. 2010-2, Order (Jan. 8,

2010) ................................................................. App. 4

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vTABLE OF CONTENTS - Continued

PageIn the Matter of Pilot District Court Public Ac-cess Program, No. 2010-3, Order (Jan. 15,2010) ............................................................... App. 528 U.S.C. 332 .................................................. App. 628 U.S.C. 2071 ................................................ App. 13N.D. Cal. Civ. R. 77-3 (Dec. 2009) ..................... App. 15N.D. Cal. Civ. R. 77-3 (Feb. 2010) ..................... App. 16Letter from Charles J. Cooper to Chief JudgeWalker, Perry v. Schwarzenegger, No. 09-2292(N.D. Cal. Oct. 5, 2009) .................................. App. 17Letter from Charles J. Cooper to Chief JudgeWalker, Perry v. Schwarzenegger, No. 09-2292(N.D. Cal. Jan. 14, 2010) ............................... App. 21Plaintiffs' and Plaintiff-Intervenor's Amended

Proposed Findings of Fact and Conclusionsof Law, Perry v. Schwarzenegger, No. 09-2292(Feb. 26, 2010) ............................................. App. 25

Northern District of California, Renewed N0-tice Concerning Revision of Civil Local Rule77-3 (Feb. 4, 2010) ...................................... App. 28Northern District of California, Perry v.

Schwarzenegger et al. Challenge to "Propo-sition 8" webpage (Apr. 8,2010) .................... App. 30

Transcript of Proceedings, Perry v. Schwarzenegger,No. 09-2292 (Jan. 11, 2010) .......... ................. App. 33Transcript of Proceedings, Perry v. Schwarzenegger,No. 09-2292 (Jan. 13, 2010) ........................... App. 37

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VI

TABLE OF CONTENTS - ContinuedPage

Transcript of Proceedings, Perry v. Schwarzenegger,No. 09-2292 (Jan. 14,2010) ........................... App. 40Transcript of Proceedings, Perry v. Schwarzenegger,No. 09-2292 (Jan. 27,2010) ........................... App. 44

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Vll

TABLE OF AUTHORITIESPage

CASESAlvarez v. Smith, 130 S. Ct. 576 (2009) ............... 11, 13Cotlow v. Emison, 502 U.S. 1068 (1992) .................... 12Hollingsworth v. Perry, 130 S. Ct. 705(2010) ...................................................... .........passimHollingsworth v. Perry, 130 S. Ct. 1132 (2010) .......... .4Joint School District No. 241 v. Harris, 515

U.S. 1154 (1995) ...................................................... 13United States v. Munsingwear, Inc., 340 U.S. 36(1950) ................................................................. 11, 13Williams v. Simons, 355 U.S. 49 (1957) ..................... 12

" STATUTES:2 28 U.S.C. 2106 ......................................................... 13STATE LAwCAL. CONST. art. I, 7.5 ................................................ 2

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1PETITION FORA WRIT OF CERTIORARIPetitioners respectfully petition for a writ of

certiorari to review an order of the United StatesCourt of Appeals for the Ninth Circuit.

--------+--------OPINIONS AND ORDERS BELOW

The order of the Ninth Circuit denying the petition for a writ of mandamus (App. 1) is unreported.The order of the district court that was the subject ofthe mandamus petition (App. 2-3) is also unreported.

--------+--------JURISDICTION

The Ninth Circuit's order denying the petition fora writ of mandamus was entered January 8, 2010.The jurisdiction of this Court is invoked under 28U.S.C. 1254(1).

--------+--------CONSTITUTIONAL PROVISION INVOLVED

Article III, 2 of the Constitution of the UnitedStates is as follows:

The judicial Power shall extend to all Cases,in Law and Equity, arising under thisConstitution, the Laws of the United States,and Treaties made, or which shall be made,under their Authority; - to all Cases affecting Ambassadors, other public Ministers and

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2Consuls; - to all Cases of admiralty andmaritime Jurisdiction; - to Controversies towhich the United States shall be a Party; -to Controversies between two or more States;- between a State and Citizens of anotherState, - between Citizens of different States,- between Citizens of the same State claimingLands under Grants of different States, andbetween a State, or the Citizens thereof, andforeign States, Citizens or Subjects.

--------+--------STATEMENT

Most of the relevant background of this case maybe found in Hollingsworth v. Perry, 130 S. Ct. 705(2010) (per curiam). We here repeat that backgroundonly as necessary to provide context for subsequentevents and this petition.

Passed by th e voters of California in November2008, Proposition 8 ("Prop 8") amended the Stateconstitution to provide that "[o]nly marriage ho1rUT,,,,,:lna man and a woman is valid or recognized in Cfornia." CAL. CONST. art. I, 7.5. Four individuals,spondents here, brought suit in th e Northernof California to challenge Prop 8'sThe Governor and Attorney General ofdeclined to defend Prop 8, and Petitioners weremitted to intervene as defendants. The districtestablished a highly expedited trial schedule,trial set to commence on January 11, 2010.

On September 25,2009, the district court .the parties of interest in publicly

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3the trial proceedings and asked for their positions.Hollingsworth, 130 S. Ct. at 708. Respondents supported the idea, but Petitioners objected, arguingboth that the district court's Local Rule 77-3 specifically banned the public broadcast of court proceedings and that, in any event, public broadcast of thisparticular case would fly in the face of the fair-trialconsiderations underlying the Judicial Conference'slongstanding and consistent position in opposition topublic broadcast of federal trial proceedings. App. 17-20; Hollingsworth, 130 S. Ct. at 708.

On December 17, 2009, the Ninth Circuit Judicial Council issued a press release announcing thatit had approved a "pilot program" for" 'the limited useof cameras in federal district courts within thecircuit.'" [d. at 708 (quoting press release). The pressrelease, stated that cases would be selected for participation in the program "'by the chief judge of thedistrict court in consultation with the chief circuitjudge.' ' ' [d. (quoting press release). The district courtthen issued "a series of postings on its website . . .purport[ing] to revise or propose revisions to LocalRule 77-3." [d. at 711; see id. at 708-09 (describingdistrict court's efforts to amend rule). The amendedrule would have created an exception to the generalban on recording or broadcasting court proceedings,"'for participation in a pilot or other project authorized by the Judicial Council of the Ninth Circuit.''' [d. at 708, 711 (quoting amended Local Rule77-3).

On January 7, 2010, the district court entered anorder pursuant to amended Local Rule 77-3 asking

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4Ninth Circuit Chief Judge Kozinski to approve "'inclusion of th[is] trial in the pilot project.'" Id. at 709(quoting order); see App. 3. The next day, Chief JudgeKozinski issued an order approving the districtcourt's request to publicly broadcast the trialproceedings to certain other federal courthouses, buthe deferred ruling on the request to disseminate thetrial proceedings on the Internet until "technicaldifficulties were resolved." Hollingsworth, 130 S. Ct.at 709; see App. 4.

Also on January 8, Petitioners moved the districtcourt for a stay of its order and petitioned the NinthCircuit for a writ of mandamus prohibiting thedistrict court from enforcing it s January 7 broadcastorder. Id. The district court never ruled on the staymotion, but the Ninth Circuit denied the mandamuspetition that evening. Id.; App. l .

On Saturday, January 9, Petitioners filed in thisCourt an application for a stay of the district court'sbroadcast order pending resolution of a forthcomingpetition for a writ of certiorari or mandamus. On themorning of Monday, January 11, just before com-mencement of the trial, the Court "ordered thatthe [district court's] order . . . permitting real-timestreaming is stayed except as it permits streaming toother rooms within the confines of the courthouse inwhich the trial is to be held" and that "[a]ny addi-tional order permitting broadcast of the proceedingsis also stayed." Order, Hollingsworth v. Perry, 130S. Ct. 1132 (2010). The Court noted that, "[t]o permit

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5further consideration in this Court, this order willremain in effect until Wednesday, January 13." [d.

At the opening of trial later that morning, Respondents asked the district court to videotape theproceedings for the purpose of later public dissemination "in the event the stay is lifted." App. 34-35.The district court accepted Plaintiffs' proposal overPetitioners' objection that recording the proceedingswas not "consistent with the spirit of' the temporarystay issued by this Court . App. 35-36.

On January 13, this Court "grant[ed] the application for a stay of the District Court's order of January7, 2010, pending the timely filing and disposition ofa petition for a writ of certiorari or the filing anddisposition of a petition for a writ of mandamus."Hollingsworth, 130 S. Ct. at 715. The Court foundthat the "amended version of Local Rule 77-3 appearsto be invalid [because] the District Court failed to'give appropriate public notice and an opportunity forcomment,' as required by federal law." [d . at 711(quoting 28 U.S.C. 2071(b)). Recognizing that publicbroadcast may have a chilling effect not only onwitnesses' testimony, but also on witnesses' willingness "to cooperate in any future proceedings," theCourt determined that "irreparable harm will likelyresult from the denial of the stay." [d. at 712-13.

The Court also emphasized that a stay wasnecessary to vindicate its supervisory "interest inensuring compliance with proper rules of judicial administration[, which] is particularly acute when those

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7

the district court stated that "we may have issuesbeyond remote access to these proceedings by othercourthouses." App. 38. The district court suggested"that we put that issue to the side for the time beingand proceed with the trial," but emphasized that"we'll have to deal with [that] issue[] in due time."App.38-39.

On January 14, Petitioners filed a letter with thedistrict court "request[ing] that the [District] Courthalt any further recording of the proceedings in thiscase, and delete any recordings of the proceedings todate that have previously been made." App. 21.Petitioners explained that, because of this Court'sruling on their stay application, the proceedings weregoverned by the unamended version of Local Rule 77-3, which" banned the recording or broadcast of courtproceedings.'" App. 22-23 (quoting and emphasizingHollingsworth, 130 S. Ct. at 708).

A few hours later, the district court opened thatday's trial proceedings by reporting that, "in light ofthe Supreme Court's decision yesterday, . . . [it was]requesting that this case be withdrawn from theNinth Circuit pilot project," and that Chief JudgeKozinski had "indicated that he would approve thatrequest." App. 41. "And so," the district court summedup, "that should take care of the broadcastingmatter." App. 41.

Petitioners then asked the district court "forclarification . . . that the recording of these proceedingshas been halted, the tape recording itself." App. 41-42.

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8When the district court clarified that the recording"has no t been altered," Petitioners reiterated theircontention (made in their letter submitted earlierthat morning) that, "in light of the stay, . . . thecourt's local rule . . . prohibit[s] continued taperecording of the proceedings." App. 42 (emphasisadded). Rejecting Petitioners' objection, the districtcourt stated that the unamended "local rule permits. . . recording for purposes of use in chambers andthat is customarily done when we have these remotecourtrooms or the overflow courtrooms." App. 42. Thedistrict court added that the recording "would bequite helpful to [it] in preparing the findings of fact."App. 42. The district court concluded, "[T]hat's thepurpose for which the recording is going to be madegoing forward. But it's not going to be for purposes ofpublic broadcasting or televising." App. 43 (emphasisadded). The district court then repeated its position tomake unmistakably clear the limited, private use towhich it intended to put th e recordings: after notingthat "the [unamended] local rule[] [prohibits] '[t]hetaking of photographs, public broadcasting ortelevising, or recording for those purposes,'" thedistrict court stated: "So the recording is no t beingmade for those purposes, but simply for use inchambers." App. 43 (emphasis added). In reliance onthe district court's assurances that its sole purposefor continuing to record th e proceedings was for itsprivate use in chambers, Petitioners took no action toenforce this Court's stay or Local Rule 77-3.

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9On January 15, the district court formally "with

drew [its] previous request to include Perry et. al. v.Schwarzenegger et. al. in the Ninth Circuit's pilotprogram permitting broadcasting of district courtproceedings in limited circumstances." App. 30. ChiefJudge Kozinski promptly granted the district court'srequest "to remove Perry v. Schwarzenegger, No. 3:09-cv-02292-VRW, from thee] pilot program" and "rescinded" his January 8 order designating this case forthe pilot program. App. 5.

The district court then withdrew the amendmentto Local Rule 77-3 authorizing participation in thepilot program. Compare App. 16 (showing Local Rule77-3 without amendment as of February 2010), withApp. 15 (showing Local Rule 77-3 as amended inDecember 2009). On February 4, the district courtproposed again its original amendment to Local Rule77-3 and invited comments on the proposedamendment until March 4. App. 28-29. The renewedproposed amendment to Local Rule 77-3 has not beenmade effective.

On January 27, the trial was adjourned. App. 47.The district court ordered the parties to submitproposed findings of fact and conclusions of law byFebruary 26, and indicated that, after having anopportunity to consider those proposals, it would "seta date for closing argument." App. 45-46. The partieshave now timely filed their proposed findings of factand conclusions of law. But the parties are continuingto litigate over the district court's order compellingcertain third-party organizations that campaigned

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10against passage of Prop 8 to produce to Petitionerscertain internal campaign communications and otherinformation. See Petition for a Writ of Certiorari,Hollingsworth v. Perry, No. 09-1210 (filed Apr. 5,2010).The Ninth Circuit has issued an emergency stay ofthe district court's production order. See id. at 18-19.Closing argument has thus not yet been calendared.

On or shortly before March 2, 2010, th e districtcourt posted on its website a response to "[c]ertainrecent articles [that] have reported incorrect informa-tion about possible broadcasting of closing argumentsin" this case. App. 30. The district court's postingstated: "Broadcasting closing arguments would re-quire Chief Judge Walker to request that these argu-ments be included in the Ninth Circuit's pilotprogram and approval of that request by Chief JudgeKozinski. No such request has been made." App. 30.

--------+--------REASONS FOR GRANTING THE PETITION

The Ninth Circuit denied Petitioners' request fora writ of mandamus to halt the district court's enforcement of it s January 7 order allowing audio-videorecording and public broadcast of the trial proceedings. This Court stayed the district court's broadcastorder pending the filing and disposition of the instantpetition, but actions by the district court since thenappear to have rendered the mandamus petitionmoot. The Court, therefore, should grant this petitionfor a writ of certiorari, vacate the Ninth Circuit's

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11

order denying the mandamus petition, and remand tothe Ninth Circuit with instructions to dismiss themandamus petition. See United States v. Munsing-wear, Inc., 340 U.S. 36 (1950).

I. Petitioners' Mandamus Petition Is MootAn "actual controversy must be extant at all

stages of review." Alvarez v. Smith, 130 S. Ct. 576,580 (2009) (quotation marks omitted). Where therehad been but "no longer [is] any actual controversybetween the parties," the case is moot. See id. at 580-81. The district court's actions subsequent to th eCourt's issuance of the stay appear to haveeliminated the controversy underlying Petitioners'

j mandamus petition and thus to have rendered thatil petition moot.I The district court has withdrawn it s January

7 order allowing audio-video recording and publicbroadcast of the trial proceedings and, concomitantly,Chief Judge Kozinski has rescinded his order approving the district court's broadcast order. The district court has also withdrawn the amendment toLocal Rule 77-3 that purportedly authorized it s broadcast order. Most importantly, th e district court repeatedly and unequivocally assured Petitioners thatit s continued recording of the trial proceedings wasnot for the purpose of public dissemination, but rathersolely for that court's use in chambers. And thedistrict court has stated that it has not requested

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12authorization to publicly broadcast the closingargument.

As a result of these post-stay actions by the district court, Petitioners have, in effect, obtained the relief they sought through their mandamus petition;namely, preventing the district court from enforcingits order to allow the trial proceedings to be broadcastpublicly or to be recorded for later public dissemination. Indeed, Plaintiffs themselves have acknowledged the "fact that these proceedings would no t bebroadcast to the public in any form" after the districtcourt "withdrew it s request to broadcast the proceedings to other federal courthouses an d made clearthat no such broadcast would take place." App. 26-27.

Petitioners' mandamus petition, therefore, appearsto be moot. See Williams v. Simons, 355 U.S. 49, 57(1957) ("By vacating the temporary restraining orderand dismissing the complaint, the District Court hasbrought to pass one alternative of the order petitioners would have this Court issue, thus renderingthe petition for all practical purposes moot."); Cotlowv. Emison, 502 U.S. 1068 (1992) ("The order of January 10, 1992, having vacated the order from which theappeal is taken, th e appeal is dismissed as moot.").

II. The Court Should Vacate the Ninth Cir-cuit's Order Denying the Mandamus Peti-tion and Remand for Dismissal

"The established practice of the Court in dealingwith a civil case from a court in the federal system

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13which has become moot while on its way here orpending [the Court's] decision on the merits is toreverse or vacate the judgment below and remandwith a direction to dismiss." Munsingwear, 340 U.S.at 39; see also Alvarez, 130 S. Ct. at 581; 28 U.S.C. 2106. Because Petitioners did not "cause[J themootness by voluntary action," the Court "shouldfollow [its] ordinary practice" in this case: vacate theNinth Circuit's order denying the mandamus petitionand remand to the Ninth Circuit with instructions todismiss the mandamus petition as moot. Alvarez, 130S. Ct. at 582-83 (quotation marks omitted); see also,e.g., Joint Sch. Dist. No. 241 v. Harris, 515 U.S. 1154,1155 (1995) ("The petitions for writs of certiorari aregranted. The judgment is vacated an d the cases areremanded to the United States Court of Appeals forthe Ninth Circuit with directions to dismiss asmoot.") (cit ing Munsingwear).

--------+--------

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14CONCLUSION

For the foregoing reasons, Petitioners respect-fully request that the Court grant this petition for awrit for certiorari, vacate the order of the Ninth Circuit denying their petition for a writ of mandamus,and remand to the Ninth Circuit with instructions todismiss the mandamus petition as moot.AprilS, 2010 Respectfully submitted,

CHARLES J . COOPERCounsel ofRecordMICHAEL W. KIRKJESSE M. PANUCCIOCOOPER & KIRK, PLLC1523 New HampshireAvenue, NWWashington, D.C. 20036(202) 220-9600ccooper@cooperkirk.comCounsel for Petitioners