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NO. 11-17255 KRISTIN PERRY, Et Al., Plaintiffs

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NO. 11-17255 KRISTIN PERRY, Et Al., Plaintiffs Case: 11-17255 09/23/2011 ID: 7905255 DktEntry: 3-1 Page: 1 of 29 (1 of 501) NO. 11-17255 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT KRISTIN PERRY, et al., Plaintiffs-Appellees, v. EDMUND G. BROWN, Jr. et al., Defendants, and DENNIS HOLLINGSWORTH, et al., Defendant-Intervenors-Appellants. Appeal from United States District Court for the Northern District of California Civil Case No. 09-CV-2292 JW (Honorable James Ware) EMERGENCY MOTION UNDER CIRCUIT RULE 27-3 _________________________________________________________ DEFENDANT-INTERVENORS-APPELLANTS DENNIS HOLLINGWORTH, GAIL J. KNIGHT, MARTIN F. GUTIERREZ, MARK A. JANSSON, AND PROTECTMARRIAGE.COM’S EMERGENCY MOTION FOR STAY PENDING APPEAL Andrew P. Pugno Charles J. Cooper LAW OFFICES OF ANDREW P. PUGNO David H. Thompson 101 Parkshore Drive, Suite 100 Howard C. Nielson, Jr. Folsom, California 95630 Peter A. Patterson (916) 608-3065; (916) 608-3066 Fax COOPER AND KIRK, PLLC 1523 New Hampshire Ave., N.W. Brian W. Raum Washington, D.C. 20036 James A. Campbell (202) 220-9600; (202) 220-9601 Fax ALLIANCE DEFENSE FUND 15100 North 90th Street Scottsdale, Arizona 85260 (480) 444-0020; (480) 444-0028 Fax Attorneys for Defendant-Intervenors-Appellants Case: 11-17255 09/23/2011 ID: 7905255 DktEntry: 3-1 Page: 2 of 29 (2 of 501) Circuit Rule 27-3 Certificate Pursuant to Circuit Rule 27-3, Appellants respectfully certify that their motion for a stay pending appeal is an emergency motion requiring at least temporary “relief … in less than 21 days” in order to “avoid irreparable harm.” Appellants are official Proponents of Proposition 8 and the official Yes on 8 campaign (collectively, “Proponents”), who were permitted to intervene in this case to defend that California ballot initiative against a challenge by two same-sex couples (“Plaintiffs”). Following the trial in this case and the retirement of the presiding judge, Plaintiffs moved to unseal a video-recording of the trial proceedings in this case. The district court granted Plaintiffs’ motion on September 19. At Proponents’ request, Chief Judge Ware granted a stay of his ruling that will expire on Friday, September 30, 2011. He did not, however, rule on Proponents’ request for a stay pending appeal.1 As elaborated in Proponents’ stay motion, the district court’s unlawful decision to unseal the recording will cause immediate irreparable harm. Because the district court ordered the Clerk to execute the order on September 30, “relief is needed in less than 21 days” in order to prevent these irreparable injuries. Cir. R. 1 Accordingly, Proponents have satisfied the procedural prerequisite for seeking a stay from this Court. See Fed. R. App. P. 8(a)(1). Out of an abundance of caution, Proponents renewed their request for a stay pending appeal with the district court shortly before this filing, but in view of the looming September 30 expiration of the current stay, prompt relief from this Court is urgently needed and fully warranted. i Case: 11-17255 09/23/2011 ID: 7905255 DktEntry: 3-1 Page: 3 of 29 (3 of 501) 27-3(a). Accordingly, Proponents respectfully request that the Court immediately stay the district court’s order pending appeal. All of the grounds in the stay motion have been presented to the district court, and, before filing this motion, Proponents notified counsel for the other parties by email and also emailed them a service copy of the motion. Pursuant to 9th Cir. R. 27-3(a)(3)(i), the telephone numbers, email addresses, and office addresses of the attorneys for the parties are as follows: Attorneys for Plaintiffs Kristin M. Perry, Sandra B. Stier, Paul T. Katami, and Jeffrey J. Zarrillo: Theodore B. Olson [email protected] Matthew C. McGill [email protected] Amir C. Tayrani [email protected] GIBSON, DUNN & CRUTCHER, LLP 1050 Connecticut Avenue, NW Washington, D.C. 20036 (202) 955-8668 Theodore J. Boutrous, Jr. [email protected] Christopher D. Dusseault [email protected] Ethan D. Dettmer [email protected] Theane Evangelis Kapur [email protected] Enrique A. Monagas [email protected] GIBSON, DUNN & CRUTCHER, LLP 333 S. Grand Avenue ii Case: 11-17255 09/23/2011 ID: 7905255 DktEntry: 3-1 Page: 4 of 29 (4 of 501) Los Angeles, CA 90071 (213) 229-7804 David Boies [email protected] Rosanne C. Baxter [email protected] BOIES, SCHILLER & FLEXNER, LLP 333 Main St Armonk, NY 10504 (914) 749-8200 Jeremy Michael Goldman [email protected] Theodore H. Uno [email protected] BOIES, SCHILLER & FLEXNER LLP 1999 Harrison St., Suite 900 Oakland, CA 94612 (510) 874-1000 Attorneys for Plaintiff-Intervenor City and County of San Francisco: Dennis J. Herrera Therese Stewart [email protected] Danny Chou [email protected] Ronald P. Flynn [email protected] Vince Chhabria [email protected] Erin Bernstein [email protected] Christine Van Aken [email protected] Mollie M. Lee [email protected] CITY AND COUNTY OF SAN iii Case: 11-17255 09/23/2011 ID: 7905255 DktEntry: 3-1 Page: 5 of 29 (5 of 501) FRANCISCO OFFICE OF THE CITY ATTORNEY One Dr. Carlton B. Goodlett Place Room 234 San Francisco, CA 4102-4682 (415) 554-4708 Attorneys for Defendants Governor Edmund G. Brown, Attorney General Kamala D. Harris, Director Mark B. Horton, and Deputy Director Linette Scott: Gordon Bruce Burns [email protected] Attorney General’s Office, Dept. of Justice 1300 I Street, 17th Floor Sacramento, CA 95814 (916) 324-3081 Tamar Pachter [email protected] Office of the California Attorney General 455 Golden Gate Ave, Suite 11000 San Francisco, CA 94102-7004 (415) 703-5970 Attorneys for Defendant Clerk-Recorder Patrick O’Connell: Claude Franklin Kolm [email protected] Manuel Francisco Martinez [email protected] COUNTY OF ALAMEDA 1221 Oak Street, Suite 450 Oakland, CA 94612-4296 (510) 272-6710 iv Case: 11-17255 09/23/2011 ID: 7905255 DktEntry: 3-1 Page: 6 of 29 (6 of 501) Attorney for Defendant Registrar-Recorder Dean C. Logan: Judy Whitehurst [email protected] OFFICE OF COUNTY COUNSEL – COUNTY OF LOS ANGELES 500 West Temple St Los Angeles, CA 90012 (213) 974-1845 Attorney for Defendant-Intervenor Hak-Shing William Tam: Terry L. Thompson [email protected] LAW OFFICES OF TERRY L. THOMPSON P.O. Box 1346 Alamo, CA94507 (925) 855-1507 Attorneys for Defendant-Intervenors Dennis Hollingsworth, Gail J. Knight, Martin F. Gutierrez, Mark A. Jansson, and ProtectMarriage.com—Yes on 8, A Project of California Renewal: Charles J. Cooper [email protected] David H. Thompson [email protected] Howard C. Nielson, Jr. [email protected] Nicole J. Moss [email protected] Peter A. Patterson [email protected] COOPER & KIRK, PLLC 1523 New Hampshire Ave., NW v Case: 11-17255 09/23/2011 ID: 7905255 DktEntry: 3-1 Page: 7 of 29 (7 of 501) Washington, D.C. 22036 (202) 220-9600 Andrew P. Pugno [email protected] LAW OFFICES OF ANDREW P. PUGNO 101 Parkshore Dr., Ste. 100 Folsom, CA 95630 (916) 608-3065 Brian W. Raum [email protected] James A. Campbell [email protected] ALLIANCE DEFENSE FUND 15100 N. 90th St. Scottsdale, AZ 85260 (480) 444-0020 Jordan W. Lawrence [email protected] Austin R. Nimocks [email protected] ALLIANCE DEFENSE FUND 801 G St. NW, Suite 509 Washington, D.C. 20001 (202) 393-8690 Timothy D. Chandler [email protected] ALLIANCE DEFENSE FUND 101 Parkshore Dr., Suite 100 Folsom, CA 95630 (916) 932-2850 Dated: September 23, 2010 s/Charles J. Cooper Charles J. Cooper Attorney for Appellants vi Case: 11-17255 09/23/2011 ID: 7905255 DktEntry: 3-1 Page: 8 of 29 (8 of 501) Corporate Disclosure Statement Under Fed. R. App. P. 26.1 Defendant-Intervenor-Appellant ProtectMarriage.com is not a corporation but a primarily formed ballot committee under California Law. See CAL. GOV. CODE §§ 82013 & 82047.5. Its “sponsor” under California law is California Renewal, a California nonprofit corporation, recognized as a public welfare organization under 26 U.S.C. § 501(c)(4). - i - Case: 11-17255 09/23/2011 ID: 7905255 DktEntry: 3-1 Page: 9 of 29 (9 of 501) Pursuant to Fed. R. App. P. 8(a)(2), Appellants respectfully seek a stay of the district court‟s judgment of September 19, 2011 (attached as Ex. 1), pending resolution of their appeal. INTRODUCTION “In 1996, the Judicial Conference of the United States adopted a policy 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 was 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. 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 benefits.” Ex. 3 at 1. Also in 1996, the Ninth Circuit Judicial Council “voted to adopt the policy of the Judicial Conference of the United States regarding the use of cameras in the courts.” Ex. 5. The Council‟s policy thus provided: “The taking of photographs and radio and television coverage of court proceedings in the United States district courts is prohibited.” Id. “[T]his policy [was] . binding on all courts within the Ninth Circuit.” Id. Accordingly, the Northern District of California adopted Local Rule 77-3, which prohibits the “taking of photographs, public broadcasting or televising, or recording for those purposes in the courtroom or its environs, in -1- Case: 11-17255 09/23/2011 ID: 7905255 DktEntry: 3-1 Page: 10 of 29 (10 of 501) connection with any judicial proceeding.” Hollingsworth, 130 S.
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