Petition for Writ of Certiorari — Dennis Hollingsworth, et al., Petitioners v. Kristin M. Perry, et al.

Supreme Court briefMar 28, 2022

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APPENDIX

TABLE OF CONTENTS

Appendix A Opinion, Perry v. Newsom, No. 20-16375

(9th Cir. Nov. 18, 2021) . . . . . . . . . . . 1a

Appendix B Order, Perry v. Schwarzenegger,

No. 09-cv-2292 (N.D. Cal. July 9,

2020) . . . . . . . . . . . . . . . . . . . . . . . . . 44a

Appendix C Order, Perry v. Schwarzenegger,

No. 09-cv-2292 (N.D. Cal. Jan. 17,

2018) . . . . . . . . . . . . . . . . . . . . . . . . . 52a

Appendix D Order, Perry v. Newsom, No. 20-16375

(9th Cir. Dec. 28, 2021). . . . . . . . . . . 75a

Appendix E Constitutional Provisions and Rules

Involved . . . . . . . . . . . . . . . . . . . . . . . 77a

U.S. CONST. art. III, § 2, cl.1 . . . . . . 77a

U.S. CONST. amend. I . . . . . . . . . . . . 77a

N.D. CAL. L.R. 77-3 (current) . . . . . . 78a

N.D. CAL. L.R. 77-3 (2009) . . . . . . . . 78a

N.D. CAL. L.R. 79-5 (current) . . . . . . 79a

N.D. CAL. L.R. 79-5 (2010) . . . . . . . . 84a

Appendix F Excerpts

from

Transcript of

Proceedings, Perry v. Schwarzenegger,

No. 09-cv-2292 (N.D. Cal. Jan. 14,

2010) . . . . . . . . . . . . . . . . . . . . . . . . . 89a

Appendix G Notice

Parties,

Perry v.

Schwarzenegger, No. 09-cv-2292

(N.D. Cal. Jan. 15, 2010) . . . . . . . . . 97a

APPENDIX A

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 20-16375

D.C. No. 3:09-cv-02292-WHO

[Filed: November 18, 2021]

__________________________________________

)

KRISTIN M. PERRY; SANDRA B. STIER;

PAUL T. KATAMI; JEFFREY J. ZARRILLO,

)

Plaintiffs-Appellees,

)

CITY AND COUNTY OF SAN FRANCISCO,

)

Intervenor-Plaintiff-Appellee,

)

KQED, INC.,

)

Intervenor-Appellee,

)

GAVIN NEWSOM, Governor; ROB BONTA,

)

Attorney General; TOMÁS J. ARAGÓN, in

)

Under Fed. R. App. P 43(c)(2), Rob Bonta and Tomas Aragón have

been substituted for their predecessors, Xavier Becerra and Mark

B. Horton.

his official capacity as Director of the

California Department of Public Health &

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,

)

Defendants-Appellees,

)

DENNIS HOLLINGSWORTH; GAIL J. KNIGHT;

)

MARTIN F. GUTIERREZ; MARK A. JANSSON,

)

Intervenor-Defendants-Appellants, )

)

and

)

PATRICK O’CONNELL, in his official

)

capacity as Clerk-Recorder for the County

)

of Alameda; DEAN C. LOGAN, in his official )

capacity as Registrar-Recorder/County

)

Clerk for the County of Los Angeles,

)

Defendants.

)

__________________________________________)

OPINION

Appeal from the United States District Court

for the Northern District of California

William Horsley Orrick, District Judge, Presiding

Argued and Submitted December 7, 2020

San Francisco, California

Filed November 18, 2021

Before: Carlos F. Lucero,** William A. Fletcher, and

Sandra S. Ikuta, Circuit Judges.

Opinion by Judge W. Fletcher;

Dissent by Judge Ikuta

SUMMARY***

Civil Rights

The panel dismissed, for lack of jurisdiction, an

appeal from the district court’s order releasing to the

public the video recordings of the district court bench

trial in the landmark case striking down California’s

Proposition 8 forbidding same-sex marriage.

Judge Walker recorded the trial for use in

chambers, pursuant to a local rule in effect at the time.

When proponents of Proposition 8 (“Proponents”)

objected, he assured them that the recording was not

going to be used for purposes of public broadcasting or

televising. The video recordings were offered to the

parties for use in their closing arguments and were

later entered into the record under seal. In 2011, after

Judge Walker’s retirement and while the appeal of

Judge Walker’s order permanently enjoining

Proposition 8 was pending, then-Chief Judge Ware

The Honorable Carlos F. Lucero, United States Circuit Judge for

the U.S. Court of Appeals for the Tenth Circuit, sitting by

designation.

***

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

ordered the video recordings to be unsealed.

Proponents appealed, explaining that they had

understood Judge Walker’s assurance to mean that the

recordings would not be made public, although during

oral argument, the attorneys acknowledged that

neither they nor their clients believed the recordings

would remain permanently sealed. On appeal, this

court reversed the district court, holding that it had

abused its discretion in ordering the recordings

unsealed in light of Judge Walker’s specific assurances

that the recordings would not be broadcast to the

public, at least in the foreseeable future. In an

amended footnote, the court cited local Rule 79-5(f),

which provides that any document filed under seal in

a civil case shall be open to the public 10 years from the

date the case was closed, unless good cause could be

shown to extend the seal. In 2020, Proponents asked

the district court to extend the seal. The district court

declined the request, in part because Proponents failed

to submit any evidence that any Proponent or witness

who testified on behalf of Proponents wanted the

recordings to remain under seal or feared retaliation or

harassment if the recordings were released.

The panel held that Appellants, a subset of the

original Proponents, failed to establish a particularized

and concrete injury sufficient to constitute “injury in

fact” as the Supreme Court has defined that term.

Appellants did not claim, and cited no authority for the

proposition, that a statement—even a “promise”—

made by a judge to litigants in the course of litigation

is an enforceable contract. The panel held that even

assuming, contrary to their statement in the 2011

appeal, that Judge Walker told Appellants that the

video recordings would remain sealed in perpetuity,

they failed to plausibly allege a concrete and

particularized injury. The panel rejected Appellants’

contentions that the unsealing would result in a

“palpable injustice” to Appellants themselves or would

harm future litigants’ ability to rely on judicial

“promises,” and would thereby injure both the judicial

system and future litigants. Neither alleged injury was

sufficiently concrete and particularized for purposes of

Article III standing. The panel therefore lacked

jurisdiction over the appeal.

Dissenting, Judge Ikuta stated that for the past ten

years, the Proponents have gone to extraordinary

lengths to prevent the public broadcast of these trial

proceedings, including a successful trip to the Supreme

Court and multiple appeals to this court. Whether

Chief Judge Walker’s promise not to publicly broadcast

the trial recording is an enforceable contract or merely

closely analogous to one, the breach of that promise is

a concrete and particularized injury sufficient to confer

Article III standing upon the Proponents. Accordingly,

the issue of Article III standing does not provide a basis

to depart from this court’s prior ruling “that the

integrity of the judicial process is a compelling interest

that in these circumstances would be harmed by the

nullification of the trial judge’s express assurances, and

that there are no alternatives to maintaining the

recording under seal that would protect the compelling

interest at issue.” Perry v. Brown, 667 F.3d 1078, 1081

(9th Cir. 2012).

COUNSEL

John D. Ohlendorf (argued), Charles J. Cooper,

David H. Thompson, Peter A. Patterson,

Cooper & Kirk PLLC, Washington, D.C., for

Intervenor-Defendants-Appellants.

Christopher D. Dusseault (argued), Theodore J.

Boutrous Jr., Theane Evangelis, Abbey J. Hudson, and

Jillian N. London, Gibson Dunn & Crutcher LLP, Los

Angeles, California; Theodore B. Olson, Matthew D.

McGill, Amir C. Tayrani, and Andrew Wilhelm, Gibson

Dunn & Crutcher LLP, Washington, D.C.; Ethan

Dettmer and Elizabeth A. Dooley, Gibson Dunn &

Crutcher LLP, San Francisco, California; David Boies,

Boies Schiller & Flexner LLP, Armonk, New York; for

Intervenor-Plaintiffs-Appellees.

Seth E. Goldstein, Deputy Attorney General; Benjamin

M. Glickman, Supervising Deputy Attorney General;

Thomas S. Patterson, Senior Assistant Attorney

General; Rob Bonta, Attorney General; Attorney

General’s Office, Sacramento, California; for

Defendants-Appellees.

Dennis J. Herrera, City Attorney; Ronald P. Flynn,

Chief Deputy City Attorney; Jeremy M. Goldman,

Co-Chief of Appellate Litigation; Office of the City

Attorney, San Francisco, California; for

Intervenor-Plaintiff-Appellee.

Thomas R. Burke (argued) and Kelly M. Gorton, Davis

Wright Tremaine LLP, San Francisco, California;

Rochelle L. Wilcox, Davis Wright Tremaine LLP, Los

Angeles, California; for Intervenor-Appellee.

Katie Townsend, Caitlin V. Vogus, and Shannon A.

Jankowski, Reporters Committee for Freedom of the

Press, Washington, D.C., for Amici Curiae Reporters

Committee for Freedom of the Press and 32 Media

Organizations.

OPINION

W. FLETCHER, Circuit Judge:

We are once again asked to decide whether either

the First Amendment or common-law right of access

requires public release of video recordings of the

district court bench trial in the landmark case striking

down California’s Proposition 8 forbidding same-sex

marriage. See Perry v. Schwarzenegger, 704 F. Supp. 2d

921 (N.D. Cal. 2010). Long after the trial, the district

court ordered release of the recordings. Appellants are

a subset of the original proponents of ballot Proposition

8. We conclude that Appellants have failed to

demonstrate sufficient injury for Article III standing.

We therefore dismiss their appeal for lack of

jurisdiction.

I. Background

In 2008, California voters passed Proposition 8

amending California’s Constitution to provide that

“[o]nly marriage between a man and a woman is valid

or recognized in California.” Cal. Const. art. 1, § 7.5.

Two same-sex couples who wished to marry

(“Plaintiffs”) filed suit in the Northern District of

California against the Governor, Attorney General, and

other California officials. Hollingsworth v. Perry, 570

U.S. 693, 702 (2013). Plaintiffs argued that Proposition

8 violated their due process and equal protection rights

under the federal Constitution. Id. The California State

defendants refused to defend Proposition 8, though

they continued to enforce it. Id. Proposition 8’s official

proponents who were responsible for putting it on the

ballot—Dennis Hollingsworth, Gail Knight, Martin

Gutierrez, Hak-Shing William Tam, Mark Jansson,

and Protectmarriage.com (“original Proponents”)—were

permitted to intervene as defendants. Schwarzenegger,

704 F. Supp. 2d. at 954. Tam split off before trial,

leaving a group we will refer to as “Proponents” or

“remaining Proponents.”

A bench trial was scheduled for January 2010 before

then-Chief Judge Vaughn Walker. As that time grew

closer, Judge Walker discussed with the parties the

possibility of livestreaming the trial to other

courthouses. Hollingsworth v. Perry, 558 U.S. 183, 200

(2010) (per curiam) (Breyer, J., dissenting). The

primary obstacle to such broadcasting was the local

rules of the Northern District. In particular, Local Rule

77-3 read in relevant part:

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.

Perry v. Brown, 667 F.3d 1078, 1082 n.1 (9th Cir.

2012).

In December 2009, the Ninth Circuit Judicial

Council authorized a pilot program “permitting the use

of video in nonjury civil cases.” Hollingsworth, 558 U.S.

at 201 (Breyer, J., dissenting). A few days later, the

Northern District amended its local rules in order to

participate in the pilot program. Id. The rule change

would have allowed the Proposition 8 trial to be

broadcast to other courthouses.

Proponents challenged this change of rules. In

January 2010, they petitioned our court for a writ of

mandamus that would have prevented the district

court from participating in the pilot program. Id. at

188. We denied the petition. On the morning of the first

day of trial, the Supreme Court issued a temporary

stay of the proposed broadcast to other courthouses. Id.

at 185. Two days later, the Court extended the stay. Id.

at 184. The Court concluded that the Northern

District’s amendment of its local rules likely violated

28 U.S.C. § 2071, which requires that courts generally

provide “appropriate public notice and opportunity for

comment” when changing their rules. See Brown, 667

F.3d at 1082 (citing Hollingsworth, 558 U.S. at 191).

Judge Walker had video recorded (but not broadcast

beyond the courthouse) the first two days of trial in the

event that the Supreme Court lifted the temporary

stay. Id. After the stay was extended, Proponents asked

that the trial no longer be recorded. Judge Walker

responded:

10a

The local rule permits the recording for purposes

. . . of use in chambers and that is customarily

done when we have these remote courtrooms or

the overflow courtrooms. And I think it would be

quite helpful to me in preparing the findings of

fact to have that recording. So that’s the purpose

for which the recording is going to be made going

forward. But it’s not going to be for purposes of

public broadcasting or televising.

After this assurance from Judge Walker,

Proponents dropped their objection to recording the

trial. Perry, 667 F.3d at 1082. Proponents called only

two witnesses at the trial. Proponents explained,

without providing supporting evidence, that their other

witnesses declined to testify because they “were

extremely concerned about their personal safety, and

did not want to appear with any recording of any sort.”

Schwarzenegger, 704 F. Supp. 2d at 944.

Without objection, the video recordings of the trial

were offered to the parties for use in their closing

arguments, and were later entered into the record

under seal. Brown, 667 F.3d at 1082. Judge Walker

relied on the recordings to prepare his findings of fact

and conclusions of law in his written order at the

conclusion of the case. Schwarzenegger, 704 F. Supp. 2d

at 929. He also allowed the parties to keep partial

copies of the recordings, subject to a protective order.

Id. On August 4, 2010, Judge Walker entered an order

permanently enjoining the enforcement of Proposition

8, holding that it violated the Equal Protection and Due

Process Clauses of the Fourteenth Amendment. See id.

at 1004.

11a

Proponents appealed. Perry v. Brown, 671 F.3d 1052

(9th Cir. 2012). They did not challenge, as part of their

appeal, Judge Walker’s decision to enter the video

recordings into the record under seal, or his decision to

provide partial copies of the recordings to the parties.

Brown, 667 F.3d at 1083.

Less than a year after deciding the case, Judge

Walker retired. Id. Both before and after retiring,

Judge Walker used clips of the recordings in public

appearances. Id. In response, the Proponents—whose

merits appeal was then pending before us—moved this

court to order the return of all copies of the recordings

to the district court. Id. Plaintiffs, joined by a coalition

of media companies, cross-moved to unseal the

recordings. Id. We transferred the motions to the

district court for that court to address them in the first

instance.

Then-Chief Judge James Ware had taken over the

case following Judge Walker’s retirement. After

determining that the common-law right of access

applied and that Proponents had failed to demonstrate

a compelling reason to continue the seal, the court

ordered that the video recordings be unsealed. Perry v.

Schwarzenegger, No. C 09-02292, 2011 WL 4527349

(N.D. Cal. Sept. 19, 2011). Proponents appealed,

explaining that they had understood Judge Walker’s

assurance to mean that the recordings would not be

made public. They contended, further, that their

witnesses would likely be harassed if the recordings

were released, and that fear of harassment would make

it more difficult to retry the case if Proponents

succeeded in their merits appeal.

12a

In 2011, during oral argument in the appeal from

the court’s order unsealing the records, Proponents’

counsel acknowledged that neither they nor their

clients believed the recordings would remain

permanently sealed:

JUDGE HAWKINS: Were your clients under the

impression that these tapes would be forever

sealed?

COUNSEL: No Your Honor, I believe that a seal

lasts for—not necessarily, I guess, is the better

answer, is the seal lasts for ten years under the

local rules of the Northern District of California

and at the end of the trial—at the end of the

proceedings—at the end of the case, then we

would be entitled to go in and ask for an

extension of that time to a specific date. But it

would be a minimum of ten years, Your Honor.

JUDGE HAWKINS: And it’s clear from the record

that your client understood that and acted on

that basis?

COUNSEL: The record, I don’t believe has

anything one way or the other on that, but yes

we were aware of the local rules, Your Honor,

that it was a minimum of ten years and that we

would have the opportunity to ask for an

extended seal if we could make a good cause

showing of that.

Oral Argument at 07:04–07:58, Brown, 667 F.3d 1078

(No. 11-17255), https://www.ca9.uscourts.gov/media/

video/?20111208/11-17255.

13a

We reversed the district court, holding that it had

abused its discretion in ordering the recordings

unsealed. Brown, 667 F.3d at 1081. We concluded, even

assuming that the First Amendment and common-law

right of access applied, that there was a compelling

reason not to release the recordings at that time. Id. at

1084. We wrote, “The reason is that Proponents

reasonably relied on Chief Judge Walker’s specific

assurances—compelled by the Supreme Court’s justissued opinion—that the recording would not be

broadcast to the public, at least in the foreseeable

future.” Id. at 1084–85.

In an appended footnote, we cited and quoted Local

Rule 79-5(f), to which Proponents’ counsel had referred

in his answer during oral argument. Id. at 1085 n.5.

Our footnote explained that Rule 79-5(f)

provides that “[a]ny document filed under seal in

a civil case shall be open to public inspection

without further action by the Court 10 years

from the date the case is closed,” with the

proviso that “a party that submitted documents

that the Court placed under seal in a case may,

upon showing good cause at the conclusion of the

case, seek an order that would continue the seal

until a specific date beyond the 10 years

provided by this rule.”

Id. (alteration in original) (quoting Local Rule 79-5(f)).

In the separate merits appeal, we affirmed Judge

Walker’s ruling that Proposition 8 violated the

Fourteenth Amendment of the Constitution. Brown,

671 F.3d 1052. The Supreme Court granted certiorari

14a

and ultimately concluded that while Proponents had

standing to defend Proposition 8 in the trial before the

district court, they lacked Article III standing to appeal

the district court’s decision striking down Proposition

8. Hollingsworth, 570 U.S. at 715. Two years later, in

Obergefell v. Hodges, 576 U.S. 644 (2015), the Court

held that same-sex marriage is protected under the

Fourteenth Amendment.

In 2017, media intervenor KQED asked the district

court to unseal the video recordings of the trial.

Proponents opposed the unsealing. By this time, Judge

Ware had retired and the case had again been

reassigned, this time to Judge William Orrick.

In 2018, the district court held that the common-law

right of access applied to the trial recordings. The court

held, further, that the reliance interest we had

identified in 2012 remained a compelling reason to

maintain the recording’s seal until its presumptive

expiration after ten years, pursuant to the court’s local

rules. The court ordered that the trial recordings be

released after the seal’s presumptive expiration in

2020, unless Proponents demonstrated a “compelling

reason” to extend the seal. Proponents appealed. We

dismissed the appeal for lack of jurisdiction, holding

that the decision was neither a final order nor an

appealable collateral order. Perry v. Schwarzenegger,

765 F. App’x 335 (9th Cir. 2019).

In 2020, Proponents asked the district court to

extend the seal. For the first time, the California State

defendants actively supported release of the video

recordings to the public. The court declined to extend

the seal, in part because “the Proponents again failed

15a

to submit any evidence by declaration that any

Proponent or witness who testified on behalf of the

Proponents want[ed] the trial recordings to remain

under seal . . . [or] fear[ed] retaliation or harassment if

the recordings are released.” The court also found that

Proponents’ acknowledgment during oral argument in

2011 was “a significant indication that even

Proponents’ counsel contemporaneously understood

that sealing is typically limited in time and that it was

not reasonable to rely solely on Judge Walker’s

statements to insist that sealing be permanent.” On

August 12, 2020, the court ordered that the recordings

be made public.

Proponents timely appealed. A divided motions

panel of this court stayed the district court’s ordered

release of the recordings pending a hearing before the

merits panel. Following oral argument, our merits

panel requested supplemental briefing addressing the

question whether Proponents have Article III standing

to bring this appeal.

II. Standard of Review

Even when not raised by the parties, we are obliged

to determine whether we have subject matter

jurisdiction. Article III standing is an essential

ingredient of subject matter jurisdiction. Whitaker v.

Tesla Motors Inc., 985 F.3d 1173, 1178 (9th Cir. 2021).

III. Article III Standing

Appellants are all of the original Proponents except

for Hak-Shing WilliamTam and Protectmarriage.com.

With the appeal in its current posture, the threshold

(and determinative) question is whether Appellants

16a

have Article III standing. As the parties seeking federal

review, Appellants bear the burden of showing that

they have standing.

Under Article III of the Constitution, our

jurisdiction is limited to “Cases” and “Controversies.”

U.S. Const. Art. III, § 2. “For there to be such a case or

controversy, it is not enough that the party invoking

the power of the court have a keen interest in the issue.

That party must also have ‘standing . . . .’”

Hollingsworth, 570 U.S. at 700. The Supreme Court

has explained that the “‘irreducible constitutional

minimum’ of [Article III] standing consists of three

elements.” Spokeo v. Robins, 136 S. Ct. 1540, 1547

(2016) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555,

560 (1992)). Those elements require that the party

invoking federal jurisdiction “(1) suffered an injury in

fact, (2) that is fairly traceable to the challenged

conduct . . . , and (3) that is likely to be redressed by a

favorable judicial decision.” Id. (citing Lujan, 504 U.S.

at 560–61). The Court has explained that “under

Article III, a federal court may resolve only a real

controversy with real impact on real persons.”

TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2203

(2021) (quotation marks and citation omitted).

Although questions of standing often arise early in

a case, “Article III demands that an ‘actual controversy’

persist throughout all stages of litigation.”

Hollingsworth, 570 U.S. at 705. “That means that

standing ‘must be met by persons seeking appellate

review, just as it must be met by persons appearing in

courts of first instance.’” Id. (quoting Arizonans for Off.

English v. Arizona, 520 U.S. 43, 64 (1997)).

17a

The current appeal comes to us in a different

posture from Appellants’ prior appeals. When

Appellants appealed Judge Ware’s order unsealing the

recordings in 2011, they plausibly alleged potential

harm from their release. At that time, their merits

appeal was still pending. If they had succeeded in that

appeal, the case might well have been retried.

Appellants introduced evidence that they and others

had been harassed for supporting Proposition 8 around

the time of its passage. Based on this evidence,

Appellants plausibly alleged that their prospective

witnesses might refuse to testify for fear of harassment

if the video recordings of the first trial were released.

When Appellants appealed Judge Orrick’s order in

2019, we lacked appellate jurisdiction to review the

order. The district court had denied immediate relief

but had provided Appellants the option of establishing

a compelling reason to maintain the seal prior to the

recordings’ release in 2020. We accordingly dismissed

the appeal for lack of an appealable final order.

Unlike in 2011, there is now no prospect of a retrial.

Further, Appellants do not allege or rely on any fear of

harassment, as indicated by comments by Appellants’

counsel to the district court in 2020:

I very much appreciate that Your Honor had

invited and perhaps expected some additional

kind of argumentation about threats to the

witnesses’ safety or harassment, or that sort of

thing, but the truth is, Your Honor, that’s never

been the motivating factor or the basis for which

we’ve opposed disclosure of these videotapes.

18a

Unlike in 2019, the district court’s ruling in 2020 is an

appealable final order.

In denying Proponents’s request to keep the video

recordings sealed, the district court concluded in 2020:

Proponents again failed to submit any evidence

by declaration that any Proponent or witness

who testified on behalf of Proponents wants the

trial recordings to remain under seal. There is

no evidence that any Proponent or trial witness

fears retaliation or harassment if the recordings

are released. Nor is there any evidence that any

Proponent or trial witness on behalf of the

Proponents believed at the time or believes now

that Judge Walker’s commitment to personal

use of the recordings meant that the trial

recordings would remain under seal forever.

IV. Injury in Fact

Our Article III standing inquiry in this appeal

begins and ends with “injury in fact, the first and

foremost of standing’s three elements.” Spokeo, 136 S.

Ct. at 1547 (cleaned up). To satisfy this element,

Appellants must demonstrate “an injury that is both

‘concrete and particularized.’” Id. at 1545 (emphasis

omitted) (quoting Friends of the Earth, Inc. v. Laidlaw

Env’t Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000)).

To be “particularized,” the injury must affect

Appellants “in a personal and individual way.” Id. at

1548 (quoting Lujan, 504 U.S. at 560 n.1). To be

“concrete . . . [the injury] must actually exist.” Id.

Appellants’ theory of standing is rooted in an

analogy to breach of contract. See TransUnion, 141 S.

19a

Ct. at 2204 (explaining that the injury in fact

requirement may be satisfied where the burdened

party has “identified a close historical or common-law

analogue for their asserted injury”). In their view,

releasing the trial tapes amounts to a breach of Judge

Walker’s “promise” that the recordings were not made

“for purposes of public broadcasting or televising,”

interpreting his assurance as extending into

perpetuity. They claim to have relied on this assurance

in deciding not to seek additional injunctive relief from

the Supreme Court. Appellants contend that this

alleged breach of Judge Walker’s “promise” by Judge

Orrick’s order is alone sufficient to establish injury in

fact. They write in their supplemental brief:

Appellees begin by faulting us for failing to

establish by “declarations or other evidence”

that Proponents stand to suffer some tangible

harm “resulting from the unsealing,”—such as

threats of violence or retaliation—but as we

have explained, our standing is not based on any

such resulting injury, but rather on the

intangible (but critically significant and

concrete) harm that breach of Judge Walker’s

promises would cause to “the sanctity of the

judicial process.”

Appellants do not claim, and cite no authority for

the proposition, that a statement—even a

“promise”—made by a judge to litigants in the course of

litigation is an enforceable contract. An analogy to a

traditionally recognized cause of action does not relieve

a complainant of its burden to demonstrate an injury.

See, e.g., Carlsen v. Gamestop, Inc., 833 F.3d 903, 909

20a

(8th Cir. 2016) (“[I]t is crucial . . . not to conflate Article

III’s requirement of injury in fact with a plaintiff’s

potential cause of action, for the concepts are not

coextensive.” (quotation marks and citation omitted)).

To carry their burden, Appellants must plausibly allege

a concrete and particularized injury. Even assuming,

contrary to their statement to our court in 2011, that

Judge Walker told Appellants that the video recordings

would remain sealed in perpetuity, they do not have

Article III standing to appeal the district court’s order.

Appellants allege two kinds of injuries that would

result from unsealing the recordings. First, the

unsealing would result in a “palpable injustice” to

Appellants themselves. Second, the unsealing would

harm future litigants’ ability to rely on judicial

“promises,” and would thereby injure both the judicial

system and future litigants. Neither alleged injury is

sufficiently concrete and particularized for purposes of

Article III standing. We address each alleged injury in

turn.

A. “Palpable Injustice” to Appellants

Although not raised in their supplemental briefing

addressing Article III standing, Appellants’ prior

briefing alleged that concrete injury to Appellants, in

the form of “palpable injustice,” will result if the tapes

are unsealed. We are willing to construe this allegation

of injury broadly, as an allegation of injury not only to

Appellants personally, but also to those who have been

closely associated with them and who may have

depended on them to protect their interests.

21a

Only one of the original Proponents, Hak-Shing

William Tam, testified at the bench trial. See

Schwarzenegger, 704 F. Supp. 2d at 940. Although Tam

was a named intervenor-defendant in the bench trial,

he was called by Proponents to testify as an adverse

witness during their case in chief. Id. In 2009, Tam

submitted a declaration to the district court stating

that he had experienced harassment because of his

support of Proposition 8 and did not want the trial

recorded. However, Tam has given no indication since

then that he has reason to fear the release of the

recordings.

Further, there is no reason to believe that

Appellants now represent Tam’s interests. Even before

the beginning of the bench trial in January 2010, Tam

had separated himself from Proponents’ joint

representation and had obtained his own counsel. As

far as the record before us reveals, Tam never joined a

motion or petition filed by the Proponents after hiring

separate counsel. And while Tam’s name appears on

the caption in the 2011 appeals concerning both these

recordings and the merits of Proposition 8, he was not

listed on the notices of appeal filed by the other

Proponents or on a single filing in those actions. Tam

was not a party to the 2018 and 2020 proceedings

before Judge Orrick, and he is not a party to this

appeal. There is thus no evidence in the record that

Tam now fears an injury if the recordings are released,

and no evidence that Proponents are acting on his

behalf in this appeal.

There is also no evidence of any threatened injury

to the remaining Proponents if the video recordings are

22a

unsealed. None of them testified at the trial. Further

and critically, none of them has submitted a

declaration that they fear harassment or reprisals if

the recordings are unsealed.

Appellants called only two witnesses at trial, David

Blankenhorn and Professor Kenneth Miller. See

Schwarzenegger, 704 F. Supp. 2d at 945. Neither

witness has ever submitted a declaration or given any

indication in the record that he fears injury if the

recordings are released. Indeed, Blankenhorn has been

explicit that he does not fear harassment if the

recordings are made public. See Oral Argument at

9:50–10:24, Brown, 667 F.3d 1078 (No. 11-17255),

https://www.ca9.uscourts.gov/media/video/?20111

208/11-17255 (Appellants’ counsel explaining that

Blankenhorn “has said candidly that he was not

concerned about harassment of himself”). Miller has

never indicated that he fears any injury if the

recordings are released, even though a portion of his

testimony was used by Judge Walker in a 2011

televised presentation and has been available online

since that time. See Judge Vaughn Walker, History of

Cameras in the Courtroom at 33:15–36:55, C-SPAN

(Mar. 22, 2011), www.c-span.org/video/?298109-3/

judge-vaughn-walker-cameras-courtroom.

Appellants argue that not only they, but also their

attorneys, “reasonably relied on Judge Walker’s

assurances” that the recordings would not be released.

To the extent Appellants are relying on possible injury

to their attorneys, we seriously question their ability to

make such an argument on the attorneys’ behalf. But

we need not address this argument because none of

23a

Appellants’ attorneys submitted any declarations or

other evidence to the district court that they fear injury

if the recordings are disclosed.

Finally, even if we were to allow Proponents to

assert the interests of Proposition 8 general supporters,

there is no evidence in the record that they have reason

to fear harassment if the recordings are released now.

The record shows that during and prior to 2009,

Proposition 8 supporters, including the original

individual Proponents, experienced harassment. But

Appellants never supplemented this evidence with

anything after 2009, despite opportunities to do so in

both the 2018 and 2020 proceedings before the district

court.

In short, Appellants have provided no evidence

showing harm or threat of harm to themselves from the

release of the video recordings. Only three people

aligned or potentially aligned with Appellants—Tam,

Blakenhorn, and Miller—were witnesses at trial. Tam

is not a party to this appeal, is not represented by

Appellants, and has expressed no concern about the

release of the recordings. Blakenhorn has explicitly

stated that he has no concern about their release.

Miller has never indicated that he fears harassment if

video recordings of his testimony are released, and

parts of the recordings have been available to the

general public for a decade. The entire trial has been

publicly available in transcript form since 2010, and

there is no evidence in the record that Appellants, their

witnesses, or indeed any Proposition 8 supporter, have

been harassed during the period since the release of the

transcript. Simply put, the record is devoid of the

24a

“factual showing of perceptible harm” required to

establish an injury in fact. Lujan, 504 U.S. at 566. That

is, Appellants have failed to show that an injury or

threat of injury “actually exist[s].” Spokeo, 136 S. Ct. at

1548; see also TransUnion, 141 S. Ct. at 2200 (“No

concrete harm, no standing.”).

B. Injury to the Judicial System

and Future Litigants

We next consider Appellants’ general allegation that

harm to “the sanctity of the judicial process” and to

“future litigants” will result from the release of the

video recordings. In Appellants’ view, releasing the

recordings would result in diminished trust in the

judicial system and would require future litigants “to

refuse to accept trial judges’ assurances, inducing the

filing of seemingly pointless appeals to guard against

the possibility that the court might one day go back on

its word.” We consider these two alleged injuries in

turn.

First, in asserting injury to the judicial system,

Appellants acknowledge that they allege an injury

shared by everyone. They concede in their

supplemental briefing, “To be sure, the interest in

preserving respect for our system of justice . . . is one

shared by the public as a whole.” The Supreme Court

has long admonished that a party “raising only a

generally available grievance . . . does not state an

Article III case or controversy.” Lance v. Coffman, 549

U.S. 437, 439 (2007) (quoting Lujan, 504 U.S. at

573–74). A purported injury is an impermissible

“generalized grievance” when the interest of the party

asserting it “is plainly undifferentiated and common to

25a

all members of the public.” Id. at 440–41 (quotation

marks omitted) (quoting United States v. Richardson,

418 U.S. 166, 176–77 (1974)).

Appellants argue, however, that as parties to whom

Judge Walker’s “promise” was made, they “would suffer

in a particular and individual way if those promises are

breached.” But as we explained above, Appellants have

provided no evidence that they, or anyone whose

interests are potentially aligned with them, would

suffer any injury if the tapes are released. Accordingly,

they have alleged no interest beyond that common to

all of society, and they are “seeking relief that no more

directly and tangibly benefits [them] than it does the

public at large.” Id. at 439 (quotation marks and

citation omitted). This generalized grievance therefore

lacks the particularity to constitute an injury in fact

under Article III.

Second, nothing in the record indicates that

Appellants will themselves be among the future

litigants allegedly harmed by the release of the

recordings. Article III requires that the party invoking

federal jurisdiction have a “personal stake in the

outcome of the controversy.” Susan B. Anthony List v.

Driehaus, 573 U.S. 149, 158 (2014) (citation omitted).

For an injury to be sufficient for standing, “the party

seeking review [must] be [it]self among the injured.”

Lujan, 504 U.S. at 563 (quoting Sierra Club v. Morton,

405 U.S. 727, 734–35 (1972)). Appellants have not

alleged that they are currently engaged in other

litigation or have plans to litigate in the future. The

purported injury to future litigants, if it even exists, is

26a

unrelated to Appellants and insufficient for Article III

standing.

V. Conclusion

While Appellants may feel strongly about the

release of the recordings, “[t]he presence of a

disagreement, however sharp and acrimonious it may

be, is insufficient by itself to meet Art. III’s

requirements.” Hollingsworth, 570 U.S. at 704 (quoting

Diamond v. Charles, 476 U.S. 54, 62 (1986)).

Appellants have failed to establish a particularized and

concrete injury sufficient to constitute “injury in fact”

as the Supreme Court has defined that term. We

therefore lack jurisdiction over their appeal from the

district court’s order.

APPEAL DISMISSED.

IKUTA, Circuit Judge, dissenting:

This is yet another sad chapter in the story of how

the judiciary has been willing to bend or break its own

rules and standards in order to publicize the

proceedings of a single high-profile trial. The urge to

broadcast has continued despite the Supreme Court’s

unprecedented intervention to prevent the district

court and our court from violating rules precluding

such a broadcast, Hollingsworth v. Perry

(Hollingsworth), 558 U.S. 183, 196 (2010) (per curiam),

and our subsequent intercession to prevent the district

court from reneging on a judge’s “solemn commitments”

not to do so, Perry v. Brown (Perry), 667 F.3d 1078,

1081 (9th Cir. 2012). And here we are again: the

majority bends the principles of Article III standing in

27a

order to deprive proponents of the opportunity to argue

that the court should not breach its binding obligations.

The story began in 2009 when a group of plaintiffs

challenged a ballot initiative, Proposition 8, which

overruled a California Supreme Court ruling that

legalized same-sex marriage. The official proponents of

Proposition 8 intervened to defend the lawsuit after

state officials declined to do so.1

The trial was scheduled for January 2010. The

proponents were understandably concerned about the

impact of unwanted publicity. At the time, “numerous

instances of vandalism and physical violence [were]

reported against those who [were] identified as

Proposition 8 supporters,” Hollingsworth, 558 U.S. at

185–86, and supporters were subjected to death

threats, boycotts, or loss of employment, id. at 185. The

proponents therefore objected to publicly broadcasting

the trial, id. at 184–85, relying in part on the district

court’s Local Rule 77-3, which for years had barred the

broadcast of court proceedings,2 id. at 191–92.

The proponents here are all the official proponents in the original

trial regarding Proposition 8 (Dennis Hollingsworth, Gail Knight,

Martin Gutierrez, and Mark Jansson) with the exceptions of

Hak-Shing William Tam and Protectmarriage.com.

Local Rule 77-3 provided:

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

28a

Despite this local rule, the district judge presiding

over the case, former Chief Judge Vaughn R. Walker,

began a persistent effort to ensure that the trial would

be broadcast to the public. Id. at 186. The judge first

floated his interest in broadcasting the trial at a

pre-trial hearing in September 2009, but the

proponents strongly opposed it. Id. A month later,

Chief Judge Walker joined a three-judge committee

(appointed by the Ninth Circuit Judicial Council) to

consider whether to initiate a “pilot program” to

broadcast trial proceedings. Id. Not surprisingly, the

committee recommended such a pilot program. Id. As

Judge Walker acknowledged, in making this

recommendation, the Proposition 8 case “was very

much in mind at that time because it had come to

prominence then and was thought to be an ideal

candidate for consideration.” Id. (citation omitted).

In December 2009, the Ninth Circuit Judicial

Council rushed through a new pilot program allowing

“the limited use of cameras in federal district courts

within the circuit.” Id. at 187 (citation omitted).

Concurrently, the district court began an effort to

amend Local Rule 77-3 so as to allow recording trials

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 rule is intended to restrict

the use of electronic means to receive or present evidence

during Court proceedings.

29a

“for participation in a pilot or other project authorized

by the Judicial Council of the Ninth Circuit.” Id.

(citation omitted). The proponents again strongly

objected. Among other arguments, they claimed that

any such changes to Ninth Circuit and local rules

required a sufficient notice-and-comment period. Id.

In response, the district court posted a new

announcement, giving the public five business days to

comment on the amended rule. Id. But even before the

five business days had passed, the district court

abruptly revised its website again, and announced that

the revised rule was adopted pursuant to 28 U.S.C.

§2071(e), which allows courts to implement rules

without prior public notice and opportunity for

comment if there is an “immediate need” for the rule.

Id. at 187–88.

After the district court “revise[d] its rules in haste,

contrary to federal statutes and the policy of the

Judicial Conference of the United States . . . to allow

broadcasting of this high-profile trial,” Hollingsworth,

558 U.S. at 196, Chief Judge Walker informed the

parties that he intended to record and broadcast the

upcoming trial, and obtained the Ninth Circuit’s

approval to allow “real-time streaming of the trial to

. . . federal courthouses in San Francisco, Pasadena,

Seattle, Portland, and Brooklyn,” id. at 188. The Ninth

Circuit indicated it could also approve streaming the

trial over the internet, if the technical difficulties could

be worked out. Id. at 189.

Having failed to prevent the hasty amendment to

the protective local rule, the proponents rushed to file

an emergency motion with the Supreme Court to

30a

prevent the broadcast. The Supreme Court

immediately issued a temporary stay to prevent the

trial from being broadcast to other courthouses. See

Hollingsworth v. Perry, 558 U.S. 1107 (2010).

But still, Chief Judge Walker continued recording

the trial over the proponents’ objection, “on the basis

that the Supreme Court might decide to lift the

temporary stay.” Perry, 667 F.3d at 1082.

Two days later, the Supreme Court extended the

stay “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, 558 U.S. at 199. The Court made clear

that it was wrong for the district court to “change its

rules at the eleventh hour to treat this case differently

from other trials in the district,” in order “to broadcast

a high-profile trial that would include witness

testimony about a contentious issue.” Id. The Court

emphasized that courts must comply with their own

rules and standards. “By insisting that courts comply

with the law, parties vindicate not only the rights they

assert but also the law’s own insistence on neutrality

and fidelity to principle.” Id. at 196.

But even with the Supreme Court behind them, the

proponents could not make Chief Judge Walker stop

filming. The proponents requested the district court

halt further recording of the trial in light of the Court’s

order. But Chief Judge Walker declined to do so.

Implicitly acknowledging the Supreme Court’s order

(and the possibility that the proponents could obtain

further relief from the Court), Chief Judge Walker

assured the proponents that any recordings would not

31a

be publicly broadcasted. Rather, Chief Judge Walker

stated that a recording would be helpful to him in

preparing the findings of fact, and pledged

unequivocally: “So that’s the purpose for which the

recording is going to be made going forward. But it’s

not going to be for purposes of public broadcasting or

televising.” The next day, Chief Judge Walker

memorialized this assurance in a publicly filed notice

that stated as follows: “Transmission of the proceedings

to other locations solely within the San Francisco

courthouse will continue along with recording for use in

chambers, as permitted in Civ LR 77-3.” Later, in his

post-trial opinion, Chief Judge Walker stated that “the

potential for public broadcast in the case had been

eliminated.” Perry v. Schwarzenegger, 704 F. Supp. 2d

921, 944 (N.D. Cal. 2010) (emphasis added). In that

same opinion, Chief Judge Walker directed the clerk of

the court to file the trial recording under seal as part of

the record. Id. at 929.

We subsequently held that these statements by

Chief Judge Walker constituted “binding obligations”

and “solemn commitments” that “there was no

possibility that the recording would be broadcast to the

public in the future.” Perry, 667 F.3d at 1086–87. The

proponents “reasonably relied on Chief Judge Walker’s

commitments in refraining from challenging his

actions” by seeking further relief from the Court. Id. at

1088.

Less than a year later, Chief Judge Walker reneged

on these “solemn commitments,” id. at 1081, by playing

portions of the trial recording during his public

appearances, id. at 1083. Again, the proponents rushed

32a

to object, and moved the Ninth Circuit to order the

return of all copies of the trial recording. Id. We

referred the motion to the district court. Id. A group of

media outlets that included Appellee KQED intervened

to move the court to unseal the trial recording.

Over the proponents’ objection, the district court

declined to enforce Chief Judge Walker’s commitment,

and issued an order to unseal the recording. Id. The

district court concluded that the common-law right of

public access applied to the recording and that the

proponents had made no showing sufficient to justify

its sealing in the face of the common-law right. Id.

We strongly disagreed, and reversed. We held that

“the district court abused its discretion by ordering the

unsealing of the recording of the trial notwithstanding

the trial judge's commitment to the parties that the

recording would not be publicly broadcast.” Id. at 1081.

“The trial judge on several occasions unequivocally

promised that the recording of the trial would be used

only in chambers and not publicly broadcast. He made

these commitments because the Supreme Court had

intervened in this very case in a manner that required

him to do so.” Id. Even assuming the common-law right

of access applied to the trial recording, “the interest in

preserving the sanctity of the judicial process is a

compelling reason to override the presumption in favor

of the recording’s release.” Id.

One might think this would be the end of the

proponents’ years of effort to prevent the public

broadcast of the trial. But that would underestimate

the apparently insatiable appetite to publicize the trial.

In response to yet another motion from KQED to

33a

unseal the trial recording, the district court concluded

that Chief Judge Walker’s solemn commitment had an

expiration date. The court reasoned that our holding in

Perry applied only until the local rules of the district

court—under which sealed records are presumptively

unsealed after ten years, see Northern District of

California Local Rule 79-5—kicked in. Therefore, the

district court held that the recording could be unsealed

in August 2020. The proponents protested this ruling,

but we dismissed their appeal for lack of jurisdiction

because the decision was neither a final order nor an

appealable collateral order. See Perry v.

Schwarzenegger, 765 Fed. Appx. 335 (9th Cir. 2019)

(mem.).

In April 2020, again over the proponents’ objections,

the district court concluded that the interest in judicial

integrity that we emphasized in Perry was no longer a

“compelling justification requiring indefinite sealing of

the trial recordings,” and held that the trial recordings

prepared solely for Chief Judge Walker’s private use,

and subject to a commitment that eliminated their

public broadcast, should be released to the public. We

stayed the district courts’ order pending the

proponents’ appeal.

No one reading this saga of the proponents’ efforts

to prevent the public broadcasting of the trial

proceedings could doubt that the proponents have a

personal stake in enforcing Chief Judge Walker’s

promise. Yet the majority remarkably concludes that

the proponents—who for ten years have been trying to

stop the unlawful broadcast of the trial

34a

proceedings—cannot sufficiently show they will be

injured by a breach of the trial judge’s “binding

obligations.” Perry, 667 F.3d at 1087. According to the

majority, the proponents do not have enough of a stake

in stopping the district court’s breach of its “solemn

commitments,” id. at 1081, to even have Article III

standing to bring this case. As explained below, this is

nothing more than another distortion of our rules and

standards to ensure that this single high profile trial is

broadcast, notwithstanding the compelling “interest in

preserving the sanctity of the judicial process.” Id.

Article III of the Constitution confines the federal

judicial power to the resolution of cases and

controversies. “For there to be a case or controversy

under Article III, the plaintiff must have a ‘personal

stake’ in the case—in other words, standing.”

TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2203

(2021) (cleaned up). “To demonstrate their personal

stake, plaintiffs must be able to sufficiently answer the

question: ‘What’s it to you?’” Id. (quoting Antonin

Scalia, The Doctrine of Standing as an Essential

Element of the Separation of Powers, 17 Suffolk U. L.

Rev. 881, 882 (1983)) (cleaned up). The only element of

standing at issue here is whether the proponents can

show they suffered an injury in fact that is concrete

and particularized. Lujan v. Defs. of Wildlife, 504 U.S.

555, 560–61 (1992).3

There is no dispute that the injury here—i.e., unsealing the trial

video—is actual and imminent.

35a

A “concrete” injury must be “real, and not abstract.”

TransUnion, 141 S. Ct. at 2204 (citation omitted).

“‘Concrete’ is not, however, necessarily synonymous

with ‘tangible,’” Spokeo, Inc. v. Robins, 578 U.S. 330,

340 (2016), and “[v]arious intangible harms can also be

concrete.” TransUnion, 141 S. Ct. at 2204. “Chief

among [such intangible harms] are injuries with a close

relationship to harms traditionally recognized as

providing a basis for lawsuits in American courts.” Id.

One of these “traditionally recognized” harms is a

violation of private rights, including contract rights,

whether or not the violation of such rights resulted in

economic damage or other injury. Common law courts

in the Founding era “reasoned that every legal injury

necessarily causes damage,” Uzuegbunam v.

Preczewski, 141 S. Ct. 792, 798 (2021), including “the

fact of breach of contract by itself,” id. (citing Marzetti

v. Williams (1830), 109 Eng. Rep. 842, 845 (K.B.)); see

also Springer v. Cleveland Clinic Emp. Health Plan

Total Care, 900 F.3d 284, 292 (6th Cir. 2018) (Thapar,

J., concurring) (collecting common law cases

establishing that courts historically “entertained

breach-of-contract claims even when ‘no real loss be

proved’” (citation omitted)). Common law courts heard

breach of contract claims and awarded nominal

damages even when “there was no apparent

continuing or threatened injury.”4 Uzuegbunam, 141 S.

To this day, California allows for an award of nominal damages

in breach of contract cases where the plaintiff suffered no actual

damages. See Cal. Civ. Code § 3360 (“When a breach of duty has

caused no appreciable detriment to the party affected, he may yet

recover nominal damages.”).

36a

Ct. at 798; see also Marzetti, 109 Eng. Rep. at 845

(noting that in case “substantially founded on a

contract . . . the plaintiff, though he may not have

sustained a damage in fact, is entitled to recover

nominal damages”); Restatement (First) of Contracts

§ 328 (Am. L. Inst. 1932) (“Where a right of action for

breach exists, but no harm was caused by the breach,

. . . judgment will be given for nominal damages, a

small sum fixed without regard to the amount of

harm.”). As Justice Thomas summed it up,

“[h]istorically, common-law courts possessed broad

power to adjudicate suits involving the alleged violation

of private rights, even when plaintiffs alleged only the

violation of those rights and nothing more.” Spokeo,

578 U.S. at 344 (Thomas, J., concurring).

Federal courts continue to follow this common law

principle that a breach of contract is itself a concrete

injury for purposes of Article III standing, regardless of

whether a plaintiff suffers actual damages. See

Springer, 900 F.3d at 287 (finding insured who was

denied benefits but suffered no financial loss

nevertheless sustained concrete injury because, “[l]ike

any private contract claim, his [Article III] injury does

not depend on allegation of financial loss. His injury is

that he was denied the benefit of his bargain.”);

Mitchell v. Blue Cross Blue Shield of N.D., 953 F.3d

529, 536 (8th Cir. 2020) (“Traditionally, a party to a

breached contract has a judicially cognizable injury for

standing purposes because the other party’s breach

devalues the services for which the plaintiff contracted

and deprives them of the benefit of their bargain.”)

(cleaned up); J.P. Morgan Chase Bank, N.A. v.

McDonald, 760 F.3d 646, 650–51 (7th Cir. 2014)

37a

(“When one party fails to honor its commitments, the

other party to the contract suffers a legal injury

sufficient to create standing even where that party

seems not to have incurred monetary loss or other

concrete harm.”); Katz v. Pershing, LLC, 672 F.3d 64,

72 (1st Cir. 2012) (“[W]hen a plaintiff generally alleges

the existence of a contract, express or implied, and a

concomitant breach of that contract, her pleading

adequately shows an injury to her rights.”); cf. Fleming

v. Charles Schwab Corp., 878 F.3d 1146, 1151 (9th Cir.

2017) (explaining plaintiffs’ potential inability to prove

damages in breach of contract case does not negate

standing).

Common law courts held that promises were

enforceable as contracts where the promisee relied on

the promise, and as a result was “deluded and diverted

from using any legal diligence to pursue” other

remedies. Pillans v. Van Mierop (1765), 97 Eng. Rep.

1035, 1037 (K.B.); see also Kevin M. Teeven, A History

of Promissory Estoppel: Growth in the Face of Doctrinal

Resistance, 72 Tenn. L. Rev. 1111, 1112–13 (2005)

(explaining Pillans summarized “the justifications for

common law promissory liability as they had existed

since the sixteenth century”). Early American courts

likewise enforced promises that induced justifiable

reliance. See, e.g., King’s Heirs v. Thompson, 34 U.S.

204, 218–20 (1835); Barzilla Homes v. Dana, 12 Mass.

190, 192 (Mass. 1815); Trs. of Farmington Acad. v.

Allen, 14 Mass. 172, 176 (Mass. 1817); Trs. of

Parsonage Fund in Fryeburg v. Ripley, 6 Me. 442,

445–46 (Me. 1830). As summed up in the 1932 edition

of the Restatement of Contracts, “[a] promise which the

promisor should reasonably expect to induce action or

38a

forbearance of a definite and substantial character on

the part of the promisee and which does induce such

action or forbearance is binding if injustice can be

avoided only by enforcement of the promise.”

Restatement (First) of Contracts § 90 (Am. L. Inst.

1932). Today, federal courts continue to entertain

claims based on promissory estoppel. See, e.g., Hass v.

Darigold Dairy Prods. Co., 751 F.2d 1096, 1100 (9th

Cir. 1985) (applying rule of promissory estoppel stated

in Restatement (Second) of Contracts § 90 (Am. L. Inst.

1979)).

In sum, the breach of a contract or binding promise

is an injury traditionally recognized as a violation of a

private right, whether or not the injured party suffers

economic or other damage.

Given this background, the proponents have a

vigorous response to the question: “what’s it to you.”

TransUnion, 141 S. Ct. at 2203 (cleaned up).

First, we are bound by our precedent to hold that

Chief Judge Walker made a binding, enforceable

promise. Perry, 667 F.3d at 1087. Chief Judge Walker’s

promises not to broadcast the trial recording publicly

were “solemn commitments,” “binding obligations,” and

constraints on other judges’ discretion to unseal the

recording. Id. We held that Chief Judge Walker

“promised the litigants that the conditions under which

the recording was maintained would not change,” and

identified the “legal consequence” of that promise:

“there was no possibility that the recording would be

broadcast to the public in the future.” Id. at 1086. And

39a

this conclusion that Chief Judge Walker made a

binding promise wasn’t a close call: “No other inference

could plausibly be drawn from the record.” Id.

Further, “[t]here can be no question that [the

proponents] reasonably relied on Chief Judge Walker’s

explicit assurances” that the recording would not be

publicly broadcast. Id. As we explained, because the

local rules did not allow for public broadcasting of

trials, “Chief Judge Walker could not lawfully have

continued to record the trial without assuring the

parties that the recording would be used only for a

permissible purpose.” Id. at 1087. Accordingly, “[h]ad

Chief Judge Walker not made the statement he did,

[the proponents] would very likely have sought an

order directing him to stop recording forthwith, which,

given the prior temporary and further stay they had

just obtained from the Supreme Court, they might well

have secured.” Id. at 1085. And because Chief Judge

Walker’s assurances were “compelled by the Supreme

Court’s ruling in this very case,” they were “even

worthier of the parties’ reliance.” Id. at 1087. Even the

majority notes that the proponents relied on Chief

Judge Walker’s promises to keep recordings private not

only for themselves, but also for the attorneys,

witnesses, and supporters who “depended on them to

protect their interests.” Majority Op. at 20.

Because Chief Judge Walker made a clear and

unambiguous promise that resulted in reasonable,

foreseeable, and detrimental reliance by the proponents

and those who depended on them, a violation of that

promise would be a violation of the proponents’ legal

40a

rights.5 See supra, at 33–36. Such a violation is a

traditionally recognized harm providing a basis for

lawsuit, whether or not it resulted in economic injury.

Therefore, publicly broadcasting the trial today

constitutes a concrete injury for purposes of Article III

standing, see, e.g., TransUnion, 141 S.Ct. at 2204,

regardless of whether the proponents or other

individuals associated with them alleged a fear of

harassment or reprisals if the broadcast is released.

The proponents’ injury is also “particularized.” An

injury is particularized if it “affect[s] the plaintiff in a

personal and individual way.” Lujan, 504 U.S. at 560

n.1. Here, there can be no question that unsealing the

trial recording would do so. Chief Judge Walker’s

promise was made directly to the proponents; it was a

promise about a recording of the proponents’ trial

specifically; and it was a promise that the proponents

The appellees here assert that the proponents were aware that

Chief Judge Walker’s promise would not last indefinitely. But that

argument relates to the merits of proponents’ claim. The

proponents need not definitively prove the existence or scope of a

contract or binding promise to establish Article III standing.

“Whether the elements of breach of contract, including the

existence of a contract, are satisfied . . . goes to the merits, not to

a court’s power to resolve the controversy. SM Kids, LLC v. Google

LLC, 963 F.3d 206, 212 (2d Cir. 2020) (citing Perry v. Thomas, 482

U.S. 483, 492 (1987)). Accordingly, “a party that alleges harm due

to another’s breach of a contract has a justiciable controversy with

the other party,” and “courts have jurisdiction to resolve the

controversy.” Id.; see also Novartis Seeds, Inc. v. Monsanto Co., 190

F.3d 868, 871 (8th Cir. 1999) (finding plaintiff alleging breach of

contract had Article III standing and rejecting argument that

merits defense defeats standing because “the distinction between

such a defense and subject-matter jurisdiction is a vital one”).

41a

relied on. Indeed, in Perry, we emphasized that Chief

Judge Walker’s “solemn commitments” were

“representations to the parties,” and they “could not

have been more explicitly directed toward the

particular recording at issue.” 667 F.3d at 1081

(emphasis added).

The majority’s arguments to the contrary fail. First,

the majority argues that the proponents have failed to

establish that any harm will result from the release of

the recordings. Majority Op. at 22–23. But, as

explained above, the breach of a binding promise (here,

a promise not to release the recording) is itself a

concrete harm sufficient to establish an injury in fact

for purposes of Article III standing. See supra at 33–36.

Second, the majority argues that we are not bound

by Perry’s holding that Chief Judge Walker made a

binding commitment, because when the proponents

previously appealed Chief Judge Ware’s order

unsealing the recordings, “they plausibly alleged

potential harm from their release.” Majority Op. at 16.

In the majority’s view, the plausible harm was that, if

the recording were unsealed, prospective witnesses

might refuse to testify at a re-trial for fear of

harassment. Majority Op. at 16. But our reasoning in

Perry was not based on the conclusion that the

proponents had plausibly alleged a fear of harassment.

Indeed, Perry never addressed the question whether

the proponents had standing, and so did not consider

any question of the proponents’ injury. Instead,

focusing on the binding nature of Judge Walker’s

statements and the proponents’ reliance on those

42a

statements, we held that the “compelling reason” that

required maintaining the trial recording under seal

was that the “breach of reliance interests” constituted

a “grave threat to the integrity of the judicial system.”

Perry, 667 F.3d at 1087. We explained that “the explicit

assurances that a judge makes—no less than the

decisions the judge issues—must be consistent and

worthy of reliance.” Id.

Finally, the majority argues that the proponents’

injury is not particularized because any injury to the

integrity of the judicial system is “an injury shared by

everyone.” Majority Op. at 23. But Chief Judge Walker

did not promise the public as a whole that the trial

recording would not be publicly broadcasted. Rather, he

made that promise to the proponents specifically. And

a breach of that promise will impact the proponents in

particular because the recording is of the proponents’

trial. Moreover, a breach of judicial integrity can

concretely injure specific litigants even if it also

undermines the public’s trust in the justice system. Cf.

Spokeo, 578 U.S. at 339 n.7 (“The fact that an injury

may be suffered by a large number of people does not of

itself make that injury a nonjusticiable generalized

grievance.”). Thus, the fact that a breach of Chief Judge

Walker’s promise would undermine trust in the judicial

system does not mean that the proponents—i.e., the

specific recipients of that promise—would not suffer a

particularized injury.

III

For the past ten years, the proponents have gone to

extraordinary lengths to prevent the public broadcast

of these trial proceedings, including a successful trip to

43a

the Supreme Court and multiple appeals to our court.

Whether Chief Judge Walker’s promise not to publicly

broadcast the trial recording is an enforceable contract

or merely closely analogous to one, the breach of that

promise is a concrete and particularized injury

sufficient to confer Article III standing upon the

proponents. Accordingly, the issue of Article III

standing does not provide a basis to depart from our

prior ruling “that the integrity of the judicial process is

a compelling interest that in these circumstances

would be harmed by the nullification of the trial judge’s

express assurances, and that there are no alternatives

to maintaining the recording under seal that would

protect the compelling interest at issue.” Perry, 667

F.3d at 1088. I therefore respectfully dissent from the

majority’s holding.

44a

APPENDIX B

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

Case No. 09-cv-02292-WHO

[Filed: July 9, 2020]

__________________________________________

KRISTIN M. PERRY, et al.,

)

Plaintiffs,

)

ARNOLD SCHWARZENEGGER, et al.,

)

Defendants.

)

__________________________________________)

ORDER DENYING MOTION TO MAINTAIN

SEAL; UNSEALING TRIAL RECORDINGS

Re: Dkt. Nos. 892, 899

On January 17, 2018, I issued an Order on Media

Intervenor KQED, Inc.’s motion to unseal the

recordings of the bench trial conducted by former Chief

Judge Vaughn Walker in 2010 determining that

California’s Proposition 8 – colloquially known as the

ban on gay marriage – was unconstitutional. January

45a

2018 Order [Dkt. No. 878].1 I concluded that the

“common-law right of access applies to the video

recordings as records of judicial proceedings to which

a strong right of public access attaches. . . .” January

2018 Order at 10. In opposition to the motion,

Proponents2 did not submit evidence that they or their

counsel personally feared harm from the recordings’

release. But I concluded that the “compelling

justification of judicial integrity” outweighed the

public’s right of access at that juncture.

My concern regarding judicial integrity was based

on Judge Walker’s unequivocal commitments to the

trial participants that he intended the recordings solely

for his own use in drafting his opinion and the

judgment in that case. But I did not find that his

statements meant that the recordings should be

permanently sealed. Instead, given the guidance in

Perry v. Brown, 667 F.3d 1078, 1082 (9th Cir. 2012),

the prior Ninth Circuit opinion on this subject, I

The judicial decisions and reasons that led to the bench trial

proceedings being recorded but not broadcast, and the numerous

appeals of those decisions to the Ninth Circuit and the Supreme

Court, are detailed in my January 2018 Order and will not be

repeated here.

The Proponents who opposed KQED’s motion to unseal and who

are the movants on the current motion are defendant-intervenors

in the underlying action: Dennis Hollingsworth, Gail J. Knight,

Martin F. Gutierrez, and Mark A. Jansson. KQED’s motion to

unseal was joined by plaintiffs in the action, plaintiff-intervenor

City and County of San Francisco (CCSF), and amicus American

Civil Liberties Union of Northern California (ACLU). Defendant

State of California did not join but did not oppose KQED’s motion

to unseal.

46a

concluded that Northern District Civil Local Rule

79-5(g) and its ten year default for sealing court records

set the reasonable limit for sealing the trial recordings,

and that on August 12, 2020 the trial recordings would

be released unless Proponents offered evidence

justifying a continued seal. January 2018 Order at

10-11, 13-15.3

I directed that if the Proponents wanted to maintain

the seal on the trial recordings past August 12, 2020,

they had to file a motion to continue the seal by April

1, 2020 and set a briefing schedule and hearing date.

January 2018 Order at 15.4 They did. Plaintiffs,5 CCSF,

media intervenor KQED,6 and amicus the ACLU

At the time of the trial, the ten year default was contained in

Civil Local Rule 79-5(f).

The Proponents appealed my January 2018 Order. Dkt. No. 880.

On April 19, 2019, in a Memorandum Disposition, the Ninth

Circuit dismissed the appeal concluding it lacked jurisdiction

because my January 2018 Order was not a final decision or a

reviewable collateral order. Dkt. No. 888.

Fifteen of plaintiffs’ trial witnesses, including the plaintiffs and

expert witnesses, submit declarations supporting the release of the

trial recordings. The witnesses generally describe their beliefs that

release of the trial recordings would serve significant historical

purposes (as a watershed moment in the fight for LGBTQ rights),

educative functions (allowing the public to observe leading experts

discussing relevant theory and research), and show the emotional

impact of the trial testimony that they contend is not captured by

the written transcript of the proceedings. See Dkt. No. 895,

Exhibits B-P.

KQED submits declarations from Dean Erwin Chemerinsky

(Berkeley Law), Professor Suzanne Goldberg (Columbia Law

47a

opposed. Dkt. Nos. 895 896, 897, 898. The State of

California also opposes the motion to maintain the seal,

and now actively contends that the recordings should

be unsealed. Dkt. No. 894. In addition, the Reporters

Committee for Freedom of the Press (RCFP) filed a

request for leave to file an amicus brief on behalf of

itself and 36 media entities and journalism

organizations in support of KQED and unsealing the

recordings. Dkt. No. 899.7

School), Seth Levy (President and Chairman of the Board of

Directors for the It Gets Better Project), McKenna Palmer (LGBTQ

supporter and activist), Michael Sabatino (marriage equality

advocate), and Scott Shafter (Senior Editor, California Politics &

Government at KQED) supporting the release of the trial

recordings from their journalistic, legal, historical, and activist

perspectives. See Dkt. Nos. 898-3 – 898-8. 2

The amici represented by the Reporters Committee of Freedom

of the Press (RCFP) are The Associated Press, Berkeleyside Inc.,

Boston Globe Media Partners, LLC, BuzzFeed, Cable News

Network, Inc., California News Publishers Association,

Californians Aware, CalMatters, Dow Jones & Company, Inc., The

E.W. Scripps Company, Embarcadero Media, First Amendment

Coalition, First Look Media Works, Inc., Fox Television Stations,

LLC, Gannett Co., Inc., Hearst Corporation, Inter American Press

Association, International Documentary Association, Investigative

Reporting Workshop at American University, Los Angeles Times

Communications LLC, The Media Institute, Mother Jones, MPA –

The Association of Magazine Media, National Press Photographers

Association, The New York Times Company, The News Leaders

Association, Online News Association, POLITICO LLC, Radio

Television Digital News Association, Reveal from The Center for

Investigative Reporting, Sinclair Broadcast Group, Inc., Society of

Environmental Journalists, Society of Professional Journalists,

TEGNA Inc., Tully Center for Free Speech, and Univision

Communications Inc. The amici’s motion for leave to file their brief

is GRANTED. Dkt. No. 899. The RCFP, on behalf of the other

48a

In support of their motion to continue the seal past

the ten year default sealing date, Proponents rely

solely on the “judicial integrity” argument they raised

before. They assert that Judge Walker promised them

that he would use the recordings solely for his personal

use in drafting the opinion and judgment following the

bench trial. Given those assurances, they did not

continue to object to the recordings and did not try to

convince Judge Walker to stop recording or to seek the

assistance of a higher court to force Judge Walker to

stop recording. The Proponents contend that the

recordings should never be unsealed because of the

need to maintain Judge Walker’s “promise” as a

compelling matter of judicial integrity.

Significantly, the Proponents again failed to submit

any evidence by declaration that any Proponent or

witness who testified on behalf of the Proponents

wants the trial recordings to remain under seal. There

is no evidence that any Proponent or trial witness fears

retaliation or harassment if the recordings are

released. Nor is there any evidence that any Proponent

or trial witness on behalf of the Proponents believed at

the time or believes now that Judge Walker’s

commitment to personal use of the recordings meant

that the trial recordings would remain under seal

forever.

amici, argues generally that release of the recordings would serve

“the interests advanced by the common law and First Amendment

rights of access to judicial documents” by providing a

contemporaneous view of how the trial progressed and would

“enhance the completeness of news reports about the trial.” Dkt.

No. 899-2 at 7-15.

49a

There is attorney argument that the Proponents

relied on Judge Walker’s commitments regarding

recording the trial proceedings to conclude that the

records would never be released.8 But that is a different

position than they took during oral argument at the

Ninth Circuit in 2011. Then, Proponents’ counsel

acknowledged both Proponents’ knowledge of Civil

Local Rule 79-5(g) and that they would bear the burden

of having to demonstrate reasons to continue the seal

beyond ten years.9 Proponents now argue that their

counsel’s concessions in the Ninth Circuit cannot bind

them as a judicial admission. Reply (Dkt. No. 900) at 4.

Perhaps. But those concessions are a significant

indication that even Proponents’ counsel

contemporaneously understood that sealing is typically

limited in time and that it was not reasonable to rely

solely on Judge Walker’s statements to insist that

sealing be permanent.

In my prior Order, I rejected the idea that

Proponents’ “judicial integrity” argument, defined as it

is by the unique procedural and historical facts that led

to the recordings’ existence, could be a compelling

justification requiring indefinite sealing of the trial

Indeed, plaintiffs asked Proponents’ counsel for permission to

contact three of the Proponents’ trial witnesses to ask them if they

had any concerns about unsealing the trial recordings. Declaration

of Christopher D. Dusseault, ¶ 2. Dkt. No. 895-1. Proponents’

counsel declined that permission, informing plaintiffs’ counsel that

he “polled a critical mass of our clients and witnesses” and none of

them supported unsealing. Id. ¶ 3.

See Oral Argument at 7:04–7:48, Perry v. Brown, 667 F.3d 1078,

1082 (9th Cir. 2012) (No. 11-17255), https://bit.ly/35toPvJ.

50a

recordings. Having found that the common law right of

access requires release of the trial recordings absent

some other evidence that could theoretically provide a

compelling justification, and finding absolutely none

presented on this record, Proponents’ motion to

continue the seal on the trial recordings is DENIED.

On the undisputed record before me, there is no

justification, much less a compelling one, to keep the

trial recordings under seal any longer. The recordings

shall become public on August 12, 2020.10

The Proponents ask me to stay the release of the

recordings until either their appeal of the unsealing

order is resolved by the Ninth Circuit (and perhaps the

Supreme Court) or at least until movants can seek a

stay from the Ninth Circuit. However, I wrote in my

January 2018 Order and reiterated at the June 17,

2020 hearing on the current motion that the release of

the recordings would occur on August 12, 2020 in light

of Proponents’ failure to identify any compelling

justification other than the time-limited one of judicial

integrity. The Proponents, who appealed the January

2018 Order, are in a position to swiftly to seek a stay of

the release from the Ninth Circuit. Absent a stay from

the Ninth Circuit, on August 12, 2020, the Clerk’s

On the prior motion and again here, the sides disagree when the

Judgment in this case was entered and, hence, when the default

ten years will run. I addressed these arguments in my January

2018 Order and see no reason to deviate from the conclusion that

the ten years runs on August 12, 2020.

51a

Office will prepare to release the recordings to the

public.11

IT IS SO ORDERED.

Dated: July 9, 2020

/s/ William H. Orrick

William H. Orrick

United States District Judge

The actual mechanics of the public release of the recordings is

still under consideration. A further Order describing the

mechanics of that release will be issued prior to August 12, 2020.

52a

APPENDIX C

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

Case No. 09-cv-02292-JW (WHO)

[Filed: January 17, 2018]

__________________________________________

KRISTIN M. PERRY, et al.,

)

Plaintiffs,

)

ARNOLD SCHWARZENEGGER, et al.,

)

Defendants.

)

__________________________________________)

ORDER ON MOTION TO UNSEAL

VIDEOTAPED TRIAL RECORDS

Re: Dkt. Nos. 852, 863

This motion presents a conundrum: our District has

possession of an undeniably important historical record

— video recordings of the high profile bench trial to

determine the constitutionality of California’s

Proposition 8, colloquially known as the ban on

same-sex marriage. But the recordings were explicitly

made for personal use by the presiding judge at the

trial, the Hon. Vaughn Walker, in preparing findings of

fact. When he began using them in public appearances,

53a

the Ninth Circuit stopped him, citing the “importance

of preserving the integrity of the judicial system.” It

left open the question of whether they could be released

in the future, or when.

Media intervenor KQED, Inc. now asks me to

unseal those video recordings.1 KQED’s unsealing

request is supported by the plaintiffs in the action2 and

the plaintiff-intervenor City and County of San

Francisco (CCSF). Dkt. Nos. 866, 867.3 Defendant State

of California does not oppose the motion to unseal. Dkt.

No. 869. The unsealing request is opposed by the

defendant-intervenors (Proponents).4 With scant

guidance, I refer to our Civil Local Rule 79-5, also cited

by the Ninth Circuit, to order that the recordings be

kept under seal for a total of ten years from the trial

court’s order entering judgment, or until August 12,

2020, unless the Proponents, by that time, show

compelling reasons for the seal to remain in place for

an additional period of time. I DENY the motion to

unseal at this juncture.

This matter came to me as Duty Judge, given Judge Walker’s

retirement from the bench.

Plaintiffs are Kristin M. Perry, Sandra B. Stier, Paul T. Katami,

and Jeffrey J. Zarrillo.

Proposed Amicus American Civil Liberties Union of Northern

California (ACLU) also supports the motion to unseal. Dkt. No.

863. The ACLU’s motion for leave to file their amicus brief is

GRANTED. I will refer to KQED, plaintiffs, CCSF, and the ACLU

as “movants” herein.

The Proponents are Dennis Hollingsworth, Gail J. Knight, Martin

F. Gutierrez, and Mark A. Jansson.

54a

BACKGROUND

In the weeks leading up to the January 2010 bench

trial, Judge Walker “expressed a desire to satisfy the

public’s interest in the case by broadcasting a video

feed of the proceedings to various federal courthouses

and online” and designated the trial for inclusion in the

Northern District’s pilot program for broadcasting

court proceedings. Perry v. Brown, 667 F.3d 1078, 1081

(9th Cir. 2012).5 On the morning of the first day of trial,

the Supreme Court (at the request of Proponents)

issued a temporary stay of the broadcast.

Hollingsworth v. Perry, 558 U.S. 1107 (mem.). Two

days later, the Court entered a further stay pending

the filing of a petition for mandamus or certiorari,

finding that “the courts below did not follow the

appropriate procedures set forth in federal law before

changing their rules to allow such broadcasting.”

Hollingsworth v. Perry, 558 U.S. 183 (2010) (per

curiam).6

The procedural background is largely taken from the Ninth

Circuit’s recitation in Perry v. Brown, 667 F.3d 1078 (9th Cir.

2012). None of the parties or movants on this motion dispute the

procedural facts as described by the Ninth Circuit.

At issue was the Ninth Circuit’s adoption in late 2009 of a pilot

program to allow recording and broadcasting, and the Northern

District’s revision of its Civil Local Rule to allow participation in

that new pilot program. As a result of the Supreme Court’s stay,

the applicable Civil Local Rule in effect at the time of trial, Civ. L.

R. 77-3, prohibited recording and broadcasting of court

proceedings, “[u]nless 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

55a

Judge Walker recorded the first two days of trial,

because the Supreme Court might have decided to lift

the temporary stay issued on the first day of trial. After

the further stay came into effect, the Proponents asked

that the recording be stopped. As recited by the Ninth

Circuit:

It was in this context that Judge Walker

responded as follows:

The local rule permits the recording for

purposes ... of use in chambers.... And I think

it would be quite helpful to me in preparing

the findings of fact to have that recording. So

that’s the purpose for which the recording is

going to be made going forward. But it’s not

going to be for purposes of public

broadcasting or televising.

Proponents dropped their objection at that point.

Perry v. Brown, 667 F.3d at 1082.7

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.” Perry v. Brown, 667 F.3d at 1082 n. 1.

As the Ninth Circuit recognized, Proponents did subsequently file

a petition for a writ of certiorari in April 2010, seeking to vacate

the Ninth Circuit’s denial of Proponents’ petition for a writ of

mandamus to prevent Judge Walker from “broadcasting the trial.”

See Petition for a Writ of Certiorari, Hollingsworth v. U.S. Dist.

Court for Northern Dist. of California, ––– U.S. ––––, 131 S.Ct.

372, 178 L.Ed.2d 1 (2010) (No. 09–1238), 2010 WL 1513093. The

Supreme Court ultimately granted certiorari and remanded with

56a

In May 2010, Judge Walker offered to make copies

of the video recordings available to any party that

intended to use excerpts during their closing

arguments. That offer was made contingent on the

recipient maintaining the recordings under “a strict

protective order.” Plaintiffs and CCSF obtained copies.

After closing arguments, Proponents moved to require

the return of the copies. Perry v. Brown, 667 F.3d at

1082. In an August 4, 2010 Order, Judge Walker held:

The trial proceedings were recorded and used by

the court in preparing the findings of fact and

conclusions of law; the clerk is now DIRECTED

to file the trial recording under seal as part of

the record. The parties may retain their copies of

the trial recording pursuant to the terms of the

protective order herein. Proponents’ motion to

order the copies’ return [] is accordingly

DENIED.

Perry v. Schwarzenegger, 704 F.Supp.2d 921, 929

(N.D.Cal. 2010).8

instructions to dismiss the petition for a writ of mandamus as

moot because the trial was over and had not been “broadcasted.”

Hollingsworth v. U.S. Dist. Court for Northern Dist. of California,

––– U.S. ––––, 131 S.Ct. 372, 178 L.Ed.2d 1 (2010) (mem.).

As noted by the Ninth Circuit, Judge Walker recognized in his

opinion that the Proponents’ designated witnesses had expressed

concerns about testifying in light of the potential for the broadcast

of the proceedings. Judge Walker discounted that concern,

weighing it against the Proponents because “proponents failed to

make any effort to call their witnesses after the potential for public

broadcast in the case had been eliminated.” Perry v.

Schwarzenegger, 704 F.Supp.2d at 929.

57a

The Proponents appealed Judge Walker’s judgment

striking down Proposition 8; they did not challenge

either the denial of their motion to compel the return

of the copies or the district court’s entry of the

recording in the record. Perry v. Brown, 667 F.3d at

1083.

In 2011, Judge Walker retired. Both before and

after that retirement, Judge Walker “displayed”

excerpts from the video recordings during public

appearances. Id. The Proponents once again returned

to court, asking the Ninth Circuit to order Judge

Walker to return the video recordings to the Court’s

possession. The plaintiffs filed a cross-motion to unseal

the recordings.9 The Ninth Circuit referred the matters

back to the District Court.

The Hon. James Ware denied Proponents’ motion to

order Judge Walker to return the videos to the

possession of the Court (although Judge Walker had

returned them in the interim), and granted plaintiffs’

cross-motion to unseal. Perry v. Schwarzenegger, No. C

09–02292 JW, 2011 WL 4527349 (N.D. Cal. Sept. 19,

2011).10 Judge Ware concluded that the common-law

right of public access applied to the recordings, that

neither the Supreme Court’s decision in Hollingsworth

nor the local rule governing audiovisual recordings

barred their release, and that Proponents had made no

A “Media Coalition,” including KQED, moved to intervene at the

Ninth Circuit in order to support plaintiffs’ cross-motion to unseal.

Perry v. Brown, Ninth Cir. Case No. 10-16696, Dkt. No. 343.

The Media Coalition appeared at the August 29, 2011 hearing

before Judge Ware on the cross-motion to unseal. Dkt. No. 810.

58a

showing sufficient to justify continued sealing in the

face of the common-law right. Id. at *3–6. Judge Ware

also directed that a copy of the recordings be returned

to former Judge Walker. Id. at *6. Proponents

immediately appealed that ruling.11

The Ninth Circuit reversed. The court initially

assumed “for purposes of this case only, that the

common-law presumption of public access applies to

the recording at issue here and that it is not abrogated

by the local rule in question.” Perry v. Brown, 667 F.3d

at 1084. The court then concluded that there was “a

compelling reason in this case for overriding the

common-law right” of access, namely “Proponents

reasonably relied on Chief Judge Walker’s specific

assurances—compelled by the Supreme Court’s

just-issued opinion—that the recording would not be

broadcast to the public, at least in the foreseeable

future.” Id., 667 F.3d at 1084–1085.

The Ninth Circuit determined that Judge Walker

made “at least two” “unequivocal assurances that the

video recording at issue would not be accessible to the

public.” Id. at 1085. Those assurances were, in essence,

a commitment by Judge Walker not to allow the public

broadcasting of the videos. In the absence of those

assurances, and given the indications provided in the

Supreme Court orders, the Ninth Circuit concluded the

“Proponents again might well have taken action to

The Media Coalition successfully intervened back at the Ninth

Circuit in support of Judge Ware’s order unsealing the video

recordings. Perry v. Brown, Ninth Cir. Case No. 11-17255, Dkt.

Nos. 6-1, 15, 28-1.

59a

ensure that the recording would not be made available

for public viewing.” Perry v. Brown, 667 F.3d at

1085-86.

In light of those assurances and the “importance of

preserving the integrity of the judicial system” the

Ninth Circuit found a compelling reason for the

continued sealing of the recordings. Id. at 1087-88. In

reaching its decision, however, the Ninth Circuit was

careful to avoid concluding that the then-existing

compelling reason and the Proponents’ reasonable

expectations regarding non-broadcast would

permanently preclude disclosure. The court explained

that proponents reasonably relied on assurances that

the video recordings would not be broadcast in public

“at least in the foreseeable future.” Id. at 1084-85. That

“foreseeable future” according to the court was

informed by the Northern District’s Civil Local Rule

providing that documents filed under seal in a civil

case “shall be open to public inspection without further

action by the Court 10 years from the date the case is

closed” unless “a party that submitted documents that

the Court placed under seal in a case may, upon

showing good cause at the conclusion of the case, seek

an order that would continue the seal until a specific

date beyond the 10 years provided by this rule.” Id. at

1084-85 n.5.

KQED now moves to unseal again, arguing that the

Supreme Court’s decision affirming Judge Walker’s

determination that Proposition 8 was unconstitutional

(Hollingsworth v. Perry, 133 S. Ct. 2652 (2013)

(Hollingsworth II)), the passage of time, and the

wider-acceptance of same-sex marriage has lessened

60a

both the justifications for the sealing and the

reasonable expectations of the Proponents for

continued sealing of the indisputably historically

significant video recordings.

Each of the named plaintiffs who testified during

the bench trial submits a declaration in support of

unsealing. Dkt. Nos. 857, 858, 859, 860. The plaintiffs

explain why they believe public release and review of

the video recordings is important and why the

currently-available transcripts are not an adequate

substitute. The plaintiffs expect that the video

recordings will carry significant and unique weight in

showing what happened during the trial because they

show the vulnerability of the plaintiffs as they testified

and the level of emotion surrounding their testimony,

“uniquely show[ing] the real reasons that marriage is

important to people like” the plaintiffs. Stier

Declaration [Dkt. No. 859] ¶¶ 7, 8; see also Zarrillo

Decl. [Dkt. No. 860] ¶ 6 (“People should be able to see

what I experienced, where I had to literally testify and

prove that I love Paul.”).

KQED also submits declarations from directors at

two non-profits involved in advocacy and education on

lesbian, gay, bisexual and transgender (LGBT) issues.

Dkt. Nos. 855, 856. One director testifies that release

of the video recordings will further “the public’s

ongoing desire to understand the profound social and

legal issues that were publicly tried in this Court and

ultimately affirmed by the U.S. Supreme Court.” Levy

Decl. [Dkt. No. 856], ¶ 4. The other director states that

release of the video recordings “will meaningfully

contribute to the public’s understanding of the evidence

61a

that was presented by the parties during this contested

federal trial, evidence that continues to have relevance

and resonance today.” Kendell Decl. [Dkt. No. 855], ¶ 4.

Finally, KQED submits the declaration of its Senior

Editor, California Politics & Government, Scott Shafer.

Dkt. No. 854. According to Shafer, the initial KQED

and other media coverage of the trial could only

summarize what happened in the court each day, and

public access to the full and “actual trial recording is

critical [] understanding how this critical chapter in

California legal history unfolded.” Shafer Decl. ¶ 5.

Shafer explains that KQED would use the video

recordings as teaching tools and to produce a statewide

radio special. Id. ¶ 6.12

LEGAL STANDARD

“The law recognizes two qualified rights of access to

judicial proceedings and records,” a First Amendment

right of access to criminal proceedings and a

common-law right of access to inspect and copy judicial

records and documents. United States v. Bus. of Custer

Battlefield Museum & Store Located at Interstate 90,

Exit 514, S. of Billings, Mont., 658 F.3d 1188, 1195 (9th

Cir. 2011). The Ninth Circuit has not squarely

addressed which standard applies to access to civil

proceedings as opposed to access to civil judicial records

and documents.13

The Proponents did not submit a declaration or other evidence

in support of their opposition to the motion to unseal.

KQED argues the Ninth Circuit confirmed that the First

Amendment right of access applies to civil proceedings in

Courthouse News Service v. Planet, 750 F.3d 776, 793 (9th Cir.

62a

Under the common-law right of access, “[f]ollowing

the Supreme Court’s lead, ‘we start with a strong

presumption in favor of access to court records.’” Center

for Auto Safety v. Chrysler Group, LLC, 809 F.3d 1092,

1096 (9th Cir. 2016) (quoting Foltz v. State Farm Mut.

Auto. Ins. Co., 331 F.3d 1122, 1135 (9th Cir.2003)).

Accordingly, “[a] party seeking to seal a judicial record

then bears the burden of overcoming this strong

presumption by meeting the ‘compelling reasons'

standard.” Kamakana v. City & County of Honolulu,

447 F.3d 1172, 1178 (9th Cir.2006). Under this

stringent standard, a court may seal records only when

it finds “a compelling reason and articulate[s] the

factual basis for its ruling, without relying on

hypothesis or conjecture.” Kamakana, 447 F.3d at

1179. The court must then “conscientiously balance[ ]

the competing interests of the public and the party who

seeks to keep certain judicial records secret.” Id.

Under the qualified First Amendment right of

access, courts “must consider whether ‘(1) closure

serves a compelling interest; (2) there is a substantial

probability that, in the absence of closure, this

2014). The question before that panel, however, was whether First

Amendment and free speech issues were significantly implicated

to reverse the district court’s decision to abstain from deciding

what rights of access a media outlet should have to complaints

filed in superior court. The court expressly took “no position on the

ultimate merits” of the claim, but in light of the significant First

Amendment issues involved remanded for the district court to

consider the merits of the claim in the first instance. Id.

Courthouse News did not explicitly settle the question of which

standard is applied to justify sealing (or closing) civil proceedings

and records of those proceedings.

63a

compelling interest would be harmed; and (3) there are

no alternatives to closure that would adequately

protect the compelling interest.’” Perry v. Brown, 667

F.3d at 1088 (quoting Oregonian Pub. Co. v. U.S. Dist.

Court for Dist. of Or., 920 F.2d 1462, 1466 (9th

Cir.1990)). To determine whether a First Amendment

right of access exists to particular proceedings or

documents, courts apply the two part “experience and

logic” test, asking: (1) “whether the place and process

have historically been open to the press and general

public”; and (2) “whether public access plays a

significant positive role in the functioning of the

particular process in question.” See United States v.

Doe, 870 F.3d 991, 997 (9th Cir. 2017) (quoting

Press-Enter. Co. v. Super. Ct., 478 U.S. 1, 8 (1986)).

“Even when the experience and logic test is satisfied,

however, the public’s First Amendment right of access

establishes only a strong presumption of openness, and

‘the public still can be denied access if closure ‘is

necessitated by a compelling governmental interest,

and is narrowly tailored to serve that interest.’” Times

Mirror Co. v. United States, 873 F.2d 1210, 1211 n.1

(9th Cir. 1989) (quoting Press-Enter. Co. v. Super. Ct.,

464 U.S. 501, 509–10 (1984)).

The First Amendment is “generally understood to

provide a stronger right of access than the common

law.” Custer Battlefield, 658 F.3d at 1197 n.7. However,

as noted above, both the qualified First Amendment

and common-law right of access standards require a

showing of compelling justifications for the sealing of

court proceedings and documents.

64a

At the time of the Proposition 8 bench trial and the

February 2012 decision by the Ninth Circuit in Perry v.

Brown, Northern District Civil Local Rule 79-5(f)

“provided that ‘[a]ny document filed under seal in a

civil case shall be open to public inspection without

further action by the Court 10 years from the date the

case is closed,’ with the proviso that ‘a party that

submitted documents that the Court placed under seal

in a case may, upon showing good cause at the

conclusion of the case, seek an order that would

continue the seal until a specific date beyond the 10

years provided by this rule.’” Perry v. Brown, 667 F.3d

at 1085 n.5.14

DISCUSSION

KQED, the plaintiffs, CCSF, and the ACLU argue

that release of the video recordings is warranted now.

They point out that Judge Walker’s ruling is settled

law following its affirmance by the Supreme Court.

They note that in its 2012 decision on the appeal from

the first motion to unseal, the Ninth Circuit relied in

part on the fact that merits of the case had not yet been

The current version, Civ. L.R. 79-5(g), provides in full: “Effect of

Seal. Unless otherwise ordered by the Court, any document filed

under seal shall be kept from public inspection, including

inspection by attorneys and parties to the action, during the

pendency of the case. Any document filed under seal in a civil case

shall, upon request, be open to public inspection without further

action by the Court 10 years from the date the case is closed.

However, a Submitting Party or a Designating Party may, upon

showing good cause at the conclusion of a case, seek an order to

extend the sealing to a specific date beyond the 10 years provided

by this rule. Nothing in this rule is intended to affect the normal

records disposition policy of the United States Courts.”

65a

decided and the law on same-sex marriage remained

unsettled, and held only that the video recordings had

to remain under seal at that time and not in

perpetuity. They also show that while there has been

wider acceptance of same-sex marriage (certainly as a

legal matter), there is continued, ongoing debate over

the issue and a continued interest in the Proposition 8

trial itself.

Given the changed circumstances from the time

when the Ninth Circuit ruled on sealing in 2012 and

the significant continued public interest, movants

argue that the compelling justifications found by the

Ninth Circuit in 2012 no longer exist and the public’s

right of access – both under the common law and the

First Amendment – requires the video recordings to be

unsealed. Movants also argue that any interests the

Proponents may have had regarding potential

harassment due to their involvement in the trial that

could have supported continued sealing in 2012 have

been mitigated by the passage of time, the now-settled

legality of same-sex marriage, and the extensive

reporting that occurred during and following the trial

(including re-enactments) that disclosed Proponents’

actual arguments and testimony but which did not

result in any actual harassment shown by evidence in

the record.15 Finally, movants contend that the

Northern District’s Local Rule presumptively sealing

court records for ten years, Civ. L.R. 79-5(g), must give

way to the public’s right of access given the lack of

Movants also note that one of the two witnesses for the

Proponents subsequently and publicly reversed his position on

same-sex marriage. Mot. at 11-12 n.8.

66a

existing compelling justifications and the arbitrary ten

year outer boundary used in that Rule.16

Proponents make no effort to show, factually, how

further disclosure of their trial testimony would

adversely affect them. Indeed, the transcript of the

trial has been widely disseminated and dramatized in

plays and television shows. Instead, they raise a

number of arguments that I am both barred from

considering movants’ request to unseal and, if I reach

the merits, required to continue the seal.

As an initial matter, I reject the arguments that I

cannot consider the motion to unseal on its merits

because of the Ninth Circuit’s mandate on the prior

motion to unseal or because of the doctrines of issue

preclusion, law-of-the-case, or stare decisis. The Ninth

Circuit’s mandate reversed Judge Ware’s decision,

concluding he had abused his discretion, and remanded

“with instructions to maintain the trial recording under

seal.” Perry v. Brown, 667 F.3d at 1088-89. That

mandate did not include any language indicating that

the materials should remain under seal in perpetuity

or otherwise binding the district court from addressing

a future motion to unseal based on changed

circumstances. The language utilized by the Ninth

Circuit was conditional as to time. The court expressly

concluded that: “Proponents reasonably relied on Chief

Judge Walker’s specific assurances—compelled by the

KQED points out that the Eastern District of Pennsylvania

provides for the presumptive unsealing of records two years after

the conclusion of a civil action and the Western District of North

Carolina unseals records after final disposition of the case. Mot. at

18.

67a

Supreme Court’s just-issued opinion—that the

recording would not be broadcast to the public, at least

in the foreseeable future” and cited the District’s civil

local rule providing a ten year presumptive mark for

unsealing court records. Id., 667 F.3d at 1084-85

(emphasis added).17 The court’s recognition that

continued sealing is conditional squares with Ninth

Circuit authority requiring proponents of sealing to

show that justifications supporting continued sealing

continue to exist. Kamakana v. City and County of

Honolulu, 447 F.3d 1172, 1181 (9th Cir. 2006)

(determining whether justifications existed to continue

sealing court records).18 Therefore, I am not bound or

otherwise precluded from addressing this motion on its

merits.

On the merits, I have no doubt that the common-law

right of access applies to the video recordings as

records of judicial proceedings to which a strong right

of public access attaches. But I conclude that the

compelling justification of judicial integrity identified

I recognize that Judge Walker’s assurances, relied on by the

Ninth Circuit, could imply that the video recordings would never

be accessible to the public. But the focus here is on whether

Proponents could rest on those implied assurances indefinitely,

and as recognized by the Ninth Circuit, they cannot.

Nor is my consideration of this motion barred by the Supreme

Court’s decisions staying the broadcast of the trial. The Supreme

Court did not address the question at hand, and expressly limited

itself to whether “broadcast in this case should be stayed because

it appears the courts below did not follow the appropriate

procedures set forth in federal law before changing their rules to

allow such broadcasting.” Hollingsworth v. Perry, 558 U.S. 183,

184 (2010).

68a

in the Ninth Circuit’s 2012 Order continues to apply

and prevents disclosure of the video recordings through

the presumptive unsealing ten year mark applicable

under Civil Local Rule 79-5(g).

Proponents argue that former Local Rule 77-3, as

well as long-standing judicial policies in place in 2010

preventing or tightly controlling the recording and

broadcasting of court proceedings, defeat the public’s

right of access and preclude release of the video

recordings for public dissemination. They rely on the

Supreme Court’s recognition that the Rule 77-3 had the

“force of law” Hollingsworth v. Perry, 558 U.S. at 191,

and argue that releasing the video recordings now

would violate that law which at the time strictly

prohibited the broadcast of proceedings outside of the

Court. However, a recording of the proceedings was

made and was, without separate objection by

Proponents, made part of the trial record. As

circumstances and justifications change (for example,

the current Northern District and Ninth Circuit rules

and policies allow for public broadcast of proceedings),

so does the calculus concerning how the public’s right

of access weighs against asserted compelling

justifications for maintaining court records under seal.

Neither former Rule 77-3 nor the Judicial Conference

or Ninth Circuit Judicial Council policies in effect in

2010 preclude the public’s right of access from

attaching to the video recordings.

Proponents also contend that the common-law right

of access cannot apply to video recordings of witness

testimony that are “wholly derivative of evidence

offered and the arguments made in open court” relying

69a

on United States v. McDougal, 103 F.3d 651 (8th Cir.

1996). Oppo. at 18-19. McDougal, however, dealt with

a markedly different situation and applied a different

standard in assessing the public’s right of access.

There, the Eighth Circuit concluded that a videotaped

deposition played in open court was not a “judicial

record” to which the right of public access attaches and,

in the alternative if considering the deposition tape to

be a judicial record, declined to apply the

accepted-in-other-circuits (including the Ninth) “strong

presumption” of public access to judicial records. Here,

unlike in McDougal, the video recordings at issue are

recordings of the court proceedings themselves, not a

prior recording of testimony simply played at trial.

Those tapes were made with the express intent and

actual purpose of assisting the trial judge in reaching

his decision. Moreover, the analysis of McDougal is

contrary to “the strong presumption in favor of copying

access” applicable in the Ninth Circuit to “audio and

videotape exhibits as they are received in evidence

during a criminal trial.” Valley Broadcasting Co. v.

U.S. Dist. Court for Dist. of Nevada, 798 F.2d 1289,

1290, 1294 (9th Cir. 1986). The public’s right of access

applies to the video recordings at issue.

However, the compelling justification identified by

the Ninth Circuit in 2012 – namely, judicial integrity

– continues to exist and precludes release of the video

recordings at this juncture. To be clear, I am not

holding that the recordings must continue to be sealed

simply because Judge Walker made a promise that

movants argue was mistaken if not impermissible

under the law. I agree that a record cannot continued

to be sealed where a trial judge makes a mistake in

70a

characterizing the record at issue or the interests

proffered to justify sealing.19 I also agree that just

because a compelling justification existed at one point

in time does not mean that a compelling justification

exists in perpetuity. As the Ninth Circuit has noted, in

order for documents to remain under seal, there must

be compelling “interests favoring continued secrecy.”

Kamakana, 447 F.3d at 1181 (emphasis added).

Here the compelling justification identified by the

Ninth Circuit in 2012 continues to exist. That

justification, judicial integrity, was and continues to be

inextricably couched in the unique procedural facts

recognized by both the Supreme Court and the Ninth

Circuit in the appeals related to recordings at issue

including: (i) the adoption of a pilot project to allow

recording and broadcast of court proceedings in the

Ninth Circuit (without prior public notice and

comment), (ii) the efforts to modify this District’s civil

local rules (without prior public notice and comment),

(iii) then-existing Civil Local Rules in effect at the time

of the trial (given the Supreme Court’s stay) that did

not allow for recording or broadcast, (iv) the assurances

of internal-only use made by Judge Walker which (as

the Ninth Circuit concluded) were relied upon by

Proponents in not seeking a further stay of the

recording, and (v) the Ninth Circuit’s reliance on this

District’s ten year presumption of continued sealing.

Although there is no evidence that at the time Judge Walker

made his assurances to the Proponents that he was mistaken on

a matter of fact or law.

71a

While I do not find my consideration of this motion

to unseal is precluded by the Ninth Circuit’s decision in

Perry v. Brown, 667 F.3d 1078 (9th Cir. 2012) – because

circumstances change and justifications become more

or less compelling – I do find that the compelling

reason of judicial integrity identified by that court

continues to require sealing of the video recordings, at

least until the rules of this court setting the

presumptive unsealing of record after ten years apply.20

Proponents argue that the ten year unsealing

presumption in former Local Rule 79-5(g) cannot set

their reasonable expectations as to whether and when

the video recordings might be released because that

Rule only applies to records created by the parties and

not records of judicial proceedings created by the Court.

However, Rule 79 applied generally to “BOOKS AND

RECORDS KEPT BY THE CLERK,” Rule 79-5 applied

to “Filing Documents Under Seal,” and then-Rule

79-5(f) provided in full:

(f) Effect of Seal. Unless otherwise ordered by

the Court, any document filed under seal shall

be kept from public inspection, including

inspection by attorneys and parties to the action,

during the pendency of the case. Any document

filed under seal in a civil case shall be open to

I recognize there is some dispute over when that ten year mark

will occur, given that judgment in the case was not (apparently due

to an oversight) entered in August 2010 as Judge Walker

instructed. However, given the intent of the trial court and the

subsequent appeal on its merits, August 12, 2010 is functionally

the date the case was “closed” for substantive proceedings on the

merits.

72a

public inspection without further action by the

Court 10 years from the date the case is closed.

However, a party that submitted documents that

the Court placed under seal in a case may, upon

showing good cause at the conclusion of the case,

seek an order that would continue the seal until

a specific date beyond the 10 years provided by

this rule. Nothing in this rule is intended to

affect the normal records destruction policy of

the United States Courts. The chambers copy of

sealed documents will be disposed of in

accordance with the assigned Judge’s discretion.

Ordinarily these copies will be recycled, not

shredded, unless special arrangements are

made.

Civil Local Rule 79 (in effect in 2010

<https://cand.uscourts.gov/superseded-local-rules>).21

That Rule 79-5 contained procedures in some of its

subdivisions governing how parties could file materials

under seal and that 79-5(f) provided that any party

who did so may move to continue the seal after the ten

year presumptive period expires, does not mean that

the presumptive unsealing rule is somehow limited.

There was and is nothing in Rule 79-5 limiting the

presumptive unsealing to materials filed by the parties

as opposed to materials created and filed by the Court,

like transcripts of judicial proceedings or the video

recordings at issue. Judge Walker, as noted above,

directed that the Clerk “file the trial recording under

seal as part of the record.” Perry v. Schwarzenegger,

A similar rule currently exists as Civil Local Rule 79-5(g).

73a

704 F.Supp.2d at 929. Rule 79-5 applies. Moreover,

there is no inherent conflict between then-existing Rule

79-5(f) presumptive unsealing and then-existing Rule

77-3 prohibition on recording and broadcasting

proceedings. Nothing in the Rules themselves creates

an inherent conflict.

Movants’ argument both relies on then-Rule 79-5(f)

and then seeks to avoid it. Movants first argue that the

ten year presumption of unsealing, as cited by the

Ninth Circuit, would set the outside boundary of

Proponents’ reasonable expectation of sealing. Reply at

4. They also argue, however, that ten years is an

arbitrary timeframe, adopted without apparent case

law or other support, and that timeframe cannot be

used to defeat the public right of access to the video

recordings now on the facts currently presented. Mot.

at 18. However, as noted above, the existence of the ten

year unsealing presumption was significant to the

Ninth Circuit and remains significant to me.

Finally, my analysis would be no different if I

applied a First Amendment right of access instead of

the common-law right of access. As noted above,

compelling justifications must exist to satisfy both

standards. The fact that the First Amendment

standard might be harder to satisfy, did not preclude

the Ninth Circuit from finding it satisfied in 2012.

Perry v. Brown, 667 F.3d at 1088. The same holds true

here.

CONCLUSION

The resolution of KQED’s motion to unseal is

properly before me on its merits. I conclude that the

74a

common-law right of access applies to the video

recordings made by and for the use of Judge Walker

but that the compelling justification of judicial integrity

– given the unique facts of this case and legal decisions

weighing on the legality of Judge Walker’s efforts to

create those recordings – still precludes their release at

this juncture.

I further rule that the recordings shall be released

to movants on August 12, 2020, absent further order

from this Court that compelling reasons exist to

continue to seal them. Proponents shall file any motion

to continue the sealing no later than April 1, 2020, any

opposition is due on May 13, 2020, and the reply on

May 27, 2020. The hearing, if one is needed, is set for

June 17, 2020.

IT IS SO ORDERED.

Dated: January 17, 2018

/s/ William H. Orrick

William H. Orrick

United States District Judge

75a

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 20-16375

[Filed: December 28, 2021]

__________________________________________

KRISTIN M. PERRY; et al.,

)

Plaintiffs-Appellees,

)

CITY AND COUNTY OF

)

SAN FRANCISCO,

)

Intervenor-Plaintiff-Appellee,

)

KQED, INC.,

)

Intervenor-Appellee,

)

GAVIN NEWSOM, Governor; et al.,

)

Defendants-Appellees,

)

DENNIS HOLLINGSWORTH; et al.,

)

Intervenor-Defendants-Appellants, )

76a

and

)

PATRICK O’CONNELL, in his official

)

capacity as Clerk-Recorder for the County

)

of Alameda; DEAN C. LOGAN, in his

)

official capacity as Registrar-Recorder/

)

County Clerk for the County of Los Angeles, )

)

Defendants.

)

__________________________________________)

D.C. No. 3:09-cv-02292-WHO

Northern District of California, San Francisco

ORDER

Before: LUCERO,* W. FLETCHER, and IKUTA,

Circuit Judges.

Appellant filed a petition for rehearing en banc on

December 2, 2021 (Dkt. Entry No. 72). Judge W.

Fletcher has voted to deny the petition for rehearing en

banc, and Judge Lucero so recommends. Judge Ikuta

voted to grant the petition for rehearing en banc.

The full court has been advised of the petition for

rehearing en banc and no judge of the court has

requested a vote on whether to rehear the matter en

banc. Fed. R. App. P. 35.

The petition for rehearing en banc is DENIED.

The Honorable Carlos F. Lucero, United States Circuit Judge for

the U.S. Court of Appeals for the Tenth Circuit, sitting by

designation.

77a

APPENDIX E

CONSTITUTIONAL PROVISIONS

AND RULES INVOLVED

U.S. CONST. art. III, § 2, cl. 1

The judicial Power shall extend to all Cases, in Law

and Equity, arising under this Constitution, 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 Consuls;—to

all Cases of admiralty and maritime Jurisdiction;—to

Controversies to which the United States shall be a

Party;—to Controversies between two or more

States;—between a State and Citizens of another

State,—between Citizens of different States,—between

Citizens of the same State claiming Lands under

Grants of different States, and between a State, or the

Citizens thereof, and foreign States, Citizens or

Subjects.

U.S. CONST. amend. I

Congress shall make no law respecting an

establishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of speech, or

of the press; or the right of the people peaceably to

assemble, and to petition the Government for a redress

of grievances.

78a

N.D. CAL. L.R. 77-3 (current)

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 or for participation

in a pilot or other project authorized by the Judicial

Council of the Ninth Circuit or the Judicial Conference

of the United States, 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 rule is intended to restrict the use of

electronic means to receive or present evidence during

Court proceedings.

N.D. CAL. L.R. 77-3 (2009)

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

79a

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 rule is intended to

restrict the use of electronic means to receive or

present evidence during Court proceedings.

N.D. CAL. L.R. 79-5 (current)

Filing Documents Under Seal in Civil Cases.

(a)

This Rule Applies to Electronic and

Manually-Filed Sealed Documents. The procedures

and requirements set forth in Civil L.R. 79-5 apply to

both the e-filing of sealed documents submitted by

registered e-filers in e-filing cases; and the manual

filing of sealed documents submitted by non-e-filers

and/or in non-e-filing cases. For the purposes of Civil

L.R. 79-5, “file” means: (1) to electronically file (“e-file”)

a document that is submitted by a registered e-filer in

a case that is subject to e-filing; or (2) to manually file

a document when it is submitted by a party that is not

permitted to e-file and/or in a case that is not subject to

e-filing. See Civil L.R. 5-1(b) for an explanation of cases

and parties subject to e-filing.

(b)

Specific Court Order Required. Except as

provided in Civil L.R. 79-5(c), no document may be filed

under seal (i.e., closed to inspection by the public)

except pursuant to a court order that authorizes the

sealing of the particular document, or portions thereof.

A sealing order may issue only upon a request that

establishes that the document, or portions thereof, are

privileged, protectable as a trade secret or otherwise

entitled to protection under the law (hereinafter

80a

referred to as “sealable”). The request must be

narrowly tailored to seek sealing only of sealable

material, and must conform with Civil L.R. 79-5(d).

(c)

Documents that May Be Filed Under Seal

Before Obtaining a Specific Court Order. Only the

unredacted version of a document sought to be sealed,

may be filed under seal before a sealing order is

obtained, as permitted by Civil L.R. 79-5(d)(1)(D).

(d)

Request to File Document, or Portions

Thereof, Under Seal. A party seeking to file a

document, or portions thereof, under seal (“the

Submitting Party”) must:

(1)

File an Administrative Motion to File Under

Seal, in conformance with Civil L.R. 7-11. The

administrative motion must be accompanied by the

following attachments:

(A) A declaration establishing that the

document sought to be filed under seal, or

portions thereof, are sealable. Reference to a

stipulation or protective order that allows a

party to designate certain documents as

confidential is not sufficient to establish that a

document, or portions thereof, are sealable. The

procedures detailed in Civil L.R. 79-5(e) apply to

requests to seal in which the sole basis for

sealing is that the document(s) at issue were

previously designated as confidential or subject

to a protective order.

(B) A proposed order that is narrowly tailored

to seal only the sealable material, and which

81a

lists in table format each document or portion

thereof that is sought to be sealed.

sought to be filed under seal. The redacted

version shall prominently display the notation

“REDACTED VERSION OF DOCUMENT(S)

SOUGHT TO BE SEALED.” A redacted version

need not be filed if the submitting party is

seeking to file the entire document under seal.

(D) An unredacted version of the document

sought to be filed under seal. The unredacted

version must indicate, by highlighting or other

clear method, the portions of the document that

have been omitted from the redacted version,

and prominently display the notation

“UNREDACTED VERSION OF DOCUMENT(S)

SOUGHT TO BE SEALED.” The unredacted

version may be filed under seal pursuant to Civil

L.R. 79-5(c) before the sealing order is obtained.

Instructions for e-filing documents under seal

can be found on the ECF website.

(2)

Provide a courtesy copy of the administrative

motion, declaration, proposed order, and both the

redacted and unredacted versions of all documents

sought to be sealed, in accordance with Civil L.R.

5-1(e)(7).

The courtesy copy of unredacted declarations and

exhibits should be presented in the same form as if

no sealing order was being sought. In other words,

if a party is seeking to file under seal one or more

exhibits to a declaration, or portions thereof, the

82a

courtesy copy should include the declaration with

all of the exhibits attached, including the exhibits,

or portions thereof, sought to be filed under seal,

with the portions to be sealed highlighted or clearly

noted as subject to a sealing motion.

The courtesy copy should be an exact copy of what

was filed, and for e-filed documents the ECF header

should appear at the top of each page. The courtesy

copy must be contained in a sealed envelope or

other suitable container with a cover sheet affixed

to the envelope or container, setting forth the

information required by Civil L.R. 3-4(a) and

prominently displaying the notation “COURTESY

[or CHAMBERS] COPY - DOCUMENTS

SUBMITTED UNDER SEAL.”

The courtesy copies of sealed documents will be

disposed of in accordance with the assigned judge’s

discretion. Ordinarily these copies will be recycled,

not shredded, unless special arrangements are

made.

(e)

Documents Designated as Confidential or

Subject to a Protective Order. If the Submitting

Party is seeking to file under seal a document

designated as confidential by the opposing party or a

non-party pursuant to a protective order, or a

document containing information so designated by an

opposing party or a non-party, the Submitting Party’s

declaration in support of the Administrative Motion to

File Under Seal must identify the document or portions

thereof which contain the designated confidential

material and identify the party that has designated the

material as confidential (“the Designating Party”). The

83a

declaration must be served on the Designating Party on

the same day it is filed and a proof of such service must

also be filed.

(1)

Within 4 days of the filing of the

Administrative Motion to File Under Seal, the

Designating Party must file a declaration as

required by subsection 79-5(d)(1)(A) establishing

that all of the designated material is sealable.

(2)

If the Designating Party does not file a

responsive declaration as required by subsection

79-5(e)(1) and the Administrative Motion to File

Under Seal is denied, the Submitting Party may file

the document in the public record no earlier than 4

days, and no later than 10 days, after the motion is

denied. A Judge may delay the public docketing of

the document upon a showing of good cause.

(f)

Effect of Court’s Ruling on Administrative

Motion to File Under Seal. Upon the Court’s ruling

on the Administrative Motion to File Under Seal,

further action by the Submitting Party may be

required.

(1)

If the Administrative Motion to File Under

Seal is granted in its entirety, then the document

filed under seal will remain under seal and the

public will have access only to the redacted version,

if any, accompanying the motion.

(2)

If the Administrative Motion to File Under

Seal is denied in its entirety, the document sought

to be sealed will not be considered by the Court

unless the Submitting Party files an unredacted

84a

version of the document within 7 days after the

motion is denied.

(3)

If the Administrative Motion to File Under

Seal is denied or granted in part, the document

sought to be sealed will not be considered by the

Court unless the Submitting Party files a revised

redacted version of the document which comports

with the Court’s order within 7 days after the

motion is denied.

(g)

Effect of Seal. Unless otherwise ordered by the

Court, any document filed under seal shall be kept

from public inspection, including inspection by

attorneys and parties to the action, during the

pendency of the case. Any document filed under seal in

a civil case shall, upon request, be open to public

inspection without further action by the Court 10 years

from the date the case is closed. However, a Submitting

Party or a Designating Party may, upon showing good

cause at the conclusion of a case, seek an order to

extend the sealing to a specific date beyond the 10

years provided by this rule. Nothing in this rule is

intended to affect the normal records disposition policy

of the United States Courts.

N.D. CAL. L.R. 79-5 (2010)

Filing Documents Under Seal.

(a)

Specific Court Order Required. No document

may be filed under seal, i.e., closed to inspection by the

public, except pursuant to a Court order that

authorizes the sealing of the particular document, or

portions thereof. A sealing order may issue only upon

a request that establishes that the document, or

85a

portions thereof, is privileged or protectable as a trade

secret or otherwise entitled to protection under the law,

[hereinafter referred to as “sealable.”] The request

must be narrowly tailored to seek sealing only of

sealable material, and must conform with Civil L.R.

79-5(b) or (c). A stipulation, or a blanket protective

order that allows a party to designate documents as

sealable, will not suffice to allow the filing of

documents under seal. Ordinarily, more than one copy

of a particular document should not be submitted for

filing under seal in a case.

(b)

Request to File Entire Document Under

Seal. Counsel seeking to file an entire document under

seal must:

(1)

File and serve an Administrative Motion to

File Under Seal, in conformance with Civil L.R.

7-11, accompanied by a declaration establishing

that the entire document is sealable;

(2)

Lodge with the Clerk and serve a proposed

order sealing the document;

(3)

Lodge with the Clerk and serve the entire

document, contained in an 8 ½-inch by 11-inch

sealed envelope or other suitable sealed container,

with a cover sheet affixed to the envelope or

container, setting out the information required by

Civil L.R. 3-4(a) and (b) and prominently displaying

the notation: “DOCUMENT SUBMITTED UNDER

SEAL”;

(4)

Lodge with the Clerk for delivery to the

Judge’s chambers a second copy of the entire

86a

document, in an identical labeled envelope or

container.

(c)

Request to File a Portion of a Document

Under Seal. If only a portion of a document is

sealable, counsel seeking to file that portion of the

document under seal must:

(1)

File and serve an Administrative Motion to

File Under Seal, in conformance with Civil L.R.

7-11, accompanied by a declaration establishing

that a portion of the document is sealable;

(2)

Lodge with the Clerk and serve a proposed

order that is narrowly tailored to seal only the

portion of the document which is claimed to be

sealable;

(3)

Lodge with the Clerk and serve the entire

document, contained in an 8 ½-inch by 11-inch

sealed envelope or other suitable sealed container,

with a cover sheet affixed to the envelope or

container, setting out the information required by

Civil L.R. 3-4(a) and (b) and prominently displaying

the notation: “DOCUMENT SUBMITTED UNDER

SEAL.” The sealable portions of the document must

be identified by notations or highlighting within the

text;

(4)

Lodge with the Clerk for delivery to the

Judge’s chambers a second copy of the entire

document, in an identical labeled envelope or

container, with the sealable portions identified;

87a

(5)

Lodge with the Clerk and serve a redacted

version of the document that can be filed in the

public record if the Court grants the sealing order.

(d)

Filing a Document Designated Confidential

by Another Party. If a party wishes to file a

document that has been designated confidential by

another party pursuant to a protective order, or if a

party wishes to refer in a memorandum or other filing

to information so designated by another party, the

submitting party must file and serve an Administrative

Motion for a sealing order and lodge the document,

memorandum or other filing in accordance with this

rule. If only a portion of the document, memorandum

or other filing is sealable, the submitting party must

also lodge with the Court a redacted version of the

document, memorandum or other filing to be placed in

the public record if the Court approves the requested

sealing order. Within 7 days thereafter, the designating

party must file with the Court and serve a declaration

establishing that the designated information is

sealable, and must lodge and serve a narrowly tailored

proposed sealing order, or must withdraw the

designation of confidentiality. If the designating party

does not file its responsive declaration as required by

this subsection, the document or proposed filing will be

made part of the public record.

(e)

Request Denied. If a request to file under seal

is denied in part or in full, neither the lodged document

nor any proposed redacted version will be filed. The

Clerk will notify the submitting party, hold the lodged

document for three days for the submitting party to

retrieve it, and thereafter, if it is not retrieved, dispose

88a

of it. If the request is denied in full, the submitting

party may retain the document and not make it part of

the record in the case, or, within 4 days, re-submit the

document for filing in the public record. If the request

is denied in part and granted in part, the party may

resubmit the document in a manner that conforms to

the Court’s order and this rule.

(f)

Effect of Seal. Unless otherwise ordered by the

Court, any document filed under seal shall be kept

from public inspection, including inspection by

attorneys and parties to the action, during the

pendency of the case. Any document filed under seal in

a civil case shall be open to public inspection without

further action by the Court 10 years from the date the

case is closed. However, a party that submitted

documents that the Court placed under seal in a case

may, upon showing good cause at the conclusion of the

case, seek an order that would continue the seal until

a specific date beyond the 10 years provided by this

rule. Nothing in this rule is intended to affect the

normal records destruction policy of the United States

Courts. The chambers copy of sealed documents will be

disposed of in accordance with the assigned Judge’s

discretion. Ordinarily these copies will be recycled, not

shredded, unless special arrangements are made.

89a

APPENDIX F

Volume 4

Pages 670 - 990

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

BEFORE THE HONORABLE

VAUGHN R. WALKER

NO. C 09-2292-VRW

[Filed: January 15, 2010]

__________________________________________

KRISTIN M. PERRY,

)

SANDRA B. STIER, PAUL T. KATAMI,

)

and JEFFREY J. ZARRILLO,

)

Plaintiffs,

)

VS.

)

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 & )

90a

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, )

)

Defendants.

)

__________________________________________)

San Francisco, California

Thursday

January 14, 2010

TRANSCRIPT OF PROCEEDINGS

Reported By: Katherine Powell Sullivan, CRR,

CSR 5812

Debra L. Pas, CRR, CSR 11916

Official Reporters - U.S. District

Court

APPEARANCES:

For Plaintiffs:

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Avenue, N.W.

Washington, D.C. 20036-5306

BY: THEODORE B. OLSON, ESQUIRE

MATTHEW D. MCGILL, ESQUIRE

91a

GIBSON, DUNN & CRUTCHER LLP

333 South Grand Avenue

Los Angeles, California 90071-3197

BY: THEODORE J. BOUTROUS, JR., ESQUIRE

CHRISTOPHER D. DUSSEAULT, ESQUIRE

GIBSON, DUNN & CRUTCHER LLP

555 Mission Street, Suite 3000

San Francisco, California 94105-2933

BY: ETHAN D. DETTMER, JR., ESQUIRE

ENRIQUE A. MONAGAS, ESQUIRE

SARAH E. PIEPMEIER, ESQUIRE

BOIES, SCHILLER & FLEXNER LLP

333 Main Street

Armonk, New York 10504

BY: DAVID BOIES, ESQUIRE

BOIES, SCHILLER & FLEXNER LLP

575 Lexington Avenue, 7th Floor

New York, New York 10022

BY: JOSHUA I. SCHILLER, ESQUIRE

BOIES, SCHILLER & FLEXNER LLP

1999 Harrison Street, Suite 900

Oakland, California 94612

BY: JEREMY MICHAEL GOLDMAN, ESQUIRE

STEVEN C. HOLTZMAN, ESQUIRE

For Plaintiff-Intervenor:

CITY AND COUNTY OF SAN FRANCISCO

OFFICE OF THE CITY ATTORNEY

One Drive Carlton B. Goodlett Place

San Francisco, California 94102-4682

92a

BY:

THERESE STEWART, DEPUTY

ATTORNEY

DANNY CHOU

CHRISTINE VAN AKEN

RONALD P. FLYNN

MOLLIE M. LEE

DEPUTY CITY ATTORNEYS

CITY

(APPEARANCES CONTINUED ON

FOLLOWING PAGE)

APPEARANCES (CONTINUED):

For Defendant Gov. Schwarzenegger:

MENNEMEIER, GLASSMAN & STROUD

980 9th Street, Suite 1700

Sacramento, California 95814-2736

BY: ANDREW WALTER STROUD, ESQUIRE

For Defendant Edmund G. Brown Jr.:

STATE ATTORNEY GENERAL’S OFFICE

455 Golden Gate Avenue, Suite 11000

San Francisco, California 94102-7004

BY: TAMAR PACHTER, DEPUTY ATTORNEY

GENERAL

STATE OF CALIFORNIA

Department of Justice

Office of the Attorney General

1300 I Street, 17th Floor

Sacramento, California 95814

BY: GORDON BURNS, DEPUTY SOLICITOR

GENERAL

93a

For Defendant-Intervenors:

COOPER & KIRK

1523 New Hampshire Avenue, N.W.

Washington, D.C. 20036

BY: CHARLES J. COOPER, ESQUIRE

DAVID H. THOMPSON, ESQUIRE

HOWARD C. NIELSON, JR., ESQUIRE

NICOLE MOSS, ESQUIRE

PETER A. PATTERSON, ESQUIRE

ALLIANCE DEFENSE FUND

15100 North 90th Street

Scottsdale, Arizona 85260

BY: BRIAN W. RAUM, SENIOR COUNSEL

ALLIANCE DEFENSE FUND

801 G Street NW, Suite 509

Washington, D.C. 20001

BY: JORDAN W. LORENCE, ESQUIRE

For Defendant Dean C. Logan:

OFFICE OF LOS ANGELES COUNTY COUNSEL

500 West Temple Street, Room 652

Los Angeles, California 90012

BY: JUDY WHITEHURST, DEPUTY COUNTY

COUNSEL

(APPEARANCES CONTINUED ON

FOLLOWING PAGE)

94a

APPEARANCES (CONTINUED):

For Defendant Patrick O’Connell:

OFFICE OF ALAMEDA COUNTY COUNSEL

1221 Oak Street, Suite 450

Oakland, California 94612

BY: CLAUDE F. KOLM, DEPUTY COUNTY

COUNSEL

MANUEL MARTINEZ, DEPUTY COUNTY

COUNSEL

For Mr. Garlow, Mr. McPherson:

AMERICAN CENTER FOR LAW & JUSTICE

11 West Chestnut Hill Road

Litchfield, Connecticut 06759

BY: VINCENT P. MCCARTHY, ESQUIRE

____

PROCEEDINGS

JANUARY 14, 2010

8:42 A.M.

THE COURT: Very well. Good morning, Counsel.

(Counsel greet the Court.)

THE COURT: Let’s see. First order of business, I

have communicated to judge -- Chief Judge Kozinski, in

light of the Supreme Court’s decision yesterday, that

I’m requesting that this case be withdrawn from the

Ninth Circuit pilot project. And he indicated that he

would approve that request. And so that should take

care of the broadcasting matter.

95a

And we have motions that have been filed on behalf

of Mr. Garlow and Mr. McPherson. And the clerk

informs me counsel for those parties are here present.

[p. 753]

All right. Shall we take until 15 minutes of the

hour, or 10:45.

MR. COOPER: Your Honor, just before we break,

may I ask one minor housekeeping matter?

THE COURT: Yes.

MR. COOPER: Point of clarification, actually, and

it’s further to your announcement as we opened the

court day, that the Court was asking for withdrawal of

this case from the pilot program.

I just ask the Court for clarification, if I may then

understand that the recording of these proceedings has

been halted, the tape recording itself?

THE COURT: No, that has not been altered.

MR. COOPER: As the Court knows, I’m sure, we

have put in a letter to the Court asking that the

recording of the proceedings be halted.

I do believe that in the light of the stay, that the

court’s local rule would prohibit continued tape

recording of the proceedings.

THE COURT: I don’t believe so. I read your letter.

It does not quote the local rule.

96a

The local rule permits remote -- perhaps if we get

the local rule -MR. BOUTROUS: Your Honor, I have a copy.

THE COURT: Oh, there we go.

(Whereupon, document was tendered to the Court.)

THE COURT: The local rule permits the recording

for purposes the -- of taking the recording for purposes

of use in chambers and that is customarily done when

we have these remote courtrooms or the overflow

courtrooms. And I think it would be quite helpful to me

in preparing the findings of fact to have that recording.

So that’s the purpose for which the recording is

going to be made going forward. But it’s not going to be

for purposes of public broadcasting or televising.

97a

APPENDIX G

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF

CALIFORNIA

No C 09-2292 VRW

[Filed: January 15, 2010]

__________________________________________

KRISTIN M PERRY, SANDRA B STIER,

)

PAUL T KATAMI and JEFFREY J

)

ZARRILLO,

)

Plaintiffs,

)

CITY AND COUNTY OF

)

SAN FRANCISCO,

)

Plaintiff-Intervenor,

)

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

)

98a

California Department of Public Health;

PATRICK O’CONNELL, in his official

capacity as clerk-recorder of the County of

Alameda; and DEAN C LOGAN, in his

official capacity as registrar-recorder/

county clerk for the County of Los Angeles,

)

Defendants,

)

DENNIS HOLLINGSWORTH, GAIL J

)

KNIGHT, MARTIN F GUTIERREZ,

)

HAKSHING WILLIAM TAM, MARK A

)

JANSSON and PROTECTMARRIAGE.COM )

– YES ON 8, A PROJECT OF

)

CALIOFORNIA RENEWAL, as official

)

proponents of Proposition 8,

)

Defendant-Intervenors.

)

__________________________________________)

NOTICE TO PARTIES

In compliance with the Supreme Court’s order in

Hollingsworth v Perry, 558 US --, No 09A648 (January

13, 2010), as noted on the record at trial this date, the

undersigned has formally requested Chief Judge

Kozinski to withdraw this case from the pilot project on

transmitting trial court proceedings to remote federal

courthouse locations or for broadcast or webcast

approved by the Ninth Circuit Judicial Council on

December 17, 2009. Transmission of the proceedings to

other locations solely within the San Francisco

courthouse will continue along with recording for use

in chambers, as permitted in Civ LR 77-3.

99a

/s/ VAUGHN R WALKER

VAUGHN R WALKER

United States District Chief Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.