.

-. ___ .. _____ __ ::...c...._--'--- ___--' __________ .'---_""-_. _______ __ _____. ___________ ____ . ____ . .
Noo ___ _
lrn tEbt
s;upteme of tbe Qintttb
-----+-----
DENNIS HOLLINGSWORTH, et aI.,
Petitioners,
v.
KRISTIN M. PERRY, et aI.,
Respondents.
------+----
On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Ninth Circuit
------+----
PETITION FOR A WRIT OF CERTIORARI
April 8, 2010
------+------
CHARLES J. COOPER
Counsel of Record
MICHAEL W. KIRK
JESSE M. PANUCCIO
COOPER & KIRK, PLLC
1523 New Hampshire Avenue, NW
Washington, D.C. 20036
(202) 220-9600
ccooper@cooperkirk.com
Counsel for Petitioners
COCKLE LAW BRIEF PRINTING CO. (800) 2256964
OR CALL COLLECT (402) 342-2831
09-1238 1
1
QUESTION PRESENTED
After this Court stayed the district court's order
allowing the video recording and public broadcast of
the trial proceedings in this case, the district court
withdrew its order and assured the parties that its
continued recording of the trial proceedings was
solely for use in chambers and not for the purpose of
public dissemination. In light of the apparent
mootness of the controversy, the question presented
,
IS:
Should the Ninth Circuit's decision denying a pe-
tition for a writ of mandamus to halt the district
court's enforcement of its order be vacated and the
case be remanded to the court of appeals with in-
structions to dismiss in accordance with United
States v. Munsingwear, Inc., 340 U.S. 36 (1950)?
11
PARTIES TO THE PROCEEDING BELOW
Petitioners in this Court, Dennis Hollingsworth,
Gail J. Knight, Martin F. Gutierrez, MarkA. Jansson,
and ProtectMarriage.com - Yes on 8, A Project of Cal-
ifornia Renewal are Defendant-Intervenors in the dis-
trict court and were petitioners in the Court of
Appeals for the Ninth Circuit.
The United States District Court for the Northern
District of California (Walker, C.J.) was the nominal
respondent to the proceedings in the Ninth Circuit.
See 9th Cir. R. 21-2.
Respondent William Tam is a Defendant-Intervenor
in the district court and was a respondent in the
Ninth Circuit.
Respondents Kristen M. Perry, Sandra B. Stier,
Paul T. Katami, and Jeffrey J. Zarrillo, are Plaintiffs
in the district court and were respondents in the
Ninth Circuit.
Respondent City and County of San Francisco is
Plaintiff-Intervenor in the district court and was a
respondent in the Ninth Circuit.
Other parties to the proceedings in the district
court and Ninth Circuit, and thus Respondents in
this Court, are Defendants 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
111
PARTIES TO THE
PROCEEDING BELOW - Continued
his official ca paci ty 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 and Stra-
tegic Planning for the California Department of Pub-
lic Health; Patrick O'Connell, in his official capacity
as clerk-recorder of the County of Alameda, Cali-
fornia; and Dean C. Logan, in his official capacity as
Registrar-Recorder and County Clerk for the County
of Los Angeles, California.
CORPORATE DISCLOSURE STATEMENT
No corporations are parties, and there are no
parent companies or publicly held companies owning
any corporation's stock. Petitioner ProtectMarriage.com
is a primarily formed ballot committee under Cali-
fornia law. See CAL. Gov. CODE 82013 & 82047.5.
Its "sponsor" under California law is California Re-
newal, a California nonprofit corporation, recognized
as a public welfare organization under 26 U.S.C.
501(c)(4).
iv
TABLE OF CONTENTS
Page
QUESTION PRESENTED ..................................... 1
PARTIES TO THE PROCEEDING BELOW......... 11
CORPORATE DISCLOSURE STATEMENT ........ 111
TABLE OF AUTHORITIES ................................... VII
OPINIONS AND ORDERS BELOW..................... 1
JURISDICTION ........ ............. ..... ................. .......... 1
CONSTITUTIONAL PROVISION INVOLVED...... 1
STATEMENT ......... ............. ....... ...... ............. .......... 2
REASONS FOR GRANTING THE PETITION..... 10
I. Petitioners' Mandamus Petition Is Moot .... 11
II. The Court Should Vacate the Ninth Cir-
cuit's Order Denying the Mandamus Peti-
tion and Remand for Dismissal.................. 12
CONCLUSION ....................................................... 14
Appendix
Hollingsworth v. United States District Court
for the Northern District of California, No.
10-70063, Order (9th Cir., Jan. 8,2010) ......... App. 1
Perry v. Schwarzenegger, No. 09-2292, Notice
to Parties (N.D. Cal. Jan. 7,2010) .................. App. 2
In the Matter of Pilot District Court Public Ac-
cess Program, No. 2010-2, Order (Jan. 8,
2010) ................................................................. App. 4
v
TABLE OF CONTENTS - Continued
Page
In the Matter of Pilot District Court Public Ac-
cess Program, No. 2010-3, Order (Jan. 15,
2010) ............................................................... App. 5
28 U.S.C. 332 .................................................. App. 6
28 U.S.C. 2071 ................................................ App. 13
N.D. Cal. Civ. R. 77-3 (Dec. 2009) ..................... App. 15
N.D. Cal. Civ. R. 77-3 (Feb. 2010) ..................... App. 16
Letter from Charles J. Cooper to Chief Judge
Walker, Perry v. Schwarzenegger, No. 09-2292
(N.D. Cal. Oct. 5, 2009) .................................. App. 17
Letter from Charles J. Cooper to Chief Judge
Walker, Perry v. Schwarzenegger, No. 09-2292
(N.D. Cal. Jan. 14, 2010) ............................... App. 21
Plaintiffs' and Plaintiff-Intervenor's Amended
Proposed Findings of Fact and Conclusions
of Law, Perry v. Schwarzenegger, No. 09-2292
(Feb. 26, 2010) ............................................. App. 25
Northern District of California, Renewed N 0-
tice Concerning Revision of Civil Local Rule
77-3 (Feb. 4, 2010) ...................................... App. 28
Northern District of California, Perry v.
Schwarzenegger et al. Challenge to "Propo-
sition 8" webpage (Apr. 8,2010) .................... App. 30
Transcript of Proceedings, Perry v. Schwarzenegger,
No. 09-2292 (Jan. 11, 2010) ........................... App. 33
Transcript of Proceedings, Perry v. Schwarzenegger,
No. 09-2292 (Jan. 13, 2010) ........................... App. 37
VI
TABLE OF CONTENTS - Continued
Page
Transcript of Proceedings, Perry v. Schwarzenegger,
No. 09-2292 (Jan. 14,2010) ........................... App. 40
Transcript of Proceedings, Perry v. Schwarzenegger,
No. 09-2292 (Jan. 27,2010) ........................... App. 44
Vll
TABLE OF AUTHORITIES
Page
CASES
Alvarez v. Smith, 130 S. Ct. 576 (2009) ............... 11, 13
Cotlow v. Emison, 502 U.S. 1068 (1992) .................... 12
Hollingsworth v. Perry, 130 S. Ct. 705
(2010) ...................................................... ......... passim
Hollingsworth v. Perry, 130 S. Ct. 1132 (2010) .......... .4
Joint School District No. 241 v. Harris, 515
U.S. 1154 (1995) ...................................................... 13
United States v. Munsingwear, Inc., 340 U.S. 36
(1950) ................................................................. 11, 13
Williams v. Simons, 355 U.S. 49 (1957) ..................... 12
"
. ~ STATUTES
:2
28 U.S.C. 2106 ......................................................... 13
STATE LAw
CAL. CONST. art. I, 7.5 ................................................ 2
1
PETITION FOR A WRIT OF CERTIORARI
Petitioners respectfully petition for a writ of
certiorari to review an order of the United States
Court of Appeals for the Ninth Circuit.
--------+--------
OPINIONS AND ORDERS BELOW
The order of the Ninth Circuit denying the peti-
tion for a writ of mandamus (App. 1) is unreported.
The order of the district court that was the subject of
the mandamus petition (App. 2-3) is also unreported.
--------+--------
JURISDICTION
The Ninth Circuit's order denying the petition for
a writ of mandamus was entered January 8, 2010.
The jurisdiction of this Court is invoked under 28
U.S.C. 1254(1).
--------+--------
CONSTITUTIONAL PROVISION INVOLVED
Article III, 2 of the Constitution of the United
States is as follows:
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 affect-
ing Ambassadors, other public Ministers and
2
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.
--------+--------
STATEMENT
Most of the relevant background of this case may
be found in Hollingsworth v. Perry, 130 S. Ct. 705
(2010) (per curiam). We here repeat that background
only as necessary to provide context for subsequent
events and this petition.
Passed by the voters of California in November
2008, Proposition 8 ("Prop 8") amended the State
constitution to provide that "[o]nly marriage ho1rUT,,,,,:ln
a man and a woman is valid or recognized in C
fornia." CAL. CONST. art. I, 7.5. Four individuals,
spondents here, brought suit in the Northern
of California to challenge Prop 8's
The Governor and Attorney General of
declined to defend Prop 8, and Petitioners were
mitted to intervene as defendants. The district
established a highly expedited trial schedule,
trial set to commence on January 11, 2010.
On September 25,2009, the district court .
the parties of interest in publicly
3
the trial proceedings and asked for their positions.
Hollingsworth, 130 S. Ct. at 708. Respondents sup-
ported the idea, but Petitioners objected, arguing
both that the district court's Local Rule 77-3 specif-
ically banned the public broadcast of court proceed-
ings and that, in any event, public broadcast of this
particular case would fly in the face of the fair-trial
considerations underlying the Judicial Conference's
longstanding and consistent position in opposition to
public broadcast of federal trial proceedings. App. 17-
20; Hollingsworth, 130 S. Ct. at 708.
On December 17, 2009, the Ninth Circuit Ju-
dicial Council issued a press release announcing that
it had approved a "pilot program" for" 'the limited use
of cameras in federal district courts within the
circuit.'" [d. at 708 (quoting press release). The press
release, stated that cases would be selected for par-
ticipation in the program "'by the chief judge of the
district court in consultation with the chief circuit
judge.''' [d. (quoting press release). The district court
then issued "a series of postings on its website ...
purport[ing] to revise or propose revisions to Local
Rule 77-3." [d. at 711; see id. at 708-09 (describing
district court's efforts to amend rule). The amended
rule would have created an exception to the general
ban on recording or broadcasting court proceedings,
"'for participation in a pilot or other project au-
thorized by the Judicial Council of the Ninth Cir-
cuit.''' [d. at 708, 711 (quoting amended Local Rule
77-3).
On January 7, 2010, the district court entered an
order pursuant to amended Local Rule 77-3 asking
4
Ninth Circuit Chief Judge Kozinski to approve "'in-
clusion of th[is] trial in the pilot project.'" Id. at 709
(quoting order); see App. 3. The next day, Chief Judge
Kozinski issued an order approving the district
court's request to publicly broadcast the trial
proceedings to certain other federal courthouses, but
he deferred ruling on the request to disseminate the
trial proceedings on the Internet until "technical
difficulties were resolved." Hollingsworth, 130 S. Ct.
at 709; see App. 4.
Also on January 8, Petitioners moved the district
court for a stay of its order and petitioned the Ninth
Circuit for a writ of mandamus prohibiting the
district court from enforcing its January 7 broadcast
order. Id. The district court never ruled on the stay
motion, but the Ninth Circuit denied the mandamus
petition that evening. Id.; App. l.
On Saturday, January 9, Petitioners filed in this
Court an application for a stay of the district court's
broadcast order pending resolution of a forthcoming
petition for a writ of certiorari or mandamus. On the
morning of Monday, January 11, just before com-
mencement of the trial, the Court "ordered that
the [district court's] order ... permitting real-time
streaming is stayed except as it permits streaming to
other rooms within the confines of the courthouse in
which the trial is to be held" and that "[a]ny addi-
tional order permitting broadcast of the proceedings
is also stayed." Order, Hollingsworth v. Perry, 130
S. Ct. 1132 (2010). The Court noted that, "[t]o permit
5
further consideration in this Court, this order will
remain in effect until Wednesday, January 13." [d.
At the opening of trial later that morning, Re-
spondents asked the district court to videotape the
proceedings for the purpose of later public dissemi-
nation "in the event the stay is lifted." App. 34-35.
The district court accepted Plaintiffs' proposal over
Petitioners' objection that recording the proceedings
was not "consistent with the spirit of' the temporary
stay issued by this Court. App. 35-36.
On January 13, this Court "grant[ed] the applica-
tion for a stay of the District Court's order of January
7, 2010, pending the timely filing and disposition of
a petition for a writ of certiorari or the filing and
disposition of a petition for a writ of mandamus."
Hollingsworth, 130 S. Ct. at 715. The Court found
that the "amended version of Local Rule 77-3 appears
to be invalid [because] the District Court failed to
'give appropriate public notice and an opportunity for
comment,' as required by federal law." [d. at 711
(quoting 28 U.S.C. 2071(b)). Recognizing that public
broadcast may have a chilling effect not only on
witnesses' testimony, but also on witnesses' willing-
ness "to cooperate in any future proceedings," the
Court determined that "irreparable harm will likely
result from the denial of the stay." [d. at 712-13.
The Court also emphasized that a stay was
necessary to vindicate its supervisory "interest in
ensuring compliance with proper rules of judicial ad-
ministration[, which] is particularly acute when those
6
rules relate to the integrity of judicial processes." [d.
at 713. The Court determined that that interest was
jeopardized by the district court's "attempt[] to revise
its rules in haste, contrary to federal statutes and the
policy of the Judicial Conference of the United
States[, in order] to allow broadcasting of this high-
profile trial without any considered standards or
guidelines in place." [d. "[T]he lack of a regular rule
wi th proper standards to determine the guidelines for
broadcasting," the Court explained, "could compro-
mise the orderly, decorous, rational traditions that
courts rely upon to ensure the integrity of their own
judgments." [d. at 713-14.
Finally, the Court observed that, even if Local
Rule 77-3 "had been validly revised, questions would
still remain about the District Court's decision to
allow broadcasting of this particular trial." [d. at 714.
Given the "high-profile" nature of the case and the
"intense debate in our society" over the issues to be
tried, the Court found that "[t]his case is . . . not.a
good one for a pilot program." [d. at 714. The Court,
however, declined to "address other aspects of [the
district court's] order, such as those related to the
broadcast of court proceedings on the Internet, as this
may be premature" in light of Chief Judge Kozinski's
deferral of that issue. [d. at 709.
During the trial later that afternoon, the district
court noted that "the Supreme Court has given us
some guidance with respect to part of the issue" of
broadcasting the proceedings. App. 38. Finding the
Court's guidance "to be ... rather limited," however,
7
the district court stated that "we may have issues
beyond remote access to these proceedings by other
courthouses." App. 38. The district court suggested
"that we put that issue to the side for the time being
and proceed with the trial," but emphasized that
"we'll have to deal with [that] issue[] in due time."
App.38-39.
On January 14, Petitioners filed a letter with the
district court "request[ing] that the [District] Court
halt any further recording of the proceedings in this
case, and delete any recordings of the proceedings to
date that have previously been made." App. 21.
Petitioners explained that, because of this Court's
ruling on their stay application, the proceedings were
governed by the unamended version of Local Rule 77-
3, which" 'banned the recording or broadcast of court
proceedings.'" App. 22-23 (quoting and emphasizing
Hollingsworth, 130 S. Ct. at 708).
A few hours later, the district court opened that
day's trial proceedings by reporting that, "in light of
the Supreme Court's decision yesterday, . .. [it was]
requesting that this case be withdrawn from the
Ninth Circuit pilot project," and that Chief Judge
Kozinski had "indicated that he would approve that
request." App. 41. "And so," the district court summed
up, "that should take care of the broadcasting
matter." App. 41.
Petitioners then asked the district court "for
clarification ... that the recording of these proceedings
has been halted, the tape recording itself." App. 41-42.
8
When the district court clarified that the recording
"has not been altered," Petitioners reiterated their
contention (made in their letter submitted earlier
that morning) that, "in light of the stay, ... the
court's local rule ... prohibit[s] continued tape
recording of the proceedings." App. 42 (emphasis
added). Rejecting Petitioners' objection, the district
court stated that the unamended "local rule permits
. .. recording for purposes of use in chambers and
that is customarily done when we have these remote
courtrooms or the overflow courtrooms." App. 42. The
district court added that the recording "would be
quite helpful to [it] in preparing the findings of fact."
App. 42. The district court concluded, "[T]hat'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." App. 43 (emphasis
added). The district court then repeated its position to
make unmistakably clear the limited, private use to
which it intended to put the recordings: after noting
that "the [unamended] local rule[] [prohibits] '[t]he
taking of photographs, public broadcasting or
televising, or recording for those purposes,'" the
district court stated: "So the recording is not being
made for those purposes, but simply for use in
chambers." App. 43 (emphasis added). In reliance on
the district court's assurances that its sole purpose
for continuing to record the proceedings was for its
private use in chambers, Petitioners took no action to
enforce this Court's stay or Local Rule 77-3.
9
On January 15, the district court formally "with-
drew [its] previous request to include Perry et. al. v.
Schwarzenegger et. al. in the Ninth Circuit's pilot
program permitting broadcasting of district court
proceedings in limited circumstances." App. 30. Chief
Judge Kozinski promptly granted the district court's
request "to remove Perry v. Schwarzenegger, No. 3:09-
cv-02292-VRW, from thee] pilot program" and "re-
scinded" his January 8 order designating this case for
the pilot program. App. 5.
The district court then withdrew the amendment
to Local Rule 77-3 authorizing participation in the
pilot program. Compare App. 16 (showing Local Rule
77-3 without amendment as of February 2010), with
App. 15 (showing Local Rule 77-3 as amended in
December 2009). On February 4, the district court
proposed again its original amendment to Local Rule
77-3 and invited comments on the proposed
amendment until March 4. App. 28-29. The renewed
proposed amendment to Local Rule 77-3 has not been
made effective.
On January 27, the trial was adjourned. App. 47.
The district court ordered the parties to submit
proposed findings of fact and conclusions of law by
February 26, and indicated that, after having an
opportunity to consider those proposals, it would "set
a date for closing argument." App. 45-46. The parties
have now timely filed their proposed findings of fact
and conclusions of law. But the parties are continuing
to litigate over the district court's order compelling
certain third-party organizations that campaigned
10
against passage of Prop 8 to produce to Petitioners
certain internal campaign communications and other
information. See Petition for a Writ of Certiorari,
Hollingsworth v. Perry, No. 09-1210 (filed Apr. 5,2010).
The Ninth Circuit has issued an emergency stay of
the district court's production order. See id. at 18-19.
Closing argument has thus not yet been calendared.
On or shortly before March 2, 2010, the district
court posted on its website a response to "[c]ertain
recent articles [that] have reported incorrect informa-
tion about possible broadcasting of closing arguments
in" this case. App. 30. The district court's posting
stated: "Broadcasting closing arguments would re-
quire Chief Judge Walker to request that these argu-
ments be included in the Ninth Circuit's pilot
program and approval of that request by Chief Judge
Kozinski. No such request has been made." App. 30.
--------+--------
REASONS FOR GRANTING THE PETITION
The Ninth Circuit denied Petitioners' request for
a writ of mandamus to halt the district court's en-
forcement of its January 7 order allowing audio-video
recording and public broadcast of the trial proceed-
ings. This Court stayed the district court's broadcast
order pending the filing and disposition of the instant
petition, but actions by the district court since then
appear to have rendered the mandamus petition
moot. The Court, therefore, should grant this petition
for a writ of certiorari, vacate the Ninth Circuit's
11
order denying the mandamus petition, and remand to
the Ninth Circuit with instructions to dismiss the
mandamus petition. See United States v. Munsing-
wear, Inc., 340 U.S. 36 (1950).
I. Petitioners' Mandamus Petition Is Moot
An "actual controversy must be extant at all
stages of review." Alvarez v. Smith, 130 S. Ct. 576,
580 (2009) (quotation marks omitted). Where there
had been but "no longer [is] any actual controversy
between the parties," the case is moot. See id. at 580-
81. The district court's actions subsequent to the
Court's issuance of the stay appear to have
eliminated the controversy underlying Petitioners'
j mandamus petition and thus to have rendered that
il petition moot.
~ j
I The district court has withdrawn its January
7 order allowing audio-video recording and public
broadcast of the trial proceedings and, concomitantly,
Chief Judge Kozinski has rescinded his order ap-
proving the district court's broadcast order. The dis-
trict court has also withdrawn the amendment to
Local Rule 77-3 that purportedly authorized its broad-
cast order. Most importantly, the district court re-
peatedly and unequivocally assured Petitioners that
its continued recording of the trial proceedings was
not for the purpose of public dissemination, but rather
solely for that court's use in chambers. And the
district court has stated that it has not requested
12
authorization to publicly broadcast the closing
argument.
As a result of these post-stay actions by the dis-
trict court, Petitioners have, in effect, obtained the re-
lief they sought through their mandamus petition;
namely, preventing the district court from enforcing
its order to allow the trial proceedings to be broadcast
publicly or to be recorded for later public dissem-
ination. Indeed, Plaintiffs themselves have acknowl-
edged the "fact that these proceedings would not be
broadcast to the public in any form" after the district
court "withdrew its request to broadcast the pro-
ceedings to other federal courthouses and made clear
that no such broadcast would take place." App. 26-27.
Petitioners' mandamus petition, therefore, appears
to be moot. See Williams v. Simons, 355 U.S. 49, 57
(1957) ("By vacating the temporary restraining order
and dismissing the complaint, the District Court has
brought to pass one alternative of the order peti-
tioners would have this Court issue, thus rendering
the petition for all practical purposes moot."); Cotlow
v. Emison, 502 U.S. 1068 (1992) ("The order of Janu-
ary 10, 1992, having vacated the order from which the
appeal is taken, the appeal is dismissed as moot.").
II. The Court Should Vacate the Ninth Cir-
cuit's Order Denying the Mandamus Peti-
tion and Remand for Dismissal
"The established practice of the Court in dealing
with a civil case from a court in the federal system
13
which has become moot while on its way here or
pending [the Court's] decision on the merits is to
reverse or vacate the judgment below and remand
with a direction to dismiss." Munsingwear, 340 U.S.
at 39; see also Alvarez, 130 S. Ct. at 581; 28 U.S.C.
2106. Because Petitioners did not "cause[J the
mootness by voluntary action," the Court "should
follow [its] ordinary practice" in this case: vacate the
Ninth Circuit's order denying the mandamus petition
and remand to the Ninth Circuit with instructions to
dismiss the mandamus petition as moot. Alvarez, 130
S. Ct. at 582-83 (quotation marks omitted); see also,
e.g., Joint Sch. Dist. No. 241 v. Harris, 515 U.S. 1154,
1155 (1995) ("The petitions for writs of certiorari are
granted. The judgment is vacated and the cases are
remanded to the United States Court of Appeals for
the Ninth Circuit with directions to dismiss as
moot.") (citing Munsingwear).
--------+--------
14
CONCLUSION
For the foregoing reasons, Petitioners respect-
fully request that the Court grant this petition for a
writ for certiorari, vacate the order of the Ninth Cir-
cuit denying their petition for a writ of mandamus,
and remand to the Ninth Circuit with instructions to
dismiss the mandamus petition as moot.
AprilS, 2010 Respectfully submitted,
CHARLES J. COOPER
Counsel of Record
MICHAEL W. KIRK
JESSE M. PANUCCIO
COOPER & KIRK, PLLC
1523 New Hampshire Avenue, NW
Washington, D.C. 20036
(202) 220-9600
ccooper@cooperkirk.com
Counsel for Petitioners