Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
NO. 10-16696
On Appeal from United States District Court for the Northern District of California
Civil Case No. 09-CV-2292 JW (Honorable James Ware)
TABLE OF CONTENTS
Page
INTRODUCTION .....................................................................................................1
STATEMENT ............................................................................................................3
ARGUMENT ...........................................................................................................13
II. THE COURT SHOULD ORDER THE IMMEDIATE RETURN OF ALL COPIES
OF THE TRIAL RECORDINGS ............................................................................18
CONCLUSION........................................................................................................20
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EXHIBITS
Exhibit 11 - Order 2010-3 (9th Cir. Judicial Council Jan. 15, 2010)
(Kozinski, C.J.)
ii
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Exhibit 30 - Order, Hollingsworth v. United States Dist. Ct. (S. Ct. Oct. 4,
2010)
Exhibit 31 - Order, Hollingsworth v. United States Dist. Ct. (9th Cir. Oct.
15, 2010)
iii
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TABLE OF AUTHORITIES
Cases Page
Hollingsworth v. Perry,
130 S. Ct. 705 (2010)...............................................................2, 4-7, 9, 11, 17-18
Hollingsworth v. Perry,
130 S. Ct. 1132 (2010)..........................................................................................6
In re Charge of Judicial Misconduct,
91 F.3d 90 (9th Cir. Judicial Council 1996) .........................................................3
In re Complaint Against District Judge Joe Billy McDade,
No. 07-09-90083 (7th Cir. Sept. 28, 2009)...............................................2, 14, 17
In re Sony BMG Music Entm’t.,
564 F.3d 1 (1st Cir. 2009)...................................................................................17
Matter of Sealed Affidavit(s),
600 F.2d 1256 (9th Cir. 1979) ............................................................................18
Nixon v. Warner Commc’ns, Inc.,
435 U.S. 589 (1978)............................................................................................18
United States v. Lang,
364 F.3d 1210 (10th Cir. 2004) ..........................................................................15
United States v. New York Tel. Co.,
434 U.S. 159 (1977)............................................................................................20
United States v. Nixon,
417 U.S. 960 (1974)............................................................................................16
iv
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Other
http://www.c-spanvideo.org/program/Vaugh ............................................ 1, 5, 12-13
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order that former district judge Vaughn Walker cease further disclosures of the
video recordings of the trial proceedings in this case, or any portion thereof, and
that all copies of the trial recordings in the possession, custody, or control of any
party to this case or of former judge Walker be returned promptly to the Court and
INTRODUCTION
examination of one of Proponents’ expert witnesses in the trial of this case. The
testimony, Judge Walker (1) violated his own order placing the video recording of
the trial under seal; (2) ignored the clear terms of the district court’s Local Rule 77-
1
Counsel for both Appellees oppose this motion. As indicated in the
Certificate of Service, a copy of this motion has been served upon former judge
Walker.
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“the confines of the courthouse”; (3) contravened the longstanding policies of the
Judicial Conference of the United States and the Judicial Council of this Court
prohibiting public broadcast of trial proceedings; and (4) defied the United States
Supreme Court’s prior decision in this case ruling that an earlier attempt by then-
Chief Judge Walker to publicly broadcast the trial proceedings “complied neither
with existing rules or policies nor the required procedures for amending them.”
Hollingsworth v. Perry, 130 S. Ct. 705, 713 (2010). Thus, Judge Walker
the business of the courts.’” In re Complaint Against District Judge Joe Billy
McDade, No. 07-09-90083 (7th Cir. Sept. 28, 2009) (Easterbrook, C.J.) (quoting
28 U.S.C. § 351(a)).
But even more regrettable, perhaps, than all of this is the fact that Judge
Walker’s use of the trial recording repudiated his own solemn commitment to
Proponents in open court that, despite Proponents’ objection, the trial was being
video recorded “simply for [his] use in chambers,” because it “would be quite
the trial. One of Proponents’ expert witnesses also relied on this assurance,
deciding to testify after then-Chief Judge Walker had made clear that the trial
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recording would not be broadcast. Now a portion of his testimony has appeared on
dissemination of it, cannot be undone, and given that Judge Walker has recently
Judicial Misconduct, 91 F.3d 90, 91 (9th Cir. Judicial Council 1996). But he can
recordings, or any portion thereof, and to return to this Court any copies of the trial
copies of the trial recordings, which were provided to them by then-Chief Judge
Walker for their use in closing argument below and in the appeal to this Court.
Putting aside that providing copies of the trial recordings to Appellees also violated
Local Rule 77-3, the policies of the Judicial Conference and this Court’s Judicial
Council, and then-Chief Judge Walker’s assurances in open court, the purpose for
which they were provided has now been fulfilled, and Appellees’ continued
STATEMENT
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Perry, 130 S. Ct. 705, 711 (2010); see also Ex. 2 at 54. This policy, which remains
trial proceedings. Ex. 3 at 1; see also Hollingsworth, 130 S. Ct. at 711-12; Ex. 4 at
Congress its conclusion that the “negative [e]ffects of cameras in trial court
Also in 1996, the Ninth Circuit Judicial Council “voted to adopt the policy
of the Judicial Conference of the United States regarding the use of cameras in the
courts.” Ex. 5. The Council’s policy thus provided: “The taking of photographs
and radio and television coverage of court proceedings in the United States district
courts is prohibited.” Id. “[T]his policy [was] … binding on all courts within the
Ninth Circuit.” Id. Accordingly, the Northern District of California adopted Local
at 711 (quoting Local Rule 77-3); see also id. at 707 (Local Rule 77-3 “forbid[s]
the broadcasting of trials outside the courthouse in which a trial takes place”); Ex.
6.
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rules and policies prohibiting the broadcast of trial proceedings. Indeed, his
February 18 speech was entitled “Shooting the Messenger: How Cameras in the
advocacy was no less fervent from the bench in this case. His determined effort,
while Chief Judge, to broadcast the trial of this case, and the unlawful procedural
irregularities that it occasioned, are recounted in detail in the Supreme Court’s stay
opinion, which put a stop to that effort. See Hollingsworth, 130 S. Ct. at 708-09,
District Court here attempted to revise its rules in haste, contrary to federal statutes
and the policy of the Judicial Conference of the United States. It did so to allow
guidelines in place. … [T]he order in question complied neither with existing rules
or policies nor the required procedures for amending them.” Id. at 713.
The Supreme Court was especially concerned about the effect on witnesses.
controversial cases, the Court concluded that this “high-profile,” highly divisive
“case is … not a good one for a pilot program.” Id. at 712, 714-15. Indeed, the
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Court emphasized that “[s]ome of [Proponents’] witnesses have already said that
they will not testify if the trial is broadcast, and they have substantiated their
concerns by citing incidents of past harassment.” Id. at 713. Thus, because public
broadcast could have a chilling effect on witnesses’ testimony and their willingness
“to cooperate in any future proceedings,” the Supreme Court determined that
“irreparable harm will likely result from the denial of the stay.” Id. at 712-13.
the trial, the Supreme Court entered a temporary emergency stay, “order[ing] that
except as it permits streaming to other rooms within the confines of the courthouse
in which trial is to be held” and that “[a]ny additional order permitting broadcast of
the proceedings is also stayed.” Hollingsworth v. Perry, 130 S. Ct. 1132 (2010).
The temporary stay on its face was set to expire on Wednesday, January 13, when
At the opening of trial later that morning, Appellees asked Chief Judge
Walker to continue video recording the proceedings for the purpose of later public
dissemination “in the event the stay is lifted” on January 13. Ex. 7 at 15:9. Chief
recording the proceedings was not “consistent with the spirit of” the temporary
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Far from lifting the stay, on January 13, the Supreme Court instead
“grant[ed] the application 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
that the Supreme Court’s “guidance” with respect to the issue of broadcasting the
proceedings was “rather limited.” Ex. 8 at 662:18-20. Early the next day,
Proponents filed a letter with the district court “request[ing] that [Chief Judge
Walker] halt any further recording of the proceedings in this case, and delete any
recordings of the proceedings to date that have previously been made.” Ex. 9 at 1.
Proponents explained that, because of the Supreme Court’s ruling on their stay
Rule 77-3, which “‘banned the recording or broadcast of court proceedings.’” Id.
A few hours later, Chief Judge Walker opened that day’s proceedings by
reporting that, “in light of the Supreme Court’s decision yesterday, … [he was]
requesting that this case be withdrawn from the Ninth Circuit pilot project.” Ex. 1
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at 674:7-10. Proponents then asked “for clarification … that the recording of these
proceedings has been halted, the tape recording itself.” Id. at 753:22-24. When
Chief Judge Walker responded that the recording “ha[d] not been altered,”
Proponents reiterated their contention (made in their letter submitted earlier that
morning) that, “in light of the stay, … the court’s local rule … prohibit[s]
added).
unamended “local rule permits … recording for purposes of use in chambers and
that is customarily done when we have these remote courtrooms or the overflow
courtrooms,” and that that the recording “would be quite helpful to [him] in
preparing the findings of fact.” Id. at 754:15-19. Thus, Chief Judge Walker said
that “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.” Id. at
754:21-23 (emphasis added). Chief Judge Walker then repeated his position that
he was making the recordings only for limited, private use: after noting that “the
stated: “So the recording is not being made for those purposes, but simply for use
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Walker’s assurances that he was recording the proceedings solely for his personal
Kozinski to withdraw this case from the pilot project.” Ex. 10 at 2. Chief Judge
Kozinski promptly granted Chief Judge Walker’s request and “rescinded” his
January 8 order designating this case for the pilot program. Ex. 11.
The district court then withdrew the amendment to Local Rule 77-3
authorizing participation in the pilot program. See Ex. 12 (showing Local Rule 77-
3 without amendment). Despite the Supreme Court’s criticism that the amendment
court re-proposed its amendment to Local Rule 77-3 on February 4, 2010. Ex. 13.
After a comment period, the renewed proposal to amend Local Rule 77-3 lay
dormant until May 2010, when the district court – without any announcement or
indication on its website – published a revised set of Local Rules, effective April
20, containing the amended Local Rule 77-3. See Ex. 14-16.
On January 27, trial was adjourned. Closing argument was then set for June
16, 2010. On May 18, 2010, the Media Coalition requested that Chief Judge
Walker “formally ask Chief Judge Kozinski to again include this case in the pilot
project approved by the Ninth Circuit Judicial Council on December 17, 2009, for
the sole purpose of recording, broadcasting and webcasting” the closing argument
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portion of the trial. Ex. 17. Proponents submitted a letter opposing the request,
explaining that it would violate the stay entered by the Supreme Court. Ex. 18.
While the Media Coalition’s request was pending, and although Chief Judge
proceedings solely for his own use in chambers, Chief Judge Walker sua sponte
invited the parties “to use portions of the trial recording during closing arguments”
and, to that end, made “a copy of the video … available to the part[ies].” Ex. 19.
strictly confidential any copy of the video pursuant to paragraph 7.3 of the
protective order,” id., which restricts “highly confidential” material to the parties’
outside counsel and experts and to the Court and its personnel, Ex. 20 ¶ 7.3.
Appellees Perry et al. requested and were given a copy of the recording of
the entire trial proceedings, see Ex. 21, portions of which they played during
closing argument, see Ex. 22 at 2961. Appellee City and County of San Francisco
requested and was given portions of the trial recording, see Ex. 23, but did not play
them during closing argument. Chief Judge Walker denied the Media Coalition’s
request to “record[], broadcast[] and webcast[] closing arguments.” See Ex. 24.
return all copies of the trial recordings in their possession to the district court. Ex.
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[Appellees] to return to the Court immediately all copies of the trial video in their
copies of the trial video” given that “the sole purpose identified by [Chief Judge
Walker] for disseminating copies of the trial video to [them] – potential use at
closing argument – ha[d] been satisfied.” Id. at 1-2. Proponents added: “[E]ven
with [Chief Judge Walker’s] requirement that all copies of the trial video be
beyond the confines of the Court has increased the possibility of accidental public
disclosure,” and thus of the “‘irreparable harm’” that the Supreme Court
acknowledged would “‘likely result’ from public broadcast of the trial.” Id. at 2
judgment is entered, the parties and the Court [should] evaluate whether, and to
what degree, the trial recording would be useful to the parties or to the Court in
“DIRECTED” the district court clerk “to file the trial recording under seal as part
of the record,” and permitted Appellees to “retain their copies of the trial recording
pursuant to the terms of the protective order.” Id. at 4. After Proponents then
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appealed Chief Judge Walker’s final judgment, the district court clerk transmitted
the certified record to this Court on October 22, 2010. Since then, the trial
to grant review of this Court’s earlier ruling denying their mandamus petition
the trial proceedings. Proponents argued that, in light of Chief Judge Walker’s
withdrawal of his stayed broadcast order and his “unequivocal[] assur[ances] that
[his] continued recording of the trial proceedings was not for the purpose of public
dissemination, but rather solely for [his] use in chambers,” this Court’s order
Appellees opposed vacatur of this Court’s order. On October 4, 2010, the Supreme
Court granted the petition, vacated this Court’s mandamus ruling, and “remanded
to [this Court] with instructions to dismiss the case as moot,” Ex. 30, which this
end of December 2010, gave his speech at the University of Arizona. See
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concerned this case. See id., video at 4:40-8:08, 30:49-42:00. At one point, Judge
Walker played for his audience, on a large projection screen, an excerpt from the
See id., video at 33:12-36:52. Ten days later, on February 28, 2011, Judge Walker
At least four times in late March 2011, C-SPAN broadcast Judge Walker’s
Arizona speech, including the playback of the trial proceedings. See http://www.c-
Walker’s speech – and of the fact that he publicly showed a portion of the trial
recordings during the speech – as a result of one of those broadcasts. C-SPAN also
made its broadcast of Judge Walker’s speech available for public viewing on its
ARGUMENT
The video recordings of the trial in this case may not lawfully be shown
The trial recordings remain under seal; then-Chief Judge Walker’s unequivocal
assurances that the trial recordings were only for his use in chambers remain on the
record; the Supreme Court’s decision in this case – if not its stay, which might well
still be in force but for those assurances – and the duly enacted rules of the Judicial
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Council and the district court remain binding and plainly bar public dissemination
of the trial recordings beyond the confines of the courthouse; and the considered
The trial recordings were not the personal property of Judge Walker, for him
to use as he pleased; he had access to them only by virtue of his role as the judicial
officer presiding in this case. So, when he played a portion of the trial recordings
against a district judge who “allowed video recording and live broadcasting … of a
civil proceeding”: A district court “judge who contravenes policies adopted by the
Judicial Conference and the Judicial Council has ‘engaged in conduct prejudicial to
Complaint Against District Judge Joe Billy McDade, No. 07-09-90083 (quoting 28
U.S.C. § 351(a)).
The setting for Judge Walker’s public dissemination of the trial recordings –
a speech outside the performance of his official duties – did not exempt him from
any of these prohibitions. Rather, he was obligated to “respect and comply with
the law and [to] act at all times in a manner that promotes public confidence in the
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integrity and impartiality of the judiciary.” Code of Conduct for United States
Judges, Canon 2A; see also Ninth Circuit Rules of Judicial Conduct art. I, § 3(h)(2)
lowering of public confidence in the courts among reasonable people”); cf. United
States v. Lang, 364 F.3d 1210, 1212, 1221-22 (10th Cir. 2004) (court clerk who
vacated on other grounds, 543 U.S. 1108 (2005), reinstated in relevant part, 405
again, as well as to restore public confidence in the judiciary, this Court should
exercise its inherent power to control the record of this case by ordering that
former district judge Walker cease further disclosures of the trial recordings, or any
portion thereof, and that all copies of the trial recordings that are in the possession,
custody, or control of any party to this case or of former judge Walker be returned
promptly to the Court and held by the court clerk under seal.
trial recording under seal as part of the record.” Ex. 28 at 4. Since then, the trial
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recordings have remained continuously under seal. See Circuit Advisory Comm.
Note to R. 27-13 (“Absent an order to the contrary, any portion of the district court
… record that was sealed below shall remain under seal upon transmittal to this
court.”). The purpose of the seal is to preserve the confidentiality of the sealed
record. See United States v. Nixon, 417 U.S. 960, 960-61 (1974).
Although the Supreme Court had just stayed his broadcast order, then-Chief
Judge Walker insisted on recording the trial proceedings anyway. In doing so over
Proponents’ objection, Chief Judge Walker assured Proponents on the record that
televising,” but rather “simply for use in chambers.” Ex. 1 at 754:22-23, 755:3-4
took no further action to prevent him from recording the trial proceedings. One of
Proponents’ witnesses also relied on those assurances, and now the recording of a
portion of his testimony has been shown by Judge Walker to a large public
C. The Supreme Court’s Stay, the Judicial Council’s Policy, and the
District Court’s Local Rule Prohibit Showing the Trial
Recordings Beyond the Confines of the Courthouse
The Supreme Court ruled that then-Chief Judge Walker’s order authorizing
“the broadcast of [this] federal trial” did not comply with “existing rules or
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policies.” Hollingsworth, 130 S. Ct. at 706, 713. True, the Supreme Court’s stay
later expired when the Court granted Proponents’ petition for certiorari and vacated
this Court’s ruling denying Proponents’ earlier mandamus petition. But the
certiorari petition, and thus the Supreme Court’s disposition thereof, were
predicated on the fact that the mandamus petition was moot in light of Chief Judge
Walker’s unequivocal assurances that the trial recordings were solely for his use in
chambers. But for those assurances, the recording of the trial would plainly have
violated the Supreme Court’s stay and would surely have been halted.
The “rules” and “policies” enforced by the Supreme Court’s stay were those
governing the issue in this Circuit and the district court. The long-standing policy
of the Ninth Circuit Judicial Council still prohibits the “taking of photographs and
radio and television coverage of court proceedings in the United States district
courts.” Ex. 5. This policy is binding on all judges within the Ninth Circuit. 28
U.S.C. § 332(d)(2); see In re Complaint Against District Judge Joe Billy McDade,
No. 07-09-90083; In re Sony BMG Music Entm’t., 564 F.3d 1, 7-9 (1st Cir. 2009).2
Likewise, the district court’s Local Rule 77-3 still “prohibit[s] the streaming
2
The Council purported to “amend” its policy to authorize a pilot program
for broadcasting trial proceedings. Even if that amendment were validly adopted,
but see Hollingsworth, 130 S. Ct. at 708, 713-14 (noting lack of statutorily required
“notice and comment procedures” and lack of “considered standards or guidelines
… for broadcasting”), the Council’s policy would still bar Judge Walker’s public
dissemination of the trial recordings beyond the confines of the courthouse because
this case was not part of the pilot program.
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beyond ‘the confines of the courthouse.’” Hollingsworth, 130 S. Ct. at 711. That
“rule[] ha[s] the force of law.” Id. at 710 (quotation marks omitted).3
Finally, the policy of the Judicial Conference of the United States, which is
“at the very least entitled to respectful consideration,” strongly counsels against
public dissemination of the trial recordings beyond the confines of the courthouse.
II. THE COURT SHOULD ORDER THE IMMEDIATE RETURN OF ALL COPIES OF
THE TRIAL RECORDINGS
This Court “has supervisory power over its own records and files, and access
[may be] denied where court files might have become a vehicle for improper
purposes.” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978); Matter of
3
To be sure, the district court again purported to amend Local Rule 77-3 in
April or May 2010 to “create[] an … exception to Rule 77-3’s general ban on the
broadcasting of court proceedings ‘for participation in a pilot or other project
authorized by the Judicial Council of the Ninth Circuit.’” Hollingsworth, 130 S.
Ct. at 711. But even if the amendment were valid, but see id. at 708, 713-14
(noting lack of “considered standards or guidelines … for broadcasting”), the rule
would still bar public dissemination of these trial recordings beyond the confines
of the courthouse because this case was not, and could not have been, designated
for inclusion in the pilot program after the renewed amendment to Local Rule 77-3
was adopted. The only order designating the case for a pilot program was
withdrawn long before that amendment was adopted. Ex. 10-11.
4
In September 2010, the Conference announced a “pilot project to evaluate
the effect of cameras in district court courtrooms, of video recordings of
proceedings therein, and of publication of such video recordings.” Ex. 33 at 11.
This pilot project would not have authorized broadcast of the trial proceedings here
because it requires the “consent” of the “[p]arties.” Id. at 12.
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Sealed Affidavit(s), 600 F.2d 1256, 1257 (9th Cir. 1979) (“courts have inherent
the courts within certain constitutional and other limitations”); see also Circuit R.
27-13(d). The record in this case, which includes the trial recordings, is now
before this Court, having been transmitted by the district court clerk.
explained then, “even with [Chief Judge Walker’s] requirement that all copies of
the trial video be ‘maintain[ed] as strictly confidential,’” the “dissemination [of the
trial recordings] beyond the confines of the Court” would unduly increase the risk
Proponents’ request, but his subsequent use of the trial recordings during his
Arizona speech proves that Proponents’ concern was well founded. Neither the
seal, nor Chief Judge Walker’s commitment in open court to use the recordings
only in chambers, nor the Supreme Court’s decision staying his broadcast order,
nor the policy of the Ninth Circuit Judicial Council, nor the district court’s local
rule, nor the policy of the Judicial Conference of the United States prevented him
from publicly showing the trial recordings beyond the confines of the courthouse.
Former judge Walker should therefore be ordered to return to this Court all copies
of the trial recordings and to cease any further use of any portion thereof. See
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United States v. New York Tel. Co., 434 U.S. 159, 174 (1977) (“The power
persons who, though not parties to the original action or engaged in wrongdoing,
administration of justice, and encompasses even those who have not taken any
And now that the trial is over and the appeal has been briefed and argued to
this Court, there is no legitimate reason for Appellees to continue to have a copy of
the trial recordings. They too, therefore, should be ordered to return them to
CONCLUSION
For the foregoing reasons, the Court should order that former judge Walker
cease further disclosures of the trial recordings in this case, or any portion thereof,
and that all copies of the trial recordings in the possession, custody, or control of
any party to this case or former judge Walker be returned promptly to the Court
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s/ Charles J. Cooper
Charles J. Cooper
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NOTE: To secure your input, you should print the filled-in form to PDF (File > Print > PDF Printer/Creator).
*********************************************************************************
CERTIFICATE OF SERVICE
When All Case Participants are Registered for the Appellate CM/ECF System
I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the
United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system
on (date) .
I certify that all participants in the case are registered CM/ECF users and that service will be
accomplished by the appellate CM/ECF system.
*********************************************************************************
CERTIFICATE OF SERVICE
When Not All Case Participants are Registered for the Appellate CM/ECF System
I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the
United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system
on (date) .
April 13, 2011
Participants in the case who are registered CM/ECF users will be served by the appellate
CM/ECF system.
I further certify that some of the participants in the case are not registered CM/ECF users. I
have mailed the foregoing document by First-Class Mail, postage prepaid, or have dispatched it
to a third party commercial carrier for delivery within 3 calendar days to the following
non-CM/ECF participants:
SERVICE LIST
EXHIBIT 1
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Volume 4
KRISTIN M. PERRY, )
SANDRA B. STIER, PAUL T. KATAMI, )
and JEFFREY J. ZARRILLO, )
)
Plaintiffs, )
)
VS. ) NO. C 09-2292-VRW
)
ARNOLD SCHWARZENEGGER, in his )
official capacity as Governor of )
California; EDMUND G. BROWN, JR., )
in his official capacity as )
Attorney General of California; )
MARK B. HORTON, in his official )
capacity as Director of the )
California Department of Public )
Health and State Registrar of )
Vital Statistics; LINETTE SCOTT, )
in her official capacity as Deputy )
Director of Health Information & )
Strategic Planning for the )
California Department of Public )
Health; PATRICK O'CONNELL, in his )
official capacity as )
Clerk-Recorder for the County of )
Alameda; and DEAN C. LOGAN, in his )
official capacity as )
Registrar-Recorder/County Clerk )
for the County of Los Angeles, )
) San Francisco, California
Defendants. ) Thursday
___________________________________) January 14, 2010
TRANSCRIPT OF PROCEEDINGS
1 P R O C E E D I N G S
13 Mr. Garlow and Mr. McPherson. And the clerk informs me counsel
25 here.
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PATTERSON
1 Q. Okay.
5 witness?
12 everybody.
14 hour, or 10:45.
20 that the Court was asking for withdrawal of this case from the
21 pilot program.
3 proceedings be halted.
6 the proceedings.
14 to the Court.)
20 that recording.
2 those purposes."
6 that clarification.
11 continue.
13 BY MR. PATTERSON:
19 A. Yes, it is.
20 Q. And you have basically -- you have assumed how long the
23 A. That's correct.
24 Q. And, once again, you have not done any study of how long
EXHIBIT 2
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September 17,1996
First Circuit:
Second Circuit:
Third Circuit:
Fourth Circuit:
Fifth Circuit:
models discussed in the report, and, where appropriate, adopt more efficient structures
for the provision of administrative services.
CAMERAS
IN THE COURTROOM
-
Fee Current Amount Raised Amount
Power of Attorney
Filing and Indexing Misc. Papers
Misdemeanor Appeal
Registration of Foreign Judgment
Tape Duplication
Microfilm/Microfiche
Mailing Labels
Record Search
Certification
Returned Checks
Reproduction of Record
Ct. of Fed. Claims Filing Fee
Ct. of Fed. Claims List of OrdersIOps
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EXHIBIT 3
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JO'DIClALCONlFERENCEOFTHE 1[JNKTEDSTATES
The Judicial Conference of the United States strongly opposes the "Sunshine in the
Courtroom Act of2009," S. 657 (11 ph Cong.), because it provides for the use of cameras
in federal trial court proceedings. Cameras can affect behavior in court proceedings.
Cameras can even affect whether a case goes to trial. Cameras can also affect courtroom
security ofjudges, witnesses, employees, and U.S. marshals. This is of particular concern
in light of recent increased threats to federal judges. The Judicial Conference believes
that these and other negative affects of cameras in trial court proceedings far outweigh
any potential benefit. The Judicial Conference also opposes the legislation because it
would empower any appellate court panel to permit cameras in their courtroom rather
than retain that power within the management of each circuit.
The Judicial Conference bases its policy and opposition to the use of cameras in
the federal trial court proceedings on decades of experience and study. The Conference
considered the issue in a number of different situations and contexts including a pilot
project - and concluded that the presence of cameras in federal trial court proceedings is
not in the best interest ofjustice. Federal judges must preserve each citizen's right to a
fair and impartial trial. Of course, federal trials have long been open to the media and
public. But it is the studied judgment ofthe Judicial Conference that cameras can
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interfere with a fair and impartial trial. Thus, the use of cameras in trial courts would
differ substantially from the impact of their use in legislative, administrative, or
ceremonial proceedings.
Cameras can interfere with a fair trial in numerous ways. First, broadcasting
proceedings can affect the way trial participants behave. Television cameras can
'intimidate litigants, witnesses, andjurors, many of whom have no direct connection to the
proceeding and are involved in it through no action of their own. Witnesses might refuse
to testi1J or alter their stories when they do testi1J if they fear retribution by someone who
may be watching the broadcast.
Second, and similarly, camera coverage can create privacy concerns for many
individuals involved in the trial, such as witnesses and victims, some of whom are only
tangentially related to the case but about whom very personal and identifYing information
might be revealed. For example, efforts to discredit a witness frequently involve the
revelation of embarrassing personal information. Disclosing embarrassing facts or
accusations in a courtroom already creates challenges in court proceedings. Those
challenges would be multiplied enormously if that information were aired on television
with the additional possibility of taping and replication. This concern can have a material
effect on a witness's testimony or on his or her willingness to testifY at all.
Fourth, the presence of cameras in a trial court will encourage some participants to
become more dramatic, to pontificate about their personal views, to promote commercial
interests to a national audience, or to lengthen their appearance on camera. Such
grandstanding is disruptive to the proceedings and can delay the trial.
The Federal Judiciary is therefore very concerned that the effect of cameras in the
courtroom on participants would be to impact negatively the trial process and thereby
interfere with a fair trial.
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Finally, regarding the courts of appeals, in 1996 the Judicial Conference adopted
the position that each circuit may decide for hselfwhether to permit photographic, radio,
and television coverage of appellate arguments, subject to any restrictions in statutes,
national and local rules, and such guidelines as the Conference may adopt. This policy
ensures consistency within each circuit. The Sunshine in the Courtroom Act of 2009
would allow panels within the circuits to determine whether cameras will be allowed at
their proceedings, rather than leaving the initial decision to the circuit's management.
This will result in differing treatment of litigants within each circuit. Currently, the
circuit-wide policies avoid piecemeal and ad hoc resolutions of the issue among the
various panels convened within a court of appeals, and that approach is therefore better
than the proposed legislative change.
* * *
For the foregoing reasons, the Judicial Conference of the United States strongly
opposes legislation that allows the use of cameras in federal trial court proceedings and
permits individual panels to use of cameras in all courts of appeals instead of deferring to
each circuit's rules on such use.
Thank you for the opportunity to provide the position of the Judicial Conference
on this legislation. The legislation raises issues of vital importance to the Judiciary. If we
may be of additional assistance to you, please do not hesitate to contact our Office of
Legislative Affairs at 202-502-1700.
Sincerely,
(j~tV
James C. Duff
Secretary
cc: Members, Senate Judiciary Committee
I
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First Circuit:
District of Massachusetts
Second Circuit:
District of Connecticut
Third Circuit:
Fourth Circuit:
Fifth Circuit:
I courts The Judicial Conference agreed to authorize each court of appeals to decide for
's itself whether to permit the taking of photographs and radio and television coverage of
appellate arguments, subject to any restrictions in statutes, national and local rules, and
icial such guidelines as the Judicial Conference may adopt. The Conference further agreed
ourt of to-
les for
ledule. a. Strongly urge each circuit judicial council to adopt an order reflecting the
Judicial Conference's decision to authorize the taking of photographs and radio
and television coverage of court proceedings in the United States courts of
appeals; and
;:ess
b. Strongly urge each circuit judicial council to adopt an order pursuant to
a
28 U.S.C. § 332 (d)(l), reflecting the September 1994 decision of the Judicial
Conference (JCUS-SEP 94, pp. 46-47) not to permit the taking of photographs
~P and radio and television coverage of court proceedings in the United States
district courts. In addition, the Judicial Conference agreed to strongly urge the
te; it judicial councils to abrogate any local rules of court that conflict with this
decision, pursuant to 28 U.S.C. § 2071{cXI).
ttee
ents
17
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EXHIBIT 4
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September 20,1994
First Circuit:
Second Circuit:
Third Circuit:
Fourth Circuit:
Fifth Circuit:
COMMITTEEON COURTADMINISTRATION
AND CASEMANAGEMENT
EXHIBIT 5
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9 8
On May 24, 1996,the Judicial Council of the Ninth Circuit voted to adopt the
policy of the Judicial Conference of the United States regarding the use of cameras in the
courts. Pursuant to 28 U S C. 5 2071(c)(l), lhia poUby is now binding on all courts
within the Ninth Cir~uft.The policy states:
EXHIBIT 6
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Cross Reference
See ADR L.R. 4-11(d) “Nonbinding Arbitration; Entry of Judgment on
Award.”
The following media are designated by this Court as its official means of
giving public notice of calendars, General Orders, employment opportunities,
policies, proposed modifications of these local rules or any matter requiring public
notice. The Court may designate any one or a combination of these media for
purposes of giving notice as it deems appropriate:
(a) Bulletin Board. A bulletin board for posting of official notices shall be
located at the Office of the Clerk at each courthouse of this district.
(3) The San Jose Post-Record, for matters pending in the San
Jose Division, in addition to the newspapers listed in subparagraphs
(1) and (2); or
EXHIBIT 7
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Volume 1
Pages 1 - 213
KRISTIN M. PERRY, )
SANDRA B. STIER, PAUL T. KATAMI, )
and JEFFREY J. ZARRILLO, )
)
Plaintiffs, )
)
VS. ) NO. C 09-2292-VRW
)
ARNOLD SCHWARZENEGGER, in his )
official capacity as Governor of )
California; EDMUND G. BROWN, JR., )
in his official capacity as )
Attorney General of California; )
MARK B. HORTON, in his official )
capacity as Director of the )
California Department of Public )
Health and State Registrar of )
Vital Statistics; LINETTE SCOTT, )
in her official capacity as Deputy )
Director of Health Information & )
Strategic Planning for the )
California Department of Public )
Health; PATRICK O'CONNELL, in his )
official capacity as )
Clerk-Recorder for the County of )
Alameda; and DEAN C. LOGAN, in his )
official capacity as )
Registrar-Recorder/County Clerk )
for the County of Los Angeles, )
) San Francisco, California
Defendants. ) Monday
___________________________________) January 11, 2010
TRANSCRIPT OF PROCEEDINGS
2 in the Supreme Court deal with those issues. And that's true
3 of both sides.
7 consideration.
3 (Laughter)
7 the stay order does not mention anything about restricting the
24 matter that we can deal with after we learn what the rule is
3 Honor. That way, simply recording it now, and then the Court
4 can grapple with that issue when we find out what happens on
5 Wednesday.
11 (Laughter)
EXHIBIT 8
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Volume 3
KRISTIN M. PERRY, )
SANDRA B. STIER, PAUL T. KATAMI, )
and JEFFREY J. ZARRILLO, )
)
Plaintiffs, )
)
VS. ) NO. C 09-2292-VRW
)
ARNOLD SCHWARZENEGGER, in his )
official capacity as Governor of )
California; EDMUND G. BROWN, JR., )
in his official capacity as )
Attorney General of California; )
MARK B. HORTON, in his official )
capacity as Director of the )
California Department of Public )
Health and State Registrar of )
Vital Statistics; LINETTE SCOTT, )
in her official capacity as Deputy )
Director of Health Information & )
Strategic Planning for the )
California Department of Public )
Health; PATRICK O'CONNELL, in his )
official capacity as )
Clerk-Recorder for the County of )
Alameda; and DEAN C. LOGAN, in his )
official capacity as )
Registrar-Recorder/County Clerk )
for the County of Los Angeles, )
) San Francisco, California
Defendants. ) Wednesday
___________________________________) January 13, 2010
TRANSCRIPT OF PROCEEDINGS
1 A. No.
11 Peplau.
15 (Witness excused.)
23 some point.
25 getting their advice, is that we put that issue to the side for
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PROCEEDINGS 663
20 review is complete.
24 all.
EXHIBIT 9
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As the Court will recall, on Monday morning, just before trial commenced, the Court
noted that its orders concerning public dissemination had been temporarily stayed by the
Supreme Court. In response, Plaintiffs nonetheless asked the Court to record the proceedings for
the purpose of later public dissemination if the stay was subsequently lifted:
Since the stay is temporary and the Supreme Court is going to be considering
these issues, and given the importance of the issues in this case, we would request
that the Court permit recording and preservation of the proceedings today and
through Wednesday .… [G]iven the fact that this is a temporary stay, and the stay
order does not mention anything about restricting the ability of the court to
capture the images on the cameras and preserve them in the event the stay is lifted
and Judge Kozinski issues his order, we think that would be a good solution so
then the materials could be posted when those -- those things happen.
Tr. of Proceedings at 14-15 (Jan. 11, 2010) (Attachment A). In response, Proponents objected to
the recording of the proceedings as inconsistent with the Supreme Court’s temporary stay, see id.
at 16, but the Court accepted Plaintiffs’ proposal.
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The Supreme Court yesterday extended the stay indefinitely. Hollingsworth v. Perry,
558 U.S. __, No. 09A648, slip op. (Jan. 13, 2010) (per curiam). The Supreme Court’s ruling
removes all question that recording of the proceedings is prohibited. As the Supreme Court
explained, prior to this Court’s amendment to Local Rule 77-3 (which amendment, the Court
concluded, was not properly adopted), Local Rule 77-3 “banned the recording or broadcast of
court proceedings.” Hollingsworth, slip op. at 4 (emphasis added). Unamended Local Rule77-3
thus governs these proceedings, and, as the Supreme Court held, it has “the force of law.” Id. at
8 (quotation marks omitted).
In short, it is now clear that the Supreme Court’s stay will remain in place indefinitely,
and the prohibition against the recording of these proceedings remains binding. For these
reasons, Proponents renew their objection to any further recording of the proceedings in this
case, and request that the Court order that any recordings previously made be deleted.
Sincerely,
Charles J. Cooper
Counsel for Defendant-Intervenors
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2 IN THE UNITED STATES DISTRICT COURT
4
5 KRISTIN M PERRY, SANDRA B STIER,
PAUL T KATAMI and JEFFREY J
6 ZARRILLO,
7 Plaintiffs,
9 Plaintiff-Intervenor,
10 v
For the Northern District of California
22 Defendants,
27 Defendant-Intervenors.
/
28
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United States District Court
12
13
14
15 VAUGHN R WALKER
United States District Chief Judge
16
17
18
19
20
21
22
23
24
25
26
27
28
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EXHIBIT 11
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FILED
JAN 15 2010
JUDICIAL COUNCIL
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
I have received a request from the Chief Judge of the Northern District of
EXHIBIT 12
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Cross Reference
See ADR L.R. 4-11(d) “Nonbinding Arbitration; Entry of Judgment on
Award.”
The following media are designated by this Court as its official means of
giving public notice of calendars, General Orders, employment opportunities,
policies, proposed modifications of these local rules or any matter requiring public
notice. The Court may designate any one or a combination of these media for
purposes of giving notice as it deems appropriate:
(a) Bulletin Board. A bulletin board for posting of official notices shall be
located at the Office of the Clerk at each courthouse of this district.
(3) The San Jose Post-Record, for matters pending in the San
Jose Division, in addition to the newspapers listed in subparagraphs
(1) and (2); or
EXHIBIT 13
Renewed Notice Concerning Revision of Civil Local Rule 77-3. http://www.cand.uscourts.gov/CAND/FAQ.nsf/60126b66e42d00488825...
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The United States District Court for the Northern District of California Court has approved a
revision of Civil Local Rule 77-3, subject to public comment. The revision would add the
underlined language below.
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, 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.
The comment period will run from February 4, 2010 to March 4, 2010. If you submitted a
comment during the previous comment period, you need not resubmit it. The court is interested
in comments that pertain to the revised rule and NOT to its application to a particular case. All
comments and suggestions regarding the content of the revised rule should be sent in writing, no
later than March 4, 2010 to:
Hon. Phyllis Hamilton
Chair of the Rules Committee
United States Courthouse
1301 Clay Street
Oakland, CA 94612
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EXHIBIT 14
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Cross Reference
See ADR L.R. 4-11(d) “Nonbinding Arbitration; Entry of Judgment on
Award.”
The following media are designated by this Court as its official means of
giving public notice of calendars, General Orders, employment opportunities,
policies, proposed modifications of these local rules or any matter requiring public
notice. The Court may designate any one or a combination of these media for
purposes of giving notice as it deems appropriate:
(a) Bulletin Board. A bulletin board for posting of official notices shall be
located at the Office of the Clerk at each courthouse of this district.
(3) The San Jose Post-Record, for matters pending in the San
Jose Division, in addition to the newspapers listed in subparagraphs
(1) and (2); or
EXHIBIT 15
Civil Local Rules http://www.cand.uscourts.gov/cand/LocalRul.nsf/031cb3d3c34daccc882...
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Home Previous
The United States District Court for the Northern District of California Court has approved
revisions of Civil Local Rules 7-1, 72-2 and 72-3, effective April 20, 2010.
In most circumstances, a request for judicial action is called a “motion” and certain
administrative and electronic processes intended to bring such matters to the attention of the
assigned judge are designed to capture “motions” that have been filed rather than “objections.”
In order to assist the judges in ruling on requests for judicial action with respect to orders and
findings of magistrate judges as expeditiously as possible, such requests will now be called
“motions” rather than “objections.”
PDF File:
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EXHIBIT 16
http://www.cand.uscourts.gov/
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CLERK'S NOTICES
Magistrate Judge Position Available in San Jose
Revised Civil Cover Sheet 1/2010
Revised Forms 12/09: Bill of Costs, Summons in a Civil
Action and Summons on Third-Party Complaint
Notice re: Judge Hamilton's Relocation to Oakland
Clerk's Office Now Accepting Payments By Credit Card
New Federal Magistrate Judge Appointments
Judicial Misconduct and Disability
GENERAL NOTICES
RFQ for Off-Site Copying Services San Jose Court
Location (Due June 1, 2010)
A NEW COURT WEBSITE IS UNDER DEVELOPMENT.
Please take our brief survey. Your opinion is important to
us.
Announcing the selection of Professor Donna M. Ryu for a
full-time Oakland Magistrate Judge position
Submitting Matters to the ADR Magistrate Judge
Pro Bono Project Guidelines
1 of 2 5/18/2010 5:47 PM
http://www.cand.uscourts.gov/
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Legal Help Center Open to Assist Pro Se Litigants
Pro Se Handbook - Now in Spanish & Chinese Translations
Courtroom Technology Upgrades
Teleconferencing Guidelines
Please drop us
an email at:
Web-CAND@cand.uscourts.gov
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First, an order allowing trial proceedings to be broadcast publicly would violate the
Supreme Court’s stay of this Court’s order authorizing “the broadcast of [this] federal trial.”
Hollingsworth, 130 S. Ct. at 706; see also id. at 709 (“We therefore stay the court’s January 7,
2010, order to the extent that it permits the live streaming of court proceedings….”). As the
Court explained, even “[i]f 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.” Id. at
714. These questions led the Court to conclude, as noted above, that this case is ill-suited for
inclusion in an experimental pilot program.
Second, under controlling Ninth Circuit policy, this Court has no authority to enter an
order permitting public broadcast in this case, and to the extent revised L.R. 77-3 purports to
allow for such authority, it is invalid. Pursuant to federal statute, the Ninth Circuit Judicial
Council is authorized to make or amend “[a]ny general order relating to practice and procedure
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… only after giving appropriate public notice and an opportunity for comment.” 28 U.S.C.
§ 332(d)(1) (emphasis added). In 1996, the Ninth Circuit Judicial Council “adopt[ed] the policy
of the Judicial Conference of the United States” banning the public broadcast of proceedings in
federal district courts. See Doc # 324-1 at 4 (hereinafter the “1996 Policy”). Since that time, the
Judicial Council has not given “appropriate notice and an opportunity for comment” of a
proposed amendment to the governing 1996 Policy. The Judicial Council did issue a press
release on December 17, 2009, stating that it “has approved, on an experimental basis, the
limited use of cameras in federal district courts within the circuit”—an “action” which purports
to “amend[] [the] 1996 Ninth Circuit policy.” 1 The December 17 press release, however, did not
comport with the statutory requirements for notice and comment and is therefore invalid. See
130 S. Ct. at 711 (concluding that the amended version of L.R. 77-3 “appears to be invalid”
because the Court failed to give the statutorily required public notice and an opportunity for
comment); see also id. at 712 (citing 28 U.S.C. § 332(d)(1) and noting that the Ninth Circuit’s
policy amendment “was not adopted after notice and comment procedures”). Thus, because the
1996 Policy remains the only valid Circuit rule in effect, this Court has no authority to permit
public broadcast of trial proceedings. See 28 U.S.C. § 332(d)(2) (“All judicial officers and
employees of the circuit shall promptly carry into effect all orders of the judicial council.”).
Third, neither the amendment to L.R. 77-3 nor the Ninth Circuit Judicial Council’s press
release sets forth any standards or guidelines to regulate the selection of cases and the use of
cameras during trial proceedings. The Supreme Court explicitly emphasized that this was a
serious defect that supported its “decision to grant extraordinary relief.” Hollingsworth, 130 S.
Ct. at 713; see also id. (“The District Court here attempted to revise its rules in haste … to allow
broadcasting of this high-profile trial without any considered standards or guidelines in place.”);
id. (explaining that “the lack of a regular rule with proper standards to determine the guidelines
for broadcasting could compromise the orderly, decorous, rational traditions that courts rely upon
to ensure the integrity of their own judgments”); id. (stating that “Congress has illustrated the
need for careful guidelines and standards” in any program authorizing public broadcast of federal
trial proceedings). Indeed, the Judicial Council’s press release authorizes the “chief judge of the
district court in consultation with the chief circuit judge” to select cases for public broadcast of
district court trial proceedings. It appears, in fact, that the chief judges of the District Court and
the Ninth Circuit have absolute discretion to select these cases. Yet neither the press release nor
revised L.R. 77-3 provides any procedure by which litigants and other interested parties may
present concerns and objections to the chief judges. This raises serious due process concerns.
Fourth, there is little merit to the Media Coalition’s argument that “the concerns earlier
reviewed by the Supreme Court should not preclude” the public broadcast of closing arguments
because they “will solely consist of the arguments of counsel—and not witness testimony or
evidence.” As an initial matter, the parties may play excerpts from the video-recorded
1
See http://www.ce9.uscourts.gov/cm/articlefiles/137-Dec17_Cameras_Press%20Relase.pdf.
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depositions during the course of closing arguments. In any case, in Hollingsworth, the Supreme
Court specifically cited the findings and policies of the Judicial Conference of the United States,
noting that while those policies “may not be binding on the lower courts, they are at the very
least entitled to respectful consideration.” 130 S. Ct. at 712 (quotation marks omitted). While it
is true that the deleterious effect of public broadcast on witnesses is one of the concerns
undergirding the Judicial Conference’s policy, it is by no means the only concern. As we have
explained previously, the Judicial Conference’s policy also rests on findings that public
broadcast has negative effects on some judges and attorneys, including distraction,
grandstanding, and avoidance of unpopular decisions or positions. Moreover, the Judicial
Conference has repeatedly stressed that “the presence of cameras in a trial courtroom …
increases security and safety issues” and that “[t]hreats against judges, lawyers, and other
participants could increase even beyond the current disturbing level.” Doc # 324-2 at 4. And all
of these findings were with respect to run-of-the-mine cases, not “high-profile, divisive cases”
like this one. Hollingsworth, 130 S. Ct. at 714 (citing “warning by Judge Edward R. Becker that
in ‘truly high-profile cases,’ one can ‘[j]ust imagine what the findings would be’”).
For all of these reasons, and in light of the Supreme Court’s stay opinion, Proponents
respectfully submit that the Court should deny the Media Coalition’s renewed request to publicly
broadcast this federal trial.
Respectfully submitted,
Charles J. Cooper
Counsel for Proponents
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2 IN THE UNITED STATES DISTRICT COURT
4
5 KRISTIN M PERRY, SANDRA B STIER,
PAUL T KATAMI and JEFFREY J
6 ZARRILLO,
7 Plaintiffs,
9 Plaintiff-Intervenor,
10 v
For the Northern District of California
22 Defendants,
27 Defendant-Intervenors.
/
28
Case:
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2
11
United States District Court
12
13 VAUGHN R WALKER
United States District Chief Judge
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2
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EXHIBIT 20
Case:
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Document425
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ID: 7715321 Page1
DktEntry:
of 14
338-2
19
20
21
22
23
24
25
26
27
28
1
(e) court reporters, their staffs, and professional vendors to whom disclosure is
2
reasonably necessary for this litigation and who have signed the “Agreement to Be Bound by Protective
3
Order” (Exhibit A);
4
(f) during their depositions, witnesses in the action to whom disclosure is
5
reasonably necessary and who have signed the “Agreement to Be Bound by Protective Order”
6
(Exhibit A). Pages of transcribed deposition testimony or exhibits to depositions that reveal Protected
7
Material must be separately bound by the court reporter and may not be disclosed to anyone except as
8
permitted under this Protective Order.
9
(g) the author of the document or the original source of the information.
10
7.3 Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
11
Information or Items. Unless otherwise ordered by the court or permitted in writing by the Designating
12
Party, a Receiving Party may disclose any information or item designated “HIGHLY CONFIDENTIAL
13
– ATTORNEYS’ EYES ONLY” only to:
14
(a) the Receiving Party’s Outside Counsel of record in this action, (or in the case of
15
a government entity or government official sued in his or her official capacity, such entity’s or
16
official’s counsel of record in this action), as well as employees of said Counsel to whom it is
17
reasonably necessary to disclose the information for this litigation and who have signed the
18
“Agreement to Be Bound by Protective Order” that is attached hereto as Exhibit A, provided that it
19
shall not be provided to any Counsel or employee who held an “official position” in any primarily
20
formed ballot committee related to Proposition 8 (see http://cal-
21
access.ss.ca.gov/campaign/measures/detail.aspx?id=1302602&session=2007) or now holds an official
22
position in a similar committee that is now circulating petitions for a 2010 ballot initiative to repeal
23
Proposition 8. For purposes of sections 7.3 and 7.5 an “official position” is defined as one which
24
authorizes the holder of said position to contractually bind (either solely or in conjunction with others)
25
the primarily formed ballot committee (or similar committee circulating petitions to place an initiative
26
on the 2010 ballot) with respect to matters relating to communications disseminated by the committee
27
or otherwise to spend funds exceeding $1,000 on behalf of the committee, provided, however, that
28
notice of all such attorneys and employees to whom HIGHLY CONFIDENTIAL – ATTORNEYS’
Gibson, Dunn &
Crutcher LLP 8
PLAINTIFFS’ PROPOSED PROTECTIVE ORDER; 09-CV-2292 VRW
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1
EYES ONLY information will be disclosed shall be given not less than 24 hours in advance of
2
disclosure to give the other parties the opportunity to object to the disclosure and seek relief from the
3
court on grounds specific to the designated attorney or employee;
4
(b) Experts (as defined in this Order) (1) to whom disclosure is reasonably
5
necessary for this litigation, (2) who have signed the “Agreement to Be Bound by Protective Order”
6
(Exhibit A), provided that it shall not be provided to any expert who held an “official position” in any
7
primarily formed ballot committee related to Proposition 8 (see http://cal-access.ss.ca.gov/campaign/
8
measures/detail.aspx?id=1302602&session=2007) or now holds an official position in a similar
9
committee that is now circulating petitions for a 2010 ballot initiative to repeal Proposition 8, provided,
10
however, that notice of all such experts to whom HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
11
ONLY information will be disclosed shall be given not less than 24 hours in advance of disclosure to
12
give the other parties the opportunity to object to the disclosure and seek relief from the court on
13
grounds specific to the designated expert;
14
(c) the Court and its personnel;
15
(d) court reporters, their staffs, and professional vendors to whom disclosure is
16
reasonably necessary for this litigation and who have signed the “Agreement to Be Bound by Protective
17
Order” (Exhibit A); and
18
(e) the author of the document or the original source of the information.
19
7.4 Disclosure Limited to Receiving Party. A Receiving Party shall not disclosure any
20
materials designated “Confidential” or “Highly Confidential – Attorneys’ Eyes Only” to any other party
21
to the litigation unless the party has agreed to be bound by this Protective Order.
22
7.5 Use of Protected Material at Depositions. Before any deposition in which the noticing
23
Party reasonably anticipates using any Protected Materials received in this matter, the noticing Party
24
must inform all other parties. Thereafter, any party who wishes to participate in said deposition must
25
staff the deposition with persons who neither have held an “official position” in any primarily formed
26
ballot committee related to Proposition 8 (see http://cal-access.ss.ca.gov/campaign/measures/
27
detail.aspx?id=1302602&session=2007) nor hold an official position in a similar committee that is now
28
circulating petitions for a 2010 ballot initiative to repeal Proposition 8.
Gibson, Dunn &
Crutcher LLP 9
PLAINTIFFS’ PROPOSED PROTECTIVE ORDER; 09-CV-2292 VRW
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EXHIBIT 21
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2
1 Pursuant to this Court’s May 31, 2010 order, Doc #672, Plaintiffs respectfully request a copy
3 Respectfully submitted,
4 DATED: June 2, 2010 GIBSON, DUNN & CRUTCHER LLP
5 Theodore B. Olson
Theodore J. Boutrous, Jr.
6 Christopher D. Dusseault
Ethan D. Dettmer
7 Matthew D. McGill
Amir C. Tayrani
8
Sarah E. Piepmeier
9 Theane Evangelis Kapur
Enrique A. Monagas
10
11 By: /s/
Theodore B. Olson
12
and
13
BOIES, SCHILLER & FLEXNER LLP
14
David Boies
15 Steven Holtzman
Jeremy M. Goldman
16 Roseanne C. Baxter
Richard J. Bettan
17 Beko O. Richardson
Theodore H. Uno
18
Joshua I. Schiller
19
Attorneys for Plaintiffs
20 KRISTIN M. PERRY, SANDRA B. STIER,
PAUL T. KATAMI, and JEFFREY J. ZARRILLO
21
22
23
24
25
26
27
28
EXHIBIT 22
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Volume 13
KRISTIN M. PERRY, )
SANDRA B. STIER, PAUL T. KATAMI, )
and JEFFREY J. ZARRILLO, )
)
Plaintiffs, )
)
VS. ) NO. C 09-2292-VRW
)
ARNOLD SCHWARZENEGGER, in his )
official capacity as Governor of )
California; EDMUND G. BROWN, JR., )
in his official capacity as )
Attorney General of California; )
MARK B. HORTON, in his official )
capacity as Director of the )
California Department of Public )
Health and State Registrar of )
Vital Statistics; LINETTE SCOTT, )
in her official capacity as Deputy )
Director of Health Information & )
Strategic Planning for the )
California Department of Public )
Health; PATRICK O'CONNELL, in his )
official capacity as )
Clerk-Recorder for the County of )
Alameda; and DEAN C. LOGAN, in his )
official capacity as )
Registrar-Recorder/County Clerk )
for the County of Los Angeles, )
) San Francisco, California
Defendants. ) Wednesday
___________________________________) June 16, 2010
TRANSCRIPT OF PROCEEDINGS
2 Mr. Olson will be playing some of the video clips from the
4 that at the end of the day we would offer the transcript pages
5 for the record, whenever it's convenient for the Court, rather
6 than doing it for the closings. Then we'll have that for the
7 record.
17 into the record the transcript pages of the clips that we have
24 Mr. Olson.
25
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EXHIBIT 23
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2
24 Defendant-Intervenors,
25
26
27
28
Plaintiff-Intervenor's Notice Re Video
CASE NO. 09-CV-2292 VRW
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2
1
NOTICE
2
Please take NOTICE that pursuant to the Court's Order [Doc #672], Plaintiff-Intervenor wishes
3
to obtain a copy of the following portions of the trial video to review for possible use at closing
4
argument:
5
6
Trial Date Witness
7
January 14, 2010 Egan
8
January 15, 2010 Zia
9
January 19, 2010 Sanders / Badgett
10
January 20, 2010 Kendall
11
12
Plaintiff-Intervenor will maintain the video as strictly confidential pursuant to paragraph 7.3 of
13
the protective order in this case [Doc #425].
14
15
24 By: /s/
THERESE M. STEWART
25
Attorneys for Plaintiff-Intervenor
26 CITY AND COUNTY OF SAN FRANCISCO
27
28
Plaintiff-Intervenor's Notice Re Video 1
CASE NO. 09-CV-2292 VRW
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EXHIBIT 24
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2
1
2 IN THE UNITED STATES DISTRICT COURT
4
5 KRISTIN M PERRY, SANDRA B STIER,
PAUL T KATAMI and JEFFREY J
6 ZARRILLO,
7 Plaintiffs,
9 Plaintiff-Intervenor,
10 v
For the Northern District of California
22 Defendants,
27 Defendant-Intervenors.
/
28
Case:
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2
11
United States District Court
12
13 IT IS SO ORDERED.
14
15
16 VAUGHN R WALKER
United States District Chief Judge
17
18
19
20
21
22
23
24
25
26
27
28
2
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EXHIBIT 25
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4
8 Defendants,
9 and
14 Defendant-Intervenors.
15
17
ALLIANCE DEFENSE FUND
18 Timothy Chandler (CA Bar No. 234325)
tchandler@telladf.org
19 101 Parkshore Drive, Suite 100, Folsom, California 95630
Telephone: (916) 932-2850, Facsimile: (916) 932-2851
20
Jordan W. Lorence (DC Bar No. 385022)*
21 jlorence@telladf.org
Austin R. Nimocks (TX Bar No. 24002695)*
22 animocks@telladf.org
801 G Street NW, Suite 509, Washington, D.C. 20001
23 Telephone: (202) 393-8690, Facsimile: (202) 347-3622
25
26
27
28
DECLARATION OF PETER A. PATTERSON IN SUPPORT OF DEFENDANT-INTERVENORS’
MOTION FOR ADMINISTRATIVE RELIEF
CASE NO. 09-CV-2292 VRW
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13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1
DECLARATION OF PETER A. PATTERSON IN SUPPORT OF DEFENDANT-INTERVENORS’
MOTION FOR ADMINISTRATIVE RELIEF
CASE NO. 09-CV-2292 VRW
t-
Case3:09-cv-02292-VRW
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I I declare, under penalty of perjury under the laws of the United States, that these facts are true and
2 correct and that this Declaration is executed this 29th day of June,2Ol0, at Cincinnati, Ohio.
J
Dated: June 29, 2010
4
10
11
t2
13
l4
15
l6
17
18
t9
20
21
))
23
24
25
26
27
28
EXHIBIT 26
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15
Additional Counsel for Defendant-Intervenors
16
25
26
27
28
23
24
25
26
27
28
2
DEFENDANT-INTERVENORS’ MOTION FOR ADMINISTRATIVE RELIEF
CASE NO. 09-CV-2292 VRW
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EXHIBIT 27
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4
1 Plaintiffs and Plaintiff-Intervenor respectfully request that the Court deny Defendant-
2 Intervenors’ motion for administrative relief. Doc #696. On May 31, 2010, the Court informed the
3 parties that the trial video would be made available “[i]n the event any party wishes to use portions of
4 the trial recording during closing arguments.” Doc #672. The Court stated that “[p]arties will of
5 course be obligated to maintain as strictly confidential any copy of the video pursuant to paragraph
6 7.3 of the protective order, Doc #425.” Id. Plaintiffs and Plaintiff-Intervenor both requested copies
7 of the trial video, Docs #674, 675, and Plaintiffs used portions of the video during closing argument.
8 Because this Court has yet to issue its decision and may request additional arguments or
9 briefing before doing so, Defendant-Intervenors’ request for the immediate return of the trial video
10 should be denied as premature. Plaintiffs and Plaintiff-Intervenor respectfully propose that once
11 judgment is entered, the parties and the Court evaluate whether, and to what degree, the trial
12 recording would be useful to the parties or to the Court in connection with any additional proceedings
13 and/or appeal. In the meantime, the protective order remains in place and ensures that the trial
15 Respectfully submitted,
23
By: /s/
24 Theodore B. Olson
25 and
26 ///
27 ///
28 ///
9 DENNIS J. HERRERA
City Attorney
10
THERESE M. STEWART
11 Chief Deputy City Attorney
DANNY CHOU
12 Chief of Complex and Special Litigation
RONALD P. FLYNN
13 VINCE CHHABRIA
ERIN BERNSTEIN
14
CHRISTINE VAN AKEN
15 MOLLIE M. LEE
Deputy City Attorneys
16
17
By: /s/
18 Therese M. Stewart
19 Attorneys for Plaintiff-Intervenor
20 CITY AND COUNTY OF SAN FRANCISCO
21
22
23
24
25
26
27
28
2 Pursuant to General Order No. 45 of the Northern District of California, I attest that
3 concurrence in the filing of the document has been obtained from each of the other signatories to this
4 document.
5 By: /s/
Theodore B. Olson
6
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
EXHIBIT 28
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1
IN THE UNITED STATES DISTRICT COURT
2
FOR THE NORTHERN DISTRICT OF CALIFORNIA
3
4
KRISTIN M PERRY, SANDRA B STIER,
5 PAUL T KATAMI and JEFFREY J
ZARRILLO,
6
Plaintiffs,
7
CITY AND COUNTY OF SAN FRANCISCO,
8
Plaintiff-Intervenor,
9
v
10
ARNOLD SCHWARZENEGGER, in his
For the Northern District of California
28
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4
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5
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EXHIBIT 29
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No. _________
================================================================
In The
Supreme Court of the United States
---------------------------------♦---------------------------------
Petitioners,
v.
Respondents.
---------------------------------♦---------------------------------
---------------------------------♦---------------------------------
---------------------------------♦---------------------------------
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
April 8, 2010 Counsel for Petitioners
================================================================
COCKLE LAW BRIEF PRINTING CO. (800) 225-6964
OR CALL COLLECT (402) 342-2831
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11
EXHIBIT 30
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No. 09-1238
THIS CAUSE having been submitted on the petition for writ of certiorari
Court that the petition for writ of certiorari is granted. The judgment of the above
court is vacated with costs, and the case is remanded to the United States Court of
Appeals for the Ninth Circuit with instructions to dismiss the case as moot. See
al. recover from United States District Court for the Northern District of California,
October 4, 2010
EXHIBIT 31
Case:
Case: 10-70063
10-16696 10/15/2010
04/13/2011 Page:
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FILED
UNITED STATES COURT OF APPEALS OCT 15 2010
Respondent,
On October 4, 2010, the United States Supreme Court granted the petition
for writ of certiorari and vacated the judgment and remanded with instructions to
dismiss this petition as moot. Accordingly, this court’s January 8, 2010 order is
KS/MOATT
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EXHIBIT 32
Case: 10-16696
OFFICE04/13/2011 Page: 109EXECUTIVE
OF THE CIRCUIT of 114 ID: 7715321 DktEntry: 338-2
NINTH CIRCUIT CURRENT AND FUTURE VACANCY TABLE
Court Vacancy in Date By Reason of Nominee (If Any) Date Status of Nomination Last
Authorized Judgeship Vacancy Nominated Action (such as referred to
Created Senate Jud. Com.)
Court of Stephen S. Trott 12-31-04 Senior Status No nominee
Appeals Pub. L 110-177 1-21-09 New Position Goodwin Liu 2-24-10, Senate Jud. Com. hearing
9-13-10, held on 3-2-11
1-5-11
Andrew J. Kleinfeld 6-12-10 Senior Status No nominee
Mary M. Schroeder 1-1-12 Senior Status No nominee
Alaska John W. Sedwick 3-13-11 Senior Status No nominee
Arizona Frank R. Zapata 8-3-10 Senior Status No nominee
Mary Helen Murguia 12-22-10 Elevated No nominee
John M. Roll 1-8-11 Deceased No nominee
Cent. Cal. Florence-Marie Cooper 1-15-10 Deceased John A. Kronstadt 11-17-10, Senate Jud. Com. approval on
1-5-11 3-10-11
Stephen G. Larson 11-2-09 Resigned No nominee
A. Howard Matz 7-11-11 Senior Status No nominee
No. Cal. Martin J. Jenkins 4-3-08 Resigned Edward M. Chen 8-6-09, Senate Jud. Com. approval on
1-20-10, 3-17-11
9-13-10
1-5-11
Vaughn R. Walker 2-28-11 Retirement No nominee
Court Vacancy in Date By Reason of Nominee (If Any) Date Status of Nomination Last
Authorized Judgeship Vacancy Nominated Action (such as referred to
Created Senate Jud. Com.)
So. Cal Jeffrey T. Miller 6-6-10 Senior Status No nominee
Thomas J. Whelan 8-15-10 Senior Status No nominee
EXHIBIT 33
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First Circuit:
Second Circuit:
Third Circuit:
Fifth Circuit:
COMMITTEE ACTIVITIES
The Committee on Codes of Conduct reported that since its last report
to the Judicial Conference in March 2010, the Committee received 17
new written inquiries and issued 17 written advisory responses. During this
period, the average response time for requests was 22 days. In addition, the
Committee chair responded to 159 informal inquiries, individual Committee
members responded to 133 informal inquiries, and Committee counsel
responded to 358 informal inquiries.
II
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b. The pilot will last up to three years, with interim reports prepared by
the Federal Judicial Center after the first and second years.
12