Cooper & Kirk Lawyers

A Professional Limited Liabilty Company

1523 New Hampshire Avenue, N.v Washington, D.C. 20036

(202) 220-9600 Fax (202) 220-9601

August 31,2010

Honorable Wiliam K. Suter Clerk

One First Street, N .E.

the United States Washington, D.C. 20543

Supreme Cour of

Re: Hollngsworth et at., v. Perry et at., No. 09-1238

Dear Mr. Suter:

I write to advise the Court of a development bearing on the disposition of the petition for a wrt of certiorari in the case noted above.
As is evident from the petition, the brief in opposition, and the reply brief, the paries

reversing the district cour's order permitting broadcast of the trial proceedings outside the courhouse has become moot. The paries disagree, however, about whether the Cour should vacate the Ninth Circuit's order denying the mandamus petition.
agree that Petitioners' attempt to obtain mandamus relief

In the reply brief, filed July 19,2010, Petitioners explained that vacatu was appropriate because, among other reasons, a dispute has arisen over the proper disposition of the video recordings ofthetrial proceedings. Specifically, the district court, contrary to its assurances that
it was video taping the trial solely for its own use "in chambers," sua sponte invited the paries to

use the trial video during closing argument and made copies of the trial video available to the the trial video paries. Respondents accepted the district cour's invitation and played portions of durng closing argument. After closing argument, Petitioners moved the district cour to order Respondents to immediately retu to the district court all copies of the trial video in their possession. At the time Petitioners fied their reply brief with this Court, the district cour had not yet ruled on Petitioners' motion. Reply 8-10.

The district cour has now ruled on that motion. On August 4, 2010, in the course of
issuing final judgment declaring Proposition 8 unconstitutional and permanently enjoining its

enforcement, i the district cour denied Petitioners' motion to order the return of the copies of the the record," and recordings, directed the clerk "to fie the trial recording under seal as par of

i The district cour denied Petitioners' motion to stay the judgment pending appeal, but the court of appeals subsequently issued the requested stay and placed the appeal on an expedited calendar.

Cooper & Kirk

Lawyers

The Honorable Wiliam K. Suter August 31, 2010 Page 2 of2

permitted the paries to "retain their copies of the trial recording pursuant to the terms of the protective order." Doc. 708 pp.4-5 (attached as exhibit).

The district cour's ruling on Petitioners' motion only increases the likelihood that litigation relating to the appropriate use of the trial video may occur in the future and therefore confirms the need to vacate the Ninth Circuit's mandamus ruling in order to prevent that ruling "from spawning any legal consequences" in ongoing or subsequent litigation between the paries. United States v. Munsingwear, Inc., 340 U.S. 36,41 (1950); Reply 10.

~~~/PL
Respectfully submitted,

Charles J. Cooper Counsel of Record for Petitioners

Enclosure
cc: Counsel of

Record

Exhibit

Case3:09-cv-02292-VRW Document708 Filed08/04/10 Page1 of 138

IN THE UNITED STATES DISTRICT COURT

2
3

FOR THE NORTHERN DISTRICT OF CALIFORNIA

KRISTIN M PERRY, SANRA B STIER,

5 PAUL T KATAMI and JEFFREY J ZARRILLO,

6
7
8

Plaintiffs,
CITY AN COUNY OF SAN FRACISCO,
Plaintiff - Intervenor,

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ARNOLD SCHWARZENEGGER, in his 11 official capacity as Governor of

California; EDMU G BROWN JR, in

No C 09-2292 VRW

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12 his official capacity as Attorney General of California; MARK B 13 HORTON, in his official capacity as Director of the California 14 Department of Public Health and State Registrar of Vital 15 Statistics; LINETTE SCOTT, in her official capacity as Deputy 16 Director of Health Information & Strategic Planning for the 17 California Department of Public Health; PATRICK 0' CONNELL, in his 18 official capacity as ClerkRecorder of the County of 19 Alameda; and DEAN C LOGAN, in his official capacity as Registrar20 Recorder/County Clerk for the County of Los Angeles,
21

PRETRIAL PROCEEDINGS AN
TRIAL EVIDENCE

..
CREDIBILITY DETERMINATIONS

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FINDINGS OF FACT

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CONCLUSIONS OF LAW

..
ORDER

Defendants,

22

DENNIS HOLLINGSWORTH, GAIL J 23 KNIGHT, MARTIN F GUTIERREZ, HASHING WILLIAM TAM, MARK A 24 JANSSON and PROTECTMARRIAGE. COM YES ON 8, A PROJECT OF CALIFORNIA 25 RENEWAL, as official proponents

of Proposition 8,

26

Defendant-Intervenors.

27
28

Case3:09-cv-02292-VRW Document708 Filed08/04/10 Page6 of 138

1 Defendant-intervenors, the official proponents of

2 Proposition 8 under California election law ("proponents"), were

3 granted leave in July 2009 to intervene to defend the

4 constitutionality of Proposition 8. Doc #76. On January 8, 2010,

5 Hak-Shing william Tam, an official proponent and defendant-

6 intervenor, moved to withdraw as a defendant, Doc #369; Tam's 7 motion is denied for the reasons stated in a separate order filed

8 herewith. Plaintiff-intervenor City and County of San Francisco

9 ("CCSF" or "San Francisco") was granted leave to intervene in

10 August 2009. Doc #160 (minute entry).

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' 11 The court denied plaintiffs' motion for a preliminary

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88 12 injunction on July 2, 2009, Doc #77 (minute entry), and denied

.~ ~ 13 proponents' motion for sumary judgment on October 14, 2009, Doc
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S .~ 14 #226 (minute entry). Proponents moved to realign the Attorney "-Q ~ c ~ 5 .. .. 15 General as a plaintiff; the motion was denied on December 23, 2009, 00 t:

~ 0 16 Doc #319. imperial County, a political subdivision of California,

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~.s 17 sought to intervene as a party defendant on December 15, 2009, Doc

o ~ 18 #311; the motion is denied for the reasons addressed in a separate
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19 order filed herewith.

20 The parties disputed the factual premises underlying

21 plaintiffs' claims and the court set the matter for trial. The 22 action was tried to the court January 11-27, 2010. The trial
23 proceedings were recorded and used by the court in preparing the 24 findings of fact and conclusions of law; the clerk is now DIRECTED

25 to file the trial recording under seal as part of the record. The
26 parties may retain their copies of the trial recording pursuant to
27 the terms of the protective order herein, see Doc #672.

28 \ \
4

Case3:09-cv-02292-VRW Document708 Filed08/04/10 Page 7 of 138

1 Proponents' motion to order the copies' return, Doc #698, is

2 accordingly DENIED.
3

4 PLAINTIFFS' CASE AGAINST PROPOSITION 8

5 The Due Process Clause provides that no "State (shall)

6 deprive any person of life, liberty, or property, without due

7 process of law." US Const Amend XIV, 1. Plaintiffs contend that

8 the freedom to marry the person of one's choice is a fundamental 9 right protected by the Due Process Clause and that Proposition 8
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violates this fundamental right because:

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1. It prevents each plaintiff from marrying the person of his or her choice;

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2. The choice of a marriage partner is sheltered by the Fourteenth Amendment from the state's unwarranted usurpation of that choice; and 3. California's provision of a domestic partnership -- a status giving same-sex couples the rights and responsibilities of marriage without providing marriage -- does not afford plaintiffs an adequate substitute for marriage and, by disabling plaintiffs from marrying the person of their choice, invidiously discriminates, without justification, against plaintiffs and others who seek to marry a person of the same sex.

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19 The Equal Protection Clause provides that no state shall

20 "deny to any person within its jurisdiction the equal protection of

21 the laws." US Const Amend XIV, 1. According to plaintiffs,

22 Proposition 8 violates the Equal Protection Clause because it:
23

1.

24
25

Discriminates against gay men and lesbians by denying them a right to marry the person of their choice whereas heterosexual men and women may do so freely; and
Disadvantages a suspect class in preventing only gay men and lesbians, not heterosexuals, from marrying.

2.

26

27 Plaintiffs argue that Proposition 8 should be subjected to

28 heightened scrutiny under the Equal Protection Clause because gays
5