Hollingsworth v. Perry

Cite as: 558 U. S. ____ (2010) 1
Per Curiam
SUPREME COURT OF THE UNITED STATES
_________________
No. 09A648
_________________
DENNIS HOLLINGSWORTH ET AL. v. KRISTIN M.
PERRY ET AL.
ON APPLICATION FOR STAY
[January 13, 2010]
PER CURIAM.
We are asked to stay the broadcast of a federal trial. We
resolve that question without expressing any view on
whether such trials should be broadcast. We instead
determine that the broadcast in this case should be stayed
because it appears the courts below did not follow the
appropriate procedures set forth in federal law before
changing their rules to allow such broadcasting. Courts
enforce the requirement of procedural regularity on oth
ers, and must follow those requirements themselves.
* * *
This lawsuit, still in a preliminary stage, involves an
action challenging what the parties refer to as Proposition
8, a California ballot proposition adopted by the electorate.
Proposition 8 amended the State Constitution by adding a
new section providing that “[o]nly marriage between a
man and a woman is valid or recognized in California.”
Cal. Const. Art. I, §7.5. The plaintiffs contend that Propo
sition 8 violates the United States Constitution. A bench
trial in the case began on Monday, January 11, 2010, in
the United States District Court for the Northern District
of California.
The District Court has issued an order permitting the
trial to be broadcast live via streaming audio and video to
a number of federal courthouses around the country. The
2 HOLLINGSWORTH v. PERRY
Per Curiam
order was issued pursuant to a purported amendment to a
local Rule of the District Court. That Rule had previously
forbidden the broadcasting of trials outside the courthouse
in which a trial takes place. The District Court effected its
amendment via several postings on the District Court’s
Web site in the days immediately before the trial in this
case was to begin.
Applicants here are defendant-intervenors in the law
suit. They object to the District Court’s order, arguing
that the District Court violated a federal statute by prom
ulgating the amendment to its local Rule without suffi
cient opportunity for notice and comment and that the
public broadcast would violate their due process rights to a
fair and impartial trial. Applicants seek a stay of the
order pending the filing of petitions for writs of certiorari
and mandamus. We granted a temporary stay to consider
the issue further. Post, p. ___. Concluding that the appli
cants have made a sufficient showing of entitlement to
relief, we now grant a stay.
I
Proposition 8 was passed by California voters in No
vember 2008. It was a ballot proposition designed to
overturn a ruling by the California Supreme Court that
had given same-sex couples a right to marry. Proposition
8 was and is the subject of public debate throughout the
State and, indeed, nationwide. Its advocates claim that
they have been subject to harassment as a result of public
disclosure of their support. See, e.g., Reply Brief for Ap
pellant 28–29 in Citizens United v. Federal Election
Comm’n, No. 08–205, now pending before this Court. For
example, donors to groups supporting Proposition 8 “have
received death threats and envelopes containing a pow
dery white substance.” Stone, Prop 8 Donor Web Site
Shows Disclosure is a 2-Edged Sword, N. Y. Times, Feb. 8,
2009. Some advocates claim that they have received
Cite as: 588 U. S. ____ (2010) 3
Per Curiam
confrontational phone calls and e-mail messages from
opponents of Proposition 8, ibid., and others have been
forced to resign their jobs after it became public that they
had donated to groups supporting the amendment, see
Brief for Center for Competitive Politics as Amicus Curiae
13–14, in Citizens United v. Federal Election Comm’n, No.
08–205, now pending before this Court. Opponents of
Proposition 8 also are alleged to have compiled “Internet
blacklists” of pro-Proposition 8 businesses and urged
others to boycott those businesses in retaliation for sup
porting the ballot measure. Carlton, Gay Activists Boycott
Backers of Prop 8, Wall Street Journal, Dec. 27, 2008, A3.
And numerous instances of vandalism and physical vio
lence have been reported against those who have been
identified as Proposition 8 supporters. See Exhs. B, I, and
L to Defendant-Intervenors’ Motion for Protective Order in
Perry v. Schwarzenegger, No. 3:09–cv–02292 (ND Cal.)
(hereinafter Defendant-Intervenors’ Motion).
Respondents filed suit in the United States District
Court for the Northern District of California, seeking to
invalidate Proposition 8. They contend that the amend
ment to the State’s Constitution violates the Equal Protec
tion and Due Process Clauses of the Fourteenth Amend
ment of the United States Constitution. The State of
California declined to defend Proposition 8, and the defen
dant-intervenors (who are the applicants here) entered the
suit to defend its constitutionality. A bench trial began on
Monday, January 11, 2010, before the Chief Judge of the
District Court, the Honorable Vaughn R. Walker.
On September 25, 2009, the District Court informed the
parties at a hearing that there was interest in the possibil
ity that the trial would be broadcast. Respondents indi
cated their support for the idea, while applicants opposed
it. The court noted that “[t]here are, of course, Judicial
Conference positions on this,” but also that “[t]his is all in
flux.” Exh. 9, p. 72, App. to Pet. for Mandamus in No. 10–
4 HOLLINGSWORTH v. PERRY
Per Curiam
70063 (CA9) (hereinafter App. to Pet.).
One month later, Chief Judge Kozinski of the United
States Court of Appeals for the Ninth Circuit appointed a
three-judge committee to evaluate the possibility of adopt
ing a Ninth Circuit Rule regarding the recording and
transmission of district court proceedings. The committee
(of which Chief Judge Walker was a member) recom
mended to the Ninth Circuit Judicial Council that district
courts be permitted to experiment with broadcasting court
proceedings on a trial basis. Chief Judge Walker later
acknowledged that while the committee was considering
the pilot program, “this case was very much in mind at
that time because it had come to prominence then and was
thought to be an ideal candidate for consideration.” Id.,
Exh. 2, at 42. The committee did not publicly disclose its
consideration of the proposal, nor did it solicit or receive
public comments on the proposal.
On December 17, the Ninth Circuit Judicial Council
issued a news release indicating that it had approved a
pilot program for “the limited use of cameras in federal
district courts within the circuit.” Id., Exh. 13, at 1. The
release explained that the Council’s decision “amend[ed] a
1996 Ninth Circuit policy” that had banned the photo
graphing, as well as radio and television coverage, of court
proceedings. Ibid. The release further indicated that
cases would be selected for participation in the program
“by the chief judge of the district court in consultation
with the chief circuit judge.” Ibid. No further guidelines
for participation in the pilot program have since been
issued.
On December 21, a coalition of media companies re
quested permission from the District Court to televise the
trial challenging Proposition 8. Two days later, the court
indicated on its Web site that it had amended Civil Local
Rule 77–3, which had previously banned the recording or
broadcast of court proceedings. The revised version of
Cite as: 588 U. S. ____ (2010) 5
Per Curiam
Rule 77–3 created an exception to this general prohibition
to allow “for participation in a pilot or other project au
thorized by the Judicial Council of the Ninth Circuit.” Id.,
Exh. 14. Applicants objected to the revision, arguing that
any change to Ninth Circuit or local rules would require a
sufficient notice and comment period.
On December 31, the District Court revised its Web site
to remove the previous announcement about the change to
Rule 77–3. A new announcement was posted indicating a
“proposed revision of Civil Local Rule 77–3,” which had
been “approved for public comment.” Id., Exh. 17. The
proposed revision was the same as the previously an
nounced amendment. Comments on the proposed revision
were to be submitted by Friday, January 8, 2010.
On January 4, 2010, the District Court again revised its
Web site. The announcement regarding the proposed
revision of Rule 77–3 was removed and replaced with a
third version of the announcement. This third version
stated that the revised Rule was “effective December 22,
2009,” and that “[t]he revised rule was adopted pursuant
to the ‘immediate need’ provision of Title 28 Section
2071(e).” Id., Exh. 19, at 3.
On January 6, 2010, the District Court held a hearing
regarding the recording and broadcasting of the upcoming
trial. The court announced that an audio and video feed of
trial proceedings would be streamed live to certain court
houses in other cities. It also announced that, pending
approval of the Chief Judge of the Ninth Circuit, the trial
would be recorded and then broadcast on the Internet. A
court technician explained that the proceedings would be
recorded by three cameras, and then the resulting broad
cast would be uploaded for posting on the Internet, with a
delay due to processing requirements.
On January 7, 2010, the District Court filed an order
formally requesting that Chief Judge Kozinski approve
“inclusion of the trial in the pilot project on the terms and
6 HOLLINGSWORTH v. PERRY
Per Curiam
conditions discussed at the January 6, 2010, hearing and
subject to resolution of certain technical issues.” Id., Exh.
1, at 2. Applicants filed a petition for a writ of mandamus
in the Court of Appeals, seeking to prohibit or stay the
District Court from enforcing its order. The following day,
a three-judge panel of the Court of Appeals denied the
petition.
On January 8, 2010, Chief Judge Kozinski issued an
order approving the District Court’s decision to allow real
time streaming of the trial to certain federal courthouses
listed in a simultaneously issued press release. Five
locations had been selected: federal courthouses in San
Francisco, Pasadena, Seattle, Portland, and Brooklyn.
The press release also indicated that “[a]dditional sites
may be announced.” Federal Courthouses to Offer Remote
Viewing of Proposition 8 Trial, online at
http://www.ca9.uscourts.gov/datastore/general/2010/01/08/
Prop8_Remote_Viewing_Locations.pdf (as visited Jan. 13,
2010, and available in the Clerk of Court’s case file).
Chief Judge Kozinski’s January 8 order noted that the
request to broadcast the trial on the Internet was “still
pending” before him. In a later letter to Chief Judge
Walker, he explained that the request was not yet “ripe for
approval” because “the technical staff encountered some
unexpected difficulties preparing a satisfactory video
suitable for on-line posting.” Letter of Jan. 9, 2010 (avail
able in Clerk of Court’s case file). A final decision whether
to permit online publication would be made when techni
cal difficulties were resolved.
On January 9, 2010, applicants filed in this Court an
application for a stay of the District Court’s order. Their
petition seeks a stay pending resolution of forthcoming
petitions for the writs of certiorari and mandamus.
II
The question whether courtroom proceedings should be
Cite as: 588 U. S. ____ (2010) 7
Per Curiam
broadcast has prompted considerable national debate.
Reasonable minds differ on the proper resolution of that
debate and on the restrictions, circumstances, and proce
dures under which such broadcasts should occur. We do
not here express any views on the propriety of broadcast
ing court proceedings generally.
Instead, our review is confined to a narrow legal issue:
whether the District Court’s amendment of its local rules
to broadcast this trial complied with federal law. We
conclude that it likely did not and that applicants have
demonstrated that irreparable harm would likely result
from the District Court’s actions. We therefore stay the
court’s January 7, 2010, order to the extent that it permits
the live streaming of court proceedings to other federal
courthouses. We do not address other aspects of that
order, such as those related to the broadcast of court pro
ceedings on the Internet, as this may be premature.
A
To obtain a stay pending the filing and disposition of a
petition for a writ of certiorari, an applicant must show
(1) a reasonable probability that four Justices will consider
the issue sufficiently meritorious to grant certiorari; (2) a
fair prospect that a majority of the Court will vote to
reverse the judgment below; and (3) a likelihood that
irreparable harm will result from the denial of a stay. In
close cases the Circuit Justice or the Court will balance
the equities and weigh the relative harms to the applicant
and to the respondent. Lucas v. Townsend, 486 U. S.
1301, 1304 (1988) (KENNEDY, J., in chambers); Rostker v.
Goldberg, 448 U. S. 1306, 1308 (1980) (Brennan, J., in
chambers). To obtain a stay pending the filing and dispo
sition of a petition for a writ of mandamus, an applicant
must show a fair prospect that a majority of the Court will
vote to grant mandamus and a likelihood that irreparable
harm will result from the denial of a stay. Before a writ of
8 HOLLINGSWORTH v. PERRY
Per Curiam
mandamus may issue, a party must establish that (1) “no
other adequate means [exist] to attain the relief he de
sires,” (2) the party’s “right to issuance of the writ is ‘clear
and indisputable,’ ” and (3) “the writ is appropriate under
the circumstances.” Cheney v. United States Dist. Court
for D. C., 542 U. S. 367, 380–381 (2004) (some internal
quotation marks omitted). This Court will issue the writ
of mandamus directly to a federal district court “only
where a question of public importance is involved, or
where the question is of such a nature that it is peculiarly
appropriate that such action by this court should be
taken.” Ex parte United States, 287 U. S. 241, 248–249
(1932). These familiar standards are followed here, where
applicants claim that the District Court’s order was based
on a local rule adopted in violation of federal law.
B
Given the importance of the issues at stake, and our
conclusion that the District Court likely violated a federal
statute in revising its local rules, applicants have shown a
fair prospect that a majority of this Court will either grant
a petition for a writ of certiorari and reverse the order
below or will grant a petition for a writ of mandamus.
A district court has discretion to adopt local rules.
Frazier v. Heebe, 482 U. S. 641, 645 (1987) (citing 28
U. S. C. §2071; Fed. Rule Civ. Proc. 83). Those rules have
“the force of law.” Weil v. Neary, 278 U. S. 160, 169
(1929). Federal law, however, requires a district court to
follow certain procedures to adopt or amend a local rule.
Local rules typically may not be amended unless the
district court “giv[es] appropriate public notice and an
opportunity for comment.” 28 U. S. C. §2071(b); see also
Fed. Rule Civ. Proc. 83(a). A limited exception permits
dispensing with this notice-and-comment requirement
only where “there is an immediate need for a rule.”
§2071(e). Even where a rule is amended based on imme
Cite as: 588 U. S. ____ (2010) 9
Per Curiam
diate need, however, the issuing court must “promptly
thereafter afford . . . notice and opportunity for comment.”
Ibid.
Before late December, the court’s Local Rule 77–3 ex
plicitly banned the broadcast of court proceedings:
“Unless allowed by a Judge or a Magistrate Judge
with respect to his or her own chambers or assigned
courtroom for ceremonial purposes, the taking of pho
tographs, public broadcasting or televising, or re
cording for those purposes in the courtroom or its en
virons, in connection with any judicial proceeding, is
prohibited. Electronic transmittal of courtroom pro
ceedings and presentation of evidence within the con
fines 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 cham
bers, 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 re
ceive or present evidence during Court proceedings.”
Notably, the Rule excepted from its general ban the trans
mittal of certain proceedings—but it limited that exception
to transmissions “within the confines of the courthouse.”
The negative inference of this exception, of course, is that
the Rule would have prohibited the streaming of trans
missions, or other broadcasting or televising, beyond “the
confines of the courthouse.”
Respondents do not dispute that this version of Rule 77–
3 would have prohibited streaming video of the trial
around the country. But they assert that this is not the
operative version of Rule 77–3. In a series of postings on
its Web site, the District Court purported to revise or
propose revisions to Local Rule 77–3. This amendment
would have created an additional exception to Rule 77–3’s
10 HOLLINGSWORTH v. PERRY
Per Curiam
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.” Exh. 14, App. to
Pet. Respondents rely on this amended version of the
Rule.
The amended version of Rule 77–3 appears to be invalid.
In amending this rule, it appears that the District Court
failed to “giv[e] appropriate public notice and an opportu
nity for comment,” as required by federal law. 28 U. S. C.
§2071(b). The first time the District Court asked for pub
lic comments was on the afternoon of New Year’s Eve.
The court stated that it would leave the comment period
open until January 8. At most, the District Court there
fore allowed a comment period spanning five business
days. There is substantial merit to the argument that this
was not “appropriate” notice and an opportunity for com
ment. Administrative agencies, for instance, “usually”
provide a comment period of “thirty days or more.” River
bend Farms, Inc. v. Madigan, 958 F. 2d 1479, 1484 (CA9
1992); see Petry v. Block, 737 F. 2d 1193, 1201 (CADC
1984) (“[T]he shortest period in which parties can mean
ingfully review a proposed rule and file informed re
sponses is thirty days”).
To be sure, the possibility that some aspects of the trial
might be broadcast was first raised to the parties by the
District Court at an in-court hearing on September 25,
some three months before the Rule was changed. The
broadcasting, however, was prohibited under both Circuit
and local rules at that time. The first public indication
that the District Court intended to adopt a rule of general
applicability came in its Web site posting on December 23.
And even if Chief Judge Walker’s in-court allusion to the
possibility that the Proposition 8 trial might be broadcast
could be considered as providing notice to the parties in
this case—his statement that “[t]his is all in flux” notwith
standing—the disclosure falls far short of the “appropriate
Cite as: 588 U. S. ____ (2010) 11
Per Curiam
public notice and an opportunity for comment” required by
§2071(b). Indeed, there was no proposed policy on which
to comment.
The need for a meaningful comment period was particu
larly acute in this case. Both courts and legislatures have
proceeded with appropriate caution in addressing this
question. In 1996, the Judicial Conference of the United
States adopted a policy opposing the public broadcast of
court proceedings. This policy was adopted after a multi
year study of the issue by the Federal Judicial Center
which drew on data from six district and two appellate
courts, as well as state-court data. In light of the study’s
findings, the Judicial Conference concluded that “the
intimidating effect of cameras on some witnesses and
jurors [is] cause for concern.” Report of the Proceedings of
the Judicial Conference of the United States 47 (Sept. 20,
1994).
In more than a decade since its adoption the Judicial
Conference has continued to adhere to its position on the
broadcast of court proceedings. While the policy conclu
sions of the Judicial Conference may not be binding on the
lower courts, they are “at the very least entitled to respect
ful consideration.” In re Sony BMG Music Entertainment,
564 F. 3d 1, 6 (CA1 2009). Before abandoning its own
policy—one consistent with the Judicial Conference’s
longstanding views—it was incumbent on the District
Court to adopt a proposed rule only after notice and an
adequate period for public comment.
In dispensing with public notice and comment the Dis
trict Court invoked the “immediate need” exception. 28
U. S. C. §2071(e). It did so through a Web site posting on
January 4—prior to the expiration of the comment pe
riod—indicating that Rule 77–3 had been revised to per
mit participation in the Ninth Circuit’s pilot program.
These postings gave no explanation for invoking the ex
ception. At trial the District Court explained that the
12 HOLLINGSWORTH v. PERRY
Per Curiam
immediate need here was to allow this case to be broad
cast pursuant to the Ninth Circuit’s new pilot program.
See Exh. 1, p. 11, Supp. App. to Response for Perry et al.
This does not qualify as an immediate need that justi
fies dispensing with the notice and comment procedures
required by federal law. While respondents (the plaintiffs
in the District Court) had indicated their approval of the
plan, no party alleged that it would be imminently harmed
if the trial were not broadcast. Had an administrative
agency acted as the District Court did here, the immediate
need exception would likely not have been available. See
5 U. S. C. §553(b)(B) (administrative agencies cannot
invoke an exception to affording notice-and-comment
before rulemaking unless the notice-and-comment proce
dures would be “impracticable, unnecessary, or contrary to
the public interest”). In issuing its order the District
Court relied on the Ninth Circuit Judicial Council’s pilot
program. Yet nothing in that program—which was not
adopted after notice and comment procedures, cf. 28
U. S. C. §332(d)(1)—required any “immediate” revision in
local rules. The Ninth Circuit Judicial Council did not
purport to modify or abrogate the District Court’s local
Rule. Nor could it, as the Judicial Council only has the
power to modify or abrogate local rules that conflict with
federal law. See §332(d)(4) (permitting a circuit court
council to modify a local rule that is “found inconsistent”
with rules promulgated by the Supreme Court). No fed
eral law requires that the District Court broadcast some of
its cases. The District Court’s local Rule, in addition, was
not a conforming amendment to Ninth Circuit policy,
because that policy does not require district courts to
broadcast proceedings.
Applicants also have shown that irreparable harm will
likely result from the denial of the stay. Without a stay,
the District Court will broadcast the trial. It would be
difficult—if not impossible—to reverse the harm from
Cite as: 588 U. S. ____ (2010) 13
Per Curiam
those broadcasts. The trial will involve various witnesses,
including members of same-sex couples; academics, who
apparently will discuss gender issues and gender equality,
as well as family structures; and those who participated in
the campaign leading to the adoption of Proposition 8.
This Court has recognized that witness testimony may be
chilled if broadcast. See Estes v. Texas, 381 U. S. 532, 547
(1965); id., at 591 (Harlan, J., concurring). Some of appli
cants’ witnesses have already said that they will not tes
tify if the trial is broadcast, and they have substantiated
their concerns by citing incidents of past harassment. See,
e.g., Exh. K to Defendant-Intervenors’ Motion (71 news
articles detailing incidents of harassment related to people
who supported Proposition 8). These concerns are not
diminished by the fact that some of applicants’ witnesses
are compensated expert witnesses. There are qualitative
differences between making public appearances regarding
an issue and having one’s testimony broadcast throughout
the country. Applicants may not be able to obtain ade
quate relief through an appeal. The trial will have already
been broadcast. It is difficult to demonstrate or analyze
whether a witness would have testified differently if his or
her testimony had not been broadcast. And witnesses
subject to harassment as a result of broadcast of their
testimony might be less likely to cooperate in any future
proceedings.
The balance of equities favors applicants. While appli
cants have demonstrated the threat of harm they face if
the trial is broadcast, respondents have not alleged any
harm if the trial is not broadcast. The issue, moreover,
must be resolved at this stage, for the injury likely cannot
be undone once the broadcast takes place.
This Court also has a significant interest in supervising
the administration of the judicial system. See this Court’s
Rule 10(a) (the Court will consider whether the courts
below have “so far departed from the accepted and usual
14 HOLLINGSWORTH v. PERRY
Per Curiam
course of judicial proceedings . . . as to call for an exercise
of this Court’s supervisory power”). The Court may use its
supervisory authority to invalidate local rules that were
promulgated in violation of an Act of Congress. See Fra
zier, 482 U. S., at 645–646; id., at 652, 654 (Rehnquist,
C. J., dissenting). The Court’s interest in ensuring com
pliance with proper rules of judicial administration is
particularly acute when those rules relate to the integrity
of judicial processes. The 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 broadcasting of this high-profile trial
without any considered standards or guidelines in place.
The arguments in favor of developing procedures and rules
to allow broadcast of certain cases have considerable
merit, and reasonable minds can surely differ over the
general and specific terms of rules and standards adopted
for that purpose. Here, however, the order in question
complied neither with existing rules or policies nor the
required procedures for amending them.
By insisting that courts comply with the law, parties
vindicate not only the rights they assert but also the law’s
own insistence on neutrality and fidelity to principle.
Those systematic interests are all the more evident here,
where the lack of a regular rule with proper standards to
determine the guidelines for broadcasting could compro
mise the orderly, decorous, rational traditions that courts
rely upon to ensure the integrity of their own judgments.
These considerations, too, are part of the reasons leading
to the decision to grant extraordinary relief.
In addressing a discrete instance authorizing a closed
circuit broadcast of a trial, Congress has illustrated the
need for careful guidelines and standards. The trial of the
two defendants in the Oklahoma City bombing case had
been transferred to the United States District Court for
the District of Colorado, so it was set to take place in
Cite as: 588 U. S. ____ (2010) 15
Per Curiam
Denver. That meant the families of deceased and surviv
ing victims in and around Oklahoma City would not have
the opportunity to observe the trial. Congress passed a
statute that allowed victims’ families to watch the trial on
closed-circuit television. 42 U. S. C. §10608. The statute
was drawn with care to provide precise and detailed guid
ance with respect to the wide range of issues implicated by
the broadcast. See §10608(a) (the statute only applies “in
cases where the venue of the trial is changed” to a city
that is “out of the State” and “more than 350 miles from
the location in which those proceedings originally would
have taken place”); §§10608(a)–(b) (standards for who can
view such trials); §10608(c) (restrictions on transmission).
And the statute gave the Judicial Conference of the United
States rulemaking authority “to effectuate the policy
addressed by this section.” §10608(g). In the present case,
by contrast, over a span of three weeks the District Court
and Ninth Circuit Judicial Council issued, retracted, and
reissued a series of Web site postings and news releases.
These purport to amend rules and policies at the heart of
an ongoing consideration of broadcasting federal trials.
And they have done so to make sure that one particular
trial may be broadcast. Congress’ requirement of a notice
and comment procedure prevents just such arbitrary
changes of court rules. Instead, courts must use the pro
cedures prescribed by statute to amend their rules, 28
U. S. C. §2071.
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, in which several
of the witnesses have stated concerns for their own secu
rity. Even districts that allow trials to be broadcast, see
Civ. Rule 1.8 (SDNY 2009); Civ. Rule 1.8 (EDNY 2009),
recognize that a district judge’s discretion to broadcast a
trial is limited, see, e.g., Hamilton v. Accu-Tek, 942
F. Supp. 136, 138 (EDNY 1996) (broadcast forbidden
16 HOLLINGSWORTH v. PERRY
Per Curiam
unless “there is no interference with the due process, the
dignity of litigants, jurors and witnesses, or with other
appropriate aspects of the administration of justice”).
Consequently, courts in those districts have allowed the
broadcast of their proceedings on the basis that those
cases were not high profile, E*Trade Financial Corp. v.
Deutsche Bank AG, 582 F. Supp. 2d 528, 535 (SDNY
2008), or did not involve witnesses, Marisol A. v. Giuliani,
929 F. Supp. 660, 661 (SDNY 1996); Katzman v. Victoria’s
Secret Catalogue, 923 F. Supp. 580, 586–587 (SDNY 1996).
Indeed, one District Court did not allow the broadcasting
of its proceedings because the case “involv[ed] very sensi
tive issues.” Schoeps v. Museum of Modern Art, 599
F. Supp. 2d 532, 534 (SDNY 2009). This case, too, in
volves issues subject to intense debate in our society. The
District Court intends not only to broadcast the attorneys’
arguments but also witness testimony. See Sony BMG,
564 F. 3d, at 11 (Lipez, J., concurring) (distinguishing
broadcast of attorneys’ arguments from other parts of the
trial). This case is therefore not a good one for a pilot
program. Even the studies that have been conducted thus
far have not analyzed the effect of broadcasting in high
profile, divisive cases. See Application for Stay 17 (warn
ing by Judge Edward R. Becker that in “ ‘truly high-profile
cases,’ ” one can “ ‘[j]ust imagine what the findings would
be’ ” (quoting Exh. 21, at 2, App. to Pet.)).
III
The District Court attempted to change its rules at the
eleventh hour to treat this case differently than other
trials in the district. Not only did it ignore the federal
statute that establishes the procedures by which its rules
may be amended, its express purpose was to broadcast a
high-profile trial that would include witness testimony
about a contentious issue. If courts are to require that
others follow regular procedures, courts must do so as
Cite as: 588 U. S. ____ (2010) 17
Per Curiam
well. The Court grants 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 or the filing and disposition of a petition for a
writ of mandamus.
It is so ordered.
Cite as: 558 U. S. ____ (2010) 1
BREYER, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 09A648
_________________
DENNIS HOLLINGSWORTH ET AL. v. KRISTIN M.
PERRY ET AL.
ON APPLICATION FOR STAY
[January 13, 2010]
JUSTICE BREYER, with whom JUSTICE STEVENS, JUSTICE
GINSBURG and JUSTICE SOTOMAYOR join, dissenting.
The Court today issues an order that will prevent the
transmission of proceedings in a nonjury civil case of great
public interest to five other federal courthouses located in
Seattle, Pasadena, Portland, San Francisco, and Brooklyn.
The Court agrees that it can issue this extraordinary legal
relief only if (1) there is a fair chance the District Court
was wrong about the underlying legal question, (2) that
legal question meets this Court’s certiorari standards, (3)
refusal of the relief would work “irreparable harm,” (4) the
balance of the equities (including, the Court should say,
possible harm to the public interest) favors issuance, (5)
the party’s right to the relief is “clear and undisputable,”
and (6) the “question is of public importance” (or otherwise
“peculiarly appropriate” for such action). See ante, at 6–7;
Rostker v. Goldberg, 448 U. S., 1306, 1308 (1980) (Bren
nan, J., in chambers) (stay standard); Cheney v. United
States Dist. Court for D. C., 542 U. S. 367, 380 (2004)
(noting that mandamus is a “drastic and extraordinary
remedy reserved for really extraordinary causes” (internal
quotation marks omitted)). This case, in my view, does not
satisfy a single one of these standards, let alone all of
them. Consequently, I must dissent.
First, consider the merits of the legal issue: The United
States Code, in a chapter entitled “Rules of Courts,” states
2 HOLLINGSWORTH v. PERRY
BREYER, J., dissenting
that “[a]ny rule . . . shall be prescribed only after giving
appropriate public notice and an opportunity for com
ment.” 28 U. S. C. §2071(b). The question here is whether
the District Court accompanied the modification of its
antivideo rule with “appropriate public notice and an
opportunity for comment.”
Certainly the parties themselves had more than ade
quate notice and opportunity to comment before the Rule
was changed. On September 25, 2009, the trial judge,
Chief Judge Vaughn Walker, discussed the possibility of
broadcasting trial proceedings both within the courthouse
and beyond, and asked for the parties’ views. No party
objected to the presence of cameras in the courtroom for
transmissions within the courthouse, Exh. 9, p. 70, App. to
Pet. for Mandamus in No. 10–70063 (CA9) (hereinafter
App. to Pet.). (“No objection. None at all”), and both sides
made written submissions to the court regarding their
views on other transmissions. The court again raised the
issue at a hearing on December 16.
Nor, in practice, did other members of the Judiciary lack
information about the issue. In May 1996 the Circuit
Council adopted a policy permitting video in connection
with appellate proceedings, but prohibiting its use in the
district court. Subsequently, appellate court panels have
frequently permitted electronic coverage. Judges, the
press, lawyers, and others have discussed the matter. In
2007 the lawyers and judges present at the Ninth Circuit
Judicial Conference considered a resolution that favored
the use of cameras in district court civil nonjury proceed
ings. And, voting separately, both lawyers and judges
“approved the resolution by resounding margins.” Letter
from Chief Judge Kozinski to Judge Anthony Scirica (Jan.
10, 2010), Exh. 8, p. 4, Supp. App. to Response for Perry
et al. (hereinafter Supp. App. to Response). Subsequently,
a committee of judges was created to study the matter.
And on December 17, 2009, the Circuit Council voted to
Cite as: 558 U. S. ____ (2010) 3
BREYER, J., dissenting
authorize a pilot program permitting the use of video in
nonjury civil cases as part of an “experiment with the
dissemination of video recordings in civil nonjury matters”
(specifically those selected by the Chief Judge of the Cir
cuit and the Chief Judge of the District Court). And it
issued a press release. News Release, Ninth Circuit Judi
cial Council Approves Experimental Use of Cameras in
District Courts (Dec. 17, 2009), Exh, 13. App. to Pet.
In this context the United States District Court for the
Northern District of California amended its local rules on
December 22, 2009 to bring them into conformity with
Ninth Circuit policy. In particular, the court amended the
local Rule forbidding the public broadcasting or televising
of court proceedings by creating an exception “for partici
pation in a pilot or other project authorized by the Judicial
Council of the Ninth Circuit.” Public Notice Concerning
Revisions of Civil Local Rule 77–3, id., Exh. 14. The court
initially relied on a provision in the United States Code
that permits District Courts to prescribe rules “without
public notice and opportunity for comment” “[i]f the pre
scribing court determines that there is an immediate need
for a rule,” and if the court “promptly thereafter afford[s]
such notice and opportunity for comment,” 28 U. S. C. §
2071(e). See Exh. 1, at 11, Supp. App. to Response. Then,
on December 31, the court revised its public notice to ask
for comments directly. By January 8, 2010, the court had
received 138,574 comments, all but 32 of which favored
transmitting the proceedings. Id., at 12.
Viewed in light of this history, the court satisfied the
statute’s insistence that “notice” be “appropriate.” Cf. 28
U. S. C. §§2071(b), (e). The parties, the judges, and the
interested public were aware of the proposals to change
Ninth Circuit policy that culminated in the “pilot pro
gram” well before the change in the local rules that en
abled participation in the project. The Ninth Circuit
issued a press release in mid-December explaining its new
4 HOLLINGSWORTH v. PERRY
BREYER, J., dissenting
“pilot program.” Then, once the District Court amended
its local rule, it issued its own notice nearly three weeks
before the transmissions that the rule change authorized
were to begin. And the rule change itself is simply a
change that conforms local rule to Circuit policy—a con
formity that the law may well require. (The Judicial
Council had long before voted to make its video policy
“binding on all courts within the Ninth Circuit,” Letter
from Chief Judge Hug to All Ninth Circuit Judges (June
21, 1996) (available in Clerk of Court’s case file); it an
nounced its new “pilot program” policy in December 2009,
App. to Application, Exh. 13, App. to Pet.; and federal
statutes render district court rules void insofar as they
have been “modified or abrogated” by the Council, see
§2071(c)(1). Compare ante, at 11 (“Council only has the
power to modify or abrogate local rules that conflict with
federal law”), with 28 U. S. C. §332(d)(1) (“[C]ouncil shall
make all necessary and appropriate orders for the effective
and expeditious administration of justice within its cir
cuit”).) The applicants point to no interested person un
aware of the change. How can the Majority reasonably
demand yet more notice in respect to a local rule modifica
tion that a statute likely requires regardless?
There was also sufficient “opportunity for comment.”
The parties, the intervenors, other judges, the public—all
had an opportunity to comment. The parties were specifi
cally invited by Chief Judge Walker to comment on the
possibility of broadcast as early as September. And the
entire public was invited by the District Court to submit
comments after the rule change was announced, right up
to the eve of trial. As I said, the court received 138,574
comments during that time. How much more “opportunity
for comment” does the Court believe necessary, particu
larly when the statutes themselves authorize the local
court to put a new rule into effect “without” receiving any
“comments” before doing so when that local “court deter
Cite as: 558 U. S. ____ (2010) 5
BREYER, J., dissenting
mines that there is an immediate need” to do so (and to
receive comments later)? And more importantly, what is
the legal source of the Court’s demand for additional
comment time in respect to a rule change to conform to
Judicial Council policy?
Second, this legal question is not the kind of legal ques
tion that this Court would normally grant certiorari to
consider. There is no conflict among the state or federal
courts regarding the procedures by which a district court
changes its local rules. Cf. this Court’s Rules 10(a)–(b).
The technical validity of the procedures followed below
does not implicate an open “important question of federal
law.” Cf. Rule 10(c). Nor do the procedures below clearly
conflict with any precedent from this Court. Cf. ibid.It is particularly inadvisable for this Court to consider
this kind of question because it involves local rules and
local judicial administration. Here, for example, the Court
decides just how a district court should modify its own
local rules; in a word, this Court micromanages district
court administrative procedures in the most detailed way.
And, without briefing, the Court imposes limitations on
the Judicial Councils’ ability to implement policy deci
sions, ante, at 11–12 (suggesting Council policy does not
abrogate local rules), with consequences we cannot pre
dict. The District Councils, the Circuit Councils, the
Judicial Conference of the United States, and the Chief
Justice bear responsibility for judicial administration, not
this Court. See 28 U. S. C. §§331–332. And those bodies
have adequate authority to resolve disagreements about
how to promulgate and apply local rules, and, particularly,
about the use of cameras in the courtroom.
For the past 80 years, local judicial administration has
been left to the exclusive province of the Circuit Judicial
Councils, and this Court lacks their institutional experi
ence. See generally P. Fish, The Politics of Federal Judi
cial Administration 152–153 (1973) (From their creation,
6 HOLLINGSWORTH v. PERRY
BREYER, J., dissenting
“[t]he councils constituted . . . a mechanism through which
there could be a concentration of responsibility in the
various Circuits—immediate responsibility for the work of
the courts, with power and authority . . . to insure compe
tence in th[eir] work . . .”). For that reason it is inappro
priate as well as unnecessary for this Court to intervene in
the procedural aspects of local judicial administration.
Perhaps that is why I have not been able to find any other
case in which this Court has previously done so, through
emergency relief or otherwise. Cf. Bank of Nova Scotia v.
United States, 487 U. S. 250, 264 (1988) (SCALIA, J., con
curring) (“I do not see the basis for any direct authority to
supervise lower courts” (citing Frazier v. Heebe, 482 U. S.
641, 651–652 (1987) (Rehnquist, C. J., dissenting))). Nor
am I aware of any instance in which this Court has pre
emptively sought to micromanage district court proceed
ings as it does today.
I recognize that the Court may see this matter not as
one of promulgating and applying a local rule but, rather,
as presenting the larger question of the place of cameras
in the courtroom. But the wisdom of a camera policy is
primarily a matter for the proper administrative bodies to
determine. See 28 U. S. C. §332. This Court has no legal
authority to address that larger policy question except
insofar as it implicates a question of law. The relevant
question of law here concerns the procedure for amending
local rules. And the only relevant legal principles that
allow us here to take account of the immediate subject
matter of that local rule, namely cameras, are those legal
principles that permit us—indeed require us—to look to
the nature of the harm at issue and to balance equities,
including the public interest. I consequently turn to those
two matters.
Third, consider the harm: I can find no basis for the
Court’s conclusion that, were the transmissions to other
courtrooms to take place, the applicants would suffer
Cite as: 558 U. S. ____ (2010) 7
BREYER, J., dissenting
irreparable harm. Certainly there is no evidence that
such harm could arise in this nonjury civil case from the
simple fact of transmission itself. By my count, 42 States
and two Federal District Courts currently give judges the
discretion to broadcast civil nonjury trials. See Media
Privacy and Related Law 2009–10 (2009) (collecting state
statutes and rules); Civ. Rule 1.8 (SDNY 2009); Civ. Rule
1.8 (EDNY 2009). Neither the applicants nor anyone else
“has been able to present empirical data sufficient to
establish that the mere presence of the broadcast media
inherently has an adverse effect on [the judicial] process,”
Chandler v. Florida, 449 U. S. 560, 578–579 (1981). Cf. M.
Cohn & D. Dow, Cameras in the Courtroom: Television
and the Pursuit of Justice 62–64 (1998) (canvassing stud
ies, none of which found harm, and one of which found
that witnesses “who faced an obvious camera, provided
answers that were more correct, lengthier and more de
tailed”). And, in any event, any harm to the parties, in
cluding the applicants, is reparable through appeal. Cf.
Chandler, supra, at 581.
The applicants also claim that the transmission will
irreparably harm the witnesses themselves, presumably
by increasing the public’s awareness of who those wit
nesses are. And they claim that some members of the
public might harass those witnesses. But the witnesses,
although capable of doing so, have not asked this Court to
set aside the District Court’s order. Cf. Miller v. Albright,
523 U. S. 420, 445 (1998) (O’Connor, J., joined by
KENNEDY, J., concurring in judgment); Powers v. Ohio,
499 U. S. 400, 411 (1991). And that is not surprising. All
of the witnesses supporting the applicants are already
publicly identified with their cause. They are all experts
or advocates who have either already appeared on televi
sion or Internet broadcasts, already toured the State
advocating a “yes” vote on Proposition 8, or already en
gaged in extensive public commentary far more likely to
8 HOLLINGSWORTH v. PERRY
BREYER, J., dissenting
make them well known than a closed-circuit broadcast to
another federal courthouse.
The likelihood of any “irreparable” harm is further
diminished by the fact that the court order before us
would simply increase the trial’s viewing audience from
the occupants of one courtroom in one courthouse to the
occupants of five other courtrooms in five other court
houses (in all of which taking pictures or retransmissions
have been forbidden). By way of comparison literally
hundreds of national and international newspapers are
already covering this trial and reporting in detail the
names and testimony of all of the witnesses. See, e.g.,
Leff, Woman Recalls Emotional Ordeal of Gay Marriage
Ban, Associated Press, Jan. 11, 2010. I see no reason why
the incremental increase in exposure caused by transmit
ting these proceedings to five additional courtrooms would
create any further risk of harm, as the Court apparently
believes. See ante, at 13. Moreover, if in respect to any
particular witness this transmission threatens harm, the
District Court can prevent that harm. Chief Judge
Walker has already said that he would keep the broadcast
“completely under the Court’s control, to permit the Court
to stop it if [it] proves to be a problem, if it proves to be a
distraction, [or] if it proves to create problems with wit
nesses.” See Exh. 2, at 45, App. to Pet. The Circuit Coun
cil confirmed in a press release that the District Court
“will fully control the process” and that “Judge Walker has
reserved the right to terminate any part of the audio
or video, or both, for any duration” or to terminate par
ticipation in the pilot program “at any time.” News
Release, Federal Courthouses to Offer Remote Viewing
of Pro-position 8 Trial (Jan. 8, 2010), http://www.
ca9.uscourts.gov/datastore/general/2010/01/08/Prop8_
Remote_Viewing_Locations.pdf (as visited Jan. 13, 2010,
and available in Clerk of Court’s case file). Surely such
firm control, exercised by an able district court judge with
Cite as: 558 U. S. ____ (2010) 9
BREYER, J., dissenting
20 years of trial-management experience, will be sufficient
to address any possible harm, either to the witnesses or to
the integrity of the trial.
Fourth, no fair balancing of the equities (including harm
to the public interest) could support issuance of the stay.
See Times-Picayune Publishing Corp. v. Schulingkamp,
419 U. S. 1301, 1305 (1974) (Powell, J. in Chambers)
(recognizing “significant public and private interests
balanced on both sides” when “present[ed with] a funda
mental confrontation between the competing values of free
press and fair trial”). As I have just explained, the appli
cants’ equities consist of potential harm to witnesses—
harm that is either nonexistent or that can be cured
through protective measures by the District Court as the
circumstances warrant. The competing equities consist of
not only respondents’ interest in obtaining the courthouse
to-courthouse transmission that they desire, but also the
public’s interest in observing trial proceedings to learn
about this case and about how courts work. See Nebraska
Press Assn. v. Stuart, 427 U. S. 539, 587 (1976) (Brennan,
J., concurring in judgment); see also Exh. 2, at 42, App. to
Pet. (statement of Chief Judge Walker) (“[I]f the public
could see how the judicial process works, they would take
a somewhat different view of it.” “I think the only time
that you’re going to draw sufficient interest in the legal
process is when you have an issue such as the issues here,
that people think about, talk about, debate about and
consider”). With these considerations in the balance, the
scales tip heavily against, not in favor, of issuing the stay.
The majority’s action today is unusual. It grants a stay
in order to consider a mandamus petition, with a view to
intervening in a matter of local court administration that
it would not (and should not) consider. It cites no prece
dent for doing so. It identifies no real harm, let alone
“irreparable harm,” to justify its issuance of this stay.
And the public interest weighs in favor of providing access
10 HOLLINGSWORTH v. PERRY
BREYER, J., dissenting
to the courts. To justify this extraordinary intervention,
the majority insists that courts must “enforce the re
quirement of procedural regularity on others, and must
follow those requirements themselves.” Ante, at 1. And so
too I believe this Court should adhere to its institutional
competence, its historical practice, and its governing
precedent—all of which counsel strongly against the issu
ance of this stay.
I respectfully dissent.