CTIA - The Wireless Association v. The City and County of San Francisco, California
Filing
123
LETTER TO MOLLY DWYER, CLERK OF COURT, NINTH CIRCUIT. Signed by Judge William Alsup on 8/20/2012. (whasec, COURT STAFF) (Filed on 8/20/2012)
<![CDATA[
August 20, 2012
Molly Dwyer
Clerk of Court
Office of the Clerk
United States Court of Appeals for the Ninth Circuit
P.O. Box 193939
San Francisco, CA 94119-3939
Re:
CTIA - The Wireless Association v. City and County of San Francisco,
Nos. 11-17707, 11-17773
Dear Ms. Dwyer:
Pursuant to General Order 12.10, the district judge in the above-captioned case
submits the following comment for distribution to the panel that will review the
preliminary-injunction appeal in this case. The press has reported that during appellate
oral argument in this case, Attorney Andrew McBride, counsel for plaintiff CTIA – The
Wireless Association, stated, “The judge proposed his own language to revise [the fact
sheet], San Francisco adopted that language in a week, and I never got an opportunity to
put in evidence on this new revised fact sheet.” McBride is further quoted as stating,
“I didn’t even get a chance to address the revised fact sheet.” Scott Graham, At the
Podium: Alsup Gets Static for Making Call on Cellphone Dangers, THE RECORDER,
August 17, 2012.
Counsel has implied that the Court gave no further opportunity to comment prior
to approving the final version of the revised fact-sheet. This is incorrect. The order
dated October 27, 2011, stated in its conclusion:
By NOON ON NOVEMBER 4, 2011, counsel shall meet and
confer, shall agree on a revised fact-sheet to include the
corrections described above, and shall submit an agreed-on
version conforming to this order (reserving all appeal rights)
or, failing agreement, shall submit their competing versions
without further briefing. Please do not re-argue the main
issues. If San Francisco will not accept the above corrective
items, then the entire ordinance will be ENJOINED as violative
Molly Dwyer
Clerk of Court
August 20, 2012
Page 2
of the First Amendment. Through NOVEMBER 30, the entire
ordinance is temporarily STAYED in order to allow applications
to promptly be made to the court of appeals to modify this
order. After that date, the fact-sheet requirement, once
corrected and vetted by the Court, may be enforced by San
Francisco unless stayed by the court of appeals.
The October 27 order gave both sides an opportunity to further comment upon
specific revisions and how they would be worded. On November 4, 2011, plaintiff CTIA –
The Wireless Association, submitted a response to the October 27 order. In relevant part,
the response stated, “CTIA has reviewed the proposed revised ‘fact-sheet’ as required by
the Court’s Order, and has determined that the City’s revised ‘fact-sheet’ contains the
changes required by the Order. CTIA makes no other representation or statement
regarding the proposed revised ‘fact-sheet’ and reserves all its rights to challenge any
aspect of the content or promulgation of the fact-sheet (Dkt. No. 98 at 2). In its response to
the October 27 order, CTIA did not request a further opportunity to submit evidence or a
further hearing.
Furthermore, if the Court was free to deny all provisional relief without the benefit
of a further hearing (beyond the normal briefing and hearing), then it is hard to see why
the Court was somehow barred from doing the lesser, meaning granting partial (and
substantial) provisional relief without the necessity of a further hearing. However, at least
to the extent set forth above, a further opportunity to be heard was provided.
Respectfully,
William Alsup
United States District Judge
Northern District of California
cc: Counsel
]]>
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?
