FURTHER UPDATE Friday 6:15 p.m. The two same-sex California couples who successfully challenged the constitutionality of the Proposition 8 ban on gay marriage urged the Ninth Circuit Court on Friday to make public the full videotape of the 12-day trial in District Court last year, arguing that the First Amendment and the common law strongly favor public access to the records  of public trials.  The plea was made as the couples’ lawyers urged the Circuit Court not to order the trial judge and the couples’ lawyers to return to the court all copies of the videotape — a complete, unedited video of the entire trial, now under seal in the District Court.

The couples’ new filing argued that the trial judge, Vaughn R. Walker, did not violate any court rules and did not violate the Supreme Court order barring TV broadcast of the trial as it occurred, outside the federal courthouse in San Francisco.  The couples contended that the proponents of the marriage ban were trying to shield from public view their efforts to defend in court the discrimination they sought in Proposition 8.

Officials of San Francisco, in their own new filing, argued that there is no need to keep the videotape secret any longer, and contended that the Proposition 8 backers have not proved that they will be harmed in any way if the tapes become publicly available, since so much of the case already has been made public, and the proponents themselves have actively joined in publicizing the dispute.

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UPDATE Thursday 9:05 p.m. Retired U.S. District Judge Vaughn R. Walker told the Ninth Circuit Court Thursday that he had played in public lectures a portion of videotape, three minutes in length, from the trial on the constitutionality of the Proposition 8 ban on same-sex marriage in California.  In a two-page letter responding to a challenge by the ballot measure’s proponents, he said he would return the videotape in his possession if told to do so.  His use of the portion, he said, had occurred twice, as part of a talk on cameras in the courtroom, and he added that he had used it in a law school class he is teaching.  His letter did not mention the proponents’ charge that his action had defied the Supreme Court.

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PUBLISHED Wednesday: Accusing the federal judge who tried the constitutional case against California’s ban on same-sex marriage of defying a Supreme Court order not to allow public broadcasting of videotape of that trial, the backers of the Proposition 8 ban asked the Ninth Circuit Court on Wednesday to order the now-retired jurist to turn in all copies he has of those recordings, and to order him not to make any further disclosure.  The sharply-worded motion (found here) also asked that the lawyers for the couples who brought the case be required to hand over any copies they have.

The proponents said that Judge Walker, who retired at the end of February, had made a speech at the University of Arizona ten days earlier — on Feb. 18 — and played a part of the videotaped proceeding: specifically, the cross-examination of an expert witness who testified in favor of the marriage ban.  The motion said that the speech was covered by C-SPAN cable TV network and broadcast several times, beginning March 22.  That expert witness, the motion added, had agreed to testify in the trial only after getting assurances from the judge that there would be no broadcast; that witness, it added, “now regrets his decision to trust this assurance.”

The new challenge revives a controversy that led the Supreme Court, in January a year ago, to abruptly order the judge not to allow any TV broadcast to the general public of the trial in the case in which two same-sex couples had challenged the constitutionality of Proposition 8.  By a 5-4 vote, the Court ruled that the judge had no legal authority to arrange for TV coverage that went beyond the confines of the courthouse in San Francisco where the trial occurred.  The trial went forward without broadcast, but with the proceedings videotaped; in August, Judge Walker struck down the ballot measure under the federal Constitution; the case is now pending on appeal in the Ninth Circuit (Perry, et al., v. Brown, et al., docket 10-16696).

The dispute over the videotapes appeared to have ended last October, when the Supreme Court, in a subsequent order, told the Circuit Court to dismiss “as moot” the Proposition 8 backers’ legal challenge to the broadcast plan.

In their new motion to the Ninth Circuit, those proponents said that Judge Walker had “made no secret of his strong disagreement with the rules and policies prohibiting the broadcast of trial proceedings.”  His February speech, it noted, had the title: “Shooting the Messenger: How Cameras in the Courtroom Got a Bad Rap.”  Moreover, the new filing said, the judge’s “advocacy was no less fervent from the bench in this case.”

Judge Walker, after the Supreme Court banned the trial broadcast, agreed over the Proposition 8 backers’ objection to videotape the trial proceedings.  When further challenged, the new motion recalled, the judge said that the videotape would be used to help him in preparing his fact-finding in the case, and not for public broadcasting.   The proponents said they relied on that assurance, so they took no further action to prevent the recording.

The judge later urged both sides to use portions of the videotape during their closing oral arguments, and gave each side a copy, under orders to keep it confidential otherwise.  The couples’ lawyers did use a portion during closing argument.  The proponents then made a plea to have all copies returned to the court, but the judge turned down that request, but ordered the videotapes sealed as part of the record and told lawyers to keep their copies confidential.

Lawyers for the proponents told the Ninth Circuit that they learned about the judge’s playing of a part of the videotape in Arizona only after it was broadcast on cable TV in March.

In pleading for an order requiring the judge and the couples’ lawyers to return all copies of the videotapes, the Proposition 8 backers leveled these complaints against Judge Walker: (1) violated his own order to seal the videotape; (2) ignore a local court rule barring transmission of trials beyond the courthouse; (3) broke the policies of the U.S. Judicial Conference against public broadcasts of federal court trials; and (4) “defied the United States Supreme Court’s prior decision in this case…”

Turning to a remedy, the motion said “What’s done is done.”  The speech and the cable TV broadcasts “cannot be undone,” and the judge’s retirement means he cannot be disciplined, it said.  “But he can be ordered to cease further unlawful and improper disclosures of the trial recordings, or any portion therefore, and to return to this Court any copies of the trial recordings in his possession, custody, or control.”  The same should be ordered for the couples’ attorneys, the filing argued.

Since any purpose of sharing the videotape with the couples’ lawyer has now been fulfilled, the motion said, there is no need for anyone outside the court to have the videotape in their possession.

Posted in Cases in the Pipeline, Featured

Recommended Citation: Lyle Denniston, FURTHER UPDATE: Plea to make public Prop. 8 trial video, SCOTUSblog (Apr. 15, 2011, 4:02 PM), http://www.scotusblog.com/2011/04/prop-8-judge-challenged-anew/