Prop. 8: Video release barred
on Feb 2, 2012 at 1:19 pm
The Ninth Circuit Court on Thursday barred the public release of a videotape recording of the historic trial two years ago on the constitutionality of California’s Proposition 8 — a voter-approved ban on same-sex marriage in the state. The three-judge panel, in a unanimous ruling, found that the trial judge had promised both sides in the case that “the recording would not be publicly broadcast” and it said that the parties were entitled to rely upon that promise. The result is to bar public broadcast of the visual record of the three-week trial held in January 2010.
The decision did not resolve any other issue in the case, including the question of whether Proposition 8 is valid under the federal Constitution, and whether the trial judge should have taken himself out of the case because he is a gay man with a long-term male partner he might one day wish to marry. The same Circuit Court panel has those issues under study, and is expected to decide them shortly, although no timing for those decisions has been announced.
The Circuit Court’s decision against making the tape public for use by the media as they wished marked the second time that television coverage of the trial has been thwarted. The Supreme Court, just after the opening of the trial, had barred the live or delayed broadcast of the trial proceedings in courthouses around the country. Since then, only a few snippets of the videotape made at the trial have been shown publicly, and then only to very limited audiences.
There is currently a dramatic presentation of the trial, appearing in several parts of the nation, that is based on the actual trial transcript, with actors fulfilling the roles of trial participants. Unless Thursday’s result is overturned on further review, and that seems unlikely, the videotape itself appears likely to remain sealed indefinitely. It is now held in the vault of the federal District Court in San Francisco, where the trial was held. The current chief judge of that court, District Judge James Ware, in September ordered the release of the videotape, finding that transparency was of fundamental importance to public support of the judiciary. It was his ruling that the Circuit Court overturned Thursday, explicitly ordering Judge Ware “to maintain the recording under seal.”
Judge Ware is now overseeing any continuing trial court activity in the Proposition 8 case, since the trial judge, District Judge Vaughn R. Walker, retired last year. Judge Walker himself had made public some limited parts of the recording when he made public speeches. Those releases, along with media requests for release of the tapes, led to the controversy that has now been resolved by the Circuit Court. The backers of Proposition 8 took that dispute to the Ninth Circuit Court, along with their other challenges to Judge Walker’s participation in the trial and to Walker’s decision in August 2010, striking down the ballot measure under the Constitution’s equal protection and due process clauses.
In Thursday’s Circuit Court ruling, authored by Circuit Judge Stephen Reinhardt of Los Angeles, the panel stressed that it was resolving ‘the narrow question before us on a narrow basis.” It noted that, on several occasions during the trial, Judge Walker “unequivocally promised that the recording of the trial would be used only in chambers and not publicly broadcast.”
The judge had made those commitments, the opinion noted, “because the Supreme Court had intervened in this very case that required him to do so.” Thus, the opinion added, “his commitments were not merely broad assurances about the privacy of judicial records in the case; they could not have been more explicitly directed toward the particular recording at issue.” Judge Ware, it added, was wrong in finding that Judge Walker has not made such a commitment.
Judge Ware also was wrong, the opinion said, in concluding that Judge Walker’s placing the videotape in the trial record but under seal did not bind Judge Ware when he was asked to unseal the recording. That second finding, the panel commented, was “an implausible and illogical application of the law. Each of these abuses of discretion manifests the same basic error: the district court failed to appreciate the nature of the statements that the trial judge had made to the litigants, the specific factual and legal context in which he made them, and the consequences of his having done so. The integrity of our judicial system depends in no small part on the ability of litigants and members of the public to rely on a judge’s word.”
In stressing how narrow its ruling was, the Circuit Court noted that it was not deciding any issues about the right of access under the First Amendment to such trial records, and was not deciding any of the policy issues about “how to reconcile the traditional concept of ‘openness’ in judicial proceedings with the development of technology that has given the term a new meaning.”
