The 9th Circuit 3-judge panel that is considering the various appeals in the lawsuit challenging the constitutionality of Proposition 8, the 2008 California ballot initiative that amended that state's constitution to provide that only the marriage of one man and one woman would be valid or recognized in California, ruled on February 2 that the video recording of the trial made at the direction of then-Chief Judge Vaughn Walker of the US District Court for the Northern District of California must remain "under seal" and be kept from the public. In so ruling, the court didn't just overrule a decision to the contrary by the current Chief Judge of the District Court, James Ware, but characterized his ruling as "implausible" and "illogical" and overturned it as an "abuse of discretion."
Judge Stephen Reinhardt's opinion for the court criticizes Ware's ruling for treating as irrelevant the context in which Judge Walker told the parties that the recording would be used only for internal purposes of the court. Judge Walker had announced his intention to have the trial broadcast live to several federal courthouses around the country in order to allow interested members of the public to have access to the proceedings, in light of the intense public interest over the issue of same-sex marriage. The Proponents of Proposition 8, who had intervened as defendants because the official defendants (California's governor, attorney general, and marriage law enforcement officials) were refusing to provide a substantive defense. The Proponents strenuously opposed broadcasting the trial, arguing that their expert witnesses would refuse to testify if their testimony was to be broadcast.
When Judge Walker rejected Proponents' argument, they sought and obtained emergency relief from the United States Supreme Court, which issued a quick ruling barring the broadcast. Judge Walker nonetheless arranged for the trial to be videotaped, telling the parties that the tape would be for his own use and would not be made public or broadcast. Relying on this promise, the Proponents did not seek further relief to bar the recording. Prior to hearing final arguments in the case, Judge Walker offered copies of the recording to the lawyers for use in preparing their final arguments, subject to a protective order barring exhibition or distribution to the public. Plaintiffs accepted the offer; Proponents did not. In his decision later in 2010 declaring Proposition 8 unconstitutional, Walker stated that the recording of the trial would be filed with the court and placed under seal.
Ironically, even though they won their battle against broadcast of the trial, Proponents presented only two expert witnesses, whose testimony ultimately provided little support for Proponents' case. This aroused comment from Judge Walker in his opinion on the merits, which focused heavily on the failure of Proponents to present evidence in support of their policy arguments to uphold Proposition 8.
The Proponents are attempting to appeal Judge Walker's ruling on the merits, although there is controversy about whether they have standing to do so. The 9th Circuit panel is considering that issue, as well as the appeal on the merits (in case it concludes that Proponents have standing). But a continuing side-issue concerns public access to the video recording of the trial.
Judge Walker retired from the bench early in 2011 and the case was reassigned to Judge Ware. Judge Walker used excerpts from the recordings to illustrate some programs in which he participated as a speaker, arousing the ire of the Proponents of Prop 8, who considered this to be a violation of his own directive that the recording be placed under seal. They sought a ruling from the 9th Circuit that Walker return the tapes to the court and refrain from exhibiting them. The 9th Circuit panel sent this issue to Judge Ware. Judge Walker returned the tapes to the court voluntarily. The plaintiffs countered by filing a motion with Judge Ware asking that the tapes be made public.
After hearing argument, Judge Ware issued a ruling ordering that the tapes be made public, finding that so long after the trial there was no compelling justification to block their publication, thus vindicating the 1st Amendment rights of members of the public and the media to have full access to the record of the trial. (The written transcript is available, and dramatic readings of the transcript have long been available on youtube.com.)
The 9th Circuit panel's February 2 ruling sharply disagrees with Judge Ware's conclusion, and finds that his order to make the recording of the trial public is an "abuse of discretion." Reviewing the events that occurred in December and January of 2009-2010 as the trial was getting under way, the court found that Judge Walker had made a commitment to the parties that the recording would be used only for internal purposes. "The relevant question here," wrote Judge Reinhardt, "is whether a judge must in exercising his discretion respect a commitment that his predecessor has made and upon which a party has reasonably relied." Judge Reinhardt underscores the word "commitment."
As to the issue of reliance, Judge Reinhardt found that given the context in which these events took place, with a U.S. Supreme Court order barring broadcast of the proceedings, the Proponents could have sought further relief against recording of the trial and might well have obtained such relief from the Supreme Court in the form of another order. But they abstained based on their reliance that Judge Walker would keep his word, and that there would be no future release or broadcast of the tapes. On that basis, they dropped any objection to the taping.
Judge Reinhardt wrote that if Judge Ware concluded that Judge Walker's statement "was not a solemn commitment worthy of reliance but merely a transient exercise of discretion subject to revision," this conclusion would be inconsistent with the record in the case, for failure to recognize the context in which Walker's commitment was made. "Chief Judge Walker's assurances were compelled by the Supreme Court's ruling in this every case," Reinhardt commented. "After the Supreme Court held that his order to broadcast the trial had 'complied neither with existing rules or policies nor the required procedures for amending them,' Chief Judge Walker could not lawfully have continued to record the trial without assuring the parties that the recording would be used only for a permissible purpose."
Furthermore, held the appeals court, Judge Ware's abuse of discretion was even more serious because "he failed to appreciate the importance of preserving the integrity of the judicial system." This would provide the necessary "compelling reason" to overcome the general right of public access to trials, which would otherwise provide a basis to argue that the recordings should be available to the public.
"To preserve the integrity of the judicial system," wrote Reinhardt, "the recording must remain under seal." He continued, "Litigants and the public must be able to trust the word of a judge if our justice system is to function properly." The court concluded that the Proponents of Proposition 8, who were opposed to recording as well as to broadcasting, "were thus entitled to take Chief Judge Walker at his word when he assured them that the trial recording would not be publicly broadcast or televised. Because Proponents reasonably relied on Chief Judge Walker's commitments in refraining from challenging his actions, the setting aside of those commitments would compromise the integrity of the judicial process."
Preserving respect for the justice system was deemed by the court a "compelling reason" for adhering to Judge Walker's commitment. As such, this reason overcame any First Amendment argument that the media could make concerning access to the recording, so the court also rejected the arguments by a coalition of media entities that filed a brief arguing for the public interest in making the recordings available.
The court of appeals reversed Judge Ware's order as an "abuse of discretion" and instructed that the trial recording remain under seal.
Having dealt with this side issue, the next step is for the court to address the issue of the Proponents' standing. A ruling on that question might emerge at any time. If the court finds that Proponents do have standing to appeal, which seems likely in the wake of a California Supreme Court advisory opinion that had been requested by the 9th Circuit panel, the court will likely address the merits in the same opinion.