Prop 8 Trial Recording Goes Public on September 30, 2011 – Maybe

More than a year after now-retired U.S. District Judge Vaughn Walker ruled in Perry v. Schwarzenegger, 704 F.Supp.2d 921 (N.D.Cal., Aug. 4, 2010), that California's Proposition 8 violates the 14th Amendment of the U.S. Constitution, the trial judge to whom the case was reassigned after Walker's retirement, James Ware, granted a motion by the plaintiffs to unseal the digital recording of the trial that Judge Walker ordered to be made for his own use after the U.S. Supreme Court ruled on the eve of the trial that it could not be broadcast live or recorded for delayed broadcast.  Judge Ware's September 19 ruling was based on a common law right of access to judicial proceedings, and rejected every argument made by the proponents of Proposition 8, the only "party" to the case that opposed unsealing the recordings and making them public.  (Proposition 8, for those coming late to the game, is a California constitutional amendment initiative approved by voters on November 5, 2008, which provided that only the marriage of a man and a woman would be valid or recognized in California.  Its enactment put a stop to same-sex marriages that were being celebrated in the state after a California Supreme Court ruling issued earlier in 2008.)

Under the terms of Judge Ware's order, the recording will become part of the open court record in the files of the U.S. District Court in San Francisco on September 30, and will be accessible to members of the public and the media at that time, unless the Proponents of Proposition 8 ask for and receive from the Ninth Circuit Court of Appeals a further stay pending an appeal of Judge Ware's ruling.  Ironically, Judge Ware granted the plaintiff's motion on the same date that the American Foundation for Equal Rights, which filed the Proposition 8 lawsuit, will be holding a dramatic reading of selections from the transcript of the trial with major film, stage and television stars at a gala fund-raising event in a New York City theater. 

In December 2009, Judge Walker received a request from a coalition of media companies for permission to televise the non-jury trial, then scheduled to begin in mid-January.  At a January 6, 2010, hearing, Judge Walker announced that an audio and video feed of the trial would be streamed live to several courthouses in major cities, and that the trial would be recorded for eventual broadcast on the internet. 

The next day, Judge Walker asked Ninth Circuit Chief Judge Alex Kozinski for permission to include this case in a pilot program established by the Ninth Circuit for broadcast of non-jury trials, which was granted on January 8.  But the Proposition 8 proponents, who had been granted permission to participate in the trial as "Defendant-Intervenors," since neither Governor Arnold Schwarzenegger nor Attorney General Jerry Brown would defend the measure on its merits, strenuously objected to broadcasting, arguing that this would deter their potential expert witnesses from participating in the case.  They took their concerns directly to the U.S. Supreme Court, seeking an emergency order to block the recording.

The Supreme Court granted their application on January 13, holding that the Ninth Circuit and the District Court had failed to follow the necessary procedures to establish the pilot program on broadcasting trials, and ordering that the trial not be broadcast.  However, Judge Walker determined that the Supreme Court's order would not block him from having a recording of the trial made for his own use, and he notified the parties that he would do so, to which none of them objected.  At a later point in the proceedings, Judge Walker offered to share the recording on a confidential basis with the attorneys for the parties as they prepared to deliver their final arguments in the case, but the only attorneys who took him up on the offer were those for the plaintiffs, challenging Proposition 8, and the City of San Francisco, which had been allowed to intervene as a co-plaintiff in the case.  The plaintiffs played some brief excerpts from the trial recording during their closing argument.

After ruling on the case in August 2010, Judge Walker ordered that the clerk deposit a copy of the recording in the trial record, under seal, so it would be available in the future in case there was need for the court to refer to it.  But the terms of his confidentiality order, issued when he first offered to share the recording with the attorneys for the parties, remained in effect.  When he retired early in 2011, Judge Walker took with him a copy of the recording that he had retained in his chambers.  When he subsequently played some snippets from the recording to illustrate lectures he was giving at law schools, the Proponents went ballistic and sought a court order that all outstanding copies of the recording be returned to the court and kept under seal.  The Ninth Circuit, where an appeal of Judge Walker's decision is pending, denied Proponents' motion that Judge Walker be required to return his copy of the recording (although he deposited it with the court pending the outcome of this controversy), but treated the plaintiffs' opposition to that motion as a motion to release the recording, and sent it to Judge Ware for determination.  Another coalition of media companies joined in seeking a ruling from Judge Ware to lift the confidentiality order that Judge Walker had placed on the recording and make it accessible.

Judge Ware noted that the Ninth Circuit has yet to rule on the question whether members of the public have a First Amendment right to access to court files and records of trials, although some other circuit courts have ruled affirmatively on that question, but he found he did not have to take on the constitutional question because the issue could be decided on common law grounds.  He did not specify in his opinion whether the "common law" to which he was referring was state or federal common law, but did cite a Ninth Circuit ruling from 1995, Hagestad v. Tragesser, 49 F.3d 1430, recognizing a common law right of public access to records in civil proceedings.

Before analyzing the Proponents' arguments as to why the records should remain sealed, Ware noted that the common law right of access places a burden on the party opposing access to provide compelling justification for doing so, because of the desire for "transparency" in the operations of the courts.  He noted that other courts have ruled that keeping court records secret should be done "only in the rarest of circumstances."

Judge Ware rejected the argument that because Judge Walker said at the beginning of the trial that he was making a recording for his own use, no other use of the recording should be allowed.  He pointed out that later in the trial Judge Walker allowed attorneys for the parties to use the recording, without any objection, and that there was "no authority in support of the proposition that the conditions under which one judge places a document under seal are binding on a different judge, if a motion is made to that different judge to examine whether sealing is justified.  Thus, the circumstances under which the recording was made did not constitute "compelling reasons" to overcome the presumption in favor of access.

Similarly, Judge Ware found nothing in the Supreme Court's pre-trial order barring broadcast of the trial that would bear on his decision.  He noted that the ruling was based on a finding by the Court that the procedural niceties for amending the circuit's rule on broadcasting had not been complied with — in effect, things had been speeded up due to public interest in the Proposition 8 trial, which gave the Court a procedural "hook" to avoid controversy by banning the broadcast.  That's all ancient history now, however.

The Proponents also relied on a local court rule, Rule 77-3, which prohibits "the taking of photographs, public broadcasting or televising, or recording for those purposes in the courtroom or its environs, in connection wtih any judicial proceeding."  Ware conceded that digital recordings of the trial come within "the ambit" of this rule, but pointed out that the rule deals with the creation of such recordings, but says nothing about whether such recordings, made by the court, could be put into the permanent record of the trial.  He noted that none of the parties objected when Judge Walker announced he would have recordings made, and nobody objected in August 2010 when he directed that the recording be placed in the record.  "Nor does the Rule alter the common law right of access to court records if a recording of the trial is placed in the record of proceedings," wrote Ware, and he expressed ignorance of any case "holding that a court's local rule on recordings can override the common law right of access to court records." 

Finally, Judge Ware found that the Proponents' argument that public dissemination of the recording would have a "chilling effect" on expert witnesses in future cases was purely speculative, and thus could not provide the basis for "compelling reasons" to keep this recording under wraps.  After all, the trial is over, two experts having testified for the Proponents, and there is no longer any issue about their testimony being deterred.  Furthermore, he noted, the Ninth Circuit's pilot program is now under way and civil non-jury trials can be broadcast.

Judge Ware provided that his order would go into effect on September 30.  This gives the court's clerk time to prepare to deal with inevitable requests for access to the recording, and also gives the Proponents time to apply to the Ninth Circuit for an emergency stay of his order should they seek to appeal it.  Since their strategy in this case seems to have been to appeal everything possible, it would not be surprising if they sought to do so, and the Ninth Circuit's emergency panel has been very liberal in granting stays in this case, so it would not be surprising if the recording does not become available on September 30 after all.

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