What’s the Emergency? 9th Circuit Blocks Release of Prop 8 Trial Recordings

A three-judge panel of the U.S. Court of Appeals for the 9th Circuit granted an "emergency motion" to stay the district court's Order releasing the recordings of the trial in Perry v. Schwarzenegger on the constitutionality of California Proposition 8, pending an appeal on the merits of that Order.  Proposition 8, approved by California voters in 2008, amended the state's constitution to provide that only a marriage between one man and one woman would be recognized or valid in the state of California, thus putting an end (at least temporarily) to the performance of same-sex marriages in the state.

Chief District Judge Vaughan Walker (N.D.Cal.), the original presiding judge in the trial, had planned to have the proceedings simulcast to several courtrooms, but this intent was block by the U.S. Supreme Court at the instance of Defendant-Intervenors, the Proponents of Proposition 8, who were allowed to participate as defendants because none of the named defendants (Governor Schwarzenegger and Attorney General Brown) was willing to defend Proposition 8 from constitutional attack.  Judge Walker had a video recording of the trial made for his own use, and provided copies to the parties for their use in preparing closing arguments, but otherwise they were kept under seal. 

Walker ruled in 2010 that Proposition 8 violated the 14th Amendment and issued an injunction against its enforcement, which was stayed by the 9th Circuit pending appeal.  None of the named defendants appealed, but the Proponents tried to do so.  A serious question was raised whether they had Article III standing to bring the appeal, and the 9th Circuit certified to the California Supreme Court the intermediate question of whether Proponents of a ballot measure would have standing to defend it against constitutional attack as a matter of state law.  The question is intermediate, because it would be a component of the 9th Circuit's own analysis of whether they would have standing as a matter of federal law.  Meanwhile, back at the ranch….

Judge Walker retired earlier this year, taking with him his set of the recordings of the trial.  Then he "came out" as a gay man with a long-time same sex partner, and used clips from the recordings to illustrate some lectures he was giving.  This drove the Proponents of Prop 8 crazy!!!  The new Chief Judge of the District Court, James Ware, having inherited the case, now faced motions to set aside the trial verdict on the argument that Walker had an irremediable conflict of interest, and to require Walker to surrender the recordings back to the court and keep them secret.  The plaintiffs, of course, defended their trial victory, and counter-moved to have the recordings unsealed and made public.

As to the motion to vacate Judge Walker's decision, Judge Ware rejected it in a strongly worded opinion, and the Proponents appealed his ruling to the 9th Circuit.  As to the motions concerning the recordings, Judge Walker had voluntarily returned the recording to the court when controversy ensued, so that point was moot, but Judge Ware decided that there was no longer any reason to keep the recordings under seal and granted the plaintiffs' motion to have them released, which drove Proponents crazy a second time! 

One has to remember that what happened at this particular trial is no big secret.  Detailed news reports filled the press regularly as the trial was taking place, transcripts were posted to the internet by the organization that was backing the plaintiffs, dramatic readings of the transcript by actors were posted to youtube.com, and a few weeks ago a dramatization of the trial drawn from the transcripts by Dustin Lance Black, the Academy-award-winning screenwriter, was presented at a Broadway theater as a one-night benefit supporting the lawsuit.  So the content of these recordings is out there… What is not is the actual live video of the testimony and arguments, and this is what Proponents are continuing to block.

As soon as Judge Ware announced his decision, Proponents filed an emergency appeal to the 9th Circuit, asking that release of the recording be stayed until the 9th Circuit could decide whether to uphold Judge Ware's Order.  They are arguing that in light of the Supreme Court's order blocking the simulcast of the trial, and the conditions under which Judge Walker had the recording made (i.e., that it was only for his personal use and would not be broadcast), the recordings should never be made public. 

The Order today by the 9th Circuit panel (Judges Reinhardt, Hawkins, and N.R. Smith) gave no explanation for granting the "emergency motion," although obviously if the motion were not granted the Proponent's appeal would be moot, since once the recordings are released and come into the public domain, there's no putting the cat back in the hat, as it were. 

But the court made clear that it is not going to dally over deciding this appeal, announcing that both parties are to submit their "simultaneous principal briefs" by November 14 and reply briefs by November 28, with oral argument to come during the week of December 5.  So the holdup on release of the recordings will be prolonged several more months, and the saga continues.  There are now three simultaneous appeals in this case pending before the 9th Circuit!  (Is that some kind of record?)

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