Metropolitan News-Enterprise


Monday, April 22, 2019


Page 3


Ninth Circuit Won’t Decide Now If Tapes Should Be Released

Panel Says Appeal Is Premature in Case Where Public Television, Radio Stations Seek Videotapes Of Trial Resulting in Invalidation of Same-Sex Marriage Ban in California


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals on Friday dismissed an appeal from an order that videotapes of a trial which resulted in the striking down of Proposition 8—which banned same-sex marriages in California—be kept under seal.

In a memorandum opinion, a three-judge panel said:

“In light of the district court’s briefing and hearing schedule for a future motion to continue to seal the recording at issue, we presently lack jurisdiction over Proponents’ appeal. The district court’s order compelling ‘the recordings be kept under seal...until August 12, 2020’ is not a ‘final decision[]’ of the district court….Nor is it a reviewable collateral order, for the order is not ‘effectively unreviewable on appeal from a final judgment.’…Accordingly, this appeal is dismissed without prejudice for lack of jurisdiction.”

The panel was comprised of Senior Judges Ferdinand F. Fernandez and N. Randy Smith and Judge Carlos Bea.

Broadcaster Intervenes

The videotapes are being sought by KQED, Inc., which operates the Bay Area’s public television and public radio stations. It has intervened in the case of Perry v. Schwarzenegger in which a provision added to the California Constitution by initiative was challenged.

Art. I, §7.5 provided:

“Only marriage between a man and a woman is valid or recognized in California.”

The videotaped 12-day bench trial took place over a period of two-and-a-half weeks in January 2010. District Court Judge William Horsley Orrick of the Northern District of California eventually held, on Aug 4, 2010, that the “Proposition 8 is unconstitutional under both the Due Process and Equal Protection Clauses” of the federal Constitution, and enjoined its enforcement.

It was planned that there would be video streaming of the trial on YouTube and that it would be available for viewing at federal courthouses in various cities, but that plan was blocked by the U.S. Supreme Court.

Order for Release

Judge James Ware, then the chief judge of the District Court for the Northern District of California (now a private judge), later ordered the tapes publicly released, but the Ninth Circuit reversed in a Feb 2, 2012 opinion. Judge Stephen Reinhardt, since deceased, wrote:

“We resolve the narrow question before us on a narrow basis when we conclude that the district court abused its discretion by ordering the unsealing of the recording of the trial notwithstanding the trial judge’s commitment to the parties that the recording would not be publicly broadcast. The trial judge on several occasions unequivocally promised that the recording of the trial would be used only in chambers and not publicly broadcast. He made these commitments because the Supreme Court had intervened in this very case in a manner that required him to do so.”

 KQED said in its April 28, 2017 motion for an unsealing:

“Happily for court-watchers, law students, scholars, historians, activists, concerned citizens, and those interested in the transparent operation of the judicial branch, the entire historic trial was videotaped. But, in a strange irony, those videotapes have never been seen by members of the general public. A Ninth Circuit decision in 2012 ordered the tapes to remain sealed at that time, so, while much information about the trial is known to the public, the videotaped record languishes indefinitely under seal in the court file.”

No Purpose Served

It argued:

“The sealing of the video of the Prop 8 trial proceedings can no longer be justified by any compelling interest. Rather, the interests to the public in unsealing the videotapes now far outweigh the privacy or other interests of judicial administration. While the public interest in seeing the open work of government remains compelling, any privacy interests of those involved in the trial have disappeared almost entirely, because the trial is no longer ongoing and the appeal has been decided.”

Orrick ordered that the recordings be released on Aug, 12, 2020, absent a further order, and KQED and the City and County of San Francisco appealed, with the Ninth Circuit dismissing that appeal Friday. No oral argument was held in connection with the appeal.

The case is Perry v. Hollingsworth, 11-17255.


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