Metropolitan News-Enterprise


Friday, November 19, 2021


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Court Paves Way for Airing of Proposition 8 Trial Tapes

Ninth Circuit, in 2-1 Decision, Dismisses Appeal of Unsealing Order; Majority Says Appellants Have Demonstrated

No Injury If Recordings of Proceedings Resulting in 2010 Lifting of Ban on Same-Sex Marriages Are Broadcast


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday gave the green light to the broadcasting of videotapes of a 2010 District Court trial that culminated in Proposition 8, California’s ban on same-sex marriages, being declared unconstitutional, with a dissenting member of a three-judge panel protesting that the “binding promise” by the trial judge that the tapes would not be publicly released must be upheld.

What the court did was to dismiss the appeal by persons who, after the state declined to defend the 2008 voter-approved measure against a court challenge, intervened to do so. The court lacks jurisdiction, Judge William A. Fletcher said in the majority opinion, under Article III of the U.S. Constitution which restricts adjudications to cases and controversies.

None is presented, Fletcher declared, because the appellants can show no injury in fact if the tapes were publicly released. He was joined by Tenth Circuit Judge Carlos F. Lucero, sitting by designation.

Unsealing Order Survives

That action leaves intact the July 9, 2020 ruling by District Court Judge William H. Orrick of the Northern District of California that there is “no justification, much less a compelling one, to keep the trial recordings under seal any longer.” Orrick acted in response to a motion by the Proposition 8 proponents to extend the sealing order beyond the 10-year limit set by a local rule. The tapes—sought by Bay Area public television station KQED—were scheduled for release on Aug. 12, 2020, but a motions panel of the Ninth Circuit stayed the order.

Ninth Circuit Judge Sandra S. Ikuta dissented, maintaining that “the majority bends the principles of Article III standing in order to deprive proponents of the opportunity to argue that the court should not breach its binding obligations.”

Pilot Project

Then-District Court Chief Judge Vaughn Walker (now retired) planned to have proceedings in the trial broadcast to other courthouses, under a pilot project in which the Northern District participated through a local rule. The U.S. Supreme Court stayed the order for broadcasting.

Walker nonetheless permitted videotaping of the proceedings and televising to other courtrooms in the building. On the third day of the trial, the proponents of Proposition 8—which added to the state Constitution the words “Only marriage between a man and a woman is valid or recognized in California”—asked that the taping be halted, expressing concerns over recriminations against them.

The judge responded:

“The local rule permits the recording for purposes...of use in chambers and that is customarily done when we have these remote courtrooms or the overflow courtrooms. And I think it would be quite helpful to me in preparing the findings of fact to have that recording. So that’s the purpose for which the recording is going to be made going forward. But it’s not going to be for purposes of public broadcasting or televising.”

Those are the words the parties appealing Orrick’s order denominate a “promise.”

Walker found the ban Proposition 8 constitutionally infirm on Aug. 4, 2010. The U.S. Supreme Court on June 26, 2015, in Obergefell v. Hodges, held that states may not ban same-sex marriages.

2011 Unsealing Order

There has been prior litigation over the tapes. In 2011, after Walker retired, then-Chief Judge James Ware (now also retired) ordered the tapes be unsealed in response to a motion by those who had sued to have the ban on same sex marriages invalidated, joined by news media companies.

The proponents of the ballot measure appealed. At oral argument before the Ninth Circuit, counsel for the Proposition 8’s defenders acknowledged that it would not be reasonably expected that the tapes be sealed in perpetuity, in light of the local rule, saying:

“I believe that a seal lasts for… ten years under the local rules of the Northern District of California and at the end of the trial—at the end of the proceedings—at the end of the case, then we would be entitled to go in and ask for an extension of that time to a specific date. But it would be a minimum often years, your honor.”

In 2012, the Ninth Circuit reversed Ware’s order in Perry v. Brown. Judge Stephen Reinhardt (now deceased) wrote:

“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. The record compels the finding that the trial judge’s representations to the parties were solemn commitments. Upon this record, there is only one plausible application of the standard for sealing a record that is, arguendo, subject to the common-law right of public access: the interest in preserving the sanctity of the judicial process is a compelling reason to override the presumption in favor of the recording’s release.”

Fletcher’s Opinion

In yesterday’s majority opinion, Fletcher said:

“Appellants do not claim, and cite no authority for the proposition, that a statement—even a ‘promise’—made by a judge to litigants in the course of litigation is an enforceable contract. An analogy to a traditionally recognized cause of action does not relieve a complainant of its burden to demonstrate an injury….To carry their burden, Appellants must plausibly allege a concrete and particularized injury. Even assuming, contrary to their statement to our court in 2011, that Judge Walker told Appellants that the video recordings would remain sealed in perpetuity, they do not have Article III standing to appeal the district court’s order.

“Appellants allege two kinds of injuries that would result from unsealing the recordings. First, the unsealing would result in a ‘palpable injustice’ to Appellants themselves. Second, the unsealing would harm future litigants’ ability to rely on judicial ‘promises,’ and would thereby injure both the judicial system and future litigants. Neither alleged injury is sufficiently concrete and particularized for purposes of Article III standing.”

He said there is no evidence of present fear on the part of the three persons who testified at the trial in favor of upholding Proposition of injury in the event the tapes were released and commented that a “purported injury to future litigants, if it even exists, is unrelated to Appellants and insufficient for Article III standing.

Ikuta’s Dissent

”Quoting from Reinhardt’s opinion, Ikuta said in her dissent:

“[T]he majority remarkably concludes that the proponents—who for ten years have been trying to stop the unlawful broadcast of the trial proceedings—cannot sufficiently show they will be injured by a breach of the trial judge’s binding obligations.’…According to the majority, the proponents do not have enough of a stake in stopping the district court’s breach of its ‘solemn commitments…, to even have Article III standing to bring this case….[T]his is nothing more than another distortion of our rules and standards to ensure that this single high profile trial is broadcast, notwithstanding the compelling ‘interest in preserving the sanctity of the judicial process.’”

She went on to say:

“Because Chief Judge Walker made a clear and unambiguous promise that resulted in reasonable, foreseeable, and detrimental reliance by the proponents and those who depended on them, a violation of that promise would be a violation of the proponents’ legal rights….Such a violation is a traditionally recognized harm providing a basis for lawsuit, whether or not it resulted in economic injury. Therefore, publicly broadcasting the trial today constitutes a concrete injury for purposes of Article III standing…, regardless of whether the proponents or other individuals associated with them alleged a fear of harassment or reprisals if the broadcast is released.”

The case is Perry v. Hollingsworth, 20-16375.


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