Filed under: Tapes
By Jacob Combs
The 9th Circuit Court of Appeals just filed an opinion overturning a district court’s previous ruling to release the video recordings of the Perry v. Brown trial. Today’s decision means that the recordings will remain under seal. Prop 8′s opponents can now appeal the decision to the U.S. Supreme Court, which may exercise its own discretion about whether or not it wants to take the appeal.
The question of broadcasting the Perry trial has been a thorny one from the beginning. District Court Judge Vaughn Walker, who presided over the 2010 trial (known then as Perry v. Schwarzenegger) challenging the constitutionality of California’s Proposition 8, petitioned the 9th Circuit to include the Prop 8 trial in a pilot program the Circuit was trying out in which cameras were allowed into the courtroom. The 9th Circuit said yes, but the proponents of Prop 8 went to the U.S. Supreme Court (a notoriously camera-phobic body). Over 140,000 people signed a Courage Campaign petition to the courts asking that the proceedings be televised. The U.S. Supreme Court ultimately stayed the broadcast of the proceedings in a 5-4 decision. Judge Walker withdrew Perry from the pilot program, and while the case was still filmed, the tapes (actually, digital recordings) were given to the litigants and placed into the court record under a seal.
After they appealed Judge Walker’s August 2010 decision to the 9th Circuit, Prop 8′s proponents filed a motion in district court to prevent Judge Walker from showing portions of the recordings, which he had done at a few speaking engagements. The plaintiffs, along with a coalition of media companies, filed their own motion to have the court unseal the recordings and make them public. At this point, Judge Walker had retired, and Judge James Ware, who replaced him, heard both sides’ arguments in district court.
In September 2011, Judge Ware ordered the tapes to be unsealed. Prop 8′s proponents filed an emergency request with the 9th Circuit to stay the order, which was granted, and appealed the decision. In a December 8 hearing on the matter, an appeals panel of the 9th Circuit showed skepticism towards the proponents’ argument that releasing the tapes could lead to retribution against their witnesses. At the same time, the panel seemed wary to release the tapes, given Judge Walker’s promise to the litigants that they would be made only for his own personal use.
Keep in mind that today’s ruling has no impact on the 9th Circuit’s decision about the motion to vacate Judge Walker’s decision, the proponents’ standing to appeal or the larger question of the constitutionality of Prop 8. The 9th Circuit consolidated the motion to vacate and the constitutional challenge into one docket item last November, meaning it will issue one decision on both aspects of the Prop 8 case at a later date.
Today’s ruling regarding the tapes can be found below, via Scribd. Check back throughout the day for updates and analysis (which can be found below the text of the ruling).
Update: From the summary of the ruling:
Each of these abuses of discretion manifests the same basic error: the district court failed to appreciate the nature of the statements that the trial judge had made to the litigants, the specific factual and legal context in which he made them, and the consequences of his having done so. 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. We therefore reverse the order of the district court as an abuse of its discretion and remand with instructions to maintain the recording under seal.
Update 2: Statement from Rick Jacobs, chair and founder of the Courage Campaign, on the 9th Circuit’s ruling:
“We are disappointed in the 9th Circuit’s decision to not release the videotapes from the historic Prop 8 hearing. In our minds, it never made sense that transcripts from the hearing could be easily accessed by anyone but not the videotapes. That just proves that our cowardly opponents knew they did a poor job defending their bigotry and homophobia in court. We sincerely hope this decision does not herald more bad news regarding the unconstitutionality of Prop 8. Lives are depending on it.”
Update 3: Shannon Minter, legal director of the National Center for Lesbian Rights, shares his thoughts on the decision:
The court had tipped its hand on this issue at oral argument, so today’s ruling is not surprising. The bad news is that the public will be denied the right to see this historic trial, which is painfully disappointing. The good news is that the court based its decision on a very narrow basis that has no negative implications for how it will rule on the underlying issue of whether Prop 8 is unconstitutional. The sole basis for the ruling is the court’s determination that Judge Walker made a commitment to the parties that the recording would not be released and that disregarding that commitment would undermine the integrity of the judicial process.
Update 4: In my initial reading of the ruling, it seems fairly clear that the judges of the 9th Circuit panel made their decision with one aim in mind: addressing the effect that releasing the Perry recordings could have on the public’s perception of the judicial system. If there is one sentence that sums up the ruling, in my opinion, it is this one:
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.
In their decision, the judges do not even mention the purported harm to witnesses and supporters that the proponents of Prop 8 argued would inevitably come from a release of the recordings. (Indeed, the panel seemed quite skeptical of this claim in last December’s hearing.) Neither do they address the question of whether the trial recordings should be covered by the common-law right of public access, saying instead that they “simply assume, without deciding, for purposes of this case only, that the common-law presumption of public access applies to the recording at issue here and that it is not abrogated by the local rule in question.”
As the center point of its ruling, the panel focuses on two statements Judge Walker made during the district court trial in January 2010. In the first, made after the Supreme Court issued a stay against the public broadcast of the trial, Judge Walker said he would continue “taking the recording for purposes of use in chambers,” but that his recording was “not going to be for purposes of public broadcasting or televising.” The second statement comes from Walker’s opinion, in which he cites the Supreme Court’s stay and criticizes Prop 8′s proponents for not presenting more witnesses, even after “the potential for public broadcast in the case had been eliminated.”
In the 9th Circuit’s opinion, the proponents of Prop 8 relied upon these statements as promises that the trial recordings would never be made public. They then argue that Judge Ware, in his ruling releasing the recordings, did not appreciate the weight of Judge Walker’s commitment during trial to use the recordings for his purposes only.
Also, in an interesting footnote on p. 22 (thanks to Kathleen for noticing this!), the 9th Circuit orders the district court not to return Judge Walker’s copy of the recordings, which he had voluntarily lodged with the court while Judge Ware’s decision was pending.
By Adam Bink
Just in from the 9th Circuit:
Advance Notice of Opinion Filing
The Court anticipates filing an opinion tomorrow (Thursday, February 2) by 10 a.m. regarding the public release of videotapes made of the civil bench trial in Perry v. Hollingsworth, the Proposition 8 case. Note that this is not the main appeal regarding the constitutionality question.
It’s worth noting: this is not an opinion on the appeal of the constitutionality of Prop 8 or standing, but on the issue of whether the videotape recordings should be released to the public. There’s no indication yet of when that opinion will be delivered.
If you’re not up to speed on where the trial is with all these different issues, you can find our one-stop-shopping summary at Prop8TrialTracker right here.
As usual, we’ll have the best coverage and roundup of reaction on the web tomorrow prior to and after 10 AM PST.
By Jacob Combs
As usual, Ari Ezra Waldman has an enlightening and in-depth piece over at Towleroad about yesterday’s hearing at the 9th Circuit. Of course, his post is worth reading through completely, but here are some of the highlights of his argument.
Waldman wrote this summer about the challenges facing our side’s attorneys in getting the tapes released, given that there is no previous case with similar circumstances and thus no precedent for the appeals panel to rely on. In his piece about yesterday’s hearings, Waldman reflects on the judges’ seeming hesitancy regarding making the recordings public:
Releasing the videotapes — records created by and kept by Judge Walker for his use in chambers — is a good idea, but a tough call on the law. My previous argument noted that, for better or for worse, we usually make public a trial transcript, but do not normally televise or release video of trials; therefore, any motion to do so requires special justification. Releasing the videotapes would be transcript plus, so we would need a sufficient reason for tack on the plus. However, attorneys for the various media outlets supporting release have argued that the Prop 8 proponents have to offer specific reasons why the tapes should not be released, suggesting that keeping the tapes under wraps is a special departure from the norm requiring justifications. The policy arguments favoring release are extraordinarily strong, but that does not mean the law is on our side.
As for the motion to vacate, Waldman points out that the proponents’ argument that Judge Walker should recuse himself because he is in a relationship with a man isn’t just discriminatory, it disregards the tradition of an independent judiciary:
It presumes that judges’ personal views necessarily infect their professional conduct, which not only flies in the face of reason, but contradicts a tenet of Anglo-American law since the Norman invasion.
Check out Waldman’s piece for a much more detailed analysis. In short, though, he believes the motion to vacate will be denied, the tapes will remain under seal, and (eventually, but hopefully not in the distant future) the 9th Circuit will uphold Judge Walker’s ruling, restoring marriage equality to California.
By Matt Baume
Prop 8′s back in court — but why, exactly? I’ll answer all your questions about what’s going on this time. Plus, the backstory behind the most effective — and adorable — marriage equality video ever made. Prop 8′s legal team celebrates a bill in Nigeria that would throw you in prison for over a decade just for witnessing a gay couple getting married. All that, plus robot marriage, and one gay couple looks back on their 50-year romance in a new book.
Whenever I tell people that I report on the Prop 8 trial, they always respond the same way: “oh yeah, what’s going on with that?” Understandable, since it’s been a really complicated case. Our next hearing is on Thursday of this week, so let’s take some time to clear up exactly what’s happened, what’s going on, and what you can expect on Thursday.
We started with our plaintiffs, Sandy and Kris and Jeff and Paul, in District Court in 2009.
And we won in August of 2010.
Then the Proponents appealed to the Ninth Circuit and we had oral arguments in December of 2010.
And that’s when the case got complicated. Three new questions came up about whether the Proponents had standing, whether we could release the videotapes of the trial, and whether our District Court win needed to be vacated after the Judge disclosed that he was gay.
The standing question went to the California Supreme Court. The other two questions went back to the District Court.
It took most of 2011, but we finally got decisions on all three questions, and now those issues are all going back to the Ninth Circuit.
So the Ninth Circuit will have to rule on all of those issues, either in one big ruling or a couple of small ones…
…the merits of the appeal. Our next hearing is happening December 8 at 2:30pm, and we’ll be discussing the issues of video and the motion to vacate.
Then at some point after that, we’ll get a ruling (or rulings) from the 9th Circuit. There’s no timeframe for them to rule, but they don’t usually take too long so a good guess would be early in 2012.
And then that ruling might go to the US Supreme Court. Or it could get appealed again to the Ninth Circuit for a do-over called an “en banc review.”
For an en banc review to happen, one party would have to petition for it. Then the judges would vote on whether to re-hear the case. And then, finally, they’d issue a new ruling. It’s impossible to estimate a timeframe for this, but if it happened, the hearing might be sometime in mid-2012, with a decision later that year or possibly early 2013.
Whether or not the en banc review happens, the case is likely to go to the Supreme Court of the United States.
The Supreme Court could refuse to hear the case. Or they could accept it, in which case they’d have oral arguments and then issue a decision. Oral arguments happen from October to June, so our case could possibly be heard during the October 2012 term. And then we’ll be done, and if the judges rule the way AFER believes they’ll rule, we’ll have full federal marriage equality for every gay and lesbian couple in the country.
So that’s the latest with Prop 8. Adam and Jacob will be covering it here on Prop8TrialTracker.com live and we’ll also be live-tweeting from @AFER.
Meanwhile, America’s not the only country on the cusp of marriage equality. Australian organizers released a wildly popular ad last month, featuring a montage of a gay couple’s courtship, to encourage legislators to recognize marriage equality nation-wide. The ad ends with a proposal — but will the couple actually be able to marry, or will they have to settle for a civil union? Right now, the answer to that question for all Australian LGBTs comes down to one woman: Prime Minister Julia Gillard. Gillard is the one roadblock to the Australian Labor Party’s efforts to add marriage equality to the party platform. For now, it looks like pro-equality legislators have the votes needed to amend the party platform, but it remains to be seen whether Gillard still has some tricks up her sleeve to undermine their efforts. Visit Getup.org.au for the latest and to find out how you can get involved, no matter where you are in the world.
In Nigeria this week, the Senate approved a bill that imposes draconian penalties for any activity that might affirm LGBTs, including marriage. Under the bill, attempted marriage is punishable with a 14-year jail term, or 10 years simply for being present at the ceremony. The Alliance Defense Fund, which is defending Prop 8 in court, reported the news from Nigeria with the headline, “Citizens Celebrate Ban of Same-Sex Marriage.”
And in Maryland this week, an anti-gay coalition kicked off a campaign for a constitutional ban on marriage. The organization is led by Robert Broadus, who had this to say about marriage equality earlier this year:
“The technology already exists … what’s to stop a man from marrying a robot, what’s to stop a woman from marrying a computer?”
For more on the romantic implications of the Three Laws of Robotics, visit the science fiction section of your local library.
And finally this week, an interview with Alan Shayne and Norman Sunshine, authors of the new book “Double Life.” Alan and Norman met in New York in the 1950s, and as their fascinating work took them form performing on Broadway to running a television studio to a new career in painting, they’ve built a life together as the country’s attitudes toward gay couples transformed dramatically over the decades.
I spoke with Alan and Norman about what it was like to be a gay couple in the 50s, and how it’s changed. You can see the entire 20-minute interview at AFER’s YouTube channel, at youtube.com/americanequalrights. Here are some highlights of our conversation below the fold.
By Jacob Combs
As you probably know, next Thursday, Dec. 8, is the date for the final two hearings in the 9th Circuit appeal of Perry v. Brown. At 2:30 pm PST, the appellate panel will hear arguments regarding the release of court recordings made during the trial, and at 3:30, the panel will hear arguments regarding the motion to vacate Judge Walker’s decision because he has been in a long-term relationship with a man. Both hearings will last one hour. There will be no further arguments on the constitutional issues of the case, and the 9th Circuit could issue a decision at any time after next Thursday.
As always, we will be providing full coverage of the court proceedings. Courage Campaign’s Rick Jacobs and Arisha Hatch will be at the James R. Browning Courthouse in San Francisco, liveblogging the proceedings, and Adam and I will be on P8TT helping them and bringing you all the day’s news.
The 9th Circuit panel has also agreed to allow the proceedings to be videotaped for a later broadcast by C-SPAN and NBC-7 San Diego. For those living in San Francisco, the court will also be providing a live stream of the hearings in Courtroom One to other parts of the Browning Courthouse. (There will also be limited public seating in the courtroom itself). A live remote feed will also be available at the Richard H. Chambers Courthouse in Pasadena, the U.S. Pioneer Courthouse in Portland and the William K. Nakamura Courthouse in Seattle. Finally, the audio and video recordings will be available on the court’s website at or before noon of Dec. 9. For more information on watching the live video streams in San Francisco or elsewhere, check here.
If you don’t happen to live in one of those cities or can’t make it to the courthouse to watch the live stream, make sure to follow next Thursday’s proceedings here at Prop8TrialTracker.com!
By Jacob Combs
Thanks to Kathleen for bringing this our way. Yesterday was the deadline for response briefs in the appeal of Judge Ware’s decision to make the recordings of thePerry trial available to the public. Here are the briefs from the plaintiffs (our side), the media coalition and the City and County of San Francisco, all of which are in favor of upholding Judge Ware’s decision to unseal the tapes.
In related news, the 9th Circuit issued an order yesterday granting the request of NBC 7 San Diego to videotape the Dec. 8 2:30 pm hearing “for later broadcast.” It’s unclear at this point whether that means both hours of arguments or just the first, or whether the hearings will be live streamed.