Hearing on Prop. 8 Video Gets Heated

     SAN FRANCISCO (CN) - After lengthy oral argument, the 9th Circuit appeared poised to rule that a video from the trial on the constitutionality of California's same-sex marriage ban, Proposition 8, was improperly broadcast to the public.
     The court seemed less likely to accept the Prop. 8 proponents' argument that the district judge who struck down the measure should have recused himself because of his long-term relationship with another man.
     The three-judge panel seemed receptive to proponents' claim that former Chief U.S. District Judge Vaughn Walker had promised to use a videotape of the trial in chambers only, and that the tape was never meant to be publicly broadcast.
     At a district court hearing in June 2011, Chief U.S. District Judge James Ware heard argument on whether former Chief Judge Walker, who presided over the trial in January 2010 and ruled the ban unconstitutional in August 2010, erred in playing a clip of the trial at a lecture before an audience at the University of Arizona.
     C-SPAN later broadcast the speech, and consequently the arguments.
     Walker has since returned the tape, but the plaintiffs' attorneys have argued they should be able to keep their copy. Ware unsealed the tape in September 2011.
     "We start with the strong presumption of access to court records," said Theodore Olson, attorney for the two same-sex couple plaintiffs. "It's not even close as to whether or not the proponents have overcome that strong presumption."
     The judges did not seem persuaded that the tape was a public record, as Ware ruled earlier this year.
     "What if he had said, 'When the trial is over, I'm going to release it for public broadcasting?' He said at the time, 'I'm doing this for use in chambers,'" Judge Stephen Reinhardt said.
     Olson claimed the tape was "put in the public record for a legitimate purpose."
     "Whether for legitimate purpose is not before us," Judge N. Randy Smith replied.
     He asked Olson how the tape was different from the notes judges often write during court proceedings, or the recordings made by court reporters.
     "How did it get to be a judicial record when he was using it in place of notes? I have a tough time understanding how it came to be a record."
     The judges hinted that Walker broke his word by releasing the tape after assuring the proponents' lawyers that it would remain private.
     "The word of the court is supposed to mean something," Reinhardt said. "There was a promise by the judge that it would not be released."
     Smith added: "I have a tough time with your argument when Walker said, 'We have eliminated the chance for any recording to be publicly broadcast.'"
     The hearing became heated when the judges turned to the question of recusal, which Ware ruled against in June 2011.
     In argument punctuated by raised voices and wild arm gestures, the proponents' lead attorney Charles Cooper insisted Walker "was in the same kind of relationship as the plaintiffs" and had a direct interest in the result of the case.
     "The question is, was he in a position to try his own case?" Cooper said.
     Reinhardt asked Cooper how the case would be different if Walker had said he did not have an interest in marriage. "Would he have to be recused anyway?"
     Cooper replied, "This case wouldn't be here if that had happened."
     Smith pressed further. "What if a married heterosexual judge wants to maintain the definition of marriage as it applies to his marriage? What about an unmarried heterosexual judge?"
     Cooper tried to distinguish those scenarios from Walker's relationship. "I don't see how that judge would have a concrete interest in the ruling on same-sex marriage," he said.
     Judge Michael Daly Hawkins asked Cooper whether a married judge could hear a divorce case. To raucous laughter throughout the courtroom crammed with reporters and onlookers, Smith added, "Would he have to disclose, 'I'm married for 25 years and we have a relationship that's kind of difficult?"
     Plaintiffs' attorney David Boies said Cooper and the ban's supporters "posit a new rule where minority judges must recuse themselves from actions seeking civil rights."
     "The rule of law the proponents suggest here is [Walker's] failure to disclose," said Smith.
     Boies said: "If something is irrelevant, you don't have to disclose."
     In rebuttal, Cooper said that allowing Ware's ruling to stand would be "a dark day in American jurisprudence."
     Reinhardt said with a chuckle, "Well, let's hope however it turns out won't be a dark day in American jurisprudence."