Prop 8 Trial Tapes Should Be Sealed, Says 9th

SAN FRANCISCO (CN) - The public cannot see video tapes of the trial on California's gay marriage ban, the 9th Circuit ruled Thursday, finding that the trial judge broke a promise to use the tapes only in chambers.

"The record clearly shows that Chief Judge Walker did make a commitment not to permit the public broadcast of the recording," Judge Stephen Reinhardt wrote for a three-judge panel.

Noting that they did not intend to address openness in trial proceedings or freedom of the press, the judges said former Chief U.S. District Judge Vaughn Walker made a commitment to both sides that trial recordings would not be publicly broadcast.

Six months after striking down Proposition 8 as unconstitutional, Walker attracted the ire of proponents behind the gay marriage ban by playing a clip of the trial in a February 2011 lecture at the University of Arizona.

Walker had played a three-minute clip of an expert witness for the ban's supporters facing cross-examination. C-SPAN recorded the speech and broadcast it several times.

After Chief U.S. District Judge James Ware ruled that the tape was a public record. ProtectMarriage.com, the conservative legal group that financed Prop. 8, appealed to the 9th Circuit.

"The trial recordings were not the personal property of Judge Walker, for him to use as he pleased; he had access to them only by virtue of his role as the judicial officer presiding in this case," according to the group's April brief. "So, when he played a portion of the trial recordings during his February 18 speech he violated all of these prohibitions."

The 9th Circuit agreed Thursday that Walker had abused his discretion in playing the tape, overturning Ware's ruling to unseal the recordings.

"To the extent that Chief Judge Ware did believe that his predecessor's decisions were solemn commitments to the parties, but concluded nonetheless that they did not bind him, his abuse of discretion was even more serious: he failed to appreciate the importance of preserving the integrity of the judicial system," Reinhardt wrote. "Had Chief Judge Ware properly understood Chief Judge Walker's statements as commitments to the parties, and had he recognized those commitments as binding obligations and constraints on his own discretion, he could have arrived at only one conclusion that is logical, plausible, and consistent with the record: to preserve the integrity of the judicial system, the recording must remain under seal."

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