Federal Judge Likely to Unseal Prop 8 Trial Videos

SAN FRANCISCO (CN) — A federal judge said Wednesday that he doesn’t see why video recordings of a historic bench trial over California’s same-sex marriage ban should not be made public on August 12, a date that marks the official closure of the case 10 years ago.

U.S. District Judge William Orrick said the initial sealing of the tapes was not expected to be permanent, and that his order two years ago keeping the seal in place until August 12, 2020, will probably stand.

Same-sex couples Kristin Perry and Sandra Stier and Paul Katami and Jeffrey Zarrillo sued the state in 2009 to overturn Proposition 8, which defined marriage in the California Constitution as a union between a man and a woman after it was approved by voters in November 2008.

U.S. District Judge Vauhgn Walker overturned the law in January 2010 after two weeks of testimony. Walker initially wanted to broadcast the full trial in real time, but Prop. 8 proponents objected, taking the issue to the U.S. Supreme Court, which blocked the broadcast.

Recordings of the trial were sealed, and Walker promised they would only be viewed by him in his chambers to assist him in making his ruling.

Walker retired a year later and attracted the ire of Prop. 8 proponents by playing a clip of the trial in a February 2011 lecture at the University of Arizona. Proposition backers sued, but U.S. District Judge James Ware lifted that seal in 2011, finding no compelling reason to keep the recordings private in light of the public’s right to access.

The Ninth Circuit disagreed, ruling in 2012 that Walker had made a solemn commitment to both sides that the trial recordings would not be publicly broadcast.

“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,” Judge Stephen Reinhardt wrote for the unanimous three-judge panel.

With the backing of 36 media organizations, KQED moved to unseal the recordings in 2017, arguing that the educational benefits of releasing the videos, along with the public’s right to government records, should override the court’s 10-year sealing requirement.

Orrick took over the case after Ware’s retirement.

On Wednesday, Prop. 8 proponents urged him to keep the tapes under seal, saying they relied on Walker’s promise that they would not be released.

This premise didn’t seem strong enough for Orrick.

“The judicial integrity argument that you’re resting on bears less and less weight as time goes on,” he told John Ohlendorf, counsel for the Prop. 8 backers.

Ohlendorf, an attorney with Cooper and Kirk PLLC, said his clients would never have agreed to allow the trial to be recorded if they had known the seal had an expiration date.

“If he had made clear his promise was good for 10 years only, we would have taken immediate action to appeal,” Ohlendorf said. “The only reason this recording exists in the first place is we accepted Judge Walker’s promise that it would never be disclosed.”

Attorney Chris Dusseault with Gibson Dunn, who represents the couples, said Ohlendorf’s colleague David Thompson told the Ninth Circuit at a 2011 hearing over the tapes that he understood that the seal would last 10 years.

This was in response to a question from Judge Michael Daly Hawkins about whether Thompson was “under the impression these tapes would be forever sealed.”

Dusseault said this admission was not an aside, as Ohlendorf described it.

“This was counsel informing the Ninth Circuit of what their understanding was at the time,’ Dusseault said. “We believe it’s a judicial admission but even if not, it’s something extremely probative and undermines their current position.”

Orrick took the arguments under submission, but said, “The reasoning from my January 2018 order is sound. I still think so.”

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