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Prop 8 proponents must show standing to appeal in tapes case

Assistant Editor

Clergy members and supporters, totaling more than 200 people, marched to Civic Center on March 26, 2009, following a negative decision on Proposition 8 by the California Supreme Court. Photo: Rick Gerharter
Clergy members and supporters, totaling more than 200 people, marched to Civic Center on March 26, 2009, following a negative decision on Proposition 8 by the California Supreme Court. Photo: Rick Gerharter  

Proponents of Proposition 8 have to file a brief on or before August 16 to show they have standing to appeal a district court decision to release tapes of the landmark Perry v. Schwarzenegger trial that led to the resumption of same-sex marriages in California.

As the Bay Area Reporter previously reported Judge William H. Orrick of the U.S. District Court for the Northern District of California had ordered last year that tapes of the 10-year-old trial be released. The 9th U.S. Circuit Court of Appeal put a stay on the release of the tapes pending appeal.

Before the appeal can be heard, the backers of the anti-LGBTQ ballot measure have to show standing.

"Appellants' unopposed motion for an extension of time in which to file their opening supplemental brief is granted," stated a decision written by Judge Carlos F. Lucero (who is usually with the 10th Circuit but is "sitting by designation" here). "The opening supplemental brief shall be filed on or before August 16, 2021. Appellees shall file their answering supplemental brief within 14 days of the opening supplemental brief. These principal supplemental briefs shall be no longer than 10 pages or 2,800 words. Appellants may file an optional reply supplemental brief within 7 days of the answering supplemental brief, and the optional reply brief shall be no longer than 5 pages or 1,400 words."

Thomas Burke, an attorney for KQED-TV, which is seeking the release of the tapes, expressed confidence to the B.A.R. in the past that the 9th Circuit will uphold the district court ruling.

"Presumably if the court determines that the proponents of Prop 8 lack the legal standing to pursue this appeal, the 9th Circuit will dismiss their appeal and the video recordings of the Prop 8 trial will become public," Burke stated in an email to the B.A.R. "The court's order provides no guidance on how soon it will rule on the propriety of the proponents' standing to pursue the appeal, but if I had to guess, once the parties submit their briefs, the court will likely issue its order (regarding the appeal, including the standing issue) within a few months."

The saga over the release of the tapes has been going on for almost a decade.

The tapes of the 2010 trial — which concluded with then-U.S. District Court Judge Vaughn Walker, a Bush appointee to the bench, ruling that Prop 8's ban on same-sex marriages in California was unconstitutional — were supposed to be released on August 12, 2020, as a rule in the Northern District of California prevents the release of some documentary materials for up to 10 years from the closure of the case. (Walker came out as gay after the trial.)

However, on April 1, 2020, attorneys for four Prop 8 proponents filed a motion in the district court to keep the tapes of the trial from the public even after the expiration of the 10-year seal.

The attorneys stated proponents fear harassment from supporters of same-sex marriage.

Andrew P. Pugno, a Sacramento-area attorney who represents proponents, did not respond to a request for comment by press time.

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