The Proposition 8 trial tapes will remain under seal, a three-judge panel of the 9th U.S. Circuit Court of Appeals ruled Thursday.
The panel ruled unanimously February 2 that former Chief Judge Vaughn Walker, the federal district court judge who presided over Perry v. Schwarzenegger (now called Perry v. Brown), abused his discretion last February when he showed a clip from the videotape to a public audience he was addressing.
The panel instructed the current Chief Judge James Ware to keep the videotapes under seal, including a copy that had been given to Walker when he retired from the bench last January.
The result is a small victory for the Yes on 8 coalition defending Proposition 8, California's same-sex marriage ban. But much bigger issues concerning the ban are still pending before the federal appeals panel. Yes on 8 also challenged Walker's ruling that Prop 8 violated the federal constitution and it asked the panel to vacate Walker's decision because he was in a gay relationship at the time he presided over the trial. The panel will also rule on whether Yes on 8 has legal standing to press its appeal of the Walker decision, given that state officials chose not to appeal it.
The American Foundation for Equal Rights attorneys, including Theodore Olson and David Boies, are said to be mulling over whether to appeal. But not everyone considers the matter of great significance.
"I can't get very excited, frankly, about whether these tapes are released," said lesbian legal scholar Nan Hunter in her blog, http://www.hunterforjustice.com, Thursday morning. "Yes, they will provide the material for lots of terrific quickies on YouTube, and these might have educational value, but I'm dubious about how many people's minds will be changed by seeing them."
Hunter said the legal question at issue �" public access to judicial proceedings �" was important "but somewhat muddied by representations made during trial that there would be no public release."
This videotape appeal, pressed by Yes on 8 attorneys, challenged the September 19, 2011 ruling by U.S. District Court Chief Judge James Ware that a videotape of the January 2010 Perry v. Brown case is part of the official record and, thus, should be made available to the public.
During oral arguments on the appeal in December, the three-judge panel seemed to warm up to Yes on 8's arguments for keeping the videotape sequestered.
Yes on 8 attorneys argued the videotape should be sequestered because, at the start of the Perry trial in January 2010, the U.S. Supreme Court had ordered the presiding judge, Walker, not to "broadcast" the trial. Walker did not broadcast the trial, but he had a videotape of the proceedings made to use when preparing his decision.
A few months after issuing his decision �" that Prop 8 is unconstitutional �" Walker retired from the bench and gave a lecture about the merits of broadcasting trials. In that lecture, Walker showed an audience an excerpt from the videotape.
That prompted Yes on 8 to cry foul and seek an order preventing further use of the videotape publicly.
Yes on 8 attorney David Thompson argued that there were four potential injuries to allowing the videotape to be broadcast to the public or made available on the court's website. The only argument the judges seemed interested in was one claiming that release of the videotapes would diminish judicial credibility. Thompson said Walker had assured Yes on 8 attorneys that he was videotaping the trial for his own use in chambers in preparing his decision. Releasing the tapes to the public contradicts that assurance, Thompson said.
But Olson, the high-profile conservative attorney who helped stage the challenge to Prop 8, argued that Walker also told attorneys he would include the videotapes in the trial record �" a public record �" and that Yes on 8 attorneys did not object.
The appeals panel made a point of underscoring that Thursday's decision will not encompass the main appeals issue �" whether California's ban on same-sex marriages violates the federal Constitution. It apparently will also not include a decision on two other matters pending in the case, whether to vacate the federal district court decision and whether the Yes on 8 coalition has standing to appeal the district court decision.
The videotape decision can be viewed on the court's website at http://www.ca9.uscourts.gov/opinions.