Federal judge indicates he's likely to unseal Prop 8 tapes

  • by John Ferrannini, Assistant Editor
  • Wednesday June 17, 2020
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Federal Judge William H. Orrick held a virtual hearing Wednesday on the issue of unsealing tapes from the Prop 8 trial. Photo: Courtesy Wikipedia
Federal Judge William H. Orrick held a virtual hearing Wednesday on the issue of unsealing tapes from the Prop 8 trial. Photo: Courtesy Wikipedia

At a virtual federal court hearing Wednesday, the judge indicated he'd likely unseal the tapes of the Proposition 8 trial.

Judge William H. Orrick of the United States District Court for the Northern District of California stated that he will "get an order out pretty quickly."

"I'll think about it when we get off the bench. I think these papers are virtually ready to enter," he said, referring to his order.

The June 17 hearing was held to determine whether video recordings in the 2010 federal district court trial of Perry v. Schwarzenegger should be released later this year. Prop 8, which California voters approved in 2008, banned same-sex marriage. A federal trial was held in San Francisco to determine the constitutionality of the law.

Orrick intimated he is inclined to allow the seal to expire and the recording to be made public in two months.

"I was expecting the defendant-intervenors would make a claim with respect to security and harm to witnesses," Orrick said, speaking to John Ohlendorf, attorney for the defendant-intervenors who supported Prop 8. "The reasoning of my 2018 order [unsealing the tapes in 2020] is sound — I still think so — and the judicial integrity argument bears less weight as time goes on. I still think I'm right, but make whatever pitch you want."

As the Bay Area Reporter This text will be the linkpreviously reported>, the tapes of the 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 illegal under the 14th Amendment to the U.S. Constitution — are supposed to be released August 12. (Walker came out as gay after the trial.)

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.

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

Walker initially made the tapes for a potential broadcast. After the U.S. Supreme Court issued a stay against such a broadcast, Walker continued to make tapes for his own personal deliberations.

KQED-TV, the Bay Area's affiliated station of the Public Broadcasting Service, wants the tapes released at the end of the 10-year seal, which expires August 12. Orrick upheld the seal in a ruling two years ago.

As the B.A.R. reported last month, transcripts of the trial have already been released and it has already been the subject of a network television docuseries and a Broadway production.

Ohlendorf said that the argument from judicial integrity does not, in fact, bear less weight as time goes on. Ohlendorf said that the recordings were only allowed to be made with the understanding from Walker that they would not be broadcast, and that allowing their release now would therefore be injurious to the legal system.

"[Judicial integrity] applies so long as counsel and parties who relied upon those promises oppose the disclosure of a recording made on the premise of those promises," Ohlendorf said. "The judicial integrity interest has to be dictated by the scope of the promises themselves."

Ohlendorf said that the only reason his clients did not fight the creation of tapes in the first place is that Walker insisted they were for his own use in chambers.

Christopher D. Dusseault, representing the plaintiffs, stated that the tapes were indeed made for Walker's personal use in chambers but that it is not in evidence that Walker's promise not to broadcast the tapes was heretofore assumed to be in perpetuity.

"[Orrick's 2018] ruling was right. It remains right. There are no new facts," Dusseault said. "The [U.S. 9th Circuit Court of Appeals] defined what those assurances were and said that the promise relied upon was that the broadcast would not be in the foreseeable future, and then they cited in the footnote the 10-year rule."

Dusseault didn't say judicial integrity was no longer an operable concern, however: he insisted it would be of interest if the recording is not released.

"Now that the 10-year seal has been honored, the interest of judicial integrity is on the side of release," he said.

Thomas Burke, an attorney representing KQED-TV, made a brief statement.

"The reason [the seal] shouldn't be permanent is that they made no effort to give new evidence to justify their continual sealing," Burke said. "Under 9th Circuit, First Amendment, common law — you got to offer that up."

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