What’s the Emergency?

Ninth Circuit blocks release of Prop 8 trial recordings

A three-judge panel of the US Court of Appeals for the Ninth Circuit granted an “emergency motion” to stay the district court’s order releasing the video recordings of the 2010 trial in which California’s Proposition 8 was ruled unconstitutional.

Prop 8, approved by voters in 2008, amended the California Constitution to provide that only a marriage between one man and one woman would be recognized or valid there, putting an end to marriages by same-sex couples that had begun earlier in the year on order of the State Supreme Court.

Chief Judge Vaughan Walker of California’s Northern District, who originally presided over the case, had planned to simulcast the proceedings to several courtrooms across the country, but that effort was blocked by the US Supreme Court on a motion from the Official Proponents of Proposition 8, who were allowed to participate as defendants because neither Governor Arnold Schwarzenegger nor Attorney General Jerry Brown (now the governor) was willing to defend the amendment from constitutional challenge.

Walker had a video recording of the trial made for his own use, and provided copies to the parties as they prepared closing arguments. Otherwise, the recordings were kept under seal.

Walker ruled that Prop 8 violated the 14th Amendment and issued an injunction against its enforcement, which was stayed by the Ninth Circuit pending appeal. Once again, neither the governor nor the attorney general appealed, but the Proponents tried to do so. A serious question was raised whether they have standing to bring the appeal, and the Ninth Circuit asked the California Supreme Court to offer an advisory opinion on whether the Proponents have standing as a matter of state law to defend a ballot measure against constitutional attack. That advisory is expected soon.

After retiring early this year, Walker came out as a gay man with a longtime partner and also used clips from the video recordings during some public lectures he gave. Both developments drove the Prop 8 Proponents crazy, leading them to make a series of intemperate charges against Walker.

The new chief judge of the Northern District, James Ware, having inherited the case, faced motions to set aside the trial verdict on the argument that Walker had an irremediable conflict of interest — he had a guy he might want to marry — and to require him to surrender the recordings to the court and refrain from playing them in public.

Of course, the plaintiffs, two same-sex couples represented by the American Foundation for Equal Rights (AFER), defended their trial victory and counter-moved to have the recordings unsealed and made public.

Ware rejected the motion to vacate Walker’s decision in a strongly worded opinion, and the Proponents appealed his ruling to the 9th Circuit.

Regarding the recordings, Walker had voluntarily returned them to the court when controversy erupted, so that point was moot. But Ware decided there was no longer any reason to keep them under seal and granted the plaintiffs’ motion to have them released.

Mania seized the Proponents a second time!

What happened in Walker’s courtroom nearly two years ago now is hardly a big secret. Detailed news reports filled the press regularly as the trial was taking place, transcripts were posted to the Internet by AFER, dramatic readings of the transcript by actors were posted to YouTube, and a few weeks ago Academy Award-winning screenwriter Dustin Lance Black’s dramatization of the trial drawn from the transcripts was presented at a Broadway theater as a one-night benefit supporting the lawsuit.

The content is out there. What is not is the actual live video of the testimony and arguments, and this is what Proponents are fighting like mad to block. Any fair-minded person would likely wonder what they have to hide.

As soon as Ware announced his decision on unsealing the recordings, Proponents filed an emergency appeal to the Ninth Circuit asking that release be stayed until the circuit could hear their appeal of the order. They maintain that in light of the Supreme Court’s order blocking the trial’s simulcast and Walker’s recording of the proceedings for his own use, they should never see the light of day.

The Ninth Circuit panel that issued the order — Judges Stephen Reinhardt, Michael Hawkins, and N.R. Smith — offered no explanation for granting the “emergency motion,” although obviously if the motion were not granted the Proponent’s appeal would be moot. There’s no putting the cat back in the bag, as it were.

But the court made clear it is not going to dally over deciding this appeal, announcing that both parties are to submit their “simultaneous principal briefs” by November 14 and reply briefs by November 28, with oral argument to come during the week of December 5.

Still, the holdup on release of the recordings will be prolonged several more months, and the saga continues. There are now three simultaneous appeals on different questions in the Prop 8 case pending before the Ninth Circuit — not to mentioned the unresolved advisory question before the State Supreme Court.

Is that some kind of record, or what?

 

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