Court: Prop. 8 trial videos OK to unseal
Videos of the historic 2010 federal trial that struck down Proposition 8, California’s ban on same-sex marriage, can be unsealed and released to the public, despite objections by the measure’s supporters, a divided U.S. appeals court ruled Thursday.
Then-Chief U.S. District Judge Vaughn Walker of San Francisco presided over the nonjury trial, with testimony from gay and lesbian couples and backers of the 2008 ballot initiative, and then ruled Prop. 8 unconstitutional. The Supreme Court allowed his ruling to take effect in 2013, but public access to his video recordings of the trial remains in dispute.
The Supreme Court, which bars cameras in its courtroom, blocked Walker’s attempt to telecast the proceedings live at the request of Prop. 8 proponents, who said they feared harassment and retaliation. After Walker retired from the bench in 2012, federal courts kept the videos sealed, citing Walker’s comment to attorneys that he had kept the recordings only to prepare his ruling.
But the San Francisco federal court has a 10year limit on sealing most types of documents, unless there is evidence that their release would cause harm. A federal judge found no such evidence last year and ruled that the videos could be released, granting requests by same-sex couples and media organizations. That decision was upheld Thursday by the Ninth U.S. Circuit Court of Appeals.
Sponsors of the 2008 ballot measure, who argued that the videos should remain sealed, have not claimed that they would face harassment or any other type of harm if the recordings are released, Judge William Fletcher said in the 2-1 ruling. He noted that none of them had testified at trial or would be shown in the videos.
The Prop. 8 proponents also argued that releasing the videos would damage public trust in the judicial system, in view of Walker’s alleged promise to keep them sealed. But Fletcher said there was no evidence that Walker had promised permanent sealing, and even if he had, the proponents haven’t shown how they would be affected — and therefore, they lack the personal stake in the case that is required for legal standing to sue.
His opinion was joined by Carlos Lucero, a judge from the federal appeals court in Denver temporarily assigned to the Ninth Circuit. In a vehement dissent, Judge Sandra Ikuta said unsealing the videos would damage the “sanctity of the judicial process” in view of what she described as Walker’s promise to keep them sealed.
The majority’s decision is “another sad chapter in the story of how the judiciary has been willing to bend or break its own rules and standards in order to publicize the proceedings of a single highprofile trial,” Ikuta said. She said Prop. 8 supporters have made the required showing of legal harm because they “for 10 years have been trying to stop this unlawful broadcast of the trial proceedings.”
John Ohlendorf, lawyer for the Prop. 8 supporters, said they agreed with Ikuta and would seek further review of the case. They could ask the full appeals court for a rehearing before a larger panel or appeal directly to the Supreme Court.
Thomas Burke, lawyer for public broadcaster KQED, which has fought for release of the videos, said the ruling was a victory for public access.
“It was a public trial, historic, and there is no legitimate reason for those video recordings not to be available for those who couldn’t attend the proceedings, and for academics and historians,” Burke said.