A three-judge panel of the 9th Circuit U.S. Court of Appeals ruled February 2 that U.S. District Court Chief Judge James Ware abused his discretion last September when he ruled that the videotapes were part of the trial record and should be released.

Ware's decision, said the panel, revoked promises made by former Chief Judge Vaughn Walker, the federal district court judge who presided over Perry v. Schwarzenegger ( now called Perry v. Brown ) . And in revoking those promises, said the panel, Chief Judge Ware failed to recognize that he was inflicting "a grave threat to the integrity of the judicial system."

"The court had tipped its hand on this issue at oral argument, so today's ruling is not surprising," said Shannon Minter, legal director of the National Center for Lesbian Rights ( NCLR ) . "The bad news is that the public will be denied the right to see this historic trial, which is painfully disappointing. The good news is that the court based its decision on a very narrow basis that has no negative implications for how it will rule on the underlying issue of whether Prop 8 is unconstitutional. The sole basis for the ruling is the court's determination that Walker made a commitment to the parties that the recording would not be released and that disregarding that commitment would undermine the integrity of the judicial process."

"I can't get very excited, frankly, about whether these tapes are released," said lesbian legal scholar Nan Hunter in her blog, hunterforjustice.com, even before the decision was released. While the video excerpts might have provided "lots of terrific quickies on YouTube," Hunter said she was "dubious about how many people's minds will be changed by seeing them."

Williams Institute legal scholar Jenny Pizer said she thinks it is a "real shame that the public won't be able to view the tapes." However, she sees the videotape issue as "completely separate legally from other issues still awaiting decision" by the Ninth Circuit.

NCLR Executive Director Kate Kendell said she worries an appeal of the videotape decision would delay final resolution of the litigation's main issue, whether Proposition 8 is unconstitutional.

The American Foundation for Equal Rights ( AFER ) attorneys, including Ted Olson and David Boies, are said to be mulling over whether to appeal the videotape decision. However, AFER's statement following release of the decision stopped short of promising appeal.

In a press release, AFER attorney Ted Boutrous Jr. said Feb. 2 that the legal team is "looking at the big picture and hoping for a ruling soon on the merits affirming the district court's judgment that Proposition 8 is unconstitutional."

The videotape decision could also be appealed by the City of San Francisco and a "Media Coalition" that intervened on the matter, hoping to see the videotapes made public. No word yet on whether they intend to appeal.

The Ninth Circuit panel decision, written by Judge Stephen Reinhardt, instructed the Ware to keep the videotapes under seal, including a copy that Ware had gifted to Walker when Walker retired from the bench last January.

"The trial judge on several occasions unequivocally promised that the recording of the trial would be used only in chambers and not publicly broadcast," noted the panel decision. When Ware ruled last September that the videotapes are part of the trial record and thus should be made publicly available, said the court, the judge "abused his discretion."

"The integrity of our judicial system depends in no small part on the ability of litigants and members of the public to rely on a judge's word," wrote Reinhardt for the unanimous panel. "The record compels the finding that the trial judge's representations to the parties were solemn commitments."

" [ The ] interest in preserving the sanctity of the judicial process," said the panel, " is a compelling reason to override the presumption in favor of the recording's release."

Yes on 8 attorneys sued to sequester the videotapes after learning that Walker, who retired from the bench in January 2011, had shown a clip from the videotapes at a public lecture on the merits of broadcasting trials. Yes on 8 noted that, at the start of the Perry trial in January 2010, the U.S. Supreme Court had ordered Walker not to "broadcast" the trial. Walker did not broadcast the trial, but he had a videotape of the proceedings made, saying he intended to use it when preparing his decision.

In argument last December, Ted Olson, the high-profile conservative attorney who helped stage the challenge to Proposition 8, argued that Walker had also told attorneys he would include the videotapes in the trial record—a public record—and that Yes on 8 attorneys did not object.

However, the panel noted that, in making the videotape part of the trial record, Walker directed the court clerk to "file the trial recording under seal" and ordered the legal teams to "retain their copies of the trial recording pursuant to the terms of the protective order."

"We conclude that there is a compelling reason in this case for overriding the common-law right [ to access to a trial record ] and that, in failing to identify that reason on the basis of the record before it, the district court abused its discretion," said the panel. "The reason is that Proponents [ of Proposition 8 ] reasonably relied on Chief Walker's specific assurances—compelled by the Supreme Court's just-issued opinion—that the recording would not be broadcast to the public, at least in the foreseeable future."

In separate action, Yes on 8 also challenged Walker's ruling that Proposition 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 is expected to rule those matters, as well as whether Yes on 8 has legal standing to press its appeal of the Walker decision, given that state officials chose not to appeal it. Those decisions could come any day.

The full transcript of the January 2010 trial is a public document and is available for viewing on AFER's website, www.afer.org .

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