Staging a Show Trial on Same-Sex Marriage
Judge Walker's New Year's Eve surprise on California's Proposition 8.


Midday on December 31, a curious document suddenly appeared on the official website of the U.S. District Court for the Northern District of California. Entitled “Notice Concerning Proposed Revision of Civil Local Rule 77-3,” the document states that the court “has approved for public comment” a revision of this rule. The document calls for public comments to be submitted “as soon as convenient and, in any event, no later than January 8, 2010” — a mere five business days from the publication of the notice. The proposed revision would alter the court’s longstanding prohibition on “public broadcasting or televising, or recording for these purposes in the courtroom or its environs, in connection with any judicial proceeding.” The revised rule would permit the televising of proceedings as part of a “pilot or other project authorized by the Judicial Council of the Ninth Circuit.”

If all this seems arcane and mundane, don’t be fooled. On Monday, January 11, Judge Vaughn Walker, the chief judge of the Northern District of California, is set to commence trial in San Francisco in Perry v. Schwarzenegger. That’s the strange-bedfellows lawsuit in which lawyers Theodore Olson and David Boies — adversaries in Bush v. Gore have joined forces to contend that California’s Proposition 8, the voter initiative that restored the state’s traditional definition of marriage as between one man and one woman, violates the federal Constitution.

Walker’s New Year’s Eve surprise is a critical step in his evident ongoing effort to turn the lawsuit into a high-profile, culture-transforming, history-making, Scopes-style show trial of Proposition 8’s sponsors. Specifically, Walker is rushing to override longstanding prohibitions on televised coverage of federal trials so that he can authorize televised coverage of the Proposition 8 trial. Televised coverage would generate much greater publicity for ringmaster Walker’s circus. And, whether Walker desires the effect or is somehow blind to it, televised coverage would surely also heighten the prospect that witnesses and attorneys supporting Proposition 8 would face harassment, intimidation, and abuse.

In his eagerness to stack the deck against Proposition 8 and its defenders, Walker has resorted to procedural shenanigans and outright illegality.

The longstanding policy of the Judicial Conference of the United States — the body charged with ensuring fair and effective administration of the federal courts — opposes all broadcasting of civil and criminal cases in federal district courts. As the chairman of a Judicial Conference committee explained in congressional testimony in 2007, the Judicial Conference’s policy reflects the concern that televised proceedings could “undermine the fundamental rights of citizens to a fair trial.” Televising court proceedings, he said, “could jeopardize . . . the safety of trial participants” and “produce intimidating effects on litigants, witnesses, and jurors.”

Consistent with the Judicial Conference’s policy, the Northern District of California’s Local Rule 77-3 provides that “the taking of photographs, public broadcasting or televising, or recording for these purposes in the courtroom or its environs, in connection with any judicial proceeding, is prohibited.” Of course, this rule like any other may be amended. But federal law specifically provides that any rule prescribed by a district court — which clearly includes any amendments to an existing rule (see also Fed. R. Civ. P. 83(a)(1) and Local Rule 83-3(a)) — “shall be prescribed only after giving appropriate public notice and an opportunity for comment” (28 U.S.C. § 2071(b)). In addition, Local Rule 83-1 requires that “any proposed substantive modification or amendment of these local rules must be submitted to a Local Rules Advisory Committee for its review.”

In plain violation of these legal provisions, Walker, without prior notice, purported to amend Local Rule 77-3 on December 22, to make the revision that became the subject of the December 31 notice. (The court’s December 23 notice announcing the change has now been removed from the court’s website.) Walker’s obvious purpose in doing so was to enable him to authorize televised coverage of the Proposition 8 case.