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Bench Memos

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Prop 8 Proponents’ Emergency Motion for Stay of Video Order



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Last Friday, Prop 8 proponents filed an emergency motion in the Ninth Circuit seeking a stay of Judge James Ware’s order unsealing the video recording of the Prop 8 trial—a recording that then-Judge Vaughn Walker purported to have made for his own “use in chambers” but that anyone following Walker’s shenanigans would recognize was done to circumvent the Supreme Court order (Hollingsworth v. Perry) blocking broadcasting of the trial.  

From Walker’s series of extraordinarily one-sided orders in the case, San Francisco Chronicle columnist Debra J. Saunders soundly concludes that the “deck was stacked from the start,” and she condemns the “arrogance” of both Walker and Ware for “treat[ing] sealed evidence”—i.e., the video recording—“like a trophy” that “as spoils … rightfully belong[s] to the victor.”

Here is the introduction to Prop 8 proponents’ emergency motion (with some citations omitted):

In 1996, the Judicial Conference of the United States adopted a policy opposing the public broadcast of [trial] court proceedings.” Hollingsworth v. Perry (2010). This policy was rooted in “decades of experience and study” showing the potentially negative impact of broadcasting on trial proceedings. In July 2009 the Judicial Conference forcefully reiterated to Congress its conclusion that the “negative [e]ffects of cameras in trial court proceedings far outweigh any potential benefits.”

Also in 1996, the Ninth Circuit Judicial Council “voted to adopt the policy of the Judicial Conference of the United States regarding the use of cameras in the courts.” The Council’s policy thus provided: “The taking of photographs and radio and television coverage of court proceedings in the United States district courts is prohibited.” “[T]his policy [was] . . . binding on all courts within the Ninth Circuit.” Accordingly, the Northern District of California adopted Local Rule 77-3, which prohibits the “taking of photographs, public broadcasting or televising, or recording for those purposes in the courtroom or its environs, in connection with any judicial proceeding.”

In plain contravention of these authorities and in the teeth of the Supreme Court’s decision enforcing them in this very case, the district court below ordered that video recordings of the trial proceedings in this case be unsealed and made available to the public. And it did so even though these recordings owed their very existence to the district court’s solemn assurance, in open court, that they would not be used for “purposes of public broadcasting or televising.” Not only was this assurance necessary to comply with Rule 77-3 and the policies of the Judicial Conference and this  Court’s Judicial Council, but it came on the heels of an emergency Supreme Court decision specifically enforcing Rule 77-3 after then-Chief Judge Walker had ordered the trial to be broadcast.

The decision below thus goes beyond simply violating a binding rule, disregarding longstanding judicial policies, and directly defying the Supreme Court’s ruling in this very case. Rather, by setting at naught a solemn commitment made by a federal judge on which litigants and witnesses relied to their detriment, the decision below threatens deep and lasting harm to the integrity and credibility of the federal judiciary. As explained more fully below, the extraordinary ruling unsealing the video recordings should be stayed pending appeal.



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