Ninth Circuit Ruling Blocking Unsealing of Video Recording of Prop 8 Trial

by Ed Whelan

As expected, the Ninth Circuit panel hearing the three separate Prop 8 appeals—one on the merits, one on district judge Vaughn Walker’s non-recusal, and on the unsealing of the video recording of the trial—has issued an opinion overturning the district court’s brazen order to unseal the video recording. This excerpt from Judge Reinhardt’s opinion (citation omitted) captures the core reasoning:

[T]he district court abused its discretion by ordering the unsealing of the recording of the trial notwithstanding the trial judge’s commitment to the parties that the recording would not be publicly broadcast. The trial judge on several occasions unequivocally promised that the recording of the trial would be used only in chambers and not publicly broadcast. He made these commitments because the Supreme Court had intervened in this very case in a manner that required him to do so. Thus, his commitments were not merely broad assurances about the privacy of judicial records in the case; they could not have been more explicitly directed toward the particular recording at issue.

The panel also specifically directs that the copy of the recording that Walker (now retired) lodged with the district court not be returned to him.

As I’ve said before, in the grand scheme of things Walker’s shenanigans on the video recording pale in comparison to his outlandish decision on the merits. But they are part and parcel of Walker’s broader course of misconduct in what deserves to be recognized as the most egregious performance ever by a federal district judge.

Alas, given the fact that Reinhardt and his fellow arch-liberal Michael Hawkins are two of the three judges on the panel, there is zero reason to imagine that this ruling offers any sign of hope for Prop 8 proponents on the other two appeals.