Bench Memos

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Judge Walker’s “Immediate Need” for a YouTube Circus—Part 2


Judge Walker’s televising order (see Part 1) in the Proposition 8 case is illegal for the simple reason that it violates the version of his court’s Local Rule 77-3 that is lawfully in effect.  Consistent with the longstanding policy of the Judicial Conference of the United States, that rule flatly prohibits “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.”  Walker has made several stabs at amending the rule, but each of his efforts has been unsuccessful.  In particular, his current claim to have lawfully amended the rule under the “immediate need” provision of 28 U.S.C. § 2071(e) is ludicrous:  there was manifestly no need to implement immediately the Ninth Circuit’s recently announced pilot program for experimental use of cameras in district courts.

Let’s review Walker’s successive (but not successful) efforts to revise Local Rule 77-3—in each case, purporting to create an exception to the televising ban when authorized by a judge “for participation in a pilot or other project authorized by the Judicial Council of the Ninth Circuit”:

1.  According to a December 23 court notice that has disappeared into a black hole, Walker purported to amend Local Rule 77-3 on December 22.  He never provided the prior public notice and opportunity for comment that is ordinarily required under 28 U.S.C. § 2071(b) for amendments to rules.  Nor did he seek to avail himself of the exception under section 2071(e) for instances in which “the prescribing court determines that there is an immediate need for a rule.” 

2.  Having learned from letters from counsel about his noncompliance with section 2071, Walker clearly conceded that his December 22 purported amendment was unlawful when he issued his New Year’s Eve surprise, entitled “Notice Concerning Proposed Revision of Civil Local Rule 77-3.”  That notice sought to achieve nominal compliance with section 2071(b) by setting a ridiculously short comment period—ending on January 8, 2010, a mere five business days from publication of the notice and, not incidentally, the Friday before the January 11 start of trial.  His notice could hardly have been better calculated to evade section 2071’s purpose of promoting public comment.

3.  Perhaps realizing that his New Year’s Eve surprise wouldn’t enable him to carry through on his announced plan to televise the January 6 hearing (nor to use that hearing to issue an order requiring televising of the Proposition 8 trial), Walker then caused a new notice to be issued, either on January 4 or January 5.  (The notice, which has the same URL that the New Year’s Eve notice had, states that it was posted on January 4, but I haven’t seen any clear evidence that it was posted earlier than January 5.)  Entitled “Notice Concerning Revision of Civil Local Rule 77-3,” that notice claims that the court has amended the local rule “effective December 22, 2009.”  Beyond this trick of time travel, the notice also claims that the amendment “was adopted pursuant to the ‘immediate need’ provision” of section 2071(e).  It provides no statement of what the supposed “immediate need” is.

The notion that there was an “immediate need” to revise Local Rule 77-3 to permit implementation of the Ninth Circuit’s pilot program is absurd.  The Ninth Circuit announced its pilot program on December 17, 2009.  Nothing in its announcement remotely signals any urgent need that it be implemented immediately, nor is such a suggestion even plausible.  Indeed, the announcement itself states that it was implementing a resolution passed in 2007.  If the Ninth Circuit itself took two years to implement that resolution, it clearly was in no rush.  And, so far as I’m aware, none of the other fourteen or so district courts in the Ninth Circuit has seen any reason to rush to revise its equivalent of Local Rule 77-3.  Further, the Ninth Circuit has yet to issue any resolution, order, or other publicly available information setting forth the policies and procedures that will govern the pilot program. 

The only “immediate need” that Walker perceived was the need to find some way to orchestrate the televised show trial that he has been intent on conducting.  He has violated section 2071, not satisfied it, in the process, and the pre-existing version of Local Rule 77-3, barring all televised proceedings, necessarily remains the version that is lawfully in effect.  His order to televise the Proposition 8 trial is therefore illegal.  

Tags: Whelan


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