Bench Memos

Law & the Courts

‘Another Sad Chapter’: Fletcher vs. Reinhardt

An addendum to my post yesterday on the divided Ninth Circuit panel ruling allowing the public release of the video recording of the 2010 trial against Proposition 8:

For context on how badly Judge Fletcher’s opinion betrays the “solemn commitments” that Chief Judge Walker made, have in mind that the 2012 opinion by the Ninth Circuit that overrode an earlier effort to unseal the video recording was written by none other than the arch-liberal Stephen Reinhardt. Here are excerpts from Reinhardt’s opinion (which Judge Ikuta extensively quotes in her dissent):

Chief Judge Walker did not merely create the recording and place it in the record under conditions that he and the parties understood to be subject to later modification; rather, he promised the litigants that the conditions under which the recording was maintained would not change—that there was no possibility that the recording would be broadcast to the public in the future. No other inference could plausibly be drawn from the record….

Chief Judge Walker’s assurances were compelled by the Supreme Court’s ruling in this very case. After the Supreme Court held that his order to broadcast the trial had “complied neither with existing rules or policies nor the required procedures for amending them.” Chief Judge Walker could not lawfully have continued to record the trial without assuring the parties that the recording would be used only for a permissible purpose. Chief Judge Walker’s statements concerning the use of the recording were not only solemn commitments on their own terms, therefore; they were commitments dictated by the actions of a higher court, and thus even worthier of the parties’ reliance.

To the extent that Chief Judge Ware did believe that his predecessor’s decisions were solemn commitments to the parties, but concluded nonetheless that they did not bind him, his abuse of discretion was even more serious: he failed to appreciate the importance of preserving the integrity of the judicial system. To revoke Chief Judge Walker’s assurances after Proponents had reasonably relied on them would cause serious damage to the integrity of the judicial process—damage that under any plausible, logical application of the “compelling reason” standard would have caused Chief Judge Ware to keep the recording sealed.

Had Chief Judge Ware properly understood Chief Judge Walker’s statements as commitments to the parties, and had he recognized those commitments as binding obligations and constraints on his own discretion, he could have arrived at only one conclusion that is logical, plausible, and consistent with the record: to preserve the integrity of the judicial system, the recording must remain under seal. [Underlining added.]


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