Bench Memos

Law & the Courts

‘Another Sad Chapter in Story of Judiciary Breaking Its Own Rules’

That’s a truncated version of the opening sentence of Judge Sandra Ikuta’s dissent today from a Ninth Circuit panel ruling (in Perry v. Hollingsworth) holding that the proponents of California’s Proposition 8 on marriage did not have Article III standing to argue that the district court breached its binding obligations to them when it ordered public release of the video recordings of the 2010 trial against Proposition 8. Here’s the full first paragraph of Judge Ikuta’s dissent (citations simplified) from the majority opinion written by (surprise, surprise) Judge William Fletcher:

This is yet another sad chapter in the story of how the judiciary has been willing to bend or break its own rules and standards in order to publicize the proceedings of a single high-profile trial. The urge to broadcast has continued despite the Supreme Court’s unprecedented intervention to prevent the district court and our court from violating rules precluding such a broadcast, Hollingsworth v. Perry (2010) (per curiam), and our subsequent intercession to prevent the district court from reneging on a judge’s “solemn commitments” not to do so, Perry v. Brown (9th Cir. 2012). And here we are again: the majority bends the principles of Article III standing in order to deprive proponents of the opportunity to argue that the court should not breach its binding obligations.

And here are some additional excerpts:

No one reading this saga of the proponents’ efforts to prevent the public broadcasting of the trial proceedings could doubt that the proponents have a personal stake in enforcing Chief Judge Walker’s promise. Yet the majority remarkably concludes that the proponents—who for ten years have been trying to stop the unlawful broadcast of the trial proceedings—cannot sufficiently show they will be injured by a breach of the trial judge’s “binding obligations.” According to the majority, the proponents do not have enough of a stake in stopping the district court’s breach of its “solemn commitments” to even have Article III standing to bring this case. As explained below, this is nothing more than another distortion of our rules and standards to ensure that this single high profile trial is broadcast, notwithstanding the compelling “interest in preserving the sanctity of the judicial process.”

[Following lengthy discussion:] In sum, the breach of a contract or binding promise is an injury traditionally recognized as a violation of a private right, whether or not the injured party suffers economic or other damage….

[W]e are bound by our precedent to hold that Chief Judge Walker made a binding, enforceable promise. Chief Judge Walker’s promises not to broadcast the trial recording publicly were “solemn commitments,” “binding obligations,” and constraints on other judges’ discretion to unseal the recording. We held that Chief Judge Walker “promised the litigants that the conditions under which the recording was maintained would not change,” and identified the “legal consequence” of that promise: “there was no possibility that the recording would be broadcast to the public in the future.” And this conclusion that Chief Judge Walker made a binding promise wasn’t a close call: “No other inference could plausibly be drawn from the record.”

Further, “[t]here can be no question that [the proponents] reasonably relied on Chief Judge Walker’s explicit assurances” that the recording would not be publicly broadcast. As we explained, because the local rules did not allow for public broadcasting of trials, “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.” Accordingly, “[h]ad Chief Judge Walker not made the statement he did, [the proponents] would very likely have sought an order directing him to stop recording forthwith, which, given the prior temporary and further stay they had just obtained from the Supreme Court, they might well have secured.” And because Chief Judge Walker’s assurances were “compelled by the Supreme Court’s ruling in this very case,” they were “even worthier of the parties’ reliance.” Even the majority notes that the proponents relied on Chief Judge Walker’s promises to keep recordings private not only for themselves, but also for the attorneys, witnesses, and supporters who “depended on them to protect their interests.”

Eight years ago, I stated that I doubt that there has ever been a federal judicial proceeding more wrought with irregularities and lawlessness than the anti-Prop 8 case. Today’s majority opinion is just another act in the farce.


The Latest