Bench Memos

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

Now that I’m back in the office and able to follow up on my post from last week, I’d like to highlight what a remarkably (and suitably) stinging condemnation the Ninth Circuit (in an opinion by Judge Reinhardt, no less) makes of the behavior of former district judge Vaughn Walker. To fully appreciate this, it’s important to have in mind that Walker’s successor, Judge James Ware, approved of Walker’s conduct. Thus, the Ninth Circuit’s criticism of Ware’s bottom line is necessarily also a criticism of Walker.

Consider these passages (citations omitted), both individually and in their totality:

The integrity of our judicial system depends in no small part on the ability of litigants and members of the public to rely on a judge’s word. The record compels the finding that the trial judge’s representations to the parties were solemn commitments.… [T]he interest in preserving the sanctity of the judicial process is a compelling reason to override the presumption in favor of the recording’s release. [Emphasis added.]

Proponents reasonably relied on Chief Judge Walker’s specific assurances—compelled by the Supreme Court’s just-issued opinion—that the recording would not be broadcast to the public, at least in the foreseeable future. While Chief Judge Ware found that no such assurances had been given and concluded that, in any event, he was not bound by promises made by his predecessor, his finding was “without ‘support in inferences that may be drawn from the facts in the record,’” and his conclusion—which contravenes the very notion of judicial integrity—was an “implausible” and “illogical” application of the “compelling reason” standard to the facts at issue here. [Emphasis added.]

Interpreted in their full context, at least two of Chief Judge Walker’s statements amount to unequivocal assurances that the video recording at issue would not be accessible to the public. No other inference can plausibly be drawn from the record.

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. [Emphasis in original.]

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. [Emphasis added.]

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. [Emphasis added.]

Proponents were thus entitled to take Chief Judge Walker at his word when he assured them that the trial recording would not be publicly broadcast or televised.

Because Proponents reasonably relied on Chief Judge Walker’s commitments in refraining from challenging his actions, the setting aside of those commitments would compromise the integrity of the judicial process. [Emphasis added.]

Again, all together, this is just further evidence demonstrating that Walker’s misconduct in the Prop 8 case is the most egregious performance ever by a federal district judge.


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