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At least one aspect of the contentious Proposition 8 litigation is now resolved. The Ninth Circuit Court of Appeals announced today that the Prop 8 trial videos will not be released.
U.S. District Judge James Ware caused quite stir last year when he ruled that Prop 8 trial Judge Vaughn Walker's personal recordings of the trial could be released for broadcast because there was a common-law right of public access applied to the tapes. Prop 8 supporters opposed the release of the tapes.
Gay marriage advocates argued that it was pointless to withhold the tapes, since the full Prop 8 trial transcript is available to the public, reports CBS San Francisco. The Ninth Circuit Court of Appeals, however, noted that there was a fact-specific distinction: Judge Walker assured the litigants that the tapes would be sealed.
Judge Walker initially wanted to make the trial available for broadcast due to widespread interest. The U.S. Supreme Court prohibited a telecast of the proceedings after Prop 8 sponsors argued that video coverage could compromise their witnesses’ safety. Walker still recorded the proceedings, but only made the videos available to the attorneys in the case.
In compliance with the Supreme Court’s order, Judge Walker did not intend for the videos to be broadcast to the public, reports The San Francisco Chronicle.
Judge Walker’s intent guided the Ninth Circuit’s decision on Judge Ware’s order to release the videos.
The Ninth Circuit Court of Appeals stressed that its Prop 8 trial tapes decision was not a broader indictment of the public’s access to court proceedings.
“The question here,” the court wrote, “is whether courts are required (or even free) to give to the media information that is not ordinarily available — and specifically whether a recording purportedly made for the sole purpose of aiding the trial judge in the preparation of his opinion, and then placed in the record and sealed, may shortly thereafter be made public by the court.”
The Ninth Circuit Court of Appeals is still considering whether Judge Walker’s decision in the case should be overturned based on judicial bias, and the ultimate question of the constitutionality of the law. Regardless of what the Ninth Circuit decides, the case is expected to be appealed to the Supreme Court, reports KQED.