Battle over Proposition 8 courtroom video returns to 9th Circuit

Nearly a decade after same-sex marriage activists sought to strike down California's Proposition 8 as unconstitutional, a Bay Area news organization is fighting for access to video recordings of the historic court battle, while a conservative legal group is pushing to keep the tapes sealed.

The fate of the footage is now in the hands of the 9th U.S. Circuit Court of Appeals, which took under submission Wednesday the litigation seeking release of the videos.

U.S. District Judge William H. Orrick III ruled last year he was bound by prior precedent to keep the footage hidden from the public, but concluded that local court rules allowing the release of sealed documents 10 years after litigation ends meant KQED Inc. would finally be able to access the tapes. Perry v. Hollingsworth, 18-15292 (9th Cir., filed May 22, 2009).

The conservative Alliance Defending Freedom and lawyers for intervenors who defended California's now defunct ban on gay marriage after the state declined to do so say releasing the videos is illegal and would subject opponents of same-sex marriage who testified in support of Proposition 8 to harassment.

Former U.S. Chief Judge Vaughn R. Walker of the Northern District, who oversaw the bench trial testing Proposition 8, agreed in 2010 to televise the proceedings nationally. Backers of the voter initiative appealed his ruling to the U.S. Supreme Court, which split 5-4 to reverse the decision

Walker ultimately taped the trial despite the high court intervention, but said he was doing so only to assist his decision-making process in chambers after testimony concluded.

Since then, KQED has sought to unseal the videos, arguing it has a right to them under common law and First Amendment rights of public access.

The 9th Circuit shot down those claims in 2012. Walker's statements about the purpose of recording the trial -- his own deliberative process -- meant it could not be released for the time being, the late Judge Stephen Reinhardt reasoned.

Orrick cited that decision in KQED's latest bid to unseal the videos, but said there were compelling reasons to make them available to the public and said concerns about harassment were unfounded.

"Proponents make no effort to show, factually, how further disclosure of their trial testimony would adversely affect them," he wrote last January. "Indeed, the transcript of the trial has been widely disseminated and dramatized in plays and televisions shows."

On appeal, ADF and lawyers at Cooper & Kirk PLLC, are reiterating harassment concerns, but focus on the Northern District's local rules, citing a general prohibition of photography in courtrooms. They also say the 10-year limit on sealed documents doesn't apply to the videos.

In a brief phone interview Wednesday, Davis Wright Tremaine LLP partner Thomas R. Burke, who represents KQED, said objectors have failed to establish serious concerns about harassment. "There's been no due showing of harm," Burke said. "They've offered nothing else new."

James A. Campbell, an attorney with ADF, said in an email releasing the video would damage the ability of parties to trust the courts. "It would mean that litigants can no longer rely on the word of federal judges," he said, noting Walker promised the video would be used in chambers only.

Judges Ferdinand F. Fernandez, Carlos T. Bea and N. Randy Smith of the 9th Circuit have decided to resolve the case without hearing oral arguments, despite a previous order suggesting otherwise. Burke declined to read any meaning into the decision, but said it was unusual.

"Honestly, I don't know what to make of it," he commented.