9th Circuit quickly sends Prop 8 video case back to district court

The 9th U.S. Circuit Court of Appeals quietly dismissed a request Friday from backers of California's now-defunct ban on gay marriage to reverse a district court order unsealing a video recording of the historic bench trial testing the constitutionality of Proposition 8.

In an unpublished memorandum, Judges Ferdinand F. Fernandez, Carlos T. Bea and N. Randy Smith said they lacked jurisdiction to hear the appeal because a lower court's determination that the video must be released by 2020 was not a final order in the case.

"In light of the district court's briefing and hearing schedule for a future motion to continue to seal the recording at issue, we presently lack jurisdiction over proponents' appeal," they wrote. Perry v. Hollingsworth, 18-15292 (9th Cir. Apr. 19, 2019)(unpublished).

U.S. District Judge William H. Orrick III said last year that a local rule in the Northern District of California making sealed documents available after 10 years from the close of litigation meant KQED Inc., a Bay Area public news organization, would have to wait until 2020 to get its hands on the tapes.

Orrick included language in his decision suggesting his order was not the final conclusion of the issue. Proposition 8 supporters -- who testified against legalizing same-sex marriage -- could file a motion to keep the tapes sealed at a later date, a hearing on which would be held in the summer of 2020, the judge said.

Tapes exist of the trial only because former Chief U.S. District Judge Vaughn R. Walker, who presided over the Proposition 8 litigation, originally sought to televise the trial, a move blocked by the U.S. Supreme Court on a 5-4 vote. Walker still taped the trial, but said he was doing so only to help him issue a final ruling in the case. His tapes have been sealed since.

Thomas R. Burke, a partner at Davis Wright Tremaine LLP who represents KQED in its efforts to access the tapes for a documentary the news outfit is making, said Friday he was not entirely caught off guard by the 9th Circuit's move.

"This particular outcome was always a possibility," he said in an email. "Judge Orrick's order contemplated a hearing in August of 2020 -- if a motion to seal is filed anew."

An attorney for the conservative Alliance Defending Freedom, which is defending former Proposition 8 backers, did not respond to a request for comment by press time.