Ninth Circuit Reverses Order to Release Video Of Proposition 8 Bench Trial

Ninth Circuit notes but does not decide an open issue “whether the First Amendment right of public access to judicial records applies to civil proceedings"; even assuming that this right applied, a compelling interest in the integrity of the judicial system overrode the right based on the facts of the case, in Perry v. Brown, 667 F.3d 1078 (9th Cir. Feb. 2, 2012) (No. 11-17255)

We previously noted the litigation on whether to broadcast the federal court bench trial involving the constitutional challenge to Proposition 8, which amended the California Constitution to declare that “[o]nly marriage between a man and a woman is valid or recognized in California.” Cal. Const. art. I, § 7.5. Ultimately, the U.S. Supreme Court stayed a ruling by the U.S. District Court to broadcast the bench trial proceedings to other courtrooms. The Supreme Court decided that a sufficient showing of harm had been made and questions rose whether the lower court broadcast ruling was properly entered and authorized; the dissent would have denied the stay and permitted the broadcast, in Hollingsworth v. Perry, 558 U. S. __, 130 S. Ct. 705, 175 L. Ed. 2d 657 (2010) (per curiam) (No. 09A648). See also (1) Supreme Court Watch: No Broadcast Of Proposition 8 Bench Trial After Supreme Court Stay; (2) Challenge Lodged On The Broadcasting Of Proposition 8 Bench Trial.

After the Supreme Court ruling, the district court continued recording the proceedings with the assurance to the parties that the recording would only be used by the trial judge and would be sealed as part of the record. Northern District of California Chief Judge Vaughn Walker, who presided over the bench trial, retired after his decision. Chief Judge James Ware was assigned the case. He subsequently ordered that the trial video recordings be unsealed. Last week, on February 2, 2012, the Ninth Circuit found he abused his discretion and reversed. See Perry v. Brown, 667 F.3d 1078 (9th Cir. Feb. 2, 2012) (No. 11-17255).

The Ninth Circuit emphasized the limited nature of its ruling:

First, we do not resolve any of the policy questions with which courts are now struggling about how to reconcile the traditional concept of “openness” in judicial proceedings with the development of technology that has given the term a new meaning. The Judicial Conference of the United States and Circuit Judicial Councils have been considering this issue for some time, and we have neither the need nor the desire to offer an additional opinion here.… The narrower consideration that controls our decision here is whether, given the unique circumstances surrounding the creation and sealing of the recording of the trial in this case, the public is entitled to view that recording some two years after the trial. [¶]
Second, our ruling has nothing to do with the freedom of the press to publish, describe, or comment on any information to which it obtains access. Rather, the question here 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.
Perry, 667 F.3d at 1080-81.


Instead of reaching these issues, the Ninth Circuit decision:

resolve[d] the narrow question before us on a narrow basis when we conclude that the district court abused its discretion by ordering the unsealing of the recording of the trial notwithstanding the trial judge’s commitment to the parties that the recording would not be publicly broadcast. The trial judge on several occasions unequivocally promised that the recording of the trial would be used only in chambers and not publicly broadcast. He made these commitments because the Supreme Court had intervened in this very case in a manner that required him to do so, Hollingsworth v. Perry, [558 U. S. _,] 130 S.Ct. 705 (2010) (per curiam).
Perry, 667 F.3d at 1081.


The Ninth Circuit generally noted the common-law right of public access to court proceedings. See, e.g., Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978) (“It is clear that the courts of this country recognize a general right to inspect and copy public records and documents, ... including judicial records and documents.") (footnotes and citations omitted). It was unnecessary to resolve “whether the First Amendment right of public access to judicial records applies to civil proceedings.” Even assuming, without deciding, that it did, a compelling interest would override the right based on the facts of the case. Specifically, the circuit explained, “the integrity of the judicial process is a compelling interest that in these circumstances would be harmed by the nullification of the trial judge’s express assurances, and that there are no alternatives to maintaining the recording under seal that would protect the compelling interest at issue.” Perry, 667 F.3d at 1088.

Other Recent Developments Concerning Cameras In The Federal Courts

While the Perry case was decided on narrow grounds, the public policy debate about broadcasting and recording federal court civil proceedings continues. The three-year pilot program to evaluate the impact of cameras in federal civil proceedings is underway in fourteen districts around the country. See Courtroom Video Camera Pilot Project Progresses.

Also, on December 6, 2011, the Senate Judiciary Subcommittee on Administrative Oversight and the Courts held a hearing entitled “Access to the Court: Televising the Supreme Court.” See Congress Watch: Senate Committee Hearing On New Bill Permitting Televised Supreme Court Proceedings (S. 1945).

Some have urged that the Supreme Court televise or broadcast the oral argument on the constitutional challenge to the Patient Protection and Affordable Care Act (health care law) next month. In November, letters urging this were sent to Chief Justice John G. Roberts, Jr. by Senator Charles E. Grassley (R-IA) and by CSPAN.

For more information on this public policy issue, visit the Cameras And Electronic Devices In The Federal Courtroom Resource Page, which contains a library of documents including judicial conference policies, judicial guidelines, legislation and hearings, cases and other articles of interest. If you are aware of other information to add to the library, please contact us. Constructive comments are always welcome.

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