Metro Weekly

News Analysis: Ninth Circuit Expects Prop 8 Trial Videotape Decision on Thursday

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An appeals court ruling on whether the public should be able to watch video of the trial challenging Proposition 8 is expected on Thursday, Feb. 2 — but it’s unclear, regardless of the court’s decision, that the tape will not be released to the public immediately. [See update.]

The U.S. Court of Appeals for the Ninth Circuit’s public information office has announced that it “anticipates” issuing its decision on Thursday as to whether the videotape recordings of the trial over the constitutionality of Proposition 8 should be released to the public.

The trial judge in the Perry v. Schwarzenegger case (now Perry v. Brown), the now-retired U.S. District Court Judge Vaughn Walker, had allowed for the taping of the trial and had intended to allow it to be publicized, but the Supreme Court stepped in at the last minute to stop the broadcast of the trial to other courthouses within the Ninth Circuit (as well as to one courthouse in New York City). Walker did, though, tape the trial for his own use, and it is the public release of those tapes that is now in question in this related case.

Although the Ninth Circuit could decide in its ruling, which follows arguments on the matter held by the court on Dec. 8, 2011, to affirm a trial court ruling by U.S. District Court Judge James Ware allowing for the public release of the tape, the Ninth Circuit also could give the proponents time to appeal its decision to the Supreme Court before the decision would go into effect.

Additionally, today’s “advance notice” gives the proponents of Proposition 8, who oppose the release of the trial tapes, the opportunity to file a request for an emergency stay pending the decision with the Ninth Circuit, the Supreme Court or both today. (The proponents took similar preemptive action regarding the Aug. 4, 2010, decision in the constitutional challenge.) If they do so, they likely will claim that the immediate release of the tapes cannot be undone and, thus, they will suffer “irreparable harm” if a preemptive stay is not granted.

Finally, the public information office notes in its brief release that the decision “is not the main appeal regarding the constitutionality question.”

That note itself is interesting, for the Ninth Circuit panel that is hearing the appeal of Perry v. Brown is considering the standing question, whether Walker needed to recuse himself because of his relationship with a same-sex partner and the constitutionality question. Although the office could have simply been using shorthand to reference the Perry v. Brown case, it is noteworthy that, if the court found the proponents to lack standing, the court would not need to reach “the constitutionality question.”

[NOTE: This post was expanded, with the final edits made at 3:50 p.m.]

UPDATE @ 10P: The U.S. District Court for the Northern District of California, where the trial was held, has issued its own statement. It says, in relevant part:

This District Court is the custodian of the recordings. Should the Ninth Circuit authorize release of the recordings, this Court will make prompt arrangements to comply with the order. This Court will not, however, have the recording available immediately or within the current calendar week.

So, regardless of the Ninth Circuit or the proponents, the Proposition 8 trial tapes won’t be showing up on newscasts Thursday night.

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