The US Court of Appeals for the Ninth Circuit [official website] on Monday extended a hold [order, PDF] on the release of the video recordings of last year's trial on the constitutionality of California's same-sex marriage ban. In response to an emergency motion by proponents of the ban, the court granted a stay of US District Court Chief Judge James Ware's September 19th ruling [JURIST report; order] that granted the unsealing of the Proposition 8 trial video recordings. The proponents do not contest Judge Vaughn Walker's original order placing the video recordings in the official trial record, only the unsealing of that record. As such, Ware rested his ruling solely on the common law right to inspect and copy public records and documents, which includes the trial record, of which the video recordings are an official part. The proponents claim that under US Supreme Court precedent, Local Rule 77-3 would have altogether prevented Walker from originally creating the recordings, but for his unequivocal representation at the time that they would not be publicly broadcast outside the courthouse. The proponents further claim that the Rule would have barred the placement of the video recordings in the official record but for Walker's sealing order. Common law rules are displaced by statute and other positive legislative and administrative enactments, and therefore, the proponents argue, now that the recordings exist and the trial record is sealed, Rule 77-3 abrogates the common law rationale for unsealing that portion of the trial record. Alternatively, the proponents claim that the official record of the trial proceedings is constituted in whole by court reporter's transcript, not the video recordings, and so the common law right of access cited by Judge Ware in his unsealing order does not apply.
At its beginning, Walker ordered the trial recorded exclusively for use in his chambers, permissible under Rule 77-3. The US Supreme Court had prevented the broadcast of the trial [JURIST report] after Judge Walker attempted to put the trial in a pilot program that would have broadcasted the proceedings to other courthouses. The order continued a temporary stay ordered by the Supreme Court the same day the trial began [JURIST reports]. Supporters of Proposition 8 had objected to the controversial decision to broadcast the trial proceedings, claiming it would result in witness intimidation. The YouTube broadcast of the case, Perry v. Schwarzenegger [case materials], was to be allowed under the experimental program approved by the US Court of Appeals for the Ninth Circuit [official website] that allows cameras in civil, non-jury cases. Proposition 8 was approved [JURIST report] by California voters in November 2008.