CITY ATTORNEY DENNIS HERRERA STATEMENT FOR IMMEDIATE RELEASE CONTACT: MATT DORSEY THURSDAY, FEBRUARY 2, 2012 (415) 554-4662 Herrera expresses disappointment with ruling on Prop 8 trial video ‘Public trial records—including video records—should serve to inform our national debates, not be withheld from them,’ Herrera says SAN FRANCISCO (Feb. 2, 2012)—A federal appeals court today ruled against publicly releasing the video record of a 2010 U.S. District Court trial challenging the validity of Proposition 8, the narrowly passed state constitutional amendment that eliminated marriage rights for same-sex couples in California. The decision is only one aspect in the broader legal battle currently before a 9th U.S. Circuit Court of Appeals panel. No ruling has yet been issued on the merits of the appeal of former Chief U.S. District Judge Vaughn Walker’s Aug. 4, 2010 holding that Prop 8 was unconstitutional. In response to the Ninth Circuit panel’s decision to withhold the video record of the trial, City Attorney Dennis Herrera issued the following statement: “A free society deserves maximum transparency in the conduct of the public’s business to the full extent our technology allows, and that’s why I’m disappointed with today’s decision. The issue of marriage equality continues to be one of national importance, as we’re seeing now in the State of Washington. Public trial records—including video records—should serve to inform our national debates, not be withheld from them.” Herrera’s brief in the dispute argued against giving credence to Prop 8 proponents’ continuing narrative in the case to justify withholding the video record, “the myth that they, rather than gay men and lesbians whose equal citizenship they have continued to deny, are the victims here; that they or their witnesses are at risk of persecution or harassment because of their speech or religious beliefs….” The City intervened in the federal challenge to Prop 8 alongside the American Foundation for Equal Rights, which filed the case on behalf of two California couples in May 2009. In doing so, the City Attorney’s Office is representing the public sector interest in opposing discriminatory marriage laws. The case is: Perry v. Brown (formerly Perry v. Schwarzenegger), U.S. Court of Appeals for the Ninth Circuit, Case No. 10-16696. Briefs and additional information on the case are available on the City Attorney’s Web site at http://www.sfcityattorney.org/, and AFER’s website at http://www.afer.org/. # # # Case: 11-17255 02/02/2012 ID: 8053932 DktEntry: 73-1 Page: 1FILED of 24 FOR PUBLICATION FEB 02 2012 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT KRISTIN M. PERRY; SANDRA B. No. 11-17255 STIER; PAUL T. KATAMI; JEFFREY J. ZARRILLO, D.C. No. 3:09-cv-02292-JW Plaintiffs - Appellees, OPINION CITY AND COUNTY OF SAN FRANCISCO, Intervenor-Plaintiff - Appellee, MEDIA COALITION, Intervenor, v. EDMUND G. BROWN, Jr., in his official capacity as Governor of California; KAMALA D. HARRIS, in her official capacity as Attorney General of California; MARK B. HORTON, in his official capacity as Director of the California Department of Public Health & State Registrar of Vital Statistics; LINETTE SCOTT, in her official capacity as Deputy Director of Health Information & Strategic Planning for the California Department of Public Health; PATRICK O’CONNELL, in his official capacity as Clerk-Recorder for the County of Alameda; DEAN C. Case: 11-17255 02/02/2012 ID: 8053932 DktEntry: 73-1 Page: 2 of 24 LOGAN, in his official capacity as Registrar-Recorder/County Clerk for the County of Los Angeles, Defendants, and DENNIS HOLLINGSWORTH; GAIL J. KNIGHT; MARTIN F. GUTIERREZ; HAK-SHING WILLIAM TAM; MARK A. JANSSON; PROTECTMARRIAGE.COM - YES ON 8, A PROJECT OF CALIFORNIA RENEWAL, as official proponents of Proposition 8, Intervenor-Defendants - Appellants. Appeal from the United States District Court for the Northern District of California James Ware, Chief District Judge, Presiding Argued and Submitted December 8, 2011 San Francisco, California Before: REINHARDT, HAWKINS, and N.R. SMITH, Circuit Judges. Opinion by Judge REINHARDT: In this latest round of litigation concerning California’s adoption of an initiative constitutional amendment to prohibit same-sex marriage, we must decide whether the -2- Case: 11-17255 02/02/2012 ID: 8053932 DktEntry: 73-1 Page: 3 of 24 district court abused its discretion by ordering the unsealing of the video recording of the trial, which had purportedly been prepared by the trial judge for his in-chambers use only and was later placed in the record and sealed by him. The order, issued by his successor following his retirement, would permit the broadcast of the recording for all to view. It is important to explain at the outset what our resolution of this case is not about. 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. While we agree with Justice Holmes “that the trial of causes should take place under the public eye, . because it is of the highest moment that those who administer justice should always act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed,” Cowley v. Pulsifer, 137 Mass. 392, 394 (1884), the trial in this case was held “under the public eye” in the traditional sense of the phrase. Whether or how courts should meet the spirit as well as the letter of Justice Holmes’s admonition, for example by authorizing the broadcast -3- Case: 11-17255 02/02/2012 ID: 8053932 DktEntry: 73-1 Page: 4 of 24 of trials in particular circumstances or as a general matter, will be determined ultimately by the Judiciary as an institution or by mandate from Congress. 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. We resolve 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 -4- Case: 11-17255 02/02/2012 ID: 8053932 DktEntry: 73-1 Page: 5 of 24 v. Perry, 130 S. Ct. 705 (2010) (per curiam). Thus, his commitments were not merely broad assurances about the privacy of judicial records in the case; they could not have been more explicitly directed toward the particular recording at issue. In finding that the trial judge had not made a commitment to deny the public access to the recording, the district court abused its discretion: its finding was “without ‘support in inferences that may be drawn from the facts in the record.’” United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc). The district court further abused its discretion by holding that the determinations made by the trial judge regarding the placement of the recording under seal did not bind a different judge presented with a motion to unseal—a conclusion that we regard as an “implausible” and “illogical” application of the law. Id. Each of these abuses of discretion manifests the same basic error: the district court failed to appreciate the nature of the statements that the trial judge had made to the litigants, the specific factual and legal context in which he made them, and the consequences of his having done so. The integrity of our judicial system depends in no small part on the ability of litigants and members of the public to rely on a judge’s word. The record compels the finding that the trial judge’s representations to the parties were solemn commitments. Upon this record, there is only one plausible application of the standard for sealing a record that is, arguendo, subject to the -5- Case: 11-17255 02/02/2012 ID: 8053932 DktEntry: 73-1 Page: 6 of 24 common-law right of public access: the interest in preserving the sanctity of the judicial process is a compelling reason to override the presumption in favor of the recording’s release. We therefore reverse the order of the district court as an abuse of its discretion and remand with instructions to maintain the recording under seal.