Prop 8 videotape decision coming Thursday

A 9th Circuit U.S. Court of Appeals panel announced Wednesday that it will release a decision Thursday (February 2) regarding whether a videotape of the historic Perry v. Schwarzenegger trial should be available to the public.

The panel made a point of underscoring that Thursday’s decision will not encompass the “main” appeals issue —whether California’s ban on same-sex marriages violates the federal constitution. It apparently will also not include a decision on two other matters pending in the case, now known as Perry v. Brown —whether to vacate the federal district court decision and whether the Yes on 8 coalition has standing to appeal the district court decision.

The videotape decision will be posted on the court’s website by 1 p.m. EDT at

This videotape appeal, pressed by Yes on 8 attorneys, challenges the September 19 ruling by U.S. District Court Chief Judge James Ware that a videotape of the January 2010 Perry v. Schwarzenegger case is part of the official record and, thus, should be made available to the public.

During oral arguments on the issue in December, the three-judge panel seemed to warm up to Yes on 8’s arguments for keeping the videotape sequestered.

Yes on 8 attorneys argued the videotape should be sequestered because, at the start of the Perry trial in January 2010, the U.S. Supreme Court had ordered the presiding judge, Chief Judge Vaughn Walker, not to “broadcast” the trial. Walker did not broadcast the trial, but he had a videotape of the proceedings made to use when preparing his decision.

A few months after issuing his decision —that Proposition 8 is unconstitutional— Walker retired from the bench and gave a lecture about the merits of broadcasting trials. In that lecture, Walker showed an audience an excerpt from the videotape.

That prompted Yes on 8 to cry foul and seek an order preventing further use of the videotape publicly.

Yes on 8 attorney David Thompson argued that there were four potential injuries to allowing the videotape to be “broadcast” to the public or made available on the court’s website. The only argument the judges seemed interested in was one claiming that release of the videotapes would diminish judicial credibility. Thompson said Walker had assured Yes on 8 attorneys that he was videotaping the trial for his own use in chamber in preparing his decision. Releasing the tapes to the public contradicts that assurance, Thompson said.

But Ted Olson, the high-profile conservative attorney who helped stage the challenge to Proposition 8, argued that Walker also told attorneys he would include the videotapes in the trial record –a public record—and that Yes on 8 attorneys did not object.

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