Perry v. Schwarzenegger

Citation: 302 F. Supp. 3d 1047Docket: Case No. 09–cv–02292–JW (WHO)

Court: District Court, N.D. California; January 16, 2018; Federal District Court

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Judge Walker indicated that local rules allowed for trial recordings to be used in chambers, stating that the recording would assist him in preparing findings of fact, but it was not intended for public broadcasting. Proponents of Proposition 8 withdrew their objection at this stage. In May 2010, Judge Walker offered to provide video copies to parties using excerpts in their closing arguments under a strict protective order, which plaintiffs and CCSF accepted. Following the closing arguments, Proponents sought the return of these copies. In an August 4, 2010 order, Judge Walker ruled that the trial recordings would be filed under seal and the parties could retain copies per the protective order; thus, Proponents' request for return was denied. Proponents later appealed Judge Walker's ruling against Proposition 8 but did not contest the denial of their motion regarding the recordings. After Judge Walker's retirement in 2011, he publicly displayed excerpts from the recordings. Proponents returned to court, requesting the Ninth Circuit to compel the return of the recordings, while plaintiffs sought to unseal them. The Ninth Circuit referred the issue back to the District Court, where Judge James Ware denied Proponents' request and granted the motion to unseal, asserting a common-law right to public access to the recordings. Judge Ware found no legal barrier to their release and directed that a copy be returned to Judge Walker. Proponents appealed this decision. The Ninth Circuit initially acknowledged the presumption of public access but ultimately ruled that Proponents had a compelling reason to override this right, citing Judge Walker's assurances that the recordings would not be publicly broadcast. The court noted that these assurances constituted a commitment against public access to the videos.

The Ninth Circuit found compelling reasons to continue sealing video recordings related to the Proposition 8 trial, citing the importance of preserving the integrity of the judicial system and the reasonable expectations of the Proponents regarding non-broadcast assurances. These expectations were informed by a local rule stipulating that sealed documents would be open to public inspection ten years after a case's closure unless a party shows good cause for an extension. KQED now seeks to unseal the recordings, arguing that the Supreme Court's affirmation of Proposition 8's unconstitutionality, the passage of time, and growing acceptance of same-sex marriage have diminished the need for sealing. Named plaintiffs supporting unsealing argue that the video recordings are crucial for public understanding, as they uniquely convey the emotional weight of their testimonies, which transcripts cannot replicate. Declarations from advocacy organization directors emphasize the recordings' significance in illustrating the social and legal issues presented in the trial. Additionally, KQED's Senior Editor states that access to the full trial recordings is essential for comprehensively understanding this pivotal moment in California's legal history and for educational purposes.

The legal standard establishes two qualified rights of access to judicial proceedings and records: a First Amendment right to access criminal proceedings and a common-law right to inspect and copy judicial records. The Ninth Circuit has not definitively delineated the standards for civil proceedings versus civil judicial records. The common-law right of access is anchored in a strong presumption favoring access, which a party seeking to seal records must overcome by demonstrating "compelling reasons." This necessitates a court to articulate the factual basis for its decision without reliance on speculation and to balance the public's interest against the party's desire for confidentiality.

The First Amendment right of access requires courts to evaluate: 1) whether closure serves a compelling interest; 2) the likelihood of harm to that interest if access is granted; and 3) the availability of alternative measures to protect the interest without full closure. Courts utilize a two-part "experience and logic" test to assess the existence of a First Amendment right to access specific proceedings or documents, considering historical openness and the role of public access in the process's functioning.

Even when the test is met, access may still be denied if closure is necessary for a compelling governmental interest and is narrowly tailored. The First Amendment generally provides a stronger right of access compared to common law, yet both require compelling justifications for sealing records. Additionally, prior to the Proposition 8 bench trial and the Ninth Circuit's decision in Perry v. Brown, local rules mandated that sealed civil documents would be publicly accessible after 10 years unless a party demonstrated good cause to extend the sealing period.

KQED, the plaintiffs, CCSF, and the ACLU argue for the immediate release of video recordings from the Proposition 8 trial, citing Judge Walker's ruling as established law, now affirmed by the Supreme Court. They highlight that the Ninth Circuit previously agreed to keep the recordings sealed due to the unsettled legal status of same-sex marriage but did not intend for the sealing to be permanent. With the landscape of same-sex marriage having changed significantly, they assert that the compelling reasons for sealing no longer apply, and the public's right to access the recordings, under common law and the First Amendment, outweighs any continued sealing.

Movants contend that concerns about potential harassment of the Proponents have diminished over time, particularly given the settled legality of same-sex marriage and extensive media coverage of the trial. They argue that the Northern District's Local Rule, which presumes sealing for ten years, should be overridden in favor of public access due to the absence of compelling justifications for continued sealing. The Proponents fail to demonstrate how further disclosure would harm them, especially since the trial transcript has been widely disseminated.

In response to the Proponents’ arguments against unsealing, the court rejects claims that it is barred from considering the motion based on previous Ninth Circuit rulings or legal doctrines like issue preclusion or stare decisis. The Ninth Circuit’s prior mandate did not imply that the sealing was indefinite, and it specifically noted the conditional nature of the sealing based on changed circumstances. Thus, the court maintains that it is not precluded from addressing the merits of the motion to unseal the recordings.

The common-law right of access applies to video recordings of judicial proceedings, which are subject to a strong public access right. However, the Ninth Circuit's 2012 ruling on judicial integrity remains a compelling justification to prevent their disclosure, despite the ten-year presumptive unsealing timeline under Civil Local Rule 79-5(g). Proponents argue that former Local Rule 77-3 and judicial policies from 2010, which restricted the recording and broadcasting of court proceedings, limit public access and preclude releasing the videos. They reference a Supreme Court case affirming that Rule 77-3 had legal authority, asserting that releasing the videos would violate this law.

Nevertheless, the recordings were made part of the trial record without objection from the proponents. Changes in circumstances, such as updated Northern District and Ninth Circuit rules allowing public broadcasts, affect the balance of public access rights against justifications for sealing records. Former Rule 77-3 and past policies do not negate the public's right of access to the recordings. Proponents also claim that the common-law right of access does not apply to witness testimony recordings, referencing United States v. McDougal, which involved different circumstances. In contrast, the current video recordings are of the proceedings themselves and were intended to assist the judge's decision-making.

The Ninth Circuit's strong presumption of public access to judicial records supports the public’s right to access these recordings. However, the previously identified justification of judicial integrity continues to prevent their release at this time. It is clarified that the recordings should not remain sealed solely based on a prior promise made by a judge, nor should a sealing last indefinitely due to past justifications, especially if those justifications are no longer valid.

For documents to remain sealed, compelling interests must support continued secrecy, as established by the Ninth Circuit. The justification of judicial integrity remains valid, rooted in procedural facts recognized by both the Supreme Court and the Ninth Circuit concerning the recording of court proceedings. Key facts include: the adoption of a pilot project for recording court proceedings without prior notice, modifications to local civil rules without public comment, existing rules prohibiting recording during the trial, assurances made by Judge Walker regarding the internal use of recordings, and the reliance on a ten-year presumption of sealing.

While the Ninth Circuit's decision in Perry v. Brown does not preclude consideration of unsealing, the compelling reason of judicial integrity still necessitates sealing the recordings until the ten-year unsealing rules take effect. Proponents argue that the ten-year presumption in former Local Rule 79-5 does not apply to judicial recordings, as it pertains only to records created by the parties. However, Rule 79 applies broadly to records kept by the Clerk, and Rule 79-5 governs documents under seal, stating that sealed documents in civil cases become public after ten years unless a party shows good cause for extending the seal.

The rules do not differentiate between documents filed by parties and those created by the Court, such as transcripts or recordings. Judge Walker ordered the trial recording to be filed under seal, affirming that Rule 79-5 governs the situation.

No inherent conflict exists between the then-applicable Rule 79-5(f) regarding presumptive unsealing and Rule 77-3's prohibition on recording and broadcasting proceedings. Movants argue that the ten-year unsealing presumption, highlighted by the Ninth Circuit, represents the maximum expectation for sealing, yet they also claim this timeframe is arbitrary and lacks legal backing, asserting it cannot override the public right to access the recordings. The ten-year presumption remains significant, and the analysis would not differ if evaluated under a First Amendment right of access, which also requires compelling justifications for sealing. The Ninth Circuit had previously found such justifications satisfied in 2012.

In conclusion, KQED's motion to unseal is considered on its merits, with a determination that the common-law right of access applies to the recordings made by Judge Walker. However, the compelling justification of judicial integrity, considering the case's unique facts and legal context, warrants continued sealing at this time. The recordings will be released on August 12, 2020, unless a motion to continue sealing is filed by Proponents by April 1, 2020, with subsequent deadlines for opposition and replies, and a hearing set for June 17, 2020.

Additionally, the Proponents had sought a writ of certiorari in 2010 to prevent the broadcasting of the trial, but the Supreme Court dismissed the petition as moot, given that the trial had concluded. Concerns expressed by Proponents' witnesses regarding broadcasting were determined by Judge Walker to be insufficient, as they did not attempt to call their witnesses after those concerns were resolved. A Media Coalition, including KQED, successfully intervened to support the motion to unseal, which was ultimately granted by the Ninth Circuit. The Proponents did not provide evidence to support their opposition to unsealing the recordings.

KQED asserts that the Ninth Circuit, in Courthouse News Service v. Planet, acknowledged that the First Amendment right of access pertains to civil proceedings. The court, however, did not make a definitive ruling on access rights for media to superior court complaints, instead remanding the case to the district court for further consideration of significant First Amendment issues without taking a position on the merits. The ruling did not clarify the standards for sealing civil proceedings or records. Under Civil Local Rule 79-5(g), documents filed under seal are generally kept from public inspection during the case and may only be accessed after ten years unless a party shows good cause for an extension. KQED notes practices in other jurisdictions regarding presumptive unsealing of records after two years or upon final disposition. While Judge Walker’s assurances could imply that video recordings would remain inaccessible, the Ninth Circuit determined that proponents could not rely on those assurances indefinitely. The Supreme Court's prior decision limited its scope to procedural matters and did not address the core issue of access. Although there is ambiguity regarding the exact timing of the ten-year mark due to an oversight in judgment entry, the court determined that August 12, 2010, should be considered the effective closing date for substantive proceedings. Civil Local Rule 79-5(g) reflects similar provisions.