Today, a three-judge panel of the Ninth Circuit Court of Appeals declined to release Judge Vaughn Walker's videotapes of the Prop 8 trial. The panel's decision seemed to be determined by the fact that Judge Walker promised to keep the tapes under seal. We expected as much.
But, that makes the opinion sound broader than it actually is. In fact, the opinion is so narrow, the panel was compelled to use the word "narrow" twice in one sentence. The court concluded that Judge James Ware "abused his discretion" when he ignored his predecessor's promises to keep the tapes under seal and ordered them released anyway, and because the Prop 8 Proponents "relied" on Judge Walker's promises, the tapes could not be released or it would damage the integrity of the judicial system. The opinion stays silent on the right of access to trial video recordings, silent on the possible equivalence of transcripts and videotape, and silent on who has the burden of proof. That is, my argument that the videotapes constitute transcript plus did not come into play.
Remarkably, the opinion is also silent on precisely how Protect Marriage relied on Judge Walker's promises. This omission makes me question an opinion that is otherwise right on the law.
In deciding that Judge Ware should never have ordered the tapes released in the first place, the Ninth Circuit assumed, but did not decide, that the "presumption of public access applies to the recording at issue here" (12). That is understandable: there was no need for the court to dive into the controversial morass of what technological development means for public access to the courts because even if a video and a transcript are equivalent,
[h]ad Chief Judge Ware properly understood Chief Judge Walker's statements as commitments to the parties, and had he recognized those commitments as binding obligations and constrains on his own discretion" – as he should have – "he could have arrived at only one conclusion that is logical, plausible, and consistent with the record: to preserve the integrity of the judicial system, the recording must remain under seal" (19).
In other words, the promise to keep the tapes secret outweighed whatever right the public had to those tapes. Again, this makes sense: no institution based on public trust can function if the promises of its leaders can be tossed aside willy nilly. The court then detailed precisely when and where Judge Walker promised to keep the tapes secret and chastised Judge Ware for "ambiguous" reasoning that seemed to ignore his predecessor's clear statements at trial and plain language in his opinion.
But, this was not the court's holding today. It wasn't just the promise; it was the Prop 8 Proponents' reliance on those promises that outweighed the public's presumed right of access to the tapes:
[T]here is a compelling reason in this case for overriding the common-law right [to public access]…. The reason is that Proponents relied on Chief Judge Walker's specific assurances–compelled by the Supreme Court's just-issued opinion–that the recording would not be broadcast to the public (13).
Exactly how the Proponents relied on the promise of secrecy is unclear. If that was the basis for the decision, it is insufficient for the court to list Judge Walker's promises. Rather, the court should have marshaled evidence of the ways in which Proponents changed their strategy given secrecy or would have changed their strategy if the tapes were to be public. That would show reliance.
Consider the parallel contracts context: What makes a unilateral promise enforceable is a party's reasonable reliance on the promise of another. If you promise to donate $10,000 as long as the money will be used to build a new classroom, and the school begins construction in reliance upon your promise, you cannot later withdraw the promise and donation (Allegheny College). Nor can you promise to rent commercial space, causing the lessor to terminate a prior contract with the old tenant, and then back off your promise to lease (Pop's Cones). And, you cannot take back your subcontracting bid after the general contractor has used it to calculate his costs and win a project (Drennan v. Star Paving, though this is just the majority rule).
In any event, a promise is binding in contract law because someone else relied on it, and to stop the promisor from backing out on the deal, the promisee has to prove that he reasonably relied on the promise somehow: by building something, paying something, exercising his effort somehow. Otherwise, the promise is irrelevant. So, if the analogy to contract law holds, what matters for determining whether to release the Prop 8 trial tapes is not simply Judge Walker's promise, but the ways in which the Prop 8 Proponents relied upon that promise. This kind of evidence is lacking in the Prop 8 case. Maybe the Proponents would have been less bigoted in the testimony had they known the tapes would be released; maybe they would have brought more/fewer witnesses. Regardless of what they would have done differently, the principle of reliance requires that they do something differently.
The counterargument is clear: Proponents, like the public at large, always rely on the integrity of the judicial system by agreeing to be bound by it, by participating in it, and defending it from attack. A judge's promises, then, are always relied upon. I accept that possibility. But, the failure to show precisely how the Proponents relied on Judge Walker's promises strips the secrecy of any valid legal rationale. What's left is what we all know to be true — namely, that Proponents want to keep the trial tapes under wraps to keep sunshine away from their bigotry and hate. The law should not countenance that nefarious motive.
The 9th Circuit's ruling has been reposted, AFTER THE JUMP…
Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His research focuses on gay rights and the First Amendment. Ari will be writing weekly posts on law and various LGBT issues.
Follow Ari on Twitter at @ariezrawaldman.