Prop. 8 supporters ask to seal trial video after partial release

Cameras in the courtroom continue to incite debate, with a motion filed this week concerning the use of recordings of last year's trial court proceedings challenging Proposition 8, California's ban on gay marriage. The proponents of Proposition 8 on Wednesday asked the U.S. Court of Appeals in San Francisco (9th Cir.) to order the now-retired judge who last year presided over the trial in Perry v. Schwarzenegger, the legal challenge to Proposition 8, to stop further disclosure of the trial recordings and to order all parties to return copies of the recordings to the appellate court, to be held under seal.

The motion filed on Wednesday is in response to a speech former U.S. District Court Chief Judge Vaughn Walker gave in February, prior to his retirement, at Arizona State University. The speech was broadcast by C-SPAN. During his presentation, Walker played a few minutes of the Perry recordings for the audience.

Last year, Walker signaled that he intended to broadcast the Perry bench trial and the attorneys for the Proposition 8 proponents objected. After the U.S. Supreme Court, in a 5-4 decision, sided with the Proposition 8 proponents and stopped the broadcast, Walker recorded the trial proceedings, but did not broadcast them.

Walker explained at the time that a local rule allowed the court to record the trial proceedings "for purposes of use in chambers," according to a portion of the trial court transcript filed with the proponents' new motion. Walker continued: "I think it would be quite helpful to me in preparing the findings of fact to have that recording. So that's the purpose for which the recording is going to be made going forward. But it's not going to be for purposes of public broadcasting or televising."

In their motion filed this week, the Proponents of Prop. 8 state: "What’s done is done. Judge Walker’s speech, and C-SPAN’s public dissemination of it, cannot be undone, and given that Judge Walker has recently retired from the federal bench, he cannot be disciplined." But they still request that the recording be returned and sealed in order to prevent further dissemination. The motion indicates that the parties challenging the constitutionality of Prop. 8 oppose the motion.

Walker is a proponent for cameras in the courtroom, especially in trial court. During his speech in Arizona, he said: "If anything, of course I disclose my bias here, I think a broadcast of a trial would be even more interesting than the broadcast of an appellate proceeding." Walker also noted the prevalence of trial reproductions due to the lack video recordings. He asked what the best avenue would be to learn how courts function: a musical, a reenactment, or the real thing? He continued: "I submit to you that the real thing is far better, far more informative and far better for the public, and far better for teaching people how our institutions work."

The Ninth Circuit broadcast live the appeal of the trial court's decision on Prop 8 in December. The current motion does not take issue with the broadcast of the appellate proceedings.