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September 19, 2011

Judge Ware orders unsealing of Prop 8 trial videotapes; appeal likely

U.S. District Court Judge James Ware, who replaced Judge Vaughn Walker as the lower court judge assigned to the Prop 8 challenge, today granted plaintiffs' motion to unseal videotapes of the trial, but suspended the effectiveness of the order until September 30, to provide time for an appeal. Given the vigor with which the Prop 8 proponents have insisted that the tapes not be released, it would be a surprise if they fail to appeal.

Ware's decision is based largely on the theory of a common law right of public access to judicial proceedings. Under that theory, the party opposing access has to provide compelling justification for doing so, and that other courts have ruled that keeping court records secret should be done "only in the rarest of circumstances."

In early 2010, the Supreme Court reversed Judge Walker's initial decision on electronic access to the trial, which was to have it broadcast to other federal courthouses around the country. The Court's decision was based on Walker's failure to comply with the rules governing such issues in the Ninth Circuit. The Prop 8 proponents contend that releasing the videotapes that were made of the trial would violate this order, while the plaintiffs argue that the change in timing and context - the trial is now over and thus the prospect of public access can have no impact on it - make the Supreme Court's decision irrelevant to the question of whether tapes should be made public now.

The case may well go back to the Supreme Court on this question.

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