Prop. 8 Recordings Could Still Be Made Public ... in 2020

In nixing public release of Proposition 8 trial recordings yesterday, a three-judge panel for the Ninth Circuit Court of Appeals wrote that antigay supporters of the 2008 ballot measure had relied on now-retired Judge Vaughn Walker's "specific assurances ... that the recording would not be broadcast to the public, at least in the foreseeable future."

Ninth Circuit judge Stephen Reinhardt, who wrote the opinion released Thursday, specified "forseeable future" because current court rules mandate that documents filed under seal become public 10 years after a decision in a case -- unless a legal party shows "good cause" as to why they should remain out of the public's hands.

If that rule holds, then the recordings could be released August 4, 2020 -- a decade after Walker's landmark decision -- regardless of whether attorneys challenging Prop. 8 decide to appeal this week's Ninth Circuit ruling (the legal team led by Ted Olson and David Boies has not indicated whether they will do so).

A footnote in the panel's 23-page ruling stipulates:

Northern District of California Local Rule 79-5(f) provides that "[a]ny document filed under seal in a civil case shall be open to public inspection without further action by the Court 10 years from the date the case is closed," with the proviso that "a party that submitted documents that the Court placed under seal in a case may, upon showing good cause at the conclusion of the case, seek an order that would continue the seal until a specific date beyond the 10 years provided by this rule."

One LGBT attorney said of the rule mention, "I think the court is telegraphing the fact that although the public doesn't have access to the recordings today, they won't be under seal forever."

Whether the "case is closed" after the district court judgment or an ultimate ruling by a higher court is unclear, though the attorney interpreted the rule to apply to Judge Walker's 2010 decision.