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Court to Hear Arguments on Prop. 8 Trial Footage, Recusal Issue

Court to Hear Arguments on Prop. 8 Trial Footage, Recusal Issue


On Thursday, a federal appeals court panel in San Francisco will hear arguments on two issues in the Proposition 8 lawsuit: Whether video of the 2010 trial can be released to the public and whether Judge Vaughn Walker's decision striking down the anti-marriage equality ballot measure should be vacated because he is gay.

On the latter issue, U.S. district judge James Ware, who took over the case following Judge Walker's retirement earlier this year, ruled in June against throwing out Walker's decision. In his order, Ware wrote that it was unreasonable to presume that a judge is biased, as Prop 8 proponents assert Walker is, "solely because, as a citizen, the judge could be affected by the proceedings."

Prop. 8 supporters, whom the California Supreme Court ruled last month have the right under state law to defend the initiative in court after state officials declined to do so, appealed Ware's decision to the U.S. Court of Appeals for the ninth circuit, where the case is on appeal.

Though this may be the first time that a federal appeals court considers a motion to vacate a judgment because of a judge's sexual orientation, observers following the case expect Ware's ruling to stand and do not expect the U.S. Supreme Court to hear any potential appeal from antigay groups.

Judge Ware also previously ruled that video of the 2010 trial be made public. Proposition 8 supporters have fought to keep the recordings sealed, arguing that the tapes were only to be used by Judge Walker "in preparing the findings of fact and conclusions of law" and were not intended for public dissemination.

But Ware ruled that confidence in the judicial system requires "public access to trials and public access to the record of judicial proceedings," and that "no compelling reasons exist for continued sealing of the digital recording of the trial."

Beginning at 2:30 p.m. PST, a three-judge panel for the ninth circuit will hear two hours of arguments, one hour devoted to each issue. Representing the two plaintiff couples who sued the state of California, Ted Olson will argue the video issue, along with Therese Stewart, chief deputy city attorney of San Francisco, and an attorney representing a media coalition (all three parties support making the video public). David Boies, who alongside Olson co-leads the legal team challenging Prop 8, will argue against vacating Judge Walker's decision.

The panel could rule on the merits of the case any time after Thursday, though they have no deadline for deciding whether to uphold or reverse Judge Walker's decision.

Though not on Thursday's agenda, it's possible that the panel may address the standing issue during the hearing. In January, the ninth circuit had asked the California Supreme Court to rule on whether Prop 8 proponents have standing to defend the ballot measure, further delaying a resolution in the case originally filed in May of 2009.

Chad Griffin, board president of the American Foundation for Equal Rights, which has organized and funded the suit, said Wednesday evening, "After tomorrow's hearing, the path is cleared for a decision from the ninth circuit."

AFER's website reports that the ninth circuit granted a request from KQED for a live or delayed broadcast of the proceedings, though it's not clear when the public radio station will air the hearing. AFER will be live tweeting the proceedings.

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