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Appeals Court Rules Against Release Of Prop 8 Trial Video

SAN FRANCISCO (CBS SF) - A federal appeals court ruled in San Francisco on Thursday that a video recording of a 2010 trial on the constitutionality of Proposition 8 must remain sealed.

A three-judge panel of the 9th U.S. Circuit Court of Appeals said it was bound by a promise made by U.S. District Judge Vaughn Walker of San Francisco during that trial that the video would not be broadcast.

Circuit Judge Stephen Reinhardt wrote, "The trial judge on several occasions unequivocally promised that the recording of the trial would be used only in chambers and not publicly broadcast."

The appeals court said releasing the video would result in "undermining the integrity of the judicial system."

"Litigants and the public must be able to trust the word of a judge if our justice system is to function properly," Reinhardt wrote.

The nonjury trial before Walker, who has now retired, was on a lawsuit in which two couples challenged Proposition 8, California's voter approved ban on same-sex marriage.

Walker ruled in August 2010 that the measure violated the U.S. Constitution.

The sponsors of the voter initiative have appealed that decision and the same panel of the 9th Circuit is now considering that appeal on the larger question of whether Proposition 8 is unconstitutional. The panel has not said when it will rule on that issue.

Theodore Boutrous, a lawyer for a gay couple and a lesbian couple who challenged Proposition 8, said the couples' attorneys are now focusing on the broader constitutional question.

"We are looking at the big picture and hoping for a ruling soon on the merits affirming the district court's judgment that Proposition 8 is unconstitutional," Boutrous said.

Austin Nimocks, a lawyer for the sponsors of Proposition 8, said, "The 9th Circuit correctly ruled that when a trial judge makes a solemn promise...the judiciary must not be allowed to renege on its pledge."

The sponsors had argued that releasing the video could result in harassment and intimidation of witnesses.

Although the video has been sealed to the public, written transcripts of the trial are public records. Same-sex marriage supporters have posted a reenactment of the trial, based on those transcripts, on the Internet and created a play about the trial.

In Thursday's ruling, the 9th Circuit overturned a decision in which U.S. District Judge James Ware of San Francisco ordered the video released, saying that there was a right of public access to the video.

Ware was assigned to handle trial-level proceedings in the case after Walker retired last year.

Walker originally intended the video to be made for possible delayed broadcast of the trial on a government YouTube channel. After the U.S. Supreme Court blocked that plan by a 5-4 vote, Walker allowed the recording to continue, but said in court that it was only for private use by himself and attorneys in reviewing the case.

(Copyright 2012 by CBS San Francisco and Bay City News Service. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed.)

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