Perry v. Hollingsworth, No. 20-16375 (9th Cir. 2021)
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.In 2010, the district court invalidated California’s Proposition 8, which prohibited same-sex marriage. Judge Walker recorded the trial. When Proposition 8 Proponents objected, he stated that the recording was not going to be used for public broadcasting or televising. The recordings were offered to the parties for use in their closing arguments and were later entered into the record under seal. In 2011, the Chief Judge ordered the recordings to be unsealed. The Ninth Circuit reversed, citing Judge Walker’s specific assurances and local Rule 79-5(f), which provides that any document filed under seal in a civil case shall be open to the public 10 years from the date the case was closed unless good cause could be shown to extend the seal.
In 2020, Proponents asked the district court to extend the seal. The district court declined, noting that Proponents failed to submit any evidence that any Proponent or witness wanted the recordings to remain under seal or feared retaliation or harassment if the recordings were released.
The Ninth Circuit dismissed an appeal. Proponents failed to establish a particularized and concrete injury sufficient to constitute “injury in fact” for purposes of jurisdiction. Even a “promise” made by a judge to litigants in the course of litigation is not an enforceable contract. The court rejected contentions that the unsealing would result in a “palpable injustice” or would harm future litigants’ ability to rely on judicial “promises.” Neither alleged injury was sufficiently concrete and particularized to establish Article III standing.
Court Description: Civil Rights. The panel dismissed, for lack of jurisdiction, an appeal from the district court’s order releasing to the public the video recordings of the district court bench trial in the landmark case striking down California’s Proposition 8 forbidding same-sex marriage. Judge Walker recorded the trial for use in chambers, pursuant to a local rule in effect at the time. When proponents of Proposition 8 (“Proponents”) objected, he assured them that the recording was not going to be used for purposes of public broadcasting or televising. The video recordings were offered to the parties for use in their closing arguments and were later entered into the record under seal. In 2011, after Judge Walker’s retirement and while the appeal of Judge Walker’s order permanently enjoining Proposition 8 was pending, then-Chief Judge Ware ordered the video recordings to be unsealed. Proponents appealed, explaining that they had understood Judge Walker’s assurance to mean that the recordings would not be made public, although during oral argument, the attorneys acknowledged that neither they nor their clients believed the recordings would remain permanently sealed. On appeal, this court reversed the district court, holding that it had abused its discretion in 4 PERRY V. HOLLINGSWORTH ordering the recordings unsealed in light of Judge Walker’s specific assurances that the recordings would not be broadcast to the public, at least in the foreseeable future. In an amended footnote, the court cited local Rule 79-5(f), which provides that any document filed under seal in a civil case shall be open to the public 10 years from the date the case was closed, unless good cause could be shown to extend the seal. In 2020, Proponents asked the district court to extend the seal. The district court declined the request, in part because Proponents failed to submit any evidence that any Proponent or witness who testified on behalf of Proponents wanted the recordings to remain under seal or feared retaliation or harassment if the recordings were released. The panel held that Appellants, a subset of the original Proponents, failed to establish a particularized and concrete injury sufficient to constitute “injury in fact” as the Supreme Court has defined that term. Appellants did not claim, and cited no authority for the proposition, that a statement—even a “promise”— made by a judge to litigants in the course of litigation is an enforceable contract. The panel held that even assuming, contrary to their statement in the 2011 appeal, that Judge Walker told Appellants that the video recordings would remain sealed in perpetuity, they failed to plausibly allege a concrete and particularized injury. The panel rejected Appellants’ contentions that the unsealing would result in a “palpable injustice” to Appellants themselves or would harm future litigants’ ability to rely on judicial “promises,” and would thereby injure both the judicial system and future litigants. Neither alleged injury was sufficiently concrete and particularized for purposes of Article III standing. The panel therefore lacked jurisdiction over the appeal. PERRY V. HOLLINGSWORTH 5 Dissenting, Judge Ikuta stated that for the past ten years, the Proponents have gone to extraordinary lengths to prevent the public broadcast of these trial proceedings, including a successful trip to the Supreme Court and multiple appeals to this court. Whether Chief Judge Walker’s promise not to publicly broadcast the trial recording is an enforceable contract or merely closely analogous to one, the breach of that promise is a concrete and particularized injury sufficient to confer Article III standing upon the Proponents. Accordingly, the issue of Article III standing does not provide a basis to depart from this court’s prior ruling “that the integrity of the judicial process is a compelling interest that in these circumstances would be harmed by the nullification of the trial judge’s express assurances, and that there are no alternatives to maintaining the recording under seal that would protect the compelling interest at issue.” Perry v. Brown, 667 F.3d 1078, 1081 (9th Cir. 2012). 6 PERRY V. HOLLINGSWORTH
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