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Prop 8 trial: 9th Circuit to release opinion tomorrow on videotape recordings of Prop 8 trial

Prop 8 trial Tapes

By Adam Bink

Just in from the 9th Circuit:

Advance Notice of Opinion Filing

The Court anticipates filing an opinion tomorrow (Thursday, February 2) by 10 a.m. regarding the public release of videotapes made of the civil bench trial in Perry v. Hollingsworth, the Proposition 8 case. Note that this is not the main appeal regarding the constitutionality question.

It’s worth noting: this is not an opinion on the appeal of the constitutionality of Prop 8 or standing, but on the issue of whether the videotape recordings should be released to the public. There’s no indication yet of when that opinion will be delivered.

If you’re not up to speed on where the trial is with all these different issues, you can find our one-stop-shopping summary at Prop8TrialTracker right here.

As usual, we’ll have the best coverage and roundup of reaction on the web tomorrow prior to and after 10 AM PST.

67 Comments

  • 1. steven  |  February 1, 2012 at 12:10 pm

    I predict they will say no to release of the video for now

  • 2. MightyAcorn  |  February 1, 2012 at 12:12 pm

    It's that familiar excitement/dread tingling sensation again….eeeeeeeeeeeeeeeee Here we go.

  • 3. Mackenzie  |  February 1, 2012 at 12:13 pm

    Hope it is in our favor! Als owish they would get a move on with the Appeal of Walkers ruling as well!

  • 4. ben  |  February 1, 2012 at 12:38 pm

    Why do you suppose they are releasing them separately? Throw official proponents a bone before smashing them down on merits or standing later?

  • 5. steven  |  February 1, 2012 at 12:40 pm

    I think you are right.. when they release the main appeal they will tear them apart… πŸ™‚

  • 6. Carpool Cookie  |  February 1, 2012 at 12:44 pm

    Well, they're separate issues and require separate written opinions. The judges realize the public's interested in the outcome of this case…so I imagine they're releasing the individual issues as they're stamped, proofread, rewritten, and leaving their desks.

  • 7. Kate  |  February 1, 2012 at 12:48 pm

    Cookie — email Kathleen.

  • 8. Carpool Cookie  |  February 1, 2012 at 12:57 pm

    Oh noes…..I closed that email account where she was in my address book!

    : (

    email me @ [email protected]

  • 9. Kate  |  February 1, 2012 at 1:02 pm

    That's exactly what happened!

  • 10. Kathleen  |  February 1, 2012 at 1:27 pm

    We'll probably get the decision on the merits and the motion to vacate at the same time, given that the court consolidated the two cases. There's really nothing else that consolidation would mean for these cases, given that they weren't briefed or argued together and their schedules didn't coincide.

  • 11. Brian  |  February 1, 2012 at 2:53 pm

    I agree. And my guess is we will get the decision on the merits/vacatur appeals very soon, perhaps as early as Friday.

  • 12. Carpool Cookie  |  February 1, 2012 at 4:25 pm

    And….would the standing issue be a separate opinion, in itself?

    They might never get to the merits, I thought.

  • 13. Kathleen  |  February 1, 2012 at 7:51 pm

    The issue of standing will be part of the merits opinion. They have to address th eissue of standing as a threshold question, and then if the say the Proponents have standing, they'll go on to the question of constitutionality.

  • 14. Str8Grandmother  |  February 1, 2012 at 12:44 pm

    I made a small effort that I will be looking for tomorrow. I sent out several e-mails to the 3 Judges in a way that I thought they would receive them, and said that you really should release the tapes, but if you can't, don't say no forever. At least make it like the Nixon Tapes (showing my age here) seal it for a certain number of years. I think that a Seal stays in effect 10 years in Federal Court, I could be wrong about the amount of time, but I think that is right. Then an interested party can petition the Court to continue it being under seal. I said if you are going to rule to keep it under seal keep a 3 year limit on the Seal. So we will see what happens tomorrow. I figured it couldn't hurt to ask. Reinhart will remember Nixon and probably Smith also. I urged them to release but then gave them a compromise position. So we will see what happens.

  • 15. Kathleen  |  February 1, 2012 at 5:24 pm

    It's great that you took enough of an interest to write, but just so no one thinks that judges are swayed by members of the public writing, I'll point out that it would be unethical for them to actually consider anything you said in coming to their decision. Judges in high profile cases usually receive numerous pieces of correspondence urging a decision one way or another; they are generally handled by clerical staff and, if ever even read by the judges, it will likely only be after issuing an opinion.

    If you want anything you say to even have a chance of influencing the decision, you need to submit a document to the court on the record. As I'm sure you're aware from watching these cases, there are always a certain number of individual members of the public with no particular expertise who submit miscellaneous filings with the court. Anyone is welcome to; it's then up to the court if it want to accept it.

  • 16. Str8Grandmother  |  February 2, 2012 at 12:02 am

    I am influenced by a documentary, or article I read on one of the Supreme Court Justices. The Justice said that he read every letter written to him.

  • 17. Glen  |  February 1, 2012 at 12:56 pm

    It seems they are going to rule in favor of keeping the video tapes under lock and key (if not completely destroyed like the Prop 8 side wants).

    I say that because they put the note at the end. They want people to know that while they a ruling in favor of the defense in this question, that does not mean anything about their ruling on whether Prop 8 is Constitutional or not.

  • 18. Alan_Eckert  |  February 1, 2012 at 3:26 pm

    That note is there to clarify for all those waiting in anticipation of the other ruling. This is just a side-ring issue compared to the main event.

  • 19. Carpool Cookie  |  February 1, 2012 at 4:27 pm

    Well, that note could be put there for….well, just to be helpful. I don't know that it indicates a leaning either way (?)

  • 20. Lesbians Love Boies  |  February 1, 2012 at 12:56 pm

    I suspect it will be a 'no' on the release of the tapes also…it would come as a shock if it is a 'yes'.

  • 21. Kathleen  |  February 1, 2012 at 1:03 pm

    The notice from the court, for those who like to see the real thing. πŸ™‚
    http://www.scribd.com/doc/80153641/11-17255-Advan

  • 22. darrell  |  February 1, 2012 at 1:05 pm

    I think its 60/40 chance they won’t release the tapes but i believe its 80/20 chance they will uphold judge walker’s ruling.

  • 23. Lesbians Love Boies  |  February 1, 2012 at 1:06 pm

    OT – This is in my district…

    Openly Gay Arizona Lawmaker to Run for Gabby Giffords Seat

    Out gay Arizona Democratic State Representative Matt Heinz says he will run for Rep. Gabrielle Giffords' seat in Congress…

    Read more: http://www.towleroad.com/2012/02/openly-gay-arizo

    And more here: http://azstarnet.com/article_94c57899-98a1-5d0d-9

  • 24. Larry  |  February 1, 2012 at 1:12 pm

    Chris Geidner had an interesting take. The last sentence is "This is not the main appeal regarding the constitutionality question." According to him, if the 9th circuit says there is no standing, there wouldn't be a constitutional question to address, so reading into the last sentence might imply they've decided the defendants do have standing.

  • 25. Leo  |  February 1, 2012 at 2:18 pm

    Seems to me he's reading too much into it. The main appeal IS regarding the constitutionality question, simply because that's the question that the proponents appealed. Standing is one of the questions the court needs to consider in every case, not the subject of this appeal. Of course, it's widely expected anyway that standing will be granted.

  • 26. Carpool Cookie  |  February 1, 2012 at 4:29 pm

    "Of course, it's widely expected anyway that standing will be granted."

    Which is very weird. It might work to our sides favor in the long run if the H8ers are granted standing…but I'm still not liking that potential.

  • 27. Kevin  |  February 1, 2012 at 7:54 pm

    Standing is very much a subject of this appeal, one so critical that the Ninth Circuit believed it merited a response from California's highest court.

  • 28. Leo  |  February 1, 2012 at 8:17 pm

    The subject of an appeal is what is being appealed, not what is critical.

  • 29. Prop 8 Trial Tracker &raq&hellip  |  February 1, 2012 at 1:35 pm

    […] and briefs regarding the merits of the case have been submitted to the court. Β The Ninth Circuit announced today that it would file its opinion on the tapes (but not the main constitutional challenge) […]

  • 30. lee  |  February 1, 2012 at 2:07 pm

    I hope they address the constitutionality question soon!!! ::sigh:: some give it till the end of Feb…I hope so

  • 31. Bryce  |  February 1, 2012 at 2:52 pm

    I am more optimistic than most: I think we stand a chance at getting the tapes. Since they are releasing the decisions separately, if this specific situation were so clear cut and dry, they would have decided it ASAP. There was obviously some question and maybe it was resolved in our favor.
    I think it would be neat to get the merits decision on Valentine's Day!

  • 32. Carpool Cookie  |  February 1, 2012 at 4:31 pm

    I have a hard time making any legal predictions. Everyone interprets law differently, and you really never know what a judge (or worse yet, a GROUP of judges) is going to say.

    That's one reason so many cases settle out of court.. There's never any guarantee how a ruling will go…and it's often preferable to come to an agreement both sides can live with, beforehand, instead of rolling the dice in the courtroom, and risking losing everything.

  • 33. Carpool Cookie  |  February 1, 2012 at 4:35 pm

    PS: A Valentines Day decision would be FABULOUS! hahahahahahaha ! ! !

    Like when Judge Walker released one of his decisions on Gay Pride Day…or something? What was that again? Or it was the anniversary of Loving v. Virginia?

    Oh no. Now I can't remember which courtroom released which decision on what issue-related date…help.

  • 34. peterplumber  |  February 1, 2012 at 3:03 pm

    FREE THE TAPES!!!

  • 35. thark  |  February 1, 2012 at 3:51 pm

    There is nothing in the tapes that isn't already public knowledge, repeated verbatim in various venues with great fanfare and media attention.

    With marriage recognition laws, going to the ballot at the same time other antigay marriage "laws" are being entertained by desperate Antigays chumming cynically for votes -on other unrelated issues- from their most base of their bigoted base.

    Laws for and against, as a public election debate…?

    AND as an added media bonus in honor of future Federal judges who will have no choice but to strike these bizarre unconstitutional "laws" on the value of their "content", curbing the latest GOp craze of recalling judges…FOR PROPERLY DOING THEIR JOB !?!?!??!?!

    Don't be so sure these tapes WON'T get released.

    (The solid reputation relied upon by the American Judiciary branch as a check and balance is only enhanced by public access to what actually killed a state ban on marriage equality…0

    DURING THE 2012 ELECTION WHERE THE COLLAPSE OF FLOP 8 WILL SEE TO IT THAT A FULL 1/4 OF ALL AMERICANS, WILL BE CALLING A MARRIAGE EQUALITY STATE *HOME*…

  • 36. thark  |  February 1, 2012 at 3:56 pm

    And KKKris KKKristies token gay judge appointment came out to say he WOULD HAVE RECUSED HIMSELF IN A MARRIAGE CASE, as if to reopen a decided issue regarding Walker not feeling any person bias in favor of str8 marriage like, say Scalia, who would equally be required to recuse itself in any federal marriage case

  • 37. Sammy  |  February 1, 2012 at 4:50 pm

    In the case of the New Jersey judge I think it is different because he has openly advocated and lobbied politicians to change the marriage laws. In that case it would appear he has already made up his mind on the law so he said as result he would recuse. But Walker has never said anything about marriage so there is no reason to think he would be biased.

  • 38. Bob Barnes  |  February 1, 2012 at 5:12 pm

    And, this is pure politics. The promise of recusal worked for Kagan,it just helps to move the process long.

  • 39. Kathleen  |  February 1, 2012 at 5:32 pm

    For anyone not on the email list, this just in from the District Court:

    "To Members of the Media and the Public:

    The Ninth Circuit has posted a notice on its website (http://www.ca9.uscourts.gov/datastore/general/2012/02/01/Perry_Notice.pdf) announcing the publication of an opinion regarding the public release of videotapes in the Perry case on February 2 at 10 am. This District Court is the custodian of the recordings. Should the Ninth Circuit authorize release of the recordings, this Court will make prompt arrangements to comply with the order. This Court will not, however, have the recording available immediately or within the current calendar week.

    Interested parties should not contact this Court with requests for the recordings or for information about plans for their release. Instead, the Court asks interested parties either:

    (1) To check the notice on this topic on the court's homepage, http://www.cand.uscourt.gov regularly for updates, or
    (2) To sign up for the Perry case listserve"

    … and then instructions for sign up follow

  • 40. Lesbians Love Boies  |  February 1, 2012 at 5:35 pm

    I am assuming this is just a natural response and not a peek into the future ; )

  • 41. Kathleen  |  February 1, 2012 at 5:45 pm

    That's how I'm reading it.

  • 42. AnonyGrl  |  February 2, 2012 at 7:10 am

    But I hope it is making Cooper sweat, never the less. πŸ™‚

  • 43. elliom  |  February 2, 2012 at 9:15 am

    Assuming that 9CCA decides not to release the tapes (or, for that matter, even if they do release), what're the odds of this going to SCOTUS and bein' overturned (in either direction)? Just want to get a feel about how everyone thinks SCOTUS would handle this.

  • 44. Bob  |  February 1, 2012 at 8:37 pm

    Finally!!!!! we'll have an answer,,, tomorrow,,, regarding the court recordings, and the information contained therein,,,, I've said this before and I'll say it again,,,, this court case contains the most complete record, to date historically, regarding the religious rights attempt to defend it's position,,, against equality,,, no other country in the world has had to confront religion in an open court like this,,,,, those recordings reveal the sum of organized religions attempts at demonizing a segment of society,, at this particular point in time,,,,, and at some time in the future the religious right will look back on this and apologize, for the stance they took,,,,, these recordings are recieving due honor and attention,,, gaurd them carefully,,,,, (this ruling is only about public release!!! they won't be destroyed???)

  • 45. Str8Grandmother  |  February 2, 2012 at 3:46 am

    It is tomorrow πŸ™‚

  • 46. Darrell  |  February 2, 2012 at 8:36 am

    The Ninth Circuit has posted a notice (www.ca9.uscourts.gov . . .) on its website announcing the publication of an opinion regarding the public release of videotapes in the Perry case on February 2 at 10 am. This District Court is the custodian of the recordings. Should the Ninth Circuit authorize release of the recordings, this Court will make prompt arrangements to comply with the order. This Court will not, however, have the recording available immediately or within the current calendar week…………ummmmmmmmmmmmm, does this sound like they may actually rule that they should be released??? what does everyone else think???

  • 47. Darrell  |  February 2, 2012 at 8:39 am

    The Ninth Circuit has posted a notice (www.ca9.uscourts.gov . . .) on its website announcing the publication of an opinion regarding the public release of videotapes in the Perry case on February 2 at 10 am. This District Court is the custodian of the recordings. Should the Ninth Circuit authorize release of the recordings, this Court will make prompt arrangements to comply with the order. This Court will not, however, have the recording available immediately or within the current calendar week…………ummmmmmmmmmmmm, does this sound like they may actually rule that they should be released??? what does everyone else think???

  • 48. Str8Grandmother  |  February 2, 2012 at 9:21 am

    dunno? I have finally created a clock on my computer so I can see what time it is in San Fransisco, it's not 10am yet.

  • 49. Str8Grandmother  |  February 2, 2012 at 9:55 am

    AFER Tweet Will NOT unseal the tape

  • 50. Str8Grandmother  |  February 2, 2012 at 10:02 am

    Link to ruling http://www.afer.org/wp-content/uploads/2012/02/20

  • 51. steven  |  February 2, 2012 at 10:05 am

    Not surprised at all… and the main decision will come by end of Feb…JMO

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