Ruling about an hour ago, the US Supreme Court offered beleaguered Prop 8 supporters a lifeline by indefinitely staying Judge Walker’s and the 9th Circuit’s decision to allow cameras to film the Prop 8 trial:
In an unsigned opinion Wednesday, the court criticized Walker for attempting to change the rules “at the eleventh hour to treat this case differently than other trials.”
While the court set no time limit in its ruling, any further proceedings at high court likely would come after the trial was over….
In a dissent written by Breyer, they said the high court should have stayed out of the issue.
Breyer said “the public interest weighs in favor of providing access to the courts.”
Breyer’s dissent also made mention of the enormous amount of public comment asking for the trial to be televised, including the 138,242 signatures on a Courage Campaign and CREDO petition that we delivered to Judge Walker last Friday:
Then, on December 31, the Court revised its public notice to ask for comments directly. By January 8, 2010, the Court had received 138,574 comments, all but 32 of which favored transmitting the proceedings.
There was also sufficient “opportunity for comment.” The parties, the intervenors, other judges, the public-all had an opportunity to comment. The parties were specifically invited by Chief Judge Walker to comment on the possibility of broadcast as early as September. And the entire public was invited by the District Court to submit comments after the rule change was announced, right up to the eve of trial. As I said, the court received 138,574 comments during that time. How much more “opportunity for comment” does the Court believe necessary, particularly when the statutes themselves authorize the local court to put a new rule into effect “without” receiving any “comments” before doing so when that local “court determines that there is an immediate need” to do so (and to receive comments later)? And more importantly, what is the legal source of the Court’s demand for additional comment time in respect to a rule change to conform to Judicial Council policy?
Of course, this isn’t about the rules of the federal courts, but about the desire of Prop 8 defenders to keep the trial hidden from public view as much as possible, in order to prevent the public from knowing just how crazy and insane their position is. Just today the court broadcast an explosive video from the deposition of William Tam, one of the official proponents of Prop 8, who said things like:
They lose no time in pushing the gay agenda — after legalizing same-sex marriage, they want to legalize prostitution. What will be next? On their agenda list is: legalize having sex with children…
We hope to convince Asian-Americans that gay marriage will encourage more children to experiment with the gay lifestyle and that the lifestyle comes with all kinds of disease.
No wonder they want this stuff hidden from the public. The TV messaging from the Prop 8 backers, crafted by Schubert/Flint and used in Maine last fall to roll back marriage equality there, is very different than this. The campaign messaging involves vague notions of “protecting children” that appeals to anti-gay sentiment by blowing a dogwhistle instead of using a blunt and obvious statement.
In the absence of video coverage, liveblogging becomes all the more important for public access to this trial. The Courage Campaign Institute will continue to operate our successful liveblog, the Prop 8 Trial Tracker, which has received over 250,000 visits since we launched on Monday. Paul Hogarth of Beyond Chron is guestblogging for us today. Other liveblogs include Firedoglake.
Note: I am the Public Policy Director for the Courage Campaign
To put this absurd ruling in context, let me explain a little about Local Rules.
California’s Federal Courts (which are in the Ninth Circuit) are split into four Districts. Each District makes its own rules, called Local Rules. As long as there’s no federal law or Ninth Circuit Rule contrary, the District Court pretty much can make any Local Rule it wants. The Local Rules deal with minutia such as font sizes and line numbering, and more important matters such as how much notice you must give before filing a motion. Every District does things differently, and the Local Rules are simply the “guidebook” to let attorneys know how a particular District likes it.
Before changing Local Rules, the Court must give notice and allow for comment. This is designed to prevent any undue surprise. For example, if I had a hearing scheduled today, it would be nice to know if the District decided to be closed on Wednesdays and maybe I’d want to write and tell them I think that’s bunk. But in the end, the District gets to decide its own Local Rules, regardless of what the public had to say.
Here, we’re dealing with a Local Rule in the Northern District that historically prohibited broadcasting a trial outside the courthouse. The Ninth Circuit’s Judicial Council voted to start a pilot program that would allow broadcasting of certain trials.*** Robert’s post details the extent to which the District gave the public notice of its intent to exempt certain cases from the prohibition, and the overwhelming public comment in favor of the change – 138,000 to 22 (thank you, Courage Campaign!). But even if the numbers were switched, the District Court still had the unfettered right to change its own Local Rules.
So what we’re dealing with here are housekeeping rules that the District Court has unfettered right to make and change. The District Court complied with its statutory obligation to give notice of the change, and the public comment was overwhelmingly in support of it. A pretty easy case, really. Too bad the majority of the Supreme Court got it so wrong. My only solace: Sotomayor was on the right side; she dissented along with Stevens, Ginsburg, and Breyer.
(*** Incidentally, trial courts in the Second Circuit, which includes New York, have had a similar trial broadcast program in place since 2007. It has never been challenged.)
Undying gratitude to Teddy, Marcy, and soon to be Dave at Firedoglake and to Rick and Paul at Courage Campaign who have been tirelessly liveblogging the trial. Without you, justice would be blind. When your tapping fingers heal, I’m buying you all drinks to celebrate the victory.