Perry v. Brown

FILED
FOR PUBLICATION FEB 02 2012

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

KRISTIN M. PERRY; SANDRA B. No. 11-17255
STIER; PAUL T. KATAMI; JEFFREY J.
ZARRILLO, D.C. No. 3:09-cv-02292-JW

Plaintiffs - Appellees,
OPINION
CITY AND COUNTY OF SAN
FRANCISCO,

Intervenor-Plaintiff -
Appellee,

MEDIA COALITION,

Intervenor,

v.

EDMUND G. BROWN, Jr., in his official
capacity as Governor of California;
KAMALA D. HARRIS, in her official
capacity as Attorney General of California;
MARK B. HORTON, in his official
capacity as Director of the California
Department of Public Health & State
Registrar of Vital Statistics; LINETTE
SCOTT, in her official capacity as Deputy
Director of Health Information & Strategic
Planning for the California Department of
Public Health; PATRICK O’CONNELL,
in his official capacity as Clerk-Recorder
for the County of Alameda; DEAN C.
LOGAN, in his official capacity as
Registrar-Recorder/County Clerk for the
County of Los Angeles,

Defendants,

and

DENNIS HOLLINGSWORTH; GAIL J.
KNIGHT; MARTIN F. GUTIERREZ;
HAK-SHING WILLIAM TAM; MARK
A. JANSSON;
PROTECTMARRIAGE.COM - YES ON
8, A PROJECT OF CALIFORNIA
RENEWAL, as official proponents of
Proposition 8,

Intervenor-Defendants -
Appellants.

Appeal from the United States District Court
for the Northern District of California
James Ware, Chief District Judge, Presiding

Argued and Submitted December 8, 2011
San Francisco, California

Before: REINHARDT, HAWKINS, and N.R. SMITH, Circuit Judges.

Opinion by Judge REINHARDT:

In this latest round of litigation concerning California’s adoption of an initiative

constitutional amendment to prohibit same-sex marriage, we must decide whether the

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district court abused its discretion by ordering the unsealing of the video recording of

the trial, which had purportedly been prepared by the trial judge for his in-chambers

use only and was later placed in the record and sealed by him. The order, issued by

his successor following his retirement, would permit the broadcast of the recording

for all to view.

It is important to explain at the outset what our resolution of this case is not

about. First, we do not resolve any of the policy questions with which courts are now

struggling about how to reconcile the traditional concept of “openness” in judicial

proceedings with the development of technology that has given the term a new

meaning. The Judicial Conference of the United States and Circuit Judicial Councils

have been considering this issue for some time, and we have neither the need nor the

desire to offer an additional opinion here. While we agree with Justice Holmes “that

the trial of causes should take place under the public eye, . . . because it is of the

highest moment that those who administer justice should always act under the sense

of public responsibility, and that every citizen should be able to satisfy himself with

his own eyes as to the mode in which a public duty is performed,” Cowley v. Pulsifer,

137 Mass. 392, 394 (1884), the trial in this case was held “under the public eye” in the

traditional sense of the phrase. Whether or how courts should meet the spirit as well

as the letter of Justice Holmes’s admonition, for example by authorizing the broadcast

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of trials in particular circumstances or as a general matter, will be determined

ultimately by the Judiciary as an institution or by mandate from Congress. The

narrower consideration that controls our decision here is whether, given the unique

circumstances surrounding the creation and sealing of the recording of the trial in this

case, the public is entitled to view that recording some two years after the trial.

Second, our ruling has nothing to do with the freedom of the press to publish,

describe, or comment on any information to which it obtains access. Rather, the

question here is whether courts are required (or even free) to give to the media

information that is not ordinarily available—and specifically whether a recording

purportedly made for the sole purpose of aiding the trial judge in the preparation of

his opinion, and then placed in the record and sealed, may shortly thereafter be made

public by the court.

We resolve the narrow question before us on a narrow basis when we conclude

that the district court abused its discretion by ordering the unsealing of the recording

of the trial notwithstanding the trial judge’s commitment to the parties that the

recording would not be publicly broadcast. The trial judge on several occasions

unequivocally promised that the recording of the trial would be used only in chambers

and not publicly broadcast. He made these commitments because the Supreme Court

had intervened in this very case in a manner that required him to do so, Hollingsworth

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v. Perry, 130 S. Ct. 705 (2010) (per curiam). Thus, his commitments were not merely

broad assurances about the privacy of judicial records in the case; they could not have

been more explicitly directed toward the particular recording at issue. In finding that

the trial judge had not made a commitment to deny the public access to the recording,

the district court abused its discretion: its finding was “without ‘support in inferences

that may be drawn from the facts in the record.’” United States v. Hinkson, 585 F.3d

1247, 1262 (9th Cir. 2009) (en banc). The district court further abused its discretion

by holding that the determinations made by the trial judge regarding the placement of

the recording under seal did not bind a different judge presented with a motion to

unseal—a conclusion that we regard as an “implausible” and “illogical” application

of the law. Id.

Each of these abuses of discretion manifests the same basic error: the district

court failed to appreciate the nature of the statements that the trial judge had made to

the litigants, the specific factual and legal context in which he made them, and the

consequences of his having done so. The integrity of our judicial system depends in

no small part on the ability of litigants and members of the public to rely on a judge’s

word. The record compels the finding that the trial judge’s representations to the

parties were solemn commitments. Upon this record, there is only one plausible

application of the standard for sealing a record that is, arguendo, subject to the

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common-law right of public access: the interest in preserving the sanctity of the

judicial process is a compelling reason to override the presumption in favor of the

recording’s release. We therefore reverse the order of the district court as an abuse of

its discretion and remand with instructions to maintain the recording under seal.

I

In the weeks prior to the January 2010 trial in this case, the trial judge, former

Chief Judge Vaughn R. Walker of the U.S. District Court for the Northern District of

California, expressed a desire to satisfy the public’s interest in the case by

broadcasting a video feed of the proceedings to various federal courthouses and

online. That may well have been a reasonable desire, but the decision was not entirely

his to make. The Ninth Circuit Judicial Council had established a pilot program in

mid-December 2009 to allow the broadcast of certain proceedings in district courts

within the circuit, and the Chief Judge of the Circuit had approved this case’s

inclusion in that pilot program. Several days later, the Northern District of California

amended its local rule governing cameras in the courtroom to allow for participation

in the program of cases brought in that district. Then, on the morning of the first day

of trial, the Supreme Court—at the request of Appellants, the official proponents of

Proposition 8 (“Proponents”)—issued a temporary stay of the broadcast.

Hollingsworth v. Perry, 130 S. Ct. 1132 (2010) (mem.). Two days later, the Court

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entered a further stay pending the filing of a petition for mandamus or certiorari,

holding that “the courts below did not follow the appropriate procedures set forth in

federal law before changing their rules to allow such broadcasting.” Hollingsworth v.

Perry, 130 S. Ct. 705, 706 (2010) (per curiam). The effect of the Court’s intervention

was that for the duration of the trial in this matter, the effective version of the district

court’s Local Rule 77-3 prohibited the recording of the trial for future broadcast.1

The district court recorded the first two days of the trial on the basis that the

Supreme Court might decide to lift the temporary stay, but after the Supreme Court’s

stay became permanent, Proponents asked that the recording be stopped. It was in this

context that Chief Judge Walker responded as follows:

The local rule permits the recording for purposes . . . of use in chambers
. . . . And I think it would be quite helpful to me in preparing the findings
of fact to have that recording. So that’s the purpose for which the
recording is going to be made going forward. But it’s not going to be for
purposes of public broadcasting or televising.

1
This rule—the one in place prior to the attempted amendment—read in
relevant part as follows:

Unless allowed by a Judge or a Magistrate Judge with respect to his or
her own chambers or assigned courtroom for ceremonial purposes, the
taking of photographs, public broadcasting or televising, or recording for
those purposes in the courtroom or its environs, in connection with any
judicial proceeding, is prohibited. Electronic transmittal of courtroom
proceedings and presentation of evidence within the confines of the
courthouse is permitted, if authorized by the Judge or Magistrate Judge.

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Proponents dropped their objection at that point.2

In May 2010, shortly before closing arguments, Chief Judge Walker offered to

make copies of the video recording available to any parties to the proceeding who

wished to use excerpts during their arguments, with the proviso that the copies would

be maintained under a strict protective order.3 Plaintiffs and the City and County of

San Francisco obtained copies. After closing arguments, Proponents moved to require

the return of the copies.

Chief Judge Walker’s opinion, issued on August 4, 2010, resolved any

remaining question regarding the status of the recordings:

2
They did, however, file a petition for a writ of certiorari in April 2010, seeking
to vacate this court’s denial of their petition for a writ of mandamus to prevent Chief
Judge Walker from broadcasting the trial. Petition for a Writ of Certiorari,
Hollingsworth v. U.S. Dist. Court for Northern Dist. of California, 131 S. Ct. 372
(2010) (No. 09-1238), 2010 WL 1513093. The Supreme Court ultimately granted
certiorari and remanded with instructions to dismiss the petition for a writ of
mandamus as moot. Hollingsworth v. U.S. Dist. Court for Northern Dist. of
California, 131 S. Ct. 372 (2010) (mem.).
3
Paragraph 7.3 of the protective order provides in relevant part that parties may
disclose covered materials “only to: (a) . . . Counsel of record . . . , as well as
employees of said Counsel to whom it is reasonably necessary to disclose the
information for this litigation and who have signed an ‘Agreement to Be Bound by
Protective Order’ . . . ; (b) Experts . . . (1) to whom disclosure is reasonably necessary
for this litigation [and] (2) who have signed the ‘Agreement to Be Bound by
Protective Order’ . . . ; (c) the Court and its personnel; [and] (d) court reporters, their
staffs, and professional vendors to whom disclosure is reasonably necessary for this
litigation and who have signed the ‘Agreement to Be Bound by Protective Order’
. . . .”

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 The trial proceedings were recorded and used by the court in preparing
the findings of fact and conclusions of law; the clerk is now DIRECTED
to file the trial recording under seal as part of the record. The parties may
retain their copies of the trial recording pursuant to the terms of the
protective order herein. Proponents’ motion to order the copies’ return
is accordingly DENIED.

Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 929 (N.D. Cal. 2010) (document

citations omitted). In their appeal from the judgment, Proponents challenged neither

the denial of their motion to compel the return of the copies nor the district court’s

entry of the recording in the record.

In the same opinion, Chief Judge Walker cited the elimination of the potential

for public broadcast of the trial as a negative factor in weighing the evidence offered

by Proponents. Observing that “Proponents elected not to call the majority of their

designated witnesses to testify at trial,” Chief Judge Walker quoted Proponents’

counsel’s explanation that the witnesses had been “‘extremely concerned about their

personal safety, and did not want to appear with any recording of any sort,

whatsoever.’” Id. at 944. He then rejected this explanation, on the basis that

“proponents failed to make any effort to call their witnesses after the potential for

public broadcast in the case had been eliminated.” Id. (emphasis added).

Less than a year after issuing his opinion, Chief Judge Walker retired from the

bench. Both before and after his retirement, he displayed excerpts from the trial

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recording during public appearances. As a result, Proponents asked us to order the

return of all copies of the trial recording. Plaintiffs filed a cross-motion to unseal the

recording. We transferred these motions and the supporting papers to the district court.

After Chief Judge Ware, who replaced Chief Judge Walker as the presiding judge,

ordered all parties in possession of copies of the recording to show cause why those

copies should not be returned, former Chief Judge Walker lodged his copy with the

court, and Chief Judge Ware discharged the show-cause order as to him.

On June 14, 2011, Chief Judge Ware denied Proponents’ motion for the return

of the trial recording, finding that no violation of the protective order had occurred.4

He also indicated that he would return the recording to former Chief Judge Walker.

In response to Chief Judge Ware’s invitation, Proponents filed a brief asking that the

recording not be returned to former Chief Judge Walker or that it be held by him

under the terms of the protective order.

On September 19, 2011, Chief Judge Ware granted Plaintiffs’ cross-motion to

unseal the recording. Perry v. Schwarzenegger, No. C 09-02292 JW, 2011 WL

4527349 (N.D. Cal. Sept. 19, 2011). He concluded that the common-law right of

public access applied to the recording, that neither the Supreme Court’s decision in

4
We are not asked to review the finding that no violation of the protective order
had occurred.

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Hollingsworth nor the local rule governing audiovisual recordings barred its release,

and that Proponents had made no showing sufficient to justify its sealing in the face

of the common-law right. Id. at *3-6. He also directed that a copy of the recording be

returned to former Chief Judge Walker. Id. at *6.

This appeal followed. We granted Proponents’ motion for a stay pending appeal

and allowed the Media Coalition to intervene.

II

A

Two questions are presented: first, whether the trial recording is subject to the

common-law presumption of public access; and second, whether there is a sufficiently

compelling reason to override any such presumption here. In reversing the district

court’s decision to unseal the recording, we assume, for purposes of this case only,

that the answer to the first question is yes and decide only the second question.

We review for abuse of discretion a “decision to unseal the judicial record.”

Kamakana v. City & County of Honolulu, 447 F.3d 1172, 1178 n.3 (9th Cir. 2006).

Under the abuse-of-discretion standard, if “the trial court identified the correct legal

rule to apply to the relief requested,” we must “determine whether the trial court’s

application of the correct legal standard was (1) ‘illogical,’ (2) ‘implausible,’ or (3)

without ‘support in inferences that may be drawn from the facts in the record.’”

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Hinkson, 585 F.3d at 1262. If it was, then we are “able to have a ‘definite and firm

conviction’ that the district court reached a conclusion that was a ‘mistake’ or was not

among its ‘permissible’ options, and thus that it abused its discretion.” Id. In addition,

an error of law constitutes an abuse of discretion. Id. at 1261-62. Thus, we also reverse

if, in applying the proper legal standard, the trial court overlooks or misconstrues any

binding precedent. See Yokoyama v. Midland Nat. Life Ins. Co., 594 F.3d 1087, 1092-

93 (9th Cir. 2010).

“Historically, courts have recognized a ‘general right to inspect and copy public

records and documents, including judicial records and documents.’” Kamakana, 447

F.3d at 1178 (quoting Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 &

n.7 (1978)). Proponents present two arguments that this common-law right of public

access does not apply to the recording at issue here. The first is that the video

recording of a trial is not one of the types of records to which the common-law right

attaches. The second is that Northern District of California Local Rule 77-3, under the

terms of which the trial was recorded in the first place, abrogates the common law. As

noted above, we need not and do not decide whether Proponents’ arguments are in any

respect meritorious: we simply assume, without deciding, for purposes of this case

only, that the common-law presumption of public access applies to the recording at

issue here and that it is not abrogated by the local rule in question.

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 B

“The common law right of access . . . is not absolute and can be overridden

given sufficiently compelling reasons for doing so.” Foltz v. State Farm Mut. Auto.

Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003). We conclude that there is a compelling

reason in this case for overriding the common-law right and that, in failing to identify

that reason on the basis of the record before it, the district court abused its discretion.

The reason is that Proponents reasonably relied on Chief Judge Walker’s specific

assurances—compelled by the Supreme Court’s just-issued opinion—that the

recording would not be broadcast to the public, at least in the foreseeable future.5

While Chief Judge Ware found that no such assurances had been given and concluded

that, in any event, he was not bound by promises made by his predecessor, 2011 WL

4527349, at *4, his finding was “without ‘support in inferences that may be drawn

from the facts in the record,’” and his conclusion—which contravenes the very notion

of judicial integrity—was an “implausible” and “illogical” application of the

5
Northern District of California Local Rule 79-5(f) provides that “[a]ny
document filed under seal in a civil case shall be open to public inspection without
further action by the Court 10 years from the date the case is closed,” with the proviso
that “a party that submitted documents that the Court placed under seal in a case may,
upon showing good cause at the conclusion of the case, seek an order that would
continue the seal until a specific date beyond the 10 years provided by this rule.”

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“compelling reason” standard to the facts at issue here. Hinkson, 585 F.3d at 1262.

Chief Judge Ware thus abused his discretion. Id.

Interpreted in their full context, at least two of Chief Judge Walker’s statements

amount to unequivocal assurances that the video recording at issue would not be

accessible to the public. No other inference can plausibly be drawn from the record.

First, following the Supreme Court’s issuance of a stay against the public broadcast

of the trial, Chief Judge Walker stated in open court that he was going to continue

“taking the recording for purposes of use in chambers,” but that the recording was

“not going to be for purposes of public broadcasting or televising.” It would be

unreasonable to expect Proponents, upon reading the Supreme Court’s opinion and

hearing Chief Judge Walker’s statement in response, to foresee that a recording made

for such limited purposes might nonetheless be released for viewing by the public,

either during or after the trial. Had Chief Judge Walker not made the statement he did,

Proponents would very likely have sought an order directing him to stop recording

forthwith, which, given the prior temporary and further stay they had just obtained

from the Supreme Court, they might well have secured.

Second, Chief Judge Walker stated in his opinion—citing the Supreme Court’s

temporary and permanent stays—that “the potential for public broadcast in the case

had been eliminated.” Perry, 704 F. Supp. 2d at 944 (emphasis added). He made that

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statement in the context of criticizing Proponents for not having presented additional

witnesses—witnesses who had, according to Proponents, been reluctant “‘to appear

with any recording of any sort.’” Id. Without that unequivocal statement, Proponents

again might well have taken action to ensure that the recording would not be made

available for public viewing.

Chief Judge Ware found that these statements did not constitute a promise by

Chief Judge Walker that the recording would not be released to the public. The record

compels the opposite inference. Chief Judge Ware based his finding on the fact that

Chief Judge Walker had, “without objection, made copies of the digital recording

available to the parties for use during closing arguments.” 2011 WL 4527349, at *4.

Allowing this limited and unchallenged in-courtroom use of the recording, however,

was not contrary to Chief Judge Walker’s prior declarations: the closing arguments

were not broadcast to the public, and the display of footage during closing arguments

served the same purpose as the recording’s in-chambers use—helping the judge to

reach his decision and to prepare his opinion. We therefore reject Chief Judge Ware’s

finding that Chief Judge Walker made no commitment to the parties to limit the use

of the recording to helping him with his own deliberations, and, more important, not

to allow the recording to be used for “public broadcasting or televising.” The record

clearly shows that Chief Judge Walker did make a commitment not to permit the

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public broadcast of the recording. Chief Judge Ware’s finding to the contrary was an

abuse of his discretion because it lacked “‘support in inferences that may be drawn

from the facts in the record.’” Hinkson, 585 F.3d at 1262.

Chief Judge Ware further reasoned that Proponents had “offer[ed] no authority

in support of the proposition that the conditions under which one judge places a

document under seal are binding on a different judge, if a motion is made to that

different judge to examine whether sealing is justified,” and that he was not “aware

of any authority standing for that proposition.” 2011 WL 4527349, at *4. Whether or

not Chief Judge Ware is correct as to the lack of precedent concerning the general

question whether a discretionary decision made by one judge binds a subsequent judge

in the same case, that general question is not the one we face here. As a case

progresses and circumstances change, a court may sometimes properly revise a prior

exercise of its discretion, whether the new order is made by the same judge or another.

The relevant question here, however, is whether a judge must in exercising his

discretion respect a commitment that his predecessor has made and upon which a party

has reasonably relied.

Chief Judge Ware’s reasoning is somewhat ambiguous. To the extent that he

concluded that the restriction that Chief Judge Walker had imposed on public access

to the recording was not a solemn commitment worthy of reliance but merely a

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transient exercise of discretion subject to revision, his conclusion was inconsistent

with the record: he failed to recognize the legal consequence of Chief Judge Walker’s

statements given the factual and legal context in which they occurred. Chief Judge

Walker did not merely create the recording and place it in the record under conditions

that he and the parties understood to be subject to later modification; rather, he

promised the litigants that the conditions under which the recording was maintained

would not change—that there was no possibility that the recording would be broadcast

to the public in the future. No other inference could plausibly be drawn from the

record.

The nature of Chief Judge Walker’s commitments and the reasonableness of the

Proponents’ reliance on those commitments distinguishes this case from Foltz, in

which we held that the district court had abused its discretion in denying a motion to

unseal judicial records. In that case, State Farm asserted its reliance “on the

confidentiality provisions of [a] protective order” as a “compelling reason” to keep the

records sealed. 331 F.3d at 1137-38. State Farm could not reasonably have relied, we

explained, on a “blanket protective order” that it had procured without making “a

particularized showing of good cause” to seal “any individual document.” Id. at 1138.

We reached that conclusion because a blanket protective order often covers materials

that would not qualify for protection if subjected to an individualized analysis, and

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because we had previously warned that “[r]eliance will be less with a blanket order,

because it is by nature overinclusive.” Beckman Industries, Inc. v. International Ins.

Co., 966 F.2d 470, 476 (9th Cir. 1992). The sealing order at issue here, by contrast,

was directed precisely toward a single judicial record. There can be no question that

Proponents reasonably relied on Chief Judge Walker’s explicit assurances as to this

particular record, in contrast to the overinclusive protective order in Foltz.

Moreover, whereas the order in Foltz was imposed by joint request of the

parties, 331 F.3d at 1128, Chief Judge Walker’s assurances were compelled by the

Supreme Court’s ruling in this very case. After the Supreme Court held that his order

to broadcast the trial had “complied neither with existing rules or policies nor the

required procedures for amending them,” Hollingsworth, 130 S. Ct. at 713, Chief

Judge Walker could not lawfully have continued to record the trial without assuring

the parties that the recording would be used only for a permissible purpose. Chief

Judge Walker’s statements concerning the use of the recording were not only solemn

commitments on their own terms, therefore; they were commitments dictated by the

actions of a higher court, and thus even worthier of the parties’ reliance.

To the extent that Chief Judge Ware did believe that his predecessor’s decisions

were solemn commitments to the parties, but concluded nonetheless that they did not

bind him, his abuse of discretion was even more serious: he failed to appreciate the

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importance of preserving the integrity of the judicial system. To revoke Chief Judge

Walker’s assurances after Proponents had reasonably relied on them would cause

serious damage to the integrity of the judicial process—damage that under any

plausible, logical application of the “compelling reason” standard would have caused

Chief Judge Ware to keep the recording sealed. Indeed, we explained in Foltz that

“[t]he central concern in determining whether access should be granted to documents

sealed under a protective order is whether that order was relied upon in the decision

to produce documents.” 331 F.3d at 1137 (emphasis added); see Beckman, 966 F.2d

at 475. Chief Judge Ware’s failure to recognize the breach of reliance interests as a

grave threat to the integrity of the judicial system, and thus a “compelling reason” to

seal the recording notwithstanding the presumed existence of a common-law right for

the public to view it, constitutes an “implausible” and “illogical” application of the

“compelling reason” standard.

Had Chief Judge Ware properly understood Chief Judge Walker’s statements

as commitments to the parties, and had he recognized those commitments as binding

obligations and constraints on his own discretion, he could have arrived at only one

conclusion that is logical, plausible, and consistent with the record: to preserve the

integrity of the judicial system, the recording must remain under seal. Just as the

doctrine of stare decisis “contributes to the actual and perceived integrity of the

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judicial process” by “promot[ing] the evenhanded, predictable, and consistent

development of legal principles” and “foster[ing] reliance on judicial decisions,”

Payne v. Tennessee, 501 U.S. 808, 827 (1991), the explicit assurances that a judge

makes—no less than the decisions the judge issues—must be consistent and worthy

of reliance. Cf. Massachusetts v. Sheppard, 468 U.S. 981, 989-90 (1984) (“[W]e

refuse to rule that an officer is required to disbelieve a judge who has just advised him,

by word and by action, that the warrant he possesses authorizes him to conduct the

search he has requested.”).6 Litigants and the public must be able to trust the word of

a judge if our justice system is to function properly. “[A]s Chief Justice Hughes once

noted, ‘no man is as essential to his country’s well being as is the unstained integrity

of the courts.’” Gubiensio-Ortiz v. Kanahele, 857 F.2d 1245, 1264 (9th Cir. 1988),

vacated on other grounds, United States v. Chavez-Sanchez, 488 U.S. 1036 (1989).

Proponents were thus entitled to take Chief Judge Walker at his word when he

assured them that the trial recording would not be publicly broadcast or televised.

Because Proponents reasonably relied on Chief Judge Walker’s commitments in

6
There is one apparent exception. In Bowles v. Russell, 551 U.S. 205 (2007),
the Supreme Court held that where a judge was powerless to change a jurisdictional
deadline, his erroneous statement as to the applicable date could have no force or
effect. Chief Judge Walker was not similarly powerless to assure the parties that the
recording that he created—and the disposition of which was in his sole
control—would be kept from public broadcast.

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refraining from challenging his actions, the setting aside of those commitments would

compromise the integrity of the judicial process. The interest in preserving respect for

our system of justice is clearly a compelling reason for maintaining the seal on the

recording, notwithstanding any presumption that it should be released. Whatever

Chief Judge Ware’s rationale for holding that no “compelling reason” required him

to maintain the recording under seal—whether he failed to recognize that Chief Judge

Walker’s statements were solemn assurances to the parties, or whether he believed

that he could set those assurances aside because they were made by another

judge—we reject his conclusion that the circumstances under which Chief Judge

Walker created the recording and entered it in the record were irrelevant to his

successor’s decision whether to unseal it. The former rationale is wholly “without

‘support in inferences that may be drawn from the facts in the record,’” and the latter

is an “implausible” and “illogical” application of the “compelling reason” standard.

Hinkson, 585 F.3d at 1262. Chief Judge Ware therefore abused his discretion. Id.

III

Like the district court, we need not address an issue of first impression in the

circuit: whether the First Amendment right of public access to judicial records applies

to civil proceedings. Instead, we assume an affirmative answer to that question

without deciding—on this occasion—whether the First Amendment applies. We

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nonetheless conclude that the application of the First Amendment would not affect the

result that we reach.

In applying the First Amendment standard, we consider whether “(1) closure

serves a compelling interest; (2) there is a substantial probability that, in the absence

of closure, this compelling interest would be harmed; and (3) there are no alternatives

to closure that would adequately protect the compelling interest.” Oregonian Pub. Co.

v. U.S. Dist. Court for Dist. of Or., 920 F.2d 1462, 1466 (9th Cir. 1990). We conclude,

for the reasons we explained above, 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. In short,

the recording cannot be released without undermining the integrity of the judicial

system.

* * *

For the reasons discussed above, we reverse the order of the district court as an

abuse of its discretion and remand with instructions to maintain the trial recording

under seal.7

7
On remand, the district court shall not return to former Chief Judge Walker
the copy of the recording that he has lodged with the court.

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REVERSED.

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 COUNSEL LISTING

David Boies and Jeremy M. Goldman, Boies, Schiller & Flexner LLP, Armonk, NY;
Theodore B. Olson (argued), Matthew D. McGill, and Amir C. Tayrani, Gibson, Dunn
& Crutcher LLP, Washington, D.C.; Theodore J. Boutros, Jr., Christopher D.
Dusseault, Theane Evangelis Kapur, Enrique A. Monagas, and Joshua S. Lipshutz,
Gibson, Dunn & Crutcher LLP, Los Angeles, CA; for Plaintiffs-Appellees.

Dennis J. Herrera, City Attorney; Therese M. Stewart (argued), Chief Deputy City
Attorney; Christine Van Aken and Mollie M. Lee, Deputy City Attorneys; San
Francisco, CA; for Intervenor-Plaintiff-Appellee.

Thomas R. Burke (argued) and Rochelle L. Wilcox, Davis Wright Tremaine LLP, San
Francisco, CA; for Intervenor.

Andrew P. Pugno, Law Offices of Andrew P. Pugno, Folsom, CA; Charles J. Cooper,
David H. Thompson (argued), Howard C. Nielson, Jr., and Peter A. Patterson, Cooper
and Kirk, PLLC, Washington, D.C.; Brian W. Raum and James A. Campbell, Alliance
Defense Fund, Scottsdale, AZ; for Intervenor-Defendants-Appellants.

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