Dec 7 (Reuters) - The 9th Circuit Court of Appeals hears oral arguments on Thursday on whether to allow the dissemination of video recordings of a trial that found that Proposition 8, the California ballot initiative to outlaw same-sex marriage, violated the U.S. Constitution.

Opponents of same-sex marriage are appealing a lower court decision to release the recordings. Same-sex marriage advocates, along with a coalition of media companies, want the recordings to be released. California state officials have said they do not oppose release.

(Also on Thursday, the court will hear another question on appeal in the same case: opponents of same-sex marriage have appealed a decision to uphold the ruling that struck down Proposition 8, arguing that the judge who presided over the trial should have been disqualified because he is gay.)

Are court recordings normally available in the 9th Circuit? 

Traditionally, the 9th Circuit has prohibited filming in its district courts. But in December 2009 the 9th Circuit Judical Council permitted a pilot program that would allow cameras in its courts subject to consultation with the circuit's chief judge.

Later that month, the U.S. District Court for the Northern District of California amended its Local Rule 77-3, which had explicitly banned the broadcast of court proceedings. The amendment created an exception for proceedings that were part of a "pilot or other project authorized by the Judicial Council of the 9th Circuit."

How did this become an issue in the Proposition 8 case? 

Before the Proposition 8 trial started in January of 2010, Judge Vaughn Walker, the chief judge of the U.S. District Court for the Northern District of California, obtained approval from the 9th Circuit to stream the trial to selected federal courthouses in real time.

The opponents of same-sex marriage asked the U.S. Supreme Court for an emergency stay of the broadcast. In a per curium decision in Hollingsworth et al v. Perry et al, the Supreme Court granted the stay on the grounds that the process by which the district court had amended its rules to allow cameras in court "likely did not" comply with federal law. (Justice Breyer wrote a dissent, joined by Justices Stevens, Ginsburg and Sotomayor).

After the Supreme Court ruling, Walker withdrew the application for the Proposition 8 case to be part of the pilot program. However, he notified the parties that recording would continue "for use in chambers." Walker subsequently permitted the parties to use excerpts of the recording in their closing arguments. And he allowed them to retain a copy, subject to a protective order that imposed confidentiality -- even after the termination of proceedings -- unless the parties or a court decided otherwise. He also ordered that the recording be entered into the court record.

After the the trial, same-sex marriage advocates and a coalition of media outlets lodged a motion to have the recording unsealed. The district court approved the motion in September (by which time Judge Walker had retired), but the 9th Circuit granted a motion by Proposition 8 proponents to stay the decision pending appeal.

What was the legal basis on which the district court decided to unseal the recordings? 

The district court made its decision on the basis of "a common law right of public access to court records in civil proceedings." The court found that to overcome the "strong presumption" in favor of access to court records, those opposed to the unsealing would have to meet a "compelling reasons" standard, which the court concluded they had failed to do.

The court did not engage with the arguments that those in favor of unsealing had made in relation to the First Amendment of the U.S. Constitution, explaining that although other circuits have held there is a First Amendment right of access to court records in civil proceedings, "the 9th Circuit has declined to reach such a conclusion."

What have the written briefs to the 9th Circuit focused on? 

The appellants, the original proponents of Proposition 8, argued that the district court decision to unseal the recording violates Local Rule 77-3, "longstanding judicial policy", and the U.S. Supreme Court decision in Hollingsworth.

The same-sex marriage advocates and media groups who oppose the appeal responded that Local Rule 77-3 applies only to the creation of a recording for the purposes of broadcast, and not to subsequent decisions over what to do with the recording. They also argued that the judicial policy referred to by the appellants only applies to radio and television, not to recordings made by the court. And they argued that Hollingsworth is not applicable to the question of whether to unseal the recording because it dealt only with a narrow procedural issue related to the district court's amendment of Local Rule 77-3. Finally, they argued that the district court ruling is supported by both a common law right of the public to access court records and by the First Amendment.

In their reply, the appellants argued that any common law right of access to court records is narrower than what the same-sex marriage advocates and media groups suggest, and that in any case, a video of trial proceedings, as opposed to an official transcript or recordings that constitute evidence, is not the kind of record to which the common law right attaches. Moreover, they argue that any common law right of access would be trumped by Local Rule 77-3.

What happens next? 

This issue is part of a broader appeal on the merits of the district court's decision to strike down Proposition 8. The 9th Circuit has already heard oral arguments on the merits of the appeal, and after the hearings on Thursday it is likely to have all the information it needs to enter deliberations.

The case in the 9th Circuit Court of Appeals is Perry v. Brown, no. 11-17255.

For Perry et al: Theodore Olson and Theodore Boutrous of Gibson, Dunn & Crutcher; David Boies and Jeremy Goldman of Boies, Schiller & Flexner.

For proponents of Proposition 8: Charles Cooper, David Thompson, Howard Nielson, Nicole Moss and Peter Patterson of Cooper and Kirk; Andrew Pugno of the Law Offices of Andrew Pugno; Brian Raum and James Campbell of the Alliance Defense Fund.

(Reporting by Rebecca Hamilton in New York)

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