Prop. 8 video dispute goes to Judge Walker's replacement 

A dispute over a video of last year's trial on the constitutionality of Proposition 8 was sent by a federal appeals court in San Francisco today to the new trial judge assigned to the case.

The 9th U.S. Circuit Court of Appeals ordered U.S. District Judge James Ware to consider competing bids by Proposition 8 sponsors to keep the video under wraps and by the measure's opponents to unseal it.

A three-judge panel of the appeals court said the trial judge "has the power to grant the parties all the relief they seek, should relief be warranted" on either side.

Ware was assigned to the case after the original trial judge, U.S. District Judge Vaughn Walker of San Francisco, retired in February and returned to private practice.

Walker held a non-jury trial in January on a civil rights lawsuit in which two couples challenged Proposition 8, the state's voter-approved ban on same-sex marriage.

In August, he struck down the measure, saying that it violated the U.S. Constitution's guarantees of equal treatment and due process.

The sponsors of the 2008 initiative and their committee, Protect Marriage, have appealed that ruling to the 9th Circuit.

Separately, the sponsors earlier this month asked the appeals court to order the videotape of the trial sealed and to require Walker and all parties in the case to return their copies to the court.

Lawyers for the plaintiff couples, the city of San Francisco and a coalition responded by asking to have the tape made public.

In today's order, a three-judge appeals panel said that while Walker's ruling on Proposition 8 is now before the circuit court, the trial court still has jurisdiction over ancillary matters, or side issues, such as the videotape dispute.

The video was originally intended for a pilot project in which the trial was to be broadcast on closed-circuit television in five other courthouses in four states and then released on a government channel on YouTube.

But the U.S. Supreme Court, by a 5-4 vote, blocked the plan, saying that there had not been adequate time for public comment on a pilot project.

Walker then withdrew the plan but allowed the videotaping to continue and said he might use it in preparing his eventual ruling.

In February, Walker used a three-minute excerpt of the tape in a speech at an Arizona conference on cameras in the courtroom. He later said the tape was given to him with his judicial papers.

The Proposition 8 sponsors contend Walker violated an order he issued during the trial, while the plaintiff couples and media organizations argue it should be unsealed because it is a "judicial record of the utmost public importance."

While the full tape has not been made public, the written transcript of the trial is publicly available.

There was no indication today as to whether or when Ware might hold a hearing on the videotape dispute.

In another development today, Ware scheduled a June 13 hearing on another motion in which the Proposition 8 sponsors are seeking to have Walker's decision nullified on the ground that he should have disqualified himself from hearing the case.

The initiative proponents alleged that Walker, who recently disclosed he is in a long-term same-sex relationship, had a conflict of interest because he may have wanted to marry his partner.

Walker's "impartiality might reasonably have been questioned from the outset," the sponsors' attorneys wrote.

Lawyers for the plaintiff couples and the city of San Francisco say they will file briefs with Ware arguing that the motion is frivolous and baseless.

Attorney Theodore Boutrous said today, "This is a ludicrous, desperate and patently offensive motion.

"The motion is a publicity stunt meant to distract from the fact that proponents simply cannot defend Proposition 8 on the merits," Boutrous said.

Carla Hass, a spokeswoman for Protect Marriage, said the group had no comment today on the two disputes now before Ware.

"There's really nothing to say until there's a decision on these two issues," she said.

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