Kristin Perry v. Edmund Brown, Jr. ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KRISTIN M. PERRY; SANDRA B. 
STIER; PAUL T. KATAMI; JEFFREY J.
ZARRILLO,
Plaintiffs-Appellees,
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;

1229
1230 PERRY v. BROWN
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, No. 11-17255
and
 D.C. No.
3:09-cv-02292-JW
DENNIS HOLLINGSWORTH; GAIL J.
KNIGHT; MARTIN F. GUTIERREZ; OPINION
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
Filed February 2, 2012
Before: Stephen Reinhardt, Michael Daly Hawkins, and
N. Randy Smith, Circuit Judges.
Opinion by Judge Reinhardt
PERRY v. BROWN 1233
COUNSEL
David Boies and Jeremy M. Goldman, Boies, Schiller & Flex-
ner LLP, Armonk, New York; 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 & Crut-
cher LLP, Los Angeles, California, for the 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,
California, for the intervenor-plaintiff-appellee.
Thomas R. Burke (argued) and Rochelle L. Wilcox, Davis
Wright Tremaine LLP, San Francisco, California, for the
intervenor.
Andrew P. Pugno, Law Offices of Andrew P. Pugno, Folsom,
California; 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, Arizona, for
the intervenor-defendants-appellants.
1234 PERRY v. BROWN
OPINION
REINHARDT, Circuit Judge:
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 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 judi-
cial 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 consid-
ering 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. Pul-
sifer, 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 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 cre-
PERRY v. BROWN 1235
ation 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 notwith-
standing 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 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. Hink-
son, 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc). The dis-
trict court further abused its discretion by holding that the
determinations made by the trial judge regarding the place-
ment of the recording under seal did not bind a different judge
presented with a motion to unseal—a conclusion that we
1236 PERRY v. BROWN
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 liti-
gants and members of the public to rely on a judge’s word.
The record compels the finding that the trial judge’s represen-
tations 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 common-
law right of public access: the interest in preserving the sanc-
tity of the judicial process is a compelling reason to override
the presumption in favor of the recording’s release. We there-
fore 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 inclu-
sion in that pilot program. Several days later, the Northern
District of California amended its local rule governing cam-
eras in the courtroom to allow for participation in the program
of cases brought in that district. Then, on the morning of the
PERRY v. BROWN 1237
first day of trial, the Supreme Court—at the request of Appel-
lants, 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 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.” Hol-
lingsworth 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 tem-
porary stay, but after the Supreme Court’s stay became per-
manent, Proponents asked that the recording be stopped. It
was in this context that Chief Judge Walker responded as fol-
lows:
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 for-
ward. 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 tele-
vising, or recording for those purposes in the courtroom or its
environs, in connection with any judicial proceeding, is prohib-
ited. Electronic transmittal of courtroom proceedings and presen-
tation of evidence within the confines of the courthouse is
permitted, if authorized by the Judge or Magistrate Judge.
1238 PERRY v. BROWN
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 cop-
ies would be maintained under a strict protective order.3 Plain-
tiffs 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:
The trial proceedings were recorded and used by the
court in preparing the findings of fact and conclu-
sions of law; the clerk is now DIRECTED to file the
trial recording under seal as part of the record. The
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 manda-
mus 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 par-
ties may disclose covered materials “only to: (a) . . . Counsel of record
. . . , as well as employees of said Counsel to whom it is reasonably neces-
sary 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 Pro-
tective Order’ . . . .”
PERRY v. BROWN 1239
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 elimina-
tion of the potential for public broadcast of the trial as a nega-
tive 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 per-
sonal 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 recording dur-
ing 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.
1240 PERRY v. BROWN
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 indi-
cated 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 Plain-
tiffs’ cross-motion to unseal the recording. Perry v. Schwar-
zenegger, 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 Hollingsworth nor the local rule
governing audiovisual recordings barred its release, and that
Proponents had made no showing sufficient to justify its seal-
ing 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 record-
ing 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,
4
We are not asked to review the finding that no violation of the protec-
tive order had occurred.
PERRY v. BROWN 1241
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 “deter-
mine 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.’ ” 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. Mid-
land Nat. Life Ins. Co., 594 F.3d 1087, 1092-93 (9th Cir.
2010).
[1] “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 argu-
ments 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 meritori-
ous: we simply assume, without deciding, for purposes of this
case only, that the common-law presumption of public access
1242 PERRY v. BROWN
applies to the recording at issue here and that it is not abro-
gated by the local rule in question.
B
[2] “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 foresee-
able 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” appli-
cation of the “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
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.”
PERRY v. BROWN 1243
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 dur-
ing 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 elimi-
nated.” Perry, 704 F. Supp. 2d at 944 (emphasis added). He
made that 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.
[3] 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. Allow-
ing this limited and unchallenged in-courtroom use of the
recording, however, was not contrary to Chief Judge Walker’s
1244 PERRY v. BROWN
prior declarations: the closing arguments were not broadcast
to the public, and the display of footage during closing argu-
ments 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 commit-
ment not to permit the 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.
[4] 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 gen-
eral 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 dis-
cretion 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
PERRY v. BROWN 1245
a transient exercise of discretion subject to revision, his con-
clusion was inconsistent with the record: he failed to recog-
nize 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.
[5] The nature of Chief Judge Walker’s commitments and
the reasonableness of the Proponents’ reliance on those com-
mitments 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 because we had
previously warned that “[r]eliance will be less with a blanket
order, because it is by nature overinclusive.” Beckman Indus-
tries, 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.
[6] Moreover, whereas the order in Foltz was imposed by
joint request of the parties, 331 F.3d at 1128, Chief Judge
1246 PERRY v. BROWN
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 exist-
ing 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 con-
cerning the use of the recording were not only solemn com-
mitments on their own terms, therefore; they were
commitments dictated by the actions of a higher court, and
thus even worthier of the parties’ reliance.
[7] To the extent that Chief Judge Ware did believe that his
predecessor’s decisions were solemn commitments to the par-
ties, but concluded nonetheless that they did not bind him, his
abuse of discretion was even more serious: he failed to appre-
ciate the importance of preserving the integrity of the judicial
system. To revoke Chief Judge Walker’s assurances after Pro-
ponents 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 Beck-
man, 966 F.2d at 475. Chief Judge Ware’s failure to recognize
the breach of reliance interests as a grave threat to the integ-
rity 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
PERRY v. BROWN 1247
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 sys-
tem, the recording must remain under seal. Just as the doctrine
of stare decisis “contributes to the actual and perceived integ-
rity of the judicial process” by “promot[ing] the evenhanded,
predictable, and consistent development of legal principles”
and “foster[ing] reliance on judicial decisions,” Payne v. Ten-
nessee, 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 request-
ed.”).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).
[8] Proponents were thus entitled to take Chief Judge
Walker at his word when he assured them that the trial record-
ing would not be publicly broadcast or televised. Because
Proponents reasonably relied on Chief Judge Walker’s com-
mitments in refraining from challenging his actions, the set-
ting aside of those commitments would compromise the
integrity of the judicial process. The interest in preserving
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 applica-
ble date could have no force or effect. Chief Judge Walker was not simi-
larly 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.
1248 PERRY v. BROWN
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 cir-
cumstances 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 ratio-
nale is wholly “without ‘support in inferences that may be
drawn from the facts in the record,’ ” and the latter is an “im-
plausible” and “illogical” application of the “compelling rea-
son” standard. Hinkson, 585 F.3d at 1262. Chief Judge Ware
therefore abused his discretion. Id.III
[9] 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 pro-
ceedings. Instead, we assume an affirmative answer to that
question without deciding—on this occasion—whether the
First Amendment applies. We nonetheless conclude that the
application of the First Amendment would not affect the
result that we reach.
[10] In applying the First Amendment standard, we con-
sider whether “(1) closure serves a compelling interest; (2)
there is a substantial probability that, in the absence of clo-
sure, 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
PERRY v. BROWN 1249
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 integ-
rity of the judicial system.
***
[11] 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
REVERSED.
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.