Kristin Perry v. Edmund Brown, Jr.

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.