Yes on 8: Gay judge’s ruling shouldn’t count

Vaughn Walker

Proponents of Proposition 8 filed a motion Monday, April 25, in federal district court, seeking to vacate the August 2010 ruling by Judge Vaughn Walker that the initiative is unconstitutional, citing Walker’s recent disclosure that he is gay and has been in a relationship with a man for 10 years.

Chad Griffin, founder of the American Foundation for Equal Rights (AFER), which sponsored the lawsuit that challenged Proposition 8, issued a statement saying the motion is another “desperate and absurd” tactic by the Yes on 8 coalition which campaigned for California’s ban on marriages between same-sex partners.

Shannon Minter, legal director for the National Center for Lesbian Rights, agreed.

“This is not likely to win them any points with the courts, who understandably do not appreciate having the integrity of judges called into question based on such outrageous grounds,” said Minter.  “This is part and parcel of the underhanded way the Prop 8 campaign itself was run—based on lies, insinuations, and unsupported innuendo.”

“This reeks of a ‘Hail Mary’ attempt to assail Judge Walker’s character because they are unable to rebut the extremely well reasoned ruling he issued last year,” said Jon Davidson, legal director for Lambda Legal.

In the 26-page motion filed with the U.S. District Court for the Northern District of California, where the case was originally tried, Charles Cooper, lead attorney for the Yes on 8 proponents cites the April 6 article from Reuters news service. That article first reported that Walker disclosed to a small group of reporters that he was gay and was in a relationship.

“Given that Chief Judge Walker was in a committed, long-term, same-sex relationship throughout this case (and for many years before the case commenced),” states Cooper, “it is clear that his ‘impartiality might reasonably [have been] questioned’ from the outset.”

The U.S. Code dealing with “Judiciary and Judicial Procedure” states that “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” It also states that a judge “shall also disqualify himself” if “He knows that he … has a financial interest in the subject matter in controversy … or any other interest that could be substantially affected by the outcome of the proceeding….”

According to Cooper, “if at any time while this case was pending before him, Chief Judge Walker and his partner determined that they desired, or might desire, to marry, Chief Judge Walker plainly had an ‘interest that could be substantially affected by the outcome of the proceeding’.”

Lambda’s Davidson said that reasoning, if applied, would presumably disqualify any judge –straight or gay.

NCLR Executive Director Kate Kendell noted that “judges of all races can sit in judgment on race cases and judges of all genders can preside over sex discrimination cases.” She called the motion to vacate an attempt “to have a ‘do-over’ on a case they botched so badly it will be a future primer for first-year law students on how not to litigate the most high-profile case in a generation.”

The Cooper motion asks for a hearing on the matter by Judge James Ware, the district court judge who replaced Walker when Walker retired in February.

They ask for a hearing on their request July 11. Davidson said attorneys typically check with a judge’s court calendar to suggest the first free date available, but a judge is not obligated to schedule a hearing for that date or to even grant a hearing.

There are now six legal proceedings pending with regard to the Perry v. Brown (formerly Perry v. Schwarzenegger case):

• at the district court level, the Yes on 8 motion to vacate;
• at the 9th Circuit Court of Appeals level: the Yes on 8 motion to sequester a videotape of the trial, the AFER attorneys’ motion to release the videotape to the public; Yes on 8’s appeal of Walker’s district court decision, and AFER attorneys’ challenge to Yes on 8’s standing to appeal to the 9th Circuit, and
• at the California Supreme Court, the question of whether California law provides any authority that enables Yes on 8 to appeal the district court’s ruling to the 9th Circuit.

Before the 9th Circuit appeals panel heard arguments on the constitutional questions and the question of standing in the case, Yes on 8 attorneys filed a motion seeking to have one of the three judges removed from the case. The motion claimed that, because panel Judge Stephen Reinhardt was married to the executive director of the Southern California ACLU, which has opposed Proposition 8, Reinhardt should recuse himself. Reinhardt rejected the request, saying that a “reasonable person with knowledge of all the facts” could conclude he will be able to “rule impartially” on the appeal.

Yes on 8 attorneys did not file a motion questioning the partiality of another panel judge who graduated from two Mormon-run universities and is a Mormon, even though the Mormon Church was heavily involved in campaigning for Proposition 8.

“For most in the legal profession, suggestions that advocacy skill or judicial impartiality depend on race, ethnicity, religion, sex or sexual orientation, are relics of an embarrassing history out of which our profession has grown,” said Jenny Pizer, the Williams Institute’s new legal director. “Seeing such accusations launched now in this context is sad and disturbing, but it’s not grounds to anticipate they will find receptive ears among a judiciary that has seen similar assumptions made in the past about other minority colleagues on the bench, and has learned to rebuke such attitudes firmly.”

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