Judge Walker

[Zeta-Flux]

The Prop. 8 proponents just submitted a motion to vacate retired Judge Walker's ruling, found at http://www.scribd.com/doc/53893574/Motion-to-Vacate

Here are some facts:

1. By his own admission, Walker had been in a long-term (8 year) same-sex relationship at the start of the trial.

2. He failed to disclose this fact to the parties during the trial, and only recently admitted this to the press.

3. He has not disclosed whether or not he wants to be married.

So the question before the courts is whether or not a lay person in possession of these facts would find it reasonable to believe that Judge Walker has a personal "interest that could be substantially affected by the outcome of the proceeding".

Some notes before you comment:

Note A: This motion is not about Judge Walker's self identification as a gay man. It is about whether or not he had personal interest in the outcome, with respect to the long-term relationship he is in.

Note B: This motion is not about proving that Walker wants to get married. The rules of recusal and disclosure do not require one to prove mental states. Rather, it must be shown to be reasonable to suppose Judge Walker would want to be married. (As explained in the motion, Walker could have negated any fears by stating he will never want to get married; but he has not done so.)

[frankenstein]

It would seem that if he wanted to be married he would have done so when it was legal in California. If Walker should have not heard the case because he is gay, then Judge Smith on the panel should have sat on the panel which heard the appeal because he is most likely LDS, and as at least one person on this board said essentially - who serves in a leadership position -

"[i apply] True Believing Mormon" ... to those who accept all the core doctrines of the Church and also act in the public arena as if they did. In other words, they can truthfully answer the TR questions and receive one. ... an opponent of Prop 8, for example, cannot possibly be a TBM." The suggestion being that True Believers would support prop 8, so there is reason to believe that Smith is impartial because of his membership status, and/or because the Prophet requested support of the measure.

Lets consider another absurdity. Judge Walker is Gay, is the Judge who inherited the case heterosexual? Wouldn't a married heterosexual Judge be just as biased because as heterosexual married needs to "protect [his] marriage"?

I think asking either to step aside relies on a straining to such a degree that reaches borderline paranoia, All homosexuals do not want to get married, all heterosexuals do not want 8 letters to only apply to heterosexual marriage.

I see this motion as a very calculated act - the issue wasn't brought up to Judge Walker, so that he could not verify his impartiality, the proponents of prop 8 - using typical fear mongering for defense of prop 8 say "Well he never denied it so it must be true (just between us hetro it makes no difference whether we every asked, and we didn't ask him on purpose because if Walker had stated his impartiality then the Standard of Review is too difficult to for us to overcome, so we poisoned the well, long after we first should have raised the issue).

I think it says much about the lack of integrity for the proponents to not the raise the issue to Judge Walker.

[Zeta-Flux]

If Walker should have not heard the case because he is gay...

frankenstein, you need to read my post again (and possibly a third time). Pay special attention to note A.

It would seem that if he wanted to be married he would have done so when it was legal in California.

...

All homosexuals do not want to get married...

I agree that not all homosexuals want to married, even those in long term relationships. And it is clear that Judge Walker did not get married during the brief hiatus when it was legal. So the question is whether it is unreasonable to suppose that Judge Walker may want to get married now. Is it unreasonable to believe he may have a personal interest in the outcome of the case? That is the question. To judge the answer to that question we should ask if there are other long-term same-sex couples who had the opportunity to get married when it was legal, did not, but now want to be married.

I see this motion as a very calculated act - the issue wasn't brought up to Judge Walker, so that he could not verify his impartiality, the proponents of prop 8 - using typical fear mongering for defense of prop 8 say "Well he never denied it so it must be true (just between us hetro it makes no difference whether we every asked, and we didn't ask him on purpose because if Walker had stated his impartiality then the Standard of Review is too difficult to for us to overcome, so we poisoned the well, long after we first should have raised the issue).

I think it says much about the lack of integrity for the proponents to not the raise the issue to Judge Walker.

frankenstein, you misunderstand the process of disclosure and recusal. It is the judges' responsibility to look for anything in their lives which they believe could be viewed as leading to partiality, and to disclose that information at the outset. It is not the proponent's job; and there is no way to "raise the issue" with a judge unless they disclose their possible partiality. If Judge Walker had admitted to such a relationship, and asked the litigants to waive the issue, then the proponents could have raised the further issue as you suggest. But because Walker did not do this there was no way for the proponents to raise the issue.

Also, your judgments are completely off base. They never say "he never denied it so it must be true". You need to read the actual motion and respond to what they actually say if you don't want to be just presenting straw-man caricatures.

You seem to miss the point that Judge Walker failed to disclose the fact that he was in a personal relationship that would be affected by his own ruling. He continues to keep secret whether or not he ever wants to get married. Sadly, even if he now denies that he ever wants to be married, this ex post facto revelation would do nothing to remove the doubt that results from his lack of earlier disclosure.

[cdowis]

Indiana University Law School professor Charles Geyh, an expert on judicial ethics, said that without more evidence that Walker stood to personally benefit if same-sex marriages were legal in California, he found it difficult to imagine that the particulars of the judge's same-sex relationship provided gay marriage opponents with an avenue for reversing his ruling.

"It really implies it would be fine if he were essentially surfing at bars and had a new partner every night because he wouldn't want to be married," he said. "I don't see that as advancing their cause."

But, as we pointed out here, the issue is whether he should have disclosed this relationship prior to the trial.

[Zeta-Flux]

"It really implies it would be fine if he were essentially surfing at bars and had a new partner every night because he wouldn't want to be married," he said. "I don't see that as advancing their cause."

Um, no. It would say that such behavior is irrelevant to the issue of disclosure and recusal. Just as sexual preference is irrelevant, as is religious affiliation. Charles Geyh seems to be confusing moral "fineness" with irrelevance to the issue at hand.

On the other hand, whether Walker was in a dedicated relationship which may result in a marriage if he rules a certain way is extremely relevant to the issue of partiality.

[frankenstein]

You seem to miss the point that Judge Walker failed to disclose the fact that he was in a personal relationship that would be affected by his own ruling. He continues to keep secret whether or not he ever wants to get married. Sadly, even if he now denies that he ever wants to be married, this ex post facto revelation would do nothing to remove the doubt that results from his lack of earlier disclosure.

so a Judge thats shares a common characteristic as a plaintiff or defendant is impartial because the judge shares a common trait?

Is it reasonable to assume to a homosexual couple in a long term relationship would want to get married? No, it is not reasonable to assume that. I know of many couples hetero and homosexual who have maintained long term relationships and do not want to get married.

this is just more convaluted fear mongering by proponents of 8 whose desperation is bottomless.

From the articles I have read, protectmarriage had enough information to raise the issue, but decided not too - that says a lot about their lack of integrity, candor to the Court and their lack of legal professionalism.

[cdowis]

Um, no. It would say that such behavior is irrelevant to the issue of disclosure and recusal.

I see this as similar to the situation where in criminal court the prosecution fails to disclose information to the defense attorney. The issue becomes muddled on whether the prosecution can claim that the evidence would not have influenced the outcome of the trial, and the defense argues that they should have had the evidence regardless of the possible outcome.

Anyway, as a layman, I suspect that a simple "failure to disclose" is insufficient to vacate the decision.

[Zeta-Flux]

so a Judge thats shares a common characteristic as a plaintiff or defendant is impartial because the judge shares a common trait?

No. Neither would that necessarily make him partial. :-)

What does make his partiality questionable is that his ruling affects *himself* in a significant way; and this wasn't disclosed prior to proceedings. This is discussed at length in the motion.

Is it reasonable to assume to a homosexual couple in a long term relationship would want to get married? No, it is not reasonable to assume that. I know of many couples hetero and homosexual who have maintained long term relationships and do not want to get married.

The question isn't whether we can reasonably assume an arbitrary homosexual couple in a long-term relationship would want to get married. (The answer is: it depends on the couple, of course. As you say, you know some who don't and there are clearly some who do.) Rather, the question is whether it is reasonable to suppose that Judge Walker may have wanted to get married, and whether he had a personal interest in the outcome of the case.

I agree with you that he may not have wanted to get married. However, I think it is also reasonable to believe that he may have wanted to get married, just as other long-term same-sex couples want to get married (even if they didn't take advantage of the short-term opportunity before). There are quite a few people in that same boat.

[cdowis]

this is just more convaluted fear mongering by proponents of 8 whose desperation is bottomless.

No, it is a legal tactic. And both sides use such *legal* tactics to advance their side.

From the articles I have read, protectmarriage had enough information to raise the issue, but decided not too - that says a lot about their lack of integrity, candor to the Court and their lack of legal professionalism.

They changed their mind on the best strategy. I do not understand how that shows "lack of integrity".

Sounds like you are one of those "evil empire" conspiracy advocates. Such things happen all the time, on both sides of an issue.

They change their mind, and that makes them "evil". What nonsense.

[Zeta-Flux]

I see this as similar to the situation where in criminal court the prosecution fails to disclose information to the defense attorney. The issue becomes muddled on whether the prosecution can claim that the evidence would not have influenced the outcome of the trial, and the defense argues that they should have had the evidence regardless of the possible outcome.

Anyway, as a layman, I suspect that a simple "failure to disclose" is insufficient to vacate the decision.

It isn't as simple as a failure to disclose. Read the motion for more background. I'll be interested to see what happens though.

[frankenstein]

Also, your judgments are completely off base. They never say "he never denied it so it must be true". You need to read the actual motion and respond to what they actually say if you don't want to be just presenting straw-man caricatures.

"Because he did not [unequivocally disavow any interest in marrying his partner] do so when the case was assigned to him, and has not done so since, it must be presumed that he has an interest in marrying his partner .... "

Motion to Vacate pg 3, paragraph 1, lines 10 - 15 respectively.

does not get anymore obvious than that.

The question isn't whether we can reasonably assume an arbitrary homosexual couple in a long-term relationship would want to get married. (The answer is: it depends on the couple, of course. As you say, you know some who don't and there are clearly some who do.) Rather, the question is whether it is reasonable to suppose that Judge Walker may have wanted to get married, and whether he had a personal interest in the outcome of the case.

I agree with you that he may not have wanted to get married. However, I think it is also reasonable to believe that he may have wanted to get married, just as other long-term same-sex couples want to get married (even if they didn't take advantage of the short-term opportunity before). There are quite a few people in that same boat.

yet you use an arbitrary homosexual couple to defend your point..." I think it is also reasonable to believe that he may have wanted to get married, just as other long-term same-sex couples want to get married" you can't deny arbitrary in one breathe and use arbitrary in the next to defend your point.

[BCSpace]

"[i apply] True Believing Mormon" ... to those who accept all the core doctrines of the Church and also act in the public arena as if they did. In other words, they can truthfully answer the TR questions and receive one. ... an opponent of Prop 8, for example, cannot possibly be a TBM." The suggestion being that True Believers would support prop 8, so there is reason to believe that Smith is impartial because of his membership status, and/or because the Prophet requested support of the measure.

Sure. I agree. One would expect a "TBM" to be in favor of Prop 8. I personally don't care if one of the judges is gay or LDS or appointed by Regan or not, etc. The bottom line is right and wrong and overturning Prop 8 is wrong as well as gay marriage in general and any notion of state recognition of such. There is no moral, legal, ethical, or constitutional basis for it.

But when making appointments, one should expect one's background and lifestyle to influence their decisions. Therefore, such things are an important factor in deciding who is appointed and who is elected to make appointments. So it's quite appropriate consider someone's religion or sexual preference, for example, in deciding who to vote for if there are issues that could be decided on those basis. It's also appropriate to consider their words, actions, previous votes etc, when they claim their religion or sexual preference won't be a factor.

[Zeta-Flux]

frankenstein, you say:

From the articles I have read, protectmarriage had enough information to raise the issue, but decided not too - that says a lot about their lack of integrity, candor to the Court and their lack of legal professionalism.

If you would have read the motion, you would have seen why they did not file a similar motion previously. It was because they had no proof that Judge Walker was in such a relationship. Seriously, go to the .pdf and read the footnote that is on pages 20-21 (also numbered 12-13). There they explain that because Walker had not previously publicly asserted the fact of his relationship, they could not raise such a motion because you cannot raise such a motion due to only rumor.

[frankenstein]

frankenstein, you misunderstand the process of disclosure and recusal. It is the judges' responsibility to look for anything in their lives which they believe could be viewed as leading to partiality, and to disclose that information at the outset. It is not the proponent's job; and there is no way to "raise the issue" with a judge unless they disclose their possible partiality. If Judge Walker had admitted to such a relationship, and asked the litigants to waive the issue, then the proponents could have raised the further issue as you suggest. But because Walker did not do this there was no way for the proponents to raise the issue.

"See Liljeberg, 486 U.S. at 868 (emphasizing the importance of “encouraging a ... litigant to more carefully examine possible grounds for disqualification and to promptly disclose them when discovered”)

have you even read the motion?

I had not read the motion when I posted earlier, and amazingly, I have been correct on my claims.

[Zeta-Flux]

"Because he did not [unequivocally disavow any interest in marrying his partner] do so when the case was assigned to him, and has not done so since, it must be presumed that he has an interest in marrying his partner .... "

Motion to Vacate pg 3, paragraph 1, lines 10 - 15 respectively.

does not get anymore obvious than that.

My argument was with your wording "it must be true" (specifically with the word must). I agree with their argument that we can presume it is true. Very different concepts.

yet you use an arbitrary homosexual couple to defend your point..." I think it is also reasonable to believe that he may have wanted to get married, just as other long-term same-sex couples want to get married" you can't deny arbitrary in one breathe and use arbitrary in the next to defend your point.

You misunderstand, and are making a categorical fallacy. Statements about the category of homosexual couples to not necessarily correspond to statements about a specific homosexual couple. However, properties that occur in a category may occur for that specific instance.

To illustrate: It is illogical and unreasonable to assume that everyone who is in a long-term same-sex relationship wants to get married. (There are counter-examples.) It is not illogical and unreasonable to assume that some do want to get married. (There are examples.) These same properties do not hold with respect to Walker and his partner: they either do or do not want to get married (and this may change over time). So in that sense, it is wrong to take the properties of the group, and apply them to the individual.

It is not wrong to assert that the individual is a member of the group (which I did, by saying it is reasonable to suppose he may want to marry). It is only wrong to attribute all properties of the group to the individual.

[Zeta-Flux]

have you even read the motion?

Analysis:

Lack of capitalization. Check.

Inflammatory. Check.

Misunderstood the citation. Check.

Suggested response:

Not responding further because nothing will be gained.

[krose]

The motion is offensive, and I hope it gets exactly what it deserves... promptly tossed out.

[frankenstein]

Analysis:

Lack of capitalization. Check.

Inflammatory. Check.

Misunderstood the citation. Check.

Suggested response:

Not responding further because nothing will be gained.

you make several claims that eye am incorrect, u suggest eye read the mow shun, witch eye read. While reading, within the first few pages eye find that mi claims are core wreck. but now u claim eye misunderstand the citation....how lame.

The litigants had a responsibility "to more carefully examine possible grounds for disqualification and to promptly disclose them when discovered” there was enough information in the public for protectmarriage exercise their responsibility and act, yet they made the choice not to do so, and if silence means what one wants it mean in this case, then the silence of protectmarriage means that they found no conflict, protectmarraige was derelict in its duty to the court, and now is playing or rather status quo fear mongering and fallacies in childlike tempertantrum from not getting their way.

[Zeta-Flux]

The motion is offensive, and I hope it gets exactly what it deserves... promptly tossed out.

Why do you find it offensive?

[frankenstein]

frankenstein, you say:

If you would have read the motion, you would have seen why they did not file a similar motion previously. It was because they had no proof that Judge Walker was in such a relationship. Seriously, go to the .pdf and read the footnote that is on pages 20-21 (also numbered 12-13). There they explain that because Walker had not previously publicly asserted the fact of his relationship, they could not raise such a motion because you cannot raise such a motion due to only rumor.

yes lets examine the footnote:

Clemens:

The Tenth Circuit has compiled a helpful, nonexhaustive list of various matters not ordinarily sufficient to require a § 455(a) recusal. These include:

20

(1) Rumor, speculation, beliefs, conclusions, innuendo, suspicion, opinion, and similar non-factual matters;

(2) the mere fact that a judge has previously expressed an opinion on a point of law or has expressed a dedication to upholding the law or a determination to impose severe punishment within the limits of the law upon those found guilty of a particular offense;

(3) prior rulings in the proceeding, or another proceeding, solely because they were adverse;

(4) mere familiarity with the defendant(s), or the type of charge, or kind of defense presented;

(5) baseless personal attacks on or suits against the judge by a party;

(6) reporters' personal opinions or characterizations appearing in the media, media notoriety, and reports in the media purporting to be factual, such as quotes attributed to the judge or others, but which are in fact false or materially inaccurate or misleading; and

(7) threats or other attempts to intimidate the judge.

----------

their misuse of Clemens is very evident. The list above is about things that do not require recusal, not about a Judge requirement to disclose.

also, the propents make several claims that Judge Walker "refused to comment to the press" and "earlier press report" yet they did not provide any citation for these press reports to support their claim; not a very legally sound stance, that is, making claims with providing evidence.

[Amulek]

yes lets examine the footnote:

[…]

their misuse of Clemens is very evident. The list above is about things that do not require recusal, not about a Judge requirement to disclose.

How did they misuse that citation? As I read the footnote, it appears clear to me that they are using it in precisely the correct manner. Here is the relevant portion from the footnote again:

The Ninth Circuit has repeatedly stressed that “[r]umor, speculation, beliefs, conclusions, innuendo, suspicion, opinion,” and “characterizations appearing in the media” are inadequate to require recusal under Section455, see Clemens, 428 F.3d at 1178-79; […]

I believe you are misattributing that citation with the wrong clause in the footnote. It looks like the portion of the footnote that was being referenced earlier is here:

[…] the law is clear that “a litigant’s duty to investigate the facts of his case does not include a mandate for investigations into a judge’s impartiality.… [Courts] believe instead that litigants (and, of course, their attorneys) should assume the impartiality of the presiding judge, rather than pore through the judge’s private affairs and financial matters.” American Textile Mfrs. Inst., Inc. v. The Limited, Inc., 190 F.3d 729, 742 (6th Cir. 1999)

Again, this appears to be an accurate representation of the referenced citation, so where are they going wrong? Where is the misuse?

[Daniel2]

Whether or not one agrees with Judge Walker's ruling, or whether or not one agrees with his ability to remain impartial in this case, it's clear that his ruling won't stand without first being ruled upon by a series of appellate judges and subsequent rulings, anyway.

It comes as no surprise to anyone that I believe that a judge's sexual orientation and relationship-status should not be reason enough to excuse a judge from ruling over a case such as this. After all, both single and married heterosexuals would have had a 'horse' in this race, as well, thereby making the fact that several judicial panels will have to review this matter all the more significant (including the Latter-day Saint assigned as one of the three appellate judges at the next level).

Darin

[frankenstein]

How did they misuse that citation? As I read the footnote, it appears clear to me that they are using it in precisely the correct manner.

they misuse Clemens by trying to use as a justification for their neglect to act when they had a duty to act. The list from Clemens is a list created by another circuit delineating situations wherein a Judge is not required to recuse; Clemens is not a case wherein an attorney is release from an affirmative duty to Court and practice of law.

The case they cite concerning that they did not have to act, is an 11th circuit opinion with seemingly contradicts SCOTUS.

---------------

Darin you bring up an excellent point, a point which the "recusal recusal" side has yet to tackle, that is, a married heterosexual judge has just as much an interest in upholding prop 8; thus the need for an asexual disvower of marriage to rule on the case.

yet in formulating the argument against walker the proponents have nailed their own coffin shut.

[Daniel2]

...thus the need for an asexual disvower of marriage to rule on the case.

yet in formulating the argument against walker the proponents have nailed their own coffin shut.

I agree.

The ongoing "Save Traditional Marriage!" camp is, IMO, decending into absurdity in trying to sound convincing that anyone's "marriage" is really "being preserved," here.

Darin

[Amulek]

they misuse Clemens by trying to use as a justification for their neglect to act when they had a duty to act.

Was there any factual evidence that would have triggered that duty to act? If so, where would I find it? CFR.

Or are you saying that - absent any actual factual evidence supporting the claim - the litigants’ attorneys had a duty to try and have Judge Walker recuse himself based solely upon the rumor, speculation, suspicion, etc. that he was in a long term relationship and stood to benefit from the outcome of the case?