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04/19/2007


Ninth Circuit Consolidates Prop 8 Cases Seeking to Overturn Judge Vaughn Walker's Ruling

The Ninth Circuit Court of Appeals, in hopes to expedite rulings on California's ban on same-sex marriage have consolidated two cases involving Proposition 8, Lyle Denniston at the SCOTUS blog reports:

WalkerIn a brief order, a three-judge panel consolidated cases that both carry the case title Perry, et al., v. Brown, et al. (Circuit dockets 10-16696 and 10-16577).   Both are challenges, but for different reasons, to a federal District Judge’s ruling in August 2010 nullifying the ballot measure adopted by the state’s voters in 2008.

Adds Denniston:

One of the appeals is a plea to overturn the Walker decision on the merits (docket 10-16696).  The other (docket 11-16577) is also an attempt to overturn Walker’s ruling, but with the argument that he should have disqualified himself from ruling on the case — and that, as a result, his ruling must be vacated — because he was not an impartial judge.   The second challenge is based on two facts and a theory.  The facts are that he is a gay person and that he has been in a long-term relationship with a partner of the same sex.  The theory is that he would likely be interested in marrying his partner, and thus would benefit from his own ruling against the marriage ban.

The judge who succeeded Walker on the case, Chief Judge James Ware of San Francisco, has rejected the claim of partiality.

Both cases involve appeals by the sponsors and promoters of Proposition 8.   Those backers, as well as the same-sex couples who had challenged the ban, had told the Circuit Court that they were in favor of consolidating the two cases, so long as it did not result in a delay in the Circuit Court’s review.   By agreeing to consolidate the two proceedings, the Circuit Court at least implied that there would be no delay by going forward with them together.

It's expected the court will move quickly on a ruling.


Prop 8 Proponents Appeal Ruling Over Judge's Sexuality

As they announced they would do in mid-June, Prop 8 proponents have filed papers appealing Judge James Ware's decision to reject the frivolous attempt to throw out the Prop 8 ruling over Judge Vaughn Walker's sexuality. 

Walker Prop 8 proponents filed a motion April to vacate the ruling overturning California's ban on same-sex marriage, saying that the judge's recent statements that he is gay mean he should have recused himself from the case, and give them grounds to appeal. It was rejected on June 14.

The SF Examiner reports:

Attorneys for Prop. 8 filed their appeal this afternoon before the 9th U.S. Circuit Court of Appeals, the same court that is hearing an appeal of Judge Vaughn Walker’s ruling last August that the law unconstitutionally violated the civil rights of gays and lesbians.

Reuters adds:

Attorneys for ProtectMarriage.com, the anti-gay marriage group defending California's ban, said in court papers filed late last week that they would appeal Ware's decision.

They did not respond to a request for comment on Monday.

Matthew McGill, an attorney for two same-sex couples challenging the ban, said ProtectMarriage.com had been clear that they would continue a "smear campaign" against Walker.

"The only thing surprising about this development is doing so in the face of such a well-reasoned opinion," McGill said.

Said Theodore J. Boutrous Jr., counsel for the American Foundation for Equal Rights (AFER), the sole sponsor of Perry v. Schwarzenegger: "It is disappointing that the Proponents of Proposition 8 continue their unfounded attack on former Chief Judge Walker, and this is just the latest sign of their desperation. Chief Judge Ware correctly recognized that a gay or lesbian judge is entitled to the same presumption of fairness and impartiality as all other federal judges, not the presumption of bias urged by Proponents. We are confident that the denial of Proponents' unfortunate motion will be affirmed."

Desperate times call for desperate measure, and the New York ruling has only, certainly, made times more desperate for those on the wrong side of history.


BREAKING: Motion to Vacate Prop 8 Ruling Over Judge Walker's Sexuality is Denied

A federal judge has denied Prop 8 proponents' frivolous motion to vacate Judge Vaughn Walker's ruling in the Prop 8 case over Walker's sexuality. 

Read Judge James Ware's ruling, AFTER THE JUMP...

Walker Prop 8 proponents filed the motion in April to vacate the ruling overturning California's ban on same-sex marriage, saying that the judge's recent statements that he is gay mean he should have recused himself from the case, and give them grounds to appeal.

Walker came out publicly for the first time in early April.

At the time, Walker said he would never think of recusing himself from a case over his sexuality:

Walker, who retired from the bench at the end of February, said it would not be appropriate for any judge's sexual orientation, ethnicity, national origin or gender to stop them from presiding over a case.

"That's a very slippery slope," Walker said.

Writes Ware in the ruling:

After considering the Oppositions to the Motion and the governing law, as discussed below, the Court finds that neither recusal nor disqualification was required based on the asserted grounds. The sole fact that a federal judge shares the same circumstances or personal characteristics with other members of the general public, and that the judge could be affected by the outcome of a proceeding in the same way that other members of the general public would be affected, is not a basis for either recusal or disqualification under Section 455(b)(4). Further, under Section 455(a), it is not reasonable to presume that a judge is incapable of making an impartial decision about the constitutionality of a law, solely because, as a citizen, the judge could be affected by the proceedings. Accordingly, the Motion to Vacate Judgment on the sole ground of Judge Walker’s same-sex relationship is DENIED.

Ware writes in the ruling that "it is not reasonable to presume that a judge is incapable of making an impartial decision," adding that "no personal bias or reasonable doubt about the judge’s impartiality exists in these circumstances."

Equal protection and due process benefit all society, not just minorities, Ware writes, and "all Californians have an equal interest in the outcome of the case." ... "The single characteristic that Judge Walker shares with the Plaintiffs ... gave him no greater interest in a proper decision on the merits."

Lambda Legal Staff Attorney Peter Renn applauded the ruling: "The court decisively rejected an outrageous attack on the integrity of Judge Walker, not to mention judges in general. The motion was a sideshow designed to deflect attention from the fact that the proponents had every chance to prove that Prop 8 was constitutional, but could not do so. Prop 8 was declared unconstitutional because it is unconstitutional - not because the judge is gay."

Our legal expert Ari Ezra Waldman wrote his take on the motion back in April. Read it here.

Read the ruling, AFTER THE JUMP...

Continue reading "BREAKING: Motion to Vacate Prop 8 Ruling Over Judge Walker's Sexuality is Denied" »


Following Hearing, Ruling to Come Within 24 Hours on Judge's Sexuality in Prop 8 Case

A hearing into the frivolous Motion to Vacate made by Prop 8 proponents over the judge's sexuality in the Prop 8 case took place early today. The hearing was prompted by a motion from proponents of Proposition 8 over the fact that Judge Vaughn Walker, who overturned California's ban on same-sex marriage, is in a relationship with a man.

Ware Our legal expert Ari Ezra Waldman wrote his take on the motion back in April. Read it here.

Reuters' Dan Levine reports on the hearing

[JAmes]Ware (pictured), an African-American judge nominated to the bench by George H.W. Bush, sharply questioned Charles Cooper, the attorney defending California's marriage ban. "If a reasonable person thought a black judge should recuse himself from a civil rights case, that would be sufficient to recuse the judge?" Ware asked.

"No, your honor," Cooper responded. Ware also pointed out that while Walker was in a long term relationship, there was no evidence that he wanted to marry.

Theodore Boutrous, an attorney for the same sex couples, called the attempt to vacate the ruling offensive. "Their motion is targeting Judge Walker's sexual orientation, no matter how they try to camouflage it," Boutrous said.

Griffin_boutros Added Boutros, in a statement from AFER:

“The Proponents of Prop. 8 today advocated for a sweeping and completely unsupported standard for disqualification that would preclude hundreds of qualified, fair-minded judges from deciding some of the most important issues facing our country. Their standard is intended to, and would, prevent gay, lesbian or bisexual judges from impartially presiding over cases involving the rights of same-sex individuals and couples – an offensive suggestion that has been consistently rejected by the courts in similar cases involving race and sex discrimination.”

Here's a thorough liveblog archive from the Courage Campaign's Adam Bink if you'd like to read through the questioning.

Ware said he would rule quickly, likely within 24 hours, on the case.

Watch ABC7's report on today's hearing and activity outside the courtroom,
AFTER THE JUMP...

Continue reading "Following Hearing, Ruling to Come Within 24 Hours on Judge's Sexuality in Prop 8 Case" »


Hearing Set for Today Over Judge's Sexuality in Prop 8 Case

A hearing which was fast-tracked by U.S. District Judge James Ware in April is set to take place today. The hearing was prompted by a motion from proponents of Proposition 8 over the fact that Judge Vaughn Walker, who overturned California's ban on same-sex marriage, is in a relationship with a man.

Walker Our legal expert Ari Ezra Waldman wrote his take on the motion back in April. Read it here.

The AP's Lisa Leff reports:

Lawyers for the sponsors of the voter-approved ban are asking the chief federal judge in San Francisco to vacate the decision issued by his predecessor last year that declared Proposition 8 an unconstitutional violation of gay Californians' civil rights. They maintain that former Chief Judge Vaughn Walker should have recused himself or disclosed his relationship status before trial because he and his partner stood to personally benefit from Walker's verdict.

Attorneys for the ban's backers and for two same-sex couples who successfully sued to overturn the measure in Walker's court are scheduled to present arguments on that question to Chief U.S. Judge James Ware, who could rule from the bench or at a later date.

The New York Times has ripped efforts by Prop 8 proponents to vacate the ruling:

Indeed, following the open-ended logic of Proposition 8’s lawyers, it is hard to think who, if anyone, is qualified to rule on this case. Certainly not wedded heterosexual judges whose marriages stand to be somehow diminished, according to the antimarriage crowd, if Judge Walker’s ruling survives appeal in federal circuit court.

In May, a coalition of LGBT groups filed briefs urging the judge to not vacate the ruling:

"This stinks of desperation on the part of Prop 8 supporters," said Jon Davidson, Legal Director of Lambda Legal. "Everyone has constitutional rights, so cases that raise constitutional issues routinely affect the public at large, including judges. But that's no basis for recusal, here or in any case. A female judge has no duty to recuse herself from hearing a case involving women's right to vote, even if she wanted to vote. It would be absurd if, in order to rule on discrimination claims, judges would need to practice discrimination themselves. And the notion that being in a same-sex relationship renders a judge unable to interpret the law and uphold the sworn duty to rule impartially is insulting to both judges and America's system of justice."

Governor Jerry Brown's attorneys filed papers at the same time accusing Prop 8 proponents of engaging in a "witch hunt" against Walker.

The hearing is scheduled for 9 am in San Francisco.


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