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Panel Unlikely to Find Judicial Misconduct in Cal Prop 8 Appeal

By Robyn Hagan Cain on December 09, 2011 | Last updated on March 21, 2019

California Prop 8 has been a legal rollercoaster.

Those of us along for the ride have watched the Ninth Circuit Court of Appeals negotiate twists and turns through issues like ProtectMarriage's standing to defend the law, Freedom of Information Act (FOIA) requests for trial videotapes, and allegations of judicial misconduct.

Yesterday, the Ninth Circuit heard oral arguments in two of the three issues before the court in the California Prop 8 challenge: public access to the trial videotapes, and whether or not Judge Vaughn Walker's decision in the trial should be voided on the grounds of judicial misconduct. (The court has deferred consideration on the constitutionality of California Prop 8 while the litigants submit briefs on the California Supreme Court's standing ruling.)

Based on the judges' responses in oral arguments, it looks like both sides had a win/lose day.

With regard to the trial videotapes, the three-judge panel seemed concerned that releasing the tapes, after Judge Walker promised that the tapes would not be publicly broadcast, would compromise the court's integrity.

"The word of the court is supposed to mean something," Judge Stephen Reinhardt said. "There was a promise by the judge that it would not be released," reports Courthouse News Service.

The judges were even more critical of Prop 8 proponents' arguments that Judge Walker's sexual orientation could be used to overturn the decision.

Charles Cooper, an attorney for the proponents, told the Ninth Circuit Court of Appeals that Judge Walker should have revealed he had a long-term male partner and indicated whether he had an interest in marrying before presiding over the trial, reports CBS News.

Judge R. Randy Smith, however, questioned why a gay judge should be any more obligated to divulge his relationship status and views on matrimony than a straight judge who opposes same-sex marriage.

The Ninth Circuit has not issued rulings on the issues from yesterday's Prop 8 hearing.

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