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ProtectMarriage Alleges Judicial Misconduct in Prop 8 Trial

By Robyn Hagan Cain | Last updated on

Retired Judge Vaughn Walker is a hot topic around the Ninth Circuit Court of Appeals.

Last week, we told you about the debate in the Ninth Circuit over the release of Judge Walker’s Prop 8 trial tapes. This week, the big debate is about whether Judge Walker committed judicial misconduct by refusing to recuse himself from the trial because he is gay.

ProtectMarriage, the group behind California Prop 8, argues that Judge Walker could have recused himself without disclosing the reason, but he should not have presided over the case. The group suggested that "a reasonable observer, with knowledge of all of the relevant facts, (disclosed or not), would conclude the judge's impartiality might reasonably be questioned," reports Los Angeles Times.

Prop 8 opponents argue that ProtectMarriage reasonably should have known that Judge Walker was "openly gay" as early as June 21, 2010, when Los Angeles Times published an article that addressed Walker's personal life, but the group did not object to Walker's impartiality until April 25, 2011.

Chief Judge James Ware, who was reassigned the case following Judge Walker's retirement, denied ProtectMarriage's motion to vacate the judgment, explaining that "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."

Prop 8 Opponents claimed in their brief to the Ninth Circuit Court of Appeals that "a recusal rule that turns on a minority judge's subjective desire to enjoy his basic civil rights would effectively disqualify all minority judges."

Let's consider, for a moment, what would happen if a court applied the same standard to determine that an African-American judge could not be impartial in a racial profiling case, or that a female judge could not fairly adjudicate sexual discrimination case. There would be outrage.

If the tables were turned, and Prop 8 Opponents complained that an Evangelical Christian judge could not come to an impartial decision on California Prop 8, we would offer that judge's integrity the same deference.

We doubt Ninth Circuit Court of Appeals will side with ProtectMarriage in its judicial misconduct claims, but before we hear arguments about Judge Vaughn Walker, we'll hear arguments about that videotape collection. The court has scheduled oral arguments in the videotape debate for December 8.

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