Wednesday, August 11, 2010

Should judge have recused himself in Prop 8 case?

There is an interesting argument presented in today's San Francisco Chronicle that the federal judge, Vaughn Walker, should have recused himself in the the Prop 8 (California same-sex marriage) case. John C. Eastman, a law professor and former dean of Chapman University School of Law argues that the fact that Walker is gay is not reason enough for him to recuse himself, However, it has been reported that Walker is in a same-sex relationship and that would put Walker in the position of materially benefiting from his own ruling. Eastman concludes:
If the relationship does not create such a conflict, it nevertheless creates the circumstance "in which the judge's impartiality might reasonably be questioned." That ground for disqualification can be waived by the parties, but the judge must "disclose on the record the basis of the disqualification" and then only continue after the parties have agreed in writing to his continued involvement. No such disclosure and agreement occurred in this case.

Judge Walker's failure to disqualify himself or at least to disclose his potentially disqualifying relationship to the parties requires that the opinion in the case be vacated and a new trial conducted before a different judge. In Liljeberg vs. Health Services Acquisition Corp., the Supreme Court held that the original judgment had to be set aside even when the disqualifying relationship only became known to the parties 10 months after the judgment entered in the case had been upheld on appeal. Where an objective observer would have questioned the judge's impartiality, recusal is required, and the appropriate remedy is to annul the judgment because of the risk of injustice to the parties and of undermining the public's confidence in the judicial process.


The Huffington Post has listed two other cases in which Walker ruled against religious objections to the promotion of gay sexual behavior:
In 1999, he rejected arguments from the parents of a San Leandro boy who claimed their religious rights were violated by pro-gay comments their son's teacher had made in the classroom.

In the other case, he dismissed a free speech claim by two Oakland city employees whose managers had confiscated a bulletin board flier for a religious group that promoted "natural family, marriage and family values." The city had "significant interests in restricting discriminatory speech about homosexuals," Walker wrote in his 2005 ruling.

21 comments:

Ray Ingles said...

The judge in this case... seems to be creating a whole body of jurisprudence against the right of religious people to morally criticize same sex behavior... he rejected arguments from the parents of a San Leandro boy who claimed their religious rights were violated by pro-gay comments their son’s teacher had made in the classroom.

'Expressing moral criticism' is different from 'keeping other people from expressing moral approval or moral neutrality', isn't it?

Ray Ingles said...

However, it has been reported that Walker is in a same-sex relationship and that would put Walker in the position of materially benefiting from his own ruling.

Should Jewish and Christian judges recuse themselves from Ten Commandments cases?

Perpetua said...

Hi Ray,

I don't think your second comment makes a good analogy. The author of the op/ed specifically says the judge should not be asked to recuse himself merely because he is gay. It was the purported fact that he is in a gay relationship and thus, according to the judge's own words in his decision, would stand to benefit financially from the decision.

Or, Ray, perhaps you know of a Ten Commandments case in which a judge had a material financial interest. I guess I can imagine that if a Jewish or Christian judge had a financial investment in a company that manufactured displays of the Ten Commandments, that judge should recuse himself from a case about whether schools and courts could display the Ten Commandments. Obviously, in that situation, the company the judge invested in could benefit from a ruling in favor of the displays.

Regarding your first comment, I tend to agree with you. That wasn't something I wrote here. It was a comment I made over at Get Religion. I'll go to that post and make another comment.

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Ray Ingles said...

It was the purported fact that he is in a gay relationship and thus, according to the judge's own words in his decision, would stand to benefit financially from the decision.

But a judge who's a member of an evangelizing religion can stand to benefit from a decision to prominently display key tenets of their religion with the apparent imprimatur of the state.

Benefits don't have to be financial to lead to recusal - e.g. if the judge is a friend of anyone directly involved in the case.

The main question to ask here is if the reasoning in the decision is wrong or if it misstates issues of fact. If it does not, then there's no issue. Google up C.S. Lewis on Bulverism...

Perpetua said...

Hi Ray,
Well, this is about the law, and when it requires judges to recuse themselves. I'm not sure from your comment if you actually went to the op/ed and read it or not. A part I didn't quote reads:

A judge is required to disqualify himself in any proceeding "in which the judge's impartiality might reasonably be questioned, including but not limited to instances in which: (a) the judge has ... personal knowledge of disputed evidentiary facts concerning the proceeding; [or] ... (c) the judge knows that the judge ... has a financial ... or any other interest that could be affected substantially by the outcome of the proceeding."

If Judge Walker is indeed in a long-term, same-sex relationship, he certainly has an "interest that could be affected substantially by the outcome of the proceeding" - he and his partner are now permitted to marry! - and that, according to Judge Walker's own finding, has financial benefits as well. Such conflicts would have required recusal, and cannot be waived by the parties.

Ray Ingles said...

It's a matter of how high the bar has to be raised - at what point could "the judge's impartiality... reasonably be questioned". You (I presume) don't think just being Christian is enough to require a judge to recuse themselves from a Ten Commandments case. A lot of other people don't think just being in a "stable homosexual relationship of the kind that could lead to marriage" calls for recusal.

Let's turn it around. Gay marriage is supposed to be a threat to heterosexual marriage. This is indisputably alleged by many opposed to same-sex marriage. If that's the case, then by the same standards, shouldn't married heterosexual judges, or those "in a stable... relationship of the kind that could lead to marriage", be required to recuse themselves from such cases?

Perpetua said...

Hi Ray,

The argument being made is about (c) the judge knows that the judge ... has a financial ... or any other interest that could be affected substantially by the outcome of the proceeding.

I don't know of anyone alleging particular financial harm to married heterosexuals from same-sex marriage. I followed your link and saw nothing there about financial threat to married heterosexuals from same-sex marriage.

Of course, there has been financial harm to married heterosexuals who donated to the Yes on 8 campaign, due to the malicious hate of those against Prop 8. Examples include the owners of the Coyote restaurant in Los Angeles and the musical director in Sacramento.

Maybe a lawyer would say that a judge who had contributed to Yes on 8 should recuse him or her self because of the protests and boycott threats by No on 8 folk against those who contributed to Yes on 8. It seems a little unfair to the individual judge that because he or she was part of a group that was financially threatened, he or she have to recuse him or her self, but it seems fair to the country to maintain impartiality of judges.

Ray Ingles said...

I don't know of anyone alleging particular financial harm to married heterosexuals from same-sex marriage.

Here's one:

Second, society provides financial incentives to marry. These incentives come in many forms from tax breaks to family discounts at restaurants. Granting these same breaks to gays will increase the cost of providing the breaks, which will put pressure to reduce these breaks if not eliminate them entirely. Indeed, many libertarians have argued in favor of gay marriage precisely because it's hoped this would lead to the end of the government's subsidizing families. ("I'm single. Why should I pay a higher tax rate than a married person with the same income? The government has no business treating its citizens differently based on private choices. If you choose to marry, you should pay all the costs." Sound familiar?) Gay men, on average, have higher medical costs than do other men. Do you think that adding gay couples to your company's medical insurance plan will have NO affect on the cost of that plan over time? Think again. If insurance costs more, do you think we'll have less of it or more of it?

Ray Ingles said...

...there has been financial harm to married heterosexuals who donated to the Yes on 8 campaign, due to the malicious hate of those against Prop 8.

Okay, just so I'm clear: boycotts - not even civil disobedience like sit-ins, just 'not patronizing a business and publicly stating why' - are "malicious hate"?

Perpetua said...

Hi Ray,

Here's the link to a post I did on the boycott of the Coyote Restaurant. Please play the embedded video so you can see what was going on there. I guess this would be more in the lines of civil disobedience rather than a boycott. But it is not a "sit-in". It is a yell and scream obscenities in people's faces -in. I'm sure you will agree this is malice.

As you are form far out of state, I believe you genuinely were not aware of the intimidation we experienced here in California during the No on 8 campaign. Please watch the video and understand this was over a $100 donation to Yes on 8.

I actually did quite a few posts of the malice against those who could be identified as supporting Prop 8. It was happening up and down the state. The mayor of one city even had death threats and the FBI had to be called in merely because he said he supported Prop 8.

Ray Ingles said...

Be careful on the 'malice' bit. For example, no matter how a judge might rule on an abortion case, they would face 'malice' up to and including death threats, right? If the possibility of 'malice' were grounds for recusal, then no cases could be decided at all.

Ray Ingles said...

The Coyote Restaurant boycott was certainly overblown. However, there's a couple other considerations. First, when large groups are contributing in secret, frustration may well be taken out on identified contributors. Not right, but sadly human.

Secondly, there's Niven's Observation: "There is no cause so noble it will not attract some kooks." The civil rights struggle in the 1960s had plenty of misdirected and plain malicious anger, too. I'm from Michigan (another state that's passed a "Marriage Amendment", BTW) and the 1967 riots are well-remembered here.

Ray Ingles said...

Finally, there's the question of whether malice is an understandable reaction. (Not justified, but understandable.)

Let's say someone sincerely believes in Segregation, and contributes to a campaign for it. They don't have an animus against people outside their race, they just don't think they should interact. A whole lot of decent, kind, generous people sincerely believed in Segregation a few decades ago.

Is it understandable that someone might react with anger, even malice, to that? I'd still want the police to intervene in things like the Coyote Restaurant protest to handle actual cases of assault. But holding that against the movement would be like holding Scott Roeder against the anti-abortion movement.

Perpetua said...

Hi Ray,

The contributions to Prop 8 were public knowledge. Your link is to a an article after the Prop 8 campaign. The filing was in response to the malicious targeting of those who supported Prop 8. So, I'm not sure what your point was about people contributing in secret.

I'm also not sure what you mean about I should be careful using the word "malice". It seems obvious that what happened at the Coyote Restaurant and death threats are malicious.

Ray Ingles said...

I'm also not sure what you mean about I should be careful using the word "malice".

Not using the word malice - I meant justifying recusal based on potential malice. As I said, "If the possibility of [suffering] 'malice' were grounds for recusal, then no cases could be decided at all." (I just added the word 'suffering' to help clarify my point.)

The contributions to Prop 8 were public knowledge.

http://www.examiner.com/x-52997-San-Diego-LGBT-Issues-Examiner~y2010m6d15-California-Ethics-Commission-finds-Mormons-guilty-on-13-counts-of-late-Prop-8-campaign-reporting

Perpetua said...

Hi Ray,

OK, I get what you are saying about the National Organization for Marriage shielding its donors.

I was thinking maybe recusal would be required of someone who contributed to Yes on Prop 8 as they would have suffered being a potential target of the kind of malicious behavior we see in the Coyote video and that could sway their judgement. It doesn't seem fair to the individual judge, but, it makes sense for the community to get an unbiased ruling. Why do you object to that?

Ray Ingles said...

I get what you are saying about the National Organization for Marriage shielding its donors.

That article described how the LDS church also withheld contribution information, too.

I was thinking maybe recusal would be required of someone who contributed to Yes on Prop 8 as they would have suffered being a potential target of the kind of malicious behavior we see in the Coyote video and that could sway their judgement.

The problem with that is that such things could happen in any case. Consider my abortion example. There are extremists on both sides of the issue.

Say a judge has contributed to National Right to Life, and then is called on to adjudicate the legality of abortion. They might suffer 'malicious behavior' from pro-choice activists. Or a judge has contributed to NARAL, and is called up to such a case. They might suffer 'malicious behavior' from pro-life activists.

Heck, let's face it - there are some real nutballs on both sides. Taken to its logical conclusion, no matter how a judge rules they face the risk of 'malicious behavior' up to and including death threats. At that point, you could say that any judge would have to recuse themselves...

Perpetua said...

Hi Ray,

I have not heard of anti-abortionists going after individual contributors to Planned Parenthood. I think they just target the abortion doctors.

Similarly, I have not heard of NARAL identifying and targeting for harassment individual contributors to National Right to Life.

I actually know of no political situation comparable to what happened with the targeting of individual donors to Prop 8. It was unique and amazing within my life experience.

Ray Ingles said...

I have not heard of anti-abortionists going after individual contributors to Planned Parenthood.

In terms of protests and demonstrations, it's not common, no, but it happens. But 'going after' contributors is very common in terms of denunciations and boycotts. Just search for "pro-life boycott". For that matter, the AFA has organized boycotts of companies like Ford just for advertising in 'gay' magazines.

Perpetua said...

Hi Ray,
Well, please give more examples because the one you give is a publicly owned corporation. People against Prop 8 were going after individuals and small family owned businesses. By small family owned business, I mean even an ice cream shop in Sacramento.