Ruth Institute Blog

More news sent to me by Leo:

Originally I dismissed the idea of recusal by Judge Walker, but this piece makes a strong legal case.

http://articles.sfgate.com/2010-08-11/opinion/22213940_1_parties-judge-walker-new-trial
It reads in part

The political philosopher John Locke noted in his Second Treatise on Civil Government that “it is unreasonable for men to be judges in their own cases (because) self-love will make men partial to themselves and their friends.” That sentiment, undoubtedly true, is actually codified in federal law. 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.

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.

Given the high-profile nature of this case, the threat to the public’s confidence in the judicial process is particularly acute. Judge Walker has unilaterally neutered the votes of more than 7 million Californians. A contentious step under the best of circumstances, such a decision should only be rendered, if at all, by a judge whose impartiality is beyond reproach. Judge Walker’s, unfortunately, is not.

John C. Eastman is a law professor and former dean at Chapman University School of Law. He is also the founding director of the Center for Constitutional Jurisprudence.