In an April 28 order, Judge James Ware instructed Walker to appear in court to answer why he should not be required to return to the court videotapes he made of the Proposition 8 trial proceedings last year.
But there will be another matter on the agenda at the June 13 hearing: a motion from Yes on 8 Proponents asking Ware to vacate Walker’s decision last August that the same-sex marriage ban violates the federal constitution.
There is no indication whether Walker will be expected to provide any opinion concerning that motion, even though it involves a question of whether he ever intended to marry his same-sex partner of 10 years when he accepted the job of presiding over the Perry v. Schwarzenegger case (now known as Perry v. Brown).
Yes, there will be a lot of opportunity for drama at the hearing.
But attorneys who would like to see Proposition 8 ultimately struck down — presumably at the U.S. Supreme Court level — adamantly insist they see virtually no likelihood that Judge Ware will vacate Walker’s decision.
“This is an absurd, desperate, and patently offensive motion,” said Theodore Boutrous Jr., one of the lead attorneys on a legal team headed by conservative attorney Ted Olson and his liberal comrade David Boies. “We are glad Chief Judge Ware has expedited the proceedings and look forward to responding to it.”
Yes on 8 attorneys had requested a hearing date of July 11, but on April 27, Ware said he would expedite the motion to vacate to June 13. That same day, April 27, the 9th Circuit panel that heard Yes on 8’s appeal in December of Judge Walker’s decision, tossed two other sideshow motions back to Judge Ware.
Both concern the videotapes Judge Walker produced for his own use in studying the evidence at trial to reach his decision. One motion, from Yes on 8, demands that Walker return the videotapes to the district court and have them sequestered; the other, from the Olson-Boies team, seeks to have the videotapes released publicly.
The conflict over the videotapes was just a minor sideshow until Judge Ware instructed Judge Walker to appear in court.
“All participants in the trial, including the presiding judge (now retired), who are in possession of a recording of the trial proceedings, are ordered to appear at the hearing on June 13, 2011, to show cause as to why the recordings should not be returned to the Court’s possession,” stated Judge Ware’s order.
Yes on 8 filed its motion to retrieve and sequester the videotapes after they learned that Walker used a three-minute clip from the trial during a recent speech concerning the history of cameras in the courtroom. Walker is an advocate for allowing cameras in the courtroom, particularly at the district court level, where a factual record for a case is created.
No one is yet predicting how Ware will rule on that issue. But, for a number of reasons, the impact of that ruling is relatively minor. A transcript of the three-week-long trial and its closing argument are already public record.
The motion to vacate Walker’s ruling is both more consequential and more dramatic. It is almost certainly the first time a legal team has sought to disqualify any judge –state or federal— because the judge was in a relationship with the partner of the same sex. (This reporter has been covering LGBT legal cases for more than 25 years and cannot recall one instance.)
Gay legal activists agree with Boutrous that the motion to vacate is a “desperate” long-shot tactic by Proposition 8 proponents. Jon Davidson, legal director for Lambda Legal, characterized it as a “Hail Mary” tactic.
And Yes on 8 has reason to throw a “Hail Mary.” Their appeal of Walker’s decision to the 9th Circuit is in jeopardy over whether there is any California law that authorizes them to appeal a decision that the elected representatives of the people — the governor and attorney general — had chosen to not to appeal.
The California Supreme Court is expected to hear arguments on that question in September. If the court rules — and the 9th Circuit accepts — that Yes on 8 has no standing, Walker’s ruling will stand and same-sex couples may again obtain marriage licenses in California.
Thus, if the Walker decision stands, Yes on 8 hopes its motion to vacate will kill it.
But Yes on 8 would likely characterize its motion as more of a late flag, than a Hail Mary, and they blame Walker.
Before and during the trial last year, Walker never publicly disclosed he was gay or in a relationship with a man. But the San Francisco Chronicle, in a well-publicized political column published a week after the testimony portion of the trial ended, reported that it was an “open secret” in San Francisco that Walker is gay. It quoted a fellow judge — a “friend and confident” who it did not identify himself for the report — as saying Walker did not “conceal” his private life.
And, having retired from the bench in February, Walker, 67, hosted a sort of farewell briefing April 6 with a group of six local court reporters. One of the reporters asked Walker about the report in the Chronicle that he was gay.
Walker, according to reports from several of those at the briefing, acknowledged he is gay and that he had been in a relationship for the past 10 years with a man. Asked whether he should have recused himself from the Perry case, Walker stated emphatically that he did not believe he should have.
“It would not be a positive development if you thought that a judge’s sexuality, ethnicity, national origin or gender would prevent a judge from handling a case – that’s a very slippery slope,” he said, according to one published account, in the Daily Journal, a legal newspaper in San Francisco.
Coming in Part Two: The U.S. Code says a judge must recuse himself if he has any interest in the outcome. But does Judge Walker’s 10-year relationship with a man amount to proof that he had some personal interest in the outcome?