Judge Walker Spoke Up Too Late

John C. Eastman, the Henry Salvatori Professor of Law & Community Service and former Dean at Chapman University School of Law, criticized Judge Walker for not recusing himself from presiding over the Prop 8 trial, now that Walker has finally announced that he is in a long-term relationship with another man.

Recusal is required by the code of judicial conduct if "the judge's impartiality might reasonably be questioned," such as when the judge knows that he "has a financial ... or any other interest that could be affected substantially by the outcome of the proceeding."

Not his sexual orientation, which alone would not require recusal, but the possibility that he could directly benefit from his ruling, raised the prospect that recusal may have been warranted. If the relationship was such that it gave Walker a financial or other interest in the outcome of the proceeding -- and the ability to marry would certainly qualify -- recusal would be mandatory and non-waivable.

This is very important. People who don’t read the piece carefully or don't care about being honest in their criticism of Eastman's point write as though Eastman says Walker should have recused himself because he is a homosexual. What Eastman actually wrote was that Walker should have recused himself because he could have financially benefitted from the decision.

What if a judge was also a paid minister at a church? That judge should not be allowed to preside over a case involving whether or not that church should lose its tax exempt status. Or, if a judge owned a gun store, the judge shouldn't be able to rule over a case about imposing fees on gun sales. Same-sex couples argue that state marriage licenses will financially benefit them, so how can any of the same deny Walker could have financially benefitted from his decision?

Walker's admission requires that his decision in the case be vacated. He is either a direct beneficiary of his ruling in the case, or a person with a close-enough personal interest in the case that his impartiality might reasonably have been questioned if the required disclosures had been made.

So how would that be done?

Gov. Jerry Brown and state Attorney General Kamala Harris (successors in the case to Gov. Arnold Schwarzenegger and Attorney General Brown, respectively) should file the motion post haste.

Yeah, I'm sure they'll get right on it.

If they remain derelict in their duty to the more than 7 million people of California who voted to adopt Proposition 8, as Brown was last fall when he refused to file a notice of appeal, then the proponents of the initiative, who intervened in the trial court to defend the initiative, should file the motion themselves.

This is an interesting twist.