Ninth Circuit To Consider Prop 8 Appeal Alongside Challenge to Walker's Impartiality Because He Is Gay

Posted by Chris Geidner
November 21, 2011 8:34 PM |

The U.S. Court of Appeals for the Ninth Circuit will be deciding the appeal of U.S. District Court Judge Vaughn Walker's ruling striking down Proposition 8 as unconstitutional alongside the appeal of U.S. District Court Judge James Ware's ruling denying the Proposition 8 proponents' attempt to have Walker's ruling vacated because they argued he was biased because he is gay and has a partner.

Thumbnail image for Thumbnail image for ca9.pngThe decision was announced in a one-sentence order issued this afternoon in granting a request from the proponents that the matters be consolidated.

On June 14, Ware ruled that the Aug. 4, 2010, decision by now-retired Judge Walker could not be vacated -- as the proponents of Proposition 8 argued in court on June 13 -- because Walker is gay and has a partner.

This past week, an opinion by the California Supreme Court asserting that the proponents of an initiative have the authority under state law to bring an appeal when state officials fail to do so put the underlying appeal of Walker's decision back in the hands of the Ninth Circuit. Although the federal appeals court is yet to decide whether the proponents have standing to bring their appeal and have called for additional briefing on the matter due by Dec. 2, lawyers for the plaintiffs challenging Proposition 8 say the appeals judges are likely to find the proponents have federal standing in light of the state court's opinion.

With today's order, all of the questions relating to the validity and merits of the constitutionality of Proposition 8 could be decided by the Ninth Circuit in one decision, allowing for the most clean appeal possible to the U.S. Supreme Court.

The only ancillary matter still unconsolidated is the question of whether the tapes of the Proposition 8 trial conducted by Walker in January 2010 and concluded that June can be released to the media and public. The Ninth Circuit oral arguments on the appeal of that question will be held at 2:30 p.m. Pacific Time Dec. 8.

Read the order: order_consolidating_cases.pdf

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