Judge may recuse himself in Kentucky amendment case

BY admin

December 17 2004 1:00 AM ET

A judge who disclosed he contributed to a group opposed to Kentucky's constitutional amendment banning same-sex marriage has been asked to remove himself from hearing a lawsuit challenging the amendment.

Franklin County circuit judge William Graham told lawyers in the case Tuesday that he had made a modest contribution to the Kentucky Fairness Alliance. He told the lawyers he was giving them time to decide whether to seek to disqualify him. Graham said Wednesday night that he made a donation to the Fairness Alliance two years ago. He said he couldn't remember the amount.

Bryan Beauman, a lawyer for Secretary of State Trey Grayson, who is named as a defendant because he must certify the amendment, said in a statement Wednesday night: "We certainly appreciate the court's candor and disclosure.... We have the utmost admiration and respect for him as a jurist. However, due to the appearance of this situation, we have asked the judge to recuse himself from this case."

The Kentucky Fairness Alliance, a gay rights organization, fought the amendment that voters approved November 2 and is supporting the suit that was filed November 16 seeking to have it declared void. One of three plaintiffs in that suit, Charlotte Wood of Lexington, is an Alliance board member.

Graham said Wednesday night that when he read the complaint in the lawsuit, he noticed that one of the plaintiffs referred to herself as a board member of the group. The Kentucky Code of Judicial Conduct says a judge "shall disqualify himself in a proceeding in which the judge's impartiality might reasonably be questioned."

The attorney general's office and the Kentucky Family Foundation, which supported the amendment, have been allowed to join in defense of the suit.

Kent Ostrander, the Family Foundation's executive director, said the group is considering Graham's disclosure but hasn't decided whether it will act. "We have a question about where we go from here," said Ostrander, who led the Vote Yes for Marriage Coalition.

Assistant Attorney General Brent Irvin indicated last night that his office likely won't seek Graham's disqualification. "Our office's position is that Judge Graham has historically been a very fair judge, and we would not do anything that would impugn his ability to be impartial," Irvin said.

State senator Vernie McGaha, who sponsored the legislation that put the constitutional amendment on the ballot, said Graham should decide on his own whether he needs to step aside. "He being a professional person, he would know what he has to recuse himself for," McGaha said.

William Rambicure, who filed the lawsuit seeking to void the amendment on behalf of Wood and two other plaintiffs--Willie Thomas Boddie of Frankfort and the Reverend Albert M. Pennybacker of Lexington--said he doesn't think Graham's contribution "automatically renders him unfair or partial." Rambicure noted that the Kentucky Fairness Alliance isn't a party in the case.

Graham didn't say he would disqualify himself even if one of the parties asks him to do so, Rambicure said. Graham made his disclosure after a hearing on a motion to dismiss the case, lawyers said. Graham asked the lawyers to notify him by phone if their clients decided to pursue the matter. He didn't set a deadline.

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