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Judge Waddoups Also Recuses Himself from SCO v. IBM ~ pj
Saturday, December 10 2011 @ 12:14 PM EST

Three judges have now recused themselves from the case of SCO v. IBM. Yes, friends, Judge Waddoups has now recused himself too, following earlier recusals by Judge Dale Kimball, the original judge presiding over the case, then Judge Tena Campbell, both now Senior Judges:
12/09/2011 - 1103 - ORDER OF RECUSAL-Judge Clark Waddoups recused. Case reassigned to Judge David Sam for all further proceedings. Signed by Judge Clark Waddoups on 12/9/11. (jmr) (Entered: 12/09/2011)
Judge David Sam gets the hot potato now. I can't tell if the problem is that nobody seems eager to take this case or if it's just that Utah is a small and narrow world, so intertwined that it's hard to find an impartial judge.

There weren't a lot of choices. In fact, the only judges left, other than the Senior Judges, which Judge Sam is, were Judges Ted Stewart and Dee Benson. Neither seems appropriate.

Judge Ted Stewart can probably be crossed off the ideal list because of his having been the second judge on SCO v. Novell. He's ideal in my eyes, of course, but if they meant to put the cases before the same judge, that would have happened long ago. If you recall, Novell asked that both cases be heard by one judge, and SCO opposed, and Judge Stewart sided with SCO on that motion. So it would be ironic indeed if it had landed in his lap.

That leaves only one judge other than the Senior Judges, who are essentially part-timers -- Judge Dee Benson. Since he used to work for Sen. Orrin Hatch, whose son represents SCO, perhaps he might not feel he should preside either. Reportedly, the two still talk, even about cases. But then, it'd be hard to find a judge in Utah who doesn't have some ties to Senator Hatch. Benson used to be a partner at Snow Christensen, the firm that represented Caldera against Microsoft, and he was the presiding judge on that case, among other interesting assignments, so maybe he doesn't much worry about such things. After all, Ryan Tibbitts, who later became general counsel for SCO, was also at Snow Christensen, representing Caldera [PDF], and Benson didn't recuse himself. Benson also was briefly with the same firm that Judge Waddoups came from. And Benson also is the judge who ordered the sealed documents turned into toilet paper on Canopy's request, if you recall. Judging from this anecdote, I gather he doesn't much care what other courts order. That might have come in handy.

So, Judge Sam it is. He has a reputation for fairness and for running an informal courtroom. He sounds like a sensitive person, who cared for his wife for three years while she was dying of Lou Gehrig's disease, poor thing. He called it his greatest honor. How can you not be drawn to a man like that?

He's been known to show mercy in criminal and civil cases, even in the face of criticism. He did not recuse himself from the Olympics bribery case after the appellate court overturned his first ruling tossing the case out, and then ruled essentially the same way over again, without letting it go to the jury. Later, the jurors were polled and they apparently agreed with his ruling, saying they would have acquitted.

Out West, that's how they grow 'em. Independent. It's got its good side, and its bad.

But once again, we see Judge Sam's heart. He told the defendants when he threw the case out, "I can only imagine the heartache, the disappointment, the sorrow that you and your loved ones suffered through this terrible ordeal. My hope is that you will now be appropriately recognized and honored for your efforts.”

I can't bring myself to criticize an empathetic heart, and personally I prefer a judge who can feel. But a judge who is too willing to overlook matters can go too far, and the 10th Circuit Court of Appeals felt that is what happened in this more recent case [PDF] involving charges of racism, and rather blatant racism, judging from the article, but which did not seem to reach his normally empathetic nature. And he was the original judge in the case about the crosses in Utah along the highway, which he thought were OK, and he was not only overruled by the appeals court, viewing the crosses as unConstitutional, but the US Supreme Court let the appellate decision stand, which means they saw no reason to contradict the appellate court's decision. One can think too local.

Here's an interesting remark he made in a speech in 2008:

A few people make things happen; a lot of people watch things happen and the overwhelming majority of people do nothing.
My guess is he sees himself in the first category, in that he was willing to stand up very boldly to the Department of Justice in the Olympics case. There aren't a lot of judges willing to do a thing like that. Here's what the two men on trial said right after they were acquitted:
Welch told reporters shortly after the decision that the government's five-year effort to get a conviction in the scandal surrounding Salt Lake's successful bid for the 2002 Winter Games had tested his faith in the legal system.

"Last night was probably the longest night of my life, and that five minutes before the judge (Friday) the sweetest," an emotional Welch said. "When you listen to the words of the judge today, our system is a great system and it works. I just thank God for it, and for people like Judge Sam."

Johnson, too, was grateful that the judge stood up to the government.

"A lot of people could have said, 'This is wrong, what they're doing to these two people.' They were all afraid. Judge Sam did it before and and he did it again today."

One footnote. Max Wheeler, who represented one of the defendants in the Olympics case, represented Caldera in the Caldera v. Microsoft case. It's a small, small world, Utah.

I don't quite know what to expect. One can't predict an independent thinker. But I hope that it all doesn't mean that he'll have undue mercy on SCO, but it is clearly his bent to be kind where he feels he can be. Since I get the feeling that one of the things he considers is what kind of person is standing accused before him in his courtroom, what their record is in the local community, I hope he knows the background of some of the players in the long-playing SCO saga, and that he is not misled by surface appearances.

Here's the order of recusal, as text:

**********************

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

____________________

THE SCO GROUP, INC.,

Plaintiff,

vs.

INTERNATIONAL BUSINESS
MACHINES CORPORATION,

Defendant.

____________________

ORDER OF RECUSAL

Case No. 2:03-cv-294

___________________

I recuse myself in this case, and ask that the appropriate assignment card equalization be drawn by the clerk’s office.

DATED this 9th day of December, 2011.

BY THE COURT:

[signature]
Clark Waddoups
United States District Judge


  


Judge Waddoups Also Recuses Himself from SCO v. IBM ~ pj | 61 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Poor SCO
Authored by: Anonymous on Saturday, December 10 2011 @ 12:25 PM EST
Can they not catch a break? All they want is their day in court.</sarcasm>

[ Reply to This | # ]

Corrections here
Authored by: SilverWave on Saturday, December 10 2011 @ 12:33 PM EST
:-|

---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions

[ Reply to This | # ]

Off Topic Here
Authored by: SilverWave on Saturday, December 10 2011 @ 12:33 PM EST
:-)

---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions

[ Reply to This | # ]

News Picks Here
Authored by: SilverWave on Saturday, December 10 2011 @ 12:34 PM EST
:-D

---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions

[ Reply to This | # ]

Comes Stuff Here
Authored by: SilverWave on Saturday, December 10 2011 @ 12:35 PM EST
>:/

---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions

[ Reply to This | # ]

Don't Forget Paul Cassell
Authored by: sk43 on Saturday, December 10 2011 @ 02:14 PM EST
Cassell was the first judge assigned, and he started the recusal parade, handing
it to Judge Kimball after signing all of one Court document.

So that's four.

[ Reply to This | # ]

SCO - Running out of...
Authored by: complex_number on Saturday, December 10 2011 @ 02:30 PM EST
Judges
Money

How about Time.

When will it be time for Chapter 7?
It is surely well overdue.
Is it time for Cahn to recluse himself?


---
Ubuntu & 'apt-get' are not the answer to Life, The Universe & Everything which
is of course, "42" or is it 1.618?

[ Reply to This | # ]

Will They Last?
Authored by: sproggit on Saturday, December 10 2011 @ 02:39 PM EST
SCO were pretty much out of funds by the time that they sold the Unix business
to Unxis earlier this year.

We also know that their Trustee and his legal firm have been firing off expenses
claims to the Bankruptcy court on a monthly basis, and that these have all been
paid.

Obviously the sale of the Unix business would have gone so far as to swell the
litigation coffers a little further (perish the thought that either Judges Cahn
or Gross would have the decency to suggest that some of the proceeds of the sale
go to the creditors!) but there has to be limits.

Do we have any idea of the current burn rate of the corpse, sorry, the skeleton,
that is whatever this outfit calls itself these days, and of what's left in the
kitty? Instinct tells me that we're still a way away from seeing them run out of
funds, but given the glacial pace with which this case seems to be wandering
along, and the apparent love of motion practice, I have to wonder if they are
going to survive to see the inside of a court room?

If that becomes uncertain, do we suppose that Ralph Yarro and/or other
interested parties might be willing to stump up even more cash in pursuit of the
dream of beellions? Is there a point at which this caves?

One thought - the idea of further cash from Pipe Fairies seems unlikely... Not
only did Microsoft release Vista in the intervening years, but they have
released Windows 7 as well, and are already discussing Windows 8. Sun, of
course, were swallowed by Oracle, and are already embroiled up to their armpits
in our other spectator sport, Oracle USA vs Google.

Serious question for the Legal Beagles... Based on the filings that we've seen
in this recent round of "SCO" vs IBM... what's the chances of IBM just
stringing this out with a flurry of motion practice until SCO are out of funds?

[ Reply to This | # ]

Maybe...
Authored by: Anonymous on Saturday, December 10 2011 @ 02:52 PM EST
Maybe, just maybe, they're recusing themselves because they really don't want to
have to deal with SCO? If that were true, who could blame them? I wouldn't
want to deal with SCO if I didn't have to.

[ Reply to This | # ]

Thank goodness the Novell already won
Authored by: Anonymous on Saturday, December 10 2011 @ 06:28 PM EST
I don't remember ever hearing about this judge before, but what PJ wrote concerns me. He sounds like the sort of conservative who distrusts governments and large businesses, which would play against IBM. He also sounds like he would be quick to decide that FOSS smacks of communism, dangerous ideas, and subversive counter-cultural elements and surely people involved in things like that would steal code.

PJ said:
But once again, we see Judge Sam's heart. He told the defendants when he threw the case out, "I can only imagine the heartache, the disappointment, the sorrow that you and your loved ones suffered through this terrible ordeal. My hope is that you will now be appropriately recognized and honored for your efforts.”
Do we, or was he going out of his way to make the Justice Department plus anyone who didn't side with the defendants seem evil? It's hard to know. In the case where PJ said he "showed mercy", it seems that he failed to empathize with the victims. Kidnapping children from their parents in order to sell them "cries out for a sentence that's restorative rather than punitive?" I think you can get jail time for a lot less than that. I wonder how much racism was involved in that decision.

OTOH, this is nothing but initial impressions on my part, so I could be very wrong. Fortunately, I think things are so heavily tilted in IBMs favor now that even a biased judge couldn't cause too many problems.

One aspect of his personality that would probably play in IBM's favor is that he would probably resent being played even more than most judges. He would tend to cut through BSF's games, as long as he sees them for what they are. He also would not tolerate people or companies trying to leech off of others very well. If he sees SCO that way, then he probably won't have much mercy for them.

[ Reply to This | # ]

Nobody wins
Authored by: Ian Al on Sunday, December 11 2011 @ 04:57 AM EST
You don't win pass the parcel until the music stops.

Sequels are often not very satisfying. I think the same applies here with
'Return of the Dummy'.

As far as 'The Undead' is concerned, it is a Well Known Fact that litigation
cannot be reduced to dust. Its fate is to roam, zombie-like, through the
corridors of the court, making judges blanch and run for their blank recusal
papers.

Unless, of course, some judge takes it out back and shoots it with a silver
bullet. Go on, judge. Take your best shot!

---
Regards
Ian Al
Software Patents: It's the disclosed functions in the patent, stupid!

[ Reply to This | # ]

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