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 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.

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."

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