Bench Memos

NRO’s home for judicial news and analysis.

Motion to Vacate Walker’s Anti-Prop 8 Judgment for Failure to Recuse


Prop 8 proponents filed today a compelling motion to vacate former district judge Vaughn Walker’s anti-Prop 8 judgment on the ground that Walker improperly failed to recuse himself from the case. (The motion, available here, which I’ll link to when I find an online version, elaborates the argument I sketched in this NRO essay last week.) Here (and continuing below the fold) is a slightly shortened version of its introduction:

Fundamental to the integrity of the judicial function, and therefore to public confidence in the courts, is the judiciary’s strict fidelity to the ancient maxim that “no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome.”  This principle is expressed in the Code of Judicial Ethics and is codified in federal law by statutes requiring that a judge recuse himself whenever he has an “interest that could be substantially affected by the outcome of the proceeding,” 28 U.S.C. § 455(b)(4), or more generally, in any other circumstance in which “his impartiality might reasonably be questioned,” id., § 455(a).

The question presented in this case is whether gay and lesbian couples have a federal constitutional right to have their relationships recognized as marriages, notwithstanding California’s state constitutional provision, adopted by the People through the initiative known as Proposition 8, reaffirming the traditional definition of marriage as a relationship between a man and a woman.  Plaintiffs sought and obtained from this Court an injunction prohibiting California officials statewide from enforcing Proposition 8.  The injunction effectively requires California officials to issue marriage licenses to any and all gay and lesbian couples who wish to marry and are otherwise eligible.

The district judge who issued this judgment, retired Chief Judge Vaughn R. Walker, has now disclosed to the press on April 6, 2011, that he is gay and that he has been in a committed relationship for more than 10 years.… 

Given that Chief Judge Walker was in a committed, long-term, same-sex relationship throughout this case (and for many years before the case commenced), it is clear that his “impartiality might reasonably [have been] questioned” from the outset.  28 U.S.C. § 455(a).  He therefore had, at a minimum, a waivable conflict and was obligated either to recuse himself or to provide “full disclosure on the record of the basis for disqualification,” id, § 445(e), so that the parties could consider and decide, before the case proceeded further, whether to request his recusal.  His failure to do either was a clear violation of Section 455(a), whose “goal … is to avoid even the appearance of partiality.”  Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 860 (1988). 

But it also must be presumed that Chief Judge Walker had a nonwaivable conflict as well.  For if at any time while this case was pending before him, Chief Judge Walker and his partner determined that they desired, or might desire, to marry, Chief Judge Walker plainly had an “interest that could be substantially affected by the outcome of the proceeding.”  28 U.S.C. § 455(b)(4).  Indeed, such a personal interest in his own marriage would place Chief Judge Walker in precisely the same shoes as the two couples who brought the case. 

Such a clear and direct stake in the outcome would create a nonwaivable conflict, and recusal would have been mandatory.  Chief Judge Walker thus had a duty to disclose not only the facts concerning his relationship, but also his marriage intentions, for the parties (and the public) were entitled to know whether his waivable conflict was actually a nonwaivable conflict mandating his disqualification.  Only if Chief Judge Walker had unequivocally disavowed any interest in marrying his partner could the parties and the public be confident that he did not have a direct personal interest in the outcome of the case in violation of Section 455(b)(4).  Because he did not do so when the case was assigned to him, and has not done so since, it must be presumed that he has an interest in marrying his partner and therefore was in fact the “judge in his own case.”

In light of Chief Judge Walker’s undeniable violation of Section 455(a) and his presumed violation of Section 455(b)(4), the only responsible and just course is to vacate the judgment entered in this case.  Indeed, the Supreme Court in Liljeberg held that one of the key factors that must be considered in deciding whether a Section 455 conflict disclosed after judgment requires vacatur is “the risk of injustice to the parties in the particular case,” and the Court undertook “a careful study of [a lower court judge’s] analysis of the merits of the underlying litigation” to conclude that “there [was] a greater risk of unfairness in upholding the judgment … than there is in allowing a new judge to take a fresh look at the issues.” 

The course of proceedings in this case has been marked by a number of irregular and unprecedented rulings, both procedural and substantive, that give gravely disquieting force to the “appearance of partiality” created by the belated disclosure of Chief Judge Walker’s long-term, committed relationship.  For example:

·     Before the trial even began, the Ninth Circuit issued an extraordinary writ of mandamus to overturn Chief Judge Walker’s order requiring Proponents to turn over confidential internal communications concerning the initiative campaign.  Perry v. Schwarzenegger, 591 F.3d 1147, 1152 (9th Cir. 2009).

·     Also before trial commenced, the Supreme Court of the United States issued an emergency stay, pending the filing of a mandamus petition with the Court, enjoining Chief Judge Walker from video recording and disseminating the trial proceedings to other federal courthouses.  The Court found that Chief Judge Walker had “ ‘so far departed from the accepted and usual course of judicial proceedings … as to call for an exercise of this Court’s supervisory power,’ ” and that he had violated the “proper rules of judicial administration … relat[ing] to the integrity of judicial processes.”  Hollingsworth v. Perry, 130 S. Ct. 705, 713 (2010). 

·     Chief Judge Walker’s decision recognizing a right under the Federal Constitution for same-sex couples to have their relationships recognized as marriages conflicts with the judgment of every State and federal appellate court to consider the validity of the traditional opposite-sex definition of marriage under the Federal Constitution—including both the United States Supreme Court and the Ninth Circuit—all of which have upheld that definition.  Chief Judge Walker did not cite, let alone address, any of these prior decisions. 

·     Chief Judge Walker peremptorily held that gays and lesbians are a suspect class under the Federal Constitution even though all eleven Circuit Courts of Appeals to consider the issue (including the Ninth Circuit) have repeatedly and squarely held to the contrary.  Chief Judge Walker did not even cite, let alone address, any of these contrary precedents.

·     Despite the unprecedented nature of his ruling and its sharp conflict with the uniform judgment of appellate courts throughout the Country, Chief Judge Walker refused to stay his judgment pending appeal.  As a result, the Ninth Circuit was forced to issue such a stay. 

·     Shortly before his retirement from the bench, Judge Walker publicly displayed an excerpt from the video recording of the trial in this case in violation of (i) his order sealing the recording; (ii) this Court’s Rule 77-3; (iii) the Supreme Court’s decision in this case; (iv) the policy of the Judicial Conference of the United States and the Judicial Council of the Ninth Circuit; and (v) his own solemn assurance to Proponents that the trial recordings would be used solely in chambers. 

The unprecedented, irregular, and/or peremptory nature of these rulings is difficult – very difficult – to take as the product of an objective, impartial judicial mind.  And while “judicial rulings alone almost never constitute a valid basis for a bias or partiality motion,” the rulings summarized above are nevertheless highly relevant to the inquiry under Section 455(a).  The test is “ ‘whether a reasonable person with knowledge of all the facts would conclude that the judge’s impartiality might reasonably be questioned,’” thus requiring recusal under Section 455(a).  A disinterested observer would necessarily consider the uniform train of extraordinary and unprecedented rulings favoring the gay and lesbian plaintiff couples and ultimately creating an unprecedented federal constitutional right for them to have their relationships recognized as marriages to be relevant facts in deciding whether Chief Judge Walker’s own long-term same-sex relationship, and the fact that he did not disclose the relationship prior to entering judgment, gives rise to a reasonable question as to Chief Judge Walker’s impartiality. 

These extraordinary rulings likewise bear directly—indeed, dispositively—on the question whether vacating the judgment invalidating Proposition 8 is necessary to avoid a genuine risk of unfairness to Proponents of that measure (and to the People of the State who enacted it by initiative) and to avoid “the risk of undermining the public’s confidence in the judicial process.”  We respectfully submit that the judgment must be vacated in order to ensure that “the administration of justice … reasonably appear to be disinterested as well as be so in fact.” 

It is important to emphasize at the outset that we are not suggesting that a gay or lesbian judge could not sit on this case.  Rather, our submission is grounded in the fundamental principle, reiterated in the governing statute, that no judge “is permitted to try cases where he has an interest in the outcome.”  Surely, no one would suggest that Chief Judge Walker could issue an injunction directing a state official to issue a marriage license to him.  Yet on this record, it must be presumed that that is precisely what has occurred.  At a bare minimum, “[r]ecusal is required” because former Chief Judge Walker’s long-term committed relationship, his failure to disclose that relationship at the outset of the case, his failure to disclose whether he has any interest in marriage should his injunction be affirmed, and his actions over the course of this lawsuit give rise to “a genuine question concerning [his] impartiality.” 

We deeply regret the necessity of this motion.  But as the Supreme Court emphasized earlier in this very case, “[b]y insisting that courts comply with the law, parties vindicate not only the rights they assert but also the law’s own insistence on neutrality and fidelity to principle.…  If courts are to require that others follow regular procedures, courts must do so as well.”  The “regular procedure” here requires adherence to the principles that a judge may not sit on a case when “his impartiality might reasonably be questioned,” 28 U.S.C. § 455(a), and certainly not when he has an “interest that could be substantially affected by the outcome of the proceeding,” 28 U.S.C. § 455(b)(4).  Proponents ask only that these principles be applied faithfully and neutrally here as in any other case.


Sign up for free NRO e-mails today:

Subscribe to National Review