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Prop 8 Proponents’ Brief on Appeal of Order Denying Motion to Vacate Anti-Prop 8 Judgment


In mid-June, Judge James Ware denied Prop 8 proponents’ motion to vacate former district judge Vaughn Walker’s anti-Prop 8 judgment on account of Walker’s failure to recuse. (I critiqued Ware’s ruling here and here.) Yesterday, Prop 8 proponents filed their opening brief in their Ninth Circuit appeal of Ware’s ruling. They argue powerfully that Ware’s ruling is “at war with clear statutory text, uniform precedent, and common sense” and that Ware “transformed [a judge’s] legal duty to disclose information bearing directly on the judge’s potential impartiality into a legal duty to conceal such information” (emphasis in original).

The remainder of this post, below the fold, is the introduction to Prop 8 proponents’ brief. (At some point, an online link to the full brief should be available here.)


Fundamental to the integrity of the judicial function, and therefore to public confidence in the courts, is strict fidelity to the ancient maxim that “[n]o man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.”  The Federalist No. 10, at 74 (James Madison) (Clinton Rossiter ed., 2003). The Supreme Court insists on scrupulous compliance with this principle as a sine qua non of due process of law.  See, e.g., Aetna Life v. Lavoie, 475 U.S. 813 (1986).  Indeed, to avoid “even the appearance of impropriety,” Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 865 (1988), federal law requires a federal judge to “disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”  28 U.S.C. § 455(a).  And the classic instance in which a judge’s impartiality might reasonably be questioned is specified in Section 455(b)(4): whenever the judge has “any . . . interest that could be substantially affected by the outcome of the proceeding.”  Id.§ 455(b)(4).  Both of these provisions were violated in this case, and the violation requires that the district court’s judgment be vacated.

The underlying constitutional question presented in this case is whether gay and lesbian couples have a right under the Fourteenth Amendment 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 the union of a man and a woman.  Plaintiffs allege in their complaint that they “are gay and lesbian residents of California who are involved in long-term, serious relationships with individuals of the same sex . . . .”  ER 578.  At the heart of their constitutional challenge is their claim that they “are similarly situated to heterosexual individuals for purposes of marriage because, like individuals in a relationship with a person of the opposite sex, they are in loving, committed relationships.”  ER 524.  Indeed, Plaintiffs have consistently emphasized that the marital right they seek to vindicate is that of “two individuals of the same sex who have spent years together in a loving and committed relationship.”  ER 546.  The district court invalidated Proposition 8 and entered an injunction purporting to require California officials statewide to issue marriage licenses to any and all same-sex couples who wish to marry and are otherwise eligible.

Former Chief Judge Vaughn R. Walker presided over this case until his retirement in February 2011.  Shortly thereafter, on April 6, he disclosed to the press that he is gay and has been in a committed same-sex relationship for ten years.  Dan Levine, Gay Judge Never Thought To Drop Marriage Case, Reuters, Apr. 6, 2011, available at (last visited Sept. 30, 2011).  The published reports of former Judge Walker’s statements to the press note that he had refused to comment on these issues while the case was before him.  Id.; see also Phillip Matier, et al., Judge Being Gay a Nonissue During Prop. 8 Trial, San Francisco Chronicle, Feb. 7, 2010, available at (last visited Sept. 30, 2011).  The published reports do not address the question whether former Judge Walker and his partner have, or have had, an interest in marrying should the injunction he issued be upheld on appeal.

Given that Judge Walker was in a long-term, same-sex relationship throughout this case (and for many years before the case commenced), he was, in Plaintiffs’ own words, “similarly situated to [Plaintiffs] for purposes of marriage.”  ER 524.  And it is entirely possible—indeed, it is quite likely, according to Plaintiffs themselves—that Judge Walker had an interest in marrying his partner and therefore stood in precisely the same shoes as the Plaintiffs before him.


Disqualification under § 455(a) is governed by an objective test: “whether a reasonable person with knowledge of all the facts would conclude that the judge’s impartiality might reasonably be questioned.”  United Statesv. Holland, 519 F.3d 909, 913 (9th Cir. 2008) (emphasis added).  “The reasonable third-party observer is not a ‘partly informed man-in-the-street,’ but rather someone who ‘understand[s] all the relevant facts’ and has examined the record and law.”  Id. at 914 (emphasis added) (quoting LoCascio v. United States, 473 F.3d 493, 496 (2d Cir. 2007)).  It follows that a judge is obliged to disclose all the relevant facts.  As the Sixth Circuit has put it, “judges have an ethical duty to disclose on the record information which the judge believes the parties or their lawyers might consider relevant to the question of disqualification.”  American Textile Mfrs. Inst., Inc. v. The Limited, Inc., 190 F.3d 729, 742 (6th Cir. 1999) (quotation marks omitted).  See Liljeberg, 486 U.S. at 868 (federal judges have a duty to “carefully examine possible grounds for disqualification and to promptly disclose them when discovered”).

In this case, Judge Walker has now disclosed, belatedly, that when he was presiding over this case, he was, like Plaintiffs, “involved in [a] long-term, serious relationship[] with [an] individual[] of the same sex.”  ER 578.  Plaintiffs alleged in their complaint that they were in long-term, same-sex relationships to establish their standing to bring the suit—that is, their personal and direct interest in the outcome of the case—and the fact that Judge Walker is also in such a relationship is no less relevant to the question whether Judge Walker likewise had an interest in the outcome.  This fact, in turn, obliged Judge Walker to disclose whether he, like the Plaintiffs, had an interest in marrying his partner.  For if he did, his interest in the outcome of the case was identical to that of the Plaintiffs; in other words, he was sitting in judgment of his own case. 

The court below, however, held that Judge Walker was qualified to decide this case even if it was his own—that is, even assuming that he and his long-time partner intended to marry if and when it became legal in California to do so.  Chief Judge Ware, who now presides over the case in the district court, held that disqualification under § 455(a) was unwarranted because it “depends on the assumption that a judge who is in a relationship has an interest in getting married which is so powerful that it would render the judge incapable of performing his duties.”  ER 15.  According to Judge Ware, “[a] well-informed, thoughtful observer would recognize that the mere fact that a judge is in a relationship with another person  . . . does not ipso facto imply that the judge must be so interested in marrying that person that he would be unable to exhibit the impartiality which, it is presumed, all federal judges maintain.”  Id.

Putting aside the fact that Section 455 nowhere suggests that a judge’s interest in the outcome of the case must be “so powerful that it would render the judge incapable of performing his duties,” Judge Ware’s analysis simply misses the whole point of Section 455(a)’s objective test.  The “well-informed, thoughtful observer” must have knowledge “of all the relevant facts,” Holland, 519 F.3d at 914 (emphasis added), and the judge is thus obliged to disclose them, Liljeberg, 486 U.S. at 868.  Here, the 10-year duration of Judge Walker’s undisclosed relationship, especially when coupled with evidence in the record (in the form of testimony by Plaintiffs’ own expert) that “almost two-thirds of [committed same-sex couples] in California would get married if permitted to do so,” ER 15 n.18; see also ER 207-08, 211-12, and with Judge Walker’s own findings concerning the manifold emotional and economic benefits of marriage, raises the obvious, natural question whether or not Judge Walker had any interest in marrying his partner.  The answer to that question is a fact known to Judge Walker, and he was obligated either to disclose it or to recuse himself.

But Judge Ware went further, holding among other things that even evidence of a “fervently” held desire to marry would not suffice to disqualify Judge Walker.  ER 9.  For Judge Ware rejected as “inadministrable” any recusal standard based on a judge’s subjective intent: “[I]t is beyond the institutional capacity of a court to interpret the subtleties of a judge’s personal, and likely ever-changing, subjective states on such intimate matters.”  ER 10.  Thus, even if Judge Walker had disclosed from the outset his long-term relationship and an intention to marry should Proposition 8 fall, he would not have been disqualified from sitting in the case.

Judge Ware thus dismissed the facts concerning Judge Walker’s long-term relationship and his interest, whether fervent or nonexistent, in marrying his partner as “irrelevant details about [Judge Walker’s] personal life that were not reasonably related to the question of disqualification.”  ER 18.  Judge Walker therefore was under no obligation, according to Judge Ware, to disclose these facts.  To the contrary, Judge Walker was right to conceal these facts from the litigants, for disclosing them “would produce the spurious appearance that irrelevant personal information could impact the judge’s decision-making, which would be harmful to the integrity of the courts.”  Id.

“The very purpose of § 455(a) is to promote confidence in the judiciary by avoiding even the appearance of impropriety whenever possible.”  Liljeberg, 486 U.S. at 865.  And fulfillment of that purpose depends entirely on the fidelity of individual judges to their ethical obligation to promptly disclose all information relevant to all “possible grounds for disqualification.”  Id. at 868.  To be sure, the judge’s duty to disclose is put to its greatest test when the relevant facts relate to highly personal or intimate information, but that is also when it is most critical that the duty be faithfully discharged, for such information is typically known, as here, only to the judge.  See In re Kensington, 368 F.3d 289, 314 (3d Cir. 2004) (“[T]he judge is in the best position to know of the circumstances supporting a recusal motion.”).  And neither the law, nor the canons, nor common sense leaves the judge with any choice but to disclose such information, for a judge who prefers not to make “a full disclosure on the record,” 28 U.S.C. § 455(e), of personal facts that bear on his ability to sit in a case always has the option of simply asking the clerk to reassign it to another judge.  But the judge is not free both to sit on the case and to keep silent.  Accordingly, Judge Walker, we respectfully submit, was not faithful to his obligation, and for the reasons detailed below, the only way “to purge the perception of partiality in this case [is] to vacate the judgment and remand the case to the district court for retrial by a different judge.”  Preston v. United States, 923 F.2d 731, 735 (9th Cir. 1991). 

Fulfillment of Section 455(a)’s purpose is also dependent on the fidelity of the judiciary as a whole to its obligation to enforce strict compliance by individual judges with their duty to avoid even the appearance of partiality and with the disclosure obligation on which it depends.  The decision below, we respectfully submit, is not faithful to that obligation.  Judge Ware excused Judge Walker from the duty to disclose his 10-year same-sex relationship and his interest, if any, in marrying his partner only by denying the relevance of these facts to the issue of disqualification in a case claiming that the Constitution requires that committed same-sex relationships be recognized as marriages.  Judge Ware, then, countenanced the very real possibility that Judge Walker both sat in this case and kept to himself the fact that he and his partner, like the plaintiffs, planned to get married should the injunction he himself had entered be upheld on appeal.  The decision below thus nullifies the principle that no judge may decide his own case, suspends Section 455(a) and (b)(4) in this case, and mocks the federal judiciary’s proud boast that it tolerates neither the fact nor the appearance of partiality.  The decision cannot be allowed to stand.


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