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



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Prop 8 proponents today filed their reply brief in support of their appeal of the district court’s badly flawed order that denied their motion to vacate former district judge Vaughn Walker’s anti-Prop 8 judgment on account of Walker’s failure to recuse. I won’t try to summarize the back-and-forth on this motion but will instead refer the interested reader to the introduction to Prop 8 proponents’ opening brief and to the full set of briefs available here (in No. 11-16577). The remainder of this post consists of substantial excerpts from today’s reply brief (citations omitted); the full reply brief should also soon be available at the previous link.

2. … [B]ecause Judge Walker is presumed to be impartial, Plaintiffs argue, he is entitled both to refuse to disclose whether he had an interest in marrying his partner and to have his silence interpreted consistently with the assumption that he is impartial.  This reasoning is fatally flawed.… 

Here, the known facts—Judge Walker’s refusal throughout his tenure in this case to disclose his long-term same-sex relationship (which he promptly and publicly disclosed upon his retirement from the bench), his findings regarding the benefits of marriage for same-sex couples, his extraordinary legal and procedural rulings and fact findings throughout the course of this litigation, and his refusal to disclose whether he desires to marry his same-sex partner—plainly raise a reasonable question about his impartiality.…

More fundamentally, Plaintiffs simply misunderstand the nature and purpose of the presumption of judicial impartiality under section 455.  The presumption is designed to protect litigants, not judges.  “Section 455(a) . . . place[s] the burden of maintaining impartiality and the appearance of impartiality on the judge . . . .”  Critical to satisfying that burden is faithfully discharging the “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.’”  And litigants are entitled to assume that judges will “fully honor their ethical duties in all cases,” including the duty to disclose any information possibly relevant to the partiality, or appearance of partiality, of the judge.  Litigants are not obliged, therefore, to track down rumors or otherwise to investigate the private lives of judges to confirm that they are qualified to sit.  As Plaintiffs’ lead counsel aptly put the matter in another case:

Surely [Plaintiffs] cannot be urging a rule whereby, in order to preserve a possible . . . challenge, litigants must probe into the private lives of the jurists before whom they appear to discover interests which may cause a judge to be biased or which may create the strong appearance of bias.  Nor do [Plaintiffs] explain what justification there might have been for [the judge’s] not making this obvious conflict known to the parties . . . .  

In short, far from protecting a judge from having to disclose all facts potentially relevant to the question of disqualification, including private, personal facts, the presumption of judicial impartiality is precisely the reason why the judge is obliged to make such disclosures (or to recuse).…

#more#

3. Plaintiffs deny that Judge Walker’s long-term relationship bears meaningfully on the question of disqualification in this case, arguing that “recusal has never turned on the objective likelihood, based on the judge’s life circumstances, that the judge will exercise the right at issue.”  …

A judge who stands in precisely the same shoes as the plaintiff before him has, by definition, the same interest as the plaintiff in the outcome of the case and obviously is disqualified under Section 455(b)(4) from sitting.  And the closer that a judge’s objective, known personal circumstances place him to standing in the plaintiff’s shoes, the more reasonable it becomes to question his impartiality under Section 455(a) and the more imperative it becomes to insist that the judge fulfill his ethical obligation to fully disclose the plainly relevant facts known only to him.…

6. … [W]hile Plaintiffs assert—wrongly—that our understanding of Section 455 “ ‘would come dangerously close to holding that minority judges must disqualify themselves from all major civil rights actions,’ ” it is clear that adoption of their recusal rule would indisputably mean that minority judges would never be disqualified from any civil rights cases on the ground that the judge has a direct and personal “interest that could be substantially affected by the outcome of the proceeding.”  Plaintiffs’ recusal rule would thus add a novel proviso to what has always been the most basic requirement of an impartial judiciary:  “[N]o 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,” provided that, if the judge “is a member of a minority group in a case seeking recognition” of an alleged civil right, the judge may try the case notwithstanding that he has a direct and substantial interest in exercising “the specific civil right at issue.” 

Plaintiffs’ recusal rule thus amounts to an open and explicit double standard for minority judges, granting them a special “minorities only” exemption from the fundamental prohibition against a judge deciding his own case.…

7. Plaintiffs also argue that any interest that Judge Walker may have in marrying his partner comes within the doctrine that “an interest which a judge has in common with many others in a public matter is not sufficient to disqualify him.”  As City of Houston makes clear, however, this exception relates only to interests that are held by the judge in common with the general public, or a large segment of it, “as a resident, taxpayer, or property owner,” and that are “not direct or immediate, but remote or contingent.”  Obviously, in a case seeking to establish a federal constitutional right to official recognition of same-sex relationships as marriages, a judge with a direct and substantial personal interest in marrying a person of the same sex satisfies none of these limitations.…            

8.… Plaintiffs argue that, “even if this Court finds that Judge Walker should have recused himself,” this Court should nonetheless refuse to vacate the judgment to avoid “encouraging similar intrusive recusal motions” in other cases.  We would have thought it self-evident that members of the federal judiciary should never deliberately seek to discourage litigants from properly raising meritorious questions about a judge’s potential interest in the outcome of a case, nor be urged to do so by members of the bar.  Indeed, one of the fundamental purposes of vacating a judgment rendered in violation of Section 455 is to “prevent a substantive injustice in some future case by encouraging a judge . . . to more carefully examine possible grounds for disqualification and to promptly disclose them when discovered.”  We believe the following words are instructive here:

Counsel for a party who believes a judge’s impartiality is reasonably subject to question has not only a professional duty to his client to raise the matter, but an independent responsibility as an officer of the court.  Judges are not omniscient and, despite all safeguards, may overlook a conflict of interest.  A lawyer who reasonably believes that the judge before whom he is appearing should not sit must raise the issue so it may be confronted and put to rest.  Any other course would risk undermining public confidence in our judicial system….

As we have repeatedly explained, there is no requirement that a judge disclose private, personal information concerning his potential interest in the outcome of a case, for he always has the option of declining to sit if he would prefer not to disclose such information.  Judge Walker thus had a choice:  he could either disclose the facts relevant to his potential interest in the outcome of the case, or he could simply defer the case to the next judge on the wheel.  But he was not free to do neither.



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