New Perry Trial Judge Refuses to Vacate Judge Walker’s Decision or Require Return of Trial Recordings

In a pair of opinions released on June 15, Chief U.S. District Judge James Ware of the Northern District of California denied a motion by the Proponents of Proposition 8 to set aside last summer's ruling by now-retired Chief Judge Vaughan Walker (which held Prop 8 to be unconstitutional), and also denied a motion by the Proponents to require all parties to surrender copies of the video/audio recording of the trial that are in their possession.  Perry v. Schwarzenegger, 2011 WL 2321440 (N.D. Cal., June 14, 2011)(recusal); Perry v. Schwarzenegger, NO. C 09-02292 JW (N.D. Cal., June 14, 2011) (Order Denying Motion for Order Compelling Return of Trial Recordings). 

The Proponents argued that because Judge Walker is a gay man with a long-term partner, he "stood in the shoes" of plaintiffs who were challenging Prop 8 and thus had a conflict of interest requiring his recusal from the case.   They filed their motion this spring when, shortly after he retired, Judge Walker told some reporters that he was gay and had been living with a same-sex partner for ten years.  Although Judge Walker's sexuality and possible partnered status had been widely rumored and was considered an "open secret" in the San Francisco legal community, to the extent of being mentioned in the press when the trial was pending, Proponents never raised any question about it until after they lost the case and the judge "came out."  They argued, among other things, that his failure to disclose these personal facts prior to the trial further bolstered their argument that he was biased in favor of the plaintiffs. 

They repeatedly rejected any argument that their motion contended that gay judges should automatically be disqualified from sitting in any case raising gay rights issues, instead emphasizing, given Walker's long-term relationship, that he had a personal interest in the case because his future ability to marry his partner would be directly affected by how he ruled in the case.

Judge Ware noted that this appears to be the first case in which a party has argued that a judge should have disclosed his sexual orientation and partnership status to the parties or recused himself because of his sexual orientation and/or partnership status.  Thus, there is no direct precedent, and Judge Ware was writing on a clean slate in rejecting all of the Proponent's arguments.  However, there is considerable precedent concerning attempts by litigants to disqualify minority or female judges from hearing civil rights cases raising issues of race or sex discrimination, and to disqualify judges of particular religious persuasions from hearing cases about issues on which their religions have taken a strong position, and that body of precedent strongly supports Ware's conclusion that these personal status considerations, by themselves, are not sufficient to require recusal.

There is a statute, 28 U.S.C. section 455, which governs the circumstances under which federal judges are supposed to withdraw from hearing a case.  Section 455(a) says a judge should "disqualify himself in any proceeding in which his impartiality might reasonably be questioned," while 455(b)(4), the other potentially relevant provision, calls for withdrawal of a judge who knows that he "has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding."  Proponents argued that because of Walker's status as a gay man with a long-term partner, his impartiality might reasonably be questioned and he has an interest that could be substantially affected by the outcome of the proceeding, both grounds premised on the idea that under Prop 8 Walker and his partner can not marry in California, but if he declared Prop 8 unconstitutional and was sustained on appeal, he and his partner could marry in California.

In addressing Proponents' arguments as to the idea that Walker has an interest that could be substantially affected by his ruling in the case because he is similarly situated with the plaintiffs, two same-sex couples who sought to marry but were denied that right because of Prop 8, Judge Ware wrote that "the fact that a federal judge shares a fundamental characteristic with a litigant, or shares membership in a large association such as a religion, has been categorically rejected by federal courts as a sole basis for requiring a judge to recuse her or himself."  Ware noted a prior ruling that "where federal judges have possessed speculative [non-pecuniary] interests as members of large groups, these interests [are] too attenuated to warrant disqualification [under Section 455(b)(4)]."  In this case, Judge Walker and his partner are members of a large group: all same-sex partners in California who are not married to each other.  Everybody in this large group is possibly affected by a ruling in the Prop 8 case, but only those who actually desire to marry are directly affected.  Judge Ware noted that in these "member of large group" cases, courts have held that "in light of the attenuated nature of non-pecuniary interests held by a judge as a general member of the public or a large community, 'courts also have concluded that no personal bias or reasonable doubt about the judges' impartiality exists in these circumstances.'"

Indeed, the application of this rule is of pressing importance in a country where there are increasing numbers of members of racial minorities and women on the bench, and where there is significant litigation going on involving claims of discrimination, unfair treatment, exclusion, or preferences turning on the race or sex of litigants.  As a result, courts have resisted the idea that because somebody is a part of some large social group (women, African-Americans, Latinos, etc.), one should be disqualified from judging in any case where the rights of those groups to fair treatment is at issue.

Ware adopted the following legal conclusion: "In a case that could affect the general public based on the circumstances or characteristics of various members of that public, the fact that a federal judge happens to share the same circumstances or characteristic and will only be affected in a similar manner because the judge is a member of the public, is not a basis for disqualifying the judge."  That, found Ware, describes the situation with Judge Walker.  Any other rule, he wrote, "would lead to a Section 455(b)(4) standard that required recusal of minority judges in most, if not all, civil rights cases.  Congress could not have intended such an unworkable recusal statute." 

Responding to Proponents' argument that Walker should be disqualified "because his same-sex relationship gave him a markedly greater interest in a case challenging restrictions on same-sex marriage than the interest held by the general public," Ware found it inconsistent with "general principles of constitutional adjudication to presume that a member of a minority group reaps a greater benefit from application of the substantive protections of our Constitution than would a member of the majority."  Under this view, every member of society has an interest in seeing constitutional values protected.  "Thus," he wrote, "we all have an equal stake in a case that challenges the constitutionality of a restriction on a fundamental right."  He also rejected as "unworkable" a recusal standard that would be "based on assumptions about the amorphous personal feelings of judges in regards to such intimate and shifting matters as future desire to undergo an abortion, to send a child to a particular university, or to engage in family planning."

Judge Ware drew an analogy to a 9th Circuit ruling rejecting a recusal challenge to Catholic judges sitting on a case where an abortion clinic sued protesters who were interfering with the ability of patients to enter the clinic free of harassment, where the court found unworkable a test that would premise disqualification on how "fervently" a particular Catholic judge followed the Church's teachings on abortion.  He pointed out that the standard sought by Proponents would "place an inordinate burden on minority judges."  He pointed as one of several examples to a case upholding the refusal of an African-American judge to recuse himself in a school desegregation lawsuit, even though the judge had school-age children whose ability to attend the school of their choice might be affected by the judge's decision.

As to whether Judge Walker's impartiality could reasonably be questioned, Judge Ware said that the starting point of the analysis is the presumption that a judge is impartial, placing a heavy burden on the party seeking recusal to demonstrate otherwise.  He also noted that the word "reasonably" in this context had been construed to adopt an objective test.  The question isn't whether some portion of the public might actually question a judge's impartiality — such questioning and second-guessing happens all the time — but rather whether an objective person with full knowledge of the circumstances and understanding the presumption that judges are professional neutrals who strive to make decisions based on the law and the facts without interjecting their personal views would say that this was a set of circumstances where it is clear that the judge can't be impartial. 

Ware said that Proponent's argument on this point should be rejected because "it depends upon the assumption that a judge who is in a relationship has an interest in getting married which is so powerful that it would render that judge incapable of performing his duties."  Ware asserted that such an assumption is "unreasonable" under the 9th Circuit's precedents, as a "well-informed, thoughtful observer would recognize that the mere fact that a judge is in a relationship with another person — whether of the same or the opposite sex — 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."  He also rejected the argument that Walker's silence throughout the trial about his relationship with his partner could be construed to undermine the presumption of impartiality, finding that silence is, by its nature, ambiguous, "and thus is open to multiple interpretations," including the presumption of impartiality. 

Indeed, Ware wrote, had Walker felt compelled to disclose this kind of personal information, he could be setting a "pernicious precedent" that would be "detrimental to the integrity of the judiciary," as it would require judges to undergo extensive personal disclosure in every case, no matter how irrelevant or time-consuming, on the chance that a party might have some basis for requesting recusal.  Ware also rejected any sort of contention that "all people in same-sex relationships think alike" so that it could automatically be assumed that Walker shared with the plaintiffs the same interest in marrying a same-sex partner.  He argued that it was just as reasonable to presume that Walker, like any other judge, could rise above personal interests to act in a professional manner.

In the second opinion, Ware did not provide much substantive discussion, appearing to rest on his remarks at the prior day's hearing, merely asserting: "Upon review, the court does not find good cause to require the parties to return their copies of the video recordings of the trial to the Court.  As discussed previously, the Court made copies of the video available to the parties, pursuant to the Protective Order [which limits the parties' use and prohibits public disclosure of the recordings], for use during the trial."  Proponents had not alleged that any of the parties had violated the Protective Order, their motion having been provoked by Judge Walker's use of some brief video clips to illustrate lectures he was giving about trial procedure.  Since appellate proceedings are on-going and use of the recordings could be helpful to the parties in that process, Ware could not see a reason to demand their return.

Actually, Proponents seemed most concerned about Walker's use of the recordings, now that he is lecturing and teaching part-time.  Walker had actually surrendered his copy of the recordings (which Ware had presented to him upon his retirement from the bench), and in a footnote Ware indicated that if Walker wanted them back, he could have them.  Ware left unresolved the larger question, posed in a counter-motion filed by the Plaintiffs, about whether the Protective Order should be lifted so that the parties would no longer be restricted in how they might use the recordings.  Instead, Ware called for further briefing on that issue and set a hearing for August 29 to consider it.

Although most legal ethics experts who opined to the press predicted this outcome on the recusal issue, the actual opinion, which will be published in the Federal Supplement reporter, is important, because it is the first to thoroughly canvass the authorities and address in detail the question whether gay judges have to "come out" to parties about their sexuality and relationships, and whether there is any reason to presume that gay judges should be disqualified from sitting in cases involving gay rights issues.  In this opinion, Judge Ware strikes an important blow for the right of gays to be equal participants in the judicial process, with no more presumed disqualifications than could theoretically be imposed on racial or ethnic minorities or women. 

Although Ware does not come right out and say it, the bottom line is that there is no more reason to assume that "majority" (i.e., white male) judges are unbiased in gay rights cases than there is to assume that gay judges are biased in such cases.  Indeed, any reasonably objective observer of gay-related law over the past half century in the American courts would have to conclude that a substantial portion of the judiciary has held deep anti-gay biases for a significant period of time, and that those biases have infected quite a few decisions.  It is only in more recent years that gay litigants can be increasingly (although not yet, unfortunately, completely) confident that they are going to get an unbiased hearing of their claims.  One need only read the dissenting opinions by Supreme Court Justice Antonin Scalia in Romer v. Evans and Lawrence v. Texas to understand why gay people might reasonably entertain serious doubts about receiving impartial justice from some 'straight' judges.

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