Motion to Vacate Denied

Judge Ware -- as expected -- has denied a motion to vacate the ruling of Judge Walker in the California Proposition 8 case because Judge Walker is gay and in a long term relationship.

http://www.mercurynews.com/samesexmarriage/ci_18271537?source=rss

"The sole fact that a federal judge shares the same circumstances or personal characteristics with other members of the general public, and that the judge could be affected by the outcome of a proceeding in the same way that other members of the general public would be affected" is not a reason to disqualify the Judge.   Did we really need to waste the time of another federal judge to tell us what should be obvious?

And perhaps most important Judge Ware observed that disclosure by Judge Walker of irrelevant details about his personal life would have set a pernicious precedent that would undermine the integrity of the judiciary.

So much for one of the most frivlous motions filed in federal court this year.    

Comments

[Dan Abrams]

You still think it was frivolous? Even Judge Ware acknowledged that the motion raised serious issues.

The reality is that the impact of today's decision on gay rights is de minimus. The constitutional issue will eventually be decided by appellate judges. But the negative ramifications for judicial integrity are very substantial. Either Judge Ware got it wrong or the "reasonable person" test in the recusal statute should be changed to "reasonable left-wingers and law professors." Everybody else thinks it was a show trial.

[Thalia]

You're suggesting, Dan, that Judge Ware's point (that he as an African-American judge wouldn't be excluded from judging a civil rights issue) doesn't apply to gays? Or maybe that everyone but straight, white, heterosexual, Protestant males are biased in favor of their own groups, but amazingly the heterosexual Protestant straight white males are fair to everyone else?

The unconscious assumption that anyone in a minority is biased toward that minority, but those in the majority aren't biased against anyone is a common fallacy. But to have it brought out this clearly is quite depressing.

[Richard W. Painter]

The opinion makes it clear that this was not a close call. That is why disclosure by Judge Walker of irrelevant personal matters would have set a pernicious precedent and discredited the judiciary. If the recusal issue had been a close call, the opinion would not have taken the position on disclosure that it did.

[Dan Abrams]

The civil rights analogy is so strained that I fear Judge Ware got it from reading this blog. In a civil rights case, if the plainitiff wins, the judge gets nothing. If the defendant wins, the judge gets nothing. The only thing linking an African American plaintiff with an African American judge is race. There is no particular reason to assume that the judge will be biased in favor of either party.

But here, Judge Walker purported to give HIMSELF the right to marry his partner without disclosing the relationship. He was not a disinterested observer.

The notion of an impartial judiciary took a big hit when he belatedly disclosed the relationship. And it took another hit today thanks to Judge Ware's decision.

[Thalia]

So first you accuse Judge Walker of being biased, and then Judge Ware of being influenced in his legal opinions by blog posts. I see a smidgen of bias on your part here.

If you look at the civil rights cases, they most certainly can have a direct impact an African-American judge. The ability to rent certain places, the ability to marry someone white, the ability to send their kids to a certain school, etc. You're suggesting that this is somehow materially different? Or do you argue that Loving v. Virginia couldn't have been fairly decided by an African-American judge?

[Richard W. Painter]

Loving v. Virginia could not have been decided by a white judge -- or any judge -- under this line of reasoning. Such is precisely why this is all nonsense. Judge Ware was very generous not to impose sanctions.

[Dan Abrams]

Thalia -- Yes I am biased. I have done a lot of plaintiffs-side legal malpractice work and have had the unpleasant experience of appearing before judges who were, um, friendly with partners at law firms who were on the other side of a case. I am biased against show trials.

Your Loving v. Virginia analogy misses the mark. Loving v. Virginia held that bans on inter-racial marriages were unconstitutional. The proper analogy is not whether an African-American judge could have presided. All races have members who both approve and disapprove of inter-racial marriages.

The real Loving analogy to this case would ask whether a judge of any race in an undisclosed, decade-long, inter-racial relationship should disclose that relationship before deciding the constitutionality of restrictions on inter-racial marriages. And as odious as race-based legal restrictions on marrying are, I do believe a judge should have to disclose such a relationship.

[Michael Ejercito]

@ Thalia

Judge Ware himself stated that the basis for the motion was not Judge Walker's sexual orientation. p. 5 ("Because the ground for Defendant-Intervenors’ Motion is Judge Walker’s same-sex
relationship, and not his sexual orientation...")

@ Richard

The long-term same-sex relationship was relevant- - unlike, say, any previous relationships Judge Walker might have had, which not even proponents argued that he was required to disclose. A reasonable person could distinguish between Walker’s current and past relationships, such that the former is relevant to this issue while the latter is not.

To refer to an example that I had used in discussing this subject, if a judge hears a lawsuit alleging that a school’s music program impermissibly discriminates against girls, it is irrelevant if her daughter once attended the school but no longer does. It is relevant (at least for disclosure requirements) if her daughter currently attends the school.

@ Richard

As for your Loving example, the Loving case could not have been decided by someone, living in one of the sixteen states with anti-miscegenation laws, who had a direct, immediate interest in marrying someone of a different race.

It seems, Richard, that you are not grasping the essentials of judicial qualifications. I will ask a few questions then.

If a judge hears a fraud suit against a corporation, and his son works there, under what circumstances would he be required to recuse himself from the case? Would it be a breach of judicial ethics if the judge knew about his son’s employment with the firm and refused to disclose it?

If a judge hears a sex discrimination suit against a school alleging that the school’s music program discriminates against girls, and her daughter attends the school, under what circumstances would she be required to recuse herself? Would it be a breach of judicial ethics if she refused to disclose her daughter’s attendance at the school?

What should be the remedy if the judge refuses to disclose information he knew to be important until months after the trial court’s decision?

[Thalia]

Michael: And where do you get this "direct immediate interest" of Judge Walker's in getting married? He was in this relationship when it was legal in California to marry, and of course he has the opportunity to go to states that permit such marriages. I don't see where this presumption that this would directly impact his relationship is coming from.

In the Loving example, how would you feel about a judge who was jilted by someone because they went to date someone of another race? Still need to disclose? What if they are racist, and believe that the Bible prohibits marriage across races? Must be disclosed? Religious beliefs, past relationships, current relationships, affairs, children, grandchildren, everything is on the table when you become a judge?

[Richard W. Painter]

We have been around and around the track on this. All of the examples given involve a relationship between the judge or a family member of the judge and a party to the case. There is no such relationship here.

There is not a single case holding that a judge must recuse because a ruling in the case could benefit a class of persons to which the judge belongs. Not a single case. And now there is still not a single case that so holds.

[Dan Abrams]

I was best man at a wedding where I got some easy laughs in a toast for making good-natured fun of my friend for waiting six years to get engaged. The implicit assumption behind the jokes is that most people in committed long-term relationships get married after a few years. How many heterosexual couples do you know that have been together for a decade without getting married?

Marriage is an important right for adults in committed relationships. How can anybody suggest otherwise? Indeed, this is the entire premise of the constitutional challenge to Prop 8, and to Judge Walker's own decision.

[Michael Ejercito]

@ Thalia

First of all, if Judge Walker's refusal to marry in another state, or refusal to marry in 2008, proves he does not have a direct, immediate interest in "marrying", how do the plaintiffs have a direct, immediate interest in "marrying"?

Second of all, the interest can be inferred from his refusal to disclose the relationship (which IS relevant) as well as his series of highly irregular procedural rulings, all of which were overturned.

@ Richard

In this case, the asserted relationship is between the judge and the defendants, in that the judge is being denied the right to "marry" someone of the same sex by the defendants. In this sense, he would be similarly situated to a girl attending a school that is accused of impermissible discrimination against girls in its music program.

And indeed, there is no such ruling where holding that a judge must recuse because a ruling in the case could benefit a class of persons to which the judge belongs. It was not the mere fact that Judge Walker belonged to the class that could benefit from the ruling that required recusal, any more than a judge's daughter belonging to a class that could benefit from the judge's ruling necessarily requires recusal.

What matters here is the refusal to disclose relevant facts. The relationship was undeniably a relevant factor that required disclosure, even if it did not necessarily require recusal. Indeed, had the relationship been disclosed with a statement denying any direct, immediate interest in "marriage", it would have- barring compelling evidence to the contrary- obviated recusal. But the refusal to disclose, coupled with the highly irregular procedural rulings, is evidence of such a direct, immediate interest.

[Dan Abrams]

Interesting article about Judge Ware. He admittedly lied about being the “James Ware” who was brother of a boy who was tragically murdered in a racially-tinged incident. He only came clean after the real “James Ware” went public and demanded an apology.

The intellectual dishonesty of the opinion pales in comparison.

http://articles.sfgate.com/1997-11-07/news/17763138_1_confirmation-process-judge-virgil-ware

[Monroe Freedman]

I mentioned earlier the material in ULE regarding the Federal Recusal Statute. What it explains, with illustrations, is that several implied exceptions have been recognized to the broad language of 455(a) pursuant to a Rule of Reason. That applies in this case.

Of course, Judge Walker's impartiality "might reasonably be questioned," as might that of a heterosexual judge who might be concerned (on the theory of the supporters of Prop 8) that the institution of marriage between a man and woman is being threatened. That's part of the explanation of why a Rule of Reason has to be applied in this case.

An analogy is the Sherman Act, which broadly outlaws all contracts in restraint of trade. As Justice Brandeis recognize, for a unanimous S.Ct., that appears to outlaw all contracts, because every contract is intended to restrain trade. Accordingly, the Court held that a Rule of Reason had to be applied to avoid unintended and absurd results. So here.

[Dan Abrams]

Professor Freedman: That is the most honest explanation I have seen to date justifying yesterday's result. At least you are acknowledging the obvious, which is that Judge Walker's impartiality is the subject of reasonable question.

Does this "rule of reason" mean that Judge Walker could preside even if he plans to marry? Would the "rule of reason" allow a judge who aspires to bigamy preside over a challenge to anti-bigamy laws? The recusal statute is pretty darn important, and that the judicially created rule of reason should not be applied where a judge has a valuable legal right at stake.

[Daniel Greenberg]

The ability of a judge to be unbiased with respect to litigation affecting the interests of a minority group to which he belongs has been demonstrated time and again by Justice Clarence Thomas...

[Monroe Freedman]

Your hypothetical, Mr. Abrams, is just that, a hypothetical, as Thalia’s post indicates. However, it’s an interesting hypo.

If the judge wanted to marry his partner, he would have an interest that could be substantially affected by the outcome of the proceeding, under 455(b)(5)(iii). The problem is that any heterosexual judge who is married, intends to get married, or has a child, niece, nephew, brother, or sister, et al. who is married or who intends to get married, would have a similar interest in the outcome under (b)(5)(iii), if we assume, with the supporters of Prop 8, that legalizing gay marriage would destroy traditional marriage between a man and a woman. The result would be that no judge would be able to hear the case.

Note that the Rule of Reason overlaps in part the implied exception for necessity, which also has been read into the statute. As the Court held in U.S. v. Will, sec. 455 “was not intended by Congress to alter the time-honored Rule of Necessity.”

Also interesting is that Scalia in Liteky – despite his insistence on applying statutes as written -- read an implied judicial source exception into the statute.

[Monroe Freedman]

Clarence Thomas isn’t a good example. See, for example, his emotional opinion in the cross-burning case.

More important, though, is that the issue under 455(a) and under Due Process isn’t whether the particular judge is capable of overcoming a temptation to bias, but whether there is “a possible temptation to the average .. judge ... which might lead him not to hold the balance nice, clear, and true.”

[Dan Abrams]

I respectfully disagree. Not all interests are created equal. A heterosexual judge, or a gay single judge, would not have a "similar interest" to Judge Walker. Such judges would have remote or speculative interests in the outcome at best, precisely the type of interests which do not require recusal.

On the other hand, a gay judge who wants to marry has a direct and disqualifying interest in the outcome of the Prop 8 case. A heterosexual judge who wanted to enter into a plutonic same-sex marriage would have the same conflict. This all strikes me as simple common sense.

[Dan Abrams]

Ed Whelan is spot on in the below link, especially in his closing paragraph:

"The “pernicious precedent” that Walker and now Ware are working to set is that a judge can conceal basic facts calling into question his impartiality in a proceeding so long as he is advancing a cause favored by media and legal elites. So much for the overriding public interest in impartial application of recusal principles."

http://www.nationalreview.com/bench-memos

[Monroe Freedman]

If you accept the contention of the proponents of Prop 8, then the heterosexual judge has just as much interest in the outcome for himself, herself, or relatives in the third degree -- the destruction of the institution of traditional marriage between a man and a woman. It's only if you reject that contention that the incentive for the heterosexual judge in the outcome is any less than for the gay judge.

I agree with you that the asserted interest in the institution of marriage is, at best, remote and speculative. But, from the perspective of the proponents of Prop 8, that's what the whole case is about.

With regard to the judge having to reveal personal information, please read the statute. The only instance in which the judge has to do that is if the judge wants to request the parties to waive a disqualification. If, as here, the judge is not disqualified, the statute has no requirement of revealing private information.

[Thalia]

Dan: In the Loving example, how would you feel about a judge who was jilted by someone because they went to date someone of another race? Still need to disclose? Having an affair with someone of a different race? What if they are racist, and believe that the Bible prohibits marriage across races? THey hate their next door neighbors who are a mixed race couple? Religious beliefs, past relationships, current relationships, affairs, children, grandchildren, everything is on the table when you become a judge?

I think suggesting that judges have to give up all privacy rights when they are assigned a case is rather frightening, and I agree with Judge Ware that it would set a bad precedent.

[Dan Abrams]

Thalia: Your hypos have to do with a Judge's feelings, not his interests. Big difference.

Paraphrasing Ed Whelan, what about a judge ruling on the constitutionality of anti-bigamy laws who secretly has three women living with him? Lets say he has an official marriage with one of them but treats the other two as de facto wives. Other than the popularity of the cause amongst the elites, there is no difference between this hypo and Judge Walker's presiding over the Prop 8 case.

Professor Freedman -- You are right about the statute. But judges routinely disclose far more attenuated interests. It seems a fair inference that Judge Walker was less than forthcoming because he did not want to muddy the waters lest he not be able to put on his trial.

[Richard W. Painter]

The notion that this case has anything to do with -- or has any effect on -- marriages between men and women is absurd. It does not matter that proponents of Proposition 8 said so in order to get people to vote for it.

Simply look at the case caption. One of the parties -- Schwarzenegger -- is or will be a party to other proceedings involving his own marriage to a woman. So are millions of other Californians. The underlying facts of those cases vary, but I very much doubt that any of them has anything at all to do with the subject matter of Perry v. Schwarzenegger. "Defense of Marriage" is a political slogan and nothing more.

Conflict rules should be based on facts, not on whatever fiction people make up in order to get ballot measures passed.

Judges who want to marry persons of the opposite sex are not recused because the case has nothing whatsoever to do with their personal lives. Judges who are in relationships with persons of the same sex -- but who have no current plans to marry -- are not required to recuse or to disclose those relationships for the reasons that are very well stated in the opinion.