Perry et al v. Schwarzenegger et al

Filing 775

RESPONSE (re 768 MOTION to Vacate Judgment ) PLAINTIFF-INTERVENOR CITY AND COUNTY OF SAN FRANCISCO'S OPPOSITION TO DEFENDANT-INTERVENORS' MOTION TO VACATE JUDGMENT filed byCity and County of San Francisco. (Van Aken, Christine) (Filed on 5/12/2011)

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1 2 3 4 5 6 7 8 DENNIS J. HERRERA, State Bar #139669 City Attorney THERESE M. STEWART, State Bar #104930 Chief Deputy City Attorney CHRISTINE VAN AKEN, State Bar #241755 MOLLIE M. LEE, State Bar #251404 Deputy City Attorneys City Hall, Room 234 One Dr. Carlton B. Goodlett Place San Francisco, California 94102-4682 Telephone: (415) 554-4708 Facsimile: (415) 554-4699 Attorneys for Plaintiff-Intervenors CITY AND COUNTY OF SAN FRANCISCO 9 10 UNITED STATES DISTRICT COURT 11 NORTHERN DISTRICT OF CALIFORNIA 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 KRISTIN M. PERRY, SANDRA B. STIER, PAUL T. KATAMI, and JEFFREY J. ZARRILLO, Plaintiffs, CITY AND COUNTY OF SAN FRANCISCO, Case No. 09-CV-2292 JW PLAINTIFF-INTERVENOR CITY AND COUNTY OF SAN FRANCISCO'S OPPOSITION TO DEFENDANTINTERVENORS' MOTION TO VACATE JUDGMENT Plaintiff-Intervenor Trial: Jan. 11-27, 2010 vs. Judge: Chief Judge James Ware EDMUND G. BROWN JR., in his official capacity as Governor of California; KAMALA D. HARRIS, in her official capacity as Attorney General of California; MARK B. HORTON, in his official capacity as Director of the California Department of Public Health and State Registrar of Vital Statistics; LINETTE SCOTT, in her official capacity as Deputy Director of Health Information & Strategic Planning for the California Department of Public Health; PATRICK O'CONNELL, in his official capacity as ClerkRecorder for the County of Alameda; and DEAN C. LOGAN, in his official capacity as Registrar-Recorder/County Clerk for the County of Los Angeles, Defendants, (caption continued on following page) Plaintiff-Intervenor's Opposition to Motion to Vacate CASE NO. 09-CV-2292 JW Location: Courtroom 5, 17th Floor 1 2 3 4 5 6 and PROPOSITION 8 OFFICIAL PROPONENTS DENNIS HOLLINGSWORTH, GAIL J. KNIGHT, MARTIN F. GUTIERREZ, HAKSHING WILLIAM TAM, and MARK A. JANSSON; and PROTECTMARRIAGE.COM – YES ON 8, A PROJECT OF CALIFORNIA RENEWAL, Defendant-Intervenors. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff-Intervenor's Opposition to Motion to Vacate CASE NO. 09-CV-2292 JW TABLE OF CONTENTS 1 2 3 TABLE OF AUTHORITIES .......................................................................................................... ii INTRODUCTION ...........................................................................................................................1 ARGUMENT ...................................................................................................................................4 4 I. BECAUSE PROPONENTS' MOTION IS UNTIMELY, THEIR MOTION IS TESTED UNDER THE PLAIN ERROR STANDARD AND THEY CANNOT OBTAIN THE RELIEF OF VACATUR. ................................................................4 II. PROPONENTS HAVE NOT MET AND CANNOT MEET THEIR BURDEN TO DEMONSTRATE BIAS OR AN APPEARANCE OF BIAS UNDER THAT SECTION. ....................................................................................................8 5 6 7 8 A. The Courts Have Categorically Rejected Claims That Characteristics Like Sexual Orientation Are Grounds For Bias Or An Appearance Of Bias. .............................................................................................................9 B. Proponents Have Shown No More Than That Judge Walker Has The Same Interest All Gay Persons Have In Being Free From Discrimination, And It Is Well Established That Interests Shared By A Broad Group Of People Are Not Grounds For Disqualification. ..............15 C. Proponents' Litany Of Complaints About Judge Walker's Rulings Falls Far Short Of The Required Showing Of "Deep Seated Favoritism Or Antagonism" Toward A Party "That Would Make Fair Judgment Impossible." ...............................................................................................21 D. Proponents' Complaint That Judge Walker's Use Of A Small Portion Of The Trial Video At A Legal Education Event In No Way Demonstrates Bias Against Them. ....................................................................................25 9 10 11 12 13 14 15 16 17 CONCLUSION ..............................................................................................................................25 18 19 20 21 22 23 24 25 26 27 28 Plaintiff-Intervenor's Opposition to Motion to Vacate CASE NO. 09-CV-2292 JW i 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 TABLE OF AUTHORITIES Federal Cases Baker v. City of Detroit 458 F. Supp. 374 (E.D. Mich. 1978)..........................................................................................10 Baker v. Nelson 409 U.S. 810 (1972) ...................................................................................................................23 Berger v. United States 255 U.S. 22 (1921) .....................................................................................................................21 Blank v. Sullivan & Cromwell 418 F. Supp. 1 (S.D.N.Y. 1975) ................................................................................9, 12, 13, 14 Bowers v. Hardwick 478 US 186 (1986) .....................................................................................................................11 Christiansen v. National Savings & Trust Co. 683 F.2d 520 (D.C. Cir. 1982) ...................................................................................................20 Crawford v. Board of Ed. of Los Angeles 458 U.S. 527 (1982) ...................................................................................................................12 Davis v. Bd. of Sch. Commissioners of Mobile County 517 F.2d 1044 (5th Cir. 1975) ...................................................................................................21 Dragovich v. U.S. Department of the Treasury No. 10-01564 CW, 2011 U.S. Dist. LEXIS 4859 (N.D. Cal. Jan. 18, 2011) ............................24 E&J Gallo Winery v. Gallo Cattle Co. 119 F.3d 1280 (9th Cir. 1992) .....................................................................................................5 Ex parte American Steel Barrel Co. 230 U.S. 35 (1913) .....................................................................................................................21 Exxon Crop. v. Heinze 792 F. Supp. 72 (D. Alaska 1992) .............................................................................................20 Feminist Women's Health Center v. Codispoti 69 F.3d 399 (1995)...........................................................................................................9, 17, 18 23 24 25 26 27 First Interstate Bank of Ariz., N.A. v. Murphy, Weir & Butler 210 F.3d 983 (9th Cir. 2000) .......................................................................................................1 Gill v. Office of Personnel Management 699 F. Supp. 2d 374 (D. Mass. 2010) ..................................................................................11, 24 Hemmings v. Tidyman's Inc. 285 F.3d 1174 (9th Cir. 2002) .....................................................................................................6 28 Plaintiff-Intervenor's Opposition to Motion to Vacate CASE NO. 09-CV-2292 JW ii 1 2 3 4 Hollingsworth v. Perry 130 S. Ct. 705 (2010) .................................................................................................................22 Idaho v. Freeman 507 F. Supp. 706 (D. Idaho 1981) .........................................................................................9, 14 In re City of Houston 745 F. 2d 925 (5th Cir. 1984) ..........................................................................................3, 18, 20 5 6 7 8 9 In re McCarthey 368 F.3d 1266 (10th Cir. 2004) .................................................................................................17 J.E.B. v. Alabama 511 U.S. 127 (1994) ...................................................................................................................10 Lawrence v. Texas 539 U.S. 567 ..................................................................................................................11, 18, 24 10 11 12 13 14 Liljeberg v. Health Services Acquisition Corporation 486 U.S. 847 (1988) .....................................................................................................................8 Liteky v. United States 510 U.S. 540 (1994) .................................................................................................12, 21, 22, 23 Log Cabin Republicans v. United States 716 F. Supp. 2d 884 (C.D. Cal. 2010) .......................................................................................11 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MacDraw, Inc. v. CIT Group Equip. Fin., Inc. 138 F.3d 33 (2d Cir. 1998) ..................................................................................................12, 14 Menora v. Illinois High School Association 527 F.Supp. 632 (N.D. Ill. 1981) .....................................................................................9, 10, 13 Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1 551 U.S. 701 (2007) .............................................................................................................10, 12 Parrish v. Alabama State Bar 524 F.2d 98 (5th Cir. 1975) .........................................................................................................9 Paschall v. Mayone 454 F. Supp. 1289 (S.D.N.Y. 1978) ..........................................................................................10 Pennsylvania v. Local Union 542, International Union of Operating Engineers 388 F.Supp. 155 (E.D. Pa. 1974) .............................................................................10, 11, 14, 16 Perry v. Schwarzenegger 591 F.3d 1126 (9th Cir. 2009) ...................................................................................................22 Perry v. Schwarzenegger 628 F.3d 1191 (9th Cir. 2011) ...................................................................................................25 Plaintiff-Intervenor's Opposition to Motion to Vacate CASE NO. 09-CV-2292 JW iii 1 2 3 4 Perry v. Schwarzenegger 704 F. Supp. 2d 921 (N.D. Cal. 2010) .........................................................................................6 Poplar Lane Farm LLC v. The Fathers of Our Lady of Mercy 2010 U.S. Dist. LEXIS 85233 (W.D.N.Y. Aug. 19, 2010) .........................................................9 Regents of the University of California v. Bakke 438 U.S. 265 (1978) ...................................................................................................................12 5 6 7 8 9 Reiffin v. Microsoft Corp. 158 F. Supp. 2d 1016 (N.D. Cal. 2001) .......................................................................................9 Reitman v. Mulkey 387 U.S. 369 (1967) ...................................................................................................................12 Romer v. Evans 517 U.S. 620 (1996) ...................................................................................................................11 10 11 12 13 14 Sao Paulo State of Federative Republic of Brazil v. American Tobacco Co., Inc. 535 U.S. 229 (2002) .....................................................................................................................7 Sexson v. Servaas 830 F. Supp. 475 (S.D. Ind. 1993) .......................................................................................10, 16 Singer v. Wadman 745 F.2d 606 (10th Cir. 1984) .....................................................................................................9 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Taylor v. United States 179 F.2d 640 (9th Cir.), cert. denied, 339 U.S. 988, 94 L. Ed. 1389, 70 S. Ct. 1010 (1950) ......5 Torres v. Chrysler Fin. Co. 2007 U.S. Dist. LEXIS 83154 (N.D. Cal. 2007) ........................................................................8 United States of America v. Salamone 800 F.2d 1216 (3rd Cir. 1986) ...................................................................................................10 United States v. Alabama 828 F.2d 1532 (11th Cir. 1987) ...........................................................................3, 10, 12, 19, 20 United States v. Azhocar 581 F.2d 735 (9th Cir. 1978) .....................................................................................................21 United States v. Branco 798 F.2d 1302 (9th Cir. 1986) .................................................................................................5, 7 United States v. Conforte 624 F.2d 869 (9th Cir. 1980) ...................................................................................................5, 6 United States v. El-Gabrowny 844 F. Supp. 955 (S.D.N.Y. 1994) ..................................................................................9, 13, 14 Plaintiff-Intervenor's Opposition to Motion to Vacate CASE NO. 09-CV-2292 JW iv 1 2 3 4 United States v. Fiat Motors of North America 512 F.Supp. 247 (D.D.C. 1981) ...................................................................................................9 United States v. Greer 968 F.2d 433 (5th Cir. 1992) .....................................................................................................10 United States v. Grinnell Corp. 384 U.S. 563 (1966) ...................................................................................................................21 5 6 7 8 9 United States v. Nelson 2010 U.S. Dist. LEXIS 63814 (E.D.N.Y. June 28, 2010) ...............................................9, 14, 15 United States v. Rogers 119 F.3d 1377 (9th Cir. 1997) .....................................................................................................5 United States v. Sibla 624 F.2d 864 (9th Cir. 1980) .............................................................................................4, 6, 21 10 11 12 13 14 15 16 Vietnamese Fishermen's Association v. Knights of the Ku Klux Klan 518 F.Supp. 1017 (S.D. Tex. 1981) .......................................................................................9, 14 Weiss v. Sheet Metal Workers Local No. 544 Pension Trust 719 F.2d 302 (9th Cir. 1983) ...................................................................................................5, 6 Federal Statutes 28 U.S.C. § 144 ..................................................................................................................4, 5, 9, 25 28 U.S.C. § 455 ....................................................................................................4, 5, 6, 7, 9, 18, 21 17 Rules Federal Rule of Civil Procedure 60(b) .........................................................................................1, 8 18 Federal Rule of Civil Procedure 60(b)(1) ........................................................................................8 19 Federal Rule of Civil Procedure 60(b)(6) ....................................................................................1, 8 20 Other Authorities S. Rep. No. 93-419, 93d Cong., 1st Sess. 1973, p. 5 .......................................................................8 21 22 Other References http://www.c-spanvideo.org/program/298109-3 (last visited May 12, 2011) ...............................25 23 24 25 26 27 28 Plaintiff-Intervenor's Opposition to Motion to Vacate CASE NO. 09-CV-2292 JW v 1 INTRODUCTION 2 Proponents' Motion to Vacate the Judgment on the ground that Chief Judge Walker was 3 actually biased and appeared to be biased is a baseless post hoc attack on Judge Walker's integrity— 4 and its timing suggests that it is opportunistic as well as meritless. Ignoring the rule that "recusal 5 issues must be raised at the earliest possible time after the facts are discovered," First Interstate Bank 6 of Ariz., N.A. v. Murphy, Weir & Butler, 210 F.3d 983, 989 n.8 (9th Cir. 2000), Proponents waited to 7 raise an issue about Judge Walker for more than a year after the press reported he was gay and more 8 than ten months after his same-sex relationship was the subject of press commentary. They waited 9 until after he had ruled against them, after he had retired from the bench, after their appeal was fully 10 briefed and argued, and after the Ninth Circuit raised serious questions about their standing to appeal. 11 Their motion is based on innuendo and speculation to which Judge Walker cannot now respond. It is 12 blatant forum-shopping of the worst kind, seeking a second bite at the apple after the trial judge has 13 ruled and the Court of Appeals has questioned the viability of their appeal. 14 The untimeliness of the motion is alone sufficient reason to deny it. If Proponents genuinely 15 believed that being in a "long-term, same-sex relationship" were grounds for disqualifying Chief Judge 16 Walker, the time to have raised that issue was no later than February 2010, when, as Proponents 17 themselves admit (Doc. 768 at 14)1, the press printed reports of his sexual orientation or, at the very 18 latest, in June 2010 when the same-sex companion who attends bar functions with him was called to 19 their attention through further commentary in the press. (Id.) Had Proponents raised a concern about 20 bias at either of those times, the Judge could have addressed their concerns in whatever way he 21 thought appropriate before ruling on the merits. That they waited until long after he had ruled and 22 until their ability to challenge that ruling was in question undermines the credibility of Proponents' 23 claimed concerns and is unfair to the parties and this Court. It is also fatal to their motion: 24 Proponents' delay in raising their claims of bias until the case was on appeal results in application of 25 the plain error standard of review—a very stringent standard they cannot come close to meeting. Nor 26 can Proponents meet the high standard required to obtain vacatur of judgment pursuant to Federal Rule 27 of Civil Procedure 60(b)(6). 28 1 Page references to the record are to ECF pagination. Plaintiff-Intervenor's Opposition to Motion to Vacate 1 CASE NO. 09-CV-2292 JW 1 Considered on its scant merits, Proponent's motion boils down to the assertion that a gay judge 2 cannot fairly decide whether allowing gay people to marry will, as they contend, redefine and destroy 3 the institution of marriage for "everyone else" and do serious harm to children, while any judge who is 4 a member of the heterosexual "everyone else," including married people and parents of young 5 children, can readily do so. Proponents' argument applies an extreme double standard: they presume a 6 gay person cannot be impartial while heterosexuals of almost all stripes2 can and will be. 7 Proponents' myopic view of judges and jurors who are part of a minority group—as being 8 defined by one trait alone and unable to transcend their affiliation with the group and fulfill their 9 obligations to decide cases based solely on the facts and law presented—is an insult that has been 10 rejected emphatically time and again in motions to disqualify judges and dismiss jurors for cause 11 based on race, ethnicity, gender, religious affiliation, and participation in civic, professional and even 12 advocacy organizations. These judges, like all other judges, are presumed to be impartial. 13 To avoid the ineluctable result of applying these cases, Proponents argue that their motion is 14 not based on Judge Walker's status as a gay person, but rather on his "committed,3 long-term, same- 15 sex relationship" and certain of his rulings that they characterize as "unprecedented," "peremptory," 16 and "irregular." Doc. 768 at 10. Further, Proponents argue, Chief Judge Walker was duty-bound to 17 disclose the existence and duration of his relationship, and his failure to do so is further evidence 18 supporting recusal. Their effort to mask what is really a sexual orientation-based recusal motion as 19 2 20 21 22 23 24 25 26 27 28 Proponents also sought unsuccessfully to recuse on grounds of bias and prejudice Ninth Circuit Judge Stephen Reinhardt who is married to a woman and presumably therefore heterosexual, asserting that his wife's position with the ACLU rendered him unable to be impartial. Perry v. Schwarzenegger, 630 F.3d 909 (9th Cir. 2011). That this is Proponents' second motion seeking disqualification of a judge (or vacatur in this instance based on disqualification) makes their judgeshopping all the more apparent. 3 Proponents mischaracterize the article they rely on as stating that Judge Walker "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." Doc. 768 at 10 (emphasis added). They then repeat this misstatement throughout their brief. See id. at 10, 11, 13, 16, 17, 18, 19. The press article states simply that Judge Walker "said he was in a 10-year relationship with a physician." Whether by "committed" Proponents mean to suggest Judge Walker and his partner have agreed to support each other or that they intend to remain together for life or something else is not clear, and whether or not their characterization is accurate is not discernable from the article. The City does not believe it makes a difference to the outcome of this motion whether Judge Walker's relationship is "committed," and if so, in what respects. However, Proponents' repeated overstatements reflect a lack of forthrightness that is particularly unfortunate in the context of a motion such as this one. Plaintiff-Intervenor's Opposition to Motion to Vacate CASE NO. 09-CV-2292 JW 2 1 something more than that—to portray the issue as "sexual orientation-plus"—should be rejected for 2 reasons similar "trait-plus" arguments have been rejected in disqualification motions rooted in race or 3 religion: the claimed "plus" factors are a makeweight which, if accepted, would result in the recusal of 4 almost any minority judge. Being gay, by definition, indicates an inclination to form relationships 5 with people of the same sex. Thus the fact that Chief Judge Walker was in a same-sex relationship is 6 indistinguishable from the defining characteristic of sexual orientation. Moreover, the duration of a 7 relationship is not a proxy for whether a couple intends to or wishes to marry. Perhaps most 8 importantly, even if Judge Walker could be shown or presumed to have an interest in marrying his 9 same-sex partner, the case law holds such an interest is not sufficient to create an actual bias or an 10 appearance of bias under the recusal statutes. It is well established that "'an interest which a judge has 11 in common with many others in a public matter is not sufficient to disqualify him.'" United States v. 12 Alabama, 828 F.2d 1532, 1541 (11th Cir. 1987) (superseded by statute on other grounds) (quoting In 13 re City of Houston, 745 F. 2d 925, 929-30 (5th Cir. 1984) (internal quotation marks omitted)). And 14 since neither his gay identity nor his gay relationship are grounds for disqualification, he had no duty 15 to disclose them (although he might well have chosen to do so and to discuss their irrelevance if 16 Proponents had given him that opportunity by raising the issue while he was still sitting). 17 Finally, Proponents' argue various of Judge Walker's rulings are so "irregular," 18 "unprecedented," and "peremptory" as to indicate bias. These arguments are both wrong on the merits 19 and, regardless, irrelevant to a motion such as this. Again, the courts have repeatedly rejected such 20 litanies of actions and rulings by a judge claimed to be so wrong as to reflect prejudice, holding that 21 they fail to establish bias, actual or in appearance. A court's rulings, either alone or in combination 22 with traits such as race, gender or religion, are insufficient to require recusal as a matter of law. 23 Disagreements with a judge's rulings are matters for consideration on appeal to the circuit court, not 24 grounds for disqualification of the judge that made them. 25 Though the courts have consistently refused to impugn judges' integrity—their ability to decide 26 cases fairly and impartially—based on criteria such as race, religion and gender, Proponents have 27 impugned and would have this Court now impugn Judge Walker's integrity based, fundamentally, on 28 his sexual orientation. Their willingness to make this argument without as much as mentioning this Plaintiff-Intervenor's Opposition to Motion to Vacate CASE NO. 09-CV-2292 JW 3 1 extensive case law is emblematic of how unworthy of serious debate this motion is. For all of the 2 reasons the courts have consistently rejected motions for disqualification based on bias alleged to arise 3 from the judge's race, religion, gender, social relationships and factors closely related to those criteria, 4 this Court should likewise reject Proponents' claim that Chief Judge Walker's sexual orientation 5 required his recusal and compels that his ruling be vacated in this case. 6 7 8 9 I. ARGUMENT BECAUSE PROPONENTS' MOTION IS UNTIMELY, THEIR MOTION IS TESTED UNDER THE PLAIN ERROR STANDARD AND THEY CANNOT OBTAIN THE RELIEF OF VACATUR. There are two avenues available to disqualify a district judge. A litigant may move for the 10 judge's recusal before trial upon filing a timely affidavit stating facts sufficient on their face to show 11 actual personal bias against that party or in favor of another party pursuant to 28 U.S.C. § 144. The 12 affidavit must "be accompanied by a certificate of counsel of record stating that it is made in good 13 faith." 28 U.S.C. § 144. If such a motion is timely filed with the required affidavit and certificate of 14 counsel, the judge may either recuse himself or, if he believes the affidavit to be legally insufficient, 15 deny the motion. The filing of a § 144 motion triggers the judge's responsibility sua sponte under 28 16 U.S.C. § 455 to consider all facts known to him that are pertinent to a claim of bias or appearance of 17 bias and to recuse himself if warranted. United States v. Sibla, 624 F.2d 864, 868 (9th Cir. 1980). 18 A litigant may also move pursuant to 28 U.S.C. § 455 for the judge's recusal. Section 455 19 contains no requirement of an affidavit. However, neither is a judge faced with a § 455 motion bound 20 by factual allegations made in the moving party's papers. Sibla, 624 F.2d at 867-68. Under § 455, 21 recusal may be had where the judge's impartiality may reasonably be questioned (§ 455(a)) or where 22 the judge "knows that he . . . has [an] interest that could be substantially affected by the outcome of the 23 proceeding" (§ 455(b)(4)). Section 455 imposes a duty on a judge to be aware of sources of bias; it is 24 intended to be self-enforcing. Sibla, 624 F.2d at 867-68. Section 455 contains no requirement that the 25 accused judge refer the motion to another judge. Id. at 868. Under either statute, the test for 26 disqualification is "whether . . . there are reasonable grounds for finding that the judge could not try 27 the case fairly, either because of the appearance or the fact of bias or prejudice." United States v. 28 Conforte, 624 F.2d 869, 881 (9th Cir. 1980). The Court of Appeals reviews a district court's denial of Plaintiff-Intervenor's Opposition to Motion to Vacate CASE NO. 09-CV-2292 JW 4 1 a motion for disqualification for abuse of discretion, United States v. Rogers, 119 F.3d 1377, 1380 (9th 2 Cir. 1997), unless (as here) the motion is made for the first time on appeal, in which case the review is 3 for plain error. Weiss v. Sheet Metal Workers Local No. 544 Pension Trust, 719 F.2d 302, 304 (9th 4 Cir. 1983). 5 6 7 8 9 10 11 12 Timeliness is required for motions brought under either § 144 or § 455. As the Ninth Circuit observed in United States v. Rogers, 119 F.3d at 1380: As we have often stated, a party having information that raises a possible ground for disqualification cannot wait until after an unfavorable judgment before bringing the information to the court's attention. [E&J Gallo Winery v. Gallo Cattle Co., 119 F.3d 1280, 1295 (9th Cir. 1992).] "A defendant cannot take his chances with a judge and then, if he thinks that the sentence is too severe, secure a disqualification and a hearing before another judge." United States v. Branco, 798 F.2d 1302, 1304 (9th Cir. 1986) (quoting Taylor v. United States, 179 F.2d 640, 642 (9th Cir.), cert. denied, 339 U.S. 988, 94 L. Ed. 1389, 70 S. Ct. 1010 (1950)). Absent a timeliness requirement, parties would be encouraged to "withhold recusal motions, pending a resolution of their dispute on the merits, and then if necessary invoke section 455 in order to get a second bite at the apple." E. & J. Gallo, 967 F.2d at 1295. (Id.) 13 The fact that § 455 is meant to be self-enforcing does not excuse a party who believes there are 14 grounds for disqualification but fails to raise them until after the judge has ruled against her. E&J 15 Gallo Winery, 119 F.3d at 1295. "A disqualification motion filed after trial and judgment is generally 16 considered untimely." Branco, 798 F.2d at 1304 (9th Cir. 1986) (internal quotations and citation 17 omitted). "Delay in filing a motion for disqualification may be excused," but only "if good cause is 18 shown for why the motion was not timely filed." Id. Good cause cannot be shown if the information 19 that is the basis for the claim of bias or appearance of bias was known to or could have been 20 discovered by the party seeking disqualification well before the motion for disqualification or other 21 relief based on disqualification was made. See id. at 1304-05. 22 Where the court entertains a claim of disqualification raised for the first time on appeal, the 23 party claiming bias or prejudice "will bear a greater burden on appeal in demonstrating that the judge 24 committed reversible error in failing to grant recusal under section 455. In those circumstances, the 25 reviewing court must determine whether the district court erred in failing sua sponte to recognize 26 obvious grounds for recusal under section 455 and to grant recusal pursuant to that section." Sibla, 27 624 F.2d at 868 (internal citations omitted); see also Weiss, 719 F.2d at 304; Conforte, 624 F.2d at 28 Plaintiff-Intervenor's Opposition to Motion to Vacate CASE NO. 09-CV-2292 JW 5 1 880. If the moving party cannot show good cause or extraordinary circumstances, a reviewing court 2 applies the plain error test to evaluate the trial judge's failure to sua sponte recuse himself. Weiss, 719 3 F.2d at 304. The plain error test is extremely demanding; it is the "very pinnacle of fault" and relief 4 must be "necessary to prevent a miscarriage of justice." Hemmings v. Tidyman's Inc., 285 F.3d 1174, 5 1193 (9th Cir. 2002). 6 Here, Proponents concede that they were on notice in February 2010—prior to the close of the 7 trial and six months prior to entry of judgment in this case4—of press reports that Chief Judge Walker 8 is gay. Doc. 768 at 14. Proponents did not raise a concern with the Court that Judge Walker might be 9 biased because of his sexual orientation or for any other reason at that time or any time thereafter. 10 Although by February 2010, if not earlier, they knew or had reason to believe he was gay, they did not 11 ask him to provide any information about his relationship status or any matter related to it, although 12 they admit that an article published by the Los Angeles Times shortly after closing arguments in June 13 2010 reported that Judge Walker is "openly gay" and "attends bar functions with a companion, a 14 physician." Id. The same article states Proponents' lawyers "refused to discuss" Judge Walker's 15 sexual orientation, implying they were asked for their view about it. Although Judge Walker had not 16 yet issued his decision at that point, Proponents still remained silent and made no motion under the 17 recusal statutes. 18 As we explain in Section II.B., infra, Proponents' claim that the essential basis for their motion 19 is not that Chief Judge Walker is gay but that he is in a same-sex relationship rings hollow. But even 20 if Judge Walker's same-sex relationship added anything to their claim of bias, Proponents could have 21 raised the issue of his relationship status once they learned he was gay, and in any event when the 22 press reported that he had a same-sex "companion" who attended professional functions with him, 23 which was still six weeks before he issued his ruling on the merits of the case. Recusal is required 24 only "if a reasonable person, knowing all the circumstances, would expect the judge to have actual 25 knowledge of his interest or bias in the case." Sao Paulo State of Federative Republic of Brazil v. 26 27 28 4 The trial was conducted from January 10 through January 27, 2010, Proponents submitted their final documentary evidence in April 2010, and the court held closing arguments on June 16, 2010. Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 929 (N.D. Cal. 2010). Chief Judge Walker issued the court's final decision in the case on August 4, 2010. Id. Plaintiff-Intervenor's Opposition to Motion to Vacate CASE NO. 09-CV-2292 JW 6 1 American Tobacco Co., Inc., 535 U.S. 229, 232-33 (2002). As the Supreme Court has made clear, the 2 concerns of a party raising a disqualification issue can be allayed by the court through appropriate 3 clarification, id. at 233, as Chief Judge Walker could have done if he felt it appropriate if Proponents 4 had raised this issue in a timely fashion.5 But Proponents have shown no good cause or extraordinary 5 circumstances that would justify their waiting to raise the issue until after judgment was entered. 6 Much less have they shown any justification for their failure to raise the issue for a full eight months 7 after entry of judgment, by which time their appeal had been fully briefed by the parties and amicus 8 curiae in the Ninth Circuit, oral arguments had been held, their standing had been questioned by the 9 Ninth Circuit, the Ninth Circuit had certified questions related to standing to the California Supreme 10 Court, and briefing was nearly complete in the certification proceedings. Indeed, their timing strongly 11 suggests that they filed their motion as a last-ditch effort to undo a ruling they do not like, in light of 12 their dim prospects on appeal. 13 A recusal motion in these circumstances is highly disfavored because it raises the specter that 14 the party does not fear bias at all but simply dislikes the outcome of the case and would prefer another 15 bite at the apple. Branco, 798 F.2d at 1304-05. Even under the objective "impartiality might 16 reasonably be questioned" standard of § 455(a), the Senate Judiciary Committee Report warned judges 17 not to grant disqualification motions brought for such strategic, rather than legitimate, reasons: [In] assessing the reasonableness of a challenge to his impartiality, each judge must be alert to avoid the possibility that those who would question his impartiality are, in fact, seeking to avoid the consequences of his expected adverse decision. . . . Nothing in the proposed legislation should be read to warrant the transformation of a litigant's fear that a judge may decide a question against him into a "reasonable fear" that the judge will not be impartial. Litigants . . . are not entitled to judges of their own choice. (S. Rep. No. 93-419, 93d Cong., 1st Sess. 1973, p. 5.) 18 19 20 21 22 The timing of Proponents' motion, coupled with their earlier baseless attempt to recuse Judge Reinhart 23 based on his wife's affiliation with the ACLU, makes plain that their purpose is not to achieve 24 25 26 27 28 5 We do not suggest that Chief Judge Walker would have been required to make any disclosures about his personal life. Since, as we discuss infra at 19, interests that are widely shared with a broad segment of society are insufficient as a matter of law to create bias, either actual or apparent, then no interest that Chief Judge Walker may have in marriage rights could disqualify him. However, many judges faced with such motions take the opportunity to supply or clarify facts and explain why there is no basis for recusal. Plaintiff-Intervenor's Opposition to Motion to Vacate CASE NO. 09-CV-2292 JW 7 1 impartiality, but to avoid an unfavorable outcome. As we discuss in the next section, they cannot 2 show it was "plain error" for Chief Judge Walker to fail sua sponte to recuse himself. Moreover, Proponents' failure to raise the issue of Chief Judge Walker's possible bias, even 3 4 when they were on notice of his sexual orientation and the presence of a "companion" in his life, 5 means that even if disqualification were appropriate here for the appearance, Proponents cannot obtain 6 vacatur of the judgment. As the Supreme Court indicated in Liljeberg v. Health Services Acquisition 7 Corporation, 486 U.S. 847 (1988), whether a judgment may be vacated in a case where the judge 8 should have recused himself is controlled by Federal Rule of Civil Procedure 60(b). Id. at 863. 9 Proponents rely on Liljeberg for their entitlement to vacatur, Doc. 768 at 20, but Liljeberg holds that 10 vacatur is not available under the extraordinary circumstances prong of Rule 60(b)(6) where the 11 moving party has shown "neglect or lack of due diligence," 486 U.S. at 863 n.11, as Proponents have 12 here by failing to raise the issue until long after they were on notice of Chief Judge Walker's 13 relationship and after judgment was issued and the appeal was well under way. Nor can Proponents 14 rely on Rule 60(b)(1), which offers relief from judgment in a case of "mistake, inadvertence, surprise, 15 or excusable neglect," since Proponents offer no excuse at all for their failure to raise this issue by 16 February 2010 or June 2010. Finally, as we demonstrate infra at 19, Proponents categorically cannot 17 show a statutory violation to support vacatur, as they contend. Doc. 768 at 20. The remedy of vacatur 18 is simply unavailable to them here. 19 II. PROPONENTS HAVE NOT MET AND CANNOT MEET THEIR BURDEN TO DEMONSTRATE BIAS OR AN APPEARANCE OF BIAS UNDER THAT SECTION. 20 The standard that Proponents must meet here—that Chief Judge Walker's failure to disclose to 21 them his personal life or sua sponte recuse himself was plain error that resulted in manifest injustice to 22 them, see supra at 6—is not met. Indeed, Proponents have failed to carry the lesser but still 23 "substantial burden" to overcome the presumption of judicial impartiality that would have applied 24 even had they timely moved to disqualify Chief Judge Walker. See Torres v. Chrysler Fin. Co., 2007 25 U.S. Dist. LEXIS 83154 (N.D. Cal. 2007); Reiffin v. Microsoft Corp., 158 F. Supp. 2d 1016, 1021-22 26 (N.D. Cal. 2001). As discussed below, well established case law about the nondisqualifying effects of 27 28 Plaintiff-Intervenor's Opposition to Motion to Vacate CASE NO. 09-CV-2292 JW 8 1 minority group membership makes clear that Proponents cannot meet their burden under any test that 2 has been applied pursuant to § 144 or § 455. 3 A. The Courts Have Categorically Rejected Claims That Characteristics Like Sexual Orientation Are Grounds For Bias Or An Appearance Of Bias. 4 The case law could not be more clear that a judge's membership in a group is not a basis for 5 disqualification in a case that affects that group. Women judges are not disqualified from hearing 6 cases involving claims of sex discrimination. Blank v. Sullivan & Cromwell, 418 F. Supp. 1 (S.D.N.Y. 7 1975). A Catholic judge may hear a case challenging laws restricting abortion notwithstanding her 8 Church's strong stance against abortion, Feminist Women's Health Center v. Codispoti, 69 F.3d 399 9 (1995) (Noonan, J.), or a case in which an order of Catholic priests is a defendant. Poplar Lane Farm 10 LLC v. The Fathers of Our Lady of Mercy, 2010 U.S. Dist. LEXIS 85233 (W.D.N.Y. Aug. 19, 2010). 11 A judge who is Jewish is not disqualified from adjudicating cases involving criminal prosecution of 12 acts of violence and intimidation motivated by antipathy toward Israel or directed at Jews, United 13 States v. El-Gabrowny, 844 F. Supp. 955 (S.D.N.Y. 1994); United States v. Nelson, 2010 U.S. Dist. 14 LEXIS 63814 (E.D.N.Y. June 28, 2010), or cases challenging restrictions on head wear in 15 interscholastic sports that impinge on Orthodox Jews' exercise of their faith. Menora v. Illinois High 16 School Association, 527 F.Supp. 632 (N.D. Ill. 1981). Mormon judges may hear a case affecting 17 proposed constitutional amendments to which the Mormon Church is strongly and publicly opposed, 18 Idaho v. Freeman, 507 F. Supp. 706 (D. Idaho 1981), or one that purports to challenge the Mormon 19 "theocratic power structure in Utah." Singer v. Wadman, 745 F.2d 606, 608 (10th Cir. 1984). A judge 20 who once headed a segregated, i.e., whites only, bar association may hear a case challenging the 21 administration of the state's bar exam on the grounds that it discriminated against African Americans. 22 Parrish v. Alabama State Bar, 524 F.2d 98 (5th Cir. 1975). A judge who was rendered seriously 23 disabled in an automobile accident may hear a case involving the safety of automobiles. United States 24 v. Fiat Motors of North America, 512 F.Supp. 247 (D.D.C. 1981). Judges who are African American 25 are not recused from hearing cases involving the Ku Klux Klan, Vietnamese Fishermen's Association 26 v. Knights of the Ku Klux Klan, 518 F.Supp. 1017 (S.D. Tex. 1981), or from civil rights cases 27 involving allegations of race discrimination against African Americans, United States v. Alabama, 828 28 Plaintiff-Intervenor's Opposition to Motion to Vacate CASE NO. 09-CV-2292 JW 9 1 F.2d 1532 (11th Cir. 1987); Pennsylvania v. Local Union 542, International Union of Operating 2 Engineers, 388 F.Supp. 155 (E.D. Pa. 1974), or from reverse discrimination cases that challenge 3 promotion policies that are claimed to disadvantage whites. Baker v. City of Detroit, 458 F. Supp. 374 4 (E.D. Mich. 1978). Nor does serving on the board of a civic organization dedicated to improving a 5 city necessitate recusal of a judge in a case involving that city, Sexson v. Servaas, 830 F. Supp. 475 6 (S.D. Ind. 1993), or being a member of the NRA require dismissal for cause of a juror in a case 7 involving gun control laws. United States of America v. Salamone, 800 F.2d 1216 (3rd Cir. 1986). 8 African American, Latino and Jewish jurors may hear a civil rights claim against a group of white 9 "skinheads." United States v. Greer, 968 F.2d 433 (5th Cir. 1992). 10 These cases demonstrate that a judge' s background and associations, religious or otherwise, 11 are not grounds for finding bias or an appearance of bias. Paschall v. Mayone, 454 F. Supp. 1289, 12 1300 (S.D.N.Y. 1978) (and cases cited therein). In all of these situations, the courts have rejected 13 claims of actual bias and appearance of bias and declined to disqualify themselves or other judges for 14 the simple reason that inferring bias based on a judge's affiliation with those with whom he or she 15 shares beliefs, a history or a perspective would be antithetical to our system of justice. It is offensive 16 and "demeaning" to "lump all Jews [or members of any other group] as fungible." Menora, 527 F. 17 Supp. at 635, 637. Indeed, to treat background or group affiliation as indicia of or creating an 18 appearance of bias would directly contradict one of our nation's core principles: "that the Government 19 must treat citizens as individuals, not as simply components of a racial, religious, sexual or national 20 class." Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 730 (2007) (internal 21 quotations and citations omitted). Exclusion of even a single juror based on such criteria sends a 22 "message . . . to all those in the courtroom, and all those who may later learn of the discriminatory act, 23 [] that certain individuals, for no reason other than [those traits], are presumed unqualified . . . to 24 decide important questions upon which reasonable persons could disagree" and "undermines public 25 confidence in the fairness of the system." J.E.B. v. Alabama, 511 U.S. 127, 142 & n.13 (1994). The 26 message can only be amplified when a judge is presumed unable to be impartial based on such criteria. 27 28 Moreover, to assume that a black judge cannot set aside his personal beliefs and decide a case about racial prejudice, that a woman judge cannot apply the law fairly when it comes to issues Plaintiff-Intervenor's Opposition to Motion to Vacate CASE NO. 09-CV-2292 JW 10 1 concerning women's right to autonomy and equal treatment, or that a Mormon or Jewish or Catholic 2 judge cannot carry out his duty to apply a law that may implicate his or her religious beliefs would be 3 highly hypocritical, since for centuries white judges, male judges and Protestant judges have been 4 presumed impartial when it comes to the very same matters. Pennsylvania v. Local Union 542, 388 5 F.Supp at 177. Until very recently no openly gay and lesbian person was appointed to the federal 6 bench, and it is still the case that the number of gay judges on state court benches is exceedingly small. 7 Thus most or all of the judges and justices who have heard and decided the many cases involving the 8 civil rights of gay men and lesbians have been heterosexual or at least not openly gay. See, e.g., 9 Bowers v. Hardwick, 478 US 186 (1986); Lawrence v. Texas, 539 U.S. 567; Romer v. Evans, 517 U.S. 10 620 (1996); Gill v. Office of Personnel Management, 699 F. Supp. 2d 374 (D. Mass. 2010); Log Cabin 11 Republicans v. United States, 716 F. Supp. 2d 884 (C.D. Cal. 2010). This has even been true when the 12 rights of gay people were alleged to be pitted against the rights of heterosexuals and their children. 13 See Lawrence, 539 U.S. at 2497 (Scalia, J., dissenting) ("Many Americans do not want persons who 14 openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, 15 as teachers in their children's schools, or as boarders in their home. They view this as protecting 16 themselves and their families from a lifestyle that they believe to be immoral and destructive."); 17 Romer, 517 U.S. at 645, 651-52 (Scalia, J., dissenting) (referring to the "problem" posed by "the 18 introduction into local schools of books teaching that homosexuality is an optional and fully 19 acceptable 'alternative life style'" and homosexuals' exercise of their "disproportionate" political power 20 "to achiev[e] not merely a grudging social toleration, but full social acceptance, of homosexuality," 21 equating "the perceived social harm of homosexuality" to "the perceived social harm of polygamy," 22 and describing the harm caused to those who view opposite-sex marriage as the ideal and hold 23 "traditional attitudes" from treating their negative views toward homosexuality as bigotry.). 24 In all of these situations, members of minority races, religions and sexual orientations, as well 25 as women for decades or centuries had to "accept the fact of their manifest absence from the federal 26 judicial process," Pennsylvania v. Local Union 542, 388 F. Supp. at 177, and the reality that all 27 judicial decisions about their civil rights would be made by judges who were non-minorities and male. 28 Perhaps not surprisingly, white judges do not appear to have been concerned that they might be unable Plaintiff-Intervenor's Opposition to Motion to Vacate CASE NO. 09-CV-2292 JW 11 1 to decide the civil rights of other white people who claimed that laws designed to address racial 2 discrimination deprived whites of their civil rights. See, e.g., Grutter v. Bollinger, 539 U.S. 306 3 (2003); Parents Involved In Community Schools v. Seattle School Dist. No. 1, 551 U.S. 701 (2006); 4 Crawford v. Board of Ed. of Los Angeles, 458 U.S. 527 (1982); Regents of the University of California 5 v. Bakke, 438 U.S. 265 (1978); Reitman v. Mulkey, 387 U.S. 369 (1967). The proposition that a 6 person's minority race or homosexual orientation renders them partial and unable to hear cases 7 regarding their own or other groups' civil rights when no such inference is drawn for white or 8 heterosexual judges would, if accepted, "amount to, in practice, a double standard within the federal 9 judiciary." Pennsylvania v. Local Union 542, 388 F.Supp. at 165 (emphasis in original). 10 The courts have rejected such a double standard and recognized that disqualifying minority 11 judges from major civil rights litigation solely because of their minority status is "intolerable" and will 12 "not [be] countenance[d]." United States v. Alabama, 828 F.2d at 1542. Such motions amount to "a 13 charge that the judge is [himself] racially or ethnically biased and is violating the judge's oath of 14 office." MacDraw, Inc. v. CIT Group Equip. Fin., Inc., 138 F.3d 33, 37 (2d Cir. 1998); see also Liteky 15 v. United States, 510 U.S. 540, 552 (1994) ("bias," "prejudice" and "partiality" are pejorative terms 16 "applied only to judicial predispositions that go beyond what is normal and acceptable"). The courts 17 have also recognized that in order to avoid a double standard, if minority judges were disqualified 18 then judges of the majority race or religion could not hear civil rights cases either, and the rule of 19 necessity would preclude disqualification. See, e.g., Blank, 418 F. Supp. at 4 ("Indeed, if background 20 or sex or race of each judge were, by definition, sufficient grounds for removal, no judge on this court 21 could hear this case, or many others, by virtue of the fact that all of them were attorneys, of a sex, 22 often with distinguished law firm or public service backgrounds.") 23 To presume that a gay judge will not fairly and impartially evaluate a claim involving gay 24 people's civil rights and will favor the gay over the non-gay party or position would be as intolerable 25 as making similar assumptions with respect to judges who are racial and ethnic minorities, women, 26 Jews, Catholics and members of other social, political or civic organizations. It would treat the gay 27 judge, and him or her alone, as simply a "component[] of a [sexual orientation] class" and not as an 28 individual. And it would be duplicitous in the context of decades of decisionmaking by scores of Plaintiff-Intervenor's Opposition to Motion to Vacate CASE NO. 09-CV-2292 JW 12 1 heterosexual judges all of whom have been presumed impartial in cases involving the rights of gay 2 people and attempts by heterosexual people to deny those rights. 3 Such a presumption would be particularly hypocritical in this case in which, by Proponents' 4 own account, allowing gay people to marry would produce a range of social ills that would adversely 5 affect heterosexual marriage, children and society at large. If, as Proponents have posited, allowing 6 gay couples to marry will "redefine," "deinstitutionalize" and ultimately destroy marriage for 7 "everyone else," how can a heterosexual judge who is married or desires to marry be presumed any 8 more impartial than a gay judge? And if, as Proponents again have advocated, allowing gay couples to 9 marry will result in grave harms to children, no judge who is a parent or grandparent may be presumed 10 impartial since the outcome of the case could gravely impact their close family members. And finally, 11 if as Proponents have argued, allowing gay couples to marry threatens the religious freedom of those 12 whose churches teach that homosexuality is immoral and sinful, then we cannot presume the 13 impartiality of a judge who is Catholic, Orthodox Jew, Mormon, Baptist or a member of many other 14 Protestant sects. In short, Proponents have insisted throughout the Prop 8 campaign and the trial of 15 this case that marriage equality is a battle between the interests of gay people and the interests of 16 "everyone else." And if gay judges and judges who comprise "everyone else" are all presumed biased, 17 no one will be left to hear and decide this case. 18 The case law discussed above is not new. This consistent line of federal courts decisions 19 rejecting recusal motions based on such traits and affiliations is nearly four decades in the making. 20 The courts long ago made plain that a person's race or gender or religion "com[es] nowhere near the 21 standards required for recusal" Blank v. Sullivan & Cromwell, 418 F. Supp. at 4; see also Menora, 22 527 F.Supp. at 634 ("What is critical here, . . . are not these facts as to religious beliefs, but rather the 23 poverty of IHSA's legal position in seeking to place them in issue"); El-Gabrowny, 844 F. Supp. at 24 962 (claim that judge should recuse himself because he was Jewish and movant suspected he had ties 25 to political Zionism" is not based on race or sex or the Mormon religion, but . . . is the same rancid 26 wine in a different bottle.") Indeed, so clear is the rule that criteria such as racial and ethnic heritage, 27 religion and gender are not a basis for accusing the judge of bias or appearance of bias that litigants 28 have been sanctioned for filing such motions. MacDraw, Inc., 138 F.3d at 37. Plaintiff-Intervenor's Opposition to Motion to Vacate CASE NO. 09-CV-2292 JW 13 1 Proponents are no doubt aware of these precedents, which is why they deny that their motion is 2 based on Chief Judge Walker's sexual orientation alone. Doc. 768 at 13 ("we are not suggesting that a 3 gay or lesbian judge could not sit on this case"). In an effort to take themselves out of this line of 4 authority Proponents claim that their motion is instead grounded in "Chief Judge Walker's long-term 5 committed relationship, his failure to disclose that relationship at the outset of the case, his failure to 6 disclose whether he has any interest in marriage should his injunction be affirmed, and his actions over 7 the course of this lawsuit." Proponents' attempt to cloak their sexual orientation-based recusal motion 8 in other clothing ultimately must fail, for the same reasons similar motions have been repeatedly 9 rejected with respect to judges with other traits that are impermissible bases for disqualification: the 10 "plus factors" asserted are closely connected to the traits at issue and add no basis for recusal beyond 11 the prohibited trait. See, e.g., United States v. El-Gabrowny, 844 F. Supp. 955 (alleged relationships 12 of judge's family members to State of Israel and ties to political Zionism and prior rulings defendant 13 claimed were so unjustified as to raise inference that they stem from bias); Vietnamese Fishermen's 14 Association, 518 F.Supp. at 1020 (types of cases judge handled as a practicing attorney prior to 15 becoming a judge); Idaho v. Freeman, 507 F. Supp. 706 (Mormon Church's politically active 16 opposition to Equal Rights Amendment, Church's institution of excommunication of leader of group 17 supporting ERA, fact that numerous newspaper editorialists were questioning judge's impartiality, 18 judge's former position as Regional Representative of the Mormon Church); Blank, 418 F. Supp. 1 19 (judge's prior rulings in the case and manner of issuing such rulings, comments attributed to judge 20 regarding crippling effects of discrimination and fact that she represented blacks who suffered race 21 discrimination during her legal career); Pennsylvania v. Local Union 542, 388 F. Supp. 1 (African 22 American Judge's identification with causes of blacks and the social injustices caused to them, 23 personal and emotional commitments to civil rights causes of the black community, speech judge 24 made to historical association focused on Afro-American life and history criticizing Supreme Court 25 decisions involving racial discrimination, and use of the pronoun "we" in the course of the speech); 26 United States v. Nelson, 2010 U.S. Dist. LEXIS 63814 (judge's alleged close relationship with head of 27 an organization that allegedly brought about the prosecution of the crimes at issue, fact that judge 28 previously was an Assistant U.S. Attorney). Plaintiff-Intervenor's Opposition to Motion to Vacate CASE NO. 09-CV-2292 JW 14 1 There can be no doubt that Proponents' motion is based at least in part on Judge Walker's 2 sexual orientation since Proponents do not suggest that any judge with a long-term relationship would 3 have to recuse herself from the case. Rather, the fact that Judge Walker had, and according to 4 Proponents should have disclosed," a long term same-sex relationship, is the crux of their concern that 5 he cannot be impartial. It is this relationship which in Proponents' view requires the Court to infer that 6 he has "a direct personal interest" in being permitted to marry his partner. Doc. 768 at 10 ("Given that 7 Chief Judge Walker was in a committed, long-term, same-sex relationship throughout this case (and 8 for many years before the case commenced), it is clear that his 'impartiality might reasonably [have 9 been] questioned' from the outset."); see also id. 9-10. At least one court has held that a motion "based 10 even in part on impermissible criteria relating to a judge's background or affiliations shifts the burden 11 to the defendant to prove that the other grounds offered to justify the motion are not pretextual." 12 United States v. Nelson, 2010 U.S. Dist. LEXIS 63814 at *9. As discussed in Parts II(B)-(D) below, 13 none of the factors Proponents assert in addition to Judge Walker's sexual orientation creates a basis 14 for finding either that he was or that he appeared to be impartial. 15 16 B. Proponents Have Shown No More Than That Judge Walker Has The Same Interest All Gay Persons Have In Being Free From Discrimination, And It Is Well Established That Interests Shared By A Broad Group Of People Are Not Grounds For Disqualification. 17 The claim that Judge Walker's relationship renders him unable to be impartial implies that gay 18 judges, unlike other judges, must be monks or hermits in order to be impartial in a gay civil rights 19 case. After all, the reason gay people are disdained and treated differently is precisely because of their 20 relationships. To be or desire to be in a same-sex relationship is to be gay; to be gay and to be in a 21 same-sex relationship are for all intents and purposes the same. As Plaintiffs' and the City's expert on 22 social psychology, sexual orientation and stigma, Dr. Gregory Herek (Trial Tr. 2022), testified at trial: 23 24 25 26 "[S]exual orientation is at its heart a relational construct, because it is all about a relationship of some sort between one individual and another, and a relationship that is defined by the sex of the two persons involved, whether male and female, male and male, female and female. . . . "[W]hether we are talking about behavior or attraction or identity, it is really about the fundamental relationships that people form to meet their needs for intimacy and attachment." 27 Trial Tr. 2027. Given this reality, under Proponents' theory, in order to be fair in a case about gay civil 28 rights, gay people either must either be celibate and devote themselves to the law alone or, in the Plaintiff-Intervenor's Opposition to Motion to Vacate CASE NO. 09-CV-2292 JW 15 1 alternative, fit the gay stereotype Proponents relied on at trial, of someone who leads a promiscuous 2 "lifestyle" and is uninterested in enduring relationships. See, e.g. Trial Tr. 616-18. Stereotypes aside, 3 how does having a same-sex relationship distinguish Judge Walker from the vast majority of gay 4 people? To ask the question is to answer it. 5 The law of recusal does not require judges to forego personal and social lives, as eminent 6 authority indicates: 7 A judge must have neighbors, friends, and acquaintances, business and social relations, and be part of his day and generation. . . . The ordinary results of such associations and the impressions they create in the mind of the judge are not the personal bias or prejudice to which the recusal statute refers. Pennsylvania v. Local 542, 388 F. Supp. at 157 (Higginbotham, J.). The eminent legal scholar and teacher Louis Schwartz once explained: 'To be only a lawyer is to be half a lawyer.' The same could be said of judges. Taking the bench is a form of public service which does not operate to exclude all other forms of social and civil life. To adopt the [contrary] view . . . is not only inadvisable, it is dangerous. What could be more inimical to the sound application of contemporary standards of justice than to banish those who must administer it to an uncontemporary existence? Sexson, 830 F.Supp. at 482 (Barker, J.). 8 9 10 11 12 13 14 Nor does being in a relationship fundamentally change one's interest in the subject matter of 15 this case. All gay people share an interest in being afforded the same basic freedoms heterosexuals 16 already enjoy, including the freedom to decide for themselves whether and whom to marry. Even 17 individual gay people who do not now desire to marry have an interest in being allowed, as every 18 heterosexual person is readily allowed, to change their mind when they meet that person who becomes 19 the love of their life. And every gay person—regardless of relationship status—has an interest in the 20 elimination of laws like Proposition 8 that treat gay relationships, and thus by definition gay people, as 21 different and inferior. Such laws stigmatize all gay people whether coupled or single. See, e.g., Trial 22 Tr. 818-21; 2051-54. 23 The duration of a person's relationship does not change this; people in longstanding 24 relationships have no stronger an interest in marriage than people in relationships formed relatively 25 recently. No one would suggest that a man and woman who became engaged six months after they 26 met had any less interest in marriage than a couple who made the same decision after many years. 27 Duration tells us little about the nature or quality of a relationship. A couple may be "together" for 28 Plaintiff-Intervenor's Opposition to Motion to Vacate CASE NO. 09-CV-2292 JW 16 1 many years without cohabiting, without commingling their assets, and without undertaking to support 2 each other. And duration of a relationship does not tell us the couple's intentions with respect to 3 marriage. Nor, finally, does it tell us whether the couple is already married, which if Judge Walker 4 and his partner had desired to do they could (and may) have done in 2008 when marriage was legal for 5 same-sex couples in California, or at various times from 2001 through the present in the many states 6 and countries that have permitted same-sex couples to marry.6 7 But, Proponents contend, we were entitled to know more about Judge Walker's relationship 8 with his partner and, more specifically, whether they intended to marry. Doc. 768 at 11. Indeed, 9 Proponents contend Judge Walker should have volunteered this information, and since he did not the 10 Court must infer that he intended to marry his partner once that right was secured by his ruling in this 11 case. According to Proponents, Judge Walker's presumed subjective intent makes all the difference 12 and necessitated his recusal and, indeed, requires that his decision in this case must now be vacated. 13 That is not and cannot be the standard. In rejecting challenges to judges based on their 14 religious affiliation, the courts have not based their decisions on how fervently a judge held the beliefs 15 that were feared likely to affect his judgment both because the standards for bias and appearance of 16 bias are objective as a matter of law, and because a subjective standard is unworkable. See Feminist 17 Women's Health Center v. Codispoti, 69 F.3d 399, 400 (9th Cir. 1995) (Noonan, J.) ("[T]he plaintiffs 18 qualify my beliefs as 'fervently-held' as if to distinguish my beliefs from those that might be 19 lukewarmly maintained. A moment's consideration shows that the distinction is not workable. . . . No 20 thermometer exists for measuring the heatedness of a religious belief objectively. Either religious 21 belief disqualifies or it does not. Under Article VI it does not.").7 So here, there is no thermometer to 22 measure the strength or intimacy of a couple's relationship or the intensity of their desire to formalize 23 and celebrate that relationship now or in the future, and to inquire into such matters is as offensive to 24 6 25 26 27 28 States that permit same-sex couples to marry include Massachusetts, Connecticut, Iowa, Vermont and New Hampshire. The District of Columbia does so as well. Other countries that permit same-sex couples to marry include the Netherlands, Belgium, Canada, Spain, South Africa, Norway, Sweden, Argentina, Iceland and Portugal. 7 Accord, In re McCarthey, 368 F.3d 1266, 1270 (10th Cir. 2004) ("Should we require federal judges to disclose the firmness of their beliefs in religious doctrine, it is a very fine line before we enter the business of evaluating the relative merits of differing religious claims."). Plaintiff-Intervenor's Opposition to Motion to Vacate CASE NO. 09-CV-2292 JW 17 1 the constitutional right of privacy, see Lawrence v. Texas, 539 U.S. 558, as inquiring into religious 2 beliefs is to the right to freely exercise one's religious beliefs. 3 Consider the consequences of such an inquiry or disclosure obligation. If Judge Walker said 4 he did not intend to marry his partner; would Proponents then be satisfied? What if he said they did 5 not currently plan to do so; would that be adequate? What if he said they were already married? 6 (Proponents would no doubt complain that this demonstrated a prejudgement that same-sex couples 7 should be allowed to marry, although it would in fact tell us nothing about his view of the 8 constitutional issues.) And if he said they simply did not wish to marry for personal reasons, would 9 Proponents be entitled to inquire further? What if he said they did not wish to marry, but they changed 10 their minds at some later time? Would that be grounds for vacating the judgment at that later date? 11 Would we ask the same intrusive questions of a heterosexual judge about his or her marriage or 12 interests in this matter to assess his potential bias in the case, in light of the harms to heterosexual 13 couples and their families that Proponents contended Proposition 8 was intended to prevent? These 14 scenarios demonstrate the absurdity of basing a disqualification decision on an inquiry into subjective 15 beliefs or intentions of a judge or particulars regarding his or her relationship. Just as the question in 16 evaluating the recusal motion in Feminist Women's Health Center, 69 F.3d at 400 could not be how 17 fervently held Judge Noonan held his religious beliefs, so here, it cannot depend on Judge Walker's 18 subjective feelings and intentions with respect to his relationship. Rather, in deciding this motion, the 19 question must simply be "whether incapacitating prejudice flows from [sexual orientation]." Id. 20 Contrary to Proponents' arguments, the possibility that Judge Walker may wish to marry his 21 companion now or in the future does not constitute "a financial interest in the subject matter of the 22 controversy . . . or any other interest that could be substantially affected by the proceeding" requiring 23 his disqualification under § 455(b)(4) because of the rule that interests that are widely shared with a 24 broad segment of society are insufficient as a matter of law to create bias, either actual or apparent. 25 For example, in City of Houston, 745 F. 2d 925, the judge was a member of the plaintiff class of black 26 and Mexican voters challenging Houston's at-large system for electing council members on grounds 27 that it unconstitutionally discriminated against African American and Mexican American voters by 28 diluting their votes. The city sought to disqualify the judge on the ground that as a member of the Plaintiff-Intervenor's Opposition to Motion to Vacate CASE NO. 09-CV-2292 JW 18 1 plaintiff class the judge was a "party to the proceeding" and as such was required to disqualify herself 2 under 28 U.S.C. § 455(b)(5). The judge declined to recuse herself and the Fifth Circuit affirmed, 3 holding that her membership in the class did not make her a party for purposes of the recusal statutes. 4 Nor did the membership of the judge's husband in the class provide any more basis for disqualification 5 because "[m]any civil rights suits are brought in the form of class actions," and "it is hard to imagine a 6 case in which a minority judge would not have a family member within the class." A holding that a 7 judge's family member's inclusion in the plaintiff class in civil rights cases subjected the judge to 8 disqualification "would be an offensive precedent against judges who are members of minority 9 groups." Id. at 930. Further, disqualification in a case such as this would mean no judge could hear 10 the case because if voting rights of minorities were at stake so were those of the majority: 11 For every class that claims to be injured by an action or policy that is the subject of declaratory relief, there is a counter-class that, by definition, must be benefited. If the voting power of blacks is made less diluted and more equitable, then the voting power of any other class of voters, such as whites, is proportionally affected. (Id. at 931.) 12 13 14 Another example is United States v. Alabama, 828 F.2d 1532 (11th Cir. 1987), in which the 15 judge and his children were members of the plaintiff class challenging Alabama's system of public 16 higher education on the ground that the state had failed to remove the vestiges of the dual system of 17 education that resulted from its past policy of racial segregation, and the judge was not required to 18 recuse himself on those grounds.8 The suits sought increased funding, the transfer of programs to 19 historically black universities, and a merger of two white universities into one of the historically black 20 universities. Id. at 1534, 1535. The judge was part of the class of black citizens who would become 21 eligible for employment including as professors at public institutions of higher education, id. at 1542 22 n.38, and his children, one of whom was 16 at the time, were eligible or could become eligible to 23 attend the public colleges and universities run by the state that were the subject of the suit. Id. at 1541. 24 The court applied the rule that "[a]n interest which a judge has in common with many others in a 25 public matter is not sufficient to disqualify him" and observed that "no personal bias or reasonable 26 27 28 8 The Court ultimately held that Judge Clemon was properly recused because through earlier work he had acquired extrajudicial knowledge of facts at issue in the case. Id. at 1545-46. Plaintiff-Intervenor's Opposition to Motion to Vacate CASE NO. 09-CV-2292 JW 19 1 doubt about the judge's impartiality exists in these circumstances." Id. at 1541 (internal quotations and 2 citations omitted). The court also observed that "[t]o disqualify Judge Clemon on the basis of his 3 children's membership in the plaintiff class also would come dangerously close to holding that 4 minority judges must disqualify themselves from all major civil rights actions" and that "[t]o 5 disqualify minority judges from major civil rights litigation solely because of their minority status is 6 intolerable" and "[t]his court cannot and will not countenance such result." Id. at 1542. And like the 7 Fifth Circuit's observation about the reciprocal interests of minority and majority voters in voting 8 rights cases, the Eleventh Circuit concluded that it was not only minority members who have an 9 interest in the proposed changes to the Alabama college and university system: "every Alabama judge 10 with children, whether members of the class or not, has an interest in the future of the state university 11 system." Id. Other courts have likewise rejected disqualification motions where the asserted "interest" 12 is one a judge has in common with many others. E.g., Christiansen v. National Savings & Trust Co., 13 683 F.2d 520, 525-26(D.C. Cir. 1982) (judges were members of class defined as all federal employees 14 who were Blue Cross and Blue Shield subscribers claiming breach of fiduciary duties by 15 overwithholding funds to pay subscribers' medical claims); Exxon Crop. v. Heinze, 792 F. Supp. 72 16 (D. Alaska 1992) (judge who was Alaska resident was not disqualified from hearing dispute over oil 17 drilling royalties due to state even though damages would be paid into fund distributed as dividends to 18 all Alaska citizens). 19 This case provides even less ground for disqualification than City of Houston and United States 20 v. Alabama because, unlike those cases, this case was not a class action and Chief Judge Walker unlike 21 the judges in those cases or their family members was not a member of any putative or certified class. 22 And while the right to marry is significant for all gay men and lesbians (and for that matter all people), 23 the interests of African Americans (and for that matter people of all races) in attending unsegregated 24 colleges and universities and being able to vote without discriminatory dilution of their votes are 25 equally significant. And just as in those cases, if Judge Walker could be disqualified from hearing this 26 case because he has a same-sex relationship, it is hard to see how any gay judge could hear any major 27 civil rights case brought on behalf of gay people. 28 Plaintiff-Intervenor's Opposition to Motion to Vacate CASE NO. 09-CV-2292 JW 20 1 Finally, Proponents' contention that Judge Walker's interest in marriage is a "financial interest" 2 within the meaning of § 455(b)(4) because of the testimony demonstrating denial of marriage has 3 adverse financial consequences for many lesbians and gay men ignores the definition of "financial 4 interest" in § 455(b)(5) as "ownership of a legal or equitable interest" or "active participant in the 5 affairs of a party." 6 C. 7 8 9 Proponents' Litany Of Complaints About Judge Walker's Rulings Falls Far Short Of The Required Showing Of "Deep Seated Favoritism Or Antagonism" Toward A Party "That Would Make Fair Judgment Impossible." Proponents contend not only that Chief Judge Walker should have disclosed his so-called interest in the outcome of the proceeding, but that the only proper remedy now is the complete vacatur 10 of the judgment in the case along with every other order the district court entered—in effect, erasing 11 the entire 14-day trial and the court's findings of fact and conclusions of law. Doc. 768 at 11. They 12 base this extraordinary request in part on what they deem the district court's "irregular and 13 unprecedented rulings." Id. Their characterization of the court's rulings provides no basis to vacate 14 the judgment, for two reasons: first, under the extrajudicial source doctrine, a disqualification cannot 15 be based on judicial rulings except in extreme circumstances not present here; and second, Proponents' 16 litany of complaints about the district court's rulings are exaggerations or mischaracterizations that 17 find no support in the record. 18 Under the extrajudicial source doctrine, generally "[a]dverse rulings do not constitute the 19 requisite bias or prejudice" to support disqualification. United States v. Azhocar, 581 F.2d 735, 739 20 (9th Cir. 1978); see also United States v. Grinnell Corp., 384 U.S. 563, 583 (1966); Berger v. United 21 States, 255 U.S. 22, 31 (1921); Sibla, 624 F.2d at 869; Davis v. Bd. of Sch. Commissioners of Mobile 22 County, 517 F.2d 1044, 1051, 1052 (5th Cir. 1975). Indeed, as the Supreme Court has explained and 23 as Proponents admit (Doc. 768 at 11), judicial rulings "[a]lmost invariably . . . are proper grounds for 24 appeal, not for recusal." Liteky v. United States, 510 U.S. 540, 555 (1994); Ex parte American Steel 25 Barrel Co., 230 U.S. 35, 44 (1913) (recusal statute was "never intended to enable a discontented 26 litigant to oust a judge because of adverse rulings made, for such rulings are reviewable otherwise"). 27 Unless judicial rulings "display a deep-seated favoritism or antagonism that would make fair judgment 28 impossible," they do not support a bias challenge. Liteky, 510 U.S. at 555. Plaintiff-Intervenor's Opposition to Motion to Vacate CASE NO. 09-CV-2292 JW 21 1 The rulings of which Proponents complain as a basis for Chief Judge Walker's bias are 2 reviewable—indeed, they are presently pending appellate review, and Proponents have raised some of 3 the same objections to the district court's orders in their appellate briefs that they raise in this motion. 4 Compare Doc. 768 at 11 with Ninth Circuit Case No. 10-16696, Doc. 21 at 64-65. Nor is this a case 5 where the district court's rulings display antagonism, much less antagonism of the kind and degree that 6 Liteky requires to support a bias challenge. Stripped of their mischaracterizations, Proponents' 7 complaints have little force, as we show here. 8 1. Proponents imply that the district court issued an unwarranted discovery ruling, 9 pointing to the Ninth Circuit's issuance of a writ of mandamus to narrow that discovery order. Doc. 10 768 at 11:1-3. They neglect to mention that the Ninth Circuit characterized the particular discovery 11 issue as "an important issue of first impression," Perry v. Schwarzenegger, 591 F.3d 1126, 1137 (9th 12 Cir. 2009) (emphasis added), and largely upheld the scope of the district court's order, permitting 13 Proponents to withhold pursuant to a First Amendment privilege only a narrow swath of "private, 14 internal campaign communications concerning the formulation of campaign strategy and messages," 15 id. at 1145 n.12 (emphasis omitted), not all communications except those directed to the general 16 public, as Proponents would have had it. Nor do they mention that Judge Walker's orders simply 17 affirmed the analysis of Magistrate Judge Spero, or explain why he might be biased in this matter. 18 2. They complain of Chief Judge Walker's order permitting the real-time streaming of 19 video of the trial proceedings to federal courthouses beyond the San Francisco branch of the Northern 20 District of California and cite the Supreme Court's order staying this broadcast. Doc. 768 at 11:4-8. 21 They neglect to mention that the Supreme Court also stayed Ninth Circuit Chief Judge Kozinski's 22 order approving streaming video to these courthouses, Hollingsworth v. Perry, 130 S. Ct. 705, 709 23 (2010) or that four Justices dissented from the Supreme Court's order, and they offer no explanation 24 for any personal bias that, under their logic, these five jurists must have also possessed to have agreed 25 with Chief Judge Walker's original order. In any event, as we argue in the following section, other 26 than the bare fact that Proponents opposed broadcasting the trial proceedings and Plaintiffs supported 27 it, there is nothing in Chief Judge Walker's order concerning the videotaping or broadcasting of trial 28 proceedings—or in his subsequent use of a small excerpt of the video in an academic talk, as Plaintiff-Intervenor's Opposition to Motion to Vacate CASE NO. 09-CV-2292 JW 22 1 Proponents also bemoan (Doc. 768 at 11:20-23)—that indicates any "deep-seated . . . antagonism" to 2 them or their position concerning Proposition 8. If anything, these events indicate only that Chief 3 Judge Walker is a stalwart supporter of permitting greater public access to trial proceedings through 4 video broadcasts. 5 3. Proponents cite the district court's evaluation of the merits of Plaintiffs' claims as a 6 factor favoring his disqualification. Doc. 768 at 11:9-16. They note in particular that the court 7 recognized a federal constitutional right of same-sex couples to marry and that the court held that gay 8 men and lesbians are a suspect class, requiring heightened scrutiny of discrimination against them. All 9 Proponents have established by these plaints is that Chief Judge Walker acted as a judge by evaluating 10 merits of the case before him after a full trial in which they had every opportunity to defend 11 Proposition 8 but failed to do so persuasively. As Justice Scalia explains in Liteky, 12 13 14 The judge who presides at a trial may, upon completion of the evidence, be exceedingly ill disposed towards the defendant, who has been shown to be a thoroughly reprehensible person. But the judge is not thereby recusable for bias or prejudice, since his knowledge and the opinion it produced were properly and necessarily acquired in the course of the proceedings, and are indeed sometimes (as in a bench trial) necessary to completion of the judge's task. 15 Liteky, 510 U.S. at 551. Here, the district court held a 14-day bench trial and heard all of the modest 16 evidence in support of Proposition 8 that Proponents had to offer. The fact that the judge formed an 17 opinion of Proposition 8's constitutionality after hearing evidence concerning it is precisely what 18 judges are expected to do. Nor is there merit to Proponents' irresponsible implication that the district 19 court's findings of fact and conclusions of law did not respect relevant precedent. See Doc. 768 at 20 11:12 ("Chief Judge Walker did not [even] cite, let alone address" prior decisions about marriage of 21 same-sex couples or whether gay people are a suspect class). As Proponents are well aware, the 22 authority that the district court's ultimate opinion supposedly ignores were treated in the district court's 23 ruling on Proponents' motion for summary judgment. Doc. 228 (Tr. 75-90). The district court 24 concluded that Baker v. Nelson, 409 U.S. 810 (1972) (mem.), was not on all fours with Proposition 8 25 and that it had been fatally undermined by subsequent doctrinal developments. Id. at 75-78. The court 26 considered Proponents' contentions that the Due Process Clause does not protect the right of lesbians 27 and gay men to marry but determined that evidence was required to determine what government 28 Plaintiff-Intervenor's Opposition to Motion to Vacate CASE NO. 09-CV-2292 JW 23 1 interests a ban on their marriages served. Id. at 79-81. Finally, the court addressed Proponents' claim 2 that lesbians and gay men are not a suspect class entitled to heightened Equal Protection Clause 3 scrutiny, and found that there was no Ninth Circuit precedent controlling the question, since Lawrence 4 v. Texas, 539 U.S. 558, had fatally undermined a prior circuit case holding rational basis review 5 appropriate. Id. 6 In short, the district court has treated the doctrines that Proponents claim it ignored, and their 7 disagreement with the court's legal judgment is a suitable basis for appeal, not the recusal of the judge. 8 In any event, Proponents' complaint that Chief Judge Walker must have suffered under a bias to 9 conclude that gay people are a suspect class under federal Equal Protection Clause analysis would 10 seem to apply equally to Attorney General Eric Holder, who announced recently that the U.S. 11 Department of Justice would not defend section 3 of the Defense of Marriage Act because it cannot 12 withstand heightened scrutiny under the same suspect class analysis that Chief Judge Walker applied 13 here. Likewise Proponents' faulting of Judge Walker's ruling as conflicting with the judgments of 14 other state and federal appellate courts to consider the issue must mean the judges who recently struck 15 down the federal Defense of Marriage Act under the Equal Protection Clause in Gill v. Office of 16 Personnel Management, 699 F. Supp. 2d 374 (D. Mass. 2010) and Dragovich v. U.S. Department of 17 the Treasury, No. 10-01564 CW, 2011 U.S. Dist. LEXIS 4859 (N.D. Cal. Jan. 18, 2011), were equally 18 biased, since their decisions that the federal statute denying the status of marriage under federal law to 19 same-sex couples who are permitted by their states to marry failed the rational basis test and were 20 rooted in animus, and their rulings were likewise "unprecedented." And presumably the State 21 Supreme Courts in California, Iowa, Massachusetts and Connecticut, which struck down their states 22 statutory denials of marriage to same-sex couples under their state equal protection and due process 23 guarantees must be biased because their decisions departed from prior state court precedents. 24 4. Proponents claim that the district court's order denying them a stay of judgment 25 pending appeal shows bias is equally without merit. Doc. 768 at 11:17-19. They neglect to note in 26 their discussion that a critical reason the court denied their stay request, and the chief focus of the 27 court's analysis of their likelihood of success on the merits, is that it found they likely lacked standing 28 to sustain an appeal. Doc. 727 at 3-6. The Ninth Circuit, too, has questioned Proponents' standing. Plaintiff-Intervenor's Opposition to Motion to Vacate CASE NO. 09-CV-2292 JW 24 1 2 Perry v. Schwarzenegger, 628 F.3d 1191 (9th Cir. 2011). In short, Proponents' claim that Chief Judge Walker's merits rulings show bias only 3 demonstrates that Proponents disagree with those rulings, of which they are currently seeking review 4 by means of appeal. This is not the rare case where intrajudicial decisions provide a basis for recusal. 5 D. Proponents' Complaint That Judge Walker's Use Of A Small Portion Of The Trial Video At A Legal Education Event In No Way Demonstrates Bias Against Them. 6 Proponents cite Chief Judge Walker's use of a portion of the trial video during a talk in an 7 academic setting as an example of bias. Even if they had averred the underlying facts in an affidavit 8 filed pursuant to 28 U.S.C. § 144, which they did not, these events would not have raised a prima facie 9 inference of bias because there is nothing about them that indicates any hostility to them or their 10 position. Apparently Chief Judge Walker has displayed a few moments of the cross-examination of 11 Professor Kenneth Miller, Proponents' political science expert, to illustrate the information conveyed 12 by video testimony that a bare transcript would not convey. See http://www.c13 spanvideo.org/program/298109-3 (last visited May 12, 2011). As is evident from both sides' 14 arguments for and against Proponents' motion that all trial video recordings be returned and Plaintiffs' 15 cross-motion that the video recordings be unsealed, Chief Judge Walker's remarks relate to the 16 question whether it is appropriate and important to allow greater public access to trial proceedings 17 through the use of video recordings. They have nothing at all to do with whether Proposition 8 is or is 18 not constitutional. Chief Judge Walker's views in the former context shed no light at all on whether he 19 has any untoward bias in regard to the latter. 20 CONCLUSION 21 Proponents' motion has no support other than the argument that a person who is a member of a 22 minority group, and has associations typical of members of that minority group, cannot fairly judge a 23 case involving the rights of that group. This tired argument has been repeatedly and consistently 24 rejected and is not worthy of further debate. Proponents' motion should be denied. 25 26 27 28 Plaintiff-Intervenor's Opposition to Motion to Vacate CASE NO. 09-CV-2292 JW 25 1 Dated: May 12, 2011 DENNIS J. HERRERA City Attorney THERESE M. STEWART Chief Deputy City Attorney CHRISTINE VAN AKEN MOLLIE M. LEE Deputy City Attorneys 2 3 4 5 By: 6 /s/ THERESE M. STEWART Chief Deputy City Attorney 7 Attorneys for Plaintiff-Intervenor CITY AND COUNTY OF SAN FRANCISCO 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff-Intervenor's Opposition to Motion to Vacate CASE NO. 09-CV-2292 JW 26