Perry et al v. Schwarzenegger et al

Filing 779

RESPONSE (re 768 MOTION to Vacate Judgment ) Plaintiffs' Opposition to the Motion to Vacate Judgment filed byPaul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Olson, Theodore) (Filed on 5/13/2011)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 GIBSON, DUNN & CRUTCHER LLP Theodore B. Olson, SBN 38137 TOLSON@GIBSONDUNN.COM Matthew D. McGill, pro hac vice Amir C. Tayrani, SBN 229609 1050 Connecticut Ave., N.W., Washington, D.C. 20036 T: (202) 955-8668 | F: (202) 467-0539 Theodore J. Boutrous, Jr., SBN 132009 TBOUTROUS@GIBSONDUNN.COM Christopher D. Dusseault, SBN 177557 Ethan D. Dettmer, SBN 196046 Sarah E. Piepmeier, SBN 227094 Theane Evangelis Kapur, SBN 243570 Enrique A. Monagas, SBN 239087 333 S. Grand Ave., Los Angeles, CA 90071 T: (213) 229-7804 | F: (213) 229-7520 BOIES, SCHILLER & FLEXNER LLP David Boies, pro hac vice DBOIES@BSFLLP.COM 333 Main St., Armonk, NY 10504 T: (914) 749-8200 | F: (914) 749-8300 Jeremy M. Goldman, SBN 218888 JGOLDMAN@BSFLLP.COM 1999 Harrison St., Ste. 900, Oakland, CA 94612 T: (510) 874-1000 | F: (510) 874-1460 Attorneys for Plaintiffs Kristin M. Perry, Sandra B. Stier, Paul T. Katami, and Jeffrey J. Zarrillo 17 18 19 20 21 22 23 24 25 26 27 28 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA KRISTIN M. PERRY, et al., Plaintiffs, and CITY AND COUNTY OF SAN FRANCISCO, Plaintiff-Intervenor, v. EDMUND G. BROWN, JR., et al., Defendants, and PROPOSITION 8 OFFICIAL PROPONENTS DENNIS HOLLINGSWORTH, et al., Defendant-Intervenors. CASE NO. 09-CV-2292 JW PLAINTIFFS’ OPPOSITION TO PROPONENTS’ MOTION TO VACATE JUDGMENT Date: Time: Judge: Location: June 13, 2011 9:00 a.m. Chief Judge James Ware Courtroom 5, 17th Floor Gibson, Dunn & Crutcher LLP 09-CV-2292 JW PLAINTIFFS’ OPPOSITION TO PROPONENTS’ MOTION TO VACATE JUDGMENT 1 TABLE OF CONTENTS 2 Page 3 I. INTRODUCTION ..................................................................................................................1 5 II. PROCEDURAL HISTORY AND FACTUAL BACKGROUND .........................................4 6 III. 7 THE COURT SHOULD DENY PROPONENTS’ MOTION TO VACATE ITS THOROUGH AND AMPLY SUPPORTED FINDINGS OF FACT AND CONCLUSIONS OF LAW .........................................................................7 8 A. 4 9 There Is No Plausible Basis For Questioning Judge Walker’s Impartiality...................................................................................................................8 10 1. Section 455(b)(4) Did Not Require Judge Walker’s Recusal ..........................9 11 2. Section 455(a) Did Not Require Judge Walker’s Recusal .............................15 B. Proponents’ Deliberate Strategy To Wait Until After An Adverse Judgment To Seek Recusal Renders This Motion Unjust And Untimely.....................................................................................................................17 C. 12 Even If Disqualification Were Required, Vacating The Judgment Would Not Be Warranted...........................................................................................19 13 14 15 16 IV. CONCLUSION ....................................................................................................................21 17 18 19 20 21 22 23 24 25 26 27 28 Gibson, Dunn & Crutcher LLP i 09-CV-2292 JW PLAINTIFFS’ OPPOSITION TO PROPONENTS’ MOTION TO VACATE JUDGMENT 1 2 TABLE OF AUTHORITIES Page(s) 3 4 CASES  5 Arizonans for Official English v. Arizona, 520 U.S. 43 (1997) ......................................................................................................... 6, 14, 19 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Gibson, Dunn & Crutcher LLP Baker v. Nelson, 409 U.S. 810 (1972) ................................................................................................................. 14 Batson v. Kentucky, 476 U.S. 79 (1986) ................................................................................................................... 10 In re BellSouth Corp., 334 F.3d 941 (11th Cir. 2003).................................................................................................. 10 Bowen v. Gilliard, 483 U.S. 587 (1987) ................................................................................................................. 11 Bowers v. Hardwick, 478 U.S. 186 (1986) ................................................................................................................. 15 Bracy v. Gramley, 520 U.S. 899 (1997) ................................................................................................................. 20 Brown v. Bd. of Educ., 347 U.S. 483 (1954) ............................................................................................................. 2, 16 Caperton v. A.T. Massey Coal Co., 129 S. Ct. 2252 (2009) ............................................................................................................. 20 Chevron Corp. v. Donziger, No. 11 Civ. 0691 (LAK) (S.D.N.Y. May 9, 2011) .............................................................. 3, 21 City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) ................................................................................................................. 11 In re City of Houston, 745 F.2d 925 (5th Cir. 1984).................................................................................. 11, 12, 13, 15 Clemens v. U.S. District Court, 428 F.3d 1175 (9th Cir. 2005).................................................................................................... 8 Day v. Apoliona, 451 F. Supp. 2d 1133 (D. Hawaii 2006) ...................................................................... 10, 13, 16 Dist. of Columbia v. Heller, 554 U.S. 570 (2008) ................................................................................................................. 12 ii 09-CV-2292 JW PLAINTIFFS’ OPPOSITION TO PROPONENTS’ MOTION TO VACATE JUDGMENT 1 2 TABLE OF AUTHORITIES [Continued] Page(s) 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 E. & J. Gallo Winery v. Gallo Cattle Co., 967 F.2d 1280 (9th Cir. 1992)............................................................................................ 17, 18 Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568 (1988) ......................................................................... 10 Feminist Women’s Health Ctr. v. Codispoti, 69 F.3d 399 (9th Cir. 1995).................................................................................................. 9, 10 Gratz v. Bollinger, 539 U.S. 244 (2003) ................................................................................................................. 16 Grutter v. Bollinger, 539 U.S. 306 (2003) ................................................................................................................. 16 High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563 (9th Cir. 1990).................................................................................................... 14 Hollingsworth v. Perry, 130 S. Ct. 705 (2010) ............................................................................................................... 20 Hosler v. Green, 173 F.3d 844 (2d Cir. 1999)..................................................................................................... 12 Laird v. Tatum, 409 U.S. 824 (1972) ................................................................................................................. 12 Lawrence v. Texas, 539 U.S. 558 (2003) ................................................................................................................. 15 Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847 (1988) ..................................................................................................... 17, 19, 20 Liteky v. United States, 510 U.S. 540 (1994) ................................................................................................................. 14 Loving v. Virginia, 388 U.S. 1 (1967) ..................................................................................................................... 16 Lyng v. Castillo, 477 U.S. 635 (1986) ................................................................................................................. 11 MacDraw Inc. v. CIT Grp. Equip. Fin., Inc., 138 F.3d 33 (2d Cir. 1998)............................................................................................. 8, 10, 13 28 Gibson, Dunn & Crutcher LLP iii 09-CV-2292 JW PLAINTIFFS’ OPPOSITION TO MOTION TO VACATE 1 2 TABLE OF AUTHORITIES [Continued] Page(s) 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Mass. Bd. of Ret. v. Murgia, 427 U.S. 307 (1976) ................................................................................................................. 11 Ortega Melendres v. Arpaio, No. CV-07-2513-PHX-MHM, 2009 WL 2132693 (D. Ariz. July 15, 2009) ................ 8, 10, 13 Pennsylvania v. Local Union 542, Int’l Union of Operating Eng’rs, 388 F. Supp. 155 (E.D. Pa. 1974) ................................................................................ 14, 15, 16 Perry v. Schwarzenegger, 591 F.3d 1147 (9th Cir. 2010).................................................................................................. 20 Perry v. Schwarzenegger, 628 F.3d 1191 (9th Cir. 2011)................................................................................................ 6, 7 Perry v. Schwarzenegger, 630 F.3d 909 (9th Cir. 2011).................................................................................................. 6, 8 Plessy v. Ferguson, 163 U.S. 537 (1896) ................................................................................................................. 10 Union Carbide Corp. v. U.S. Cutting Serv., Inc., 782 F.2d 710 (7th Cir. 1986).................................................................................................... 14 United States v. Alabama, 828 F.2d 1532 (11th Cir. 1987)......................................................................................... passim United States v. El-Gabrowny, 844 F. Supp. 955 (S.D.N.Y. 1994)..................................................................................... 15, 17 United States v. Holland, 519 F.3d 909 (9th Cir. 2008)................................................................................................ 8, 15 United States v. Nelson, No. CR-94-823 (DGT), 2010 U.S. Dist. LEXIS 63814 (E.D.N.Y. June 28, 2010)................... 8 United States v. Rogers, 119 F.3d 1377 (9th Cir. 1997)............................................................................................ 14, 17 United States v. Van Griffin, 874 F.2d 634 (9th Cir. 1989).................................................................................................... 19 United States v. Virginia, 518 U.S. 515 (1996) ............................................................................................................. 2, 15 28 Gibson, Dunn & Crutcher LLP iv 09-CV-2292 JW PLAINTIFFS’ OPPOSITION TO MOTION TO VACATE 1 2 TABLE OF AUTHORITIES [Continued] Page(s) 3 4 5 6 7 8 9 Witt v. Dep't of the Air Force, 527 F.3d 806 (9th Cir. 2008).................................................................................................... 15 Wood v. McEwen, 644 F.2d 797 (9th Cir.1981)..................................................................................................... 18 Yagman v. Republic Ins., 987 F.2d 622 (9th Cir. 1993)...................................................................................................... 8 CONSTITUTIONAL PROVISIONS 10 U.S. Const. amend. IV ......................................................................................................................... 12 11 U.S. Const. amend. XIV ............................................................................................................... passim 12 STATUTES  13 28 U.S.C. § 455 ............................................................................................................................. passim 14 28 U.S.C. § 455(a) ........................................................................................................................ passim 15 28 U.S.C. § 455(b)(4).................................................................................................................... passim 16 28 U.S.C. § 455(e) ............................................................................................................................... 16 17 18 Civil Rights Restoration Act of 1987, Pub. L. No. 100-259, § 6, 102 Stat. 28 31.................................................................................. 8 19 RULES  20 Fed. R. Civ. P. 62.1(a).......................................................................................................................... 17 21 Fed. R. Civ. P. 62.1(a)(2) ....................................................................................................................... 7 22 Civil L.R. 3-3(a)..................................................................................................................................... 4 23 General Order No. 44 § D(2) (Jan. 4, 2010) .......................................................................................... 4 24 25 26 27 OTHER AUTHORITIES  Appellants’ Motion for Disqualification, Perry v. Schwarzenegger, 630 F.3d 909 (9th Cir. 2011) (No. 10-16696)............................................................................ 6 28 Gibson, Dunn & Crutcher LLP v 09-CV-2292 JW PLAINTIFFS’ OPPOSITION TO MOTION TO VACATE 1 2 TABLE OF AUTHORITIES [Continued] Page(s) 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Application to File an Amicus Brief in Support of Traditional Marriage, Perry v. Schwarzenegger, 628 F.3d 1191 (9th Cir. 2011) (No. 10-16696).................................................................... 6, 18 Gerard V. Bradley, Why Has Media Ignored Judge’s Possible Bias In California’s Gay Marriage Case?, FoxNews.com, Aug. 4, 2010...................................................................................................... 5 Brief for California Faith for Equality et al. as Amici Curiae Supporting Plaintiffs, Perry v. Schwarzenegger, 628 F.3d 1191 (9th Cir. 2011) (No. 10-16696)........................................................................ 13 Daniel Carty, Gay Marriage Judge’s Personal Life Debated, Associated Press, Aug. 6, 2010........................................................................................ 5, 6, 18 Maura Dolan, Distilling the Same-Sex Marriage Case, L.A. Times, June 21, 2010 ..................................................................................................... 3, 5 Chris Geidner, Edward DuMont, Praised by Colleagues as “Brilliant,” Would Be the First Openly Gay Federal Appellate Judge in the Country, Metro Weekly, Apr. 16, 2010 .................................................................................................... 3 Ashby Jones, Prop. 8 Judge Is Reportedly Gay: What to Make of That?, Wall St. J., Feb. 8, 2010 .................................................................... 18 Dan Levine, Gay Judge Never Thought to Drop Marriage Case, Reuters, Apr. 6, 2011 ....................................................................................................... 3, 7, 17 Lisa Leff, Experts: Judge’s Sexual Orientation Is Non-Issue, Associated Press, Apr. 26, 2011 ................................................................................................ 7 Letter from Eric H. Holder, Jr., Attorney General, United States, on Defense of Marriage Act, to John A. Boehner, Speaker, U.S. House of Representatives................................................................................................. 11 Phillip Matier & Andrew Ross, Judge Being Gay a Nonissue During Prop. 8 Trial, S.F. Chron., Feb. 7, 2010, at C-1 .................................................................................. 3, 4, 5, 17 Margaret Russell, Sexual Orientation Singled Out for Scrutiny, Daily Journal, Mar. 10, 2010 ..................................................................................................... 3 26 27 28 Gibson, Dunn & Crutcher LLP vi 09-CV-2292 JW PLAINTIFFS’ OPPOSITION TO MOTION TO VACATE 1 2 I. INTRODUCTION Proponents’ motion to vacate this Court’s judgment is an utterly baseless attack on the 3 integrity of the judicial system, on then-Chief Judge Walker, and on all gay and lesbian jurists who 4 faithfully perform their duties and decide cases across this country each day. After a twelve-day trial, 5 during which Proponents chose to call only two witnesses to rebut Plaintiffs’ seventeen, this Court 6 found in favor of Plaintiffs, declared Proposition 8 unconstitutional under the Due Process and Equal 7 Protection Clauses, and permanently enjoined its enforcement. Now, Proponents claim that their loss 8 resulted not from the legal infirmity of their position or from the paucity of evidence offered in 9 defense of Proposition 8, but instead from the fact that the presiding judge was gay and in a long-term 10 relationship. According to Proponents, these facts create a reasonable belief that Judge Walker 11 disregarded the law and the facts—as well as his oath as a federal judge—and ruled in favor of 12 Plaintiffs because he might have an interest in marrying a person of the same sex. This deeply 13 regrettable (and belated) attack on Judge Walker’s impartiality based on his membership in a 14 minority group is factually groundless and legally insupportable. 15 Proponents’ motion suffers from the same transparent failure of proof as their case at trial. 16 Instead of supporting their motion with facts, they baldly make the repeated assertion that Judge 17 Walker’s bias “must be presumed.” But in determining whether a judge’s recusal is required, facts 18 matter. Ungrounded speculation, beliefs, conjecture, innuendo, suspicion, and opinion do not render 19 a judge unfit to perform his constitutional duties. Proponents lack any factual basis to assume that 20 Judge Walker wishes to marry—indeed, he apparently made no effort to do so when marriage 21 between individuals of the same sex was permitted in California in 2008—and instead rely on 22 nothing more than the fact that he is gay, in a relationship with a person of the same sex, and 23 recognizes in his decision the importance of marriage in American society. Such unvarnished 24 speculation does not come close to meeting the statutory requirements for compelling a 25 judge’s recusal. 26 In any event, even if Proponents had iron-clad proof of Judge Walker’s desire to marry and 27 exercise a right already enjoyed by virtually everyone in this country other than gay men and 28 lesbians, there would be absolutely no basis for questioning his impartiality in this case. The “other Gibson, Dunn & Crutcher LLP 1 09-CV-2292 JW PLAINTIFFS’ OPPOSITION TO PROPONENTS’ MOTION TO VACATE JUDGMENT 1 interest” provision of 28 U.S.C. § 455(b)(4) does not require a judge to recuse himself simply 2 because he is a member of a minority group that seeks access to a fundamental constitutional right 3 denied to them by a discriminatory state law. If it did, the provision would plainly violate equal 4 protection by restricting a judge’s ability to sit on a case based on his membership in a minority 5 group that might benefit from the elimination of longstanding discriminatory barriers. In fact, 6 Proponents’ argument is nothing more than a thinly veiled attempt to disqualify a gay judge based on 7 his sexual orientation. If Judge Walker were not gay, Proponents would have no objection to his 8 presiding over this case. Similarly, if Judge Walker were gay and not in a long-term relationship, 9 Proponents could nevertheless speculate that he might benefit from the right to marry in the future. 10 Proponents cannot escape the fact that their motion is, at its core, about Judge Walker’s sexual 11 orientation. Proponents also ignore the obvious fact that under their expansive reading of the “other 12 interest” provision of Section 455(b)(4), judges who belong to the majority group might just as 13 readily be disqualified if they benefit in some way from the ongoing favored treatment of that group. 14 Given that Proponents have argued that affording gay men and lesbians the right to marry would 15 somehow harm heterosexual marriages (an argument that finds no support whatsoever in the record), 16 it would follow from their argument that judges married to a person of the opposite sex would also 17 possess an “interest” warranting recusal. Such a standard is plainly unworkable and unconstitutional. 18 Proponents’ reliance on the catch-all provision of 28 U.S.C. § 455(a) is equally unavailing. 19 Proponents contend that a judge’s impartiality could reasonably be questioned because he is likely to 20 favor the outcome that would afford greater rights to the minority group of which he is a member. 21 The Equal Protection Clause bars this prejudiced and stereotyped reading of Section 455(a). In fact, 22 under Proponents’ reasoning, African-American and female judges would have been required to 23 recuse themselves in the most important civil rights cases in American history (e.g., Brown v. Bd. of 24 Educ., 347 U.S. 483 (1954); United States v. Virginia, 518 U.S. 515 (1996)), and all judges would be 25 required to disclose their most private thoughts and relationships in order to preside over any case 26 that involves constitutional rights they might conceivably want to secure for themselves and their 27 families. That is not the law—and our Nation is much the better for it. 28 Gibson, Dunn & Crutcher LLP 2 09-CV-2292 JW PLAINTIFFS’ OPPOSITION TO PROPONENTS’ MOTION TO VACATE JUDGMENT Moreover, Proponents have failed to make the threshold showing of timeliness. Judge Walker 1 2 is openly gay and has been since well before Proponents became involved in this litigation. During 3 his tenure on the Northern District of California, Judge Walker was one of only two openly gay 4 judges serving in the federal judiciary. Chris Geidner, Edward DuMont, Praised by Colleagues as 5 “Brilliant,” Would Be the First Openly Gay Federal Appellate Judge in the Country, Metro Weekly, 6 Apr. 16, 2010 (Monagas Decl. Ex. A).1 He has been in a long-term relationship for ten years and 7 “has never taken pains to disguise—or advertise—his orientation.” Phillip Matier & Andrew Ross, 8 Judge Being Gay a Nonissue During Prop. 8 Trial, S.F. Chron., Feb. 7, 2010, at C-1 (Ex. B); see also 9 Margaret Russell, Sexual Orientation Singled Out for Scrutiny, Daily Journal, Mar. 10, 2010 (Ex. C). 10 Although he did not comment on the topic publicly until he left the bench in February 2011, Judge 11 Walker has not attempted to conceal his sexual orientation. See Maura Dolan, Distilling the Same- 12 Sex Marriage Case, L.A. Times, June 21, 2010 (Ex. D); Dan Levine, Gay Judge Never Thought to 13 Drop Marriage Case, Reuters, Apr. 6, 2011 (Ex. E). As early as February 2010, Proponents 14 affirmatively disavowed any intention to challenge Judge Walker as biased based on his sexual 15 orientation. Ex. B. Despite having knowledge of Judge Walker’s sexual orientation and his relationship well 16 17 before judgment was entered, Proponents lay in wait to file this motion. See Chevron Corp. v. 18 Donziger, No. 11 Civ. 0691 (LAK), slip op. at 12 n.27 (S.D.N.Y. May 9, 2011) (“[T]he effort to force 19 or shame off a case a judge . . . is becoming the latest weapon in a litigator’s arsenal—litigation by 20 other means.”) (internal quotation marks omitted). They waited until after this Court had conducted a 21 two-week trial, carefully deliberated over hundreds of exhibits and the testimony of nineteen 22 witnesses, and announced its decision, and waited still further while they filed motions to stay in both 23 this Court and the Ninth Circuit, briefed numerous issues on appeal, and participated in oral 24 argument. Only after the Ninth Circuit asked the California Supreme Court to decide whether 25 Proponents even possess the authority to appeal this Court’s decision did Proponents file their motion 26 27 28 Gibson, Dunn & Crutcher LLP 1 All references to exhibits throughout this Opposition refer to exhibits to the Declaration of Enrique A. Monagas filed concurrently herewith. 3 09-CV-2292 JW PLAINTIFFS’ OPPOSITION TO PROPONENTS’ MOTION TO VACATE JUDGMENT 1 seeking the nullification of the past two years of proceedings. Parties must promptly seek recusal 2 after the grounds for such a motion are ascertained. Proponents plainly failed to do so. Lastly, Proponents’ motion to vacate provides yet another reason for this Court to lift the 3 4 protective order covering the videotaped trial proceedings and release them to the public. It is telling 5 that at precisely the same time they attack Judge Walker’s impartiality and argue that his decision 6 was based not on the evidence but rather on bias, Proponents are fighting tooth-and-nail to suppress 7 the video record of the trial and keep the public from seeing for themselves the fair and impartial 8 manner in which Judge Walker presided and the overwhelming evidentiary record that not only 9 supports, but indeed compels, the decision that Proponents belatedly attack. Now that Proponents 10 have publicly questioned the integrity of Judge Walker, the integrity of the proceedings, and thus the 11 integrity of the judicial system, it is all the more important that the public have access to what 12 actually occurred at trial. 13 II. 14 PROCEDURAL HISTORY AND FACTUAL BACKGROUND On May 22, 2009, Kristin M. Perry, Sandra B. Stier, Paul T. Katami, and Jeffrey J. Zarrillo 15 (“Plaintiffs”) filed a complaint in this Court that challenged the constitutionality of California’s 16 Proposition 8 as a violation of the Due Process and Equal Protection Clauses of the Fourteenth 17 Amendment. Doc #1. The Clerk of the Court, acting “blindly and at random,” assigned the case to 18 then-Chief Judge Vaughn R. Walker. Id.; Civil L.R. 3-3(a); General Order No. 44 § D(2) (Jan. 4, 19 2010). On May 28, 2009, Proposition 8 Official Proponents Dennis Hollingsworth, Gail J. Knight, 20 Martin F. Gutierrez, Hak-Shing William Tam, and Mark A. Jansson; and ProtectMarriage.com – Yes 21 on 8, A Project of California Renewal (“Proponents”) moved to intervene to defend Proposition 8. 22 Doc #8. Judge Walker granted their motion on June 30, 2009. Doc #77. 23 From January 11 to January 27, 2010, Judge Walker presided over a twelve-day bench trial in 24 this case. Doc #690. Soon after the trial ended, but before closing arguments were heard, the San 25 Francisco Chronicle published an article acknowledging that “[t]he biggest open secret in the 26 landmark trial over same-sex marriage being heard in San Francisco is that the federal judge who will 27 decide the case, Chief U.S. District Judge Vaughn Walker, is himself gay.” Ex. B. 28 Gibson, Dunn & Crutcher LLP 4 09-CV-2292 JW PLAINTIFFS’ OPPOSITION TO PROPONENTS’ MOTION TO VACATE JUDGMENT The San Francisco Chronicle article was published on February 7, 2010. Id. The Chronicle 1 2 had spoken to “a federal judge who counts himself as a friend and confidant of [Judge] Walker’s” 3 who explained that the Judge “has a private life and he doesn’t conceal it, but doesn’t think it is 4 relevant to his decisions in any case, and he doesn’t bring it to bear in any decisions.” Id. Andrew 5 Pugno, who represents Proponents in this litigation, was quoted in the article. Responding to 6 concerns that Proponents might “make an issue of the judge’s sexual orientation” if this Court found 7 the proposition unconstitutional, Pugno advised that “[w]e are not going to say anything about that.” 8 Id. 9 Closing arguments were held on June 16, 2010. Doc #690. Five days later, the Los Angeles 10 Times published an article commenting on the status and impact of this litigation. See Ex. D. The 11 article described Judge Walker as “openly gay” and quoted his colleague, Judge Maxine M. Chesney. 12 Id. The June 21, 2010 article also stated that Judge Walker “attends bar functions with a companion, 13 a physician.” Id. 14 On August 4, 2010, this Court ordered entry of judgment in favor of Plaintiffs and Plaintiff- 15 Intervenor and against Defendants and Proponents. Doc #708. Proponents immediately appealed the 16 decision to the United States Court of Appeals for the Ninth Circuit. Doc #714. That same day, 17 Gerard Bradley published an editorial on FoxNews.com making arguments identical to those now 18 advanced by Proponents in their Motion to Vacate Judgment. Compare Prop. Mot., with Gerard V. 19 Bradley, Why Has Media Ignored Judge’s Possible Bias In California’s Gay Marriage Case?, 20 FoxNews.com, Aug. 4, 2010 (Ex. F). Bradley argued that if “Judge Walker is in a stable same-sex 21 relationship, then he might wish or even expect to wed should same-sex marriage become legally 22 available in California. This raises an important and serious question about his fitness to preside over 23 the case. Yet it is a question that received almost no attention.” Ex. F. Bradley stated that a 24 discussion about whether Judge Walker should recuse himself because of his relationship “is a 25 conversation worth having.” Id. But given how far the case had already progressed, he concluded 26 that “sadly, it is quite too late to have it.” Id. 27 28 Gibson, Dunn & Crutcher LLP Two days later, the Associated Press spoke to Proponents’ counsel about the impact of Judge Walker’s sexual orientation on this case. See Daniel Carty, Gay Marriage Judge’s Personal Life 5 09-CV-2292 JW PLAINTIFFS’ OPPOSITION TO PROPONENTS’ MOTION TO VACATE JUDGMENT 1 Debated, Associated Press, Aug. 6, 2010 (Ex. G). The Associated Press reported that “[l]awyers in 2 th[is] case, including those defending the ban, say the judge’s sexuality—gay or straight—was not an 3 issue at trial and will not be a factor on appeal.” Id. James Campbell of the Alliance Defense Fund, 4 counsel for Proponents in this case, said that “[t]he bottom line is this case, from our perspective, is 5 and always will be about the law and not about the judge who decides it . . . . It’s just something that 6 collectively as a legal team we have decided and going up, that’s what this case is. The appellate 7 courts are going to focus on the law.” Id. 8 On September 15, 2010, Judge Walker’s sexual orientation first became a part of the official 9 record in this case. Robert Wooten, a citizen of California, moved to file an amicus brief supporting 10 Proponents in the Ninth Circuit. Application to File an Amicus Brief in Support of Traditional 11 Marriage, Perry v. Schwarzenegger, 628 F.3d 1191 (9th Cir. 2011) (No. 10-16696), ECF No. 19 12 (“Wooten Amicus”). Wooten argued “that if the allegation that Judge Walker is a homosexual is 13 true, that he has a personal interest in the outcome of the trial that he was over-seeing and, at the 14 least, should have recused himself from the trial.” Id. at 2. 15 On November 28, 2010, the parties learned that Judge Stephen Reinhardt, Judge Michael 16 Daly Hawkins, and Judge N. Randy Smith would sit on the Ninth Circuit’s three-judge panel in this 17 case. Appellants’ Motion for Disqualification at 1, Perry v. Schwarzenegger, 630 F.3d 909 (9th Cir. 18 2011) (No. 10-16696), ECF No. 282. Two days later, Proponents filed a motion to disqualify Judge 19 Reinhardt based on his “wife’s beliefs, as expressed in her public statements and actions, both 20 individually and in her capacity as Executive Director of the American Civil Liberties Union of 21 Southern California.” Perry, 630 F.3d at 911. Judge Reinhardt denied Proponents’ motion, 22 explaining that “Proponents’ contention that I should recuse myself due to my wife’s opinions is 23 based upon an outmoded conception of the relationship between spouses.” Id. at 912. 24 On December 6, 2010, the Ninth Circuit panel, including Judge Reinhardt, heard oral 25 argument. Perry, 628 F.3d at 1199. Prior to oral argument, the panel had “asked the parties to brief, 26 as a preliminary matter, the Proponents’ standing to seek review of the district court order, in light of 27 Arizonans [for Official English v. Arizona, 520 U.S. 43 (1997)] and earlier decisions of the United 28 States Supreme Court.” Id. at 1195. After oral argument, the panel was “convinced that Proponents’ Gibson, Dunn & Crutcher LLP 6 09-CV-2292 JW PLAINTIFFS’ OPPOSITION TO PROPONENTS’ MOTION TO VACATE JUDGMENT 1 claim to standing depends on Proponents’ particularized interests created by state law or their 2 authority under state law to defend the constitutionality of the initiative, which rights it appears to us 3 have not yet been clearly defined by the [California Supreme] Court.” Id. On January 4, 2011, the 4 panel certified the standing question to the California Supreme Court and stayed proceedings in the 5 Ninth Circuit pending a final decision on that question. Id. at 1200. The panel explained that 6 “Proponents’ standing—and therefore our ability to decide this appeal—rises or falls on whether 7 California law affords them the interest or authority” to be heard in the Ninth Circuit. Id. at 1196 8 (internal quotation marks omitted). 9 On February 28, 2011, Judge Walker retired from the federal bench. On April 6, 2011, 10 “Walker had a farewell meeting with a select group of courthouse reporters.” Ex. E; Lisa Leff, 11 Experts: Judge’s Sexual Orientation Is Non-Issue, Associated Press, Apr. 26, 2011 (Ex. H). In that 12 meeting, Judge Walker acknowledged that he is gay and that “he was in a 10-year relationship with a 13 physician.” Ex. E; Ex. H. When reporters asked Judge Walker about recusal, “Walker said he never 14 thought about recusing himself because he was gay and noted that no one had asked him to.” Ex. H. More than two weeks later, on April 25, 2011, almost two years after initially intervening in 15 16 this case, more than one year after the completion of the bench trial, and four months after oral 17 argument in the Ninth Circuit, Proponents moved to vacate this Court’s judgment because Judge 18 Walker is “gay and . . . in a committed relationship.” Prop. Mot. 2. 19 III. 20 THE COURT SHOULD DENY PROPONENTS’ MOTION TO VACATE ITS THOROUGH AND AMPLY SUPPORTED FINDINGS OF FACT AND CONCLUSIONS OF LAW 21 Under Federal Rule of Civil Procedure 62.1, “[i]f a timely motion is made for relief that the 22 court lacks authority to grant because of an appeal that has been docketed and is pending, the court 23 may . . . deny the motion.” Fed. R. Civ. P. 62.1(a)(2). This Court should deny Proponents’ motion to 24 vacate because Judge Walker’s sexual orientation and long-term relationship did not require his 25 recusal under 28 U.S.C. § 455 and because the motion is untimely; in any event, even if recusal were 26 required, vacating the judgment would be an extreme and inappropriate remedy. 27 28 Gibson, Dunn & Crutcher LLP 7 09-CV-2292 JW PLAINTIFFS’ OPPOSITION TO PROPONENTS’ MOTION TO VACATE JUDGMENT 1 A. There Is No Plausible Basis For Questioning Judge Walker’s Impartiality 2 Judges have a duty to sit and decide cases unless there is a legitimate reason to recuse. 3 Clemens v. U.S. District Court, 428 F.3d 1175, 1179 (9th Cir. 2005); accord Perry, 630 F.3d at 916 4 (Reinhardt, J.). Moving to vacate this Court’s decision on the ground that Judge Walker should have 5 recused himself “is [an] extremely serious [allegation that] should not be made without a factual 6 foundation going well beyond the judge’s membership in a particular [minority] group.” MacDraw 7 Inc. v. CIT Grp. Equip. Fin., Inc., 138 F.3d 33, 37 (2d Cir. 1998); see also id. (affirming sanctions 8 against counsel calling into question a district judge’s impartiality based on his race). Rampant 9 speculation and baseless assumptions cannot support such an accusation. United States v. Holland, 10 519 F.3d 909, 914 n.5 (9th Cir. 2008); Yagman v. Republic Ins., 987 F.2d 622, 626 (9th Cir. 1993). 11 Yet Proponents have not presented a single piece of evidence suggesting that Judge Walker was 12 biased or might reasonably have been perceived as biased. 13 Proponents claim that they “are not suggesting that a gay or lesbian judge could not sit on this 14 case.” Prop. Mot. 5 (emphasis omitted). But the complete absence of factual support for Proponents’ 15 assertion that Judge Walker wishes to marry exposes the real basis for their attack on the judge’s 16 impartiality. Instead of offering evidence to support their claim about Judge Walker’s private, 17 personal wishes, Proponents simply urge the Court six times to “presume” his wishes. Prop. Mot. 3, 18 5, 10, 14. This lack of substantiation alone is a sufficient basis for denying Proponents’ motion and 19 exposes their arguments as a blatant attack on Judge Walker based on nothing more than his sexual 20 orientation. Prop. Mot. 5; see also United States v. Alabama, 828 F.2d 1532, 1542 (11th Cir. 1987) 21 (the recusal sought “would come dangerously close to holding that minority judges must disqualify 22 themselves from all major civil rights actions”), superseded by statute on other grounds, Civil Rights 23 Restoration Act of 1987, Pub. L. No. 100-259, § 6, 102 Stat. 28, 31; Ortega Melendres v. Arpaio, No. 24 CV-07-2513-PHX-MHM, 2009 WL 2132693, at *8 (D. Ariz. July 15, 2009) (“Defendants’ ‘natural 25 bias’ contention could easily be interpreted as an argument that this Court’s alleged bias somehow 26 flows from her racial heritage.”); United States v. Nelson, No. CR-94-823 (DGT), 2010 U.S. Dist. 27 LEXIS 63814, at *26-27 (E.D.N.Y. June 28, 2010) (“Based on the facts, as well as on frivolous 28 nature of the other two grounds for the motion, and the lack of any semblance of relevance of them, Gibson, Dunn & Crutcher LLP 8 09-CV-2292 JW PLAINTIFFS’ OPPOSITION TO PROPONENTS’ MOTION TO VACATE JUDGMENT 1 . . . a reasonable and objective person can and would conclude that this motion was made simply 2 because I am an Orthodox Jew.”). But like a judge’s race, gender, or religion, Judge Walker’s sexual 3 orientation cannot be the basis for requiring his recusal. 4 Proponents’ claim that Judge Walker’s “long-term committed relationship” somehow 5 distinguishes his interest in this case from that of other gay and lesbian judges not only suffers from 6 rampant speculation but is also nebulous and entirely unworkable. Prop. Mot. 5. All gay and lesbian 7 judges have an interest in securing the constitutional rights that have been denied to gay and lesbian 8 Americans for centuries—but that is hardly a reasonable or constitutionally permissible basis for 9 requiring their recusal from cases involving discrimination based on sexual orientation. Indeed, 10 Proponents’ purported rationale for recusal suffers from the same intractable line-drawing problem as 11 failed efforts to distinguish Judge Noonan’s Catholicism from that of other judges by labeling his 12 beliefs “fervently-held” when seeking his recusal in abortion litigation. Feminist Women’s Health 13 Ctr. v. Codispoti, 69 F.3d 399, 400 (9th Cir. 1995) (Noonan, J.). Just how long term, or how serious, 14 would a gay judge’s relationship have to be to require recusal under Proponents’ proposed standard? 15 Would we inquire not only into the judge’s interest in marriage, but also that of the person with 16 whom he is in a relationship? Of course Proponents attempt no such line-drawing, because to do so 17 would only highlight the unworkability of their position. 18 Despite Proponents’ efforts to obscure the true basis for their arguments, there can be no 19 doubt that Proponents are seeking to vacate the judgment based on Judge Walker’s status as a gay 20 man and the fact like he, like millions of other gay men and lesbians, might benefit from having the 21 same right to marry as virtually all other citizens. Section 455 does not permit the disqualification of 22 judges based on status, nor does it countenance the shameful and wholly unsupported assumption that 23 a judge who belongs to a minority group cannot possibly be impartial simply because the group 24 might benefit from an end to the challenged discrimination. If Section 455 could be used to further 25 such discriminatory ends, the statute itself would violate the Equal Protection Clause. 26 27 28 Gibson, Dunn & Crutcher LLP 1. Section 455(b)(4) Did Not Require Judge Walker’s Recusal Under Section 455(b)(4), a judge must recuse when he “knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject 9 09-CV-2292 JW PLAINTIFFS’ OPPOSITION TO PROPONENTS’ MOTION TO VACATE JUDGMENT 1 matter in controversy or in a party to the proceeding, or any other interest that could be substantially 2 affected by the outcome of the proceeding.” 28 U.S.C. § 455(b)(4) (emphasis added). Judge 3 Walker’s membership in a minority group whose civil rights are at issue in this case is not an 4 “interest” that requires recusal under Section 455(b)(4). It is well-established that a judge’s membership in a minority group cannot constitute an 5 6 “other interest . . . substantially affected by the outcome of the proceeding” within the meaning of 7 Section 455(b)(4). Alabama, 828 F.2d at 1541-42; see also MacDraw, 138 F.3d at 37. “Courts have 8 repeatedly held that matters such as race or ethnicity are improper bases for challenging a judge’s 9 impartiality.” MacDraw, 138 F.3d at 37 (collecting cases). “To disqualify minority judges from 10 major civil rights litigation solely because of their minority status is intolerable.” Alabama, 828 F.2d 11 at 1542; see also Day v. Apoliona, 451 F. Supp. 2d 1133, 1138 (D. Hawaii 2006) (“Recusal based 12 solely on race is unwarranted and improper.”), rev’d in part on other grounds, 496 F.3d 1027 (9th 13 Cir. 2007); Ortega Melendres, 2009 WL 2132693, at *8 (“Obviously, such an argument would be 14 unwarranted and baseless.”). A contrary interpretation of Section 455(b)(4) would restrict the rights 15 and duties of Article III judges based on membership in a protected class—a proposition that is 16 repugnant to the Fourteenth Amendment. See Batson v. Kentucky, 476 U.S. 79 (1986); In re 17 BellSouth Corp., 334 F.3d 941, 967 (11th Cir. 2003) (Cudahy, J., concurring); MacDraw, 138 F.3d at 18 37; Ortega Melendres, 2009 WL 2132693, at *8 (citing Plessy v. Ferguson, 163 U.S. 537, 559 (1896) 19 (Harlan, J., dissenting)); see also Feminist Women’s Health Ctr., 69 F.3d at 400.2 That Judge Walker is a member of a minority group because of his sexual orientation, rather 20 21 than his race, gender, or religion, is of no moment. Whether or not a characteristic warrants 22 heightened equal protection scrutiny, a judge cannot be compelled to recuse on the basis of that 23 characteristic unless there is some evidence that it would impair his ability to decide the case 24 impartially. There is absolutely no evidence that Judge Walker’s sexual orientation prevented him 25 from impartially deciding this case. In any event, as this Court held—and the United States 26 27 28 Gibson, Dunn & Crutcher LLP 2 At the very least, such an interpretation of Section 455(b)(4) would raise substantial constitutional questions that should be avoided. See Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988). 10 09-CV-2292 JW PLAINTIFFS’ OPPOSITION TO PROPONENTS’ MOTION TO VACATE JUDGMENT 1 Government recently concluded—sexual orientation, like race, gender, and religion, is entitled to 2 heightened equal protection scrutiny. Letter from Eric H. Holder, Jr., Attorney General, United 3 States, on Defense of Marriage Act, to John A. Boehner, Speaker, U.S. House of Representatives, 4 (“[T]he President and I have concluded that classifications based on sexual orientation warrant 5 heightened scrutiny”), available at http://www.justice.gov/opa/pr/2011/February/11-ag-223.html. A 6 group warrants heightened scrutiny if it is classified based on factors unrelated to its ability to 7 contribute to society (City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440-41 (1985)) and has 8 experienced a history of discrimination. Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 313 (1976). Also 9 potentially relevant are whether the characteristic distinguishing the group is immutable (Lyng v. 10 Castillo, 477 U.S. 635, 638 (1986)) and whether the group is “a minority or politically powerless.” 11 Bowen v. Gilliard, 483 U.S. 587, 602 (1987). Plaintiffs proved at trial that gay and lesbian 12 individuals satisfy each of these factors, and this Court accordingly concluded that gay and lesbian 13 individuals, like racial minorities, are “the type [of group] . . . strict scrutiny was designed to protect.” 14 Doc #708 at 121; see also id. at 71-72, 74-77, 96-109, 121-22.3 Restricting the duties of judicial 15 office based on sexual orientation is therefore no less suspect than doing so on the basis of any other 16 protected classification. 17 Moreover, even if this Court were to credit Proponents’ implausible assertion that they are not 18 challenging Judge Walker’s impartiality based solely on his sexual orientation—but instead based on 19 his hypothetical desire to marry a person of the same sex—a widely held interest in exercising a basic 20 civil right cannot be an “interest” requiring recusal under Section 455(b)(4). See Alabama, 828 F.2d 21 at 1541 (“An interest which a judge has in common with many others in a public matter is not 22 sufficient to disqualify him.”) (alteration and internal quotation marks omitted); In re City of 23 24 25 26 27 28 Gibson, Dunn & Crutcher LLP 3 E.g., Tr. 2252:1-10 (Herek: “It certainly is the case that there have been many people who, most likely because of societal stigma, wanted very much to change their sexual orientation and were not able to do so.”); Tr. 361:11-22 (Chauncey: “[L]esbians and gay men have experienced widespread and acute discrimination from both public and private authorities over the course of the 20th century.”); Tr. 2072:19-2073:4 (Herek: “[T]he vast majority of people are consistent in their behavior, their identity, and their attractions.”); Tr. 1646:19-21 (Segura: “I conclude that gays and lesbians lack the sufficient power necessary to protect themselves in the political system.”). 11 09-CV-2292 JW PLAINTIFFS’ OPPOSITION TO PROPONENTS’ MOTION TO VACATE JUDGMENT 1 Houston, 745 F.2d 925, 929-30 (5th Cir. 1984) (same). But see Prop. Mot. 10 (claiming that Judge 2 Walker “has a personal interest in exercising the federal constitutional right he recognized to marry a 3 same-sex partner”). Unsurprisingly, Proponents are unable to identify a single case that supports 4 their preposterous argument that interest in securing a constitutional right requires recusal under 5 Section 455(b)(4). To the contrary, in City of Houston, the Fifth Circuit held that a district judge was 6 not required to recuse herself even though she was a member of the plaintiff class challenging denial 7 of voting rights to Houston residents based on race—“a public matter in which [the District Judge] 8 ha[d] no greater or lesser interest than any other federal judge who votes in Houston.” 745 F.2d at 9 930. As in City of Houston, the fact that Judge Walker—like hundreds of thousands of other gay and 10 lesbian Californians—might have an interest in securing the fundamental right to marry could not 11 constitute the type of “ interest” that requires recusal under Section 455(b)(4). 12 Under Proponents’ reasoning, an African-American judge in Alabama would have been 13 required to recuse himself from a case challenging racial inequality in Alabama’s public colleges 14 because his children might one day wish to attend those schools. Contra Alabama, 828 F.2d at 1542. 15 A female judge who was pregnant or might become pregnant could not decide a case addressing the 16 Family and Medical Leave Act or the Pregnancy Discrimination Act. But see Hosler v. Green, 173 17 F.3d 844 (2d Cir. 1999) (unpublished table decision) (opinion joined by Sotomayor, J.). Similarly, 18 judges living in the District of Columbia would have been required to recuse themselves from a 19 challenge to the District’s firearm ban if they had any interest in owning a gun. But see Dist. of 20 Columbia v. Heller, 554 U.S. 570 (2008). And, judges would have to recuse from every Fourth 21 Amendment case that might conceivably have some bearing on the security of their “persons, houses, 22 papers, [or] effects.” U.S. Const. amend. IV. Although recusal in any of these situations is patently 23 absurd, Proponents’ reading of the “other interest” provision in Section 455(b)(4) would require 24 recusal in all of them. Recusal law is meant to safeguard the integrity of the judicial process, not seek 25 out judges who lack any view on important issues. See Laird v. Tatum, 409 U.S. 824, 835 (1972) 26 (Rehnquist, J.) (“Proof that a Justice’s mind at the time he joined the Court was a complete tabula 27 rasa in the area of constitutional adjudication would be evidence of lack of qualification, not lack 28 of bias.”). Gibson, Dunn & Crutcher LLP 12 09-CV-2292 JW PLAINTIFFS’ OPPOSITION TO PROPONENTS’ MOTION TO VACATE JUDGMENT Indeed, Proponents’ construction of Section 455(b)(4) would not only prevent unmarried gay 1 2 and lesbian judges from presiding over this case, but would also require the recusal of all married 3 heterosexual judges (and every unmarried heterosexual judge who might wish to marry in the future). 4 In defense of Proposition 8, Proponents repeatedly argued that permitting marriage between persons 5 of the same sex would weaken opposite-sex marriage. Doc #295.4 They argued further that same- 6 sex marriage would force Christian, Jewish, and Muslim Americans to “choose between being a 7 believer and being a good citizen.” Id. at 10. Thus, according to Proponents, every heterosexual 8 judge who is currently married or who has an interest in marrying could benefit from a ruling 9 upholding Proposition 8 because that measure purportedly strengthens opposite-sex marriage. This 10 benefit would be particularly acute for Christian, Jewish, and Muslim Americans whose faith, 11 Proponents claim, is inconsistent with the recognition of marriage between persons of the same sex. 12 But see Brief for California Faith for Equality et al. as Amici Curiae Supporting Plaintiffs at 26, 13 Perry, 628 F.3d 1191 (No. 10-16696), ECF No. 198-1. Nowhere in Proponents’ 18-page motion is there a single citation to any authority in any state 14 15 or federal court holding that a judge’s membership in a minority group requires recusal in a case 16 involving that group’s access to a fundamental constitutional right. That is hardly surprising given 17 the fact that none of the 90 Ninth Circuit cases or the 10 Supreme Court cases citing Section 455(a) 18 or (b) even hints that a judge’s membership in a minority group can require recusal. And authority 19 from other circuits and district courts in this circuit is equally at odds with Proponents’ insupportable 20 assertions. See, e.g., MacDraw, 138 F.3d at 37; Alabama, 828 F.2d at 1542; City of Houston, 745 21 F.2d at 930; Day, 451 F. Supp. 2d at 1138; Ortega Melendres, 2009 WL 2132693, at *8. A contrary 22 rule would call into question countless decisions of the Supreme Court and lower federal courts in 23 cases involving the rights of millions of people. This Court should not be the first to sanction use of 24 25 26 27 28 Gibson, Dunn & Crutcher LLP 4 Doc #295 at 1 (“[T]here is every reason to believe . . . that redefining marriage in this manner will fundamentally change the public meaning of marriage in ways that will weaken this institution.”); id. at 9 (same-sex marriage would “[c]ontribute over time to the further erosion of the institution of marriage, as reflected primarily in lower marriage rates, higher rates of divorce and non-marital cohabitation, and more children raised outside of marriage and separated from at least one of their natural parents”). 13 09-CV-2292 JW PLAINTIFFS’ OPPOSITION TO PROPONENTS’ MOTION TO VACATE JUDGMENT 1 Section 455 as a means of furthering discrimination. See Pennsylvania v. Local Union 542, Int’l 2 Union of Operating Eng’rs, 388 F. Supp. 155, 165 (E.D. Pa. 1974) (“Defendants do not go so far as 3 to precisely assert that black judges should per se be disqualified from hearing cases which involve 4 racial issues, but, as will be demonstrated hereinafter, the absolute consequence and thrust of their 5 rationale would amount to, in practice, a double standard within the federal judiciary.”). 6 Decisions construing Section 455(b)(4) make clear that—far from requiring the recusal of 7 judges who have an interest in securing broadly shared constitutional rights—Section 455(b)(4) 8 addresses unique, individualized interests, particularly financial interests. See, e.g., United States v. 9 Rogers, 119 F.3d 1377, 1384 (9th Cir. 1997) (“[Section (b)(4)] requires disqualification when the 10 judge, the judge’s spouse, or the judge’s minor child has a financial interest in the subject matter in 11 controversy”) (internal quotation marks omitted); see also Union Carbide Corp. v. U.S. Cutting Serv., 12 Inc., 782 F.2d 710, 714 (7th Cir. 1986) (“The purpose of (b) is to establish an absolute prohibition 13 against a judge’s knowingly presiding in a case in which he has a financial interest, either in his own 14 or a spouse’s (or minor child’s) name.”). Proponents’ implausible interpretation of Section 455(b)(4) 15 would dramatically rewrite the statute and extend its reach to situations that Congress could not 16 conceivably have sought to address. 17 In the absence of any case law to support their extreme reading of Section 455, Proponents 18 attempt to impugn Judge Walker’s rulings in this case, claiming that those rulings give rise to 19 reasonable questions about his impartiality. But Proponents themselves concede that “judicial rulings 20 alone almost never constitute a valid basis for a bias or partiality motion.” Prop. Mot. 4 (emphasis 21 omitted). Indeed, the Supreme Court has made clear that, “[a]lmost invariably, [judicial rulings] are 22 proper grounds for appeal, not for recusal.” Liteky v. United States, 510 U.S. 540, 555 (1994). 23 Perhaps concerned about the fate of their appeal due to the “grave doubts” that the Supreme Court 24 has expressed about ballot proponents’ standing (Arizonans for Official English, 520 U.S. at 66), 25 Proponents simply grasp at straws with their patently false claim that Judge Walker did not address 26 contrary authority when invalidating Proposition 8. Prop. Mot. 15. Contra Summ. J. Hr’g Tr. 75-79, 27 Oct. 14, 2009 (“The Court does not agree that Baker [v. Nelson, 409 U.S. 810 (1972)] is either settled 28 law, or that it addresses the issues plaintiffs have raised here.”); id. at 82-83 (“the Ninth Circuit [High Gibson, Dunn & Crutcher LLP 14 09-CV-2292 JW PLAINTIFFS’ OPPOSITION TO PROPONENTS’ MOTION TO VACATE JUDGMENT 1 Tech Gays v. Defense Industrial Security Clearance Office, 895 F.2d 563 (9th Cir. 1990) decision] 2 relied explicitly on Bowers [v. Hardwick, 478 U.S. 186 (1986)], and reasoned that if homosexual 3 conduct can be criminalized, then homosexuals cannot constitute a protected class. Well, Lawrence 4 [v. Texas, 539 U.S. 558 (2003)], of course, undermined High Tech Gays.”); id. at 83 (“Witt [v. 5 Department of the Air Force, 527 F.3d 806 (9th Cir. 2008)] applied rational basis review to Witt’s 6 Equal Protection claims. Her Equal Protection claims were, however, based on conduct, not sexual 7 orientation; and for that reason it is not clear whether this determination has much bearing on 8 this case.”). If there were any need for confirmation, Judge Walker’s thorough legal analysis and 9 detailed factual findings would eliminate any doubt about his impartiality in this case. 10 11 2. Section 455(a) Did Not Require Judge Walker’s Recusal Proponents’ argument that Judge Walker should have recused under Section 455(a) fares no 12 better. Under Section 455(a), “[a]ny justice, judge, or magistrate judge of the United States shall 13 disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” 28 14 U.S.C. § 455(a). Recusal is appropriate under this section only when “a reasonable person . . . would 15 conclude that the judge’s impartiality might reasonably be questioned.” Holland, 519 F.3d at 913 16 (emphases added) (internal quotation marks omitted); see also United States v. El-Gabrowny, 844 F. 17 Supp. 955, 961 (S.D.N.Y. 1994) (“[T]o say that § 455(a) requires concern for appearances is not to 18 say that it requires concern for mirages”). No reasonable person would reasonably question Judge 19 Walker’s impartiality in this case. 20 There is nothing reasonable about questioning a judge’s impartiality simply because he is a 21 member of a minority group whose rights are implicated in a case before the court. Alabama, 828 22 F.2d at 1542; City of Houston, 745 F.2d at 930. The Equal Protection Clause renders such prejudice 23 a per se unreasonable basis for interpreting recusal law. For that reason, there is a long and settled 24 line of authority rejecting efforts to compel the recusal of judges on this discriminatory basis. See, 25 e.g., Alabama, 828 F.2d at 1542; Pennsylvania, 388 F. Supp. at 163-65; cf. Virginia, 518 U.S. at 533 26 (rejecting stereotype and prejudice as a governmental interest under the Equal Protection Clause). As 27 these courts have explained, “[t]he fact that an individual belongs to a minority does not render one 28 biased or prejudiced, or raise doubts about one’s impartiality: ‘that one is black does not mean, ipso Gibson, Dunn & Crutcher LLP 15 09-CV-2292 JW PLAINTIFFS’ OPPOSITION TO PROPONENTS’ MOTION TO VACATE JUDGMENT 1 facto, that he is anti-white; no more than being Jewish implies being anti-Catholic, or being Catholic 2 implies being anti-Protestant.’” Alabama, 828 F.2d at 1542 (quoting Pennsylvania, 388 F. Supp. at 3 163). We must and do expect more of those tasked with interpreting our laws. 4 Proponents’ construction of Section 455(a), however, would require federal judges to publicly 5 disclose intimate details of their private lives “so that the parties [can] consider and decide, before the 6 case proceed[s] further, whether to request [a judge’s] recusal.” Prop. Mot. 2 (citing 28 U.S.C. 7 § 455(e)). For example, under Proponents’ unprecedented construction, no African-American judge 8 who had children attending segregated schools could have decided Brown v. Board of Education, 9 unless he publicly disavowed any interest in his children attending integrated schools. See Alabama, 10 828 F.2d at 1542 (describing absurdity of defendants’ theory). Similarly, no judge in an interracial 11 relationship could have decided Loving v. Virginia, 388 U.S. 1 (1967), unless the judge disclosed to 12 the public that he had no desire to marry his partner. And, no female judge of childbearing age—and 13 no male judge in a relationship with a woman of childbearing age—could decide an abortion case 14 unless the judge publicly disclosed those intimate relations and disavowed any interest in an abortion 15 (or disclosed an inability to conceive). See Day, 451 F. Supp. 2d at 1138. Moreover, Proponents’ 16 expansive construction of Section 455(a) would not be limited to judges who are members of 17 minority groups. For example, according to Proponents, no judge with white children could have 18 decided Grutter v. Bollinger, 539 U.S. 306 (2003), or Gratz v. Bollinger, 539 U.S. 244 (2003), unless 19 the judge disavowed any intent for those children to attend a public college. See Day, 451 F. Supp. 20 2d at 1138. Proponents’ argument thus not only would severely restrict the number of judges deemed 21 sufficiently impartial to decide constitutional questions, but Proponents’ emphasis on disclosure of 22 any theoretical interest that a judge might have in the constitutional rights at issue would effectively 23 require a public inquest into judges’ most private thoughts and relationships—including their plans to 24 wed and bear children. 25 For the reasons discussed above, a judge’s sexual orientation cannot give rise to a reasonable 26 question as to his impartiality any more than can a judge’s race, gender, or religion. See supra note 3 27 (citing examples of trial evidence regarding history of discrimination against gay and lesbian 28 individuals). To hold otherwise would enshrine discrimination in Section 455(a) and altogether Gibson, Dunn & Crutcher LLP 16 09-CV-2292 JW PLAINTIFFS’ OPPOSITION TO PROPONENTS’ MOTION TO VACATE JUDGMENT 1 eliminate the word “reasonably” from the text of the statute. See El-Gabrowny, 844 F. Supp. at 961 2 (“Section 455(a) was not meant to require disqualification every time one party can make some 3 argument, no matter how unreasonable, that the appearance of prejudice would result.”) (internal 4 quotation marks omitted). In fact, any questions about whether a judge’s membership in a minority 5 group could compromise his impartiality are unreasonable per se because they are based on the very 6 stereotyping that the Fourteenth Amendment condemns. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Gibson, Dunn & Crutcher LLP B. Proponents’ Deliberate Strategy To Wait Until After An Adverse Judgment To Seek Recusal Renders This Motion Unjust And Untimely It is well settled that a party seeking recusal must “make a timely request for relief.” Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 868 (1988); see also Fed. R. Civ. P. 62.1(a) (requiring a “timely motion”). “To hold otherwise would encourage parties 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 Winery v. Gallo Cattle Co., 967 F.2d 1280, 1295 (9th Cir. 1992); accord 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.”). Accordingly, the Ninth Circuit requires that a recusal motion “be filed with reasonable promptness after the ground for such a motion is ascertained.” E. & J. Gallo Winery, 967 F.2d at 1296 (internal quotation marks omitted). Here, there is no question that Proponents’ post-judgment request for recusal is untimely. Although Proponents’ motion never actually informs the Court when they first learned that Judge Walker is gay, it is plain that they knew that he was in a same-sex relationship at least two months before this Court announced its decision (Ex. E (reporting that Judge Walker “attends bar functions with a companion, a physician”)), and that he was gay at least four months prior to that (Ex. B (“Chief U.S. District Judge Vaughn Walker[ ] is himself gay.”)). See also Prop. Mot. 6 (citing articles). Rather than seek recusal at that time, however, Proponents affirmatively rejected the notion that Judge Walker’s sexual orientation should be an issue in this litigation and represented that they would not sidetrack consideration of the important constitutional issues raised by Plaintiffs on such a trivial and unwarranted basis. For example, four months before closing arguments, “Andy Pugno, general counsel for the group that sponsored the Prop. 8 campaign, rebuffed claims that his group 17 09-CV-2292 JW PLAINTIFFS’ OPPOSITION TO PROPONENTS’ MOTION TO VACATE JUDGMENT 1 might bring [up Judge Walker’s sexual orientation] if Walker ultimately rules against them. ‘We are 2 not going to say anything about that,’ Pugno said.” Ashby Jones, Prop. 8 Judge Is Reportedly Gay: 3 What to Make of That?, Wall St. J., Feb. 8, 2010 (Ex. I). Similarly, in August 2010, after the decision 4 invalidating Proposition 8 was announced, Proponents’ counsel advised the Associated Press that 5 “[t]he bottom line in this case, from our perspective, is and always will be about the law and not 6 about the judge who decides it . . . . It’s just something that collectively as a legal team we have 7 decided and going up, that’s what this case is. The appellate courts are going to focus on the law.” 8 Ex. G. 9 Moreover, the very first amicus brief filed in the Ninth Circuit on September 15, 2010 argued 10 that Judge Walker should have recused himself because, as a gay man, “he has a personal interest in 11 the outcome of the trial that he was over-seeing.” Wooten Amicus 2. Proponents nevertheless 12 continued to refrain from seeking Judge Walker’s recusal while the case was being briefed in, and 13 argued to, the Ninth Circuit. It was not until after the Ninth Circuit issued an opinion certifying the 14 question of Proponents’ standing to appeal this Court’s decision—and issued a separate opinion 15 holding that Imperial County lacked the right to intervene and pursue an appeal on the merits—that 16 Proponents decided to move for recusal and vacatur of this Court’s decision. 17 Proponents have forfeited their right to seek recusal by strategically deciding to wait until 18 after the entry of an adverse judgment—and the issuance of opinions signaling a potentially adverse 19 result in the Ninth Circuit—to file their recusal motion. See, e.g., E. & J. Gallo Winery, 967 F.2d at 20 1295 (denying a motion to recuse as untimely where the moving party’s counsel knew of the 21 allegedly disqualifying facts seven months before an adverse judgment was entered); Wood v. 22 McEwen, 644 F.2d 797, 802 (9th Cir. 1981) (per curiam) (recusal motion not timely when not made 23 “until it was clear that the court intended to dismiss the underlying claim without leave to amend”). 24 Proponents were required to file their motion upon first learning of Judge Walker’s sexual 25 orientation. They did not. As reflected in Proponents’ repeated public comments that Judge 26 Walker’s sexual orientation was irrelevant, by the various articles and editorials reporting on Judge 27 Walker’s sexual orientation, and by the September 15, 2010 amicus brief that sought to disqualify 28 Judge Walker because he is gay, Proponents knew well before the April 6, 2011 article they now Gibson, Dunn & Crutcher LLP 18 09-CV-2292 JW PLAINTIFFS’ OPPOSITION TO PROPONENTS’ MOTION TO VACATE JUDGMENT 1 invoke that he is gay and in a relationship. Because Proponents’ motion is a naked attempt to “get a 2 second bite at the apple,” it cannot meet the threshold timeliness requirement and should be denied. C. 3 4 5 6 7 8 9 10 11 12 13 14 15 Section 455 “neither prescribes nor prohibits any particular remedy for a violation of th[e] duty” to recuse. Liljeberg, 486 U.S. at 862. Accordingly, even if a judge should have recused himself, vacatur pursuant to Rule 60(b) is not automatic, but rather, as the Supreme Court has instructed, “should only be applied in extraordinary circumstances.” Id. at 863 (emphasis added) (internal quotation marks omitted); see also id. at 862 (“There need not be a draconian remedy for every violation of § 455(a).”); United States v. Van Griffin, 874 F.2d 634, 637 (9th Cir. 1989) (quoting same). In determining whether “extraordinary circumstances” exist, the Supreme Court has identified three factors to consider: “[1] the risk of injustice to the parties in the particular case, [2] the risk that the denial of relief will produce injustice in other cases, and [3] the risk of undermining the public’s confidence in the judicial process.” Liljeberg, 486 U.S. at 863. Here, not only is there no risk of harm if the Court leaves the judgment in place, but vacatur would be certain to cause harm to Plaintiffs and the public. 16 17 18 19 20 21 22 23 24 Even If Disqualification Were Required, Vacating The Judgment Would Not Be Warranted Tellingly, none of the Defendants have joined Proponents’ vacatur motion, and the Governor, the Attorney General, and the other State Defendants affirmatively oppose it because there is “no question that Judge Walker properly presided over this matter.” Doc #778 at 7; see also Doc #774. Because the government-defendants are the only parties to this case who have standing to appeal the judgment (see Arizonans for Official English, 520 U.S. at 66), they alone bear the risk of being harmed if the Court were to conclude that recusal was required but nevertheless left the judgment in place. In contrast, Proponents have not shown that they have a particularized interest in the constitutionality of Proposition 8 (see Doc #727 at 7-8), and thus could not possibly suffer any injustice if the Court’s judgment invalidating Proposition 8 remains in place.5 25 26 27 28 Gibson, Dunn & Crutcher LLP 5 To the extent Proponents claim harm from this Court’s interlocutory rulings (Prop. Mot. 4), those rulings were subsequently appealed and reversed, in part, in Proponents’ favor. Hollingsworth v. Perry, 130 S. Ct. 705 (2010); Perry v. Schwarzenegger, 591 F.3d 1147 (9th Cir. 2010). 19 09-CV-2292 JW PLAINTIFFS’ OPPOSITION TO PROPONENTS’ MOTION TO VACATE JUDGMENT 1 Despite Proponents’ attempt to cast themselves as victims, it is Plaintiffs who are harmed 2 every day that Proposition 8 remains in force and continues to deny them access to the fundamental 3 right to marry in violation of the U.S. Constitution. That harm would only be exacerbated by 4 requiring Plaintiffs to relitigate this case in its entirety in order to prove (yet again) their ongoing 5 constitutional injury. Accordingly, there is a significantly greater risk of unfairness in vacating the 6 judgment than there is in upholding it. 7 Nor is there a risk that leaving the judgment in place would produce injustice in other cases. 8 Indeed, vacating the judgment would inevitably produce injustice in other cases by encouraging 9 similar intrusive recusal motions and strategic gamesmanship. See Liljeberg, 486 U.S. at 868 10 (considering the effect of similar motions in other cases). Vacatur would result in a proliferation of 11 attempts by other litigants to secure the recusal of judges based on their membership in a protected 12 class. In so doing, vacatur would encourage intrusive inquiries into judges’ private lives in an effort 13 to uncover possible grounds for recusal. It would also establish a dangerous precedent that parties 14 can evade adverse decisions by strategically choosing not to file recusal motions against “rumored” 15 gay and lesbian judges until after an adverse decision is entered. To avoid such disruptive effects on 16 the judicial system—and unseemly investigations into judges’ backgrounds and private 17 relationships—the Court should leave the judgment undisturbed. 18 Finally, the fact that Judge Walker did not publicly announce that he was gay and in a long- 19 term relationship with a person of the same sex when this case was assigned to him has not 20 undermined the public’s confidence in the judicial process. No one would, or should, expect a judge 21 to publicly disclose private, intimate matters. Moreover, Proponents’ allegations are far removed 22 from the extreme factual scenarios in which the Supreme Court has held that recusal was required to 23 maintain public confidence in the judicial system. See, e.g., Caperton v. A.T. Massey Coal Co., 129 24 S. Ct. 2252 (2009) (recusal required where judge benefitted from millions of dollars in campaign 25 expenditures by a litigant); Bracy v. Gramley, 520 U.S. 899 (1997) (judge accepting bribes). In any 26 event, this trial was closely followed by the public. The trial proceedings were covered on a daily 27 basis by the press, and the trial transcripts and final opinion have been widely disseminated to the 28 public and commented upon by observers. A person who took the time to follow the trial in this Gibson, Dunn & Crutcher LLP 20 09-CV-2292 JW PLAINTIFFS’ OPPOSITION TO PROPONENTS’ MOTION TO VACATE JUDGMENT 1 matter would see both the fairness and even-handedness with which Judge Walker treated all parties 2 and that the decision he reached was fully supported by the evidence presented. See Chevron Corp, 3 slip op. at 40 (denying recusal motion because “[i]nformed persons, knowing and understanding all 4 of the myriad and complex facts of these extensive proceedings, and putting aside the rhetoric and 5 other devices deployed here by the [moving party], readily would see that the Court’s rulings have 6 been firmly grounded in the law and the evidence”).6 Vacatur is therefore wholly unnecessary to 7 bolster public confidence in the thoroughly reasoned and constitutionally compelled result reached by 8 this Court. 9 IV. For the foregoing reasons, Plaintiffs respectfully request that this Court deny Proponents’ 10 11 CONCLUSION Motion to Vacate Judgment. 12 13 Respectfully submitted, DATED: May 13, 2011 GIBSON, DUNN & CRUTCHER LLP 14 15 By: /s/ Theodore B. Olson 16 17 and 18 BOIES, SCHILLER & FLEXNER LLP 19 David Boies 20 Attorneys for Plaintiffs KRISTIN M. PERRY, SANDRA B. STIER, PAUL T. KATAMI, and JEFFREY J. ZARRILLO 21 22 23 24 25 26 27 28 Gibson, Dunn & Crutcher LLP 6 Proponents’ motion gives the Court yet another reason to unseal the videotape of the trial proceedings. Ensuring public trust and confidence in the judicial system and the results it produces is the overarching rationale for the right of public access guaranteed by the First Amendment and longstanding common-law principles. In light of Proponents’ unfounded attacks on the integrity of Judge Walker and the proceedings over which he presided, that purpose would be powerfully served by unsealing the trial video and permitting the public to reach their own conclusions about the fairness of the proceedings. 21 09-CV-2292 JW PLAINTIFFS’ OPPOSITION TO PROPONENTS’ MOTION TO VACATE JUDGMENT