Perry et al v. Schwarzenegger et al

Filing 778

RESPONSE (re #768 MOTION to Vacate Judgment ) filed byEdmund G. Brown, Jr, Linette Scott, Kamala D. Harris, Howard Backer. (Powell, Daniel) (Filed on 5/12/2011)

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1 2 3 4 5 6 7 8 KAMALA D. HARRIS Attorney General of California CONSTANCE L. LELOUIS Supervising Deputy Attorney General TAMAR PACHTER Deputy Attorney General DANIEL J. POWELL Deputy Attorney General State Bar No. 230304 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone: (415) 703-5830 Fax: (415) 703-1234 E-mail: Attorneys for State Defendants 9 10 IN THE UNITED STATES DISTRICT COURT 11 FOR THE NORTHERN DISTRICT OF CALIFORNIA 12 13 14 15 16 17 18 KRISTIN M. PERRY, et al., v. 3:09-cv-02292-JW Plaintiffs, STATE DEFENDANTS’ OPPOSITION TO MOTION TO VACATE JUDGMENT ARNOLD SCHWARZENEGGER, et al., Defendants. Date: Time: Courtroom: Judge June 13, 2011 9:00 a.m. 5, 17th Floor Hon. James Ware 19 20 21 22 23 24 25 26 27 28 State Defendants’ Opp. to Mot. to Vacate (3:09-cv-02292-JW) 1 INTRODUCTION 2 Defendant-Intervenors’ Motion to Vacate Judgment presents a simple issue: can a gay 3 judge impartially adjudicate a case involving gay rights? On the face of their motion, Defendant- 4 Intervenors seem to agree that Judge Walker’s sexual orientation is irrelevant. Rather, they argue 5 that Judge Vaughn Walker should have recused himself from this case because he is in a 6 relationship with another man and not because he is gay. As many judges have recognized, 7 however, this is a distinction without a difference. Faced with similarly nuanced challenges, 8 courts have seen such recusal requests for what they are: thinly veiled attempts to disqualify 9 judges based on their race, gender, religious affiliation, or in this case, sexual orientation. 10 As the chief law enforcement officers of the State of California, state defendants1 are 11 especially concerned at the precedent that might be set should this Court rule that Judge Walker is 12 subject to recusal because of his sexual orientation and the fact that he is in a long-term 13 relationship. On one level, the recusal motion here is similar to long-discredited efforts to bar 14 black judges from adjudicating cases of race discrimination. See, e.g., Pennsylvania v. Local 15 Union 542, Int’l Union of Operating Eng’rs, 388 F. Supp. 155 (E.D. Pa. 1974). Like race, 16 gender, religion, and ethnicity, sexual orientation is simply irrelevant to whether a judge is 17 qualified to hear a case, regardless of the subject matter or the identity of the litigants. Cf., United 18 States v. Alabama, 582 F. Supp. 1197, 1203 (N.D. Ala. 1984). On another level, the recusal 19 motion here is even more troubling. As Defendant-Intervenors would have it, judges can be 20 forced to disclose some of their most personal, private information. Recusal motions such as the 21 one advanced here threaten to subject gay and lesbian judges—indeed all judges—to “witch 22 hunts” concerning intimate aspects of their most personal and private lives. 23 We do not require our judges to be automatons set apart from the rest of society. Instead, 24 we recognize that, like the rest of humanity, no judge is free of personal characteristics, beliefs, 25 26 27 28 1 Pursuant to Federal Rule of Civil Procedure 25(d), Governor Edmund G. Brown Jr.; Attorney General Kamala D. Harris; and Interim Director of the California Department of Health Howard Backer are automatically substituted as defendants in this action. Linette Scott remains the Deputy Director of Health Information & Strategic Planning for the California Department of Public Health. 1 State Defendants’ Opp. to Mot. to Vacate (3:09-cv-02292-JW) 1 and affiliations, and we presume that they will put these aside and apply the law. United States v. 2 Baskes, 687 F.2d 165, 170 (7th Cir. 1981). Only when a judge has some specific interest that 3 could be substantially affected by the litigation does the law demand recusal. Defendant- 4 Intervenors have failed to identify any such disqualifying interest. Instead they have ascribed to 5 Judge Walker a personal interest based solely on his sexual orientation and his choice to express 6 his sexual orientation by being part of a long-term relationship. Just as every single one of the 7 attempts to disqualify judges on the basis of their race, gender, or religious affiliation has been 8 rejected by other courts, this Court should similarly reject Defendant-Intervenors’ effort to 9 disqualify Judge Walker based on his sexual orientation. The Motion to Vacate Judgment should 10 therefore be denied, and it should be denied while Defendant-Intervenors’ appeal is pending 11 pursuant to Federal Rule of Civil Procedure 62.1(a)(2). 12 ARGUMENT 13 The standards governing recusal pursuant to 28 U.S.C. § 455 are well-settled. Section 14 455(a), which forms the principal basis for Defendant-Intervenors’ challenge, provides that “Any 15 justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in 16 which his impartiality might reasonably be questioned.” “The standard for judging the 17 appearance of partiality requiring recusal under 28 U.S.C. § 455 is an objective one and involves 18 ascertaining ‘whether a reasonable person with knowledge of all the facts would conclude that the 19 judge’s impartiality might reasonably be questioned.’” Preston v. United States, 923 F.2d 731, 20 734 (9th Cir. 1991) (quoting United States v. Nelson, 718 F.2d 315, 321 (9th Cir. 1983)). Section 21 455(b)(4), also invoked by Defendant-Intervenors, requires recusal when a judge knows that he 22 has a “financial interest in the subject matter in controversy or in a party to the proceeding, or any 23 other interest that could be substantially affected by the outcome of the proceeding.” “Whether 24 such an interest is disqualifying depends upon the remoteness of the interest and its extent or 25 degree. . . . As the interest becomes less direct, it will require disqualification only if the litigation 26 substantially affects that interest.” In re Beard, 811 F.2d 818, 831 (4th Cir. 1987). “Since a 27 judge is presumed impartial, the party seeking recusal has a substantial burden to overcome the 28 presumption with factual allegations of personal bias. . . .” Baskes, 687 F.2d at 170. A judge 2 State Defendants’ Opp. to Mot. to Vacate (3:09-cv-02292-JW) 1 need not “recuse on unsupported, irrational, or highly tenuous speculations, and should ignore 2 rumors, innuendos, and erroneous information.” TV Communications Network, Inc v. ESPN, Inc., 3 767 F. Supp. 1077, 1080 (D. Colo. 1981). 4 I. 5 6 THE FACT THAT JUDGE WALKER IS IN A SAME-SEX RELATIONSHIP IS INSUFFICIENT TO SHOW THE APPEARANCE OF BIAS The fact that Judge Walker is in a long-term relationship with a same-sex partner and may, 7 if the judgment becomes final, be able to marry his partner in California at some point in the 8 future is insufficient to show bias under section 455.2 Judge Walker has not indicated that he has 9 any intent to marry his partner—indeed, he could have married his partner in the period between 10 the California Supreme Court’s decision in In re Marriage Cases, 183 P.3d 384 (Cal. 2008) and 11 the passage of Proposition 8. Mere speculation that Judge Walker might marry his partner 12 sometime in the future is the kind of “remote, contingent, or speculative” interest that does not 13 “reasonably bring[ ] into question a judge’s impartiality.” In re Drexel Burnham Lambert 14 Incorporated, 861 F.2d 1307, 1313 (2d Cir. 1988). It might similarly be argued that a judge with 15 a minor daughter must disclose that fact in the context of a challenge to a law that limits minors’ 16 access to abortion, or that a judge who had a loved one die of lung cancer must disclose this fact 17 when presiding over a case involving a tobacco-related suit. Although these hypothetical 18 scenarios seem outlandish, this highly personal inquiry is precisely what Defendant-Intervenors 19 demand of Judge Walker: “Judge Walker had a duty to disclose not only the facts concerning his 20 relationship, but also his marriage intentions. . . .” Mot. at 3 (emphasis added). This alone 21 shows the far-reaching impact of Defendant-Intervenors’ position. 22 Section 455 does not require courts to indulge in this kind of inquiry, however, as such 23 hypothetical interests are insufficient to raise even the appearance of impropriety. In United 24 States v Alabama, Alabama sought the recusal of an African-American judge who had minor 25 26 27 28 2 This Motion is not the first time that Defendant-Intervenors have sought to recuse a judge presiding in this case. On appeal, they also moved to disqualify Judge Reinhardt on the basis of his wife’s position as Executive Director of the American Civil Liberties Union of Southern California. Judge Reinhardt denied that motion, which he found to be “based upon an outmoded conception of the relationship between spouses.” Perry v. Schwarzenegger, 630 F.3d 909, 912 (9th Cir. 2011). 3 State Defendants’ Opp. to Mot. to Vacate (3:09-cv-02292-JW) 1 children in a case alleging that Alabama and its institutions of higher learning were maintaining 2 racial segregation. 582 F. Supp. 1197 (N.D. Ala. 1984). The affidavit filed in that case indicated 3 that “Judge Clemon’s minor children are possible members of a class of black school children 4 seeking to intervene, suggesting the possibility of the appearance of a personal interest in the 5 outcome of this case.” Id. at 1200. The district court rejected the sufficiency of that fact, 6 however, finding that “the interests claimed are too tenuous and remote.” Id. at 1203. Rather, the 7 court concluded, “[t]he interests claimed to be affected are uncertain and contingent upon Judge 8 Clemon’s children choosing to attend one of the defendant institutions at some unknown date in 9 the future. These interests are clearly not the substantial interests contemplated under § 455.” Id. 10 11 at 1208. Similarly, in LeRoy v. City of Houston, an African-American judge rejected a challenge to 12 her ability to hear a lawsuit alleging that the City of Houston had routinely engaged in racially 13 discriminatory activities in hiring and elections. 592 F. Supp. 415 (S.D. Tex. 1984). Despite 14 being a resident of Houston, and at least at one time part of a putative class (which was never 15 certified), Judge McDonald refused to recuse herself. “The fact that I am black and have been a 16 registered voter is not and should not be sufficient to create an appearance of impropriety.” Id. at 17 424. The court recognized the scope of Houston’s request, which like that of Defendant- 18 Intervenors here, would require recusal in a whole host of situations never before thought to 19 present an appearance of bias. “This Court would find itself a member of many protected classes, 20 e.g., race-black; sex-women; age-over 40; and would find that it would be seriously hampered if 21 not crippled in its ability to consider the claims of litigants which come to it through the normal 22 course of random assignment.” Id. The Court rejected the claim that the judge’s race could lead 23 to bias and declared the argument to be “without any support.” Id. 24 The fact that Judge Walker is, like many individuals, in a long-term relationship that might 25 or might not result in marriage is insufficient to show either that he has a disqualifying interest in 26 the outcome of this litigation or that his impartiality may be questioned. As his relationship status 27 is not a sufficient basis for recusal under section 455(a) or 455(b)(4), Defendant-Intervenors’ 28 Motion to Vacate Judgment should be denied. 4 State Defendants’ Opp. to Mot. to Vacate (3:09-cv-02292-JW) 1 2 3 II. JUDGE WALKER’S SEXUAL ORIENTATION IS NOT A VALID BASIS FOR HIS RECUSAL Defendant-Intervenors disavow any argument that the judgment should be vacated on the 4 basis of Judge Walker’s sexual orientation, but as courts have recognized in other contexts, that is 5 precisely what Defendant-Intervenors are seeking. Judge Walker’s long-term, same-sex 6 relationship is precisely and obviously an expression of his sexual orientation; it is sophistry to 7 attempt to distinguish one from the other. As the Court observed in Alabama, defendants’ 8 argument that Judge Clemon was interested in the outcome of the case because he had children 9 would lead to the conclusion that “every black judge, with minor children in the state, would be 10 precluded from presiding in a school desegregation case. This reasoning once again suggests 11 only an inference of inherent bias based on the judge’s race.” 582 F. Supp. at 1203. And as 12 Judge McDonald observed when her impartiality was nominally challenged because she was a 13 member of the putative class in LeRoy: 14 17 Fundamentally, my only connection with the real parties in interest in this case is race. If my race is enough to disqualify me from hearing this case, then I must disqualify myself as well from a substantial portion of the cases on my docket. This circumstance would cripple my efforts to fulfill my oath as a federal judge to enforce the laws of our nation. I consider the mere happenstance of my race is not enough connection to the actual parties in this case to make recusal appropriate in the situation at hand. 18 592 F. Supp. at 420. Similarly here, Defendant-Intervenors’ argument must be rejected because 19 the only connection alleged between Judge Walker and the plaintiffs in this case is that they are 20 all gay. 15 16 21 As in LeRoy and Alabama, Defendant-Intervenors’ rationale would lead to the recusal in 22 this litigation of every gay judge in a relationship, whether it be short-term or long-term, public or 23 private. Because virtually every gay judge would be subject to recusal under Defendant- 24 Intervenors’ reasoning, the inference of bias here is only “based on the judge’s [sexual 25 orientation].” Alabama, 582 F. Supp. at 1024. Manifestly, a judge’s sexual orientation, like a 26 judge’s gender, race, or religion, is an insufficient reason to require his recusal. See id. at 1203 27 (“It is clear that a judge’s color, sex or religion does not constitute bias in favor of that color, sex 28 or religion.”); see also Bryce v. Episcopal Church in the Diocese of Colorado, 289 F.3d 648, 660 5 State Defendants’ Opp. to Mot. to Vacate (3:09-cv-02292-JW) 1 (10th Cir. 2002) (noting that “courts have consistently held that membership in a church does not 2 create sufficient appearance of bias to require recusal” and that other associational bias cases 3 show “that group membership alone is insufficient to create the appearance of bias”); State of 4 Idaho v. Greeman, 507 F. Supp. 706, 729 (D. Idaho 1981) (“it warrants noting that a judge’s 5 background associations, which would include his religious affiliations, should not be considered 6 as a grounds for disqualification”); Blank v. Sullivan and Cromwell, 418 F. Supp. 1, 4 (N.D. Ala. 7 1984) (“The assertion, without more, that a judge who engaged in civil rights litigation and who 8 happens to be of the same sex as a plaintiff in a suit alleging sex discrimination on the part of a 9 law firm, is, therefore, so biased that he or she could not hear the case, comes nowhere near the 10 standards required for recusal.”). All judges, including those who are gay, have a duty to 11 “perform judicial duties without bias or prejudice.” Model Code of Judicial Conduct, Cannon 12 3(5). Just as straight judges can be trusted to put aside their sexual orientation when adjudicating 13 a dispute in which sexual orientation is relevant, so, too, can gay judges be trusted to do the same. 14 Plaintiffs do not argue to the contrary. 15 The seminal case discussing allegations of bias based on a judge’s personal characteristics 16 is Judge A. Leon Higginbotham Jr.’s opinion in Commonwealth of Pennsylvania v. Local Union 17 542, International Union of Operating Engineers, 388 F. Supp. 155 (E.D. Pa. 1974). The 18 defendants in that case, who were alleged to have engaged in racial discrimination, sought Judge 19 Higginbotham’s recusal, nominally because of a speech he gave at the Annual Meeting of the 20 Association for the Study of Afro-American Life and History. In a thorough opinion, Judge 21 Higginbotham showed that the recusal request was, in fact, based on his race. “Defendants do not 22 go so far as to precisely assert that black judges should per se be disqualified from hearing cases 23 which involve racial issues, but as will be demonstrated hereinafter, the absolute consequence and 24 thrust of their rationale would amount to, in practice, a double standard within the judiciary.” Id. 25 at 165. Judge Higginbotham highlighted the pretextual nature of defendants’ argument by turning 26 it around. No one, he pointed out, would seek to recuse a white judge who had given a speech 27 about human rights to a historical society, demonstrating that the issue was really one of race. Id. 28 6 State Defendants’ Opp. to Mot. to Vacate (3:09-cv-02292-JW) 1 While recusal challenges based on race and gender have receded in recent years as the 2 bench has become increasingly diverse, the same has not been true with respect to sexual 3 orientation. It was only in January of this year that an openly gay man was first nominated to the 4 federal bench.3 While a handful of other federal judges have publicly disclosed that they are gay 5 or lesbian after being appointed to the bench, it is only now that openly gay judges are beginning 6 to adjudicate claims involving discrimination on the basis of sexual orientation. No one now 7 questions that Judge Higginbotham properly presided over the claims of racial discrimination 8 before him, and there should similarly be no question that Judge Walker properly presided over 9 this matter. As there is no basis for Defendant-Intervenors’ contention that Judge Walker should 10 have recused himself pursuant to section 455, their motion to vacate judgment should be denied.4 11 CONCLUSION 12 The fact that Judge Walker is gay and is in a long-term relationship is insufficient to show 13 bias or the appearance of impropriety. As Judge Higginbotham noted over thirty years ago: 14 17 It would be a tragic day for the nation and the judiciary if a myopic vision of the judge’s role should prevail, a vision that required judges to refrain from participating in their churches, in their nonpolitical community affairs, in the universities. So long as Jewish judges preside over matters where Jewish and Gentile litigants disagree; so long as Protestant judges preside over matters where Protestants and Catholics disagree; so long as white judges preside over matters where white and black litigants disagree, I will preside over matters where black and white litigants disagree. 18 Commonwealth of Pennsylvania, 388 F. Supp. at 181. Gay judges must also be permitted to 19 preside over matters where people of different sexual orientations disagree. Defendant- 20 Intervenors’ Motion to Vacate Judgment should be denied. 15 16 21 // 22 // 23 // 24 25 26 27 28 3 Benjamin Weiser, Obama Nominee for Judge Could Be First Openly Gay Man on Federal Bench, N.Y. Times, January 28, 2011 at A-29. 4 State Defendants request that the Court deny this motion while the DefendantIntervenors’ appeal is pending, as provided by Federal Rule of Civil Procedure 62.1(a)(2). For the reasons stated above, the Motion to Vacate Judgment is meritless. A ruling on the motion now would allow the Ninth Circuit to consolidate any appeal of this Court’s decision with Defendant-Intervenors’ pending appeal, avoiding the possibility of seriatim appeals. 7 State Defendants’ Opp. to Mot. to Vacate (3:09-cv-02292-JW) 1 Dated: May 12, 2011 Respectfully submitted, 2 KAMALA D. HARRIS Attorney General of California CONSTANCE L. LELOUIS Supervising Deputy Attorney General TAMAR PACHTER Deputy Attorney General 3 4 5 6 /s/ Daniel J. Powell 7 DANIEL J. POWELL Deputy Attorney General Attorneys for State Defendants 8 9 10 SA2009310603 Document in ProLaw 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 State Defendants’ Opp. to Mot. to Vacate (3:09-cv-02292-JW) DECLARATION OF SERVICE BY U.S. MAIL Case Name: No.: Kristin M. Perry, et al. v. Arnold Schwarzenegger, et al. 3:09-cv-02292-VRW I declare: I am employed in the Office of the Attorney General, which is the office of a member of the California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placed in the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service that same day in the ordinary course of business. On May 12, 2011, I served the attached STATE DEFENDANTS’ OPPOSITION TO MOTION TO VACATE JUDGMENT by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the internal mail collection system at the Office of the Attorney General at 455 Golden Gate Avenue, Suite 11000, San Francisco, CA 941027004, addressed as follows: Christopher M. Gacek Family Research Council 801 G Street NW Washington, DC 20001 Paul Benjamin Linton 921 Keystone Avenue Northbrook, IL 60062 Kaylan L. Phillips 1 South 6th Street Terre Haute, IN 47807-3510 Rena M Lindevaldsen Liberty Counsel 100 Mountainview Rd, Ste 2775 Lynchberg, VA 24502 Kevin James Hasson 1350 Connecticut Ave, Ste 605 NW Washington, DC 20036-1735 Richard E. Coleson 1 South 6th Street Terre Haute, IN 47807-3510 Michael James McDermott 7172 Regional #329 Dublin, CA 94568 Suzanne B. Goldberg Sexuality & Gender Law Clinic 435 W. 116th Street New York, NY 10025 Michael W. Kirk Cooper & Kirk, PLLC 1523 New Hampshire Avenue, NW Washington, DC 2003 Thomas Brejcha Thomas More Society 29 S. La Salle, Ste 440 Chicago, IL 60603 Tobias Barrington Wolff University of Pennsylvania Law School 3400 Chestnut Street Philadelphia, PA 19104-6204 Vincent P. McCarthy W. Chestnut Hill Road Lichfield, CT 06759 I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed on May 12, 2011, at San Francisco, California. S. Chiang Declarant SA2009310603 20451859.doc /s/ S. Chiang Signature

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