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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GIBSON, DUNN & CRUTCHER LLP
Theodore B. Olson, SBN 38137
[e-mail]
Matthew D. McGill, pro hac vice
Amir C. Tayrani, SBN 229609
1050 Connecticut Ave., N.W., Washington, D.C. 20036
T: [phone] | F: [phone]
Theodore J. Boutrous, Jr., SBN 132009
[e-mail]
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: [phone] | F: [phone]
BOIES, SCHILLER & FLEXNER LLP
David Boies, pro hac vice
[e-mail]
333 Main St., Armonk, NY 10504
T: [phone] | F: [phone]
Jeremy M. Goldman, SBN 218888
[e-mail]
1999 Harrison St., Ste. 900, Oakland, CA 94612
T: [phone] | F: [phone]
Attorneys for Plaintiffs
Kristin M. Perry, Sandra B. Stier,
Paul T. Katami, and Jeffrey J. Zarrillo

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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

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TABLE OF CONTENTS

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Page

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I.

INTRODUCTION ..................................................................................................................1

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II.

PROCEDURAL HISTORY AND FACTUAL BACKGROUND .........................................4

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III.

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THE COURT SHOULD DENY PROPONENTS’ MOTION TO
VACATE ITS THOROUGH AND AMPLY SUPPORTED FINDINGS
OF FACT AND CONCLUSIONS OF LAW .........................................................................7

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A.

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There Is No Plausible Basis For Questioning Judge Walker’s
Impartiality...................................................................................................................8

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1.

Section 455(b)(4) Did Not Require Judge Walker’s Recusal ..........................9

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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.

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Even If Disqualification Were Required, Vacating The Judgment
Would Not Be Warranted...........................................................................................19

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IV.

CONCLUSION ....................................................................................................................21

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TABLE OF AUTHORITIES
Page(s)

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CASES 

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Arizonans for Official English v. Arizona,
520 U.S. 43 (1997) ......................................................................................................... 6, 14, 19

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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
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TABLE OF AUTHORITIES
[Continued]
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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

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TABLE OF AUTHORITIES
[Continued]
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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

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TABLE OF AUTHORITIES
[Continued]
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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

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U.S. Const. amend. IV ......................................................................................................................... 12

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U.S. Const. amend. XIV ............................................................................................................... passim

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STATUTES 

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28 U.S.C. § 455 ............................................................................................................................. passim

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28 U.S.C. § 455(a) ........................................................................................................................ passim

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28 U.S.C. § 455(b)(4).................................................................................................................... passim

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28 U.S.C. § 455(e) ............................................................................................................................... 16

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Civil Rights Restoration Act of 1987,
Pub. L. No. 100-259, § 6, 102 Stat. 28 31.................................................................................. 8

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RULES 

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Fed. R. Civ. P. 62.1(a).......................................................................................................................... 17

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Fed. R. Civ. P. 62.1(a)(2) ....................................................................................................................... 7

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Civil L.R. 3-3(a)..................................................................................................................................... 4

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General Order No. 44 § D(2) (Jan. 4, 2010) .......................................................................................... 4

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OTHER AUTHORITIES 
Appellants’ Motion for Disqualification,
Perry v. Schwarzenegger,
630 F.3d 909 (9th Cir. 2011) (No. 10-16696)............................................................................ 6

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TABLE OF AUTHORITIES
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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

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I.

INTRODUCTION
Proponents’ motion to vacate this Court’s judgment is an utterly baseless attack on the

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integrity of the judicial system, on then-Chief Judge Walker, and on all gay and lesbian jurists who

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faithfully perform their duties and decide cases across this country each day. After a twelve-day trial,

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during which Proponents chose to call only two witnesses to rebut Plaintiffs’ seventeen, this Court

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found in favor of Plaintiffs, declared Proposition 8 unconstitutional under the Due Process and Equal

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Protection Clauses, and permanently enjoined its enforcement. Now, Proponents claim that their loss

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resulted not from the legal infirmity of their position or from the paucity of evidence offered in

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defense of Proposition 8, but instead from the fact that the presiding judge was gay and in a long-term

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relationship. According to Proponents, these facts create a reasonable belief that Judge Walker

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disregarded the law and the facts—as well as his oath as a federal judge—and ruled in favor of

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Plaintiffs because he might have an interest in marrying a person of the same sex. This deeply

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regrettable (and belated) attack on Judge Walker’s impartiality based on his membership in a

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minority group is factually groundless and legally insupportable.

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Proponents’ motion suffers from the same transparent failure of proof as their case at trial.

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Instead of supporting their motion with facts, they baldly make the repeated assertion that Judge

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Walker’s bias “must be presumed.” But in determining whether a judge’s recusal is required, facts

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matter. Ungrounded speculation, beliefs, conjecture, innuendo, suspicion, and opinion do not render

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a judge unfit to perform his constitutional duties. Proponents lack any factual basis to assume that

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Judge Walker wishes to marry—indeed, he apparently made no effort to do so when marriage

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between individuals of the same sex was permitted in California in 2008—and instead rely on

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nothing more than the fact that he is gay, in a relationship with a person of the same sex, and

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recognizes in his decision the importance of marriage in American society. Such unvarnished

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speculation does not come close to meeting the statutory requirements for compelling a

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judge’s recusal.

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In any event, even if Proponents had iron-clad proof of Judge Walker’s desire to marry and

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exercise a right already enjoyed by virtually everyone in this country other than gay men and

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lesbians, there would be absolutely no basis for questioning his impartiality in this case. The “other

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09-CV-2292 JW PLAINTIFFS’ OPPOSITION TO PROPONENTS’ MOTION TO VACATE JUDGMENT

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interest” provision of 28 U.S.C. § 455(b)(4) does not require a judge to recuse himself simply

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because he is a member of a minority group that seeks access to a fundamental constitutional right

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denied to them by a discriminatory state law. If it did, the provision would plainly violate equal

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protection by restricting a judge’s ability to sit on a case based on his membership in a minority

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group that might benefit from the elimination of longstanding discriminatory barriers. In fact,

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Proponents’ argument is nothing more than a thinly veiled attempt to disqualify a gay judge based on

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his sexual orientation. If Judge Walker were not gay, Proponents would have no objection to his

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presiding over this case. Similarly, if Judge Walker were gay and not in a long-term relationship,

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Proponents could nevertheless speculate that he might benefit from the right to marry in the future.

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Proponents cannot escape the fact that their motion is, at its core, about Judge Walker’s sexual

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orientation. Proponents also ignore the obvious fact that under their expansive reading of the “other

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interest” provision of Section 455(b)(4), judges who belong to the majority group might just as

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readily be disqualified if they benefit in some way from the ongoing favored treatment of that group.

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Given that Proponents have argued that affording gay men and lesbians the right to marry would

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somehow harm heterosexual marriages (an argument that finds no support whatsoever in the record),

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it would follow from their argument that judges married to a person of the opposite sex would also

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possess an “interest” warranting recusal. Such a standard is plainly unworkable and unconstitutional.

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Proponents’ reliance on the catch-all provision of 28 U.S.C. § 455(a) is equally unavailing.

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Proponents contend that a judge’s impartiality could reasonably be questioned because he is likely to

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favor the outcome that would afford greater rights to the minority group of which he is a member.

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The Equal Protection Clause bars this prejudiced and stereotyped reading of Section 455(a). In fact,

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under Proponents’ reasoning, African-American and female judges would have been required to

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recuse themselves in the most important civil rights cases in American history (e.g., Brown v. Bd. of

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Educ., 347 U.S. 483 (1954); United States v. Virginia, 518 U.S. 515 (1996)), and all judges would be

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required to disclose their most private thoughts and relationships in order to preside over any case

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that involves constitutional rights they might conceivably want to secure for themselves and their

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families. That is not the law—and our Nation is much the better for it.

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Moreover, Proponents have failed to make the threshold showing of timeliness. Judge Walker

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is openly gay and has been since well before Proponents became involved in this litigation. During

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his tenure on the Northern District of California, Judge Walker was one of only two openly gay

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judges serving in the federal judiciary. Chris Geidner, Edward DuMont, Praised by Colleagues as

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“Brilliant,” Would Be the First Openly Gay Federal Appellate Judge in the Country, Metro Weekly,

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Apr. 16, 2010 (Monagas Decl. Ex. A).1 He has been in a long-term relationship for ten years and

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“has never taken pains to disguise—or advertise—his orientation.” Phillip Matier & Andrew Ross,

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Judge Being Gay a Nonissue During Prop. 8 Trial, S.F. Chron., Feb. 7, 2010, at C-1 (Ex. B); see also

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Margaret Russell, Sexual Orientation Singled Out for Scrutiny, Daily Journal, Mar. 10, 2010 (Ex. C).

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Although he did not comment on the topic publicly until he left the bench in February 2011, Judge

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Walker has not attempted to conceal his sexual orientation. See Maura Dolan, Distilling the Same-

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Sex Marriage Case, L.A. Times, June 21, 2010 (Ex. D); Dan Levine, Gay Judge Never Thought to

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Drop Marriage Case, Reuters, Apr. 6, 2011 (Ex. E). As early as February 2010, Proponents

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affirmatively disavowed any intention to challenge Judge Walker as biased based on his sexual

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orientation. Ex. B.
Despite having knowledge of Judge Walker’s sexual orientation and his relationship well

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before judgment was entered, Proponents lay in wait to file this motion. See Chevron Corp. v.

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Donziger, No. 11 Civ. 0691 (LAK), slip op. at 12 n.27 (S.D.N.Y. May 9, 2011) (“[T]he effort to force

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or shame off a case a judge . . . is becoming the latest weapon in a litigator’s arsenal—litigation by

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other means.”) (internal quotation marks omitted). They waited until after this Court had conducted a

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two-week trial, carefully deliberated over hundreds of exhibits and the testimony of nineteen

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witnesses, and announced its decision, and waited still further while they filed motions to stay in both

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this Court and the Ninth Circuit, briefed numerous issues on appeal, and participated in oral

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argument. Only after the Ninth Circuit asked the California Supreme Court to decide whether

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Proponents even possess the authority to appeal this Court’s decision did Proponents file their motion

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All references to exhibits throughout this Opposition refer to exhibits to the Declaration of
Enrique A. Monagas filed concurrently herewith.
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seeking the nullification of the past two years of proceedings. Parties must promptly seek recusal

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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

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protective order covering the videotaped trial proceedings and release them to the public. It is telling

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that at precisely the same time they attack Judge Walker’s impartiality and argue that his decision

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was based not on the evidence but rather on bias, Proponents are fighting tooth-and-nail to suppress

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the video record of the trial and keep the public from seeing for themselves the fair and impartial

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manner in which Judge Walker presided and the overwhelming evidentiary record that not only

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supports, but indeed compels, the decision that Proponents belatedly attack. Now that Proponents

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have publicly questioned the integrity of Judge Walker, the integrity of the proceedings, and thus the

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integrity of the judicial system, it is all the more important that the public have access to what

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actually occurred at trial.

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II.

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PROCEDURAL HISTORY AND FACTUAL BACKGROUND
On May 22, 2009, Kristin M. Perry, Sandra B. Stier, Paul T. Katami, and Jeffrey J. Zarrillo

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(“Plaintiffs”) filed a complaint in this Court that challenged the constitutionality of California’s

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Proposition 8 as a violation of the Due Process and Equal Protection Clauses of the Fourteenth

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Amendment. Doc #1. The Clerk of the Court, acting “blindly and at random,” assigned the case to

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then-Chief Judge Vaughn R. Walker. Id.; Civil L.R. 3-3(a); General Order No. 44 § D(2) (Jan. 4,

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2010). On May 28, 2009, Proposition 8 Official Proponents Dennis Hollingsworth, Gail J. Knight,

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Martin F. Gutierrez, Hak-Shing William Tam, and Mark A. Jansson; and ProtectMarriage.com – Yes

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on 8, A Project of California Renewal (“Proponents”) moved to intervene to defend Proposition 8.

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Doc #8. Judge Walker granted their motion on June 30, 2009. Doc #77.

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From January 11 to January 27, 2010, Judge Walker presided over a twelve-day bench trial in

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this case. Doc #690. Soon after the trial ended, but before closing arguments were heard, the San

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Francisco Chronicle published an article acknowledging that “[t]he biggest open secret in the

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landmark trial over same-sex marriage being heard in San Francisco is that the federal judge who will

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decide the case, Chief U.S. District Judge Vaughn Walker, is himself gay.” Ex. B.

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The San Francisco Chronicle article was published on February 7, 2010. Id. The Chronicle

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had spoken to “a federal judge who counts himself as a friend and confidant of [Judge] Walker’s”

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who explained that the Judge “has a private life and he doesn’t conceal it, but doesn’t think it is

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relevant to his decisions in any case, and he doesn’t bring it to bear in any decisions.” Id. Andrew

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Pugno, who represents Proponents in this litigation, was quoted in the article. Responding to

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concerns that Proponents might “make an issue of the judge’s sexual orientation” if this Court found

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the proposition unconstitutional, Pugno advised that “[w]e are not going to say anything about that.”

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Id.

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Closing arguments were held on June 16, 2010. Doc #690. Five days later, the Los Angeles

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Times published an article commenting on the status and impact of this litigation. See Ex. D. The

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article described Judge Walker as “openly gay” and quoted his colleague, Judge Maxine M. Chesney.

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Id. The June 21, 2010 article also stated that Judge Walker “attends bar functions with a companion,

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a physician.” Id.

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On August 4, 2010, this Court ordered entry of judgment in favor of Plaintiffs and Plaintiff-

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Intervenor and against Defendants and Proponents. Doc #708. Proponents immediately appealed the

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decision to the United States Court of Appeals for the Ninth Circuit. Doc #714. That same day,

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Gerard Bradley published an editorial on FoxNews.com making arguments identical to those now

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advanced by Proponents in their Motion to Vacate Judgment. Compare Prop. Mot., with Gerard V.

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Bradley, Why Has Media Ignored Judge’s Possible Bias In California’s Gay Marriage Case?,

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FoxNews.com, Aug. 4, 2010 (Ex. F). Bradley argued that if “Judge Walker is in a stable same-sex

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relationship, then he might wish or even expect to wed should same-sex marriage become legally

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available in California. This raises an important and serious question about his fitness to preside over

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the case. Yet it is a question that received almost no attention.” Ex. F. Bradley stated that a

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discussion about whether Judge Walker should recuse himself because of his relationship “is a

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conversation worth having.” Id. But given how far the case had already progressed, he concluded

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that “sadly, it is quite too late to have it.” Id.

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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
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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

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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

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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

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facto, that he is anti-white; no more than being Jewish implies being anti-Catholic, or being Catholic

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implies being anti-Protestant.’” Alabama, 828 F.2d at 1542 (quoting Pennsylvania, 388 F. Supp. at

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163). We must and do expect more of those tasked with interpreting our laws.

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Proponents’ construction of Section 455(a), however, would require federal judges to publicly

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disclose intimate details of their private lives “so that the parties [can] consider and decide, before the

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case proceed[s] further, whether to request [a judge’s] recusal.” Prop. Mot. 2 (citing 28 U.S.C.

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§ 455(e)). For example, under Proponents’ unprecedented construction, no African-American judge

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who had children attending segregated schools could have decided Brown v. Board of Education,

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unless he publicly disavowed any interest in his children attending integrated schools. See Alabama,

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828 F.2d at 1542 (describing absurdity of defendants’ theory). Similarly, no judge in an interracial

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relationship could have decided Loving v. Virginia, 388 U.S. 1 (1967), unless the judge disclosed to

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the public that he had no desire to marry his partner. And, no female judge of childbearing age—and

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no male judge in a relationship with a woman of childbearing age—could decide an abortion case

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unless the judge publicly disclosed those intimate relations and disavowed any interest in an abortion

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(or disclosed an inability to conceive). See Day, 451 F. Supp. 2d at 1138. Moreover, Proponents’

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expansive construction of Section 455(a) would not be limited to judges who are members of

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minority groups. For example, according to Proponents, no judge with white children could have

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decided Grutter v. Bollinger, 539 U.S. 306 (2003), or Gratz v. Bollinger, 539 U.S. 244 (2003), unless

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the judge disavowed any intent for those children to attend a public college. See Day, 451 F. Supp.

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2d at 1138. Proponents’ argument thus not only would severely restrict the number of judges deemed

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sufficiently impartial to decide constitutional questions, but Proponents’ emphasis on disclosure of

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any theoretical interest that a judge might have in the constitutional rights at issue would effectively

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require a public inquest into judges’ most private thoughts and relationships—including their plans to

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wed and bear children.

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For the reasons discussed above, a judge’s sexual orientation cannot give rise to a reasonable

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question as to his impartiality any more than can a judge’s race, gender, or religion. See supra note 3

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(citing examples of trial evidence regarding history of discrimination against gay and lesbian

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individuals). To hold otherwise would enshrine discrimination in Section 455(a) and altogether

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eliminate the word “reasonably” from the text of the statute. See El-Gabrowny, 844 F. Supp. at 961

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(“Section 455(a) was not meant to require disqualification every time one party can make some

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argument, no matter how unreasonable, that the appearance of prejudice would result.”) (internal

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quotation marks omitted). In fact, any questions about whether a judge’s membership in a minority

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group could compromise his impartiality are unreasonable per se because they are based on the very

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stereotyping that the Fourteenth Amendment condemns.

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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
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might bring [up Judge Walker’s sexual orientation] if Walker ultimately rules against them. ‘We are

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not going to say anything about that,’ Pugno said.” Ashby Jones, Prop. 8 Judge Is Reportedly Gay:

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What to Make of That?, Wall St. J., Feb. 8, 2010 (Ex. I). Similarly, in August 2010, after the decision

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invalidating Proposition 8 was announced, Proponents’ counsel advised the Associated Press that

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“[t]he bottom line in this case, from our perspective, is and always will be about the law and not

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about the judge who decides it . . . . It’s just something that collectively as a legal team we have

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decided and going up, that’s what this case is. The appellate courts are going to focus on the law.”

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Ex. G.

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Moreover, the very first amicus brief filed in the Ninth Circuit on September 15, 2010 argued

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that Judge Walker should have recused himself because, as a gay man, “he has a personal interest in

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the outcome of the trial that he was over-seeing.” Wooten Amicus 2. Proponents nevertheless

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continued to refrain from seeking Judge Walker’s recusal while the case was being briefed in, and

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argued to, the Ninth Circuit. It was not until after the Ninth Circuit issued an opinion certifying the

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question of Proponents’ standing to appeal this Court’s decision—and issued a separate opinion

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holding that Imperial County lacked the right to intervene and pursue an appeal on the merits—that

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Proponents decided to move for recusal and vacatur of this Court’s decision.

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Proponents have forfeited their right to seek recusal by strategically deciding to wait until

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after the entry of an adverse judgment—and the issuance of opinions signaling a potentially adverse

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result in the Ninth Circuit—to file their recusal motion. See, e.g., E. & J. Gallo Winery, 967 F.2d at

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1295 (denying a motion to recuse as untimely where the moving party’s counsel knew of the

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allegedly disqualifying facts seven months before an adverse judgment was entered); Wood v.

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McEwen, 644 F.2d 797, 802 (9th Cir. 1981) (per curiam) (recusal motion not timely when not made

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“until it was clear that the court intended to dismiss the underlying claim without leave to amend”).

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Proponents were required to file their motion upon first learning of Judge Walker’s sexual

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orientation. They did not. As reflected in Proponents’ repeated public comments that Judge

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Walker’s sexual orientation was irrelevant, by the various articles and editorials reporting on Judge

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Walker’s sexual orientation, and by the September 15, 2010 amicus brief that sought to disqualify

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Judge Walker because he is gay, Proponents knew well before the April 6, 2011 article they now

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invoke that he is gay and in a relationship. Because Proponents’ motion is a naked attempt to “get a

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second bite at the apple,” it cannot meet the threshold timeliness requirement and should be denied.
C.

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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.

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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

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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).
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Despite Proponents’ attempt to cast themselves as victims, it is Plaintiffs who are harmed

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every day that Proposition 8 remains in force and continues to deny them access to the fundamental

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right to marry in violation of the U.S. Constitution. That harm would only be exacerbated by

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requiring Plaintiffs to relitigate this case in its entirety in order to prove (yet again) their ongoing

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constitutional injury. Accordingly, there is a significantly greater risk of unfairness in vacating the

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judgment than there is in upholding it.

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Nor is there a risk that leaving the judgment in place would produce injustice in other cases.

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Indeed, vacating the judgment would inevitably produce injustice in other cases by encouraging

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similar intrusive recusal motions and strategic gamesmanship. See Liljeberg, 486 U.S. at 868

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(considering the effect of similar motions in other cases). Vacatur would result in a proliferation of

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attempts by other litigants to secure the recusal of judges based on their membership in a protected

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class. In so doing, vacatur would encourage intrusive inquiries into judges’ private lives in an effort

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to uncover possible grounds for recusal. It would also establish a dangerous precedent that parties

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can evade adverse decisions by strategically choosing not to file recusal motions against “rumored”

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gay and lesbian judges until after an adverse decision is entered. To avoid such disruptive effects on

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the judicial system—and unseemly investigations into judges’ backgrounds and private

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relationships—the Court should leave the judgment undisturbed.

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Finally, the fact that Judge Walker did not publicly announce that he was gay and in a long-

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term relationship with a person of the same sex when this case was assigned to him has not

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undermined the public’s confidence in the judicial process. No one would, or should, expect a judge

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to publicly disclose private, intimate matters. Moreover, Proponents’ allegations are far removed

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from the extreme factual scenarios in which the Supreme Court has held that recusal was required to

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maintain public confidence in the judicial system. See, e.g., Caperton v. A.T. Massey Coal Co., 129

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S. Ct. 2252 (2009) (recusal required where judge benefitted from millions of dollars in campaign

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expenditures by a litigant); Bracy v. Gramley, 520 U.S. 899 (1997) (judge accepting bribes). In any

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event, this trial was closely followed by the public. The trial proceedings were covered on a daily

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basis by the press, and the trial transcripts and final opinion have been widely disseminated to the

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public and commented upon by observers. A person who took the time to follow the trial in this

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matter would see both the fairness and even-handedness with which Judge Walker treated all parties

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and that the decision he reached was fully supported by the evidence presented. See Chevron Corp,

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slip op. at 40 (denying recusal motion because “[i]nformed persons, knowing and understanding all

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of the myriad and complex facts of these extensive proceedings, and putting aside the rhetoric and

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other devices deployed here by the [moving party], readily would see that the Court’s rulings have

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been firmly grounded in the law and the evidence”).6 Vacatur is therefore wholly unnecessary to

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bolster public confidence in the thoroughly reasoned and constitutionally compelled result reached by

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IV.

For the foregoing reasons, Plaintiffs respectfully request that this Court deny Proponents’

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CONCLUSION

Motion to Vacate Judgment.

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Respectfully submitted,
DATED: May 13, 2011

GIBSON, DUNN & CRUTCHER LLP

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By:

/s/
Theodore B. Olson

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and

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BOIES, SCHILLER & FLEXNER LLP

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David Boies

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Attorneys for Plaintiffs
KRISTIN M. PERRY, SANDRA B. STIER,
PAUL T. KATAMI, and JEFFREY J. ZARRILLO

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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.
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