Perry et al v. Schwarzenegger et al

Filing 787

REPLY (re #768 MOTION to Vacate Judgment ) filed byMartin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com - Yes on 8, A Project of California Renewal. (Cooper, Charles) (Filed on 5/23/2011)

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COOPER AND KIRK, PLLC
Charles J. Cooper (DC Bar No. 248070)*
[e-mail]
David H. Thompson (DC Bar No. 450503)*
[e-mail]
Howard C. Nielson, Jr. (DC Bar No. 473018)*
[e-mail]
Peter A. Patterson (OH Bar No. 0080840)*
[e-mail]
1523 New Hampshire Ave. N.W., Washington, D.C. 20036
Telephone: [phone], Facsimile: [phone]
LAW OFFICES OF ANDREW P. PUGNO
Andrew P. Pugno (CA Bar No. 206587)
[e-mail]
101 Parkshore Drive, Suite 100, Folsom, California 95630
Telephone: [phone], Facsimile: [phone]
ALLIANCE DEFENSE FUND
Brian W. Raum (NY Bar No. 2856102)*
[e-mail]
James A. Campbell (OH Bar No. 0081501)*
[e-mail]
15100 North 90th Street, Scottsdale, Arizona 85260
Telephone: [phone], Facsimile: [phone]

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ATTORNEYS FOR DEFENDANT-INTERVENORS DENNIS HOLLINGSWORTH,
GAIL J. KNIGHT, MARTIN F. GUTIERREZ, MARK A. JANSSON,
and PROTECTMARRIAGE.COM – YES ON 8, A
PROJECT OF CALIFORNIA RENEWAL

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* Admitted pro hac vice

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

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

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Plaintiffs,
CITY AND COUNTY OF SAN FRANCISCO,

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Plaintiff-Intervenor,
v.
EDMUND G. BROWN, JR., in his official
capacity as Governor of California; KAMALA
D. HARRIS, in her official capacity as Attorney
General of California; MARK B. HORTON, in

CASE NO. 09-CV-2292 JW
REPLY BRIEF IN SUPPORT OF
MOTION TO VACATE OF
DEFENDANT-INTERVENORS
DENNIS HOLLINGSWORTH, GAIL
J. KNIGHT, MARTIN F.
GUTIERREZ, MARK A. JANSSON,
AND PROTECTMARRIAGE.COM
Chief Judge James Ware
Date: June 13, 2011
Time: 9:00 a.m.
Location: Courtroom 5, 17th Floor

REPLY BRIEF IN SUPPORT OF MOTION TO VACATE OF DEFENDANT-INTERVENORS
CASE NO. 09-CV-2292 JW

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his official capacity as Director of the California
Department of Public Health and State Registrar
of Vital Statistics; LINETTE SCOTT, in her
official capacity as Deputy Director of Health
Information & Strategic Planning for the
California Department of Public Health;
PATRICK O’CONNELL, in his official capacity
as Clerk-Recorder for the County of Alameda;
and DEAN C. LOGAN, in his official capacity
as Registrar-Recorder/County Clerk for
the County of Los Angeles,
Defendants,

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and
PROPOSITION 8 OFFICIAL PROPONENTS
DENNIS HOLLINGSWORTH, GAIL J.
KNIGHT, MARTIN F. GUTIERREZ, HAKSHING WILLIAM TAM, and MARK A.
JANSSON; and PROTECTMARRIAGE.COM –
YES ON 8, A PROJECT OF CALIFORNIA
RENEWAL,
Defendant-Intervenors.

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Additional Counsel for Defendant-Intervenors
ALLIANCE DEFENSE FUND
Jordan W. Lorence (DC Bar No. 385022)*
[e-mail]
Austin R. Nimocks (TX Bar No. 24002695)*
[e-mail]
801 G Street NW, Suite 509, Washington, D.C. 20001
Telephone: [phone], Facsimile: [phone]
* Admitted pro hac vice

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TABLE OF CONTENTS

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Page

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TABLE OF AUTHORITIES ............................................................................................................... ii

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

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ARGUMENT ....................................................................................................................................... 3

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I.

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II. THIS MOTION IS TIMELY. ..................................................................................................... 11

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III. THE JUDGMENT MUST BE VACATED. .............................................................................. 14

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CONCLUSION.................................................................................................................................. 15

JUDGE WALKER WAS DISQUALIFIED FROM HEARING THIS CASE. ........................... 3

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TABLE OF AUTHORITIES

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Cases

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American Textiles Mfrs. Inst., Inc. v. The Limited, Inc.,

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190 F.3d 729 (6th Cir. 1999) ......................................................................................................... 12
Baker v. City of Detroit,
458 F. Supp. 374 (E.D. Mich. 1978) ............................................................................................... 9
Blank v. Sullivan & Cromwell,
418 F. Supp. 1 (S.D.N.Y. 1975) ...................................................................................................... 9
Brown v. Board of Education,
347 U.S. 483 (1954)....................................................................................................................... 10
Bryce v. Episcopal Church in the Diocese of Colorado,
289 F.3d 648 (10th Cir. 2002) ......................................................................................................... 9
Clemens v. United States District Court,
428 F.3d 1175 (9th Cir. 2005) ....................................................................................................... 12
Day v. Apoliona,

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451 F.Supp.2d 1133 (D. Haw. 2006), rev’d in part on other grounds,

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496 F.3d 1027 (9th Cir. 2008) ......................................................................................................... 7

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District of Columbia v. Heller,
554 U.S. 570 (2008)....................................................................................................................... 10
E. & J. Gallo Winery v. Gallo Cattle Co.,
967 F.2d 1280 (9th Cir. 1992) ....................................................................................................... 13
Feminist Women’s Health Ctr. v. Codispoti,
69 F.3d 399 (9th Cir. 1995) (Noonan, J.) ........................................................................................ 9
First Interstate Bank of Arizona v. Murphy, Weir & Butler,
210 F.3d 983 (9th Cir. 2000) ......................................................................................................... 12
Grutter v. Bollinger,
539 U.S. 306 (2003)....................................................................................................................... 10
Idaho v. Freeman,
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507 F. Supp. 706 (D. Idaho 1981) ................................................................................................... 9
In re City of Houston,
745 F.2d 925 (5th Cir. 1984) ....................................................................................................... 7, 8
Leroy v. City of Houston,
592 F. Supp. 415 (S.D. Tex. 1984) .............................................................................................. 7, 8
Liljeberg v. Health Services Acquisition Corp.,
486 U.S. 847 (1988)............................................................................................................. 3, 13, 14
Loving v. Virginia,
388 U.S. 1 (1967)........................................................................................................................... 10
Menora v. Illinios High Sch. Ass’n,
527 F. Supp. 632 (N.D. Ill. 1981) .................................................................................................... 9
Ortega Melendres v. Arpaio,
2009 WL 2132693 (D. Ariz. 2009) ................................................................................................. 9
Parrish v. Board of Comm’rs of Ala. St. Bar,
524 F.2d 98 (5th Cir. 1975) ............................................................................................................. 9
Pennsylvania v. Local Union 542, International Union of Operating Engineers,
388 F. Supp. 155 (E.D. Pa. 1974) .................................................................................................... 9
Poplar Lane Farm LLC v. The Fathers of Our Lady of Mercy,
2010 WL 3303852 (W.D.N.Y. 2010) .............................................................................................. 9
Porter v. Singletary,
49 F.3fd 1483 (11th Cir. 1995) ................................................................................................ 12, 13
Preston v. United States,
923 F.2d 731 (9th Cir. 1991) ......................................................................................................... 13
Sao Paulo State of Federative Republic of Brazil v. American Tobacco Co., Inc.,
535 U.S. 229 (2002)....................................................................................................................... 12
United States v. Alabama,
828 F.2d 1532 (11th Cir. 1987) ................................................................................................... 1, 6
United States v. Amico,
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486 F.3d 764 (2d Cir. 2007) .......................................................................................................... 13
United States v. El-Gabrowny,
844 F. Supp. 955 (S.D.N.Y. 1994) .................................................................................................. 9
United States v. Kelly,
888 F.2d 732 (1989) ...................................................................................................................... 14
United States v. Nelson,
2010 WL 2629742 (E.D.N.Y. 2010) ............................................................................................... 9
United States v. Rogers,
119 F.3d 1377 (9th Cir. 1997) ....................................................................................................... 13
United States v. State of Alabama,
571 F. Supp. 958 (N.D. Ala. 1983) .................................................................................................. 7
United States v. State of Alabama,
574 F. Supp. 762 (N.D. Ala. 1983) .................................................................................................. 7
United States v. Virginia,
518 U.S. 515 (1996)....................................................................................................................... 10
Vietnamese Fisherman’s Ass’n v. Knights of the Ku Klux Klan,
518 F. Supp. 1017 (S.D. Tex. 1981) ................................................................................................ 9
Willner v. University of Kansas,
848 F.2d 1023 (10th Cir. 1988) ..................................................................................................... 12
Wood v. McEwen,
644 F.2d 797 (9th Cir. 1981) ......................................................................................................... 13

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Constitutional Statutes and Rules

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28 U.S.C. § 455(a) ............................................................................................................................... 7

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28 U.S.C. § 455(b)(4) ...................................................................................................................... 5, 6

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28 U.S.C. § 455(b)(5) .......................................................................................................................... 6

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28 U.S.C. § 455(e) ............................................................................................................................... 3

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Rules

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FED. R. CIV. P. 62.1(a)(3) .................................................................................................................. 15
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INTRODUCTION

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In our opening motion papers, we posited that “[s]urely no one would suggest that Chief

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Judge Walker could issue an injunction directing a state official to issue a marriage license to him.”

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Doc. # 768 at 13. We stand corrected. For Plaintiffs argue in response that even “iron-clad proof of

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Judge Walker’s desire to marry” his partner “would [provide] absolutely no basis for questioning

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his impartiality in this case.” Doc. # 779 at 8. It follows, then, that even if Judge Walker and his

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long-time partner planned to marry if and when his injunction in this case became final and

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enforceable in California, he had no duty to recuse himself or even to disclose this fact to the

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parties. This startling proposition is based on Plaintiffs’ equally startling claim that the longstanding

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statutory (and constitutional) prohibition against a judge hearing his or her own case does not apply

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when the judge “is a member of a minority group that seeks access to a fundamental constitutional

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right denied to them by a discriminatory state law.” Id. at 9.

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The cases cited by Plaintiffs do not support their proposed “member of a minority group”

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exception. In every one of these cases, the information disclosed by the judge or otherwise on the

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record provided no basis for concluding that the judge had a direct and substantial personal interest

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in the outcome of the case. These cases stand for the unremarkable proposition that merely

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belonging to the same minority group as one of the parties does not itself give rise to an interest in

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the outcome of the case requiring disqualification. As a leading case put it: “To disqualify minority

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judges from major civil rights litigation solely because of their minority status is intolerable. . . .

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The recusal statutes do not contemplate such a double standard for minority judges.” United States

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v. Alabama, 828 F.2d 1532, 1542 (11th Cir. 1987). Nor do the recusal statutes, of course,

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contemplate the double standard urged here by Plaintiffs, one that would permit a minority judge to

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preside over a case despite having a direct and substantial personal interest in the outcome. To the

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contrary, the same rules apply to all judges – black and white, male and female, straight and gay.

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Thus, black judges have routinely sat on school desegregation cases that did not directly and

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substantially affect them (or their children) personally, female judges have regularly heard gender

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discrimination cases that did not directly and substantially affect the judge’s personal interests, and

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we have no doubt that it will become equally commonplace for gay and lesbian judges to decide
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cases involving claims of sexual orientation discrimination where a reasonable person would not

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have any cause to believe that the outcome of the case could directly and substantially affect the

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judge’s own personal interests.

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Apart from Plaintiffs' proposed "minority judge" exception, Plaintiffs and their allies

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repeatedly caricature our motion as resting ultimately on the assertion that gay and lesbian judges

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may not sit in cases involving allegations of discrimination on the basis of sexual orientation.

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Again, this is plainly not so.

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discrimination cases, there will rarely be any reason to believe that the outcome of a sexual

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orientation case might have any effect -- much less a direct and substantial effect -- on the personal

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interests of a gay or lesbian judge assigned to the case. We know of no reason to believe, for

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example, that Judge Walker would have any personal interest in the outcome of litigation over, say,

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the constitutionality of the military's "Don't Ask, Don't Tell" policy. Nor would there be any issue

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with a gay or lesbian judge hearing this case so long as a reasonable person, knowing all of the

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relevant facts and circumstances, would not have reason to believe that the judge has a current

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personal interest in marrying if Plaintiffs prevailed. The particular facts and circumstances that give

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rise to such a reasonable concern in this case -- Judge Walker's ten-year same-sex relationship, his

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refusal to disclose both his relationship and whether he and his partner have any interest in

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marriage, his findings concerning the manifold benefits of marriage for "committed, long-term

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same-sex relationships," and the extraordinary rulings and course of proceedings in this case --

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plainly do not necessarily exist for all or even most gay and lesbian citizens or judges.

As with minority judges in the mine run of racial or gender

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To be sure, not all committed same-sex couples have an interest in marrying. But according

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to Plaintiffs themselves, almost two-thirds of such couples in California would get married if

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permitted to do so. Tr. 1397-98, 1407-08. And while we are not aware of “ironclad proof” that

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Judge Walker and his long-time partner have an interest in marrying, the lack of complete

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information concerning this relevant fact is attributable to Judge Walker’s failure to carry out his

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duty to disclose on the record all of the relevant facts concerning his possible direct and substantial

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personal interest in the outcome of the case while he presided over it. Plaintiffs argue that the

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statutory disclosure duty “would require federal judges to publicly disclose intimate details of their
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private lives,” Doc. # 779 at 23, but of course any judge who does not wish to make “a full

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disclosure on the record,” 28 U.S.C. § 455(e), of personal facts that bear on his ability to sit in a

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case always has the option of simply asking the clerk to reassign it to another judge.

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Finally, Plaintiffs’ argument that Proponents’ motion is untimely fails for two independent

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reasons. First, Plaintiffs’ claim rests entirely upon media reports concerning Judge Walker’s sexual

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orientation that the Judge declined to confirm or deny. But it is settled that litigants are entitled to

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presume that the judge will disclose any and all information bearing on his fitness to sit in a case,

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and litigants therefore do not have any duty to investigate rumors and speculation concerning the

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judge’s personal life to unearth evidence of possible bias. Second, even if the media reports cited

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by Plaintiffs had been confirmed, the information they provided did not put Proponents on notice

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that Judge Walker may have a direct and substantial personal interest in the outcome of the case.

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The first merely reported the "open secret" that Judge Walker is gay, and we stated publicly at the

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time, and have unequivocally reaffirmed in this motion, that Judge Walker's sexual orientation,

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whether gay or heterosexual, does not itself raise a reasonable concern about his fitness to sit in this

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case. The second added a report that, according to unidentified “colleagues,” Judge Walker “attends

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bar functions with a companion, a physician.” Doc. # 780-4 at 3. Standing alone, this information

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did not give rise to a reasonable belief that Judge Walker was in a long-term, committed

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relationship and thus may have a current personal interest in marrying. Only when Judge Walker

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belatedly disclosed that he is in a 10-year same-sex relationship did Proponents have a reasonable

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basis for concern that Judge Walker has a direct and substantial personal interest in the outcome of

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the case and that his impartiality could reasonably be questioned. As in Liljeberg v. Health Services

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Acquisition Corp., 486 U.S. 847, 869 (1988), where the motion to vacate judgment was filed “10

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months after the affirmance by the Court of Appeals,” Proponent’s motion is timely because “the

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entire delay [was] attributable” to the trial judge’s “failure to disqualify himself” and to “disclose[]

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[his] interest” to the parties.
ARGUMENT

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I.

JUDGE WALKER WAS DISQUALIFIED FROM HEARING THIS CASE.
1. In support of their repeated claim that this motion seeks to disqualify "Judge Walker
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based on nothing more than his sexual orientation," Doc. # 779 at 15, Plaintiffs insist that there is

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no meaningful distinction for purposes of marriage between a gay person in a "long-term committed

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relationship" and any other gay person, and that any effort to draw such a distinction would present

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an "intractable line-drawing problem," id. at 16. But Plaintiffs have consistently drawn precisely

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this common-sense line throughout this case, repeatedly emphasizing that the marital right they

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seek to vindicate is that of "two individuals of the same sex who have spent years together in a

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loving and committed relationship." Doc. # 7 at 15.

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Plaintiffs allege in their complaint that they "are gay and lesbian residents of California who

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are involved in long-term, serious relationships with individuals of the same sex . . . ." Doc. # 1-1 at

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8. They argue that Proposition 8 is unconstitutional because it prohibits them "from marrying the

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person with whom they are in a loving, committed, and long-term relationship . . . ." Doc. # 52 at 6.

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Indeed, Plaintiffs insist that they "are similarly situated to heterosexual individuals for purposes of

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marriage because, like individuals in a relationship with a person of the opposite sex, they are in

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loving, committed relationships." Id. at 12.1

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Judge Walker, for his part, has likewise consistently equated marriage with "committed

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In almost all of their filings in this Court, Plaintiffs have equated responsible marital unions
with couples in long-term, committed relationships. See, e.g., Doc. # 1-1 at 3 ("Plaintiffs Perry and
Stier are lesbian individuals in a committed relationship. Plaintiffs Katami and Zarrillo are gay
individuals in a committed relationship."); Doc. # 7 at 10 ("Plaintiffs are gay and lesbian residents
of California who are involved in long-term, serious relationships with individuals of the same sex.
. . . Plaintiffs Perry and Stier are lesbian individuals who have been in a committed relationship for
ten years. . . . Plaintiffs Katami and Zarrillo are gay individuals who have been in a committed
relationship for eight years.”); Doc. # 202 at 30 ("Plaintiffs are seeking to secure the same freedom
of personal choice to marry the person with whom they are in a loving, long-term relationship that
the State has long afforded to heterosexual individuals.”) (quotation marks omitted); id. at 28 ("If
either Plaintiff Katami or Zarrillo were female, and if either Plaintiff Perry or Stier were male, then
California law would permit each of them to marry the person with whom they are in a long-term,
committed relationship.”); Doc. # 282 at 39-40 ("Prop. 8 communicates the official view that samesex couples’ committed relationships are of a lesser stature than the comparable relationships of
opposite-sex couples."); Doc. # 607 at 7 ("[P]ermitting Plaintiffs and other same-sex couples in
loving, committed relationships to marry will strengthen the institution and the relationships of both
same-sex and opposite-sex couples."); Doc. # 686 at 8 ("[E]xisting constitutional protections for
personal decisions relating to marriage extend to individuals in a loving, committed relationship
with a person of the opposite sex or the same sex.") (quotation marks and brackets omitted); Tr. 21
("The plaintiffs. . . are in deeply-committed, intimate and long-standing relationships.").
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long-term relationships." Doc. # 708 at 96. Indeed, he has emphasized that "deep emotional bonds

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and strong commitments" are the key "characteristics relevant to the ability to form successful

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marital unions." Id. at 79. Judge Walker has even gone so far as to say that the committed long-term

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relationships of Plaintiffs in this case are marriages. Id. at 116 ("[P]laintiffs ask California to

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recognize their relationships for what they are: marriages.").

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Thus, far from indistinguishable, a gay person who is in a committed long-term relationship,

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and a gay person who is not in such a relationship are in no way even comparable for purposes of

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marriage, as both Plaintiffs and Judge Walker have repeatedly recognized throughout this case.

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True, it is possible to "speculate," as Plaintiffs note, that a gay person who is not in a committed

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relationship nonetheless "might benefit from the right to marry in the future," Doc. # 779 at 9, but

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Section 455(b)(4) disqualifies a judge only if he has a direct and substantial personal interest in the

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outcome of the case -- that is, a current personal interest, not a remote and speculative possibility of

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a future personal interest in the case.

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In short, the instant motion rests not on Judge Walker's sexual orientation, but on the fact

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that he, in Plaintiffs' own words, is "similarly situated to [Plaintiffs] for purposes of marriage

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because, like individuals in a relationship with a person of the opposite sex, [both Plaintiffs and

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Judge Walker] are in loving, committed relationships." Doc. # 52 at 12.2 Indeed, had Plaintiffs

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alleged only that they are gay and lesbian, and as such, had merely "speculate[d]" that they "might

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benefit from the right to marry in the future," Doc. # 779 at 9, their suit would have been dismissed

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for lack of standing.

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2. Plaintiffs attempt to cast doubt on the likelihood of Judge Walker's interest in marriage

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by noting that "he apparently made no effort to do so" when same-sex marriage was briefly

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Plaintiffs make the remarkable claim that acceptance of our position would "require the
recusal of all married heterosexual judges," given our "argu[ment] that permitting marriage between
persons of the same sex would weaken opposite-sex marriage." Doc. # 779 at 20. But our argument
is that adoption of same-sex marriage will likely harm the institution of marriage over time, not that
any individual's existing marriage will be affected. See, e.g., Doc. # 172-1 at 97-98; Opening Brief
of Defendant-Intervenors-Appellants at 114, Perry v. Brown, No. 10-16696 (9th Cir. argued Dec. 6,
2010); Reply Brief of Defendant-Intervenors-Appellants at 77, Perry v. Brown, No. 10-16696 (9th
Cir. argued Dec. 6, 2010). The notion that all married heterosexual judges have a direct and
substantial personal interest in the outcome of this case is, of course, patently absurd.
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permitted in California in 2008. Id. at 8. Plaintiffs fail to mention that they, too, did not marry

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during that period, although they, like Judge Walker, had been in their committed relationships for

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many years by then. Doc. # 7-1 at 3; Doc. # 7-2 at 2. Nor do Plaintiffs mention the evidence they

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presented at trial projecting that nearly two-thirds of committed same-sex couples in California – 64

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percent – will get married if permitted to do so. Tr. 1397-98, 1407-08.

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3. None of the cases cited by Plaintiffs and their allies stands for the proposition that a

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judge may sit when a reasonable person would have cause to believe that the judge might have a

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direct and substantial personal interest in the outcome of the case, and the judge failed to disclose

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his interest in the matter. Plaintiffs place their greatest reliance upon United States v. Alabama, 828

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F.2d 1532, 1541-42 (11th Cir. 1987), but that case strongly supports disqualification here. Alabama

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involved a class action to desegregate the State’s institutions of higher learning, and the certified

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class “include[d] all [black] children ‘who are eligible to attend or who will become eligible to

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attend the public institutions of higher education in the Montgomery, Alabama area.’ ” Id. at 1541.

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The trial judge had two children who, “like all young black Alabamians,” were “technically

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members of this class and possess an interest in the outcome of this litigation.” Id. The State

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defendants sought to disqualify the trial judge under both Section 455(b)(4) and (b)(5), which

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requires disqualification if the judge or a member of his immediate family “is a party to the

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proceeding.” The Eleventh Circuit held that the judge was not disqualified under either Section

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455(b)(4) or (b)(5) because “[a]ny beneficial effects of this suit upon these children were remote,

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contingent and speculative.” Id.3

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Critical to the result in Alabama was the fact that there was no reason to believe that the trial

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judge’s children had “any desire or inclination to attend a Montgomery area institution.” Id.

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Indeed, the judge squarely acknowledged that he would have to recuse under Section 455 “if I know

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that any minor child residing in my household has an interest that could be substantially affected by

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The Eleventh Circuit did not consider whether the interests of the trial judge’s children
might support disqualification under Section 455(a), presumably because no one advanced that
argument. The Court ultimately held that the trial judge was required to recuse based upon his
direct participation in the events giving rise to the lawsuit prior to taking the bench, and accordingly
the Court reversed the judgment and remanded for a new trial. See Alabama, 828 F.2d at 1544-46.
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the outcome of this proceeding.” United States v. State of Alabama, 571 F. Supp. 958, 962 (N.D.

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Ala. 1983). Accordingly, unlike in this case, the trial judge in Alabama took pains to disclose the

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relevant facts: “Neither my sixteen-year old son nor my nine-year old daughter has indicated to me

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any interest in attending either of the colleges or universities involved in this action.” United States

5

v. State of Alabama, 574 F. Supp. 762, 764 n.1 (N.D. Ala. 1983).4 Obviously, if the judge’s 16-

6

year-old child had expressed an interest in attending one of the universities at issue, disqualification

7

would have been required because the child’s interest in the case would not be “remote, contingent

8

and speculative,” but rather direct and substantial.

9

Plaintiffs also rely heavily on In re City of Houston, 745 F.2d 925, 931 (5th Cir. 1984), but

10

as in Alabama, the information in the record and the trial judge’s disclosures demonstrated that any

11

interest she had in the outcome of the case was “remote, contingent, and speculative.” Houston

12

initially involved a claim that the City’s at-large election system diluted the votes of blacks and

13

Hispanics. By the time the action was reassigned to the trial judge at issue, however, “the City had

14

changed its method of election,” thus mooting the voting rights issue, and the only remaining

15

question to be decided concerned the “the availability of attorneys’ fees to any of the parties to the

16

action.” Id. at 926. The case was reassigned to a black trial judge for consideration of the fee

17

petition, and the City sought her recusal because she was a member of the class of registered black

18

and Hispanic voters in Houston. The trial judge, noting that the standard for determining the

19

appearance of partiality under Section 455(a) requires disclosure of “all the facts of a situation,”

20

deemed it “incumbent upon [herself] to acknowledge and deal with the facts of [her] particular

21

situation.” Leroy v. City of Houston, 592 F. Supp. 415, 418 n.5 (S.D. Tex. 1984). Accordingly, she

22

disclosed on the record all relevant “personal” facts, including her past and current street addresses

23
24
25
26
27
28

4

Day v. Apoliona, 451 F. Supp. 2d 1133 (D. Haw. 2006), rev’d in part on other grounds,
496 F.3d 1027 (9th Cir. 2008), is similarly distinguishable. The case involved access to benefits
available to Native Hawaiians, and one of the judge’s law clerks was a Native Hawaiian. The court
explained that, “[i]f a clerk has a possible conflict of interest, … the clerk … must be disqualified.”
Id. at 1137. However, the court denied a motion seeking recusal because “[n]either the law clerk
nor any of her family members mentioned above is currently receiving funds or other benefits”
available to Native Hawaiians, and “[n]one of them is presently applying for or presently intends to
seek funds or other benefits … in the future.” Id. at 1138 (emphasis added).
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and her and her husband’s voter registration status. Id. at 418. The trial judge rejected the recusal

2

motion, explaining that no “appearance of impropriety exists” because (i) during the period when

3

the case was tried, she resided in “a non-black and non-Mexican-American precinct where because

4

of [her] minority status [her] vote was not being diluted,” and (ii) “the only question before [her] is

5

whether an award of attorney’s fees would be appropriate,” and she therefore had no personal

6

interest in the outcome of the case. Id. at 419-20.

7

The Fifth Circuit agreed, and denied the City’s mandamus petition. The court explained that

8

any interest the trial judge might have had was “remote, contingent, and speculative” because “she

9

has resided in a voting precinct that is predominantly non-black and non-Hispanic,” and thus it was

10

“doubtful whether the change sought to be effected by plaintiffs in the creation of voting districts

11

would have benefited Judge McDonald at all.” Houston, 745 F.2d at 931. The court rejected the

12

argument that recusal was required because the judge was technically a member of the class,

13

explaining that, “in delimiting the class the attorneys cast the definitional net wider than was

14

arguably necessary, so that Judge McDonald falls within the overbroad category of plaintiffs.” Id.

15

Moreover, the court explained, in a vote dilution case “the interest of the class member is equal to

16

that of persons not members of the class” because increasing the voting power of the class

17

necessarily entails a corresponding decrease in the voting power of the counter-class.

18

Accordingly, “[v]irtually every citizen of Houston who is a voter … has an equal stake in this

19

litigation, infinitesimal though any individual’s interest may be.” Id. The case thus fell within the

20

established rule that disqualification is not required “ ‘in all cases in which the judge might benefit

21

as a member of the general public.’ ” Id. (quoting In re New Mexico Natural Gas Antitrust Litig.,

22

620 F.2d 794, 796-797 (10th Cir. 1980)). Such an interest is plainly “insubstantial.” Id. at 930.

Id.

23

In sum, in both Alabama and Houston, the trial judge had disclosed all of the relevant

24

personal facts, and those facts made clear that any interest the judge (or his family) may have had in

25

the outcome of the case was remote, contingent, speculative, and attenuated. The trial judge’s

26

children in Alabama had no intention of attending the colleges at issue, so however the case came

27

out, it would not affect them. And the trial judge in Houston lived in a precinct unaffected by the

28

elimination of the at-large system, her interest in the case was no greater than that of any other voter
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in Houston, and in any event, the only issue remaining to be decided when the case was reassigned

2

to her was whether attorneys’ fees would be awarded, so the outcome would not affect her at all.

3

Nor do any of the other cases cited by Plaintiffs and their allies remotely support their

4

position.

5

religious, or gender group as one of the parties.5 These cases are all completely inapposite because,

6

unlike in this case, the judges had no current personal interest whatsoever in the outcome. The

7

same is true with respect to the cases cited by Plaintiffs in which the judge was a member of a

8

racial, ethnic, or religious group that had a general interest in an issue presented in the case.6 These

9

cases too are all completely inapposite because, unlike in this case, the judges had no current

10

They cite numerous cases in which the judge belonged to the same racial, ethnic,

personal interest whatsoever in the outcome.

11
5

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

See Pennsylvania v. Local Union 542, Int’l Union of Operating Eng’rs, 388 F. Supp. 155
(E.D. Pa. 1974) (black judge could hear employment discrimination suit brought by black plaintiffs
against construction industry); Blank v. Sullivan & Cromwell, 418 F. Supp. 1 (S.D.N.Y. 1975)
(female judge could hear gender discrimination suit against law firm by former female employee);
Baker v. City of Detroit, 458 F. Supp. 374 (E.D. Mich. 1978) (black judge could hear Title VII
challenge against Detroit police department affirmative action policies); Ortega Melendres v.
Arpaio, No. 07-2513, 2009 WL 2132693 (D. Ariz. July 15, 2009) (Hispanic judge could hear Title
VI suit by Hispanic plaintiffs against sheriff’s Office for racial profiling and unlawful detention);
Parrish v. Board of Comm’rs of Ala. State Bar, 524 F.2d 98 (5th Cir. 1975) (en banc) (white judge
who was formerly president of a local bar association that did not admit blacks could hear suit by
black lawyers against state bar association challenging discriminatory administration of bar exam);
Bryce v. Episcopal Church in the Diocese of Colorado, 289 F.3d 648 (10th Cir. 2002) (Episcopal
judge could hear sexual harassment claim by former employee against an Episcopal church in a
different state); Menora v. Illinois High Sch. Ass’n, 527 F. Supp. 632 (N.D. Ill. 1981) (Jewish judge
could hear Free Exercise challenge to public school policy forbidding religious headgear during
basketball games brought by Orthodox Jewish high school students); Poplar Lane Farm LLC v. The
Fathers of Our Lady of Mercy, No. 08-509S, 2010 WL 3303852 (W.D.N.Y. Aug. 19, 2010)
(Catholic judge could hear breach of contract suit brought against Catholic organization); United
States v. Nelson, No. 94-823, 2010 WL 2629742 (E.D.N.Y. June 28, 2010) (Orthodox Jewish judge
could hear criminal prosecution against alleged killer of an Orthodox Jew).
6
See Feminist Women’s Health Ctr. v. Codispoti, 69 F.3d 399 (9th Cir. 1995) (Noonan, J.)
(Catholic judge could hear RICO action by abortion clinic against abortion protesters); Idaho v.
Freeman, 507 F. Supp. 706 (D. Idaho 1981) (Mormon judge, whose Church opposed ratification of
Equal Rights Amendment, could hear action seeking to rescind ratification of Equal Rights
Amendment); United States v. El-Gabrowny, 844 F. Supp. 955 (S.D.N.Y. 1994) (Jewish judge
could hear criminal prosecution of Muslim terrorist for conspiracy related to 1993 World Trade
Center bombing); Vietnamese Fisherman’s Ass’n v. Knights of the Ku Klux Klan, 518 F. Supp. 1017
(S.D. Tex. 1981) (black judge could hear suit by Vietnamese fisherman seeking an injunction
against Klan violence and intimidation against them).
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Unable to cite any actual case where a judge was permitted to sit even though a reasonable

2

observer, knowing all the relevant facts and circumstances, could reasonably believe that the judge

3

had a direct and substantial personal interest in the outcome, Plaintiffs turn to hypotheticals based

4

on landmark cases: District of Columbia v. Heller, 554 U.S. 570 (2008); Loving v. Virginia, 388

5

U.S. 1 (1967); Brown v. Board of Educ., 347 U.S. 483 (1954); Grutter v. Bollinger, 539 U.S. 306

6

(2003), as well as a more generic hypothetical involving a female judge of childbearing age hearing

7

an abortion case. See Doc. # 779 at 19, 23. None of Plaintiffs’ hypotheticals advance their cause.

8

•

Heller. Any judge who lived in the District of Columbia and who wished to keep a
firearm in his or her home that was prohibited by the statutes under review would indeed
have to recuse because he or she would have a direct and substantial personal interest in
the outcome.

•

Loving. Any judge, black or white, who lived in Virginia when it prohibited interracial
marriage, and who was married to, or wished to marry, a person of a different race in
violation of the statute, would be disqualified because he or she would have a direct and
substantial personal interest in the outcome.

•

Brown. Any judge, black or white, who had a child attending the racially segregated
public school would be disqualified because he or she would have a direct and
substantial personal interest in the outcome.

•

Grutter. Any judge, black or white, who had a child applying to the University of
Michigan when it employed affirmative action admission criteria could not sit because
the child would have a direct and substantial personal interest in the outcome.

•

Abortion case. A female judge of childbearing age could almost certainly hear a
challenge to an abortion regulation because any interest she might have in the outcome
would be remote, contingent, and speculative. Only if the female judge (i) was
pregnant, (ii) wished to have an abortion that was (iii) prohibited by the regulation being
challenged would she be directly and substantially affected by the outcome and thus
have to recuse.

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23

Plaintiffs make passing reference to one other landmark case, see Doc. No. 779 at 9, 22, but

24

they completely miss its significance to the issue before the Court. In United States v. Virginia, 518

25

U.S. 515 (1996), the question before the Court was whether the Virginia Military Institute (“VMI”)

26

could continue to accept only male cadets. Both of the Court’s female justices and six of the

27

Court’s seven male justices sat on the case as a matter of course because, even though the dispute

28

concerned a claim of gender discrimination, none of the sitting Justices had any personal interest in
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the outcome. Justice Thomas, however, recused – not because he was a male, but rather because his

2

son attended VMI, and as a result, had a direct and substantial personal interest in the outcome of

3

the case. The same is true here.

4

II.

5

THIS MOTION IS TIMELY.
Proponents brought this motion promptly after former Chief Judge Walker publicly

6

acknowledged, for the first time, that he is in a 10-year, same-sex relationship.

7

nevertheless argue that this motion is untimely, pointing to a handful of unconfirmed media reports

8

that Judge Walker is gay, Proponents’ statements that they did not intend to make an issue out of his

9

sexual orientation, and a single, unconfirmed news article reporting statements from unnamed

10

sources that Judge Walker “attends bar functions with a companion, a physician,” as evidence that

11

Proponents should have filed this motion earlier.

12

demonstrates that Proponents were on notice that Judge Walker was in a long-term, committed

13

same-sex relationship, and thus would likely directly and substantially benefit from his own ruling

14

in this case.

Doc. # 779 at 24-25.

Plaintiffs

But none of this

15

1. Proponents do not contend, and indeed have consistently disavowed, that Judge Walker

16

was disqualified from this case simply because of his sexual orientation. Accordingly, media

17

reports that he is gay—reports that he refused to confirm or deny prior to last month, see Doc.

18

# 780-4—plainly did not put Proponents on notice of Judge Walker’s long-term same-sex

19

relationship, let alone provide a basis for the present motion. For the same reason, Proponents’

20

statements that they did not intend to make an issue of Judge Walker’s sexual orientation in no way

21

indicate that they knew of his long-term relationship or somehow waived the right to object to the

22

actual or at least apparent conflict of interest it creates.

23

2. Nor did the single news article reporting that Judge Walker “attends bar functions with a

24

companion, a physician,” Doc. # 780-4 at 3, inform Proponents of this conflict. This assertion was

25

attributed only to unnamed “colleagues” of Judge Walker, id., and, as the article made clear, had not

26

been confirmed by the Judge himself, “who declined to be interviewed with the marriage case

27

pending,” id. at 2.

28

reasonably be understood to have put Proponents on notice that Judge Walker was in a 10-year

Even were it clearly reliable, moreover, this cryptic assertion could not

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same-sex relationship. Although the article indicated that Judge Walker attended at least some

2

professional functions with another individual, the article did not otherwise discuss the nature (let

3

alone duration) of the relationship between the Judge and his “companion.”

4

Plainly Proponents could not responsibly have taken the serious step of seeking Judge

5

Walker’s recusal based on such uncorroborated, ambiguous reports from unnamed sources. To the

6

contrary, it is well settled that a motion for recusal may not be based on “[r]umor, speculation,

7

beliefs, conclusions, innuendo, suspicion,” Clemens v. United States District Court, 428 F.3d 1175,

8

1178 (9th Cir. 2005), “an uncorroborated news report or rumor,” Porter v. Singletary, 49 F.3d 1483,

9

1489 (11th Cir. 1995), or “a hearsay statement from an undisclosed informer of unknown

10

reliability,” Willner v. University of Kansas, 848 F.2d 1023, 1027 (10th Cir. 1988).

11

Nor did this uncorroborated rumor create a duty (or even provide an appropriate basis) for

12

Proponents to investigate or inquire into Judge Walker’s personal life. “Section 455(a) [and] the

13

Code of Judicial Conduct . . . place the burden of maintaining impartiality and the appearance of

14

impartiality on the judge,” First Interstate Bank of Arizona v. Murphy, Weir & Butler, 210 F.3d

15

983, 987 (9th Cir. 2000), and “judges have an ethical duty to ‘disclose on the record information

16

which the judge believes the parties or their lawyers might consider relevant to the question of

17

disqualification,’ ” American Textiles Manufacturers Institute, Inc. v. The Limited, Inc., 190 F.3d

18

729, 742 (6th Cir. 1999). “Lawyers are entitled to assume that judges . . . will perform their duty.”

19

First Interstate Bank, 210 F.3d at 988. Accordingly, “litigants (and, of course, their attorneys)

20

should assume the impartiality of the presiding judge, rather than pore through the judge’s private

21

affairs and financial matters.” American Textiles, 190 F.3d at 742; see also id. (“a litigant’s duty to

22

investigate the facts of his case does not include a mandate for investigations into a judge’s

23

impartiality”); Porter, 49 F.3d at 1489 (“In light of the Canons governing judicial conduct, we do

24

not believe that an attorney conducting a reasonable investigation would consider it appropriate to

25

question a judge . . . about the judge’s lack of impartiality.”).7 As Plaintiffs’ lead counsel aptly put

26

the matter in another case:

27
28

7

Contrary to San Francisco’s suggestion, see Doc. # 775, at 13-14, nothing in Sao Paulo
State of Federative Republic of Brazil v. American Tobacco Co., Inc., 535 U.S. 229 (2002),
(Continued)
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2
3
4
5

Surely [Plaintiffs] cannot be urging a rule whereby, in order to preserve a possible . . .
challenge, litigants must probe into the private lives of the jurists before whom they
appear to discover interests which may cause a judge to be biased or which may
create the strong appearance of bias. Nor do [Plaintiffs] explain what justification
there might have been for [Chief Judge Walker] not making this obvious conflict
known to the parties . . . .
Reply Brief of Appellant at 2, Aetna Life Insurance Co., v. Lavoie, No. 84-1601 (1984)

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

In short, the unconfirmed and anonymous reports identified by Plaintiffs are “not
comparable at all to the evidence now proffered” in support of this motion. Porter, 49 F.3d at 1488.
And, “[u]nlike the newly proffered evidence, [they] fell far short of overcoming the presumption of
regularity and supporting a claim of judicial bias.” Id.
3. All of the cases cited by Plaintiffs that find a motion to disqualify untimely are based on
information plainly—often concededly—known to the moving party, and indeed often as a matter
of public record, long before the motion was filed. See United States v. Rogers, 119 F.3d 1377,
1381-83 (9th Cir. 1997); E. & J. Gallo Winery v. Gallo Cattle Co., 967 F.2d 1280, 1295-96 (9th
Cir. 1992); Wood v. McEwen, 644 F.2d 797, 802 (9th Cir. 1981).8 Certainly none of these cases
hold a motion to disqualify untimely on the ground that the movant should have acted on cryptic,
unsubstantiated rumors and media reports based on anonymous sources. To the contrary, it is well
settled that a motion to disqualify is timely, regardless of the stage of the proceedings at which it is
made, so long as it is made by a party with reasonable promptness after that party becomes aware of
the facts on which it is based. See Liljeberg, 486 U.S. at 850, 867, 869; Preston v. United States,
923 F.2d 731, 733 (9th Cir. 1991) (recusal motion was timely when filed shortly after party learned
of Judge’s previous association with law firm representing company that could benefit from ruling,
even though that association had long been a matter of public record); United States v. Amico, 486
F.3d 764, 773-75 (2d Cir. 2007) (recusal motion was timely when filed promptly after parties
(Cont’d)
suggests that it is necessary, or even appropriate, for a party to question a judge about actual or
apparent partiality. Rather, that case holds only that, in reviewing a trial court’s ruling on a recusal
motion, an appellate court should consider extenuating circumstances identified by the trial court in
the order being reviewed. See 535 U.S. at 231-33.
8
The cases cited by San Francisco in support of reviewing Proponents’ motion only for
plain error, see Doc. # 775, at 12-13, are to the same effect.
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learned that witness would testify that the judge knowingly falsified loan application, even though

2

parties long knew that witness would testify that he had assisted the judge in filing a false loan

3

application); United States v. Kelly, 888 F.2d 732, 747 (1989) (recusal motion was timely when

4

filed shortly after the judge revealed “the intensity of his personal reaction to the dilemma he faced”

5

when a close friend was called as a witness, even though party “was aware for some time before

6

trial that [the witness] and the judge had an indirect social relationship”).

7

III.

THE JUDGMENT MUST BE VACATED.

8

As we demonstrated in our opening brief, vacatur of the judgment in this case follows

9

inexorably from Judge Walker’s disqualification, under the Supreme Court’s analysis in Liljeberg,

10

see Doc. # 768 at 20-26, and Plaintiffs have no meaningful response.

Instead, they argue

11

principally that no harm would result from allowing the judgment to stand notwithstanding Judge

12

Walker’s violation of Section 455 because “none of the Defendants have joined Proponents’ vacatur

13

motion ….” Doc. # 779 at 26. But of course, the Defendants all support (or at a minimum, do not

14

oppose) Plaintiffs’ case, so it is hardly surprising that they are indifferent to the fact that the case

15

was decided favorably to them by a judge who likely had a direct and substantial personal interest

16

in the outcome and whose impartiality could reasonably be questioned. Plaintiffs also claim that

17

vacatur would “establish a dangerous precedent” by encouraging recusal motions, id. at 27, but

18

there is nothing “dangerous” about a precedent that enforces the fundamental rule that no judge may

19

hear his own case. To the contrary, as the Supreme Court emphasized in Liljeberg, vacating the

20

judgment here “may prevent a substantive injustice in some future case by encouraging a judge …

21

to more carefully examine possible grounds for disqualification and to promptly disclose them

22

when discovered.” 486 U.S. at 868. Finally, because this case has been “closely followed by the

23

public,” Doc. # 779 at 27, Plaintiffs somehow conclude that “[v]acatur is therefore wholly

24

unnecessary to bolster public confidence” in the resulting judgment. Id. at 28. With all due respect,

25

Plaintiffs have it precisely backwards. The great public importance of this case and the highly

26

controversial nature of the dispute make it all the more vital that it be decided at every stage by

27

judges whose impartiality cannot be reasonably questioned.

28
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CONCLUSION

2

For the foregoing reasons, and those stated in our opening motion papers, Proponents

3

respectfully request that this Court enter an order “stat[ing] either that it would grant the motion if

4

the court of appeals remands for that purpose or that the motion raises a substantial issue.” FED. R.

5

CIV. P. 62.1(a)(3).

6
7
8
9
10
11

DATED: May 23, 2011

Respectfully Submitted,
ATTORNEYS FOR DEFENDANT-INTERVENORS
DENNIS HOLLINGSWORTH, GAIL J. KNIGHT,
MARTIN F. GUTIERREZ, MARK A. JANSSON, AND
PROTECTMARRIAGE.COM – YES ON 8, A PROJECT
OF CALIFORNIA RENEWAL
By:

/s/ Charles J. Cooper
Charles J. Cooper

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25
26
27
28
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