NOM BLOG

Justice Alito Recuses, Judge Walker Excuses

 

In Keen News Service:

9th Circuit U.S. Court of Appeals Judge Stephen Reinhardt rejected a motion that he recuse himself from hearing an appeal from Yes on 8 last December. Reinhardt is married to the executive director of the Southern California ACLU.  The motion filed by Yes on 8 attorney Charles Cooper asserted that, because the ACLU has been involved in challenging Proposition 8, Reinhardt should disqualify himself from hearing the appeal. Reinhardt and his 9th Circuit panel colleagues have yet to rule on Yes on 8’s appeal.

Now, it is up to U.S. District Court Chief Judge James Ware to decide where the recusal bar should have been set when Vaughn Walker heard the case challenging Proposition 8. At the time of the trial, Walker had given no public statement indicating that he was gay and in a relationship for 10 years with another man. And it is common for judges to look to the Supreme Court and other courts for guidance, in making their own rulings.

So, it won’t be a surprise next Monday if attorneys for the proponents of Proposition 8 trot out Justice Alito’s recent recusal statement in support of their argument that Walker should have recused himself from deciding the landmark case involving Proposition 8.

Justice Alito's recent recusal statement is explained in the full Keen News Service story.

7 Comments

  1. Posted June 8, 2011 at 4:29 pm | Permalink

    The cases for recusal regarding Reinhardt and Walker are completely different.

    The recusal case against Reinhardt was weak. His wife was executive director of the southern California branch of the ACLU (ACLUSoCal). While ACLUSoCal supports same-sex "marriage" as a matter of public policy, it was not involved in the current case before the Ninth Circuit. In fact, according to the Ninth Circuit's web site , ACLU SoCal was not even an amicus curiae. This was insufficient grounds for recusal. Most importantly, Reinhardt made full disclosure.

    By contrast, not only was Judge Walker in a long-term same-sex relationship, he refused to disclose it until months after the entry of judgment. This failure to disclose is what prevented the recusal issue from being settled before trial. And as Aaron Worthing pointed out .

    By issuing a statewide injunction applying to all gay couples, that meant that if the ruling was upheld, and the stay is lifted, Judge Walker could go to a justice of the peace, and request that this person marry him to his long-term same-sex partner. And if that JP refused, the Judge could then go back to the federal court and move that the Justice of the Peace be held in contempt of his own order. Indeed, if he was not retired, according to the Anti-Proposition 8 forces, he could sit in judgment in the contempt proceedings.

  2. Woody
    Posted June 8, 2011 at 8:51 pm | Permalink

    The key word here is "IF". If, if, if is all speculation. What if Judge Walker didn't want to get married? He certainly had the opportunity to do so before Prop 8 was ratified. What if Judge Walker personally opposed SSM for himself but understood that his personal beliefs do not trump the 14th Amendment? What if it was another judge ajudicating this case who was in a heterosexual long term committed relationship. Would this judge have been required to disclose this and recuse him or herself? After al,l Prop 8 intervenors argued that same sex marriage harmed opposite sex marriage. Wouldn't said judge be biased against Prop 8 opponents because in the future he or she may wish to marry his or her long term mate and therefore his future marriage would be harmed by SSM?

    The fact is that we don't know what the judge's intent was. However, we do know that whatever his intent was, his ruling was based on sound reasoning, U.S. Constitutional principals and prior case law. FYI, the Iowa Supreme Court had also unanimously ruled that bans against SSM violated the U.S. Constitution. Are any of these justices in long term committed same sex marriages? Were any of them expected to disclose their sexual orientation and relationship status in order to render an impartial ruling? Given the fact that recent court decisions haqve disfavored bans against SSM, it is very likely that any sound minded heterosexual judge who believes in upholding the U.S. Constitution would have rendered the same ruling as Judge Walker. They already have.

  3. Posted June 9, 2011 at 3:30 am | Permalink

    The key word here is "IF". If, if, if is all speculation. What if Judge Walker didn't want to get married? He certainly had the opportunity to do so before Prop 8 was ratified.

    This is the purpose of Section 455 (c), requiring a "full disclosure on the record".

    He certainly had the opportunity to do so before Prop 8 was ratified.

    So did the plaintiffs. If Walker's failure to "marry" is proof he did not have an interest, then plaintiffs' failure to "marry" proves they did not have an interest either, and as such they did not have standing to sue.

    What if Judge Walker personally opposed SSM for himself but understood that his personal beliefs do not trump the 14th Amendment?

    This is belied by his wildly irregular rulings, all of which happened to benefit the plaintiffs. He had authorized a sweeping discovery grossly unprotective of the proponents' First Amendment rights, a discovery order overturned by the Ninth Circuit. In attempting to broadcast the trial, "he attempted to change [the court's] rules at the eleventh hour to treat this case differently than other trials in the district. Not only did [he] ignore the federal statute that establishes the procedures by which its rules may be amended, [his]express purpose was to broadcast a high-profile trial that would include witness testimony about a contentious issue." This provoked a stay order from the U.S. Supreme Court. With respect to remedy, he issued a sweeping injunction prohibiting enforcement of Proposition 8 throughout the state, instead of merely ordering the defendant county clerks to issue a marriage license to the plaintiffs. And finally, he refused to stay the injunction; the Ninth Circuit was forced to issue a stay.

    Wouldn't said judge be biased against Prop 8 opponents because in the future he or she may wish to marry his or her long term mate and therefore his future marriage would be harmed by SSM?

    Such an interest would indeed be remote and speculative. If it was not , any married person would have standing to appeal the district court decision.

    However, we do know that whatever his intent was, his ruling was based on sound reasoning, U.S. Constitutional principals and prior case law.

    Baker v. Nelson , 191 N.W.2d 185,(Minn. Sup. Ct. 1971) summarily aff'd 409 U.S. 810 (1972)

    Singer v. Hara, 11 Wn.App. 247, 522 P.2d 1187 (Wash. Ct. of Appeal 1974)

    Adams v. Howerton, 673 F.2d 1036 (9th Cir. Ct. of Appeal 1982)

    Dean v. District of Columbia , A.2d 301 (D.C. Court of Appeals 1995)

    Standhardt v. Superior Court , No. 1 CA-SA 03-0150. (Ariz. Ct. of Appeal 2003)

    Citizens for Equal Protection v. Bruning , 455 F.3d 859 (8th Cir. Ct. of Appeal 2006)

  4. Woody
    Posted June 9, 2011 at 4:22 pm | Permalink

    Michael, if Judge Walker wanted to and intended to get married, he too could have been a plaintiff in this case but he wasn't. Now had he been a plaintiff and the judge in this case at the same time, I would agree that there would have been a conflict of interest. However, this did not happen. The fact remains that the charge that he intended to marry his partner is all speculation. Did Judge Walker apply for a marriage license? If so, was he denied? Where's the engagement ring and wedding invitations? How many others were aware of the judge's wedding plans?

    Now on the actuall pliantiffs in the case. How do you know that their desire to marry didn't occur until after Prop 8 was passed? How many unmarried heterosexual couples do you know today decide to hurry down to the Justice of the Peace to get married in anticipation that later the voters may vote to ban their marriages? How many heterosexual married couples do you know today that are afraid to get divorced in anticipation that the law will prohibit them from getting married again in the future? How many of your heterosexual married friends had to cross state lines to get married? Still, how many are married in one state, but not in another and are married according to their state tax return form but single on their federal tax form? Maybe this and all the evidence that was presented at the trial shaped the ruling in this case. I see where you were trying to go by comparing the judge with the pliantiffs in this case but the only clear link is their sexual orientation. If the plaintiffs did not choose to marry until after Prop 8 was passed, all it suggests is that they may have not been interested in marrying before Prop 8. It does not prove that the plaintiffs and the judge had the same intentions. Just as not all heterosexual long term committed couples intend to marry.

    Yes, we see that Judge Walker's actions on broadcasting the Prop 8 trial and lifting the stay on Prop 8 was overturned by higher courts. However these actions do not suggest that Judge Walker's intent was to get married. It seems that the judge was seeking transparency for the public and to enjoin same sex couples from enduring continuing discrimination. Remember, the Prop 8 case and ballot initiative was a high profile case of great public interest. Millions of voters were told that the fate of Prop 8 would grossly affect the public. The public had the right to know and see the actual evidence and proof of how the public would be affected. This was the Prop 8 proponents chance to shine and prove that their position wasn't just campaign rhetoric. The higher court disagreed, but this doesn't suggest that Judge Walker intended to get married.

    "Such an interest indeed would be remote and spectulative. If it was not, any married person would have standing to appeal the district court decision."

    Alas, we do have something that we half agree on. I do agree that it is specualtive to suggest that a heterosexual judge's marital status would bias the Prop 8 ruling for the same reason it would bias Judge Walker's marital status. Marital or long term committed relationship status do not establish proof of intent. The fact that many married heterosexual persons are not pounding on the doors to appeal the district court decison suggests that most heterosexual couples do not view the district court's decision as really having an adverse opinion on their lives. Sure, a slight majority did vote in favor of Prop 8 at the polls. However, it was a very slight majority. If you give voters the option to decide if they like something behind the privacy of a curtain, they will choose what they like or don't like. Asking them to appeal to higher courts what has what has already been established in lower courts as`unconstitutional is another whole story.

    In looking at prior case law, the mejority of cases that you have referenced were ajudicated prior to the first state sanctioning same sex marriages in 2003. Now there is a different questions before the courts: do voters, state legislatures and the federal government have the constitutional right to deprive equal rights for citizens based on gender? Do the federal government and states have the right to deny recognition of marriages duly sanctioned and recognized in other states? So now we have a whole new set of circumstances and far more voters who accept SSM. The tide has turned which warrants a whole new review. Judge Walker is part of this tide but it dos not establish that his ruling was not based on the evidence presented, facts and Constitutional principles.

  5. Posted June 9, 2011 at 11:18 pm | Permalink

    However, this did not happen. The fact remains that the charge that he intended to marry his partner is all speculation. Did Judge Walker apply for a marriage license? If so, was he denied? Where's the engagement ring and wedding invitations? How many others were aware of the judge's wedding plans?

    So what about the plaintiffs?
    Why did they not get married?

    f the plaintiffs did not choose to marry until after Prop 8 was passed, all it suggests is that they may have not been interested in marrying before Prop 8.

    And similarly, Judge Walker not getting "married" only suggests that he may not have been interested in "marrying" before Prop 8.

    You can not have it both ways. You can not argue that Judge Walker's refusal to "marry" in 2008 is somehow proof that he did not have any plans to "marry" during the case, while at the same time, the plaintiffs' refusal to do the same only indicates they lacked such an interest at the time.

    Yes, we see that Judge Walker's actions on broadcasting the Prop 8 trial and lifting the stay on Prop 8 was overturned by higher courts.

    Here is what the Supreme Court wrote in issuing the stay order.

    The District Court attempted to change its rules at the eleventh hour to treat this case differently than other trials in the district. Not only did it ignore the federal statute that establishes the procedures by which its rules may be amended, its express purpose was to broadcast a high-profile trial that would include witness testimony about a contentious issue. If courts are to require that others follow regular procedures, courts must do so as well.

    Hollingsworth v. Perry , 130 S. Ct. 705 (2010)

    The District Court here attempted to revise its rules in haste, contrary to federal statutes and the policy of the Judicial Conference of the United States. It did so to allow broadcasting of this high-profile trial

    id. at 713

    Here, however, the order in question complied neither with existing rules or policies nor the required procedures for amending them.

    same (all emphases mine)

    Now there is a different questions before the courts: do voters, state legislatures and the federal government have the constitutional right to deprive equal rights for citizens based on gender?

    The question in this case was identical to the question presented in Baker .

    Judge Walker is part of this tide but it dos not establish that his ruling was not based on the evidence presented, facts and Constitutional principles.

    His ruling contradicted binding precedent. In fact, two court decisions- one in Texas, one in Minnesota- did not buy Judge Walker's reasoning.

    Alas, we do have something that we half agree on. I do agree that it is speculative to suggest that a heterosexual judge's marital status would bias the Prop 8 ruling for the same reason it would bias Judge Walker's marital status

    The fallacy is that with respect to this case, married couples are not similarly situated with same-sex couples. A married judge's interest in this case would be speculative. But a judge in a long-term same-sex relationship, in a case where the relief sought if a court order compelling all county clerks to issue marriage licenses to same-sex couples, could potentially benefit directly and immediately from the ruling. To be sure, a judge in a long-term same-sex relationship who has no concrete plans to "marry" would not necessarily be a basis for disqualification. But as I shall explain below, Walker should be presumed to have a direct, immediate interest in "marrying".

    The fact remains that the charge that he intended to marry his partner is all speculation. Did Judge Walker apply for a marriage license? If so, was he denied? Where's the engagement ring and wedding invitations? How many others were aware of the judge's wedding plans?

    And the fact remains is that Walker refused to disclose his long-term, same-sex relationship until six months after the judgment.

    Under 28 USC 455 (c) judges are to inform the litigants "about his personal and
    fiduciary financial interests, and make a reasonable effort to
    inform himself about the personal financial interests of his spouse
    and minor children residing in his household." This rule was liberally constructed, meaning that a judge would disclose any possible interest even if they are ultimately not sufficient grounds for disqualification. The purpose of the liberal construction of this rule was to ensure that the litigants will be in a position to pursue recusal, should they believe it appropriate, before a judgment on the merits.

    For example, in United States v. Alabama , 571 F. Supp. 958 (N.D. Ala. 1983), a case about purpoted segregation in Alabama's universities, the judge in that case squarely acknowledged that
    he would have to recuse
    under Section 455 “if [he] knew that any minor child residing in [his] household has an interest that could be substantially affected by the outcome of this proceeding.” id at 962 (emphasis mine) To this end, he took pains to disclose the relevant facts: “Neither my sixteen-year old son nor my nine-year old daughter has indicated to me an interest in attending either of the colleges or universities involved in this action.” Alabama
    574 F. Supp. 762 at 764 n.1 (N.D. Ala. 1983) The court's decision in that case was ultimately vacated on other grounds. Alabama , 828 F.2d 1532 at 1544-1546.

    Similarly, in United States v. Virginia, 518U.S. 515 (1996), the Supreme Court considered a sex discrimination case against the Virginia Military Institute. Eight of the justices stayed on the case, due to the fact that neither they nor their immediate families had a direct, substantial, immediate interest in the case. Justice Thomas recused himself, disclosing the fact that his son was a cadet at the school in question.

    In both cases (one where the judge's children's interests did not warrant recusal, and one where the justice's son's interest did), the judges in question made all necessary disclosures. The litigants thus knew all information needed to make an informed decision. And in both cases the issue of recusal was settled before the judgments of the respective course.

    What then, of a judge who deliberately refuses to make a full disclosure? Because such a refusal denies the litigants the facts needed to ascertain if the judge was impartial, the worst must be presumed.

  6. Paul Mc
    Posted June 14, 2011 at 4:01 am | Permalink

    "If Walker's failure to "marry" is proof he did not have an interest, then plaintiffs' failure to "marry" proves they did not have an interest either, and as such they did not have standing to sue. "

    Walker doesn't need 'proof' of lack of interest. It is up to the platinffs in this recusal case to show that there was a legitimate reason for disclosure. Nothing can be concluded either way about Walker's intentions - simply because his intentions were a private matter, not one of public import.

    The 'proof' works in only one direction. If he HAD announced an engagement for example but had not carried it through prior to Prop 8 then clearly he had an interest. He hadn't so nothing can be drawn from that.

    This case will fall - you can't base a legal decision of failure to diclose based on pure speculation about private intentions.

  7. KET
    Posted June 14, 2011 at 9:32 am | Permalink

    Here try this on for size, . If Walker wanted the get married he had a window when it was recognized locally, after prop 8 all he could have traveled to the nearest state where it is legal, married ,and he could return to California and have it legally recognized. That definitely takes the wind out of those sails. He always had the ability to marry and have it recognized in his home state
    if he so desired.