From the Annals of the Obvious

Following up on yesterday’s post, today Chief Judge James Ware of the United States District Court for the Northern District of California made the obvious call.

From the Los Angeles Times:

A federal judge on Tuesday refused to invalidate last year’s ruling against Proposition 8, deciding the gay jurist who overturned the same-sex marriage ban had no obligation to step aside because of a possible conflict of interest.

The decision by Chief Judge James Ware of the U.S. District Court in San Francisco left the ruling by retired Judge Vaughn R. Walker in place. Walker’s decision remains on hold pending a separate appeal to the U.S. 9th Circuit Court of Appeals.

…

“It is not reasonable to presume that a judge is incapable of making an impartial decision about the constitutionality of a law, solely because, as a citizen, the judge could be affected by the proceedings,” Ware wrote in his ruling.

I would say, Um, duh! … but Judge Ware chose to take a considerably more academic approach to the issue. So let’s review.

This is how the issue arose. Certain proponents of California’s Proposition 8, a ballot initiative which banned same-sex marriage in the state, filed a Motion to Vacate U.S. District Judge Vaughn Walker’s August 4, 2010 ruling declaring Prop 8 unconstitutional. The Motion to Vacate asserted that Judge Walker should have recused himself from considering the Prop 8 case under 28 U.S.C. § 455, which provides, in relevant part:

(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

(b) He shall also disqualify himself in the following circumstances:

…

(4) 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 matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding …

28 U.S.C. § 455(a), (b)(4).

The Prop 8 supporters argued that Judge Walker, who is gay and in a long-term relationship, “was disqualified from presiding over the case because his same-sex relationship was, or reasonably appeared to be, a nonpecuniary interest that could be substantially affected by the outcome of the case.” Perry v. Schwarzenegger, No. C 09-02292 (U.S. Dist. Ct. N.D. Cal. June 14, 2011), slip op. at 2.

Chief Judge Ware rejected that argument, holding:

After considering the Oppositions to the Motion and the governing law, as discussed below, the Court finds that neither recusal nor disqualification was required based on the asserted grounds. The sole fact that a federal judge shares the same circumstances or personal characteristics with other members of the general public, and that the judge could be affected by the outcome of a proceeding in the same way that other members of the general public would be affected, is not a basis for either recusal or disqualification under Section 455(b)(4). Further, under Section 455(a), it is not reasonable to presume that a judge is incapable of making an impartial decision about the constitutionality of a law, solely because, as a citizen, the judge could be affected by the proceedings. Accordingly, the Motion to Vacate Judgment on the sole ground of Judge Walker’s same-sex relationship is DENIED.

Perry v. Schwarzenegger, slip op. at 2.

Reviewing relevant case law with respect to Section 455(b)(4), which mandates recusal where the judge has an “interest that could be substantially affected by the outcome of the proceeding,” Judge Ware concluded:

In a case that could affect the general public based on the circumstances or characteristics of various members of that public, the fact that a federal judge happens to share the same circumstances or characteristic and will only be affected in a similar manner because the judge is a member of the public, is not a basis for disqualifying the judge under Section 455(b)(4).

In applying this conclusion to the present case, the Court finds that Judge Walker was not required to recuse himself under Section 455(b)(4) on the ground that he was engaged in a long-term same-sex relationship and, thus, could reap speculative benefit from an injunction halting enforcement of Proposition 8 in California. In particular, in a case involving laws restricting the right of various members of the public to marry, any personal interest that a judge gleans as a member of the public who might marry is too attenuated to warrant recusal.

Slip op. at 7. There is far more to this section that the small portion I’ve quoted above, and if you have the time it’s well worth reading.

Anyway, turning to Section 455(a), which requires recusal where a judge’s “impartiality might reasonably be questioned,” Chief Judge Ware explained:

Here, Defendant-Intervenors contend that consideration of the fact that Judge Walker “has been involved in a 10-year (8-year at the time that Plaintiffs commenced this suit) committed same-sex relationship” would lead a reasonable person to question Judge Walker’s impartiality. (Motion at 11-12.) The Court finds that disqualification under Section 455(a) on the basis of this fact fails, because it depends upon the assumption that a judge who is in a relationship has an interest in getting married which is so powerful that it would render that judge incapable of performing his duties. Under Ninth Circuit law, however, this assumption is unreasonable. A well-informed, thoughtful observer would recognize that the mere fact that a judge is in a relationship with another person-whether of the same or the opposite sex-does not ipso facto imply that the judge must be so interested in marrying that person that he would be unable to exhibit the impartiality which, it is presumed, all federal judges maintain.

Slip op. at 15.

Judge Ware then concluded:

Finally, the presumption that “all people in same-sex relationships think alike” is an unreasonable presumption, and one which has no place in legal reasoning. The presumption that Judge Walker, by virtue of being in a same-sex relationship, had a desire to be married that rendered him incapable of making an impartial decision, is as warrantless as the presumption that a female judge is incapable of being impartial in a case in which women seek legal relief. On the contrary: it is reasonable to presume that a female judge or a judge in a same-sex relationship is capable of rising above any personal predisposition and deciding such a case on the merits. The Motion fails to cite any evidence that Judge Walker would be incapable of being impartial, but to presume that Judge Walker was incapable of being impartial, without concrete evidence to support that presumption, is inconsistent with what is required under a reasonableness standard.

Slip op. at 19.

All of which is a longer, more involved way of reaching the conclusion I reached yesterday, but that’s why they pay Chief Judges the big bucks. Kidding aside, I am grateful for the effort Judge Ware put into this, because today’s ruling is undoubtedly heading up on appeal with the rest of the case, and I’m confident that Judge Ware’s careful analysis will withstand scrutiny on appeal.

Because, like I said before: Duh.

© 2011 David P. von Ebers. All rights reserved.