Disclosure Delayed Is Justice Denied

National Review Online | Published on

By Edward Whelan

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Two weeks ago, former federal district judge Vaughn Walker, who ruled last summer in Perry v. Schwarzenegger that California's Proposition 8 is unconstitutional, publicly disclosed for the first time that he has been in a same-sex relationship for the past ten years. A straightforward application of the judicial ethics rules compels the conclusion that Walker should have recused himself from taking part in the Perry case. Further, under well-established Supreme Court precedent, the remedy of vacating Walker's judgment is timely and necessary.

Let's begin with the relevant facts that bear on the recusal question.

According to his recent disclosure, Walker has been in a relationship with the same man for the past ten years. Walker and his partner evidently live in the San Francisco area.

The complaint in Perry, filed in May 2009, sought a permanent injunction against “all enforcement of Prop. 8.” Among other things, the plaintiffs alleged that the “inability to marry denies gay and lesbian individuals and their children the personal and public affirmation that accompanies marriage.” They further alleged that they, as “gay and lesbian residents of California who are involved in long-term serious relationships with individuals of the same sex and desire to marry those individuals,” had suffered “significant hardship” from Proposition 8, “including but not limited to the deprivation of rights guaranteed by the Fourteenth Amendment and severe humiliation, emotional distress, pain, suffering, psychological harm, and stigma.”

In August 2010, Judge Walker ruled that Proposition 8 “is unconstitutional under both the Due Process and Equal Protection Clauses,” and he ordered “entry of judgment permanently enjoining its enforcement [and] prohibiting the official defendants”—including California's governor, attorney general, and the state officials “responsible for prescribing and furnishing the forms for marriage license applications, the certificate of registry of marriage, including the license to marry, and the marriage certificate”—”from applying or enforcing Proposition 8 and directing the official defendants that all persons under their control or supervision shall not apply or enforce Proposition 8.”

Among the findings of fact that Walker offered in support of his ruling were that “Proposition 8 increases costs and decreases wealth for same-sex couples,” that marriage “benefits both spouses by promoting physical and psychological health,” that “marriage is widely regarded as the definitive expression of love and commitment in the United States,” and that “Proposition 8 places the force of law behind stigmas against gays and lesbians.”

Now let's consider how those facts apply under federal recusal law:

Section 455(a) of Title 28 of the United States Code requires that a federal judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” As explained by a publication of the Federal Judicial Center, Judicial Disqualification: An Analysis of Federal Law (2d ed. 2010), section 455(a) makes “clear that judges should apply an objective standard in determining whether to disqualify”:

A judge contemplating disqualification under § 455(a), then, should not ask whether he or she believes he or she is capable of impartially presiding over the case. Rather, the question is whether a judge's impartiality might be questioned from the perspective of a reasonable person, and every circuit has adopted some version of the ‘reasonable person' standard to answer this question.

In adopting this objective standard, section 455(a) “obviates making subjective judgment calls about what is actually going on inside a judge's heart and mind.”

In taking part in the Perry case, Judge Walker was deciding whether Proposition 8 would bar him and his same-sex partner from marrying. Whether Walker had any subjective interest in marrying his same-sex partner—a matter on which Walker hasn't spoken—is immaterial under section 455(a). (If Walker did have such an interest, his recusal also would be required by other rules requiring that a judge disqualify himself when he knows that he has an “interest that could be substantially affected by the outcome of the proceeding.”) Walker's own factual findings explain why a reasonable person would expect him to want to have the opportunity to marry his partner: A reasonable person would think that Walker would want to have the opportunity to take part with his partner in what “is widely regarded as the definitive expression of love and commitment in the United States.” A reasonable person would think that Walker would want to decrease the costs of his same-sex relationship, increase his wealth, and enjoy the physical and psychological benefits that marriage is thought to confer.

Because Walker was deciding how the law in the very jurisdiction in which he lived would directly govern his own individual rights on a matter that a reasonable person would think was very important to Walker personally, it is clear that Walker's impartiality in Perry “might reasonably be questioned.”

At the same time that he disclosed his long-term same-sex relationship, Walker stated—according to a reporter's paraphrase—that it “would not be appropriate for any judge's sexual orientation, ethnicity, national origin or gender to stop them from presiding over a case.” The article quotes Walker as declaring, “That's a very slippery slope.” But Walker's slope is “very slippery” only for greased red herrings. Walker vastly overstates the principle that requires his recusal. The proposition that a judge should not decide how the law in the jurisdiction he lives in would directly govern his own individual rights on a matter that a reasonable person would think was very important to him personally is much narrower than the proposition that a judge of a particular sexual orientation, ethnicity, national origin, or gender may not decide any case involving those issues. The former proposition flows directly from section 455(a); the latter doesn't.

To those who resist the conclusion that Walker's impartiality “might reasonably be questioned” under section 455(a), I ask: What additional facts, if any, would alter your assessment? What if, for example, Walker and his partner had agreed that they would marry if Proposition 8 were defeated in the November 2008 election?

A judge also has an obligation to disclose to the parties information that they might consider relevant to the question of disqualification. That disclosure enables a party to identify other information that might bear on the question and to decide whether to move to disqualify the judge. It also enables a party to make an informed judgment whether to waive a judge's obligation to disqualify himself under section 455(a). Indeed, the waiver provision explicitly states that “waiver may be accepted provided it is preceded by a full disclosure on the record of the basis for disqualification.”

Anyone whose assessment of the recusal question might be altered by additional facts should have in mind that it was Walker who, by not disclosing to the parties at the outset of Perry that he was in a long-term same-sex relationship, effectively foreclosed any inquiry into additional facts. Indeed, it is reasonable to suspect that Walker failed to disclose that information precisely because he was concerned that it would require his recusal or invite unwelcome follow-up inquiries. Walker's failure to live up to his disclosure obligation thus provides yet another reason
why a reasonable person, with the benefit of Walker's belated disclosure, would have ample cause to question his impartiality.

Now that Walker has finally disclosed facts that would have warranted his disqualification from Perry, the appropriate remedy is for the Ninth Circuit—or, if necessary, the Supreme Court—to vacate Walker's judgment upon a request by Prop 8 proponents. As the Supreme Court ruled more than two decades ago in Liljeberg v. Health Services Acquisition Corp.(1988), where a district judge has violated section 455(a) by deciding a case that he should have disqualified himself from, it is “appropriate to vacate the judgment unless it can be said that [the losing party] did not make a timely request for relief, or that it would otherwise be unfair to deprive the prevailing party of its judgment.” In that case, the losing party did not learn of the facts requiring disqualification until ten months after the court of appeals had affirmed the district court's judgment, so the question was whether the judgment that had become final on appeal should nonetheless be set aside. The Court found the request for relief to be timely, as the delay was attributable to the judge's failure to disclose the facts requiring disqualification. A request now by Prop 8 proponents to vacate Walker's judgment would indisputably be timely (and would clearly not involve any unfairness to the Perry plaintiffs), as the appeal on the merits is still pending, and Walker has only now revealed the information requiring his disqualification.

It's time to vacate Walker's Prop 8 ruling and put a fitting end to his rampant course of misconduct.

Edward Whelan is president of the Ethics and Public Policy Center and is a regular contributor to NRO's Bench Memos blog.

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