Vaughn Walker
Openly gay Judge Vaughn Walker won’t be in the courtroom next Monday (June 13)—at least not physically. But he’ll certainly be there in name—and so may be U.S. Supreme Court Justice Samuel Alito.
Alito, in response to inquiries from reporters, acknowledged last week that he should have recused himself from a 2009 case he helped decide. The reason? His two children each held about $2,000 in stock in the Disney company, the parent corporation to the ABC network that was a party to the case Alito participated in. Alito, who had recused himself that same year from another case involving Disney, said that, in this case, his staff, which reportedly checks such matters for him, had simply not realized that ABC was affiliated with Disney.
There has been no hue and cry over the revelation and, though this has all come out very recently, there’s been no indication the party against whom Alito voted, in a five-justice majority, plans to file a motion to vacate the ruling. That’s probably because Alito voted against ABC. But Alito’s reaction is an indication of how high he thinks the bar should be set for matters of potential judicial conflict. And that indication comes at an interesting time—just days before a federal judge in San Francisco must consider whether a former colleague, Vaughn Walker, had a conflict of interest when he ruled California’s ban on same-sex marriage to be unconstitutional.
The timing is almost certainly coincidental; Alito was prompted to acknowledge his conflict after probing reporters discovered it.
Alito’s agreement with those reporters—that what appears to be a relatively small and indirect financial interest in the parent company to one of four major networks involved in the case constitutes a conflict of interest—puts the bar for recusal at a difficult height to clear.
Former Chief Justice William Rehnquist did not recuse himself from hearing cases involving Microsoft, although his son was an attorney for Microsoft on a matter not before the court. John Roberts did not recuse himself from participating in a case, Citizens United v. Federal Election Commission, even though a beneficiary of his decision—the U.S. Chamber of Commerce—lobbied for his confirmation as Chief Justice.
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.
Walker, in August 2010, ruled that the constitutional amendment passed by voters to ban legal recognition of marriages between same-sex partners in California violates the federal constitutional guarantees to equal protection and due process. Eight months after that decision, in response to inquiries from reporters, Walker acknowledged being gay and in a 10-year relationship with a man. Also in response to a question from a reporter, Walker said that he did not believe his sexual orientation required him to recuse himself from the case.
Proposition 8 attorney Cooper and his team agree with that—that Walker needn’t have recused himself because he is gay. But they argue that Walker’s relationship with a man was grounds for recusal.
Why?
“Given that Chief Judge Walker was in a committed, long-term, same-sex relationship throughout this case (and for many years before the case commenced),” argued Cooper in his brief, “it is clear that his ‘impartiality might reasonably [have been] questioned’ from the outset.”
But Ted Olson, David Boies, and the team of lawyers who have challenged Proposition 8 through Perry v. Brown (formerly Perry v. Schwarzenegger) say Cooper’s argument is just another way of saying Walker should have recused himself because he is gay.
“If Judge Walker were not gay,” said the Olson-Boies brief, Yes on 8 “Proponents would have no objection to his presiding over this case. Similarly, if Judge Walker were gay and not in a long-term relationship, Proponents could nevertheless speculate that he might benefit from the right to marry in the future. Proponents cannot escape the fact that their motion is, at its core, about Judge Walker’s sexual orientation.”
Here’s what the U.S. Code says regarding the “Judiciary and Judicial Procedure”: a judge should recuse himself or herself “in any proceeding in which his [or her] impartiality might reasonably be questioned” or in any case where the judge “knows that he [or she]… has a financial interest in the subject matter in controversy … or any other interest that could be substantially affected by the outcome of the proceeding….”
For Justice Alito, his children’s $4,000 worth of stock in the parent company of a corporation with a case before him was, in his mind, a “financial interest” meriting recusal. Following the disclosure, he sold his children’s stock in Disney, according to various news reports. And that, according to many legal observers discussing the revelation, puts him in good position to rule on any future case concerning Disney or ABC.
“As a result of the stock sale,” said Legal Ethics reporter Debra Cassena Weiss of the American Bar Association’s ABA Journal, “Alito will be able to participate if the court accepts a new case involving a fine against ABC television stations that aired an NYPD Blue program showing a shot of a woman’s bare buttocks.” The case Alito participated in, FCC v. Fox Television, affected fines against television networks, including ABC, if they allow profanity—even fleeting outbursts—on the air.
Walker’s situation differs from Alito’s in several ways. The biggest difference is that the losing party in Walker’s case, the Yes on 8 proponents, have filed a challenge to Walker’s decision, charging that Walker had a conflict of interest and should have recused himself. They want Chief Judge Ware to vacate Walker’s decision.
The Olson-Boies team argue against the Yes on 8 motion to vacate, noting that Walker and his partner demonstrated no apparent interest in taking advantage of any benefits of marriage when they opted not to marry in California between June and November of 2008. Yes on 8 attorneys argue, in their brief requesting Walker’s decision be vacated, that Walker never told the parties to Perry that he was in a 10-year same-sex relationship and “he has yet to disclose whether he has any interest in marrying his partner” should same-sex marriage become a possibility again in California.
But the Olson-Boies brief argues that if—as Yes on 8 attorneys argued at trial—that allowing same-sex couples to marry would harm heterosexual marriages, then “it would follow from their argument that judges married to a person of the opposite sex would also possess an ‘interest’ warranting recusal.”
“Such a standard,” argued the Olson-Boies team, “is plainly unworkable and unconstitutional.”
It is up to Chief Judge Ware to decide who’s right, after he hears oral arguments on the matter Monday, June 13, in a federal district court in San Francisco. Ware will also hear arguments Monday on a motion by Yes on 8 attorneys to permanently bar the public release of videotapes of the January 2010 trial.
It was on this latter issue—the videotapes—that Ware initially ordered Walker to appear in court Monday. The U.S. Supreme Court had barred Walker from broadcasting the trial proceedings outside the San Francisco courthouse, but he was allowed to broadcast it within the courthouse and to videotape the proceedings for his own use in constructing his decision.
Walker kept the videotapes as part of his own “chamber papers” and, through his attorneys, has said he considers them his property. But he turned the videotapes over to Judge Ware, and Ware has excused Walker from appearing in court Monday.
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I expect judge Ware to yield, on both motions, to the plaintiffs. Furthermore, I don’t see the connection between Alito, and his pseudo recusal of a case he already ruled on, and this scenario about to unravel on Monday.
This is an excellent review, and very up to date, Thanks.
I will address the plaintiffs’ points.
“Similarly, if Judge Walker were gay and not in a long-term relationship, Proponents could nevertheless speculate that he might benefit from the right to marry in the future. ”
ME: Yes, they could have done so, and that speculation would be insufficient to warrant recusal. But arguing what proponents might do if the facts were different is hardly a compelling legal argument.
“it would follow from their argument that judges married to a person of the opposite sex would also possess an ‘interest’ warranting recusal.”
The problem is, if that interest warranted recusal, then that same interest would also have been sufficient to confer standing to Proponent Dennis Hollingsworth, who is married.
“The Olson-Boies team argue against the Yes on 8 motion to vacate, noting that Walker and his partner demonstrated no apparent interest in taking advantage of any benefits of marriage when they opted not to marry in California between June and November of 2008. ”
The plaintiffs in this case demonstrated no apparent interest in taking advantage of any of the benefits of marriage when they opted not to marry in California between June and November of 2008. Indeed, if their failure to “marry” during that period demonstrates their lack of interest, then they did not have standing to bring the suit in the first place.
Very clever, confusing argument from the opposition to “Yes on Prop. 8″ – but if you think through it, as convoluted as it is, you can see the logical error: (or can you?)
QUOTE from article above:
But the Olson-Boies brief argues that “if … allowing same-sex couples to marry would harm heterosexual marriages, then it would follow from their argument that judges married to a person of the opposite sex would also possess an ‘interest’ warranting recusal.”
NOT LOGICAL because marriages between man and woman are NOT the subject matter of why Walker should have recused himself, but because in knocking down Prop 8., he was opening a personal interest for himself, giving himself the CHOICE (whether he wanted it or not) to go into a civil marriage with his partner, or with another partner. And note that his verdict is on hold.