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Did Prop 8 Judge Have an Ethical Duty to Disclose His Relationship?

by Professor Will Huhn on April 26, 2011

in Constitutional Law,Equal Protection,Wilson Huhn

Attorneys for supporters of Prop 8, the California same-sex marriage ban, have filed a motion asserting that the presiding judge, Vaughn Walker, should have disclosed that he was in a gay relationship – and the fact that he did not reveal this means that his decision striking down Prop 8 should be overturned.

Earlier this morning Lisa Leff of the AP posted Judge's Relationship at Issue in Gay Marriage Case in which she reports that attorneys opposing same-sex marriage are challenging the judge's ruling on the ground that he was biased – that he stood to personally gain from a decision striking down the law.  According to Leff they have been careful to assert that the judge should be disqualified not because of his sexual orientation, but rather because of his long-term committed relationship with another man and his failure to disclose it before ruling on the case.

Ed Whelan of National Review Online filed a post entitled Motion to Vacate Walkerâs Anti-Prop 8 Judgment for Failure to Recuse, which includes a lengthy excerpt from the motion. 

Disqualification of federal judges is governed by 28 U.S.C. 455.  The provisions that are relevant to this case are Sections 455(a) and 455(b)(4) which state:

(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

Subsection (e) of the same law governs disclosure of facts relating to disqualification.  It provides:

(e) No justice, judge, or magistrate judge shall accept from the parties to the proceeding a waiver of any ground for disqualification enumerated in subsection (b). Where the ground for disqualification arises only under subsection (a), waiver may be accepted provided it is preceded by a full disclosure on the record of the basis for disqualification.

 The Prop 8 opponents contend that subsection 455(e) means that even if Judge Walker did not intend to marry, that his committed, long-term relationship with another man gave them reasonable grounds to question his impartiality under subsection 455 (a), and therefore that fact had to be disclosed.

This is a difficult question.  On the one hand, we have a right to expect our judges to be unbiased, and ideally they would never be personally affected by their own rulings.  On the other hand, to some extent nearly every judicial ruling affects other people in society, including the judges themselves.  Election disputes – interpretations of the tax law – shareholder rights – custody cases – all of these may affect judges to a greater or lesser degree.

This problem is even more difficult to untangle in constitutional cases where people's fundamental rights are at stake, and is particularly difficult in discrimination cases.  In these kinds of cases, the more odious the law is the greater the invasion of the judge's individual rights, and the broader the scope of the discrimination the broader would be the corresponding scope of judicial disqualification.  If Clarence Thomas had been serving on the Supreme Court in 1967 should he have recused himself from participating in the case of Loving v. Virginia?  Should all African-Americans have been ethically disqualified from issuing rulings in the Dred Scott case (declaring that all African-Americans were not citizens) or West Virginia v. Strauder (striking down a law that prohibited African-Americans from serving on juries) or Brown v. Board of Education (eliminating racial segregation in the public schools)?  

Simply because a judge is a member of a group whom the law discriminates against cannot be a reason to call into question that person's "impartiality" in the ethical sense.  To constitute grounds for disqualification there must be more of a personal stake in the outcome beyond a generalized interest to promote the interest of one's group. 

Leff quotes Professor Charles Geyh as stating that the fact of the relationship, without more, is not enough to disqualify Walker:

Indiana University Law School professor Charles Geyh, an expert on judicial ethics, said that without more evidence that Walker stood to personally benefit if same-sex marriages were legal in California, he found it difficult to imagine that the particulars of the judge's same-sex relationship provided gay marriage opponents with an avenue for reversing his ruling.

In Leff's article Geyh does not state what set of circumstances would have required Walker to recuse himself from the case.  Presumably if Walker intended to marry and Prop 8 stood in his way he should have disqualified himself.  Short of that … I guess we'll see!


larry d. April 26, 2011 at 7:16 am

This one seems pretty inane. The Kagan/pending ObamaCare situation seems a lot more interesting.

Tom April 27, 2011 at 8:32 am

It is definitely a hail Mary pass by the Prop 8 supporters legal team. Can a black judge hear a racial discrimination case? Can a divorced judge preside over a divorce? Can a Latino American preside over a immigration case? Would a non-gay married judge be dismissed from a same sex marriage case because he is in a straight marriage? They are all shaky scenarios that have no merit like this challenge. The judge's duty and ethics is what counts.

Hlloona June 4, 2011 at 1:41 pm

@ Tom-The questions you should be asking are. Can a so-called black judge preside over a racial discrimination case against hisself? Can a divorced judge preside over his own future divorce? Can a Latino American preside over his immigration case? Should a long term relationship homosexual judge be ruling in a long term homosexual relationship case, which in effect is his own case? Secondly, why didn't Walker reveal this crucial fact relevant to the proponents case until after his ruling? The answer is painfully obvious. Motion to vacate, granted !

The Reverend April 27, 2011 at 2:17 pm

What Tom said.

The gay equality deniers will go kicking and screaming all the way….but this latest salvo is really embarassing.

Quidpro April 27, 2011 at 5:37 pm

That the Professor and others asks the question is evidence of the appearance of impropriety

Dan S. April 27, 2011 at 9:42 pm

This basic issue was discussed here:

If perceived appearances of impropriety are all they can come up with after another year of digging, they aren't going to convince anyone outside their own camp that Walker's personal motives played any critical role in his decision.

Dave April 27, 2011 at 10:38 pm

I think a better example would be an African-American judge who has hidden the fact that he is African-American. Would you want him hearing a racial discrimination case?

P.O.L. April 28, 2011 at 7:59 am

I think it’s a close case. To me, the issue is that the relief sought and granted could directly impact the judge. Specifically, rather than seeking an injunction mandating issuance of marriage licenses to the individual plaintiffs in the suit, the plaintiffs sought and obtained an injunction prohibiting state officials from enforcing Prop. 8. The relief granted clearly has a direct impact on non-parties, and not simply as precedent. The question is whether the judge actually falls within the directly impacted non-parties. I think disclosure is warranted in close cases, although I find it hard to believe that the defenders of Prop. 8 didn’t know about this earlier.

To answer the professor’s questions: if Justice Thomas resided in Virginia with Virginia, I think disqualification in Loving would be appropriate, as would it be if a white justice resided in Virginia, had a long-term live-in partner of a different race, and a desire to marry. Similarly, if any justice lived in or had children in the Topeka school district, disqualification in Brown would be appropriate. I don’t recall the procedural posture of Dred Scott, but I’m almost certain that the relief sought was not a declaration that blacks could not be citizens, so I don’t think any justice would be disqualified on racial grounds.

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