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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!