Previously when discussing the Pro-Proposition 8 forces motion to vacate Judge Walker’s ruling on the grounds he should have disqualified himself, I riffed off “the old saying, attributed to Emerson, that “if you strike at the King, you have to kill him” and that continues with this post. The opponents of Proposition 8 struck back, a few weeks ago. I meant to take it apart at the time, but didn’t find the time to squeeze it in. And now the proponents have put in their reply brief and the metaphor that comes easily to mind is that of skilled fighter watching his opponent swing unwisely, using that energy against their opponent.
But it helps to talk for just a moment about Anti-Proposition 8 forces’ Opposition to the motion. It was one of the most over-the-top filings I had seen in a while. As I said a bit back:
There is an old saying among lawyers, and while there are a lot of variations in how it goes, most versions say something close to this: “If the facts are against you, argue the law. If the law is against you, argue the facts. If both are against you, pound the table.”
And evidently they didn’t feel too good about the facts or the law in this case as they set the hyperbole to 11 right off the bat:
Proponents’ motion to vacate this Court’s judgment is an utterly baseless attack on the integrity of the judicial system, on then-Chief Judge Walker, and on all gay and lesbian jurists who faithfully perform their duties and decide cases across this country each day.
Now it is probably fair to call this an attack on Walker, but the entire legal system? And indeed how their motion can be interpreted as an attack on “all gay and lesbian jurist” when their brief specifically said “[i]t is important to emphasize at the outset that we are not suggesting that a gay or lesbian judge could not sit on this case” is beyond me. Except if you read it you will see they repeatedly argue (and without basis) that despite their statements to the contrary, that was really based on Walker’s status as a gay man. They were literally asking the judge to ignore their words, ignore their arguments, etc. and pretend they had argued something they didn’t. That can be done, but you have to have better evidence of that intention than just your hallucination of their motives. And with the Anti-Proposition 8 forces having put all that energy into that thrust, in a very kung-fu sort of way the Proponents of Proposition 8 used that attack against their attackers, repeatedly correcting their attempts to mischaracterize their position against them.
The other thing going on here is that typically lawyers reserve some of their best arguments for the reply brief, because bluntly the other side has little chance to respond. Indeed, some will save it for oral argument and sandbag the other side with it. They might yet have reserves with which to sandbag the Anti-Proposition 8 forces, but they gave them a few solid wallops in the reply brief (to mix my metaphors, some). Case in point, is this opening line from the proponents:
In our opening motion papers, we posited that “[s]urely no one would suggest that Chief Judge Walker could issue an injunction directing a state official to issue a marriage license to him.” … We stand corrected. For Plaintiffs argue in response that even “iron-clad proof of Judge Walker’s desire to marry” his partner “would [provide] absolutely no basis for questioning his impartiality in this case.”
And this isn’t a situation where that concern is hypothetical. The judge issued an injunction applying to all gay couples in the entire state. As we saw in the Florida Obamacare case, this was not the ordinary approach. The ordinary approach was to grant a declaratory judgment and presume the government would obey the law—an easy presumption to make since the government offered virtually no defense of the law. An injunction would only issue when and if the officials disobeyed the law. Further the injunction would only be given to the immediate parties to the case. Yes, it would have the effect of making gay marriage legal for all persons similarly situated to the plaintiffs, but only because the state would presumptively follow the precedent.
By issuing a statewide injunction applying to all gay couples, that meant that if the ruling was upheld, and the stay is lifted, Judge Walker could go to a justice of the peace, and request that this person marry him to his long-term same-sex partner. And if that JP refused, the Judge could then go back to the federal court and move that the Justice of the Peace be held in contempt of his own order. Indeed, if he was not retired, according to the Anti-Proposition 8 forces, he could sit in judgment in the contempt proceedings.
But for the best counter, it is hard to beat this one. They argue that if the Judge doesn’t have an interest in the outcome of the case, then the original plaintiffs did not have standing. Yes, really.
First they point out that there is an obvious distinction between gay persons who are and are not in long-term committed relationships.
Plaintiffs insist that there is no meaningful distinction for purposes of marriage between a gay person in a “long-term committed relationship” and any other gay person, and that any effort to draw such a distinction would present an “intractable line-drawing problem[.]”… But Plaintiffs have consistently drawn precisely this common-sense line throughout this case, repeatedly emphasizing that the marital right they seek to vindicate is that of “two individuals of the same sex who have spent years together in a loving and committed relationship.”
And for the killer quote, they point out that
Judge Walker has even gone so far as to say that the committed long-term relationships of Plaintiffs in this case are marriages…. (“[P]laintiffs ask California to recognize their relationships for what they are: marriages.”).
And then they twist the knife:
Indeed, had Plaintiffs alleged only that they are gay and lesbian, and as such, had merely “speculate[d]” that they “might benefit from the right to marry in the future,” … their suit would have been dismissed for lack of standing.
And they answer the common argument of (paraphrase) “if he is so interested in marrying his lover, why didn’t he do it when gay marriage was briefly legal in California (before Proposition 8 went into effect)” very handily:
Plaintiffs attempt to cast doubt on the likelihood of Judge Walker’s interest in marriage by noting that “he apparently made no effort to do so” when same-sex marriage was briefly permitted in California in 2008…. Plaintiffs fail to mention that they, too, did not marry during that period, although they, like Judge Walker, had been in their committed relationships for many years by then…. Nor do Plaintiffs mention the evidence they presented at trial projecting that nearly two-thirds of committed same-sex couples in California – 64 percent – will get married if permitted to do so.
And then they go into the work of tearing apart the alleged precedents the Anti-Proposition 8 forces cited. As we have seen before the citations bordered on misleading:
Plaintiffs place their greatest reliance upon United States v. Alabama, 828 F.2d 1532, 1541-42 (11th Cir. 1987), but that case strongly supports disqualification here. Alabama involved a class action to desegregate the State’s institutions of higher learning, and the certified class “include[d] all [black] children ‘who are eligible to attend or who will become eligible to attend the public institutions of higher education in the Montgomery, Alabama area.’ ”… The trial judge had two children who, “like all young black Alabamians,” were “technically members of this class and possess an interest in the outcome of this litigation.”
But the judge did not recuse himself because there was no reason to believe that his children would attend those schools:
Indeed, the judge squarely acknowledged that he would have to recuse under Section 455 “if I know that any minor child residing in my household has an interest that could be substantially affected by the outcome of this proceeding.” United States v. State of Alabama, 571 F. Supp. 958, 962 (N.D. Ala. 1983). Accordingly, unlike in this case, the trial judge in Alabama took pains to disclose the relevant facts: “Neither my sixteen-year old son nor my nine-year old daughter has indicated to me any interest in attending either of the colleges or universities involved in this action.” United States v. State of Alabama, 574 F. Supp. 762, 764 n.1 (N.D. Ala. 1983). Obviously, if the judge’s 16-year-old child had expressed an interest in attending one of the universities at issue, disqualification would have been required because the child’s interest in the case would not be “remote, contingent and speculative,” but rather direct and substantial.
They also address In re City of Houston, 745 F.2d 925, 931 (5th Cir. 1984), a vote dilution case, where a black woman was allowed to sit in the case:
By the time the action was reassigned to the trial judge at issue, however, “the City had changed its method of election,” thus mooting the voting rights issue, and the only remaining question to be decided concerned the “the availability of attorneys’ fees to any of the parties to the action.” Id. at 926. The case was reassigned to a black trial judge for consideration of the fee petition, and the City sought her recusal because she was a member of the class of registered black and Hispanic voters in Houston. The trial judge, noting that the standard for determining the appearance of partiality under Section 455(a) requires disclosure of “all the facts of a situation,” deemed it “incumbent upon [herself] to acknowledge and deal with the facts of [her] particular situation.” Leroy v. City of Houston, 592 F. Supp. 415, 418 n.5 (S.D. Tex. 1984). Accordingly, she disclosed on the record all relevant “personal” facts, including her past and current street addresses and her and her husband’s voter registration status. Id. at 418. The trial judge rejected the recusal motion, explaining that no “appearance of impropriety exists” because (i) during the period when the case was tried, she resided in “a non-black and non-Mexican-American precinct where because of [her] minority status [her] vote was not being diluted,” and (ii) “the only question before [her] is whether an award of attorney’s fees would be appropriate,” and she therefore had no personal interest in the outcome of the case.
In other words the case was over except for the issue of attorneys fees, and to the extent that she might be motivated to reward lawyers who helped “her side” and punish the opposition, she was not even harmed by the alleged dilution in the first place (because it was done by neighborhood). And not for nothing, but a white judge would be allegedly benefitting from the alleged unconstitutional dilution of the black and Hispanic vote, too (unless he happened to live in a “majority minority” neighborhood), which also answers the specious argument that these rules would only affect minorities (and women).
And they get at a deeper philosophical point, too. If the Anti-Proposition 8 forces win on this point, they will create a special rule for “minorities” (and women) where if the interest touches even tangentially on their minority status that immunizes them from the ordinary rule that a person shall not be a judge in their own case.
They also go through the actual application of their interpretation of the rules to landmark cases, which includes declaring that a person of any race, interested in marrying a person of another race, would not be able to sit in Loving v. Virginia. And funny, I agree. And indeed they point out that the Anti-proposition 8 forces missed the import of one of their citations of a landmark case:
Plaintiffs make passing reference to one other landmark case, … but they completely miss its significance to the issue before the Court. In United States v. Virginia, 518 U.S. 515 (1996), the question before the Court was whether the Virginia Military Institute (“VMI”) could continue to accept only male cadets. Both of the Court’s female justices and six of the Court’s seven male justices sat on the case as a matter of course because, even though the dispute concerned a claim of gender discrimination, none of the sitting Justices had any personal interest in the outcome. Justice Thomas, however, recused – not because he was a male, but rather because his son attended VMI, and as a result, had a direct and substantial personal interest in the outcome of the case. The same is true here.
You have to think the Anti-Proposition 8 lawyers are feeling a little embarrassed by that mistake.
Then they address the issue of timeliness. It is correct to say that if you know that a judge should be disqualified you are not allowed to just sit on that information, wait for the outcome of the case and then if you lose—and presumably only if you lose—bring up the disqualification issue. But their point is fairly obvious. The Anti-Proposition 8 forces only could show they knew the judge was gay—but not that he was in a long term relationship. So of course they are time-barred from raising the mere fact he was gay as a cause for disqualification, but not from bringing up the long term relationship.
Further, the Anti-Proposition 8 forces hypocritically complained on one hand that this would allow plaintiffs to go snooping into a judge’s private life, but also holding them responsible for not knowing he was in a long term relationship. Their approach would impose on parties a duty to investigate, which I believe everyone would find distasteful.
And the proponents finish strongly as well, on the issue of whether the decision should be vacated:
Finally, because this case has been “closely followed by the public,” … Plaintiffs somehow conclude that “[v]acatur is therefore wholly unnecessary to bolster public confidence” in the resulting judgment.... With all due respect, Plaintiffs have it precisely backwards. The great public importance of this case and the highly controversial nature of the dispute make it all the more vital that it be decided at every stage by judges whose impartiality cannot be reasonably questioned.
It must have taken a great deal of restraint not to end with: “duh.”
[Posted and authored by Aaron Worthing.]