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No. 11-16577 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT __________________________ KRISTIN M. PERRY, et al., Plaintiffs-Appellees v. EDMUND G. BROWN, Jr., et al. Defendants and DENNIS HOLLINGSWORTH, et al. Defendants-Intervenors-Appellants ___________________________________ On Appeal From the United States District Court for the Northern District of California No. CV-09-022292 JW (Honorable James Ware) MOTION FOR LEAVE TO FILE BRIEF OF AMICUS CURIAE THE BAR ASSOCIATION OF SAN FRANCISCO IN SUPPORT OF PLAINTIFFS-APPELLEES BINGHAM MCCUTCHEN LLP David M. Balabanian (SBN 37368) Frank Busch (SBN 258288) Elizabeth Benson (SBN 268851) Kathryn Conard (SBN 275094) Three Embarcadero Center San Francisco, California 94111 Telephone: 1.415.393.2000 Facsimile: 1.415.393.2286 Attorneys for Amicus Curiae The Bar Association of San Francisco

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TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE THAT The Bar Association of San Francisco hereby moves the Court for leave to file an amicus curiae brief pursuant to Federal Rule of Appellate Procedure 29(b), in support of the position of the PlaintiffsAppellees and rejecting the claim of Defendants-Appellants that former Chief Judge Walker be disqualified.1 The brief urges that the District Courts order denying such disqualification be affirmed. In accordance with Federal Rule of Appellate Procedure 29(c)(5), BASF affirms that BASFs pro bono counsel, Bingham McCutchen LLP, authored the brief; neither BASF nor BASFs counsel contributed money that was intended to fund preparing or submitting the brief; and, no other person contributed money that was intended to fund preparing or submitting the brief. I. IDENTITY AND INTERESTS OF PROPOSED AMICUS The Bar Association of San Francisco (BASF) is a nonprofit voluntary membership organization of attorneys, law students, and legal professionals in the San Francisco Bay Area. Founded in 1872, BASF enjoys the support of more than 7,300 individuals, law firms, corporate legal departments, and law schools. Defendant-Intervenors Dennis Hollingsworth, Gail J. Knight, Martin F. Gutierrez, Mark A. Jansson, and Protectmarriage.Coms Motion to Vacate Judgment, filed April 25, 2011, is docket number 768 in the case below. Although BASF does not have access to the excerpts of record on appeal, this document is properly part of those excerpts under Circuit Rule 30-1.4(c)(ii).
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Through its board of directors, its committees, and its volunteer legal services programs and other community efforts, BASF has worked actively to promote and achieve equal justice for all and oppose discrimination in all its forms, including, but not limited to, discrimination based on race, sex, disability, and sexual orientation. BASF provides a collective voice for public advocacy, advances professional growth and education, and attempts to elevate the standards of integrity, honor, and respect in the practice of law. The members of BASF have a duty to maintain the respect due to the courts of justice and judicial officers. Cal. Bus. & Prof. Code 6068(b); see also ABA Model Rules of Professional Conduct, Preamble ([A] lawyer should further the publics understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority.). The members of the BASF have a duty to maintain and advance the publics confidence in the rule of law. As explained in the brief submitted herewith, Appellants arguments threaten to undermine the publics confidence in the rule of law by seeking inappropriate application of judicial disqualification rules. BASF has a strong interest in resisting this effort. BASFs attached proposed brief is desirable within the meaning of Rule 29 because this case presents a question of exceptional importance, namely: under

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what circumstances and on what proof can a judge who is a member of a minority group be disqualified because of the possibility that he or she may derive some future benefit from his or her ruling in a case involving the rights of that group. II. CONCLUSION BASF satisfies all the criteria set forth in Federal Rule of Appellate Procedure 29(b). As demonstrated above, BASF has a concrete interest in the outcome of this appeal. The brief provides the useful perspective of BASF as an organization dedicated to maintaining the publics confidence in the court system, and in the rule of law, which will be directly affected by the Panels decision. For these reasons, BASF respectfully requests that this Court grant this Motion for Leave to File Brief of Amicus Curiae in Support of Plaintiffs-Appellees.

DATED: November 8, 2011

Respectfully submitted, BINGHAM McCUTCHEN LLP

By: /s/ David M. Balabanian David M. Balabanian Attorneys for Amicus Curiae The Bar Association of San Francisco

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No. 11-16577 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT __________________________ KRISTIN M. PERRY, et al., Plaintiffs-Appellees v. EDMUND G. BROWN, Jr., et al. Defendants and DENNIS HOLLINGSWORTH, et al. Defendants-Intervenors-Appellants ___________________________________ On Appeal From the United States District Court for the Northern District of California No. CV-09-022292 JW (Honorable James Ware) BRIEF OF AMICUS CURIAE THE BAR ASSOCIATION OF SAN FRANCISCO IN SUPPORT OF PLAINTIFFS-APPELLEES AND AFFIRMANCE BINGHAM MCCUTCHEN LLP David M. Balabanian (SBN 37368) Frank Busch (SBN 258288) Elizabeth Benson (SBN 268851) Kathryn Conard (SBN 275094) Three Embarcadero Center San Francisco, California 94111 Telephone: 1.415.393.2000 Facsimile: 1.415.393.2286 Attorneys for Amicus Curiae The Bar Association of San Francisco

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TABLE OF CONTENTS Page I. II. INTRODUCTION AND STATEMENT OF INTEREST .............................1 ARGUMENT..................................................................................................1 A. Appellants Premise Is False and Their Methodology Flawed ............1 1. 2. 3. B. III. The Record Does Not Establish Any Basis For Disqualification..........................................................................2 Statistics Cannot Substitute For Evidence .................................4 Adopting Appellants Novel Statistical Argument Would Be Unworkable ..........................................................................5

Reversal would erode, not support, confidence in the courts. .............6

CONCLUSION...............................................................................................7

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TABLE OF AUTHORITIES Page(s) STATUTES 28 U.S.C. 455.................................................................................................................. 3, 4 455(b)(4) ............................................................................................................ 2 455(e) ................................................................................................................. 4 California Business & Professions Code 6068(b)............................................................................................................... 1 OTHER AUTHORITIES Circuit Rule 30-1.4(c)(ii). .......................................................................................... 2

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I.

INTRODUCTION AND STATEMENT OF INTEREST As California lawyers, members of the Bar Association of San

Francisco (BASF) have a duty under California Business & Professions Code 6068(b) to maintain the respect due to the courts of justice and judicial officers. With that duty comes the responsibility and right to speak out in defense of the courts and judicial officers when they are unjustly criticized. BASF submits this Memorandum in discharge of that responsibility and in exercise of that right. II. ARGUMENT A. Appellants Premise Is False and Their Methodology Flawed Appellants do not deny that this case was randomly assigned to Judge Walker or that he was legally bound to accept it unless he was properly subject to disqualification. Nor do they claim that gay judges in general, or Judge Walker in particular, are disqualified from sitting on this case by reason of their sexual orientation. [W]e are not suggesting, they told the district court, that a gay or lesbian judge could not sit on this case. Motion at 5:18-19 (emphasis in original).1

Defendant-Intervenors Dennis Hollingsworth, Gail J. Knight, Martin F. Gutierrez, (Footnote Continued on Next Page.) 1

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Appellants also recognize and accept the authority of the many cases that have held that judges who are members of racial or religious minorities may rule on questions affecting the rights of their groups. Appellants Opening Brief (AOB) at 44-46. Indeed, they say that nothing in these [recusal] statutes or our arguments would prevent a gay or lesbian judge from sitting in judgment in any sexual-orientation case where no reasonable observer could conclude that the . . . judge might have a direct, personal interest in the outcome of the proceedings. AOB at 18. 1. The Record Does Not Establish Any Basis For Disqualification

The sole basis of appellants argument, then, is their claim that a reasonable person might believe that Judge Walker had a direct, personal interest in the outcome of this case, viz that he intended to marry. Appellants admit that the record lacks all the relevant facts required for a determination under 28 U.S.C. 455(b)(4) that Judge Walker had an interest that could be substantially affected by the outcome of the proceeding. See AOB

(Footnote Continued from Previous Page.) Mark A. Jansson, and Protectmarriage.Coms Motion to Vacate Judgment (Motion), filed April 25, 2011, is docket number 768 in the district court. Although BASF does not have access to the excerpts of record on appeal, the Motion is properly part of those excerpts under Circuit Rule 30-1.4(c)(ii).

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at 48. They are thus in the odd position of saying that, although the record does not supply all the relevant facts that this Court would itself need to have to determine that Judge Walker had an interest in the outcome of the case, it should nevertheless order his disqualification under 455(a) on the sole ground that a reasonable person might think he had such an interest. They base their claim of direct personal interest on four elements: (a) Judge Walkers findings regarding the desirability of marriage for same-sex couples, (b) his long-term same-sex relationship, (c) his failure timely to disclose that relationship, and (d) what they call his continued failure to disclose his interest in marrying if permitted to do so. AOB at 48 and 18.2 Basing a claim of disqualification on Judge Walkers past or present failure to disclose is a boot-strap. There would be nothing to disclose unless the fact allegedly withheld was itself disqualifying. As the district court aptly observed: [T]he requirement of disclosure on the record is conditional on the finding that there was a valid ground for disqualification under Section 455(a). ER 17 n.23.
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In the district court, appellants also cited Judge Walkers failure to unequivocally disavow[] any intent to marry as a reason why it must be presumed that he has a disqualifying interest. Motion at 10:5-7.
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The only disclosure required by 28 U.S.C. 455 is disclosure of a (Footnote Continued on Next Page.)
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2.

Statistics Cannot Substitute For Evidence

This leaves, as support for appellants claim, only: (a) the fact that Judge Walkers findings extol marriage and identify [its] numerous benefits and (b) the fact of his long-term relationship. AOB at 29. On that slim basis, they assert: [A]ll of the available evidence . . . strongly suggests that [Judge Walker] did, in fact, wish to marry if permitted to do so. AOB at 48. Unsurprisingly, appellants cite no authority for the proposition that a judges finding in the case before him or her that the plaintiffs have been denied valuable rights implies that the judge intends to claim those rights personally. Nor is there support for the statistical methodology that appellants employ to convert Judge Walkers long-term relationship into proof of an intent to marry. That Judge Walker is statistically likely to marry his partner if his injunction is upheld on appeal, they say, alone constitutes reasonable grounds for doubting Judge Walkers impartiality. AOB at 29, n. 5. Appellants assertion that disqualification turns on the statistical likelihood that a judge will receive a benefit created by his or her ruling ignores the many cases cited by both appellants and appellees in which women and members (Footnote Continued from Previous Page.) disqualifying conflict under subsection (a) when securing a waiver. See 28 U.S.C. 455(e).

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of racial and religious minorities were found to be appropriate adjudicators of questions affecting those groups, without inquiry into the chances that they might themselves someday enjoy or claim a benefit from their rulings. Indeed, as shown in appellees Memorandum, courts have denied disqualification in many cases in which judges or their families might someday benefit from a decision affecting a racial or religious minority to which they belonged. Appellees Brief at 14-17. 3. Adopting Appellants Novel Statistical Argument Would Be Unworkable

Appellants offer no guidance as to how their statistical methodology would work. How great would the likelihood of personal benefits have to be to justify disqualification, or to require disavowal of those benefits? How reliable would the statistical evidence have to be, and how and by whom would it be confirmed or tested? How would statistical evidence be weighed against actual evidence of a judges intention, such as that available in this case? Putting appellants methodology to work in other cases produces bizarre results. How pervasive would gender-based discrimination have to be to require a judge to be disqualified because he or she either has, or is statistically likely to have, a daughter? What level of public hostility against members of a racial or religious group would justify a suspicion that a judge who belonged to it was likely to find that group entitled to legal protection? How common would

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securities class actions have to be to create a statistical case for disqualifying a stockholding judge from a case which involved setting the standards for class certification in such cases? Against appellants statistical proof of Judge Walkers intent to marry if permitted to do so is the only actual proof on that subject--namely, the fact that he and his partner did not marry in 2004 or 2008, when they were permitted to do so. Though appellants deny it, their argument rests on the assumption that gay judges are somehow less able to render unbiased decisions in cases involving issues that might someday affect them personally than are heterosexual judges who are women, African-Americans, Jews, Catholics, Mormons, or disabled persons-all of whom have been found qualified to rule on cases that could advance the interests of members of their group, including themselves. For this discriminatory premise, appellants offer no proof, statistical or otherwise. B. Reversal would erode, not support, confidence in the courts. Appellants say that reversal is necessary to preserve public confidence in our courts. AOB at 52-54. The opposite is true. Reversing the district court requires endorsing the proposition that gay
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judges cannot abide by their oaths and must be disqualified unless they do something no judge ever has been required to do--commit to forever forgo any potential benefit from their rulings. That result could not possibly serve appellants declared purpose of upholding public confidence in the courts. It would, inevitably, be understood as confirming that judges decide cases on the basis of their gender, sexual orientation or membership in ethnic or religious groups, not the facts and the law. There would be no way to confine the resulting taint to gay judges. III. CONCLUSION However this case is ultimately resolved, appellants say, a large segment of the population will be unhappy with the result. AOB at 53-54. To that inevitable unhappiness, appellants would add the undermining of public confidence in the judiciarys fairness and impartiality. The District Courts order should be affirmed.

DATED: November 8, 2011

Respectfully submitted, BINGHAM McCUTCHEN LLP

By:

/s/ David M. Balabanian David M. Balabanian Attorneys for Amicus Curiae The Bar Association of San Francisco
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