Thursday, December 2, 2010

Proposition 8 Appeal in Ninth Circuit: Updates and Recusal Controversies

Perry v. Schwazenegger, in which a federal district judge found California's Proposition 8 unconstitutional, is on appeal to the Ninth Circuit, under an expedited schedule and including the issue of the standing of the proponents.  

The three judge panel, pictured below, was announced by the Ninth Circuit Monday. 


The proponents quickly filed a motion to disqualify Judge Reinhardt alleging:

Judge Reinhardt is married to Ramona Ripston, the long-time Executive Director of the
ACLU of Southern California.  As Executive Director, Ms. Ripston is “responsible for all phases of the organization’s programs, including litigation, lobbying and education.”
Under Ms. Ripston’s leadership, “ACLU/SC has taken a lead role” in what it calls “the fight to end marriage discrimination” in California.

The motion relies on statutory grounds for disqualification and does not make a due process argument relying on Caperton v. Massey Coal Co.

Judge Reinhardt quickly issued an order denying the motion.  The order in full provides:

Before: REINHARDT, Circuit Judge:
I have before me defendants-intervenors-appellants’ motion to disqualify myself from this appeal. I have not hesitated to recuse from cases in the past when doing so was warranted by the circumstances. See Khatib v. County of Orange, 622 F.3d 1074, 1074 (9th Cir. 2010); Mohamed v. Jeppesen Dataplan, Inc., 586 F.3d 1108, 1109 (9th Cir. 2009); Buono v. Kempthorne, 527 F.3d 758, 760 (9th Cir. 2008); Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 913, 914 (9th Cir. 2003); Valeria v. Davis, 320 F.3d 1014, 1015 n.** (9th Cir. 2003); Alvarez-Machain v. United States, 284 F.3d 1039, 1039 n.1 (9th Cir. 2002); Coalition for Econ. Equity v. Wilson, 122 F.3d 692, 711 (9th Cir. 1997).

Here, for reasons that I shall provide in a memorandum to be filed in due course, I am certain that “a reasonable person with knowledge of all the facts would [not] conclude that [my] impartiality might reasonably be questioned.” United States v. Nelson, 718 F.2d 315, 321 (9th Cir. 1983); see also Sao Paulo State of the Federated Republic of Brazil v. Am. Tobacco Co., 535 U.S. 229, 233 (2002) (per curiam). I will be able to rule impartially on this appeal, and I will do so. The motion is therefore DENIED.

The Ninth Circuit announced in a press release that the panel has "given consent for live broadcast of the proceeding, which is scheduled to air on C-SPAN. In addition, the court will distribute a live audio/video feed from the courtroom to remote viewing locations across the country, including some of the nation’s top law schools."

The Ninth Circuit has also established a special website for the case.


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