Re: Motion to Disqualify Reinhardt

by Ed Whelan

Prop 8 proponents’ motion to disqualify Judge Reinhardt (which Reinhardt has already denied) is available online here. Its text is a concise ten pages, so I encourage interested readers to read it in full.

The motion covers much of the same ground as my posts on the matter, but it also develops important new factual and legal material. I offer here some commentary, with excerpts.  (Boldfacing in the excerpts is mine.)  

1. The motion highlights how the ACLU of Southern California, under the leadership of Ramona Ripston (Reinhardt’s wife), made the battle against Proposition 8 a signature issue:

Under Ms. Ripston’s leadership, “ACLU/SC has taken a lead role” in what it calls “the fight to end marriage discrimination” in California.  ACLU/SC 2007-2008 Annual Report 24, at http://www.aclu-sc.org/downloads/9/204927.pdf.   ACLU/SC represented several same-sex couples and organizations in In re Marriage Cases, in which the California Supreme Court held that California’s pre-Proposition 8 statutory definition of marriage as the union of a man and a woman violated the State Constitution.  See In re Marriage Cases, 43 Cal. 4th 757, 768-69, 786 (2008).           

Following that decision, ACLU/SC put Proposition 8 “at the forefront of [its] civil-rights agenda, sparing no effort to defeat Prop. 8 [and] challenge its passage.”  ACLU/SC 2008-2009 Annual Report 8, at http://www.aclu-sc.org/documents/view/223.  After Proposition 8’s passage ACLU/SC represented petitioners before the California Supreme Court in Strauss v. Horton, the unsuccessful state-law challenge to the validity of Proposition 8. 46 Cal. 4th 364, 374 (2009). 

The same day the California Supreme Court issued its decision in Strauss, Ms. Ripston issued a public statement on behalf of ACLU/SC, vowing that “[a] renewed effort to overturn Proposition 8 begins today.”  Statement by ACLU/SC Executive Director Ramona Ripston on California Supreme Court Decision (May 26, 2009), at http://www.aclu-sc.org/contents/view/8

2. Quoting the ACLU of Southern California’s own documentation, the motion establishes that Ripston is “responsible for all phases of the organization’s programs, including litigation, lobbying and education.” So Ripston, in addition to her actual personal involvement, had formal responsibility for the ACLU of Southern California’s participation in the district-court proceedings in this case.

3. The motion details and documents the “active role” that the ACLU of Southern California has taken in this case. (See pages 3-4.) New material of interest includes these statements about the appellate process:

Ms. Ripston stated that the district court’s ruling was not the end of the matter, emphasizing that “it’s a long road ahead until final victory.”  ACLU Hails Historic Decision and Urges Efforts in Other States to Ensure Success on Appeal (August 4, 2010), at http://www.aclu-sc.org/releases/view/103036.  Specifically, as one of her colleagues put it in the same public statement, “[i]n order to give this case the best possible chance of success as it moves through the appeals courts, we need to show that America is ready for same-sex couples to marry by continuing to seek marriage and other relationship protections in states across the country.”  Id. (emphasis added).

4. The motion sets forth the applicable legal standard governing the assessment whether a judge’s impartiality might reasonably be questioned:

Section 455(a) requires a judge to “disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”  28 U.S.C. § 455(a).  “The goal of section 455(a) is to avoid even the appearance of partiality,” Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 860 (1988) (quotation marks omitted), and thus “what matters is not the reality of bias or prejudice but its appearance,” Liteky v. United States, 510 U.S. 540, 548 (1994).  In other words, so long as a judge’s impartiality might reasonably be questioned, recusal is required “even though no actual partiality exists … because the judge actually has no interest in the case or because the judge is pure in heart and incorruptible.”  Liljeberg, 486 U.S. at 860 (quotation marks omitted). 

The standard for assessing whether section 455(a) requires disqualification is thus “an objective one” that “involves ascertaining whether a reasonable person with knowledge of all the facts would conclude that the judge’s impartiality might reasonably be questioned.”  Preston v. United States, 923 F.2d 731, 734 (9th Cir. 1991) (quotation marks omitted).  And because of its “fact-driven” nature, analysis “must be guided, not by comparison to similar situations addressed by prior jurisprudence, but rather by an independent examination of the unique facts and circumstances of the particular claim at issue.”  United States v. Holland, 519 F.3d 909, 913 (9th Cir. 2008) (quotation marks omitted).  In performing this analysis, the Court “must bear in mind that … outside observers are less inclined to credit judges’ impartiality and mental discipline than the judiciary itself will be,” and in “a close case, the balance tips in favor of recusal.”  Id. at 912, 914 (quotation marks omitted). 

It then explains (pages 6-8) how the facts of this case require Reinhardt’s disqualification under that standard.