Bench Memos

Judge Reinhardt Is Obligated To Disqualify Himself from Prop 8 Appeal

Judge Stephen Reinhardt, the arch-activist selected to be one of the three members of the Ninth Circuit panel hearing the appeal in the Prop 8 case, is obligated to disqualify himself from participation in the case.

Why?

One predicate fact, insufficient in itself, is that Reinhardt is the husband of Ramona Ripston, the longtime executive director of the ACLU of Southern California. I need not and do not argue here that the corporate affiliation between the ACLU of Southern California and the ACLU Foundation of Northern California, which has filed an amicus brief on appeal, requires Reinhardt’s disqualification. [Update: But see this follow-up post, which discusses the role of the ACLU of Southern California in the district-court proceedings in this very case.] Nor do I argue that Ripston’s financial contribution to the No on 8 campaign (which may or may not have come out of joint funds) compels Reinhardt’s disqualification.

Even though it may well provide a sufficient basis on its own, I also do not rely on the fact that Ripston publicly celebrated Judge Vaughn Walker’s ruling against Prop 8, the very ruling on appeal in this case:

“This decision affirms that in America, we don’t treat people differently because of their sexual orientation,” said Ramona Ripston, executive director of the American Civil Liberties Union of Southern California, in a statement. “We rejoice at today’s decision but there’s a long road ahead toward establishing true marriage equality for same-sex couples.”

Rather, I rely on the fact, reported months ago in this California Lawyer article, that Ripston consulted with the plaintiffs’ lawyers about the decision to bring this very case:

Earlier that month [May 2009], [Theodore] Boutrous [of Gibson, Dunn & Crutcher], [Chad] Griffin [board president of the American Foundation for Equal Rights, the group sponsoring the lawsuit], and [AFER board member Bruce] Cohen had opened confidential discussions with [Lambda Legal’s Jennifer] Pizer and Jon Davidson, Lambda’s legal director; Ramona Ripston, executive director of the ACLU of Southern California; and Mark Rosenbaum, its legal director.

Pizer would confirm only that the talks took place, though in a later interview she said it was clear that Gibson Dunn’s lawyers were thinking seriously about filing a federal case. Rosenbaum also declined to reveal the content of the confidential discussions. After Boutrous listened to their views, he says, he “spent hours and hours doing my own analysis, because we take those things very seriously.” In the end, Boutrous says, he felt even more strongly that filing was the right thing to do.

The Code of Conduct for United States Judges requires that a judge “disqualify himself … in a proceeding in which the judge’s impartiality might reasonably be questioned.” How is it possible that Reinhardt’s impartiality in this case couldn’t reasonably be questioned when his wife took part in confidential discussions with plaintiffs’ lawyers over whether they should pursue the case? And, no, it’s no answer to say that Reinhardt is already so biased in favor of plaintiffs that his wife’s role couldn’t make a difference.

In fairness to Reinhardt, he may not yet be aware of Ripston’s consulting role. But once he becomes aware, how can he not disqualify himself? And isn’t Boutrous, as an officer of the court, obligated to disclose his consultation with Ripston and to move for Reinhardt’s disqualification?

Addendum: It may well be that Ripston and her legal director, Mark Rosenbaum, tried to persuade plaintiffs’ counsel not to file the challenge to Prop 8. But the substance of Ripston’s advice is immaterial to the disqualification question. What matters is that she played a consulting role to plaintiffs’ counsel in this very case.

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