Judge Reinhardt Won't Recuse Himself on Prop 8 Appeal

In response to a motion by advocates of Proposition 8, the same-sex marriage ban, asking for Judge Stephen Reinhardt to recuse himself from Monday's hearing, Reinhardt has denied the request. The request was based on Judge Reinhardt's marriage to Ramona Ripston, the head of the Southern California ACLU, who Prop 8 supporters say has consulted on the case.

(UPDATE 11:05 p.m. To listen to the differing opinions of two legal ethics experts on this, see below.)

Here is the full text of Reinhardt's order denying the motion, retrieved by KQED's Scott Shafer.

Filed order (STEPHEN R. REINHARDT) 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. [7564262]

To read the crux of the argument for Reinhardt's recusal, look at these two posts in the National Review by Ed Whelan, the head of The Constitution, the Courts, and the Culture program at the Ethics and Public Policy Center.

• Judge Reinhardt Is Obligated To Disqualify Himself from Prop 8 Appeal
• Re: Motion to Disqualify Reinhardt

Yesterday Scott Shafer interviewed Stanford professor Deborah L. Rhode, and I talked with UC Hastings professor Geoffrey Hazard, regarding the call for Judge Reinhardt to recuse himself. Both scholars are leading experts in the field of professional legal ethics, and interestingly enough, they had opposite opinions on the Reinhardt matter.

In this clip, Professor Hazard says Reinhardt is not obligated to recuse himself because the law recognizes judges and their spouses as separate legal people, prohibited from discussing legal matters they are involved with. Courts have ruled, Hazard says, that in the absence of evidence to the contrary, the legal assumption is that they have conducted themselves within the law.

But Professor Rhode, in this clip, says that the fact of Reinhardt's marriage is a "clear basis for recusal," as standards under federal law and the judicial code of conduct call for disqualification in any circumstance in which a judge's impartiality may reasonably be questioned. These circumstances specifically include a connection between a judge's spouse to the proceedings.