Judge Refuses to Disqualify Himself in Prop. 8 Case

Judge Stephen Reinha

Sponsors of California’s same-sex marriage ban on Wednesday asked one of the judges from the appeals court panel that will hear arguments on the measure’s constitutionality next week to remove himself from the case.

In papers filed with the 9th U.S. Circuit Court of Appeals in San Francisco, lawyers for Proposition 8’s supporters said Judge Stephen Reinhardt’s "impartiality might reasonably be questioned" because his wife heads the Southern California chapter of the American Civil Liberties Union.

In that role, the judge’s wife, Ramona Ripston, has been an outspoken opponent of Proposition 8 and taken part in legal proceedings to overturn the voter-approved law, the lawyers said. They cited the friend of the court brief the ACLU filed on behalf of the plaintiff’s in the case pending before her husband as an example.

"So long as a judge’s impartiality might reasonably be questioned, recusal is required," they wrote in a motion asking Reinhardt to disqualify himself. "The facts of this case would plainly lead a reasonable person to conclude that Judge Reinhardt’s impartiality might reasonably be questioned."

Reinhardt, 79, an appointee of President Jimmy Carter, is one three judges on a panel scheduled to hear arguments Monday in the appeal by Proposition 8’s sponsors of a trial judge’s ruling that struck down the ban. He has a reputation as one of the 9th Circuit’s most liberal jurists.

Along with the constitutionality of the 2008 measure, the appeals court panel plans to consider whether the coalition of religious and conservative groups that sponsored Proposition 8 had authority to bring the appeal once Gov. Arnold Schwarzenegger and Attorney General Jerry Brown decided not to challenge the lower court decision.

The lawyers for Proposition 8’s sponsors said Reinhardt has recused himself from past cases involving the Southern California ACLU.

EDGE UPDATE:

In a document filed in response to the request that he recuse himself, Judge Reinhardt stated flatly that he refused to step aside.

"I have before me defendants-intervenors-appellants’ motion to disqualify myself from this appeal," noted Reinhardt in the document. "I have not hesitated to recuse from cases in the past when doing so was warranted by the circumstances." Reinhardt went on to specify seven cases.

"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,’ " Reinhardt continued. "I will be able to rule impartially on this appeal, and I will do so. The motion is therefore DENIED."

AP UPDATE:

Hours later, Andrew Pugno, a lawyer for the organization ProtectMarriage.com that’s pursuing the appeal, said it accepted Reinhardt’s decision and will drop the recusal attempt.

"Our legal team is focused on the merits of our constitutional defense of Proposition 8," Pugno said. "With binding Supreme Court precedent and the will of a strong majority of Americans on our side, we are confident that Proposition 8 and the institution of marriage will ultimately prevail."

Reinhardt, who most famously voted with the majority in ruling the Pledge of Allegiance’s "under god" clause violated the Constitution, and Judges N. Randy Smith and Michael Daly Hawkins are scheduled to hear two hours of oral arguments in San Francisco on Monday.

A ruling is expected later in the case that most observers and participants believe is destined for the U.S. Supreme Court.

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