Ed Whelan: Judge Reinhardt MUST Disqualify Himself in Prop 8 Appeal

Ed Whelan lays out a pretty conclusive case that Judge Reinhardt must disqualify himself:

"A quick follow-up to my post on how the role of Ramona Ripston—Judge Reinhardt’s wife—in consulting with plaintiffs’ counsel about whether they should file the suit requires Reinhardt to disqualify himself from the Prop 8 appeal:

It turns out that there’s a compelling—indeed, I would say conclusive—second and independent basis for Reinhardt’s disqualification:

Ripston heads, and Mark Rosenbaum is legal director for, the ACLU of Southern California. According to that organization’s website, the ACLU of Southern California “is comprised of three separate corporate entities,” one of which is the ACLU Foundation of Southern California. According to its annual report, Ripston is also executive director of the ACLU Foundation of Southern California. (See her signature line on page 2 of the report, which identifies her as “Executive Director” of “ACLUF/ACLU of Southern California.” From the context of the accompanying signatures, it’s clear that “ACLUF” stands for “ACLU Foundation.”)

The California Lawyer article presents Rosenbaum as the ACLU lawyer whom plaintiffs’ lawyers consulted in connection with a June 25, 2009, amicus brief submitted in the district court on behalf of the national American Civil Liberties Union. Further, both that amicus brief and the motion for leave to file it list Rosenbaum (and Lori Rifkin) of the “ACLU Foundation of Southern California” among the signatories.

In short, the entity that Ripston heads took part as counsel to an amicus in this very case in the district court.

Canon 3.C of the Code of Conduct for United States Judges provides a non-exhaustive list of circumstances in which a judge must disqualify himself on the ground that his “impartiality might reasonably be questioned.” Subpart (1)(d) states that those circumstances “includ[e] but [are] not limited to instances in which … the judge’s spouse … is (i) a party to the proceeding, or an officer, director, or trustee of a party; or (ii) acting as a lawyer in the proceeding.” Addendum: Federal statutory law (28 U.S.C. § 455) sets forth virtually identical grounds for disqualification."

If he maintains his own policy, Judge Reinhardt will disqualify himself. Mr Whelan links to a post by law blogger Eugene Volokh:

"According to a post months ago by Eugene Volokh, Judge Reinhardt’s established (and unsurprising) policy is to disqualify himself from cases involving the ACLU of Southern California."