March 8, 2012
By Adam Bink
Via Kathleen in Quick Hits, an interesting challenge:
SAN FRANCISCO — A challenge to the Defense of Marriage Act is now the official property of the Ninth Circuit U.S. Court of Appeals. But the constitutional issues aren’t all the court must tackle.
Because the plaintiff is one of the court’s own — Karen Golinski is a longtime staff attorney seeking federal health benefits for her wife — the case raises tricky and possibly unprecedented recusal questions.
The court is taking steps to wall off Golinski and close colleagues from the appeal. What the judges might do isn’t clear and scholars disagree on whether the circuit should wash its hands of the case entirely.
“It’s close,” said Arthur Hellman, professor at University of Pittsburgh School of Law who studies the circuit.
Already, one potential ally for Golinski is off the case. Chief Judge Alex Kozinski told The Recorder this past week that he will recuse himself. He presided over Golinski’s administrative proceedings and sided with Golinski, even excoriating the Obama administration for countermanding his earlier order to grant the benefits.
Golinski has worked in the motions unit in San Francisco for 20 years. Since 1999, she has mostly been training other lawyers and only occasionally working on cases.
Circuit executive Cathy Catterson said the circuit is taking steps to wall Golinski off from colleagues who may be working on her case. An attorney in the court’s Seattle office — who wasn’t trained by Golinski — will handle any motions work in the appeal, Catterson said.
She added that Golinski rarely works with judges and reports up a chain of command that goes through Catterson and to Kozinski.
Kozinski said in an email he didn’t know of other judges’ plans and couldn’t discuss the matter further. Several judges declined to talk about potential conflicts since the case is pending before the court.
“I’m sure the issue will be presented squarely to whichever panel it is assigned to,” said Senior Judge Michael Daly Hawkins from his chambers in Phoenix.
And it will be up to the judges drawn for the merits — along with any motions panels that draw the case — to decide whether they’ll recuse themselves, Catterson said. The chief judge, or acting chief judge, won’t make a unilateral decision to refer it out of circuit.
Lawyers familiar with the circuit can’t point to many precedents. Hellman recalled the controversy around a 1980s-era case involving the criminal prosecution of a Las Vegas district judge. The circuit’s chief judge at the time, James Browning, had the case sent out of the circuit without polling individual judges, giving rise to appellate claims by the convicted jurist and, ultimately, a lengthy diatribe by Judge Stephen Reinhardt insisting the court should have handled the matter in house. In his dissent from denial for rehearing en banc in U.S. v. Claiborne, Reinhardt also pointed out that selection of judges isn’t random when cases are sent out of the circuit.
Catterson said there might have been some confusion during those years on how to handle the situation. “It’s very clear now and has been for a long time that recusal is an individual judge’s decision,” she said.
John Eastman, a professor at Chapman University School of Law, said there will be an appearance of bias if the Ninth Circuit touches Golinski’s case.
He pointed to a recusal motion in another high-profile gay marriage case, the challenge to Proposition 8. Gay-marriage foes asked Reinhardt to step off because his wife, the longtime head of the Southern California ACLU, was an amicus curiae in the case in the lower court. Reinhardt’s refusal to recuse was a departure from the normal practice, Eastman said.
“One has to hope that something similar because of the contentiousness of the issue is not under way here,” he said.
For his part, Erwin Chemerinsky, dean of the UC-Irvine law school, doesn’t see any problem.
“The fact that she’s a Ninth Circuit employee has no more effect on these judges than if she was a Sixth Circuit employee or First Circuit employee,” he said.
Apart from Kozinski, he said, none of the judges were directly involved in Golinski’s effort to obtain health benefits. And she’s suing the federal government, not the circuit.
“It’s an unusual procedural posture, but I’m not sure why the judges would be any more biased than any other court of appeals judges would be,” Chemerinsky said.
As to where this goes from here, we could see Judge Randy Smith (who dissented in the 9th Circuit panel’s decision on the Perry case) come up again:
The first judges to ponder the question could be those on the March motions panel. They are Judges N. Randy Smith, who dissented in the Prop 8 case; Susan Graber; and William Fletcher. If any recuse from Golinski’s case, another circuit judge is drawn at random, per court rules.