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DOMA trial: Questions about recusal arise in the Golinski case

DOMA trials Golinski

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.

28 Comments

  • 1. Ann S.  |  March 8, 2012 at 10:13 am

    §

  • 2. Michelle Evans  |  March 8, 2012 at 10:25 am

    One major problem with the article which shows the hypocrisy present on the anti-equality side is that John Eastman is identified as a law professor at Chapman Law School, whereas his actual role as the head of NOM is not mentioned anywhere.

  • 3. Gregory in SLC  |  March 8, 2012 at 10:49 am

    Hi Michelle! (and Cherie!) Great to hear from you.

    Seems John Eastman has been keeping a much lower profile than Maggie or Brian…unless I'm missing something….

  • 4. Sagesse  |  March 8, 2012 at 10:51 am

    @

  • 5. Jacob  |  March 8, 2012 at 10:51 am

    Poll released for Maryland: http://www.baltimoresun.com/news/maryland/politic

  • 6. Str8Grandmother  |  March 8, 2012 at 10:53 am

    Thanks, I guess I knew that, but it kind of faded and I did not make the connection when I read the article.

    It will be interesting to see what Smith does.

  • 7. Michelle Evans  |  March 8, 2012 at 11:59 am

    I try to check in once in a while, but often my posts are being deleted, unfortunately I don't even try in many cases. But when it comes to Eastman, I definitely wanted to say something. I know this guy for the person he is, and I wish more people understood that even though he's from the Chapman Law School, his positions have nothing to do with actual law, only with bigotry.

  • 8. Jacob  |  March 8, 2012 at 12:09 pm

    Poll released for California :http://www.ppic.org/main/pressrelease.asp?i=1219

    Note that PPIC had California at 47% support for marriage equality in October 2008, which is right about where the Yes of Prop 8 vote came down. Now they have support at 56%.

  • 9. rocketeer500  |  March 8, 2012 at 2:53 pm

    Maybe I'm naive, but I dont' see the issue. It's not as though the judges are judging their peer. The judges in this case are reviewing DOMA (law) not the individual (Golinski), and whether or not DOMA is unconstitutional.

    It goes back to the issue with Judge Walker, and whether or not he can separate himself as a gay man, in an established relationship, to review and make an opinion on a congressional law, that affects the gay community, and make an opinion without bias.

    Like I said, maybe I'm naive, but I don't see the issue.

  • 10. Str8Grandmother  |  March 8, 2012 at 4:42 pm

    Michelle there is an interesting Transgender case at the Supreme Court. Here is the link http://www.scotusblog.com/2012/03/relist-and-hold

    Why do your posts get deleted? My posts never get deleted? Is it your computer?

  • 11. Str8Grandmother  |  March 8, 2012 at 4:45 pm

    I hope Smith takes it I am very curious as to what he has to say after his lame weak dissent on Prop 8. I bet Smith does not recuse himself.

  • 12. _BK_  |  March 8, 2012 at 8:56 pm

    My posts occasionally get deleted after I post them, usually when I post (civil) arguments against things like public referendums on marriage equality.

  • 13. Bob  |  March 8, 2012 at 9:02 pm

    and I can't even get a response as to why mine was deleted ,,,, there must be some new rules or something,,, but this used to be a place for very open dialog,,, and sharing,,, not so much lately,,,, confused I am!!!!!!!!!!!!!!

  • 14. Bob  |  March 8, 2012 at 9:02 pm

    forgot to say Hi Michelle

  • 15. Bill S.  |  March 9, 2012 at 12:34 am

    Smith has no reason to recuse himself based on his Prop 8 decision.

  • 16. Bill S.  |  March 9, 2012 at 12:36 am

    I agree. The only thing I can think of is that some of the judges may be friends with Ms. Golinski, seeing that they might work with her? But the 9th Circuit is a pretty big institution.

    The Chief Judge had reason to recuse himself because he handled her case in an administrative (not judicial) hearing a few years ago and took an open position on the matter. The other judges shouldn't have a problem adjudicating this case.

  • 17. Michelle Evans  |  March 9, 2012 at 1:11 am

    I have no idea why my posts sometimes disappear, but I've seen it happen several times, including just a couple days ago. Just goes with the other problems, such as the fact I can no longer subscribe to Prop 8 Trail Tracker posts, which is why I rarely come in to get into the conversation anymore. Definitely miss all my old friends here. Cherie says hello, too.

  • 18. _BK_  |  March 9, 2012 at 5:06 am

    Well, we always appreciate your input Michelle. Thanks for dropping by. (:

  • 19. Sheryl_Carver  |  March 9, 2012 at 7:35 am

    Have you contacted the P8TT website folks directly, Michelle? Even if you did previously, please try again, as they may have thought they fixed the problem. I used to be a software engineer, & sometimes one can be positive a bug is fixed, only to later discover that it most definitely was not.

    We miss you!

  • 20. Adam Bink  |  March 9, 2012 at 8:28 am

    Michelle (and everyone):

    You need to contact our tech team. That's why we have them. prop8trial at couragecampaign dot org. I have yet to hear of a situation where they could not resolve a subscription issue. Leaving a complaint here does not mean it will be resolved because we get so many comments and cannot scan to find who is having problems; the solution is to ask for help directly. Because we have such limited capacity on a tech basis, we have a tech team to manage it. If you have trouble or fail to get a response (again, something I have yet to hear), e-mail me directly. My info can be found above on the About page.

    Thanks.

  • 21. Adam Bink  |  March 9, 2012 at 8:30 am

    And to reiterate, this is important to me. Tech problems are annoying. People generously contribute so we can have a tech team to fix things (and there are dozens of people who have had minor problems e.g. log-in or subscription issues, fixed). But the process is to ask for help by sending a simple e-mail. I do not want problems left unaddressed.

  • 22. Michelle Evans  |  March 9, 2012 at 12:18 pm

    Yes, I have been in contact with the tech folks at P8TT since the change over from the old site, and unfortunately the issue has never been resolved. One time a couple weeks ago I even got an email into my inbox which asked me to verify my subscription to a new post. I did so immediately, and yet nothing further ever showed up. That one email was the aberration.

    So, unless someone has any good ideas about this, as far as I know, everything from the tech side has been tried. The simple fact was that the old site worked great, and the new site has cut me off as a regular contributor.

  • 23. Michelle Evans  |  March 9, 2012 at 12:20 pm

    Adam, I hope you might recall that you and I exchanged many personal emails over this issue after the changeover from the old site. The last discussion on this was that you said everything had been tried and that there was nothing left to be done.

  • 24. Michelle Evans  |  March 9, 2012 at 12:24 pm

    Adam, I just sent you a personal email with a copy of our last correspondence on this issue from June 2011.

  • 25. Bob  |  March 9, 2012 at 1:29 pm

    and I just sent a request to the tech team,, to see why my post was deleted the other day,,,,,, ask a question and you're a fool for a minute,, don't ask a question remain a fool forever,,,,,, I asked

  • 26. Michelle Evans  |  March 9, 2012 at 2:15 pm

    Just spoke with P8TT tech support and we tried some new ways around all this. Wish me luck that it works this time. Thanks Adam for putting me in touch.

  • 27. Kathleen  |  March 9, 2012 at 3:01 pm

    Even in district court, there were a couple of recusals before it was assigned to Judge White.

  • 28. krista  |  February 5, 2014 at 11:39 am

    I seldom leave a response, however i did some searching and wound
    up here Equality On TrialDOMA trial: Questions about recusal arise in the Golinski case Equality On Trial.
    And I do have 2 questions for you if it’s allright.
    Is it only me or does it look like a few of these remarks look as if they are left
    by brain dead visitors? :-P And, if you are posting at other places, I’d
    like to follow everything new you have to post. Would you list of every one of your community sites like your twitter feed, Facebook page or linkedin profile?

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