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BREAKING: Yes on 8 attorneys move to disqualify Judge Reinhardt from 9th Circuit’s three-judge panel

9th Circuit Court of Appeals Briefs Prop 8 trial Statements

By Eden James

A motion has been filed by (Yes on 8) to disqualify Judge Stephen Roy Reinhardt from the three-judge panel that will hear the appeal on Monday.

The reason? Judge Reinhardt’s wife is Ramona Ripston, Executive Director of the ACLU of Southern California. According to the Yes on 8 attorneys, the ACLU of Southern California has been actively involved in the litigation opposing Prop 8.

The AP just filed the following:

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.

“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.”

Here is the statement verbatim from their motion (sorry for the formatting; I’m pasting it from the doc Scribd below):

On November 28, 2010, this Court identified Circuit Judges Reinhardt, Hawkins, and N.R. Smith as the members of the panel assigned to this case. Judge Reinhardt is married to Ramona Ripston, the long-time Executive Director of the ACLU of Southern California (hereinafter, “ACLU/SC”).1 See Ramona Ripston, Executive Director, ACLU/SC, at

As Executive Director, Ms. Ripston is “responsible for all phases of the organization’s programs, including litigation, lobbying and education.” Id. Under Ms. Ripston’s leadership, “ACLU/SC has taken a lead role” in what it calls “the fight to end marriage discrimination” in California. ACLU/SC 2007-2008 Annual Report 24, at

ACLU/SC represented several same-sex couples and organizations in In re Marriage Cases, in which the California Supreme Court held that California’s pre-Proposition 8 statutory definition of marriage as the union of a man and a woman violated the State Constitution. See In re Marriage Cases, 43 Cal. 4th 757, 768-69, 786 (2008).

Following that decision, ACLU/SC put Proposition 8 “at the forefront of [its] civil-rights agenda, sparing no effort to defeat Prop. 8 [and] challenge its passage.” ACLU/SC 2008-2009 Annual Report 8, at After Proposition 8’s passage ACLU/SC represented petitioners before the California Supreme Court in Strauss v. Horton, the unsuccessful state-law challenge to the validity of Proposition 8. 46 Cal. 4th 364, 374 (2009).

The same day the California Supreme Court issued its decision in Strauss, Ms. Ripston issued a public statement on behalf of ACLU/SC, vowing that “[a] renewed effort to overturn Proposition 8 begins today.” Statement by ACLU/SC Executive Director Ramona Ripston on California Supreme Court Decision (May 26, 2009), at Ms. Ripston later signed a letter on behalf of ACLU/SC explaining that as part of that effort, “LGBT people and our closest allies are first going to have to talk to close friends and family about … why this fight [for same-sex marriage] matters. Even if those people are already on our side, we need to talk to them to convince them to join the fight.” Prop 8: Focusing on the Wrong Question (July 14, 2009), at

ACLU/SC has taken an active role in this litigation. It appears that Plaintiffs’ attorneys engaged in “confidential discussions” with Ms. Ripston and ACLU/SC’s legal director before filing this lawsuit. See Chuleenan Svetvilas, Challenging Prop 8: The Hidden Story, CALIFORNIA LAWYER, Jan. 2010, at And ACLU/SC has been actively involved in this very case. Indeed, it represented, as counsel in the court below, parties seeking to intervene as plaintiffs, see Our Family Coalition et al. Motion to Intervene as Party Plaintiffs, Doc. No. 79 at 2 (July 8, 2009), and amici urging the court to decide the case in favor of Plaintiffs and to rule that Proposition 8 is unconstitutional. See Brief of Amici Curiae American Civil Liberties Union et al., Doc. No. 62 at 2 (June 25, 2009); Brief of Amici Curiae American Civil Liberties Union et al., Doc. No. 552 at 2 (Feb. 3, 2010).3

Indeed, in the accompanying motions for leave to file these amicus briefs, the statement of amici interest specifically lists ACLU/SC as an affiliate of an amicus curiae. See Motion for Leave to File Brief of Amici Curiae American Civil Liberties Union et al., Doc. No. 61 at 3 (June 25, 2009) (identifying “the ACLU Foundation of Southern California” as one of “the three California affiliates of the ACLU”); Motion for Leave to File Brief of Amici Curiae American Civil Liberties
Union et al., Doc. No. 551 at 3 (Feb. 3, 2010) (same).

When the district court issued the ruling under review in this Court, the ACLU issued a public statement praising the decision and emphasizing that the ACLU, along with two other groups, had “filed two friend-of-the-court briefs in the case supporting the argument that Proposition 8 is unconstitutional.” ACLU Hails Historic Decision and Urges Efforts in Other States to Ensure Success on Appeal (August 4, 2010), at The press release quoted Ms. Ripston as “rejoic[ing]” in the decision striking down Proposition 8, asserting that it “affirms that in America we don’t treat people differently based on their sexual orientation.” Id. Ms. Ripston’s statement was reported in the national media. See, e.g., Daniel B. Wood, Proposition 8: Federal Judge Overturns California Gay Marriage Ban, CHRISTIAN SCIENCE MONITOR, Aug. 4, 2010, at

At the same time, Ms. Ripston stated that the district court’s ruling was not the end of the matter, emphasizing that “it’s a long road ahead until final victory.” ACLU Hails Historic Decision and Urges Efforts in Other States to Ensure Success on Appeal (August 4, 2010), at Specifically, as one of her colleagues put it in the same public statement, “[i]n order to give this case the best possible chance of success as it moves through the appeals courts, we need to show that America is ready for same-sex couples to marry by continuing to seek marriage and other relationship protections in states across the country.” Id. (emphasis added).5

Much, much more on the motion that Kathleen has Scribd, per the usual:

[scribd id=44508349 key=key-1hzjpzv68nts9mkml0ti mode=list]

This move by the Yes on 8 attorneys was foreshadowed yesterday when the right-wing National Review Online called for Reinhardt’s disqualification. Ed Whelan wrote:

The Code of Conduct for United States Judges requires that a judge “disqualify himself … in a proceeding in which the judge’s impartiality might reasonably be questioned.” How is it possible that Reinhardt’s impartiality in this case couldn’t reasonably be questioned when his wife took part in confidential discussions with plaintiffs’ lawyers over whether they should pursue the case? And, no, it’s no answer to say that Reinhardt is already so biased in favor of plaintiffs that his wife’s role couldn’t make a difference.

In fairness to Reinhardt, he may not yet be aware of Ripston’s consulting role. But once he becomes aware, how can he not disqualify himself? And isn’t Boutrous, as an officer of the court, obligated to disclose his consultation with Ripston and to move for Reinhardt’s disqualification?

More to come, as news develops.


  • 1. Michelle Evans  |  December 1, 2010 at 5:29 pm

    Of course they would do something like this. Wouldn't matter to them that say one of the judges is Mormon.

  • 2. cc  |  December 1, 2010 at 5:45 pm

    Arg, does this mean another delay?

  • 3. BK  |  December 1, 2010 at 10:08 pm

    It shouldn't, no. Could it? Only if anyone can find merit in the recommendation for Reinhardt to resign. Oh, and I mean any *legally sound* merit.

  • 4. Kathleen  |  December 1, 2010 at 5:45 pm

    The more I think about this, the more I'm convinced this is less about legalities than it is just spin – trying to discredit the judge before the opinion is written.

  • 5. Kathleen  |  December 1, 2010 at 5:51 pm

    But I'll admit to being a bit surprised that Cooper would sink to this. He may have a stinker of a case, but I expect better of him in terms of conducting himself in the case. But then, I guess when this is all you have to rely on….

    You know the old saying, 'If you have the facts on your side, pound the facts. If you have the law on your side, pound the law. If you have neither on your side, pound the table." They're reduced to pounding the table.

  • 6. Marlene  |  December 1, 2010 at 8:55 pm

    Pounding the table, Kathleen? More like setting the damn thing on fire just to cause a distraction, which is what this action is all about!

  • 7. BK  |  December 1, 2010 at 10:05 pm

    (with a heavy southern accent)

    Well, then it's workin' mighty fine. 🙂

  • 8. elliom  |  December 2, 2010 at 2:09 am


    Never heard that before, but, definately fits!

  • 9. Ronnie  |  December 2, 2010 at 12:20 am

    They didn't learn from the first time….trying to discredit the judge that is hearing your case in not going to help your case….these anti-gay fundies are fundamentally incapable of stopping themselves from repeating their mistakes….I'm embarrassed for them….. : / …..Ronnie

  • 10. Alan E.  |  December 2, 2010 at 3:06 am

    You spin me right round baby right round!

  • 11. Kalbo  |  December 1, 2010 at 5:52 pm

    Wow. And after (most) everyone here defended Smith over his LDS links.

    I absolutely agree that, unless there's a clear participation in the case at hand (and I doubt Smith was an active participant either way in P8 given his past record), a judge should generally be allowed to oversee such cases.

    However, even if Reinhardt is replaced with a more 'conservative' judge, our side has a rock solid case of findings of fact that cannot be ignored nor altered on appeal. That makes me highly optimistic we will win this case every step of the way. Though the standing issue, from what I've read, would be 50/50 at most to let the case go on to the Supreme Court without California state officials being involved, so as much as I'd like it to go to the Nine, I'd have to concede the odds are probably against that scenario (but hey, I can hope!).

  • 12. CaliGirl  |  December 1, 2010 at 6:00 pm

    Wow… I mean… can they really ask for this? Sooo not a lawyer here, but it seems like whatever my spouse does should be irrelevant in what I do, you know? Is there precendent for this? Will Reinhardt be 'asked' to step down?

    I agree with what other have said above: it sounds like pre-failage spin.

  • 13. CaliGirl  |  December 1, 2010 at 6:01 pm

    And by asked (since they're clearly already asking), I mean forced.

  • 14. Carpool Cookie  |  December 1, 2010 at 7:26 pm

    I think the "spousal codependency" slant is some holdover from when married partners (or at least wives) weren't seen as being really independent.

    I agree it's strangely antiquated.

    Nowadays people have separate careers.

  • 15. BK  |  December 1, 2010 at 10:01 pm

    This also could just be a way for them to scream & cry about it later. Remember the way they screamed about Judge Walker's *possible* orientation? It's not even known if he's straight or LGBT, yet they jumped on that bus right away. This whole fiasco is probably just so they can have an excuse for their loss later on. Quite smart of them, I would think.

  • 16. Carpool Cookie  |  December 2, 2010 at 4:50 am

    "Remember the way they screamed about Judge Walker’s *possible* orientation?"

    Jiminy Christmas….if you want to hear heated discussion about THAT, you should go to the Discuss page for Walker's article at wikipedia. That goes back and forth for pages and pages and pages with major edit wars!

  • 17. Steven  |  December 1, 2010 at 6:13 pm

    OMG, it sounds like they know they will lose the case… The plaintiffs didn't screamed about Justice Smith's connection to LDS Church. I hope that the 9th Circuit of Appeals denies their request.

  • 18. BK  |  December 1, 2010 at 9:58 pm

    Absolutely! Isn't it so fulfilling, in a way? Instead of watching a quick defeat for the anti-equality forces, we get to enjoy a slow destruction of their case. This will be very entertaining, at the least.

  • 19. John  |  December 2, 2010 at 12:40 am

    (FULL DISCLOSURE: I am impartial because my wife feels people should have equal rights and supports the constitution; I hope someone married to an intolerant, right-wing tea-party fundamentalist can chime in to set the record straight!)

    I was constantly amazed during the trial about how awful the lawyering was on the bad guy's side. I kept thinking, "The Mormons, Catholics, Focus on the Family, NOM, FRC, AFA, etc, all have a ton of money (even more than all those rich homosexuals!). This can't be the best defense money can buy. It just can't."

    But maybe it is.

  • 20. Richard A. Jernigan  |  December 2, 2010 at 1:02 am

    I am not married to one of those intolerant types, but one of my adult stepchildren is one of those types. She screams that she wants us to be tolerant of her views, and yet she refuses to let us express our views and beliefs. AM I wrong, or is she the intolerant one here?

  • 21. fiona64  |  December 2, 2010 at 2:47 am

    IMO, one does not have to "tolerate" intolerance. She's welcome to hold her views, but she does not have a right to spew them in your home. It's the equivalent (as someone remarked about my nephew's hate speech on my FB wall) of spraying graffiti on your property.


  • 22. anonygrl  |  December 2, 2010 at 4:11 am

    Freedom of speech actually only applies on public property. Owners are not required to allow people to spew on property that the spewer does not own.

    In public, everyone gets to say their piece. You can, of course, explain to spewers that freedom of speech guarantees neither attention of an audience, nor respect and quiet from others with opposing opinions while you are speaking.

  • 23. Richard A. Jernigan  |  December 2, 2010 at 4:24 am

    Actually, we were at my mother-in-law's house (her grandmother). And she even had Mother in tears when she flew into her little rant and rave about how much of a burden it has been to her all these years to have to explain her father to her "friends." She had me so upset over the way she was upsetting Mother and BZ that I left before I backhanded her. And as far as I am concerned, if she has to "explain" BZ to her "friends," or to explain the fact that he and I are married, then she really needs to lose the "friends" she has, and find some real friends.

  • 24. Ann S.  |  December 2, 2010 at 4:27 am

    Hugs to you, Richard. Her worldview and that of her friends is taking quite a long time to catch up to the 21st century.

  • 25. Richard A. Jernigan  |  December 2, 2010 at 4:51 am

    And the worst part of it is that she won debating awards in high school with the subject of LGBT parents being just as fit as any other parents, and in many cases more so. But then, that was before she got married to her last ex and he got her involved with one of those radical, right wing pseudo-churches that seem to be so common here in the South.

  • 26. Ann S.  |  December 2, 2010 at 5:08 am

    Gosh darn those radical, right wing pseudo-churches that seem to be so common in the South. It sounds as though she has let them brainwash her, when she used to be more of an independent thinker.

  • 27. John  |  December 2, 2010 at 5:22 am

    Agreed. I'm sick of the pseudo-churches too. Darn it, bigotry is NOT a Christian value!

  • 28. Richard A. Jernigan  |  December 2, 2010 at 5:59 am

    That is exactly what happened Ann. And they had the help of her ex-husband while they were married and in the same house. Even now, it seems as though he still rules her, even if it is from a distance, and he has remarried.

  • 29. rick Jacobs  |  December 1, 2010 at 6:22 pm

    Presumably, this means that Justice Thomas will recuse himself from every crazy that the TEA PARTY brings our way since his wife was, until recently, the chief bagger.

  • 30. Chris in Lathrop  |  December 1, 2010 at 9:18 pm

    Good point, what a dangerous precedent this could set. Could it undermine our whole legal system? Will we be facing a legal system filled with justices who have no life, no family, and no opinion on anything?

  • 31. JT1962  |  December 1, 2010 at 6:52 pm

    Folks, no matter how much we think this is wrong, the truth is, legally it's the right thing to do. We can argue til we're blue in the face that we'd be impartial regardless of our loved ones but it's how it looks that matters, not how real it is.

    And no, it wouldn't necessarily require a delay. They just need to assign another judge. Unless all the other judges are busy with other cases right now or the judge needs a bit of time to read up on the case, it should be ok. I mean, they only announced the judges picked last week. Nothing has been heard so far so…it shouldn't cause a delay.

  • 32. Slade  |  December 1, 2010 at 7:37 pm

    I disagree, its irrelevant. A spouse's career does not impact your judgement for a case. Should we take it a step further and look at relatives? Distant relatives? It makes no sense.

    I also give nod to the fact that people are not batting an eye to Smith despite the proven large participation of the LDS being for Yes on 8. Should we just remove both judges?

    Honestly, I think this all is a bunch of spin-wash.

  • 33. fiona64  |  December 2, 2010 at 2:48 am

    This. All of it.


  • 34. Dave in ME  |  December 1, 2010 at 10:29 pm

    I am no lawyer, but looking at it as just a regular guy, it does seem that it is something he should do. Of course he is a separate person who has nothing to do with his wife's career, but the way it appears could be questionable. I don't WANT him too, but I can see their point.

    As Caligirl asked, have there been other instances where a judge has been asked to remove himself or herself from a case because of what the spouse does?

    Dave in Maine

  • 35. Carpool Cookie  |  December 2, 2010 at 4:56 am

    The thing is, there's no evidence that a win either way would financially benefit either his wife or himself.

    What the idea asks us to accept is that someone intelligent, educated and scandal-free to be appointed and stay on a high federal bench would throw away their honor and conscience and devotion to the law…merely to get their spouse to….smile?? (Or what…for an extra bj or something???)

  • 36. Carpool Cookie  |  December 2, 2010 at 4:57 am

    Oopps…I meant to add "enough":

    "…someone intelligent, educated and scandal-free enough to be appointed, etc…."

  • 37. Kathleen  |  December 2, 2010 at 3:35 am

    JT1962, Although the names of the judges on the panel were just made public on Monday, this panel has had the case for months. They have already read the reams of paper that has been filed- including briefs from all parties and dozens of amicus briefs-and examined evidence from the trial. The oral arguments are just the final opportunity for the parties to answer questions and present their case. A recusal at this late stage could very well result in a delay.

  • 38. Carpool Cookie  |  December 1, 2010 at 7:19 pm

    Nice way to piss off a judge (and his associates) who's going to be hearing your case….!

  • 39. Gregory in Salt Lake  |  December 1, 2010 at 11:55 pm


  • 40. BK  |  December 1, 2010 at 9:55 pm

    Why would it matter what his wife's opinion is? She's not even participating in the trial… is she? And a definite thumbs-up to Slade for his comment about Smith and religion. If a family member can disqualify you, how about a vehemently anti-gay-rights religion? (Sorry to the pro-equality lds, but I'm pretty sure the lds church really is anti-gay-rights.) Bottom line, I don't think Judge Reinhardt should resign. But then again, I *am* biased. And aren't we all?

  • 41. BK  |  December 1, 2010 at 10:17 pm

    OT – but please answer if you can. I can't find any information on the web about this!

    Does anyone know when the Illinois state Senate will be voting on the religious freedoms & civil unions bill? Because I would like to know when to expect their decision. Thanks!

  • 42. Richard A. Jernigan  |  December 2, 2010 at 1:05 am

    The Illinois Senate voted yesterday, and approved CU's 32-24, I think was the final vote tally. It is now on its way to the Governor's desk, where he has already stated he will sign it. But it won't take effect until July 2011.

  • 43. Dave in ME  |  December 1, 2010 at 10:25 pm

    CHICAGO — Illinois lawmakers on Wednesday approved legislation allowing civil unions in this state, and the governor has indicated he will sign it, making Illinois one of only a handful of states to grant to same-sex couples a broad array of legal rights and responsibilities similar to those of marriage.

  • 44. BK  |  December 1, 2010 at 11:24 pm

    Thank you, Dave in ME! However, I found this link worked better:

    "In Illinois, where Democrats dominate both state legislative chambers (and will next year, even after new lawmakers are seated) the votes were split: 32 to 24 in the State Senate on Wednesday, and 61 to 52 in the House a day earlier.

    Supporters of gay rights widely praised Illinois’s decision, but many said the eventual goal remained legalizing same-sex marriage, not a separate civil union system."

    Wonderful news! Now all that's left is to sign it into law! I'm so proud of (many of the) lawmakers there. Obviously not the ones who voted no, but… 🙂 Three cheers for equality!

  • 45. Chris in Lathrop  |  December 2, 2010 at 8:44 am

    So now we can look forward to an extensive bus tour #FAIL through Illinois in 2012?

  • 46. BK  |  December 2, 2010 at 4:41 pm

    I, for one, would look forward to that.

  • 47. Richard A. Jernigan  |  December 1, 2010 at 10:30 pm

    And we expected them to behave like adults? I think not. And they are living up to the expectations. They will continue to BMW (b***ch, moan and whine) about this whole case. Of course, the more they BMW about it, the more of their sheeple they will turn off and who will leave them, thus lowering their revenue power.

  • 48. Lesbians Love Boies  |  December 1, 2010 at 11:35 pm

    I tend to believe this subject has already been discussed by the powers that be – prior to releasing the names of the three judges – and this reaction has already been anticipated.

    If someone were writing a book and added this much drama in the mix I would tell them it's a bit over-the-top, no one could follow this many twists and turns.

  • 49. Richard A. Jernigan  |  December 2, 2010 at 12:30 am

    That is why one of our most noted authors once said that truth is stranger than fiction. After all, in order to write fiction, there are certain rules you have to follow to avoid going over the top. Truth is not bound by those rules.

  • 50. Carpool Cookie  |  December 2, 2010 at 5:02 am

    LOTS of drama!! I wonder if Rob Reiner got the screen rights to the story right at the beginning.

    Susan Sarandon has to be in the cast, somewhere. And that character actor who played the freaky dad in Happiness is sure to turn up as a lawyer, along the way.

    I see Naomi Watts as one of the plaintiffs…isn't one of the ladies blonde?

  • 51. Ronnie  |  December 2, 2010 at 12:24 am

    I'll repeat what I said yesterday when Kathleen posted the update on a previous thread……

    Really?….I mean really?…why do these un-American anti-gay schlocks not realize they are the one’s that need recuse themselves…Of I forgot…because they are selfish porcine’s who amusingly believe that the entire world has to bow down to & revolve around them at the same frolicking time…..RECUSE THIS… ooIoo ……. XP …..Ronnie

  • 52. atty79  |  December 2, 2010 at 12:32 am

    This is bull. Even if it wasn't, the judge's wife is fixing to retire. Her career (financial interest) won't be affected by the 9th Cir's opinion.

    The only other "avowed" interest then his wife's deep convictions–whether she'll feel "hurt" and disappointed if the opinion favors the proponents of Prop 8. Those feelings are hardly grounds for recusal. It's sheer intellectual dishonesty to suggest otherwise.

    Under the proponent's wild interpretation of the law, a spouse's unhappiness at a decision would be equivalent to her interest, however deep, being "substantially affected". If the marital discord this might create is grounds for recusal, then I honestly don't know how any married judge could possibly do his job without the court first asking for the spouse to concur with his opinion. Should we now include in judicial opinions the concurrence of the spouse to ensure no feelings of the spouse were substantially affected?

  • 53. Kathleen  |  December 2, 2010 at 3:58 am

    Yes, what atty79 said!

  • 54. JonT  |  December 2, 2010 at 4:26 am

    Right. And lets not forget any children, siblings, parents, and best friends too.

    Just a lame attempt to remove a judge they believe will not be sympathetic to their case. Boo hoo.

  • 55. John  |  December 2, 2010 at 12:34 am

    Looks like typical lawyering to me. They are representing their client, who obviously wouldn't want a liberal judge on the panel. That much isn't too unusual – you do whatever you can to win, no matter what the odds against it, apparently.

    Either the judges will agree or not with the motion – I'll hold my judgment until I see how they decide.

    Of course this will be used to the right-wing to show that the ACLU's radical left-wing activist judges ™ are ruining the country. Unless they rule the way the right-wing wants, in which case it was a "great decision". It's not like we expect anything different from that group.

  • 56. MJFargo  |  December 2, 2010 at 12:57 am

    Personally, I am a little shocked by this. I'm looking forward to a response from Olson/Boise. While delaying tactics are only in the interest of the appellants/proponents, this one is a far reach. But it may get them into the SCOTUS and around the standing issue. Nevertheless, it comes across as desperation.

  • 57. Richard A. Jernigan  |  December 2, 2010 at 1:06 am

    That's because it is desperation. Desperation is all they have left.

  • 58. atty79  |  December 2, 2010 at 1:16 am

    Looks like Judge Reinhardt won't recuse himself. Good for him.

  • 59. Richard A. Jernigan  |  December 2, 2010 at 1:19 am

    Cool. Do you have a link for this?

  • 60. Ann S.  |  December 2, 2010 at 1:21 am

    Has he said that? I do think their move reeks of desperation, and I hope he does not recuse himself.

  • 61. Ben Gutierrez  |  December 2, 2010 at 1:26 am

    Stephen R. Reinhardt this morning: <cite>I will be able to rule impartially on this appeal, and I will do so. The motion is therefore DENIED.</cite>

    Kathleen Perrin hasn't posted the doc yet.

  • 62. Richard A. Jernigan  |  December 2, 2010 at 1:29 am

    That is GREAT NEWS!

  • 63. Lesbians Love Boies  |  December 2, 2010 at 1:36 am

    Ann might be uploading it now.

    This is what we all thought…

    Here is from the email:

    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.

  • 64. Kathleen  |  December 2, 2010 at 2:53 am

    Slept in this morning. Here's the document on Scribd:

    I won't be around today for several hours, so if the Reinhardt's memo comes in today, there will be a delay in getting it up. But will catch up with everything around 5 PST.

  • 65. Chris in Lathrop  |  December 2, 2010 at 8:47 am

    I just love that 'denied' is CAPITALIZED. >:)

  • 66. JonT  |  December 2, 2010 at 4:30 am

    Excellent, Mr. Smithers.

  • 67. Jason  |  December 2, 2010 at 2:13 am

    "I am certain that a reasonable person with knowledge of all …" WAIT STOP! You're assuming the Prop 8 people are reasonable 🙁

    Will this be their first bullet point on their crying points list when they lose the appeal?

  • 68. Jonathan H  |  December 2, 2010 at 3:22 am

    I don't see how they think this will help, they still failed to present any compelling evidence at trial, hell they barely showed any evidence at all. Only way this makes sense to me is just as everyone else has said, they know they're going to lose and they're preparing excuses to whine about it.

    If it weren't basically allowing them to yank his strings so he'll dance like a puppet, I'd be tempted to ask the judge to go ahead and recuse himself. They'll lose anyway.

    The scene I really want to see in this appeal is Cooper claiming Judge Walker ignored all sorts of evidence, and then being expected to point out which evidence that was. Or even to see him tell three judges that he doesn't need to show evidence to back up his claims.

    I'm so glad this is being televised, even though Monday's going to be a total write-off.

  • 69. Carpool Cookie  |  December 2, 2010 at 5:09 am

    "If it weren’t basically allowing them to yank his strings so he’ll dance like a puppet, I’d be tempted to ask the judge to go ahead and recuse himself. They’ll lose anyway."

    I agree it would have been interesting to say, "So you got the supposed liberal to step down, you kept your Momron on the bench….and you still lost? Uh…what was the problem THIS time??"

  • 70. BK  |  December 2, 2010 at 5:22 pm

    Well, he's not a real Mormon… he's a closeted, anti-family, anti-marriage, super liberal, heterophobic, . . .irreligious bigot!

  • 71. nightshayde  |  December 2, 2010 at 4:02 am

    If the judge's wife was engaged in "confidential" discussions, isn't she required to keep any information from/about the discussion confidential even from her husband? How can they say her husband would be influenced by what went on in meetings if his wife isn't allowed to disclose to HIM what went on in the meetings?

  • 72. Ann S.  |  December 2, 2010 at 4:10 am

    She should, because it's a confidential client matter. They'll still say that there's an "appearance of impropriety". I'm looking forward to his ruling on this — I imagine it will be entertaining reading.

  • 73. Ben  |  December 2, 2010 at 4:14 am

    If (as the Prop 8 folks claim) marriage's only legitimate purpose is childrearing and it has nothing to do with mutual affection, commitment, and having a life together, why should they expect that the marriage bond would have any influence at all on Judge Reinhardt?

  • 74. Steven  |  December 2, 2010 at 4:51 am

    Can they appeal the denied request to the United States Supreme Court?

    Have you noticed that they haven't whine how 9th Circuit of Appeals is allowing live broadcast?

  • 75. atty79  |  December 2, 2010 at 4:53 am

    I imagine they'll just use the non-recusal to support a request for an en banc review.

  • 76. Ann S.  |  December 2, 2010 at 4:19 am

    Is denial of the request to recuse even appealable?

  • 77. atty79  |  December 2, 2010 at 4:27 am

    This is a little outside my area of expertise, but if I'd have to venture a guess, the recusal itself is not appealable, only the outcome which might come from such a failure to recuse. In other words, the worse that can happen is that a judge fails to recuse himself and because of his bias (assuming he has some) his opinion is faulty. SCOTUS would then do what it normally does and simply replace its decision with that of the lower courts. (OF course, we're not just talking about one judge here…so when all is said and done, I don't think the recusal will make much of a difference.)

    I don't see SCOTUS, at this stage, second-guessing whether a judge should recuse himself.

  • 78. Ann S.  |  December 2, 2010 at 4:30 am

    Thank you, atty79, that makes sense to me. But it's way outside my area of expertise.

  • 79. Sagesse  |  December 2, 2010 at 5:51 am

    Been on a plane all morning. Will come back and read later.

  • 80. Lesbians Love Boies  |  December 2, 2010 at 6:01 am

    Iowa just got a new Supreme Court Chief Justice – Mark Cady…who wrote the opinion for the landmark ruling overturning the statewide ban on same sex marriage.

  • 81. 9th Circuit Judge Reinhar&hellip  |  December 2, 2010 at 10:56 am

    […] as Eden noted, Yes on 8 side (technically, filed a motion asking that Roy Reinhardt, one of […]

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