Kristin Perry, et al v. Arnold Schwarzenegger, et al

Filing 295

Filed MEMORANDUM REGARDING MOTION TO DISQUALIFY for PUBLICATION (STEPHEN R. REINHARDT) Shortly before the hearing of this appeal, the defendants-intervenorsappellants (“Proponents”) requested that I recuse myself under 28 U.S.C. § 455(a) and § 455(b)(5)(iii). Under § 455(a), I must recuse myself if “a reasonable person with knowledge of all the facts would conclude that [my] impartiality might reasonably be questioned.” United States v. Nelson, 718 F.2d 315, 321 (9th Cir. 1983). Under § 455(b)(5)(iii), my recusal is required if my wife has an “interest” that could be “substantially affected” by the outcome of this proceeding. I denied Proponents’ motion with a brief statement and promised a further explanation in due course.1 Now that our panel has completed the immediately pressing matters regarding the appeal, I provide my further reasons. (see order for full text) is, indeed, important that judges be and appear to be impartial. It is also important, however, that judges not recuse themselves unless required to do so, or it would be too easy for those who seek judges favorable to their case to disqualify those that they perceive to be unsympathetic merely by publicly questioning their impartiality. See H.R. Rep. No. 93-1453 (1974) (providing legislative history of federal recusal statute) (“At the same time, in assessing the reasonableness of a challenge to his impartiality, each judge must be alert to avoid the possibility that those who would question his impartiality are in fact seeking to avoid the consequences of his expected adverse decision.”). Were I to be recused because of the facts Proponents cite, it would not be merely from serving on the present panel but from voting on whether to rehear the case en banc and taking part in any en banc proceedings held by this court. My wife has no tangible interest in this case’s outcome, and I do not believe that my impartiality in this case can reasonably be questioned on the basis of either her public statements or the ACLU/SC’s involvement in any judicial proceedings. For these reasons, I deny Proponents’ motion. [7599026] (RP)

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