DOMA Challenge Raises Tricky Recusal Questions

A challenge to the Defense of Marriage Act (DOMA) is now the official property of the Ninth Circuit U.S. Court of Appeals. But the constitutional issues are not all the court must tackle. Because the plaintiff is one of the court's own ' Karen Golinski is a long-time staff attorney seeking federal health benefits for her wife ' the case raises tricky and possibly unprecedented recusal questions.

What to Do

The court is taking steps to wall off Golinski and close colleagues from the appeal. What the judges might do is not clear, and scholars disagree on whether the circuit should wash its hands of the case entirely.

Already, one potential ally for Golinski is off the case. Chief Judge Alex Kozinski has said that he will recuse himself. He presided over Golinski's administrative proceedings and sided with her, even excoriating the Obama administration for countermanding his earlier order to grant the benefits.

The Court's Plans

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 was not 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 e-mail that he did not know of other judges' plans and could not discuss the matter further. Several judges declined to talk about potential conflicts since the case is pending before the court. 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 will recuse themselves, Catterson said. The chief judge, or acting chief judge, will not make a unilateral decision to refer it out of circuit.

Precedent

Lawyers familiar with the circuit cannot point to many precedents. Arthur Hellman, professor at University of Pittsburgh School of Law who studies the circuit, 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. 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 long-time 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 underway here,” he said.

Erwin Chemerinsky, dean of the UC-Irvine law school, does not see any problem. “The fact that she is 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. Moreover, she is suing the federal government, not the circuit.

Golinski's attorneys from Morrison & Foerster flagged her employee status in a letter to the court, promising her cooperation in making appropriate arrangements. But they said in interviews they see no reason that the circuit cannot handle the appeal.

It is unclear whether the Bipartisan Legal Advisory Group (BLAG), which is defending DOMA at the behest of House Republicans, will seek recusal. They filed a notice of appeal in February, just two days after U.S. District Judge Jeffrey White granted summary judgment in Golinski's favor. Attorneys representing BLAG did not respond to a request for comment.

Conclusion

Hellman, who some 30 years ago served as head of the Ninth Circuit's central staff, said the judges should and likely would do nothing until or unless a recusal motion is made. “It is a very unusual situation fraught with potential conflicts, but probably the best thing for the judges to do is wait to see whether it is necessary to face the recusal issue,” Hellman said. “For all we know, Congress might do something that moots the suit entirely. I think the judges ought to not face difficult questions until they have to.”

Ginny LaRoe is a reporter for The Recorder, an ALM sister publication of this newsletter in which this article also appeared.

A challenge to the Defense of Marriage Act (DOMA) is now the official property of the Ninth Circuit U.S. Court of Appeals. But the constitutional issues are not all the court must tackle. Because the plaintiff is one of the court's own ' Karen Golinski is a long-time staff attorney seeking federal health benefits for her wife ' the case raises tricky and possibly unprecedented recusal questions.

What to Do

The court is taking steps to wall off Golinski and close colleagues from the appeal. What the judges might do is not clear, and scholars disagree on whether the circuit should wash its hands of the case entirely.

Already, one potential ally for Golinski is off the case. Chief Judge Alex Kozinski has said that he will recuse himself. He presided over Golinski's administrative proceedings and sided with her, even excoriating the Obama administration for countermanding his earlier order to grant the benefits.

The Court's Plans

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 was not 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 e-mail that he did not know of other judges' plans and could not discuss the matter further. Several judges declined to talk about potential conflicts since the case is pending before the court. 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 will recuse themselves, Catterson said. The chief judge, or acting chief judge, will not make a unilateral decision to refer it out of circuit.

Precedent

Lawyers familiar with the circuit cannot point to many precedents. Arthur Hellman, professor at University of Pittsburgh School of Law who studies the circuit, 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. 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 long-time 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 underway here,” he said.

Erwin Chemerinsky, dean of the UC-Irvine law school, does not see any problem. “The fact that she is 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. Moreover, she is suing the federal government, not the circuit.

Golinski's attorneys from Morrison & Foerster flagged her employee status in a letter to the court, promising her cooperation in making appropriate arrangements. But they said in interviews they see no reason that the circuit cannot handle the appeal.

It is unclear whether the Bipartisan Legal Advisory Group (BLAG), which is defending DOMA at the behest of House Republicans, will seek recusal. They filed a notice of appeal in February, just two days after U.S. District Judge Jeffrey White granted summary judgment in Golinski's favor. Attorneys representing BLAG did not respond to a request for comment.

Conclusion

Hellman, who some 30 years ago served as head of the Ninth Circuit's central staff, said the judges should and likely would do nothing until or unless a recusal motion is made. “It is a very unusual situation fraught with potential conflicts, but probably the best thing for the judges to do is wait to see whether it is necessary to face the recusal issue,” Hellman said. “For all we know, Congress might do something that moots the suit entirely. I think the judges ought to not face difficult questions until they have to.”

Ginny LaRoe is a reporter for The Recorder, an ALM sister publication of this newsletter in which this article also appeared.